J-S17037-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BROOKS LITTLE : : Appellant : No. 2868 EDA 2023
Appeal from the Order Entered August 21, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004775-2019
BEFORE: BOWES, J., KING, J., and BENDER, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 06, 2024
Brooks Little, Appellant, appeals pro se from the trial court’s August 21,
2023 order denying his pro se “Motion for the Production of Documents.” After
careful review, we affirm.
The facts of Appellant’s case are not pertinent to our disposition of his
instant appeal. The procedural history of his case, as gleaned from the
certified record, is as follows. On November 4, 2021, Appellant was found
guilty of first-degree murder and related offenses following a non-jury trial.
That same day, the trial court sentenced Appellant to an aggregate term of
life imprisonment without the possibility of parole. A panel of this Court
affirmed Appellant’s judgment of sentence on February 24, 2023, and our
Supreme Court denied his petition for allowance of appeal on July 28, 2023.
See Commonwealth v. Little, 293 A.3d 639 (Pa. Super. 2023) (unpublished
memorandum), appeal denied, 300 A.3d 1009 (Pa. 2023). J-S17037-24
On August 18, 2023, Appellant filed the pro se “Motion for the Production
of Documents” underlying this appeal. Therein, Appellant explained that he
wished to file a petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546, but claimed that he could not do so “in the correct manner
without the production of documents needed.” Motion, 8/18/23, at 2.
Appellant sought, inter alia, a “copy of the gunshot residue analysis prepared
by RJ Lee Group” and “all documents that pertain to what former Philadelphia
Homicide detective George Fetters was convicted of or being accused of
[regarding] criminal or [other] misconduct….” Id. at 4. On August 21, 2023,
the court issued an order dismissing Appellant’s motion.
On October 3, 2023, Appellant filed a pro se notice of appeal from the
court’s August 21, 2023 dismissal order. The trial court did not direct
Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal, but it did file a Rule 1925(a) opinion. Therein, the court
concludes that Appellant’s notice of appeal is untimely and invalid, as it was
not filed within 30 days of the filing of the August 21, 2023 order. See Trial
Court Opinion, 11/13/23, at 1 (single page) (citing Pa.R.A.P. 902(b)(2) (“The
failure to file a notice of appeal within the time allowed by Pa.R.A.P. 903 (time
for appeal) renders an appeal invalid.”); Pa.R.A.P. 903(a) (“Except as
otherwise prescribed by this rule, the notice of appeal required by Rule 902
(manner of taking appeal) shall be filed within 30 days after the entry of the
order from which the appeal is taken.”)). Because “[j]urisdiction is vested in
the Superior Court upon the filing of a timely notice of appeal[,]”
-2- J-S17037-24
Commonwealth v. Powell, 290 A.3d 751, 757 (Pa. Super. 2023), we must
first consider whether the trial court is correct that Appellant’s appeal is
untimely.
Our examination of the record shows that there are no entries on the
trial court’s docket indicating that Appellant was served with the August 21,
2023 dismissal order. See Pa.R.Crim.P. 114(C)(2)(c) (stating that the docket
entries “shall contain” the “date of service of the order”). In Commonwealth
v. Midgley, 289 A.3d 1111 (Pa. Super. 2023), this Court addressed the trial
court’s failure to comply with Rule 114(C)(2)(c), concluding that, “Where the
trial court docket in a criminal case does not indicate service on a party or the
date of service, we will not quash the appeal or require further proceedings.
Rather, we will treat the time in which to take an appeal as never having
started to run and treat the appeal as timely.” Id. at 1117. Accordingly, we
consider Appellant’s instant appeal as being timely filed.
Herein, Appellant reiterates the claims set forth in his “Motion for the
Production of Documents,” claiming that he intends to file a PCRA petition and
that he requires certain discovery to do so. See Appellant’s Brief at 2. He
also claims, for the first time on appeal, that his trial counsel failed to
investigate items within the “initial discovery when the case was first
provided,” and that some evidence has been “erased” in this case. Id.
No relief is due. Initially, we recognize that this Court has treated post-
conviction motions for discovery, which were filed when nothing else was
pending in the trial court, as petitions under the PCRA. See Commonwealth
-3- J-S17037-24
v. Henderson, 260 A.3d 104 (Pa. Super. filed July 1, 2021) (unpublished
memorandum) (considering the appellant’s motion to compel documents from
county’s department of court records as an untimely PCRA petition);
Commonwealth v. Palmer, 236 A.3d 1113 (Pa. Super. 2020) (unpublished
memorandum) (treating Palmer’s pro se motion to compel discovery as his
first PCRA petition and remanding for the appointment of counsel).1 Both the
Palmer and Henderson panels relied on Commonwealth v. Fowler, 930
A.2d 586 (Pa. Super. 2007), where we declared that “[i]t is … well-settled that
the PCRA provides the sole means for obtaining collateral review, and that any
petition filed after the judgment of sentence becomes final will be
treated as a PCRA petition.” Id. at 591 (citations and internal quotation marks
omitted; emphasis added).
