from the PCRA Order March 12, 2018 In the Court of Common
Pleas of Philadelphia County Criminal Division at No(s):
BEFORE: BOWES, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
K. Diggs appeals from the order denying his petition filed
pursuant to the Post Conviction Relief Act
("PCRA"). Upon review, we affirm.
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 12th, she found her
daughter lying in a pool of blood. She immediately called the
police who arrived shortly thereafter. 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 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 (Pa.Super.
October 10, 2003) (unpublished memorandum at 1-2)
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 (1986).
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. 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,
685 A.2d 1041 (Pa.Super. 1996) (unpublished memorandum),
appeal denied, 698 A.2d 592 (Pa. 1997). The United
States Supreme Court denied certiorari on February
23, 1998. Diggs v. Pennsylvania, 522 U.S. 1123
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).
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
August 21, 2012, Appellant filed his second PCRA petition,
alleging that Miller v. Alabama, 567 U.S. 460
(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.
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 (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
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 ...