J-S58006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 CORNELL POINDEXTER                        :
                                           :
                    Appellant              :   No. 100 WDA 2019

          Appeal from the PCRA Order Entered December 11, 2018
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0010211-2014


BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.

MEMORANDUM BY PANELLA, P.J.:                        FILED JANUARY 6, 2020

      Cornell Poindexter appeals from the order entered in the Allegheny

County Court of Common Pleas, which denied as untimely his first petition

filed pursuant to the Post Conviction Relief Act (“PCRA”). See 42 Pa.C.S.A. §§

9541-9546. Poindexter asserts that his facially untimely PCRA petition was

entitled to review under the newly discovered fact exception to the PCRA’s

time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(ii). We conclude that the PCRA court

was correct in its determination that Poindexter was not entitled to relief and

affirm.

      Poindexter was initially charged with various offenses stemming from a

shooting at a Pittsburgh nightclub. While at first another individual was

charged with those crimes, additional evidence ended up exonerating that

individual and correspondingly implicating Poindexter. The additional evidence

consisted of surveillance video as well as identification by one of the victims.
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       On March 21, 2016, Poindexter entered a negotiated plea, wherein he

pleaded guilty to: one count of third degree murder, see 18 Pa.C.S.A. §

2502(c), four counts of aggravated assault, see 18 Pa.C.S.A. § 2702(a)(1),

and one count of possession of a firearm – prohibited, see 18 Pa.C.S.A. §

6105(a)(1). Pursuant to this plea, Poindexter received fifteen to thirty years

of imprisonment for the third degree murder conviction and concurrent

sentences of five to ten years of imprisonment for each for the other five

offenses.

       Poindexter did not file a post-sentence motion nor did he file a direct

appeal. Poindexter’s instant PCRA petition was filed pro se on April 9, 2018,

and a counseled, amended petition was subsequently filed. After an

evidentiary hearing, the PCRA court found Poindexter unable to surmount the

PCRA’s time-bar. Poindexter filed a timely notice of appeal, and the PCRA court

and Poindexter complied with the dictates of Pa.R.A.P. 1925.1

       Poindexter raises one issue for our review:

       1) Did the PCRA court err as a matter of law in denying
          Poindexter’s petition for post-conviction relief when it
          determined that his plea was not constructively involuntary?

See Appellant’s Brief, at 4, 8.



____________________________________________


1 While Poindexter’s 1925(b) statement of matters complained of on appeal
appears to have been submitted one day later than the date set by the PCRA
court, the PCRA court identifies that “the delay was caused by difficulties,”
PCRA Court Opinion, 6/25/19, at 2, between PCRA counsel and Poindexter and
has accepted Poindexter’s submission nunc pro tunc.

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      Our standard of review is well settled: “[w]hen reviewing the denial of

a PCRA petition, we must determine whether the PCRA court’s order is

supported by the record and free of legal error.” Commonwealth v. Smith,

181 A.3d 1168, 1174 (Pa. Super. 2018) (citation omitted). While we generally

are bound by a PCRA court’s credibility determinations, we apply a de novo

standard to our review of the court’s legal conclusions. See id.

      The PCRA also contains explicit time limitations on petition review.

      A PCRA petition, including a second or subsequent one, must be
      filed within one year of the date the petitioner’s judgment of
      sentence becomes final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
      judgment becomes final at the conclusion of direct review by this
      Court or the United States Supreme Court, or at the expiration of
      the time for seeking such review. The PCRA’s timeliness
      requirements are jurisdictional; therefore, a court may not
      address the merits of the issues raised if the petition was not
      timely filed. The timeliness requirements apply to all PCRA
      petitions, regardless of the nature of the individual claims raised
      therein. The PCRA squarely places upon the petitioner the burden
      of proving an untimely petition fits within one of the three
      exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (internal citations

and footnote omitted).

      As Poindexter sought no further review of his judgment of sentence, it

became final thirty days later, on April 20, 2016. See Pa.R.A.P. 903. As a

result, his petition, filed approximately two years later, is facially untimely.

Therefore, absent Poindexter demonstrating the applicability of an exception,

the courts lack the jurisdiction to consider the merits of his petition.

