Com. v. Coon, E. ( 2022 )

J-S03043-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWARD COON :
:
Appellant : No. 518 WDA 2021
Appeal from the PCRA Order Entered January 13, 2021
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0002101-2012
BEFORE: LAZARUS, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: FEBRUARY 24, 2022
Edward Coon (Coon) appeals from the order denying his second petition
filed pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-
9546, in the Court of Common Pleas of Erie County (PCRA court). He claims
that the after-discovered facts exception to the PCRA was applicable because
the affidavit of David Bates established that the seized drugs supporting his
conviction did not belong to him. We affirm.
We take the following pertinent factual background and procedural
history from the PCRA court’s December 22, 2020 opinion and our
independent review of the record.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S03043-22
I.
In April 2011, Erie police were investigating Coon’s involvement in
narcotics distribution. Upon executing a search warrant of his residence,
police discovered and seized cocaine and charged him with Possession with
Intent to Deliver, Possession of a Controlled Substance and Possession of
Paraphernalia.1 (See Commonwealth v. Coon, 2020 WL 113954,
unpublished memorandum, at *1 (Pa. Super. filed Jan. 9, 2020)).2 On
February 11, 2014, a jury convicted Coon of all charges, and on April 2, 2014,
the court sentenced him to an aggregate term of incarceration of not less than
84 nor more than 168 months.
On March 13, 2018, Coon filed his first PCRA petition in which he alleged
ineffective assistance of trial counsel for his failure to request suppression of
the search warrant for his residence at 648 East 24th Street, Erie,
Pennsylvania, on the basis that the search warrant was illegal. Appointed
counsel filed a “no merit” letter in which he concluded that the petition was
untimely with no applicable timeliness exception. After sending Rule 907
notice of its intent to dismiss the petition without a hearing, see Pa.R.Crim.P.
____________________________________________
1 35 P.S. § 780-113(a)(30), (16), (32).
2 At the time of the investigation and arrest herein, Coon also was arrested
for firearms offenses of which a jury acquitted him. Coon appealed the denial
of a motion for return of property in that related case that this Court affirmed
on January 9, 2020.
-2-
J-S03043-22
907(1), the court dismissed the petition on September 27, 2018. Coon did
not appeal.
On February 14, 2020, Coon filed his second PCRA petition. In the
petition, Coon alleged for the first time that the seized narcotics were not his.
(See PCRA Court Opinion, 12/22/20, at 6). The PCRA court explained:
... [Coon] claim[ed] he “received newly-discovered facts in
the form of an affidavit wherein a David Bates indicates that on
May 23, 20111 [sic] Jaymar Phillips approached him seeking his
assistance to cook cocaine [and] any extra leftover the Affiant
would be able to keep.” PCRA, ¶ 11. [Coon] further assert[ed]
“[t]he Affiant David Bates declares in his affidavit that he knows
for a fact that … the seized drugs did not belong to [Coon] and
that he is willing to testify that the drugs did not belong to
[Coon].” PCRA, ¶ 16. In support, [Coon] attached a statement
by David R. Bates. PCRA, “Exhibit A.”
The essence of Mr. Bates’s statement is that “[on] 5-24-11
Jaymar Phillips” drove Mr. Bates to “24th off the corner of Reed”
and they “went into the house from the side door.” See PCRA,
Exhibit “A.” Mr. Bates and Jaymar Phillips then began “cooking
cocaine” and “broke Unc’s blender” so the two “decided to go to
Walmart to buy more baking soda and a new blender.” Id. When
they returned to “24th Street” they “seen cops every where [sic].”
Id. Mr. Bates concludes “That’s how I know for a fact that
work/half kilo wasn’t Edward Coon [sic].” Id.
(Id. at 5-6); (see also Coon’s Brief, at Appendix B).
On December 22, 2020,3 the PCRA court served Coon with Rule 907
notice, and on January13, 2021, it formally dismissed the petition. Coon
____________________________________________
3 On February 24, 2020, the PCRA court had entered an order dismissing
Coon’s petition on the erroneous basis that it lacked jurisdiction due to a
pending appeal. Coon filed an identical PCRA petition on March 30, 2020,
which the court dismissed on April 1, 2020. However, the appeal had been
-3-
J-S03043-22
timely appealed and complied with Rule 1925(b). See Pa.R.A.P. 1925(b). He
now argues to this Court that the court erred in denying his second PCRA
petition because he is entitled to the application of the after-discovered facts
exception based on Bate’s affidavit.4 (See Coon’s Brief, at 4, 7-8).
II.
Before considering the merits of Coon’s PCRA petition, we must first
determine whether the PCRA court properly found that it is untimely under
the PCRA’s jurisdictional time-bar. A PCRA petition, “including a second or
subsequent petition, shall be filed within one year of the date the judgment
becomes final.” 42 Pa.C.S. § 9545(b)(1). A judgment becomes final at the
conclusion of direct review, “including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3). Because
the timeliness requirements of the PCRA are jurisdictional in nature, courts
____________________________________________
filed at a different docket number and ,thus, dismissal for lack of jurisdiction
was improper. Upon realizing its error, the court rescinded its February 24 th
and April 1st orders and consolidated the two PCRA petitions, directing that
they be treated as filed on February 14, 2020.
