J-S05005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

FRANKLIN LUTHER JACKSON,

                            Appellant                 No. 370 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-0005374-2006


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

MEMORANDUM BY BENDER, P.J.E.:                     FILED JANUARY 12, 2016

        Appellant, Franklin Luther Jackson, appeals pro se from the post-

conviction court’s February 11, 2015 order denying his petition for relief filed

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9545.

After careful review, we affirm.

        The facts of this case were set forth by the trial court, and quoted by

this Court in a published opinion affirming Appellant’s judgment of sentence,

as follows:

              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 lived on South Queen Street.
        [Appellant] suspected that the members of the other group with
        whom they had a dispute were the perpetrators of this shooting.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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            The following morning, co-defendant Troy Gellespie 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 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, 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 ..., 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

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     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 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 he
     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

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      Murder[, which was lodged] against him was dropped, and he
      agreed to testify for the Commonwealth.

            It is noted that [both Appellant and Gillespie] objected to
      Shannon Stuart's testimony on the basis that they hadn't
      received notice prior to trial. However, it is obvious the
      Commonwealth couldn't [have given] the defense notice before
      trial when the Commonwealth itself didn't know that Stuart
      would testify prior to trial.

            It is noted that the Commonwealth did inform the defense
      as soon as it became known that Stuart had been arrested and
      agreed to cooperate. It is further noted that prior to Stuart's
      testimony defense counsel [was] given the opportunity to review
      the statement that Stuart had given to the police at the time of
      his arrest. Therefore, [the trial court ruled] there was no
      discovery violation as the defense argued.

            Stuart then provided the testimony that proved
      [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].

Commonwealth v. Jackson, 947 A.2d 1260, 1261-63 (Pa. Super. 2008)

(quoting Trial Court Opinion, 9/17/07, at 1-5).

      Based on this evidence, the jury convicted Appellant of third-degree

murder. He was sentenced on April 30, 2007, to an aggregate term of 20 to

40 years’ incarceration.   This Court affirmed his judgment of sentence on

April 30, 2008. See id. Appellant did not file a petition for permission to



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appeal to our Supreme Court and, thus, his judgment of sentence became

final on May 30, 2008. See 42 Pa.C.S. § 9545(b)(3) (stating that judgment

of sentence becomes final at the conclusion of direct review or the expiration

of the time for seeking the review); Pa.R.A.P. 1113(a) (directing that “a

petition for allowance of appeal shall be filed with the Prothonotary of the

Supreme Court within 30 days of the entry of the order of the Superior Court

sought to be reviewed”).

      The PCRA court detailed the subsequent procedural history of

Appellant’s case, as follows:

             On April 8, 2009, [Appellant] filed a Petition for Post
      Conviction Relief. The Court appointed counsel, and after a
      hearing, denied [Appellant’s] PCRA petition on June 30, 2009.
      [Appellant] filed [a] Notice of Appeal to the Superior Court on
      July 27, 2009, and the Superior Court affirmed on March 12,
      2010….     [Commonwealth v. Jackson, 996 A.2d 545 (Pa.
      Super. 2010) (unpublished memorandum)]. [Appellant] filed a
      Petition for Allowance of Appeal to the Pennsylvania Supreme
      Court on November 17, 2010. That petition was denied on April
      7, 2011…. [Commonwealth v. Jackson, 20 A.3d 1210 (Pa.
      2011)].

             On February 16, 2012, [Appellant] filed a Writ of Habeas
      Corpus. The Court, considering [Appellant’s] writ to be a PCRA
      petition, denied relief on March 5, 2012.

           [Appellant] filed [the instant] PCRA petition on August 19,
      2013. The case was reassigned to the undersigned Judge on
      August 20, 2013.

PCRA Court Order & Opinion Denying Petition (PCO I), 2/11/15, at 1-2.

      The PCRA court appointed three successive attorneys to represent

Appellant in litigating the instant petition, two of whom withdrew due to

conflicts with Appellant. Appellant’s third attorney withdrew after Appellant

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indicated his unhappiness with counsel’s representation and expressed a

desire to proceed pro se. See id. at 2. At a hearing in August of 2014, the

court granted Appellant’s request to proceed pro se and scheduled the PCRA

hearing for October 21, 2014.1             On that date, 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 scheduled a hearing to assess the

merits of that after-discovered evidence claim.

