New Evidence After a Remand

I am currently litigating an interesting PCRA issue relative to the proper manner of handling claims concerning after-discovered evidence and newly-discovered facts following an appellate court remand. In a published decision, the Pennsylvania Superior Court remanded my case (prior to my involvement) to the Court of Common Pleas for an evidentiary hearing and discovery proceedings on a newly-discovered fact timeliness claim and its related after-discovered evidence issue. Upon remand, I was retained. My client after the remand but before my entry of appearance had been able to obtain two witness statements--one from the key eyewitness and another from his acquitted co-defendant.

One of the statements was a recantation, in which the eyewitness acknowledged that he had only identified my client as the culprit based on pressure from the police. Indeed, there was no dispute at the original trial that the witness had been physically beat up by local police and arrested for the crime. By way of background, the crime was the killing of a local police officer. Within less than a half an hour, the eyewitness, who was 19, was arrested for the killing, beaten up, threatened and repeatedly told to identify my client. After approximately a month of not identifying my client, and facing the death penalty, the witness acquiesced and claimed that my client had shot the police officer twice in the head. The witness it should be noted had poor vision and the shooting happened at night. The charges were, of course, dropped against him.

The jury acquitted my client's co-defendant and convicted my client of third-degree murder after four days of deliberations--an obvious compromise verdict. The eyewitness's new statement was that he did not see my client commit the crime. The co-defendant, who had been a juvenile, and also under pressure had told police that my client had killed the officer, but did not testify at trial, recanted. Importantly, during the original trial the co-defendant's statement was introduced under Bruton, but the Commonwealth had eviscerated that minimal protection when it showed the jury a diagram of the area of the crime based on the co-defendant's statements wherein it included my client's initials and where he was allegedly at. Over objection, a mistrial was denied and that issue was unsuccessful on direct appeal.

With these two recantations in hand, I filed an amended PCRA petition alleging these newly-discovered facts as additional claims from the other issue related to the Superior Court's remand and submitted a brief in support of the petition. I noted (and cited) that in unpublished Superior Court decisions that court had concluded that it is proper to hear timeliness exception related claims after a remand on a separate issue, but in a minority of unpublished decisions determined that the new claims had to wait until after completion of the litigation of the remanded claim(s).

The PCRA court in my case has declined to conduct a hearing on the new claims. Accordingly, I requested that it amend that Order to include the necessary language to file an interlocutory appeal by permission. If the Court grants that request then I can file an interlocutory appeal by permission, which the Superior Court still has discretion not to hear. However, if the PCRA court denies my request then I have to file a Petition for Review with the Superior Court.

My position is that, under the language of the statute, a petitioner must raise the issue within sixty days of learning of the facts, unless the case is pending on appeal. Further, in my view, it is nonsensical to require a petitioner to litigate the remanded case and then, if not successful, file a new petition within sixty days of completion of that case. This can result in one case proceeding in federal court under the federal habeas statute while at the same time litigating other issues in state court. Why prosecutors and state courts would not wish to consolidate and consider all of the issues together is an interesting question.

The Pennsylvania Supreme Court has held that, in a timely PCRA matter, one cannot raise new claims after a remand--but those were issues that could have been raised prior to the appeal and remand. That is, they were not after-discovered evidence or newly-discovered fact issues. In the situation where the claims are not based on after-discovered evidence or a timeliness exception, the issue is generally waived if it was not raised before the PCRA court. Thus, precluding raising such new issues on remand is sound. However, that rationale does not apply where after-discovered evidence has been uncovered or a new constitutional ruling has been handed down.

The Pennsylvania Supreme Court has also held, in a case that did not involve a remand, that filing an Atkins claim and then filing a Brady claim resulted in two separate ongoing petitions and denial of one of the claims was still a final order for purposes of appeal. While I believe that ruling was erroneous, even viewing it as correct, it is not binding in the scenario presented in my case.

The issue will be interesting moving forward, especially in light of the Superior Court's internal operating procedure that instructs appellants not to rely on non-precedential opinions.