J-S27024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMIE M. BROWN                             :
                                               :
                       Appellant               :   No. 1468 WDA 2018

            Appeal from the PCRA Order Entered September 21, 2018
                 In the Court of Common Pleas of Beaver County
              Criminal Division at No(s): CP-04-CR-0000913-2001


BEFORE:      OLSON, J., OTT, J., and COLINS, J.

MEMORANDUM BY OTT, J.:                                    FILED JULY 16, 2019

        Jamie M. Brown appeals from the order entered September 21, 2018,

in the Beaver County Court of Common Pleas, dismissing, after a hearing, his

serial petition for collateral relief filed pursuant to the Post Conviction Relief

Act (“PCRA”).1 Brown seeks relief from the judgment of sentence of 20 to 40

years’ imprisonment, imposed on May 29, 2002, following his jury conviction

of murder.     On appeal, he asserts the PCRA court erred in dismissing the

petition. For the reasons discussed below, we affirm.

        We take the underlying facts and procedural history in this matter from

our March 24, 2016 opinion and the PCRA court’s September 21, 2018 opinion.


____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S.A. §§ 9541-9546.
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     This Court previously set forth the factual basis of this case as
     follows:

           [On March 15, 2001] Aliquippa Police Officer James
           Naim was on routine foot patrol in the Linmar Housing
           Plan when [Brown] approached him from the rear
           firing a nine millimeter handgun. Two bullets struck
           the officer in the head causing his immediate death.
           Testimony established that [Brown], who was well
           known to the law enforcement community, told
           several people that he was going to kill a police officer
           to “set an example.”

     Commonwealth v. Brown, 83 A.3d 1063 (Pa.Super.2013)
     (unpublished memorandum), at 1–2 (internal alterations and
     citation omitted).

     The procedural history of this case is as follows. On May 10, 2002,
     [Brown] was convicted of third-degree murder. On May 29, 2002,
     [Brown] was sentenced to 20 to 40 years’ imprisonment. This
     Court affirmed the judgment of sentence, and our Supreme Court
     denied allowance of appeal. Commonwealth v. Brown, 850
     A.2d 5 (Pa.Super.2004) (unpublished memorandum), appeal
     denied, 581 Pa. 670, 863 A.2d 1142 (2004).

     On June 30, 2005, [Brown] filed a pro se PCRA petition. Counsel
     was appointed and, on February 13, 2008, the PCRA court denied
     [Brown’s] first PCRA petition. This Court affirmed the denial of
     PCRA relief, and our Supreme Court denied allowance of appeal.
     Commonwealth v. Brown, 965 A.2d 289 (Pa.Super.2008)
     (unpublished memorandum), appeal denied, 603 Pa. 689, 983
     A.2d 725 (2009).

     [Brown] thereafter sought federal habeas relief. Such relief was
     denied. Brown v. Mazurkiewicz, 2012 WL 954628 (W.D.Pa.
     Mar. 20, 2012). On July 12, 2012, [Brown] filed a pro se PCRA
     petition, his second. That petition was denied and this Court
     affirmed.      Commonwealth v. Brown, 83 A.3d 1063
     (Pa.Super.2013) (unpublished memorandum).

     On June 7, 2013, [Brown] filed his third pro se PCRA petition.
     Thereafter, [Brown] filed an amended petition along with a motion
     to disqualify the Office of Attorney General (“OAG”) and a motion
     seeking the PCRA court’s recusal. On July 15, 2014, the PCRA

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      court denied the motion to disqualify and the motion for recusal.
      On August 12, 2014, the PCRA court issued an amended notice of
      its intent to dismiss the petition without an evidentiary hearing.
      See Pa.R.Crim.P. 907. On December 22, 2014, the PCRA court
      dismissed the petition. This timely appeal followed.

Commonwealth v. Brown, 141 A.3d 491, 495-496 (Pa. Super. 2016)

(footnotes omitted).

