Com. v. Gallman

• Citation: 838 A.2d 768
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Brian GALLMAN, Appellant.
• Decision Date: 05 December 2003
• Court: Superior Court of Pennsylvania

838 A.2d 768

COMMONWEALTH of Pennsylvania, Appellee, v. Brian GALLMAN, Appellant.

Superior Court of Pennsylvania.

Submitted June 30, 2003.

Filed December 5, 2003.

Daniel A. Rendine, Philadelphia, for appellant.

Hugh J. Burns, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before: FORD ELLIOTT, GRACI and POPOVICH, JJ.

GRACI, J.

¶ 1 Appellant, Brian Gallman ("Gallman"), appeals from an order entered in the Court of Common Pleas of Philadelphia County on November 19, 2002, denying his petition for relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. Also before this Court is an amended petition by Gallman's attorney to remand this matter to the PCRA court for further proceedings, as well as a pro se motion by Gallman for leave to file a reply to counsel's amended petition. Counsel's petition is hereby denied, as is Gallman's pro se motion. The order of the PCRA court denying relief is affirmed for the reasons set forth herein.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 2 The factual history of this case was aptly summarized by a previous panel of this Court:

On October 10, 1992, the victim was driving his jeep in the vicinity of the Chisholm Trail Bar at approximately 10:00 p.m. According to Shawn Casey (Casey), who was present at the scene, the following events occurred: [Gallman] and co-defendant Xzavier Vann (Vann) were standing together on the sidewalk. As the victim drove by, Vann shouted something which caused the victim to stop his jeep and approach [Gallman] and Vann. Words were exchanged for a few minutes, then the victim turned to walk back to his jeep. At that point Vann directed [Gallman] to "give it to him", whereupon [Gallman] drew a gun from his jacket pocket and fired several shots at the victim. N.T., 3/6/96, at 135-36.

The victim had been shot three times, once each in the back, side, and arm. He managed to walk a few blocks before he fell. He was discovered several minutes later, still conscious but unable to speak, lying in a pile of sand at the roadside. The victim was then transported to the hospital where he subsequently died.

Approximately two weeks later, [Gallman] was arrested and admitted shooting the victim. [Gallman]'s version of the events were slightly different from that of Casey. [Gallman] claimed that he was walking home when he encountered a number of people arguing in the street. Although he saw the victim retrieve a gun from his parked jeep, [Gallman] proceeded forward. The victim then placed his gun back into the jeep. [Gallman] stated that someone, but not the victim, then fired a number of shots. [Gallman] then fired three shots at the victim from a distance of approximately three feet. [Gallman] admitted that he knew the victim was unarmed when he shot him.

Commonwealth v. Gallman, No. 02504 Philadelphia 1996, 704 A.2d 161, unpublished memorandum at 1-2 (Pa.Super. filed September 11, 1997) (footnotes omitted).

¶ 3 Gallman was convicted by a jury of first degree murder, 18 Pa.C.S.A. § 2502(a), and possessing an instrument of crime, 18 Pa.C.S.A. § 907(a). No post-trial motions were filed. On July 10, 1996, the trial court imposed a life sentence of imprisonment on the murder charge and a concurrent term of eleven and one-half to sixty months for the weapons offense. Gallman filed a direct appeal on July 12, 1996 and appellate counsel was appointed shortly thereafter. On appeal, Gallman claimed that the Commonwealth failed to disclose certain prior statements made by a defense witness and that trial counsel had been ineffective for not raising an appropriate objection. Gallman also argued that trial counsel had been ineffective for failing to impeach Shawn Casey's credibility and for failing to object to certain comments made by the prosecutor during his closing summation. This Court, finding no merit to Gallman's claims, affirmed the judgment of sentence and our Supreme Court denied allowance of appeal on September 8, 1998. Commonwealth v. Gallman, 704 A.2d 161 (Pa.Super.1997) (unpublished memorandum), appeal denied, 556 Pa. 686, 727 A.2d 1117 (1998). Gallman did not file a petition for writ of certiorari with the United States Supreme Court, thereby making his judgment of sentence final on December 7, 1998.

