Com. v. Brown, J.

J-S04014-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JAMES E. BROWN :

:

Appellant : No. 1313 EDA 2025

Appeal from the PCRA Order Entered May 9, 2025

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

No(s): CP-51-CR-0527441-1985

BEFORE: LAZARUS, P.J., STABILE, J., and NEUMAN, J.

MEMORANDUM BY LAZARUS, P.J.: FILED APRIL 23, 2026

James E. Brown appeals from the order, entered in the Court of Common

Pleas of Philadelphia, denying as untimely his second petition filed pursuant

to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541–9546. Upon

careful review, we affirm.

On January 11, 1989, Brown was convicted of first-degree murder,

aggravated assault, and robbery and was sentenced to life in prison without

the possibility of parole.1 Brown filed a timely direct appeal from his judgment

of sentence, which was affirmed by this Court on July 24, 1990. See

Commonwealth v. Brown, 578 A.2d 461 (Pa. Super. 1990). Brown did not

seek allowance of appeal in the Pennsylvania Supreme Court.

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1 The circumstances of Brown’s underlying case are not relevant to our

disposition.

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Brown filed his first PCRA petition, pro se, on March 23, 2016, alleging

that the “Commonwealth has failed to turn over official documentation proving

[his] claims, diminished capacity and culpability.” 2 PCRA Petition, 3/23/16, at

4. The PCRA court dismissed the petition on January 30, 2018. Brown, again

acting pro se after his appointed attorney was given leave to withdraw

pursuant to Turner/Finley,3 filed an appeal to this Court, which was

dismissed on July 19, 2018, for failure to file a brief.

Brown filed the instant PCRA petition and accompanying memorandum

of law on October 30, 2024, alleging that “the police activity sheets in this

matter were [] suppressed, in violation of Brady[4] and its progeny,” and that

they related to the “materiality of facts and circumstances of petitioner’s

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2 In the instant appeal, the PCRA court reasons that Brown’s October 2024

PCRA petition does not allege new facts, because Brown raised the issue of

the Commonwealth’s failure to turn over evidence in his August 2016 PCRA

petition. See Trial Court Opinion, 5/9/25, at 4–5 (unpaginated). We observe,

however, that Brown’s 2016 petition specifically asserted that the

Commonwealth failed to turn over documents related to his mental health and

mental capacity, and his request for documents was tailored to that issue,

requesting “[a]ll information from evaluations from [the] Commonwealth[’]s

psychologists” and “[a]ll documentation from [the] Holmesburg psychology

department pertaining to [his] case.” PCRA Petition, 3/23/16, at 6

(unpaginated); see also id. (Supplemental Argument and Exhibits);

Petitioner’s Response to PCRA Court’s 907 Notice, 4/1/25, at 4; Appellee’s

Brief, at 3. Thus, we decline to find that Brown’s first PCRA petition precludes

him from raising the police activity sheets as newly discovered evidence,

though we ultimately find his claim meritless on other grounds.

3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

4 Brady v. Maryland, 373 U.S. 83 (1963).

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case.” PCRA Petition, 10/30/24, at 4 (unnecessary capitalization omitted).

Brown simultaneously filed a motion for appointment of counsel. Brown

acknowledged his PCRA petition was facially untimely, but sought review

based upon the newly discovered facts and governmental interference

exceptions of the PCRA. See PCRA Petition, 10/30/24, at 3; 42 Pa.C.S.A. §

9545(b)(1)(i)-(ii). In support, Brown attached: (1) affidavits from himself

and a fellow prisoner asserting that, prior to 1992, the Philadelphia District

Attorney’s Office and Police Department suppressed “police activity sheets in

selected criminal matters,” and that he learned this information on October

29, 2024; (2) a portion of a transcript, in an unrelated criminal proceeding, in

which the Commonwealth and defense counsel discussed their understanding

that the Philadelphia District Attorney’s Office did not turn over police activity

sheets as a matter of course prior to the early 1990s; and (3) an undated

report/appendix about the Conviction Integrity Unit in the Philadelphia District

Attorney’s Office, detailing evidence of wrongful convictions, including failure

to pass Brady materials to defendants generally, and/or police activity sheets

in particular. See PCRA Petition, 10/30/24, at Exs. A, B, & C.

