Commonwealth v. Maxwell

232 A.3d 739

COMMONWEALTH of Pennsylvania

v.Eric L. MAXWELL, Appellant

No. 997 MDA 2018

Superior Court of Pennsylvania.

Argued October 31, 2019

Filed: April 30, 2020

Kaitlyn S. Clarkson, Harrisburg, for appellant.

Ryan H. Lysaght, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.

BEFORE: BOWES, J., SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., DUBOW, J., KUNSELMAN, J., NICHOLS, J., and MURRAY, J.

OPINION BY OLSON, J.:

Appellant, Eric L. Maxwell, appeals from the May 23, 2018 order entered in the Criminal Division of the Court of Common Pleas of Dauphin County that dismissed as untimely his fourth petition filed pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541 - 9546. On appeal, Appellant asserts that he validly invoked the "newly-discovered" fact exception to the PCRA's time-bar found at 42 Pa.C.S.A. § 9545(b)(1)(ii) when his petition cited a July 9, 2016 statement by his brother, Brian Maxwell (Brian).¹ More precisely, Appellant contends that Brian's July 2016 statement constituted a new fact or a new theoretical variant of a previously raised Batson² challenge and, hence, was not a newly-willing or newly-discovered corroborative source of a previously raised claim, which we have held does not trigger the timeliness exception found at § 9545(b)(1)(ii). See Commonwealth v. Robinson , 185 A.3d 1055, 1064 n.4 (Pa. Super. 2018) (en banc ), appeal denied , 648 Pa. 278, 192 A.3d 1105 (2018). We reject Appellant's contention and affirm the dismissal of Appellant's fourth petition as untimely.

We summarized the facts underlying Appellant's convictions in our 1986 opinion addressing the claims Appellant raised on direct appeal.

On March 15, 1984, an unmasked gunman entered the Thrift Drug Store located on South 29th Street in Harrisburg[, Pennsylvania] and demanded money from the cashier, Shavona Mitchell. The cashier placed the cash drawer in a paper bag and handed the package to the gunman. The gunman departed from the store and walked along the front of the store toward the Weis Market, located adjacent to the store. Spencer W. Arnold, Jr., a security guard employed by the Thrift Drug Store was summoned by the clerk and he immediately gave chase to the gunman. Arnold apprehended the gunman and started to walk him back to the drug store. Approaching the store, the gunman grabbed Arnold, threw him against [a] fence, pulled out a gun and shot him.

The gunman ran to his car and drove from the Weis Market parking lot at a high rate of speed. The gunman, later identified as [Appellant], drove to his sister's house where several friends were gathered. These friends later drove [Appellant] to the York[, Pennsylvania] bus terminal where he boarded a bus bound for Baltimore[, Maryland]. At the Baltimore bus station[, Appellant] was placed into custody on unrelated firearm charges.

Commonwealth v. Maxwell , 355 Pa.Super. 575, 513 A.2d 1382, 1384 (1986), appeal granted , 513 Pa. 633, 520 A.2d 1384 (1987), appeal dismissed , 524 Pa. 53, 569 A.2d 328 (1989).

In November 1984, a jury found Appellant guilty of first-degree murder, robbery, and simple assault.³ Thereafter, the trial court imposed a life sentence without the possibility of parole for Appellant's first-degree murder conviction,⁴ along with two to five years’ incarceration for his remaining offenses. This Court affirmed Appellant's judgment of sentence on direct appeal. See Maxwell , 513 A.2d at 1384.

Subsequently, our Supreme Court granted allowance of appeal, Commonwealth v. Maxwell , 513 Pa. 633, 520 A.2d 1384 (1987), but thereafter dismissed further review after learning that Appellant escaped from confinement on August 20, 1989. See Commonwealth v. Maxwell , 524 Pa. 53, 569 A.2d 328 (1989) (per curiam ). Appellant did not seek review before the United States Supreme Court.

Appellant has actively pursued collateral relief in the many years since his judgment of sentence became final. On August 14, 1990, the PCRA court dismissed Appellant's first PCRA petition. This Court affirmed and our Supreme Court denied allowance of appeal. Commonwealth v. Maxwell , 413 Pa.Super. 641, 595 A.2d 192 (1991) (unpublished memorandum), appeal denied , 529 Pa. 618, 600 A.2d 534 (1991). On August 10, 1993, the United States District Court for the Middle District of Pennsylvania denied Appellant's petition for a writ of habeas corpus and the United States Court of Appeals for the Third Circuit dismissed his appeal. See Maxwell v. Domovich , 2012 WL 383669, *1 (M.D. Pa. Feb. 6, 2012) (describing the procedural posture of Appellant's habeas corpus claims). Thereafter, on September 20, 2001, the PCRA court dismissed a second PCRA petition filed by Appellant.⁵ This Court affirmed that dismissal. Commonwealth v. Maxwell , 832 A.2d 539 (Pa. Super. 2003) (unpublished memorandum). On March 4, 2004, the PCRA court dismissed Appellant's third PCRA petition. This Court affirmed and our Supreme Court denied allowance of appeal. Commonwealth v. Maxwell , 864 A.2d 580 (Pa. Super. 2004) (unpublished memorandum), appeal denied , 583 Pa. 661, 875 A.2d 1074 (2005).

