[J-78-2016] 

IN THE SUPREME COURT OF PENNSYLVANIA 

EASTERN DISTRICT 

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ. 

COMMONWEALTH OF PENNSYLVANIA, 

 Appellee 

 v. 

JERMONT COX, 

 Appellant 

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No. 707 CAP 

Appeal from the Order entered on May 

15, 2015 dismissing the Petition for 

Post-Conviction Relief in the Court of 

Common Pleas, Philadelphia County, 

Criminal Division at No. CP-51-CR0231581-1993 

SUBMITTED: May 11, 2016 

OPINION 

JUSTICE DONOHUE DECIDED: September 28, 2016 

In his second collateral capital appeal, Jermont Cox (“Cox”) challenges the denial 

of his petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-

9546 (“PCRA”).1 Cox contends that newly-discovered facts entitle him to a new trial. 

Following our thorough review, we agree with the PCRA court’s determination that 

Cox’s petition is untimely and therefore affirm its order. 

This Court described the facts underlying Cox’s conviction at length in 

conjunction with his direct appeal. See Commonwealth v. Cox, 728 A.2d 923, 926-29 

(Pa. 1999). For the purposes of the present appeal, the pertinent facts may be 

summarized as follows. Cox was a low-level member of a Philadelphia drug operation 

 

1

 This Court has jurisdiction over appeals from the grant or denial of post-conviction 

relief in death penalty cases. 42 Pa.C.S.A. § 9546(d). 
[J-78-2016] - 2 

run by Tim Walker (“Walker”). At some point in early 1992, two other members of the 

drug enterprise, Roosevelt Watson (“Watson”) and Terence Stewart (“Stewart”), had a 

falling out with Walker and left Walker’s organization. Watson subsequently robbed one 

of the houses out of which Walker sold drugs, and he and Stewart later stole Walker’s 

car. In retribution, Walker instructed Larry Lee (“Lee”), a higher-ranking member of the 

drug organization, to kill both Watson and Stewart. Lee enlisted Cox to assist in the 

murders. On August 18, 1992, Watson was shot and killed outside of a nightclub. On 

November 8, 1992, Stewart was shot and killed while driving his vehicle with a woman 

named Tia Seidle (“Seidle”), who was not injured although she was sitting in the 

passenger seat of his car. 

In January 1993, the Philadelphia Police arrested Cox for the murder of a man 

named Lawrence Davis. In an attempt to secure favorable treatment from the 

prosecution, Cox indicated that he had information about Stewart’s murder. After being 

advised of his rights, Cox told the police that he was with Lee on the night of Stewart’s 

murder. Cox stated that Lee instructed Cox to drive to a particular location, where they 

found Stewart’s parked vehicle. Lee, who was carrying a semi-automatic weapon, told 

Cox that Stewart was one of the men who had stolen Walker’s car. Cox told the police 

that when Lee identified Stewart as one of the men who stole Walker’s car, he “knew 

what was happening.” N.T., 4/10/1995, at 14. Cox and Lee waited for approximately 

half an hour until Stewart and Seidle exited a residence, entered Stewart’s vehicle and 

drove away. Cox followed and pulled along the left side of Stewart’s vehicle, at which 

time Lee lowered his window and fired multiple shots at Stewart. Stewart lost control of 

his vehicle and crashed into another car, and Cox and Lee immediately fled the scene. 

The following day, Lee paid Cox $500. 
[J-78-2016] - 3 

After Cox made this confession, the police arrested him for Stewart’s murder. 

The police then asked Cox if he had any information about Watson’s murder, which they 

believed was related to Stewart’s murder. Cox told the police that he and Lee spent at 

least a week searching for Watson in order to kill him, but that they were unsuccessful. 

Cox told the police that Lee subsequently found and killed Watson by himself. 

As Cox awaited trial on the Davis murder, he contacted the police to offer 

additional information about the Watson murder. Again, Cox wanted to share this 

information because he hoped to garner favorable treatment by cooperating with the 

police. Cox then confessed that he was with Lee when Lee received a telephonic page 

from Walker, informing them that Watson would be at a particular telephone booth 

outside of a nightclub. Cox drove them to the location described by Walker, where they 

waited for Watson. When Watson appeared, Lee exited the vehicle and shot Watson 

six times with a silver revolver. Cox then drove them from the scene of the shooting. 