The PCRA court issued Rule 907 notice of intent to dismiss the instant

petition on March 21, 2025, stating it was untimely filed and did not meet any

of the enumerated PCRA exceptions. Brown filed a response to the Rule 907

notice on April 1, 2025. On May 9, 2025, the PCRA court dismissed the

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petition. Present counsel entered his appearance 5 and filed a notice of appeal

on May 29, 2025.

Brown presents the following issue for our review: “Whether the lower

court erred in dismissing [Brown’s] PCRA petition[,] insofar as it concluded

that [] Brown failed to plead and prove an exception to the PCRA’s timeliness

requirements?” Appellant’s Brief, at 7 (unnecessary capitalization omitted).

A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final, i.e., at conclusion of direct review or the

expiration of the time period for seeking review. 42 Pa.C.S.A. § 9545(b)(1),

(b)(3); see Commonwealth v. Burton, 158 A.3d 618, 623 n.7 (Pa. 2017).

This is a jurisdictional requirement and, “therefore[,] courts are prohibited

from considering an untimely PCRA petition.” Commonwealth v. Lopez, 249

A.3d 993, 999 (Pa. 2021), citing Commonwealth v. Small, 238 A.3d 1267,

1280 (Pa. 2020).

Instantly, Brown acknowledges that his petition is facially untimely.

Appellant’s Brief, at 11. Brown’s May 10, 1988 conviction was affirmed on

direct appeal on July 24, 1990, and, thus, his conviction became final for

purposes of the PCRA on August 24, 1990, when time expired for him to seek

review in the Pennsylvania Supreme Court. See 42 Pa.C.S.A. § 9545(b)(1),

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5 The PCRA court did not expressly rule on the motion to appoint counsel. In

his brief, Brown indicates that he retained counsel. See Appellant’s Brief, at

14.

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(3); Brown, supra; Pa.R.A.P. 1113(a). Thus, Brown must meet one of three

enumerated exceptions to the timeliness requirement in the PCRA:

(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.

42 Pa.C.S.A. § 9545(b)(1). Brown asserts that he has alleged sufficient facts

to support jurisdiction under the exceptions in subsections (i) and (ii) because

he learned that, at the time of his prosecution, the Philadelphia District

Attorney’s Office had “a pattern and practice of withholding [police activity

sheets] from defendants in violation of both their discovery obligations under

Pennsylvania law and their Brady obligations under the United States

Constitution.” Id. at 12–13 (emphasis in original). Brown further claims that

he filed the instant petition within one year of learning of this practice. Id. at

13.

The Commonwealth responds that Brown failed to make an offer of proof

of a connection between the facts he claims to have recently discovered and

his claim in his own case. See Appellee’s Brief, at 5. In particular, the

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Commonwealth asserts that Brown does not plead or offer to prove that any

activity sheets were withheld in his case at all, much less activity sheets that

would have been exculpatory or useful for purposes of impeachment. Id. at

7. On the governmental interference claim, the Commonwealth argues that

Brown does not explain why he was unable to raise these claims in earlier

proceedings. Id. at 8. We agree with the Commonwealth on both points.

To overcome the PCRA’s time bar under the newly discovered facts

exception, see 42 Pa.C.S.A. § 9545(b)(1)(ii), a petitioner must prove that

“(1) the facts upon which the claim is predicated were unknown, and (2) these

unknown facts could not have been ascertained by the exercise of due

diligence.” Commonwealth v. Myers, 303 A.3d 118, 121 (Pa. Super. 2023).

