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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JOSEPH D. MARCY, ) CIVIL ACTION NO. 3:17-cv-00411

Petitioner )
) (CAPUTO, D.J.)
v. )
) (ARBUCKLE, M.J.)
WARDEN, SCI GRATERFORD, )
et al., )
Respondents )

REPORT AND RECOMMENDATION

I. INTRODUCTION

Joseph D. Marcy (hereinafter “Petitioner”), was convicted of multiple sex

crimes against his six-year-old daughter. His direct appeal was unsuccessful. During

proceedings under Pennsylvania’s Post-Conviction Relief Act (“PCRA”) the

original trial judge held hearings, vacated the conviction, and ordered a new trial

based upon the recantation testimony of the then eleven-year-old daughter. The

Commonwealth appealed and the Superior Court reversed and reinstated the original

conviction based on a technical reading of the filing dates for the PCRA. Petitioner

seeks habeas relief in this court on the basis that the Superior Court decision was not

on the merits, denied him due process, and was “based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d)(2).

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For the reasons set forth in this Report, it is RECOMMENDED that the § 2254

Petition (Doc. 1) be conditionally GRANTED as follows:

(1) Petitioner’s conviction and sentence should be VACATED; and,

(2) the Commonwealth should be ordered to retry Petitioner within 120

days, or he shall be released from custody.

II. FACTS & PROCEDURAL HISTORY

On February 17, 2011, a jury in the Luzerne County Court of Common Pleas

issued a verdict convicting Petitioner for rape of his six-year-old daughter and other

related charges. (Doc. 17-5 pp. 31-39). On October 7, 2011, Petitioner, with help of

counsel, filed a Notice of Appeal to the Pennsylvania Superior Court. (Doc. 17-5, p.

61).

Petitioner filed a pro se Motion for Post-Conviction Collateral Relief

(hereinafter “PCRA Petition”)1 on June 19, 2012. (Doc. 17-5, p. 73). The checked

boxes on his PCRA Petition form indicated that Petitioner intended to raise, at

minimum, claims of (1) ineffective assistance of counsel, and (2) violations of

Constitutional rights. (Doc. 17-5, p. 73). The PCRA Petition form’s box for newly

discovered exculpatory evidence was left unmarked. See id. However, Petitioner

1
The Pennsylvania Superior Court decision refers to this PCRA Petition as the
“Second PCRA Petition.” (Doc. 17-6, p. 90). Indeed, if Petitioner filed a premature
PCRA before the one dated June 19, 2012, it would be irrelevant to the facts of this
case. That Petition, if it exists, is not in this record. For the sake of ease, this R&R
refers to what the Superior Court called the second PCRA Petition (dated June 19,
2012) simply as the “PCRA Petition.”
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attached multiple affidavits, including one signed by Kimberly Marth, which stated

that the victim and principal witness in Petitioner’s criminal case had recanted her

testimony and admitted to Ms. Marth that she made up the allegations and was very

sorry. (Doc. 17-5, p. 90). 2 This affidavit was dated February 14, 2012. (Doc. 17-5,

p. 90). Petitioner also indicated in this PCRA Petition that he requested an

evidentiary hearing. (Doc. 17-5, p. 88). On page 6 of the PCRA Petition, he certified

in his own handwriting that Ms. Marth “will testify that [the alleged victim] told her

and several others that her testimony was false.” Id.

On July 9, 2012, the Luzerne County Court dismissed the PCRA Petition

without prejudice, stating that it was premature and inappropriate at that time due to

Petitioner’s pending appeal to the Superior Court. (Doc. 17-5, p. 102).

On July 27, 2012, the Superior Court entered judgment affirming Petitioner’s

conviction. (Doc. 17-5, p. 103). Petitioner did not apply for Allocatur before the

Pennsylvania Supreme Court so his judgment and sentence became final on August

27, 2012. See 42 Pa .C. S. § 9545(b)(3).3

2
The content of Kimberly Marth’s affidavit is included infra.
3
Even without needing estoppel of the PCRA statute of limitation, Petitioner
had until August 27, 2013, to timely file his PCRA Petition.
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On October 15, 2012, the Luzerne County Court issued an Order, apparently

sua sponte,4 that (1) “reinstated” Petitioner’s PCRA Petition filed on June 19, 2012,

(2) appointed counsel for Petitioner [Matthew Kelly, Esq.], and (3) gave Petitioner

and his counsel three months to “supplement the motion filed of record.” (Doc. 17-

5, p. 108).

Petitioner, through newly appointed counsel5 (John Hakim, Esq.), filed a

document clearly captioned “Supplement to PCRA Petition” on March 15, 2013.

(Doc. 17-5, p. 109). The text of the “Supplement” specifically raises issues of (1)

ineffective assistance of counsel at trial, (2) problems with the jury’s interpretation

of the evidence, and (3) errors made by the trial court. Id. The “Supplement” also

clearly stated that it was filed “as an addition to what Defendant has alleged” in his

pro se PCRA Petition. Id.

