Commonwealth v. Cox, J., Aplt.

[J-78-2016]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 707 CAP
:
Appellee : Appeal from the Order entered on May
: 15, 2015 dismissing the Petition for
: Post-Conviction Relief in the Court of
v. : Common Pleas, Philadelphia County,
: Criminal Division at No. CP-51-CR-
: 0231581-1993
JERMONT COX, :
: SUBMITTED: May 11, 2016
Appellant :
OPINION
JUSTICE DONOHUE DECIDED: September 28, 2016
In his second collateral capital appeal, Jermont Cox (“Cox”) challenges the denial
of his petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-
9546 (“PCRA”).1 Cox contends that newly-discovered facts entitle him to a new trial.
Following our thorough review, we agree with the PCRA court’s determination that
Cox’s petition is untimely and therefore affirm its order.
This Court described the facts underlying Cox’s conviction at length in
conjunction with his direct appeal. See Commonwealth v. Cox, 728 A.2d 923, 926-29
(Pa. 1999). For the purposes of the present appeal, the pertinent facts may be
summarized as follows. Cox was a low-level member of a Philadelphia drug operation
1
This Court has jurisdiction over appeals from the grant or denial of post-conviction
relief in death penalty cases. 42 Pa.C.S.A. § 9546(d).
run by Tim Walker (“Walker”). At some point in early 1992, two other members of the
drug enterprise, Roosevelt Watson (“Watson”) and Terence Stewart (“Stewart”), had a
falling out with Walker and left Walker’s organization. Watson subsequently robbed one
of the houses out of which Walker sold drugs, and he and Stewart later stole Walker’s
car. In retribution, Walker instructed Larry Lee (“Lee”), a higher-ranking member of the
drug organization, to kill both Watson and Stewart. Lee enlisted Cox to assist in the
murders. On August 18, 1992, Watson was shot and killed outside of a nightclub. On
November 8, 1992, Stewart was shot and killed while driving his vehicle with a woman
named Tia Seidle (“Seidle”), who was not injured although she was sitting in the
passenger seat of his car.
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 residence, 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 and Lee immediately fled the scene.
The following day, Lee paid Cox $500.
[J-78-2016] - 2
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
least 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 telephone 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
2
Stewart was killed with a different weapon. The ballistics connection existed only
between the Davis and Watson murders.
[J-78-2016] - 3
damaged to allow a comparison. The Commonwealth sought to couple this ballistics
evidence with the testimony of Kimberly Little (“Little”). Little previously testified in the
Davis trial that she observed Cox shoot and kill Davis.3 Through Little’s testimony and
the ballistics evidence establishing that the same gun was used in the Watson and
Davis murders, the Commonwealth sought to establish Cox’s participation in the
Watson murder. Over Cox’s objections, the trial court permitted the Commonwealth to
introduce this evidence for the limited purpose of establishing Cox’s identity and access
to the weapon used to murder Watson.
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 life 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
3
Cox was convicted of first-degree murder, conspiracy and possessing instruments of
crime in the Davis case.
4
18 Pa.C.S.A. §§ 2502(a), 903, 907.
5
During the penalty phase, the jury found three aggravating factors: that Cox was paid
to commit the murder; that in killing Stewart he created a grave risk of death to another
person; and that he had been convicted of another murder. Cox, 728 A.2d at 928; see
42 Pa.C.S.A. § 9711(d)(2),(7),(11). The jury found that these aggravating
circumstances outweighed the mitigating circumstances that Cox presented: that he
acted under extreme duress or the substantial domination of another person and the
catch-all mitigating factor. Cox, 728 A.2d at 928; see 42 Pa.C.S.A. § 9711(e)(5),(8).
6
At the time of Cox’s conviction, criminal defendants were required to raise claims of
ineffective assistance of counsel at the first available opportunity. See, e.g.,
Commonwealth v. Hubbard, 372 A.2d 687, 695 n.6 (Pa. 1977). In 2002, this Court
issued our decision in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), in which we
held that claims of ineffective assistance of counsel could not be raised on direct
appeal, but must be deferred and presented on collateral appeal. Id. at 738. As Cox’s
appeal occurred three years prior to the issuance of our decision in Grant, he properly
raised these claims of ineffective assistance of counsel on direct appeal.
