Com. v. Brown, T. ( 2018 )

J-S40030-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
TYREE J. BROWN :
: No. 2699 EDA 2017
Appellant
Appeal from the PCRA Order July 13, 2017
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0011343-2007
BEFORE: LAZARUS, J., DUBOW, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 12, 2018
Appellant, Tyree J. Brown, appeals pro se from the order dismissing his
second petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541–9546, as untimely. We affirm on the basis of the PCRA
court’s opinions.
In its opinions, the PCRA court aptly explains the factual and procedural
history of this case. (See PCRA Court Opinion, 12/15/17, at 1-8; PCRA Ct.
Op., 7/21/14, at 1-11). Therefore, we need not recount them at length here.
We note briefly for the convenience of the reader that on February 23,
2009, Appellant entered a counselled, negotiated guilty plea to third degree
murder and related offenses in connection with an armed robbery of a
convenience store perpetrated by Appellant and his co-conspirator on June
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S40030-18
25, 2007. During the course of the robbery Appellant wounded the store’s
owner with a sawed off shotgun. His co-conspirator killed a customer.
Appellant confessed to these crimes. The guilty plea avoided a mandatory
term of life imprisonment for second-degree murder. The court sentenced
Appellant to an aggregate term of not less than twenty-eight years’ nor more
than sixty years of incarceration in a state correctional institution.
Appellant’s judgment of sentence became final on March 25, 2009, thirty
days after the entry of his negotiated plea on February 23, 2009. Appellant
filed his first PCRA petition July 16, 2012, three years after his judgment of
sentence became final. The PCRA court dismissed the appeal, this Court
affirmed, and our Supreme Court denied allowance of appeal. (See PCRA Ct.
Op., 12/15/17, at 1-2). More than six years after his judgment of sentence
became final, Appellant filed the instant second PCRA petition, pro se, on
October 22, 2015. It was untimely by over six years.
Appellant raises eight questions on appeal.
[1.] Did [Appellant] request [ ] an appeal?
[2.] Was counsel ineffective for failing [to file a] requested
appeal?
[3.] Did trial counsel completely disregard his client’s
requested appeal?
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J-S40030-18
[4.] Did trial counsel completely disregard state and federal
requirements to file an Anders1 brief to be excused from
representation?
[5.] Did counsel just ignore his client’s constitutional right
to an appeal?
[6.] Since [counsel] was never properly excused from
record is it safe to say [he] still represent[s Appellant] client?
[7.] Did [Appellant] properly meet [exception] standards?
[8.] Did [Appellant] fall under the "public record"
standards?
(Appellant’s Brief, at 3).
On June 21, 2018, Appellant also filed a pro se application for relief,
citing Pennsylvania Rule of Appellate Procedure 2185, (Time for Serving and
Filing Briefs), and Pa.R.A.P. 2188, (Consequence of Failure to File Brief, and
Reproduced Records). Appellant asked this Court to bar the Commonwealth’s
brief, unless this Court gave it permission to proceed. (See Application
(Motion), 6/21/18). The Commonwealth served its brief, late after extensions,
on July 2, 2018.
Our standard and scope of review for PCRA claims are well-settled:
We review an order dismissing a petition under the PCRA in
the light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of record. We will not disturb a PCRA court’s ruling if it
____________________________________________
1 See Anders v. California, 386 U.S. 738 (1967). The brief that accompanies
court-appointed appellate counsel’s petition to withdraw from representation
is commonly referred to as an Anders brief. See Commonwealth v.
Santiago, 978 A.2d 349, 351 n.1 (Pa. 2009).
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J-S40030-18
is supported by evidence of record and is free of legal error. This
Court may affirm a PCRA court’s decision on any grounds if the
record supports it. We grant great deference to the factual
findings of the PCRA court and will not disturb those findings
unless they have no support in the record. However, we afford no
such deference to its legal conclusions. Further, where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review is plenary.
Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014) (citation
omitted). Additionally,
[T]he time limitations pursuant to . . . the PCRA are
jurisdictional. [Jurisdictional time] limitations are mandatory and
interpreted literally; thus, a court has no authority to extend filing
periods except as the statute permits. If the petition is
determined to be untimely, and no exception has been pled and
proven, the petition must be dismissed without a hearing because
Pennsylvania courts are without jurisdiction to consider the merits
of the petition.
Id. at 140–41 (citations omitted).
Here, after a thorough review of the record, the briefs of the parties,
the applicable law, and the well-reasoned opinions of the Honorable Leon W.
Tucker, we conclude that Appellant’s petition is untimely with no statutory
exception to the one-year PCRA time limit pleaded and proven. Accordingly,
we affirm on the basis of the trial court’s opinions.
Moreover, we note the confirmation by the PCRA court that Appellant’s
multiple claims of ineffective assistance and abandonment of trial counsel
were previously litigated in his 2014 appeal. (See PCRA Ct. Op., 12/15/17,
at 1-8; see also PCRA Ct. Op., 7/21/14, at 1-11).