On May 23, 2014, over a year later but while the PCRA Petition was still

pending in the trial court, Petitioner’s appointed counsel (Attorney Hakim) filed an

“Additional Supplement to PCRA Petition.” (Doc. 17-6, p. 2). This “Additional

Supplement” specifically states that is “being filed as an addition to all previous pro

se filings and the filings of counsel.” Id. The “Additional Supplement” expressly

4
The Superior Court suggests that this Order was sua sponte and the record
shows no indication that Petitioner moved for reinstatement of his PCRA Petition.
5
The record does not explain how or when Attorney Hakim was substituted for
Attorney Kelly.
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alleged newly discovered exculpatory evidence. Id. Specifically, the “Additional

Supplement” states that an investigator6 from J.P. Gabriele detective agency

interviewed the alleged victim and sole witness to the alleged rape in Petitioner’s

case and that “the victim recanted significant portions of her previous trial testimony,

indicating that Defendant did not, at any time, have vaginal or anal sex with her.”

Id. The recantation was allegedly given voluntarily and with the permission and

consent of the minor victim’s guardian. Id. This information is consistent with the

written statement of Kimberly Marth dated February 14, 2012 and attached to the

pro se PCRA Petition dated June 9, 2012 (Doc. 17-5, p. 90).

PCRA Petition Hearings were then held by Judge Augello on September 25,

2014, and February 19, 2015. (Doc. 17-6, pp. 9, 21). During these hearings, the court

heard testimony from Petitioner, the alleged victim, a medical expert, and the

attorney who represented Petitioner at trial. Id. The court granted Petitioner’s

Supplement for PCRA Relief in the form of a new trial pursuant to Title 42 Pa. C.

S. A. § 9543(a)(2)(vi) (Eligibility for relief based upon exculpatory evidence that

has subsequently become available and would have changed the outcome of the trial

if it had been introduced). (Doc. 17-6, p. 55). The court denied all other PCRA relief

requested by Petitioner. Id. Having granted Petitioner a new trial there was no reason

6
Petitioner’s Brief to this Court claims that this investigator was perhaps
court appointed.
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for the trial judge to reach the questions of ineffective assistance of original trial

counsel or original appellate counsel.

In the court’s Opinion accompanying its Order granting Petitioner a new trial,

the court acknowledged that “recantation is one of the least reliable forms of proof,

particularly when it constitutes an admission of perjury.” (Doc. 17-6, p. 64) (citing

Commonwealth v. Anderson, 353 A.2d 384, 386 (Pa. 1976)). Nevertheless, after

personally observing the alleged victim’s testimony at the PCRA Hearing, the court

found her recantation to be credible. (Doc. 17-6, p. 59).

The PCRA Court further found that Petitioner successfully satisfied all four

prongs of Pennsylvania’s test for alleging newly discovered evidence under the

PCRA. (Doc. 17-6, pp. 57-65). That test required the Petitioner to prove by a

preponderance of the evidence that:

1. The evidence has been discovered after the trial and it could not have
been obtained at or prior to trial through reasonable diligence;
2. Such evidence is not cumulative;
3. The evidence is not being used solely to impeach credibility; [and]
4. Such evidence would likely compel a different verdict.

Id. (citing a host of Pennsylvania cases, including Commonwealth v. Medina, 92

A.3d 1213, 1218 (Pa. Super. 2014); Commonwealth v. Pagan, 950 A.2d 270, 292

(Pa. 2008), cert. denied, 555 U.S. 1198 (2009); Commonwealth v. Castro, 55 A.3d

1242, 1246 (Pa. Super. 2012) (en banc), appeal granted, 65 A.3d 291 (Pa. 2013)).

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With regard to whether the recantation could have been discovered before or

at trial, the Court reasoned as follows:

[I]t should be noted the Superior Court has previously “rejected the
Commonwealth’s assertion that the victim’s recantation is not truly
after-discovered evidence because the Defendant knew prior to trial that
the victim was not telling the truth.” Commonwealth v. Loner, 836 A.2d
12 (Pa. Super. 2003). Moreover, the Commonwealth in the present
instance has conceded in its briefing that if credible, the victim now
recanting her testimony would be exculpatory since she would be
considered the only eye witness to the crimes alleged. Accordingly, we
find that the recantation testimony of [the alleged victim] fits squarely
within the test for after-discovered evidence.

(Doc. 17-6, p. 62). The trial court’s Opinion makes no specific mention of Ms.

Marth’s affidavit, but does indicate that Petitioner’s “Additional Supplement”

alleged newly discovered recantation evidence. (Doc. 17-6, p. 58).

The Luzerne County District Attorney appealed the grant of new trial to the

Superior Court of Pennsylvania. (Doc. 17-6, p. 54). On July 1, 2016, the Superior

Court reversed the Luzerne County Court’s decision and reinstated Petitioner’s

judgment of sentence. (Doc. 17-6, p. 89-98).