       The general gist of the testimony at the hearing was that
       Shannon Stuart’s … girlfriend [at the time of the murder and
       Appellant’s trial], Mandy Keiser, would provide testimony [at a
       new trial] showing Shannon Stuart lied on the witness stand at
       Appellant’s trial. At trial, Mr. Stuart testified that he attempted
       to fire his gun [at the scene of the murder], but that it jammed,
       so he never actually fired a shot. N.T. 12/15/2014 at 14.
       However, at the PCRA hearing, Ms. Keiser testified that Mr.
       Stuart told her that his gun did not jam and that he fired the
       shot that killed the victim. Id. at 15. Ms. Keiser’s testimony was
       not very consistent and was rather confusing at times. She
       indicated that Mr. Stuart had told her numerous stories about
       what happened on the night of the homicide, but she was
       adamant that she told a private investigator, before trial, that
       Mr. Stuart fired his weapon. Id. The private investigator’s
       report indicates that he did speak with Ms. Keiser, but she stated
       that Mr. Stuart “would never commit to actually shooting a
       weapon during the incident.” Id. at 33.


____________________________________________


1
  The hearing was a combined proceeding to address both Appellant’s
petition, and a similar petition filed by his co-defendant, Troy Gellispie.
Gellispie was represented by counsel during the PCRA proceedings.



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PCRA Court Pa.R.A.P. 1925(a) Opinion (PCO II), 4/6/15, at 2-3. Appellant

also argued that his trial counsel was ineffective for not calling Ms. Keiser as

a witness, when counsel knew about Ms. Keiser’s statement to the private

investigator that Mr. Stuart admitted to firing his gun at the murder scene.

      On February 11, 2015, the PCRA court issued an order and opinion

denying Appellant’s petition. Appellant filed a timely pro se notice of appeal,

and also timely complied with the court’s order to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. Therein, he preserved

the following claims for our review:

      1.) This Honorable Court erred in not granting [Appellant’s]
      request of a new trial based upon after discovered evidence
      relating to Mandy Keiser, the girlfriend of Shannon Stuart, a
      material witness for the Commonwealth who told her about the
      events that took place the day of the incident.

      2.) This Honorable Court erred in denying [Appellant’s]
      ineffective [assistance] of counsel claim [based] on a statement
      he withheld for over seven and one half years.

      3.) This Honorable Court erred in disregarding [Appellant’s]
      claim of actual innocence due to the testimony of Mandy Keiser.

Appellant’s Rule 1925(b) Statement, 3/27/15, at 1.

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.     Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA court’s findings will not

be disturbed unless there is no support for the findings in the certified

record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).



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      Initially, we must assess the timeliness of Appellant’s petition, as it is

well-settled that “[t]he time requirements established by the PCRA are

jurisdictional in nature; consequently, the Pennsylvania courts may not

entertain untimely petitions.” Commonwealth v. Edmiston, 65 A.3d 339,

346 (Pa. 2013) (citing Commonwealth v. Watts, 23 A.3d 980 (Pa. 2011);

Commonwealth         v.   Brown,     943    A.2d   264,    267    (Pa.   2008);

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003)).               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

            (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.



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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 May 30, 2008;

thus, he had until May 30, 2009, 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 or IAC

claims, Appellant has to prove that he meets one of the exceptions to the

timeliness requirements set forth in 42 Pa.C.S. § 9545(b).

       In his brief to this Court, Appellant does not argue, let alone prove, the

applicability of any timeliness exception set forth supra.2          Instead, he

attempts to argue the merits of his after-discovered evidence claim, which is

not appropriate when attempting to satisfy the timeliness exception of

section 9545(b)(1)(ii).      See Bennett, 930 A.2d at 1270–72. Additionally,

Appellant’s after-discovered evidence argument on appeal substantially

differs from that which he presented in his PCRA petition, or from any
____________________________________________


2
  We also note that even if Appellant had asserted an exception herein, we
would conclude that he waived any such claim by not specifically setting it
forth in his Rule 1925(b) statement. See Commonwealth v. Butler, 812
A.2d 631, 633-634 (Pa. 2002) (“PCRA appellants, in order to preserve their
claims for appellate review, must comply whenever the PCRA court orders
them to file a Statement of Matters Complained of on Appeal under Rule
1925). Accordingly, any issues not raised in a Rule 1925(b) statement are
waived.”) (citing Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)).




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argument asserted at the PCRA hearing. Specifically, Appellant presents the

novel argument that he is entitled to a new trial because Ms. Keiser testified

at the hearing that “Mr. Stuart told [her Appellant] had nothing to do [the

murder] at all[.]” Appellant’s Brief at 10.

