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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________


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
____________________________________________


       (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




____________________________________________


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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