J-A07013-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 FRANKLIN LUTHER JACKSON                  :
                                          :
                    Appellant             :   No. 1693 MDA 2018

           Appeal from the PCRA Order Entered August 10, 2018
  In the Court of Common Pleas of York County Criminal Division at No(s):
                         CP-67-CR-0005374-2006


BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.

MEMORANDUM BY OLSON, J.:                  FILED: APRIL 30, 2020

      Appellant, Franklin Luther Jackson, appeals from the order entered on

August 10, 2018, which denied him relief on his fourth petition filed under the

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

      In a previous appeal, we quoted the trial court’s thorough recitation of

the underlying facts:

        Members of Appellant's group got into a verbal dispute with
        the members of another group. The next day someone fired
        a shotgun through the front door of the residence where
        Appellant and co-defendant [Troy Gellispie] lived on South
        Queen Street [in York, Pennsylvania]. Appellant suspected
        that the members of the other group with whom they had a
        dispute were the perpetrators of this shooting.

        The following morning, co-defendant Troy [Gellispie] went
        out looking for the members of the other group. Gellispie
        located a member of the other group at a residence located
        several blocks away on South Queen Street. Gellispie called
        back to the residence he shared with Appellant to arrange for
        Appellant and others who were present at Appellant's home
J-A07013-20


       to come to this location with guns to get revenge for the
       previous night's shooting through their door. Appellant
       directed the other occupants of the home to obtain their
       weapons, and proceeded to drive them to a location back in
       an alley half a block from where co-defendant Gellispie had
       indicated the other group would be. Appellant gave guns to
       the other occupants of the vehicle, and directed them to go
       down the alley to meet with Gellispie.

       Appellant and his co-defendant believed that an individual
       called M–Dot was the one who fired the shotgun through their
       door. M–Dot was not present with the other group which had
       been located by co-defendant. However, his brother, Deo
       Garcia, was seated on the front porch of a residence on South
       Queen Street. Also present was his sister's husband, [Chris
       Butler,] who everyone agrees had no involvement in the
       previous conflicts between the two groups.

       When the individuals who were brought to the scene by
       Appellant met co-defendant [Gellispie], they began shooting
       at Deo Garcia. Deo Garcia pulled out his own gun and
       returned the fire. Chris Butler, Deo's sister's husband,
       attempted to duck behind a parked vehicle. Unfortunately, he
       was hit right between the eyes by one of the shots and died.
       The shooters then fled back to the vehicle were Appellant was
       waiting for them, and Appellant drove them back to his
       residence. On the way back, one of Appellant's group
       discarded his weapon. When Appellant and his co-defendant
       arrived back at their residence, the shooters attempted to
       conceal their involvement in the shooting by washing their
       persons, wiping off weapons, etc. Members of the group went
       back and picked up the weapon which had been discarded
       and returned to the house where efforts were made to
       remove any indication that the gun was used in the shooting.

       The trial was somewhat complicated by the fact that many of
       the Commonwealth witnesses gave testimony that was
       contradictory to their previous statements to the police. The
       Commonwealth called two individuals who happened to be
       present at the time of the shooting because they were
       attempting to buy drugs from Deo Garcia. Because their
       testimony differed from their earlier statements, they did not
       aid the Commonwealth's case. The Commonwealth also
       called at least one witness who was probably one of the

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J-A07013-20


       individuals who was in Appellant's car and took part in the
       shooting. However, the Commonwealth could not prove that
       at the time of his testimony, and his actual testimony was
       again detrimental to the Commonwealth's case.

       The Commonwealth did have the testimony of Desiree
       Garcia, the wife of the murder victim, Chris Butler. However,
       her initial report of the crime attempted to conceal her
       brother, Deo Garcia's, role in the shooting. Therefore, she
       described another individual to the police. The police
       subsequently found the individual she described, but were
       able to establish that the individual was in jail in Philadelphia
       at the time of the shooting. Therefore, Desiree Garcia's
       testimony was flawed by this misdirection of the truth.

