COMMONWEALTH OF PENNSYLVANIA v. JAMIE BROWN
No. 152 WDA 2015
IN THE SUPERIOR COURT OF PENNSYLVANIA
MARCH 24, 2016
2016 PA Super 73
OLSON, J.
J-S04022-16; Aрpeal from the PCRA Order of December 22, 2014; In the Court of Common Pleas of Beaver County; Criminal Division at No(s): CP-04-CR-0000913-2001
OPINION BY OLSON, J.: FILED MARCH 24, 2016
Appellant, Jamie Brown, appeals pro se from the order entered on December 22, 2014 dismissing his third petition filed pursuant to the Post-Conviction Relief Act (“PCRA“),
This Court previously set forth the factual background of this case as follows:
[On March 15, 2001] Aliquippa Police Officer James Naim was on routine foot patrol in the Linmar Housing Plan when Appellant approached him from the rear firing a nine millimeter handgun. Two bullets struck the officer in the head causing his immediate death. Testimony established that Appellant, who was well known to the law enforcement community, told several people that he was going to kill a police officer to “set an examplе.”
* Retired Senior Judge assigned to the Superior Court
The procedural history of this case is as follows. On May 10, 2002, Appellant was convicted of third-degree murder.1 On May 29, 2002, Appellant was sentenced to 20 to 40 years’ imprisonment. This Court affirmed the judgment of sentence, and our Supreme Court denied allowance of appeal. Commonwealth v. Brown, 850 A.2d 5 (Pa. Super. 2004) (unpublished memorandum), appeal denied, 863 A.2d 1142 (Pa. 2004).
On June 30, 2005, Appellant filed a pro se PCRA petition. Counsel was appointed and, on February 13, 2008, the PCRA court denied Appellant‘s first PCRA petition. This Court affirmed the denial of PCRA relief, and our Supreme Court denied allowance of appeal. Commonwealth v. Brown, 965 A.2d 289 (Pa. Super. 2008) (unpublished memorandum), appeal denied, 983 A.2d 725 (Pa. 2009).
Appellant thereafter sought federal habeas relief. Such relief was denied. Brown v. Mazurkiewicz, 2012 WL 954628 (W.D. Pa. Mar. 20, 2012). On July 12, 2012, Appellant filed a pro se PCRA petition, his second. That petition was denied and this Court affirmed. Commonwealth v. Brown, 83 A.2d 1063 (Pa. Super. 2013) (unpublished memorandum).
Appellant presents five issues for our review:
- Whether the [PCRA] court erred as a matter of law and/or abused its discretion in failing to disqualify the [OAG] from participating in the instant PCRA proceedings?
- Whether the [PCRA] court erred as a matter of law and/or abused its discretion in failing to grant Appellant‘s request for judicial recusal?
- Whether the [PCRA] court erred as a matter of law and/or abused its discretion in denying and/or otherwise dismissing Appellant‘s request for PCRA relief as untimely?
Whether the [PCRA] court‘s historical findings concerning the information provided by [Angela Y.] White [(“White“)] and [Anthony] Brown [(“Brown“)] are without any support in the record? - Whether the [PCRA] court erred as a matter of law and/or abused its discretion in denying and/or otherwise dismissing Appellant‘s request for PCRA relief without ruling on his request for limited discovery?
Appellant‘s Brief at 4 (complete capitalization removed).4
In his first issue, Appellant argues that the PCRA court erred by denying his motion to disqualify the OAG.5 Appellant contends that disqualification of the OAG was required because one of the claims raised in his PCRA petition was that the OAG withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). Second, Appellant argues that disqualification of the OAG was required pursuant to the Commonwealth Attorneys Act,
Appellant argues that the OAG should have been disqualified because, in his PCRA petition, he alleged that the OAG violated Brady. Appellant notes that any attorney who violates Brady is subject to disciplinary action and/or criminal penalties. Thus, according to Appellant, the OAG attorneys have a personal interest in ensuring his Brady claim fails which conflicts with their professional obligation to expose any Brady violations.
