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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.

MEMORANDUM BY PELLEGRINI, J.:                            FILED APRIL 23, 2019

        Eric L. Maxwell (Maxwell) appeals from an order of the Court of Common

Pleas of Dauphin County (PCRA court) dismissing his fourth petition filed

pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.

We vacate and remand.

        As our resolution of this appeal is based on the procedural posture of

this case, we decline to set forth the factual background. In November 1984,

Maxwell was convicted of first-degree murder,1 robbery2 and simple assault.3

Although the venire included approximately 15 African-Americans, no African-

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1   18 Pa.C.S. § 2502(a).

2   18 Pa.C.S. § 3701.

3   18 Pa.C.S. § 2701.


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* Retired Senior Judge assigned to the Superior Court.
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Americans were selected for the jury. The trial court sentenced Maxwell to an

aggregate term of life imprisonment without the possibility of parole. This

Court affirmed.    See Commonwealth v. Maxwell, 513 A.2d 1382 (Pa.

Super. 1986).     Although our Supreme Court granted allowance of appeal,

Maxwell escaped while the case was pending before the Supreme Court and it

dismissed the appeal. See Commonwealth v. Maxwell, 569 A.2d 328 (Pa.

1989) (per curiam).

      On August 14, 1990, the PCRA court dismissed Maxwell’s first PCRA

petition.   This Court affirmed and our Supreme Court denied allowance of

appeal. See Commonwealth v. Maxwell, 595 A.2d 192 (Pa. Super. 1991)

(unpublished memorandum), appeal denied, 600 A.2d 534 (Pa. 1991). On

August 10, 1993, the United States District Court for the Middle District of

Pennsylvania denied Maxwell’s petition for a writ of habeas corpus and the

United States Court of Appeals for the Third Circuit dismissed his appeal. See

Maxwell v. Domovich, 2012 WL 383669, *1 (M.D. Pa. Feb. 6, 2012)

(describing the procedural posture of Maxwell’s habeas corpus case).

Thereafter, the PCRA court dismissed Maxwell’s second PCRA petition. This

Court affirmed that dismissal. See Commonwealth v. Maxwell, 832 A.2d

539 (Pa. Super. 2003) (unpublished memorandum). On March 4, 2004, the

PCRA court dismissed Maxwell’s third PCRA petition. This Court affirmed and

our Supreme Court denied allowance of appeal.       See Commonwealth v.




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Maxwell, 864 A.2d 580 (Pa. Super. 2004) (unpublished memorandum),

appeal denied, 875 A.2d 1074 (Pa. 2005).

      On August 20, 2016, Maxwell filed this, his fourth, pro se PCRA petition

contending that the prosecutor had purposely acted to remove all African-

American jurors from the jury violating his right to a fair and impartial jury.

See Batson v. Kentucky, 476 U.S. 79 (1986). The PCRA requires, with few

exceptions, that a post-conviction petition, including a second or subsequent

petition, be filed within one year of the date a judgment becomes final. See

42 Pa.C.S. § 9543(b). Because this PCRA petition has been filed many years

after the judgment of sentence became final, Maxwell’s ability to pursue relief

is dependent on his satisfaction of an exception to that one-year rule.

      Section 9545(b)(1)(ii) is the exception at issue in this appeal.     Our

Supreme Court in Commonwealth v. Cox, 146 A.3d 221, 227 (Pa. 2016),

stated that “the exception set forth in subsection (b)(1)(ii) does not require

any merit analysis of the underlying claim.”      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.” Id. (internal quotes

and citations omitted).   Once jurisdiction has been properly invoked, the

relevant inquiry then becomes whether the claim is cognizable under 42

Pa.C.S. § 9543 of the PCRA.        Maxwell ultimately sought to pursue a

substantive claim under 42 Pa.C.S. § 9543(a)(2)(i) pertaining to a

constitutional violation under Batson.


