J-S37013-19

                               2019 PA Super 306


 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 CHARLES K. DIGGS                        :
                                         :
                   Appellant             :   No. 1000 EDA 2018

                Appeal from the PCRA Order March 12, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0720791-1974


BEFORE: BOWES, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

OPINION BY BOWES, J.:                              FILED OCTOBER 11, 2019

      Charles K. Diggs appeals from the order denying his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”). Upon review, we affirm.

      We previously summarized the relevant factual history of this case as

follows:

      On February 12, 1974, eighteen-year-old Linda DeBose was
      brutally stabbed to death in the basement of her home on Medary
      Avenue in Philadelphia. When Linda’s mother, Alice DeBose,
      returned home from work at approximately 11:20 pm on the
      evening of February 12th, she found her daughter lying in a pool
      of blood. She immediately called the police who arrived shortly
      thereafter.1 Linda DeBose was rushed to Albert Einstein Medical
      Center where she later died. Prior to her death, however, Linda
      was able to identify her attackers by name to both her mother and
      the police.


      1 Trial testimony revealed that Linda DeBose was stabbed
      approximately sixty-nine times in the throat, arms, and upper
      body, and she was left to die.
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       Within three hours of the murder, the Philadelphia police arrested
       Appellant’s co-conspirator, Louis Riggins. Appellant was arrested
       two years later in Chester, Pennsylvania, where he had been
       hiding under several assumed names. Subsequent to his arrest,
       Appellant was released on bail but again fled and eluded
       authorities for an additional two years. He was arrested again in
       Philadelphia on May 17, 1976.

Commonwealth v. Diggs, 570 EDA 2002 (Pa.Super. October 10, 2003)

(unpublished memorandum at 1-2) (“Diggs I”).

       In 1977, Appellant proceeded to a jury trial.          The jury convicted

Appellant of first-degree murder, criminal conspiracy, possession of an

instrument of crime, and prohibited weapons. In 1991, federal habeas corpus

relief was granted after it was determined that a prosecutor had systematically

excluded black venire persons from Appellant’s jury, in violation of Batson v.

Kentucky, 476 U.S. 79 (1986).

       A second jury trial was held in 1991, at which Ricardo Kelsey testified

that Appellant had confessed to participating in the murder while they were

incarcerated together.1       Appellant was convicted of the same crimes and

sentenced to life imprisonment.          On direct appeal, this Court affirmed the

judgment of sentence and the Supreme Court denied allowance of appeal.

Commonwealth v. Diggs, 685 A.2d 1041 (Pa.Super. 1996) (unpublished

memorandum), appeal denied, 698 A.2d 592 (Pa. 1997). The United States

Supreme Court denied certiorari on February 23, 1998.                   Diggs v.

Pennsylvania, 522 U.S. 1123 (1998).
____________________________________________


1The trial court granted a protective order with regard to Kelsey because
Appellant threatened to kill Kelsey if he testified at Appellant’s trial. PCRA
Court Opinion, 3/25/02, at 21.

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      Appellant filed a timely pro se PCRA petition, and counsel was appointed.

Multiple assignments, withdrawals of counsel, and amended PCRA petitions

followed. On January 8, 2002, the PCRA court dismissed Appellant’s PCRA

petition without a hearing, finding that all of his claims lacked merit.      On

appeal, we addressed Appellant’s newly-discovered evidence claim regarding

the PCRA court’s failure to grant a hearing concerning the affidavits of Charles

Giles and Timothy VanHook. Appellant asserted that the affidavits indicated

that Ricardo Kelsey had lied at trial about Appellant’s involvement in the

murder. Appellant’s appeal was unsuccessful as we agreed with the PCRA

court that neither affidavit specifically asserted that Kelsey lied.       When

affirming the trial court’s dismissal order, we also pointed out “that noticeably

absent is an affidavit from Kelsey indicating that he lied at trial.” Diggs I,

supra, (unpublished memorandum at 7).

      Appellant filed a petition for reconsideration, which we denied, and a

petition for allowance of appeal to the Supreme Court, which was granted.

The Supreme Court remanded the case to our Court with directions to address

the other thirteen issues raised by Appellant that we had found waived. Our

subsequent memorandum addressed the additional issues, and reaffirmed our

previous decision regarding Appellant’s newly-discovered evidence claim.

