Com. v. Coker, J. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES COKER :
:
Appellant : No. 3764 EDA 2016
Appeal from the PCRA Order November 18, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0802231-2006
BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED MARCH 29, 2018
Appellant, James Coker, appeals from the order denying his second
Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546. We affirm.
In addressing Appellant’s direct appeal, a panel of this Court
summarized the factual history of this case as follows:
On June 26, 2006, Appellant fired fifteen to seventeen shots at
two men, injuring one and killing the other. In addition to the
surviving victim, there was an eyewitness who testified at trial.
The shooting was the result of an argument earlier that evening
involving Appellant’s cousin and the deceased victim, which in
turn grew out of an earlier arrest for firearms violations.
[Appellant’s] cousin had received a sentence of house arrest, but
the victim did not, which sparked the argument. Later,
Appellant approached the victim and [the victim’s] friend, who
was not otherwise involved, in his car, which was driven by
another man identified in the record only as “Justin.” Justin
waited in the car until Appellant returned from shooting the
victims and they left together.
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Commonwealth v. Coker, No. 3142 EDA 2007, unpublished memorandum
at 2 (Pa. Super. filed November 19, 2008), appeal denied, 981 A.2d 217 (Pa.
2009).
Following his trial, a jury convicted Appellant of Third-Degree Murder,
Attempted Murder, Aggravated Assault, Possessing an Instrument of Crime,
Carrying a Firearm Without a License, and Criminal Conspiracy. On June 28,
2007, the trial court sentenced Appellant to an aggregate term of
incarceration of forty to eighty years. Appellant filed a Post-Sentence
Motion, which the court denied. On November 19, 2008, a panel of this
Court affirmed Appellant’s Judgment of Sentence, and the Pennsylvania
Supreme Court denied Appellant’s Petition for Allowance of Appeal on July
22, 2009. Appellant did not seek review by the U.S. Supreme Court. His
Judgment of Sentence, thus, became final on October 20, 2009.1
On April 12, 2010, Appellant filed his first PCRA Petition pro se. In his
Petition, Appellant claimed generally that his trial counsel was ineffective for
having failed to call three witnesses at trial. Pro Se PCRA Petition, 4/12/10,
at 4. That same day, Appellant also filed a “First Pro Se Amended PCRA
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1 See 42 Pa.C.S. § 9545(b)(3) (judgment of sentence becomes final at the
conclusion of direct review or the expiration of time for seeking the review);
U.S.Sup.Ct.R. 13(1) (“A petition for a writ of certiorari seeking review of a
judgment of a lower state court that is subject to discretionary review by a
state court of last resort is timely when it is filed with the Clerk within 90
days after entry of order denying discretionary review.”); Commonwealth
v. Miller, 102 A.3d 988, 993 (Pa. Super. 2014).
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Petition,” in which he reiterated his ineffective assistance of counsel claim,
and, inter alia, identified Justin Pearcy2 as one of the witnesses his trial
counsel failed to “investigate, interview, and subpoena” as a “relevant and
exculpatory eyewitness.”3 First Pro Se Amended PCRA Petition, 4/8/10, at 3.
Appellant averred that his trial counsel was aware of the materiality of
Pearcy’s testimony as an exculpatory witness because police investigators
had interviewed Pearcy twice. Id. at 4. Appellant alleged that Pearcy would
have provided evidence “that others, and not [Appellant], committed the
crimes herein.” Id. at 4, 5. Appellant attached to this Petition a
“Certification of Testimony of Witness Justin Pearcy” (“Certification”) in
which Appellant represented to the court that Pearcy would testify that
Appellant informed Pearcy that he would be staying home for the duration of
the night of the shooting and that Pearcy had borrowed Appellant’s car that
night. Certification at 1.
The PCRA court appointed counsel, who filed an Amended PCRA
Petition on April 21, 2011, a Corrected Amended PCRA Petition on April 27,
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2 The Commonwealth charged Justin Pearcy, the driver of Appellant’s vehicle
to the scene of the crime, with the same crimes as Appellant. Pearcy was
tried separately, 10 months after Appellant’s trial, and was acquitted of all
charges.
3 Not relevant to the instant appeal, Appellant also identified Tyisha Stotts as
a witness who would have offered exculpatory testimony had she been called
to testify at trial by Appellant’s trial counsel. See First Pro Se Amended
PCRA Petition at 3, 5-6. See also Certification of Testimony of Witness
Tyisha Stotts.
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2011, and a Supplemental Amended PCRA Petition on October 21, 2011. In
these pleadings, Counsel reasserted Appellant’s ineffective assistance of
counsel claim, but identified only Andrea Moore and Anthony Wiggins as
witnesses whose testimony trial counsel was ineffective for not having
procured. Following a hearing on the Petition, on May 18, 2012, the PCRA
court dismissed it as lacking merit.