      The PCRA provides three exceptions to its time bar:

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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). A petitioner asserting one of these

exceptions must file a petition within one year or, in some circumstances, sixty

days of the date the claim could have first been presented, predicated on when

the claim specifically arose. See 42 Pa.C.S.A. § 9545(b)(2).2 Further,

exceptions to the time-bar must be pled in the petition and may not be raised

for the first time on appeal. See Commonwealth v. Burton, 936 A.2d 521,

525 (Pa. Super. 2007).

       Poindexter contends review of his claim is warranted because he has

pled and proved an exception to the PCRA’s one-year time-bar in his petition.

Specifically, he asserts he meets the requirements of 42 Pa.C.S.A. §

9545(b)(1)(ii), i.e., the newly discovered fact exception to the PCRA’s time-


____________________________________________


2On October 24, 2018, our General Assembly amended section 9545(b)(2),
extending the time for filing a petition from sixty days to one year from the
date the claim could have been presented. See 2018 Pa. Legis. Serv. Act
2018-146 (S.B. 915), effective December 24, 2018. The amendment applies
only to claims arising one year before the effective date of this section,
December 24, 2017, or thereafter.

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bar.

       The newly discovered fact exception has two components which must

be alleged and proved. The petitioner must establish that: 1) the facts upon

which the claim was predicated were unknown; and 2) those facts could not

have been ascertained by the exercise of due diligence. See Commonwealth

v. Burton, 158 A.3d 618, 638 (Pa. 2017). Additionally, “[t]he focus of the

exception is on the newly discovered facts, not on a newly discovered or newly

willing source for previously known facts.” Commonwealth v. Marshall, 947

A.2d 714, 720 (Pa. 2008) (citation omitted) (emphasis in original).

       Due diligence requires the petitioner “take reasonable steps to protect

his own interests.” Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.

Super. 2010) (citation omitted). However, it does not require “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. Shiloh, 170 A.3d

553, 558 (Pa. Super. 2017) (citation omitted). As such, “the due diligence

inquiry is fact-sensitive and dependent upon the circumstances presented.”

Id. (citation omitted). “A petitioner must explain why he could not have

obtained the new fact(s) earlier with the exercise of due diligence.” Monaco,

996 A.2d at 1080 (citations omitted).

       Poindexter asserts that, on February 5, 2018, he was reading a local

newspaper, which contained a story revealing “that the lead investigator in


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his case, County Police Homicide Detective Margaret ‘Peggy’ Sherwood, had

been indicted by a grand jury with numerous and various allegations of

witness tampering, assorted perjury and unsworn falsifications alike, evidence

tampering, [etc.]” Appellant’s Brief, at 7. Further, the newspaper story

allegedly set forth that these charges stemmed from actions “committed

during the performance of her official duties.” Id. Poindexter also alleges that

the story indicated a criminal complaint against Sherwood was filed on January

26, 2018, with her preliminary hearing scheduled for February 20.

      The PCRA court found Poindexter incapable of surmounting the PCRA’s

time-bar because his petition “was not filed within 60 days of the date” he

could have presented a claim of newly discovered evidence. Trial Court

Opinion, 6/25/19, at 6. The PCRA court determined that, because his trial

counsel filed a motion in limine seeking information related to Sherwood on

August 5, 2015, prior to Poindexter’s plea agreement, he “was aware of

alleged improprieties relating to Detective Sherwood’s official duties” at that

point. Id., at 6-7.

      We conclude that the content of Poindexter’s motion in limine was of a

distinct enough nature so as not to constitute an already known fact when

compared to the at-issue newspaper article and underlying criminal complaint.

Poindexter’s motion, in part, stated that Sherwood was, at that point, being

investigated by Pittsburgh’s Office of Municipal Investigations due to the way

she conducted a photo array in a homicide case sent to a grand jury. See


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Appellee’s Brief, at 15. As such, the motion sought disclosure of why Sherwood

had been placed on administrative leave, but did not suggest or identify

anything of a criminal nature. See id., at 16.

       Conversely, the recent newspaper article depicted accusations of her

criminality, evinced by charges contained within a criminal complaint,

stemming from an unpublicized state grand jury investigation. Given the

disparate nature of this grand jury indictment to that of an administrative

proceeding, we find that the facts surrounding Sherwood’s alleged criminality

were not previously known to Poindexter.

       In addition, the PCRA court opined that “there is no question that

minimal diligence would have uncovered the public filing of the criminal

charges on January 29, 201[8], and the media coverage of those charges as

late as February 2, 201[8].” Trial Court Opinion, 6/25/19, at 7. The PCRA court

suggests that Poindexter’s April 9, 2018 PCRA petition was untimely, as he

had, at the latest, sixty days from the date the newspaper story was

published. See id., at 8.