Commonwealth v. Diggs, 876 A.2d 461 (Pa.Super. 2005) (“Diggs II”).

      On August 21, 2012, Appellant filed his second PCRA petition, alleging

that Miller v. Alabama, 567 U.S. 460 (2012), applied to him. In 2015, Kelly

Adams, Esquire entered her appearance on behalf of Appellant. On January

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22, 2016, Appellant filed a pro se supplemental PCRA petition “putting the

court on notice” that he was gathering funds to investigate the blood, DNA,

and medical evidence which he thought would show that the victim’s dying

declaration never occurred.

      On September 7, 2016, counsel filed an amended petition alleging that

Appellant had uncovered notes of the medical examiner that contradicted the

victim’s dying declaration and that were withheld from the defense in violation

of Brady v. Maryland, 373 U.S. 83 (1963). The Commonwealth argued that

the petition should be dismissed as untimely because Appellant had failed to

plead a specific exception to the PCRA time bar. See Commonwealth’s Motion

to Dismiss, 11/8/16, at 1.      In response, Appellant issued a “Corrected

Amended Petition,” explaining that he had uncovered a new fact, which was

that the victim made her dying declaration at the hospital, rather than at home

like the victim’s mother had testified at trial. Also, Appellant claimed that he

could not have known these facts sooner since the Commonwealth withheld

the relevant portions of the medical examiner records from discovery in

violation of Brady.

      On January 15, 2017, Appellant filed a petition requesting permission to

add a new claim to his PCRA petition. In the supplement, Appellant alleged

an additional claim of after-discovered evidence in the form of a witness

recantation.   Specifically, Appellant said that Timothy VanHook had made

contact with Appellant in prison on November 19, 2016.           VanHook told

Appellant that Ricardo Kelsey had admitted to lying about Appellant’s

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involvement in the murder.           VanHook was one of the newly-discovered

witnesses in Appellant’s original PCRA petition filed ten years before, wherein

he also alleged that Ricardo Kelsey had lied at trial. Appellant requested more

time to investigate this new evidence. Appellant filed additional supplements,

attaching affidavits by inmates Timothy VanHook, Charles Giles, and William

Broxton, all who stated that Ricardo Kelsey admitted to them that he lied

during his trial testimony in this case.

       On April 10, 2017, Appellant filed another petition seeking to add a new

claim to his Amended PCRA petition. Therein, Appellant asserted that after

meeting with Appellant’s private investigator on January 28, 2017, Kelsey had

agreed to come forward to admit that he lied when he testified against

Appellant. In March of 2017, Kelsey met with Appellant’s investigator and

signed an affidavit to that effect, which was filed on May 14, 2017.       The

Commonwealth responded with a supplemental motion to dismiss, indicating

that it wanted a hearing, because it had obtained a competing affidavit from

Kelsey wherein he reaffirmed the validity of his trial testimony.          The

Commonwealth emphasized that despite its request for a hearing, it was not

conceding timeliness on either of Appellant’s issues.

       On November 8 and 27, 2017, the PCRA court held evidentiary hearings

on both of the after-discovered evidence claims.2 Appellant testified on his

____________________________________________


2 A review of the record reveals that there may have been additional dates
that this PCRA hearing was also held. However, no other transcripts have
been provided to this Court.

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own behalf and presented the testimony of his trial attorney, private

investigator, and three fellow inmates. Ricardo Kelsey testified that he never

recanted his trial testimony, but signed an affidavit generated by Appellant’s

investigator, which he did not read, after being repeatedly pursued by the

defense.    The Commonwealth put forth the testimony of the assistant

supervisor of the Philadelphia District Attorney’s Office, who explained the

office’s discovery procedures. Post-hearing briefs were filed and the PCRA

court dismissed Appellant’s petition on March 9, 2018. This appeal followed.

Both Appellant and the PCRA court complied with the mandates of Pa.R.A.P.

1925, and thus, this petition is properly before us.

      Appellant raises the following issues for our review:

      I.    Whether the PCRA court erred when it failed to consider all
            of the facts set forth in the trial transcript before denying
            the claim that the petitioner was prejudiced from the
            suppression of evidence material to the defense.

      II.   Whether the PCRA court erred when it did not grant a new
            trial based on the incredible testimony of the jailhouse
            informant.

Appellant’s brief at 2.

