COMMONWEALTH of Pennsylvania, Appellee v. Lisa Lee SHILOH, Appellant
No. 2040 MDA 2016
Superior Court of Pennsylvania.
September 8, 2017
170 A.3d 553
We also conclude that the trial court did not abuse its discretion in admitting the video recording as cumulative of the victim‘s testimony. Our review indicates that the victim‘s statement in the video recording, rather than being cumulative of her trial testimony, supplemented it by providing additional details and elaborating on those to which she testified at trial.
Judgment of Sentence affirmed.
Brian R. Sinnett, District Attorney, and Daniel S. Topper, Assistant District Attorney, Gettysburg, for Commonwealth, appellee.
OPINION BY GANTMAN, P.J.:
Appellant, Lisa Lee Shiloh, appeals pro se from the order entered in the Adams County Court of Common Pleas, which dismissed as untimely her serial petition filed under the Post Conviction Relief Act (“PCRA“).1 We vacate and remand for further proceedings.
The relevant facts and procedural history of this case are as follows. On February 1, 2011, a jury convicted Appellant of multiple counts of delivery of a controlled substance, criminal use of a communication facility, conspiracy, and endangering the welfare of children, in connection with Appellant‘s participation in a drug operation. Relevant to this appeal, Appellant‘s sister, Stacy Stitely, was also involved with, and faced charges for her role in, the drug operation. Ms. Stitely testified for the Commonwealth at Appellant‘s trial. The trial court sentenced Appellant on April 21, 2011, to an aggregate term of 14-30 years’ imprisonment. Appellant did not file a direct appeal.
On November 17, 2011, Appellant timely filed a pro se PCRA petition. The court appointed counsel on November 23, 2011, who filed an amended PCRA petition on April 4, 2012, and a second amended petition on May 11, 2012. Following a PCRA hearing, the court denied PCRA relief on February 12, 2013. This Court affirmed the decision on November 20, 2013. See Commonwealth v. Shiloh, 91 A.3d 1291 (Pa.Super. 2013).
Appellant filed her second PCRA petition pro se on January 17, 2014. Following appropriate notice pursuant to
On June 23, 2016, Appellant filed the current serial pro se PCRA petition, asserting the “newly-discovered fact” exception to the PCRA timeliness requirement. Specifically, Appellant claimed, inter alia, that on May 3, 2016, she received an affidavit from her sister, Ms. Stitely, stating that the investigating officer in Appellant‘s case had promised to help Ms. Stitely get a deal in exchange for her cooperation and testimony against Appellant. Appellant attached a copy of the affidavit to her PCRA petition. In her affidavit dated April 26, 2016, Ms. Stitely states:
I Stacy Stitely was in Adams County Prison for [a] drug raid in Littlestown Pa on June 15, 2010. Within a week or two Officer O‘Shea came to Adams County Prison [and] wanted to talk with me about what they knew and what I knew about what was happening with Carroll Lescalleet Sr., Kirk [Shiloh] & [Appellant,] all the people dealing with this case. At that time my boyfriend Carroll Lescalleet Sr. was also in Adams County Prison. Officer O‘Shea told me if I‘d talk with him he‘d help get Carroll released at his bail hearing because he knew we had a young son at home and when the time came for me he would help me get a deal. So I talked with him and on June 23, 2010, Carroll Lescalleet Sr. was released from Adams County Prison. On February 1, 2011[,] I testified
for him against [Appellant] and on August 11, 2011 I was sentenced to 18 months-5 year[s] because I cooperated and testified.
(Affidavit of Stacy Stitely, dated April 26, 2016, at 1-2). Appellant asserted in her PCRA petition that the agreement between her sister and Trooper O‘Shea constituted a “newly-discovered fact,” previously unknown, because Ms. Stitely expressly denied the Commonwealth had offered her any promises or deals in exchange for her testimony as a Commonwealth witness at Appellant‘s trial. Appellant also attached to her PCRA petition a copy of her sister‘s August 22, 2011 negotiated guilty plea colloquy transcript, in which the Commonwealth states it offered Ms. Stitely a sentence slightly into the mitigated range based in part on her cooperation in Appellant‘s case and testimony against Appellant. Appellant insisted she had no reason to suspect her sister lied at Appellant‘s trial, when she denied the existence of a deal. Appellant claimed she could not have discovered the deal between Ms. Stitely and the Commonwealth sooner, even with the exercise of due diligence.
On October 3, 2016, the court issued notice of its intent to dismiss Appellant‘s petition without a hearing per
Appellant raises the following issues for our review:
DID THE [PCRA] COURT ERR IN FAILING TO PROPERLY APPLY THE EXCEPTION OUTLINED IN
42 PA.C.S. [§] 9545(B)(1)(II) ?DID THE [PCRA] COURT ERR IN ITS DETERMINATION THAT THE WITNESS’ AFFIDAVIT IS CONSISTENT WITH HER TRIAL TESTIMONY?
DID THE [PCRA] COURT ERR BY MISREPRESENTING [APPELLANT‘S] DILIGENCE TO SHIELD A DUE PROCESS VIOLATION?
(Appellant‘s Brief at 5).
Our standard of review of the denial of a PCRA petition is limited to examining whether the record evidence supports the court‘s determination and whether the court‘s decision is free of legal error. Commonwealth v. Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d 319 (2008). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007).
