Commonwealth v. Brown, L.; of: Family Members

[J-6-2025]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ.

COMMONWEALTH OF PENNSYLVANIA : No. 32 EM 2023

:

: On King’s Bench petition from the

v. : order of the Philadelphia County

: Court of Common Pleas at No. CP-

: 51-CR-0407441-2004, dated May 5,

LAVAR BROWN : 2023, granting Brown’s petition under

: the Post Conviction Relief Act and

: vacating the judgment of sentence

PETITION OF: FAMILY MEMBERS OF : entered on October 24, 2004, with

MURDER VICTIMS MICHAEL : the consent of the Commonwealth.

RICHARDSON AND ROBERT :

CRAWFORD ARGUED: March 5, 2025

OPINION

JUSTICE DOUGHERTY DECIDED: June 16, 2026

The prosecutor does not decide whether a defendant is entitled to relief under the

Post Conviction Relief Act (PCRA).1 This is the exclusive province of the PCRA court.

Nonetheless, while not dispositive, a prosecutor’s concession of relief is undoubtedly

influential. Courts have long been instructed to give such concessions “great weight[.]”

Young v. United States, 315 U.S. 257, 258 (1942). But when the prosecutor sides with a

defendant, there generally is no adversarial testing of the defendant’s entitlement to relief,

and the court is left without the benefits of opposing advocacy, including the presentation

of counterarguments and exposure of misrepresentations of fact and law. The PCRA

court’s review is limited to the record before it. If relevant evidence is withheld from the

court, this pertinent information goes unconsidered. The court is not permitted to conduct

1 See 42 Pa.C.S. §§9541-9546.

its own independent investigation of extra-record materials, and it is not equipped to do

so in any case. For these reasons, an unreliable prosecutorial concession substantially

risks the erroneous grant of relief by the court. This is not to say a prosecutor should

never concede relief. A prosecutor bears the responsibility of a minister of justice and not

simply that of an advocate. Hence, a prosecutor is duty-bound to confess error, provided

the facts and law call for it. But the proviso is critical. When relief is not dictated by the

record and law but merely advocated for personal, political, ideological, policy, or other

non-legal reasons, a prosecutor’s concession does not minister justice; it facilitates

injustice.

Here, in this case reviewed under our King’s Bench jurisdiction, the Philadelphia

District Attorney’s Office (DAO), on behalf of the Commonwealth, conceded that Lavar

Brown (Brown), a convicted murderer sentenced to death for a separate murder, was

entitled to a new trial based upon a facially untimely claim under the PCRA. Upon careful

review, we conclude this concession was not reliable. More specifically, we find the DAO

conceded relief although none was warranted based on the existing record, violated its

duty of candor to the PCRA court, withheld material evidence from the court, opposed

efforts by amici to gain access to this evidence, submitted a false stipulation of fact,

misstated facts in its pleadings, failed to conduct a reasonable investigation, and opposed

a required evidentiary hearing. The predictable result was the erroneous grant of a new

trial.

These circumstances, troubling as they are, would not warrant a remedy beyond

reversal of the PCRA court’s order in this particular case if they were confined to this one

case. Unfortunately, they aren’t. Since 2018, the DAO has conceded relief well over 100

times, mostly in murder cases like this one. There have been numerous instances of

untrustworthy concessions, lack of candor, misrepresentations of fact, lack of adequate

[J-6-2025] - 2

investigation, and avoidance of hearings. And the problems are poised to continue.

There are apparently more than 1,000 cases yet to be reviewed by the DAO’s Conviction

Integrity Unit (CIU), and the DAO vigorously defends its checkered concession program

as a necessary corrective to past misdeeds by prior administrations.

The DAO’s active, ongoing, and problematic concession program requires broader

remedial action to promote just outcomes. Accordingly, in addition to reversing the PCRA

court’s grant of a new trial here, we also hold that in any PCRA case in which the DAO

concedes relief, the PCRA court shall grant the Office of Attorney General (OAG) notice

and the right to intervene in the case before ruling on the concession. Regardless of the

OAG’s position on the concession if it chooses to intervene — it may well agree relief is

warranted — its independent assessment and participation will enhance the reliability of

the proceedings and the PCRA court’s ultimate decision.

I. Background

In December of 2002, Jamaar Richardson began working at a Rite Aid at the

intersection of 12th Street and Girard Avenue in Philadelphia. On January 17, 2003,

Jamaar was at his nearby house at 1218 N. 11th Street. He was there with his brother

James Richardson, who also lived at the house, as well as Kiana Lyons, who lived directly

behind the Richardson house, and Brown. Jamaar explained to James, Lyons, and

Brown that he would be responsible for opening the Rite Aid the next morning, that there

would be $50,000 in cash in the store’s two safes, and that the only other people who

would be present at the store would be the manager and a delivery truck driver.

On the morning of January 18, 2003, at approximately 4:00 a.m., Delbert Wech,

an assistant manager of the Rite Aid, arrived at the store. Thereafter, Jamaar also arrived

at the store and assisted in unloading the delivery truck. After the delivery truck was

unloaded, Wech exited the back door of the Rite Aid and put trash in the dumpster. As

[J-6-2025] - 3

Wech returned to the back door, he encountered Brown, who was armed with a rifle or

shotgun. Brown motioned for Wech to enter the store. Instead, Wech turned and ran. At

that point, he noticed James standing approximately one car’s length away. James fired

a gunshot at Wech but missed, and Wech continued to flee. Lyons saw Brown, who was

still armed, and James run through her backyard and enter the Richardson house.

Later that day, James met with Ronald Vann and Christopher Kennedy. James

told the men he and another person had attempted to rob the Rite Aid, and the manager

had gotten away.

On January 19, 2003, Brown, Vann, James, Jamaar, Kennedy, and Lyons met at

the Richardson house to plan another robbery of the Rite Aid. Their plan called for each

of them to perform specific tasks. Specifically, they planned for Lyons to enter the store

first and report back about how many people were inside, Vann to close the gates from

the inside, Kennedy to take the manager to the safe and shoot him in the leg if he gave

him any trouble, James to grab the security guard and prevent him from running out the

door, and Brown to get everyone in the store onto the ground and make sure no one

moved. In addition, Jamaar advised the group where the alarms were located and how

to open the gate at the back of the store.

Following the meeting, Lyons entered the Rite Aid, bought a few items, and

reported back that there was one security guard and two cashiers inside. Thereupon,

Kennedy entered the Rite Aid while Brown, Vann, and James remained outside. Inside

the Rite Aid, Kennedy followed the manager, Michael Richardson,2 down an aisle.

Moments later, a cashier working at the store, Dinlitha Banks, heard a gunshot and heard

Michael Richardson cry out, “[b]ut I didn’t do anything. I didn’t do anything.” N.T. Trial,

7/20/04, at 63. Banks ran out of the store to a payphone and called the police. James

2 Michael Richardson was not related to Jamaar and James.

[J-6-2025] - 4

approached a window to the Rite Aid and then ran back to Brown and Vann and said,

“Chris did it.” N.T. Trial, 7/22/04, at 154. At that point, Brown, James, and Vann ran back

to the Richardson house.

The police responded to the scene and saw Kennedy run out of the back door of

the Rite Aid with a gun and a trash bag. The police ordered Kennedy to stop but he kept

running. They gave chase and eventually apprehended him. The officers recovered

Kennedy’s gun as well as the trash bag, which contained $2,200 in cash. The police

discovered Michael Richardson lying in a pool of blood in his office. He had a bullet hole

in the side of his head near his left ear. Although he was still alive, he was gasping for

air and could only respond to the police with a gurgling sound. He died a short time later

at the hospital.

At approximately 8:45 p.m. that evening, approximately two hours and fifteen

minutes after the murder at the Rite Aid, the police arrested Vann and Brown outside of

the Richardson house. They were subsequently released.

Vann later gave a series of statements to the police regarding the Rite Aid murder.

On January 21, 2003, at approximately 11:15 a.m., he gave a statement to Detective

Brian Peters of the Central Detectives Division (CDD)3 in which he implicated Kennedy

and James in the murder. That same day, at approximately 1:55 p.m., he gave a

statement to Detective Kevin Judge of the Homicide Division in which he again implicated

Kennedy and James. He also noted “a girl” was at the Richardson house before the

murder.

Next, on February 20, 2003, Vann gave a statement to Detectives Gregory

Santamala and Timothy Brooks of the CDD. In this statement too he implicated Kennedy

3 Detective Peters retired from the Philadelphia Police Department in 2021 and presently

works as a Special Agent for the OAG. He is referred to herein as Detective Peters in

accordance with his position at the time of the relevant events.

[J-6-2025] - 5

and James. Additionally, he alleged Jamaar4 was involved in the murder and told the

police he believed Brown was involved in the failed robbery of the Rite Aid the day before

the murder.

On March 21, 2003, in a proffer session attended by Assistant District Attorney Bill

Fisher (ADA Fisher), Detectives Santamala, Brooks, and Judge, Sergeant Andrew Byard,

and Vann’s counsel, Vann gave another statement to law enforcement. This statement

is memorialized in a memorandum to the file from ADA Fisher dated March 31, 2003

(March 2003 memorandum), which provides:

ADA spoke with defendant’s counsel alone and gave him a copy of

defendant’s statements, also informed him that defendant had given an

informal (oral) statement to Dets. Brooks and Santamala. ADA didn’t inform

the defendant’s attorney about specific content of the oral statements,

however, counsel was informed that the oral statements were more

expansive or conflicted with the written statements.

Counsel was given an opportunity to speak in private with Vann, prior to our

interview.

Vann was not immediately forthcoming — but eventually [h]e probably told

most of the truth — in a patchwork, haltingly painful reluctant manner.

This is a summary of what he said:

On the day of the murder, 1/19/03 (about game time[5]) he, James

Richardson, Black (Lavar Brown), were in Richardson’s kitchen — Black and

Richardson talked about the robbery of Rite Aid (1/18/03, 5:00 a.m.) — both

admitted to their involvement of [sic] that robbery. James Richardson may

have had a 9mm and Black a rifle. I think Vann said it was some type of

assault weapon (W[e]ch said that the doer had shotgun — he knows is a

hunter and knows guns.)

James Richardson shot at manager. (A 9mm FCC was found the next day

by W[e]ch.)

4 The statement referred to Jamaar as “Jamal.”

5 The Philadelphia Eagles played the Tampa Bay Buccaneers in the National Football

Conference Championship Game of the National Football League on January 19, 2003.

[J-6-2025] - 6

At some point Jamaar Richardson and Chris Kennedy were in the kitchen.

The robbery the previous night was discussed in Jamaar’s presence — it was

not clear whether he helped plan this robbery.

Vann seemed to suggest that Black was the “leader” or “motivator”/“initiator”

when the discussion turned to the plan for the robbery on 1/19/03. However,

Jamaar provided specific information — only camera in front of store didn’t

work; only panic button near the safe; no money pick-up on Sunday.

The original plan required Kinyana (a young black woman, 17-18 years old)

to case the store — she went to the store prior to the robbery — bought a

bottle of Nyquil — came back to house — told them the number of people

working in the store and how many cars in parking lot.

Subsequently, Vann, Black, Kinyana, Chris and James went back to store —

Chris had 40 + cal, Black had an assault rifle, and James had 9mm. Kinyana

and Vann were unarmed (according to Vann).

Only Chris and Kinyana went into the store. It is not clear whether they

entered together. I interviewed several witnesses — no one mentioned

seeing a girl. One witness (store clerk not interviewed by the police)

remembers seeing Chris Kennedy but no girl. Keith Quinn recalls seeing

Chris Kennedy with short person with hoody (fits description of girl) walking

towards the entrance of the store minutes before the robbery.

[Kinyana may live immediately in back of James Richardson.][6]

After speaking with Vann, Sgt. Byard and K. Judge indicated they would

follow-up on Kinyana (address-name) and research on Lavar Brown (Black).

As of this writing I have not heard anything from either. Further, I have

spoken with them about J[a]maar and the planning of the 1/19/03 robbery

and the fact that J[a]maar still shows up periodically at Rite-Aid asking

questions about the case — the witnesses (employees) are scared to death

of J[a]maar.

6 This sentence is bracketed in the original.

[J-6-2025] - 7

March 2003 memorandum at 1-2.7 Thus, in Vann’s March 21, 2003 statement, in addition

to again implicating Kennedy, James, and Jamaar in the murder, he also identified Brown

and Lyons as being involved in the killing.8

Finally, on July 22, 2003, Vann gave a lengthy and detailed statement to

Detectives Baker and Judge, likewise implicating Kennedy, James, Jamaar, Brown, and

Lyons in the murder.9 None of Vann’s statements referenced Kennisha Paige.10

On July 15, 2004, Brown’s jury trial for the Rite Aid murder began. He was tried

jointly with Kennedy, James, and Jamaar. The evidence against him at trial included the

7 Neither the DAO nor Brown provided the March 2003 memorandum to the PCRA court

below. Instead, the King’s Bench petitioners, the family members of Brown’s murder

victims Michael Richardson and Robert Crawford (Family Members), obtained the

memorandum from a public court filing by co-defendant Kennedy in his own separate

PCRA case and have included it in their supplemental appendix in this Court. See Family

Members’ Brief at ii n.1; OAG’s Brief at 53 n.22; Brown’s Answer to Allegations of Oral

Argument Misstatem[e]nts at 5.

8 The March 2003 memorandum referred to Lyons as “Kinyana.”

9 The statement referred to Lyons as “Keyanna.”

10 Attached as exhibits to the OAG’s reply memorandum in support of Family Members’

petition for King’s Bench review, which this Court permitted and ordered docketed when

we assumed King’s Bench jurisdiction, are declarations from Detectives Judge and

Peters. The Judge declaration alleges: “[w]hile I do not have a specific recollection of

someone named Kennisha Paige, had she been identified at any point by Vann or anyone

else as being involved or being in possession of any information about the homicide, that

information would have been documented.” Declaration of Detective Kevin Judge at ¶16

(undated). Similarly, the declaration of Detective Peters asserts: “[a]t no time during my

encounter and interactions with Vann at Central Detectives on January 21, 2003 did Vann

ever say to me, or another detective/officer in my presence, that someone named

Kennisha Paige was involved in the commission of the Rite Aid robbery/murder on

January 19, 2003. If he did, I would have documented that information.” Declaration of

Special Agent Brian Peters, 6/14/23, at ¶13. In addition, the Peters declaration claims:

“[w]hile I do not specifically recall the name Kennisha Paige, I distinctly remember that

Vann discussed two girls that lived in the area and hung around these suspects regularly.”

Id. at ¶14.

[J-6-2025] - 8

testimony of Vann and Lyons.11 The questioning of Vann, which included extensive

cross-examination by counsel for each of the four co-defendants, elicited considerable

information challenging his credibility. For example, Vann’s testimony revealed he had a

separate open robbery case; pleaded guilty to selling drugs; had other drug convictions;

violated his parole following the Rite Aid murder and served nine months in prison; initially

lied to the police about the murder “to keep [himself] out of it”; lied to the police “about

three times”; hoped his testimony would help him with his own cases; and was the

beneficiary of a testimonial immunity order providing that if he testified about the murder,

the Commonwealth would not be able to use his testimony against him in any criminal

prosecution. See N.T. Trial, 7/22/24, at 159-161, 171, 361-62. Ultimately, the jury

convicted Brown of second-degree murder, two counts of criminal conspiracy, two counts

of robbery, aggravated assault, and possessing an instrument of crime. The trial court

sentenced him to life imprisonment for second-degree murder.12 On September 20, 2006,

11 Jamaar also implicated Brown in the murder in his statement to police on February 10,

2004. Statement of Jamaar Richardson, 2/10/04, at 3. This statement was introduced at

trial, but the references to Brown therein were redacted. See N.T. Trial, 7/26/04, at 257-

281. In addition, the trial court instructed the jury to consider Jamaar’s statement against

him only, and to not consider it in any way against any of the other defendants. See N.T.

Trial, 7/28/04, at 227-28.

12 On May 31, 2005, a jury convicted Brown of first-degree murder and related offenses

for a second murder, the murder of Crawford, which he committed on December 10, 2003,

before he was arrested for the Rite Aid murder. In that case, Brown and Rahsaan

Anderson were standing on Girard Avenue in Philadelphia when Brown saw Crawford

crossing the street. Brown stated, “There go that pussy.” He then approached Crawford

from behind and shot him multiple times in the back. Brown and Anderson began to run.

Two police officers were nearby, one of whom pursued Brown and ordered him to stop.

Brown, however, continued to flee. Other officers joined the chase, and the police

eventually found Brown hiding under a car. A gun was recovered nearby. The jury

sentenced Brown to death for the first-degree murder of Crawford. One of the aggravating

circumstances supporting the death sentence was Brown’s second-degree murder

conviction for the Rite Aid murder.

(continued…)

[J-6-2025] - 9

Following the affirmance of his death sentence on direct appeal, Brown filed a petition

under the PCRA. The petition was denied, and Brown appealed to this Court, raising

thirteen issues. “On September 19, 2017, the Commonwealth filed a lengthy (ninety-

eight-page) brief in which it opposed any and all relief on these thirteen issues.”

