COMMONWEALTH OF PENNSYLVANIA v. CHARLES K. DIGGS
No. 1000 EDA 2018
Superior Court of Pennsylvania
October 11, 2019
2019 PA Super 306
BEFORE: BOWES, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
J-S37013-19
2019 PA Super 306
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CHARLES K. DIGGS :
: No. 1000 EDA 2018
Appellant :
Appeal from the PCRA Order March 12, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0720791-1974
BEFORE: BOWES, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
Charles K. Diggs appeals from the order denying his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”). Upon review, we affirm.
We previously summarized the relevant factual history of this case as
follows:
On February 12, 1974, eighteen-year-old Linda DeBose was
brutally stabbed to death in the basement of her home on Medary
Avenue in Philadelphia. When Linda’s mother, Alice DeBose,
returned home from work at approximately 11:20 pm on the
evening of February 12th, she found her daughter lying in a pool
of blood. She immediately called the police who arrived shortly
thereafter.1 Linda DeBose was rushed to Albert Einstein Medical
Center where she later died. Prior to her death, however, Linda
was able to identify her attackers by name to both her mother and
the police.
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Within three hours of the murder, the Philadelphia police arrested
Appellant’s co-conspirator, Louis Riggins. Appellant was arrested
two years later in Chester, Pennsylvania, where he had been
hiding under several assumed names. Subsequent to his arrest,
Appellant was released on bail but again fled and eluded
authorities for an additional two years. He was arrested again in
Philadelphia on May 17, 1976.
Commonwealth v. Diggs, 570 EDA 2002 (Pa.Super. October 10, 2003)
(unpublished memorandum at 1-2) (“Diggs I”).
In 1977, Appellant proceeded to a jury trial. The jury convicted
Appellant of first-degree murder, criminal conspiracy, possession of an
instrument of crime, and prohibited weapons. In 1991, federal habeas corpus
relief was granted after it was determined that a prosecutor had systematically
excluded black venire persons from Appellant’s jury, in violation of Batson v.
A second jury trial was held in 1991, at which Ricardo Kelsey testified
that Appellant had confessed to participating in the murder while they were
incarcerated together.1 Appellant was convicted of the same crimes and
sentenced to life imprisonment. On direct appeal, this Court affirmed the
judgment of sentence and the Supreme Court denied allowance of appeal.
Commonwealth v. Diggs, 685 A.2d 1041 (Pa.Super. 1996) (unpublished
memorandum), appeal denied, 698 A.2d 592 (Pa. 1997). The United States
Supreme Court denied certiorari on February 23, 1998. Diggs v.
Pennsylvania, 522 U.S. 1123 (1998).
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Appellant filed a timely pro se PCRA petition, and counsel was appointed.
Multiple
followed. On January 8, 2002, the PCRA court dismissed Appellant’s PCRA
petition without a hearing, finding that all of his claims lacked merit. On
appeal, we addressed Appellant’s newly-discovered evidence claim regarding
the PCRA court’s failure to grant a hearing concerning the affidavits of Charles
Giles and Timothy VanHook. Appellant asserted that the affidavits indicated
that Ricardo Kelsey had lied at trial about Appellant’s involvement in the
murder. Appellant’s appeal was unsuccessful as we agreed with the PCRA
court that neither affidavit specifically asserted that Kelsey lied. When
affirming the trial court’s dismissal order, we also pointed out “that noticeably
absent is an affidavit from Kelsey indicating that he lied at trial.” Diggs I,
supra, (unpublished memorandum at 7).
Appellant filed a petition for reconsideration, which we denied, and a
petition for allowance of appeal to the Supreme Court, which was granted.
The Supreme Court remanded the case to our Court with directions to address
the other thirteen issues raised by Appellant that we had found waived. Our
subsequent memorandum addressed the additional issues, and reaffirmed our
previous decision regarding Appellant’s newly-discovered evidence claim.
Commonwealth v. Diggs, 876 A.2d 461 (Pa.Super. 2005) (“Diggs II”).
On August 21, 2012, Appellant filed his second PCRA petition, alleging
that Miller v. Alabama, 567 U.S. 460 (2012), applied to him. In 2015, Kelly
Adams, Esquire entered her appearance on behalf of Appellant. On January
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22, 2016, Appellant filed a pro se supplemental PCRA petition “putting the
court on notice” that he was gathering funds to investigate the blood, DNA,
and medical evidence which he thought would show that the victim’s dying
declaration never occurred.
On September 7, 2016, counsel filed an amended petition alleging that
Appellant had uncovered notes of the medical examiner that contradicted the
victim’s dying declaration and that were withheld from the defense in violation
of Brady v. Maryland, 373 U.S. 83 (1963). The Commonwealth argued that
the petition should be dismissed as untimely because Appellant had failed to
plead a specific exception to the PCRA time bar. See Commonwealth’s Motion
to Dismiss, 11/8/16, at 1. In response, Appellant issued a “Corrected
Amended Petition,” explaining that he had uncovered a new fact, which was
that the victim made her dying declaration at the hospital, rather than at home
like the victim’s mother had testified at trial. Also, Appellant claimed that he
could not have known these facts sooner since the Commonwealth withheld
the relevant portions of the medical examiner records from discovery in
violation of Brady.
