Com. v. Saxon, J.

J-S39013-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JEAN SAXON :

:

Appellant : No. 818 EDA 2020

Appeal from the PCRA Order Entered February 13, 2020

In the Court of Common Pleas of Bucks County Criminal Division at

No(s): CP-09-CR-0002168-2005

BEFORE: LAZARUS, J., OLSON, J., and PELLEGRINI, J.*

MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 04, 2020

Jean Saxon appeals, pro se, from the order, entered in the Court of

Common Pleas of Bucks County, denying as untimely her petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.

Upon careful review, we affirm.

On November 21, 2005, a jury convicted Saxon of first-degree murder,1

possession of a controlled substance,2 theft by unlawful taking,3 and

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 2502(a).

2 35 P.S. § 780-113(a)(16).

3 18 Pa.C.S.A. § 3921.

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tampering with physical evidence4 following her estranged husband’s death

from an insulin overdose. The court sentenced Saxon to life in prison.5 Saxon

filed post-sentence motions, which the court denied on May 23, 2006. This

Court affirmed Saxon’s judgment of sentence on August 31, 2007,

Commonwealth v. Saxon, 935 A.2d 21 (Pa. Super. 2007) (Table), and our

Supreme Court denied her request for allowance of appeal on December 20,

2007. Commonwealth v. Saxon, 940 A.2d 364 (Pa. 2007) (Table).

On April 23, 2008, Saxon filed her first pro se PCRA petition, followed

by three supplemental petitions. The PCRA court appointed counsel, who filed

an amended petition, which the court denied on May 18, 2012. Saxon

appealed, and this Court affirmed the denial of PCRA relief on February 26,

2013. Commonwealth v. Saxon, 1816 EDA 2012 (Pa. Super. 2013)

(unpublished memorandum decision). Saxon filed a petition for allowance of

appeal, which the Pennsylvania Supreme Court denied. Commonwealth v.

Saxon, 79 A.3d 1098 (Pa. 2013) (Table).

On November 14, 2013, Saxon filed her second pro se PCRA petition,

which the court denied on February 24, 2014. This Court affirmed the order

denying the petition on July 9, 2014, Commonwealth v. Saxon, 587 EDA

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4 18 Pa.C.S.A. § 4910(1).

5 The court additionally sentenced Saxon to nine months to seven years’

imprisonment for theft by unlawful taking and one to six months’

imprisonment for possession of a controlled substance. No further penalty

was imposed for tampering with evidence. All sentences were ordered to run

consecutively.

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2014 (Pa. Super. 2014) (unpublished memorandum decision), and denied

application for reargument on September 3, 2014. On October 17, 2014,

Saxon filed an untimely petition for allowance of appeal to our Supreme Court.

On October 22, 2014, Saxon filed a pro se petition for writ of habeas

corpus in the United States District Court, which was denied on June 15, 2015.

The Third Circuit Court of Appeals denied Saxon’s request for certificate of

appealability on February 5, 2016, and the United States Supreme Court

denied her petition for writ of certiorari on October 11, 2016.

On October 12, 2017, Saxon, again acting pro se, filed a third PCRA

petition, and on December 18, 2017, she filed her fourth. The court denied

both petitions on July 9, 2018. On September 13, 2018, Saxon filed her fifth

PCRA petition, which the court denied on October 2, 2018. Saxon did not

appeal the PCRA court’s denials of any of those petitions.

On January 14, 2019, Saxon filed the instant PCRA petition, her sixth.

On February 6, 2019, Saxon filed an amended petition wherein she argues

that her convictions should be overturned on the basis of her innocence, as

evidenced by newly-discovered facts. Saxon claims that her newly-discovered

facts consist of two letters authored by Dr. Lawrence C. Kenyon, M.D., Ph.D.,

wherein Dr. Kenyon states his opinion that the autopsy performed on the

victim did not sufficiently rule out alternative causes of death, and that the

credibility of other evidence is in doubt. See Letters from Lawrence C.