Three days later, Lee paid Cox $500. Following this confession, the police charged Cox 

with Watson’s murder. 

The Watson and Stewart charges were joined for trial, which occurred in 1995. 

In addition to Cox’s confessions to these murders and of relevance to this appeal, the 

Commonwealth introduced the testimony of Philadelphia Police Officer James O’Hara, 

who performed ballistics testing on a bullet recovered from Watson’s body and two 

bullets recovered from Davis’ body.2 Officer O’Hara testified that markings on one of 

the Davis bullets matched the markings on the Watson bullet, which proved that they 

were fired from the same gun. Officer O’Hara could not formulate a conclusion 

concerning the second Davis bullet because, in his opinion, the second bullet was too 

 

2

 Stewart was killed with a different weapon. The ballistics connection existed only 

between the Davis and Watson murders. 
[J-78-2016] - 4 

damaged to allow a comparison. The Commonwealth sought to couple this ballistics 

evidence with the testimony of Kimberly Little (“Little”). Little previously testified in the 

Davis trial that she observed Cox shoot and kill Davis.3 Through Little’s testimony and 

the ballistics evidence establishing that the same gun was used in the Watson and 

Davis murders, the Commonwealth sought to establish Cox’s participation in the 

Watson murder. Over Cox’s objections, the trial court permitted the Commonwealth to 

introduce this evidence for the limited purpose of establishing Cox’s identity and access 

to the weapon used to murder Watson. 

At the conclusion of the guilt phase of trial, the jury found Cox guilty of two counts 

of first-degree murder, conspiracy, and possessing instruments of crime.4 The trial 

court sentenced him to life imprisonment for the Watson murder and death for the 

Stewart murder.5 Cox appealed his death sentence to this Court, raising, inter alia, 

multiple claims of ineffective assistance of counsel in both the guilt and penalty phases.6 

 

3

 Cox was convicted of first-degree murder, conspiracy and possessing instruments of 

crime in the Davis case. 

4

 18 Pa.C.S.A. §§ 2502(a), 903, 907. 

5

 During the penalty phase, the jury found three aggravating factors: that Cox was paid 

to commit the murder; that in killing Stewart he created a grave risk of death to another 

person; and that he had been convicted of another murder. Cox, 728 A.2d at 928; see

42 Pa.C.S.A. § 9711(d)(2),(7),(11). The jury found that these aggravating 

circumstances outweighed the mitigating circumstances that Cox presented: that he 

acted under extreme duress or the substantial domination of another person and the 

catch-all mitigating factor. Cox, 728 A.2d at 928; see 42 Pa.C.S.A. § 9711(e)(5),(8). 

6

 At the time of Cox’s conviction, criminal defendants were required to raise claims of 

ineffective assistance of counsel at the first available opportunity. See, e.g., 

Commonwealth v. Hubbard, 372 A.2d 687, 695 n.6 (Pa. 1977). In 2002, this Court 

issued our decision in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), in which we 

held that claims of ineffective assistance of counsel could not be raised on direct 

appeal, but must be deferred and presented on collateral appeal. Id. at 738. As Cox’s 

appeal occurred three years prior to the issuance of our decision in Grant, he properly 

raised these claims of ineffective assistance of counsel on direct appeal. 
[J-78-2016] - 5 

We affirmed. Cox, 728 A.2d at 938. The United States Supreme Court subsequently 

denied Cox’s petition for writ of certiorari. Cox v. Pennsylvania, 533 U.S. 904 (2001). 

 On February 6, 2001, Cox filed a pro se PCRA petition, and counsel was 

appointed. Counsel filed an amended petition raising numerous claims of ineffective 

assistance of trial and appellate counsel with regard to both the guilt and penalty 

phases of his trial. Of relevance, for the first time, Cox challenged the failure of trial 

counsel to conduct an independent investigation of the ballistics evidence and sought 

discovery of the ballistics evidence. Commonwealth v. Cox, 983 A.2d 666, 691-92 

(Pa. 2009). The PCRA court denied Cox’s guilt phase claims as a matter of law, but 

conducted an evidentiary hearing to address Cox’s claims related to the penalty phase. 

Following the hearing, the PCRA court denied all of the penalty phase claims. Cox 

appealed the PCRA court’s ruling, raising fourteen issues for consideration. This Court 

affirmed the PCRA court’s denial of all fourteen claims. Id. 

