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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
KIRK A. BROWN,
Appellant No. 2184 EDA 2017
Appeal from the PCRA Order Entered June 21, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0712711-2006
BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 11, 2018
Appellant, Kirk A. Brown, appeals pro se from the June 21, 2017 order
denying, as untimely, his second petition filed under the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we are
constrained to affirm.
This Court previously summarized the facts of this case on direct
appeal, as follows:
On July 7, 2005, around 5:00 p.m., Donovan Lindsay
returned to his home in North Philadelphia and discovered
someone had entered his home and removed some clothing and
personal effects belonging to [Appellant]. Around 5:45 p.m.,
Lindsay drove to a West Philadelphia neighborhood and parked
and left his car in the middle of the street, engine still running.
He walked over to a fence separating the sidewalk and the rear
yard of a residence at 216 S. 49th Street where [Appellant] and
several others were sitting. For several moments, and just a few
feet apart, [Appellant] and Lindsay argued over the fence. When
[Appellant] pulled a semiautomatic handgun from his belt,
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Lindsay, who was unarmed, turned and ran off past his car[,] and
across and down the street. [Appellant] fired off five rounds while
moving onto the sidewalk, hitting Lindsay in the back with two
rounds that pierced his heart, liver, lung and kidney and caused
his death at the scene.
Commonwealth v. Brown, No. 534 EDA 2008, unpublished memorandum
at 3-4 (Pa. Super. filed April 3, 2009) (citations to the record and footnotes
omitted).
After the shooting, Appellant was arrested and charged with various
offenses, including murder. He proceeded to a non-jury trial in December of
2007, at the close of which he was convicted of first-degree murder,
possessing an instrument of crime, and carrying a firearm without a license.
On February 7, 2008, Appellant was sentenced to an aggregate term of life
incarceration, without the possibility of parole. This Court affirmed his
judgment of sentence on direct appeal. See Brown, supra. Our Supreme
Court denied Appellant’s subsequent petition for allowance of appeal on
September 9, 2009. See Commonwealth v. Brown, 980 A.2d 604 (Pa.
2009).
On February 1, 2010, [Appellant] filed his first pro se PCRA
petition. Counsel was appointed who subsequently filed multiple
amended petitions. The PCRA court denied relief on October 21,
2011. On December 18, 2012, the Superior Court affirmed the
PCRA court’s denial of post-conviction relief.4 On July 25, 2013,
our Supreme Court denied [Appellant’s] request for allowance of
appeal.5
4Commonwealth v. Brown, 64 A.3d 25 (Pa. Super. 2012)
(unpublished memorandum).
5 Commonwealth v. Brown, 70 A.3d 808 (Pa. 2013).
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On July 6, 2015, [Appellant] filed the instant pro se PCRA
petition, his second. Pursuant to [Pa.R.Crim.P.] 907, [Appellant]
was served notice of the PCRA court’s intention to dismiss his
petition on March 22, 2017. [Appellant] submitted a response to
the Rule 907 notice on April 7, 2017. On June 21, 2017, the PCRA
court dismissed his PCRA petition as untimely. On June 29, 2017,
the instant notice of appeal was timely filed to the Superior Court.
PCRA Court Opinion (PCO), 8/17/17, at 1-2.
Appellant filed a Pa.R.A.P. 1925(b) statement on August 28, 2017,
despite not being ordered to do so by the PCRA court, which had already filed
an opinion addressing the issues presented in Appellant’s petition. On appeal,
Appellant raises three claims for our review:
1. The PCRA court abused its discussion [sic] by ruling that
[Appellant’s] PCRA petition was untimely. This ruling is legal
error and not supported by the record.
2. [The] PCRA court erred by dismissing the petition without a
hearing on the merits.
3. [The] PCRA court erred by denying [Appellant’s] motion to
amend as it was defective pursuant to Pa.R.Crim.P. 902[.]
Appellant’s Brief at iii (unnecessary capitalization omitted).
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the
timeliness of Appellant’s petition, because the PCRA time limitations implicate
our jurisdiction and may not be altered or disregarded in order to address the
merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.
2007). Under the PCRA, any petition for post-conviction relief, including a
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second or subsequent one, must be filed within one year of the date the
judgment of sentence becomes final, unless one of the following exceptions
set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition alleges
and the petitioner proves that:
(i) the failure to raise the claim previously was the
result of interference by government officials with the
presentation of the claim in violation of the
Constitution or laws of this Commonwealth or the
Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were
unknown to the petitioner and could not have been
ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States
or the Supreme Court of Pennsylvania after the time
period provided in this section and has been held by
that court to apply retroactively.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Appellant’s judgment of sentence became final on December 8,
2009, at the conclusion of the 90-day time-period for seeking review by the
United States Supreme Court. See 42 Pa.C.S. § 9545(b)(3) (stating that a
judgment of sentence becomes final at the conclusion of direct review or the
expiration of the time for seeking the review); Commonwealth v. Owens,
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718 A.2d 330, 331 (Pa. Super. 1998) (directing that under the PCRA,
petitioner’s judgment of sentence becomes final ninety days after our
Supreme Court rejects his or her petition for allowance of appeal since
petitioner had ninety additional days to seek review with the United States
Supreme Court). Thus, Appellant’s present petition filed on July 6, 2015, is
patently untimely, and for this Court to have jurisdiction to review the merits
thereof, Appellant must prove that he meets one of the exceptions to the
timeliness requirements set forth in 42 Pa.C.S. § 9545(b).
