COMMONWEALTH of Pennsylvania, Appellee v. Jermont COX, Appellant
Supreme Court of Pennsylvania.
September 28, 2016
146 A.3d 221
SUBMITTED: May 11, 2016
Hugh J. Burns Jr., Esq., Jeffrey Michael Krulik, Esq., Philadelphia District Attorney‘s Office, Amy Zapp, Esq., Pennsylvania Office of Attorney General, for Appellee.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
OPINION
JUSTICE DONOHUE
In his second collateral capital appeal, Jermont Cox (“Cox“) challenges the denial of his petition filed pursuant to the Post Conviction Relief Act,
In January 1993, the Philadelphia Police arrested Cox for the murder of a man named Lawrence Davis. In an attempt to secure favorable treatment from the prosecution, Cox indicated that he had information about Stewart‘s murder. After being advised of his rights, Cox told the police that he was with Lee on the night of Stewart‘s murder. Cox stated that Lee instructed Cox to drive to a particular location, where they found Stewart‘s parked vehicle. Lee, who was carrying a semi-automatic weapon, told Cox that Stewart was one of the men who had stolen Walker‘s car. Cox told the police that when Lee identified Stewart as one of the men who stole Walker‘s car, he “knew what was happening.” N.T., 4/10/1995, at 14. Cox and Lee waited for approximately half an hour until Stewart and Seidle exited a residenсe, entered Stewart‘s vehicle and drove away. Cox followed and pulled along the left side of Stewart‘s vehicle, at which time Lee lowered his window and fired multiple shots at Stewart. Stewart lost control of his vehicle and crashed into another car, and Cox
After Cox made this confession, the police arrested him for Stewart‘s murder. The police then asked Cox if he had any information about Watson‘s murder, which they believed was related to Stewart‘s murder. Cox told the police that he and Lee spent at lеast a week searching for Watson in order to kill him, but that they were unsuccessful. Cox told the police that Lee subsequently found and killed Watson by himself.
As Cox awaited trial on the Davis murder, he contacted the police to offer additional information about the Watson murder. Again, Cox wanted to share this information because he hoped to garner favorable treatment by cooperating with the police. Cox then confessed that he was with Lee when Lee received a telephonic page from Walker, informing them that Watson would be at a particular telephonе booth outside of a nightclub. Cox drove them to the location described by Walker, where they waited for Watson. When Watson appeared, Lee exited the vehicle and shot Watson six times with a silver revolver. Cox then drove them from the scene of the shooting. Three days later, Lee paid Cox $500. Following this confession, the police charged Cox with Watson‘s murder.
The Watson and Stewart charges were joined for trial, which occurred in 1995. In addition to Cox‘s confessions to these murders and of relevance to this appeal, the Commonwealth introduced the testimony of Philadelphia Police Officer James O‘Hara, who performed ballistics testing on a bullet recovered from Watson‘s body and two bullets recovered from Davis’ body.2 Officer O‘Hara testified that markings on one of the Davis bullets matched the markings on the Watson bullet, which proved that they were fired from the same gun. Officer O‘Hara could not formulate a conclusion concerning the second Davis bullet because, in his opinion, the second bullet was too damaged to allow a comparison. The Commonwealth sought to couple this ballistics evidence with the testimony of
At the conclusion of the guilt phase of trial, the jury found Cox guilty of two counts of first-degree murder, conspiracy, and possessing instruments of crime.4 The trial court sentenced him to lifе imprisonment for the Watson murder and death for the Stewart murder.5 Cox appealed his death sentence to this Court, raising, inter alia, multiple claims of ineffective assistance of counsel in both the guilt and penalty phases.6 We affirmed. Cox, 728 A.2d at 938. The United States Supreme Court subsequently denied Cox‘s petition for writ of certiorari. Cox v. Pennsylvania, 533 U.S. 904, 121 S.Ct. 2246, 150 L.Ed.2d 233 (2001).
In 2010, Cox filed a habeas corpus petition in the Federal District Court for the Eastern District of Pennsylvania and requested discovery of the ballistics evidence. In 2012, the district court granted Cox‘s petition. Before turning the ballistics evidence over to Cox‘s expert for an evaluation, the Philadelphia Police Department reexamined the ballistics evidence and issued a new report. By the time of the district court‘s order, Officer O‘Hara had retired, and the second examination was performed by Officers Kelly Walker and Jesus Cruz. The new report, issued on April 30, 2013, agreed with Officer O‘Hara‘s conclusion that one Davis bullet and the Watson bullet were fired from the same gun. Contrary to Officer O‘Hara‘s conclusion, however, the new report did not find the second Davis bullet to be too damaged to allow a comparison. Instead, based upon the evaluation by Officers Walker and Cruz, the new report concluded that the second Davis bullet was not fired from the same gun that fired the Watson bullet.7
Recognizing that the petition was untimely, Cox attempted to establish an exception to the PCRA‘s time-bar by claiming that the new ballistics report contained a newly-discovered fact: that the second Davis bullet was fired from a different firearm. Id. at 5. The Commonwealth filed a motion to dismiss, to which Cox filed a response. In evaluating the timeliness of Cox‘s claim, the PCRA court applied a fоur-part test that considered whether Cox established that the evidence (1) could not have been discovered prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely cumulative; (3) would not be used solely to impeach the credibility of a witness; and (4) would likely result in a different verdict if a new trial were granted. PCRA Court
[Officers Walker and Cruz].” PCRA Petition, 6/28/2013, at 5 (emphasis added). His claims are based entirely on the second ballistics report prepared by Officers Walker and Cruz and he never discusses any results obtained through independent testing.