      On March 24, 2016, this Court affirmed in part, vacated in part, and

remanded. See id. at 495. While agreeing that Brown’s petition was “patently

untimely[,]” we found that “there [was] a genuine issue of material fact as to

whether [Brown] pled and proved the applicability of the PCRA’s newly-

discovered fact exception.” Id. at 507-508. This genuine issue of material

fact concerned an affidavit filed by Angela White.     Immediately following

Officer Naim’s murder, White was the subject of a drug investigation. In 2013,

she provided an affidavit to Brown in which she stated that, as part of that

investigation, there were wiretaps and, on one of them, an unknown individual

confessed to killing Officer Naim. Id. at 502. We therefore remanded the

matter for consideration solely of whether “Brown acted with due diligence in

discovering [that there were wiretap tapes and transcripts in an unrelated

matter that concerned his case]” and whether the wiretaps constituted

admissible evidence. Id. at 507.

      The PCRA court described the background of the wiretaps, their

contents, the events following remand, and its findings of fact as follows:

      On March 17, 2001, [Brown] was arrested and charged with
      [c]riminal [h]omicide relating to the death of Officer James Naim

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     of the Aliquippa Police Department. Both the City of Aliquippa
     Police Department and the Beaver County District Attorney’s
     Office requested that the offense be investigated by the
     Pennsylvania State Police and prosecuted by the Pennsylvania
     Office of the Attorney General. During the investigation, the
     Attorney General’s Office did file [a]pplications with the
     Pennsylvania Superior Court seeking authorization to intercept
     electronic and wire communications of various individuals known
     to have associations with [Brown]. The Honorable Justin M.
     Johnson of the Superior Court of Pennsylvania approved three (3)
     separate [a]pplications for interceptions at Docket Numbers 12-1
     W.D. 2001 on March 19, 2001; 12-2 W.D. 2001 on March 22,
     2001, and 12-3 W.D. 2001 on April 9, 2001. The authorized
     intercepts involved the cellular telephones of Michael Glanton,
     Peris Smith and Michael Bigstaff, Jr. The authorized intercepts
     covered periods of time from March 19, 2001 through April 16,
     2001. The [a]pplications which Judge Johnson authorized all
     related, by their allegations, to the murder of Officer Naim, and,
     further, that [Brown] was associated with Anthony Tusweet
     Smith, Perris Smith (both of whom are cousins of [Brown]),
     Michael Glanton and Michael Bigstaff, Jr. in the trafficking of illegal
     drugs.

     As a result of the intercepts which were memorialized on thirty-
     four (34) cassette tapes at Docket Number 12-1 W.D. 2001; fifty-
     three (53) cassette tapes at Docket Number 12-2 W.D. 2001, and
     twenty-two (22) cassette tapes at Docket Number 12-3 W.D. 2001
     (109 total cassette tapes), the Office of the Attorney General did
     file additional charges against various individuals, one of whom
     was Angela Y. White, who also happens to be the maternal aunt
     of Michael Glanton. On March 30, 2001, fifteen (15) days after
     the murder of Officer Naim and thirteen (13) days after the arrest
     of [Brown], the Pennsylvania State Police pulled over and
     impounded a pick-up truck which was being operated by Angela
     White with Michael Glanton in the passenger seat, and a
     subsequent search of the truck revealed twelve (12) kilograms of
     cocaine in a hidden compartment under the bed of the truck. On
     November 30, 2001, Ms. White was interviewed by agents of the
     Pennsylvania Bureau of Narcotics Investigation at Fort Hood,
     Texas, where she was stationed in the military.

     During the interview, which lasted four (4) hours and twenty (20)
     minutes, the agents did play portions of the taped intercepts for


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     Ms. White to listen to, and follow-up questions were asked. Some
     of the intercepts related to conversations between and among the
     aforementioned Michael Glanton, Perris Smith, Michael Bigstaff,
     Jr. and other individuals, including Angela White, and those
     intercepts also led to inquiries by the agents of Ms. White’s
     knowledge of the murder of Officer Naim.

