Com. v. Brown, B.

J-S07041-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

BOBBIE L. BROWN :

:

Appellant : No. 1217 MDA 2023

Appeal from the PCRA Order Entered August 11, 2023

In the Court of Common Pleas of Dauphin County Criminal Division at

No(s): CP-22-CR-0005328-2007

BEFORE: LAZARUS, P.J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED AUGUST 15, 2024

Appellant, Bobbie L. Brown, appeals pro se from the order entered in

the Dauphin County Court of Common Pleas that dismissed his second petition

filed pursuant to the Post Conviction Relief Act (PCRA)1 without a hearing. For

the reasons set forth below, we affirm the dismissal on the ground that the

PCRA petition is untimely.

On August 14, 2008, Appellant was convicted by a jury of first-degree

murder and carrying a firearm without a license for shooting Eric Cooper

(Victim) to death outside a bar in Harrisburg, Pennsylvania on October 24,

2007. Victim and Appellant had both been romantically involved with the

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541–9546.

J-S07041-24

same woman, and the shooting occurred during an altercation between Victim

and Appellant that Victim initiated. Commonwealth v. Brown, No. 94 MDA

2013, at 1-2 (Pa. Super. filed October 18, 2013) (unpublished memorandum).

On the evening of the shooting, Appellant was in his SUV outside the bar

where he was meeting a different woman, Zina Bass, who had no connection

to Victim. Id. at 2. After Bass got into Appellant’s vehicle and Appellant

began to drive away, Victim approached the SUV and began punching

Appellant. Id. Appellant in response grabbed a gun that he had removed

from SUV’s glove compartment and put next to himself and shot Victim six

times, once through the front of Victim’s body in the right shoulder, and five

times in the back. Id. at 2-3.

Appellant, who testified in his own defense, admitted shooting Victim

but contended that he acted in self-defense. N.T. Trial at 380-94, 414. Bass

testified at Appellant’s preliminary hearing, and her testimony from the

preliminary hearing was introduced at trial based on the stipulation of the

Commonwealth and Appellant’s trial counsel that she was unavailable. N.T.

Trial at 83-104. In that testimony, Bass stated that after she got into

Appellant’s SUV and they started to pull out, a man came over to the SUV

from across the street and began repeatedly punching and hitting Appellant

in the face. Id. at 89-91, 101-04. Bass testified that that when the man

started hitting Appellant, she was scared and wanted to get out of the SUV

-2-

J-S07041-24

and that she then heard gunshots, climbed out of a window of the SUV and

ran back into the bar. Id. at 89, 91-92, 103-04.

Appellant was sentenced to life imprisonment on November 5, 2008.

Appellant filed a timely post-sentence motion, which the trial court denied,

and a direct appeal. This Court affirmed Appellant’s judgment of sentence on

March 29, 2010. Commonwealth v. Brown, 996 A.2d 536 (Pa. Super. 2010)

(table). Appellant filed a petition for allowance of appeal, which the

Pennsylvania Supreme Court denied on October 13, 2010. Commonwealth

v. Brown, 8 A.3d 897 (Pa. 2010) (table).

On January 6, 2012, Appellant filed a timely, counseled first PCRA

petition, asserting five claims of ineffective assistance of trial counsel, none of

which related to Bass or her testimony. The PCRA court denied this PCRA

petition in its entirety without a hearing. On appeal, this Court affirmed the

dismissal of three of Appellant’s PCRA claims but ruled that the PCRA court

erred in dismissing the other two claims without an evidentiary hearing,

vacated the dismissal of those two claims for PCRA relief, and remanded the

case to the PCRA court. Brown, No. 94 MDA 2013, at 5-17. On remand, the

PCRA court held evidentiary hearings and denied both claims. This Court

affirmed the PCRA court on March 3, 2017, and Appellant filed a petition for

allowance of appeal, which the Pennsylvania Supreme Court denied on July

27, 2017. Commonwealth v. Brown, 168 A.3d 283 (Pa. Super. 2017)

(table), appeal denied, 169 A.3d 1071 (Pa. 2017) (table).

-3-

J-S07041-24

On July 25, 2022, over 11 years after the conclusion of his direct appeal,

Appellant filed the instant second PCRA petition, in which he asserted a claim

of newly discovered evidence based on a statement that an investigator

obtained from Zina Bass in March 2022 and a claim that trial counsel was

ineffective for stipulating to Bass’s unavailability and not calling her as a

witness at trial. 2022 PCRA Petition at 3-11 & Appendix A. In the March 2022

statement, Bass described the events at the time of the shooting consistently

with her preliminary hearing testimony at trial but made an additional

assertion that before she heard gunshots, the man who was punching

Appellant “grips something at his waist.” Id. Appendix A.

