Com. v. Kuhns, J.

J-S49036-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JASON ERIC KUHNS :
:
Appellant : No. 1750 WDA 2019
Appeal from the PCRA Order Entered November 20, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0005268-2011
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 17, 2020
Appellant, Jason Eric Kuhns, appeals from the order entered in the Court
of Common Pleas of Allegheny County dismissing his patently untimely, serial
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546, for his failure to prove all requirements of the after-discovered
evidence claim he raised pursuant to subsection 9543(a)(2)(vi), infra. We
affirm.
In 2012, a jury convicted Appellant of first-degree murder, burglary,
robbery, and receiving stolen property on evidence that he forcibly entered
the home of his wife’s 90 year-old grandfather, Mr. Cuddy Briskin, and
bludgeoned him to death with a tire iron while stealing valuable coins, which
he later pawned for drug money. On August 16, 2012, the court imposed a
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* Former Justice specially assigned to the Superior Court.
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mandatory sentence of life imprisonment for first-degree murder, along with
a consecutively run, aggregate sentence of 15 ½ to 31 years on the remaining
convictions. On direct appeal, this Court affirmed judgment of sentence.
Commonwealth v. Kuhns, No. 1972 WDA 2012 (unpublished memorandum,
June 3, 2014), and the Pennsylvania Supreme Court denied Appellant’s
Petition for Allowance of Appeal on October 29, 2014.
On August 6, 2015, Appellant filed a timely pro se PCRA petition, his
first. The PCRA court appointed counsel, who filed an amended petition
asserting that trial counsel rendered ineffective assistance for failing to seek
suppression of Appellant’s allegedly involuntary post-arrest statement. The
PCRA court denied the petition without a hearing and this Court affirmed in
Commonwealth v. Kuhns, No. 1909 WDA 2015 (unpublished memorandum,
July 29, 2016). Our Supreme Court denied Appellant’s Petition for Allowance
of Appeal on December 28, 2016.
On March 8, 2018, Appellant filed a patently untimely, second pro se
PCRA petition invoking the newly-discovered facts exception based a February
3, 2018 newspaper article reporting that the former homicide detective who
secured his statement to police, Detective Margaret Sherwood, had been
charged criminally for making false statements in two murder investigations
occurring in 2014 and 2015, respectively. Specifically, Sherwood’s false
statements concerned eyewitnesses’ identifications of an offender in the first
investigation and identifications made from a photo array in the second
investigation.
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The PCRA court appointed counsel, who determined that he was
constrained to file a Turner/Finley1 No-Merit Letter because the alleged
newly-discovered fact would not materialize until Detective Sherwood, who
had only been charged with crimes at that point, was actually convicted. The
PCRA court agreed and dismissed Appellant’s second PCRA petition. No appeal
was taken.
Twenty-one days after Sherwood’s convictions, Appellant filed the
instant PCRA petition on August 23, 2019, again raising the newly-discovered
fact exception to the PCRA time-bar. The PCRA court appointed the same
counsel who represented Appellant previously, and counsel filed an amended
petition. The court accepted jurisdiction over Appellant’s petition, having
determined that it was timely filed pursuant to the exception. On November
20, 2019, however, the court dismissed Appellant’s petition without a hearing
pursuant to Pa.R.A.P. 907 for Appellant’s failure to prove his after-discovered
evidence claim met all requirements. This timely appeal followed.
Appellant raises the following issue for our review:
Did the [PCRA] court err in denying Appellant’s PCRA petition and
in not awarding Appellant a new trial since the 8/2/19 newly
discovered evidence crimen falsi criminal convictions of homicide
detective Sherwood, which involved lying during homicide
investigations, and falsifying official documents during homicide
investigations, support Appellant’s longstanding claims, since April
2011, that his statement to and waiver of his right were
involuntarily and unknowingly given to Detective Sherwood, who
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1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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was singlehandedly responsible for convincing the jury that
Appellant’s Murder 1 conviction and life without parole sentence
were justified, and necessitate a new trial for Appellant.
Appellant's Brief at 3.