Commonwealth v. Brown, 196 A.3d 130, 141 (Pa. 2018). Thereafter, however, on

January 2, 2018, there was a change in administration at the DAO, and Lawrence S.

Krasner became the District Attorney of Philadelphia (DA Krasner). On April 9, 2018, the

DAO and Brown filed a joint motion with this Court confessing error with respect to one

of Brown’s claims: his allegation that trial counsel was ineffective for not developing and

presenting mitigating evidence at the penalty phase of the capital trial. The joint motion

requested this Court grant relief on the claim, vacate Brown’s death sentence, and

remand to the trial court for resentencing to life imprisonment. On April 23, 2018, this

Court ordered the parties to submit supplemental briefing in support of the joint motion

and invited the OAG to participate as amicus and file a brief. In its brief in support of the

joint motion, the DAO argued “when a district attorney makes a ‘reasoned fact and policy-

based decision not to defend a particular conviction or sentence,’ this Court must

immediately remand for imposition of the agreed-upon relief, as this Court may not

‘second-guess legitimate exercises of prosecutorial discretion.’” Id. at 143, quoting DAO’s

Supplemental Brief at 3. The OAG, on the other hand, contended this Court cannot

accept confessions of error by a prosecutor without conducting independent judicial

merits review. This Court rejected the DAO’s position and agreed with the OAG, holding

that “neither the parties, by agreement, nor this Court, absent a finding of legal error, have

the power or ability to order that the jury’s verdict be commuted to a life sentence without

parole.” Id. at 144. Upon independent judicial review of the penalty phase claim

conceded by the DAO, this Court disagreed with the DAO’s assessment of its merits, and

instead concluded no relief was due on the issue. See id. at 149-158. The Court denied

the joint motion and affirmed the denial of PCRA relief. On September 9, 2021, Brown

filed another PCRA petition, which remains pending in the PCRA court. He also has a

pending petition for a writ of habeas corpus in federal court challenging his judgment of

sentence in his capital case, which he filed on July 19, 2019. Among other claims,

Brown’s federal habeas petition raises the claim of ineffective assistance of counsel in

the penalty phase rejected by this Court in 2018. On May 28, 2021, the DAO and Brown

filed in federal court a joint motion for sentencing relief based on this claim. The joint

motion alleged this Court’s denial of the claim “was based on an unreasonable application

of clearly established federal law and an unreasonable determination of the facts.” Brown

v. Wetzel, 10-5553, ECF No. 33, 5/28/21, at ¶13. The joint motion also argued that while

the DAO’s concession to relief on the mitigation ineffectiveness claim was “not binding”

on the district court, it was nonetheless “entitled to substantial deference.” Id. at ¶14.

After oral argument was held in this matter, however, the DAO filed a motion for leave to

withdraw the joint motion for sentencing relief. The DAO explained the joint motion did

not align with “the DAO’s current practice . . . to file a fulsome merits response in every

case,” which “applies both when the DAO opposes relief and when the DAO agrees that

some form of relief is due.” Brown v. Wetzel, 10-5553, ECF No. 62, 10/6/25, at 3. The

DAO’s motion to withdraw was granted on April 21, 2026.

[J-6-2025] - 10

the Superior Court affirmed Brown’s judgment of sentence, and this Court denied

allowance of appeal on May 15, 2007.

On July 24, 2007, Brown filed a timely pro se petition under the PCRA. Lloyd Long,

Esq., was appointed to represent him and filed an amended petition on his behalf.13

Attorney Long subsequently withdrew from the case and Brown’s current counsel, the

Federal Community Defender Office for the Eastern District of Pennsylvania, entered their

appearance and filed a supplemental amended petition. The Commonwealth opposed

relief. The PCRA court conducted an evidentiary hearing at which James Funt, Esq.,

counsel for Lyons, testified.14 The PCRA court dismissed the petition, and the Superior

Court affirmed.

On June 23, 2020, Brown filed a second PCRA petition. Thereafter, on June 28,

2021, he filed a Supplement and Amendment to Successor Petition for Writ of Habeas

Corpus and for Collateral Relief from Criminal Conviction (Amended Second PCRA

Petition). In the latter filing, Brown pertinently claimed the Commonwealth violated Brady

v. Maryland, 373 U.S. 83 (1963)15 when it “withheld [from Brown prior to trial] evidence

that [Vann] falsely accused an individual named Kennisha Paige of being involved in the

January 19, 2003 Rite Aid robbery/murder.” Amended Second PCRA Petition, 6/28/21,

at ¶63. Specifically, he faulted the Commonwealth for failing to disclose four documents,

which he attached as exhibits to the appendix to his Amended Second PCRA Petition.

13 Attorney Long was subsequently the law partner of DA Krasner, from January 2012 to

June 2017. See DAO Response to Claim of Conflict of Interest, 12/10/21, at ¶12.

14 Attorney Funt is a partner in the law firm of Greenblatt, Pierce, Funt & Flores LLC.

DA

Krasner was associated with this firm from June 2017 to January 2018. See id. at ¶7.

15 “Under Brady, the State violates a defendant’s right to due process if it withholds

evidence that is favorable to the defense and material to the defendant’s guilt or

punishment.” Commonwealth v. (Christopher Lynn) Johnson, 335 A.3d 685, 703 n.4 (Pa.

2025), quoting Smith v. Cain, 565 U.S. 73, 75 (2012).

[J-6-2025] - 11

First, he claimed the Commonwealth failed to disclose a memorandum from Detective

Baker16 to Detective Judge dated July 14, 2003, which provided:

Monday the 14th of July 2003

M03-14[17]

Det. K. Judge

Kevin I called Kennisha Paige at about 6:30 p.m. and she said she would

come down for an interview, she didn’t show. I called her back at about

7:30 p.m. and she said she was getting dressed, she never showed. She

did however say that she was incarcerated until 6/03.

I called and spoke to her mother, seemed nice, she said she couldn’t control

her daughter and that her daughter was living with a lady Marzetta (NFI)

1216 Stiles St.[]

I called Gannondale (School for girls) and they said she would get weekend

passed [sic] but they could not tell when she was home, we would have to

call tomorrow (7/15/[03]) and talk to Specialist Nancy Sabol at 814-899-

7659.

I located a Marzetta in public housing, but Mom will have to ID.

I will attempt to get her tomorrow, after we talk to Gannondale. I would hate

to drag her in and then find out that she was truly incarcerated and Vann

was lying. After all he is the only one that mentioned her.

Envelope in my box[.]

Amended Second PCRA Petition, 6/28/21, at Appendix, Exh. 20.

Second, Brown alleged the Commonwealth withheld another memorandum from

Detective Baker to Detective Judge dated July 15, 2003, which provided:

Tuesday the 15th of July 2003

16 Although Detective Baker’s memoranda to Detective Judge on July 14 and 15, 2003

are not signed, it is clear he wrote them. They are written in the first person and refer to

Detective Baker receiving a fax from the Gannondale Residential Center for Girls on July

15, 2003. A copy of the fax confirms he received a fax from Gannondale on that date.

Moreover, the parties agree Detective Baker authored these documents. See Family

Members’ Brief at 38; OAG’s Brief at 52; DAO’s Brief at 19.

17 This was the case number for the Rite Aid murder. See Joint Stipulations of Fact,

11/8/22, at ¶18.

[J-6-2025] - 12

M03-014

Det. K. Judge 8062

On Monday the 14th of July at about 6:30 p.m. I called [redacted 18] and

spoke to Roslyn Paige, the mother of Kennisha Paige, who indicated that

she was unable to control her daughter that when she turned eighteen she

began staying with an older lady Marzetta who lived at 1216 Stiles Street.

Also that Kennisha was incarcerated until Father’s day 2003. Ms. Paige

then put Kennisha on the phone and Kennisha told me that she didn’t know

anything about a murder but was willing to come to Homicide for an

interview, that she was incarcerated.

At about 7:30 p.m. I called Kennisha and inquired if she was indeed coming

in for an interview, she indicated that she was getting dressed and would

be in. She never showed.

I contacted Gannondale residential center for girls (814-899-7659) and was

informed that Kenneshia [sic] had been a client from 9/16/02 until 6/03 but

did not get home passes. I was told that for more detail I would have to

contact Nancy S[abol] during working hours.

On Tuesday the 15th of July 2003 at about 2:35 p.m. I spoke to Nancy Sabol

and she affirmed that Kennisha was a client and not away from the Center

during the time of the homicide. I requested and received a fax copy of the

“Night log chart” which showed Kennisha in residence during the time of the

homicide.

Gannondale i[s] located in Erie Pennsylvania.

Amended Second PCRA Petition, 6/28/21, at Appendix, Exh. 21.

Third, Brown accused the Commonwealth of failing to disclose a fax from

Gannondale to Detective Baker on July 15, 2003. The fax included the night log chart

indicating Paige19 was at Gannondale on January 19, 2003, the day of the Rite Aid

murder.

18 This content is blacked out in the document.

19 The night log chart referred to Paige as “Kinneshia.”

[J-6-2025] - 13

Fourth, Brown claimed the Commonwealth withheld an undated memorandum

titled “23rd Dist, ‘A’ Sector Robberies” (23rd District memorandum)20 which provided:

23rd Dist, “A” Sector Robberies

On 1/21/03, defendant Ronald Vann PPN/867801 was arrested by CDD SIU

for the robbery, point of handgun of a pizza delivery person, [redacted]

(DC#03-23-00618)

Vann then co-operated with CDD SIU, providing in[f]ormation into the

robbery of the Rite Aid, 1301 Girard Ave, on 1-18-03, and the homicide at

the Rite Aid the following day, 1-19-03. Based on Vann’s co-operation,

defendants Christopher Kennedy 22/B/M, PPN/840063 and James

Richardson 22/B/M, PPN/858783 have been arrested and charged with

robbery & homicide. (DC#03-23-001770 and 03-23-001914)

Vann is continuing to co-operate with CDD SIU regarding robberies being

committed in the 23rd dist area of Broad and Girard Ave, providing

confidential information concerning the following:

Robbery/Homicide: Jama[a]r Richardson 21/B/M, 1218 N 11th St (no

record), Kennisha Paige 17/B/F, 1116 Stiles St

Robberies: William Green 19/B/M, PPN/885936, [redacted]

Anthony Frames 20/B/M, PPN/836622, aka “Spanky”

Lavar Brown, 25/B/M, PPN/807547, 1222 N 11th, aka “Black”

Stephen Kennedy 19/B/M, PPN/823690, [redacted]

James Montgomery, 20/B/M, PPN/885941, [redacted]

Naheem Johnson 20/B/M, PPN/851060, [redacted]

Amended Second PCRA Petition, 6/28/21, at Appendix, Exh. 12.21

20 The Commonwealth provided a redacted version of the 23rd District memorandum to

Brown in 2010 in connection with the litigation of his first PCRA petition. See Amended

Second PCRA Petition, 6/28/21, at ¶60.

21 Although the 23rd District memorandum is not dated, it references the arrest of James,

which occurred on February 4, 2003. See N.T. Trial, 7/26/04, at 110, 134. The

memorandum also states Jamaar has “no record[,]” indicating it was written before his

arrest on February 10, 2004. See id. at 250. Hence, it appears the memorandum was

drafted at some point between February 4, 2003, and February 10, 2004. Detective

Peters described this document as follows:

(continued…)

[J-6-2025] - 14

Brown argued “[t]he suppression of the paperwork about Kennisha Paige deprived

the defense of evidence that could have been used at trial to show police knew Mr. Vann

had provided untrue information and was capable of falsely implicating an innocent

person in this crime simply to save himself.” Amended Second PCRA Petition, 6/28/21,

at ¶68 (emphasis in original). “This is particularly important,” he contended, “because

based on this false accusation, the jury could have surmised that Mr. Vann was also lying

when he implicated Mr. Brown — given Mr. Vann made no mention of Mr. Brown being

involved in this crime until later.” Id. According to Brown, “[t]he defense could have used

the suppressed paperwork to discredit not only Mr. Vann’s testimony implicating Mr.

Brown, but also the investigation resulting in [Brown’s] conviction.” Id. Brown filed the

Amended Second PCRA Petition under seal.

On August 18, 2021, Brown and the Commonwealth, represented by the DAO,

filed a joint motion to unseal the Amended Second PCRA Petition. Additionally, Brown

moved, without opposition by the DAO, to amend his Amended Second PCRA Petition to

assert that the allegations therein were based on “newly discovered evidence . . . obtained

from review of homicide detectives’ files (H-files) and Philadelphia District Attorney’s

Office files in the Philadelphia District Attorney’s Office . . . conducted in late 2020 and

I recognize this document generally as a summary prepared for a

“CompStat” meeting. This is a monthly administrative meeting wherein

each Captain and supervising officer provides a general briefing to Police

Command about ongoing investigations and other matters of interest in their

respective areas of command. Detectives do not attend these meetings.

This document was not prepared by me or by any other detective in CDD.

Generally, these CompStat summaries were prepared by one of two officers

assigned to administrative duties that worked at CDD during this time. It is

my belief, based on my knowledge of how and why these documents were

prepared, that this document was generated by one of these administrative

officers at CDD, and possibly based on handwritten notations taken by me

or another Detective during my encounter with Vann.

Declaration of Special Agent Brian Peters, 6/14/23, at ¶16.

[J-6-2025] - 15

early 2021 and concluded when the Commonwealth provided [Brown’s] counsel with

redacted copies of all documents flagged for copying on April 13, 2021.” Joint Motion to

Unseal and Unopposed Motion to Amend Supplement and Amendment to Successor

Petition and Appendix, 8/18/21, at ¶3. Brown claimed “[t]he [Amended Second PCRA

Petition] is timely filed pursuant 42 Pa.C.S. §9545(b)(1)(i) (government interference) and

42 Pa.C.S. §9545(b)(1)(ii) (newly discovered evidence).” Id.

On November 1, 2021, the DAO filed a response to Brown’s PCRA petition.

Therein, the DAO asserted that following a “thorough, independent review of the records

in this case[,]” it “now agree[d]” with Brown that he was “entitled to a new trial.” DAO’s

Response to Petition for Collateral Relief, 11/1/21, at ¶¶8,10. In particular, the DAO

agreed with Brown that the Commonwealth violated Brady by failing to disclose evidence

that Vann implicated Paige. See id. at ¶¶105-08. The DAO insisted the PCRA court was

“in a position to do what the prior PCRA court could not — review Brown’s claims in light

of a complete record.” Id. at ¶129. “Given the record as a whole,” the DAO “believe[d]

Brown was likely involved in the robbery and homicide, but his trial and subsequent

proceedings were infected by serious misconduct.” Id. at ¶138. The DAO emphasized

“[t]he misconduct in this case is particularly troubling as Brown’s conviction served as an

aggravator in a separate capital case.” Id. at ¶139 (footnote omitted). The DAO also

accused the prior prosecutors in the case, both at trial and in the first PCRA proceeding,

of exhibiting a “win at all costs mentality” and engaging in “misconduct [that] falls short of

prosecutors’ legal, ethical, and constitutional obligations[.]” Id. at 59. In the DAO’s view,

“this case [was] a stark example of what can go wrong when prosecutors cut corners and

[J-6-2025] - 16

shirk their ethical and constitutional duties in order to obtain and defend convictions of

defendants they believe are guilty.” Id. at 4.22

On January 24, 2022, Family Members filed a motion to intervene in Brown’s

pending PCRA case “to litigate the disqualifying conflict of interest of the [DAO], and in

the alternative to provide th[e PCRA court] with a balanced account of the merits of

[Brown’s] current postconviction claims[.]” Motion for Intervention by Victims’ Families,

1/24/22, at 1. Family Members alleged the DAO had a disqualifying conflict of interest

based, inter alia, on DA Krasner’s prior professional relationships with Attorneys Long

and Funt, and the DAO’s apparent effort to “circumvent” this Court’s decision in Brown by

conceding relief in his non-capital case which served as an aggravator for his death

sentence. Id. at 9. Alternatively, Family Members argued that “[e]ven if the [DAO] were

not disqualified, . . . intervention would still be essential to vindicate the interests of the

victims’ families by permitting [them] the opportunity to review the full, lengthy file and

prepare a thorough response to [Brown’s] claims. This Court cannot make a proper

decision without hearing both sides of these factually and legally complicated issues.” Id.

at 10. The DAO opposed intervention.

On July 8, 2022, the PCRA court issued an order denying Family Members’

request to disqualify the DAO. Additionally, in a separate order the same day, the court

granted in part and denied in part Family Members’ motion to intervene. The court

granted intervention solely for the purpose of litigating the conflict-of-interest issue, which

it had decided in the DAO’s favor, but denied intervention for the purpose of litigating the

22 In a footnote, the DAO referenced Vann’s March 21, 2003 statement. See id. at ¶74

n.8 (“The first formal statement implicating Brown in this crime was taken in July 2003,

and there is no record of Vann discussing Brown informally prior to March 2003.”).

[J-6-2025] - 17

merits of Brown’s PCRA petition. The court ordered Family Members could be heard on

the merits of the pending PCRA petition as amici curiae.23

Regarding future proceedings, the PCRA court noted the existing record was

insufficient to determine Vann in fact implicated Paige and to grant relief, and that an

evidentiary hearing was required:

I will also state that I am not going to grant the petition based on the existing

record. I’m going to require an evidentiary hearing. I’m going to require

that all of the prosecutors who participated in this case and whose conduct

is at issue be subpoenaed to testify.

