Commonwealth v. Brown

• Citation: 2016 PA Super 73,141 A.3d 491
• Decision Date: 24 March 2016
• Docket Number: No. 152 WDA 2015,152 WDA 2015
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Jamie BROWN, Appellant.
• Court: Superior Court of Pennsylvania

141 A.3d 491
2016 PA Super 73

COMMONWEALTH of Pennsylvania, Appellee
v.
Jamie BROWN, Appellant.

No. 152 WDA 2015

Superior Court of Pennsylvania.

Submitted Jan. 4, 2016.
Filed March 24, 2016.

141 A.3d 495

Jamie Brown, appellant, pro se.

Anthony J. Berosh, District Attorney, Beaver, for Commonwealth, appellee.

BEFORE: BOWES, OLSON and STRASSBURGER,^* JJ.

OPINION BY OLSON, J.:

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.”

Commonwealth v. Brown, 83 A.3d 1063 (Pa.Super.2013) (unpublished memorandum), at 1–2 (internal alterations and citation omitted).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 Commonwealth v. Brown, 850 A.2d 5 (Pa.Super.2004) (unpublished memorandum), appeal denied, 581 Pa. 670, 863 A.2d 1142 (2004).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 Commonwealth v. Brown, 965 A.2d 289 (Pa.Super.2008) (unpublished memorandum), appeal denied, 603 Pa. 689, 983 A.2d 725 (2009).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.3d 1063 (Pa.Super.2013) (unpublished memorandum).

On June 7, 2013, Appellant filed his third pro se PCRA petition. Thereafter, Appellant filed an amended petition along

141 A.3d 496

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?

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, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Second, Appellant argues that disqualification of the OAG was required pursuant to the Commonwealth Attorneys Act, 71 P.S. § 732–101 et seq.

141 A.3d 497

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, 529 Pa. 387, 604 A.2d 700 (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 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, 148 N.J. 89, 690 A.2d 1 (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, 690 A.2d 1. The Supreme Court of New Jersey held that “[t]he fact that defendant alleges misconduct in prior 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;

141 A.3d 498

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, 545 Pa. 71, 680 A.2d 823, 826 (1996) ; see also Commonwealth v. Farmer, 750 A.2d 925, 928 (Pa.Cmwlth.2000), appeal denied, 568 Pa. 669, 795 A.2d 980 (2000) (considering challenge to the OAG's prosecution on direct appeal); cf. Commonwealth v. Carsia, 341 Pa.Super. 232, 491 A.2d 237, 240 (1985) (en banc), aff'd, 512 Pa. 509, 517 A.2d 956 (1986) (defendant has a right to challenge OAG's prosecution...