In its decision, the Superior Court acknowledged that on appeal, the

Commonwealth raised only the issue of “[w]hether the [c]ourt abused its discretion

when it granted a new trial based upon the incredible allegations of recanted

testimony.” (Doc. 17-6, p. 93). The issue of waiver was not raised, briefed, or even

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argued in the Superior Court.7 However, the Superior Court did not reach the issue

of whether the trial court erred in finding the alleged victim’s recantation testimony

credible. Rather, the Superior Court reversal was based solely on waiver, PCRA

jurisdiction, and procedural issues. (Doc. 17-6, p. 93) (“In light of the waiver and

jurisdictional problems in this case, we will not address whether the trial court

abused its discretion in finding the victim’s recantation testimony credible.”).

The Superior Court based its decision on four conclusions.

First, the Superior Court found that the Petitioner failed to raise his recantation

claim in his prematurely filed PCRA. (Doc. 17-6, p. 93). This despite the fact that

the PCRA included the following affidavit from Kimberly Marth:

My name is Kimberly Marth and I am writing on behalf of [Petitioner]

who is currently incarcerated after being convicted of sex crimes
against his daughter. I am writing this letter in light of things told to me
and several other people that, [the alleged victim], had not told the truth
in her testimony at trial against her father and that certain acts of the
abuse in fact did not happen at all. She had just “made them up and
doesn’t know why.” [The alleged victim] also expressed that she is very
sorry for doing this and is also ready to tell the truth. If there are
questions I can be reach at 570-760-8178.

Sincerely,
Kimberly Marth

7
See letter from Attorney Kelly to Petitioner dated July 5, 2016, transmitting
the Superior Court opinion which states: “…at no time during the argument before
the court in March of this year was the issue ever raised by the Superior Court
panel or the Commonwealth.” (Doc. 5, p. 60) and Commonwealth’s Superior Court
PCRA Brief (Doc. 5, pp. 72).
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(Doc. 17-6, pp. 90–91).

The Superior Court reasoned that although Petitioner attached the recantation

letter, he “did not even mention a recantation claim in the Petition itself.” Id. Thus,

the court, citing Commonwealth v. Elliott, 80 A.3d 415 (Pa. 2013), found that

Petitioner’s PCRA lacked sufficient precision. Id. It also reasoned that the trial court

had no legal basis to reinstate Petitioner’s PCRA after dismissing it as premature.

(Doc. 17-6, p. 94).

Second, the Superior Court held that Petitioner waived the issue of recantation

by not raising it until he filed his “Additional Supplement” in May, 2014. The Court

reasoned that because Petitioner first learned of the recantation issue from Ms. Marth

as early as February 14, 2012, Petitioner was barred from raising the issue in 2014,

which was more than a year later and more than a year after his judgment became

final. (Doc. 17-6, p. 94). This conclusion, however, was premised on the Court’s

assumption that the first “Supplement,” though timely filed, failed to raise the issue

of recantation. (Doc. 17-6, p. 94). I respectfully disagree. The Superior Court made

no mention of the fact that the “Supplement” expressly incorporates by reference all

Petitioner’s previous PCRA filings. (see Doc. 17-5, p. 109, and Doc. 17-6, p. 2). I

also note the trial judge specifically instructed newly appointed counsel to file a

“Supplement” not a revised petition.

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Third, the Superior Court held that the trial court lacked jurisdiction to review

Petitioner’s claims in the “Additional Supplement” because it was filed more than

one year after Petitioner’s judgment became final (Doc. 17-7, p. 95) (citing

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010); 42 Pa.C.S. §

9545(b)(1)).

And Fourth, the Superior Court held that Petitioner’s recantation claim was

waived because he failed to request leave of the trial court to file the “Additional

Supplement.” (Doc. 17-6, p. 96). It reasoned that Pennsylvania Rule of Criminal

Procedure 905 “explicitly provides that a petitioner may only amend a PCRA

Petition by direction or leave of the PCRA court.” (Doc. 17-6, p. 96) (citing Pa. R.

Crim. P. 905; Commonwealth v. Porter, 35 A.3d 4, 12 (Pa. 2012)). The Court

concluded that a petitioner “must seek leave to amend” before submitting a PCRA

amendment. (Doc. 17-6, p. 96). This argument ignores the fact that the trial court

considered the “Supplemental Petition,” held hearings on it, and reached the merits

raised by this final filing without any objection by the Commonwealth.8 To find that

it was not properly filed as an amendment is to exalt form of substance and clearly

implicates the ineffective assistance of counsel.

8
See Commonwealth Brief in Response to Second Amended PCRA Petition
which does not raise the waiver issue, instead arguing only the merits of the
Petition. (Doc. 5, pp. 61-64 at p. 62)
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After the Superior Court’s decision was issued, a timely Petition for Allocatur

was filed in the Pennsylvania Supreme Court, which denied review on November

22, 2016 (Doc. 17-6, p. 99).

On January 5, 2017, Petitioner filed this Petition for a Writ of Habeas Corpus

under 28 U.S.C. § 2254 in the Eastern District of Pennsylvania (where Petitioner

was housed at the time), alleging a denial of due process, equal protection of the

laws, denial of the right to confrontation and compulsory process. (Doc. 1).

Petitioner filed a Brief in Support of his Petition on January 31, 2017. (Doc. 5).