I also — I agree with the [Family Members] on the insufficiency of the record;

and in particular, I do want to see more evidence on the statement that

Ronald Vann allegedly made implicating Kennisha Page [sic]. I agree with

[Family Members’] argument that on the face of the documents that were

submitted to me, I can’t tell that that, in fact, happened. And I also want to

hear the perspective of all of the district attorneys who worked on this case

and whose conduct is at issue and hear what they believe happened and

find out — get to the bottom of it.

But on the existing record, it’s my considered view — and I’ve spent a lot of

time on this — that there is not enough information in the paperwork for me

to grant the petition notwithstanding the fact that both parties are of the

opinion that it should be granted.

N.T. PCRA Hearing, 7/8/22, at 6-7; see also id. at 10 (court noting that if there is no appeal

by Family Members it will “schedule an evidentiary hearing”); id. at 11 (same).

On August 11, 2022, the PCRA court reiterated that Brown was not entitled to relief

on the existing record and an evidentiary hearing was necessary. Responding to defense

counsel’s argument “a hearing is not needed[,]” the court noted, “Well, that train has left

the station. We’re having a hearing. I’ve already ruled on that at the last listing.” N.T.

Hearing, 8/11/22, at 13. The court elaborated: “I’m interested in actually what happened,

and I don’t think that’s clear just from the submissions that I received.” Id. The court

23 Family Members did not appeal these orders.

[J-6-2025] - 18

ordered briefing regarding the witnesses to be presented at the evidentiary hearing, the

scope of the hearing, and the role of Family Members at the hearing. See id. at 16.

In their opening brief, Family Members argued Brown’s second PCRA petition was

“untimely[.]” Opening Brief of Amicus Curiae Victims’ Family to Dismiss Brown’s Untimely

and Meritless PCRA Claims, 9/9/22, at 10. In addition, Family Members’ brief included

extensive discussion of the merits of Brown’s claims. They argued an evidentiary hearing

was not warranted because it was clear Brown was not entitled to relief. See id. at 61-62

(“Rule 907 of the Pennsylvania Rules of Criminal Procedure provides that the PCRA court

can deny a petition without a hearing when it determines ‘that there are no genuine issues

concerning any material fact and that petitioner is not entitled to post-conviction collateral

relief and no purpose would be served by any further proceedings . . . .’ Pa.R.Crim.P.

907. That is the case here.”). Alternatively, Family Members insisted that if the court

ordered an evidentiary hearing, their participation therein was “essential . . . to protect the

sanctity and integrity of the criminal justice system in this case[.]” Id. at 62. Relatedly,

they requested “access to the complete file in this case[,]” arguing this “would be the only

way to make certain th[e PCRA court] was presented with all the relevant documentation

in the case before making its determination — and not just those documents that the

parties believe support their mission to vacate the conviction.” Id. at 67 (emphasis

omitted).

The briefs of Brown and the DAO similarly argued an evidentiary hearing was

unnecessary because Brown was entitled to PCRA relief as a matter of law. See Brown’s

Memorandum on the Scope of the PCRA Hearing and Role of Amicus Curiae (Brown’s

Pre-Hearing Brief), 9/9/22, at 2 (“[T]here is no need for an evidentiary hearing because

the pleadings and proffered evidence establish that there are no genuine issues of

material fact and Mr. Brown is entitled to relief as a matter of law[.]”); DAO’s Pre-Hearing

[J-6-2025] - 19

Brief, 9/9/22, at 4 n.3 (“[N]o additional evidence is necessary to resolve the claim[.]”).

Moreover, Brown and the DAO maintained Family Members’ participation as amici should

be limited to filing briefs, and they should not be allowed to review the DAO’s files, obtain

discovery from the DAO, or present or question witnesses. See Brown’s Pre-Hearing

Brief, 9/9/22, at 20 (“Here, the amici should not have any role other than filing briefs on

the merits.”); DAO’s Pre-Hearing Brief, 9/9/22, at 8 (“Amici’s formal participation should

be limited to the traditional role of amicus curiae — providing briefing to assist the Court

in its resolution of the issues before it.”). In particular, the DAO alleged Family Members’

review of the prosecution’s records was “unnecessary” because “the DAO is the

Commonwealth’s representative in this case and has already reviewed the prosecution

file to ensure that any relevant evidence is provided for the [c]ourt’s review.” Id. at 9-10.

On October 7, 2022, the PCRA court continued the case for Brown to consider

whether he wanted to request an evidentiary hearing. The court expressed skepticism

as to why Brown was seeking a ruling without further factual development, as it was

dubious the paperwork submitted by Brown, i.e., the exhibits included in the appendix to

his Amended Second PCRA Petition, alone established Vann falsely implicated Paige:

It’s troubling. I mean, I raised this the first day we got this case. And

[counsel for Family Members] has raised it and has argued it, and he makes

some excellent points there. So I don’t know why you would want to submit

it in this posture, but if you do, that’s up to you. Of course, if I were to rule

against you on this, then I would have to reach the materiality issue that

would be right [sic] for a decision. But this is a preliminary matter. First of

all, did this happen? . . .

If it didn’t happen then I don’t have to figure out if it’s material or not; right?

I don’t have an answer, I have to look at it more closely. But I’m still not

understanding how everybody thinks that paperwork establishes that. I’m

a little thick about this but, seriously, I just don’t get it. . . . I don’t know how

you look at that paperwork and reach that decision. But I’m not going to

make a decision now.

[J-6-2025] - 20

N.T. Hearing, 10/7/22, at 12-13. In addition, the court observed “the briefs that [counsel

for Family Members] filed show that there are reasoned arguments to be made in support

of maintaining the judgments of the conviction[,]” and these arguments “haven’t been

made by the prosecution.” Id. at 23-24.

On November 8, 2022, the DAO and Brown filed joint stipulations of fact with the

PCRA court. The joint stipulations alleged, among other things, that “[o]n Tuesday, July

22, 2003, Ronald Vann provided a third statement to homicide investigators. That

statement was the first in which he implicated [Brown] or Kiana Lyons in the Rite Aid

robbery/homicide.” Joint Stipulations of Fact, 11/8/22, at ¶41.

The next day, at a status hearing before the PCRA court, the DAO explained the

joint stipulations of fact were submitted “to clarify why there’s no need for” an evidentiary

hearing. N.T. Hearing, 11/9/22, at 16. The court raised the concern that the factual

stipulations could be affected by the common position of the DAO and Brown in support

of PCRA relief:

I could also see that in a situation where you had a commonality of view

and a commonality of purpose to illuminate what otherwise would be real

— I’m not saying this is happening. But believe me, just purely speaking

theoretically, you can enter into stipulations on matters that could actually

have them litigated as a matter of fact but for which you both have a

common view since you both have a common position on the legal issues

and therefore foreclose any further review.

Id. at 13. The court also repeated its view there were “arguments that can reasonably be

made to support the conviction . . . that haven’t been made to support the conviction.” Id.

Thereafter, Family Members formally objected to the stipulations. See Reply Brief of

Amicus Curiae Victims’ Family to Petitioner’s Joint Stipulations of Fact, 11/22/22, at 1

(“The amicus curiae objects to ¶¶’s 1 – 42 (including all subparagraphs) of Petitioner’s

November 8, 2022, Joint Stipulations of Fact, as: (1) conclusions of law to which no further

[J-6-2025] - 21

response is required; (2) the docket/documents/writings speak for themselves; and/or (3)

otherwise, denied as stated.”).

On December 1, 2022, the PCRA court accepted the joint stipulations of fact

submitted by the DAO and Brown. However, the court noted “the record in front of me

including the stipulation does not resolve the factual question of whether Mr. Vann

actually identified Kennisha Paige as a participant in the Rite-Aid conspiracy.” N.T.

Hearing, 12/1/22, at 8; see also id. at 10 (“It seems to me there’s evidence on both sides,

and I don’t know how anybody could conclude conclusively that Vann actually identified

Paige as being one of the participants in the homicide based on this record. I don’t know

how you know that.”); id. at 13-14 (“I’m pointing out that a key factual issue in my mind is

not resolved on this existing record.”). The court observed the July 14 and 15 memoranda

“were certainly circumstantial evidence that Mr. Vann did that.” Id. at 8. Yet, the court

continued, the 23rd District memorandum “certainly doesn’t make it clear that Vann

identified Paige for the Rite-Aid homicide” and “[a]ctually” presents “circumstantial

evidence that he did not[.]” Id. at 9. The court reasoned the paragraph of the

memorandum discussing the Rite Aid murder does not reference Paige, and Paige is only

referenced in a separate, subsequent section of the memorandum discussing other

robberies. See id. at 8-9. If Vann had implicated Paige in the Rite Aid murder, the court

explained, “[i]t certainly would’ve made sense to put that up in the paragraph where

they’re talking about the Rite-Aid robbery.” Id. at 11. In addition, the court emphasized

“the reports of interview[s] with Mr. Vann never mentioned Ms. Paige.” Id. at 9. It argued

“if Vann had actually identified Paige, . . . [t]here’s no detective who wouldn’t put that in

following the ordinary course of business.” Id. at 12-13.24 Notwithstanding the PCRA

24 Brown argued the absence of Paige from Vann’s police statements could be explained

by the fact the police “checked it out[,]” i.e., investigated Paige’s possible involvement in

the Rite Aid murder, “and it didn’t check out.” Id. at 13. The court responded this would

(continued…)

[J-6-2025] - 22

court’s clear and repeated determinations that it was confronted with a material issue of

fact, i.e., whether Vann in fact implicated Paige in the Rite Aid murder, the court

nonetheless concluded it was “not going to have a hearing if everybody connected with

the case thinks I shouldn’t.” Id. at 10.

In February of 2023, Brown and the DAO submitted additional briefing in the PCRA

court again arguing Brown was entitled to a new trial because the Commonwealth violated

Brady by not disclosing Vann’s purported false incrimination of Paige. Consistent with

their joint stipulations of fact, they each represented to the PCRA court that Vann’s July

22, 2003 statement to the police was his first police statement in which he implicated

Brown and Lyons in the Rite Aid murder. See Brown’s Response to Amicus’s Opening

Brief (and Other Filings) and in Support of Successor Petition for Writ of Habeas Corpus

and for Collateral Relief, 2/6/23, at 31 (“[I]n statements made prior to his final July 22,

2003 statement, Vann . . . did not mention Kiana Lyons or [Brown] as being involved in

the January 19 robbery/homicide.”); DAO’s Consolidated Response to Briefing by Amici

and Petitioner, 2/21/23, at 15 (“They were first mentioned in Vann’s July 21 and 22, 2003,

statements[.]”); id. (“[T]he statement [Vann] provided on July 22 . . . implicated [Brown]

and Lyons for the first time.”). Similarly, the DAO contended Vann’s identifications of

Brown and Lyons came “after investigators determined that Vann had lied about Paige’s

involvement in the Rite Aid robbery/homicide.” Id. at 15 (emphasis in original); see also

id. (“Had the defense been apprised that Vann had told investigators that a demonstrably

innocent person had been involved in the crime and only implicated [Brown] after being

caught in the lie, their attacks on his credibility would have been more convincing to the

jury.”).

not explain Paige’s omission from statements predating the police’s mid-July-2003

determination that Paige had an alibi for the Rite Aid murder. See id.

[J-6-2025] - 23

On March 20, 2023, Family Members filed a reply brief asserting, inter alia, that

“[a]ll of [Brown’s] claims are untimely and to overcome the time-bar, [Brown] had to plead

and prove an exception.” Reply Brief of Amicus Curiae Victims’ Family, 3/20/23, at 45

n.14.

On May 5, 2023, the PCRA court issued an order granting Brown’s PCRA petition

and vacating his judgment of sentence for the Rite Aid murder. See Commonwealth v.

Lavar Brown, CP-51-CR-0407441-2004, Order, 5/5/23 (“AND NOW, this 5th day of May,

2023, it is hereby ORDERED, with the consent of the Commonwealth, that defendant’s

petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §9541, et seq., is

GRANTED. The judgment of sentence entered by the Court on October 24, 2004, is

hereby VACATED.”). The court granted relief based on Brown’s claim that the

Commonwealth violated Brady by failing to disclose to Brown prior to trial that Vann falsely

incriminated Paige:

I’m going to find that the record establishes that the assigned detective in

this case learned through investigation that witness, Ronald Vann, had

falsely identified Kennisha Paige as being a participant in the January 19th,

2003 robbery and murder here at issue, and that this false identification was

not disclosed to the defense; that a critical witness had made a

demonstrably false identification of someone as being a participant in the

same criminal events; however, the subject of the charges against [Brown]

was, in my view, impeachment evidence of a different character than the

impeachment material used at trial and I find that the suppressed evidence

satisfies the standard for materiality under Brady and its progeny.

N.T. Hearing, 5/5/23, at 4. The court did not address whether this claim was timely under

the PCRA’s jurisdictional, one-year filing deadline. See 42 Pa.C.S. §9545(b)(1).

On May 26, 2023, Family Members filed a petition requesting this Court to exercise

King’s Bench jurisdiction over the case.25 On April 3, 2024, this Court granted Family

25 On March 4, 2024, Brown filed a supplement to his pending PCRA petition in his capital

case claiming that in light of the PCRA court’s May 5, 2023 order vacating his conviction

for the Rite Aid murder, his death sentence for the Crawford murder should be vacated

(continued…)

[J-6-2025] - 24

Members’ King’s Bench petition and exercised King’s Bench jurisdiction to review the

PCRA court’s order vacating Brown’s judgment of sentence.26 The Court directed the

as well. See Second Supplement to Petition for Writ of Habeas Corpus and for Collateral

Relief, 3/4/24, at ¶41 (“[The PCRA court’s] May 5, 2023 findings and order vacating Mr.

Brown’s second-degree murder conviction establishes that this aggravating circumstance

was based on a constitutionally infirm conviction. Because the prosecution’s use of this

constitutionally invalid conviction influenced the jury’s deliberations in reaching a verdict

of death, Mr. Brown was denied due process, a reliable sentencing proceeding, and

effective assistance of counsel.”). On April 9, 2024, the DAO filed an answer to Brown’s

PCRA petition, alleging that “[d]uring the initial interrogation of cooperating witness Vann

[as part of the Rite Aid murder investigation], Vann told the police that a woman named

Keneisha [sic] Paige (rather than Kiana Lyons) was involved in the planning and

execution of the Rite Aid robbery.” DAO’s Response to PCRA Petition, 4/9/24, at 20. In

addition, although the DAO had conceded penalty phase relief in Brown’s capital case in

federal court in May 2021 via a joint motion for sentencing relief, see supra n.12

(explaining that DAO subsequently moved to withdraw joint motion), it opposed penalty

phase relief in state court. The DAO explained there were two factors supporting death

penalty relief:

First, a PCRA court has awarded a new trial with respect to [Brown’s] other

murder case. . . . As a result, one of the aggravating circumstances found

by his sentencing jury may no longer be applicable. Second, based on

evidence assembled during [Brown’s] first PCRA proceeding, there is a

serious concern that [his] sentencing jury received incorrect information

regarding a recognized mitigating factor — organic brain damage.

Id. at 34. However, the DAO maintained relief was nonetheless precluded for two

reasons:

First, the law of the case [this Court’s decision in Brown in 2018] precludes

relief (or an evidentiary hearing) on the grounds that the jury received

misinformation regarding [Brown’s] organic brain damage. Second, the

(possibly misinformed) jury found no mitigators and one aggravator in

addition to [Brown’s] prior murder. . . . “Where there are no mitigating factors

found and there is a finding of at least one aggravating circumstance, the

sentencing court has no discretion but to impose the death penalty.”

Id. at 40, 42, quoting Commonwealth v. Saranchak, 675 A.2d 268, 278 (Pa. 1996).

26 At the time this Court granted King’s Bench review, no Justice even wished to note their

dissent to the Court’s per curiam order. Now, however, Justice Wecht argues at length

that the Court should reverse itself and deny King’s Bench jurisdiction. See Dissenting

Opinion at 4-19 (Wecht, J.). Specifically, Justice Wecht insists we are reviewing a

(continued…)

[J-6-2025] - 25

parties to brief the issue of “[w]hether, and via what procedure, a common pleas court

judge may grant PCRA relief based upon concessions of the parties.” Commonwealth v.

Brown, 32 EM 2023 (Pa. filed Apr. 3, 2024) (per curiam).27 The Court also invited the

OAG to participate as amicus and to participate in oral argument.

“routine” and “average” PCRA case. Id. at 7 & n.26. This is hardly a run-of-the-mill PCRA

matter — at least we certainly hope not. As detailed below, in the present PCRA litigation,

the DAO unreliably conceded relief to a convicted two-time murderer after having its

concession in his other murder case rejected by this Court, violated its duty of candor to

the PCRA court, withheld material evidence, submitted a false stipulation of fact,

misstated facts in its pleadings, failed to reasonably investigate the matter, and opposed

a mandatory evidentiary hearing. Moreover, this matter raises very serious concerns

regarding the fairness and integrity of the criminal judicial process in Philadelphia County,

Pennsylvania’s largest county with its busiest criminal docket. Our King’s Bench review

is amply justified here and accords with how we have treated similar matters for decades.