On August 20, 2012, Appellant, acting pro se , filed this, his fourth, PCRA petition. Counsel was appointed and filed an amended petition on September 7, 2016. The petition alleged that Appellant was entitled to collateral relief because the prosecutor in 1984 violated Appellant's right to a fair and impartial jury when he intentionally excluded African-American jurors from the venire. See Amended PCRA Petition, 9/7/16, at para. 39.2.1; see also 42 Pa.C.S.A. § 9543(a)(2)(i) (PCRA petitioners eligible for collateral relief where they plead and prove by a preponderance of the evidence that their convictions arose from "[a] violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place[ ]").

Because Appellant filed his fourth petition so many years after his judgment of sentence became final, his counseled petition invoked the newly-discovered facts exception to the PCRA's time-bar found at 42 Pa.C.S.A. § 9545(b)(1)(ii). The newly-discovered fact alleged in Appellant's petition involved a July 9, 2016 meeting between Appellant and his brother, Brian. The visit occurred at SCI-Camp Hill and was said to be their first one-on-one visit in 32 years. During the visit, Brian recalled for Appellant overhearing the prosecuting attorney tell a police officer at the 1984 trial that he did not think there would be any African-Americans on the jury. See Amended PCRA Petition, 9/7/16, at para. 39.2.1.

The parties agreed to bifurcated proceedings. A jurisdictional hearing was to take place first, to be followed by a hearing on the merits in the event Appellant demonstrated the application of a timeliness exception. Pursuant to the parties’ agreement, the Honorable Scott A. Evans of the Dauphin County Court of Common Pleas convened an evidentiary hearing on May 15, 2017 at which Appellant and Brian testified. Brian testified that he largely stopped speaking with Appellant following his arrest for the instant offenses and did not visit him in the Dauphin County Prison while awaiting trial in 1984. After Appellant was convicted, Brian occasionally spoke to Appellant via telephone, but those conversations were kept short. Brian also testified that he, along with other family members, visited Appellant on two occasions more than two decades ago; however, Brian's first one-on-one visit with Appellant occurred on July 9, 2016. During this visit, the two spoke about the prosecutor's comment. Brian testified that that he did not believe this statement had any relevance when he heard it and Appellant testified that he never heard this information before the July 9, 2016 meeting.

Judge Evans credited the testimony offered by Brian and Appellant and concluded that Appellant pled and proved the application of the newly-discovered fact exception to the PCRA's timeliness requirement found at § 9545(b)(1)(ii). Thus, Judge Evans issued the following order:

AND NOW, this 26th day of September, 2017, following an evidentiary hearing on the PCRA jurisdictional requirements held on May 15, 2017, and upon consideration of the Commonwealth's memorandum opposing PCRA jurisdiction, and [Appellant's] response to the Commonwealth's memorandum, it is hereby ORDERED that the jurisdictional requirements have been met. [The PCRA court] shall make a determination on the merits of the issues set forth in [Appellant's] PCRA petition.

PCRA Court Order, 9/26/17.

Owing to the fact that the prosecutor at Appellant's 1984 homicide trial was The Honorable Richard Lewis, who was by now the President Judge of the Dauphin County Court of Common Pleas, Judge Evans sua sponte requested recusal from further proceedings for himself along with all other judges on the Court of Common Pleas of Dauphin County. As a result, the Administrative Office of Pennsylvania Courts assigned an out-of-county judge, the Honorable John L. Braxton, Senior Judge, to conduct the substantive PCRA evidentiary hearing where Appellant was to have an opportunity to prove the merits of his Batson claim under 42 Pa.C.S.A. § 9543(a)(2)(i).

Judge Braxton convened a hearing on January 31, 2018 at which President Judge Lewis, Appellant, Brian, and Christine Arnold (the victim's widow) testified. After the evidentiary hearing, both Appellant and the Commonwealth submitted briefs. Rather than adjudicating Appellant's Batson challenge under § 9543(a)(2)(i), Judge Braxton instead revisited the jurisdictional determination reached by Judge Evans. On March 27, 2018, Judge Braxton issued notice of his intent to dismiss Appellant's petition. See PCRA Court Order, 3/27/18. In an accompanying opinion, Judge Braxton explained that Appellant failed to plead and prove the applicability of the newly-discovered...