Petitioner asks the Court to overturn the Pennsylvania Superior Court ruling and

reinstate the Luzerne County Court’s Order granting a new trial by issuing a writ of

habeas corpus and/or granting any or all other relief to which Petitioner is entitled.

(Doc. 1).

The Eastern District issued an Order on February 27, 2017, that transferred

Petitioner’s habeas Petition to this Court. (Doc. 6). After the filing of the Mason-

Myers Election (Doc. 13), the Commonwealth’s Answer (Doc. 17) and a Traverse

(Doc. 18), the Habeas Petition was referred to me for Report and Recommendation.

III. LEGAL STANDARD

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs

the standard of deference federal courts must give state court decisions pertaining to

persons in state custody:

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(d) An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law . . .
; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.

28 U.S.C. § 2254(d)(1)–(2).

This highly deferential standard is difficult to meet and demands that state-

court decisions “be given the benefit of the doubt . . . .” Cullen v. Pinholster, 563

U.S. 170 (U.S. 2011). Factual issues determined by a state court are “presumed to

be correct” and the Petitioner bears the “burden of rebutting the presumption of

correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Moreover,

when a petitioner’s claim has been previously adjudicated on the merits, the federal

court’s review “is limited to the record that was before the state court that

adjudicated the claim on the merits.” Cullen, 563 U.S. at 181.

Regarding § 2254(d)(2)’s “unreasonable determination of facts” clause

specifically, the Third Circuit has stated:

The test . . . is whether the petitioner has demonstrated by “clear and

convincing evidence,” § 2254(e)(1), that the state court’s determination
of the facts was unreasonable in light of the record. See Rice v. Collins,
546 U.S. 333, 338-39 [] (2006) (“State-court factual findings,
moreover, are presumed correct; the petitioner has the burden of
rebutting the presumption by ‘clear and convincing evidence.’”)
(quoting § 2254(e)(1)) (citing Miller-El v. Dretke, 545 U.S. 231, 241 []
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(2005)); see also Simmons v. Beard, 590 F.3d 223, 231 (3d Cir. 2009)
(“Under the § 2254 standard, a district court is bound to presume that
the state court’s factual findings are correct, with the burden on the
petitioner to rebut those findings by clear and convincing evidence.”).
Importantly, the evidence against which a federal court measures the
reasonableness of the state court’s factual findings is the record
evidence at the time of the state court’s adjudication. Cullen[, 563 U.S.
at 181].

Rountree v. Balicki, 640 F.3d 530, 537-38 (3d Cir. 2011).

AEDPA does not require its heightened standard of deference, however,

unless petitioner’s claims have been previously “adjudicated on the merits.” See 28

U.S.C. § 2254(d); Robinson v. Beard, 762 F.3d 316, 324 (3d Cir. 2014) (“In order

for § 2254(d)(1) [or (2)] to apply, the state court must have adjudicated a petitioner’s

claims ‘on the merits.’). “A state court’s decision is an adjudication on the merits

where it is ‘a decision finally resolving the parties’ claims, with res judicata effect,

that is based on the substance of the claim advanced, rather than on a procedural, or

other ground.’” Robinson, 762 F.3d at 324 (citing Simmons v. Beard, 590 F.3d 223,

232 (3d Cir. 2009)). “If a petitioner’s claims were not adjudicated on the merits, they

do not fall under § 2254(d)(1) [or (2)], and the federal court must apply the pre-

AEDPA standard, ‘reviewing pure legal questions and mixed questions of law and

fact de novo’ and presuming that the state court’s factual determinations are correct

unless those factual determinations are rebutted by clear and convincing evidence.”

Id. (citing Simmons, 590 F.3d at 231).

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In determining whether AEDPA’s heightened standard of review applies, and

in considering the habeas petition itself, the federal court must review the “last

reasoned decision of the state courts on the petitioner’s claims.” Robinson, 762 F.3d

at 324; Simmons, 590 F.3d at 231-32 (citing Bond v. Beard, 539 F.3d 256, 289-90

(3d Cir. 2008). Where no state court has adjudicated a petitioner’s claim, the AEDPA

standard does not apply and the federal court reviews the claim de novo. Robinson,

762 F.3d at 329.

IV. ANALYSIS

The Superior Court’s decision reversing the trial court’s grant of a new trial

to Petitioner was based on an “unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).

Therefore, I recommend that the Petition (Doc. 1) be granted and that his case be

conditionally remanded to the State Courts for proceedings consistent with this

Report and Recommendation.

A. The Superior Court’s Decision: Waiver, Jurisdiction, and

Procedure

AEDPA deference is applied to the “last reasoned decision” of the state courts

on a petitioner’s claims. Simmons, 590 F.3d at 231-32 (citing Bond, 539 F.3d at 289-

90). In this case, the last reasoned decision on Petitioner’s recantation claim was

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made by the Luzerne County Court.9 The Superior Court did not reach any of

Petitioner’s claims on their merits, ruling instead solely on the issues of waiver,

jurisdiction, and procedure sua sponte.10,11 This Court is not required, therefore, to

apply AEDPA deference to the Superior Court’s decision. In such cases, although

federal courts must provide state courts’ factual determinations the presumption of

correctness unless rebutted by clear and convincing evidence, the federal courts’

review is de novo. Robinson, 762 F.3d at 324 (“If a petitioner’s claims were not

adjudicated on the merits, they do not fall under [AEDPA] § 2254(d)(1) [or (2)], and

the federal court must apply the pre-AEDPA standard, ‘reviewing pure legal

questions and mixed questions of law and fact de novo’ and presuming that the state

court’s factual determinations are correct unless those factual determinations are

rebutted by clear and convincing evidence.”) (citing Simmons, 590 F.3d at 231).