“The focus of this exception is on the newly discovered facts, not on a newly

discovered or newly willing source for previously known facts.” Id., quoting

Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008). Critically, there

must be “some relationship” between the newly discovered information and

the petitioner’s case. Commonwealth v. Shannon, 184 A.3d 1010, 1017

(Pa. Super. 2018).

Here, presuming that the information Brown cites is newly discovered, 6

Brown has shown no nexus between that information and his own case. This

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6 The affidavits Brown attaches purport to confirm that Brown learned about

this practice on October 29, 2024, the day before he filed his petition, when a

fellow inmate provided Brown with the notes of testimony from the unrelated

case. See PCRA Petition, 10/30/24, at Exs. A & B. However, the “Case

(Footnote Continued Next Page)

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is fatal to his claim. See Commonwealth v. Reeves, 296 A.3d 1228, 1231–

33 (Pa. Super. 2023).7 In Reeves, a PCRA petitioner, invoking the same

timeliness exceptions Brown raises in the instant case, argued that his petition

was not untimely because he recently learned of an investigation into the

Philadelphia District Attorney’s Office that showed “a pattern [ ] in old cases,

where prosecutors [were not] attuned to their constitutional and ethical

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Appendix” that Brown attached as Exhibit C to his PCRA petition is undated,

and Brown does not allege how or when he learned of or accessed it. See,

e.g., Commonwealth v. Davis, 86 A.3d 883, 891–92 (Pa. Super. 2014)

(failure of petitioner to specify how or when he discovered information upon

which he relies prevents him from proving applicability of exception to time

bar).

7 In numerous recent unpublished cases, this Court, relying on Reeves,

supra, has rejected similarly vague allegations about general practices or

misconduct as the basis for establishing an exception to the PCRA time bar.

See, e.g., Commonwealth v. Nicholas, 2025 WL 3002927, at *2–*3 (Pa.

Super. filed Oct. 27, 2025) (unpublished memorandum decision) (rejecting

claim petitioner established exception to PCRA time bar where petitioner

learned of witness-officer’s alleged misconduct from fellow inmate but failed

to prove misconduct in his own case; testimony about misconduct in other

cases insufficient); Commonwealth v. Huertas, 2025 WL 2181224, at *3

(Pa. Super. filed Aug. 1, 2025) (unpublished memorandum decision)

(“Huertas has shown absolutely no nexus between any of the news reports

and the facts of his own case.”) (emphasis in original); Commonwealth v.

Slaughter, 2025 WL 1342377, at *3 (Pa. Super. filed May 8, 2025)

(unpublished memorandum decision) (petitioner did not establish exception

to time bar, where he relied on article about misconduct by testifying officer

but did not allege misconduct his case); Commonwealth v. Collantes, 2025

WL 326406, at *2 (Pa. Super. filed Jan. 29. 2025) (unpublished memorandum

decision) (petitioner has “failed to tether the allegations contained in the

[a]rticle to the facts of his case, his conviction, or his sentence. . . . Without

any link tying the [misconduct] to any discrete component of [petitioner’s]

case, he has failed to plead and prove the existence of a newly discovered

fact”) (emphasis in original). See also Pa.R.A.P. 126(b)(1)–(2) (unpublished

non-precedential decisions of this Court filed after May 1, 2019 may be cited

for persuasive value).

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responsibilities as they are now.” Id. at 1231. This Court rejected the

petitioner’s argument, reasoning that “[t]his general statement does not

demonstrate governmental interference in [this petitioner’s] case,” nor does

it constitute newly discovered facts because the petitioner “cite[d] no new

information in his case;” instead, he referenced misconduct in unrelated

cases. Id. at 1231, 1232–33 (emphasis in original). Similarly, here, Brown

does not even speculate as to the potential information that might be found

in police activity sheets in his case. See PCRA Petition, 10/30/24, at 4.