       Here, the “fact” proffered by Poindexter is the criminal charges that were

filed against Sherwood.3 Poindexter could have learned about this event, at

____________________________________________


3 While Poindexter may have learned about the charges filed against Sherwood
in a newspaper, he is relying on the charges that were actually filed, rather
than the contents of the article, to establish a newly discovered fact. This
distinction sets it apart from Commonwealth v. Castro, 93 A.3d 818, 820,
827 (Pa. 2014), which featured an individual attempting to use a newspaper



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the absolute earliest, on January 29, 2018, which was the unsealing date of

the criminal complaint filed by the Pennsylvania Attorney General’s office.

       Under a recent amendment, section 9545(b)(2) gives petitioners one

year from the date the claim could have been presented to invoke a PCRA

time-bar exception if such a claim arose on December 24, 2017, or later. See

42 Pa.C.S.A. § 9545(b)(2). Prior to the amendment, a petitioner was required

to file a petition within sixty days of the date he learned of the facts used to

establish the exception.

       We are cognizant that while October 24, 2018, was the passage date of

the amendment to 42 Pa.C.S.A. § 9545(b)(2), its effective date was December

24, 2018. As such, the amendment’s effective date came some eight months

after Poindexter filed his PCRA petition. More importantly, the PCRA court’s

December 1, 2018 order denying Poindexter’s petition was entered between

the passage date and the effective date.

       Unless clearly and manifestly intended by our General Assembly, we are

not to interpret a statute to be retroactive. See 1 Pa.C.S.A. § 1926. However,

“legislation concerning purely procedural matters, not substantive matters,

may be applied to litigation existing at the time of passage as well as litigation

commenced after its passage.” Commonwealth v. Estman, 868 A.2d 1210,


____________________________________________


article detailing the investigation of an officer for corruption and falsification
of evidence in another case. However, in Castro, there were, at that point,
“no charges filed.” Id., at 827.


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1212 (Pa. Super. 2005). “As a general rule, substantive law is that part of the

law which creates, defines and regulates rights, while procedural laws are

those that address methods by which rights are enforced.” Id. (citation

omitted). This Court has previously held that a court may retroactively apply

a procedural statute prior to its effective date. See George v. Ellis, 911 A.2d

121, 126 (Pa. Super. 2006).

      Here, the section 9545(b)(2) amendment provides for an expansion of

time, from sixty days to one year, of the date the claim could have been

presented. Neither of the parties has specifically briefed the issue of

retroactive application of amendment to section 9545(b)(2). Given that we

ultimately find Poindexter to be due no relief, we assume without actually

deciding that the amendment is procedural in nature and therefore applicable

retroactively.

      Taking everything into consideration, we find that Poindexter has

demonstrated that: 1) until reading the newspaper article, it was unknown to

Poindexter that criminal charges would be filed against Sherwood; and 2) no

amount of due diligence would have unearthed information associated with

the grand jury investigation and the criminal charges filed against Sherwood

until January 29, 2018 at the earliest. Therefore, Poindexter’s petition, filed

just over two months later on April 9, 2018, established the applicability of

the newly discovered fact exception. We proceed to discuss the merits of

whether Sherwood’s indictment constitutes after-discovered evidence.


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      To establish a right to relief on a theory of after-discovered evidence,

Poindexter would have to demonstrate that the evidence:

      (1) could not have been obtained prior to the conclusion of the
      trial by the exercise of reasonable diligence; (2) is not merely
      corroborative or cumulative; (3) will not be used solely to impeach
      the credibility of a witness; and (4) would likely result in a different
      verdict if a new trial were granted.

Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008) (citation omitted).

The after-discovered evidence test is conjunctive, meaning that a failure to

establish one prong is a failure of the entire test. See id. Moreover, after-

discovered evidence requires the petitioner to prove all four prongs by a

preponderance of the evidence. See Commonwealth v. Foreman, 55 A.3d

532, 537 (Pa. Super. 2012).

