Com. v. Brightwell, A. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY JAMES BRIGHTWELL :
:
Appellant : No. 991 EDA 2023
Appeal from the PCRA Order Entered March 20, 2023
In the Court of Common Pleas of Chester County
Criminal Division at No: CP-15-CR-0000060-2003,
CP-15-CR-0000540-2003
BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 28, 2023
Appellant, Anthony James Brightwell, appeals pro se from the order
entered in the Court of Common Pleas of Chester County, denying his fourth
petition for collateral relief pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.
The underlying factual and procedural background is not at issue here.
See Commonwealth v. Brightwell, No. 1046 EDA 2004 (Pa. Super. filed
May 3, 2005); Commonwealth v. Brightwell, 3144 EDA 2006, (Pa. Super.
filed August 20, 2009); Commonwealth v. Brightwell, No. 131 EDA 2012
(Pa. Super. filed November 28, 2012); Commonwealth v. Brightwell, 413
EDA 2014 (Pa. Super. filed September 16, 2014).
Relevant to this appeal, Appellant filed the underlying petition, his
fourth, on December 8, 2022. On January 20, 2023, the PCRA court gave
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Appellant notice of its intent to dismiss Appellant’s petition after finding that
the petition was untimely. Appellant was given the opportunity to respond.
However, Appellant did not respond to the notice. On March 20, 2023, the
PCRA court dismissed Appellant’s PCRA petition. This appeal followed.
As a preliminary matter, we must address the fact that Appellant filed a
single notice of appeal, listing both docket numbers at 60-2003 and 540-2003.
In Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), our Supreme Court
held that appellants are required to file separate notices of appeal when a
single order resolves issues arising on more than one lower court docket.
Generally, it is within our discretion to either quash an appeal for violation of
this rule or remand for correction pursuant to Pa.R.A.P. 902. See
Commonwealth v. Young, 265 A.3d 462, 477 (Pa. 2021).
In Commonwealth v. Stansbury, 219 A.3d 157 (Pa. Super. 2019),
however, this Court concluded that a breakdown in court processes occurs
when a PCRA court mistakenly advises petitioners that they can pursue
appellate review by filing a single notice of appeal, even though the order
disposes of petitions pending at multiple docket numbers. Id. at 160. See
also Commonwealth v. Larkin, 235 A.3d 350, 352-54 (Pa. Super. 2020)
(en banc) (reaffirming Stansbury).
In this case, the March 20, 2023 order dismissing Appellant’s petition
listed two lower court docket numbers, and advised Appellant that he had the
right to “file an appeal to the Pennsylvania Superior Court.” Order, 3/20/23
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(emphasis added). Similar to Stansbury and Larkin, therefore, a breakdown
in court processes occurred in this case when the PCRA court notified Appellant
that he only had to file a single notice of appeal in connection with his appeal
on two separate docket numbers. Thus, rather than quashing under Walker
or remanding under Young, we will overlook this procedural error and allow
the appeal to proceed. See, e.g., Commonwealth v. Best, 2023 WL
5321022, at *2 (Pa. Super. August 18, 2023); Commonwealth v. Crise,
2022 WL 17545613 (Pa. Super. December 9, 2022), at *2, n.2;
Commonwealth v. Perry, 2022 WL 2312461, at *2 (Pa. Super. June 28,
2022).
Appellant raises the following issue for our review: “Appellant was
denied his constitutional rights to due process when the prosecution
deliberately withheld impeachment evidence and information that was in
possession of Inspector Shawn Dougherty[1] which resulted in a Brady
violation under Brady v. Maryland, 373 U.S. 83 (U.S. 1963).” Appellant’s
Brief at ix.
On appeal,
[w]e review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level.
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1 Appellant argues that Inspector Dougherty conducted interviews with
potential witnesses relating to the crimes at issue here, and that the
Commonwealth used information gathered from those witnesses, failing to
disclose to Appellant and his trial counsel that Inspector Dougherty, in the
meantime, had been dismissed from the police force for misconduct.
Appellant’s Brief at 3-4.
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Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa. Super.
2010). This review is limited to the findings of the PCRA court and
the evidence of record. Id. We will not disturb a PCRA court’s
ruling if it is supported by evidence of record and is free of legal
error. Id. This Court may affirm a PCRA court’s decision on any
grounds if the record supports it. Id. 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.
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011).
However, we afford no such deference to its legal conclusions.
Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011);
Commonwealth v. Reaves, 923 A.2d 1119, 1124 (Pa. 2007).
Further, where the petitioner raises questions of law, our standard
of review is de novo and our scope of review is plenary.
Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010).
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
All PCRA petitions, “including a second or subsequent petition, shall be
filed within one year of the date the judgment becomes final,” 2 unless an
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2 It is undisputed that the underlying PCRA petition is facially untimely.