However, on the issues of waiver, jurisdiction, and procedure decided by the

Superior Court, even under AEDPA’s deferential standard, this Petition should be

9
The Luzerne County Court, however, did not provide reasoned analysis or
discussion about its decision to deny Petitioner’s other claims of ineffective
assistance of counsel, insufficiency of the evidence, and trial court errors. (See
generally Doc. 17-6, p. 57-65).
10
See Doc. 17-6, p. 93 n.3 (“In light of the waiver and jurisdictional problems
in this case, we will not address whether the trial court abused its discretion in
finding the victim’s recantation testimony credible.”).
11
Pennsylvania law allows an appellate court to consider subject matter
jurisdiction sua sponte. See Weir v. Weir, 631 A.2d 650, 653 (Pa. Super. 1993)
(citing Fried v. Fried, and Pa.R.C.P. Rule 1032(2)).
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granted because the Superior Court’s decision is “based on an unreasonable

determination of the facts.” See 28 U.S.C. § 2254(d)(2). We consider the four

conclusions the Superior Court based its decision on and the factual underpinnings

of those conclusions.

1. Did the Premature PCRA Petition Raise the Recantation Issue?

First, the Superior Court’s decision relies on its conclusion that Petitioner

failed to raise the issue of recantation in his PCRA Petition that was prematurely

filed on June 19, 2012. (Doc. 17-5, p. 73). This conclusion was based on the

erroneous factual determination that Petitioner failed to mention the issue of

recantation in his PCRA Petition.

The Superior Court acknowledged that Petitioner attached an affidavit to his

PCRA Petition in which Ms. Marth expressed that she and others witnessed the

victim recant her testimony. (Doc. 17-5, p. 90). In fact, the Superior Court quotes

the entirety of the affidavit in its decision, including the following:

I am writing this letter in light of things told to me and several other

people that, [the alleged victim], had not told the truth in her testimony
at trial against her father and that certain acts of the abuse in fact did
not happen at all. She had just “made them up and doesn’t know why.”
[The alleged victim] also expressed that she is very sorry for doing this
and is also ready to tell the truth.

Id.

Additionally, in the PCRA Petition itself, Petitioner certified in his own

handwriting that “Kimberly Marth . . . will testify that [the victim] told her and

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several others that her testimony was false.” (Doc. 17-5, p. 88).12 Despite this, the

Superior Court, apparently unaware of this statement, found that Petitioner “did not

even mention a recantation claim in the Petition itself.” (Doc. 17-6, p. 93). This

factual finding is unreasonable in light of the facts which were before the court. The

face of the PCRA Petition itself is clear and convincing evidence that the Petitioner

not only mentioned the recantation issue but also referenced and attached an affidavit

from Ms. Marth in support of his claim.

Had the Superior Court been aware of Petitioner’s express mention of the

recantation issue in his Petition, it is almost certain that the court would have found

that Petitioner adequately raised the issue of recantation in his PCRA Petition, albeit

inartfully. Rule 902 of the Pennsylvania Rules of Criminal Procedure require that a

PCRA petition include the following relevant elements:

(10) the relief requested;

(11) the grounds for the relief requested;
(12) the facts supporting each such ground that:
…
(b) do not appear in the record, and an identification of any
affidavits, documents, and other evidence showing such facts;

Pa. R. Crim. P. 902. Rule 902 also states “the petition may, but need not, include

concise argument or citation and discussion of authorities.” Id.

12
Petitioner also provided a citation in the Petition itself to Ms. Marth’s
affidavit.
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Here, Petitioner stated in his PCRA Petition his requested relief—release from

custody. (Doc. 17-5, p. 87). He also included on page 6 of the PCRA Petition itself

grounds for the relief requested in the form of a statement that he had at least one

named witness that would testify that the victim recanted her testimony. (Doc. 17-5,

p. 88). Moreover, Petitioner identified and attached documentation in the form of an

affidavit from Ms. Marth supporting his assertion that she and others had witnessed

the recantation. (Doc. 17-5, p. 90). Admittedly, Petitioner, proceeding pro se at the

time, did not check the correct “newly discovered evidence” box on his PCRA

Petition form. However, it is difficult to surmise what other purpose Petitioner could

have had other than raising a recantation claim when he stated in his Petition that he

had a witness willing to testify that the victim recanted and attached an affidavit in

support of that fact.