       Fortunately for the Commonwealth, two witnesses that the
       Commonwealth originally did not intend to call saved their
       case. The Commonwealth had not intended to call Deo Garcia
       because of his extensive criminal record, his probable
       involvement in the shooting into the co-defendants' residence
       the night before, and his lack of cooperation with the police
       investigation. However, when the Commonwealth's other
       witnesses “went south,” the Commonwealth was essentially
       forced to call Deo Garcia. To the Commonwealth's surprise,
       he turned out to be an excellent witness, particularly at
       describing what happened at the scene of the crime when the
       shooting was occurring. However, even Deo Garcia didn't
       really involve Appellant in the crime since [Appellant] was not
       one of the shooters, but had instead remained at a location a
       half block away where he was not visible to the victims of the
       shooting.

       Shannon Stuart was also charged with homicide in this case.
       However, he had fled to Georgia prior to the charges being
       filed, and therefore, he had never been arrested. Fortunately
       for the Commonwealth, he was picked up in Georgia on the
       first day of trial. The Commonwealth sent people to interview
       him in Georgia, and he confessed to his involvement, agreed
       to testify for the Commonwealth, waived extradition, and was
       immediately brought back to Pennsylvania. The court then
       appointed counsel for Shannon Stuart. Counsel worked out a
       plea agreement with the District Attorney, whereby the
       charge of first degree murder, which was lodged against


                                     -3-
J-A07013-20


          him[,] was dropped, and he agreed to testify for the
          Commonwealth.

                                           ...

          Stuart then provided the testimony that [demonstrated]
          Appellant's involvement in the crime. Stuart testified that he
          was one of the people present at the residence of Appellant
          and co-defendant Gellispie when Gellispie called and said that
          he had located the group that had messed with them. Stuart
          described Appellant as the one who directed the gathering of
          weapons by the rest of the group and drove them to the alley
          a half block from where the victim was shot. Stuart also
          stated that Appellant directed the passengers in the car to
          take the weapons, proceed down the alley to meet up with
          Gellispie, and do what they came for. Stuart also described
          how the shooters fled back to Appellant's car where he was
          waiting for them. Stuart further described the efforts made
          to conceal evidence, which he said was directed by Appellant.

          The jury [found Appellant guilty of] third degree murder.[1]
          Sometime after the trial was over, on or about April 16, 2007,
          the Commonwealth dismissed all charges against Shannon
          Stuart.

Commonwealth v. Jackson, 947 A.2d 1260, 1261-1264 (Pa. Super. 2008)

(quotations, citations, corrections, and some capitalization omitted).

        On April 30, 2007, the trial court sentenced Appellant to serve a term

of 20 to 40 years in prison for his third-degree murder conviction and we

affirmed Appellant’s judgment of sentence on April 30, 2008. See id.

        On April 8, 2009, Appellant filed a timely, pro se PCRA petition.

Following the appointment of counsel and an evidentiary hearing, the PCRA

court denied Appellant’s petition on June 30, 2009. We affirmed the PCRA

court’s order on March 12, 2010 and the Pennsylvania Supreme Court denied
____________________________________________


1   18 Pa.C.S.A. § 2502(c).

                                           -4-
J-A07013-20



Appellant’s petition for allowance of appeal on April 7, 2011. Commonwealth

v. Jackson, 996 A.2d 545 (Pa. Super. 2010) (unpublished memorandum) at

1-5, appeal denied, 20 A.3d 1210 (Pa. 2011).

      On February 16, 2012, Appellant filed a pro se petition for writ of habeas

corpus (hereinafter “Appellant’s Second PCRA Petition”) in the court of

common pleas, where he claimed that he was unconstitutionally convicted of

third-degree murder. See Appellant’s Second PCRA Petition, 2/16/12, at 1-4.

The PCRA court properly considered Appellant’s filing to be a second PCRA

petition and, on March 5, 2012, the PCRA court dismissed the petition as

untimely. PCRA Court Order, 3/5/12, at 1-2.

