Com. v. Ferrer, E.
1068 MDA 2021
| Pa. Super. Ct. | Apr 26, 2022Background
- Wiretap investigation (May–Aug 2017) led to charges against Eddie Ferrer for methamphetamine distribution; Ferrer pled guilty on August 2, 2018 to use of a communication facility, PWID, and conspiracy and was sentenced to 5–10 years. He did not file post-sentence motions or a direct appeal.
- Ferrer filed a pro se PCRA petition on August 31, 2020, conceding it was facially untimely but invoking the PCRA timeliness exceptions for governmental interference and newly discovered facts (42 Pa.C.S. § 9545(b)(1)(i)–(ii)).
- Ferrer claimed he learned on February 6, 2020, from co-defendant David Starke (while in prison) about an expert report by Daniel Rigmaiden analyzing discovery in Starke’s case; Ferrer attached that report and asserted it revealed withheld information about how law enforcement identified him.
- PCRA counsel sought leave to withdraw under Turner/Finley; the PCRA court issued a Rule 907 notice, concluded Ferrer’s petition was untimely and that Ferrer had waived Brady claims by pleading guilty (and that the Brady theory was speculative), allowed counsel to withdraw, and dismissed the petition on July 21, 2021.
- On appeal, the Superior Court held the PCRA court conflated the timeliness (newly discovered facts) inquiry with a merits Brady analysis; the court concluded Ferrer met the first prong (the facts were unknown) but remanded for factfinding on the due-diligence prong and ordered appointment of new counsel and an evidentiary hearing.
Issues
| Issue | Ferrer’s Argument | Commonwealth’s Argument | Held |
|---|---|---|---|
| Whether Ferrer’s PCRA petition satisfied the newly discovered facts exception (§ 9545(b)(1)(ii)) | Rigmaiden’s report (learned 2/6/20) was a new fact that alerted Ferrer to withheld discovery/Brady violations and ineffective assistance by plea counsel | Petition was untimely; any Brady claim was waived by guilty plea and the new-fact theory is speculative | Superior Court: Rigmaiden report satisfies the first prong (facts were unknown); PCRA court erred by doing merits analysis instead of the timeliness inquiry |
| Whether the PCRA court improperly conducted a merits (Brady) analysis when deciding timeliness | Ferrer: PCRA court should have limited its inquiry to whether facts were unknown and could be discovered with due diligence | Commonwealth: waiver/speculation supports dismissal without further timeliness analysis | Held: PCRA court conflated analyses; this was error and requires remand for proper timeliness/diligence factfinding |
| Whether Rigmaiden’s report itself constitutes a newly discovered fact for Ferrer | Ferrer: Report put him on notice of possible prosecutorial nondisclosure relevant to his case | Commonwealth: Report did not tie directly to Ferrer; speculative and unrelated to his file | Held: Court found the report sufficiently put Ferrer on notice to satisfy the "unknown facts" prong; merits not resolved here |
| Whether Ferrer exercised due diligence in discovering the facts (timeliness second prong) | Ferrer: Could not have ascertained the report/facts earlier because the Commonwealth suppressed them | Commonwealth: Implied Ferrer failed to show diligence | Held: Question of due diligence is fact-sensitive; remanded for evidentiary hearing to resolve diligence and, if met, then consider petition merits |
Key Cases Cited
- Commonwealth v. Small, 238 A.3d 1267 (Pa. 2020) (defines the two-step newly discovered facts timeliness inquiry and frames due diligence as context-dependent)
- Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007) (timeliness exception inquiry does not require merits analysis; sets proof burden)
- Commonwealth v. Albrecht, 994 A.2d 1091 (Pa. 2010) (PCRA timeliness is jurisdictional)
- Commonwealth v. Cox, 146 A.3d 221 (Pa. 2016) (evaluated proper focus of timeliness analysis versus after-discovered-evidence factors)
- Commonwealth v. Burton, 121 A.3d 1063 (Pa. Super. 2015) (en banc) (due diligence is fact-sensitive and requires reasonable efforts, not perfection)
- Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (standards for counsel seeking withdrawal in post-conviction proceedings)
- Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (procedures for counsel withdrawal under Turner)
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecutorial suppression of material exculpatory evidence violates due process)