Appellant argues that he meets the after-discovered evidence exception
of section 9545(b)(1)(ii) based on an affidavit from Rick Hughes, a man who
claims that he was present at the scene of the shooting and would testify that
Appellant was not the shooter. More specifically, in the affidavit, Hughes
states:
On July 7th, 2005, which I think was Thursday, I was walking down
the 4900 block of Chancellor Street in Philadelphia, Pennsylvania.
I passed [Appellant] and an unknown woman at the top of the
block. Then a guy that was driving a green Chrysler kept blowing
his horn and driving in a reckless manner. This guy stopped his
green Chrysler in the middle of the street. He was acting crazy.
He exited out of his car, leaving his car right there in the middle
of the street. He walked to the fenced area and started yelling,
very loud[ly], at the other guy in the fenced area. These two guys
were almost face to face at the fence, yelling at each other, and I
was watching all of this, when the guy inside the fence who had
dreads, pulled out a gun and started shooting at the male who
was outside the fence and whose green Chrysler was parked in
the middle of the street. I heard four maybe five or six shots.
The shooter then walked into the first floor apartment. I ran from
the scene. I saw the shooting, and I saw the man with the dreads
shoot the guy who got out of the green Chrysler. The shooter was
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not Kirk Brown. That I am certain of. I am willing to be
interviewed or to testify in regard to this.
See Appellant’s PCRA Petition, 7/6/15, at “Exhibit A.”
Hughes’s affidavit is dated June 1, 2015, and Appellant filed his PCRA
petition on July 6, 2015, thus meeting the 60-day requirement of section
9545(b)(2). The PCRA court, however, concluded that Appellant could not
rely on Hughes’s affidavit to meet the timeliness exception of section
9545(b)(1)(ii), as Appellant “failed … to demonstrate that Hughes or a
comparable witness was previously undiscoverable with the exercise of due
diligence.” PCO at 3. The court explained:
In his affidavit, Hughes stated that prior to the shooting, he
walked right by [Appellant] and an unknown woman on the 4900
block of Chancellor Street where the shooting occurred. Thus,
according to Hughes, there were at least two potentially favorable
witnesses in close proximity to [Appellant]. [Appellant’s]
purported unfamiliarity with Hughes did not relieve him of his
burden to diligently search for witnesses or explain why such
efforts would have been unsuccessful.7 [Appellant’s] vague
assertion that he has been diligently trying to prove his innocence
did not meaningfully address his specific burden to attempt to
ascertain the identity of Hughes or similar witnesses. Given this
glaring deficiency, [Appellant] failed to properly plead and prove
subsection 9545(b)(1)(ii).
7 For example, in [Commonwealth v.] Davis, [86 A.3d 883
(Pa. Super. 2014),] the Superior Court found that the
petitioner demonstrated due diligence in part by proffering
affidavits from several friends and family members who
claimed that they attempted, albeit unsuccessfully, to locate
a witness.
Id. at 3-4.
We disagree with the PCRA court’s conclusion that Appellant failed to
plead and prove due diligence. Appellant asserted in his petition, and
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reiterates on appeal, that he did not know Hughes until they met in prison,
and he had no way of knowing that Hughes had information concerning the
shooting.1 See PCRA Petition, 7/6/15, at 1. Moreover, while Hughes stated
in his affidavit that he saw Appellant and the ‘unidentified woman,’ Hughes
did not assert that Appellant saw him or the woman, so as to establish that
Appellant was even aware that these two witnesses were at the scene. Thus,
as Appellant stresses, the fact that Hughes claims to have seen Appellant does
not mean that “Appellant even saw, or recognize[d]” Hughes at the scene of
the shooting. Appellant’s Brief at 6.
Additionally, we deem the PCRA court’s reliance on Davis misplaced.
