Com. v. Priovolos, E.
Com. v. Priovolos, E. No. 2162 EDA 2016
| Pa. Super. Ct. | Feb 22, 2017Background
- Ernest H. Priovolos was convicted of third-degree murder in 1990 and sentenced to 12–27 years in 1991; his judgment of sentence became final in February 1993.
- He pursued multiple post-conviction petitions (PCRA): initial PCRA (1993) denied; subsequent petitions in 1999, 2012, 2013 and later filings; many were denied or dismissed on timeliness or other procedural grounds.
- While appealing a denial of his third PCRA petition, counsel obtained an expert DNA report (Dr. Monte Miller) in 2013, which reviewed earlier FBI lab reports and opined Priovolos could be excluded as a contributor to blood evidence. No new DNA testing was performed.
- Priovolos’s fifth PCRA petition (filed Oct. 29, 2013) relied on Dr. Miller’s report and claimed newly discovered evidence proving innocence; the PCRA court treated the petition as untimely and issued a Rule 907 intent to dismiss, then dismissed it without a hearing.
- The PCRA court found the Miller report was a review of preexisting FBI reports that Priovolos had access to by 2003, so the petition did not meet the newly discovered evidence exception or show due diligence.
- The Superior Court affirmed, holding the petition untimely and outside the exceptions to the PCRA time bar, denying jurisdiction to reach the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the fifth PCRA petition was timely or fell within an exception to the one-year PCRA time bar | Priovolos argued his petition invoked the newly discovered evidence exception based on Dr. Miller’s 2013 report excluding him from blood evidence | Commonwealth argued the Miller report merely reviewed preexisting FBI reports Priovolos had by 2003 and no new facts or testing were shown; petition untimely | Petition untimely; exception not satisfied; court lacked jurisdiction to reach merits |
| Whether Dr. Miller’s report constituted newly discovered evidence under 42 Pa.C.S. § 9545(b)(1)(ii) | Miller’s opinion established new exculpatory evidence unavailable earlier | Commonwealth: report reviewed known FBI data; not new testing or new facts | Miller’s report did not supply newly discovered facts; exception not met |
| Whether Priovolos exercised due diligence in presenting the newly discovered evidence exception | Priovolos implied delay was permissible because expert review occurred in 2013 | Commonwealth: Priovolos possessed the FBI reports by 2003 and trial record shows counsel knew FBI results; no due diligence shown | Due diligence lacking; facts were available earlier; exception untimely per § 9545(b)(2) |
| Whether an evidentiary hearing or relief was required based on counsel’s actions (e.g., failure to pursue rehearing or appeal) | Priovolos contended ineffective assistance of prior counsel and asked for hearing on DNA issues | Commonwealth maintained procedural time bar and lack of jurisdiction; claims raised were untimely and could not be reached on merits | No hearing or relief; court dismissed petition for lack of jurisdiction due to untimeliness |
Key Cases Cited
- Commonwealth v. Cox, 146 A.3d 221 (Pa. 2016) (defines newly discovered evidence exception and due diligence standard under PCRA)
- Commonwealth v. Jones, 54 A.3d 14 (Pa. 2012) (confirms PCRA timeliness is jurisdictional)
- Commonwealth v. Marshall, 947 A.2d 714 (Pa. 2008) (newly discovered evidence exception does not cover new sources for already-known facts)
- Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000) (addresses earliest time PCRA petitions may be filed)
- Commonwealth v. Priovolos, 715 A.2d 420 (Pa. 1998) (prior appellate disposition of Priovolos’s PCRA matters)
- Commonwealth v. Priovolos, 746 A.2d 621 (Pa. Super. 2000) (prior determination of untimeliness for a PCRA filing)