Com. v. Golden, K.

J-S04035-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

KIREE GOLDEN :

:

Appellant : No. 829 EDA 2025

Appeal from the PCRA Order Entered March 14, 2025

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0010170-2009

BEFORE: LAZARUS, P.J., STABILE, J., and NEUMAN, J.

MEMORANDUM BY NEUMAN, J.: FILED FEBRUARY 23, 2026

Appellant, Kiree Golden, appeals pro se from the post-conviction court’s

March 14, 2025 order denying, as untimely, his petition filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

This Court briefly summarized the facts underlying Appellant’s

convictions in our decision affirming his judgment of sentence, as follows:

During the evening of February 5, 2008, Kuame Burkett … was

shot and killed. Burkett was with a number of friends outside of

a corner store located at the intersection of Brown and 16th

Streets in Philadelphia when [Appellant] and two other men, Iyube

Bundy and Mathew Bundy, approached the corner. Burkett, who

had been horsing around with one of his friends, ran a short

distance down the block and sat on a set of steps. Shortly

thereafter, [Appellant] approached Burkett, shot him multiple

times and fled. As [Appellant] fled, Iyube Bundy approached

Burkett, also shot him multiple times and fled in the same

direction as [Appellant]. Burkett was shot in his head, chest,

lower back and right thigh. He died from these gunshot wounds.

[Appellant], Iyube Bundy[,] and Mathew Bundy were tried

together before a jury in June 2012. [Appellant] was found guilty

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of [first-degree murder, conspiracy to commit murder, and

carrying a firearm on a public street in Philadelphia. 1] He was

subsequently sentenced to life imprisonment for the first-degree

murder conviction, and no further penalty was imposed for the

remaining convictions.

Commonwealth v. Golden, No. 2127 EDA 2012, unpublished memorandum

at 1-2 (Pa. Super. filed Oct. 29, 2013). Appellant filed a timely appeal from

his judgment of sentence, and this Court affirmed. Id. Our Supreme Court

denied Appellant’s subsequent petition for allowance of appeal on April 28,

2014. See Commonwealth v. Golden, 89 A.3d 1283 (Pa. 2014).

Appellant filed a timely pro se PCRA petition in April of 2015, and counsel

was appointed. That petition was ultimately dismissed without a hearing, and

after this Court affirmed on appeal, our Supreme Court denied Appellant’s

petition for allowance of appeal. See Commonwealth v. Golden, 2634 A.3d

380 (Pa. Super. 2021) (unpublished memorandum), appeal denied, 274 A.3d

721 (Pa. 2022).

On September 15, 2023, Appellant filed his second pro se petition, which

underlies the instant appeal. Therein, Appellant alleged the discovery of the

following new facts, which he claims warrant a new trial:

After [Appellant] was appointed federal habeas counsel through

the Federal Community Defender Office (FCDO), FCDO

investigator Richard Ruffin was able to locate and interview two of

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1 18 Pa.C.S. §§ 2502(a), 903, 6108, respectively.

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the witnesses who testified at trial, Joselis Rubio[2] and Robert

Gray. [] Gray provided a declaration reaffirming his testimony at

the preliminary hearing and stating that he did not know

[Appellant] at the time of [] Burkett’s shooting and did not see

him shoot [] Burkett. He stated that[,] although he was only 17

years old at the time of his interview, the detectives refused to

allow his mother to be present. They insisted that he must have

seen who shot [] Burkett and told [] Gray that they already knew

what happened. He ultimately signed “several sheets of paper”

so that he could go home. He explained that he was never shown

a photo array and that the detectives presented him with “a

stapled stack of papers and asked [him] to sign the bottom of

each one, flipping over the left-hand corner of each page for [him]

to sign, but not showing [him] what each page contained.”