The Superior Court was either unaware or failed to acknowledge that at the

time the PCRA Petition was filed, Petitioner was proceeding pro se. I also note again

that the issue of waiver was neither briefed nor argued in the Superior Court. (See

footnote 7 supra, at page 7). Such emphasis on form over substance, especially in

light of an individual’s pro se status, contradicts the Superior Court’s own decisions

in similar situations. See Commonwealth v. Young, 873 A.2d 720 (Pa. Super. 2005),

appeal denied, 891 A.2d 733 (Pa. 2005), overruled on other grounds by

Commonwealth v. Wright, 14 A.3d 798 (Pa. 2011) (Although PCRA § 9543.1

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requires a defendant to request post-conviction DNA testing in the form of a motion

rather than a PCRA petition, “where . . . a pro se defendant’s sole request in a PCRA

petition is the equivalent of a section 9543.1 motion, we find that the trial court and

this Court may address it on its merits. To consider a request for DNA testing as

untimely based solely on the nomenclature used would merely elevate form over

substance.”); see also Commonwealth v. Saula-Rivera, No. 2806 EDA 2016, 2017

WL 2116949 at *2-3 (Pa. Super. May 15, 2017).

To support its conclusion that Petitioner did not raise the recantation issue

with enough specificity in his premature PCRA Petition, the Superior Court relied

on Commonwealth v. Elliott, 80 A.3d 415 (Pa. 2013). (Doc. 17-6, pp. 5-6).

Respectfully, this reliance is misplaced. In Elliott, the defendant (who was

represented by counsel) raised the issue of ineffectiveness of counsel in a PCRA

petition in 1999, alleging that his trial counsel “fail[ed] to investigate the evidence

of prior bad acts admitted against [defendant].” 80 A.3d at 424. In 2009, the PCRA

court permitted the defendant to amend his PCRA petition. The defendant’s

amendment contained only minor, irrelevant changes despite the fact that the

Superior Court’s 2003 decision in Commonwealth v. Brooks created an independent

ineffectiveness of counsel claim for when a defense attorney fails to meet with a

defendant prior to trial. In 2010, the PCRA court permitted the defendant and the

Commonwealth to file supplemental briefs as to whether an evidentiary hearing was

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required. Elliot, 80 A.2d at 424-25. In his supplemental brief, the defendant raised

for the first time the Brooks case and the additional, “independent ground” that

“counsel completely failed to communicate with his client prior to trial.” The

Commonwealth argued that this was a “last-minute presentation of a new argument”

and was inadequate to properly preserve the claim. The Superior Court agreed and

held that “[b]ecause [the defendant] did not include in his PCRA petition the claim

alleging trial counsel’s ineffectiveness for failing to meet with him prior to trial, and

did not obtain permission to amend his petition to include the same, the issue is

waived.” Id. 430.

Here, none of the waiver issues at stake in Elliott apply to Petitioner’s

premature PCRA claim. Petitioner did not belatedly attempt to raise an additional

“independent ground” in his premature PCRA Petition. Rather, this was his first time

raising the recantation issue at all. It was filed before Petitioner’s underlying

conviction became final and thus could not have been waived at that time unless

Petitioner knew about the recantation evidence during or before trial. This was not

the case here where Ms. Marth’s affidavit is dated February, 2012, which was after

Petitioner’s trial.

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2. Did the “Supplement” Raise the Recantation Issue?

Second, the Superior Court’s decision also relies on its conclusion that the

“Supplement,” which it concedes was timely filed, did not raise the issue of

recantation. (Doc. 17-6, p. 94). This conclusion, however, is based on the

unreasonable factual determination that this document did not incorporate the

previously filed PCRA Petition. That the Supplement incorporated the contents of

the PCRA Petition is manifest by (1) its title—“Supplement,” and (2) its express

language, which emphatically incorporates the PCRA Petition by reference.

The Supplement itself states that it was filed “as an addition to what

[Petitioner] has alleged” in his PCRA Petition. (Doc. 17-5, p. 109) (emphasis added).

The Superior Court was either unaware of or failed to consider this express language.

(See Doc. 17-6, p. 94). Thus, the Superior Court’s conclusion that the Supplement

did not raise the recantation issue was based on an unreasonable factual

determination that the Supplement did not incorporate the previously filed PCRA

Petition.

Furthermore, the Superior Court found it significant that the trial court did not

have authority to reinstate the PCRA Petition sua sponte. Whether the trial court had

authority to reinstate the PCRA Petition of its own volition is irrelevant here and

should not have influenced the Superior Court’s decision. This is true because even

if the Superior Court is correct that the trial court had no authority to reinstate the

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premature PCRA Petition, this does not change the fact that the Supplement was

timely filed and clearly incorporated the contents of the premature PCRA Petition

by reference.13

3. Did the Trial Court Lack Jurisdiction to Review the Recantation

Claim?

