Com. v. Brown, J. ( 2023 )

J-A25019-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMIE M. BROWN :
:
Appellant : No. 17 WDA 2022
Appeal from the PCRA Order Entered December 15, 2021
In the Court of Common Pleas of Beaver County Criminal Division at
No(s): CP-04-CR-0000913-2001
BEFORE: KUNSELMAN, J., NICHOLS, J., and McCAFFERY, J.
CONCURRING AND DISSENTING MEMORANDUM BY KUNSELMAN, J.:
FILED: March 15, 2023
I agree with the Majority that this case should be remanded so that the
PCRA court may consider whether Brown established the newly discovered
fact exception the PCRA’s time bar with regard to the statements from Hines
and Taylor. Unlike the Majority, however, I conclude that a reading of Brown’s
2021 petition sufficiently establishes when Brown discovered the information
regarding Dorsett’s plea deal and that he acted with due diligence in raising
this claim in his 2021 petition. Thus, I dissent from the Majority’s dismissal
of this claim and, upon remand, would direct the PCRA court to determine
whether Brown can establish the newly discovered fact exception as to
Dorsett’s plea deal as well as the statements from Hines and Taylor.
J-A25019-22
My conclusion is supported by a detailed review of Brown’s 2021
petition. Following our prior remand, the PCRA court denied Brown’s third
PCRA petition on September 21, 2018.1 Brown appealed this decision on
October 5, 2018. Brown asserts that on November 2, 2018, while this appeal
was pending, PCRA counsel acquired additional newly discovered facts.
Brown’s 2021 petition further alleged:
116. Specifically, an individual named Travon Dawkins
was transferred to SCI-Forest where [Brown] was
incarcerated.
117. Mr. Dawkins is from the Aliquippa area and was
incarcerated for a homicide.
118. Dawkins, who knew [Brown’s] younger brother,
had just recently been transferred to SCI-Forest from
federal prison, and informed [Brown] that as part of his
criminal case in Beaver County, he had received in
discovery, a statement made by Anthony “Ali” Dorsett, as
part of Dorsett’s federal plea deal in 2009, which required
Dorsett to provide truthful information concerning
homicides in Aliquippa. See Exhibit 5.
***
120. As part of the plea deal requiring Dorsett to provide
truthful information concerning a variety of homicides in the
Aliquippa region, Dorsett informed the federal and state
authorities that Anthony Tusweet Smith confessed to him
killing Officer Naim. See Exhibit 5.
121. [PCRA counsel] met with Dawkins at SCI-Forest
and Dawkins also wrote to [PCRA counsel] and authorized
[PCRA counsel] to have access to his discovery.
____________________________________________
1Brown mistakenly lists this date as September 21, 2019. See PCRA
Petition, 1/4/21, at 20, ¶ 112.
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122. Almost immediately, on November 2, 2018,
counsel obtained the aforementioned discovery in Dawkins’
case, including the federal plea deal of Dorsett. Exhibit 5.
PCRA Petition, 1/4/21.
PCRA counsel further noted that, because his appeal from the denial of
his third PCRA petition was pending, he could not file another post-conviction
proceeding until the decision in that matter was completed. Id. at ¶ 123
(citing Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000)). This court
denied Brown’s appeal from the denial of this third PCRA petition on October
2, 2019, and our Supreme Court denied his petition for allowance of appeal
on June 10, 2020. Thus, Brown timely filed his fourth PCRA petition raising
the Dorsett plea deal as a newly discovered fact in his petition filed on January
4, 2021.2
Admittedly, Brown does not provide a precise date when Dawkins told
him about Dorsett’s plea deal. Nevertheless, it appears from the record that
Brown learned this information between the time he appealed the denial of his
third petition on September 21, 2018, and November 2, 2018, when PCRA
counsel obtained the discovery which included Dorsett’s plea deal. Thus, I
disagree with the Majority’s conclusion that Brown cannot establish the newly
discovered facts exception to the time bar on this basis, and would remand
____________________________________________
2 I also note that the PCRA court did not dismiss the Dorsett claim based on a
finding that Brown did not timely raise it. See PCRA Court Opinion, 9/29/21,
at 6-11.
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J-A25019-22
for a consideration of this claim, as well as the claims involving Hines and
Taylor.
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