J-S59027-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JAMES KELLY

                            Appellant                No. 3544 EDA 2013


                  Appeal from the PCRA Order October 18, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1011621-1995


BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED OCTOBER 10, 2014

        James Kelly appeals from the order of the Court of Common Pleas of

Philadelphia County, denying his petition for relief under the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.       After careful review, we

affirm.

        In 1996, Kelly was convicted by a jury of first-degree murder and

conspiracy and was sentenced to a mandatory term of life imprisonment.

Kelly did not file post-sentence motions or an appeal; however, his post-

sentence motion and appellate rights were subsequently reinstated nunc pro

tunc following PCRA proceedings. Kelly’s post-sentence motions were denied

by operation of law and he subsequently filed an appeal, in which he raised,

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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inter alia, claims of ineffectiveness of trial counsel.         On July 9, 1999, this

Court remanded Kelly’s case to the trial court for an evidentiary hearing on

the ineffectiveness claims, which the trial court ultimately rejected.           This

Court affirmed that ruling and the Supreme Court denied allowance of

appeal on February 9, 2001.

        Kelly, represented by counsel, filed his first PCRA petition on

September 26, 2001. The PCRA court dismissed that petition by order dated

February 19, 2003. That order was affirmed by this Court and the Supreme

Court denied allowance of appeal.              On March 3, 2008, Kelly filed a pro se

petition for writ of habeas corpus with the United States District Court for

the Eastern District of Pennsylvania. That petition was denied on October 5,

2009.

        On November 15, 2012, Kelly filed his second PCRA petition,

represented by new counsel.            The PCRA court dismissed the petition as

untimely, without a hearing, by order dated October 18, 2013. This timely

appeal follows, in which Kelly raises the following issues, verbatim, for our

review:1


        1.    In a case seeking post-conviction relief based on after-
        discovered evidence in a shooting case, in which the evidence
        proffered by [Kelly], and which exonerates [Kelly], shows that
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1
  In his brief, Kelly presented one additional claim. However the claim is
substantively identical to his first claim and, accordingly, will not be
addressed separately.



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      the police interfered with [Kelly’s] ability . . . to discover the
      exonerating evidence until a time less than 60 days before he
      filed his [p]etition, should the [PCRA] court have held a hearing?

      2.    Where the evidence in such a case demonstrates that the
      police arrested the wrong person as the shooter, and that they
      prevented the defense from discovering that fact until recently,
      should a new trial be awarded?

      3.   In a case wherein the prosecutor misled the court and
      counsel by stating that a key witness was dead when the witness
      was still alive, should a new trial be awarded?

      4.    In a case where counsel[’s] ineffectiveness so permeates
      the record that it is unlikely that the jury reached a just decision,
      should a new trial be granted?

      5.  In a case where the evidence of actual innocence is
      compelling, should a new trial be awarded?


Brief of Appellant, at 4.

      We begin by noting that Kelly’s brief does not comply with the Rules of

Appellate Procedure.    In particular, Kelly entirely ignores the mandates of

Rule 2119, requiring that:

      [t]he argument shall be divided into as many parts as there are
      questions to be argued; and shall have at the head of each part
      – in distinctive type or in type distinctively displayed – the
      particular point treated therein, followed by such discussion and
      citation to authorities as are deemed pertinent.

Pa.R.A.P. 2119(a).     Here, Kelly’s argument section headings in no way

correspond to the issues raised in his statement of questions involved.

Indeed, the organizational flow of Kelly’s argument section bears no relation

to the specific issues set forth in his Rule 2116 statement.          Facts are

presented and arguments made without a clear connection to any particular


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issue. As a result, we have been forced to piece together Kelly’s arguments

and to discern which arguments are intended to support each claim. It is

particularly ironic, in a case in which it is strenuously alleged that

“ineffectiveness of counsel . . . permeates the record,” that current counsel

would submit a non-compliant brief. It is within this court’s power to quash

or dismiss an appeal for clear violations of the Rules of Appellate Procedure.

Universal Underwriters Insurance Co. v. A. Richard Kacin, Inc., 916

A.2d 686, 689 n.6 (Pa. Super. 2007). However, because Kelly’s brief is not

so defective as to preclude effective appellate review, we decline to do so

here. Id.