Appellant was sentenced on March 10, 2004. On May 3, 2005, we affirmed
the judgment of sentence. On September 27, 2005, our Supreme Court
denied Appellant’s petition for allowance of appeal. If no petition for writ of
certiorari is filed with the United States Supreme Court, as in the instant case,
the judgment of sentence becomes final at the expiration of the 90-day period
available to petition the United States Supreme Court. See 42 Pa.C.S.A. §
9545(b)(3); U.S.Sup.Ct.R. 13.1. Accordingly, Appellant’s judgment of
sentence became final for purposes of the PCRA on December 26, 2005.
Appellant had one year to file a timely PCRA petition (i.e., December 26,
2006). The underlying petition was filed on December 8, 2022, which is
approximately 17 years after his judgment of sentence became final. Thus,
the underlying PCRA petition is facially untimely.
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exception to timeliness applies. 42 Pa.C.S.A. § 9545(b)(1).3 “The PCRA’s
time restrictions are jurisdictional in nature. Thus, if a PCRA petition is
untimely, neither this Court nor the [PCRA] court has jurisdiction over the
petition. Without jurisdiction, we simply do not have the legal authority to
address the substantive claims.” Commonwealth v. Chester, 895 A.2d 520,
522 (Pa. 2006) (internal citations and quotation marks omitted) (overruled on
other grounds by Commonwealth v. Small, 238 A.3d 1267 (Pa. 2020)). As
timeliness is separate and distinct from the merits of Appellant’s underlying
claims, we first determine whether this PCRA petition is timely
filed. Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008)
(consideration of Brady claim separate from consideration of its timeliness).
If it is not timely, we cannot address the substantive claims raised in the
petition. Id.We first note that on appeal Appellant seems to argue that the alleged
Brady violation qualified as a governmental interference exception to the
timeliness rule. Below, however, Appellant argued that the alleged Brady
violation qualified as a newly-discovered fact. Because the issue raised
before us was not raised below, Appellant’s claim that the alleged Brady
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3 The one-year time limitation can be overcome if a petitioner (1) alleges and
proves one of the three exceptions set forth in Section 9545(b)(1)(i)-(iii) of
the PCRA, and (2) files a petition raising this exception within one year of the
date the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2).
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violation qualified as a governmental interference exception to the timeliness
rule is therefore waived. See Pa.R.A.P.302(a).
Even if not waived, no relief is due on the claim before us. “Although
a Brady violation may fall within the governmental interference exception,
the petitioner must plead and prove the failure to previously raise the claim
was the result of interference by government officials, and the information
could not have been obtained earlier with the exercise of due diligence.”
Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008);
42 Pa.C.S.A. § 9545(b)(1)(i).4 In other words, a petitioner is required to
show that but for the interference of a government actor “he could not have
filed his claim earlier.” Stokes, 959 A.2d at 310.
Here, Appellant failed to explain why he could not have obtained the
information about the Commonwealth’s alleged misconduct earlier with the
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4 See Section 9545, which in relevant part, reads:
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
(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[.]
42 Pa.C.S.A. § 9545(b)(1)(i).
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exercise of due diligence. Appellant, therefore, failed to prove that his Brady
claim meets the governmental interference exception.
On the merits, the Brady claim would not have been successful, even
if not waived and/or timely.
Under Brady and subsequent decisional law, a prosecutor has an
obligation to disclose all exculpatory information material to the
guilt or punishment of an accused, including evidence of an
impeachment nature. See, e.g., Commonwealth v.
Hutchinson, 611 Pa. 280, 25 A.3d 277, 310 (2011). To establish
a Brady violation, an appellant must prove three elements:
(1) the evidence at issue was favorable to the accused,
either because it is exculpatory or because it impeaches; (2)
the evidence was suppressed by the prosecution, either
willfully or inadvertently; and (3) prejudice ensued.
Hutchinson, supra (citation omitted).
The burden rests with the appellant to “prove, by reference to the
record, that evidence was withheld or suppressed by the
prosecution.” Id. (citation omitted). The evidence at issue must
have been “material evidence that deprived the defendant of a fair
trial.” Id. (citation and emphasis omitted). “Favorable evidence
is material, and constitutional error results from its suppression
by the government, if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the
proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome.”
[Paddy, 15 A.3d at 450] (quoting Kyles v. Whitley, 514 U.S.
419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)).
Commonwealth v. Roney, 79 A.3d 595, 607 (Pa. 2013).
Additionally, “Brady is not violated when the appellant knew or, with
reasonable diligence, could have uncovered the evidence in question, or when
the evidence was available to the defense from other sources.” Id. at 608
(citations omitted).
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Appellant failed to allege and prove that the Commonwealth withheld
“material evidence that deprived the defendant of a fair trial.” Id. at 607.