      We begin with the pertinent legal principles. Our “review is limited to

the findings of the PCRA court and the evidence of record” and we do not

“disturb a PCRA court’s ruling if it is supported by evidence of record and is

free of legal error.”     Commonwealth v. Rykard, 55 A.3d 1177, 1183

(Pa.Super. 2012).       Similarly, “[w]e grant great deference to the factual

findings of the PCRA court and will not disturb those findings unless they have

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no support in the record. However, we afford no such deference to its legal

conclusions.”   Id.   “[W]here the petitioner raises questions of law, our

standard of review is de novo and our scope of review is plenary.” Finally, we

“may affirm a PCRA court’s decision on any grounds if the record supports it.”

Id.

      Under the PCRA, any petition “including a second or subsequent petition,

shall be filed within one year of the date the judgment [of sentence] becomes

final[.]” 42 Pa.C.S. § 9545(b)(1). A judgment of sentence 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. § 9545(b)(3). The

PCRA’s timeliness requirements are jurisdictional in nature, and a court may

not address the merits of the issues raised if the PCRA petition was not timely

filed. Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017).

      The time bar can “only be overcome by satisfaction of one of the three

statutory exceptions codified at 42 Pa.C.S. § 9545(b)(1)(i)–(iii).” Id. The

three narrow exceptions to the one-year time bar are as follows: “(1)

interference by government officials in the presentation of the claim; (2)

newly-discovered facts; and (3) an after-recognized constitutional right.”

Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa.Super. 2012).

Additionally, a PCRA petitioner must present his claimed exception within sixty




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days of the date the claim first could have been presented. 3 42 Pa.C.S. §

9545(b)(2).

       The timeliness exception set forth at § 9545(b)(1)(ii) has two

components, which must be alleged and proven as an initial jurisdictional

threshold. Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super. 2015).

Namely, the petitioner must establish 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. See Commonwealth v. Bennett, 930 A.2d

1264, 1272 (Pa. 2007).          Due diligence demands that the petitioner take

reasonable steps to protect his own interests and explain why he could not

have learned the new facts earlier with the exercise of due diligence.

Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.Super. 2010).

       Once it is established that the PCRA court has jurisdiction over the claim,

the petitioner can present a substantive after-discovered evidence claim. See

42 Pa.C.S. § 9543(a)(2)(vi). In order to obtain relief on a substantive after-

discovered evidence claim, a petitioner must demonstrate 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



____________________________________________


3 As of December 24, 2018, 42 Pa.C.S. § 9545(b)(2) was amended to provide
that any PCRA petition invoking a timeliness exception must be filed within
one year of the date the claim first could have been presented. However, this
amendment does not apply to Appellant’s case, which arose before the
effective date of the amendment.

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cumulative; (3) it is not being used solely to impeach credibility; and (4) it

would likely compel a different verdict.   Commonwealth v. Washington,

927 A.2d 586 (Pa. 2007).     The substantive merits-based analysis is more

demanding that the analysis required by the “new facts” exception to establish

jurisdiction. See Bennett, supra at 395-96.

      In his first claim, Appellant challenges the PCRA court’s review of the

record when it dismissed his allegation of after-discovered evidence regarding

newly-discovered medical examiner records. The PCRA court held a hearing

on this issue, before concluding that the documents did not constitute after-

discovered evidence as Appellant had not shown due diligence or prejudice.

PCRA Court Opinion, 7/17/18, at 9-11.

      Despite the PCRA court’s failure to do so, we must discern whether we

have jurisdiction before proceeding to an analysis of the merits of Appellant’s

after-discovered evidence claim. Although facially untimely, Appellant pled a

newly-discovered fact exception in order to overcome the PCRA time bar. See

Corrected Amended Petition, 12/8/16, at ¶ 34; Response to Commonwealth’s

Motion to Dismiss, 2/8/17. In those filings, Appellant alleged that the medical

examiner records could not have been obtained sooner because he had no

reason to think that he did not have everything from that office already. Id.

The Commonwealth disagrees with Appellant’s circular reasoning, arguing that

if Appellant thought he had a complete report from the medical examiner’s




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office, he would have had no reason to subpoena it.          Commonwealth’s

Supplemental Motion to Dismiss, 7/31/17, at 6.

