J-S04022-16

                             2016 PA Super 73

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

JAMIE BROWN,

                        Appellant                  No. 152 WDA 2015


            Appeal from the PCRA Order of December 22, 2014
              In the Court of Common Pleas of Beaver County
            Criminal Division at No(s): CP-04-CR-0000913-2001

BEFORE: BOWES, OLSON and STRASSBURGER,* JJ.

OPINION BY OLSON, J.:                             FILED MARCH 24, 2016

      Appellant, Jamie Brown, appeals pro se from the order entered on

December 22, 2014 dismissing his third petition filed pursuant to the Post-

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546.      After careful

consideration, we affirm in part, vacate in part, and remand for further

proceedings consistent with this opinion.

      This Court previously set forth the factual background 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 Appellant
      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 Appellant, 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.”




* Retired Senior Judge assigned to the Superior Court
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Commonwealth v. Brown, 83 A.2d 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 Super. 2013) (unpublished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,

Appellant was convicted of third-degree murder.1             On May 29, 2002,

Appellant 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2004) (unpublished memorandum), appeal denied, 863 A.2d 1142 (Pa.

2004).

        On June 30, 2005, Appellant filed a pro se PCRA petition. Counsel was

appointed and, on February 13, 2008, the PCRA court denied Appellant’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, 983 A.2d 725 (Pa. 2009).

        Appellant 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, Appellant filed a pro se PCRA petition, his second.

That petition was denied and this Court affirmed.            Commonwealth v.

Brown, 83 A.2d 1063 (Pa. Super. 2013) (unpublished memorandum).




1
    18 Pa.C.S.A. § 2502(c).



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      On June 7, 2013, Appellant filed his third pro se PCRA petition.

Thereafter, Appellant 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 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.2, 3

      Appellant presents five issues for our review:

    1. Whether the [PCRA] court erred as a matter of law and/or
       abused its discretion in failing to disqualify the [OAG] from
       participating in the instant PCRA proceedings?

    2. Whether the [PCRA] court erred as a matter of law and/or
       abused its discretion in failing to grant Appellant’s request for
       judicial recusal?

    3. Whether the [PCRA] court erred as a matter of law and/or
       abused its discretion in denying and/or otherwise dismissing
       Appellant’s request for PCRA relief as untimely?



2
  On January 22, 2015, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b).   On February 13, 2015, Appellant filed his concise
statement. On April 20, 2015, the PCRA court issued its Rule 1925(a)
opinion. All issues raised on appeal were included in Appellant’s concise
statement.
3
  After the notice of appeal was filed, Appellant filed his brief eight days late.
The Commonwealth thereafter sought dismissal of this appeal because of the
untimely filing. The application to dismiss was referred to a motions panel of
this Court, which denied the application on October 23, 2015.




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     4. Whether the [PCRA] court’s historical findings concerning the
        information provided by [Angela Y.] White [(“White”)] and
        [Anthony] Brown [(“Brown”)] are without any support in the
        record?

     5. Whether the [PCRA] court erred as a matter of law and/or
        abused its discretion in denying and/or otherwise dismissing
        Appellant’s request for PCRA relief without ruling on his request
        for limited discovery?

Appellant’s Brief at 4 (complete capitalization removed).4

        In his first issue, Appellant argues that the PCRA court erred by

denying his motion to disqualify the OAG.5           Appellant contends that

disqualification of the OAG was required because one of the claims raised in

his PCRA petition was that the OAG withheld exculpatory evidence in

violation of Brady v. Maryland, 373 U.S. 83 (1963).           Second, Appellant

argues that disqualification of the OAG was required pursuant to the

Commonwealth Attorneys Act, 71 P.S. § 732-101 et seq.


4
    We have re-numbered the issues for ease of disposition.
5
  The Commonwealth contends that the order denying Appellant’s motion for
disqualification was a final order and Appellant’s failure to file his appeal
within 30 days of that order precludes jurisdiction over this issue. The order
denying Appellant’s motion, however, was not a final order under
Pennsylvania Rule of Appellate Procedure 341 as it did not dispose of all of
Appellant’s claims. Furthermore, even if it were a collateral order, Appellant
did not waive the issue by failing to file a notice of appeal within 30 days of
entry of the order. This Court has held that “although collateral orders may
be appealed within 30 days of their entry, the substance of the collateral
order is not forever precluded when an appeal is not taken within this
period.” Jones v. Faust, 852 A.2d 1201, 1203 (Pa. Super. 2004), citing In
re Estate of Petro, 694 A.2d 627, 631 (Pa. Super. 1997). Thus, we have
jurisdiction to reach the merits of this issue.




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      We review the PCRA court’s denial of a motion for disqualification for

an abuse of discretion. Commonwealth v. Sims, 799 A.2d 853, 856 (Pa.

Super. 2002) (citations omitted). “A prosecution is barred when an actual

conflict of interest affecting the prosecutor exists in the case; under such

circumstances a defendant need not prove actual prejudice in order to

require that the conflict be removed.” Commonwealth v. Ford, 122 A.3d

414, 418 (Pa. Super. 2015) (internal quotation marks and citation omitted).

      Appellant argues that the OAG should have been disqualified because,

in his PCRA petition, he alleged that the OAG violated Brady.            Appellant

notes that any attorney who violates Brady is subject to disciplinary action

and/or criminal penalties. Thus, according to Appellant, the OAG attorneys

have a personal interest in ensuring his Brady claim fails which conflicts

with their professional obligation to expose any Brady violations.

