Com. v. Brown, M.

• Court: Superior Court of Pennsylvania
• Decided: February 24, 2023
• Docket: 1427 EDA 2022
• Status: Unpublished

Opinion

J-S04039-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARTIN B. BROWN : : Appellant : No. 1427 EDA 2022

Appeal from the PCRA Order Entered April 29, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003080-2011

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARTIN B. BROWN : : Appellant : No. 1428 EDA 2022

Appeal from the PCRA Order Entered April 29, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004214-2013

BEFORE: MURRAY, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED FEBRUARY 24, 2023

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* Retired Senior Judge assigned to the Superior Court. J-S04039-23

Martin B. Brown (Brown) appeals1 from the April 29, 2022 order of the

Court of Common Pleas of Philadelphia County (PCRA court) dismissing

without a hearing his second petition filed pursuant to the Post-Conviction

Relief Act (PCRA).2 We affirm.

We set forth the facts of Brown’s offenses in detail in his direct appeal.

See Commonwealth v. Brown, 57 EDA 2015 & 686 EDA 2015, at *2-4 (Pa.

Super. Feb. 19, 2016) (unpublished memorandum). Briefly, in January 2011,

Brown attended a cabaret with several friends, including the victim, Clyde

Raynor (Raynor). Brown and Raynor began arguing while Brown was driving

the group home after the show. Brown pulled the car over to the side of the

road and he and Raynor continued their argument outside. The interaction

became physical and Brown retrieved a firearm from the trunk of the car and

shot Raynor once in the chest before fleeing the scene. Raynor was paralyzed

from the waist down and spent the remainder of his life in the hospital and

various care facilities before he ultimately died as a result of the gunshot

wound in May 2012.

1Brown filed identical notices of appeal at each docket number in compliance with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). See Commonwealth v. Johnson, 236 A.3d 1141, 1148, (Pa. Super. 2020) (en banc) (approving the filing of separate but identical notices of appeal as compliant with the dictates of Walker, supra).

2 42 Pa.C.S. §§ 9541 et seq.

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Brown proceeded to a consolidated jury trial at the two above-captioned

dockets. In Case 4214-2013, he was convicted of one count of third-degree

murder.3 In Case 3080-2011, he was convicted of possession of a firearm by

a prohibited person, carrying a firearm without a license, carrying a firearm

on a public street in Philadelphia, and possessing an instrument of crime. 4

The trial court sentenced him to an aggregate term of 30 years to 60 years in

prison. He timely appealed and this Court affirmed the judgement of

sentence. Id. at *21. Brown filed a timely first PCRA petition, which the PCRA

court denied without a hearing, and this Court affirmed on the basis of waiver.

Commonwealth v. Brown, 2794 EDA 2019 & 2795 EDA 2019, at *6 (Pa.

Super. Sept. 11, 2020) (unpublished memorandum).

Brown filed the instant petition on August 10, 2021 arguing, inter alia,

that the financial settlement the victim’s family reached with his care providers

after his death was after-discovered evidence that would have proven that the

gunshot wound was not the victim’s true cause of death. The PCRA court

concluded that the petition was untimely and that he had not pled a valid

exception pursuant to 42 Pa.C.S. § 9545(b). Accordingly, it dismissed the

3 18 Pa.C.S. § 2502(c).

4 18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), 6108 & 907(a).

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petition without an evidentiary hearing. Brown timely appealed and he and

the PCRA court have complied with Pa. R.A.P. 1925.5

While Brown’s argument is convoluted and difficult to discern, we

identify the following claims of error: (1) whether the settlement the victim’s

family received in a negligence action following Raynor’s death was after-

discovered evidence that would have raised reasonable doubt as to whether

Brown’s conduct caused Raynor’s death; (2) whether the Commonwealth

violated Brady v. Maryland, 373 U.S. 83 (1963), in offering perjured

testimony at trial; (3) whether prior PCRA counsel was ineffective; and (4)

whether the Commonwealth violated Brady, supra, by failing to disclose any

statements about the shooting made by Raynor before his death.