Additionally, Brady was not violated because the officer’s dismissal could
have been uncovered with reasonable diligence or was otherwise available to
the defense from other sources. In fact, the information about the inspector’s
misconduct and dismissal goes back years before Appellant’s trial.5 Even if
Appellant was incarcerated, Appellant was assisted by counsel, who could
have uncovered the misconduct/dismissal with reasonable diligence. Thus,
even if we were to address the merits of Appellant’s Brady claim, Appellant
would not be entitled to relief.
Similarly, to the extent it is properly raised before us, we reach the
same conclusion regarding Appellant’s claim that the alleged Brady violation
qualifies as a newly-discovered fact.
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5 It should be noted that a jury found Appellant guilty of the underlying crimes
on January 8, 2004. PCRA Court Opinion, 6/5/23, at 1.
The issues with Inspector Dougherty’s conduct, on the other hand, go back to
years 2000 and 2002. See Gunser v. City of Philadelphia, 398 F.Supp.2d
392, 393-94 (E.D. Pa. 2005), aff’d, 241 Fed. Appx. 40 (3rd Cir.2007).
Inspector “Dougherty was dismissed from the police department on February
14, 2002, after criminal charges related to these allegations were filed against
him on January 15, 2002. Although he was acquitted of all criminal charges
at trial in July 2002, his dismissal for conduct unbecoming a police officer was
not reversed.” Id. at 394. Appellant appended a copy of the Federal District
Court decision as Exhibit “A” to his appellate brief to show that the District
Court found that Inspector Dougherty improperly “misdirect[ed] evidence.”
Appellant’s Brief at 5.
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The newly-discovered facts exception requires a petitioner to plead and
prove two components: (1) the facts upon which the claim was predicated
were unknown, and (2) these unknown facts could not have been ascertained
by the exercise of due diligence. See Commonwealth v. Burton, 158 A.3d
618, 638 (Pa. 2017); 42 Pa.C.S.A. § 9545(b)(1)(ii).6 Due diligence does not
require “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. Shiloh, 170 A.3d 553, 558 (Pa. Super. 2017) (citation omitted). As such,
“the due diligence inquiry is fact-sensitive and dependent upon the
circumstances presented.” Id. (citation omitted). “A petitioner must explain
why he could not have obtained the new fact(s) earlier with the exercise of
due diligence.” Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.
Super. 2010). In addition, “[t]he PCRA limits the reach of the exceptions by
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6 Section 9545, in relevant part, reads:
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
....
(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[.]
Pa.C.S.A. § 9545(b)(1)(ii).
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providing that the exceptions must be pled within sixty days[7] of the date the
claim could have been presented. 42 Pa.C.S. § 9545(b)(2).”
Commonwealth v. Bennett, 930 A.2d 1264, 1267-68 (Pa. 2007).
Appellant cannot meet the requirements of the newly-discovered facts
exception. The PCRA court found, and we agree, that Appellant “failed to
identify in his Petition when he discovered the alleged [Brady] violation or
. . . explain why the information with the exercise of due diligence could not
have been obtained earlier.” PCRA Court Opinion, 6/5/23, at 4. Appellant,
therefore, failed to meet the newly-discovered facts exception and the
requirements set in Section 9545(b)(2).
On appeal, for the first time, Appellant offers that the new facts were
discovered by “mere chance” on November 24, 2022, when he came across
Gunser, supra. Appellant’s Brief at 4, 6. Appellant argues that since the
filing of the underlying PCRA petition occurred within two and one-half weeks
after discovering Gunser, his petition is timely. Id. at 6. We disagree.
It is well-established that a judicial opinion does not qualify as a
previously unknown “fact” capable of triggering the timeliness exception
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7 Section 9545(b)(2) was amended to enlarge the deadline from sixty days to
one year and now reads: “Any petition invoking an exception provided in
[Section 9545(b)(1)] shall be filed within one year of the date the claim could
have been presented.” Section 9545(b)(2). The amendment applies only to
claims arising on or after December 24, 2017.
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codified in the 42 Pa.C.S.A. § 9545(b)(1)(ii). See Commonwealth v. Watts,
23 A.3d 980, 987 (Pa. 2011).
Even if we were to overlook the untimeliness of this allegation,8 the fact
remains that Appellant has failed to explain what steps, if any, he took to
discover those facts earlier. Indeed, discovering new facts by “mere chance”
does not appear to qualify as “reasonable effort by a petitioner, based on the
particular circumstances, to uncover facts that may support a claim for
collateral relief.” Shiloh, 170 A.3d at 558.
In conclusion, given that the claims raised here are waived and/or
untimely, we agree with the PCRA court that Appellant is entitled to no relief.
Order affirmed.
Date: 11/28/2023
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8 See Pa.R.A.P.302(a) (“Issues not raised in the trial court are waived and
cannot be raised for the first time on appeal.”)
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