On May 23, 2012, Appellant filed a Motion to Vacate the dismissal
order, claiming he had become aware of after-discovered evidence.4 The
PCRA court vacated the dismissal order, and PCRA counsel filed a
supplemental PCRA Petition. On September 10, 2012, the PCRA court
provided Notice of Intent to Dismiss Appellant’s Petition pursuant to
Pa.R.Crim.P. 907, concluding that Appellant’s claim lacked merit. Appellant
did not file a response to the Rule 907 Notice. On October 5, 2012, the
PCRA court dismissed Appellant’s amended Petition. This Court affirmed on
June 13, 2014. Appellant did not file a Petition for Allowance of Appeal with
our Supreme Court.
On April 11, 2016, Appellant filed the instant pro se PCRA petition, his
second, again claiming that he had after-discovered evidence. This time,
Appellant attached the affidavit of Justin Pearcy, who affirmatively identified
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4 The purportedly after-discovered evidence consisted of the existence of a
witness, Barry Mitchell, whom Appellant claimed would have contradicted the
testimony of Alfonso Sanders, the Commonwealth’s only eyewitness.
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Eric Hayes, and not Appellant, as the shooter in the incident for which the
jury had convicted Appellant. PCRA Petition, 4/11/16, at 2. See also id. at
Exhibit A (Affidavit of Justin Pearcy). Pearcy stated in his affidavit that
Appellant had asked him to testify at Appellant’s trial, but that Pearcy
“informed him that if he or his attorney should call me to testify[,] I will
invoke my Fifth Amendment right to remain silent.” See Affidavit of Justin
Pearcy. Appellant claimed in his Petition that he filed the instant Petition
within 60 days of receiving the affidavit. PCRA Petition at 2.
On October 4, 2016, the PCRA court issued a Notice of Intent to
Dismiss Appellant’s Petition without a hearing pursuant to Pa.R.Crim.P. 907.
Appellant filed a pro se Response to the Rule 907 Notice on October 19,
2016. In his Response, Appellant reiterated his claim that the affidavit of
Justin Pearcy constitutes newly-discovered exculpatory evidence and that he
timely filed his Petition pursuant to the exception set forth in 42 Pa.C.S. §
9545(b)(1)(ii). On November 18, 2016, the PCRA court dismissed
Appellant’s Petition as untimely. This appeal followed.
Appellant raises the following issue on appeal:
Were the facts in the former co-defendant’s affidavit, in which he
attests to witnessing another person shoot the two victims in the
case, and identifies the shooter by name (thereby exonerating
[Appellant], unknown to [Appellant] and not ascertainable by
him through the exercise of due diligence, prior to his receipt of
the affidavit, thereby satisfying 42 Pa.C.S. § 9545(b)(1)(ii)?
Appellant’s Brief at 2.
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We review the denial of a PCRA Petition to determine whether the
record supports the PCRA court’s findings and whether its order is otherwise
free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
2014). Before addressing the merits of Appellant’s claims, however, we
must first determine whether we have jurisdiction to entertain the
underlying PCRA Petition. No court has jurisdiction to hear an untimely
PCRA Petition. Commonwealth v. Lambert, 884 A.2d 848, 851 (Pa.
2005).
A PCRA Petition must be filed within one year of the date the
underlying judgment becomes final; a judgment is deemed final at the
conclusion of direct review or at the expiration of time for seeking review.
42 Pa.C.S. § 9545(b)(1), (3).
Pennsylvania courts may consider an untimely PCRA petition, however,
if the appellant pleads and proves one of the three exceptions set forth in 42
Pa.C.S. § 9545(b), which provides as follows:
(b) Time for filing petition.
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition
alleges and the petitioner proves that:
(i) 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;
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(ii) 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
(iii) 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.
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the date the
claim could have been presented.
42 Pa.C.S. § 9545(b)(1-2) (emphasis added).
Here, Appellant’s Petition, filed more than six years after his Judgment
of Sentence became final, is facially untimely.5 Appellant maintains,
however, that his PCRA petition should be reviewed because it falls within
the exception for newly discovered facts, 42 Pa.C.S. § 9545(b)(1)(ii).
Appellant’s Brief at 18.
The exception in Section 9545(b)(1)(ii) requires a petitioner to plead
and prove that “1) the facts upon which the claim was predicated were
unknown [at the time of trial;] and 2) could not have been ascertained by
the exercise of due diligence.” Commonwealth v. Bennett, 930 A.2d
1264, 1272 (Pa. 2007) (citation, internal quotation marks, and emphasis
omitted).
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5The period in which Appellant could have filed a timely PCRA Petition ended
on October 20, 2010.