Instead, he simply cites testimony that, at the time of his trial, the

Commonwealth generally “did not pass all activity sheets as a matter of

course.” Id. at 7; see also id. at Ex. B p. 15.

Brown also asserts that he can overcome the PCRA time bar under the

governmental interference exception. This exception requires that a

defendant “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). A Brady

violation may fall within the governmental interference exception, but the

petitioner must demonstrate both interference and the petitioner’s own due

diligence. Id. Moreover, to succeed on a Brady claim, the petitioner has the

burden to prove, by reference to the record, that evidence was suppressed,

because the Commonwealth is presumed to have complied with its disclosure

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obligations. Commonwealth v. Williams, 732 A.2d 1167, 1175–76 (Pa.

1999).

As with the petitioner in Abu-Jamal, supra, Brown’s claim is plainly

underdeveloped and insufficient. Brown does not allege any specific (or even

general) exculpatory or impeachment material that might be contained in any

hypothetical police activity sheets; he simply claims in his petition that he was

entitled to all police activity sheets “to facilitate a proper and cumulative

analysis of the materiality of the suppressed evidence.” PCRA Petition

(Attachment – Petitioner’s PCRA Request and Supporting Memorandum for

[Discovery] and Appointment of Counsel), 10/30/24, at 7–8 ¶ 16. However,

Brady does not create a general constitutional right to discovery, or “grant a

criminal defendant unfettered access to the Commonwealth’s files.”

Commonwealth v. Lambert, 884 A.2d 848, 854 (Pa. 2005); see also

Williams, 732 A.2d at 1175–76.

To succeed on a Brady claim, a defendant must demonstrate that: (1)

the evidence was withheld by the Commonwealth, either willfully or

inadvertently; (2) it was favorable to the defendant, either because it is

exculpatory or as impeachment evidence; and (3) the evidence was material

and, therefore, prejudicial to the defendant. Commonwealth v. Willis, 46

A.3d 648, 656 (Pa. 2012). Brown cannot meet any of these requirements.

The documents attached to Brown’s petition do not show that the

Commonwealth had a policy of withholding police activity sheets; rather, a

prosecutor in an unrelated case said the office’s previous procedures made

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disclosure of these activity sheets optional rather than mandatory. See Trial

Court Opinion, 5/9/25, at 3 (unpaginated). Furthermore, Brown cannot

possibly say whether any hypothetical undisclosed activity sheets contained

exculpatory or impeachment evidence as it relates to his case, or whether

such information, if it existed, would have been material to his case.

This Court recently considered an essentially identical claim in

Commonwealth v. Moore, 2025 WL 2945839 (Pa. Super. filed Oct. 17,

2025). There, the petitioner, who had been convicted in 1984 of first-degree

murder and robbery, filed a PCRA petition averring, inter alia,8 that the

Philadelphia District Attorney’s Office “maintained a practice and policy of

withholding information and evidence in violation of due process.” Id. at *1.

In support of his claim, the petitioner “attached the notes of testimony from

a post-conviction hearing in an unrelated case, where counsel was accusing

the Commonwealth of a practice of withholding police activity sheets from

discovery in the 1990s.” Id. The petitioner asserted that his allegations

satisfied both the newly discovered fact and governmental interference

exceptions. Id. This Court rejected the petitioner’s argument, noting that

under Reeves, supra, “[g]eneral allegations regarding misconduct in another

case are not sufficient to overcome the PCRA time[ ]bar.” Id. at *3. The

Moore petitioner “failed to make any specific allegations of prosecutorial

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8 The petitioner in Moore separately alleged that the assigned ADA was found

to have engaged in a policy and practice of withholding information. Moore,

2025 WL 2945839, at *1. This argument was also rejected.

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misconduct or identify any evidence that the Commonwealth withheld in his

case;” his “bald allegations, without more,” were insufficient to invoke the

PCRA court’s jurisdiction.9 Id.