The Superior Court’s third main conclusion was that the trial court lacked

jurisdiction to review the recantation claim that was clearly raised in the “Additional

Supplement” because it was filed more than a year after Petitioner was made aware

of a potential recantation issue by Ms. Marth’s affidavit. (Doc. 17-6, p. 95) (citing

42 Pa.C.S. § 9545(b)(1)). This conclusion assumes that the recantation issue was

never raised before the “Additional Supplement.” This assumption was based on the

previously discussed unreasonable factual determinations that (1) Petitioner never

mentioned a recantation claim in his PCRA, and (2) that Petitioner’s Supplement did

not incorporate the PCRA. Given the clear and convincing evidence discussed above

that (1) Petitioner did mention recantation in the pro se PCRA Petition itself and

supplied a supporting affidavit, and (2) the timely filed Supplement expressly

13
Even if Petitioner had not expressly incorporate the pro se PCRA Petition by
reference, the doctrine of equitable estoppel would likely apply to toll the one-year
statute of limitation here. Petitioner is likely justified in relying on the trial judge’s
Order reinstating the PCRA Petition and ordering Petitioner to file a Supplement to
it. See generally Pace v. DiGuglielmo, 544 U.S. 408 (2005). Certainly, the Petitioner
cannot be penalized for simply incorporating previously filed documents and not
reiterating all claims in this situation. 
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incorporated the PCRA Petition, no judge could reasonably conclude that the

Luzerne County Court lacked jurisdiction to review Petitioner’s recantation claim.

This is true independent of whether the “Additional Supplement” was proper or

timely. I will, therefore, not address whether the record provides clear and

convincing evidence as to whether the “Additional Supplement” adequately raised

the issue of recantation.

4. Did Petitioner Fail to Request Leave of the Trial Court to File

the “Additional Supplement”?

The Superior Court held that Petitioner failed to request leave of the trial court

to file the “Additional Supplement” and that Petitioner’s claims therein were

therefore waived as untimely. Petitioner argues in his brief to this Court that he did

request leave of the trial court to file his Supplement and Additional Supplement and

that such leave was granted by the trial court.14 Whether this conclusion is correct or

whether it is based on an unreasonable determination of the facts is not relevant

given my previous conclusions that the record contains clear and convincing

evidence that the recantation issue was timely raised in the Supplement and PCRA

by incorporation. Therefore, I need not address the issue further here.

14
Doc. 5, pp. 58-59, Motion to Continue PCRA Hearing scheduled for May 22,
2014 “due to newly discovered evidence, the recanting of the victim” and alleging
that “The Court further indicated that a new Order would be forthcoming, requiring
briefs from both parties regarding the new evidence and scheduling a new hearing.”
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B. Whether the Trial Court Erred in Granting a New Trial on the

Recantation Issue.

The Superior Court expressly declined to address whether the trial court erred

in granting a new trial based on Petitioner’s recantation claim. Therefore, the

Luzerne County Court is the only state court to address Petitioner’s recantation claim

on its merits. It is that Court’s reasoned decision that demands AEDPA deference

on that issue. See Robinson, 762 F.3d at 324; Simmons, 590 F.3d at 231-32.

In the Luzerne County Court’s Opinion accompanying its Order granting

Petitioner a new trial, the court acknowledged that “recantation is one of the least

reliable forms of proof, particularly when it constitutes an admission of perjury.”

(Doc. 17-6, p. 64) (citing Anderson, 353 A.2d at 386). Nevertheless, after personally

observing the victim’s testimony at the PCRA Hearing, the Court found her

recantation to be credible. (Doc. 17-6, p. 59).

The Court further found that Petitioner successfully satisfied all four prongs

of Pennsylvania’s test for alleging newly discovered evidence under the PCRA.

(Doc. 17-6, pp. 57-65). That test required the Petitioner to prove by a preponderance

of the evidence that:

1. The evidence has been discovered after the trial and it could not have
been obtained at or prior to trial through reasonable diligence;
2. Such evidence is not cumulative;
3. The evidence is not being used solely to impeach credibility; [and]
4. Such evidence would likely compel a different verdict.

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Id. (citing a host of Pennsylvania cases, including Medina, 92 A.3d at 1218; Pagan,

950 A.2d at 292; Castro, 55 A.3d at 1246).

First, with regard to prong one, whether the recantation could have been

discovered before or at trial, the court reasoned as follows:

[I]t should be noted the Superior Court has previously “rejected the
Commonwealth’s assertion that the victim’s recantation is not truly
after-discovered evidence because the Defendant knew prior to trial that
the victim was not telling the truth.” Commonwealth v. Loner, 836 A.2d
12 (Pa. Super. 2003). Moreover, the Commonwealth in the present
instance has conceded in its briefing that if credible, the victim now
recanting her testimony would be exculpatory since she would be
considered the only eye witness to the crimes alleged. Accordingly, we
find that the recantation testimony of [the alleged victim] fits squarely
within the test for after-discovered evidence.

(Doc. 17-6, p. 62).

The trial court does not specifically address when Petitioner could have

discovered evidence of recantation testimony through due diligence and makes no

mention of Ms. Marth’s affidavit. However, based on the information in the record,

the trial court could have reasonably found that the Petitioner could not have learned

of the recantation testimony before February, 2012, as there is no other evidence

whatsoever in the record of recantation before that date. And because the judge could

have reasonably found that Petitioner raised the issue of recantation in his timely

Supplement by incorporating his first pro se PCRA Petition, I find that it was

reasonable for the trial judge to find that Petitioner could not have discovered the

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new recantation evidence at or before trial, which took place well before Ms. Marth’s

affidavit in February, 2012.