                                  ****

     Counsel was appointed for [Brown], and [the PCRA court] did
     grant [m]otions of [c]ourt-appointed counsel to acquire the
     wiretaps and logs from the Superior Court. Because the wiretaps
     were then over fifteen (15) years old, and because the Superior
     Court maintained records of that nature pursuant to internal
     operating procedures known only to the Superior Court, the initial
     attempts of [c]ourt-appointed counsel and [the PCRA court] were
     unsuccessful.    [Brown] then retained private counsel with
     knowledge of the internal operating procedures of the Superior
     Court who, with and by [o]rder of [the PCRA court], was
     successful in securing release from the Superior Court of
     Pennsylvania archives of, first, the logs and tapes of wiretaps (34
     in total) at Docket Number 12-1 W.D. 2001, and subsequently,
     the logs and tapes of wiretaps at Docket Numbers 12-2 W.D. 2001
     and 12-3 W.D. 2001. As noted previously, Docket Number 12-2
     W.D. 2001 contained 53 cassette tapes and Docket Number 12-3
     W.D. 2001 contained an additional 22 cassette tapes, or 109 total
     cassette tapes at all three (3) Docket Numbers.

     Over the course of six and one-half (6½) days, counsel for
     [Brown], counsel for the Commonwealth, this [c]ourt and this
     [c]ourt’s [l]aw [c]lerks listened to all 109 cassette tapes while
     simultaneously reviewing all of the handwritten logs maintained
     simultaneously with the wiretaps of the mobile phone
     conversations. Those six and one-half (6½) days were conducted
     in camera in the [c]ourtroom with only those four (4)
     representatives being present. Following review of the logs and
     wiretaps, the [c]ourt did convene a PCRA Hearing in [c]ourt on
     November 29, 2017.         At that hearing, the [c]ourt granted
     [Brown’s] counsel’s [m]otion that the testimony of Angela White
     be sealed, after which defense counsel called two (2) witnesses
     who testified in [o]pen [c]ourt.

                            FINDINGS OF FACT


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     1.    There is no recording or log of recordings at Docket
     Numbers 12-1,12-2 or 12-3 W.D. 2001 which contain the
     statement of either the caller who initiated the phone call nor the
     recipient who answered the phone call, wherein any person
     claimed responsibility for the “killing of the police officer on
     Linmar, Alliquippa”[.]

     2.    There is no recording or log of recordings at Docket
     Numbers 12-1, 12-2 or 12-3 W.D. 2001, which contains the
     statement of either the caller nor the recipient of the call wherein
     any person was “the killer that was bragging about what he did”.

     3.    The affidavit signed by Angela White at the request of
     Caprice Allen, who was retained by the Innocence Project of Point
     Park University to secure the affidavit, states that she was “asked
     about this” (a wiretap) “when I was being interrogated on the
     Army Base in Fort Hood, Texas”.

     4.    An investigative report authored by Pennsylvania Office of
     Attorney General Narcotics Agent James J. Farmer reveals that an
     interview of Angela White took place at Fort Hood, Texas on
     November 30, 2001.

     5.    A redacted copy of Agent Farmer’s report was provided by
     the Commonwealth to Erika Kreisman [Brown’s trial counsel] in
     discovery. PCRA Hearing Transcript, Page 10, Lines 2 through 19;
     Page 12, Line 24, “it might have been”. Also, see [Brown’s]
     Exhibits Nos. 2 and 3 as entered into the record at the PCRA
     Hearing.

     6.     Attorney Kreisman did not review the discovery she received
     pre trial before coming to testify in the PCRA Hearing.