There, we held that Davis exercised due diligence in obtaining a recantation
affidavit from a witness, who had testified at Davis’s trial, because Davis
had attached to his PCRA petition “affidavits from several friends and family
members who claimed that they attempted to locate [the witness] after
[Davis’s] trial in order to convince [the witness] to admit that he lied on the
stand.” Davis, 86 A.3d at 891. Here, unlike in Davis, Appellant asserted in
his petition that he did not know Hughes, or have any reason to believe that
Hughes had information about the shooting, until the two men met while
incarcerated. Thus, we disagree with the PCRA court that Appellant was
____________________________________________
1 We recognize that Hughes stated in his affidavit that he knew Appellant “prior
to coming to prison.” See PCRA Petition at “Exhibit A.” However, Hughes did
not claim that he knew Appellant at the time of the shooting and, even if he
did, that does not necessarily demonstrate that Appellant knew Hughes.
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required to present affidavits from friends and family stating that they
searched for Hughes and the unidentified woman.2
In light of these circumstances, we conclude that the PCRA court erred
by finding that Appellant did not act with due diligence in discovering Hughes’s
affidavit. Because Appellant has also demonstrated that the information
contained in Hughes’s affidavit was not previously known by him, and that he
filed his petition within 60 days of obtaining that information, Appellant has
satisfied the timeliness exception of section 9545(b)(1)(ii).
Nevertheless, we are compelled to affirm the PCRA court’s order denying
Appellant’s petition. At the conclusion of the court’s Rule 1925(a) opinion, it
explained that, even if Appellant had met a timeliness exception, he would not
be entitled to post-conviction relief. See PCO at 4 n.8. The court reasoned
that,
[t]he Commonwealth presented numerous witnesses including
two eye-witnesses who identified [Appellant] as the shooter. The
Commonwealth also introduced corroborating medical evidence.
The Superior Court characterized the Commonwealth’s evidence
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2 Moreover, we strongly reject the Commonwealth’s argument that Hughes’s
affidavit constitutes a new source of a previously known fact, because
Appellant always claimed that he was not the shooter. If we accepted the
Commonwealth’s position, it would mean that any defendant who claimed
innocence at trial could never meet a PCRA timeliness exception with new
evidence that could prove his/her innocence, as such evidence would always
be deemed a new source of the previously known fact of his/her innocence.
Additionally, the ‘new fact’ asserted by Appellant is not simply that he is
innocent; it is that he has discovered a specific witness to the murder who
could testify that he was not the shooter. Because Appellant did not previously
know about Hughes or the information he possessed, Hughes’s affidavit is not
a new source of a previously known fact.
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as overwhelming. … Brown, [No. 534 EDA 2008,] unpublished
memorandum at 8. [Appellant] therefore failed to demonstrate
that the outcome of the trial would have changed based upon
Hughes’[s] purported observations. See 42 Pa.[C.S.] §
9543(a)(2)(vi) [(“To be eligible for relief under this subchapter,
the petitioner must plead and prove by a preponderance of the
evidence … [t]hat the conviction or sentence resulted from … [t]he
unavailability at the time of trial of exculpatory evidence that has
subsequently become available and would have changed the
outcome of the trial if it had been introduced.”)].
Id.
We recognize that the merit of an underlying after-discovered evidence
claim is not at issue when determining whether a PCRA petition is timely. See
Commonwealth v. Frey, 41 A.3d 605, 611 (Pa. Super. 2012). However, it
would be a waste of judicial resources to remand Appellant’s case for an
evidentiary hearing where it is clear that the PCRA court has determined that
Hughes’s proposed testimony would not have changed the outcome of
Appellant’s trial, and the record supports that determination. Notably, this
Court previously explained that at trial,
[t]he Commonwealth produced two witnesses, Phillip
Williams (a/k/a “King Moses,” “Moses” and Kevin Warrington) and
Sandra Claton, who testified they saw [Appellant] shoot at
Lindsay. Williams, a friend of both [Appellant] and Lindsay, was
one of the persons with [Appellant] in the back yard and witnessed
the entire shooting. He saw [Appellant] walk over to the fence by
the sidewalk where Lindsay stood, pull his semiautomatic pistol,
and, as Lindsay fled across and down the street, [Appellant]
walked out to the sidewalk and continued firing. When Lindsay
fell to the ground at the nearby street intersection, [Appellant]
placed his handgun back in his waistband and left the area.
Claton lived across the street with a good view of the back
yard and Lindsay’s arrival. She saw Lindsay leave his car in the
middle of the street and walk over to the fence. She watched
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[Appellant] pull out his handgun and fire one time at Lindsay. She
then retreated inside her house and called 9-1-1.
Brown, No. 534 EDA 2008, unpublished memorandum at 5-6 (citations to the
record omitted).
Given the eyewitness identifications by Williams and Claton, we
ascertain no abuse of discretion in the PCRA court’s conclusion that Hughes’s
testimony would not likely result in a different verdict if a new trial were
granted. Accordingly, we are compelled to affirm the order of the PCRA court
dismissing Appellant’s petition.
Order affirmed.
Judge Lazarus joins this memorandum.
Judge Kunselman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/18
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Com. v. Brown, K.
Combined Opinion