See, e.g., In re Office of Philadelphia District Attorney, 125 EM 2019, Order, 2/24/20

(exercising King’s Bench jurisdiction to review claims of conflict of interest by DAO in

murder case of Mumia Abu-Jamal); Commonwealth v. Chimenti, 507 A.2d 79 (Pa. 1986)

(exercising King’s Bench jurisdiction where DAO and Chimenti submitted plea agreement

to single Superior Court judge on appeal from Chimenti’s conviction of first-degree

murder, and appellate judge ordered trial court to accept plea agreement on remand).

Justice Wecht argues the Abu-Jamal matter is distinguishable because it only involved “a

single case.” Dissenting Opinion at 7 n.26 (Wecht, J.). But we think the fact the present

matter implicates many cases, not just one, argues for the exercise of our King’s Bench

authority, not against it. When the reliability of many proceedings is at stake, as opposed

to the result of a single matter, the justification for our involvement is enhanced, not

diminished. In addition, Justice Wecht submits “the remedy ordered by the Chimenti

Court . . . was limited to that which was necessary to resolve the case.” Id. This is a non

sequitur. The ultimate remedy to be ordered is an entirely separate question from whether

to exercise King’s Bench review in the first place. No less than in Chimenti, we are here

confronted with “problematic” and “anom[a]lous” proceedings below fully justifying our

review. Chimenti, 507 A.2d at 83. Finally, changing course now would be deeply unfair

to the litigants. The parties and amici have clearly devoted considerable time and effort

to this matter. There has been exhaustive briefing and extensive oral argument, as well

as numerous ancillary filings. This substantial outlay of energy and resources deserves

our substantive consideration. For all these reasons, we decline to reverse ourselves

and proceed to merits review.

27 Justice Wecht argues the question we ordered the parties to brief was “clearly”

“answered” in Brown, and “[t]here is no reason for this Court to invoke our extraordinary

King’s Bench authority just to repeat ourselves.” Dissenting Opinion at 10 (Wecht, J.).

While the distinguished dissenting Justice may now have come around to the view Brown

(continued…)

[J-6-2025] - 26

II. King’s Bench Jurisdiction and Powers

“In addition to general powers of adjudication, supervision, and administration, this

Court also has ‘the power generally to minister justice to all persons and to exercise the

powers of the court, as fully and amply, to all intents and purposes, as the justices of the

Court of King’s Bench, Common Pleas and Exchequer, at Westminster, or any of them,

could or might do on May 22, 1722.’” In re Domitrovich, 257 A.3d 702, 714-15 (Pa. 2021),

quoting 42 Pa.C.S. §502. The Court’s King’s Bench powers are “very high and

transcendent.” In re Bruno, 101 A.3d 635, 669 (Pa. 2014), quoting Chimenti, 507 A.2d at

81. Our standard of review is de novo and our scope of review is plenary. See Ball v.

Chapman, 289 A.3d 1, 18 (Pa. 2023); In re November 3, 2020 General Election, 240 A.3d

591, 605 (Pa. 2020); Commonwealth v. Williams, 129 A.3d 1199, 1213 (Pa. 2015).

Moreover, “[t]he exercise of King’s Bench authority is not limited by prescribed forms of

procedure or to action upon writs of a particular nature; rather, the Court may employ any

type of process necessary for the circumstances.” Williams, 129 A.3d at 1206. The Court

clearly resolved this issue, he raised uncertainty in this regard in his concurring opinion

in Brown. There, he argued the circumstance of “the Commonwealth confess[ing] error

directly to the PCRA court itself” — as opposed to a concession to relief for the first time

on appeal, which is what occurred in Brown — was “a hypothetical scenario not

presented” by the facts of that case. Brown, 196 A.3d at 196 (Wecht, J., concurring)

(emphasis omitted). He maintained the majority opinion in Brown included only a

“suggestion[,]” i.e., not a binding holding, “that a confession of error can have no impact

on a trial court’s review of the issues before it.” Id. He insisted “we must remain open to

the possibility that it may be appropriate for a PCRA court to accept a future confession

of error and defer to the prosecutor’s judgment that justice has not been served by the

conviction under the circumstances there presented.” Id. at 197. This concurrence

clouded the question of whether a Commonwealth concession is sufficient to support a

PCRA court’s grant of relief. We herein clarify that the answer is no. Brown’s

pronouncement that a confession of error by the Commonwealth is insufficient for any

grant of relief under the PCRA applies to the same extent when the concession occurs in

the PCRA court as it does when the concession comes for the first time on appeal. See

infra p. 50. Moreover, we did not, of course, exercise King’s Bench jurisdiction “just” to

address this issue. Dissenting Opinion at 10 (Wecht, J.). Again, in addition to the Brown

question, this case implicates important and troubling issues regarding the fair and just

administration of criminal justice in Philadelphia County.

[J-6-2025] - 27

may exercise King’s Bench jurisdiction “sua sponte” and “may assume plenary jurisdiction

over a matter even where no dispute is pending in a lower court.” In re Bruno, 101 A.3d

at 669.28 Similarly, the remedial measures ordered under our King’s Bench powers need

“not derive from any existing rules, statutes, or procedures.” Id. at 672. The only limits

on the Court’s maximal powers at King’s Bench are those set forth in the Pennsylvania

and United States Constitutions. See id. at 676 (“[T]he Supreme Court is neither divested

of its King’s Bench powers, nor is the supreme and general nature of these inherent

powers limited, unless the divestiture or limitation is clearly expressed or necessarily

implied in the Constitution.”). “In exercising King’s Bench authority, our principal

obligations are to conscientiously guard the fairness and probity of the judicial process

and the dignity, integrity, and authority of the judicial system, all for the protection of the

citizens of this Commonwealth.” Williams, 129 A.3d at 1206 (quotation marks and

citations omitted).

28 Justice Wecht insists our King’s Bench jurisdiction “cannot be invoked” because Family

Members could have appealed the PCRA court’s July 2022 order granting in part and

denying in part their motion to intervene but “chose not to do so.” Dissenting Opinion at

14 (Wecht, J.). On the contrary, as noted, this Court may exercise King’s Bench

jurisdiction where there is no case at all and our review has not even been requested.

See In re Bruno, 101 A.3d at 669 (providing Court may assume King’s Bench jurisdiction

“where no dispute is pending in a lower court” and may do so “sua sponte”). Family

Members’ decision not to pursue an interlocutory appeal to the Superior Court did not

deprive this Court of jurisdiction. See, e.g., In re Office of Philadelphia District Attorney,

125 EM 2019 (granting King’s Bench jurisdiction to consider claim raised by victim’s family

member even though she failed to first appeal Superior Court’s denial of her request to

intervene). Moreover, we are not providing Family Members with “a mechanism to revive

forfeited rights[.]” Dissenting Opinion at 15 n.52 (Wecht, J.). As Justice Wecht

recognizes, the intervention of Family Members would require the “expansion of third-

party rights.” Id. at 14. Because the right to intervene never existed in the first place,

Family Members never “forfeited” it, and it would be impossible for this Court to “revive”

it. In any case, we do not grant intervention to Family Members. Rather, we reverse the

grant of PCRA relief and order that the OAG be provided notice and an opportunity to

intervene in concession cases.

[J-6-2025] - 28

III. Arguments

a. Family Members

Family Members argue the PCRA court’s grant of relief in this case was based on

four factual inferences: (1) that Vann expressly implicated Paige in the Rite Aid murder;

(2) that Vann maintained this identification through mid-July 2003; (3) that sometime after

July 15, 2003, the police told Vann that Paige was incarcerated at the time of the murder;

and (4) that Vann thereafter implicated Lyons in the murder for the first time on July 22,

2003. Family Members insist the March 2003 memorandum recounting Vann’s March

21, 2003 statement implicating Brown and Lyons, which was in the DAO’s files but was

not provided to the PCRA court, refutes this sequence of events. Moreover, according to

Family Members, Vann’s March 21, 2003 statement contradicts the stipulation of facts

submitted by Brown and the DAO alleging Vann’s July 22, 2003 statement was the first

in which he implicated Brown and Lyons. As such, they submit the PCRA court erred in

awarding a new trial to Brown, and the court’s order should be reversed.

To safeguard against such an error occurring again, Family Members urge this

Court to establish procedures for cases in which the Commonwealth concedes relief.

Specifically, they assert a PCRA court should be permitted to grant relief following a

Commonwealth concession of error if the concession is based on “exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not

presented at trial.” Family Members’ Brief at 53, quoting Schlup v. Delo, 513 U.S. 298,

324 (1995) (identifying type of evidence federal habeas petitioner must present to satisfy

actual innocence gateway to merits review of procedurally barred claim of constitutional

error). They claim the evidence discussed in Schlup can be objectively tested, verified,

and made available to a reviewing court. In Family Members’ view, “[n]othing remotely

close to that exists here.” Id. at 54.

[J-6-2025] - 29

On the other hand, Family Members contend that if a concession is premised on

evidence subject to multiple reasonable interpretations, and/or there are reasonable

arguments in support of the judgment of sentence that the Commonwealth refuses to

make, the PCRA court should be permitted to order in camera review or appoint an

intervenor. The intervenor, they emphasize, should be on equal footing with the

Commonwealth and the defendant in terms of document access. They also stress that

the circumstances of this case, in which the DAO did not interview a single police officer

or former prosecutor and ignored inculpatory evidence in its own files, demonstrate why

the option of appointing an intervenor is critical.

In addition, Family Members support requiring a specific prosecutor to attest under

oath that the Commonwealth has provided the court with all relevant evidence related to

the concession. They argue this procedure will incentivize the Commonwealth to ensure

the record has been appropriately vetted and will avoid later claims of bureaucratic

confusion or attempts to shift blame between various individual prosecutors or their

leadership teams.

Finally, Family Members posit that if the Commonwealth’s concession involves

agreeing that police, prosecutors, or others engaged in unconstitutional or illegal conduct,

those individuals must have an opportunity to be heard, if they choose, before having a

court find misconduct. They insist such an opportunity to be heard is mandated by our

Commonwealth’s Constitution, which places reputational interests on the highest plane

and extends the protection of these interests to state actors functioning in their official

capacity.

b. The OAG

The OAG argues multiple recent concessions of relief by the DAO, once examined

under the adversary process, have proven unreliable. In particular, the OAG cites the

[J-6-2025] - 30

federal habeas proceedings of Philadelphia murder defendants Robert Wharton, Javiar

Artache, Kevin Johnson, and Rasean Malone,29 as well as Brown’s unsuccessful appeal

to this Court from the denial of PCRA relief in his separate Crawford murder case. In

addition to these matters, the OAG alleges that since January of 2018, when DA Krasner

took office, the DAO has conceded error, and relief has been granted, in 115 cases in

which there was no adversarial testing. See OAG’s Brief at 15-30 (listing cases).

The OAG contends several concerning patterns emerge from these cases.

Specifically, the OAG maintains that while virtually all the cases have involved disputable

factual issues, almost none of them have been resolved through evidentiary hearings but

rather either naked concessions by the prosecution or joint stipulations. It avers that

many of the cases on its list have been repeatedly shuttled back and forth between state

and federal court, as opportunities to concede receded or advanced in each forum. It

submits this juggling between state and federal forums even resulted in the public censure

of a prosecutor in one case, Martinez v. Delbalso, 2021 WL 510276 (E.D. Pa. 2021). It

argues the DAO’s many concessions in federal court are especially questionable because

claims adjudicated on the merits in state court are subject to an extremely demanding

standard of review on federal habeas review, whereby relief is warranted only if the state

court judgment was so lacking in justification as to be beyond any possibility for fair-

minded disagreement. The OAG claims that in all but one of the 115 concessions, the

DAO has not retried the defendant but instead has either dismissed the charges or

negotiated a plea, often a plea of nolo contendere, to reduced charges. The OAG insists

29 See Wharton v. Vaughn, 2022 WL 1488038 (E.D. Pa. 2022); Wharton v. Vaughn, 2022

WL 4133291 (E.D. Pa. 2022); Wharton v. Superintendent Graterford SCI, 95 F.4th 140

(3rd Cir. 2024); Wharton v. Superintendent Graterford SCI, 95 F.4th 113 (3rd Cir. 2024);

Artache v. Superintendent SCI Forest, 2023 WL 8468613 (3rd Cir. 2023); Johnson v.

Kerestes, 683 F. Supp. 3d 452 (E.D. Pa. 2023); Malone v. Smith, 2023 WL 2351694 (E.D.

Pa. 2023).

[J-6-2025] - 31

that none of the DAO’s concessions has ever resulted in the arrest and prosecution of a

new perpetrator.

In light of the DAO’s problematic pattern of concessions, the OAG proposes the

implementation of procedures to ensure more reliable results. It recommends that when

the DAO confesses error, the trial court should appoint the OAG or the Pennsylvania

District Attorneys Association (PDAA), or private counsel if the OAG and PDAA are

unable to fill the role, to participate as a third party and investigate the claims and present

arguments in support of the judgment. The OAG submits the court should order the

prosecution to make available to the third party everything in the police and prosecution

files that it makes available to the defense. In the OAG’s view, the court should require

an evidentiary hearing before granting relief premised on claims of fact, with full

participation by the appointed third party. It urges that the third party should be

designated by the court as a formal intervenor, entitled to appeal as of right.

Turning to the specifics of this case, the OAG argues this matter bears the

hallmarks of many of the DAO’s other questionable concessions of error. It contends that

despite the PCRA court’s repeated requests for actual evidence demonstrating that Vann

implicated Paige, Brown and the DAO presented only a joint stipulation. It asserts Vann’s

undisclosed March 21, 2003 statement belies the allegation Vann actually identified Paige

as a participant. The OAG notes Detectives Judge and Peters have provided declarations

alleging Vann never identified Paige to them. It faults Brown and the DAO for never

attempting to interview Detective Baker, who died in July 2022, or Vann, who died in

December 2018. Finally, the OAG submits that even assuming Vann incriminated Paige,

this fact would not have been material in light of the other circumstances impeaching his

credibility and the evidence, including Lyons’s testimony, corroborating Vann’s account

of the murder.

[J-6-2025] - 32

c. Brown

Brown responds this Court should affirm the PCRA court’s grant of relief. He

insists there is no question the evidence Vann falsely incriminated Paige was impeaching

and undisclosed and thus the case turns on the issue of prejudice. In his view, the

suppression of Vann’s false identification was prejudicial because Vann was a critical

witness against him, no physical evidence linked him to the crime, and no other witness

besides Lyons identified him as being involved. Additionally, Brown seconds the PCRA

court’s conclusion that the misidentification of Paige would have provided impeachment

evidence different in character from the impeachment evidence the jury heard because it

would have shown Vann’s willingness to falsely accuse an acquaintance of being involved

in the murder. Brown rejects the possibility that Vann may have identified Paige in a

different murder, noting the undisclosed documents appeared in the files for this case,

and the 23rd District Memorandum referred to co-defendant Jamaar. Also, he notes the

July 2003 memoranda focused on Paige’s whereabouts on the day of the murder, were

marked with the case number for this murder, and were addressed to Detective Judge,

the assigned detective for this case.

Brown maintains Vann’s March 21, 2003 statement implicating Lyons is entirely

consistent with, and does nothing to counter the impeachment value of, Vann’s false

accusation of Paige. A cooperating accomplice’s demonstrably false accusation, says

Brown, is damning impeachment evidence whether or not it coincided or alternated with

other, possibly truthful accusations. He likewise submits the March 21, 2003 statement,

which the Commonwealth did not disclose to Brown prior to trial, does not contradict the

parties’ factual stipulation in the PCRA court that Vann’s statement on July 22, 2003 was

the first in which Vann implicated him and Lyons. According to Brown, when viewed in

context, the stipulation correctly provided that the July 22, 2003 statement was the first of

[J-6-2025] - 33

Vann’s three statements to homicide investigators disclosed pre-trial in which he

implicated Brown and Lyons.

Alternatively, Brown forwards two other grounds for affirming the PCRA court’s

grant of relief. First, he accuses the Commonwealth of suppressing an untruthful

statement by Lyons in December 2003. Second, he alleges the Commonwealth

suppressed other contradictory statements by Vann, as well as Vann’s cooperation in

other cases and the benefits he received from the Commonwealth.

Expanding his focus to PCRA concession cases generally, Brown argues current

law, as set forth in the PCRA and the Pennsylvania Rules of Criminal Procedure, is

adequate to ensure reliable dispositions. Moreover, although not expressly permitted by

the PCRA or criminal procedural rules, Brown submits PCRA courts have the inherent

authority to order the participation of amicus curiae where the court seeks, or non-parties

voice, arguments and perspectives beyond those provided by the parties. However,

Brown opposes the additional procedures proposed by the Family Members and the OAG

in cases where the DAO concedes relief. Broadly, Brown insists the extra procedures

are clearly intended to apply only in Philadelphia and only during the tenure of DA

Krasner. As such, Brown contends, they exceed this Court’s constitutional authority “to

prescribe general rules governing practice, procedure and the conduct of all courts.”

Brown’s Brief at 67, quoting PA. CONST. art. V, §10(c) (emphasis added in brief). He also

claims limiting the procedures to Philadelphia, where racial minorities account for a

majority of the population, will have a starkly disproportionate racial impact: PCRA relief

will be delayed predominantly for people of color.