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       The new facts alleged in Maxwell’s PCRA petition involved a July 9, 2016

meeting between Maxwell and his brother Brian Maxwell (Brian). This visit

occurred at SCI-Camp Hill and was their first one-on-one visit in 32 years.

During that visit, Maxwell told Brian that he was recently appointed an

attorney and explained the claims he wanted to raise.             This discussion

apparently jogged Brian’s memory and he told Maxwell he remembered

overhearing the district attorney tell a police officer that he did not think there

would be any African-Americans on the jury. Counsel was appointed and filed

an amended petition.

       Based on those allegations, the PCRA court ordered an evidentiary

hearing to address whether Maxwell was duly diligent in discovering these

facts.4 The parties agreed to bifurcate the proceedings, with a jurisdictional

hearing followed by a merits hearing in the event Maxwell successfully proved

the applicability of the exception.

       On May 15, 2017, the Honorable Scott A. Evans held the jurisdictional

hearing where only Maxwell and Brian testified. Brian testified that he nearly

stopped talking to Maxwell after he was arrested on these crimes and did not


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4 A due diligence inquiry is fact-sensitive and dependent upon the totality of
the circumstances presented, and “due diligence requires neither perfect
vigilance nor punctilious care, but rather it requires reasonable efforts by a
petitioner, based on the particular circumstances, to uncover facts that may
support a claim for collateral relief.” Commonwealth v. Burton, 121 A.3d
1063, 1070–71 (Pa. Super. 2015), aff’d., 158 A.3d 618 (Pa. 2017) (citations
omitted).


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visit him in the Dauphin County Prison while awaiting trial. While Brian would

occasionally speak to his brother over the phone, the conversations were not

long. Maxwell didn’t call Brian directly and only spoke to Brian when Brian

was at their mother’s house.    Brian testified that he visited his brother in

prison twice more than twenty years ago, both times with other family

members. Brian visited Maxwell one-on-one for the first time on July 9, 2016.

That visit is where the two spoke about the prosecutor’s comment. Brian did

not believe this statement had any relevance at the time he heard it. Maxwell

testified that he never heard this information before that meeting.

      After accepting the testimony of Brian and Maxwell, Judge Evans found

jurisdiction because Maxwell had established the applicability of the newly-

discovered fact exception to the PCRA’s timeliness requirement. He issued

the following order:

      AND NOW, this 26th day of September, 2017, following an
      evidentiary hearing on the PCRA jurisdictional requirements held
      on May 15, 2017, and upon consideration of the Commonwealth’s
      memorandum         opposing      PCRA       jurisdiction,   and
      Defendant’s/Petitioner’s response to the Commonwealth’s
      memorandum, it is hereby ORDERED that the jurisdictional
      requirements have been met.          This Court shall make a
      determination on the merits of the issues set forth in
      Defendant’s/Petitioner’s PCRA petition.

      However, due to the fact that the prosecutor in Maxwell’s case was

Richard Lewis, who was then the President Judge of Dauphin County, Judge

Evans recused himself as well as the rest of the Court of Common Pleas of

Dauphin County bench.      An out-of-county judge, the Honorable John L.


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Braxton, Senior Judge, was appointed to hold the substantive PCRA

evidentiary hearing where Maxwell was to be given a chance to prove the

merits of his 42 Pa.C.S. § 9543(a)(2)(i) claim.

      At that hearing, President Judge Lewis, Brian Maxwell and Christine

Arnold (the widow of the victim) testified. Instead of explicitly ruling on the

merits of the claim, Judge Braxton issued a Notice of Intent to Dismiss on

jurisdictional grounds. Judge Braxton set forth his belief that the recusal of

Judge Evans and the bench of Dauphin County rendered Judge Evans’

jurisdictional order “void.” Judge Braxton then determined that Brian was not

credible and that Maxwell did not present a “fact” to support a claim of newly-

discovered evidence.    Following a response from Maxwell, Judge Braxton

dismissed the PCRA petition on May 18, 2018, and this appeal followed.

