Commonwealth v. Diggs, 1000 EDA 2018

• Citation: 220 A.3d 1112
• Decision Date: 11 October 2019
• Docket Number: No. 1000 EDA 2018,1000 EDA 2018
• Parties: COMMONWEALTH of Pennsylvania v. Charles K. DIGGS, Appellant
• Court: Superior Court of Pennsylvania

220 A.3d 1112

COMMONWEALTH of Pennsylvania

v.Charles K. DIGGS, Appellant

No. 1000 EDA 2018

Superior Court of Pennsylvania.

Submitted June 24, 2019

Filed October 11, 2019

Adam J. Kelly, and Cheryl L. Sturm, Chadds Ford, for appellant.

Lawrence J. Goode, Assistant District Attorney, and Robert F. Petrone, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

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

OPINION BY BOWES, J.:

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 12^th, 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.

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, 839 A.2d 1151 (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 October 10, 2003) (unpublished memorandum at 1-2) (" Diggs I").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, 106 S.Ct. 1712, 90 L.Ed.2d 69 (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 , 454 Pa.Super. 702, 685 A.2d 1041 (1996) (unpublished memorandum), appeal denied , 548 Pa. 666, 698 A.2d 592 (1997). The United States Supreme Court denied certiorari on February 23, 1998. Diggs v. Pennsylvania , 522 U.S. 1124, 118 S.Ct. 1069, 140 L.Ed.2d 129 (1998).

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, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), applied to him. In 2015, Kelly Adams, Esquire entered her appearance on behalf of Appellant. On January 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, 83 S.Ct. 1194, 10 L.Ed.2d 215 (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 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 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 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 ...