This claim fails for two reasons. First, when evaluating prosecutorial disqualification claims, “individual rather than vicarious disqualification is the general rule.” Ford, 122 A.3d at 418 (internal quotation marks and citation omitted). The attorney in the OAG‘s office who represented the Commonwealth with respect to Appellant‘s third PCRA petition was not involved in Appellant‘s original prosecution. Appellant cites Commonwealth v. Eskridge, 604 A.2d 700 (Pa. 1992), in support of his argument that the general rule of individual disqualification should not apply in this case. Eskridge, however, is distinguishable from the case at bar. In
Second, Aрpellant points to no authority for the proposition that allegations of a Brady violation warrant disqualification of an entire prosecutorial office. We are likewise unaware of any such authority. Instead, we find persuasive the reasoning of the Supreme Court of New Jersey in New Jersey v. Marshall, 690 A.2d 1 (N.J. 1997). In that case, like in the case at bar, the defendant argued that the attorney general‘s office should have been disqualified from representing the state in collateral proceedings because he alleged that an individual employed by the attorney general‘s office violated Brady. Id. at 99. The Supreme Court of New Jersey held that “[t]he fact that defendant alleges misconduct in prior
Appellant argues, alternatively, that disqualification of the OAG is required pursuant to the Commonwealth Attorneys Act. Specifically, Appellant argues that there is no record showing that the Beaver County District Attorney asked the OAG to prosecute Appellant‘s PCRA petition; therefore, the OAG is without authority in this matter. This argument is waived. Under the PCRA, “an issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal[,] or in a prior state postconviction proceeding.”
In his second issue, Appellant contends that the PCRA court erred by denying his motion for recusal.6 “We review the [PCRA] court‘s denial of the recusal motion for abuse of discretion.” Becker v. M.S. Reilly, Inc., 123 A.3d 776, 778 (Pa. Super. 2015) (citation omitted). When
considering a recusal request, the jurist must first make a conscientious determination of his or her ability to assess the case in an impartial manner, free of personal bias or interest in the outcome. The jurist must then consider whether his or her continued involvement in the case creates an appearance of impropriety and/or would tend to undermine public confidence in the judiciary. This is a personal and unreviewable decision that only the jurist can make. In reviewing a denial of a disqualification motion, we recognize that our judges are honorable, fair[,] and competent.
Commonwealth. v. Orie Melvin, 103 A.3d 1, 23 (Pa. Super. 2014) (citation and internal ellipsis omitted).
Appellant contends that the PCRA court‘s actions during trial also evidenced its bias in this matter. Appellant admits, however, that such actions are “not reflected in the trial record[.]” Appellant‘s Brief at 31. We must rely solely on the certified record; thus mere averments in a brief are insufficient to prove that the PCRA court‘s actions during trial were biased against Appellant. Appellant next contends that the PCRA court‘s opinion that 20 years’ imprisonment was insufficient evidences the PCRA court‘s bias. This statement by the PCRA court was made at sentencing and reflected the trial court‘s careful consideration of the sentencing factors set forth in
Appellant also argues that the PCRA court had “personal knowledge of evidentiary facts which would likely be called into dispute[.]” Appellant‘s Brief at 27. Appellant, however, does not point to any such personal knowledge possessed by the PCRA court. As such, this contention is waived. See
The PCRA court considered whether it was able to resolve Appellant‘s claims free of bias or personal interest in the case. After concluding that it was able to impartially resolve Appellant‘s third PCRA petition, the PCRA court determined that remaining on the case would neither present the appearance of impropriety nor undermine faith in the judiciary. Thus, it denied Appellant‘s motion for recusal. For the reasons stated above, we find that the PCRA court did nоt abuse its discretion in denying Appellant‘s recusal motion.
In his third and fourth issues on appeal, Appellant contends that the PCRA court erred by dismissing his petition based upon its finding that it lacked jurisdiction to reach the merits.7 “Crucial to the determination of any
A PCRA petition is timely if it is “filed within one year of the date the judgment [of sentence] becomes final.”
An untimely PCRA petition may be considered if one of the following three exceptions applies:
(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
(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.
Appellant argues that he satisfied the newly-discovered fact exception under
has two components, which must be alleged and proved. Namely, the petitioner must establish that: 1) the facts upon which the claim was predicated were unknown and 2) could not have been ascertained by the exercise of due diligence. If the petitioner alleges and proves these two components, then the PCRA court has jurisdiction over the claim under this subsection.