In 2010, Cox filed a habeas corpus petition in the Federal District Court for the 

Eastern District of Pennsylvania and requested discovery of the ballistics evidence. In 

2012, the district court granted Cox’s petition. Before turning the ballistics evidence 

over to Cox’s expert for an evaluation, the Philadelphia Police Department reexamined 

the ballistics evidence and issued a new report. By the time of the district court’s order, 

Officer O’Hara had retired, and the second examination was performed by Officers Kelly 

Walker and Jesus Cruz. The new report, issued on April 30, 2013, agreed with Officer 

O’Hara’s conclusion that one Davis bullet and the Watson bullet were fired from the 

same gun. Contrary to Officer O’Hara’s conclusion, however, the new report did not 

find the second Davis bullet to be too damaged to allow a comparison. Instead, based 
[J-78-2016] - 6 

upon the evaluation by Officers Walker and Cruz, the new report concluded that the 

second Davis bullet was not fired from the same gun that fired the Watson bullet.7 

On June 28, 2013, based on the results of the second ballistics test, Cox filed the 

PCRA petition at issue in this appeal. He alleged due process violations based upon 

the admission of the ballistics evidence in the Watson murder; ineffective assistance of 

trial counsel for failing to seek independent ballistics testing; and ineffective assistance 

of appellate counsel for failing to raise this particular claim on direct appeal. PCRA 

Petition, 6/28/2013, at 8-16.8 With respect to his due process claim, Cox contended 

that the new ballistics report undermined the link between the Davis and Watson 

shootings, and if this new evidence had been available at the time of the 

Watson/Stewart trial, “it is likely that the Davis evidence would have been excluded from 

the Watson/Stewart trial entirely.” PCRA Petition, 6/28/2013, at 10. Without the Davis 

evidence, Cox argued, there would have been no evidence that he had a propensity for 

violence, and so there is a reasonable likelihood that he would not have been found 

guilty of the Stewart murder and sentenced to death. Id. 

Recognizing that the petition was untimely, Cox attempted to establish an 

exception to the PCRA’s time-bar by claiming that the new ballistics report contained a 

 

7

 It appears that Cox did not follow through with the independent testing he sought. 

Cox alluded to independent testing in his second PCRA petition, averring that “prior to 

the scheduled examination of [the] ballistics evidence by [Cox’s] expert, an Assistant 

District Attorney M provided [Cox’s] counsel with the new ballistics report prepared by 

[Officers Walker and Cruz].” PCRA Petition, 6/28/2013, at 5 (emphasis added). His 

claims are based entirely on the second ballistics report prepared by Officers Walker 

and Cruz and he never discusses any results obtained through independent testing. 

8

 Cox acknowledged that he has previously litigated the claim that trial counsel was 

ineffective for failing to have independent ballistics testing in his first PCRA petition, but 

contended that the newly-discovered evidence requires a different conclusion. PCRA 

Petition, 6/28/2013, at 15 n.6. 
[J-78-2016] - 7 

newly-discovered fact: that the second Davis bullet was fired from a different firearm. 

Id. at 5. The Commonwealth filed a motion to dismiss, to which Cox filed a response. 

In evaluating the timeliness of Cox’s claim, the PCRA court applied a four-part test that 

considered whether Cox established that the evidence (1) could not have been 

discovered prior to the conclusion of the trial by the exercise of reasonable diligence; (2) 

is not merely cumulative; (3) would not be used solely to impeach the credibility of a 

witness; and (4) would likely result in a different verdict if a new trial were granted. 

PCRA Court Opinion, 7/29/2015, at 7 (quoting Commonwealth v. Perrin, 59 A.3d 633 

(Pa. Super. 2011), vacated, 103 A.3d 1224 (Pa. 2014)). The PCRA court concluded

that the evidence upon which Cox based his claim would be used only to impeach 

Little’s testimony that Cox alone shot Davis and that it would not have changed the 

outcome of trial, and therefore, that Cox failed to establish the after-discovered 

evidence exception to the PCRA’s time-bar. Id. at 8. This appeal followed.9 

Cox raises two issues for our review: 

I. Did the PCRA court err when it dismissed the [p]etition as 

untimely where it was timely filed under 42 Pa.C.S.[A.] § 

9545(b)(1)(ii), and where the PCRA court’s timeliness 

analysis conflated a merits analysis and § 9543, in violation 

of this Court’s holding in Commonwealth v. Lambert, 884 

A.2d 848 (Pa. 2005)? 

