The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAWN DAVID CARBAUGH :
:
Appellant : No. 1026 MDA 2025
:
Appeal from the PCRA Order Entered July 1, 2025
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0001484-2017
BEFORE: DUBOW, J., BECK, J., and BENDER, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED: MAY 5, 2026
Shawn David Carbaugh (“Appellant”) appeals from the order denying of
his petition seeking relief pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-46. He challenges the court’s determination that he failed
to prove the newly discovered fact exception to the PCRA’s one-year time bar.
After careful consideration, we affirm.
In December 2018, a jury convicted Appellant of numerous sexual
offenses he committed against his minor daughter. On February 1, 2019, the
court imposed sentence. On January 28, 2020, this Court affirmed on appeal.
Commonwealth v. Carbaugh, 2020 WL 433533 (Pa. Super. filed Jan. 28,
2020) (non-precedential).
On August 23, 2024, Appellant pro se filed a PCRA petition stating that
he learned from his brother that the Victim’s mother had coached the Victim
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to lie. The court appointed counsel who filed an amended petition asserting
that Appellant learned from his brother in 2024 that there were two people
who knew that the Victim had recanted her trial testimony. First, the ex-
boyfriend of the Victim’s mother, Christopher Middlekauff, who heard the
Victim say that her mother had coached her and that she had lied about the
assaults (“Purported Recantation Information”). Second, Hannah Hardy, the
Victim’s babysitter following Appellant’s trial, who heard the Victim say her
mother had coached her to lie.
On May 30, 2025, the PCRA court held a hearing limited to the timeliness
of the petition. Hannah Hardy, Christopher Middlekauff, and Appellant
testified. Hannah Hardy testified that the Victim relayed the Purported
Recantation Information to her in 2019 while she was babysitting the Victim
and her siblings. She testified that she did not know whom to reach out to
with the information until Appellant’s brother reached out to her in 2024 via
social media. Ms. Hardy also testified that her friendship with the Victim’s
mother ended sometime in 2020.
Mr. Middlekauff testified that he was the boyfriend of the Victim’s mother
from 2018 to 2020 and that he had lived with the Victim’s mother off and on
until their relationship ended in 2020. Mr. Middlekauff testified that the Victim
expressed the Purported Recantation Information to him in 2019. He testified
that he relayed this information to “multiple people,” including Appellant’s trial
counsel, Shawn Stottlemyer, Esq., through phone messages in 2019 or 2020,
but did not hear back from him. N.T. PCRA Hr’g at 27. He further testified
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that Appellant’s brother contacted him in May 2024 because “he had gotten
into an accident and had some money. He wanted to hire an attorney to try
and help Shawn. He understood that I knew – had this information that I was,
you know, telling anyone that would listen to, you know, this man is not
guilty.” Id. at 28. He also admitted that he pled nolo contendre to simple
assault of the Victim’s mother in 2019 and that she had obtained an order for
Protection From Abuse against him.
Appellant testified that he had no contact with Ms. Hardy or Mr.
Middlekauff and claimed that he did not learn of the Purported Recantation
Information until his brother told him in May 2024. He admitted that he did
not know precisely the content of Ms. Hardy’s and Mr. Middlekauff’s
statements, but filed his petition within 2 months of learning from his brother
of the existence of this Purported Recantation Information. Appellant’s
brother did not testify. Following the close of Appellant’s evidence, the
Commonwealth moved to dismiss the petition, which the PCRA court denied.
The Commonwealth then presented the testimony of Attorney
Stottlemyer regarding communications he received after trial. He testified
that Appellant’s mother, Connie Wright, had left a message with his paralegal
that she wanted to discuss the Victim’s recanting or changing her trial
testimony. In response, Attorney Stottlemyer scheduled a telephone meeting
with Ms. Wright; however, she failed to answer his call, and her voicemail box
was not taking messages. With respect to information relayed to him from
Mr. Middlekauff, Attorney Stottlemyer testified that he did not file a PCRA
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petition because he did not have reliable evidence that the Victim had
recanted.
We note that Appellant did not call the Victim to testify.