      Appellant filed his third PCRA petition on August 19, 2013. Following

the appointment of counsel and a hearing, the PCRA court denied Appellant

relief on February 11, 2015. PCRA Court Order, 2/11/15, at 1; PCRA Court

Opinion, 2/11/15, at 1-10. This Court affirmed the PCRA court’s order on

January 12, 2016 and the Pennsylvania Supreme Court denied Appellant’s

petition for allowance of appeal on June 15, 2016.        Commonwealth v.

Jackson, 136 A.3d 1030 (Pa. Super. 2016) (unpublished memorandum) at

1-13; appeal denied, 140 A.3d 12 (Pa. 2016).

      On August 29, 2017, Appellant filed the current PCRA petition. The filing

constitutes Appellant’s fourth petition for post-conviction collateral relief.

Within Appellant’s petition, Appellant averred and alleged the following:

        3. On 3/12/07 [Appellant] proceeded to trial for [the]
        shooting death of Christopher Butler in which he was found
        guilty in a jury trial for the homicide.

                                     -5-
J-A07013-20



        4. About a year and a half after the homicide Joshua [K]oenig
        was charged also for the murder of Christopher [B]utler in
        which he plead[ed] guilty to the homicide [unbeknownst] to
        [Appellant].

        5. Sometime in 2017 Mr. Koenig writes a friend of
        [Appellant’s] family and tells them that [Appellant] is in jail
        for something he had nothing to do with.

        6. [Appellant’s] family hires Private Investigator at American
        Detective Agency who [conducted] an interview with Joshua
        Koenig on 5/8/17. . . .

        7. On 7/17/17 [Appellant] received [an] affidavit from
        American Detective Agency about the interview they
        conducted with Mr. Koenig. . . .

        8. The underlying facts, is that Mr. Koenig told Private
        Investigator that on 4/15/06 that him, Shannon [S]tuart, and
        [Appellant’s co-defendant, Troy Gellispie,] were involved in
        the shooting death of Christopher Butler and that [Appellant]
        is innocent and did not have any involvement in the shooting
        incident.

        9. [Appellant] who has claimed his innocence from the
        [beginning], also since [Appellant] had no knowledge about
        Mr. Koenig being charged, or arrested, and plead[ing] guilty,
        and without this evidence so [undermined] the truth
        determining process that no reliable adjudication of guilt or
        innocence could have taken place.

                                     ...

        11. [Appellant] had no idea that Joshua Koenig was ever
        arrested, or charged and plead[ed] guilty in the shooting
        death of Christopher Butler due to the fact that he never
        knew him, and he was released the night of the homicide.

Appellant’s Fourth PCRA Petition, 8/29/17, at 11-12.

     The PCRA court appointed counsel to represent Appellant and, on June

12 and 27, 2018, the PCRA court held a hearing on Appellant’s petition.


                                     -6-
J-A07013-20



During the hearing, Appellant testified that, prior to his trial, he was aware

that Joshua Koenig was “the third shooter.” N.T. PCRA Hearing, 6/12/18, at

23.

      Mr. Koenig also testified during the hearing. Mr. Koenig testified that,

on April 13, 2009, he pleaded guilty to third-degree murder and conspiracy to

commit aggravated assault in relation to Mr. Butler’s shooting and was

sentenced to serve an aggregate term of 12 ½ to 25 years in prison for the

convictions. N.T. PCRA Hearing, 6/27/18, at 6-7.

      Mr. Koenig also testified that, on the morning of the shooting, he was

sleeping at Appellant’s residence when he was “woken up by [Troy Gellispie]

and Shannon Stuart and was told that there was something that happened . .

. and we thought someone was shooting at the residence where I was staying

at.” Id. at 8. He testified: “[t]hey woke me up, basically said, look, man,

they are down the street, we’re going to go down there, if you are coming,

come with.”   Id.   Mr. Koenig testified that he grabbed his handgun from

underneath the couch and walked down the street with Gellispie and Stuart.