Order affirmed. Motion to bar Commonwealth’s brief denied as moot.
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J-S40030-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/18
-5-
Circulated 08/21/2018 04:24 PM
3-2007 comm. v. Brown. Tyree J.
CP-51-CR.001134 Opinion
\\\\\\ \\\ \\\\\ \\\\\\\I
COMMONWEALTH COURT OF COMMON PLEAS
OF PENNSYLVANIA FIRST JUDICIAL DISTRICT
·V�''P�ED·
7176506151
v. CP-51-CR-0011343-2007
TYREE J. BROWN JUL 2:l 2014 SUPERIOR COURT No.
c·riminal Appeals Unit . 1228 EDA 2014
Firs�ie,Wistrict of PA
LEON W.TUCKER, J. DATE: July 21, 2014
I. PROCEDURAL HISTORY
This matter comes before the Superior Court of Pennsylvania on appeal from the
dismissal of Appellant Tyree Brown's (hereinafter referred to as "Brown") pro se Post-
Conviction Relief Act Petition (hereinafter referred to as "PCRA Petition").'
On February 23, 2009, pursuant to negotiation between the parties, Brown pied guilty to
the following offenses: Murder of the Third Degree ("Murder"), 18 PA.C.S. § 2502(c); Robbery
- Threatening Serious Bodily Injury ("Robbery"), 18 PA.C.S. § 3701(a)(l)(ii); and Criminal
Conspiracy- Engaging in Murder of the Third Degree ("Conspiracy"), 18 PA.C.S. § 903(a)(l).
On February 23, 2009, the Court sentenced Brown to the following terms of incarceration:
twenty to forty (20-40) years incarceration for Murder, consecutive to eight to twenty (8-20)
years incarceration for Robbery to run concurrently with eight to twenty (8-20) years
incarceration for Conspiracy. Brown was represented by Danie] Stevenson, Esquire at trial.
Because Brown did not file a post-sentence motion or notice of appeal, his sentence became final
thirty days from sentencing, March 25, 2009. 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903.
Brown allegedly asked Trial Counsel to file an appeal on the date of his sentencing,
February 23, 2009. PCRA Pet at 2. Brown allegedly never heard from Trial Counsel and wrote a.
letter inquiring about the status of his appeal on March 25, 2009. Id. Attached to Brown's PCRA
Petition was a letter appearing to be from Brown to Trial Counsel. PCRA Pet. (Ex. A). Contrary
to his claim that he sent a letter March 25, 2009, the letter attached to his petition is dated March
5, 2009, and indicates that it was Brown's second letter to Trial Counsel although Brown's
Petition is silent regarding other letters. Id.
Approximately three years later, on March 19, 2012, Brown alleges that he wrote the
Superior Court of Pennsylvania to inquire about the status of his appeal. PCRA Pet. at 2. On June
4, 2012, Brown was allegedly informed by the Prothonotary's Office of the Superior Court that
they had no appeal on file. Id. Brown attached the alleged letter from the Prothonotary's Office I
to his Petition. PCRA Pet. (Ex. A).
On July 6, 2012, Brown untimely filed a prose PCRA Petition, therein asking the Court
to reinstate his appeal rights because Trial Counsel was ineffective and abandoned him because
counsel did not file Brown's requested appeal. Brown's sentence became final on March 25,
2009 as no motion or notice of appeal was filed. 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903. Brown
then had one year, until March 25, 2010, to file a PCRA Petition. 42 Pa.C.S. § 9545(b)(I). Thus,
Brown's pro se PCRA Petition on July 6, 2012 was more than two years after the statute of
limitations expired and more than three years after his sentence became final.
On August 9, 2012, Brown filed an untimely Motion to Amend his pro se PCRA
Petition, characterizing his claim as one upon which the facts were unknown to him and could
not have been ascertained by the exercise of due diligence. PCRA Pet. Amend. Brown further
claimed that since he was not aware of the facts until he received notice from the Prothonotary's
Office of the Superior Court on June 4, 2012, his claim was presented well within 60 days. Id.
On May 5, 2013, Brown was appointed PCRA Counsel, John P. Cotter, Esquire.
2
On September 24, 2013, PCRA Counsel, acting in accordance with Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988), filed a Motion to Withdraw as Counsel and a letter
stating that the issues raised in Brown's prose PCRA petition were meritless and that no issues
of arguable merit could be raised in a counseled petition.
On January 13, 2014, after conducting its own independent review of the record, this
Court agreed with PCRA Counsel and issued Notice of Intent to Dismiss pursuant. to Pa.
RiCrim.P, 907. Brown filed his response on February, 7, 2014. The Court formally dismissed
Brown's PCRA petition by order dated March 17, 2014 and granted PCRA Counsel leave to
withdraw from further representation of Brown.