The PCRA court took the matter under advisement, and on July 1, 2025,
the court issued an order and opinion dismissing the petition after concluding
the claim failed to satisfy the newly discovered fact exception to the PCRA’s
one-year time bar. Specifically, the court found that the “alleged statements
of the Victim recanting her trial testimony, being coerced, etc., do not
constitute a newly discovered fact.” Op., 7/1/25, at 11. The court also
concluded that Appellant had not exercised due diligence in uncovering these
witnesses or the Victim’s alleged recantation. Id.
Appellant timely appealed. Both Appellant and the PCRA court complied
with Pa.R.A.P. 1925.
Appellant raises the following question for our review:
Did the PCRA Court err in denying Appellant’s PCRA Petition where
it found it did not meet the exception to the one-year time bar
under 42 Pa.C.S. §9545(b)(1)(ii), in that it found the facts
presented were known to Appellant, and if they were unknown,
Appellant failed to exercise due diligence in discovering them?
Appellant’s Br. at 7.
We review the denial of a PCRA petition to determine whether the record
supports the PCRA court's determination and whether its order is otherwise
free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014).
Review of a court’s jurisdiction determination presents a question of law,
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which we review de novo under a plenary scope of review. Commonwealth
v. Beatty, 207 A.3d 957, 961 (Pa. Super. 2019); Commonwealth v. Jones,
929 A.2d 205, 211 (Pa. 2007).
It is well-established that the timeliness of a PCRA petition is
jurisdictional; if a PCRA petition is untimely, courts lack jurisdiction and cannot
address substantive claims. Commonwealth v. Wharton, 886 A.2d 1120,
1124 (Pa. 2005). To be timely, a PCRA petition, including a second or
subsequent petition, must be filed within one year of the date that a
petitioner’s judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1).
“[A] judgment becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of [the] time for seeking
the review.” 42 Pa.C.S. § 9545(b)(3). The PCRA’s jurisdictional time bar “is
constitutionally valid.” Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa.
2004).
Here, Appellant’s petition, filed over 4½ years after his judgment of
sentence became final, is facially untimely. Pennsylvania courts may consider
an untimely PCRA petition, however, if the petitioner pleads and proves one
of the three exceptions to the time bar set forth in Section 9545(b)(1). Any
petition invoking a timeliness exception must be “filed within one year of the
date the claim could have been presented.” 42 Pa.C.S § 9545(b)(2).
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Appellant relies on the newly discovered fact exception. To establish
this exception, a petitioner must plead and prove that “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.” 42 Pa.C.S.
§ 9545(b)(1)(ii); Commonwealth v. Bennett, 930 A.2d 1264, 1270 (Pa.
2007). “[T]he focus of this exception is on the newly discovered facts, not on
a newly discovered or newly willing source for previously known facts.”
Commonwealth v. Brown, G., 111 A.3d 171, 176 (Pa. Super. 2015)
(citation and internal quotation marks omitted).
Our Supreme Court has recently opined that “[a] petitioner’s satisfaction
of the newly discovered facts exception does not in any way depend upon the
merits of the underlying claim.” Commonwealth v. Brown, J., 350 A.3d 12,
34 (Pa. 2026). Thus, “[a] petitioner may satisfy the timeliness exception even
if his or her underlying, substantive claim turns out to be meritless.” Id.
Due diligence requires petitioners to take steps to protect their own
interests within a reasonable time. Commonwealth v. Carr, 768 A.2d 1164,
1168 (Pa. Super. 2001). It “entails neither perfect vigilance nor punctilious
care[; ]rather[,] it requires reasonable efforts by a petitioner, based on the
particular circumstances, to uncover facts that may support a claim for
collateral relief.” Commonwealth v. Shiloh, 170 A.3d 553, 558 (Pa. Super.
2017)(citation and internal quotation marks omitted). Thus, “[a] petitioner
must explain why he could not have learned the new fact(s) earlier with the
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exercise of due diligence.” Commonwealth v. Medina, 92 A.3d 1210, 1216
(Pa. Super. 2014) (citation omitted).