[J-78-2016] - 4
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 (2001).
On February 6, 2001, Cox filed a pro se PCRA petition, and counsel was
appointed. Counsel filed an amended petition raising numerous claims of ineffective
assistance of trial and appellate counsel with regard to both the guilt and penalty
phases of his trial. Of relevance, for the first time, Cox challenged the failure of trial
counsel to conduct an independent investigation of the ballistics evidence and sought
discovery of the ballistics evidence. Commonwealth v. Cox, 983 A.2d 666, 691-92
(Pa. 2009). The PCRA court denied Cox’s guilt phase claims as a matter of law, but
conducted an evidentiary hearing to address Cox’s claims related to the penalty phase.
Following the hearing, the PCRA court denied all of the penalty phase claims. Cox
appealed the PCRA court’s ruling, raising fourteen issues for consideration. This Court
affirmed the PCRA court’s denial of all fourteen claims. Id.
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
[J-78-2016] - 5
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
On June 28, 2013, based on the results of the second ballistics test, Cox filed the
PCRA petition at issue in this appeal. He alleged due process violations based upon
the admission of the ballistics evidence in the Watson murder; ineffective assistance of
trial counsel for failing to seek independent ballistics testing; and ineffective assistance
of appellate counsel for failing to raise this particular claim on direct appeal. PCRA
Petition, 6/28/2013, at 8-16.8 With respect to his due process claim, Cox contended
that the new ballistics report undermined the link between the Davis and Watson
shootings, and if this new evidence had been available at the time of the
Watson/Stewart trial, “it is likely that the Davis evidence would have been excluded from
the Watson/Stewart trial entirely.” PCRA Petition, 6/28/2013, at 10. Without the Davis
evidence, Cox argued, there would have been no evidence that he had a propensity for
violence, and so there is a reasonable likelihood that he would not have been found
guilty of the Stewart murder and sentenced to death. Id.
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
7
It appears that Cox did not follow through with the independent testing he sought.
Cox alluded to independent testing in his second PCRA petition, averring that “prior to
the scheduled examination of [the] ballistics evidence by [Cox’s] expert, an Assistant
District Attorney M provided [Cox’s] counsel with the new ballistics report prepared by
[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.
8
Cox acknowledged that he has previously litigated the claim that trial counsel was
ineffective for failing to have independent ballistics testing in his first PCRA petition, but
contended that the newly-discovered evidence requires a different conclusion. PCRA
Petition, 6/28/2013, at 15 n.6.
[J-78-2016] - 6
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 four-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 Opinion, 7/29/2015, at 7 (quoting Commonwealth v. Perrin, 59 A.3d 633
(Pa. Super. 2011), vacated, 103 A.3d 1224 (Pa. 2014)). The PCRA court concluded
that the evidence upon which Cox based his claim would be used only to impeach
Little’s testimony that Cox alone shot Davis and that it would not have changed the
outcome of trial, and therefore, that Cox failed to establish the after-discovered
evidence exception to the PCRA’s time-bar. Id. at 8. This appeal followed.9
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, 884
A.2d 848 (Pa. 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 new 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?
9
“Our review of a PCRA court's decision is limited to examining whether the PCRA
court's findings of fact are supported by the record, and whether its conclusions of law
are free from legal error.” Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).
[J-78-2016] - 7
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 PCRA requires that a petition seeking relief thereunder must be filed within
one year of the date the petitioner’s judgment of sentence becomes final. 42 Pa.C.S.A.
§ 9545(b)(1); Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012). “[A] judgment
becomes final at the conclusion of direct review, including discretionary review in the
Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.” 42 Pa.C.S.A. § 9545. This timeliness
requirement is jurisdictional in nature, and a court may not address the merits of any
claim raised unless the petition was timely filed or the petitioner proves that one of the
three exceptions to the timeliness requirement applies. Jones, 54 A.3d at 16. These
exceptions are:
(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;
(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.
[J-78-2016] - 8
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).10
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 (2) they could not
have been ascertained by the exercise of due diligence. Commonwealth v. Bennett,
930 A.2d 1264, 1270-72 (Pa. 2007). We have unequivocally explained that “the
exception set forth in subsection (b)(1)(ii) does not require any merits analysis of the
underlying claim.” Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008).