Brown has pled a single exception to the jurisdictional time-bar: he

contends that his petition is timely based on the newly-discovered fact that

the victim’s family obtained a settlement in a negligence, wrongful death and

5 Whether a PCRA petition is timely filed is a question of law over which our standard of review is de novo and our scope of review is plenary. Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citations omitted). “The standard of review of an order dismissing a PCRA petition is whether that determination is supported by the evidence of record and is free of legal error.” Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super. 2017). “[A] PCRA court has discretion to dismiss a PCRA petition without a hearing if the court is satisfied that there are no genuine issues concerning any material fact; that the defendant is not entitled to post-conviction collateral relief; and that no legitimate purpose would be served by further proceedings.” Commonwealth v. Brown, 161 A.3d 960, 964 (Pa. Super. 2017) (citations omitted).

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survival action against Raynor’s care providers. He pled that he learned of

this settlement when a family member saw a television commercial featuring

the victim’s sister. In the ad, Raynor’s sister stated, “it’s not going to bring

my brother back, but they got us a nice settlement.” See Brown’s Brief at 8.

He argues that the actual cause of Raynor’s death was medical malpractice

that led to complications in his treatment and contends that he filed the instant

petition within one year of learning about the commercial.

“A PCRA petition, including a second and subsequent petition, shall be

filed within one year of the date the underlying judgment becomes final.”

Commonwealth v. Graves, 197 A.3d 1182, 1185 (Pa. Super. 2018) (citation

omitted); see also 42 Pa.C.S. 9545(b)(1). “[A] judgment becomes final at

the conclusion of direct review, including discretionary review in the Supreme

Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3). Because

the timeliness requirements of the PCRA are jurisdictional, no court may

consider the merits of an untimely petition. Commonwealth v. Small, 238

A.3d 1267, 1280 (Pa. 2020).

Brown’s sentence became final in 2016 when this Court affirmed the

judgment of sentence on direct appeal and he declined to seek further review.

42 Pa.C.S. § 9545(b)(3). Because he did not file the instant petition until

2021, his petition is facially untimely and he must plead and prove one of the

exceptions to the PCRA’s timeliness requirements: that he was prevented

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from raising the claim earlier by government interference; that the claim is

based on newly-discovered facts that could not have been ascertained earlier;

or that the claim is predicated on a newly-recognized constitutional right. 42

Pa.C.S. § 9545(b)(1)(i)-(iii). In addition, the petitioner invoking a time-bar

exception must file the petition raising the claimed exception within one year

of the date the claim could have been presented. 42 Pa.C.S. § 9545(b)(2).

On appeal, Brown asserts that his petition is timely under the exception

for newly-discovered facts. 42 Pa.C.S. § 9545(b)(1)(ii). The newly-

discovered facts exception “does not require any merits analysis of the

underlying claim.” Commonwealth v. Cox, 146 A.3d 221, 227 (Pa. 2016)

(internal quotations and citation omitted). To establish timeliness pursuant

to the newly-discovered facts exception, “the petitioner must establish only

that (1) the facts upon which the claim was predicated were unknown, and

(2) they could not have been ascertained by the exercise of due diligence.”

Id.

The PCRA court determined that Brown had not adequately pled the

newly-discovered facts exception because his petition did not reveal when he

learned about the settlement. As a result, he did not establish that he had

filed the petition within one year of the time the claim could have been

presented. See 42 Pa.C.S. § 9545(b)(2). Our review of the record reveals

that Brown filed his first PCRA petition in 2016, it was dismissed on August

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23, 2019, and this Court affirmed the dismissal on September 11, 2020.6 A

PCRA court lacks jurisdiction to consider a subsequent petition if a previously-

filed petition is pending on appeal. Commonwealth v. Beatty, 207 A.3d

957, 961 (Pa. Super. 2019). “Where a prior petition is pending on appeal, a

subsequent petition must be filed within the time limits set forth in Section

9545(b)(2) as measured from the date of the order that finally resolves the

appeal in the prior petition, because that date is the first date the claim could

be presented.” Id. at 963. However, PCRA courts do not lack jurisdiction to

consider multiple petitions at the same time when no petition is pending on

appeal. Commonwealth v. Montgomery, 181 A.3d 359, 364-65 (Pa. Super.

2018) (en banc).

Here, Brown filed his second petition alleging newly-discovered facts

within one year of when we affirmed the dismissal of his first PCRA petition.

Thus, the timeliness hinges on whether he learned of the civil suit and

settlement before filing his prior PCRA notice of appeal in September 2019,

Montgomery, supra, or after it was already pending on appeal, Beatty,

supra. As the petitioner, Brown bears the burden of establishing that he

brought his claim in a timely manner and was required to include in his

pleading the date, or approximate date, when he learned this new information.