On April 10, 2014, Brown timely filed a Notice of Appeal to the Superior Court. On
April 17, 2014, the Court ordered Brown to file a Concise Statement of Matters Complained of
pursuant to Pa.R.A.P. 1925(b) ("1925(b) Statement"). On May 7, 2014, Brown complied and
filed his 1925(b) Statement wherein stating the following claims of error:
I. The PCRA court erred in denying Appellant's PCRA petition without a hearing in light
of Martinez v. Ryan, 132 S.Ct. 1309 (2012) and Commonwealth v. Grant, 813 A.2d 726(Pa. Super. 2002).
2. PCRA counsel was ineffective in failing to properly investigate Appellant's issues and
file a proper amended petition to restore Appellant's direct appeal rights as required I
under the cases of Martinez and Grant.
3. Trial counsel was ineffective in failing to comply with Appellant's wishes to submit
reconsideration and/or direct appeal when inquired by trial court as to Appellant's
intentions to appeal in violation with the holding in Roe v. Flores-Ortega, 120 S.Ct. I 029
(2000).
4. Trial counsel was ineffective in waiving pre-sentence investigation report and depriving
trial court the opportunity to review and assess Appellant's prior record, characteristics,
etc. in consideration of sentencing where circumstances clearly depict no reasonably
competent' lawyer would have done so thus depriving Appellant of his entitlements under
U.S. CONST. amend. VI, XIV and Pa. Const. Art. 1 § 9.
3
5. Trial court erred in imposing 28-60 year term, where Appellant's ranking was a "2"
under the sentencing guidelines, where the sentence on such ranking was at 96 months,
and where the court failed to provide contemporaneous written statement of its reasons
for imposing a term exceeding the guidelines, violating the holding in Commonwealth v.
Mickell, 598 A.2d 1003 (Pa. Super. 1991).
6. PCRA court erred in accepting PCRA Counsel's "no merit" letter and failed to require
counsel to properly represent Appellant's issues as mandated in the case of Evitts v.
Lucey, 105 S.Ct. 830 (1985) and Commonwealth v. Priovolos, 746 A.2d 621 (Pa. Super.
2000).
II. Facts ,
The following facts were presented by the Commonwealth and admitted as true by
Brown in court. N.T. Trial (02/23/09) 14-18:
At approximately 1 :03AM on June 25, 2007, Brown and codefendant were outside a
local store. Id. at 14. Around the same time, Layee Bility, the victim, parked his car and entered
the store. Id. at 14-15. After watching Bility enter, Brown and codefendant decided to rob him.
Id. at 15. Codefendant had a revolver and Brown retrieved a sawed-off shotgun from around the
comer. Id.
Upon entering the store with their weapons, Brown and codefendant surrounded Bility
and Brown discharged his shotgun. Id. The blast pierced through plexiglass in the store and
injured the owner Lin Liu who was behind the glass. Id. at 15-16. The blast did not hit Bility, but
caused him to fall. Id. at 15. Codefendant subsequently fired into Bility's chest and twice into his
back. Id. at 16. Codefendant then left the store and Brown followed after. Id. Some proceeds
were taken from Bility's body, but some money was left on the ground nearby. Id. The incident
was captured on the store's video surveillance tape. Id.
Liu, the store owner, was able to identify the codefendant, who subsequently identified
Brown. Id. at 16. Brown gave a full confession to homicide detectives admitting his role in the
robbery, his possession of the shotgun, and that the shotgun discharged during the incident. Id. at
4
16-17. In exchange for Brown's admissions, the Commonwealth lowered the original charge
from Murder of the Second Degree to Murder of the Third Degree, Id. at 17. A discussion
ensues.
III. Legal Analysis
A. Brown has waived all issues not properly raised in his l 925(b) Statement.
It is well settled that when the trial court orders an appellant to submit a 1925(b)
Statement, it is a crucial component of the appellate process. Commonwealth v. Lord, 719 A.2d
306, 307 (Pa. 1998). Pa.R.A.P. 1925(b) requires that the statement of issues complained of shall
be concise and set forth only those rulings or errors that appellant intends to challenge.
Pa.R.A.P. 1925(b)( 4)(i). Issues not raised in accordance with the provisions of Pa.R.A.P. I 925(b)
are waived. Pa.R.A.P. 1925(b)(4)(vii).
it is also well settled that when the trial court orders an appellant to submit a 1925(b)
Statement, that statement must indicate, with specificity, the error to be addressed on appeal.
Commonwealth v. McCree, 857 A.2d 188, 192 (Pa. Super. Ct. 2004) (emphasis added).
Furthermore, even if by chance the trial court correctly guesses the issues the appellant raises on
appeal and writes an opinion pursuant to that supposition, the issues are still waived.
Commonwealth v. Heggins, 809 A.2d 908, 911 (Pa. Super. 2002).
Here, in his 1925(b) Statement, Brown did not raise any exceptions to the statute of
limitations contained in 42 Pa.CS. 9545(b). Therefore, all claims regarding the timeliness of
Brown's PCRA Petition are waived. 42 Pa. C.S. § 9545(b)(l). However, Brown did allege an
exception in his untimely Motion to Amend ·his PCRA Petition. The Court understanding that
Brown proceeds pro se, guessed that Brown intended to preserve the claimed exception on
appeal. This is not the Court's usual custom. Even if the Court properly guessed Brown's
5
claimed exception, it is waived on appeal for his failure to comply with Pa.R.A.P. 1925(b). Even
considering the claimed exception, Brown's raised issues are nonetheless without merit.