Rather, the exception only requires a petitioner to “prove that the facts were unknown to
him and that he exercised due diligence in discovering those facts.” Bennett, 930 A.2d
at 1270; see also Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001) (rejecting
attempt to invoke section 9545(b)(1)(ii) because appellant failed to offer any evidence
that he exercised due diligence in obtaining facts upon which his claim was based).
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 exceptions 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 42 Pa.C.S.A. § 9543(a)(2). Of relevance here is the “after-discovered
evidence” provision, which states that a claim alleging “the unavailability at the time of
10
In addition to establishing one of these exceptions, any petition invoking one of these
exceptions “shall be filed within [sixty] days of the date the claim could have been
presented.” 42 Pa.C.S.A. § 9545(b)(2). The ballistics report upon which Cox’s claims
are based was issued on April 30, 2013, and Cox filed his PCRA petition fifty-nine days
later, on June 28, 2013. As such, Cox has satisfied this aspect of the test to establish
an exception to the PCRA’s time-bar.
[J-78-2016] - 9
trial of exculpatory evidence that has subsequently become available and would have
changed the outcome of the trial if it had been introduced” is cognizable under the
PCRA. 42 Pa.C.S.A. § 9543(a)(2)(vi). To establish such a claim, a petitioner must
prove 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
cumulative; (3) it is not being used solely to impeach credibility; and (4) it would likely
compel a different verdict.” Commonwealth v. D'Amato, 856 A.2d 806, 823 (Pa. 2004).
A comparison of this four factor test to the two factor section 9545(b)(1)(ii)
timeliness exception test reveals a superficial resemblance, as both involve
consideration of whether the facts or evidence upon which the claim is based were
previously unknown to the petitioner and whether that information could have been
discovered earlier, through the exercise of due diligence. Indeed, the section
9545(b)(1)(ii) timeliness test appears to be encompassed within the first factor of the
section 9543(a)(2)(vi) eligibility test. In Bennett, however, we cautioned against the
conclusion that there is an overlap between these provisions and reiterated that they
remain distinct inquiries. Bennett, 930 A.2d at 1271. In so doing, we recognized that by
referring to section 9545(b)(1)(ii) as an “after discovered evidence” exception, this Court
unintentionally reinforced the confusion surrounding their application:
We have repeatedly referred to this subsection as the “after-
discovered evidence” exception to the one-year jurisdictional
time limitation. See [Commonwealth v.] Peterkin, 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....”).
[J-78-2016] - 10
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[FN]9 - like considerations into our
analysis of subsection (b)(1)(ii) on more than one occasion.
For example, in Commonwealth v. Johnson, [] 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, [] 781 A.2d 94, 98
([Pa.] 2001). This conclusion conflated the two concepts as
subsection (b)(1)(ii) does not contain the same requirements
as a Brady claim.
______________________________________
[FN]9
This refers to a claim brought under Brady v. Maryland,
373 U.S. 83 [] (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, [] 913 A.2d 220, 244
([Pa.] 2006).
Id. at 1270-71 (footnote eight omitted).11
11
The distinction between the use of the terms “facts” in section 9545(b)(1)(ii) and
“evidence” in section 9543(a)(2)(vi) underscores their separate functions. The PCRA
“provides for an action by which persons convicted of crimes they did not commit and
persons serving illegal sentences may obtain collateral relief.” 42 Pa.C.S.A. § 9542.
Section 9545(b)(1)(ii) does not explicitly assist in providing such relief. The function of a
section 9545(b)(1)(ii) analysis is that of a gatekeeper. Its inquiry, therefore, is limited to
considering only the existence of a previously unknown fact that would allow a petitioner
to avoid the strict one year time-bar. In contrast, the purpose of an inquiry under
section 9543(a)(2)(vi) is to ensure that the claim presented is cognizable under the
PCRA, and so it requires a more thorough analysis. As such, the matter upon which the
claim is based is assessed in terms of its evidentiary merit, by considering the purpose
for which it would be used and its potential impact on the outcome of trial. Through
consideration of these factors, section 9543 assists the goal of the PCRA to provide
(continuedM)
[J-78-2016] - 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 four-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 section 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 (1986), and claims of racial prejudice on the part of the trial judge. See
Commonwealth v. Gamboa-Taylor, 67 A.3d 1245 (Pa. 2013); Commonwealth v.