     7.    The parties submitted a [j]oint [m]otion to [s]upplement
     [r]ecord well after the PCRA Hearing. The [j]oint [m]otion will be
     granted, and the unredacted report of Agent Farmer will be made
     part of this record, and, as also requested by the parties, kept
     under seal.

     8.   The report of Agent Farmer is eight (8) pages in length,
     mostly single spaced, and contains only two (2) paragraphs, Nos.
     31 and 32, in which the Agents focused on any knowledge that
     Ms. White may have had concerning the death of Officer Naim.


                                    -6-
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        Those two (2) paragraphs were introduced into the record by
        [Brown] as Page 2 of Exhibit 2.

        9.     A complete review of the eight-page report of Agent Farmer
        reveals that all lines redacted from the report relate to the charges
        filed against Ms. White, and no other references to the death of
        Officer Naim are made elsewhere in the report.

        10.    Per the report of Agent Farmer, as set forth on Page 2 of
        Exhibit 2, when asked if she knows or has heard any information
        about Jamie Brown, White stated she only knows of him from the
        newspapers and through Charlene (her sister) telling her Brown
        was arrested for killing a cop." She again stated, “she does not
        know Brown. . .”

        11. At the PCRA Hearing, Angela White did testify on behalf of
        [Brown], and her testimony, for the most part, was consistent
        with the contents of the affidavit that she provided to Caprice Allen
        some twelve (12) years after the untimely death of Officer Naim.

PCRA Court Opinion, 9/21/2018, at unnumbered pages 1-7.

        On September 21, 2018, the PCRA court denied Brown’s serial PCRA

petition. On October 11, 2017, the PCRA court issued an opinion denying

Brown’s request for discovery. The instant appeal followed.2

        On appeal, Brown raises seven issues. Brown’s Brief, at 5-6. Five of

those issues contend that the PCRA court erred in dismissing his petition

because of his meritorious newly discovered evidence, Brady,3 and


____________________________________________


2 The PCRA court did not order Brown to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). On November 26,
2018, the Honorable Richard Mancini, President Judge of the Court of Common
Pleas of Beaver County, issued a Rule 1925(a) opinion noting that the judge
who had presided over Brown’s case had retired and adopting its September
21, 2018 opinion.

3   Brady v. Maryland, 373 U.S. 83 (1963).

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governmental interference claims.     Id.   One issue is a challenge to the

constitutionality of the PCRA’s time-bar; and the remaining challenges the

denial of Brown’s request for discovery. Id.

      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted). Further, because this was on a

remand, the jurisdiction of the PCRA court was limited. Our Supreme Court

has stated:

      Following a full and final decision by a PCRA court on a PCRA
      petition, that court no longer has jurisdiction to make any
      determinations related to that petition unless, following appeal,
      the appellate court remands the case for further proceedings in
      the lower court. In such circumstances, the PCRA court may only
      act in accordance with the dictates of the remand order. The PCRA
      court does not have the authority or the discretion to permit a
      petitioner to raise new claims outside the scope of the remand
      order and to treat those new claims as an amendment to an
      adjudicated PCRA petition.

Commonwealth v. Sepulveda, 144 A.3d 1270, 1280 (Pa. 2016) (footnotes

omitted); see also Commonwealth v. Rivera, 199 A.3d 365, 388-389 (Pa.

2018) (holding that following remand PCRA petitioner is not entitled to raise

new claims and citing cases).

      Lastly, this Court has previously explained the interplay between the

newly discovered facts exception to the timeliness requirements and a

substantive collateral claim of after-discovered evidence as follows:




                                     -8-
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     The timeliness exception set forth in Section 9545(b)(1)(ii)
     requires a petitioner to demonstrate he did not know the facts
     upon which he based his petition and could not have learned those
     facts earlier by the exercise of due diligence. Due diligence
     demands that the petitioner take reasonable steps to protect his
     own interests. A petitioner must explain why he could not have
     learned the new fact(s) earlier with the exercise of due diligence.
     This rule is strictly enforced. Additionally, the focus of this
     exception is on the newly discovered facts, not on a newly
     discovered or newly willing source for previously known facts.