      This claim fails for two reasons. First, when evaluating prosecutorial

disqualification claims, “individual rather than vicarious disqualification is the

general rule.” Ford, 122 A.3d at 418 (internal quotation marks and citation

omitted).     The   attorney   in   the    OAG’s   office   who   represented    the

Commonwealth with respect to Appellant’s third PCRA petition was not

involved    in   Appellant’s    original     prosecution.         Appellant     cites

Commonwealth v. Eskridge, 604 A.2d 700 (Pa. 1992), in support of his

argument that the general rule of individual disqualification should not apply

in this case. Eskridge, however, is distinguishable from the case at bar. In



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that case, the district attorney himself, not a deputy, had a conflict of

interest. “[T]his Court held that where the conflict of interest lies with the

chief prosecutor (i.e., the District Attorney), the prosecution is barred and

the conflict cannot be resolved by delegating the matter to an assistant DA.”

Sims, 799 A.2d at 857 (citations omitted).       Thus, Eskridge established a

special rule relating to conflicts involving chief prosecuting authorities.

Appellant does not argue that Attorney General Kathleen Kane has any

conflict of interest in this case. Therefore, Appellant’s reliance on Eskridge

is inapposite.    Instead, the general rule of individual disqualification is

appropriate in this case and Appellant does not explain how the attorney

representing the Commonwealth with respect to his third PCRA petition had

a conflict of interest.

      Second, Appellant points to no authority for the proposition that

allegations of a Brady violation warrant disqualification of an entire

prosecutorial office.     We are likewise unaware of any such authority.

Instead, we find persuasive the reasoning of the Supreme Court of New

Jersey in New Jersey v. Marshall, 690 A.2d 1 (N.J. 1997). In that case,

like in the case at bar, the defendant argued that the attorney general’s

office should have been disqualified from representing the state in collateral

proceedings because he alleged that an individual employed by the attorney

general’s office violated Brady.    Id. at 99.    The Supreme Court of New

Jersey held that “[t]he fact that defendant alleges misconduct in prior



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proceedings cannot entitle him to disqualify counsel for the State.”       Id.

Thus, we conclude that the PCRA court did not abuse its discretion in

declining to disqualify the OAG because of Appellant’s Brady allegation.

      Appellant argues, alternatively, that disqualification of the OAG is

required pursuant to the Commonwealth Attorneys Act.              Specifically,

Appellant argues that there is no record showing that the Beaver County

District Attorney asked the OAG to prosecute Appellant’s PCRA petition;

therefore, the OAG is without authority in this matter.      This argument is

waived.   Under the PCRA, “an issue is waived if the petitioner could have

raised it but failed to do so before trial, at trial, during unitary review, on

appeal[,] or in a prior state postconviction proceeding.”        42 Pa.C.S.A.

§ 9544(b). A defendant can challenge the OAG’s prosecution of a case on

grounds there was a violation of the Commonwealth Attorneys Act in his or

her omnibus pretrial motion and on direct appeal. See Commonwealth v.

Cosgrove, 680 A.2d 823, 826 (Pa. 1996); see also Commonwealth v.

Farmer, 750 A.2d 925, 928 (Pa. Cmwlth. 2000), appeal denied, 795 A.2d

980 (Pa. 2000) (considering challenge to the OAG’s prosecution on direct

appeal); cf. Commonwealth v. Carsia, 491 A.2d 237, 240 (Pa. Super.

1985) (en banc), aff'd, 517 A.2d 956 (Pa. 1986) (defendant has a right to

challenge OAG’s prosecution as it affects the validity of a criminal

information).   The OAG prosecuted Appellant at trial and represented the

Commonwealth in Appellant’s direct appeal. As Appellant could have raised



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the issue at trial and on direct appeal but failed to do so, the issue is waived.

Thus, the PCRA court did not abuse its discretion in declining to disqualify

the OAG on this alternative ground.

      In his second issue, Appellant contends that the PCRA court erred by

denying his motion for recusal.6 “We review the [PCRA] court’s denial of the

recusal motion for abuse of discretion.” Becker v. M.S. Reilly, Inc., 123

A.3d 776, 778 (Pa. Super. 2015) (citation omitted). When

      considering a recusal request, the jurist must first make a
      conscientious determination of his or her ability to assess the
      case in an impartial manner, free of personal bias or interest in
      the outcome. The jurist must then consider whether his or her
      continued involvement in the case creates an appearance of
      impropriety and/or would tend to undermine public confidence in
      the judiciary. This is a personal and unreviewable decision that
      only the jurist can make.         In reviewing a denial of a
      disqualification motion, we recognize that our judges are
      honorable, fair[,] and competent.

Commonwealth. v. Orie Melvin, 103 A.3d 1, 23 (Pa. Super. 2014)

(citation and internal ellipsis omitted).




6
  The Commonwealth contends that the order denying Appellant’s motion for
recusal was a final order and Appellant’s failure to file his notice of appeal
within 30 days of that order deprives us of jurisdiction over this issue. This
Court has held, however, that a defendant’s motion seeking recusal is not a
final order (or a collateral order). See Commonwealth v. Orie, 33 A.3d
17, 19-20 (Pa. Super. 2011); Darlington et al, Pennsylvania Appellate
Practice § 313:107.5 (2015 ed.); see also Commonwealth v. Druce, 848
A.2d 104, 107 (Pa. 2004) (deciding recusal issue in context of direct appeal
taken from judgment of sentence entered more than 30 days after denial of
recusal motion). Thus, the appeal from the order denying Appellant’s
recusal motion properly lies from the order dismissing his PCRA petition.