Commonwealth. v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (internal quotation marks and citations omitted; emphasis removed).8
Appellant contends that two separate affidavits provided newly-discovered facts.9
Three [] days after the murder of Officer James Naim[,] I was at Patrick Mastanico[‘]s apartment along with [Aliquippa Police Officers] Sonya Carter, Tommy Lemon[,] and David Edgil . . . Tommy Lemon started [talking about] how he walked up behind [Officer] Naim and shot him in the back of his head and that when he went down he started kicking so he shot him again. And he was laughing about it. And started talking about how they (David Edgil [and] Tommy Lemon) [did] what they did because [] their jobs were on the line because [Officer] Naim was going to go and speak to some people about all the things going on in the Aliquippa Police Department. [T]hey were saying as to how they did it for all of their brother officers. And how they [planned] to put the blame on [Appellant] stating that [Aрpellant] told them that [there] was a hit list of cops because of a traffic stop they made on [Appellant] . . . Also how they could make people say what they wanted them to[] say. At that point[,] Tommy Lemon looked over at me[,] got up[,] walked over[,] patted me on my shoulder[,] and said anyone talks about this they are going away for a long time. Because he [realized] I was not a cop.
Appellant‘s Third Amended PCRA Petition, 9/24/13, at Exhibit B.
We conclude that Brown‘s affidavit does not constitute a newly-discovered fact. We find instructive our Supreme Court‘s decision in Commonwealth v. Yarris, 731 A.2d 581 (Pa. 1999). In Yarris, the
that the evidence which purportedly reveals that someone other than [the petitioner] committed the murder is hearsay, not within any exception, and so unreliable as to be inadmissible. A claim which rests exclusively upon inadmissible hearsay is not of a type that would implicate the [newly-discovered fact] exception to the timeliness requirement, nor would such a claim, even if timely, entitle [the petitioner] to relief under the PCRA.
The alleged confession by Tommy Lemon is hearsay as it is an out-of-court statement offered for the truth of the matter asserted. See
Furthermore, Appellant failed to plead and prove that he acted with due diligence in obtaining Brown‘s affidavit. To the contrary, Appellant‘s strategy at trial included an effort to present evidence that another Aliquippa
We now turn to the affidavit from White, dated April 17, 2013, which Appellant argues provides information which led to the discovery of a newly-discovered fact. That affidavit reads as follows:
To Whom It May Concern:
I would like to inform you that there is a [wiretap] that indicates the person that killed the police officer [in the] Linmar [Housing Plan in] Aliquippa. I was asked about this when I was being interrogated on the [a]rmy [b]ase in Ft. Hood[,] Texas. I know that a [wiretap] do[es] еxist that contains this information. The [t]ape has the voice of the killer that was bragging about what he did. I did not know anything about that misfortune at the time so I did not focus on what was being said to me. I just wanted to inform the courts that there is a tape that has the voice of a killer on it. I do not remember the names of the officers that shared bits of information with me about this case. Just want to help the courts find out the truth.
Appellant states that after receiving White‘s affidavit, he undertook a thorough investigation which included obtaining the transcripts from White‘s criminal trial in 2003 in the Court of Common Pleas of Beaver County. He avers that he read the transcripts of White‘s trial and learned that the wiretap conversations that she referenced in her 2013 affidavit contained exculpatory material. At the outset, we note that White‘s аffidavit itself is not a newly-discovered fact. Our Supreme Court addressed a situation like the one in the case sub judice in Commonwealth v. Castro, 93 A.3d 818 (Pa. 2014). In Castro, the petitioner relied upon a newspaper article to establish the newly-discovered fact exception to the PCRA‘s timeliness requirement. Our Supreme Court held that a newspaper “article contain[ed] allegations that suggest such evidence may exist, but allegations in the media, whether true or false, are no more evidence than allegations in any other out-of-court situation.” Id. at 825.
In this case, White‘s affidavit does not set forth who made the statements on the wiretaps nor does it set forth the name of the officers who played the wiretaps for White. The affidavit states that the wiretaps had the voice of a killer; however, it fails to aver that the voice heard on the wiretap was not Appellant‘s voice. Instead, the affidavit merely references exculpatory wiretaps that may exist. This is similar to Castro in which the newspaper article referenced a possible video tape that could be evidence.
We thus turn to whether Appellant pled and proved the existence of a newly-discovered fact as a result of White‘s affidavit. Appellant used White‘s affidavit to locate transcripts which referenced wiretaps played at White‘s trial. Appellant‘s Third Amended PCRA Petition, 9/24/13, at 9 (Subsequent investigation included “obtaining the complete transcripts from [] White‘s criminal trial.“). Appellant did not attach to his third amended PCRA petition any transcript which included the actual conversations from the wiretap interception. Instead, he stated that the wiretap conversations “contain extensive dialogue between several individuals (both known and unknown to [Appellant]), as well as graphic, exculpatory discussion[s] concerning the March 15, 2001 shooting of Officer Naim.” Id.11
This Court has considered this issue before. In Commonwealth v. Boyd, 835 A.2d 812 (Pa. Super. 2003), the petitioner filed a supplement without leave of court. The PCRA court did not strike the supplement and considered the supplement when it addressed the petitioner‘s arguments.
