Com. v. Thompson, B.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN THOMPSON :
:
Appellant : No. 957 EDA 2020
Appeal from the Order Entered March 12, 2020
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0003498-2005
BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY BOWES, J.: FILED JANUARY 14, 2021
Brian Thompson appeals pro se from the order that denied his petition
to unseal the Commonwealth’s cases against Richard Mack. We affirm.
This Court has summarized the history of this case as follows:
On July 7, 2005, Appellant shot and killed the mother of his
children, Crystal Thompson. At trial, Appellant claimed either that
the shotgun went off accidently when he tripped, or that it
inadvertently fired while he was cleaning and playing with the gun
because he was under the influence of drugs and alcohol. To rebut
these claims, the Commonwealth presented the testimony of
Appellant’s friend, Richard Mack (“Mack”), who contradicted
Appellant’s testimony that he had been drinking or doing drugs
that morning. Appellant was found guilty of first[-]degree murder
and sentenced to life imprisonment.
Appellant filed a timely direct appeal. On appeal, he
contended that the Commonwealth failed to turn over Brady
material about Mack’s parole status and elicited false testimony
from Mack that he was not on parole at the time of the murder.
See Brady v. Maryland, 373 U.S. 83 (1963). On August 24,
2007, this Court affirmed the judgment of sentence.
Commonwealth v. Thompson, 935 A.2d 24 (Pa.Super. 2007)
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(unpublished memorandum). The Pennsylvania Supreme Court
denied Appellant’s petition for allowance of appeal on November
19, 2008. Commonwealth v. Thompson, 960 A.2d 840 (Pa.
2008).
Appellant, acting pro se, filed a timely PCRA petition. The
PCRA court appointed counsel, although Appellant elected to
proceed pro se with stand-by counsel. In his petition, Appellant
raised numerous issues including challenging his trial counsel’s
effectiveness for failing to request a bill of particulars for all of the
prior convictions of Mack. Following a hearing, the PCRA court
denied Appellant’s first PCRA petition. This Court affirmed the
denial on August 23, 2011. Commonwealth v. Thompson, 32
A.3d 840 (Pa.Super. 2011). The Pennsylvania Supreme Court
denied Appellant’s petition for allowance of appeal.
Commonwealth v. Thompson, 38 A.3d 825 (Pa. 2012).
On September 21, 2012, Appellant, acting pro se, filed his
second PCRA petition. In his petition, Appellant argued that he
was entitled to relief under the newly-discovered facts and
governmental interference exceptions to the PCRA time bar, based
on the fact that the Commonwealth never informed him that Mack
had a pending criminal case at the time of Appellant’s trial. The
PCRA court dismissed the petition as untimely, and we agreed.
Commonwealth v. Thompson, 105 A.3d 42 (Pa.Super. 2014)
(unpublished memorandum). Our Supreme Court denied his
subsequent petition for allowance of appeal. Commonwealth v.
Thompson, 105 A.3d 42 (Pa. 2014).
On May 1, 2018, Appellant filed his third PCRA petition, in
which he alleged that he had discovered new evidence of
previously undisclosed prior convictions of Mack. Appellant filed
a memorandum of law in support of his petition and the
Commonwealth filed its Answer. The PCRA court issued notice of
its intent to dismiss the petition as untimely and Appellant filed a
response. On August 2, 2018, the PCRA court dismissed the
petition.
Commonwealth v. Thompson, 217 A.3d 417 (Pa.Super. 2019) (non-
precedential memorandum at 1-3) (footnote omitted). On appeal, this Court
affirmed the dismissal, concluding that Appellant failed to satisfy the newly-
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discovered-fact or government-interference exceptions to the PCRA’s one-
year time bar, as Appellant had made claims concerning Mack’s criminal
history on direct appeal and in his first two PCRA petitions. Id. (non-
precedential memorandum at 5-6, 9).
On March 6, 2019, Appellant filed the petition at issue in this appeal.
Therein, he claimed that he “recently became aware” that Mack had been
offered “plea agreements in multiple unrelated cases,” but the Commonwealth
failed to divulge the information to Appellant. Petition to Unseal Cases,
3/6/20, at 2 (unnecessary capitalization omitted). Thus, Appellant again
claimed that the Commonwealth committed a Brady violation by failing to
disclose Mack’s parole status or the existence of these alleged plea
agreements. Id. Appellant further contended that the records in Mack’s other
cases were sealed right before Appellant’s trial “because they contained
relevant information that could have lessen[ed] [Appellant’s] sentence.” Id.(unnecessary capitalization omitted). Appellant asserted that the
Commonwealth violated his constitutional rights to due process and equal
protection, and requested that the records in three cases against Mack be
unsealed.1 Id. at 3.