Cox raises two issues for our review:
I. Did the PCRA court err when it dismissed the [p]etition as untimely where it was timely filed under
42 Pa.C.S.[A.] § 9545(b)(1)(ii) , and where the PCRA court‘s timeliness analysis conflated a merits analysis and § 9543, in violation of this Court‘s holding in Commonwealth v. Lambert, 584 Pa. 461, 884 A.2d 848 (2005)?II. Did the PCRA court err when it determined that the [p]etition was “without merit” where the after-discovered evidence entitles [ ] Cox to a nеw trial based on (A) Pennsylvania‘s after-discovered evidence standard, (B) [] Cox‘s Sixth and Fourteenth Amendment right [sic] to the effective assistance of counsel, and (C) [] Cox‘s Fifth, Eighth and Fourteenth Amendment rights to due process and a verdict based on reliable evidence?
Cox‘s Brief at 1-2.
Cox first argues that the PCRA court applied the wrong standard when assessing whether he established the newly-discovered fact exception to the PCRA‘s jurisdictional timeliness requirement. Id. at 14. Resolution of this issue requires consideration of the interplay between the provision of the PCRA that governs a court‘s jurisdiction to entertain a petition filed pursuant thereto and the provision that governs whether a claim is eligible for relief under the PCRA. We begin with the jurisdictional provision.
- the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;
- the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or
- the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.
Section 9545(b)(1)(ii) is the exception at issue in this appeal. When considering a claim seeking to invoke section 9545(b)(1)(ii), the petitioner must establish only that (1) the facts upon which the claim was predicated were unknown and
Once jurisdiction has been properly invoked (by establishing either that the petition was filed within one year of the date judgment became final or by establishing one of the three exсeptions to the PCRA‘s time-bar), the relevant inquiry becomes whether the claim is cognizable under the PCRA. Section 9543, titled “Eligibility for relief,” governs this inquiry. Among other requirements not pertinent to this appeal, section 9543 delineates seven classes of allegations that are eligible for relief under the PCRA. See
We have repeatedly referred to this subsection as the “after-discovered evidence” exception to the one-year jurisdictional time limitation. See Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638, 643 (Pa.1998). This shorthand reference was a misnomer, since the plain language of subsection (b)(1)(ii) does not require the petitioner to allege and prove a claim of “after-discovered evidence.” Rather, it simply requires [the] petitioner to allege and prove that there were “facts” that were “unknown” to him and that he exercised “due diligence.” In fact, when the Legislature intended a claim of “after-discovered evidence” to be recognized under the PCRA, it has done so by language closely tracking the after-discovered evidence requirements. See
42 Pa.C.S. § 9543[(a)(2)(vi)] (requiring that the evidence be “exculpatory” and “would have changed the outcome of the trial....“).By imprecisely referring to this subsection as the “after-discovered evidence” exception, we have ignored its plain language. Indeed, by employing the misnomer, we have erroneously engrafted Brady-like considerations into our analysis of subsection (b)(1)(ii) on more than one occasion. For example, in Commonwealth v. Johnson, 580 Pa. 594, 863 A.2d 423 (Pa. 2004),
appellant argued that the Commonwealth violated Brady by withholding impeachment evidence and that this claim was cognizable under subsection (b)(1)(ii). We concluded that appellant could not establish that his Brady claim had merit, since the information could have been uncovered before or during trial. We further stated, “as we conclude that appellant‘s underlying Brady claim is without merit, we necessarily also conclude that appellant has failed to show that his petition falls within any of the exceptions to the PCRA‘s time requirements.” Id. at 425-26; see also Commonwealth v. Breakiron, 566 Pa. 323, 781 A.2d 94, 98 (Pa. 2001). This conclusion conflated the two concepts as subsection (b)(1)(ii) does nоt contain the same requirements as a Brady claim. This refers to a claim brought under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which challenges the Commonwealth‘s failure to produce material evidence. Specifically, a Brady claim requires a petitioner to show “(1) the prosecutor has suppressed evidence, (2) the evidence, whether exculpatory or impeaching, is helpful to the defendant, and (3) the suppression prejudiced the defendant.” Commonwealth v. Carson, 590 Pa. 501, 913 A.2d 220, 244 (Pa. 2006).