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        We are not persuaded by the merits of Appellant’s recusal claim. First,

“Appellant submits that [the PCRA court’s] impartiality was demonstrated, in

large part, by [its] rulings, which according to Appellant were almost

invariably in favor of the prosecution.       Adverse rulings alone do not,

however, establish the requisite bias warranting recusal, especially where

the rulings are legally proper.” Commonwealth v. Abu-Jamal, 720 A.2d

79, 90 (Pa. 1998). As noted above, this Court has repeatedly held that the

PCRA court’s rulings were correct, both during trial and during Appellant’s

two previous PCRA petitions.      Thus, Appellant’s argument that the PCRA

court was biased because of its previous adverse rulings is without merit.

        Appellant contends that the PCRA court’s actions during trial also

evidenced its bias in this matter.     Appellant admits, however, that such

actions are “not reflected in the trial record[.]” Appellant’s Brief at 31. We

must rely solely on the certified record; thus mere averments in a brief are

insufficient to prove that the PCRA court’s actions during trial were biased

against Appellant.    Appellant next contends that the PCRA court’s opinion

that 20 years’ imprisonment was insufficient evidences the PCRA court’s

bias.    This statement by the PCRA court was made at sentencing and

reflected the trial court’s careful consideration of the sentencing factors set

forth in 42 Pa.C.S.A. § 9721(b). Such consideration is required by statute

and case law. See 42 Pa.C.S.A. § 9721(b); Commonwealth v. Fullin, 892




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A.2d 843, 847 (Pa. Super. 2006).      This observation does not furnish the

basis for a recusal claim.

      Appellant also argues that the PCRA court had “personal knowledge of

evidentiary facts which would likely be called into dispute[.]”    Appellant’s

Brief at 27.     Appellant, however, does not point to any such personal

knowledge possessed by the PCRA court. As such, this contention is waived.

See Pa.R.A.P. 2119(a); Burgoyne v. Pinecrest Cmty. Ass’n, 924 A.2d

675, 680 (Pa. Super. 2007).

      The PCRA court considered whether it was able to resolve Appellant’s

claims free of bias or personal interest in the case. After concluding that it

was able to impartially resolve Appellant’s third PCRA petition, the PCRA

court determined that remaining on the case would neither present the

appearance of impropriety nor undermine faith in the judiciary.      Thus, it

denied Appellant’s motion for recusal. For the reasons stated above, we find

that the PCRA court did not abuse its discretion in denying Appellant’s

recusal motion.

      In his third and fourth issues on appeal, Appellant contends that the

PCRA court erred by dismissing his petition based upon its finding that it

lacked jurisdiction to reach the merits.7 “Crucial to the determination of any




7
 Although not phrased as such, Appellant’s fourth issue challenges the PCRA
court’s findings with respect to the timeliness of his third PCRA petition. As
we exercise de novo review over the PCRA court’s timeliness determination,
(Footnote Continued Next Page)


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PCRA appeal is the timeliness of the underlying petition. Thus, we must first

determine     whether       the    instant       PCRA   petition   was   timely   filed.”

Commonwealth v. Smith, 35 A.3d 766, 768 (Pa. Super. 2011), appeal

denied, 53 A.3d 757 (Pa. 2012).                  The timeliness requirement for PCRA

petitions “is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.” Commonwealth v.

Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013) (citation omitted). “The

question of whether a petition is timely raises a question of law. Where the

petitioner raises questions of law, our standard of review is de novo and our

scope of review plenary.”         Commonwealth v. Taylor, 65 A.3d 462, 468

(Pa. Super. 2013) (citations omitted).

      A PCRA petition is timely if it is “filed within one year of the date the

judgment [of sentence] becomes final.” 42 Pa.C.S.A. § 9545(b)(1).                   “[A]

judgment [of sentence] becomes final at the conclusion of direct review,

including discretionary review in the Supreme Court of the United States and

the Supreme Court of Pennsylvania, or at the expiration of time for seeking

the review.” 42 Pa.C.S.A. § 9545(b)(3). Appellant’s judgment of sentence

became final on March 3, 2005, 90 days after our Supreme Court denied

allowance of appeal. See U.S. Sup. Ct. R. 13 (petition for a writ of certiorari




                       _______________________
(Footnote Continued)
Appellant’s fourth issue is addressed within the context of whether his third
PCRA petition was timely.



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must be filed within 90 days).      Appellant’s present petition, his third, was

filed on June 7, 2013. Thus, the petition was patently untimely.

     An untimely PCRA petition may be considered if one of the following

three exceptions applies:

     (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.A. § 9545(b)(1)(i-iii).    If an exception applies, a PCRA petition

may be considered if it is filed “within 60 days of the date the claim could

have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

     Appellant argues that he satisfied the newly-discovered fact exception

under section 9545(b)(1)(ii) and, therefore, the PCRA court possessed

jurisdiction over the merits of his petition.         We first note that the

Commonwealth’s brief and the PCRA court’s opinion appear to conflate the

newly-discovered fact exception with an after-discovered evidence claim.