Our review of the denial of a PCRA petition is limited to determining
whether the record supports the PCRA court's ruling and whether its decision
is free of legal error. Commonwealth v. Williams, 196 A.3d 1021, 1026-
27 (Pa. 2018); Commonwealth v. G.Y., 63 A.3d 259, 265 (Pa. Super. 2013).
“With respect to the PCRA court’s decision to deny a request for an evidentiary
hearing, or to hold a limited evidentiary hearing, such a decision is within the
discretion of the PCRA court and will note be overturned absent an abuse of
discretion.” Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).
Initially, we must address whether the PCRA petition at issue in this appeal
was timely filed.
The PCRA provides that “[a]ny petition under this subchapter, including
a second or subsequent petition, shall be filed within one year of the date the
judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). Appellant's judgment of
sentence became final on January 27, 2015, upon the expiration of the ninety
day period to seek review with the United States Supreme Court after the
denied of his petition for allowance of appeal. 42 Pa.C.S. § 9545(b)(3). The
instant PCRA petition was not filed within one year of that date.
A PCRA petition may be filed beyond the one-year time period, however,
if the petitioner pleads and proves one of the following three exceptions:
(i) the failure to raise the claim previously was the result of
interference by government officials with the
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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.
42 Pa.C.S. § 9545(b)(1). A petition invoking such an exception must be filed
“within one year of the date the claim could have been presented.” 42 Pa.C.S.
§ 9545(b)(2).2
Appellant asserted in his PCRA petition that the petition was timely
under the exception in Section 9545(b)(1)(ii) for newly-discovered facts. We
agree that Appellant satisfied the requirements of Section 9545(b)(1)(ii).
Appellant's PCRA petition was based on new facts, namely, the criminal
conviction of Detective Sherwood for her misconduct in undertaking
investigations, and those facts were unknown to Appellant and not reasonably
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2 At the time that Appellant filed this PCRA petition on August 23, 2019,
Section 9545(b)(2) had been amended to provide that “[a]ny petition invoking
an exception provided in paragraph (1) shall be filed within one year of the
date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2); Act of
October 24, 2018, P.L. 894, No. 146, § 2. The Act amending Section
9545(b)(2) provided that the one-year period applies to claims arising on or
after December 24, 2017. Act of October 24, 2018, P.L. 894, No. 146, §§ 3,
4. Because Appellant's PCRA petition is based on a criminal conviction filed in
2018, after December 24, 2017, the one-year period applies here.
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ascertainable by him until Sherwood’s conviction. The instant PCRA petition
was filed less than one year later and was, therefore, timely filed.
Although Appellant satisfied the newly-discovered facts exception to the
PCRA’s timeliness requirements, he still faced the additional requirement of
presenting the substantive claim of after-discovered evidence pursuant to 42
Pa.C.S. § 9543(a)(2)(vi). Our Supreme Court explained:
the newly-discovered facts exception to the time limitations of the
PCRA, as set forth in subsection 9545(b)(1)(ii), is distinct from the
after-discovered evidence basis for relief delineated in 42 Pa.C.S.
§ 9543(a)(2). To qualify for an exception to the PCRA's time
limitations under subsection 9545(b)(1)(ii), a petitioner need only
establish that the facts upon which the claim is based were
unknown to him and could not have been ascertained by the
exercise of due diligence. However, where a petition is otherwise
timely, to prevail on an after-discovered evidence claim for relief
under subsection 9543(a)(2)(vi), a petitioner must prove that (1)
the exculpatory evidence has been discovered after trial and 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. Burton, 158 A.3d 618, 629 (Pa. 2017). All four of these
requirements must be proved; if the defendant fails to establish any one of
these, the newly-discovered evidence claim fails. Commonwealth v. Small,
189 A.3d 961, 972 (Pa. 2018); Commonwealth v. Padillas, 997 A.2d 356,
363 (Pa. Super. 2010).