      A review of the PCRA hearing transcripts reveals that Appellant’s

allegation that he had no reason to think that there were any documents

outstanding from the medical examiner’s office is disingenuous, as the

existence of these documents was known to trial counsel at the time of trial.

Specifically, Appellant’s trial counsel testified that he was aware that such

documents existed at the time of Appellant’s trial and that he did not request

them because he “didn’t think there would be an issue pertaining to it.” N.T.

PCRA Hearing, 11/8/17, at 15-18.

      Also, reasonable investigation could have uncovered the outstanding

medical records many years sooner. As the PCRA court concluded, given that

trial counsel was aware of the existence of these documents, and PCRA

counsel obtained them by directing a subpoena to the medical examiner’s

office, “trial counsel had the ability to subpoena the aforementioned

documents from the Office of the Medical Examiner prior to trial, but did not.”

PCRA Court Opinion, 7/17/18, at 11. Appellant has shown us nothing that

counters the veracity of that finding. More importantly, Appellant offers no

explanation as to why he could not have discovered the documents years

earlier simply by serving the subpoena he waited until 2016 to pursue.

Therefore, since we can affirm on any basis supported by the record, we find




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that Appellant has failed to meet the newly-discovered fact exception to the

time-bar, and thus his petition is not timely filed.4

       Next, Appellant argues that the PCRA court erred when it did not grant

him a new trial because Ricardo Kelsey lied when he testified that Appellant

had confessed his involvement in the murder. Appellant’s brief at 11. Again,

the PCRA court failed to conduct a jurisdictional timeliness analysis, before

proceeding substantively. However, in its analysis of the first issue, the PCRA

court implicitly found that the newly-discovered fact requirements necessary

to establish jurisdiction were met here, when it made a credibility

determination regarding the Ricardo Kelsey affidavit and testimony.           The

parties do not dispute this jurisdictional finding.     From our review of the

record, we conclude that Appellant timely pled his newly-discovered fact of

Ricardo Kelsey’s alleged recantation for purposes of the timeliness exception

in 42 Pa.C.S. § 9542(b)(1)(ii) and the PCRA court had jurisdiction to reach the

merits.




____________________________________________


4 Even if Appellant had met the time bar requirements, he would not be
entitled to relief on his substantive claim. Appellant challenges the PCRA
court’s review of the record, specifically the 1991 trial transcript. However,
he has failed to ensure that the trial transcripts were part of the record for our
review. Without that transcript, we would be unable to consider his claim and
would be forced to find it to be waived. See Commonwealth v. Houck, 102
A.3d 443, 456 (Pa.Super. 2014) (providing waiver under Rule 1911
appropriate where issues “cannot be resolved in the absence of necessary
transcript.”).

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      The PCRA court found the affidavit to be “wholly lacking in credibility”

when balanced against Kelsey’s testimony at the evidentiary hearing. PCRA

Court Opinion, 7/17/18, at 6.     We agree.     In the 1990s, Ricardo Kelsey

contacted the police and told them that Appellant had confessed to him his

involvement in the murder of the victim. N.T. PCRA Hearing, 11/8/17, at 66.

After the court issued a protective order, Kelsey testified against Appellant at

the 1991 trial. Id. at 76-77. In his first PCRA petition, Appellant litigated a

claim that Kelsey lied based on other inmates’ interactions with Kelsey. That

claim was dismissed, in part because Kelsey never indicated that he wished

to recant his trial testimony.    At the PCRA hearing, Appellant’s private

investigator detailed the lengths he went to obtain Kelsey’s cooperation,

admitting to making “a half dozen calls” to Kelsey before he finally agreed to

make a statement. N.T. PCRA Hearing, 11/27/17, at 19. Kelsey testified that

he signed the affidavit at the insistence of the investigator and never said

anything that was in it, because his original statement and trial testimony was

true. N.T. PCRA Hearing, 11/8/17, at 66-78.

      Viewing the affidavit in the context of the larger record, where Kelsey

has been consistent in his testimony despite repeated pressure from others

on Appellant’s behalf, the PCRA court credited Kelsey’s PCRA hearing

testimony. PCRA Court Opinion, 7/17/18, at 6. The certified record supports

the PCRA court’s findings. Thus, we discern no abuse of discretion in the PCRA




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court’s denial of this claim for relief. Accordingly, we affirm the PCRA court’s

order dismissing the PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/19




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