On July 25, 2023, the PCRA court issued a Pa.R.Crim.P. 907 notice of

its intent to dismiss this PCRA petition without a hearing on the ground that,

although it concluded that Bass’s statement satisfied the PCRA’s timeliness

exception for newly discovered facts, neither of Appellant’s claims for PCRA

relief had merit because the additional information in Bass’s statement would

not have changed the jury’s verdict. PCRA Court Rule 907 Order, 7/25/23,

Opinion at 4-6. Appellant filed a response to the Rule 907 notice in which he

argued that the Bass statement was exculpatory and made various arguments

concerning what he contended the evidence at trial showed but did not seek

to assert additional new PCRA claims or any claim that the PCRA judge should

recuse himself. On August 11, 2023, the PCRA court entered an order

-4-

J-S07041-24

dismissing Appellant’s second PCRA petition without a hearing. PCRA Court

Order, 8/11/23. This timely appeal followed.

Appellant argues in this appeal (1) that the PCRA court erred in

dismissing the claims for relief based on Bass’s statement that he pled in his

PCRA petition; (2) that the PCRA judge erred in not recusing himself; (3) that

the PCRA court erred in dismissing his petition because he had a meritorious

claim that trial counsel was ineffective for allegedly failing to present a defense

of imperfect self-defense at trial; and (4) that the PCRA court erred in

dismissing his petition because he had a meritorious claim that trial counsel

was ineffective as a result of an alleged conflict of interest. Appellant’s Brief

at 4. We conclude that Appellant’s first issue fails because he did not satisfy

any exception to the PCRA’s time bar2 and that his other claims are waived by

his failure to raise them in the PCRA court.

The PCRA provides that “[a]ny petition under this subchapter, including

a second or subsequent petition, shall be filed within one year of the date the

judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). A PCRA petition may be

filed beyond that one-year time period only if the defendant pleads and proves

one of the following three exceptions:

____________________________________________

2 While the reason for our conclusion that Appellant’s claims in his PCRA

petition were properly dismissed without a hearing differs from the trial court’s

reason for its decision, we may affirm a lower court on any valid basis, even

if those grounds are different from those on which the court based its decision.

Commonwealth v. Smith, 194 A.3d 126, 135 n.4 (Pa. Super. 2018);

Commonwealth v. Priovolos, 746 A.2d 621, 626 n.6 (Pa. Super. 2000).

-5-

J-S07041-24

(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.

Id. These exceptions can apply only if the defendant filed the PCRA petition

“within one year of the date the claim could have been presented.” 42 Pa.C.S.

§ 9545(b)(2). The PCRA’s time limit is jurisdictional, and a court may not

consider the merits of an untimely PCRA petition. Commonwealth v. Spotz,

171 A.3d 675, 678 (Pa. 2017); Commonwealth v. Fahy, 737 A.2d 214, 22-

23 (Pa. 1999); Commonwealth v. Pew, 189 A.3d 486, 488 (Pa. Super.

2018).

Appellant's judgment of sentence became final on January 11, 2011,

upon expiration of the 90-day period to file a petition for certiorari to the

United States Supreme Court following the October 13, 2010 denial of his

petition for allowance of appeal. 42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R. 13;

Commonwealth v. Priovolos, 746 A.2d 621, 625 (Pa. Super. 2000). The

instant PCRA petition was filed on July 25, 2022, more than 11 years after the

judgment became final and is therefore untimely unless Appellant alleged and

proved one of the three limited exceptions set forth in Sections 9545(b)(1)(i)-

-6-

J-S07041-24

(iii) and that he filed this PCRA petition within one year after he first could

have done so.

The only timeliness exception that Appellant has claimed that he

satisfied is the exception for newly discovered facts, Section 9545(b)(1)(ii) of

the PCRA. Appellant asserts, and the PCRA court agreed, that this exception

is satisfied because Bass’s statement is a new fact that was unknown to

Appellant until the date that it was obtained in March 2022 and Appellant filed

his second PCRA petition less than a year later. Those facts, however, are

insufficient to make Appellant’s PCRA petition timely.

The newly discovered facts exception applies only where the defendant

shows both that he did not know the facts upon which he bases his PCRA

petition and that he could not have learned of those facts earlier by the

exercise of due diligence. 42 Pa.C.S. § 9545(b)(1)(ii); Commonwealth v.

Sanchez, 204 A.3d 524, 526 (Pa. Super. 2019). Merely showing that the

defendant did not learn of facts until shortly before the PCRA petition was

filed, without any allegations and proof of timely efforts or inability to discover

that information earlier, is insufficient to satisfy Section 9545(b)(1)(ii)’s

exception for newly discovered facts. Sanchez, 204 A.3d at 526-27; Pew,

189 A.3d at 489-90; Priovolos, 746 A.2d at 625-26.

Appellant knew before his 2008 trial, from Bass’s preliminary hearing

testimony, that Bass was a witness with knowledge of what happened at the

time of the shooting. Where, as here, the new fact is a recent statement from

-7-

J-S07041-24

a witness known to the defendant at the time of trial, the defendant cannot

satisfy the newly discovered facts exception to the PCRA’s time bar unless he

sets forth reasons why he could not have interviewed the witness earlier or

could not have obtained the statement earlier if he had sought to interview

the witness promptly. Commonwealth v. Smith, 194 A.3d 126, 134-35 (Pa.