Compare 42 Pa.C.S.A. § 9545(b)(1)(ii) with 42 Pa.C.S.A. § 9543(a)(2)(vi);

see Commonwealth v. Brown, 111 A.3d 171, 178 (Pa. Super. 2015),

appeal denied, 125 A.3d 1197 (Pa. 2015). It is possible for a petitioner to


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plead and prove the newly-discovered fact exception, which gives the PCRA

court jurisdiction and permits it to consider the petition on the merits, and

then ultimately fail on the merits of an after-discovered evidence claim. The

newly-discovered fact exception

        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.

Commonwealth. v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (internal

quotation marks and citations omitted; emphasis removed).8

        Appellant contends that two separate affidavits provided newly-

discovered facts.9


8
    On the other hand:

        To obtain relief based on after-discovered evidence, [a
        petitioner] must demonstrate that the evidence: (1) could not
        have been obtained prior to the conclusion of the trial by the
        exercise of reasonable diligence; (2) is not merely corroborative
        or cumulative; (3) will not be used solely to impeach the
        credibility of a witness; and (4) would likely result in a different
        verdict if a new trial were granted.

Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008) (citations
omitted).
9
  On April 17, 2013, White signed one of the two affidavits at issue in this
case. Within 60 days of receiving White’s affidavit, Appellant located the
transcripts from White’s criminal trial and filed this, his third, PCRA petition.
Thereafter, Appellant received Brown’s affidavit. Within 60 days of receiving
Brown’s affidavit, Appellant filed his third amended PCRA petition. The
Commonwealth then filed its response to Appellant’s third amended PCRA
(Footnote Continued Next Page)


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      We first address Appellant’s contention that Brown’s affidavit,10 dated

August 17, 2013, and received by Appellant on or around September 9,

2013, constituted a newly-discovered fact. That affidavit reads as follows:

      Three [] days after the murder of Officer James Naim[,] I was at
      Patrick Mastanico[’]s apartment along with [Aliquippa Police
      Officers] Sonya Carter, Tommy Lemon[,] and David Edgil . . .
      Tommy Lemon started [talking about] how he walked up behind
      [Officer] Naim and shot him in the back of his head and that
      when he went down he started kicking so he shot him again.
      And he was laughing about it. And started talking about how
      they (David Edgil [and] Tommy Lemon) [did] what they did
      because [] their jobs were on the line because [Officer] Naim
      was going to go and speak to some people about all the things
      going on in the Aliquippa Police Department. [T]hey were saying
      as to how they did it for all of their brother officers. And how
      they [planned] to put the blame on [Appellant] stating that
      [Appellant] told them that [there] was a hit list of cops because
      of a traffic stop they made on [Appellant] . . . Also how they
      could make people say what they wanted them to[] say. At that
      point[,] Tommy Lemon looked over at me[,] got up[,] walked
      over[,] patted me on my shoulder[,] and said anyone talks about
      this they are going away for a long time. Because he [realized] I
      was not a cop.

Appellant’s Third Amended PCRA Petition, 9/24/13, at Exhibit B.

      We conclude that Brown’s affidavit does not constitute a newly-

discovered fact.        We find instructive our Supreme Court’s decision in

Commonwealth v. Yarris, 731 A.2d 581 (Pa. 1999).              In Yarris, the


                       _______________________
(Footnote Continued)
petition. Appellant responded by filing a reply to the Commonwealth’s
response. That reply was filed without leave of court.

10
  Although titled an affidavit, Brown’s document is technically an unsworn
declaration. See 18 Pa.C.S.A. § 4904. For simplicity, we refer to the
document as an affidavit.



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petitioner sought to invoke the newly-discovered fact exception to the

PCRA’s timeliness requirement. He relied upon an affidavit by an individual

who said that she heard another individual, not the petitioner, confess to the

murder for which the petitioner had been convicted.       Our Supreme Court

held

       that the evidence which purportedly reveals that someone other
       than [the petitioner] committed the murder is hearsay, not
       within any exception, and so unreliable as to be inadmissible. A
       claim which rests exclusively upon inadmissible hearsay is not of
       a type that would implicate the [newly-discovered fact]
       exception to the timeliness requirement, nor would such a claim,
       even if timely, entitle [the petitioner] to relief under the PCRA.

Id. at 592.

       The alleged confession by Tommy Lemon is hearsay as it is an out-of-

court statement offered for the truth of the matter asserted. See Pa.R.Evid.

801(c).   Any argument that Tommy Lemon’s confession was a statement

against interest fails because “for this exception to apply, the declarant must

be unavailable as a witness, see Pa.R.Evid. 804(b), and [A]ppellant offers

no proof [Lemon] is not available. Therefore, [Brown’s affidavit] was

inadmissible hearsay and does not fall under [the newly-discovered fact]

timeliness exception.”    Commonwealth v. Abu-Jamal, 941 A.2d 1263,

1270 (Pa. 2008).

       Furthermore, Appellant failed to plead and prove that he acted with

due diligence in obtaining Brown’s affidavit.    To the contrary, Appellant’s

strategy at trial included an effort to present evidence that another Aliquippa



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police officer killed Officer Naim.   See Appellant’s Brief at 19; Trial Court

Opinion, 10/18/02, at 6-8. Thus, according to Appellant, he had reason to

believe prior to trial – over 13 years before the filing of the instant PCRA

petition – that an Aliquippa police officer killed Officer Naim. He therefore

had reason to investigate those officers to see if there was any evidence that

would support his theory.     Nowhere in Appellant’s PCRA petition does he

aver that he took action to investigate whether such evidence existed.

