Com. v. Brown, G.

• Court: Superior Court of Pennsylvania
• Decided: March 20, 2015
• Docket: 289 WDA 2014
• Status: Unpublished

Opinion

J-A35035-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

GREGORY BROWN,

Appellee No. 289 WDA 2014

Appeal from the PCRA Order entered February 19, 2014, in the Court of Common Pleas of Allegheny County, Criminal Division, at No(s): CP-02-CR-0006028-1996 & CP-02-CR-0008170-1996

BEFORE: BENDER, P.J.E., DONOHUE, and ALLEN, JJ.

DISSENTING MEMORANDUM BY ALLEN, J.: FILED MARCH 20, 2015

I respectively dissent from the Majority’s conclusion affirming the

PCRA court’s grant of post-conviction relief. Prior to Appellee’s trial it was

public knowledge that a reward was offered for information resulting in his

arrest and conviction. Two witnesses testified for the Commonwealth at

trial, and, in return, could expect/anticipate a payment from the reward

fund. Both witnesses received remuneration almost two years later. In light

of these “facts,” I cannot accept the PCRA court’s conclusion that Appellee

met any exception to the PCRA’s time bar.

After my careful review of the record, I reject the premise asserted by

Appellee, and accepted by the PCRA court and the Majority at 25-26, that his

appeal was timely because of the “newly discovered fact” that two

Commonwealth witnesses were essentially promised a sum certain in reward J-A35035-14

money for their testimony, and that the Commonwealth placed “a cloak of

secrecy around these payments.” N.T., 5/24/12, at 555 (Appellee’s

argument).

On direct appeal, this Court observed that “[Appellee] knew of the

existence of the reward offers, and [Appellee] had the opportunity to

question witnesses at trial about whether any reward or other consideration

had been offered to them in return for their testimony[.]” See

Commonwealth v. Brown, Jr., 750 A.2d 364 (Pa. Super. 1999),

unpublished memorandum at 14. We further determined that no Brady

violation occurred, because information regarding the reward was “equally

accessible to both parties.” Id. at 16. Thus, even though, years later, the

Innocence Institute at Point Park University uncovered “new evidence” which

ultimately led to the PCRA court’s conclusion that two Commonwealth

witnesses were promised a sum certain by an ATF agent, the “fact” remains

that the “promise” of a reward was public information. See

Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa. 2013) (reiterating

that to constitute “facts,” as the term is used in Section 9545(b)1(ii) of the

PCRA, “the information must not be of public record and must not be facts

that were previously known but are now presented through a newly

discovered source”).

Finally, although the Majority cites trial counsel’s post-conviction

testimony that he did not know of the reward offer until after he gave his

closing argument, Majority at 13, the reward offer was a public fact in 1995.

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In other words, trial counsel should have known this “fact.” Appellee’s true

claim for post-conviction relief is based upon the ineffectiveness of trial

counsel—a claim upon which Appellee earlier failed to seek post-conviction

relief. See Commonwealth v. Edmiston, 65 A.3d at 349 (affirming PCRA

court’s dismissal of the petitioner’s second PCRA petition because it was

untimely; petitioner failed to “carry his burden of establishing that he was

not aware of the factual predicate of his claim at the time of trial and that

succeeding counsel could not, with the exercise of due diligence, have

presented” the claim earlier than in a PCRA petition filed sixteen years

following his conviction).

In light of the foregoing, I conclude that Appellee’s serially amended

PCRA petition is untimely, and that the PCRA court erred in concluding that it

had jurisdiction. Thus, I would reverse the PCRA court’s order granting

Appellee post-conviction relief.

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