B. Brown's PCRA Petition is untimely without exception.
Under 42 Pa. CS. §9541 et seq., commonly known as the Post-Conviction Relief Act, a
petitioner must prove by a preponderance of the evidence that his allegations of error have not
been previously litigated or waived in order to be eligible for relief. 42 Pa. C.S. §9543(a)(3). In
addition, a PCRA petition, including a second or subsequent petition, must ordinarily be filed
within one year of the date the underlying judgment becomes final. 42 Pa. C.S. § 9545(b)(l). A
judgment is deemed 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 review." 42 Pa. C.S. § 9545(b)(3) ..
Here, Brown was sentenced on February 23, 2009. Because Brown did not file a post-
sentence motion or notice of appeal, his sentence became final thirty days from his hearing,
March 25, 2009. 42 Pa. C.S. § 9545(b)(3); Pa.R.A.P. 903. Brown filed his PCRA Petition on
July 6, 2012; over three (3) years after the date of finality. Brown's PCRA Petition is untimely
pursuant to 42 Pa.CS. § 9545(b)(J). Therefore Brown's PCRA claim is untimely.
Despite the one-year filing deadline, the PCRA permits the late filing of a petition where
a petitioner alleges and proves one of three nan-ow exceptions. 42 Pa. C.S. § 9545(b)(l)(i)-(iii).
A petitioner must plead these exceptions explicitly and satisfy the burden of proof; these
exceptions must be raised within sixty (60) days of the date the claim could have been presented.
Id. at§ 9545(b)(2). Outside of these narrow exceptions, Pennsylvania courts have no jurisdiction
to address the substantive merits of PCRA petitions that are untimely without exception.
Commonwealth v. Robinson, 837 A.2d 1157 (Pa. 2003); Commonwealth v. Gamboa-Taylor, 753
A.2d 780, 783 (Pa. 2000) ..
6
Here, Brown claims § 9545(b)(J)(ii) applies - "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." PCRA Pet. Amend. When establishing such a claim, a petitioner must take
reasonable steps to protect his own interests, and explain why he could not have obtained the
alleged new facts earlier to demonstrate due diligence. Commonwealth v. Monaco, 996 A.2d
1076, 1080 (Pa. Super. 2010) (internal citations omitted).
In his 1925(b) Statement, Brown claims that Trial Counsel was ineffective at trial and
abandoned him by not filing a direct appeal. 1925(b) Staement ,r,r 3-4. The Court assumes that
Brown intended to preserve the related issue that his ineffective assistance of counsel claim is
timely pursuant to the after-discovered evidence exception to the statute of limitations. PCRA
Pet. Amend.
Initially, the Court notes that, pursuant to 42 Pa. C.S. § 9545(b)(2), Brown has a burden
of proving that he raised his after-discovered evidence claim within sixty (60) days of the date
the alleged new facts were discovered. In regards to after-discovered evidence and claims of
counsel ineffectiveness, the Court in Commonwealth v. Carr, 768 A.2d 1164, 1165, 1167 (Pa.
Super. 2001), held that a defendant's recent discovery of Trial Counsel's failure to file a direct
appeal on his behalf, does not constitute after-discovered evidence, and that such claims cannot
be used to circumvent the PCRA's statutory time bar. Specifically, the petitioner in Carr argued,
as here, that Trial Counsel failed to file a requested direct appeal. Id. at 1166. In holding that
petitioner's claim did not qualify as after-discovered evidence, the Court stated that, absent a
showing of due diligence, "the mere discovery of trial counsel's failure to file a direct appeal,
after the one-year window to file a PCRA petition, does not place [the petitioner] under
7
subsection 9545(b)(l)(ii)." Id. at 1168. Accordingly, the PCRA Court in Carr Jacked jurisdiction
to entertain [the petitioner's] petition for relief." Id. at 1168.
First, Brown's claim is unavailing under Carr. Brown claims that his counsel was
ineffective for failing to file a direct appeal. Such a claim does not qualify under the after-
discovered evidence exception. Carr, 768 A.2d at 1168. The Court also observes that Brown
did not meet his burden of showing diligence in discovering that Trial Counsel was ineffective at
trial and did not file an appeal. Brown has failed to present to the Court any evidence of any
reason why, through the exercise of due diligence, the fact that counsel was ineffective at trial
and did not file an appeal was not discoverable to him in the three years between his sentencing
and PCRA Petition. Monaco, 996 A.2d at 1080.