Here, Appellant’s judgment of sentence was not final when he filed his
motion to compel discovery. As stated supra, our Supreme Court denied his
petition for allowance of appeal on July 28, 2023. When the Pennsylvania
Supreme Court denies allowance of appeal, an appellant has 90 days to file a
Petition for Writ of Certiorari to the U.S. Supreme Court. See U.S.Sup.Ct.R.
13. If the appellant does not file such a petition, his or her judgment of
sentence becomes final at the expiration of the 90-day appeal period. See 42
Pa.C.S. § 9545(b)(3); Commonwealth v. King, 999 A.2d 598, 599 n.1 (Pa. ____________________________________________
1 Pursuant to Pennsylvania Rule of Appellate Procedure 126, unpublished, non-
precedential memorandum decisions of the Superior Court filed after May 1, 2019, may be cited for their persuasive value. Pa.R.A.P. 126(b).
-4- J-S17037-24
Super. 2010) (noting that a judgment of sentence becomes final 90 days after
Pennsylvania Supreme Court denies allocatur). Accordingly, Appellant’s
judgment of sentence did not become final until October 28, 2023. Because
his August 18, 2023 motion to compel discovery was filed before that date,
we discern no error in the trial court’s not treating it as a PCRA petition
requiring the appointment of counsel.
We also discern no error in the trial court’s denying Appellant’s request
for discovery. First, regarding Appellant’s claims that his trial counsel failed
to properly investigate the initial discovery provided in this case, and that
certain evidence has been “erased[,]” Appellant’s Brief at 2, we conclude that
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J-S17037-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BROOKS LITTLE : : Appellant : No. 2868 EDA 2023
Appeal from the Order Entered August 21, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004775-2019
BEFORE: BOWES, J., KING, J., and BENDER, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 06, 2024
Brooks Little, Appellant, appeals pro se from the trial court’s August 21,
2023 order denying his pro se “Motion for the Production of Documents.” After
careful review, we affirm.
The facts of Appellant’s case are not pertinent to our disposition of his
instant appeal. The procedural history of his case, as gleaned from the
certified record, is as follows. On November 4, 2021, Appellant was found
guilty of first-degree murder and related offenses following a non-jury trial.
That same day, the trial court sentenced Appellant to an aggregate term of
life imprisonment without the possibility of parole. A panel of this Court
affirmed Appellant’s judgment of sentence on February 24, 2023, and our
Supreme Court denied his petition for allowance of appeal on July 28, 2023.
See Commonwealth v. Little, 293 A.3d 639 (Pa. Super. 2023) (unpublished
memorandum), appeal denied, 300 A.3d 1009 (Pa. 2023). J-S17037-24
On August 18, 2023, Appellant filed the pro se “Motion for the Production
of Documents” underlying this appeal. Therein, Appellant explained that he
wished to file a petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546, but claimed that he could not do so “in the correct manner
without the production of documents needed.” Motion, 8/18/23, at 2.
Appellant sought, inter alia, a “copy of the gunshot residue analysis prepared
by RJ Lee Group” and “all documents that pertain to what former Philadelphia
Homicide detective George Fetters was convicted of or being accused of
[regarding] criminal or [other] misconduct….” Id. at 4. On August 21, 2023,
the court issued an order dismissing Appellant’s motion.
On October 3, 2023, Appellant filed a pro se notice of appeal from the
court’s August 21, 2023 dismissal order. The trial court did not direct
Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal, but it did file a Rule 1925(a) opinion. Therein, the court
concludes that Appellant’s notice of appeal is untimely and invalid, as it was
not filed within 30 days of the filing of the August 21, 2023 order. See Trial
Court Opinion, 11/13/23, at 1 (single page) (citing Pa.R.A.P. 902(b)(2) (“The
failure to file a notice of appeal within the time allowed by Pa.R.A.P. 903 (time
for appeal) renders an appeal invalid.”); Pa.R.A.P. 903(a) (“Except as
otherwise prescribed by this rule, the notice of appeal required by Rule 902
(manner of taking appeal) shall be filed within 30 days after the entry of the
order from which the appeal is taken.”)). Because “[j]urisdiction is vested in
the Superior Court upon the filing of a timely notice of appeal[,]”
-2- J-S17037-24
Commonwealth v. Powell, 290 A.3d 751, 757 (Pa. Super. 2023), we must
first consider whether the trial court is correct that Appellant’s appeal is
untimely.
Our examination of the record shows that there are no entries on the
trial court’s docket indicating that Appellant was served with the August 21,
2023 dismissal order. See Pa.R.Crim.P. 114(C)(2)(c) (stating that the docket
entries “shall contain” the “date of service of the order”). In Commonwealth
v. Midgley, 289 A.3d 1111 (Pa. Super. 2023), this Court addressed the trial
court’s failure to comply with Rule 114(C)(2)(c), concluding that, “Where the
trial court docket in a criminal case does not indicate service on a party or the
date of service, we will not quash the appeal or require further proceedings.
