J-S29006-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CURTIS BRINSON                             :
                                               :
                       Appellant               :   No. 2507 EDA 2018

           Appeal from the PCRA Order Entered September 18, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0613151-1985


BEFORE:      PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY PANELLA, P.J.:                           FILED AUGUST 12, 2020

        Appellant, Curtis Brinson, appeals from the dismissal of his petition for

collateral relief pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-9546, following his conviction for first-degree murder and

possession of an instrument of crime (“PIC”). We affirm.

        Briefly, the factual history of this case, as set forth by this Court on

direct appeal, is as follows:

        On April 13, 1985, Brinson shot and killed Arthur Johnson in the
        men's room of a Philadelphia nightclub. He was tried and convicted
        by a jury of first-degree murder and PIC in 1986. After this Court
        affirmed his judgment of sentence and our Supreme Court denied
        allocatur, Brinson pursued post-conviction remedies in the state
        and federal courts based [] upon a Batson claim. Ultimately, after
        the Commonwealth withdrew its opposition to the last of several
        pro se habeas corpus petitions, on March 6, 2007, the [District
        Court] entered an order vacating Brinson's conviction and
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S29006-20


      sentence and directing that Brinson be retried within 120 days or
      released.

Commonwealth v. Brinson, 30 A.3d 490, 491 (Pa. Super. 2011). The

Commonwealth did not appeal the District Court’s March 6, 2007 order.

      The procedural history following the issuance of that order was set forth

by the U.S. Court of Appeals for the Third Circuit as follows:

      Between March 6, 2007 and January 3, 2008, a series of
      continuances in setting a trial date were granted by the [Common
      Pleas Court]. The record shows that the continuances were
      granted pursuant to requests by defense counsel Norris Gelman,
      and joint requests by the parties, to allow the [Commonwealth]
      sufficient time to review the file and determine whether a plea to
      a lesser offense should be offered. On January 29, 2008, [the
      Commonwealth] conveyed to Brinson's counsel its determination
      that a plea to murder in the third degree with no further time in
      custody would not be acceptable.

      Mr. Gelman, Brinson's habeas counsel, withdrew from further
      representation. The [Common Pleas Court] appointed [Bernard
      Siegel] to represent Brinson at trial.

      Brinson's trial counsel requested several continuances to prepare
      for trial and because he had to try other cases already set for trial.
      On June 19, 2008, a trial date of June 8, 2009 was set.

      ...

      On July 16, 2008, Brinson filed a pro se application in the [District
      Court] in which he requested that the conditional writ of habeas
      corpus granted on March 6, 2007 be made absolute. The District
      Court conducted an evidentiary hearing on September 18, 2008.
      It received testimony from Mr. Gelman, ... Bernard Siegel, ... and
      John Doyle, the prosecutor assigned to retry the case[.]

      On October 1, 2008, based upon the evidence presented at the
      evidentiary hearing, the District Court issued an order holding that
      the Commonwealth had failed to comply with the conditional writ
      of habeas corpus it issued on March 6, 2007. It held that the
      Commonwealth had “failed to fulfill the condition precedent to re-

                                      -2-
J-S29006-20


      try [Brinson].” Accordingly, the District Court declared Brinson's
      “May 23, 1986 Judgment of Conviction ... null and void, and
      without effect,” and entered an absolute writ of habeas corpus. It
      ordered his immediate release from custody.

Brinson v. Vaughn, No. 08–4082, 2009 WL 2330758, *2 (3d Cir. July 30,

2009).

      The Commonwealth appealed this order, arguing that the District Court

erred by ordering the immediate release of Brinson given that the delays in

setting the matter for retrial had not been chargeable to the Commonwealth.

The Commonwealth also applied for a stay of the order releasing Brinson

pending its appeal, which the Circuit Court granted.

