J-S05006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TROY JAMELL GELLISPIE,

                            Appellant                 No. 442 MDA 2015


            Appeal from the PCRA Order Entered February 11, 2015
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0005373-2006


BEFORE: BENDER, P.J.E., SHOGAN, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED JANUARY 26, 2016

        Appellant, Troy Jamell Gellispie, appeals from the post-conviction

court’s February 11, 2015 order denying his petition filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        This Court provided a summary of the facts of this case in a prior

decision, as follows:

               [Appellant] was charged with first degree murder,
        conspiracy to commit murder, and third degree murder for the
        shooting death of Christopher Jackson. [Appellant] and several
        of his friends allegedly went to the victim’s house and open-fired
        at the victim and two other individuals who were sitting on his
        front porch. [Appellant] was tried along with his brother and
        co[-]conspirator, Franklin Jackson, who had transported the
        shooters to and from the scene.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S05006-16


           The case went poorly for the Commonwealth during the
     first several days of trial. None of the Commonwealth’s
     eyewitnesses testified to the same facts that they had at the
     preliminary hearing and/or provided to police in statements
     given near the time of the shooting. Several of the witnesses
     indicated that they had previously lied under oath or to police,
     and although all of the eyewitnesses testified that [Appellant]
     had a gun and was shooting at the time of the victim’s death,
     none definitively testified that [Appellant] was the individual who
     shot the victim. Most of the witnesses also had lengthy criminal
     records; one of whom, Michael Santangelo, admitted during his
     testimony to recently committing a crime for which he had not
     been caught, and was taken directly into police custody from the
     witness stand.

            The tide began to change a bit when a third co-
     conspirator, Shannon Stuart, testified. Stuart was arrested in
     Georgia on the first day of trial, waived extradition, and agreed
     to cooperate with the Commonwealth by testifying against
     [Appellant] and Jackson. [Appellant] and Jackson both objected
     to Stuart being permitted to testify, which was overruled by the
     trial court. The jury was made aware that in exchange for his
     testimony, the Commonwealth promised Stuart that it would
     drop the first degree murder charge and try him only on third
     degree murder. Stuart testified that on the day in question, he
     saw [Appellant] shoot the victim.

Commonwealth       v.   Gellispie,   No.   773   MDA     2010,   unpublished

memorandum at 1-2 (footnote omitted).

     Based on this evidence, the jury convicted both Appellant and Jackson

of third-degree murder in March of 2007. On April 30, 2007, Appellant was

sentenced to an aggregate term of 20 to 40 years’ incarceration. He filed a

timely appeal to this Court and we affirmed his judgment of sentence, after

which our Supreme Court denied his petition for allowance of appeal on

November 19, 2008.      Commonwealth v. Gellispie, 959 A.2d 459 (Pa.

Super. 2008) (unpublished memorandum), appeal denied, 960 A.2d 837



                                     -2-
J-S05006-16



(Pa. 2008). Accordingly, Appellant’s judgment of sentence became final on

February 17, 2009, after the time expired for him to seek review by the

Supreme Court of the United States. See 42 Pa.C.S. § 9545(b)(3) (stating

that a judgment of sentence becomes final at the conclusion of direct review

or the expiration of the time for seeking the review); Commonwealth v.

Owens, 718 A.2d 330, 331 (Pa. Super. 1998) (directing that under the

PCRA, petitioner’s judgment of sentence becomes final ninety days after our

Supreme Court rejects his or her petition for allowance of appeal since

petitioner had ninety additional days to seek review with the United States

Supreme Court).

      On November 9, 2009, Appellant filed a timely PCRA petition and

counsel was appointed. After conducting a hearing, the PCRA court denied

Appellant’s petition on May 4, 2010. This Court affirmed the PCRA court’s

order on December 6, 2010, and our Supreme Court denied Appellant’s

subsequent petition for allowance of appeal. Commonwealth v. Gellispie,

23 A.3d 569 (Pa. Super. 2010) (unpublished memorandum), appeal denied,

21 A.3d 1190 (Pa. 2011).

      On August 21, 2013, Appellant filed the PCRA petition underlying the

instant appeal. Appellant’s co-defendant at trial, Franklin Jackson, also filed

a petition raising similar claims.    The PCRA court appointed the same

attorney to represent both Appellant and Jackson, but due to alleged




                                     -3-
J-S05006-16



conflicts, that attorney withdrew her representation.           Two more attorneys

were appointed and withdrew due to conflicts with Appellant and Jackson.1

The court appointed a fourth attorney, who ultimately represented Appellant

throughout     the    PCRA     proceedings,      while   co-defendant   Jackson   was

permitted to proceed pro se.