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“Due diligence demands that the petitioner take reasonable steps to
protect his own interests. A petitioner must explain why he could not have
learned the new fact(s) earlier with the exercise of due diligence. This rule
is strictly enforced.” Commonwealth v. Williams, 35 A.3d 44, 53 (Pa.
Super. 2011) (citations omitted). A petitioner does not satisfy the “newly-
discovered facts” exception to the PCRA’s time-bar where he merely alleges
a newly-discovered or newly-willing source for previously known facts.
Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008).
Appellant argues that the PCRA court erred in concluding that the
identification by Justin Pearcy of Eric Hayes as the actual shooter did not
constitute a previously unknown fact for purposes of establishing an
exception to the PCRA’s time-bar. Appellant’s Brief at 22. Appellant claims
that Pearcy’s sworn statement that he would have testified that he borrowed
and drove Appellant’s car on the night of the incident, and that the
passenger who committed the crimes for which the jury convicted Appellant
was Eric Hayes, is a new fact. Id. at 19, 23. Appellant argues that the trial
court had jurisdiction to entertain his claim because Pearcy was unavailable
as a witness at the time of trial, and Appellant filed the instant PCRA Petition
within 60 days of receiving Pearcy’s affidavit.
Appellant further argues that the PCRA court employed faulty logic in
denying his Petition. While Appellant acknowledges that Pearcy’s statement
that Appellant was not the shooter is not a fact previously unknown to
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Appellant, he argues that the identification of Eric Hayes as the shooter is a
new fact, which was, until the time of the Pearcy affidavit, undiscoverable by
Appellant. Appellant avers that, by the PCRA’s court logic, it would never be
possible for any defendant whose defense is based on a claim of not having
been present at the crime—as Appellant has maintained in the instant case—
to successfully raise a claim based on the newly-discovered fact of the actual
perpetrator’s identity. Id. at 22-23.
As an initial matter, Appellant has failed to demonstrate that he
exercised due diligence in obtaining the information from the affiant on
which he bases his Petition. As noted supra, to satisfy the requisites of the
“newly-discovered fact” exception to the PCRA’s time-bar, Appellant must
plead and prove that the “new” fact was unknown to him at the time of trial
and it could not have been ascertained by the exercise of due diligence.
Bennett, 930 A.2d at 1272. In his Petition, Appellant asserted that his
“mother received in the mail an affidavit from Justin Pearcy[,] and his
mother forwarded it to [Appellant].” Pro Se PCRA Petition “Timeliness of
Instant PCRA Petition,” 4/11/16, at 2. Appellant further claimed in his
Petition that he could not obtain the information contained in Pearcy’s
affidavit earlier because “Justin Pearcy would have made himself unavailable
at the time of trial by asserting his Fifth Amendment Right.” Id. See also
Pearcy Affidavit.
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A witness’s invocation of his Fifth Amendment rights renders him
unavailable. Commonwealth v. Franklin, 580 A.2d 25, 29 (Pa. Super.
1990). However, the witness’s unavailability ends when he is acquitted of
the same charges for which his co-defendant was convicted.
Commonwealth v. Fiore, 780 A.2d 704, 712 (Pa. Super. 2001).
Pearcy was acquitted of all charges arising from this incident in 2008.
Pearcy, as the driver of the car that transported the shooter to the scene of
the crime, has presumably known the identity of the shooter since the
incident.6 However, in his Petition, Appellant failed to explain why he was
unable to procure Pearcy’s testimony during the pendency of his direct
appeal or his first PCRA petition, both of which postdated Pearcy’s acquittal.
Thus, Appellant has failed to plead and prove that he exercised due
diligence, but was not able to ascertain this arguably new fact sooner.
Moreover, as stated above, Appellant certified in his April 2010 First
Pro Se Amended PCRA Petition, that, at the time Appellant filed that
Amended PCRA Petition, Pearcy was “available to testify” and would have
testified that he drove Appellant’s car on the night of the shooting while
Appellant stayed home. Certification at 1. This assertion belies Appellant’s
present claim that Pearcy’s testimony was unavailable before 2016 and
Appellant does not explain why he failed to pursue this claim regarding
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6Appellant has not alleged that Pearcy only recently learned that Eric Hayes
was the actual shooter.
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Pearcy’s purportedly exculpatory testimony before filing the instant Petition.
See Commonwealth v. Yaris, 731 A.2d 581, 590 (Pa. 1999) (finding
defendant did not exercise due diligence where he failed to explain why
information contained in a witness’s affidavit could not have been obtained
sooner).
Because we have concluded that Appellant failed to explain why he
could not have learned this alleged new fact earlier with the exercise of due
diligence, we need not reach the merits of Appellant’s claim that the identity
of the shooter is a “new fact.” See Bennett, 930 A.2d at 1272.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/18
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