[] Rubio did not sign a declaration, but Investigator Ruffin

prepared a declaration summarizing his conversation with []

Rubio. In that conversation, [] Rubio stated that he was not at all

confident in his identification of [Appellant,] and that he never saw

the first shooter’s face because he was only able to see him

running from the side while he was wearing a hood. He said he

chose [Appellant’s] photo from the array because he felt

pressured and because the police seemed happy when he chose

the photo. He felt more confident about his identification of Iyube

Bundy - about 70 percent - because he was able to see the second

shooter’s face, but nonetheless stated that he chose Iyube’s photo

because the police made suggestive gestures indicating that was

the picture he should choose.

[[] Rubio] also said that on the way to the police station, the police

told him that they had already caught the men who shot [] Burkett

because they had committed another crime. [] Rubio stated that

he had asked detectives to show him the surveillance video from

his store, but they told him it was against their policy to show the

video to a citizen. When [] Ruffin showed him the surveillance

video, [] Rubio explained that he had seen a man wearing a long

black coat and talking outside his store just before the shooting

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2 The record indicates that the full surname of this witness is “Perez-Rubio.”

See N.T. Trial, 6/18/12, at 10. However, both Appellant and the trial court

shorten his surname to “Rubio.” See, e.g., Memorandum Attached to PCRA

Petition, 9/15/23, at 12; Appellant’s Brief at 6; PCRA Court Opinion, 3/14/25,

at unnumbered 2. For ease of disposition and clarity, we will also use the

surname “Rubio” for this individual.

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took place. [] Rubio assumed that the man was the “leader” of

the group because of the way he was talking to the others. He

later assumed that this man was the shooter when he saw a man

in a long black coat shooting at the victim. The person he believed

to be the shooter had a neatly trimmed goatee, which was why he

chose [Appellant’s] photo from the photo array - he was the only

person with a neatly trimmed goatee and fresh haircut. When []

Rubio was informed that the man he saw talking and wearing the

long black coat in the video was identified as Mathew Bundy, and

then saw an arrest photo of Mathew with a goatee, he stated that

he would have identified Mathew as the first shooter if he had

been presented with a photo array containing his picture. [] Rubio

said that he did not reveal his uncertainty about his identification

or the fact that police already knew who committed the crime at

trial because he was afraid of going to jail. He said he had heard

from different people that there could be consequences for not

cooperating with the police.

Memorandum Attached to PCRA Petition at 12-13 (citations to the record

omitted).

On January 24, 2025, the PCRA court issued a Pa.R.Crim.P. 907 notice

of its intent to dismiss Appellant’s petition on the basis it was untimely and

had not met any exception to the timeliness requirements of the PCRA. The

court explained:

First, you provide a declaration from Robert Gray, an eyewitness

who initially provided a statement to police that identified you as

the shooter; however, Gray was unavailable to testify at your trial,

so his testimony from the preliminary hearing was read into the

record. Gray’s current declaration, dated February 25, 2023,

states that he did not see you on the night of the murder, that he

did not testify at trial because he did not see you on the night of

the murder, and that the contents of his police statement were

not true. The current declaration from [] Gray appears to mirror

the evidence submitted at trial. Gray testified at the preliminary

hearing that he did not see anyone who was sitting in the

courtroom on that night, that he was questioned by four

detectives whose names he did not recall, that he signed a

statement that he did not read, and denied seeing you that night

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or choosing your picture from a photo array. Thus, Gray recanted

his identification of you at the preliminary hearing, which was read

into the record at trial. As such, you have not met your burden of

pleading and proving a newly discovered fact as an exception to

the time bar.

Secondly, you attempted to satisfy the newly-discovered[-]fact

exception by claiming you recently discovered that witness …

Rubio’s identification of you was questionable, and was induced

by police coercion. In support thereof, you provided the

statement from Richard Ruffin, an investigator for the [FCDO],

which is representing you with respect to your federal habeas

corpus petition. The statement from [Investigator] Ruffin

summarizes his interview with Rubio. The entirety of this

statement is hearsay, and thus cannot provide the basis for the

newly discovered fact exception. A claim which rests exclusively

upon inadmissible hearsay is not of a type that implicates the

newly discovered evidence exception. Commonwealth v.

