Com. v. Ballow, J.
Com. v. Ballow, J. No. 3158 EDA 2016
| Pa. Super. Ct. | Aug 21, 2017Background
- Julius Ballow was convicted by a jury of possession with intent to deliver and possession of drug paraphernalia and sentenced to 78–192 months in July 2009; direct appeal affirmed and judgment became final in Feb 2011.
- Ballow filed a first PCRA petition on April 10, 2014 and an amended petition on Oct 1, 2014 raising a newly-discovered evidence claim based on allegations that trial expert Officer Michael E. Spicer was later indicted for corruption.
- Officer Spicer did not participate in Ballow’s arrest; he testified as an expert about narcotics packaging and intent to distribute based on evidence provided by the arresting officer.
- The Commonwealth moved to dismiss, arguing the indictment against Spicer (1) is only an accusation (not admissible proof), (2) would be used solely for impeachment, and (3) lacks nexus to Ballow’s case; a federal acquittal of Spicer had occurred by the time of briefing.
- The PCRA court dismissed the petition without a hearing; Ballow appealed claiming the court erred by denying an evidentiary hearing.
Issues
| Issue | Plaintiff's Argument (Ballow) | Defendant's Argument (Commonwealth/PCRA court) | Held |
|---|---|---|---|
| Whether PCRA court erred by dismissing without an evidentiary hearing | Ballow contends he raised material facts (Spicer’s indictment) requiring a hearing | Commonwealth argues the indictment is not admissible proof, claim is impeachment-only, and lacks nexus to case | Court held no abuse of discretion; dismissal without hearing affirmed |
| Whether Spicer’s indictment qualifies as after-discovered evidence that overcomes PCRA time-bar and merits relief | Ballow asserts the indictment is a newly-discovered fact and was raised within 60 days of discovery | Commonwealth/PCRA court contend an indictment/charge is not proof and cannot satisfy after-discovered evidence elements | Court held indictment/charges alone are insufficient and Ballow failed to meet after-discovered-evidence criteria |
| Whether the evidence would not be used solely for impeachment | Ballow implies Spicer’s corruption undermines the expert opinion substantively | Commonwealth notes Ballow’s petition explicitly seeks to attack Spicer’s credibility and impeachment-only claims fail the test | Court held Ballow’s own pleadings show the material is impeachment-only, failing that prong |
| Whether alleged misconduct has nexus to Ballow’s conviction and would likely change verdict | Ballow argues jury would have evaluated expert testimony differently if aware of misconduct | Commonwealth/PCRA court observe Spicer wasn’t involved in arrest, misconduct post-dated events, and his testimony was based on materials from arresting officer | Court held lack of nexus and low likelihood of a different verdict weigh against relief |
Key Cases Cited
- Commonwealth v. Roney, 79 A.3d 595 (Pa. 2013) (standard for dismissing a PCRA petition without a hearing)
- Commonwealth v. Washington, 927 A.2d 586 (Pa. 2007) (elements required for after-discovered evidence relief)
- Commonwealth v. Jackson, 158 A.3d 64 (Pa. 2016) (criminal charges without convictions are not admissible proof for impeachment)
- Commonwealth v. Taylor, 381 A.2d 418 (Pa. 1977) (prior arrests not resulting in conviction are inadmissible for impeachment)
- Commonwealth v. Griffin, 137 A.3d 605 (Pa. Super. 2016) (indictment is a mere accusation, not evidence of guilt)
- Commonwealth v. Robinson, 12 A.3d 477 (Pa. Super. 2011) (PCRA jurisdiction depends on timeliness or a valid exception)