Com. v. Kirnon, J.
1101 EDA 2016
| Pa. Super. Ct. | Oct 21, 2016Background
- In 1998 Kirnon and co-defendant Rafael Stewart shot and killed Darius Cuthbert and wounded Omar Johnson; Kirnon was convicted (first-degree murder and related offenses) after a jury trial in 2003 and received life plus consecutive sentences.
- Kirnon’s direct appeal was affirmed in 2005; his judgment of sentence became final on February 12, 2005. He filed earlier PCRA petitions in 2006 and 2011, both dismissed and affirmed on appeal.
- In 2014 Stewart was tried; Omar Johnson testified at Stewart’s trial with certain differences from his 2003 testimony about details and presence of bystanders, though he again identified Kirnon as a shooter.
- Kirnon filed a pro se PCRA petition on January 30, 2015 (and later an amended counseled petition), arguing Johnson’s 2014 testimony amounted to newly discovered evidence excusing the PCRA time bar.
- The PCRA court dismissed Kirnon’s petition as untimely on March 8, 2016; the Superior Court affirmed, holding Kirnon failed to plead a statutory timeliness exception because Johnson’s differing testimony was cumulative/impeachment evidence and would not likely produce a different verdict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the PCRA petition was timely | Kirnon: Stewart-trial testimony of Johnson is newly discovered facts excusing the one-year PCRA bar | Commonwealth: Kirnon’s petition is untimely; Johnson’s changed testimony is impeachment, not new exculpatory fact | Petition untimely; no jurisdiction because no timeliness exception proven |
| Whether Johnson’s testimony qualifies as "newly discovered facts" under §9545(b)(1)(ii) | Kirnon: Johnson recanted material points (motive, who was on corner) and thus committed perjury at Kirnon’s trial | Commonwealth: Variances are minor, concern memory and credibility; identification of Kirnon as shooter was unchanged | Court: Not "unknown facts"; differences only impeach credibility and do not satisfy D’Amato factors |
| Whether Kirnon exercised due diligence in discovering the alleged new facts | Kirnon: He only learned of Stewart’s trial via a 2014 newspaper article and obtained transcripts in 2015 | Commonwealth: Kirnon could have investigated witnesses earlier; no adequate explanation for delay | Court: Kirnon failed to show due diligence; cannot rely on newly available testimony years later |
| Whether inconsistencies would likely compel a different verdict | Kirnon: Impeaching Johnson would undermine the prosecution’s case and could change outcome | Commonwealth: Other eyewitness and ballistics corroborated identification; inconsistencies are immaterial | Court: No reasonable probability of a different result; exception fails |
Key Cases Cited
- Hutchins v. Commonwealth, 760 A.2d 50 (Pa.Super. 2000) (standard for considering PCRA timeliness issues)
- Wojtaszek v. Commonwealth, 951 A.2d 1169 (Pa.Super. 2008) (appellate review standard for PCRA orders)
- Robinson v. Commonwealth, 837 A.2d 1157 (Pa. 2003) (court lacks jurisdiction over untimely PCRA petitions)
- Gamboa-Taylor v. Commonwealth, 753 A.2d 780 (Pa. 2000) (PCRA petitions filed after the one-year period are untimely absent an exception)
- Bennett v. Commonwealth, 930 A.2d 1264 (Pa. 2007) (requirements for newly discovered-evidence exception to PCRA time bar)
- D’Amato v. Commonwealth, 856 A.2d 806 (Pa. 2004) (four-factor test for newly discovered evidence under PCRA)
- Marshall v. Commonwealth, 947 A.2d 714 (Pa. 2008) (focus on newly discovered facts, not newly discovered source)
- Williams v. Commonwealth, 35 A.3d 44 (Pa.Super. 2011) (strict enforcement of due diligence requirement and 60-day filing rule)
- Padillas v. Commonwealth, 997 A.2d 356 (Pa.Super. 2010) (after-discovered evidence that only impeaches credibility is insufficient)