More precisely, Brown contends the proposal for intervention by a third party such

as the DAO, the PDAA, or private counsel, contravenes the constitutional prohibition

against this Court “adopting rules that ‘abridge, enlarge [or] modify the substantive rights

[J-6-2025] - 34

of any litigant.’” Id. at 68, quoting PA. CONST. art. V, §10(c) (brackets added in brief).

Additionally, the proposed intervenor rule, in Brown’s estimation, conflicts with the

Commonwealth Attorneys Act (CAA),30 which authorizes intervention by the OAG in

criminal cases only in limited circumstances, none of which are implicated here, and

precludes altogether intervention by the PDAA or private attorneys. Brown believes the

proposals to provide the intervenor full discovery, to mandate evidentiary hearings when

there are disputed claims of fact, and to guarantee those accused of misconduct an

opportunity to be heard, like the intervenor proposal, are substantive in nature and thus

beyond this Court’s authority under Article V, Section 10 of the Pennsylvania Constitution.

He alleges too that the discovery proposal would conflict with Pa.R.Crim.P. 902(E)(1), the

evidentiary hearing proposal would conflict with 42 Pa.C.S. §9545(d)(1) and Pa.R.Crim.P.

907, and the opportunity-to-be-heard proposal would conflict with 42 Pa.C.S. §9546(a).31

30 See 71 P.S. §§732-101-732-506.

31 Rule 902(E)(1) provides that except on a first counseled petition in a death penalty

case, “no discovery shall be permitted at any stage of the [PCRA] proceedings, except

upon leave of court after a showing of exceptional circumstances.” Pa.R.Crim.P.

902(E)(1). Section 9545(d)(1) provides: “(i) Where a petitioner requests an evidentiary

hearing, the petition shall include a certification signed by each intended witness stating

the witness’s name, address, date of birth and substance of testimony and shall include

any documents material to that witness’s testimony. (ii) If a petitioner is unable to obtain

the signature of a witness under subparagraph (i), the petitioner shall include a

certification, signed by the petitioner or counsel, stating the witness’s name, address, date

of birth and substance of testimony. In lieu of including the witness’s name and address

in the certification under this subparagraph, counsel may provide the witness’s name and

address directly to the Commonwealth. The certification under this subparagraph shall

include any documents material to the witness’s testimony and specify the basis of the

petitioner’s information regarding the witness and the petitioner’s efforts to obtain the

witness’s signature. Nothing in this subparagraph shall be construed to contravene any

applicable attorney-client privilege between the petitioner and postconviction counsel. (iii)

Failure to substantially comply with the requirements of this paragraph shall render the

proposed witness’s testimony inadmissible.” 42 Pa.C.S. §9545(d)(1). Under Rule 907,

the PCRA court may dismiss a petition without a hearing “if . . . there are no genuine

issues concerning any material fact[,] . . . the defendants is not entitled to post-conviction

collateral relief, and no purpose would be served by any further proceedings[.]”

(continued…)

[J-6-2025] - 35

Lastly, regarding Family Members’ proposal for prosecutorial affirmations that all relevant

evidence has been produced, Brown asserts such a requirement should apply to all

criminal proceedings, not just cases involving the DAO or concessions of relief.

d. The DAO

The DAO argues the short answer to the question this Court identified for briefing

is that PCRA courts cannot grant relief based upon the concessions of the parties, as this

Court already ruled in Brown’s separate capital appeal. It insists, however, this is not

what occurred here; rather, the PCRA court treated this case like any other and granted

relief based on its independent judicial assessment of the facts and the law, not because

the DAO conceded error. The DAO maintains the result below would not have been

different if Family Members had been permitted to intervene, as the court welcomed their

input as amici, and Family Members vociferously opposed an evidentiary hearing.

According to the DAO, the PCRA court’s award of a new trial based on the

nondisclosure of Vann’s identification of Paige was fully supported by the record. It

contends the documentary evidence gives rise to the “inescapable” conclusions Vann

implicated Paige in this crime, this accusation was determined by investigators to be false,

and this impeachment evidence of Vann was not disclosed to the defense. DAO’s Brief

at 45. The DAO concurs with the PCRA court’s judgment this impeachment evidence

would have provided a new and fertile avenue for the defense to undermine Vann’s

credibility and would have created a reasonable probability of a different outcome at trial.

Pa.R.Crim.P. 907(1). Alternatively, “[a] petition for post-conviction collateral relief may be

granted without a hearing when the petition and answer show that there is no genuine

issue concerning any material fact and that the defendant is entitled to relief as a matter

of law.” Pa.R.Crim.P. 907(2). Section 9546(a) provides: “[i]f the court rules in favor of

the petitioner, it shall order appropriate relief and issue supplementary orders as to

rearraignment, retrial, custody, bail, discharge, correction of sentence or other matters

that are necessary and proper.” 42 Pa.C.S. §9546(a).

[J-6-2025] - 36

The DAO disputes Family Members’ arguments in support of reversal. Regarding

Family Members’ claim that Vann’s March 21, 2003 statement implicating Lyons refutes

the theory Vann first implicated Paige and then switched to Lyons after the police

confirmed Paige’s alibi, the DAO insists the parties never raised this switch theory, and

the PCRA court did not rely on it in granting relief. Indeed, the DAO emphasizes it “noted

in its answer to the [PCRA] petition below that Vann had informally implicated Brown in

March 2003[.]” Id. at 47, citing DAO’s Response to Petition for Collateral Relief, 11/1/21,

at ¶74 n.8. Like Brown, the DAO argues the factual stipulation providing that Vann’s July

22, 2003 statement was the first in which he named Brown or Lyons did not mislead the

PCRA court because it was apparent the stipulation referred to disclosed statements.

“While the stipulations could have been more clearly drafted to refer explicitly to

‘disclosed’ statements,” the DAO maintains, “they would not have confused anyone

acquainted with this case and did not confuse the PCRA court.” Id. at 52. As for the

DAO’s failure to provide the March 2003 memorandum to the PCRA court, it explains:

the Commonwealth did not include this document in its pleadings because

it was irrelevant to any of Brown’s claims. The Commonwealth’s file in this

case fills approximately twenty bankers’ boxes. It was not reasonable to

include every document. As it was, [the PCRA court] was already presented

with thousands of pages of transcripts, appendices, and briefs; including

unnecessary documents would only have hindered his decision.

Id.

The DAO submits the OAG’s list of 115 instances in which the DAO has

successfully conceded relief does not reflect any impropriety on its part. On the contrary,

the DAO contends it is ethically obliged to agree to relief in appropriate cases, and its

confessions of error represent a “painful but necessary course correction” from the

practices of prior administrations, which had “a culture of non-disclosure and a win-at-all-

costs approach to post-conviction litigation.” Id. at 57, 61. The 115 number, the DAO

argues, represents only approximately 1.2% of the approximately 7,600 cases the DAO’s

[J-6-2025] - 37

Law Division has briefed on post-conviction review since January 2018, and as such the

frequency with which it agrees to relief is not particularly high or unusual. The DAO

justifies its determination to either enter a plea deal or withdraw charges in effectively all

of these conceded cases by noting the vast majority of criminal matters are resolved via

plea, and it violates a prosecutor’s duty to pursue charges when a prima facie case cannot

be established through available and admissible evidence.

Echoing arguments raised by Brown, the DAO contends the current rules of

procedure are adequate to protect the integrity of confessions of error in Philadelphia. It

claims the designation of private parties as intervenors in uncontested PCRA petitions

would be contrary to law and could wrest control of criminal proceedings from the

Commonwealth’s duly elected representatives. It likewise claims the designation of the

OAG as an intervenor would be unlawful, as the OAG may intervene only in accordance

with the provisions of the CAA, and nothing in the CAA authorizes the OAG to intervene

in this context. The DAO submits that because the right to intervene is substantive rather

than procedural in nature, under Article V, §10(c) of the Pennsylvania Constitution this

Court’s rulemaking authority does not extend to designating non-parties such as Family

Members or the OAG as intervenors. The DAO contends PCRA courts have the inherent

authority to appoint amicus curiae. It emphasizes, however, that in the ordinary case,

amicus’s role should be limited to briefing the merits of issues, and it should not be

permitted to raise new issues or submit extra-record evidence. Moreover, it suggests that

ordinarily the role of amicus would be best filled by the OAG because it is governed by

the same ethical rules and legal restrictions applicable to the DAO.

e. Family Members’ Reply

In their reply brief, Family Members find it “astonishing” the DAO now claims the

March 2003 memorandum was irrelevant to the PCRA court’s disposition of Brown’s

[J-6-2025] - 38

petition yet, by its own admission, the DAO itself proffered selective facts from this

document in its response to the petition. Family Members’ Reply Brief at 7. Contrary to

the DAO, Family Members insist Vann’s March 2003 account documented in the

memorandum directly addresses the claims made by the parties below and was critically

relevant. They submit Vann’s March 21, 2003 statement would have been especially

relevant to Brady’s materiality standard in two ways: first, it would have been evidence of

a consistent statement provided before Detective Baker’s July 2003 investigation

established Paige had an alibi for the murder; and second, this statement would have

weakened the causal relationship between Detective Baker’s investigation and Vann’s

subsequent account. Family Members accuse the DAO and Brown of performing

“linguistic gymnastics” to defend the accuracy of their factual stipulation regarding Vann’s

July 22, 2003 statement, and insist these efforts only prove Family Members’ point that

the stipulation was incomplete and confusing. Id. at 23. They claim the misrepresentation

that Vann first identified Brown and Lyons in July of 2003 was repeated in the DAO’s and

Brown’s briefing to the PCRA court. Family Members raise the possibility Detective

Baker’s July 2003 memoranda reflect his own misunderstanding that Paige was involved

in the Rite Aid murder, rather than an actual identification of Paige by Vann.

f. The OAG’s Reply

In the OAG’s reply brief, it asserts the DAO’s claim of a prior culture of Brady

violations at the DAO, which must be remedied via concession, is largely circular since it

relies on the DAO’s own untested multitude of prior concessions. In any event, the OAG

maintains every Brady claim is intensively fact-specific and must be evaluated

individually; intoning “culture” cannot substitute for judicial review of actual evidence in

individual cases. The OAG insists the DAO uses the wrong denominator in arguing it

concedes only a small percentage of cases. According to the OAG, the DAO has focused

[J-6-2025] - 39

its concession program on capital and life sentences, and it has been highly effective in

reducing many of these sentences. The OAG reports that when DA Krasner took office,

there were 47 Philadelphia defendants on death row, and the DAO has since conceded

35 of these sentences — a concession rate of 75%. The OAG also notes it has identified

five more concessions in addition to the 115 enumerated in its initial brief. The OAG

argues if, as the DAO contends, the March 2003 memorandum was so irrelevant that it

would have just hindered the PCRA court to provide the court with the document, “it

shouldn’t take seven pages and 2,000 words (and another seven pages and 1,700 words

from the defendant) to explain why. Far simpler: just give the court the full facts and let it

do its job.” OAG Reply Brief at 23. Disagreeing with the DAO that intervention is a

substantive right which only the General Assembly can grant, the OAG counters

intervention is often a matter of procedure, as evidenced by the multitude of court

procedural rules governing it, including Pa.R.Civ.P. 2327, Pa.R.A.P. 1531, Pa.R.A.P.

3775, and Pa.R.J.C.P. 1133. In particular, the OAG notes Pa.R.A.P. 521(b)

acknowledges the ability of the OAG to intervene in limited circumstances, and this Court

is free to expand those circumstances, and to enact a similar provision in the rules of

criminal procedure.

g. Amici

In addition to the invited amicus participation of the OAG, numerous amici have

filed briefs in support of Brown and the DAO: the Conviction Integrity Units of several

different prosecutors’ offices in the United States; nearly one dozen legal ethics scholars;

former prosecutors and judges; the Pennsylvania Innocence Project and the Innocence

Network; defense counsel in Philadelphia; professors of criminal law and procedure; forty-

one current and former elected prosecutors and Attorneys General, and former United

States Attorneys and federal officials; and the Quattrone Center for the Fair

[J-6-2025] - 40

Administration of Justice at the University of Pennsylvania Carey Law School. These

amici argue existing procedures are adequate to ensure the reliability of DAO

concessions and urge us to reject the additional procedural safeguards proposed by

Family Members and the OAG. See Conviction Integrity Units Amici Brief at 16 (“[T]he

specific additional procedures [Family Members] and the [O]AG would impose on

postconviction proceedings are unprecedented and unworkable.”); Ethics Scholars Amici

Brief at 13-14 (“This Court should decline to use King’s Bench jurisdiction to impose new

limits on Commonwealth prosecutors’ concessions of relief when warranted.”); Former

Prosecutors and Judges Amici Brief at 21 (“Because the system already offers the

appropriate flexibility and incentives to properly vet all PCRA petitions, even in the face

of prosecutorial concessions, [a]mici urge the Court not to introduce unnecessary and

harmful additional hurdles to the process.”); Pennsylvania Innocence Project and

Innocence Network Amici Brief at 21 (“[F]urther procedural requirements are unnecessary

and potentially harmful.”); Philadelphia Defense Counsel Amici Brief at 30 (“The OAG’s

desire to retry cases or to defend the prior actions or inactions of its current staff are not

compelling reasons for this Court to appoint it as a mandatory intervenor.”); Professors of

Criminal Law and Procedure Amici Brief at 23 (“[T]he decision below should be

affirmed.”); Current and Former Elected Prosecutors and Attorneys General et al. Amici

Brief at 3 (“Sufficient guardrails are already in place to ensure that the admission of error

is based on the facts of the case and consistent with the law. Mandating additional

procedures in post-conviction cases where prosecutors admit error would be unwise and

unnecessary.”); Quattrone Center Amicus Brief at 15 (“The integrity of the PCRA process

is best ensured by the proper investigation and review by the prosecutor and the fully

independent review and judgment of the PCRA court. In this process, the trial court may

[J-6-2025] - 41

exercise its discretion to appoint amicus curiae should the judge feel a need for additional

viewpoints. These guardrails are sufficient to ensure an outcome worthy of public trust.”).

h. Ancillary Filings

Beyond the extensive briefing of the parties and amici, also pending before the

Court are six ancillary petitions.32 In the interest of maximizing the information and

arguments available to us in resolving this highly important King’s Bench matter, we grant

these petitions and consider these filings and their attachments in deciding this case.33

First, Brown has filed an application to notify this Court of the United States

Supreme Court’s recent decision in Glossip v. Oklahoma, 604 U.S. 226 (2025). Brown

insists Glossip, where the Supreme Court vacated the conviction, is “quite similar” to this

case because in both cases “the defendant was charged as a conspirator, not as the

actual killer . . . , evidence that was first disclosed in successive postconviction

proceedings established violations of” Brady and Napue v. Illinois, 360 U.S. 264 (1959),34

“the suppressed evidence undermined the credibility of cooperating co-conspirators

whose testimony was central to the prosecution’s case . . . , [and] the State confessed

32 Two other ancillary petitions have already been decided. In particular, the OAG filed

an emergency petition to stay a joint PCRA evidentiary hearing in the cases of Brown’s

co-defendants Kennedy, James, and Jamaar pending this Court’s decision in this case.

In addition, the co-defendants filed a motion for leave to file an amicus brief responding

to the OAG’s emergency petition. By per curiam order dated December 12, 2025, this

Court denied the OAG’s emergency petition and granted the co-defendants’ motion.

33 As noted, our King’s Bench authority is not limited by prescribed forms of procedure,

and we “may employ any type of process or procedure necessary for the circumstances.”

Bruno, 101 A.3d at 669; see id. at 671 (“We have often undertaken flexible measures

deriving from our broad power at King’s Bench.”). We offer no opinion as to whether such

ancillary applications would be appropriately granted in a case not involving the exercise

of our King’s Bench jurisdiction.

34 The High Court in Napue “held that a conviction knowingly ‘obtained through use of

false evidence’ violates the Fourteenth Amendment’s Due Process Clause.” Glossip, 604

U.S. at 246, quoting Napue, 360 U.S. at 269.

[J-6-2025] - 42

error, but the victims’ families opposed relief as amici curiae.” Brown’s Pre-Submission

Application to Notify the Court of Recent Authority, 3/3/25, at ¶10.

In response, the OAG has filed its own ancillary petition seeking leave to answer

Brown’s application, which it criticizes for providing more than “merely ‘notice’ of a new

decision,” but instead “present[ing] four pages of new legal argument.” OAG’s Request

for Leave to File Answer, 3/11/25, at 1. In its attached proposed answer, the OAG submits

that “[b]ecause Glossip makes no new federal law and has no relevance to this Court’s

supervisory powers at issue in this King’s Bench proceeding, [Brown’s] application should

be denied.” Answer of OAG, 3/11/25, at 1.