Yarris, … 731 A.2d 581 ([Pa.] 1999) ([stating that e]vidence

which purportedly identifies someone other than [the] petitioner

as [the] perpetrator is inadmissible hearsay, which is not of a type

that would implicate the newly[-]discovered[-]fact exception);

Commonwealth v. Brown, 141 A.3d 491 ([Pa. Super.] 2016)

([finding that an a]ffidavit from [an] individual stating that [a]

police officer was overheard confessing to [the] murder for which

[the] petitioner was convicted did not constitute [a] newly[-]

discovered fact to overcome [the] untimel[iness of the] petition,

because [the] alleged confession was hearsay, and did not fall

under [any] hearsay exception).3

3 Even assuming the statement was not hearsay, its alleged

content does not demonstrate police misconduct. While

Investigator Ruffin interviewed [] Rubio, the summary of his

statement was that Rubio felt “pressured” by police to

identify [Appellant] as shooter and that [Appellant’s] trial

counsel did not interview him prior to trial, and that,

although he testified at trial confirming his identification of

[Appellant], he did not disclose that he felt pressured by

police at the time because he was "scared[.”] No police

officer is identified, nor is any specific allegation of

misconduct alleged by [] Rubio.

Rule 907 Notice, 1/24/25, at unnumbered 1-2.

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Appellant did not file any response to the court’s Rule 907 notice, despite

the court’s advising him he had twenty days to do so. See id. at unnumbered

1.3 On March 14, 2025, the court issued an order and opinion dismissing his

petition as untimely. The court’s rationale in its opinion mirrored that which

was set forth in its Rule 907 notice. See PCRA Court Order and Opinion

(PCOO), 3/14/25, at unnumbered 2-4. Appellant filed a timely, pro se notice

of appeal. It does not appear that the PCRA court ordered him to file a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The

court relied on its March 14, 2025 opinion in satisfaction of Rule 1925(a).

Herein, Appellant states one issue for our review: “Did the PCRA court err in

concluding that Appellant’s claims were untimely and did not meet any

exception to the PCRA’s time bar?” Appellant’s Brief at 4.

This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error. Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). Additionally, the PCRA time

limitations implicate our jurisdiction and may not be altered or disregarded in

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3 We note that the “Proof of Service” attached to the court’s Rule 907 notice

indicates that Appellant was served with that document by first-class mail on

January 24, 2025. However, the docket entry for the Rule 907 notice does

not indicate the date of service of the order, or any other information aside

from the filing date and the statement, “PCRA - Dismissal Notice Under Rule

907 Filed.” This docket entry does not comply with Pa.R.Crim.P. 114(C)(2)

(requiring the clerk of courts to note, via a docket entry, the date the order

or notice was received in the clerk’s office, the date appearing on the order or

notice, and the date of service of the order or court notice).

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order to address the merits of a petition. See Commonwealth v. Bennett,

930 A.2d 1264, 1267 (Pa. 2007). Under the PCRA, any petition for post-

conviction relief, including a second or subsequent one, must be filed within

one year of the date the judgment of sentence becomes final, unless one of

the following exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

(b) Time for filing petition.--

(1) Any petition under this subchapter, including a second

or subsequent petition, shall be filed within one year of the

date the judgment becomes final, unless the petition alleges

and the petitioner proves that:

(i) the failure to raise the claim previously was the

result of interference by government officials with the

presentation of the claim in violation of the

Constitution or laws of this Commonwealth or the

Constitution or laws of the United States;

(ii) the facts upon which the claim is predicated were

unknown to the petitioner and could not have been

ascertained by the exercise of due diligence; or

(iii) the right asserted is a constitutional right that was

recognized by the Supreme Court of the United States

or the Supreme Court of Pennsylvania after the time

period provided in this section and has been held by

that court to apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, section 9545(b)(2) requires that

any petition attempting to invoke one of these exceptions “be filed within one

year of the date the claim could have been presented.” 42 Pa.C.S. §

9545(b)(2).

