Com. v. Lowry, K.
1458 EDA 2015
| Pa. Super. Ct. | Dec 16, 2016Background
- Kevin J. Lowry was convicted in 1983 of first‑degree murder, conspiracy, and weapons offenses and sentenced to life plus consecutive terms; his judgment became final in 1985.
- Lowry filed multiple post‑conviction petitions; his second PCRA petition was filed in August 2012 and an amended petition was filed November 24, 2014.
- The amended petition alleged newly discovered evidence: a recantation by eyewitness John Johnson, based on investigators’ interviews in November 2014, and alleged governmental interference because Johnson had been promised leniency.
- Lowry submitted a certification from an Innocence Project investigator (Nick Kato) reporting Johnson’s recantation; he did not submit a signed affidavit or certification from Johnson himself.
- The PCRA court dismissed the petition as untimely under 42 Pa.C.S. § 9545(b); the court found Lowry failed to satisfy the timeliness exceptions (after‑discovered evidence and governmental interference) and denied an evidentiary hearing.
- The Superior Court affirmed, concluding Lowry failed to plead admissible, non‑cumulative after‑discovered facts, and failed to show due diligence or suppression by the Commonwealth.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of second PCRA petition | Lowry: petition relies on newly discovered recantation and government interference; triggers §9545(b)(1)(ii)/(i) and was amended within 60 days of discovery | Commonwealth: petition is patently untimely (final in 1985); Lowry did not prove any timeliness exception or meet §9545(b)(2) 60‑day rule | Court: Petition untimely; Lowry failed to prove after‑discovered facts, due diligence, or timely filing within 60 days; dismissal affirmed |
| Entitlement to evidentiary hearing based on recantation | Lowry: investigator certification reporting Johnson admitted perjury and promised leniency; hearing required to test recantation | Commonwealth: investigator hearsay; no Johnson affidavit; recantation unreliable; defects in certifications may be waived | Court: No hearing required—evidence proffered was inadmissible hearsay, no Johnson affidavit, recantation reliability and due diligence lacking; PCRA court did not err |
Key Cases Cited
- Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007) (defines newly discovered facts and due diligence for §9545(b)(1)(ii) exception)
- Commonwealth v. D'Amato, 856 A.2d 806 (Pa. 2004) (elements required to obtain relief for after‑discovered evidence)
- Commonwealth v. Abu‑Jamal, 941 A.2d 1263 (Pa. 2008) (timeliness exception inquiry focuses on discovery of facts, not merits)
- Commonwealth v. Pander, 100 A.3d 626 (Pa.Super. 2014) (procedural rules on deficient witness certifications and notice for amendment defects)
- Commonwealth v. Eichinger, 108 A.3d 821 (Pa. 2014) (evidentiary hearing required only when petition raises material factual disputes not refuted by the record)