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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. JEROME GIBSON

Appellant No. 584 EDA 2014

Appeal from the PCRA Order entered January 21, 2014 In the Court of Common Pleas of Bucks County Criminal Division at No: CP-09-CR-0005119-1994

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and STABILE, J.

MEMORANDUM BY STABILE, J.: FILED JANUARY 16, 2015

Jerome Gibson is serving a life sentence for his conviction of first- degree murder and related offenses. He appeals from an order dismissing

as untimely his second petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Because the PCRA court correctly concluded that the petition fails to meet the exceptions to the PCRA’s time bar, we affirm.

On September 29, 1994, Gibson shot and killed 76-year-old Robert

Berger during a robbery in Bristol Borough, Bucks County.

[That] morning . . . , Gibson sought to obtain an automobile, as his car had recently broken down. He asked a friend, Sean Hess, for $200 so that he could purchase a new vehicle. When Hess refused, Gibson spoke of “making a move,” meaning that he would commit a robbery.

At approximately noon on that same day, Gibson went to an automobile dealership in Bristol Township to look for a replacement vehicle. Although he expressed an interest in purchasing a vehicle that was shown to him by salesman Glen

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Kashdan, he did not have the necessary funds. He told Kashdan, however, that his mother maintained sufficient funds in a bank account in Bristol Borough to pay for the vehicle. After Kashdan drove Gibson to the bank in a fruitless effort to withdraw the non-existent funds, he dropped Gibson off at a shopping center in Bristol Township, about one mile from the eventual scene of the crime. Gibson was wearing a dark hooded sweatshirt and jeans.

Melissa Paolini, who worked at the bank where Kashdan had taken Gibson, observed the two men enter the bank at approximately 1:15 p.m. Gibson’s picture was taken by the bank’s monitor camera and was later identified by Paolini at trial. The picture clearly depicted Gibson wearing a dark hooded sweatshirt.

Shortly before 2:00 p.m., Gibson met Paulinda Moore, a long- time acquaintance, in the shopping center. Gibson showed Moore a handgun that was tucked into the waistband of his pants and stated that he needed money and was going to rob somebody. He added that if his prospective victim saw his face, he would shoot him. Gibson and Moore then parted company and Gibson continued on foot to Bristol Borough.

Kevin Jones, another acquaintance, encountered Gibson a little while later. Gibson informed Jones that he knew “a guy that had money,” whom he was going to rob, killing him if necessary.

At approximately 2:00 p.m., Vera DuBois, Gibson’s aunt, saw Gibson on foot in Bristol Borough and noticed that he was wearing a dark hooded sweatshirt. At 2:20 p.m., Gibson entered a jewelry store. Leonard Wilson, the store’s proprietor, became suspicious of Gibson when he noticed that Gibson appeared to be observing the store itself, rather than looking at jewelry. After a brief conversation with Wilson, Gibson left the store.

Between 2:30 and 3:00 p.m., Kimberly Rankins, another acquaintance, nearly hit Gibson with her car as he was crossing Mill Street in the direction of the Ascher Health Care Center (“Ascher Health”) in Bristol Borough. The last time that Rankins observed Gibson that day, he was wearing a dark blue sweatshirt and was approximately twenty-five feet away from the entrance of Ascher Health, walking towards it.

Shortly before 3:00 p.m., Michael Segal, a shopkeeper at a store directly across the street from Ascher Health, heard a gunshot

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from inside Ascher Health. Segal looked across the street and saw Robert Berger, the proprietor of Ascher Health, struggling with an assailant behind the store counter. When Segal observed that the assailant had a gun, he dialed “911.” While on the telephone, he heard two more gunshots. He looked across the street and saw Berger lying on the floor while the assailant rifled through the cash register drawers. Segal then observed the assailant leave the store, stuffing items into his pants, and walk up Mill Street towards an apartment building. Segal was unable to see the assailant’s face, but he did observe that the man was wearing a dark blue hooded sweatshirt. Segal later testified at trial that the man’s size, build and complexion matched those of Gibson.