Here, Appellant’s judgment of sentence became final in 2014, after our

Supreme Court denied his petition for allowance of appeal and he did not seek

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further review with the United States Supreme Court. Thus, his petition filed

in 2023 is untimely, and Appellant must prove that he meets one of the

exceptions to the timeliness requirements set forth in 42 Pa.C.S. § 9545(b)

for this Court to have jurisdiction.

Appellant argues he meets the after-discovered-fact exception of

section 9545(b)(1)(ii) based on the statements by Gray and Rubio. First,

regarding Gray’s statement, he contends that the PCRA “court erred in

concluding that his current declaration merely ‘mirror[ed] the evidence

submitted at trial.’” Appellant’s Brief at 11 (quoting PCOO at unnumbered 2).

Appellant argues that,

[a]lthough [] Gray did recant his identification of Appellant as the

shooter at the preliminary hearing, his current declaration

contains more than a recantation. In his current declaration, []

Gray details how the police coerced him into signing a statement

he had not read: he stated that he was never shown any photo

arrays containing Appellant’s picture, but was instead asked to

sign the bottom of sheets of paper he was not allowed to see. []

Gray’s assertion of coercion and fabrication by the police thus puts

his earlier recantation in context and lends it credibility.

Id. (citation to the record omitted).

Second, pertaining to Rubio’s statement, Appellant concedes “the

declaration from Investigator Ruffin is hearsay….” Id. at 12. However, he

avers the court erred by not giving “Appellant an opportunity to prove its

contents in the courtroom.” Id. Appellant insists he “specifically alerted the

court that he intended to subpoena [] Rubio’s presence in court to testify to

the contents of the declaration” and, thus, the court should have granted him

an evidentiary hearing. Id. He also argues a hearing was warranted to give

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him “an opportunity to demonstrate the alleged police misconduct” by

producing “documents and other witnesses….” Id.

Third, Appellant maintains he exercised due diligence in discovering

both Gray’s and Rubio’s statements. Id. at 13. Specifically, he explains he

“did not have the means to interview [these] two witnesses after trial[,] and

did not have access to the photographs used in the photo arrays [they] were

shown until [Appellant’s] federal habeas counsel obtained discovery from the

Commonwealth” in 2022 and Investigator Ruffin “was able to find Mr. Rubio

in New York City … in September [of] 2022.” Id. Appellant stresses “he is

incarcerated and indigent[]” and, therefore, he “has been unable to locate and

interview witnesses over the last several years without the assistance of

counsel.” Id. He also claims because he “was not appointed counsel by the

[PCRA] court or granted a hearing, he was unable to subpoena [] Rubio to

court to testify to the contents of Investigator Ruffin’s declaration.” Id.

Accordingly, Appellant concludes he “has proven the newly-discovered[-fact]

exception to the PCRA’s time bar on subsequent PCRA petitions[,] and his

claims warrant a merits review.” Id. at 14.

We disagree. First, regarding Gray’s statement, the PCRA court is

correct that it is cumulative of evidence presented at trial. In Gray’s instant

statement, he claims he did not see Appellant shoot the victim, and the

statement he gave to police was not true. See PCRA Petition, 9/15/23, at

Exhibit 1. At trial, the Commonwealth was permitted to read into the record

Gray’s testimony from the preliminary hearing, wherein Gray claimed he was

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not present when the victim was shot, and did not see Appellant or his co-

defendants that night. See N.T. Trial, 6/20/12, at 181-84. Gray was then

confronted with the statement he had provided to police after the shooting, in

which he identified Appellant from a photographic array as the person he saw

shoot the victim. Id. at 199. Appellant now argues Gray’s current statement

provides more detail about the coercive tactics purportedly used by police in

obtaining that out-of-court statement. However, Gray testified at the

preliminary hearing the officers taking his statement “just told [him] to sign

the papers[,]” and he did so without reading them. Id. at 186-87. Thus, the

facts set forth in Gray’s instant declaration are not “new,” as this evidence

was presented at trial.