These requirements are not met by Appellant’s proffer of new evidence
that Detective Sherwood committed criminal acts during her investigations of
two murders that were unrelated to, and occurred years after, Appellant’s
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case. As noted, Detective Sherwood was convicted on evidence that she made
false statements at trials regarding two murder investigations in 2014 and
2015, respectively. The false statements with which Detective Sherwood was
charged concerned whether eyewitnesses to each murder had identified a
particular individual and whether individuals who knew a suspect had
identified him in photographs from the shooting. Grand Jury Presentment at
1, 3-17.
In the case sub judice, there is no evidence that Detective Sherwood
made false statements concerning either witness identifications or any other
matter. Instead, Appellant baldly contends that the after-discovered evidence
relates to Detective Sherwood’s role as lead investigator into Appellant’s
involvement in Mr. Briskin’s death and to whether she properly procured
Appellant’s incriminating statement, which, Detective Sherwood testified at
trial, he gave voluntarily during her interrogation of him.
Recently, this Court reviewed a similar after-discovered evidence claim
based on the charges filed against Detective Sherwood and concluded that,
where the petitioner’s case was unrelated to the subsequent conduct
committed by the detective, the claim went solely to the detective’s credibility
and therefore must fail. Specifically, we observed:
Evidence of a police witness's subsequent misconduct in other
unrelated cases does not satisfy the requirements for a new trial
based on after-discovered evidence. Johnson, 179 A.3d [1105,
1122-33 (Pa. Super. 2018)] (affirming denial of PCRA after-
discovered evidence claim based on criminal convictions of police
detective who testified at defendant's trial and was involved in
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questioning a witness who identified the defendant, where
convictions occurred years after defendant's trial and arose out of
conduct in an unrelated case); Commonwealth v. Foreman, 55
A.3d 532, 534-35, 537 (Pa. Super. 2012) (affirming denial of
PCRA after-discovered evidence claim based on criminal charges
against police detective who testified at defendant's trial, where
charges arose out of conduct in an unrelated case that occurred
more than two years after defendant's trial); see also
Commonwealth v. Griffin, 137 A.3d 605, 610 (Pa. Super. 2016)
(reversing grant of new trial based on after-discovered evidence
of misconduct of police officer who testified at defendant's trial
where alleged misconduct was in unrelated case);
Commonwealth v. Brown, 134 A.3d 1097, 1108-09 (Pa. Super.
2016) (rejecting after-discovered evidence claim based on
interrogating police detectives' misconduct in unrelated cases).
Because the criminal charges do not relate [to] any conduct or
facts in Appellant's case, they would at most be relevant only to
impeach Detective Sherwood's credibility. Johnson, 179 A.3d at
1123; Brown, 134 A.3d at 1109; Foreman, 55 A.3d at 537.
Evidence that is relevant only to impeach the credibility of a
witness who testified at trial does not satisfy these requirements
and is not sufficient to support the granting of a new trial or PCRA
relief based on after-discovered evidence. Johnson, 179 A.3d at
1123; Griffin, 137 A.3d at 610; Commonwealth v. Trinidad,
96 A.3d 1031, 1037 (Pa. Super. 2014).
Commonwealth v. Rouse, 2019 WL 5858067 (unpublished memorandum,
Pa. Super. November 8, 2019).3
Like in Rouse, Detective Sherwood’s criminal charges and subsequent
conviction do not relate to Appellant’s case, which preceded the conduct in
Sherwood’s case by several years. As such, evidence of Detective Sherwood’s
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3 Although Rouse is a non-precedential decision, we cite it as applicable,
persuasive authority due to limited precedent on the issue. See Pa.R.A.P.
126(b) (unpublished non-precedential decisions of the Superior Court filed
after May 1, 2019, may be cited for their persuasive value).
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conviction would be, at most, relevant only to impeach her credibility as a
witness against Appellant regarding whether he voluntarily gave his
statement. Under controlling precedent cited above, however, impeachment
evidence of this sort does not satisfy the requirements of an after-discovered
evidence claim. Appellant, therefore, is not entitled to relief. Accordingly, we
discern no error with the PCRA court’s order dismissing Appellant’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/17/2020
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