Id. at 1270-71 (footnote eight omitted).11
In this case, the PCRA court labored under the confusion described in Bennett. As set forth above, the PCRA court did
not confine its consideration to the two factors relevant to the section 9545(b)(1)(ii) timeliness exception, but rather applied a fоur-part test that consisted of the section 9543(a)(2)(vi) factors. PCRA Court Opinion, 7/29/2015, at 7.12 The PCRA court therefore erred in this regard. Its error, though, is not novel, especially in the context of cases in which the petitioner invokes both of these provisions in his or her quest for relief. This is not always the case, as the section 9545(b)(1)(ii) timeliness exception is not only invoked in connection with claims of after-discovered evidence as contemplated by section 9543(a)(2)(vi); i.e., claims based on exculpatory evidence that would result in a different verdict. For instance, petitioners have utilized the seсtion 9545(b)(1)(ii) timeliness exception in an attempt to raise claims of the constructive denial of counsel, violations of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and claims of racial prejudice on the part of the trial judge. See Commonwealth v. Gamboa-Taylor, 620 Pa. 429, 67 A.3d 1245 (2013); Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978, 982-84 (2008); Commonwealth v. Marshall, 596 Pa. 587, 947 A.2d 714, 721 (2008); Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585, 588 (2000); Commonwealth v. Abu-Jamal, 574 Pa. 724, 833 A.2d 719, 735 (2003). In each of those cases, the nature of the claims raised did not implicate section 9543(a)(2)(vi), but rather, fell under other categories of claims eligible for relief. See
In the present case, Cox sought to overcome the PCRA‘s time-bar by virtue of section 9545(b)(1)(ii). As such, Cox was required to establish that the fact upon which he bases his claim was unknown to him and that he could not have discovered it through due diligence. Bennett, 930 A.2d at 1270. The fact upon which Cox‘s claim is based is the conclusion that the second Davis bullet was not fired from the gun used in the Watson murder. This conclusion resulted from the ballistics analysis performed by Officers Walker and Cruz. Cox did not discover this fact until Officers Walker and Cruz issued their report on April 30, 2013; it was therefore unknown to him until that date.
Cox cannot, however, establish that he could not have ascertained this fact through the exercise of due diligence. Due diligence “does not require perfect vigilance and punctilious care, but merely a showing the party has put forth reasonable effort” to obtain the information upon which a claim is based. Commonwealth v. Edmiston, 619 Pa. 549, 65 A.3d 339, 348 (2013). Cox‘s initial attempt to obtain the ballistics evidence was made in his first PCRA petition, in connection with his claim that trial counsel was ineffective for failing to seek independent ballistics testing. See Cox, 983 A.2d at 667, 691-92. The salient question is whether in so doing, Cox aсted with reasonable effort to discover the facts upon which his claim is based.
Commonwealth v. Stokes, 598 Pa. 574, 959 A.2d 306 (2008), is instructive in this regard. Stokes involves a capital defendant who was sentenced to death in 1983. This Court affirmed his judgment of sentence in 199213 and the denial of his first PCRA petition in 2003. In 2004, the defendant filed a petition for writ of habeas corpus in federal court. In that petition, the
Recognizing that his petition was untimely on its face, the defendant attempted to establish both the section 9545(b)(1)(i) and (ii) timeliness exceptions. The PCRA court found that both efforts failed and we agreed. Specifically concerning the due diligence requirement, we concluded that the defendant could not prove that he was duly diligent in discovering the information upon which his claims were based because the record revealed that he knew that the files existed for years before he attempted to obtain them. Id. at 310. We emphasized that the defendant did not explain why he did not request the files earlier, and “never asserted that the prosecution (or anyone else) prevented him from gaining access to these files in the [twelve] years between the date his direct appeal was decided and the date he ultimately sought the files.” Id. at 310-311. The defendant‘s knowledge of the files, absent action to obtain them, precluded a finding of due diligence. Id.; see also Edmiston, 65 A.3d at 348 (holding that PCRA petitioner cannot establish due diligence based on alleged newly discovered photographs where record reveals that he knew photographs existed at the time of trial but did not raise claim until fifteen years later).
Returning to the present case, there is no question that Cox knew that more testing could be performed on the ballistics evidence at the time of trial in 1995. It was not until six years later, in 2001, that Cox first attempted to obtain the ballistics evidence through his first PCRA petition, in connection with his claim that trial counsel was ineffective for failing to seek independent testing thereof. By raising this claim in his first PCRA petition, Cox has effectively conceded that the testing could have been done at the time of trial. Moreover, Cox
Because Cox cannot establish that he acted with due diligence in seeking the ballistics evidence, he has failed to meet the section 9545(b)(1)(ii) exception to the PCRA‘s jurisdictional time-bar. Cox‘s PCRA petition is therefore untimely, and no court could have jurisdiction to reach the merits of the issue he raised therein. Accordingly, we affirm the PCRA court‘s order.
Order affirmed.
Chief Justice Saylor concurs in the result.
JUSTICE DONOHUE