On January 15, 2017, Appellant filed a petition requesting permission to
add a new claim to his PCRA petition. In the supplement, Appellant alleged
an additional claim of after-discovered evidence in the form of a witness
recantation. Specifically, Appellant said that Timothy VanHook had made
contact with Appellant in prison on November 19, 2016. VanHook told
Appellant that Ricardo Kelsey had admitted to lying about Appellant’s
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involvement in the murder. VanHook was one of the newly-discovered
witnesses in Appellant’s original PCRA petition filed ten years before, wherein
he also alleged that Ricardo Kelsey had lied at trial. Appellant requested more
time to investigate this new evidence. Appellant filed additional supplements,
attaching affidavits by inmates Timothy VanHook, Charles Giles, and William
Broxton,
during his trial testimony in this case.
On April 10, 2017, Appellant filed another petition seeking to add a new
claim to his Amended PCRA petition. Therein, Appellant asserted that after
meeting with Appellant’s private investigator on January 28, 2017, Kelsey had
agreed to come forward to admit that he lied when he testified against
Appellant. In March of 2017, Kelsey met with Appellant’s investigator and
signed an affidavit to that effect, which was filed on May 14, 2017. The
Commonwealth responded with a supplemental motion to dismiss, indicating
that it wanted a hearing, because it had obtained a competing affidavit from
Kelsey wherein he reaffirmed the validity of his trial testimony. The
Commonwealth emphasized that despite its request for a hearing, it was not
conceding timeliness on either of Appellant’s issues.
On November 8 and 27, 2017, the PCRA court held evidentiary hearings
on both of the after-discovered evidence claims.2 Appellant testified on his
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own behalf and presented the testimony of his trial attorney, private
investigator, and three fellow inmates. Ricardo Kelsey testified that he never
recanted his trial testimony, but signed an affidavit generated by Appellant’s
investigator, which he did not read, after being repeatedly pursued by the
defense. The Commonwealth put forth the testimony of the assistant
supervisor of the Philadelphia District Attorney’s Office, who explained the
office’s discovery procedures. Post-hearing briefs were filed and the PCRA
court dismissed Appellant’s petition on March 9, 2018. This appeal followed.
Both Appellant and the PCRA court complied with the mandates of Pa.R.A.P.
1925, and thus, this petition is properly before us.
Appellant raises the following issues for our review:
I. Whether the PCRA court erred when it failed to consider all
of the facts set forth in the trial transcript before denying
the claim that the petitioner was prejudiced from the
suppression of evidence material to the defense.
II. Whether the PCRA court erred when it did not grant a new
trial based on the incredible testimony of the jailhouse
informant.
Appellant’s brief at 2.
We begin with the pertinent legal principles. Our “review is limited to
the findings of the PCRA court and the evidence of record” and we do not
“disturb a PCRA court’s ruling if it is supported by evidence of record and is
free of legal error.” Commonwealth v. Rykard, 55 A.3d 1177, 1183
(Pa.Super. 2012). Similarly, “[w]e grant great deference to the factual
findings of the PCRA court and will not disturb those findings unless they have
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no support in the record. However, we afford no such deference to its legal
conclusions.” Id. “[W]here the petitioner raises questions of law, our
standard of review is de novo and our scope of review is plenary.” Finally, we
“may affirm a PCRA court’s decision on any grounds if the record supports it.”
Id.
Under the PCRA, any petition “including a second or subsequent petition,
shall be filed within one year of the date the judgment [of sentence] becomes
final[.]”
the conclusion
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.”
PCRA’s timeliness requirements are jurisdictional in nature, and a court may
not address the merits of the issues raised if the PCRA petition was not timely
filed. Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017).
The time bar can “only be overcome by satisfaction of one of the three
statutory exceptions codified at
three narrow exceptions to the one-year time bar are as follows: “(1)
interference by government officials in the presentation of the claim; (2)
newly-discovered facts; and (3) an after-recognized constitutional right.”
Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa.Super. 2012).
Additionally, a PCRA petitioner must present his claimed exception within sixty
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days of the date the claim first could have been presented.3
The timeliness exception set forth at § 9545(b)(1)(ii) has two
components, which must be alleged and proven as an initial jurisdictional
threshold. Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super. 2015).
Namely, the petitioner must establish that: (1) the facts upon which the claim
was predicated were unknown; and (2) they could not have been ascertained
by the exercise of due diligence. See Commonwealth v. Bennett, 930 A.2d
1264, 1272 (Pa. 2007). Due diligence demands that the petitioner take
reasonable steps to protect his own interests and explain why he could not
have learned the new facts earlier with the exercise of due diligence.
Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.Super. 2010).