Kenyon, M.D., Ph.D., 12/24/18; 1/17/19. The court appointed PCRA counsel,

Patrick J. McMenamin, Jr., Esquire, on February 26, 2019. On July 2, 2019,

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Attorney McMenamin sent Saxon a no-merit letter, and filed a motion to

withdraw, pursuant to Turner/Finley.6 On August 21, 2019, Saxon filed her

response to Attorney McMenamin’s no-merit letter, asserting only that the

PCRA’s jurisdictional time limits are unconstitutional. On August 29, 2019,

the Commonwealth filed a motion to dismiss Saxon’s petition, and on

September 27, 2019, Saxon filed her pro se reply. See Answer to

Government’s Motion to Dismiss, 9/27/19, at [1-2]. On December 30, 2019,

the PCRA court entered its notice of intent to dismiss Saxon’s petition and

grant counsel’s motion to withdraw. See Pa.R.Crim.P. 907. Saxon did not

file a response to the court’s notice. On February 13, 2020, the court entered

an order dismissing the petition without a hearing and granting counsel’s

motion to withdraw. Saxon filed a pro se notice of appeal on March 2, 2020.

Both Saxon and the PCRA court have complied with Pa.R.A.P. 1925.

On appeal, Saxon raises the following claims for our review, which we

have re-ordered for ease of disposition:

(1) Whether the reports of [Dr.] Lawrence Kenyon from

December 2018[,] offering his expert opinion that the

alleged cause of death is doubtful[,] and the opinion of the

prosecution expert[,] [Dr.] Ian Hood, [M.D.,] is highly

questionable, are new evidence which trigger the time bar

exception found in [42 Pa.C.S.A. §§] 9545(a)(1)(ii) and

[(b)(2)]?

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6 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (established

procedure for withdrawal of court-appointed counsel in collateral attacks on

criminal convictions); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.

1988) (en banc) (same).

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(2) Whether [Saxon] used due diligence to the extent capable

in that she was trapped in prison and is unable to access

medical evidence and new developments and is untrained in

law?

(3) Whether the reports of Dr. [Lawrence] Kenyon constitute

newly[-]discovered and available facts and evidence that

are exculpatory in nature pursuant to [42 Pa.C.S.A. §]

9543(a)(2)(vi)?[7]

(4) Whether [Saxon] is actually innocent of the allegations and

crimes charged based on the expert[’]s report of [Dr.]

Lawrence Kenyon, [] in consultation with [Dr.] Serge

[Jabbour], M.D.?

(5) Whether [there was] ineffective assistance of counsel, in

that counsel never inquired into whether [Saxon’s trial

lawyer,] John [F. Fioravanti, Jr., Esquire,] or Dr. [Ian] Hood

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7 We note that Saxon’s claim refers to newly-discovered facts, see 42

Pa.C.S.A. § 9545(b)(1)(ii), and after-discovered evidence, see 42 Pa.C.S.A.

§ 9543(a)(2)(vi), which are separate and distinct. Our Supreme Court

recently reiterated how these concepts differ:

To qualify for an exception to the PCRA’s time limitations

under subsection 9545(b)(1)(ii), a petitioner need only establish

that the facts upon which the claim is based were unknown to

[her] and could not have been ascertained by the exercise of due

diligence. However, where a petition is otherwise timely, to

prevail on an after-discovered evidence claim for relief

under subsection 9543(a)(2)(vi), a petitioner must prove that (1)

the exculpatory evidence has been discovered after trial and could

not have been obtained at or prior to trial through reasonable

diligence; (2) the evidence is not cumulative; (3) it is not being

used solely to impeach credibility; and (4) it would likely compel

a different verdict.

Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017) (citation omitted).

Here, Saxon has not met the exception for the time bar; therefore, there is

no jurisdiction to address the issue of after-discovered evidence. See

Commonwealth v. Cox, 146 A.3d 221, 227-30 (Pa. 2016) (appellant must

invoke PCRA court’s jurisdiction prior to review of eligibility for relief under

subsection 9543(a)(2)(vi)).