For purposes of disposition, we combine Appellant‘s issues. Appellant argues her sister‘s affidavit satisfies the “newly-discovered fact” exception to the PCRA‘s timeliness requirement. Before she received the affidavit, Appellant states she was unaware of any agreement between her sister and Trooper O‘Shea or the Commonwealth in exchange for her sister‘s testimony against Appellant. Appellant insists the Commonwealth did not disclose the deal to defense counsel through discovery or at any time during Appellant‘s trial. Appellant emphasizes that her sister denied the fact of a deal at Appellant‘s trial, and the prosecutor “stood silent” instead of bringing Ms. Stitely‘s “perjury” to light. Appellant claims she had no reason to suspect her sister testified falsely at Ap
The timeliness of a PCRA petition is a jurisdictional requisite. Commonwealth v. Robinson, 12 A.3d 477 (Pa.Super. 2011). A PCRA petition, including a second or subsequent petition, must be filed within one year of the date the underlying judgment becomes final.
The three statutory exceptions to the timeliness provisions in the PCRA allow for very limited circumstances under which the late filing of a petition will be excused.
(i) the failure to raise a 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.
The timeliness exception set forth in Section 9545(b)(1)(ii), also known as the “newly-discovered fact” exception,2 requires a petitioner to plead and prove:
Generally, Pennsylvania courts presume that information of public record is not “unknown” for purposes of the Section 9545(b)(1)(ii) exception. Commonwealth v. Chester, 586 Pa. 468, 895 A.2d 520 (2006) (stating information is not “unknown” to PCRA petitioner when it is matter of public record). See also Commonwealth v. Taylor, 620 Pa. 429, 67 A.3d 1245 (2013) (holding appellant failed to satisfy newly-discovered fact exception to PCRA timeliness requirement because trial counsel‘s purported conflict of interest was matter of public record in cases docketed, filed with clerk of court, and readily available). This Court in Burton confronted the public record presumption and removed its application from cases involving pro se incarcerated PCRA petitioners, explaining:
The general rule is reasonable when we may conclude that the petitioner retains access to public information, such as when a petitioner is represented by counsel. In such cases, public records should be presumptively knowable. However, a pro se petitioner does not have access to information otherwise readily available to the public. That is elementary: A PCRA petitioner is most often incarcerated, and thus, no longer a member of the public. Without counsel‘s providing a conduit to publicly available information, a presumption of access is cynical, and the strength of the general rule falters. Thus, the Supreme Court has expressly recognized the importance of access to the public information.
Burton, supra at 1072 (emphasis in original) (internal citations omitted).
Our Supreme Court subsequently affirmed this Court‘s Burton decision and expressly held: “[T]he presumption that information which is of public record cannot be deemed ‘unknown’ for purposes of subsection 9545(b)(1)(ii) does not apply to pro se prisoner petitioners. . . . [T]he appli
Accordingly, consistent with the statutory language, in determining whether a petitioner qualifies for the exception to the PCRA‘s time requirements pursuant to subsection 9545(b)(l)(ii), the PCRA court must first determine whether the facts upon which the claim is predicated were unknown to the petitioner. In some cases, this may require a hearing. After the PCRA court makes a determination as to the petitioner‘s knowledge, it should then proceed to consider whether, if the facts were unknown to the petitioner, the facts could have been ascertained by the exercise of due diligence, including an assessment of the petitioner‘s access to public records.
Id. at —, 158 A.3d at 638 (internal quotation marks and footnote omitted). Under Burton, Pennsylvania courts shall no longer apply a public record presumption to pro se incarcerated PCRA petitioners; but, a pro se incarcerated petitioner is still required to plead and prove the facts grounding her claim were unknown to her and she could not have discovered those facts sooner with the exercise of due diligence, which could require the court to evaluate her reasonable access to public records. Id. In other words, the pro se incarcerated petitioner‘s claim will not be subject to the public record presumption; instead, the court must step through its analysis without that presumption, which might necessitate a hearing. Id.
Instantly, Appellant‘s judgment of sentence became final on May 21, 2011, upon expiration of the time for filing a direct appeal. See
In her PCRA petition Appellant alleged, inter alia, the Commonwealth did not disclose during discovery or at Appellant‘s trial the existence of any deal with Ms. Stitely; Ms. Stitely testified for the Commonwealth at Appellant‘s trial and denied there were any promises or deals in exchange for her testimony; and Ms. Stitely has maintained repeatedly to family and friends that she did not receive a deal in exchange for her testimony.
Additionally, Ms. Stitely‘s criminal docket indicates she entered a negotiated guilty plea at CP-01-CR-0000643-2010 on August 22, 2011, to one count each of possession with the intent to deliver a controlled substance and conspiracy, and received an aggregate sentence of 18-60 months’ imprisonment. The transcript from Ms. Stitely‘s guilty plea hearing shows the Commonwealth recommended a lenient sentence based, at least in part, on her cooperation and testimony against Appellant. Ms. Stitely‘s criminal docket and the transcripts from her guilty plea and
Consistent with the dictates of Burton, the best resolution of this case is to remand it for an evidentiary hearing for the court to decide if Trooper O‘Shea‘s alleged offer and the Commonwealth‘s “deal” were unknown to Appellant. Although Ms. Stitely‘s affidavit is not necessarily inconsistent with her trial testimony, it is brief and does not disclose the details of her alleged understanding with Trooper O‘Shea or whether Trooper O‘Shea or the Commonwealth specifically promised her anything in exchange for her testimony against Appellant. Upon remand, the court must learn the details of any alleged agreement(s) and decide if they were as alleged and whether Appellant could have discovered this information sooner with the exercise of due diligence, including an assessment of Appellant‘s reasonable access to public records. See Burton, supra. Accordingly, we vacate and remand for further proceedings.
Order vacated; case remanded for further proceedings. Jurisdiction is relinquished.
P.J. GANTMAN