¶ 4 Gallman filed a pro se PCRA petition on March 12, 2001, asserting claims of ineffective assistance of counsel, prosecutorial misconduct and violations of his constitutional rights and invoking, inter alia, sections 9543(a)(2)(i) and (ii) of the PCRA. 42 Pa.C.S.A. § 9543(a)(2)(i), (ii).¹ Present counsel was appointed on May 18, 2001. In an amended PCRA petition filed on December 27, 2001, counsel raised, for the first time, the following single issue: that Gallman was entitled to a new trial based on after-discovered evidence consisting of statements made by one Maurice K. Stroman ("Stroman"). His amended petition sought relief under section 9543(a)(2)(vi) of the PCRA. 42 Pa.C.S.A. § 9543(a)(2)(vi).² Attached to the amended petition was an affidavit signed by Stroman on July 8, 2001.³ Stroman claimed that he was present on the night of the incident, had observed the victim place a gun in his jeep and, after the shooting, had removed the gun and some other items from the vehicle. Gallman argued that this allegedly exculpatory evidence would have changed the outcome of his trial because it supported his claim that he fired the fatal shots with the belief that the victim was about to retrieve a gun from his vehicle. According to the amended petition, "[t]here has been no undue delay in filing this Petition which is premised on grounds which the petitioner could not have discovered by the exercise of reasonable diligence previously." Amended Petition, 12/27/01, at 2. The petition was silent as to exactly when and how Gallman learned of Stroman's account.

¶ 5 On January 30, 2002, Gallman, still represented by present counsel, filed a pro se amended PCRA petition. In this petition, Gallman claimed, inter alia, that he met Stroman in prison and, upon hearing Stroman's story, "immediately obtained an Affidavit from Mr. Stroman attesting the above[,][w]hich Defendant immediately forwarded to present PCRA counsel." Pro Se Amended Petition for Post-Conviction Relief, 1/30/02, at 17. The Commonwealth filed a motion to dismiss Gallman's PCRA petition as untimely and not eligible for any statutory exception. On October 10, 2002, the PCRA court filed notice of its intent to dismiss Gallman's petition pursuant to Pa.R.Crim.P. 907. Gallman did not respond and on November 19, 2002, his petition was formally dismissed without a hearing.

¶ 6 Gallman appealed from the denial of PCRA relief on November 27, 2002. In his statement of matters complained of on appeal, filed pursuant to Pa.R.A.P.1925(a), Gallman argued that "the [PCRA] Court erred in dismissing the petitioner's P.C.R.A. petition without a hearing and/or without creating substantive relief and since the P.C.R.A. petition was timely filed, after-discovered evidence alleged in the petition are within the parameters of 42 Pa.C.S.A. § 9542(a)(2)(vi)."⁴ Rule 1925(b) Statement, 12/13/02. In its Rule 1925(a) opinion, the PCRA court explained that Gallman's petition was untimely and, moreover, did not qualify for the statutory exception to the PCRA's jurisdictional timeliness requirement for after-discovered evidence. See 42 Pa.C.S.A. § 9545(b). Specifically, the court noted that Gallman

did not attempt to allege in his petition when he first learned of the supposedly after acquired evidence. Moreover, [Gallman] has not shown that he filed his petition within 60 days of first discovering this evidence. Finally, [Gallman] does not demonstrate how he learned of this evidence. Consequently, [Gallman]'s claims are untimely, and thus, this Court lacks jurisdiction in this matter.

Even if this Court were to find that [Gallman]'s claims fall under the after acquired evidence exception, these claims still lack substantive merit. [Gallman] has not shown how the jailhouse witness's statement would have changed the outcome of the trial because of the other overwhelming evidence of guilt in this case. [Gallman] admitted that the decedent had put the gun back in the Jeep, and that he knew the victim was unarmed when [Gallman] fired the fatal gun shots. As a result, even if the jury were to believe that there was a gun in the Jeep, it would not negate the conviction because the victim was clearly unarmed when he was killed. Furthermore, the victim was shot from behind while he was walking back to his Jeep.

Memorandum Opinion, 1/22/03, at 5.

¶ 7 On March 7, 2003, counsel filed an appellate brief on Gallman's behalf arguing that Stroman's statement constituted after-discovered evidence within the purview of the PCRA. Counsel maintained that if Stroman removed a gun from the victim's jeep on the night of the incident then it supported Gallman's defense that the shooting was justified and that it would have rebutted the Commonwealth's evidence and argument at trial that no gun was found in the victim's car. Brief for Appellant, at 9-10. With respect to the issues of timeliness raised by the Commonwealth, and relied upon by the PCRA court in dismissing Gallman's petition, counsel averred generally that Stroman's statements "could not have been discovered prior to the conclusion of the trial as [Gallman] did not know that Stroman had taken the gun until recently." Id. at 10. Counsel made no attempt to plead or prove specifically that the underlying petition was eligible for an enumerated exception to the PCRA's one-year filing deadline.

¶ 8 While the present appeal was pending, Gallman filed a pro se Petition for Remand for Appointment of New Counsel on August 4, 2003. In his petition, Gallman raised the following issues:

A. [Whether] present counsel [was] ineffective for failing to argue that the victim exhibited the gun at one point during the incident[?]

B. [Whether] present counsel [was]...