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1The cases were filed in 1998 and 1999, and their dockets reference “sealed
entries” in 2005 filed by “Migrated, Filer.” See Petition to Unseal Cases,
3/6/20, at Appendix A. Although it does not impact our disposition, we
observe that the Commonwealth explains that between 2004 and 2006,
county docketing systems migrated to a statewide case management system,
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The PCRA court denied Appellant’s request by order of March 12, 2020.
The PCRA court indicated that Appellant offered no legal justification for
unsealing any documents, but rather, his “efforts to unseal Mr. Mack’s criminal
cases [we]re merely a fishing expedition.” Order, 3/12/20, at n.2. The PCRA
court further noted that it did not treat Appellant’s petition as one filed
pursuant to the PCRA because it did not raise grounds for PCRA relief, but
even if it did, Appellant would be unable to establish a PCRA timeliness
exception for any claim related to Mr. Mack’s criminal history. Id. at n.1, n.2.
Appellant filed a timely notice of appeal. The PCRA court ordered him
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b), and, after being granted an extension, Appellant complied.
Appellant presents the following question for our consideration: “Whether the
trial court abused its discretion when it denied Appellant’s request to unseal
cases of Commonwealth witness Richard Mack, as they contained
impeachment evidence germaine [sic] to Appellant’s case?” Appellant’s brief
at 8 (unnecessary capitalization omitted).
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with newly separate secure and public dockets. See Commonwealth’s brief at
20 n.1. Sealed entries appeared on the public docket where secure
information had been listed. Id. at 21 n.1 (continued). The Commonwealth
indicates that the sealed entries on Mack’s public dockets are “nothing more
than financial payment information that is available on the secured docket[s].”
Id. It maintains that none of Mack’s cases, and no documents regarding his
pleas or sentencing, have been sealed at any point. Id. at 20.
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We begin with a review of the applicable law. We apply an abuse-of-
discretion standard of review to a PCRA court’s denial of a discovery request.
See, e.g., Commonwealth v. Collins, 957 A.2d 237, 272 (Pa. 2008). “An
abuse of discretion is not a mere error in judgment. Instead, it is a decision
based on bias, ill will, partiality, prejudice, manifest unreasonableness, or
misapplication of law. Moreover, we recall that the appellant has the duty to
convince us an abuse occurred.” Commonwealth v. Frey, 41 A.3d 605, 611
(Pa.Super. 2012) (internal citations omitted).
The PCRA court explained its denial of Appellant’s discovery request as
follows:
Initially, we note that a pro se inmate has no right to
production of documents relevant to his convictions for purposes
of pursuing post -conviction relief where no such action is pending.
From our review of the docket, there are no post-conviction
actions currently pending in the above-captioned matter. Even if
Mr. Mack’s criminal cases were unsealed upon the order of this
court, [Appellant] would not be entitled to information contained
therein without initiating a fourth PCRA action, which he has not
done.
With the filing of his petition at issue here, [Appellant]
sought to unseal the criminal cases of Richard Mack because they
allegedly contain evidence that he could have used to impeach Mr.
Mack’s trial testimony. Because [Appellant] does not state within
his petition what specific evidence he believes he will find in the
sealed documents, based upon his appellate and PCRA history, we
assume that [Appellant] wants to paint Mr. Mack as a habitual
drug user and somehow establish that he and Mr. Mack were using
drugs immediately prior to the homicide (and, therefore,
[Appellant] was not in his right mind at the time of the murder).
[Appellant]’s petition, however, utterly fails to establish any
scintilla of likelihood that such evidence exists and that it will be
found within the sealed documents in Mr. Mack’s prior drug
conviction cases.
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[Appellant] raises the issue of Mr. Mack’s parole status and
the Commonwealth’s alleged failure to disclose same. We note
that this issue was addressed on direct appeal and [Appellant]’s
first PCRA. Both the Superior Court and the PCRA court concluded
that [Appellant] suffered no prejudice as the result of Mr. Mack’s
false testimony regarding his parole status because the
Commonwealth stipulated to the fact that Mr. Mack was, indeed,
on parole and the trial court gave a curative jury instruction.