II. Did the PCRA court err when it determined that the 

[p]etition was “without merit” where the after-discovered 

evidence entitles [] Cox to a new trial based on (A) 

Pennsylvania’s after-discovered evidence standard, (B) [] 

Cox’s Sixth and Fourteenth Amendment right [sic] to the 

effective assistance of counsel, and (C) [] Cox’s Fifth, Eighth 

and Fourteenth Amendment rights to due process and a 

verdict based on reliable evidence? 

 

9

 “Our review of a PCRA court's decision is limited to examining whether the PCRA 

court's findings of fact are supported by the record, and whether its conclusions of law 

are free from legal error.” Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015). 
[J-78-2016] - 8 

Cox’s Brief at 1-2. 

 Cox first argues that the PCRA court applied the wrong standard when assessing 

whether he established the newly-discovered fact exception to the PCRA’s jurisdictional 

timeliness requirement. Id. at 14. Resolution of this issue requires consideration of the 

interplay between the provision of the PCRA that governs a court’s jurisdiction to 

entertain a petition filed pursuant thereto and the provision that governs whether a claim 

is eligible for relief under the PCRA. We begin with the jurisdictional provision. 

The PCRA requires that a petition seeking relief thereunder must be filed within 

one year of the date the petitioner’s judgment of sentence becomes final. 42 Pa.C.S.A. 

§ 9545(b)(1); Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012). “[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.A. § 9545. This timeliness 

requirement is jurisdictional in nature, and a court may not address the merits of any 

claim raised unless the petition was timely filed or the petitioner proves that one of the 

three exceptions to the timeliness requirement applies. Jones, 54 A.3d at 16. These 

exceptions are: 

(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. 
[J-78-2016] - 9 

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).10 

 Section 9545(b)(1)(ii) is the exception at issue in this appeal. When considering 

a claim seeking to invoke section 9545(b)(1)(ii), the petitioner must establish only that 

(1) the facts upon which the claim was predicated were unknown and (2) they could not 

have been ascertained by the exercise of due diligence. Commonwealth v. Bennett, 

930 A.2d 1264, 1270-72 (Pa. 2007). We have unequivocally explained that “the 

exception set forth in subsection (b)(1)(ii) does not require any merits analysis of the 

underlying claim.” Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008). 

Rather, the exception only requires a petitioner to “prove that the facts were unknown to 

him and that he exercised due diligence in discovering those facts.” Bennett, 930 A.2d 

at 1270; see also Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001) (rejecting 

attempt to invoke section 9545(b)(1)(ii) because appellant failed to offer any evidence 

that he exercised due diligence in obtaining facts upon which his claim was based). 

Once jurisdiction has been properly invoked (by establishing either that the 

petition was filed within one year of the date judgment became final or by establishing 

one of the three exceptions to the PCRA’s time-bar), the relevant inquiry becomes 

whether the claim is cognizable under the PCRA. Section 9543, titled “Eligibility for 

relief,” governs this inquiry. Among other requirements not pertinent to this appeal, 

section 9543 delineates seven classes of allegations that are eligible for relief under the 

PCRA. See 42 Pa.C.S.A. § 9543(a)(2). Of relevance here is the “after-discovered 

evidence” provision, which states that a claim alleging “the unavailability at the time of 

 

10 In addition to establishing one of these exceptions, any petition invoking one of these 

exceptions “shall be filed within [sixty] days of the date the claim could have been 

presented.” 42 Pa.C.S.A. § 9545(b)(2). The ballistics report upon which Cox’s claims 

are based was issued on April 30, 2013, and Cox filed his PCRA petition fifty-nine days 

later, on June 28, 2013. As such, Cox has satisfied this aspect of the test to establish 

an exception to the PCRA’s time-bar. 
[J-78-2016] - 10 

trial of exculpatory evidence that has subsequently become available and would have 

changed the outcome of the trial if it had been introduced” is cognizable under the 

PCRA. 42 Pa.C.S.A. § 9543(a)(2)(vi). To establish such a claim, a petitioner must 

prove that “(1) the evidence has been discovered after trial and it 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. D'Amato, 856 A.2d 806, 823 (Pa. 2004). 