Rather, we will treat the time in which to take an appeal as never having
started to run and treat the appeal as timely.” Id. at 1117. Accordingly, we
consider Appellant’s instant appeal as being timely filed.
Herein, Appellant reiterates the claims set forth in his “Motion for the
Production of Documents,” claiming that he intends to file a PCRA petition and
that he requires certain discovery to do so. See Appellant’s Brief at 2. He
also claims, for the first time on appeal, that his trial counsel failed to
investigate items within the “initial discovery when the case was first
provided,” and that some evidence has been “erased” in this case. Id.
No relief is due. Initially, we recognize that this Court has treated post-
conviction motions for discovery, which were filed when nothing else was
pending in the trial court, as petitions under the PCRA. See Commonwealth
-3- J-S17037-24
v. Henderson, 260 A.3d 104 (Pa. Super. filed July 1, 2021) (unpublished
memorandum) (considering the appellant’s motion to compel documents from
county’s department of court records as an untimely PCRA petition);
Commonwealth v. Palmer, 236 A.3d 1113 (Pa. Super. 2020) (unpublished
memorandum) (treating Palmer’s pro se motion to compel discovery as his
first PCRA petition and remanding for the appointment of counsel).1 Both the
Palmer and Henderson panels relied on Commonwealth v. Fowler, 930
A.2d 586 (Pa. Super. 2007), where we declared that “[i]t is … well-settled that
the PCRA provides the sole means for obtaining collateral review, and that any
petition filed after the judgment of sentence becomes final will be
treated as a PCRA petition.” Id. at 591 (citations and internal quotation marks
omitted; emphasis added).
Here, Appellant’s judgment of sentence was not final when he filed his
motion to compel discovery. As stated supra, our Supreme Court denied his
petition for allowance of appeal on July 28, 2023. When the Pennsylvania
Supreme Court denies allowance of appeal, an appellant has 90 days to file a
Petition for Writ of Certiorari to the U.S. Supreme Court. See U.S.Sup.Ct.R.
13. If the appellant does not file such a petition, his or her judgment of
sentence becomes final at the expiration of the 90-day appeal period. See 42
Pa.C.S. § 9545(b)(3); Commonwealth v. King, 999 A.2d 598, 599 n.1 (Pa. ____________________________________________
1 Pursuant to Pennsylvania Rule of Appellate Procedure 126, unpublished, non-
precedential memorandum decisions of the Superior Court filed after May 1, 2019, may be cited for their persuasive value. Pa.R.A.P. 126(b).
-4- J-S17037-24
Super. 2010) (noting that a judgment of sentence becomes final 90 days after
Pennsylvania Supreme Court denies allocatur). Accordingly, Appellant’s
judgment of sentence did not become final until October 28, 2023. Because
his August 18, 2023 motion to compel discovery was filed before that date,
we discern no error in the trial court’s not treating it as a PCRA petition
requiring the appointment of counsel.
We also discern no error in the trial court’s denying Appellant’s request
for discovery. First, regarding Appellant’s claims that his trial counsel failed
to properly investigate the initial discovery provided in this case, and that
certain evidence has been “erased[,]” Appellant’s Brief at 2, we conclude that
these arguments are waived because Appellant is raising them for the first
time on appeal. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court
are waived and cannot be raised for the first time on appeal.”).
Second, we agree with the Commonwealth that “when [Appellant] made
the instant discovery motion, he had not filed a PCRA petition; therefore, there
existed no proceedings under which [he] could have compelled discovery.”
Commonwealth’s Brief at 6 (footnote omitted). Alternatively, we also agree
with the trial court that, even if Appellant’s motion could be construed as being
related to a forthcoming PCRA petition, he has still failed to demonstrate that
discovery is warranted. As the trial court aptly explained in its order denying
Appellant’s motion to compel discovery:
Under [Pa.R.Crim.P.] 902(E)(1), which applies to all requests for discovery related to PCRA petitions with a limited exception, a defendant must show exceptional circumstances to be entitled to
-5- J-S17037-24
discovery. Pa.R.Crim.P. 902[(E)(1)]. “Mere speculation” as to the existence of exculpatory evidence is insufficient to show the existence of exceptional circumstances. See Commonwealth v. Reid, 99 A.3d 427[, 468] (Pa. 2014); see also Commonwealth v. Carson, 913 A.2d 220, 261 [(Pa. 2006)] (“[S]peculation that requested documents will uncover exculpatory evidence does not satisfy the requirements of Rule 902[.]”). [Appellant] has failed to aver any facts or provide any evidence in support of his request for documents [that] establishes that exceptional circumstances exist in this case.
Order, 8/21/23, at 1 (single page). We discern no error in the court’s decision
to deny Appellant’s motion to compel discovery for the reasons stated by the
court, especially where Appellant has not yet filed any PCRA petition.
Order affirmed.
Date: 6/6/2024
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