     The timeliness exception set forth at Section 9545(b)(1)(ii) has
     often mistakenly been referred to as the “after-discovered
     evidence” exception. This shorthand reference was a misnomer,
     since the plain language of subsection (b)(1)(ii) does not require
     the petitioner to allege and prove a claim of “after-discovered
     evidence.” Rather, as an initial jurisdictional threshold, Section
     9545(b)(1)(ii) requires a petitioner to allege and prove that there
     were facts unknown to him and that he exercised due diligence in
     discovering those facts. Once jurisdiction is established, a PCRA
     petitioner can present a substantive after-discovered-evidence
     claim. See 42 Pa.C.S.A. § 9543(a)(2)(vi) (explaining that to be
     eligible for relief under PCRA, petitioner must plead and prove by
     preponderance of evidence that conviction or sentence resulted
     from, inter alia, unavailability at time of trial of exculpatory
     evidence that has subsequently become available and would have
     changed outcome of trial if it had been introduced). In other
     words, the “new facts” exception at:

           [S]ubsection (b)(1)(ii) has two components, which
           must be alleged and proved. Namely, the petitioner
           must establish that: 1) the facts upon which the
           claim was predicated were unknown and 2) could not
           have been ascertained by the exercise of due
           diligence. If the petitioner alleges and proves these
           two components, then the PCRA court has jurisdiction
           over the claim under this subsection.

     Thus, the “new facts” exception at Section 9545(b)(1)(ii) does not
     require any merits analysis of an underlying after-discovered-
     evidence claim.




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Commonwealth v. Brown, 111 A.3d 171, 176–177 (Pa. Super. 2015) (some

citations and quotation marks omitted, emphases in original), appeal denied,

125 A.3d 1197 (Pa. 2015).

       With this framework in mind, we now turn to the issues raised by Brown.

We initially note the following, the prior panel of this Court held that Brown’s

petition was “patently untimely” and that the White affidavit in and of itself

was not a newly discovered fact. Brown, supra at 500, 502. Moreover, we

remanded this matter in order to ascertain if Brown acted with due diligence

in obtaining the White affidavit,4 if there was information on the wiretaps that

was admissible, and, if so, whether it constituted a newly discovered fact

and/or Brady material.

       Brown’s first issue is less a separate issue than a compilation of the

issues that follow it, as he generally states that his petition was timely under

either the newly discovered facts and/or the governmental interference

exception.     See Brown’s Brief, at 45-52.        Therefore, we will discuss the

majority of the arguments raised in that issue in combination with the related

claims discussed below. However, to the extent that Brown raises a claim of

governmental interference in his first issue, we find that it was not properly

before the PCRA court as Brown raised it for the first time in his post-remand

amended PCRA petition filed without leave of court on April 28, 2017. See


____________________________________________


4The PCRA court held that Brown acted with due diligence. PCRA Ct. Op. at
7.

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Amended Petition for Post-Conviction Relief, 4/28/2017, at 21. As discussed

above, our Supreme Court has specifically held that a PCRA petitioner cannot

raise new claims on remand. Rivera, supra at 388-389. Thus, that portion

of Brown’s first claim fails.

      In part of his first claim, and his second and third claims, Brown

contends that the PCRA court erred in holding that the information and

testimony of Angela White neither were facts nor newly discovered. Brown’s

Brief, at 42-59. However, Brown has waived these claims.

      To the extent that Brown is claiming that the White affidavit in and of

itself constituted a newly discovered fact, this Court has already ruled that it

does not. See Brown, supra at 502. That decision is binding on this Court

under the law of the case doctrine. This doctrine “refers to a family of rules

which embody the concept that a court involved in the later phases of a

litigated matter should not reopen questions decided by another judge of that

same court or by a higher court in the earlier phases of the matter.”