A comparison of this four factor test to the two factor section 9545(b)(1)(ii) 

timeliness exception test reveals a superficial resemblance, as both involve 

consideration of whether the facts or evidence upon which the claim is based were 

previously unknown to the petitioner and whether that information could have been 

discovered earlier, through the exercise of due diligence. Indeed, the section 

9545(b)(1)(ii) timeliness test appears to be encompassed within the first factor of the 

section 9543(a)(2)(vi) eligibility test. In Bennett, however, we cautioned against the 

conclusion that there is an overlap between these provisions and reiterated that they 

remain distinct inquiries. Bennett, 930 A.2d at 1271. In so doing, we recognized that by 

referring to section 9545(b)(1)(ii) as an “after discovered evidence” exception, this Court 

unintentionally reinforced the confusion surrounding their application: 

We have repeatedly referred to this subsection as the “afterdiscovered evidence” exception to the one-year jurisdictional 

time limitation. See [Commonwealth v.] Peterkin, 722 A.2d 

[638,] 643 [(Pa. 1998)]. This shorthand reference was a 

misnomer, since the plain language of subsection (b)(1)(ii) 

does not require the petitioner to allege and prove a claim of 

“after-discovered evidence.” Rather, it simply requires [the] 

petitioner to allege and prove that there were “facts” that 

were “unknown” to him and that he exercised “due 

diligence.” In fact, when the Legislature intended a claim of 

“after-discovered evidence” to be recognized under the

PCRA, it has done so by language closely tracking the afterdiscovered evidence requirements. See 42 Pa.C.S. § 

9543[(a)(2)(vi)] (requiring that the evidence be “exculpatory” 

and “would have changed the outcome of the trial....”). 
[J-78-2016] - 11 

By imprecisely referring to this subsection as the “afterdiscovered evidence” exception, we have ignored its plain 

language. Indeed, by employing the misnomer, we have

erroneously engrafted Brady[FN]9 - like considerations into our 

analysis of subsection (b)(1)(ii) on more than one occasion. 

For example, in Commonwealth v. Johnson, [] 863 A.2d 423 

([Pa.] 2004), appellant argued that the Commonwealth 

violated Brady by withholding impeachment evidence and

that this claim was cognizable under subsection (b)(1)(ii). 

We concluded that appellant could not establish that his 

Brady claim had merit, since the information could have

been uncovered before or during trial. We further stated, “as 

we conclude that appellant's underlying Brady claim is

without merit, we necessarily also conclude that appellant 

has failed to show that his petition falls within any of the 

exceptions to the PCRA's time requirements.” Id. at 425–26; 

see also Commonwealth v. Breakiron, [] 781 A.2d 94, 98 

([Pa.] 2001). This conclusion conflated the two concepts as 

subsection (b)(1)(ii) does not contain the same requirements 

as a Brady claim. 

______________________________________ 

[FN]9 This refers to a claim brought under Brady v. Maryland, 

373 U.S. 83 [] (1963), which challenges the 

Commonwealth’s failure to produce material evidence. 

Specifically, a Brady claim requires a petitioner to show “(1) 

the prosecutor has suppressed evidence, (2) the evidence, 

whether exculpatory or impeaching, is helpful to the 

defendant, and (3) the suppression prejudiced the 

defendant.” Commonwealth v. Carson, [] 913 A.2d 220, 244 

([Pa.] 2006). 

Id. at 1270-71 (footnote eight omitted).11 

 

11 The distinction between the use of the terms “facts” in section 9545(b)(1)(ii) and 

“evidence” in section 9543(a)(2)(vi) underscores their separate functions. The PCRA 

“provides for an action by which persons convicted of crimes they did not commit and 

persons serving illegal sentences may obtain collateral relief.” 42 Pa.C.S.A. § 9542. 

Section 9545(b)(1)(ii) does not explicitly assist in providing such relief. The function of a 

section 9545(b)(1)(ii) analysis is that of a gatekeeper. Its inquiry, therefore, is limited to 

considering only the existence of a previously unknown fact that would allow a petitioner 

to avoid the strict one year time-bar. In contrast, the purpose of an inquiry under 

section 9543(a)(2)(vi) is to ensure that the claim presented is cognizable under the 

PCRA, and so it requires a more thorough analysis. As such, the matter upon which the 

claim is based is assessed in terms of its evidentiary merit, by considering the purpose 

for which it would be used and its potential impact on the outcome of trial. Through 

consideration of these factors, section 9543 assists the goal of the PCRA to provide 

(continuedM) 
[J-78-2016] - 12 

 In this case, the PCRA court labored under the confusion described in Bennett. 