Hackett, 956 A.2d 978, 982-84 (Pa. 2008); Commonwealth v. Marshall, 47 A.3d 714,
721 (Pa. 2008); Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000); Commonwealth
v. Abu-Jamal, 833 A.2d 719, 735 (Pa. 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
(Mcontinued)
relief to the wrongfully convicted by ferreting out colorable claims of wrongful
convictions.
12
The PCRA court relied on the Superior Court’s decision in Perrin as the source of
this test. In Perrin, however, the Superior Court was reviewing the denial of the
appellant’s post-sentence motion seeking a new trial based upon an allegation of after-
discovered evidence. Perrin, 59 A.3d at 665. Nonetheless, the factors set forth in
Perrin and considered by the PCRA court are identical to the factors required under a
section 9543(a)(2)(vi) analysis. Compare PCRA Court Opinion, 7/29/2015, at 7, with 42
Pa.C.S.A. § 9543(a)(2)(vi).
[J-78-2016] - 12
categories of claims eligible for relief. See 42 Pa.C.S.A. § 9543(a)(2)(i),(ii) (providing
that claims of constitutional violations and ineffective assistance of counsel are
cognizable under the PCRA). In such cases, after concluding that the petition satisfied
the section 9545(b)(1)(ii) timeliness exception, the PCRA court would not proceed to a
section 9543(a)(2)(vi) analysis.
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, 65
A.3d 339, 348 (Pa. 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 acted with reasonable effort to
discover the facts upon which his claim is based.
Commonwealth v. Stokes, 959 A.2d 306 (Pa. 2008), is instructive in this regard.
Stokes involves a capital defendant who was sentenced to death in 1983. This Court
[J-78-2016] - 13
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 defendant sought, for the first time, records maintained by the United
States Postal Service and the Philadelphia Police Department’s homicide division. The
federal court granted his request. The defendant then filed a second PCRA petition
based upon the records, alleging that they contained exculpatory evidence that the
Commonwealth should have turned over at the time of trial. The defendant alleged that
this Brady violation entitled him to a new trial.
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
13
The nine-year delay between Stokes’ conviction and the disposition of his direct
appeal was the result of protracted post-verdict proceedings, which included hearings
that did not commence until 1987 and the ultimate denial of Stokes’ post-verdict motions
in October 1990. Stokes, 959 A.2d at 308.
[J-78-2016] - 14
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 admitted to committing the Davis murder, and so Cox
always knew that more than one firearm was used in the perpetration of that crime. See
N.T., 4/4/1995, at 157-58. Nevertheless, Cox has never explained why he did not seek
independent ballistics testing at the time of trial or on direct appeal.14 Importantly, our
review of the record reveals that Cox has never alleged that he asked trial counsel to
seek independent ballistics testing or that his counsel refused such a request. Were
that the situation, there could be a basis upon which to conclude that he attempted to
act diligently, but that his efforts were thwarted by trial counsel. However, this is simply
not the case here. Cox acknowledges that the testing could have been done at the time
of trial, but offers no explanation as to why he did not seek such testing at that time.
Instead, he took no action to obtain the additional testing for six years.15 It is this
14
As noted above, Cox’s direct appeal was decided prior to our decision in Grant, and
so he could have raised the claim that counsel was ineffective for failing to have
independent ballistics testing performed at that point.
15
There is no allegation here that a newly developed technology or newly discovered
source led to the new fact. Cox makes no claim that Officers Walker and Cruz
employed new testing methods or techniques, nor does he claim that they tested
anything beyond what Officer O’Hara tested in connection with his report. This further
weakens any attempt to claim that the fact was not ascertainable prior to the issuance
of the second ballistics report.
[J-78-2016] - 15
lengthy, unexplained delay that defeats the possibility of a conclusion that Cox acted
with reasonable effort to obtain ballistics testing. As in Stokes, Cox’s failure to act, and
failure to explain his lack of action, precludes a finding of due diligence.
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.
Justices Baer, Todd, Dougherty, Wecht and Mundy join the opinion.
Chief Justice Saylor concurs in the result.
[J-78-2016] - 16