      While that appeal was pending, the Common Pleas Court held a pretrial

hearing regarding Brinson’s retrial. At that hearing, Brinson argued that the

Common Pleas Court did not have jurisdiction to retry him because the District

Court’s October 1, 2008 order had, according to Brinson, barred his retrial and

terminated prosecution unless and until the Third Circuit reversed. The

Common Pleas Court disagreed. Instead, the Court found that the District

Court’s order, and the Commonwealth’s appeal of that order, went solely to

the issue of whether Brinson should remain in custody pending retrial, “and

not to the status of the trial.” N.T., 6/4/2009, at 26. Accordingly, the Common

Pleas Court determined that there was no jurisdictional impediment to

proceeding with Brinson’s retrial.

      On June 16, 2009, after a jury trial, Brinson was found guilty of first-

degree murder and PIC. He was sentenced to a mandatory term of life

                                     -3-
J-S29006-20


imprisonment for the first-degree murder conviction, and to a concurrent term

of one to two years’ imprisonment for the PIC conviction.

       Brinson filed a direct appeal, in which he argued the Common Pleas

Court lacked jurisdiction to retry him while the Commonwealth’s federal

appeal was pending.1 Specifically, Brinson asserted that the stay granted by

the Circuit Court had applied to the entire October 1, 2008 District Court order,

which not only directed Brinson’s release, but also found that Brinson’s 1986

conviction was null and void. As such, Brinson claimed, his subsequent retrial

was void under 28 U.S.C. § 2251, which provides:

       § 2251. Stay of State court proceedings

       (a) In general.--

       (1) Pending matters.--A justice or judge of the United States
       before whom a habeas corpus proceeding is pending, may, before
       final judgment or after final judgment of discharge, or pending
       appeal, stay any proceeding against the person detained in any
       State court or by or under the authority of any State for any
       matter involved in the habeas corpus proceeding.

       ...

       (b) No further proceedings.--After the granting of such a stay, any
       such proceeding in any State court or by or under the authority of
       any State shall be void. If no stay is granted, any such proceeding
       shall be as valid as if no habeas corpus proceedings or appeal were
       pending.


____________________________________________


1 Of note, the Third Circuit issued its ruling on July 30, 2009, reversing the
District Court’s order on the basis that the delay in retrying Brinson was
caused by the defense, not the Commonwealth. See Brinson v. Vaughn, No.
08-4082, 2009 WL 2330758, *2 (3d Cir. July 30, 2009).


                                           -4-
J-S29006-20


Id.

      In response, the Commonwealth argued that the stay granted by the

Circuit Court only related to that portion of the District Court’s October 1, 2008

order directing that Brinson be immediately released. The Commonwealth

asserted that the portion of the order declaring his conviction null and void

was merely a reiteration of the District Court’s March 6, 2007 conditional

order, which the Commonwealth had not appealed.

      This Court agreed with the Commonwealth, stating:

      The Commonwealth’s appeal of the District Court's October 1,
      2008 order was clearly limited to whether the District Court had
      erred in ordering Brinson's immediate release; the stay granted
      by the Third Circuit at the request of the Commonwealth similarly
      related only to the lower court's order to release Brinson. In fact,
      the Circuit Court confirmed as much in its opinion, stating “[t]he
      Commonwealth filed a timely notice of appeal and applied for a
      stay of the order to release Brinson.” The opinion proceeds to
      address only the issue of whether [the District Court] had properly
      ordered Brinson's release, concluding that [it] had not. In short,
      a blanket stay of state court proceedings was neither requested
      nor issued. Thus, the Commonwealth was free to pursue its
      prosecution of Brinson while the Third Circuit considered the
      limited issue of Brinson's release. Our finding is consistent with
      both the policy of the federal courts regarding interference with
      state prosecutions, as well as with the dictates of 28 U.S.C. §
      2251, which specifies that, in the absence of a federal court order
      specifically staying state proceedings, such a proceeding is “valid
      as if no habeas corpus proceedings or appeal were pending.”

Brinson, 30 A.3d at 494 (citations omitted). Emphasizing that “[n]either the

District Court nor the Circuit Court specifically enjoined the Commonwealth

from proceeding with Brinson’s retrial in Common Pleas Court,” this Court




                                      -5-
J-S29006-20


concluded that the Common Pleas Court had jurisdiction to retry Brinson. Id.