Second, Brown did not meet his burden of showing that he raised his after-discovered
evidence claim within sixty (60) days of the date the alleged new facts were discovered. 42
Pa.C.S. § 9545(b)(2). Brown's initial PCRA Petition filed July 6, 2012 merely made a claim of
ineffective counsel. Brown did not characterize his claim as an after-discovered evidence claim
until he filed a Motion to Amend his original Petition on August 9, 2012. August 9, 2012 was 66
days from which Brown claims he first learned Trial Counsel abandoned him. PCRA Pet. Thus,
Brown has failed to meet the sixty (60) day timeliness requirement for his claim that Trial
Counsel ineffectiveness is after-discovered evidence. Without explanation or excuse, Brown
waited three years to write the Superior Court after Trial Counsel failed to respond to his letter.
Brown could have and should have inquired much sooner. Brown's claim of after-discovered
evidence fails.
C. Brown's claim that his sentence was improper is without merit.
Brown claims the trial court erred in imposing his sentence of 28-60 years where
Brown's "ranking was a 2 under the sentencing guidelines, where the sentence on such ranking
8
was at 96 months, and, where the court failed to provide contemporaneous written statement of
its reason(s) for imposing a term exceeding the guidelines" thus violating Commonwealth v.
Mickell, 598 A.2d 1003 (Pa. Super. 1991). 1925(b) Statement ,i 5.
In reviewing Brown's untimely PCRA Petition and his Motion to Amend, the Court finds
that Brown raised the claim of illegal sentence for the first time in his 1925(b) Statement. Id.;
PCRA Pet.; PCRA Pet. Amend. Therefore, pursuant to Pa.R.A.P. 302(a), issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.
Brown's claim of illegality of sentence is also untimely. He has not alleged or attempted
to prove any§ 9545(b)(l) exceptions to the one-year deadline for this claim. PCRA Pet; 1925(b)
Statement. The claim is therefore also time-barred and without merit.
While not required to do so, the Court reviewed Brown's claim and determined his
sentence was proper. Brown's prior record score was "2," but his offense gravity score was "14"
for Murder in the Third Degree pursuant to 204 Pa. Code § 303.15. Brown's claim that the
maximum sentence allowed was 96 months is incorrect. According to the sentencing matrix in
204 Pa. Code§ 303.16(a), a prior record score of"2" and an offense gravity score of "14" has a
96-year statutory limit. Therefore, Brown's sentence of 28-60 years was proper as it is well
below the 96-year statutory limit.
D. PCRA Counsel properly and effectively investigated Brown's PCRA petition.
Brown claims PCRA counsel was ineffective in failing to properly investigate Brown's
issues and file a properly amended petition as required under Martinez v. Ryan, 132 S.Ct. 1309(2012) and Commonwealth v. Grant, 813 A.2d 726 (Pa. Super. 2002). 1925(b) Statement ,i 2.
Brown also claims the PCRA court erred in accepting PCRA Counsel's "no merit" letter and
9
failing to require Counsel to properly represent Brown as mandated by Evitts v. Lucey, 105 S.Ct.
830 (1985) and Commonwealth v. Priovolos, 746 A.2d 621 (Pa. Super. 2000). 1925(b) Statement
A PCRA petitioner is entitled to have counsel appointed on a first PCRA Petition to make
a determination as to whether the claim has merit. Commonwealth v. Ferguson, 722 A.2d 177(Pa. Super. Ct. 1998). Pursuant to Finley, 550 A.2d 213, and Commonwealth v. Turner, 544
A.2d 927 (Pa. Super. Ct. 1988), if, after due investigation, appointed PCRA counsel believes that
no merit for any PCRA claim exists, counsel may petition to withdraw his appearance.
Upon independent review, if the Court agrees that PCRA counsel has satisfied the
requirements laid out in Finley concerning counsel's review of the file, and agrees with the
conclusion that no merit exists as to the issues raised in the prose PCRA Petition, the court may
permit PCRA counsel to withdraw and dismiss the petition without a hearing. Commonwealth v.
Glover, 738 A.2d 397, 420 (Pa.Super. Ct. 1999).
Here, after conducting its own review of the record, the Court agreed with PCRA
Counsel and found the issues raised in Brown's pro se PCRA Petition to be without merit
because the sentence given was legal and Brown's PCRA was untimely. Therefore, the Court
properly dismissed Brown's prose PCRA Petition and granted appointed PCRA counsel leave to
withdraw.
E. The Court properly dismissed the action without holding an evidentiary
hearing.
Brown argues that he was entitled to an evidentiary hearing in light of Martinez v. Ryan,
132 S.Ct. 1309 (2012) and Commonwealth v. Grant, 813 A.2d 726 (Pa. Super. 2002). 1925(b)
Statement � 1.
10
Under the Pennsylvania Rules of Criminal Procedure, a trial court may dismiss a PCRA
petition without a hearing only if the Court determines that there are no genuine issues of
material fact and that the defendant is not entitled to post-conviction collateral relief, and no
purpose would be served by any further proceedings. Pa.R.Crim.P. 907. There is no absolute
right to an evidentiary hearing on a PCRA petition. Commonwealth v. Jones, 942 A.2d 903, 906
(Pa. Super. 2008). Here, the Court determined that there are not genuine issues of material fact;
Brown's claims are time-barred. There is no dispute of fact regarding the untimeliness of
Brown's PCRA Petition. Brown is not entitled to post-conviction collateral relief.