Commonwealth v Starr, 664 A.2d 1326, 1331 (Pa. 1995).               “Among the

related but distinct rules which make up the law of the case doctrine are that:

. . . (2) upon a second appeal, an appellate court may not alter the resolution

of a legal question previously decided by the same appellate court. . . .” Id.

Thus, this Court cannot alter the prior panel’s decision that the White affidavit

is not newly discovered evidence.




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      In any event, while this Court does have the transcript of the PCRA

hearing, that transcript does not contain the testimony of Angela White, which,

at Brown’s request, the PCRA court placed under seal. See PCRA Ct. Op., at

unnumbered page 5; N.T. PCRA Hearing 11/29/2016, at 1-37. Moreover, this

Court examined the notice of appeal, which does not contain a request for

transcripts; Brown did not send a copy of the notice of appeal to the court

recorder, and in the notice he erroneously states, “The complete transcript of

the proceedings has been lodged of record.” Notice of Appeal, 10/05/2018.

      We have stated “[w]hen the appellant . . . fails to conform to the

requirements of [Pa.R.A.P.] 1911 [relating to transcript requests], any claims

that cannot be resolved in the absence of the necessary transcript or

transcripts must be deemed waived for the purpose of appellate review.”

Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en banc),

appeal denied, 916 A.2d 632 (Pa. 2007) (citation omitted). Further, it is the

appellant’s responsibility to make certain that the certified record contains all

items necessary to ensure that this Court is able to review his claims. See

Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super. 2008) (en banc).

This Court has stated:

            It is black letter law in this jurisdiction that an appellate
      court cannot consider anything which is not part of the record in
      the case. It is also well-settled in this jurisdiction that it is
      [a]ppellant’s responsibility to supply this Court with a complete
      record for purposes of review. A failure by appellant to insure that
      the original record certified for appeal contains sufficient
      information to conduct a proper review constitutes waiver of the
      issue sought to be examined.

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Commonwealth v. Martz, 926 A.2d 514, 524-525 (Pa. Super. 2007), appeal

denied, 940 A.2d 363 (Pa. 2008) (citations and quotation marks omitted).

Accordingly, we find that Brown’s failure to ensure that the PCRA court sent

the sealed portion of the PCRA transcript that contains Angela White’s

testimony to this Court waived part of his first issue, as well as his second and

third issues on appeal.5

        In his fourth claim, Brown contends that the PCRA’s time bar is

unconstitutional as applied to him.            Brown’s Brief, at 59-65.   However, as

Brown also raised this claim for the first time in his post-remand April 28,

2017 amended PCRA petition, and as it is well beyond the scope of our remand

order, the PCRA court had no jurisdiction to consider it.           See Sepulveda,

supra at 1280. Thus, the claim fails.6


____________________________________________


5 Moreover, even if we were in possession of White’s testimony, it is highly
unlikely that we would have resolved this issue in Brown’s favor. In its
opinion, the PCRA court stated that White’s testimony “for the most part, was
consistent with the contents of the affidavit[.]” PCRA Ct. Op., at unnumbered
page 7. The parties do not dispute that the wiretaps did not corroborate the
allegations made in the affidavit. Id. at 8. This Court already ruled that the
affidavit, absent corroboration, did not constitute a newly discovered fact.
Brown, supra at 502. Therefore, we see no basis upon which we would have
overruled the PCRA court’s finding that testimony which just repeated the
same uncorroborated and likely inadmissible information would not have
constituted a newly discovered fact that would render Brown’s PCRA petition
timely.

6   In any event, the claim is meritless. Our Supreme Court has stated:




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       In part of his first issue, and his fifth issue, Brown maintains that the

PCRA court erred in not granting him a new trial because the Commonwealth

failed to turn over to him an unredacted7 copy of Angela White’s 2001

interview with Pennsylvania Attorney General narcotics agent James J.