      This Court’s standard of review regarding an order dismissing a PCRA

petition is whether the determination of the PCRA court is supported by

evidence of record and is free of legal error. Commonwealth v. Burkett, 5

A.3d 1260, 1267 (Pa. Super. 2010) (citations omitted).          In evaluating a

PCRA court’s decision, our scope of review is limited to the findings of the

PCRA court and the evidence of record, viewed in the light most favorable to

the prevailing party at the trial level.   Id. We may affirm a PCRA court’s

decision on any grounds if it is supported by the record. Id.

      We begin by addressing our jurisdiction to consider Kelly’s PCRA

petition, which, on its face, was untimely.     A PCRA petition, including a

second or subsequent petition, must be filed within one year of the date the

underlying judgment of sentence becomes final.         See 42 Pa.C.S.A. §


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9545(b)(1); see also Commonwealth v. Bretz, 830 A.2d 1273, 1275 (Pa.

Super. 2003).       A judgment is deemed final “at the conclusion of direct

review, including discretionary review in the Supreme Court of the United

States and the Supreme Court of Pennsylvania, or at the expiration of time

for seeking review.” 42 Pa.C.S.A. § 9545(b)(3); see also Commonwealth

v. Pollard, 911 A.2d 1005, 1007 (Pa. Super. 2006). Here, Kelly’s judgment

of sentence became final on May 10, 2001, upon the expiration of the

ninety-day period for filing a writ of certiorari with the United States

Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13. Thus,

Kelly had one year from that date, or until May 10, 2002, to file a timely

PCRA petition. See 42 Pa.C.S.A. § 9545(b). Kelly did not file the instant

petition until November 15, 2012, approximately 11½ years after his

judgment of sentence became final.             Accordingly, the PCRA court had no

jurisdiction to entertain Kelly’s petition unless he pleaded and proved one of

the three statutory exceptions to the time bar.2             See 42 Pa.C.S.A. §

____________________________________________


2
    The statutory exceptions are as follows:

        (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

(Footnote Continued Next Page)


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9545(b)(1). A petition invoking one of the exceptions must be filed within

sixty days of the date the claim could have been presented. 42 Pa.C.S.A. §

9545(b)(2).

      Kelly’s first issue on appeal concerns the governmental interference

and after-discovered evidence exceptions to the time bar set forth in

subsections 9545(b)(2)(i) and (ii). Specifically, he claims to have uncovered

exculpatory eyewitness evidence allegedly suppressed by the police at the

time of trial. Kelly asserts that he filed his PCRA petition within 60 days of

discovering this evidence and that the trial court should, at the very least,

have convened a hearing to determine whether relief was warranted.        We

find this claim to be without merit.

      On September 13, 2013, a private investigator working on Kelly’s

behalf met with an individual named Tameka Ledbetter, who was the

girlfriend of Travis Hughston, the victim killed in the shooting.   Ledbetter

told the investigator that, just after the shooting, she saw a man she knew,

Sharif Curry, walking away from Hughston’s body and stuffing a pistol in his

waistband. Ledbetter claimed she had given police a statement identifying

                       _______________________
(Footnote Continued)

      (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.A. § 9545(b)(1).



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Curry as the shooter, but that they had insisted another individual (who was

never charged in the case) had done the shooting. Kelly submitted a written

question and answer form that Ledbetter completed, acknowledging, inter

alia, her identification of Curry as the actual shooter.3

         In order to satisfy the government interference exception under

section 9545(b)(1)(i), a petitioner must plead and prove that his failure to

raise the claim previously was “the result of interference by government

officials with the presentation of the claim[.]”            Id.   Where, as here, the

petitioner claims that the prosecution withheld evidence he claims would

have been beneficial to his defense, he must demonstrate that the

prosecution failed to disclose material evidence that deprived him of a fair

trial.    Commonwealth v. Johnson, 815 A.2d 563, 573 (Pa. 2002).

Evidence is “material” only where there is a reasonable probability that its

disclosure    during    trial    would    have   resulted    in   a    different     verdict.

Commonwealth v. Roney, 79 A.3d 595, 607 (Pa. 2013). A petitioner must

demonstrate that the information forming the basis of his claim could not

have      been   obtained       earlier   with   the   exercise       of   due     diligence.