Id. at 8 and 10. He testified:

        [We] walked down the street, it was only a block and a half,
        it was literally right there. We cut through an alley to the left
        so we could approach them from the front, and when we
        approached them from the front I took a position to the right,
        [Gellispie] to the left, [Stuart] to the middle, and we started,
        we opened fire on the porch where there was multiple people.

Id. at 10.




                                      -7-
J-A07013-20



      Mr. Koenig testified that, after the shooting, he returned to Appellant’s

house; Appellant arrived at the house shortly thereafter with Gellispie and

Stuart.   Mr. Koenig surmised that Gellispie and Stuart “somehow came in

contact with [Appellant while they were running away and] while [Appellant]

was at the laundromat.” Id. at 13. According to Mr. Koenig, “[Appellant] was

pissed off. He was screaming at . . . [Gellispie and Stuart and angry at them

for] coming to him and getting and basically putting him in the middle of it.”

Id. Mr. Koenig further testified that “not once was [Appellant] ever a part of

it, other than at the very end where he came and he was bitching at” Gellispie

and Stuart. Id. at 16-17.

      During cross-examination, the Commonwealth confronted Mr. Koenig

with statements that he made to a probation officer, during the preparation

of his pre-sentence investigation report. The report declares that Mr. Koenig

told the probation officer: Appellant supplied him with the firearm he used in

the shooting; after the shooting, he returned the firearm to Appellant at

Appellant’s residence; and, Appellant disposed of all the firearms after the

shooting. See id. at 24-25. Mr. Koenig testified that he did not remember

making those statements to the probation officer. See id.

      On August 10, 2018, the PCRA court denied Appellant post-conviction

collateral relief.   Specifically, the PCRA court concluded that Appellant’s

petition failed because: 1) it was untimely, as Mr. Koenig’s arrest “could have

been discovered through the public record and [Appellant] failed to establish

that he exercised due diligence [in doing] so;” 2) it was untimely, as Appellant

                                     -8-
J-A07013-20



was aware of the fact that Mr. Koenig was a potential witness before

Appellant’s own trial; and, 3) even if the petition were timely, Appellant “is

not entitled to relief because [Mr. Koenig] was not worthy of belief given his

conflicting statements.” PCRA Court Order and Opinion, 8/10/18, at 1-17.

      Appellant filed a timely notice of appeal. Appellant raises two claims in

his brief to this Court:

         [1.] Whether the PCRA court erred by denying [Appellant’s]
         petition . . . as facially untimely[?]

         [2.] [Whether] the [PCRA] court erred by denying
         [Appellant’s] petition . . . by finding that Joshua Koenig was
         incredible in his testimony that [Appellant] was not involved
         in the shooting of Christopher Butler.

Appellant’s Brief at ii (some capitalization omitted).

      “As a general proposition, we review a denial of PCRA relief to determine

whether the findings of the PCRA court are supported by the record and free

of legal error.” Commonwealth v. Eichinger, 108 A.3d 821, 830 (Pa. 2014).

      The PCRA contains a jurisdictional time-bar, which is subject to limited

statutory exceptions.      This time-bar demands that “any PCRA petition,

including a second or subsequent petition, [] be filed within one year of the

date that the petitioner’s judgment of sentence becomes final, unless [the]

petitioner pleads [and] proves that one of the [three] exceptions to the

timeliness requirement . . . is applicable.” Commonwealth v. McKeever,

947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b). Further, since

the time-bar implicates the subject matter jurisdiction of our courts, we are



                                      -9-
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required to first determine the timeliness of a petition before we are able to

consider any of the underlying claims. Commonwealth v. Yarris, 731 A.2d

581, 586 (Pa. 1999). Our Supreme Court has explained:

        the PCRA timeliness requirements are jurisdictional in nature
        and, accordingly, a PCRA court is precluded from considering
        untimely PCRA petitions. [The Pennsylvania Supreme Court
        has] also held that even where the PCRA court does not
        address the applicability of the PCRA timing mandate, th[e
        court would] consider the issue sua sponte, as it is a
        threshold question implicating our subject matter jurisdiction
        and ability to grant the requested relief.

Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003) (citations

omitted).   “The question of whether a [PCRA] petition is timely raises a

question of law. Where the petitioner raises questions of law, our standard of

review is de novo and our scope of review plenary.” Commonwealth v.

Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citations omitted).

      Appellant’s judgment of sentence became final in 2008.        The PCRA

explicitly requires that a petition be filed “within one year of the date the

judgment becomes final.” 42 Pa.C.S.A. § 9545(b)(1). As such, Appellant’s

current petition, which was filed on August 29, 2017, is patently untimely and

the burden thus fell upon Appellant to plead and prove that one of the

enumerated exceptions to the one-year time-bar applied to his case. See 42

Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284, 1286

(Pa. Super. 2008) (to properly invoke a statutory exception to the one-year

time-bar, the PCRA demands that the petitioner properly plead and prove all

required elements of the relied-upon exception).


                                    - 10 -
J-A07013-20



       Within Appellant’s PCRA petition, Appellant claimed that his petition was

timely because it fell within the newly-discovered fact exception to the PCRA’s

one-year time-bar. The newly-discovered fact exception provides:

         (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:

                                           ...

              (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[]

                                           ...


         (2) Any petition invoking an exception provided in paragraph
         (1) shall be filed within 60 days of the date the claim could
         have been presented.

42 Pa.C.S.A. § 9545(b).2

       As our Supreme Court has explained:

         subsection (b)(1)(ii) has two components, which must be
         alleged and proved. Namely, the petitioner must establish
         that: 1) “the facts upon which the claim was predicated were
         unknown” and (2) “could not have been ascertained by the
         exercise      of      due     diligence.”     42     Pa.C.S.
         § 9545(b)(1)(ii)(emphasis added). If the petitioner alleges
____________________________________________


2 Effective December 24, 2018, the legislature amended Section 9545(b)(2)
to read: “Any petition invoking an exception provided in paragraph (1) shall
be filed within one year of the date the claim could have been presented.”
See 42 Pa.C.S.A. § 9545(b)(2) (effective December 24, 2018). However, the
amendment to Section 9545(b)(2) only applies to “claims arising on
[December] 24, 2017 or thereafter.” See id. at Comment. Appellant filed his
current petition August 29, 2017; thus, the amended Section 9545(b)(2) does
not apply to Appellant’s claim.

                                          - 11 -
J-A07013-20


        and proves these two components, then the PCRA court has
        jurisdiction over the claim under this subsection.

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

omitted).

      Further, to properly invoke the newly-discovered facts exception, the

petitioner is statutorily required to file his petition “within 60 days of the date

the claim could have been presented.”          42 Pa.C.S.A. § 9545(b).     As our

Supreme Court has explained, to satisfy this “60-day requirement,” a

petitioner must “plead and prove that the information on which he relies could

not have been obtained earlier, despite the exercise of due diligence.”

Commonwealth        v.   Stokes,    959    A.2d   306,   310-311    (Pa.   2008);

Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001).                   We have

explained that “the due diligence inquiry is fact-sensitive and dependent upon

the circumstances presented.” Commonwealth v. Burton, 121 A.3d 1063,

1070 (Pa. Super. 2015) (en banc). Moreover, we have held that “due diligence

requires neither perfect vigilance nor punctilious care, but rather it requires

reasonable efforts by a petitioner, based on the particular circumstances, to

uncover facts that may support a claim for collateral relief.” Id. at 1071.

      The PCRA’s newly-discovered facts exception permits the filing of a

petition outside of the one-year time-bar if the petitioner pleads and proves

that 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.” 42 Pa.C.S.A. § 9545(b)(1)(ii). Our Supreme Court has explained

that the newly-discovered facts exception “does not require any merits

                                      - 12 -
J-A07013-20



analysis of the underlying claim. Rather, the exception merely requires that

the ‘facts’ upon which such a claim is predicated must not have been known

to appellant, nor could they have been ascertained by due diligence.”