In addition, Family Members have filed an application to notify this Court of

testimony presented at a hearing on February 21, 2025 in the Philadelphia Court of

Common Pleas in the case of In re Appeal of Bochetto & Lentz, P.C., July Term 2021,

No. 02373. Bochetto involves an appeal from the DAO’s denial of a request under the

Right-to-Know Law (RTKL)35 for records pertaining to the DAO’s filing of a motion for a

nolle prosequi in Commonwealth v. Patterson, CP-51-CR-0012287-2007.36 Family

Members claim the testimony, which they attach to their application, “sheds light on the

policies, practices, and procedures [of] the [DAO] under its current administration when

agreeing to relief[,]” and “highlights yet another instance of the [DAO] proffering aversions

of fact to support claims of egregious misconduct that were not appropriately investigated,

vetted, or confirmed.” Family Members’ Pre-Submission Application to Notify the Court

of Recent Court Proceedings, 3/3/25, at ¶¶15-16. The DAO responds that the application

should be denied “[b]ecause the testimony proffered in Bochetto relates to the DAO’s

decision to withdraw criminal charges,” and thus “has little bearing on the question

35 See 65 P.S. §§67.101-67.3104.

36 Patterson involves one of the 120 DAO concessions noted by the OAG. See OAG’s

Brief at 15.

[J-6-2025] - 43

presented in this King’s Bench litigation.” DAO’s Letter in Lieu of Formal Objections,

3/4/25, at 1. Moreover, the DAO insists it is inappropriate to litigate open cases via these

King’s Bench proceedings, especially considering this Court may be asked to resolve

Bochetto in the future. Also, the DAO maintains “[c]ritical witnesses in Bochetto, including

the District Attorney himself, remain subject to sequestration orders[,]” and “it would be

untenable for the [DAO] to address before this Court the factual issues presented by

Bochetto when counsel is unable to meaningfully consult the District Attorney regarding

the factual and legal positions that would entail.” Id. at 2.37

Next, the OAG has filed an application for leave to file a post-submission

communication addressing alleged misstatements by the DAO and Brown at oral

argument before this Court. In its proposed filing, the OAG alleges Brown and the DAO

misstated at argument that Family Members were allowed the same open file review as

Brown. In addition, it claims Brown erroneously stated the March 2003 memorandum

37 Subsequent to Family Members’ application and the DAO’s response, on March 17,

2025, the trial court in Bochetto granted the requester’s appeal and ordered the DAO to

provide all requested records in redacted form. In addition, the court found “DAO

members have acted in bad faith throughout the instant RTKL and related proceedings in

a manner that has prejudiced the [r]equester and the public at large.” Order, In re Appeal

of Bochetto & Lentz, P.C., July Term 2021, No. 02373, 3/17/25, at 2. Accordingly, the

court imposed the following sanctions on the DAO: reimbursement of all reasonable

counsel fees and court costs expended by the requester; payments of $10,000 each to

former Assistant District Attorneys Elizabeth McCaffrey and Richard Sax, who were

“unfairly maligned” by the DAO; payment of $100,000 to the First Judicial District

purgeable upon compliance with the other terms and conditions of the court’s order;

twelve hours of mandatory ethics training focused on the Pennsylvania Rules of

Professional Conduct for each member of the DAO paid for by the DAO and completed

within nine months of the court’s order; preservation of all records that have been the

subject of the RTKL request or are related to Patterson; a thorough audit/inventory of all

DAO records related to cases referenced in a report on prosecutorial misconduct in the

DAO produced by the Peter L. Zimroth Center on the Administration of Criminal Law at

New York University School of Law, to be provided to the court for in camera review; and

preparation of a standard procedural manual for the DAO addressing the safeguarding of

records. See id. at 3-6. On March 24, 2025, the DAO appealed this order to the

Commonwealth Court, where the appeal is docketed at 297, 396, 418, 457-459 & 464 CD

2025.

[J-6-2025] - 44

was not withheld but was in fact available to the PCRA court “on record.” OAG’s Post-

Submission Communication to Address Oral Argument Misstatements, 3/11/25, at ¶4.

Further, the OAG accuses the DAO of misrepresenting the record when it alleged at

argument that it never resisted an evidentiary hearing, that Family Members would have

been permitted to participate fully in an evidentiary hearing had one been held, and that

Vann told Detective Peters two girls were involved in the Rite Aid murder. Brown and the

DAO have filed answers arguing the alleged misstatements did not occur and the OAG’s

application should be denied.

As well, the DAO has filed an application for leave to file a post-submission

communication to clarify a footnote in its brief. In its proposed filing, the DAO explains

that its brief presently provides:

Brown was later convicted of another murder for which he was sentenced

to death. Commonwealth v. Brown, CP-51-CR-0208091-2004. The

Commonwealth does not believe that the disposition of this case affects the

judgment in that matter and has opposed both guilt and penalty phase relief

in those ongoing post-conviction proceedings.

DAO’s Proposed Clarification of Incomplete Statement, 4/9/25, at 1, quoting DAO’s Brief

at 8 n.2. However, the DAO now notes, Brown “has an action pending in federal court

challenging his conviction and sentence in his capital case[,]” and in that ongoing post-

conviction proceeding, “[i]n 2021, the [DAO] agreed that Brown’s sentence should be

vacated because Brown’s sentencing counsel was ineffective for failing to present

evidence of Brown’s organic brain damage at sentencing.” Id. at 1-2. The DAO submits

“[a] more complete footnote providing this context would” provide:

Brown was later convicted of another murder for which he was sentenced

to death. Commonwealth v. Brown, CP-51-CR-0208091-2004. The

Commonwealth does not believe that the disposition of this case affects the

judgment in that matter and has opposed both guilt and penalty phase relief

in those ongoing state post-conviction proceedings. However, Brown has

a pending petition for a writ of habeas corpus challenging that conviction

and sentence. Brown v. Wetzel, E.D. Pa. Civ. No. 10-5553. Consistent

[J-6-2025] - 45

with its position before this Court, the Commonwealth has conceded that

Brown is entitled to a new sentence based on the ineffective assistance of

his sentencing counsel, though it has specified that that concession is not

binding on the District Court. Id., ECF No. 33 (filed May 28, 2021).

Id. at 2.38 The DAO “apologizes for any confusion that may have been caused, which

was unintentional.” Id. Family Members have filed an answer taking no position on the

DAO’s request but emphasizing that the DAO’s concession to relief in federal court on

the mitigation ineffectiveness claim involved the allegation that this Court’s rejection of

the same claim in Brown was not merely wrong but an unreasonable application of clearly

established federal law and an unreasonable application of the facts.

Finally, the DAO has filed an application for leave to file a post-submission

communication concerning the case of Hicks v. City of Philadelphia, E.D. Pa. Civ. No.

2:22-cv-00977. A Philadelphia jury convicted Termaine Hicks of rape. The DAO,

however, subsequently agreed to PCRA relief and nolle prossed the charges against him.

Thereafter, Hicks filed a federal civil rights lawsuit against the City of Philadelphia and

police officers involved in his case. The DAO’s proposed post-submission filing advises

that the jury in Hicks’s federal case found in his favor. Specifically, the federal civil jury

concluded by a preponderance of the evidence that Hicks’s constitutional rights were

violated, and he did not commit the rape. The jury awarded him $3 million in

compensatory damages.

IV. Analysis

a. Timeliness

“This Court has consistently held that the PCRA’s time restrictions are jurisdictional

in nature and that a PCRA court must, before considering the merits of [a] claim[] asserted

in a PCRA petition, first make a threshold determination whether [the] claim was timely

38 As noted, see supra note 12, following the May 28, 2021 joint motion by the DAO and

Brown in federal court for sentencing relief in Brown’s capital case, the DAO, on October

6, 2025, filed a motion to withdraw the joint motion, which was granted on April 21, 2026.

[J-6-2025] - 46

filed.” Commonwealth v. Tedford, 228 A.3d 891, 904 (Pa. 2020) (collecting cases).

Generally, a PCRA petitioner must raise a claim within one year of the date his judgment

became final. See 42 Pa.C.S. §9545(b)(1). “[A] judgment becomes final at the conclusion

of direct review, including discretionary review in the Supreme Court of the United States

and [this Court], or at the expiration of time for seeking the review.” 42 Pa.C.S.

§9545(b)(3). A claim may be raised beyond the one-year deadline only if “the petition

alleges and the petitioner proves” one of three exceptions: “[(1)] 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; [(2)] 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 [(3)] the right asserted is a constitutional right that was

recognized by the Supreme Court of the United States or [this Court] after the time period

provided in this section and has been held by that court to apply retroactively.” 42 Pa.C.S.

§9545(b)(1). A petitioner purporting to invoke one of these exceptions must raise his

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

§9545(b)(2). The exceptions to the PCRA time bar, as well as the one-year filing

requirement of Section 9545(b)(2), “are claim specific, not petition based.”

Commonwealth v. Rivera, 324 A.3d 452, 468 (Pa. 2024); see also id. at 469 n.19. “In

other words, if one of several claims in a PCRA petition meets [an] exception and Section

9545(b)(2), that does not mean that a PCRA court has jurisdiction to entertain the other

claims raised in that petition.” Id. at 469.

Here, following the Superior Court’s affirmance of Brown’s judgment of sentence,

this Court denied allowance of appeal on May 15, 2007. Brown did not seek a writ of

certiorari to the United States Supreme Court. Accordingly, his judgment became final

[J-6-2025] - 47

for purposes of the PCRA on August 13, 2007, upon expiration of the ninety-day period

for seeking certiorari. See U.S. Sup. Ct. R. 13.1.

Brown first raised the claim upon which the PCRA court granted relief — that the

Commonwealth violated Brady by withholding Vann’s purported false identification of

Paige — over thirteen years later, in his Amended Second PCRA Petition filed on June

28, 2021. This claim was thus facially untimely under the PCRA. The PCRA court had

jurisdiction to consider the claim only if Brown successfully pleaded and proved an

exception to the time bar.

Mistakenly treating the time bar as petition-based rather than claim-specific, Brown

broadly alleged his Amended Second PCRA Petition satisfied the governmental

interference and unknown facts exceptions to the time bar. See Joint Motion to Unseal

and Unopposed Motion to Amend Supplement and Amendment to Successor Petition

and Appendix, 8/18/21, at ¶3. Although the DAO conceded Brown was entitled to a new

trial based on the Vann Brady claim, and thus implicitly agreed this claim was timely

raised, amici Family Members argued all of Brown’s claims were untimely. See Opening

Brief of Amicus Curiae Victims’ Family to Dismiss Brown’s Untimely and Meritless PCRA

Claims, 9/9/22, at 10; Reply Brief of Amicus Curiae Victims’ Family, 3/20/23, at 45 n.14.

The PCRA court, however, apparently did not even consider the requisite threshold issue

of timeliness. Neither the court’s order granting relief nor its findings in support thereof

address the time bar in any way. See N.T. Hearing, 5/5/23, at 4. It appears the court

simply presumed it had jurisdiction to consider the merits of Brown’s Brady claim based

on the DAO’s agreement with Brown that relief was due. On the contrary, as this Court

recently and unanimously held in Rivera, “[t]he agreement of the parties . . . does not

suffice to vest a court with jurisdiction; rather, a court must conduct an independent

analysis of jurisdictional issues.” Rivera, 324 A.3d at 467. On remand, the PCRA court,

[J-6-2025] - 48

before addressing the merits of any of Brown’s claims, should first conduct an

independent assessment of whether it has jurisdiction to consider the issue in the first

place. Substantive review should be limited to those claims, if any, satisfying a time bar

exception and Section 9545(b)(2).

b. Merits

“The petitioner bears the burden to prove, by a preponderance of the evidence,

that he or she is eligible for PCRA relief.” Commonwealth v. Murchison, 328 A.3d 5, 17

(Pa. 2024); see 42 Pa.C.S. §9543(a). “[A] preponderance of the evidence . . . is

‘tantamount to a “more likely than not” inquiry[.]’” Cent. Dauphin Sch. Dist. v. Hawkins,

286 A.3d 726, 741 (Pa. 2022), quoting Popowsky v. Pa. Pub. Util. Comm’n, 937 A.2d

1040, 1055 n.18 (Pa. 2007). “It is not possible for evidence that is inconclusive to be

sufficient to meet the preponderance of the evidence standard.” Povacz v. Pa. Pub. Util.

Comm’n, 280 A.3d 975, 1006 (Pa. 2022). Similarly, “evidence of a mere possibility . . . is

never sufficient to meet a preponderance of the evidence standard.” Id. at 1007.

To establish a Brady violation, a defendant must prove three elements: first, that

the evidence at issue is favorable to the defendant, either because it is exculpatory or

because it is impeaching; second, that the prosecution suppressed the evidence, either

willfully or inadvertently; and third, that the evidence is material. See Commonwealth v.

Thomas, 323 A.3d 611, 639 (Pa. 2024). “[E]vidence is material only if there is a

reasonable probability that, had the evidence been disclosed to the defense, the result of

the proceeding would have been different.” Commonwealth v. Birdsong, 24 A.3d 319,

327 (Pa. 2011), quoting Commonwealth v. Chambers, 807 A.2d 872, 887-88 (Pa. 2002).

“The mere possibility that an item of undisclosed information might have helped the

defense, or might have affected the outcome of the trial, does not establish materiality in

the constitutional sense.” Id., quoting Chambers, 807 A.2d at 887.

[J-6-2025] - 49

“[T]he PCRA requires judicial merits review favorable to the petitioner before any

relief may be granted.” Brown, 196 A.3d at 145 (emphasis omitted). “A confession of

error by the Commonwealth does not constitute a judicial ruling in [the petitioner’s] favor,

and thus is insufficient for any grant of relief under the PCRA.” Id. In conducting its

independent judicial review, the PCRA court may dismiss a PCRA petition without a

hearing if the court “is satisfied . . . that there are no genuine issues concerning any

material fact and that the defendant is not entitled to post-conviction collateral relief, and

no purpose would be served by any further proceedings[.]” Pa.R.Crim.P. 907(1).

Similarly, “[a] petition for post-conviction collateral relief may be granted without a hearing

when the petition and answer show that there is no genuine issue concerning any material

fact and that the defendant is entitled to relief as a matter of law.” Pa.R.Crim.P. 907(2).

On the other hand, “the judge shall order a hearing . . . when the petition for post-

conviction relief or the Commonwealth’s answer, if any, raises material issues of fact.”

Pa.R.Crim.P. 908(A)(2). That is, “an evidentiary PCRA hearing is required when there is

an outstanding issue of material fact.” Commonwealth v. Hutchinson, 25 A.3d 277, 321

(Pa. 2011).

Here, the PCRA court granted relief based on Brown’s claim the Commonwealth

violated Brady by withholding Vann’s purported false identification of Paige. See N.T.

Hearing, 5/5/23, at 4 (“I’m going to find that . . . this false identification was not disclosed

to the defense[.]”). This was error. Brown did not carry his burden to prove by a

preponderance of the evidence that Vann in fact incriminated Paige in the first place.

Obviously, the existence of this fact is a sine qua non of the claim. In the absence of the

alleged misidentification of Paige by Vann, there can be no viable Brady claim. The

Commonwealth, of course, cannot suppress evidence which does not exist, nor can a

nonexistent identification be impeaching, favorable, or material. See (Christopher Lynn)

[J-6-2025] - 50

Johnson, 335 A.3d at 718 (“[T]he Commonwealth could not have withheld an agreement

that never existed in the first place.”).

In support of his Brady claim, Brown proffered four documents: the 23rd District

memorandum, Detective Baker’s July 14 and 15 memoranda, and the Gannondale fax.

These documents do not render it more likely than not Vann incriminated Paige.

Beginning with the 23rd District memorandum, this document discusses the Rite

Aid murder in the following paragraph:

Vann then co-operated with CDD SIU, providing in[f]ormation into the

robbery of the Rite Aid, 1301 Girard Ave, on 1-18-03, and the homicide at

the Rite Aid the following day, 1-19-03. Based on Vann’s co-operation,

defendants Christopher Kennedy 22/B/M, PPN/840063 and James

Richardson 22/B/M, PPN/858783 have been arrested and charged with

robbery & homicide. (DC#03-23-001770 and 03-23-001914)

Amended Second PCRA Petition, 6/28/21, at Appendix, Exh. 12. Thereafter, the

memorandum provides:

Vann is continuing to co-operate with CDD SIU regarding robberies being

committed in the 23rd dist area of Broad and Girard Ave, providing

confidential information concerning the following:

Robbery/Homicide: Jamar Richardson 21/B/M, 1218 N 11th St (no record),

Kennisha Paige 17/B/F, 1116 Stiles St

Robberies: William Green 19/B/M, PPN/885936, [redacted]

Anthony Frames 20/B/M, PPN/836622, aka “Spanky”

Lavar Brown, 25/B/M, PPN/807547, 1222 N 11th, aka “Black”

Stephen Kennedy 19/B/M, PPN/823690, [redacted]

James Montgomery, 20/B/M, PPN/885941, [redacted]

Naheem Johnson 20/B/M, PPN/851060, [redacted]

Id. (emphasis added).

Thus, the paragraph regarding the Rite Aid murder does not include any reference

whatsoever to Paige. This passage refers to Kennedy and James by name, but not Paige.

If Vann had identified Paige in this crime, one would expect to find this fact included in

this paragraph of the memorandum. As the PCRA court put it, “[i]t certainly would’ve

[J-6-2025] - 51

made sense to put that . . . in the paragraph where they’re talking about the Rite-Aid

robbery.” N.T. Hearing, 12/1/22, at 11. But it is not there. Rather, the memorandum’s

sole reference to Paige appears in the subsequent discussion of Vann’s assistance in the

investigation of other crimes. What’s more, the memorandum simply notes Paige’s

name, age, race, sex, and address in connection with an unspecified “robbery/homicide.”