Alfonso Colon, who was in a second floor apartment above Ascher Health that afternoon, walked downstairs and went outside after hearing the three gunshots. He saw Gibson, whom he positively identified at trial, leaving Ascher Health and walking toward him while stuffing an object that appeared to be a handgun into his pants. Upon seeing Colon, Gibson crossed Mill Street and headed in a different direction.

At 2:58 p.m., the police responded to Segal’s call. They entered Ascher Health and found Berger lying dead on the floor from gunshot wounds. A cash drawer was open and there was an empty gun holster on the floor. Berger was pronounced dead upon arrival at the hospital at approximately 3:45 p.m. An autopsy revealed that he had suffered three gunshot wounds: a fatal wound to the left chest, a wound to the upper right chest, and a wound to the upper left arm. Two .32 caliber projectiles were removed from the body. It was later determined that approximately $1,400 in cash had been stolen during the robbery, along with a .38 caliber handgun belonging to Berger. There was no evidence that Berger’s gun had been fired during the robbery.

Shortly after 3:00 p.m. on the day of the shooting, Gibson arrived at the home of his cousin, Pamela Harrison. When Harrison responded to Gibson’s knock on her door, she observed that he was wearing a dark hooded sweatshirt and was sweating. Harrison also heard police sirens. Gibson asked to come into the house and Harrison admitted him, noticing that he was carrying a handgun. After hiding his sweatshirt in Harrison’s basement, Gibson left the house. He returned later that evening and retrieved the sweatshirt without Harrison’s permission.

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After leaving Harrison’s house, Gibson met his friend, Sean Hess, in the shopping center where Gibson had been earlier that day. Gibson told Hess that he had shot a man three times and taken his money. Gibson also stated that the victim had a gun, but that he had used his own gun.

The following day, while at a bar, Gibson admitted to Bernard Mc[L]ean that he had shot the old man in Bristol three times, explaining that he had been broke and needed the man’s money. He later told his friends, Herman Carroll and Eddie Jones, that he had robbed and killed the victim. He also told Edward Gilbert, another friend, that he had killed the victim to obtain money with which to purchase a vehicle. He gave Gilbert the .32 caliber handgun, along with Berger’s .38 caliber handgun, to keep for him. Berger’s gun was later recovered at a motel in Bristol Township, but Gibson’s gun was never located.

On October 2, 1994, three days after the murder, two detectives from the Bucks County District Attorney’s Office, who had received information implicating Gibson in the murder, went to the apartment where Gibson was staying and waited outside in their car. Shortly thereafter, Gibson and some other individuals came out of the apartment. Gibson approached the detectives and asked them if they wished to speak with him. In response to Gibson’s inquiry, the detectives told him that they wished to talk to him about a murder that had occurred on Mill Street on September 29, 1994. Gibson asked if he was under arrest and the officers replied that he was not. They suggested, however, that Gibson speak with them at the Bristol Borough Police Station, since there were other people nearby. The detectives made it clear that Gibson could proceed to the station by his own transportation, that he would be free to leave the station at any time, and that he could terminate the conversation whenever he wished. Gibson acquiesced and followed them to the police station in his own vehicle, which he had purchased the day after the shooting.

Upon arriving at the police station, the detectives led Gibson to an interview room, where another detective and a Bristol Borough police officer joined them. Gibson was again advised that he was not under arrest and could leave the station at any time. When the detectives told Gibson that they wanted to discuss the robbery and murder of Berger, he indicated that he wanted to clear the matter up and would speak with them. The interview lasted for a little over two hours, during which Gibson

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not only denied any culpability for the shooting, but also denied having been in Bristol Borough at any time after August 2, 1994. Following the interview, Gibson agreed to a search of his vehicle and signed a consent form. During the search, Gibson initiated a conversation with one of the detectives, asking him a hypothetical question regarding what would happen if someone were attacked by a man with a gun and shot and killed his attacker. Gibson then left the police station in his vehicle.

On October 6, 1994, Gibson was arrested and charged with the robbery and murder of Berger, as well as possession of instruments of crime.[1] Bail was denied, and while Gibson was incarcerated pending trial, he admitted to inmates Glenn Pollard, Kenneth Johnson and Kevin Jones that he had committed the crimes. Prior to trial, Gibson moved to suppress his statements to the police during the October 2, 1994 interview, as well as the statement that he made to the detective during the search of his car. The motion was denied following a hearing, and the case proceeded to trial.