Second, with regard to the second prong, the trial court found that the

recantation evidence was “not cumulative but rather contradictory given that [the

victim] was the sole eyewitness to the crime.” (Doc. 17-6, p. 62). The

Commonwealth provides no reason to find that the recantation evidence was

cumulative, nor do I find any.

Third, the trial court concluded that the recantation evidence was not being

used solely to impeach credibility. Id.

The victim’s recantation testimony challenges the material facts upon

which the crime was based, and if it was even committed. As the
Superior Court determined in Medina and Fiore, a jury should be
presented with the recantation testimony to determine whether the
recantation is more credible than any statement she made in the past.
The unique circumstance of this case is that the recantation is from the
sole eyewitness who is also the victim.

(Doc. 17-6, pp. 62-63).

Fourth, the trial court found that the recantation testimony would likely

compel a different verdict. Given that the victim was the only eyewitness to the

alleged crime, I do not find the trial court’s conclusion on this prong unreasonable.

In its brief to this Court, the Commonwealth provides no specific reasons to

question the reasonableness of the trial court’s determinations. Thus, I do not find

that the trial court’s decision was “contrary to, or involved an unreasonable

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application of, clearly established Federal law” or “based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” § 2254(d).

C. Petitioner’s Other Claims: (1) Ineffective Assistance of Counsel, (2)

Weight of the Evidence (3) Trial court errors.

Unlike his recantation claim, it is undisputed that Petitioner timely raised (1)

ineffective assistance of counsel, (2) insufficiency of the evidence, and (3) trial court

errors. These claims, however, were not addressed in a reasoned opinion by any state

court. Rather, the trial court simply stated in its Opinion accompanying its Order

granting Petitioner a new trial that it found them “all to be without merit.” (Doc. 17-

6, p. 58). Thus, AEDPA’s heightened deference does not apply to these claims and

the federal court, giving state courts’ factual determinations the presumption of

correctness, may review them de novo. However, because I recommend granting

Petitioner’s Writ of Habeas Corpus on the recantation issue, I find no need to address

these other claims at length.

VI. RECOMMENDATION

The Pennsylvania Superior Court’s decision reversing the trial court’s grant

of a new trial to Petitioner relied on the following unreasonable determinations of

the facts: (1) Petitioner never mentioned the recantation issue in his PCRA Petition,

(2) The Supplement did not expressly incorporate the PCRA Petition.

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Given the clear and convincing evidence that (1) Petitioner did in fact

expressly mention the issue of recantation in the pro se PCRA Petition itself and

provided a supporting affidavit, and (2) Petitioner’s newly appointed counsel

expressly incorporated the pro se PCRA Petition in his timely filed Supplement, no

reasonable judge could conclude that the trial court lacked jurisdiction to review

Petitioner’s recantation claim. Therefore, I will recommend that Petitioner’s Writ of

Habeas Corpus be granted and that his case be remanded to the State Courts for

proceedings consistent with this Report and Recommendation.

Accordingly, for the foregoing reasons, upon consideration of this Petition for

Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254, and the Response in

Opposition to this Petition, IT IS RECOMMENDED that:

(1) The Petition (Doc. 1) be CONDITIONALLY GRANTED;

(2) Petitioner’s conviction and sentence be VACATED;

(3) The Commonwealth be directed to either retry Petitioner within 120

days, or release the petitioner; and,

(4) The Clerk of Court be directed to CLOSE this case.

Date: February 7, 2020 BY THE COURT,

s/ William Arbuckle
William Arbuckle
U.S. Magistrate Judge

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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA
JOSEPH D. MARCY, ) CIVIL ACTION NO. 3:17-cv-00411
Petitioner )
) (CAPUTO, D.J.)
v. )
) (ARBUCKLE, M.J.)
WARDEN, SCI GRATERFORD, )
et al., )
Respondents )
NOTICE OF RIGHT TO OBJECT UNDER
LOCAL RULE 72.3 AND 28 U.S.C. § 636 (b)

NOTICE IS HEREBY GIVEN that any party may obtain a review of the
Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge’s proposed findings, recommendations
or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or
making a recommendation for the disposition of a prisoner case or a habeas corpus
petition within fourteen (14) days after being served with a copy thereof. Such party
shall file with the clerk of court, and serve on the magistrate judge and all parties,
written objections which shall specifically identify the portions of the proposed
findings, recommendations or report to which objection is made and the basis for
such objections. The briefing requirements set forth in Local Rule 72.2 shall apply.
A judge shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made and
may accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge. The judge, however, need conduct a new hearing only
in his or her discretion or where required by law, and may consider the record
developed before the magistrate judge, making his or her own determination on the
basis of that record. The judge may also receive further evidence, recall witnesses,
or recommit the matter to the magistrate judge with instructions.

Date: February 7, 2020 BY THE COURT

s/William I. Arbuckle
William I. Arbuckle
U.S. Magistrate Judge

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