It does not specify Vann identified Paige. Plus, the memorandum was apparently written

by an administrative officer for use at a CompStat meeting, not by an officer with firsthand

knowledge of and involvement in the case. See Declaration of Special Agent Brian

Peters, 6/14/23, at ¶16. In light of its opaque structure, vague phrasing, and clerical

origins, the 23rd District memorandum is far from conclusive proof Vann incriminated

Paige, as the PCRA court duly recognized. In the apt words of the PCRA court, the

memorandum “certainly doesn’t make it clear that Vann identified Paige for the Rite-Aid

homicide[,]” and “[i]t’s actually . . . some circumstantial evidence that he did not[.]” N.T.

Hearing, 12/1/22, at 9.

Detective Baker’s July 2003 memoranda and the fax he received from Gannondale

likewise fail to provide any level of certainty on this score. For the most part, these

documents merely indicate the detective investigated Paige in connection with the Rite

Aid murder, not that Vann identified her as participating in the crime. The slim information

arguably supporting Vann’s identification of Paige consists of a single line in Detective

Baker’s July 14 memorandum in which he vaguely notes Vann “mentioned her.”

Amended Second PCRA Petition, 6/28/21, at Appendix, Exh. 20. There is ample cause

to question whether this thin reed supports the conclusion Vann in fact identified Paige.

The memorandum does not specify Vann “mentioned” Paige as a participant in the

murder, as opposed to merely a witness or associate of the suspects with potentially

relevant information. Nor does it specify Vann “mentioned” Paige to Detective Baker.

[J-6-2025] - 52

That is, it is not clear from the memorandum that the detective was writing from firsthand

knowledge as opposed to relying on secondhand information. On the contrary, it appears

the detective first met with Vann over one week later, on July 22, 2003, when he and

Detective Judge took Vann’s final statement. See N.T. Trial, 7/26/04, at 50.

Moreover, as of the time of his July 14, 2003 memorandum, Detective Baker’s

involvement in and knowledge of the investigation of the Rite Aid murder was limited.39

Detective Baker was not the detective assigned to the case; Detective Judge was. See

id. at 72. In fact, the detectives worked in entirely different squads in the Homicide Unit.

See Declaration of Detective Kevin Judge at ¶13 (undated) (“Detective Baker worked in

another squad in the Homicide Unit[.]”). Detective Baker assisted with the case only

informally. See id. As such, the detective was not familiar with all the statements in the

case and did not attend any supervisor meetings where the investigation was discussed.

See N.T. Trial, 7/26/04, at 87 (Detective Baker testifying “I wouldn’t read every statement

on every job. The assigned would.”); Declaration of Detective Kevin Judge at ¶15

(undated) (“As he was in another squad, Det. Baker . . . would not have attended any

meeting with my supervisors where this investigation was discussed.”). He likewise was

not present when Vann gave his statements to the police on January 21, February 20,

and March 21, 2003. Detective Baker’s lack of experience and familiarity with the case

could well have led him to conflate Lyons and Paige. The possibility of confusion on the

part of Detective Baker was particularly pronounced given the salient similarities between

Lyons and Paige. Both were teenage black females with similarly sounding first names

beginning with “K” who lived in close proximity to the Richardson house where the Rite

Aid murder was planned.

39 Subsequently, Detective Baker, inter alia, participated in taking a statement from Vann

on July 22, 2003, as well as a statement from Lyons on January 15, 2004.

[J-6-2025] - 53

The conclusion Vann incriminated Paige is also undermined by the fact this

purported identification is not recorded in any of the statements he gave to law

enforcement. It is certainly reasonable to presume that if Vann had actually identified

Paige, this identification would have been memorialized. The PCRA court itself made this

point emphatically. See N.T. Hearing, 12/1/22, at 13 (“There’s no detective who wouldn’t

put that in following the ordinary course of business.”). Likewise, Detective Judge, who

took Vann’s second statement on January 21, 2003 and his final statement on July 22,

2003, and who was also present at the March 21, 2003 proffer session where Vann

identified Lyons but not Paige, has confirmed in his declaration: “had [Paige] been

identified at any point by Vann or anyone else as being involved or being in possession

of any information about the homicide, that information would have been documented.”

Declaration of Detective Kevin Judge at ¶16 (undated). Detective Peters has similarly

declared: “[a]t no time during my encounter and interactions with Vann at Central

Detectives on January 21, 2003 did Vann ever say to me, or another detective/officer in

my presence, that someone named Kennisha Paige was involved in the commission of

the Rite Aid robbery/murder on January 19, 2003. If he did, I would have documented

that information.” Declaration of Special Agent Brian Peters, 6/14/23, at ¶13. But Vann’s

multiple statements include no reference whatsoever to Paige.

The conspicuous absence of Paige’s name cannot be explained by police

manipulation, as Brown argued below. Brown contended Vann may have implicated

Paige, but the police kept his identification out of his statements because their

investigation established she had an alibi. See N.T. Hearing, 12/1/22, at 13 (“There’s an

explanation. They checked it out and it didn’t check out.”). This theory is refuted by the

timing of Detective Baker’s investigation of Paige. Based on his memoranda, Detective

Baker did not confirm Paige had an alibi until July 2003, by which point Vann had already

[J-6-2025] - 54

given four statements to the police — two on January 21, 2003, one on February 20,

2003, and one on March 21, 2003. When the police took these statements, they had not

yet investigated Paige and had no reason to omit her name if she had in fact been

mentioned by Vann.

In short, the inconclusive and disputable documents submitted by Brown did not

carry his burden to prove it was more likely than not Vann actually inculpated Paige. And

the joint stipulations of fact did not make up for his evidentiary shortfall, as they did not

include a stipulation Vann implicated Paige. The PCRA court repeatedly recognized

Brown fell short in sustaining his burden of proof. See N.T. Hearing, 7/8/22, at 6 (“I agree

with the families on the insufficiency of the record; and in particular, I do want to see more

evidence on the statement that Ronald Vann allegedly made implicating Kennisha Page

[sic].”); id. (“I agree with [Family Members’] argument that on the face of the documents

that were submitted to me, I can’t tell that that, in fact, happened.”); id. at 6-7 (“But on the

existing record, it’s my considered view . . . that there is not enough information in the

paperwork for me to grant the petition notwithstanding the fact that both parties are of the

opinion that it should be granted.”); N.T. Hearing, 8/11/22, at 13 (“I’m interested in actually

what happened, and I don’t think that’s clear just from the submissions that I received.”);

N.T. Hearing, 10/7/22, at 13 (“I’m still not understanding how everybody thinks that

paperwork establishes that. . . . I just don’t get it.”); N.T. Hearing, 12/1/22, at 8 (“[T]he

record in front of me including the stipulation does not resolve the factual question of

whether Mr. Vann actually identified Kennisha Paige as a participant in the Rite-Aid

conspiracy.”); id. at 10 (“It seems to me there’s evidence on both sides, and I don’t know

how anybody could conclude conclusively that Vann actually identified Paige as being

one of the participants in the homicide based on this record.”); id. at 13-14 (“I’m pointing

out that a key factual issue in my mind is not resolved on this existing record.”).

[J-6-2025] - 55

Nonetheless, without any further supplementation of the record, or explanation for its

sudden about-face, the court granted post-conviction relief. This was error.40

Relatedly, it was erroneous for the PCRA court to grant relief without holding an

evidentiary hearing. As discussed, there was clearly an unresolved issue of material fact

regarding Brown’s Brady claim: whether Vann in fact incriminated Paige. Accordingly,

pursuant to our Rules of Criminal Procedure and case law, the PCRA court was required

to hold an evidentiary hearing. See Pa.R.Crim.P. 908(A)(2); Hutchinson, 25 A.3d at 321.

The lower court seemingly recognized as much, at least initially. See N.T. Hearing,

7/8/22, at 6 (“I’m going to require an evidentiary hearing.”); id. at 10 (“And if not, the next

thing that will happen is I will schedule an evidentiary hearing.”); id. at 11 (“So if there’s

no appeal, we will schedule an evidentiary hearing at that time.”); N.T. Hearing, 8/11/22,

at 13 (“We’re having a hearing. I’ve already ruled on that at the last listing.”). However,

the PCRA court ultimately ruled: “I’m not going to have a hearing if everybody connected

with the case thinks I shouldn’t.” N.T. Hearing, 12/1/22, at 10. While Family Members

argued Brown’s petition should be denied without a hearing, they did not concede relief

could be granted without one. See Opening Brief of Amicus Curiae Victims’ Family to

Dismiss Brown’s Untimely and Meritless PCRA Claims, 9/9/22, at 61-62 (“Rule 907 of the

Pennsylvania Rules of Criminal Procedure provides that the PCRA court can deny a

petition without a hearing when it determines ‘that there are no genuine issues concerning

any material fact and that petitioner is not entitled to post-conviction collateral relief and

40 Again, the claim upon which the PCRA court erroneously granted relief was that the

Commonwealth violated Brady by failing to disclose Vann’s false identification of Paige.

See N.T. Hearing, 5/5/23, at 4. The claim that the Commonwealth violated Brady by not

disclosing Detective Baker’s July 2003 memoranda, the 23rd District memorandum, and

the Gannondale fax does not warrant relief on the present record for similar reasons. As

detailed above, these documents alone do not establish by a preponderance of the

evidence Vann incriminated Paige. As such, it cannot be concluded this paperwork was

favorable and material as required by Brady.

[J-6-2025] - 56

no purpose would be served by any further proceedings . . . ’ Pa.R.Crim.P. 907. That is

the case here.”).

In any event, the standard for ordering an evidentiary hearing under the PCRA is

not whether the parties want one. A hearing is required when there is a material issue of

fact, as there is in this case. The PCRA court is thus instructed on remand to conduct a

hearing, after which it shall determine whether Brown has proven by a preponderance of

the evidence that Vann in fact incriminated Paige in the first place.41 If so, the court is

directed to reassess whether this evidence is material under Brady, i.e., whether “there

is a reasonable probability that, had the evidence been disclosed to” Brown before trial,

“the result of the proceeding would have been different.” Birdsong, 24 A.3d at 327,

quoting Commonwealth v. Chambers, 807 A.2d 872, 887-88 (Pa. 2002).42

41 In light of our remand for an evidentiary hearing, Justice Donohue finds it “curious and

suspect that [we] engage[] in an extensive evaluation of the probative value of the

evidence.” Concurring and Dissenting Opinion at 4 (Donohue, J.). But how could we

properly determine whether the evidence leaves an unresolved factual issue as to

whether Vann in fact incriminated Paige, thereby necessitating an evidentiary hearing,

without first evaluating that evidence? Obviously, we cannot simply assume the record

is inconclusive as to this critical issue. In our view, it would be “curious” and “suspect” if

we did not engage in a thorough analysis of the existing proof purportedly supporting a

Brady violation, and instead summarily remanded for further proceedings.

42 We have explained that “[i]n evaluating whether a reasonable probability of a different

outcome has been demonstrated, the question is not whether the defendant would more

likely than not have received a different verdict with the evidence, but whether in its

absence he received a fair trial, understood as a trial resulting in a verdict worthy of

confidence.” (Christopher Lynn) Johnson, 335 A.3d at 717, quoting Commonwealth v.

Natividad, 200 A.3d 11, 26 (Pa. 2019); see id. (to obtain Brady relief a defendant must

“show that the favorable evidence could reasonably be taken to put the whole case in

such a different light as to undermine confidence in the verdict”). The “whole case” here

includes the other trial evidence impeaching Vann that did not dissuade the jury from

convicting Brown, including that he had a separate open robbery case, pleaded guilty to

selling drugs, had other drug convictions, violated his parole following the murder, served

nine months in prison, initially lied to the police about the murder to exonerate himself,

lied to the police three different times, hoped his testimony would help him with his own

cases, and was the beneficiary of a testimonial immunity order providing that if he testified

about the murder the Commonwealth would not be able to use his testimony against him

(continued…)

[J-6-2025] - 57

c. The DAO’s Conduct in this Case

We cannot ignore the reality that the PCRA court’s erroneous grant of relief in this

case was abetted by the DAO’s lack of candor and failure to conduct a reasonable

investigation.43 Our rules of professional conduct impose on lawyers a duty of candor

in any criminal prosecution. In addition, we observe Vann’s testimony against Brown was

corroborated by Lyons.

43 Justice Wecht forwards the novel argument that identifying the DAO’s ethical violations

in this case “exceeds” the “boundaries of our King’s Bench power” because there has

been no “complaint to the Office of Disciplinary Counsel” and “adjudicat[ion] before the

Court’s Disciplinary Board[.]” Dissenting Opinion at 15 (Wecht, J.). Not so. Indeed, in

cases not involving our “very high and transcendent” King’s Bench authority, In re Bruno,

101 A.3d at 669, quoting Chimenti, 507 A.2d at 81, this Court has repeatedly indicated it

may independently find an attorney to have behaved unethically without first referring

counsel for disciplinary proceedings. See, e.g., Cnty. of Fulton v. Sec’y of

Commonwealth, 292 A.3d 974, 1018 (Pa. 2023) (finding attorney “guilty of relentlessly

dilatory, obdurate, vexatious, and bad-faith conduct before this Court and the Special

Master” and “refer[ring] [him] to the Pennsylvania Attorney Disciplinary Board for further

examination of his conduct”); Commonwealth v. Vandivner, 983 A.2d 1199, 1202-03 (Pa.

2009) (“[T]he only derogation of duty here involves counsel’s present misrepresentation

of the record to this Court. The blatant, multiple material misrepresentations of the record

that undergird the instant Application are beyond distressing. . . . Counsel should be

mindful of her ethical duties, including her duty of candor toward the tribunal, which

prohibits an attorney from knowingly making a false statement of material fact.”);

Commonwealth v. D’Amato, 526 A.2d 300, 314 (Pa. 1987) (“We will not hesitate, in

appropriate cases, to refer matters of improper trial conduct of either the defense attorney

or the prosecutor to the disciplinary board where the record suggests that the Code of

Professional Responsibility may have been transgressed.”) (emphasis omitted);

Commonwealth v. Stoyko, 475 A.2d 714, 724 n.7 (Pa. 1984) (“[T]his Court will scrutinize

the record for bogus ‘ineffectiveness’ tactics and should not hesitate, if the facts and

inferences so warrant, to refer the matter to the disciplinary board.”). This is certainly no

less true in the King’s Bench context, where our powers are at their maximum. See, e.g.,

In re Bruno, 101 A.3d at 686-87 (“The Supreme Court’s exercise of its supervisory

authority does not intrude upon the CJD’s [Court of Judicial Discipline’s] constitutional

authority to mete out disciplinary sanctions upon jurists, nor does it preclude the CJD from

imposing disciplinary sanctions upon a later Board-filed complaint. . . . Properly

understood, any such supervisory action is not punishment, but instead represents action

undertaken to preserve the integrity of the judiciary.”). Justice Wecht’s apparent view that

it is somehow procedurally improper for this Court to identify attorney ethical lapses in

cases pending before it unless the violations have first been “litigated before the

(continued…)

[J-6-2025] - 58

toward the tribunal. See Pa.R.P.C. 3.3. Lawyers are “officers of the court” who are duty

bound “to avoid conduct that undermines the integrity of the adjudicative process.”

Pa.R.P.C. 3.3 exp. cmt. [2]. A lawyer’s lack of candor to the court does just that. The

duty of candor applies with special force to prosecutors, who are not mere advocates but

also ministers of justice. See Pa.R.P.C. 3.8 exp. cmt. [1]. Moreover, as the United States

Court of Appeals for the Third Circuit recently explained in another concession case

involving the DAO, “[c]andor is especially critical when proceedings are non-adversarial.”

Wharton v. Superintendent Graterford SCI, 95 F.4th 140, 149 (3d Cir. 2024).44 “The very

premise of our adversary system of criminal justice is that partisan advocacy on both

sides of a case will best promote the ultimate objective” of justice. United States v. Cronic,

466 U.S. 648, 655 (1984), quoting Herring v. New York, 422 U.S. 853, 862 (1975). When

only one side is presented to the court because the parties agree, for whatever reason,

then “the court is entitled to expect an even greater degree of thoroughness and candor.”

Wharton, 95 F.4th at 149, quoting Me. Audubon Soc’y v. Purslow, 907 F.2d 265, 268 (1st

Cir. 1990).

Under the duty of candor, “[a] lawyer shall not knowingly . . . make a false

statement of material fact . . . to a tribunal[.]” Pa.R.P.C. 3.3(a)(1). “Candor means more

than just not lying[; i]t also means not saying things ‘that are literally true but actually

Disciplinary Board” runs headlong into, and is directly contradicted by, a litany of

precedent doing just that. Dissenting Opinion at 15 n.53 (Wecht, J.).