Moreover, even if Gray’s declaration provides more specifics about the

coercive tactics allegedly used by police in obtaining his out-of-court

statement, Appellant has not demonstrated he could not have discovered

these additional details earlier, with the exercise of due diligence. Appellant

does not explain why he could not have questioned Gray and learned these

details after Gray testified at the preliminary hearing that the police pressured

him into providing his statement. Although Appellant blames his failure to do

so on his incarceration, indigency, and lack of counsel, the record confirms he

was represented by counsel at the time of Gray’s preliminary hearing

testimony, throughout the trial proceedings, on direct appeal, and during the

litigation of his first PCRA petition. Thus, Appellant’s counsel could have

discovered the new details set forth in Mr. Gray’s declaration and raised those

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claims earlier, in the exercise of due diligence. Appellant cannot meet the

newly-discovered-fact exception based on Gray’s statement.

Second, regarding Rubio’s statement, Appellant does not dispute the

PCRA court’s finding Investigator Ruffin’s recounting of what Rubio told him is

inadmissible hearsay. As the PCRA court recognized, the Pennsylvania

Supreme Court in Yarris declared, “[a] claim which rests exclusively upon

inadmissible hearsay is not of a type that would implicate the [newly-

discovered-fact] exception to the timeliness requirement, nor would such a

claim, even if timely, entitle [an a]ppellant to relief under the PCRA.” Yarris,

731 A.3d at 592; see also PCOO at unnumbered 3. However, recently in

Commonwealth v. Brown, --- A.3d ----, 2026 WL 227113 (Pa. filed Jan. 28,

2026), the Court clarified “[t]his sentence [in Yarris] indicated that the

timeliness analysis hinged upon the admissibility at trial of the after-

discovered evidence. But that is not correct. The evidence only must be

admissible at the evidentiary hearing.” Id. at *17 (emphasis added). The

Brown Court continued:

Yarris does not stand for the proposition that a third-party

confession can never be a newly[-]discovered fact. Under the

plain language of [s]ection 9545(b)(1), such a fact can constitute

a newly[-]discovered fact so long as the petitioner alleges and

proves the existence of this predicate fact, that it was previously

unknown, and that it could not have been ascertained earlier by

the exercise of due diligence.

Id.

Here, Appellant does not allege how Rubio’s statement would be

admissible at an evidentiary hearing. Instead, he simply contends a hearing

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is warranted because he “intend[s] to subpoena [] Rubio’s presence in court

to testify to the contents of the declaration….” Appellant’s Brief at 12.

However, according to Investigator Ruffin, when he attempted to contact

Rubio “some weeks” after preparing Rubio’s declaration, the investigator “did

not get a response.” See PCRA Petition at Exhibit 2 ¶ 3. Moreover, Appellant

did not attach to his petition a witness certification from Rubio, signed either

by Rubio or himself. See 42 Pa.C.S. § 9545(d)(1)(i) (“Where a petitioner

requests an evidentiary hearing, the petition shall include a certification signed

by each intended witness stating the witness’s name, address, date of birth

and substance of testimony and shall include any documents material to that

witness’s testimony.”); 42 Pa.C.S. § 9545(d)(1)(ii) (“If a petitioner is unable

to obtain the signature of a witness under subparagraph (i), the petitioner

shall include a certification, signed by the petitioner or counsel, stating the

witness’s name, address, date of birth and substance of testimony.”).