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[] were aware of the FBI laboratory report because they did

not know if there is a Brady[8] violation in not giving

evidence that would be helpful to the defense case, and

whether their awareness of the FBI report means that the

trial was fundamentally unfair?

Appellant’s Brief, at 1.

Before we reach the merits of Saxon’s claims, we note that:

[a] second or subsequent request for PCRA relief will not be

entertained unless the petitioner presents a strong prima

facie showing that a miscarriage of justice may have

occurred. The PCRA’s timeliness requirements are jurisdictional

in nature and must be strictly construed; courts may not address

the merits of the issues raised in a petition if it is not timely

filed. It is the petitioner’s burden to allege and prove that one of

the timeliness exceptions applies.

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1267-68 (Pa. 2008)

(internal citations omitted). With regard to the PCRA’s time limits, we have

stated that:

[u]nder the PCRA, any petition including a second or subsequent

petition, shall be filed within one year of the date the judgment of

sentence becomes final. A judgment of sentence 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.

Commonwealth v. Diggs, 220 A.3 1112, 1116-17 (Pa. Super. 2019)

(internal citations, quotation marks, and brackets omitted). However, there

are three exceptions to the PCRA’s time requirements: (1) interference by

government officials; (2) newly-discovered facts; and (3) an after-recognized

constitutional right. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petitioner must

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8 Brady v. Maryland, 373 U.S. 83 (1963).

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bring her claimed exception within one year of the date her claim could have

first been raised.9 See 42 Pa.C.S.A. § 9545(b)(2).

In order to overcome the PCRA’s jurisdictional hurdle, under the newly-

discovered facts exception, see 42 Pa.C.S.A. § 9545(b)(1)(ii), the petitioner

“must establish that: (1) the facts upon which the claim was predicated

were unknown[;] and (2) could not have been ascertained by the exercise

of due diligence. If the petitioner alleges and proves these two components,

then the PCRA court has jurisdiction over the claim under [section

9545(b)(1)(ii)].” Commonwealth v. Brown, 111 A.3d 171, 177 (Pa. Super.

2015) (citing Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007))

(emphasis in original). Also, our Supreme Court has previously reasoned that,

because an “expert’s change of opinion from that given at trial, which is based

merely on the examination of additional information that was available at the

time the initial opinion was proffered,” does not amount to newly-discovered

facts,10 “a completely new opinion uncovered after trial” also does not come

within the newly-discovered fact exception. See Commonwealth v.

Gamboa-Taylor, 753 A.2d 780, 786 (Pa. 2000). Finally, the Court has

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9 On October 24, 2018, the General Assembly amended subsection 9545(b)(2)

to enlarge the time in which a petitioner may invoke a PCRA time-bar

exception from 60 days to one year from the date the claim arises. See Act

2018, Oct. 24, P.L. 894, No. 146, § 2, effective in 60 days [Dec. 24, 2018].

However, the amendment applies only to claims arising on December 24,

2017, or thereafter. Id. at § 3. In this case, Saxon argues her claims arise

from the letters authored by Dr. Kenyon on December 24, 2018 and January

17, 2019.

10 See Commonwealth v. Cross, 726 A.2d 333, 335-36 (Pa. 1999).

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clarified that “the newly-discovered facts exception is not focused on new[ly]

discovered or newly willing sources for ‘facts’ that were already known.”

Commonwealth v. Marshall, 947 A.2d 714, 721-22 (Pa. 2008) (emphasis

omitted).

Here, Saxon’s judgment of sentence became final on December 26,

2008, the date by which Saxon could have filed a petition for writ of certiorari

with the United States Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3), U.S.

S. Ct. R. 13. Saxon filed the instant petition on January 14, 2019, more than

ten years after her judgment of sentence became final. Therefore, she must

plead and prove an exception to the one-year time bar in order to invoke this

Court’s jurisdiction. See 42 Pa.C.S.A. § 9545(b)(1).