We conclude that the PCRA court accepted Appellant‘s reply/supplement. The PCRA court did not strike the filing. The PCRA court
In those supplemental materials, Appellant attached transcripts from White‘s criminal proceedings. The first transcript is from White‘s January 11, 2003 suppression hearing. That transcript revealed that this Court authorized three wiretap orders, although the details of those orders are not clear from the January 11, 2003 transcript. The second transcript is from White‘s suppression hearing on February 24, 2003. In that transcript, the Commonwealth‘s attorney stated “There were conversations over that wiretap talking about the murder of Officer Naim[.]” Appellant‘s Reply to Commonwealth‘s Response to Third Amended PCRA Petition, 1/9/14, at Exhibit B.3. The third transcript is from White‘s jury trial held on March 6, 2003. That transcript includes an index listing 13 tapes of wiretap
Contrary to the Commonwealth‘s argument, the recordings may be admissible as statements against interest (or as non-hearsay). A statement against interest is a statement
a reasonable person in the declarant‘s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant‘s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant‘s claim against someone else or to expose the declarant to civil or criminal liability; and [] is supported by corroborating circumstancеs that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
The Commonwealth contends that Appellant failed to plead and prove that the declarant was unavailable. In order for a declarant to be unavailable for the purposes of
We find this situation distinguishable from Yarris and Abu-Jamal, discussed supra, and Appellant‘s claim relating to Brown‘s affidavit.13 In Yarris and Abu-Jamal, аlong with Appellant‘s claim relating to Brown‘s affidavit, the only proof of the alleged confessions was an affidavit by a third-party. Compare that with Appellant‘s argument related to White‘s affidavit, which contained information that could lead to a recording of the communications regarding Officer Naim‘s murder. A recording from a wiretap may be more trustworthy than an oral statement overheard by a third-party. Without more context of the wiretap interceptions, it is impossible to determine if the statements contained in the wiretap were reliable under
The Commonwealth contends that the wiretap tapes and transcripts are merely a new conduit to support Appellant‘s claim that another individual killed Officer Naim. Cf. Commonwealth v. Johnston, 42 A.3d 1120, 1128 (Pa. Super. 2012) (a new conduit is not a newly-discovered fact for the purposes of the PCRA‘s timeliness exception). This argument fails, however, for two reasons. First, the wiretaps are not a new conduit because they are contemporaneous recordings, made prior to Appellant‘s trial. Thus, they are different than a new witness - appearing years after a judgment of sentence becomes final - providing an affidavit or testimony. Second, Appellant is not using the wiretaps as a new conduit to argue that another individual killed Officer Naim. Instead, Appellant is using the existence of the wiretap tapes and transcripts to support his claim that the Commonwealth violated Brady by withholding this evidence. Thus, the wiretap tapes and transcripts are not a new conduit. The averments in Appellant‘s third amended PCRA petition, combined with the transcripts attached to his January 9
The Commonwealth next argues, in a conclusory fashion, that Appellant failed to plead and prove that he presented his claim within 60 days of when he could have discovered the existence of the wiretap tapes and transcripts with the exercise of due diligence. It is undisputed that Appellant filed his third PCRA petition within 60 days of receiving White‘s affidavit. Thus, the question is whether Appellant acted with due diligence in seeking out the tapes and transcripts. This Court has held “that due diligence requires neither perfect vigilance nor punctilious care, but rather it requires reasonable efforts by a petitioner, based on the particular circumstances, to uncover facts that may suрport a claim for collateral relief.” Commonwealth v. Burton, 121 A.3d 1063, 1071 (Pa. Super. 2015) (en banc) (citations omitted).
After careful examination of applicable case law, we conclude that there is a genuine issue of material fact as to whether Appellant pled and proved that he acted with due diligence. In this case, it is unclear whether the wiretap tapes and transcripts are contained within White‘s public case file. In Burton, however, this Court held “that the presumption of access to information available in the public domain does not apply where the untimely PCRA petitioner is pro se.” Id. at 1073. Thus, whether the wiretap
We find instructive Commonwealth v. Davis, 86 A.3d 883, 888 (Pa. Super. 2014). In Davis, this Court concluded that the petitioner was not required to search for transcripts, in unrelated case files, to exercise due diligence when he did not know about the witness’ deal with the Commonwealth. Davis, 86 A.3d at 890-891. In this case, White‘s case was unrelated to Appellant‘s case and there is no evidence that Appellant should have been searching White‘s case file for evidence related to his case.
