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Commonwealth v. Shiloh

Superior Court of Pennsylvania

September 8, 2017

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
LISA LEE SHILOH Appellant

         Appeal from the Order Entered November 30, 2016 In the Court of Common Pleas of Adams County Criminal Division at No(s): CP-01-CR-0000635-2010, CP-01-CR-0000645-2010

          BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J. [*]

          OPINION

          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 Pa.R.Crim.P. 907, the court denied relief on February 4, 2015. This Court affirmed the denial of PCRA relief on December 18, 2015. See Commonwealth v. Shiloh, 135 A.3d 663 (Pa.Super. 2015). Appellant filed another PCRA petition on March 28, 2016, which she withdrew on May 19, 2016.

         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 Pa.R.Crim.P 907. Appellant responded pro se. The PCRA court denied relief on November 30, 2016. Appellant timely filed a pro se notice of appeal on December 14, 2016. On December 21, 2016, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied on January 12, 2017.

         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 ...

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