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

         In order to establish the exception under section 9545(b)(1)(ii), a

petitioner must plead and prove that “the facts upon which the claim is

____________________________________________


3
    We note that Sharif Curry died in approximately 1995.



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predicated were unknown to the petitioner and could not have been

ascertained by the exercise of due diligence.”   Id.   In order to prevail on

such a claim, a petitioner must show that the evidence:        (1) has been

discovered after the trial and 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 for

impeachment purposes; and (4) is of such a nature and character that a

different verdict will likely result if a new trial is granted. Commonwealth

v. Johnson, 841 A.2d 136, 140-41 (Pa. Super. 2003).            Due diligence

demands that a petitioner take reasonable steps to protect his own interests.

Commonwealth v. Carr, 768 A.2d 1164, 1168 (Pa. Super. 2001).               “A

defendant who fails to question or investigate an obvious, available source of

information, cannot later claim evidence from that source constitutes newly

discovered evidence.”   Commonwealth v. Padillas, 997 A.2d 356, 364

(Pa. Super. 2010), citing Commonwealth v. Chambers, 599 A.2d 630,

642 (Pa. 1991).

      A PCRA petition raising these claims must be filed within 60 days of

the date the claims could have been presented. 42 Pa.C.S.A. § 9545(b)(2).

A PCRA court may decline to hold a hearing on the petition if the petitioner’s

claim is patently frivolous and is without a trace of support either in the

record or from other evidence. Commonwealth v. Holmes, 905 A.2d 507,

509 (Pa. Super. 2006) (holding no abuse of discretion where PCRA dismissed


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petition without hearing where after-discovered evidence would not compel

different verdict).

      Here, both Kelly’s claims must fail for the simple reason that Tameka

Ledbetter’s statement, even if testified to at trial, would not have exculpated

Kelly and would not likely have changed the outcome of his trial.          The

Commonwealth’s theory of the case was that Kelly handed his co-defendant,

Larry Mullins, a gun, which Mullins subsequently used to shoot the victim.

Ledbetter’s statement, that she saw Sharif Curry walking away from the

victim’s body holding a gun, may have been exculpatory as to Mullins, but

would not have benefitted Kelly, who was never accused of being the

shooter.

      Moreover, at trial, the Commonwealth presented the testimony of two

eyewitnesses who identified Kelly and Mullins. The first, Ernestine Williams,

witnessed Kelly hand an object to Mullins, who placed the object inside his

jacket and held onto it inside the jacket as he approached the victim; he

then removed his hand from his jacket, holding a gun, and shot the victim

multiple times.   Williams testified that there was “no doubt in [her] mind”

that Kelly and Mullins were the individuals involved in the shooting.     N.T.

Trial, 8/14/96, at 132. Williams further testified as follows:

      [Williams]: I remember seeing [Kelly and Mullins] at the corner
      of my block making a transaction, and I remember seeing
      [Mullins] shoot [the victim], I seen him shoot him in his head
      behind his ear and he fell in his arms and he laid him on the
      ground and he stood back and he shot him again. I remember
      that very well. And I’ll never forget it.

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      [Defense Counsel]:        You   saw      these   two   men   doing   a
      transaction?

      A:    Yes.

      Q:    What kind of transaction?

      A:    [Kelly] handed [Mullins] something. And [Mullins] never
      took his hand out until he got to [the victim].

Id. at 176 (emphasis added).

      A second witness, Colie Baxter, testified that he was driving his car at

the intersection of 25th and Diamond Streets when he heard “five to six

shots.” N.T. Trial, 8/15/96, at 8. He pulled his car over and then witnessed

two men, who he later identified as Kelly and Mullins, run out of an alleyway,

get into a car, and drive away.       One of the men was “holding something

down by [his] side.” Id.

      Accordingly, the Commonwealth presented sufficient evidence to

establish Kelly’s guilt, such that Ledbetter’s identification of Sharif Curry as

the shooter would not likely have changed the outcome of the trial.            See

Roney, supra; Johnson, supra.

      Kelly next alleges that the prosecution misled the court by stating that

Devon Gilliard, a “key witness,” was dead when, in reality, he was, and is

still, alive. Kelly claims he is entitled to a new trial. This claim is meritless.

      In a statement to police, Ernestine Williams stated that she witnessed

Kelly and Mullins talking to Devon Gilliard, a teenage drug dealer, just prior

to the shooting. A witness named Andre Bracy also told police that he had

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seen Gilliard in a “speakeasy” near the scene of the shooting after it had

occurred. However, Gilliard gave a statement to the police indicating that he

knew nothing about the shooting and was at home with his mother at the

time it occurred. During trial, Gilliard’s name came up during a conference

outside of the jury’s hearing, at which time the prosecutor indicated that

Gilliard was dead and, therefore, the defense should not be allowed to

mention his name in closing argument so as not to give the jury the

impression that the Commonwealth had not called him to testify for some

other reason.    However, contrary to the statement by the prosecutor,

Gilliard was not dead and is alive today.