Instead, he merely stated in a conclusory fashion that he could not have

discovered the alleged confession until he received Brown’s affidavit. Thus,

even if Brown’s affidavit were a newly-discovered fact, Appellant failed to file

his PCRA petition within 60 days of when he could have discovered the fact

with the exercise of due diligence.

      We now turn to the affidavit from White, dated April 17, 2013, which

Appellant argues provides information which led to the discovery of a newly-

discovered fact. That affidavit reads as follows:

      To Whom It May Concern:

      I would like to inform you that there is a [wiretap] that indicates
      the person that killed the police officer [in the] Linmar [Housing
      Plan in] Aliquippa. I was asked about this when I was being
      interrogated on the [a]rmy [b]ase in Ft. Hood[,] Texas. I know
      that a [wiretap] do[es] exist that contains this information. The
      [t]ape has the voice of the killer that was bragging about what
      he did. I did not know anything about that misfortune at the
      time so I did not focus on what was being said to me. I just
      wanted to inform the courts that there is a tape that has the
      voice of a killer on it. I do not remember the names of the
      officers that shared bits of information with me about this case.
      Just want to help the courts find out the truth.


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Appellant’s Third Amended PCRA Petition, 9/24/13, at Exhibit A.

      Appellant states that after receiving White’s affidavit, he undertook a

thorough investigation which included obtaining the transcripts from White’s

criminal trial in 2003 in the Court of Common Pleas of Beaver County. He

avers that he read the transcripts of White’s trial and learned that the

wiretap conversations that she referenced in her 2013 affidavit contained

exculpatory material. At the outset, we note that White’s affidavit itself is

not a newly-discovered fact. Our Supreme Court addressed a situation like

the one in the case sub judice in Commonwealth v. Castro, 93 A.3d 818

(Pa. 2014).   In Castro, the petitioner relied upon a newspaper article to

establish the newly-discovered fact exception to the PCRA’s timeliness

requirement. Our Supreme Court held that a newspaper “article contain[ed]

allegations that suggest such evidence may exist, but allegations in the

media, whether true or false, are no more evidence than allegations in any

other out-of-court situation.” Id. at 825.

      In this case, White’s affidavit does not set forth who made the

statements on the wiretaps nor does it set forth the name of the officers who

played the wiretaps for White. The affidavit states that the wiretaps had the

voice of a killer; however, it fails to aver that the voice heard on the wiretap

was not Appellant’s voice.        Instead, the affidavit merely references

exculpatory wiretaps that may exist. This is similar to Castro in which the

newspaper article referenced a possible video tape that could be evidence.


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See id. at 827. Thus, there is no fact within the affidavit, only information

which could lead Appellant to discover facts.

      We thus turn to whether Appellant pled and proved the existence of a

newly-discovered fact as a result of White’s affidavit.       Appellant used

White’s affidavit to locate transcripts which referenced wiretaps played at

White’s trial.   Appellant’s Third Amended PCRA Petition, 9/24/13, at 9

(Subsequent investigation included “obtaining the complete transcripts from

[] White’s criminal trial.”).   Appellant did not attach to his third amended

PCRA petition any transcript which included the actual conversations from

the wiretap interception. Instead, he stated that the wiretap conversations

“contain extensive dialogue between several individuals (both known and

unknown to [Appellant]), as well as graphic, exculpatory discussion[s]

concerning the March 15, 2001 shooting of Officer Naim.” Id.11



11
    Appellant averred, in a supplement filed without leave of court, that at
White’s suppression hearing, the Commonwealth’s attorney stated that the
wiretap conversations included discussions regarding Officer Naim’s murder.
The Commonwealth counters that this averment was insufficient to plead
and prove the existence of the wiretaps. This argument is disingenuous.
The Commonwealth is fully aware now, as it was at the time of Appellant’s
trial, that the wiretap exists, that there were tapes of the wiretap and that
there were transcripts of the wiretap tapes. Senior Deputy Attorney General
Linda H. Barr represented the Commonwealth at White’s trial as well as at
Appellant’s trial. See, e.g., N.T., 4/29/02, at 2 (listing Linda H. Barr as
appearing on behalf of the Commonwealth); Appellant’s Reply to
Commonwealth’s Response to Third Amended PCRA Petition, 1/9/14, at
Exhibit C.1 (copy of notes of testimony from White’s trial listing Linda H.
Barr as appearing on behalf of the Commonwealth).




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      In order to determine whether Appellant pled and proved the existence

of a newly-discovered fact, we must first consider whether Appellant

properly supplemented his third amended PCRA petition.           As   part    of   his

third amended petition, Appellant sought permission to further amend

and/or supplement his petition if necessary.          Appellant’s Third Amended

PCRA Petition, 9/24/13, at 21.      As noted above, after the Commonwealth

filed its response, Appellant filed a reply to the Commonwealth’s response.

Contained within that reply was a supplement to his third amended PCRA

petition. This reply/supplement was filed without leave of court.

