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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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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unpublished memorandum at 14.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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