Bennett, 930 A.2d at 1271 (internal quotations and citation omitted), quoting

Commonwealth v. Lambert, 884 A.2d 848, 852 (Pa. 2005). Yet, as our

Supreme Court has made clear, “[t]he focus of the exception is on the newly

discovered facts, not on a newly discovered or newly willing source for

previously known facts. . . . [Stated another way,] the newly-discovered facts

exception is not focused on newly discovered or newly willing sources for

‘facts’ that were already known.” Commonwealth v. Marshall, 947 A.2d

714, 720 and 722 (Pa. 2008) (quotations, citations, and corrections omitted)

(emphasis in original).

       Appellant claims that Mr. Koenig’s statement satisfies the PCRA’s

newly-discovered facts exception because Appellant was unaware of the fact

that Mr. Koenig “would now testify that Appellant was innocent as he was not

involved in the planning or commission of the offense.” 3 Appellant’s Brief at

18. Further, Appellant claims that he first discovered this fact on July 11,

2017, when Mr. Koenig’s statements were made known to him. See id. at

22. According to Appellant, since he filed his current petition within 60 days


____________________________________________


3 On appeal, Appellant abandoned any contention that the “newly-discovered
fact” was his discovery that Mr. Koenig was arrested and pleaded guilty for
the shooting. See Appellant’s Brief at 17-22.


                                          - 13 -
J-A07013-20



of the date the claim could have been presented, his petition is timely under

the newly-discovered facts exception. Id. This claim fails.

      At the outset, to the extent Mr. Koenig’s statement concerns matters

that Appellant (allegedly) personally observed, the statement does not satisfy

the “newly-discovered fact” exception. If true, Appellant has long been aware

of the alleged “facts” that were within his personal observation and that are

contained in Mr. Koenig’s statement. Further, if true, Appellant could have

testified to the facts at trial or Appellant could have called Mr. Koenig to testify

during his trial, as, at all relevant times, Appellant was aware of Mr. Koenig’s

existence. See, e.g., N.T. PCRA Hearing, 6/12/18, at 23 (Appellant testified

that, prior to his trial, he was aware that Joshua Koenig was “the third

shooter”). To be sure, during closing argument in Appellant’s trial, Appellant’s

trial counsel told the jury:

         I submit to you it’s very possible that what happened that
         day was Shannon Stuart, [Troy Gellispie, and Mr. Koenig] go
         down there, looking for some trouble maybe. I don’t know
         who shot first. . . . I don’t care, because [Appellant] had
         nothing to do with any of this mess. The shooting starts,
         whoever started shooting, and they scatter. They scatter,
         the two of them run that way and [Mr. Koenig] goes that way.

         Shannon and [Mr. Gellispie] happen to stumble – they see it
         down the alley. There’s the green SUV. Shannon’s there.
         He knows it’s [Appellant’s] car, because he bought it. It’s in
         his name. It’s [Appellant]. Let’s go get in. He’ll get us out
         of here. [Appellant] does everything he can. Stay out of this
         car. Stay out of the car. Get out. Leave me out of this.
         They get in anyway.

         If [Appellant’s] the getaway driver that makes no sense,
         because if he knows they’re down there doing something and

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J-A07013-20


        he doesn’t want to be involved he leaves. That makes no
        sense.

N.T. Trial, 3/16/07, at 742-743.

      Thus, as to those matters that were within Appellant’s personal

observation, Appellant has simply found in Mr. Koenig “a newly discovered or

newly willing source for previously known facts.” Marshall, 947 A.2d at 720

and 722.    As explained above, such evidence does not satisfy the PCRA’s

newly-discovered facts exception.

      Further, to the extent Mr. Koenig’s statement concerns matters that

were not within Appellant’s personal observation, the PCRA court properly

denied Appellant relief.   To be sure, even if we assume that this evidence

satisfied the PCRA’s newly-discovered fact exception to the one-year time-bar,

the PCRA court properly concluded that the evidence did not entitle Appellant

to a new trial.

      To be eligible for relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from “one or more” of the seven, specifically enumerated

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily

enumerated circumstances is the “unavailability at the time of trial of

exculpatory evidence that has subsequently become available and would have

changed the outcome of the trial if it had been introduced.” 42 Pa.C.S.A.