As set forth above, the PCRA court did not confine its consideration to the two factors 

relevant to the section 9545(b)(1)(ii) timeliness exception, but rather applied a four-part 

test that consisted of the section 9543(a)(2)(vi) factors. PCRA Court Opinion, 

7/29/2015, at 7.12 The PCRA court therefore erred in this regard. Its error, though, is 

not novel, especially in the context of cases in which the petitioner invokes both of these 

provisions in his or her quest for relief. This is not always the case, as the section 

9545(b)(1)(ii) timeliness exception is not only invoked in connection with claims of afterdiscovered evidence as contemplated by section 9543(a)(2)(vi); i.e., claims based on 

exculpatory evidence that would result in a different verdict. For instance, petitioners 

have utilized the section 9545(b)(1)(ii) timeliness exception in an attempt to raise 

claims of the constructive denial of counsel, violations of Batson v. Kentucky, 476 U.S. 

79 (1986), and claims of racial prejudice on the part of the trial judge. See 

Commonwealth v. Gamboa-Taylor, 67 A.3d 1245 (Pa. 2013); Commonwealth v. 

Hackett, 956 A.2d 978, 982-84 (Pa. 2008); Commonwealth v. Marshall, 47 A.3d 714, 

721 (Pa. 2008); Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000); Commonwealth 

v. Abu-Jamal, 833 A.2d 719, 735 (Pa. 2003). In each of those cases, the nature of the 

claims raised did not implicate section 9543(a)(2)(vi), but rather, fell under other 

 

(Mcontinued) 

relief to the wrongfully convicted by ferreting out colorable claims of wrongful 

convictions. 

12 The PCRA court relied on the Superior Court’s decision in Perrin as the source of 

this test. In Perrin, however, the Superior Court was reviewing the denial of the 

appellant’s post-sentence motion seeking a new trial based upon an allegation of afterdiscovered evidence. Perrin, 59 A.3d at 665. Nonetheless, the factors set forth in 

Perrin and considered by the PCRA court are identical to the factors required under a 

section 9543(a)(2)(vi) analysis. Compare PCRA Court Opinion, 7/29/2015, at 7, with 42 

Pa.C.S.A. § 9543(a)(2)(vi). 
[J-78-2016] - 13 

categories of claims eligible for relief. See 42 Pa.C.S.A. § 9543(a)(2)(i),(ii) (providing 

that claims of constitutional violations and ineffective assistance of counsel are 

cognizable under the PCRA). In such cases, after concluding that the petition satisfied 

the section 9545(b)(1)(ii) timeliness exception, the PCRA court would not proceed to a 

section 9543(a)(2)(vi) analysis. 

 In the present case, Cox sought to overcome the PCRA’s time-bar by virtue of 

section 9545(b)(1)(ii). As such, Cox was required to establish that the fact upon which 

he bases his claim was unknown to him and that he could not have discovered it 

through due diligence. Bennett, 930 A.2d at 1270. The fact upon which Cox’s claim is 

based is the conclusion that the second Davis bullet was not fired from the gun used in 

the Watson murder. This conclusion resulted from the ballistics analysis performed by 

Officers Walker and Cruz. Cox did not discover this fact until Officers Walker and Cruz 

issued their report on April 30, 2013; it was therefore unknown to him until that date. 

Cox cannot, however, establish that he could not have ascertained this fact 

through the exercise of due diligence. Due diligence “does not require perfect vigilance 

and punctilious care, but merely a showing the party has put forth reasonable effort” to 

obtain the information upon which a claim is based. Commonwealth v. Edmiston, 65 

A.3d 339, 348 (Pa. 2013). Cox’s initial attempt to obtain the ballistics evidence was 

made in his first PCRA petition, in connection with his claim that trial counsel was 

ineffective for failing to seek independent ballistics testing. See Cox, 983 A.2d at 667, 

691-92. The salient question is whether in so doing, Cox acted with reasonable effort to 

discover the facts upon which his claim is based. 

 Commonwealth v. Stokes, 959 A.2d 306 (Pa. 2008), is instructive in this regard. 