IV. Conclusion
Brown has waived numerous claims in his 1925(b) Statement by raising them for the first
time on appeal or by not alleging exceptions to the statute of limitations. Despite waiving most
of them, the Court found Brown's claims to be without merit nonetheless. Upon independent
review of the record, this Court agreed with appointed PCRA counsel that Brown's prose PCRA
Petition lacked merit. As no issues of material facts existed, no evidentiary hearing was required.
This Cami's ruling should stand.
11
COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
CRIMINAL TRIAL DIVISION
COMMONWEALTH V. TYREE BROWN, CP-51-CR- 0011343-2007, 1228 EDA 2014
Opinion
PROOF OF SERVICE
I hereby certify that I am this day serving the foregoing Court Order upon the person(s)
and in the manner indicated below, which service satisfies the requirements of PA.R.CRIM.P.
114:
Defense Counsel/Party: John P. Cotter, Esquire
2541 S. Broad Street
Philadelphia, Pa 19148
Type of Service: ( ) Personal ( X ) First Class Mail ( ) Other
District Attorney: Hugh Bums, Jr., Esquire
PCRA Unit, District Attorney's Office
Widener Building
3 South Penn Sq.
Philadelphia, PA 19107
Type of Service: ( ) Personal ( X) First Class Mail ( ) Other
Petitioner: Mr. Tyree Brown
HY-1394
SCI Forest
PO Box 945
Marienville, PA 16239-0307
Type of Service: ( ) Personal ( ) First Class Mail ( X ) Certified Mail
Dated: /' /2 I/ f l-/
12
Circulated 08/21/2018 04:24 PM
Received
COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY DEC 15 2017
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA Office of Judicial Records
CRIMINAL TRIAL DIVISION Appeal�ost Trial
COMMONWEALTH OF PENNSYLVANIA
Superior Court No.
v. 2699 EDA 2017
TYREE BROWN CP-51-CR-OO 11343-2007
This appeal comes before the Superior Court following the dismissal of a Post Conviction
Relief Act1 ("PCRA") petition filed on October 22, 2015 by Tyree J. Brown (hereinafter
"Petitioner").
I. Procedural History
On February 23, 2009, pursuant to negotiation between the parties, Petitioner entered a
guilty plea on the charges of third degree murder2, robbery', and criminal conspiracy". On
February 23, 2009, this court sentenced Petitioner to twenty to forty (20-40) years
incarceration for murder, consecutive to eight to twenty (8-20) years incarceration for
robbery to run concurrently with eight t� twenty (8-20) years incarceration for conspiracy.
Petitioner did not file any post-sentence motions or appeal his judgment of sentence thus
Petitioner's sentence became final on March 25, 2009, thirty (30) days after sentencing.5
On July 16, 2012, three years after his judgment of sentence became final, Petitioner filed
his first PCRA petition claiming ineffective assistance of trial counsel. On January 13, 2014,
CP-51-CR-0011343·2007 Comm. v. Brown. Tyree J.
Opirueo
142 Pa. C.S. §§ 9541-9546 (West 2016).
IIIII II IIII IIIII I I IIIIII
2
18 Pa. C.S. § 2502(c) (West 2016).
3
18 Pa. C.S. § 3701(a)(l)(ii) (West 2016).
4 80.44354661
18 Pa. C.S. § 903(a)(l) (West 2016.)
5
42 Pa. C.S. § 9545 (b)(3); Pa. R.A.P. 903 (West 2016).
the Honorable Judge Leon W. Tucker issued a "notice of intent to dismiss" ("907 notice")
pursuant to Pa. R. Crim. P. Rule 907. The PCRA court formally dismissed the petition on
March 17, 2014. The Superior Court of Pen�sylvania affirmed the denial of the PCRA
petition on February 13, 2015. Commonwealth 11. Brown, 120 A.3d 381 (Pa. Super2014). On
January 30, 2015 the Pennsylvania Supreme Court denied a petition for allowance of appeal.
Commonwealth v. Brown, 117 A.3d 1280 (Pa. 20 I 5).
The Petitioner filed the instant untimely prose PCRA, his second, on October 22, 20 I 5.
Petitioner subsequently filed two amended PCRA petitions on January 14, 2016, and July 20,
2016. The court issued a 907 notice on May 31, 2017, and formally dismissed the petition as
untimely on July 13, 20 I 7.
On August I 0, 2017, Petitioner filed a Notice of Appeal to the Superior Court of
Pennsylvania. On September 6, 2017 the court ordered Petitioner to file a Concise Statement of
Matters Complained of On Appeal ("1925(b) Statement") pursuant to Pa.R.A.P. J925(b). On
September l 9, 2017, Petitioner complied and filed his 1925(b) Statement wherein stating the
following claims of error verbatim:
I. PCRA and Sentencing court failed to acknowledge petitioner falls under the
exception of9545(b)(l)(ii) due to him being abandoned by trial counsel. Finding that
counsel's "Abandonment" can be a newly discovered fact for purposes of timeliness
exception.