Here, Saxon failed to plead and prove any exception to the PCRA’s time

bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). We note that Dr. Kenyon

formulated his opinion after reviewing a page from the search warrant, five

pages of the victim’s medical records, four pages of the victim’s laboratory

results, a single page from the FBI report dated September 7, 2005, Dr.

Hood’s four-page autopsy report, and the victim’s death certificate. Doctor

Kenyon’s opinion cannot be said to be based on “unknown facts,” Brown,

supra, since all of these documents were available to Saxon at the time of

trial. See also Commonwealth v. Johnson, 863 A.2d 423, 427 (Pa. 2004)

(“[A] witness’ admission of evidence previously available to a petitioner

cannot resurrect an untimely PCRA claim as such a result would clearly run

contrary to the plain language of the exception that the facts upon which the

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claim is predicated were unknown to the petitioner[.]”) (internal quotation

marks omitted; emphasis in original). Further, Dr. Kenyon’s opinion is “a

completely new opinion uncovered after trial,” rendering Saxon’s claims

ineligible for the newly-discovered facts exception.11 Gamboa-Taylor,

supra. Moreover, given that Dr. Kenyon’s opinions rely on documents

available to Saxon at the time of her trial, his opinion clearly falls under the

category of a “newly willing source[] for facts that were already known.”

Marshall, supra. Therefore, Saxon’s petition fails to qualify for the newly-

discovered facts exception. See 42 Pa.C.S.A. § 9545(b)(1)(ii). As a result,

Saxon has failed to invoke this Court’s jurisdiction to hear the merits of her

appeal. See Abu-Jamal, supra.

Order affirmed.12

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11 We note that the reasoning of Gamboa-Taylor applies, whether or not the

expert who proffers a new opinion previously testified at trial, since the newly-

discovered facts exception is concerned with the substance of the facts, and

not the source of the opinion. Marshall, supra.

12 Finally, we note that Saxon’s challenges to the sufficiency of the evidence

and her claims of ineffective assistance of counsel are ineligible for relief.

Saxon failed to raise these claims in her PCRA petition, her amended petition,

in an answer to Attorney McMenamin’s no-merit letter, her reply to the

Commonwealth’s motion to dismiss her petition, or in an answer to the PCRA

court’s Rule 907 notice. These claims may not be raised for the first time on

appeal. See Commonwealth v. Bond, 819 A.2d 33, 52 (Pa. 2002)

(“Permitting a PCRA petitioner to append new claims to the appeal already on

review would wrongly subvert the time limitation and serial petition

restrictions of the PCRA.”). Additionally, a challenge to the sufficiency of the

evidence is not a cognizable claim under the PCRA. See Commonwealth v.

Price, 876 A.2d 988, 995 (Pa. Super. 2005) (“Generally, an appellant may

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/4/20

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not raise allegations of error in an appeal from the denial of PCRA relief as if

[she] were presenting the claims on direct appeal.”) Moreover, Saxon raised

a challenge to the sufficiency of the evidence and claimed ineffective

assistance of counsel in her direct appeal, and in previous collateral appeals.

See Commonwealth v. Saxon, 1622 EDA 2006 (Pa. Super. 2007)

(unpublished memorandum decision); Commonwealth v. Saxon, 1816 EDA

2012 (Pa. Super. 2013) (unpublished memorandum decision). To the extent

Saxon’s claims raise arguments that have been previously litigated, see 42

Pa.C.S.A. § 9544(a) (Previous litigation.), and to the extent Saxon’s claims

raise arguments that have not been heard “before trial, at trial, [] on appeal

or in a prior state post[-]conviction proceeding[,]” see 42 Pa.C.S.A. §

9544(b) (Issues waived.), these claims are ineligible for relief. See 42

Pa.C.S.A. § 9543(a)(3) (“To be eligible for relief under this subchapter, the

petitioner must plead and prove by a preponderance of the evidence . . .

[t]hat the allegation of error has not been previously litigated or waived.”).

Saxon has failed to plead and prove that any of her arguments were not

previously litigated or waived. Therefore, no relief is due.

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