Due diligence “does not require a defendant to make [] unreasonable
assumptions.” Commonwealth v. Davis, 86 A.3d 883, 890-91 (Pa. Super.
2014). Thus, with respect to recantation evidence, due diligence does not
require a defendant to “have assumed the Commonwealth’s witnesses were
committing perjury.” Id. at 890 (emphasis omitted). See also
Commonwealth v. Franklin, 346 A.3d 812, 820 (Pa. Super. 2025)
(concluding that where a defendant testified that he did not have any contact
with the recanting witness after trial and did not learn of the recantation until
an attorney contacted him 36 years later, the defendant’s filing his PCRA
petition within a month of receiving the attorney’s information met the
timeliness exception).
Accordingly, a witness’s recantation may qualify as a newly-discovered
fact for purposes of pleading the timeliness exception to the PCRA’s time bar.
See, e.g., Commonwealth v. Medina, 92 A.3d 1210, 1217-18 (Pa. Super.
2014) (en banc) (holding that the record established that defendant’s second
PCRA petition was not time-barred because the defendant could not have
discovered the source of witness recantation or the recantation itself through
due diligence in light of the witness’s “unequivocal[]” and “consistent[]” trial
testimony).
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Most important to our analysis, our Supreme Court has recently opined
that at a hearing held to determine whether a petitioner’s claim meets the
timeliness exception, the petitioner must prove the allegations with admissible
evidence.
If the PCRA petition warrants a hearing as to the timeliness
exceptions, then the petitioner has the burden to prove the
allegations through admissible evidence. The burden at the filing
stage is only to allege or plead facts establishing an exception;
the burden at the [timeliness] hearing is to prove contested,
material facts through the admission of evidence.[] Based upon
the plain language of Section 9545(b)(1)(ii), . . . a petitioner
generally cannot establish a disputed predicate fact under Section
9545(b)(2)(ii) unless the petitioner can prove that fact at a
hearing with admissible evidence.
Brown, 350 A.3d at 29 (emphasis in original).
In its opinion dismissing the petition, the PCRA court here opined that
the “fact at issue is that the [V]ictim lied, was coached to lie, or recanted her
trial testimony, etc.,” and concluded, that “the evidence of the Victim lying
represents a new source of a previously known fact, not a new fact previously
unknown” because Appellant’s defense at trial rested on the Victim’s
credibility. PCRA Ct. Op. at 7, 10.
We disagree with the court’s analysis. A defendant’s contention that a
testifying witness was lying is not a “previously known fact;” it is merely an
assumption that was not proven to be a fact at trial. Based on our review, we
conclude that the new fact that Appellant pleaded in his counseled PCRA
petition to overcome the time bar is that the Victim allegedly recanted after
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telling two people, unknown to Appellant, that she had lied. Since Appellant
did not know of these people until his brother told him in 2024, we conclude
he met the diligence requirement.
However, as noted above, where a court holds a hearing to determine
whether a petitioner has satisfied the timeliness exception, the petitioner must
prove the predicate fact “with admissible evidence” so as to overcome the
PCRA’s time bar. Brown, 350 A.3d at 29.
Here, the Victim did not testify at the PCRA hearing. Rather, the only
evidence that Appellant presented to prove that the Victim recanted is
testimony from Ms. Hardy and Mr. Middlekauff. Their testimony is
inadmissible hearsay. See Pa.R.E. 801(c)(2) (defining hearsay as “a
statement that . . . a party offers in evidence to prove the truth of the matter
asserted in the statement”). Accordingly, we conclude that while Appellant
pled a newly discovered fact, he did not prove the “predicate fact” with
admissible evidence. Thus, Appellant’s claim does not overcome the PCRA’s
timeliness requirements.
Because Appellant did not overcome the PCRA’s time bar, no court has
jurisdiction to consider the merits of his underlying claim. We, thus, affirm
the dismissal of Appellant’s PCRA petition.1
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1 Where a trial court’s result is correct, this Court may affirm the disposition
on different grounds. Commonwealth v. Lehman, 275 A.3d 513, 520 n.5
(Pa. Super. 2022).
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Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 05/05/2026
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