____________________________________________


       This Court has held that the PCRA’s time restriction is
       constitutionally valid. See Commonwealth v. Peterkin, 554 Pa.
       547, 722 A.2d 638, 643 (1998) (“the PCRA’s time limitation upon
       the filing of PCRA petitions does not unreasonably or
       unconstitutionally limit [an appellant’s] constitutional right to
       habeas corpus relief.”). Furthermore, we have held that the PCRA
       time limits are jurisdictional in nature, implicating a court’s very
       power to adjudicate a controversy. See Commonwealth v.
       Fahy, 558 Pa. 313, 737 A.2d 214 (1999). Accordingly, the
       “period for filing a PCRA petition is not subject to the doctrine of
       equitable tolling;” instead, the time for filing a PCRA petition can
       be extended only to the extent that the PCRA permits it to be
       extended, i.e., by operation of one of the statutorily enumerated
       exceptions to the PCRA time-bar. Id. at 222.

       More recently, in Commonwealth v. Robinson, 575 Pa. 500,
       837 A.2d 1157 (2003), we recounted this Court’s rejection of
       “various theories devised to avoid the effects of the one-year time
       limitation” of the PCRA. Id. at 1157 (collecting cases). In
       Robinson, we reiterated the strictly jurisdictional nature of the
       PCRA time-bar and that “the PCRA confers no authority upon this
       Court to fashion ad hoc equitable exceptions to the PCRA time-bar
       in addition to those exceptions expressly delineated in the Act.”
       Id. at 1161 (quoting Commonwealth v. Eller, 569 Pa. 622, 807
       A.2d 838, 845 (2002)).

Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa. 2004).

7 The Commonwealth did turn over a redacted copy of the interview to Brown’s
counsel prior to trial. PCRA Ct. Op., at unnumbered page 6; N.T. PCRA
Hearing, 11/29/2016, at 10 and 12. The PCRA court held that the portion
turned over to trial counsel contained the only references in the interview to
the shooting of Officer Naim. PCRA Ct. Op., at unnumbered page 6.

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Farmer, and also failed to turn over evidence in the form of certain tape-

recorded statements made in the wiretaps. Brown’s Brief, at 42-52, 65-76.

Again, Brown waived these claims.

      At the request of the parties, the PCRA court entered the unredacted

White interview report as a sealed exhibit at the PCRA hearing. PCRA Ct. Op.,

at unnumbered page 6. None of the PCRA hearing exhibits, including both the

redacted and unredacted White interview reports, are contained in the

certified record, and we see nothing that demonstrates that Brown requested

that the unredacted interview be unsealed or that any of the PCRA hearing

exhibits be forwarded to this Court.

      Moreover, as per procedure, the PCRA court returned the wiretaps and

their logs to this Court’s archives, so they are not contained in the certified

record. Brown could have moved pursuant to 18 Pa.C.S.A. § 5715 to unseal

them and have them forwarded to this panel. However, he did not do so.

      As discussed above, it is the appellant’s responsibility to ensure that this

Court has all documentation necessary to review this appeal. See B.D.G.,

supra at 372. In the absence of the unredacted White interview report and

the wiretaps, we are unable to assess the merits of Brown’s claim that failure

to provide them to him prior to trial either constituted a Brady violation and/or

newly discovered evidence. Therefore, we find Brown waived part of his first

claim and his fifth claim. See Martz, supra at 525.




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        In part of his first claim and his sixth claim, Brown argues that the PCRA

court erred in not considering newly discovered facts in the form of affidavits

from his co-defendant Acey Taylor and former Commonwealth witness Darnell

Hines. Brown’s Brief at 42-52, 76-86. We disagree.