Super. 2018); Priovolos, 746 A.2d at 625-26. Appellant did not plead that

he made any attempt to contact or interview Bass before 2022, that Bass

could not have been found, or that she was unwilling to give this statement

before July 2021. To the contrary, Bass told the investigator who interviewed

her in 2022 that her address was publicly available at the time of Appellant’s

trial and that she was previously contacted by an unknown attorney for a

statement and gave a statement that she no longer has. 2022 PCRA Petition

at 5 & Appendix A, Investigator’s Report at 1-2. Moreover, nothing in the

March 2022 statement supports an inference that Bass would have been

unwilling to provide the additional information earlier, as her statement does

not contradict her preliminary hearing testimony. Appellant therefore did not

satisfy Section 9545(b)(1)(ii)’s exception for newly discovered facts, and his

PCRA petition was time-barred.

Appellant alleges in his second issue that the PCRA judge, Edward M.

Marsico, Jr., should have recused himself because he was the District Attorney

at the time of Appellant’s prosecution and trial. This claim fails because

Appellant did not raise it in the PCRA court. A party seeking recusal or

-8-

J-S07041-24

disqualification of a judge must raise the objection at the earliest possible

time, and failure to do so waives the recusal claim. Commonwealth v.

Fletcher, 307 A.3d 742, 748 (Pa. Super. 2023); Commonwealth v.

McCullough, 230 A.3d 1146, 1179 (Pa. Super. 2020). It was clear from the

Rule 907 notice, which Appellant admits that he received on July 27, 2023,

that Judge Marsico was the judge assigned to this PCRA petition. PCRA Court

Rule 907 Order, 7/25/23; Motion for Extension of Time to Respond to Rule

907 Notice at 1. Appellant therefore could have moved at that time for recusal

on the ground that Judge Marsico had been the District Attorney. Appellant,

however, did not raise any claim that Judge Marsico should recuse himself in

the response that he filed to the Rule 907 notice or at any time before the

PCRA court dismissed his PCRA petition. Rather, he raised this issue for the

first time in his Pa.R.A.P. 1925(b) concise statement of errors complained of

on appeal after he appealed the dismissal of the PCRA petition to this Court.

Rule 1925(b) Statement, 9/20/23, ¶IV. Because Appellant could have raised

his claim that Judge Marsico should recuse himself before Judge Marsico

dismissed the PCRA petition and failed to raise recusal until after he appealed

the dismissal, Appellant’s recusal claim is waived. Commonwealth v.

Luketic, 162 A.3d 1149, 1157-59 (Pa. Super. 2017) (failure to specifically

request that judge recuse himself before appeal waived recusal claim even

though defendant did not learn of basis for recusal until his sentencing).

-9-

J-S07041-24

Appellant’s remaining two issues, his claims concerning trial counsel’s

alleged failure to pursue imperfect self-defense and trial counsel’s alleged

conflict of interest are also waived. “Issues not raised in the trial court are

waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a).3

Appellant never raised either of these issues in the PCRA court. Appellant did

not plead these claims of ineffective assistance of trial counsel in his PCRA

petition. In addition, Appellant, in his response to the Rule 907 notice, neither

asserted these claims nor sought to amend his PCRA petition to assert them.

Instead, as with his recusal claim, Appellant raised these issues for the first

time in his Rule 1925(b) concise statement. Rule 1925(b) Statement,

9/20/23, ¶¶III, V. Raising an issue for the first time in a Rule 1925(b)

statement does not satisfy the requirement of Rule 302(a) that a party must

raise all issues in the court of common pleas. Steiner v. Markel, 968 A.2d

1253, 1257 (Pa. 2009); Commonwealth v. Jones, 271 A.3d 452, 457 (Pa.

____________________________________________

3 While, in Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), our

Supreme Court recognized a narrow exception to this requirement under

which some PCRA claims may be raised for the first time on appeal, that

exception has no applicability here. Bradley only permits claims of ineffective

assistance of PCRA counsel to be raised for the first time on appeal from the

denial of a first PCRA petition where the PCRA counsel represented the

defendant until the appeal. Id. at 401-05. Here, the claims that Appellant

failed to raise are claims of trial counsel ineffectiveness, not ineffectiveness of

PCRA counsel, and nothing prevented Appellant from raising them in the PCRA

court, as he was pro se, not represented by any counsel whose conduct could

be alleged to have been ineffective. In addition, this is an appeal from the

dismissal of a second PCRA petition, not a first PCRA petition.

- 10 -

J-S07041-24

Super. 2021); Commonwealth v. Rodriguez, 174 A.3d 1130, 1145-46 &

nn.6 & 8 (Pa. Super. 2017).

For the foregoing reasons, we conclude that Appellant did not show that

any exception to the PCRA’s one-year time limit applies to his second PCRA

petition and that the PCRA petition, filed more than 11 years after his

judgment of sentence became final, is barred as untimely. In addition, all of

the other issues that Appellant seeks to raise in this appeal are waived.

Accordingly, we affirm the PCRA court’s dismissal of Appellant’s second PCRA

petition without a hearing.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 08/15/2024

- 11 -