Stokes involves a capital defendant who was sentenced to death in 1983. This Court 
[J-78-2016] - 14 

affirmed his judgment of sentence in 199213 and the denial of his first PCRA petition in 

2003. In 2004, the defendant filed a petition for writ of habeas corpus in federal court. 

In that petition, the defendant sought, for the first time, records maintained by the United 

States Postal Service and the Philadelphia Police Department’s homicide division. The 

federal court granted his request. The defendant then filed a second PCRA petition 

based upon the records, alleging that they contained exculpatory evidence that the 

Commonwealth should have turned over at the time of trial. The defendant alleged that 

this Brady violation entitled him to a new trial. 

 Recognizing that his petition was untimely on its face, the defendant attempted to 

establish both the section 9545(b)(1)(i) and (ii) timeliness exceptions. The PCRA court 

found that both efforts failed and we agreed. Specifically concerning the due diligence 

requirement, we concluded that the defendant could not prove that he was duly diligent 

in discovering the information upon which his claims were based because the record 

revealed that he knew that the files existed for years before he attempted to obtain 

them. Id. at 310. We emphasized that the defendant did not explain why he did not 

request the files earlier, and “never asserted that the prosecution (or anyone else) 

prevented him from gaining access to these files in the [twelve] years between the date 

his direct appeal was decided and the date he ultimately sought the files.” Id. at 310-

311. The defendant’s knowledge of the files, absent action to obtain them, precluded a 

finding of due diligence. Id.; see also Edmiston, 65 A.3d at 348 (holding that PCRA 

petitioner cannot establish due diligence based on alleged newly discovered 

 

13 The nine-year delay between Stokes’ conviction and the disposition of his direct 

appeal was the result of protracted post-verdict proceedings, which included hearings 

that did not commence until 1987 and the ultimate denial of Stokes’ post-verdict motions 

in October 1990. Stokes, 959 A.2d at 308. 
[J-78-2016] - 15 

photographs where record reveals that he knew photographs existed at the time of trial 

but did not raise claim until fifteen years later). 

 Returning to the present case, there is no question that Cox knew that more 

testing could be performed on the ballistics evidence at the time of trial in 1995. It was 

not until six years later, in 2001, that Cox first attempted to obtain the ballistics evidence 

through his first PCRA petition, in connection with his claim that trial counsel was 

ineffective for failing to seek independent testing thereof. By raising this claim in his first 

PCRA petition, Cox has effectively conceded that the testing could have been done at 

the time of trial. Moreover, Cox admitted to committing the Davis murder, and so Cox 

always knew that more than one firearm was used in the perpetration of that crime. See

N.T., 4/4/1995, at 157-58. Nevertheless, Cox has never explained why he did not seek 

independent ballistics testing at the time of trial or on direct appeal.14 Importantly, our 

review of the record reveals that Cox has never alleged that he asked trial counsel to 

seek independent ballistics testing or that his counsel refused such a request. Were 

that the situation, there could be a basis upon which to conclude that he attempted to 

act diligently, but that his efforts were thwarted by trial counsel. However, this is simply 

not the case here. Cox acknowledges that the testing could have been done at the time 

of trial, but offers no explanation as to why he did not seek such testing at that time. 

Instead, he took no action to obtain the additional testing for six years.15 It is this 

 

14 As noted above, Cox’s direct appeal was decided prior to our decision in Grant, and 

so he could have raised the claim that counsel was ineffective for failing to have 

independent ballistics testing performed at that point. 

15 There is no allegation here that a newly developed technology or newly discovered 

source led to the new fact. Cox makes no claim that Officers Walker and Cruz 

employed new testing methods or techniques, nor does he claim that they tested 

anything beyond what Officer O’Hara tested in connection with his report. This further 

weakens any attempt to claim that the fact was not ascertainable prior to the issuance 

of the second ballistics report. 
[J-78-2016] - 16 

lengthy, unexplained delay that defeats the possibility of a conclusion that Cox acted 

with reasonable effort to obtain ballistics testing. As in Stokes, Cox’s failure to act, and 

failure to explain his lack of action, precludes a finding of due diligence. 

 Because Cox cannot establish that he acted with due diligence in seeking the 

ballistics evidence, he has failed to meet the section 9545(b)(1)(ii) exception to the 

PCRA’s jurisdictional time-bar. Cox’s PCRA petition is therefore untimely, and no court 

could have jurisdiction to reach the merits of the issue he raised therein. Accordingly, 

we affirm the PCRA court’s order. 

 Order affirmed. 

 Justices Baer, Todd, Dougherty, Wecht and Mundy join the opinion. 

 Chief Justice Saylor concurs in the result.