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Commonwealth v. Diggs

Superior Court of Pennsylvania

October 11, 2019


          Appeal from the PCRA Order March 12, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0720791-1974



          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 12th, 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 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 October 10, 2003) (unpublished memorandum at 1-2) ("Diggs I").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 (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 Commonwealth v. Diggs, 685 A.2d 1041 (Pa.Super. 1996) (unpublished memorandum), appeal denied, 698 A.2d 592 (Pa. 1997).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 (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 (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 (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 ...

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