      Given our prior discussion, we assume that Poindexter has met prongs

one and two, concluding that he could not have obtained information about

the Sherwood criminal complaint prior to the acceptance of his plea agreement

and that the evidence of the Sherwood complaint is not merely corroborative

or cumulative. As to the third prong, Poindexter avers that the evidence is not

being used solely to impeach the credibility of Sherwood as “the evidence may

be used to attack the veracity of … Sherwood’s warrant(s), and by direct

extension, much of the evidence surrounding … Poindexter’s arrest.”

Appellant’s Brief, at 10. Poindexter continues by stating that he would use

“this evidence to determine if … Sherwood may also have made false claims

or performed other corrupt acts in procuring the identification of …


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Poindexter,” id., at 11, and he could further “use the evidence to file a motion

to suppress the evidence recovered from the poisoned fruits of the …

identification of … Poindexter,” id.

      In support of establishing the fourth prong, Poindexter proclaims that a

different verdict would have likely resulted if a new trial were granted because

Sherwood “engaged in a pattern of fabricating statements …, [which] would

profoundly influence the judgment of the [t]rial [c]ourt on crucial rulings of

law” and the perceptions of the fact finders. Id.

      We are cognizant that because Poindexter entered into a plea

agreement, the analysis is of a somewhat different nature than if there had

been a trial. However, in reaching its decision, the PCRA court found that the

information contained within Sherwood’s criminal complaint would be: 1)

exclusively used to impeach her, as the allegations of her misconduct could

not be used for anything else under the circumstances; 2) there is no

indication that Sherwood would have testified in this matter, rendering her

actions essentially irrelevant to the Commonwealth’s case; and 3) a positive

identification of Poindexter came from sources other than Sherwood,

establishing no likelihood of a different verdict had this case gone to trial. See

Trial Court Opinion, 6/25/18, at 9.

      We perceive no abuse of discretion or error of law contained within the

PCRA court’s determinations on the merits of Poindexter’s after-discovered

evidence claim. See Commonwealth v. Reese, 663 A.2d 206, 209 (Pa.


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Super. 1995). First, it is unclear how the criminal complaint or anything

derived from its filing could be used for anything other than impeachment

purposes. As Poindexter concedes, he intends to use this evidence to

determine if Sherwood made false claims to compel Poindexter’s identification.

See Appellant’s Brief, at 11.

      While Poindexter does suggest, in one citation-less sentence, that the

Sherwood complaint could somehow be used to suppress evidence recovered

in his case, it is unclear how he could accomplish this. The allegations

contained within criminal charges against Sherwood have at most a tangential

connection to Poindexter’s case, especially given the fact that he pled guilty.

We find Poindexter’s suppression suggestion too attenuated to justify any

form of relief.

      Second, and more importantly, it is not reasonable to believe that the

outcome of the “trial” would have ended differently had any of these

allegations about Sherwood been known prior to Poindexter’s plea agreement.

At the plea agreement hearing, the Commonwealth stated that it would have

presented a number of testifying witnesses. See N.T., Plea Agreement

Hearing, 4/26/16, at 9. One of the shooting victims positively identified

Poindexter from a photo array. See id., at 14. Further, a detective that was

not Sherwood “immediately recognized” Poindexter based on a prior arrest.

Id. Additionally, the Commonwealth asserted that the surveillance video

showed the shooter wearing the exact same clothing as Poindexter. See id.,


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at 11. None of the facts identified by the Commonwealth in its summary at

the plea agreement hearing mention Sherwood’s name or even implicitly rely

upon her. Accordingly, there is simply no basis to conclude that unrelated

criminal charges, absent anything more, could form the basis to make it

reasonably likely that the verdict, or Poindexter’s decision to plead guilty,

would have been different had Poindexter known of them.

      While Poindexter’s brief also suggests that, outside of the specific

context of the Sherwood criminal complaint, his plea was involuntarily entered

and additionally that trial counsel was somehow ineffective, see Appellant’s

Brief, at 10, 12, he has failed to either develop these arguments or provide

any authority to support his contentions. Accordingly, these issues are waived.

See Commonwealth v. B.D.G., 959 A.2d 362, 371-72 (Pa. Super. 2008)

(identifying that failure to cite any authority leads to waiver of a claim). “In

an appellate brief, parties must provide an argument as to each question,

which should include a discussion and citation of pertinent authorities. . . .

When an appellant fails to develop his issue in an argument and fails to cite

any legal authority, the issue is waived.” Id. (citations omitted

      As we have found no merit to Poindexter’s sole issue raised on appeal,

we affirm the PCRA court’s order dismissing his petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/6/2020




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