      Pennsylvania Rule of Criminal Procedure 902 provides, in relevant

part, that the petitioner “shall attach to the petition any affidavits, records,

documents, or other evidence which show the facts stated in support of the

grounds for relief, or the petition shall state why they are not attached.”

Pa.R.Crim.P. 902(D). Furthermore, Pennsylvania Rule of Criminal Procedure

905 provides, in relevant part, that the PCRA court “may grant leave to

amend or withdraw a petition for post-conviction collateral relief at any time.

Amendment     shall   be   freely   allowed    to   achieve   substantial    justice.”

Pa.R.Crim.P. 905(A).

      This Court has considered this issue before.        In Commonwealth v.

Boyd, 835 A.2d 812 (Pa. Super. 2003), the petitioner filed a supplement

without leave of court. The PCRA court did not strike the supplement and

considered the supplement when it addressed the petitioner’s arguments.



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This Court held that by failing to strike the supplement and addressing it

when it ruled on the petition, the PCRA court implicitly permitted

amendment under Rule 905(A). Id. at 816. Thus, when a petitioner files

supplemental materials to a PCRA petition, and the PCRA court considers

such materials, an attempt by the Commonwealth to preclude consideration

of such materials fails. Id.; Commonwealth v. Dennis, 950 A.2d 945, 959

n.11 (Pa. 2008).12

     We     conclude    that   the    PCRA    court   accepted    Appellant’s

reply/supplement. The PCRA court did not strike the filing. The PCRA court


12
    Our Supreme Court “has condemned the unauthorized filing of
supplements and amendments to PCRA petitions, and held that claims raised
in such supplements are subject to waiver.” Commonwealth v. Reid, 99
A.3d 470, 484 (Pa. 2014) (collecting cases). In Reid, our Supreme Court
found issues raised in supplements filed without leave of court to be waived.
Id. The finding of waiver in Reid, however, is consistent with Boyd and
Dennis. Specifically, in Reid there is no evidence the PCRA court addressed
the supplemental claims until four years after the notice of appeal was filed.
Reid, 99 A.3d at 483-484. On the other hand, in Boyd, Dennis, and the
case sub judice the PCRA court considered the supplemental materials prior
to dismissing the petition. See Dennis, 950 A.2d at 959 n.11; Boyd, 835
A.2d at 816; Rule 907 Notice, 7/15/14, at 1.

Our Supreme Court’s decision in Commonwealth v. Mason, 2015 WL
9485173 (Pa. Dec. 29, 2015), is also distinguishable from the case at bar.
In Mason, our Supreme Court concluded that the PCRA court did not intend
to allow supplementation, rather counsel’s misrepresentations to the PCRA
court resulted in such consideration. Id. at *13. Thus, it found that the
claims raised in the petitioner’s supplement were not implicitly accepted by
the PCRA court. See id.

Furthermore, in both Reid and Mason the issue was the addition of
supplemental claims.      In this case, there were no claims added by
Appellant’s supplement. Instead, Appellant only sought to supplement the
record for claims that had been properly pled in the amended PCRA petition.



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also considered the merits of Appellant’s reply/supplement. In its Rule 907

notice, the PCRA court began by stating, “Upon review and consideration of

[Appellant’s t]hird pro se PCRA [p]etition, as well as his [a]mendment

thereto, the Commonwealth’s [m]emorandum in response to [Appellant’s]

third    amended    PCRA   [p]etition,     the   [Appellant]’s   [r]eply   to     the

Commonwealth’s [r]esponse . . .”         Rule 907 Notice, 7/15/14, at 1.        Thus,

like in Boyd, we conclude that the PCRA court implicitly allowed Appellant to

supplement his third amended PCRA petition with the January 9, 2014 filing.

Therefore, we must consider not only Appellant’s amended petition filed on

September 24, 2013, but also the supplemental materials filed on January 9,

2014.

        In those supplemental materials, Appellant attached transcripts from

White’s criminal proceedings. The first transcript is from White’s January 11,

2003 suppression hearing.        That transcript revealed that this Court

authorized three wiretap orders, although the details of those orders are not

clear from the January 11, 2003 transcript. The second transcript is from

White’s suppression hearing on February 24, 2003. In that transcript, the

Commonwealth’s attorney stated “There were conversations over that

wiretap talking about the murder of Officer Naim[.]”         Appellant’s Reply to

Commonwealth’s Response to Third Amended PCRA Petition, 1/9/14, at

Exhibit B.3. The third transcript is from White’s jury trial held on March 6,

2003.      That transcript includes an index listing 13 tapes of wiretap



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communications entered into evidence at White’s trial, along with the

associated transcripts.   Id. at Exhibit C.3.    That transcript also contains

summaries of two conversations intercepted by the wiretap which discuss

Officer Naim’s death. Id. at C.5.

      Contrary to the Commonwealth’s argument, the recordings may be

admissible as statements against interest (or as non-hearsay). A statement

against interest is a statement

      a reasonable person in the declarant's position would have made
      only if the person believed it to be true because, when made, it
      was so contrary to the declarant’s proprietary or pecuniary
      interest or had so great a tendency to invalidate the declarant’s
      claim against someone else or to expose the declarant to civil or
      criminal liability; and [] is supported by corroborating
      circumstances that clearly indicate its trustworthiness, if it is
      offered in a criminal case as one that tends to expose the
      declarant to criminal liability.

Pa.R.Evid. 804(b)(2).     Such a statement is admissible if the declarant is

unavailable. See Pa.R.Evid. 804(a).