       On October 21, 2014, an initial PCRA hearing was conducted, at which

the   court assessed the         timeliness of Appellant’s       petition, ultimately

concluding that he had pled and proven the applicability of the after-

discovered fact exception of 42 Pa.C.S. § 9545(b)(1)(ii), discussed in more

detail infra. See N.T. Hearing, 10/21/14, at 16. On December 15, 2014,

the court conducted a hearing to assess the merits of that after-discovered

evidence claim. The PCRA court summarized, in pertinent part, the evidence

presented at the PCRA hearing, as follows:

             Both … Jackson and [Appellant] argued that Mandy
       Keiser[, Shannon Stuart’s girlfriend at the time of the murder
       and trial,] should have been called as a witness for the defense
       in order to show that [Mr.] Stuart was lying about the events
       that took place on the night of the homicide. Ms. Keiser testified
       that she was dating [Mr.] Stuart when the homicide occurred.
       She said that police interviewed her a couple days after the
       homicide, but at that point in time she did not know much about
       what had happened. Over some period of time, Mr. Stuart did
       begin to give Ms. Keiser more details about what occurred. At
____________________________________________


1
  According to the PCRA court, “[n]one of the conflicts involved having the
same appointed attorney representing the two co-defendants, since their
defenses and claims were in concert.” PCRA Court Opinion (PCO), 2/11/15,
at 2.




                                           -4-
J-S05006-16


      [Appellant’s and Jackson’s] trial, Ms. Keiser was present when
      Mr. Stuart testified that he attempted to fire his weapon, but it
      jammed. However, around the time of trial, Ms. Keiser said Mr.
      Stuart told her that his gun did in fact fire and that it did not
      jam. Ms. Keiser did not call the police. However, she did claim
      that she told the private investigator and Attorney Robinson,
      Defendant Jackson’s counsel, prior to the trial starting.

PCO at 2-3 (citations to the record omitted).

      Ultimately, the PCRA court denied Appellant’s petition on the basis that

Mandy Keiser’s proposed testimony failed to satisfy the four-pronged test for

proving a new trial is warranted based upon after-discovered evidence. See

PCO at 5-8; see also Commonwealth v. Pagan, 950 A.2d 270, 292

(2008) (citations omitted) (“To obtain relief based on after-discovered

evidence, [an] appellant must demonstrate that the evidence: (1) could not

have been obtained prior to the conclusion of the trial by the exercise of

reasonable diligence; (2) is not merely corroborative or cumulative; (3) will

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.”). Appellant

filed a timely notice of appeal, as well as a timely Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. Herein, he raises one question

for our review: “Whether the [PCRA] [c]ourt abused its discretion by denying

[] Appellant’s PCRA petition and request for a new trial based on after[-]

discovered evidence?” Appellant’s Brief at 3.

      Initially, our standard of review regarding an order denying post

conviction relief under the PCRA is whether the determination of the court is

supported   by   the   evidence   of   record   and   is   free   of   legal   error.


                                       -5-
J-S05006-16



Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). This Court

grants great deference to the findings of the PCRA court, and we will not

disturb those findings merely because the record could support a contrary

holding.    Commonwealth v. Touw, 781 A.2d 1250, 1252 (Pa. Super.

2001).

      We must begin by examining whether the PCRA court correctly ruled

that Appellant’s claim satisfies a timeliness exception to the PCRA’s one-year

time-bar, as the PCRA time limitations implicate our jurisdiction and may not

be altered or disregarded in order to address the merits of a petition. See

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the

PCRA, any petition for post-conviction relief, including a second or

subsequent one, must be filed within one year of the date the judgment of

sentence becomes final, unless one of the exceptions set forth in 42 Pa.C.S.