2. Sentencing judge failed to acknowledge that petitioner was clearly abandoned in the
most crucial phase of a possible appeal when petitioner clearly asked for an appeal on
his behalf in open court.
3. Sentencing judge failed to order counsel to file Ander's Brief before he could
officially be dismissed from representation of the petitioner.
4. Sentencing judge failed to protect petitioner from excepting [sic] an illegal negotiated
plea where the sentence of CRIMINAL CONSPIRACY and 3rt1 DECREE
MURDER should have merged for sentencing instead of being ran consecutive.
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5. Sentencing judge, counsel, or district attorney failed to explain the elements of the
charges that it is impossible to commit CRIMINAL CONSPIRACY to commit 3rd
DEGREE MURDER. And Commonwealth must prove that petitioner conspired to
commit an unintentional act.
6. Double jeopardy is prohibited by the U.S. constitution [sic]. The Supreme court [sic]
has held that the Double Jeopardy clause protects against multiple punishments for
the same offense. Petitioner is being punished for 3rt1 DEGREE MURDER and also
for CRIMINAL CONSPIRACY, ROBBERY [sic] ·
7. Counsel failed to properly investigate a more considerable plea where the petitioner
had a prior record score ofa (2) and a gravity score of a (14). And is now sentenced
in the (REYOC) repeated violent offender category.
8. Counsel Ineffective for failing to submit requested appeal when petitioner clearly
wanted to exercise his right to do so.
9. PCRA counsel Ineffective for failing to argue that sentencing counsels actions were
so unreasonable that no competent attorney would have chosen it, and that the
timeliness of the petition should have been challenged.
I 0. Petitioner had no reason to believe he was abandoned the counsel who was suppose
[sic] to be protecting his constitutional right to an appeal. And petitioner has no
access to "Public Records" to learn of it.
11. Evidentiary hearing should be granted to establish on record if petitioners right to
appeal was unlawfully violated by counsel. And should they be reinstated NUNC
PRO TUNC.
II. Discussion
The PCRA court properly dismissed Petitioner's "Petition for Post Conviction Collateral
Relief' as it was untimely filed without exception and this court was without jurisdiction to
make a determination on the merits of the claim.
Under 42 Pa. Cons. Stat. §§ 9541-9546, commonly known as the Post Conviction Relief Act,
a petitioner is required to plead and prove by a preponderance of the evidence that he was
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convicted or sentenced as a result of one of the grounds enumerated in subsection (a)(2) to obtai.n
post-conviction relief. 42 Pa. C.S. § 9543(a)(2). He must also prove the claimed errors were not
previously litigated or waived and "the failure to litigate. the issue prior to or during trial, ... or
on direct appeal could not have been the result of any rational, strategic or tactical decision by
counsel." Id. § 9543(a)(4). An issue is considered previously litigated 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." Id. § 9544(a)(2). An issue is considered 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 post
conviction proceeding." Id. § 9544(b).
A. The PCRA Court was without jurisdiction to make a determination on the
merits of the PCRA petition because it was manifestly untimely without
exception.
A petitioner must file a PCRA petition, including second and subsequent petitions, within
one year of the date when the judgment becomes final. 42 Pa. C.S. § 9545(b). A judgment is
considered final at the close of direct review or when the time to seek review expires. Id. §
9545(b)(3). There are three exceptions to the one-year time limitation:
(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.
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Id. § 9545(b)(l ). Pennsylvania courts have no jurisdiction to address the substantive merits of
PCRA petitions that are untimely without exception. See e.g. Commonwealth. v. Robinson, 837
A.2d 1157, I 163 (Pa. 2003); Commonwealth v. /-la/I, 771 A.2d 1232, 1234 (Pa. 200 I)
("Pennsylvania courts lack jurisdiction to entertain untimely PCRA petitions.'} Even if the
petitioner is serving an illegal sentence, which is reviewable under the PCRA, his claim is still
subject to the time limitations under the PCRA. Commonwealth v. Fahy, 73 7 A.2d 214, 223 (Pa.
1999).
Petitioner's judgment of sentence became final March 25,. 2009, thirty (30) days after the
entry of his negotiated guilty plea on February 23, 2009. The instant petition, Petitioner's second,
filed October 22, 2015, was manifestly untimely by approximately six (6) years.
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l. Petitioner has failed to establish a timeliness exception for his untimely
petition.
Petitioner attempts to establish an exception for his untimely petition under the "newly
discovered fact" exception of the PCRA. Petitioner contends the PCRA and sentencing courts
failed to acknowledge abandonment by counsel was a newly-discovered fact for the purposes of
the timeliness exception. (1925(b) Statement 1 1 ); 42 Pa. C.S. § 9545(b)(l )(ii). However,
Petitioner previously argued this precise issue on appeal of his first PCRA petition in 2014.