We also find instructive Commonwealth v. Medina, 92 A.3d 1210 (Pa. Super. 2014) (en banc), appeal granted, 105 A.3d 658 (Pa. 2014). In Medina, this Court held that a witness’ recantation was a newly-discovered fact and that Medina acted with due diligence in learning about the recantation. In so holding, the en banc Court relied on the fact that the petitioner was not at the scene of the crime and, thus, had no way of knowing whether the witness’ trial testimony was truthful. Id. at 1217, citing Commonwealth v. Loner, 836 A.2d 125, 137 n.5 (Pa. Super. 2003) (en banc). Furthermore, Medina was unaware of the police coercion that led to the witness’ testimony. We find this analogous to the case at bar in which, according to the evidence of record and Appellant‘s averments, Appellаnt was not at the scene of the conversations recorded over the wiretap. Furthermore, there is no evidence of record that Appellant, or any
The PCRA court, in dismissing Appellant‘s petition, found that the statements referred to by White in her affidavit, and referenced by Appellant in his third amended PCRA petition, were made by Appellant‘s co-defendant to police. Rule 907 Notice, 7/15/15, at 3. There is simply no evidence in the record to support this finding by the PCRA court. Evidence may exist which supports the PCRA court‘s finding; however, that evidence is not of record in this case. The Commonwealth failed to submit such evidence as part of its response to Appellant‘s third amended PCRA petition and the PCRA court did not hold a hearing to admit said evidence. Thus, the PCRA court‘s finding that the statement referenced in White‘s affidavit was Appellant‘s co-defendant‘s statement to police is unsupported by the record and cannot serve as the basis for dismissal of Appellant‘s third amended PCRA petition.
In his final issue, Appellant argues that the PCRA court erred by failing to rule on his request fоr limited discovery. We conclude that this issue is not ripe for disposition. If the PCRA court has jurisdiction over the merits of Appellant‘s petition, limited discovery may be appropriate. On the other hand, if the PCRA court lacks jurisdiction to consider the merits of Appellant‘s petition, limited discovery would be unnecessary. We leave it to
In sum, we conclude that the PCRA court did not abuse its discretion in denying Appellant‘s motion to disqualify the OAG and his motion for recusal. Appellant‘s petition was patently untimely; however, there is a genuine issue of material fact as to whether Appellant pled and proved the applicability of the PCRA‘s newly-discovered fact exception. We deem Aрpellant‘s last issue not ripe for disposition. Accordingly, we affirm the PCRA court‘s orders denying Appellant‘s motions for recusal and disqualification. We affirm the PCRA court‘s order that it lacks jurisdiction over any claim raised in Appellant‘s third amended PCRA petition relating to Brown‘s affidavit. We vacate the trial court‘s dismissal of the portions of Appellant‘s third amended PCRA petition that relate to the wiretap tapes and transcripts, and remand for appointment of counsel15 and an evidentiary hearing to determine if Appellant has pled and proved the applicability of the newly-discovered fact exception.
Jurisdiction relinquished.
Judge Bowes joins this Opinion.
Judge Strassburger files a Concurring Opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/24/2016
Notes
Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008) (citations omitted).To obtain relief based on after-discovered evidence, [a petitioner] must demonstrate that the evidence: (1) 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 to impeach the credibility of a witness; and (4) would likely result in a different verdict if a new trial were granted.
Our Supreme Court‘s decision in Commonwealth v. Mason, 2015 WL 9485173 (Pa. Dec. 29, 2015), is also distinguishable from the case at bar. In Mason, our Supreme Court concluded that the PCRA court did not intend to allow supplementation, rather counsel‘s misrepresentations to the PCRA court resulted in such consideration. Id. at *13. Thus, it found that the claims raised in the petitioner‘s supplement were not implicitly accepted by the PCRA court. See id.
Furthermore, in both Reid and Mason the issue was the addition of supplemental claims. In this case, there were no claims added by Appellant‘s supplement. Instead, Appellant only sought to supplement the record for claims that had been properly pled in the amended PCRA petition.