J-S07015-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIC L. MAXWELL :
:
Appellant : No. 997 MDA 2018
Appeal from the PCRA Order May 23, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001517-1984
BEFORE: OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.
DISSENTING MEMORANDUM BY OLSON, J.: FILED APRIL 23, 2019
The learned Majority concludes, in part, that Appellant, Eric L. Maxwell,
properly invoked the “newly-discovered” fact exception to the PCRA’s1
time-bar found at 42 Pa.C.S.A. § 9545(b)(1)(ii) when he cited a July 9, 2016
statement by his brother, Brian Maxwell (Brian), to the effect that Brian
overheard the district attorney say to a police officer at trial that he did not
think there would be any African Americans on the jury. My review of the
certified record reveals, however, that Appellant raised Batson2 challenges in
at least three prior post-conviction filings: (1) state habeas corpus petition
filed September 22, 1996; (2) second federal habeas corpus petition filed
November 3, 1997; and, (3) second PCRA petition filed May 24, 2000.
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1 Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
2 Batson v. Kentucky, 476 U.S. 79, 86-87 (1986).
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* Retired Senior Judge assigned to the Superior Court.
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Amended PCRA Petition, 9/7/16, at para. 39.3.2. These filings alleged, among
other things, that the district attorney used peremptory challenges to exclude
African Americans from the jury in violation of Appellant’s constitutional rights.
See id. at para. 29 (describing claims raised in Appellant’s pro se May 2000
second PCRA petition). It is well settled in Pennsylvania that the focus of the
exception found at § 9545(b)(1)(ii) is on newly-discovered facts, not on
newly-discovered or newly-willing sources that corroborate previously known
facts or previously raised claims. See Commonwealth v. Robinson, 185
A.3d 1055, 1064 n.4 (Pa. Super. 2018) (en banc), appeal denied, 192 A.3d
1105 (Pa. 2018). Appellant’s petition in this case establishes that, as early as
1996, Appellant possessed the facts to pursue claims that the district attorney
used peremptory challenges to exclude blacks from his jury or, at the very
least, possessed facts which would trigger investigation into such matters.
Under these circumstances, I would view Brian’s July 9, 2016 statement as a
newly-discovered source of information that corroborated previously known
facts and claims. As such, it could not confer jurisdiction over the instant
petition. Because the Majority concludes otherwise, I respectfully dissent.
As the Majority acknowledges, it is uncontested that Appellant’s petition
is untimely and that he needed to invoke an exception to the PCRA’s time-bar
to obtain review of the merits of his Batson claim.3 To this end, Appellant
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3 The statutory exceptions found at 42 Pa.C.S.A. § 9545 are as follows:
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elected to pursue the “newly-discovered” fact exception to establish
jurisdiction. Specifically, Appellant alleges that, on July 9, 2016, he learned
through Brian that the district attorney told a police officer during Appellant’s
trial that he did not believe that any African Americans would serve on the
jury. Brian’s statement, however, is not a new “fact” as contemplated by the
PCRA.
Our Supreme Court previously explained the “newly-discovered” fact
exception under § 9545(b)(1)(ii) as follows:
[Section 9545(b)(1)(ii)] “requires petitioner to allege and prove
that there were ‘facts' that were ‘unknown’ to him” and that he
could not have ascertained those facts by the exercise of “due
diligence.” Commonwealth v. Bennett, 930 A.2d 1264,
1270-1272 (Pa. 2007). The focus of [§ 9545(b)(1)(ii) is “on [the]
newly discovered facts, not on a newly discovered or newly willing
source for previously known facts.” Commonwealth v.
Johnson, 863 A.2d 423, 427 (Pa. 2004) [(abrogated on other
grounds)]. In Johnson, [our Supreme Court] rejected the
petitioner's argument that a witness['] subsequent admission of
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(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.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any petition invoking one of the exceptions
to the time bar must be filed within 60 days of the date the claim could have
been presented. 42 Pa.C.S.A. § 9545(b)(2).
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alleged facts brought a claim within the scope of [§ 9545(b)(1)(ii)]
even though the facts had been available to the petitioner
beforehand. Relying on Johnson, [our Supreme Court
subsequently] held that an affidavit alleging perjury did not bring
a petitioner's claim of fabricated testimony within the scope of
[§ 9545(b)(1)(ii)] because the only “new” aspect of the claim was
that a new witness had come forward to testify regarding the
previously raised claim. [Commonwealth v.] Abu–Jamal, [941
A.2d 1263, 1267 (Pa. 2008)]. Specifically, [the Court] held that
the fact that the petitioner “discovered yet another conduit for the
same claim of perjury does not transform his latest source into
evidence falling within the ambit of [section] 9545(b)(1)(ii).” Id.
at 1269.
Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008).
Brian’s statement, even if credited by a factfinder, is merely a new
source of information regarding facts and claims of which Appellant was
already aware and which he previously raised. Appellant’s own petition in this
case clearly demonstrates that, as far back as May 2000, he advanced
contentions that mirror his present Batson claim:
On May 24, 2000, [Appellant] filed his second PCRA petition.
[Appellant] asserted his petition was timely filed due to
interference by government officials. [Appellant] advanced
multiple claims, most significantly is the claim of
ineffective assistance of counsel for failing to object and
require the District Attorney provide race-neutral reasons
for his use of peremptory challenges on black potential
jurors under Batson v. Kentucky. The [PCRA c]ourt never
appointed an attorney to represent [Appellant]. This petition was
dismissed without a hearing on September 18, 2001. The [PCRA]
court held that “[i]ssues 2-4, relating to the alleged denial of the
right to an impartial jury were raised and decided in [Appellant’s]
first PCRA and may not be re-litigated herein.” Issue 4 was
[Appellant’s] claim that his attorney was ineffective for
failing to object under Batson v. Kentucky.[]
Amended PCRA Petition, 9/7/16, at para. 29 (emphasis added).
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It is evident, in my view, that according to his own petition, Appellant
possessed the facts he needed to formulate his present Batson claim as early
as September 1996. Because the facts upon which Appellant’s present claims
are based were previously known to him, and since Brian’s July 9, 2016
statement served merely as a new source for previously known facts,
Appellant has not satisfied the newly-discovered facts exception to the PCRA’s
time-bar. Accordingly, I would hold that the PCRA court properly dismissed
the petition as untimely.4
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4 Since Brian’s statement is not a new “fact” as contemplated by
§ 9545(b)(1)(ii), the coordinate jurisdiction rule is not an obstacle to
re-assessment of the initial erroneous jurisdictional ruling. See, e.g., Ryan
v. Berman, 813 A.2d 792, 795 (Pa. 2002) (acknowledging that departure
from the coordinate jurisdiction rule is generally permitted where a prior
holding is clearly erroneous and following it would create manifest injustice).
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