      The Commonwealth contends that Appellant failed to plead and prove

that the declarant was unavailable.          In order for a declarant to be

unavailable for the purposes of Rule 804, Appellant must plead and prove

that the declarant “is absent from the trial or hearing and [Appellant] has

not been able, by process or other reasonable means, to procure . . . the

declarant's attendance or testimony[.]” Pa.R.Evid. 804(a)(5)(B). Appellant

pled that he did not know the identity of individuals who made statements




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on the wiretaps and, ipso facto, Appellant was unable to procure the

declarant’s testimony through reasonable means.

      We find this situation distinguishable from Yarris and Abu-Jamal,

discussed supra, and Appellant’s claim relating to Brown’s affidavit.13     In

Yarris and Abu-Jamal, along with Appellant’s claim relating to Brown’s

affidavit, the only proof of the alleged confessions was an affidavit by a

third-party.   Compare that with Appellant’s argument related to White’s

affidavit, which contained information that could lead to a recording of the

communications regarding Officer Naim’s murder.          A recording from a

wiretap may be more trustworthy than an oral statement overheard by a

third-party.   Without more context of the wiretap interceptions, it is

impossible to determine if the statements contained in the wiretap were

reliable under Rule 804(b)(2).    The conversations may have details which

would indicate the statements regarding Officer Naim’s murder are reliable.

There is some support for this theory – and that comes from a statement

made by the Commonwealth’s attorney.          The Commonwealth’s attorney

noted that they arrested White and her co-conspirators after the wiretap

conversations regarding Officer Naim’s murder because things were getting

too dangerous.    See Appellant’s Reply to Commonwealth’s Response to

13
   As discussed infra, the situation surrounding White’s affidavit also differs
from the situation regarding Brown’s affidavit because there is a genuine
issue of material fact related to whether Appellant acted with due diligence
in discovering the existence of the wiretap transcripts while, for the reasons
stated supra, there is no such dispute as it relates to Brown’s affidavit.



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Third Amended PCRA Petition, 1/9/14, at Exhibit B.3.               Common sense

dictates that the Commonwealth wouldn’t take such action unless it believed

that the conversations were reliable.       Thus, we conclude that there is a

genuine issue of material fact as to whether the wiretaps would be

admissible evidence, and therefore could be used to satisfy the newly-

discovered fact exception to the PCRA’s timeliness requirement.

      The Commonwealth contends that the wiretap tapes and transcripts

are merely a new conduit to support Appellant’s claim that another individual

killed Officer Naim. Cf. Commonwealth v. Johnston, 42 A.3d 1120, 1128

(Pa. Super. 2012) (a new conduit is not a newly-discovered fact for the

purposes of the PCRA’s timeliness exception). This argument fails, however,

for two reasons. First, the wiretaps are not a new conduit because they are

contemporaneous recordings, made prior to Appellant’s trial. Thus, they are

different than a new witness – appearing years after a judgment of sentence

becomes final – providing an affidavit or testimony. Second, Appellant is not

using the wiretaps as a new conduit to argue that another individual killed

Officer Naim. Instead, Appellant is using the existence of the wiretap tapes

and transcripts to support his claim that the Commonwealth violated Brady

by withholding this evidence.       Thus, the wiretap tapes and transcripts are

not a new conduit.      The averments in Appellant’s third amended PCRA

petition,   combined   with   the    transcripts   attached   to   his   January   9




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J-S04022-16


supplement, are sufficient to raise a genuine issue of material fact as to

whether he pled and proved the existence of a newly-discovered fact.

       The Commonwealth next argues, in a conclusory fashion, that

Appellant failed to plead and prove that he presented his claim within 60

days of when he could have discovered the existence of the wiretap tapes

and transcripts with the exercise of due diligence.      It is undisputed that

Appellant filed his third PCRA petition within 60 days of receiving White’s

affidavit. Thus, the question is whether Appellant acted with due diligence in

seeking out the tapes and transcripts.        This Court has held “that due

diligence requires neither perfect vigilance nor punctilious care, but rather it

requires reasonable efforts by a petitioner, based on the particular

circumstances, to uncover facts that may support a claim for collateral

relief.”   Commonwealth v. Burton, 121 A.3d 1063, 1071 (Pa. Super.

2015) (en banc) (citations omitted).

       After careful examination of applicable case law, we conclude that

there is a genuine issue of material fact as to whether Appellant pled and

proved that he acted with due diligence. In this case, it is unclear whether

the wiretap tapes and transcripts are contained within White’s public case

file. In Burton, however, this Court held “that the presumption of access to

information available in the public domain does not apply where the

untimely PCRA petitioner is pro se.” Id. at 1073. Thus, whether the wiretap




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J-S04022-16


tapes and transcripts were located in White’s public court record is not

dispositive as to whether Appellant acted with due diligence.

      We find instructive Commonwealth v. Davis, 86 A.3d 883, 888 (Pa.

Super. 2014).    In Davis, this Court concluded that the petitioner was not

required to search for transcripts, in unrelated case files, to exercise due

diligence when he did not know about the witness’ deal with the

Commonwealth. Davis, 86 A.3d at 890-891. In this case, White’s case was

unrelated to Appellant’s case and there is no evidence that Appellant should

have been searching White’s case file for evidence related to his case.