So too here. Brown simply states, without elaboration, that police

activity sheets in his matter were suppressed, broadly referring to the district

attorney’s file. He does not suggest that he is aware of the contents of any

of the allegedly withheld documents, much less whether they contained Brady

material that was improperly suppressed.10 Instead, he cites testimony that,

in general, disclosure of police activity sheets was not considered by the

Philadelphia District Attorney’s Office to be mandatory prior to the 1990s, and

the activity sheets were not turned over as a matter of course. These

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9 To the extent that not turning over police activity sheets as a matter of

course was, in fact, a widespread practice, Brown’s argument, taken to its

logical conclusion, would mean that any defendant in Philadelphia convicted

before the early 1990s could make the same argument. Indeed, Brown refers

to himself as part of a “class of defendants,” specifically, those convicted of

homicide cases predating the 1992 change in policy. See Response to Rule

907 Notice, 4/1/25, at 1. Brown cites no authority to support such a sweeping

interpretation of the PCRA’s timeliness exceptions.

10 Notably, in the notes of testimony Brown attaches to his petition, the

prosecutor denies that the documents requested by the defendant in that

matter contain exculpatory or impeachment evidence and, therefore, argues

that they do not qualify as Brady material and were never required to be

disclosed. PCRA Petition, 10/30/24, at Ex. B p. 15–16. She notes that at

some point in the past, this practice of not routinely disclosing police activity

sheets was litigated, and the office changed its procedures as a result. Id. at

13, 15. The court pressed both the Commonwealth and defense counsel to

provide controlling authority regarding whether the mere existence of this

policy at the time of the defendant’s trial was sufficient to bar retrial, but

neither was able to produce such authority at the hearing. Id. at 13–19.

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allegations, even if true, do not establish any misconduct by the

Commonwealth in Brown’s case. Regardless of whether disclosure of activity

sheets was discretionary at the time Brown was convicted, the Philadelphia

District Attorney’s Office, like all prosecutors’ offices in the Commonwealth,

had a Constitutional obligation to produce Brady material. Since the

Commonwealth is presumed to have complied with this obligation, Brown has

the burden to allege misconduct in his case.

In the alternative, Brown argues that we should remand this case to

allow counsel to utilize the Philadelphia District Attorney’s open file discovery

policy to review his file in its entirety, a procedure he was not able to utilize

as a pro se petitioner. See Appellant’s Brief, at 13–14. The Commonwealth

characterizes this argument as an objection to the PCRA court’s failure to hold

a hearing on Brown’s petition and argues that Brown failed to establish the

existence of genuine issues of material fact and, therefore, is not entitled to a

remand. See Appellee’s Brief, at 9–10.

The Commonwealth is correct that a PCRA court “has the discretion to

dismiss a petition without a hearing when the court is satisfied ‘that there are

no genuine issues concerning any material fact, the defendant is not entitled

to post-conviction collateral relief, and no legitimate purpose would be served

by any further proceedings.’” See Lopez, 249 A.3d at 1000, quoting

Pa.R.Crim.P. 909(B)(2). However, this does not directly address Brown’s

argument, which amounts to a concern that if counsel’s file review were to

reveal an issue with the “suppressed [a]ctivity [s]heets herein,” Brown would

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be “at risk of having the issue deemed previously litigated should the issue

become ripe following file review.” Appellant’s Brief, at 14. The

Commonwealth reasonably responds, however, that should counsel review the

file and find that the Commonwealth improperly withheld police activity sheets

containing Brady material, Brown could file a PCRA petition alleging that the

information he uncovered meets one of the exceptions upon which he

currently relies. See Appellee’s Brief, at 10 n.1. We agree.

Because Brown’s PCRA petition is facially untimely, and he has failed to

plead and prove any timeliness exception, we affirm the PCRA court’s order

dismissing the petition.

Order affirmed.

Date: 4/23/2026

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