During the guilt phase of trial, the Commonwealth presented the testimony of the numerous witnesses who had seen or spoken with Gibson either immediately before or after the shooting, including the testimony of those witnesses to whom Gibson had inculpated himself. Additionally, several detectives and police officers testified for the Commonwealth concerning their observations of the crime scene, the collection of evidence, and the statements that Gibson made during the course of his interview, as well as his hypothetical question concerning the shooting.

Gibson presented five witnesses whose testimony supported his alibi defense and contradicted the testimony of certain inmates who had testified concerning his inculpatory statements. Gibson also took the stand and testified that he was not on Mill Street on the afternoon of the murder, but did admit that he had been with Kashdan, the car salesman, at the bank in Bristol Borough earlier that day. Gibson further admitted that he had lied to the police concerning his whereabouts on the day of the murder.

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1 18 Pa.C.S.A. §§ 2502(a), 3701, and 907.

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Commonwealth v. Gibson (Gibson I), 720 A.2d 473, 476-78 (Pa. 1998). The jury convicted Gibson of all three counts. After a penalty phase, the jury returned a verdict that Gibson be sentenced to death, and the trial court duly imposed the sentence. On direct appeal, our Supreme Court affirmed the conviction and death sentence, and the Supreme Court of the United States denied Gibson’s petition for writ of certiorari on October 4, 1999. Gibson v. Pennsylvania, 528 U.S. 852 (1999). Following direct review, on October 29, 1999, Gibson filed pro se a timely first PCRA petition. Current PCRA counsel assumed representation of Gibson and filed an amended PCRA petition and two supplements. Among other, numerous claims, Gibson raised Brady2 violations. He contended the Commonwealth failed to turn over material that could have been used to impeach its witnesses, including Edward “Eddie” Jones, Glenn Pollard, Cyril “Moo Moo” Thomas, Kevin Jones, Edward Gilbert, Herman Carroll, and Bernard McLean. See Commonwealth v. Gibson (Gibson III), 959 A.2d 962, No. 1778 EDA 2008, unpublished memorandum at 5-15 (Pa. Super. filed July 8, 2008). On May 22, 2002, the PCRA court denied guilt-phase relief, but granted Gibson a new penalty-phase hearing. The parties cross- appealed to the Supreme Court, which remanded for an evidentiary hearing ____________________________________________

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in light of the then-recent decision Atkins v. Virginia, 536 U.S. 304 (2002), under which the mentally retarded, i.e., the intellectually disabled, cannot be executed. On remand, Gibson attempted to add a new claim to his PCRA petition regarding the legality of his arrest by police. The PCRA court denied Gibson’s request, but found that Atkins barred his execution. The case returned to the Supreme Court, which affirmed the PCRA court’s finding that Gibson is intellectually disabled. Commonwealth v. Gibson (Gibson II), 925 A.2d 167 (Pa. 2007). The Supreme Court modified Gibson’s sentence to life without parole and transferred the case to this Court for adjudication of the remainder of Gibson’s appeal. Id. at 171. This Court affirmed the denial of PCRA relief in all respects except one: a layered ineffective assistance of counsel3 claim regarding Gibson’s competency to stand trial. Gibson III, 959 A.2d 962 (Pa. Super. 2008) (unpublished memorandum), appeal denied, 966 A.2d 570 (Pa. 2009). We vacated and remanded to the PCRA court for a hearing on that claim. Because Gibson challenged the effectiveness of PCRA counsel, the trial court appointed separate counsel to litigate the competency claim. On remand, ____________________________________________