      We also find instructive Commonwealth v. Medina, 92 A.3d 1210

(Pa. Super. 2014) (en banc), appeal granted, 105 A.3d 658 (Pa. 2014). In

Medina, this Court held that a witness’ recantation was a newly-discovered

fact and that Medina acted with due diligence in learning about the

recantation.   In so holding, the en banc Court relied on the fact that the

petitioner was not at the scene of the crime and, thus, had no way of

knowing whether the witness’ trial testimony was truthful.      Id. at 1217,

citing Commonwealth v. Loner, 836 A.2d 125, 137 n.5 (Pa. Super. 2003)

(en banc ). Furthermore, Medina was unaware of the police coercion that

led to the witness’ testimony. We find this analogous to the case at bar in

which, according to the evidence of record and Appellant’s averments,

Appellant was not at the scene of the conversations recorded over the

wiretap. Furthermore, there is no evidence of record that Appellant, or any



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J-S04022-16


of his representatives, were present during White’s questioning in Texas or

during White’s criminal trial in Pennsylvania. Accordingly, we conclude that

there is a genuine issue of material fact as to whether Appellant pled and

proved that he acted with due diligence in seeking out and finding the

wiretap tapes and transcripts.      Appellant is entitled to a hearing on this

claim.   See Pa.R.Crim.P. 907(1) and cmt. (authorizing summary dismissal

only where, inter alia, there is no genuine issue as to any fact relating to a

claim set forth in the petition).

      The PCRA court, in dismissing Appellant’s petition, found that the

statements referred to by White in her affidavit, and referenced by Appellant

in his third amended PCRA petition, were made by Appellant’s co-defendant

to police. Rule 907 Notice, 7/15/15, at 3. There is simply no evidence in

the record to support this finding by the PCRA court.     Evidence may exist

which supports the PCRA court’s finding; however, that evidence is not of

record in this case. The Commonwealth failed to submit such evidence as

part of its response to Appellant’s third amended PCRA petition and the

PCRA court did not hold a hearing to admit said evidence. Thus, the PCRA

court’s finding that the statement referenced in White’s affidavit was

Appellant’s co-defendant’s statement to police is unsupported by the record

and cannot serve as the basis for dismissal of Appellant’s third amended

PCRA petition.




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J-S04022-16


      To be clear, we do not hold that Appellant has satisfied his burden of

pleading and proving the applicability of the newly-discovered fact exception

to the PCRA’s timeliness requirement.         Instead, we hold that Appellant’s

PCRA petition, along with the Commonwealth’s response, and Appellant’s

reply, presents a genuine issue of material fact as to whether Appellant

acted with due diligence in discovering the wiretap tapes and transcripts. If

Appellant did act with due diligence, and the PCRA court concludes that the

statements on the wiretap are admissible evidence, then Appellant has pled

and proved the applicability of the newly-discovered fact exception to the

PCRA’s timeliness requirement. If Appellant has in fact pled and proved the

applicability of the newly-discovered fact exception, the PCRA court

possesses jurisdiction to consider the merits of Appellant’s claims that relate

to these newly-discovered facts.14

      In his final issue, Appellant argues that the PCRA court erred by failing

to rule on his request for limited discovery. We conclude that this issue is

not ripe for disposition. If the PCRA court has jurisdiction over the merits of

Appellant’s petition, limited discovery may be appropriate.       On the other

hand, if the PCRA court lacks jurisdiction to consider the merits of

Appellant’s petition, limited discovery would be unnecessary. We leave it to


14
   Even if the PCRA court possesses jurisdiction over the claims arising from
White’s affidavit and the resulting wiretap tapes and transcripts, for the
reasons set forth above, the PCRA court lacks jurisdiction over any claim
arising from Brown’s affidavit.



                                     - 28 -
J-S04022-16


the PCRA court to determine if limited discovery is necessary after

determining if it possesses jurisdiction over the merits of Appellant’s third

amended PCRA petition.

      In sum, we conclude that the PCRA court did not abuse its discretion in

denying Appellant’s motion to disqualify the OAG and his motion for recusal.

Appellant’s petition was patently untimely; however, there is a genuine issue

of material fact as to whether Appellant pled and proved the applicability of

the PCRA’s newly-discovered fact exception. We deem Appellant’s last issue

not ripe for disposition.   Accordingly, we affirm the PCRA court’s orders

denying Appellant’s motions for recusal and disqualification. We affirm the

PCRA court’s order that it lacks jurisdiction over any claim raised in

Appellant’s third amended PCRA petition relating to Brown’s affidavit.     We

vacate the trial court’s dismissal of the portions of Appellant’s third amended

PCRA petition that relate to the wiretap tapes and transcripts, and remand

for appointment of counsel15 and an evidentiary hearing to determine if

Appellant has pled and proved the applicability of the newly-discovered fact

exception.




15
   See Pa.R.Crim.P. 904(D) (emphasis added) (“On a second or subsequent
petition, when an unrepresented defendant satisfies the judge that the
defendant is unable to afford or otherwise procure counsel, and an
evidentiary hearing is required . . . , the judge shall appoint counsel to
represent the defendant.”).




                                    - 29 -
J-S04022-16

      Order affirmed in part and vacated in part.      Case remanded.

Jurisdiction relinquished.

      Judge Bowes joins this Opinion.

      Judge Strassburger files a Concurring Opinion.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/24/2016




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