To be eligible for post-conviction relief, the petitioner must establish that his claims have
not been previously litigated or waived. id. 9543 § (a)(3). An issue has been previously litigated
when "it has been raised and decided in a proceeding collaterallyattacking the conviction or
sentence." Id. 9544 § (a)(3).
Petitioner's claim of abandonment of trial counsel was previously litigated in his first
PCRA petition in 2014 and the Superior Court affirmed the dismissal of this exact claim. The
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PCRA court found that: 1. Petitioner's claim of ineffective assistance of counsel for failure to file
a direct appeal on Petitioner's behalf did not constitute a newly-discovered fact for the purposes
of circumventing the PCRA statutory time bar; and 2. Petitioner did not meet his burden of
showing that he raised the newly-discovered fact within sixty (60) days of the date the alleged
new facts were discovered as required by§ 9545(b)(l )(ii). Commonwealth of Pennsylvania v.
Tyree Brown, 2014 Trial Court Opinion at 6-7. Thus, Petitioner does not meet the newly-
discovered fact exception for the purposes of circumventing the PCRA statutory time-bar.
Additionally, Petitioner's multiple claims of ineffective assistance and abandonment of
trial counsel in his f92S(b) Statement were previously litigated in his 2014 appeal. ( 1925(b)
Staternent j'[ I, 2, and 8.) Therefore, pursuant to the PCRA, Petitioner is ineligible for relief on
his previously litigated claims. 42 Pa. C.S. § 9543(a)(3).
2. The remainder of Petitioner's claims arc untimely without exception and
waived.
The remainder of Petitioner's claims, �13-7 and 9-10 are untimely without exception and
waived. (I 92S(b) Statement). In addition to the specific rules on waiver under the PCRA,
petitioners must also comply with the Pennsylvania Rules of Appellate Procedure. Specifically
"issues not raised in the lower court are waived and cannot be raised for the first time on appeal."
Pa. R.A.P. 302(a).
In reviewing Petitioner's untimely PCR.A petition and subsequent motions to amend, the
court finds that Petitioner's claims in �ii 3-7, 9 and 10 were raised for the first time in Petitioner's
1925(b) Statement. Pursuant to Pa. R.A.P. 302(a) these issues cannot be raised for the first time
on appeal and are therefore waived. Furthermore, the aforementioned claims are untimely
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without exception because they were not raised within one year of Petitioner's judgment
becoming final as required by the PCRA. 42 Pa. C.S. § 9545(b).
B. The PCRA Court properly dismissed Petitioner's claim without an evidcntiary
hearing.
Petitioner argues that he was entitled to an evidentiary hearing to establish if his right to
appeal was unlawfully violated by counsel. ( I 925(b) Statement i11 I). However, the right to an
evidentiary hearing is not absolute and the court determined an evidentiary hearing was not
warranted as there was no genuine issues of material fact in dispute.
A court may dismiss a petition without an evidentiary hearing when "there are no genuine
issues concerning any material fact and that the defendant is not entitled to post-conviction
collateral relief, and no purpose would be served by any further proceedings." Pa. R. Crim. P.
907( I) (West 2016). It is at the discretion of the PCRA court to grant an evidentiary hearing and
the court may properly deny a request for a hearing when the claims presented are patently
frivolous and without support in the record or other evidence. Commonwealth v. Jordan, 772
A.2d 1011, IO 14 (Pa. Super. 200 l ). If the record reveals that there are no genuine issues of
material fact regarding one of petitioner's substantive claims, then an evidentiary hearing will
not serve any purpose. See e.g. Commonwealth v. Payne, 794 A.2d 902 (Pa. Super 2002)
(holding the PCRA court did not err in the denial of a PCRA evidentiary hearing because
petitioner's substantive claims should be decided on the existing record).
Here, the court determined that there are no genuine issues of material fact, Petitioner's
claim is untimely without exception. There are no disputes of fact regarding the timeliness of
Petitioner's PCRA petition therefore Petitioner is not entitled to an evidentiary hearing.
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Ill. Conclusion
Petitioner has failed to establish an exception for his untimely petition. For the reasons set
forth above, Petitioner's petition was denied as untimely.
Supervising udge,
Criminal Division
AIV
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COURT Of COMMON PLEAS OF PHILADELPHIA COUNTY
CRIMINAL TRIAL DIVISION
COMMONWEALTH v. TYREE BROWN, CP-51-CR-0011343-2007
OPINION
PROOF OF SERVICE
I hereby certify that I am this day serving the foregoing Court Order upon the person(s)
and in the manner indicated below, in accordance with the requirements of PA. R.CRJM.P. 114:
Petitioner: Mr. Tyree Brown #HYl394
SCI Coal Township
I Kelley Drive
Coal Township, PA 17866- I 020
Type a/Service: ( ) Personal ( ) First Class Mail (X) Certified
District Attorney: Robin Godfrey, Esquire
PCRA Unit, District Attorney's Office
Widener Building
3 South Penn Square
Philadelphia, PA 19107
Type a/Service: ( ) Personal (X) First Class Mail. ( ) Other
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