       Curiously, this testimony is not contained in the transcript of the PCRA

hearing.    Appellant explains this omission by alleging that the record was

“tampered with on purpose” and he asks this Court to remand for the PCRA

court to recreate the record and include that ostensibly omitted portion of

Ms. Keiser’s testimony.3 However, he offers no explanation of when he first

realized this purported error in the transcripts, or why he could not have

raised this transcription error before the PCRA court, at the very least in his

Rule 1925(b) statement, to allow the court to comment on this claim in its

opinion.4 Appellant also did not assert in his Rule 1925(b) statement that

Ms. Keiser’s purported testimony, as he now claims to recall it, satisfies a

timeliness exception, or even that it warrants a new trial. Based on these

circumstances, we conclude that Appellant has not proven the applicability of

____________________________________________


3
  On December 2, 2015, Appellant filed with this Court a separate motion
asking us to remand his case to permit the PCRA court to correct this
ostensible error in the transcript. Based on our discussion herein, we deny
that motion.
4
  The record demonstrates that Appellant filed a motion for transcripts on
February 26, 2015, which was granted on March 4, 2015. His Rule 1925(b)
statement was filed on March 27, 2015. Appellant does not claim that he
received the transcripts after he filed his Rule 1925(b) statement.



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any timeliness exception, nor convinced us that he timely raised the issue of

the alleged transcription error to warrant our remanding his case.

      Nevertheless, we note that even if we accepted Appellant’s claim that

Ms. Keiser testified at the PCRA hearing that Mr. Stuart told her that

Appellant had no involvement in the shooting, and we concluded that that

claim satisfied the after-discovered fact exception of section 9545(b)(1)(ii),

we would not grant Appellant the relief of a new trial.           As Appellant

acknowledges,

      [t]o 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.

Commonwealth v. Pagan, 950 A.2d 270, 292 (2008) (citations omitted).

      Here, it is clear that Ms. Keiser’s purported PCRA hearing testimony

would be used solely to impeach Mr. Stuart’s credibility.      While Appellant

disagrees, and relies on Commonwealth v. McCracken, 659 A.2d 541 (Pa.

1995), we find that case distinguishable. There, McCracken was convicted of

murder and robbery based on circumstantial evidence, the most compelling

of which was the testimony of Michael Aldridge, who was the only witness

that identified Appellant as being the perpetrator of those crimes. See id. at

542-543.   After McCracken was convicted, however, Aldridge recanted his

testimony, stating that he lied at trial and identified Appellant because

“detectives kept repeating [McCracken’s] name to him and suggesting

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[McCracken] was the perpetrator to the extent that he began to believe

[McCracken] was the perpetrator.”         Id. at 544.   Our Supreme Court

ultimately held “that the recantation of Michael Aldridge fits squarely within

the test for after-discovered evidence.” Id. at 545. The Court explained, in

pertinent part, that

      Aldridge's recantation is not merely cumulative or corroborative
      given the tenuous nature of the circumstantial evidence
      connecting Appellant to the crime and the inability of any other
      witness to make a positive identification of the perpetrator. In
      this case, where the only Commonwealth witness who identified
      the perpetrator has recanted his testimony, such evidence
      cannot be considered cumulative or corroborative because the
      defendant claimed that he did not commit the crime in question.
      This was the essence of [McCracken’s] defense and the ultimate
      question in [McCracken’s] trial. Thus, Aldridge's recantation is
      neither cumulative, corroborative, nor for impeachment
      purposes.

Id.

      In this case, we acknowledge that Appellant was convicted based on

circumstantial evidence, the strongest of which was Mr. Stuart’s testimony

explaining Appellant’s involvement in the crime.    However, Mandy Keiser’s

proposed testimony that Mr. Stuart told her that Appellant was not involved

in the crime is not recantation evidence; it is evidence by a third-party that

would simply be used to impeach Mr. Stuart, who presumably would again

testify to Appellant’s involvement.     Because Mr. Stuart has not, himself,

recanted his testimony, McCracken would not compel us to grant Appellant




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a new trial, even had he satisfied a timeliness exception based on Ms.

Keiser’s purported PCRA hearing testimony.5

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2016




____________________________________________


5
  We reiterate that Appellant contends that Ms. Keiser stated at the PCRA
hearing that “Stuart told [Ms. Keiser that] Appellant had no involvement
with [the] incident.” Appellant’s Brief at 14. In support of this claim, he
attaches to his brief affidavits from several individuals who claim they were
at the hearing and heard Ms. Keiser testify in this regard. One of those
affidavits is from Ms. Keiser herself, and actually calls into question
Appellant’s characterization of her allegedly omitted PCRA hearing
testimony. Namely, Ms. Keiser attests that she stated at the PCRA hearing
that, “[i]n [Mr. Stuart’s] story of the incident[,] he did not include
[Appellant’s] name[] or state that [Appellant] had any involvement.” See
Appellant’s Brief at “Exhibit D.” Mr. Stuart’s not mentioning Appellant’s
name to Ms. Keiser when discussing the shooting is very different from Mr.
Stuart’s expressly stating that Appellant was not involved.         Thus, Ms.
Keiser’s affidavit indicates that her proposed testimony would offer even
weaker impeachment evidence than Appellant suggests herein.



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