      We begin by noting that Kelly devotes a single paragraph in his

argument section to his claim regarding Devon Gilliard.         However, he

provides no citation to case law or other legal argument in support of his

claim. Rule of Appellate Procedure 2119(a) provides that “[t]he argument

shall . . . have . . . the particular point treated therein, followed by such

discussion and citation of authorities as are deemed pertinent.”    Pa.R.A.P.

2119(a).   Failure by an appellant to discuss pertinent facts or cite legal

authority will result in waiver. Commonwealth v. Rhodes, 54 A.3d 908,

915 (Pa. Super. 2012). Consequently, Kelly’s underdeveloped argument is

waived.

      Moreover, even if the claim were not waived, it would be without

merit. Kelly does not explain why he failed to raise this issue until his most


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recent PCRA petition, which was filed 12 years after Gilliard executed an

affidavit that was made part of the court record. See Brief of Appellant, at

12. Thus, Kelly has known, or could have known, since the year 2000 that

Gilliard is not, in fact, dead.

      In addition, despite having knowledge of Gilliard’s current place of

employment, see PCRA Petition, 11/15/12, at ¶ IV.2, Kelly failed to provide

an affidavit from Gilliard indicating the facts to which he would testify if

called at trial. Instead, Kelly presents only speculation as to what Gilliard

might say and states, without basis, that he is a “valuable witness to what

actually happened.” Brief of Appellant, at 26.

      Finally, Kelly presented no evidence whatsoever in support of his claim

that the prosecutor’s statement regarding Gilliard’s death was anything more

than an error on counsel’s part. Indeed, his one-paragraph “argument” fails

entirely to address the “governmental interference” aspect of the claim,

focusing instead on the ineffectiveness of trial counsel for failing to locate

and interview Gilliard.   For these reasons, this claim is meritless.

      Kelly’s final two appellate issues raise rather nebulous claims regarding

the general ineffectiveness of counsel and his actual innocence. A claim of

ineffective assistance of counsel will not save an otherwise untimely PCRA

petition for review on the merits.      Commonwealth v. Gamboa-Taylor,

753 A.2d 780, 786 (Pa. 2000). Moreover, Kelly’s ineffectiveness claims are

either waived because he failed to present them at the first opportunity, or


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have been previously litigated.         See 42 Pa.C.S.A. § 9544.    For example,

Kelly devotes nearly three pages of his brief to a discussion of his trial

counsel’s alleged failure to present an alibi witness and other eyewitnesses.

See Brief of Appellant, at 24-26. However, this exact issue was raised on

direct appeal4 and found to be meritless.          See Commonwealth v. Kelly,

152 EDA 2000 (Pa. Super. filed August 24, 2000).                Similarly, Kelly’s

assertion that trial counsel was ineffective for failing to object to an allegedly

improper comment on his post-arrest silence is waived, as it could have

been raised on direct appeal.

          Likewise, Kelly’s broad claim of “actual innocence” affords him no

relief.    The PCRA specifically states it is intended to “provide[] for an action

by which persons convicted of crimes they did not commit . . . may obtain

collateral relief.”    42 Pa.C.S.A. § 9542.         However, relief may only be

obtained within the parameters of the statute.          Thus, a claim of “actual

innocence” does not, by itself, provide an exception to the time bar. See 42

Pa.C.S.A. § 9545(b). Although Kelly does not devote a separate portion of

the argument section of his brief to a discussion of this claim, it is apparent

that the claim is grounded in the statement of Tameka Ledbetter. We have
____________________________________________


4
  Kelly filed his direct appeal in 2000. Prior to our Supreme Court’s 2002
decision in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), claims of
trial counsel ineffectiveness were required to be raised at the earliest
opportunity the defendant was no longer represented by trial counsel. Thus,
in this case, Kelly raised issues of trial counsel’s ineffectiveness on direct
appeal.



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already concluded that Ledbetter’s statement, even if true, would neither

have exculpated Kelly nor changed the outcome of his trial.

     As Kelly’s claims do not establish any exception to the time bar, his

PCRA petition was properly dismissed without a hearing.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/2014




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