44 Much like this Court is “not obligated to follow the decisions of the Third Circuit on

issues of federal law[,]” Hall v. Pa. Bd. of Prob. & Parole, 851 A.2d 859, 865 (Pa. 2004),

neither are we bound to follow its interpretations of our Rules of Professional Conduct

and Rules of Disciplinary Enforcement, which govern the conduct and discipline of

attorneys in this Commonwealth. See, e.g., Beyers v. Richmond, 937 A.2d 1082, 1090-

91 (Pa. 2007) (“this Court’s exclusive authority in this area is founded on the separation

of powers” and derives from the “constitutional authority to regulate the practice of law”

found in Article V, §§10(a) and (c) of our state charter). Still, where appropriate, we may

consider such decisions for their persuasive value. We find Wharton’s discussion of the

duty of candor to be particularly persuasive and adopt it as noted.

[J-6-2025] - 59

misleading.’” Wharton, 95 F.4th at 148, quoting In re Taylor, 655 F.3d 274, 283 (3d Cir.

2011). The duty of candor also requires that “[i]n an ex parte proceeding, a lawyer shall

inform the tribunal of all material facts known to the lawyer that will enable the tribunal to

make an informed decision, whether or not the facts are adverse.” Pa.R.P.C. 3.3(d). A

non-adversarial proceeding in which both sides agree to relief is equivalent to an ex parte

proceeding because in both situations the court is denied the benefit of adversarial

advocacy. See Wharton, 95 F.4th at 149 (“At ex parte hearings, . . . the customary checks

and balances do not pertain[.] . . . The same is true of proceedings that risk being

collusive, like class-action settlements or guilty-plea colloquies.”) (quotation marks and

citation omitted).

Here, the DAO, bearing the prosecutor’s responsibility of a minister of justice,

confessed error in a non-adversarial proceeding. The conceded case could hardly be

more serious: a murder conviction potentially implicating Brown’s death sentence for a

second murder. As this Court emphasized in Brown, “[t]he community . . . has an interest

in the[se] verdict[s], which may . . . be disrupted only if a court finds legal error.” Brown,

196 A.3d at 146. Under these circumstances, the DAO’s fidelity to its duty of candor

should have been at its zenith. Regrettably, it was anything but.

For one, the DAO did not disclose the March 2003 memorandum to the PCRA

court, which recounted Vann’s March 21, 2003 statement to police in which he identified

Lyons and Brown by name as being involved in the Rite Aid murder. 45 The DAO does

not dispute it withheld this memorandum from the PCRA court, but rather insists it “did

not include this document in its pleadings because it was irrelevant to any of Brown’s

claims.” DAO’s Brief at 52. According to the DAO, the PCRA court “was already

presented with thousands of pages of transcripts, appendices, and briefs” and “including

45 Brown also did not provide this document to the PCRA court.

[J-6-2025] - 60

[this] unnecessary document[] would only have hindered [its] decision.” Id. We find this

rationale entirely unconvincing. The DAO itself referred to the March 2003 memorandum

in the PCRA court. In its response to Brown’s PCRA petition, in which it conceded he

was entitled to a new trial, the DAO asserted “there is no record of Vann discussing Brown

informally prior to March 2003.” DAO’s Response to Petition for Collateral Relief, 11/1/21,

at ¶74 n.8. This assertion was incorrect. Vann discussed Brown in his unsigned February

20, 2003 statement to Detectives Santamala and Brooks. See Interview of Vann by

Detectives Santamala and Brooks, 2/20/03, at 1 (“Vann believes that the male with

Richardson [during the failed robbery of the Rite Aid the day before the murder] may have

been Lavare [sic] Brown, but is not sure.”). But more to the present point, as the DAO

acknowledges, its allegation about Vann accusing Brown in March 2003 “referenc[ed] the

Fisher memorandum[.]” DAO’s Brief at 47. Having specifically relied on the March 2003

memorandum in its briefing to the PCRA court below, the DAO’s present contention this

document was actually wholly irrelevant to the court’s decision rings hollow and smacks

of post hoc rationalization.

Indeed, the March 2003 memorandum was unquestionably relevant to the

proceedings below. “Evidence is relevant if . . . it has any tendency to make a fact more

or less probable than it would be without the evidence[,] and . . . the fact is of consequence

in determining the action.” Pa.R.E. 401. Again, the March 2003 memorandum reflected

Vann identified Lyons (not Paige) in March of 2003. Thus, this evidence tended to support

the fact Vann did not identify Paige, which, if true, would of course foreclose Brown’s

claim that the Commonwealth violated Brady by suppressing this alleged identification.

The fact Vann identified Lyons in March of 2003, in addition to identifying her in his July

2003 statement and at trial, supported the inference he had consistently identified Lyons

and had never implicated Paige. His repeated positive identifications indicated

[J-6-2025] - 61

consistency over time. To be sure, the March 2003 memorandum was not dispositive

of Vann’s failure to identify Paige. It is possible that, notwithstanding this second pretrial

identification of Lyons, Vann nonetheless also accused Paige at some other unspecified

time, to some unspecified member of law enforcement, who inexplicably failed to record

the identification. But the notion that the March 2003 memorandum was not even

relevant to this question — that it had no tendency whatsoever to make it any less

probable that Vann identified Paige — is simply not tenable.46

The March 2003 memorandum was also pertinent to the materiality prong of

Brown’s Brady claim, i.e., whether, assuming Vann identified Paige, the introduction of

this evidence would have created a reasonable probability of acquittal. The DAO argued

below that “[i]f the Paige accusation had been disclosed, it would have proved fertile

ground for cross-examination” of Vann. DAO’s Consolidated Response to Briefing by

Amici and Petitioner, 2/21/23, at 14. Specifically, the DAO claimed Vann “first mentioned”

Lyons and Brown “after investigators determined that Vann had lied about Paige’s

involvement in the Rite Aid robbery/homicide. . . . Had the defense been apprised that

Vann had told investigators that a demonstrably innocent person had been involved in

the crime and only implicated [Brown] after being caught in the lie, their attacks on his

credibility would have been more convincing to the jury.” Id. at 15 (emphasis in original).

The March 2003 memorandum flatly belied these arguments. It showed Vann in

fact identified Lyons and Brown on March 21, 2003, months before Detective Baker

confirmed in July of 2003 that Paige had an alibi for the Rite Aid murder. That is, the

2003 memorandum refuted the DAO theory “Vann’s July 22, 2003, statement was

46 Whether the plainly relevant March 2003 memorandum is a “smoking gun” is of no

moment. Concurring and Dissenting Opinion at 11 (Donohue, J.). The DAO’s duty of

candor obliged it to disclose all relevant documents to the PCRA court, not just smoking

guns. The ultimate evidentiary weight to be given to the memorandum was for the PCRA

court to decide, but it never got the chance because the DAO kept it to itself.

[J-6-2025] - 62

sanitized by the police in that it omitted the aspects of his earlier account that detectives

had recently confirmed were false.” DAO’s Brief at 50. Rather, as Family Members note,

the memorandum showed that “in both March and July 2003, Vann identified all five

participants in both the aborted robbery on January 18, 2003 and the subsequent robbery-

murder the following day, January 19 — both those who had been ‘checked out’ and

those who had not — stated their respective roles, and never on[c]e mentioned Kennisha

Paige.” Family Members’ Reply Brief at 16. The memorandum would have poured salt

on the “fertile ground” for impeachment envisioned by the DAO.

The DAO did not merely withhold from the PCRA court the clearly relevant March

2003 memorandum; it also actively opposed Family Members’ efforts to gain access to

this document and share it with the court. As the DAO recounts, after Brown filed his

second PCRA petition in 2020, “in accordance with the DAO’s open-file discovery policy,

the [DAO] allowed Brown’s counsel access to the entirety of its file in this case, as well

as the Philadelphia Police Department’s homicide investigation file[.]” DAO’s Brief at 17.

Subsequently, Family Members repeatedly requested the same open-file access in the

PCRA court. Initially, in their motion to intervene, Family Members argued they should

be permitted “the opportunity to review the full, lengthy file[.]” Motion for Intervention by

Victims’ Families, 1/24/22, at 10. Likewise, in their opening brief below, Family Members

argued “the most meaningful and effective participation by the amicus curiae would be

best served by access to the complete file in this case (the trial prosecution file and the

police homicide file).” Opening Brief of Amicus Curiae Victims’ Family to Dismiss Brown’s

Untimely and Meritless PCRA Claims, 9/9/22, at 67. Seemingly anticipating the DAO’s

suppression of the March 2003 memorandum, Family Members contended granting them

open-file discovery “would be the only way to make certain th[e PCRA court] was

presented with all the relevant documentation in the case before making its determination

[J-6-2025] - 63

— and not just those documents that the parties believe support their mission to vacate

the conviction.” Id. at 67 (emphasis in original).

The DAO steadfastly opposed these requests, insisting Family Members were not

entitled to the same access it had readily accorded the murderer of their loved ones. See

DAO’s Response to Motion for Intervention by Victim’s [sic] Families, 4/5/22, at 4 (“This

cannot be permitted.”); DAO’s Pre-Hearing Brief, 9/9/22, at 9 (“Amici have again

requested to review the prosecution’s records. They are not entitled to do so and

identified no statutory authority in support of their request.”).47 The DAO assured the

PCRA court that allowing Family Members to review its files was “unnecessary” because

“the DAO is the Commonwealth’s representative in this case and has already reviewed

the prosecution file to ensure that any relevant evidence is provided for the [c]ourt’s

review.” Id. at 9-10. However, as is now clear based on the diligent efforts of Family

Members following the PCRA court’s grant of relief, the DAO did not live up to this

representation. The DAO did not provide the PCRA court with the plainly relevant March

2003 memorandum, in breach of its duty of candor.

The joint stipulations of fact submitted by the DAO and Brown likewise lacked

candor to the court. Specifically, the stipulations alleged: “[o]n Tuesday, July 22, 2003,

Ronald Vann provided a third statement to homicide investigators. That statement was

the first in which he implicated [Brown] or Kiana Lyons in the Rite Aid robbery/homicide.”

Joint Stipulations of Fact, 11/8/22, at ¶41. This joint stipulation was false in multiple

respects. Vann provided more than three statements to the police about the Rite Aid

murder. He gave at least five statements about the murder: two on January 21, 2003,

and one each on February 20, 2003, March 21, 2003, and July 22, 2003. Moreover, his

47 The DAO acknowledges it “opposed” Family Members’ discovery requests but notes it

would have “view[ed] the discovery matter differently if the OAG were asking to review

the file,” and that it offered two former prosecutors who had worked on Brown’s case “an

opportunity to review the entire file.” DAO’s Brief at 41-42.

[J-6-2025] - 64

July 22, 2003 statement was not the first in which he implicated Brown and Lyons. Per

the March 2003 memorandum suppressed by the DAO in the underlying post-conviction

proceedings, Vann incriminated Brown and Lyons months before his July 22, 2003

statement, at the proffer session on March 21, 2003.

The DAO concedes the joint stipulation at issue, stipulation 41, “could have been

more clearly drafted” but nonetheless insists it “would not have confused anyone

acquainted with this case” because it “plainly referred” only to Vann’s “disclosed”

statements. DAO’s Brief at 51-52. On the contrary, prior to this stipulation regarding

Vann’s third statement, the joint stipulations described Vann’s first and second statements

as follows:

28. Ronald Vann surrendered to the police on January 21, 2003. He was

charged with the January 6, 2003 robberies of pizza delivery drivers

Hector Toledo and Mohammad Lalhhab at MC103/01-5386 and

MC103/01-5387, respectively.

29. The same day, Vann provided a statement regarding the November

25, 2002, shooting of Kareem Ali, Def. Ex. 10, and the January 19,

2003, Rite Aid robbery/homicide, Def. Ex. 15.

30. On February 20, 2003, Vann provided a second statement to the

police regarding the Rite Aid robbery/homicide. Def. Ex. 9.

Joint Stipulations of Fact, 11/8/22, at ¶¶28-30. The citation to “Def. Ex. 15” in stipulation

29 refers to exhibit 15 in the appendix to Brown’s amended second PCRA petition. See

id. at 1 n.2 (“Unless otherwise stated, all Exhibit numbers correspond to Exhibits in

Petitioner’s Appendix to [his Amended Second PCRA Petition] filed on June 2[8], 2021.”).

The statement included as exhibit 15 in Brown’s appendix was Vann’s statement on

January 21, 2003 at 11:15 a.m. See Amended Second PCRA Petition, 6/28/21, at

Appendix, Exh. 15. In light of this context, this same statement — i.e., the one Vann

provided on January 21, 2003 at 11:15 a.m. — was the first of the three statements by

Vann referenced in stipulation 41. This statement was not disclosed to Brown’s trial

[J-6-2025] - 65

counsel, as the joint stipulations themselves alleged. See Joint Stipulations of Fact,

11/8/22, at ¶24a (“The following documents are contained in the Philadelphia Police

Department’s H-File for M03-14 and were not produced to trial counsel or to [Brown’s]

PCRA counsel during the initial PCRA proceedings: a. January 21, 2003, 11:15 a.m.,

statement of Ronald Vann with two different versions of page 4, Def. Ex. 15[.]”); see also

Brown’s Response to Amicus’ Opening Brief, 2/6/23, at 36 (“The Commonwealth failed

to reveal one of two statements Vann gave on January 21, 2003, this one in the morning

at 11:15 a.m. Pet. Ex. 15, Stip ¶24.a.”); Brown’s Brief at 7 (“The DAO did not disclose this

statement pre-trial or in initial PCRA proceedings.”). Thus, stipulation 41 did not refer

only to “disclosed” statements, “plainly” or otherwise. DAO’s Brief at 51-52. The DAO’s

belated gloss on this false stipulation is itself false.48

The DAO’s pleadings in the PCRA court also included misrepresentations of fact.

The DAO repeatedly represented to the PCRA court that the court had been provided

with all relevant information necessary for it to make an informed decision. See DAO’s

Response to Petition for Collateral Relief, 11/1/21, at ¶129 (“This Court is in a position to

do what the prior PCRA court could not — review Brown’s claims in light of a complete

record.”); DAO’s Pre-Hearing Brief, 9/9/22, at 9-10 (“[T]he DAO is the Commonwealth’s

representative in this case and has already reviewed the prosecution file to ensure that

any relevant evidence is provided for the [c]ourt’s review.”). In fact, the court did not have

the decidedly relevant March 2003 memorandum. The DAO represented to the PCRA

court that Vann’s statement on July 22, 2003 was the first in which he inculpated Lyons

and Brown. See DAO’s Consolidated Response to Briefing by Amici and Petitioner,

2/21/23, at 15 (“They were first mentioned in Vann’s July 21 and 22, 2003, statements[.]”);

48 In any event, the stipulation, which in no way specified it was confined to “disclosed”

statements, was, at a minimum, misleading. See Wharton, 95 F.4th at 148 (“Candor

means . . . not saying things that are . . . actually misleading.”) (quotation marks and

citation omitted).

[J-6-2025] - 66

id. (“[T]he statement he provided on July 22 . . . implicated [Brown] and Lyons for the first

time.”). The suppressed March 2003 memorandum proves this is not so; the

memorandum reflects that Vann identified Brown and Lyons on March 21, 2003, months

before his July statement. The DAO claimed Vann did not discuss Brown informally prior

to March 2003. See DAO’s Response to Petition for Collateral Relief, 11/1/21, at ¶74 n.8

(“[T]here is no record of Vann discussing Brown informally prior to March 2003.”).

Actually, Vann discussed Brown in his unsigned February 20, 2003 statement. See

Interview of Vann by Detectives Santamala and Brooks, 2/20/03, at 1 (“Vann believes

that the male with Richardson [during the failed robbery of the Rite Aid the day before the

murder] may have been Lavare [sic] Brown, but is not sure.”). The DAO alleged below

that Vann identified Brown and Lyons only “after investigators determined that Vann had

lied about Paige’s involvement in the Rite Aid robbery/homicide.” DAO’s Consolidated

Response to Briefing by Amici and Petitioner, 2/21/23 at 15 (emphasis in original). To

the contrary, Vann incriminated them on March 21, 2003, long before Detective Baker

confirmed Paige’s alibi in July of 2003.

A concomitant to the lawyer’s duty of candor is the obligation to conduct a

reasonable investigation before making representations to a court. As the Third Circuit

has put it: “[a]s officers of the court, lawyers must not mislead courts. So before they

state facts, they must investigate reasonably.” Wharton, 95 F.4th at 151. In particular,

given the special ethical responsibilities of a prosecutor and the community interests at

stake, a prosecutor’s concession to relief in a criminal case should only follow a

reasonable investigation, as amicus supporting the DAO confirm. See, e.g., Quattrone

Center Amicus Brief at 6 (“To be sure, factual stipulations and agreement to relief by

prosecutors should only be made based on an independent investigation. This position

[J-6-2025] - 67

is consistent with the prosecutorial function, prosecutorial ethics, and community interests

of justice.”).

Presently, the DAO’s response agreeing to PCRA relief alleged it was doing so

“[a]fter reviewing Brown’s current pleadings,” and “a thorough, independent review of the

records in this case.” DAO’s Response to Petition for Collateral Relief, 11/1/21, at ¶8

(emphasis added). In other words, the DAO limited its review to Brown’s pleadings and

the documents in the prosecution and police files. Its “investigation” did not go beyond a

cold review of the inconclusive paperwork in its own records. It never interviewed a single

witness. There were a number of individ

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