        Brown raised these claims for the first time in his post-remand April 28,

2017 amended PCRA petition. Amended Petition for Post-Conviction Relief, at

10-12. As stated above, following a limited remand, an appellant cannot raise

new claims exceeding the scope of the remand. See Sepulveda, supra at

1280; see also Rivera, supra at 388-389. Here, as discussed above, the

remand was limited to the White affidavit and the wiretaps. Taylor and Hines’

recantation affidavits are completely unrelated to White or to the wiretaps.

Moreover, we find Brown’s attempts to both limit the scope of the holding in

Sepulveda and to distinguish it utterly unpersuasive. The PCRA court was

without jurisdiction to consider Brown’s new and unrelated claims of newly

discovered evidence. Thus, the remainder of his first claim and his sixth claim

fail.

        In his seventh and final issue, Brown avers that the trial court erred in

denying his request for discovery. Brown’s Brief, at 86-89. In his request,

Brown sought:

        . . . any investigative files maintained by the Aliquippa Police
        Department, Beaver County detectives, the Office of Attorney
        General, the Pennsylvania State Police, and any information
        provided by the F.B.I. to the aforementioned state or local law
        enforcement as it relates to an investigation of Anthony Tusweet
        Smith, Michael "Mike-Mike" Glanton, and Peris Smith and their

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      involvement in the murder of Officer Nairn, including but not
      limited to any statements provided by Anthony “Ali” Dorsett.

      In addition, counsel requests copies of any police files maintained
      by the Aliquippa Police Department, Office of Attorney General,
      Pennsylvania State Police, Beaver County detectives, and any
      information provided by the F.B.I. to the aforementioned state or
      local law enforcement pertaining to a parallel drug investigation
      of the Smith brothers and Michael Glanton.

      Counsel also seeks discovery of any investigative files maintained
      by the Aliquippa Police Department, Beaver County detectives, the
      Office of Attorney General, the Pennsylvania State Police, and any
      information provided by the F.B.I. to the aforementioned state or
      local law enforcement as it relates to an investigation into possible
      Aliquippa police corruption at the time of Officer Naim’s death, not
      limited to grand jury information.

Request for Discovery Pursuant to Pa.R.Crim.P. 902(E), 9/25/2017, at 4-5

(paragraph enumeration omitted).

      The Pennsylvania Rules of Criminal Procedure proscribe discovery during

collateral proceedings “except upon leave of court after a showing of

exceptional circumstances.” Pa.R.Crim.P. 902(E)(1). “We review the denial of

a discovery request in post-conviction proceedings for abuse of discretion.”

Commonwealth v. Hanible, 30 A.3d 426, 452 (Pa. 2011), cert. denied, 568

U.S. 1091 (2013). “An abuse of discretion is not a mere error in judgment.

Instead, it is a decision based on bias, ill will, partiality, prejudice, manifest

unreasonableness, or misapplication of law.       Moreover, we recall that the

appellant has the duty to convince us an abuse occurred.” Commonwealth

v. Frey, 41 A.3d 605, 611 (Pa. Super. 2012), appeal denied, 65 A.3d 413 (Pa.

2013).


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      Here, Brown has not persuaded us that the PCRA court abused its

discretion. In its decision denying Brown’s request, the PCRA court detailed

the extent of the information already provided to Brown prior to trial about

the possible involvement of Anthony Tusweet Smith in the murder of Officer

Naim, and that Angela White, Michael Glanton and others in their circle might

have information about the incident.   PCRA Court Opinion, 10/11/2017, at

unnumbered pages 2-3. It then found that Brown failed to identify “specific

documents or items that were not disclosed pre-trial or during the trial.” Id.

at 4. It concluded that Brown’s exceedingly broad request was “speculative

and a baseless fishing expedition.” Id. Having reviewed the record, which

supports its findings, we discern no abuse of discretion. See Frey, supra at

611. Brown’s final claim fails.

      Accordingly, for the reasons discussed above, we affirm the denial of

Brown’s third PCRA petition.

      Order affirmed.

      Judge Colins joins in this memorandum.

      Judge Olson concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



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Date: 7/16/2019




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