Our Supreme Court subsequently denied allocatur.

        On July 26, 2012, Brinson filed a pro se PCRA petition. Brinson’s first

appointed counsel filed a Finley2 no-merit letter and was granted permission

to withdraw from representation. The PCRA court appointed new counsel, who

filed an amended PCRA petition. In that petition, Brinson reasserted his claim

that the Common Pleas Court lacked jurisdiction to retry him and claimed that

he had “newly-discovered evidence” to confirm this. On July 14, 2014, the

PCRA court dismissed Brinson’s petition on the basis that his lack of

jurisdiction issue had been previously litigated on direct appeal. Brinson

appealed the PCRA court’s decision, but this Court dismissed that appeal for

failure to file a brief. Brinson filed another PCRA petition seeking reinstatement

of his appeal rights nunc pro tunc. On July 20, 2018, the PCRA court granted

Brinson’s petition. This timely appeal followed.

        “Our standard of review for issues arising from the denial of PCRA relief

is well-settled. We must determine whether the PCRA court’s ruling is

supported by the record and free of legal error.” Commonwealth v. Presley,

193 A.3d 436, 442 (Pa. Super. 2018) (citation omitted). The PCRA court’s

findings will not be disturbed unless there is no support for the findings in the

certified record. See Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.



____________________________________________


2   See Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

                                           -6-
J-S29006-20


Super. 2001). Moreover, a PCRA court may decline to hold a hearing on a

PCRA petition if the court determines that the petitioner’s claim is patently

frivolous and is without a trace of support in either the record or other

evidence. See Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super.

2001).

      In order to be eligible for PCRA relief, a petitioner must plead and prove

that “the allegation of error has not been previously litigated or waived.” 42

Pa.C.S.A. § 9543(a)(3). An issue has been previously litigated for PCRA

purposes if “the highest appellate court in which the petitioner could have had

review as a matter of right has ruled on the merits of the issue.” 42 Pa.C.S.A.

§ 9544(a)(2). “[T]he fact that a petitioner presents a new argument or

advances a new theory in support of a previously litigated issue will not

circumvent the previous litigation bar.” Commonwealth v. Roane, 142 A.3d

79, 94 (Pa. Super. 2016) (citations omitted).

      Here, Brinson concedes that the lack of jurisdiction issue was previously

litigated on direct appeal. He asserts, however, that he now has “newly-

discovered evidence” that entitles him to relief. Brinson points to a subsequent

filing by the Commonwealth in federal court in which the Commonwealth

stated that it had appealed the granting of the absolute writ of habeas corpus

to the Third Circuit. According to Brinson, this amounts to an admission by the

Commonwealth that it had actually appealed the entire District Court October




                                     -7-
J-S29006-20


1, 2008 order, which in his opinion would bar re-prosecution unless and until

the Third Circuit granted the appeal.

      As the discussion above regarding this Court’s opinion on direct appeal

makes abundantly clear, this Court considered and rejected Brinson’s claim

on direct appeal that the Common Pleas Court lacked jurisdiction to retry him.

In doing so, this Court specifically found that the Commonwealth’s appeal to

the Circuit Court and the stay that was granted pending that appeal related

only to the lower court’s directive to immediately release Brinson. This Court

found that the Circuit Court had not, contrary to Brinson’s allegations, issued

a blanket stay on Brinson’s retrial in state court. We therefore found that the

Common Pleas Court had jurisdiction to retry Brinson. While Brinson clearly

disagrees with this conclusion, this disagreement does not change the fact

that the claim has been previously litigated and that he is not entitled to

relitigate it on the basis of new or different allegations. See Roane, 142 A.3d

at 94. As the PCRA court stated, the lack of jurisdiction “issue was previously

litigated. The mere fact that [Brinson] now raises it under theories that may

be different from those raised before this Court and on direct appeal, does not

avoid the [previous litigation bar].” PCRA Court Opinion, 6/29/2016, at 5. No

relief is due.

      Order affirmed.




                                        -8-
J-S29006-20


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/12/2020




                          -9-