      Maxwell contends that the coordinate jurisdiction rule barred Judge

Braxton from revisiting Judge Evans’ holding that the court possessed

jurisdiction over the petition. This issue is important because in reviewing the

grant or denial of PCRA relief, the PCRA court’s credibility determinations are

binding on this Court, although we apply a de novo standard of review to the

PCRA court’s legal conclusions. See Commonwealth v. Burton, 158 A.3d

618, 627 (Pa. 2017).      Judge Evans obviously found Maxwell and Brian

credible; otherwise, Judge Evans would have simply issued the same notice

of intent to dismiss as issued by Judge Braxton.




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      Our Supreme Court has described the coordinate jurisdiction rule as

follows:

      Generally, the coordinate jurisdiction rule commands that[,] upon
      transfer of a matter between trial judges of coordinate jurisdiction,
      a transferee trial judge may not alter resolution of a legal question
      previously decided by a transferor trial judge. More simply stated,
      judges of coordinate jurisdiction should not overrule each other’s
      decisions.

      The reason for this respect for an equal tribunal’s decision ... is
      that the coordinate jurisdiction rule is based on a policy of
      fostering the finality of pre-trial applications in an effort to
      maintain judicial economy and efficiency. Furthermore, ... the
      coordinate jurisdiction rule serves to protect the expectations of
      the parties, to [e]nsure uniformity of decisions, to maintain
      consistency in proceedings, to effectuate the administration of
      justice, and to bring finality to the litigation.

Zane v. Friends Hospital, 836 A.2d 25, 29 (Pa. 2003) (citations modified;

internal quotation marks omitted). See also Mariner Chestnut Partners,

L.P. v. Lenfest, 152 A.3d 265 (Pa. Super. 2016).

      While the coordinate jurisdiction rule does not normally preclude a later

judge from deciding jurisdiction based on settled facts, Cobbs v. SEPTA, 985

A.2d 249, 254 (Pa. Super. 2009), the doctrine does preclude a later judge

from making different credibility findings that led the first judge to find

jurisdiction. Judge Braxton had no license to revisit those findings and they

cannot be swept aside with a conclusion that the order was somehow “void.”

      In this case, the parties agreed before Judge Evans that the matter was

to be bifurcated, first jurisdiction, and if jurisdiction was found, then the merits

of the PCRA claim.      A hearing was held limited to the jurisdiction issue.


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Necessarily finding Maxwell and Brian credible, Judge Evans found that

Maxwell met the Section 9545(b)(1)(ii) standard because Brian only told him

about this information in July 2016 during their first one-on-one meeting, and

this petition was filed August 20, 2016, there was not a lack of due diligence

on Maxwell’s part in filing the petition.

       Judge Braxton was not charged with determining jurisdiction because

Judge Evans had already made that determination.         Judge Braxton was

charged with a completely different undertaking.       He had to determine

whether Maxwell made out a claim under 42 Pa.C.S. § 9543(a)(2)(i). While

he was free to make a determination that no Batson claim was made out

because Brian was not credible in saying he heard then-District Attorney Lewis

make the comments at issue, he was not free to change the determination

made by Judge Evans in his separate inquiry that Maxwell credibly testified

that Brian did not tell him about those comments until 2016.

       Because we have found that the coordinate jurisdiction rule precluded

Judge Braxton from reversing Judge Evans’ jurisdiction determination, we

vacate Judge Braxton’s order and remand to the PCRA court to make a

determination whether Maxwell has made out the substance of his claim.5


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5 We need not address whether Judge Evan’s order finding jurisdiction was
erroneous because it is not a final appealable order since it did not finally
dispose of Maxwell’s PCRA petition. See Pa.R.Crim.P. 910 (“An order granting,
denying, dismissing, or otherwise finally disposing of a petition for post-



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       Order Vacated. Case Remanded. Jurisdiction relinquished.

       Judge McLaughlin joins the memorandum.

       Judge Olson files a dissenting memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/23/2019




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conviction collateral relief shall constitute a final order for purposes of
appeal.”).


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