§ 9543(a)(2)(vi).

      To obtain relief based on after-discovered evidence, an appellant must

show that the evidence:

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J-A07013-20


        (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.

Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012), citing

Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008). To determine

whether the evidence is “of such nature and character” to compel a different

verdict in a new trial, a court should consider “the integrity of the alleged

after-discovered evidence, the motive of those offering the evidence, and the

overall strength of the evidence supporting the conviction.” Commonwealth

v. Padillas, 997 A.2d 356, 365 (Pa. Super. 2010), appeal denied, 14 A.3d

826 (Pa. 2010).

      In the case at bar, the PCRA court held a hearing, heard Joshua Koenig

testify, and specifically concluded that Mr. Koenig’s testimony was “not worthy

of belief.” PCRA Court Opinion, 8/10/18, at 13. The PCRA court explained:

        We find it troubling that Mr. Koenig was unable to remember
        recent events when he spoke to the detective about
        [Appellant’s] case. During cross-examination, Mr. Koenig
        was asked when in 2017 he spoke with [Appellant] or
        someone in [Appellant’s] family about having information on
        the case. Mr. Koenig stated that he "couldn't tell you exactly
        when." Mr. Koenig estimated that it was probably within two
        weeks before he interviewed with the detective that he
        informed [Appellant] or his family.

        Later, when Mr. Koenig was asked if he ever wrote any letters
        to the detective, Mr. Koenig expressed doubt about whether
        he had, then stated that he may have written a letter but did
        not remember if he sent a letter to the detective.

        We expressed concern at the hearing that if Mr. Koenig could
        not remember details about how he was contacted about

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J-A07013-20


        [Appellant’s] case or when he was talking to individuals, then
        we would have issues with credibility for events that occurred
        back in 2007.

        Further, we also find troubling that Mr. Koenig in fact
        implicated [Appellant] in his statements given in his
        pre-sentence investigation report. In this report, Mr. Koenig
        stated that on the morning of the shooting, “[Appellant]
        instructed [Mr. Koenig] to come along, as they had to go
        ‘meet someone.’” While [en route, Appellant] gave Mr.
        Koenig a 9mm pistol and stated that, "You may need this."
        In addition, Mr. Koenig stated that gunfire [was] exchanged
        between [Appellant], Mr. Gillespie, and an unknown
        individual.[] After the shooting, Mr. Koenig stated that he
        met up with [Appellant], gave [Appellant] the gun back, and
        [Appellant] got rid of the guns by tossing them into the river
        off of the Columbia Bridge and into the Susquehanna River.

        Taking all of these circumstances into consideration, we find
        that Mr. Koenig's present testimony about [Appellant’s] lack
        of involvement is not credible and, "of such a nature and
        character that a different verdict will likely result if a new trial
        is granted."

Id. at 14-16 (citations omitted).

      As our Supreme Court has held, “[w]e are bound by the PCRA court’s

credibility findings where those determinations are supported by the record.”

Commonwealth v. Small, 980 A.2d 549, 558 (Pa. 2009). Here, the PCRA

court’s credibility determination – finding Joshua Koenig’s testimony “not

worthy of belief” – is entirely supported by the record. And, since Mr. Koenig’s

testimony is false and unworthy of belief, it does not satisfy the

after-discovered evidence standard, as it would not “likely result in a different

verdict if a new trial were granted.” Pagan, 950 A.2d at 292; Padillas, 997

A.2d at 365 (“before granting a new trial, a court must assess whether the

alleged after-discovered evidence is of such nature and character that it would

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likely compel a different verdict if a new trial is granted.   In making that

determination, a    court should consider the      integrity of the alleged

after-discovered evidence, the motive of those offering the evidence, and the

overall strength of the evidence supporting the conviction”) (citations

omitted). Appellant’s claim on appeal thus has no merit.

      Therefore, we affirm the PCRA court’s order, which denied Appellant

relief on his fourth PCRA petition.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/30/2020




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