Com. v. Brown, K.

• Court: Superior Court of Pennsylvania
• Decided: June 16, 2025
• Docket: 142 WDA 2025
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KEVIN S. BROWN : : Appellant : No. 142 WDA 2025

Appeal from the Order Entered January 7, 2025 In the Court of Common Pleas of McKean County Criminal Division at No(s): CP-42-CR-0000542-2019

BEFORE: McLAUGHLIN, J., LANE, J., and BENDER, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.: FILED: June 16, 2025

Kevin S. Brown appeals from the order denying his petition to defer

service of his sentence of confinement and order his release to hospice care.

He alleges that the court erred in denying his petition and in not holding a

hearing on the matter. We affirm.

In May 2021, a jury convicted Brown of involuntary deviate sexual

intercourse, sexual assault, statutory sexual assault, and two counts each of

indecent assault and corruption of minors.1 The trial court sentenced Brown

to an aggregate term of 12 to 24 years’ incarceration, followed by three years

of reporting probation. The court also determined Brown to be a sexually

violent predator (“SVP”). Brown appealed, and we affirmed his judgment of

sentence but remanded for correction of the grading of a single conviction, ____________________________________________

1 18 Pa.C.S.A. §§ 3123(b), 3124.1, 3122.1(b), 3126(a)(7), and 6301(a)(1)(i),

(ii), respectively. J-A17004-25

without resentencing. See Commonwealth v. Brown, No. 1490 WDA 2023,

2024 WL 5205587, at *1 (Pa.Super. filed Dec. 24, 2024) (unpublished mem.).

Brown filed the instant Emergency Petition to be Released Pursuant to

42 Pa.C.S.A. § 9777, in November 2024. Section 9777 provides, in relevant

part, and as explained in greater detail below, for an inmate’s release in

certain circumstances to receive hospice care. Brown asked the court to permit

him to be “release[d] to hospice care due to his terminal condition of stage III

non-small cell lung cancer with metastases to brain bone, and life expectancy

of less than six months[.]” Emergency Petition at 1. He asserted that a hospice

facility, UPMC Family Hospice, agreed to place him under their care “for

hospice care at the home of his wife[.]” Id. at 3, ¶ 4. He sought release to his

wife’s home, which he would not be permitted to leave “without prior

permission being granted by the Court, with the exception of off-site medical

care visits as deemed appropriate by UPMC Family Hospice and/or religious

services or caregiver emergencies.” Id. at 4, ¶ 12.

In support, Brown attached a summary of medical treatment, dated

August 19, 2024, with a comment from a doctor that his life expectancy was

less than six months. See id. at Exhibit A (“Medical Summary”), at 4. The

summary identified Brown’s diagnosis as “Stage III non-small cell lung cancer

with metastases to brain bone” and stated that Brown had “decided not to

undergo any further cancer treatment, and to opt for comfort care.” Id. at 1.

Brown also attached a copy of an email from the clinical manager at UPMC

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Family Hospice stating that the facility would accept Brown as a patient. Id.

at Exhibit C (“Hospice Email”).

The trial court denied Brown’s petition. It determined that Brown had

not met the requirements for a Section 9777 release. It found that Brown did

not establish a prima facie case that his placement in hospice would not pose

an undue risk of escape or danger to the community. It also found that he had

failed to meet the requirement that a petition for Section 9777 release make

certain averments. See 42 Pa.C.S.A. § 9777(e). The court concluded that it

would pose an undue risk of escape and a danger to the community to have

Brown released to his wife’s home. It pointed out that his home does not fall

within the definition of a licensed hospice care under the statute and “[i]t

would be difficult for [Brown] to demonstrate that his wife [would] monitor

him and his whereabouts continuously.” Opinion and Order, filed 1/7/25, at 5.

Brown moved for reconsideration, stating that he would now stay at the

home of a family friend, instead of his wife’s home. See Motion of the

Petitioner, Kevin S. Brown, for Reconsideration of the Denial, Without Any

Hearing, of His Emergency Petition to be Released Pursuant to 42 Pa.C.S.A.

9777, filed 1/17/25, at 3, ¶13. He also asserted that because of his illness he

would not be a danger and that Section 9777 permits a home to be the place

for hospice care. See id. at 4, ¶¶ 15, 17.

The trial court denied reconsideration. This timely appeal followed. The

court ordered Brown to file a concise statement of matters complained of on

appeal pursuant to Pa.R.A.P. 1925(b), and Brown filed a nine-page statement.

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See 1925(B) Statement of the Appellant/Defendant, Kevin S. Brown, filed

2/11/25.

