Com. v. Cox, D., 936 WDA 2015

Background

Dayvon Cox was convicted by a jury of multiple violent and sexual offenses (kidnapping, robbery, sexual assault, terroristic threats, etc.) and was later adjudicated a Sexually Violent Predator (SVP); trial court sentenced him to an aggregate 23 to 54 years.
Cox’s direct appeal was affirmed; he later filed a timely PCRA petition raising numerous ineffective-assistance and evidentiary claims, some by prior PCRA counsel and some pro se.
The PCRA court denied relief without an evidentiary hearing; counsel withdrew and Cox elected to proceed pro se on appeal.
Major claims on collateral review included: (1) appellate counsel ineffective for not challenging the trial court’s refusal to replace a juror who belatedly disclosed his wife was a sexual-assault victim; (2) Alleyne challenge to mandatory-minimum sentencing; (3) trial counsel ineffective for not obtaining a rebuttal expert in the SVP proceeding; (4) failure to challenge juror contacts with victim’s family during deliberations; (5) failure to raise a Batson challenge on appeal to Commonwealth’s peremptory strike of a Black juror; and (6) trial counsel’s failure to seek admission of evidence of the victim’s prior sexual relations (Rape Shield issue).
The Superior Court affirmed: it found prior appellate rulings on the juror disclosure claim precluded relief; Alleyne does not apply retroactively to collateral review; Masker barred PCRA consideration of challenges to SVP procedure/rebuttal experts; and the remaining claims lacked arguable merit under Strickland analysis.

Issues

Issue	Cox's Argument	Commonwealth / Trial Court Argument	Held
Whether appellate counsel was ineffective for not challenging trial court’s refusal to replace juror who later revealed spouse was a sexual-assault victim	Counsel should have raised abuse of discretion and prejudice from juror’s belated disclosure	Issue was raised on direct appeal and rejected on the merits	Denied — claim precluded by direct‑appeal adjudication
Whether Alleyne renders Cox’s mandatory-minimum sentence illegal and warrants relief	Alleyne requires certain facts be found by jury, so sentence is illegal	Alleyne does not apply retroactively on collateral review	Denied — Alleyne not retroactive per Pennsylvania law
Whether trial counsel was ineffective for not obtaining a rebuttal expert at the SVP hearing	A rebuttal expert could have undermined Commonwealth’s SVP diagnosis	Masker bars PCRA cognizability of challenges to SVP procedure/rebuttal experts; no showing expert would be available	Denied — claim not cognizable under PCRA / no prejudice shown
Whether counsel was ineffective for failing to pursue a mistrial or further inquiry after juror contact with victim’s family in courthouse parking garage	Contact during deliberations likely biased jurors and warranted further inquiry or mistrial	Jurors denied knowing or discussing trial matters; trial court reasonably found no prejudice	Denied — trial court did not abuse discretion; no reasonable likelihood of prejudice
Whether appellate counsel was ineffective for not raising Batson challenge to Commonwealth’s peremptory strike of a Black juror	Strike was racially motivated; appellate counsel should have raised Batson	Trial court reconsidered and found Commonwealth’s race‑neutral reasons credible given juror’s ties to defendant/co‑defendant families	Denied — no clear error in trial court’s Batson resolution; no prejudice shown
Whether trial counsel was ineffective for not seeking to admit evidence of victim’s prior sexual relations (Rape Shield)	Evidence of third‑party sexual activity would impeach victim’s credibility	Proffer was not highly probative of consent; Rape Shield and Spiewak balancing would exclude it; alternative impeachment exists	Denied — proffer lacked arguable merit and would likely be excluded

Key Cases Cited

Alleyne v. United States, 133 S. Ct. 2151 (U.S. 2013) (mandatory-minimum facts and jury findings rule)
Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016) (Alleyne not retroactive on collateral review)
Commonwealth v. Masker, 34 A.3d 841 (Pa. Super. 2011) (PCRA does not cognize challenges to SVP determination process/rebuttal-expert failures)
Batson v. Kentucky, 476 U.S. 79 (U.S. 1986) (framework for racial discrimination in peremptory strikes)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (ineffective assistance performance/prejudice standard)
Commonwealth v. Sneed, 45 A.3d 1096 (Pa. 2012) (reasonable‑likelihood‑of‑prejudice test for extraneous juror influence)