Once it is established that the PCRA court has jurisdiction over the claim,
the petitioner can present a substantive after-discovered evidence claim. See
discovered evidence claim, a petitioner must demonstrate that: (1) the
evidence has been discovered after trial and it could not have been obtained
at or prior to trial through reasonable diligence; (2) the evidence is not
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cumulative; (3) it is not being used solely to impeach credibility; and (4) it
would likely compel a different verdict. Commonwealth v. Washington,
927 A.2d 586 (Pa. 2007). The substantive merits-based analysis is more
demanding that the analysis required by the “new facts” exception to establish
jurisdiction. See Bennett, supra at 395-96.
In his first claim, Appellant challenges the PCRA court’s review of the
record when it dismissed his allegation of after-discovered evidence regarding
newly-discovered medical examiner records. The PCRA court held a hearing
on this issue, before concluding that the documents did not constitute after-
discovered evidence as Appellant had not shown due diligence or prejudice.
PCRA Court Opinion, 7/17/18, at 9-11.
Despite the PCRA court’s failure to do so, we must discern whether we
have jurisdiction before proceeding to an analysis of the merits of Appellant’s
after-discovered evidence claim. Although facially untimely, Appellant pled a
newly-discovered fact exception
Corrected Amended Petition, 12/8/16, at ¶ 34; Response to Commonwealth’s
Motion to Dismiss, 2/8/17. In those filings, Appellant alleged that the medical
examiner records could not have been obtained sooner because he had no
reason to think that he did not have everything from that office already. Id.
The Commonwealth disagrees with Appellant’s circular reasoning, arguing that
if Appellant thought he had a complete report from the medical examiner’s
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office, he would have had no reason to subpoena it. Commonwealth’s
Supplemental Motion to Dismiss, 7/31/17, at 6.
A review of the PCRA hearing transcripts reveals that Appellant’s
allegation that he had no reason to think that there were any documents
outstanding from the medical examiner’s office is disingenuous, as the
existence of these documents was known to trial counsel at the time of trial.
Specifically, Appellant’s trial counsel testified that he was aware that such
documents existed at the time of Appellant’s trial and that he did not request
them because he “didn’t think there would be an issue pertaining to it.” N.T.
PCRA Hearing, 11/8/17, at 15-18.
Also, reasonable investigation could have uncovered the outstanding
medical records many years sooner. As the PCRA court concluded, given that
trial counsel was aware of the existence of these documents, and PCRA
counsel obtained them by directing a subpoena to the medical examiner’s
office, “trial counsel had the ability to subpoena the aforementioned
documents from the Office of the Medical Examiner prior to trial, but did not.”
PCRA Court Opinion, 7/17/18, at 11. Appellant has shown us nothing that
counters the veracity of that finding. More importantly, Appellant offers no
explanation as to why he could not have discovered the documents years
earlier simply by serving the subpoena he waited until 2016 to pursue.
Therefore, since we can affirm on any basis supported by the record, we find
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that Appellant has failed to meet the newly-discovered fact exception to the
time-bar, and thus his petition is not timely filed.4
Next, Appellant argues that the PCRA court erred when it did not grant
him a new trial because Ricardo Kelsey lied when he testified that Appellant
had confessed his involvement in the murder. Appellant’s brief at 11. Again,
the PCRA court failed to conduct a jurisdictional timeliness analysis, before
proceeding substantively. However, in its analysis of the first issue, the PCRA
court implicitly found that the newly-discovered fact requirements necessary
to establish jurisdiction were met here, when it made a credibility
determination regarding the Ricardo Kelsey affidavit and testimony. The
parties do not dispute this jurisdictional finding. From our review of the
record, we conclude that Appellant timely pled his newly-discovered fact of
Ricardo Kelsey’s alleged recantation for purposes of the timeliness exception
in
merits.
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The PCRA court found the affidavit to be “wholly lacking in credibility”
when balanced against Kelsey’s testimony
Court Opinion, 7/17/18, at 6. We agree. In the 1990s, Ricardo Kelsey
contacted the police and told them that Appellant had confessed to him his
involvement in the murder of the victim. N.T. PCRA Hearing, 11/8/17, at 66.
After the court issued a protective order, Kelsey testified against Appellant at
the 1991 trial. Id. at 76-77. In his first PCRA petition, Appellant litigated a
claim that Kelsey lied based on other inmates’ interactions with Kelsey. That
claim was dismissed, in part because Kelsey never indicated that he wished
to recant his trial testimony. At the PCRA hearing, Appellant’s private
investigator detailed the lengths he went to obtain Kelsey’s cooperation,
admitting to making “a half dozen calls” to Kelsey before he finally agreed to
make a statement. N.T. PCRA Hearing, 11/27/17, at 19. Kelsey testified that
he signed the affidavit at the insistence of the investigator and never said
anything that was in it, because his original statement and trial testimony was
true. N.T. PCRA Hearing, 11/8/17, at 66-78.
Viewing the affidavit in the context of the larger record, where Kelsey
has been consistent in his testimony despite repeated pressure from others
on Appellant’s behalf, the PCRA court credited Kelsey’s PCRA hearing
testimony. PCRA Court Opinion, 7/17/18, at 6. The certified record supports
the PCRA court’s findings. Thus, we discern no abuse of discretion in the PCRA
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court’s denial of this claim for relief. Accordingly, we affirm the PCRA court’s
order dismissing the PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/11/19