Com. v. Brisbon, K.
Com. v. Brisbon, K. No. 1387 EDA 2016
| Pa. Super. Ct. | Mar 29, 2017Background
- In 1996 Ironne Cannon was shot; Brisbon pled guilty in 1998 to attempted homicide and conspiracy admitting involvement; Cannon died in 2001 and Brisbon was convicted of first‑degree murder in 2003 and sentenced to life. Appeals and certiorari were denied by 2006.
- Brisbon filed a first PCRA petition in 2006 raising, among other claims, that defense counsel was ineffective for not obtaining gunshot residue (GSR) test results; that petition was dismissed and the Superior Court affirmed in 2007.
- In 2015 Brisbon filed a second PCRA petition claiming (1) a Brady violation because the Commonwealth misrepresented that GSR results did not exist, (2) newly discovered evidence (the lab report), and (3) governmental interference; he obtained the lab report from the lab many years after the tests were performed in 1998.
- The PCRA court issued a Rule 907 notice and dismissed the second petition as untimely; Brisbon appealed pro se to the Superior Court.
- The Superior Court held the petition was untimely (judgment final in Feb. 2006) and that Brisbon failed to plead and prove any statutory timeliness exception (governmental interference or newly discovered facts).
- The court found the GSR report was neither exculpatory nor material (it did not establish whether Brisbon fired a weapon) and that Brisbon lacked due diligence in seeking the report earlier; the prior litigation had already addressed the exculpatory-value issue.
Issues
| Issue | Plaintiff's Argument (Brisbon) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| Timeliness of second PCRA petition | Petition timely under PCRA exceptions because lab GSR results were concealed (Brady) and thus constitute governmental interference or newly discovered facts | Petition is untimely; no exception applies because Brisbon’s judgment became final in 2006 and he did not plead/prove an exception | Petition untimely; dismissal affirmed |
| Governmental interference / Brady violation | Commonwealth misrepresented that GSR results did not exist and thus suppressed exculpatory evidence | Any alleged suppression was not shown to have prevented earlier discovery; Brisbon did not exercise due diligence | Brady theory fails to excuse untimeliness; no proof of due diligence or prejudice |
| Newly discovered evidence exception | The lab report (GSR results) newly discovered in 2015 would be exculpatory and change outcome | The report is not exculpatory or material because guilt as principal or accomplice does not hinge on whether Brisbon fired the fatal shot; also Brisbon delayed in seeking it | New evidence exception rejected: report immaterial/not exculpatory and Brisbon lacked due diligence |
Key Cases Cited
- Rykard, 55 A.3d 1177 (Pa. Super. 2013) (standard of review for PCRA dismissals)
- Jones, 54 A.3d 14 (Pa. 2012) (PCRA timeliness is jurisdictional; petitioner bears burden to plead/prove exceptions)
- Yarris, 731 A.2d 581 (Pa. 1999) (when judgment becomes final for PCRA timeliness)
- Sneed, 45 A.3d 1096 (Pa. 2012) (cannot relitigate previously litigated claims by new theories)
- Sattazahn, 869 A.2d 529 (Pa. Super. 2005) (standards for newly discovered evidence and timeliness exceptions)
- Breakiron, 781 A.2d 94 (Pa. 2001) (Brady can support governmental interference exception but requires due diligence)
- Bronshtein, 752 A.2d 868 (Pa. 2000) (due diligence standard for newly discovered facts exception)
- Cox, 686 A.2d 1279 (Pa. 1996) (principal and accomplice share equal criminal responsibility)
- Brisbon, 943 A.2d 309 (Pa. Super. 2007) (prior Superior Court decision rejecting Brady/exculpatory-value claim regarding GSR evidence)
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecution must disclose evidence favorable to accused)