Com. v. Cox, J. ( 2016 )

J-S76005-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JERMONT COX
Appellant No. 3229 EDA 2015
Appeal from the PCRA Order Entered May 15, 2015
In the Court of Common Pleas of Perry County
Criminal Division at No: CP-51-CR-0622451-1993
BEFORE: STABILE, DUBOW, JJ., and STEVENS, P.J.E.*
JUDGMENT ORDER BY STABILE, J.: FILED DECEMBER 23, 2016
Appellant, Jermont Cox, appeals from the May 15, 2015 order
dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-456. We affirm.
The facts and procedural history of this case and two related cases are
set forth at length in the PCRA court’s July 29, 2015 opinion. In summary,
this case involves the murder of Roosevelt Watson, and it is one of three
cases in which Appellant was convicted of first-degree murder in the early
1990’s. A jury found Appellant guilty of Watson’s murder at the conclusion
of an April 12, 1995 trial. This Court affirmed the judgment of sentence and
our Supreme Court denied allowance of appeal on January 16, 1997.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S76005-16
Appellant filed the present PCRA petition on June 28, 2013, more than 16
years after the finality of his judgment of sentence. The present petition is
therefore facially untimely under § 9545(b)(1) and the PCRA court dismissed
it for lack of jurisdiction. Appellant argues the PCRA court has jurisdiction
under § 9545(b)(1)(ii), which provides an exception to the PCRA’s time bar
where the petition is based on previously unknown facts that the petitioner
could not have discovered through due diligence. Appellant relies on a new
ballistics report he obtained after a federal district court, by order of
February 7, 2012, permitted discovery of the Commonwealth’s ballistics
evidence.
Recently, in a related case involving the third victim, Terrance Stewart,
our Supreme Court held that Appellant did not act with due diligence by
waiting until 2010—the year he filed his federal habeas corpus petition—to
seek discovery of the Commonwealth’s ballistics evidence. Commonwealth
v. Cox, 146 A.3d 221, 230 (Pa. 2016). The Supreme Court wrote: “there is
no question that [Appellant] knew that more testing could be performed on
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the ballistics evidence at the time of trial in 1995.” Id. at 231. Given
Appellant’s lack of diligence, the Supreme Court ruled he cannot avail
himself of § 9545(b)(1)(ii). The Supreme Court’s analysis in Cox—based on
precisely the same ballistics evidence presently at issue—is controlling here.
We therefore affirm the PCRA court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2016
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