Brown raises the following questions:

1. Did the Honorable John H. Pavlock err in not providing a hearing on the issues of mercy release pursuant to 42 Pa. C.S.A. [§] 9777? Did he further err in relying on [sic] case of Commonwealth v. Folk[,] 40 A.3d 169 (Pa. Super. Ct., 2012) as his basis for not providing a hearing since Folk involved a sentencing and no hospice, medical reports, etc. were presented? Did Judge Pavlock deny fundamental due process and abuse his discretion, by unfairly not providing Mr. Brown a timely hearing on his mercy release due to his terminal lung cancer, which is metastasized to his brain and bones, where the doctors have estimated his life expectancy is less than six months? Was there a gross abuse of discretion in not providing a hearing and relying on the Folk case, since the Folk case had entirely different facts? Further, did Judge Pavlock err in not providing a hearing since Mr. Stretton was prepared to present medical testimony that Mr. Brown was terminally ill, that the illness was lung cancer and had metastasized to his bones and brain, he is only about 90 pounds now, he has less than a few months, if not weeks, to live, he is not ambulatory, and the hospice was there to provide appropriate care, and the prison system has no licensed hospice? Further, did Judge Pavlock ignore the letter from the Department of Corrections indicating that Mr. Brown had met the medical conditions for release? Did Judge Pavlock grievously err in violating Mr. Brown’s fundamental right to due process under the Fourteenth Amendment of the United States Constitution by not providing a timely hearing and denying Mr. Brown his right under 42 Pa. C.S.A. [§] 9777(A)(2) to have a hearing?

A. Did Judge Pavlock err in suggesting the pleadings filed by Mr. Stretton for the mercy release were inadequate when these pleadings are the same as Mr. Stretton has filed in the last 30 to 40 Mercy Release Petitions that he has filed for the Prison Society on behalf of inmates, and the Petition

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clearly covers with detail all aspects of 42 Pa. C.S.A. [§] 9777?

B. Did Judge Pavlock err in suggesting a home location for hospice care and supervision was not sufficient, when in fact that is allowed by 42 Pa.C.S.A. [§] 9777?

C. Did Judge Pavlock err since there was overwhelming and sufficient evidence to grant mercy release in this case, and there was a gross abuse of discretion not to do so, and further a gross abuse of discretion to not to [sic] have a hearing, and further a gross abuse of discretion since Judge Pavlock delayed almost two months before he issued a decision, knowing the terminal nature of Mr. Brown’s illness? --- Judge Pavlock, without a hearing, denied the mercy release and found the conditions were not met, even though he held no hearing and the evidence was overwhelming for a mercy release.

Brown’s Br. at 6-8.

The trial court finds that Brown has waived his appellate issues because

his Rule 1925(b) statement is redundant, lengthy, and not concise. See Rule

1925(a) Opinion (1925(a) Op.), filed 3/31/25, at 3. The court further states

that “the [c]oncise statement is so broad and rambling, it leaves this court

guessing as to the precise issues [Brown] is raising and [to] be addressed on

appeal.” Id.

We decline to find waiver. While Brown’s statement is long and not

concise, in the context of this litigation, it is readily understandable that he

wanted to challenge the court’s failure to hold a hearing and its conclusion

that his petition did not meet the pleading requirements of Section 9777.

Indeed, the trial court discerned those issues from Brown’s 1925(b) statement

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and wrote an opinion addressing them. See Commonwealth v. Rogers, 250

A.3d 1209, 1224 (Pa. 2021) (reversing Superior Court’s finding of waiver,

concluding Rule 1925(b) statement was “readily understandable from

context”); Pa.R.A.P. 1925, comment (“Neither the number of issues raised nor

the length of the Statement alone is enough to find that a Statement is vague

or non-concise enough to constitute waiver”).

We review the denial of a petition for a Section 9777 transfer for an

abuse of discretion. See Commonwealth v. Folk, 40 A.3d 169, 173

(Pa.Super. 2012). An abuse of discretion occurs when the court’s judgment is

“manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality,

as shown by the evidence of record” or where the court overrides or misapplies

the law. Commonwealth v. Yanovitsky, 319 A.3d 522, 529 (Pa.Super.

2024) (citation omitted).

Although Brown lists four issues in his Statement of Questions

Presented, the argument section of his brief contains only a single argument

section addressing all four claims collectively. His doing so violates Pa.R.A.P.

2119(a). That rule requires that the argument section “be divided into as

many parts as there are questions to be argued[.]” Pa.R.A.P. 2119(a). The

failure to abide by the briefing rules risks a finding of waiver. However, we

again decline to find waiver, in this instance because the Rule 2119 violation

here does not impede meaningful appellate review. See Lemenestrel v.

Warden, 964 A.2d 902, 910 n. 5 (Pa.Super. 2008).

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Brown alleges that the trial court erred in denying his petition without a

hearing. He claims that if the court had held a hearing, he would have

presented evidence that the Department of Corrections does not have licensed

hospices, as well as the testimony of hospice representatives about the care

they would give to Brown. He further points out that Section 9777 allows

placement in a home for hospice care and that he proposed a new location in

his motion for reconsideration. See Brown’s Br. at 27 (citing 42 Pa.C.S.A. §

9777(g)). Brown also maintains that the court erroneously relied on Folk,

because unlike Folk, he allegedly has met all factors under Section

9777(a)(2).