[Appellant] also claims that the Commonwealth is refusing
to disclose evidence that could exonerate him or reduce his
sentence. Again, [Appellant] does not identify what information
this may be. Instead, he simply regurgitates a similar Brady claim
that has been addressed in his prior filings.
Lastly, [Appellant] asserts that he recently became aware
that the District Attorney’s Office offered Mr. Mack plea
agreements for reduced sentences in several unrelated cases but
did not disclose such information to [Appellant]. This claim is
severely lacking in detail such that it cannot really be addressed
here. However, simply stated, the District Attorney is not required
to inform [Appellant] that it made a plea offer to Mr. Mack.
[Appellant] does not claim that the offer was made in an attempt
to induce Mr. Mack to offer false testimony against him.
[Appellant] doesn’t even claim that Mr. Mack accepted the plea
offer. Thus, this argument is clearly lacking in merit.
This is a fishing expedition in its truest form. [Appellant]
has not set forth any legal justification or persuasive basis for
unsealing these documents. This is particularly so because the
subject of Mr. Mack’s criminal history has been previously
addressed by this court and others ad naseum. Moreover, even if
this court was persuaded to unseal the requested documents, and
if the alleged impeachment evidence was found therein, we note
that [Appellant] is simply unable to prove that Mr. Mack used
drugs with him immediately prior to the killing simply because Mr.
Mack may have been a habitual drug user in the late 1990s. The
connection is too tenuous. Additionally, this court already
addressed this particular issue in [Appellant]’s third PCRA petition.
PCRA Court Opinion, 7/1/20, at 3-5 (citations omitted).
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In his brief, Appellant once again rehashes his prior claims regarding
evidence with which to impeach Mack, along with a details of an NAACP police
investigation in 2017, see Appellant’s brief at 10-14; complains that he has
not received “a fair trial or any collateral proceedings,” id. at 16; raises due
process claims, id. at 17-18; and asserts that the PCRA court did not have
good cause to seal the records in the first place or keep them sealed. Id. at
21.
None of Appellant’s arguments has convinced us that the PCRA court
erred or abused its discretion. To the extent that Appellant’s petition is solely
a discovery request, the PCRA court properly declined to consider it in the
absence of a pending PCRA claim. The PCRA specifically provides that “[n]o
court shall have authority to entertain a request for any form of relief in
anticipation of the filing of a petition under [the PCRA].” 42 Pa.C.S. § 9545(a).
See also Commonwealth v. Crider, 735 A.2d 730, 733 (Pa.Super. 1999)
(“[A] trial court, confronted only with a petition for production of documents
where no action is pending, is in no position to assess a petitioner's claims to
determine whether they constitute compelling reasons warranting a grant of
the petitioner's petition.”).
To the extent that Appellant’s petition could be construed as raising his
discovery requests in conjunction with substantive PCRA claims, in cases such
as this one not involving the death penalty, “no discovery shall be permitted
at any stage of the proceedings, except upon leave of court after a showing
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of exceptional circumstances.” Pa.R.Crim.P. 902(E)(1). Appellant failed to
offer any exceptional circumstances here. “Mere speculation that Brady
materials may exist does not constitute a showing of exceptional
circumstances as required by this rule.” Commonweatlh v. Dickerson, 900
A.2d 407, 412 (Pa.Super. 2006).
Moreover, Appellant failed to plead and offer to prove facts that would
establish an exception to the PCRA’s one-year time bar and confer jurisdiction
upon the PCRA court to grant him PCRA relief. See 42 Pa.C.S. § 9545(b).
Appellant does not detail when he learned of these alleged plea offers, what
efforts he took to learn them, or why he did not discover them earlier in his
extensive litigation of Mack’s criminal history. Rather, as summarized above,
Appellant reiterates his prior claims, and complains that “[d]uring the
pendency of [A]ppellant’s third PCRA proceedings, [the PCRA court] in all
fundamental fairness should have unsealed and released the material
exculpatory impeaching evidence.” Appellant’s brief at 16. Yet Appellant does
not explain why he did not seek these allegedly-sealed, allegedly-exculpatory
or impeaching documents at that time, or at any earlier time during the
decade or so the document entry was made. See, e.g., Commonwealth v.
Shiloh, 170 A.3d 553, 559 (Pa.Super. 2017) (noting that a pro se PCRA
petitioner must both plead and prove that previously-unknown facts could not
have been discovered earlier with the exercise of due diligence).
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Therefore, finding no abuse of discretion, we affirm the PCRA court’s
order denying Appellant’s petition to unseal records.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/14/2021
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