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separate counsel withdrew the competency claim at Gibson’s behest. See generally N.T. PCRA Hearing on Remand, 11/5/09, at 3-17. On January 29, 2010, Gibson, again represented by PCRA counsel, filed a habeas corpus petition in the United States District Court for the Eastern District of Pennsylvania, Gibson v. Beard, docketed at No. 10-CV- 0445. The federal district court granted Gibson’s motion for discovery. In response, the Bucks County District Attorney’s Office provided over 990 pages of material to PCRA counsel. In an accompanying affidavit, counsel for the Commonwealth averred: Pursuant to [the federal habeas c]ourt’s [o]rder of September 16, 2011, I have reviewed the entire contents of the Bucks County District Attorney’s criminal case file in Commonwealth v. Jerome Gibson, Bucks County Case No. 5119 of 1994 for any information that qualifies under Brady v. Maryland, 373 U.S. 83 (1963), for subsequent disclosure to Petitioner of any Brady information not previously provided to Petitioner. While the undersigned believes that all discoverable and/or Brady materials have been previously provided to [Gibson] through his trial and/or post-conviction counsel, either formally or informally, in an abundance of caution, the undersigned has made, and is forwarding to [Gibson’s] counsel, a complete copy of all discoverable and Brady materials contained within the Gibson file. Affidavit of Karen A. Diaz, Esq., Deputy District Attorney (Diaz Affidavit), 10/14/11, ¶¶ a-b.^[4] On Gibson’s request, the Commonwealth also provided ____________________________________________

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copies of police report interviews of two witnesses from the file of an unrelated homicide (the Turner Rogers case),5 and all police incident reports between 1993 and 1995 for trial witness Eddie Jones. Gibson then filed a supplemental habeas petition, and the federal court granted his motion to stay habeas proceedings so Gibson could return to state court to exhaust his claims. On December 13, 2011, Gibson filed a PCRA petition entitled “Protective Petition for Habeas Corpus Relief Pursuant to Article I Section 14 of the Pennsylvania Constitution and Statutory Post-Conviction Relief under _______________________ (Footnote Continued) On October 14, 2011, the Commonwealth of Pennsylvania produced over 990 pages of documents to Appellant’s counsel and filed an affidavit of counsel. According to the affidavit, the Commonwealth produced “Brady information not previously provided to Petitioner” and “all discoverable and Brady materials contained in the Gibson file” including “every police report, witness statement, laboratory reports, all criminal histories and other documents in connection to same that are contained within the file.” Appellant’s Brief at 5 (quoting Diaz Affidavit) (emphasis added). The Commonwealth averred no such thing. A candid, forthright quotation of the Diaz Affidavit shows the Commonwealth merely averred that it searched the file to determine whether any undisclosed Brady material existed. 5 Commonwealth v. Turner Rogers, No. CP-09-CR-0005296-1994 (C.P. Bucks), judgment aff’d, 685 A.2d 1047 (Pa. Super. 1996) (unpublished memorandum), appeal denied, 698 A.2d 593 (Pa. 1997). The killing in the Turner Rogers case coincidentally happened on the same day as the murder in this case. As reflected in this Court’s memorandum affirming the judgment of sentence, Turner Rogers was convicted of involuntary manslaughter for killing Jermaine Brown during an argument.

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42 Pa.C.S. § 9542 et seq. and Consolidated Memorandum of Law,” which we shall call Gibson’s second PCRA petition. Gibson stated his belief that his case belongs in federal habeas court, but, citing nonspecific vagaries of PCRA law, claimed the second PCRA petition was necessary to protect his rights. See Second PCRA Petition, 12/13/11, ¶¶ 2-3. Gibson asserted he had received a number of the federal habeas discovery documents for the first time, and that they constituted Brady material. The Brady violations are based on the alleged suppression of impeachment material regarding the Commonwealth’s witnesses at trial. In all Gibson advanced 12 separate Brady claims based on 19 documents. See PCRA Court Rule 1925(a) Opinion, 5/14/14, at 11. Those 19 documents were entered into evidence at the PCRA hearing as Exhibits D-5 to D-23. PCRA Hearing Exhibits D-5 to D-10 pertain to Eddie Jones. Jones testified at trial that Gibson, while possessing a .38 caliber pistol, told other people he had killed a “cracker” during a robbery when the “cracker” pulled a gun. Id. at 11-12. Exhibits D-5 to D-9 are Bristol Township Police Department incident reports regarding Eddie Jones.^[6] Id. The incident reports show that Eddie Jones gave a false name to police, and was involved in domestic disturbances, but was not arrested or convicted of any crimes. ____________________________________________