4In reviewing the denial of PCRA relief, our standard of review is limited to
whether the record supports the PCRA court’s factual determinations and
whether its decision is free of legal error. See Commonwealth v. Lopez,
249 A.3d 993, 998 (Pa. 2021). We apply a de novo standard of review to the
PCRA court’s legal conclusions. See id.-4-
J-S03043-22
cannot address the merits of an untimely petition. See Commonwealth v.
Moore, 247 A.3d 990, 998 (Pa. 2021).
Coon’s judgment of sentence became final on May 2, 2014, when his
time to file an appeal to this Court expired. See 42 Pa.C.S. § 9545(b)(3).
Therefore, he had until May 2, 1015, to file a timely PCRA petition. See 42
Pa.C.S. § 9545(b)(1). Because Coon did not file the instant PCRA petition
until approximately five years later, on February 14, 2020, it is facially
untimely, and we lack jurisdiction to consider the appeal’s merits unless he
pleads and proves one of the three limited exceptions to the time-bar:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or laws of this Commonwealth
or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to
the petitioner and could not have been ascertained by the exercise
of due diligence; or
(iii) the right asserted is a constitutional right that was recognized
by the Supreme Court of the United States or the Supreme Court
of Pennsylvania after the time period provided in this section and
has been held by that court to apply retroactively.
42 Pa.C.S. § 9545(b)(1)(i)-(iii).
Coon invokes the newly-discovered facts exception. A petitioner
satisfies the newly-discovered facts exception through pleading and proving
that there were facts that were unknown to him and that he exercised due
diligence. See Commonwealth v. Bennett, 930 A.2d 1264, 1274 (Pa.
2007). “Due diligence demands that the petitioner take reasonable steps to
-5-
J-S03043-22
protect his own interests; a petitioner must explain why he could not have
learned the new facts earlier with the exercise of due diligence.”
Commonwealth v. Sanchez, 204 A.3d 524, 526 (Pa. Super. 2019) (citation
omitted).
Coon states that he could not have raised the claim herein sooner
because, “there was no possible way” he could have discovered that “David
Bates and Jaymar Phillips were the individuals whose ‘drugs were seized’
during the raid conducted by [the] Erie police department” because “when a
residence is used for cooking drugs, a myriad of drug dealers come in and out
of the residence.” (Coon’s Brief, at 6, 8). He claims that “even if [he] was
aware of David Bates existence, there was no possible way he could have
learned of the events that took place.” (Id. at 8). This claim is not legally
persuasive.
First, Coon waived any claim that the drugs seized by police in 2011
were not his, a fact that he necessarily would have been aware of at that time,
by failing to raise it either before or at trial or in his first PCRA petition. See
42 Pa.C.S. §§ 9543(a)(3), 9544(b).
Second, under the newly-discovered facts exception, “the focus is on
newly discovered facts, not a new source for previously known facts.”
Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008) (emphasis
added). If the cocaine seized by the Erie police in 2011 did not belong to
Coon, this necessarily was a fact that was known to him at that time. The
-6-
J-S03043-22
Bates’ affidavit is merely a new source to support this previously known fact
and, thus, cannot satisfy the newly-discovered facts exception. See id.Finally, even assuming arguendo that Coon somehow was unaware that
the drugs were not his, but instead belonged to one of the unidentified drug
dealers in his home, he has failed to plead and prove that he exercised due
diligence to discover the names of the individuals who were in his residence
immediately prior to the search. See Bennett, supra at 1274; Sanchez,
supra at 526.
For all these reasons, Coon fails to plead and prove the applicability of
the newly-discovered facts exception to the PCRA’s time-bar, and the PCRA
court properly dismissed his petition as untimely.5 See Lopez, supra at 998.
Order affirmed.
____________________________________________
5 Because we lack jurisdiction to consider the merits of this appeal, we are
precluded from considering Coon’s substantive argument that the affidavit
was after-discovered evidence that would have justified the grant of a new
trial. (See Coon’s Brief, at 9-11). We merely note that we agree with the
PCRA court that Coon would have been unable to demonstrate the factors
required to justify the grant of a new trial based on after-discovered evidence.
(See PCRA Ct. Op., at 7-8); see also Commonwealth v. Small, 189 A.3d
961, 972 (Pa. 2018) (To justify the grant of a new trial for after-discovered
evidence “the evidence must have been discovered after the trial and must be
such that it could not have been obtained at the trial by reasonable diligence,
must not be cumulative or merely impeach credibility, and must be such as
would likely compel a different result[.]”) (citation omitted).
-7-
J-S03043-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/2022
-8-