J-S76004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JERMONT COX

                            Appellant                  No. 1671 EDA 2015


               Appeal from the PCRA Order Entered May 15, 2015
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0231601-1993


BEFORE: STABILE, DUBOW, JJ., and STEVENS, P.J.E.*

JUDGMENT ORDER BY STABILE, J.:                 FILED DECEMBER 23, 2016

        Appellant, Jermont Cox, appeals from the May 15, 2015 order

dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-456. We affirm.

        The facts and procedural history of this case and two related cases are

set forth at length in the PCRA court’s July 29, 2015 opinion. In summary,

this case involves the murder of Lawrence Davis, and it is one of three cases

in which Appellant was convicted of first-degree murder in the early 1990’s.

A trial court, sitting as fact finder, found Appellant guilty at the conclusion of

an October 29, 1993 bench trial and sentenced him to life in prison. This

Court affirmed the judgment of sentence and our Supreme Court denied
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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allowance of appeal on April 30, 1996.     Appellant filed the present PCRA

petition on June 28, 2013, approximately 17 years after the finality of his

judgment of sentence.    The present petition is therefore facially untimely

under § 9545(b)(1) and the PCRA court dismissed it for lack of jurisdiction.

Appellant argues the PCRA court has jurisdiction under § 9545(b)(1)(ii),

which provides an exception to the PCRA’s time bar where the petition is

based on previously unknown facts that the petitioner could not have

discovered through due diligence. Appellant relies on a new ballistics report

he obtained after a federal district court, by order of February 7, 2012,

permitted discovery of the Commonwealth’s ballistics evidence.

     Recently, in a related case involving the third victim, Terrance Stewart,

our Supreme Court held that Appellant did not act with due diligence by

waiting until 2010—the year he filed his federal habeas corpus petition—to

seek discovery of the Commonwealth’s ballistics evidence. Commonwealth

v. Cox, 146 A.3d 221, 230 (Pa. 2016). The Supreme Court wrote: “there is

no question that [Appellant] knew that more testing could be performed on




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the ballistics evidence at the time of trial in 1995.”   Id. at 231.    Given

Appellant’s lack of diligence, the Supreme Court ruled he cannot avail

himself of § 9545(b)(1)(ii). The Supreme Court’s analysis in Cox—based on

precisely the same ballistics evidence presently at issue—is controlling here.

We therefore affirm the PCRA court’s order.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/2016




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