Furthermore, although Rubio’s hearsay statement could constitute a

‘new fact’ that satisfies section 9545(b)(1)(ii) under Brown, it must still have

some relevancy to a claim of relief for Appellant. “We recognize that a merits-

based analysis is inappropriate at this stage.” Commonwealth v. Myers,

303 A.3d 118, 122 (Pa. Super. 2023) (citing Commonwealth v. Cox, 146

A.3d 221, 227 (Pa. 2016); Commonwealth v. Bennett, 930 A.2d 1264,

1271 (Pa. 2007)). However,

[w]hile Bennett and its progeny instruct courts to avoid analyzing

the merits of the underlying claim, we believe that principle cannot

go so far as to altogether preclude the courts from considering the

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claim the petitioner seeks to raise in determining whether an

evidentiary hearing is warranted. As an extreme example,

suppose an incarcerated PCRA petitioner asserted in an untimely

petition that he recently discovered that the Houston Astros won

the 2017 World Series. It would defy reason to suggest that a

PCRA court must hold an evidentiary hearing to carefully apply the

newly-discovered[-]fact inquiry before considering how that fact

could possibly matter. Cox stated that “[t]he function of a section

9545(b)(1)(ii) analysis is that of a gatekeeper.” A gatekeeping

function contemplates that there may be a reason to open the

gate.

Id. at 122-23.

Here, the PCRA court concluded that, “[e]ven assuming [Rubio’s]

statement was not hearsay, its alleged conduct does not demonstrate police

misconduct.” PCOO at unnumbered 3. The record supports the court’s

decision. Investigator Ruffin claimed Rubio told him,

[h]e felt pressured to make an identification and the police were

suggestive as to which person he should identify in the photo

array. They guided him to the person who they wanted him to

identify. First, they showed him a photo spread where all the

faces had a goatee and hair braids. He had told the police that

the person he believed to be the shooter had a neatly trimmed

goatee…. Only one of the photos in the array showed a person

who was cleanly groomed with a neat goatee. … He said he chose

the photo depicting [Appellant] because he was the only one with

a neat goatee and fresh haircut and because it was the photo the

police seemed to want him to choose. They seemed frustrated

when he was taking his time with the photos. When he pointed

to other photos, they said, “You should be sure,” but when he had

his finger over the photo of the well-groomed person, they

seemed happy.

See PCRA Petition at Exhibit 2 ¶ 5. Rubio also told Investigator Ruffin “he did

not want to testify about the police pressure and his lack of confidence in his

identification because he was scared.” Id. at Exhibit 2 ¶ 11.

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Rubio’s vague assertions he “felt pressured” and police “were

suggestive” during the photo array do not constitute allegations of

misconduct, nor do his claims the police seemed “frustrated” he was taking

his time or “happy” he identified Appellant. Thus, Appellant has not

established how Rubio’s statement, even if admissible, would be relevant to

Appellant’s obtaining relief under the PCRA. Moreover, Appellant’s argument

a PCRA hearing is warranted to permit him an opportunity to prove the police

misconduct with “documents and other witnesses” is inadequate. Appellant’s

Brief at 12. As the Commonwealth correctly observes, “[a] PCRA evidentiary

hearing … may not be used by a defendant to discover whether evidence exists

that might support a claim for relief.” Commonwealth’s Brief at 22-23 (citing

Commonwealth v. Sneed, 45 A.3d 1096, 1116 (Pa. 2012)). In other words,

Appellant is not entitled to an evidentiary hearing to conduct a “fishing

expedition” for evidence. See id. (stating “[a]n evidentiary hearing … is not

meant to function as a fishing expedition for any possible evidence that may

support some speculative claim”) (citations omitted).

Given this record, we discern no error of law or abuse of discretion in

the PCRA court’s determination that Appellant failed to meet the newly-

discovered-fact exception based on Gray’s and/or Rubio’s statements.

Order affirmed.

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Date: 2/23/2026

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