Section 9777 permits an inmate to petition the court to “temporarily

defer service of the sentence of confinement and temporarily remove the

inmate committed to the custody of the department, or other facility, for

placement in a hospital, long-term care nursing facility or hospice care

location.” 42 Pa.C.S.A. § 9777(a). Relevant here, Section 9777(a)(2) permits

a court to approve an inmate’s request for temporary deferral of confinement

“to receive care from a licensed hospice care provider, proposed by the

petitioner and subject to electronic monitoring by the department,” if the

inmate by clear and convincing proof establishes all the following:

(i) The inmate is terminally ill, not ambulatory and likely to die in the near future.

(ii) The licensed hospice care provider can provide the inmate with more appropriate care.

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(iii) Appropriate medical care and palliative and supportive services will be provided by the licensed hospice care provider at the proposed hospice care location.

(iv) The placement of the inmate in the proposed, licensed hospice care location does not pose an undue risk of escape or danger to the community. In making this determination, the sentencing court shall consider the inmate’s institutional conduct record, whether the inmate was ever convicted of a crime of violence, the length of time that the inmate has been imprisoned and any other factors the sentencing court deems relevant.

(v) The licensed hospice care provider has agreed to notify the department and the sentencing court of any material changes in the health status of the inmate, the nature of the hospice care provided or other information required by the department or the sentencing court.

(vi) Each agency representing the Commonwealth at a proceeding which resulted in an order committing or detaining the inmate, the State or local correctional facility housing the inmate and any registered crime victim have been given notice and an opportunity to be heard on the petition.

Id. at § 9777(a)(2). A hospice care location is “[a] home, independent living

environment or inpatient setting that provides a coordinated program of

palliative and supportive services through a licensed hospice care provider.”

Id. at § 9777(g) (“Hospice care location”). Where the petitioner fails to

satisfy every prong of Section 9777(a), no hearing is required. See Folk, 40

A.3d at 174.

The trial court determined that Brown had failed to satisfy the fourth

factor under Section 9777(a)(2), regarding whether his placement in hospice

may pose an undue risk of escape or danger to the community. It concluded:

Here, [Brown’s] petition proposed placement at home, merely being visited by hospice care providers and not

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placement at a “licensed hospice care location.” Further, and more notably, was the proposed placement specified in the petition of [Brown] living at his home with [Brown’s] wife. The facts of this care involve [Brown] engaging in heinous sex crimes against children. The victim in this case testified that [Brown’s] wife not only covered up for crimes of [Brown] but punished the victim for bringing the crimes to light. Victim testified that [Brown’s] wife, “[P]ulled us by our hair and then she locked us in a room with a dog.” May 18, 2021 Trial Tr., page 33. Further, [Brown’s] wife accused the victim of “lying.” May 18, 2021 Trial Tr., page 33.

This [c]ourt found that [Brown] living at his home, in the same place the crimes were committed, with the same “supervisor” that physically harmed [Brown’s] victims and locked them in a room with an animal, could not on its face satisfy the statutory requirement that the placement keep the community safe from harm; that the proposed placement was not a “licensed hospice care location”; and that therefore [Brown’s] proposed placement with his wife failed to satisfy, on its face, a required prong of the statutory considerations.

1925(a) Op. at 5-6. The court added that a hearing is not absolutely required

for a Section 9777 petition. The court explained that, if the Section 9777

petition fails to state a prima facie case for release, the court may deny the

petition without a hearing. Id. at 6-7 (citing Folk, 40 A.3d at 174).

We conclude that the trial court did not abuse its discretion in denying

Brown’s petition without a hearing. Brown failed to set forth a prima facie case

or show a genuine issue of material fact necessitating a hearing. The relevant

facts are undisputed. Even assuming that a private residence can be a “home,

independent living environment or inpatient setting that provides a

coordinated program of palliative and supportive services through a licensed

hospice care provider,” the trial court concluded that Brown’s release to his

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wife’s home would pose an undue risk of escape or danger to the community.

This conclusion is supported by the record facts relating to the underlying

crimes. See Brown, 2024 WL 5205587, at *1-*2.

Additionally, even considering that Brown proposed a new location in his

motion for reconsideration, Brown did not offer evidence that UPMC would

provide appropriate medical care as well as palliative and supportive services

at that location. The court permissibly exercised its discretion in denying the

petition without a hearing. See Folk, 40 A.3d at 174 (affirming order denying

petition for modification of sentence due to alleged illness where petitioner

failed to satisfy at least three factors under Section 9777(a)(2)); 42 Pa.C.S.A.

§ 9777(a)(2) (“[t]he sentencing court may approve . . . if all of the following

are established by clear and convincing proof”) (emphasis added). On this

record, we cannot find an abuse of discretion.

Order affirmed.

DATE: 6/16/2025

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