6The documentation Brown attached to his petition reveals that the civil suit was filed in 2013 and the settlement was reached in 2015.

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Because he did not include the relevant dates in his petition, he has failed to

meet his burden and his petition is untimely.7

Nevertheless, we agree with the PCRA court that this claim is

substantively meritless. See PCRA Court Opinion, 7/21/22, at 8 n.3. Brown

contends that the victim’s death was caused by medical negligence in the care

he received after he sustained his gunshot wound. We have previously set

forth a two-part test for determining causation:

First, the defendant’s conduct must be an antecedent, but for which the result in question would not have occurred. A victim’s death cannot be entirely attributable to other factors; rather, there must exist a “causal connection between the conduct and the result of conduct; and causal connection requires something more than mere coincidence as to time and place.” Second, the results of the defendant’s actions cannot be so extraordinarily remote or attenuated that it would be unfair to hold the defendant criminally responsible.

As to the first part of the test, the defendant’s conduct need not be the only cause of the victim’s death in order to establish a causal connection. “Criminal responsibility may be properly assessed against an individual whose conduct was a direct and ____________________________________________

7 The Commonwealth argued in the PCRA court that Brown’s petition was untimely but, on appeal, contends that he met the requirements of the newly- discovered facts exception because he asserts in his brief that he learned about the settlement on or about March 1, 2021. See Commonwealth’s Brief at 9 (citing Brown’s Brief at 12). However, Brown did not plead this date in his initial petition. Moreover, the petition belies this claim, as a letter he attached to his petition from prior PCRA counsel dated March 1, 2021, references the civil settlement information. See PCRA Petition, 8/10/21, Exhibit 1 (“I also want you to understand that the information that you’ve forwarded to us concerning the civil matter certainly is of the utmost importance.”). Thus, it is clear that Brown learned about the settlement prior to March 1, 2021, but we are unable to determine a more precise date based on the record before us.

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substantial factor in producing the death even though other factors combined with that conduct to achieve the result.” The second part of the test is satisfied when the victim’s death is the natural or foreseeable consequence of the defendant’s actions.

Commonwealth v. Nunn, 947 A.2d 756, 760 (Pa. Super. 2008) (citations

omitted); see also 18 Pa.C.S. § 303(a)(1).

Here, the victim lived for approximately 16 months after Brown shot

him, spending that time in hospitals and care facilities. Chief Medical

Examiner Dr. Samuel Gulino testified at trial that he had reviewed all of the

victim’s medical records from the day of the shooting through his death. The

gunshot wound had paralyzed the victim from the waist down, which resulted

in numerous hospitalizations to treat infections and other complications

throughout the remainder of his life. Dr. Gulino maintained that the victim’s

cause of death was homicide based on the gunshot wound despite cross-

examination on whether the medical treatment he received after the shooting

was the true cause of death. Based on this testimony, the shooting was the

but-for cause of Raynor’s death, and the resultant complications he

experienced in treatment were “natural or foreseeable consequence[s]” of the

shooting. Nunn, supra. Evidence of a financial settlement with Raynor’s

family would not have resulted in a different conclusion. Accordingly, this

claim is meritless.

Finally, the civil settlement does not bear on any of the remaining issues

Brown presented in his petition and on appeal. In those claims, he argues

that the Commonwealth was aware that a trial witness committed perjury,

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that prior PCRA counsel was ineffective in litigating claims related to trial

counsel’s effectiveness, and that the Commonwealth failed to disclose

exculpatory information regarding eyewitness identifications and the victim’s

statements and interviews. He does not explain how discovering the

settlement led him to uncover these claims or contend that any other

timeliness exception applies. As he has failed to plead any exception to the

jurisdictional time-bar, his petition is untimely and we lack jurisdiction to

consider the merits of his claims.8

Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/24/2023

8 As the PCRA court observed, Brown did not raise these claims in his second petition. PCRA Court Opinion, 7/21/22, at 8-11. Rather, he presented them for the first time in an amended petition and right-to-know request he filed without leave of court after the PCRA court had issued its notice of intent to dismiss the petition without a hearing. Id. at 9-11 (citing Commonwealth v. Baumhammers, 92 A.3d 708, 730 (Pa. 2014); Pa. R.A.P. 302(a)). They are additionally waived on that basis. See Pa. R.A.P. 302(a).

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