§ 9545(b)(1)(i)-(iii) applies. That section states, in relevant part:

      (b) Time for filing petition.--

           (1) Any petition under this subchapter, including a second
           or subsequent petition, shall be filed within one year of the
           date the judgment becomes final, unless the petition
           alleges and the petitioner proves that:

              (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



                                       -6-
J-S05006-16


            (iii) the right asserted is a constitutional right that
            was recognized by the Supreme Court of the United
            States or the Supreme Court of Pennsylvania after
            the time period provided in this section and has been
            held by that court to apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Here, Appellant’s judgment of sentence became final on February 17,

2009; thus, he had until February 17, 2010, to file a timely petition.

Consequently, his petition, filed in August of 2013, is facially untimely and,

for this Court to have jurisdiction to review the merits of his after-discovered

evidence claim, Appellant has to prove that it meets the exception set forth

in 42 Pa.C.S. § 9545(b)(1)(ii).

      In this vein, Appellant contends that Mandy Keiser’s proposed

testimony is newly discovered evidence because his trial counsel “had no

information as to Mandy Keiser and the statements she would make at trial.”

See Appellant’s Brief at 11 (unnumbered). Appellant also baldly asserts that

he acted diligently in discovering Ms. Keiser’s proposed testimony. See id.

(“This is not a case where counsel was not diligent, yet one where there was

truly newly discovered evidence.”).

      The Commonwealth, however, maintains that Ms. Keiser’s testimony

that Shannon Stuart shot his gun at the scene of the murder is merely a

“newly willing source for previously known facts.” Commonwealth’s Brief at

13 (quoting Commonwealth v. Johnson, 863 A.2d 423, 427 (Pa. 2004),


                                      -7-
J-S05006-16



abrogation   on   different   grounds   recognized   by,   Commonwealth       v.

Bennett, 930 A.2d 1264 (Pa. 2007)). In support, the Commonwealth relies

on the following testimony of Charles Jackson at Appellant’s trial:

      [Appellant’s Counsel:] Did Shannon Stuart tell you what he did
      [on the] day [of the murder]?

      [Jackson:] Yeah.

      [Appellant’s Counsel:] What[] [did] he say?

      [Jackson:] Well, we was [sic] on our way to his girlfriends [sic]
      at the time … and I asked him what he did and that’s when he
      told me he popped the dude in the stomach.

      …

      [Appellant’s Counsel:] Did he ever tell you anything about his
      gun not firing?

      [Jackson:] No.

N.T. Trial, 3/14/07-3/16/07, at 718.

      Based on our review of the record, we agree with the Commonwealth

that Mandy Keiser’s proposed testimony was simply a new source for the

fact that Mr. Stuart shot his weapon at the scene of the murder, as Charles

Jackson also stated that fact at trial. Additionally, Appellant has also failed

to demonstrate that Mr. Stuart’s statement to Ms. Keiser was ‘unknown’ to

Appellant, and could not have been ascertained with due diligence. At the

PCRA hearing, Ms. Keiser testified that prior to trial, she relayed Mr. Stuart’s

statement to a private investigator working for Franklin Jackson’s counsel.

Appellant does not explain why he, too, could not have spoken with Ms.

Keiser prior to trial and learned this same information. Indeed, Appellant’s



                                        -8-
J-S05006-16



trial counsel stated at the PCRA hearing that Ms. Keiser’s name was

mentioned in the pre-trial discovery, and he knew that she had spoken to

police.   N.T. Hearing, 12/15/14, at 56.         Moreover, Jackson and Appellant

were co-defendants and are brothers, yet Appellant does not explain why

he, or his trial counsel, could not have obtained Ms. Keiser’s statement from

Mr. Jackson’s counsel or the private investigator. Accordingly, we conclude

that Appellant has not demonstrated that his claim based on Ms. Keiser’s

proposed testimony satisfies the after-discovered fact exception of section

9545(b)(1)(ii).     Thus, the PCRA court did not err in denying his untimely

petition.2




____________________________________________


2
  While the PCRA court found Appellant’s petition was timely, but denied him
relief after assessing the underlying merits of his after-discovered evidence
claim, we "may affirm the decision of the PCRA [c]ourt if it is correct on any
basis.” Commonwealth v. Hutchins, 760 A.2d 50, 54 (Pa. Super. 2000)
(citing Commonwealth v. Pursell, 749 A.2d 911, 917 (Pa. 2000);
Commonwealth v. Ahlborn, 683 A.2d 632, 641 n.14 (Pa. Super. 1996)).




                                           -9-
J-S05006-16



     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/26/2016




                          - 10 -
