Commonwealth v. Brown

COMMONWEALTH OF PENNSYLVANIA v. JAMIE M. BROWN Appellant

J-S27024-19

No. 1468 WDA 2018

SUPERIOR COURT OF PENNSYLVANIA

JULY 16, 2019

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered September 21, 2018

In the Court of Common Pleas of Beaver County

Criminal Division at No(s): CP-04-CR-0000913-2001

BEFORE: OLSON, J., OTT, J., and COLINS^*, J.

MEMORANDUM BY OTT, J.:

Jamie M. Brown appeals from the order entered September 21, 2018, in the Beaver County Court of Common Pleas, dismissing, after a hearing, his serial petition for collateral relief filed pursuant to the Post Conviction Relief Act ("PCRA").¹ Brown seeks relief from the judgment of sentence of 20 to 40 years' imprisonment, imposed on May 29, 2002, following his jury conviction of murder. On appeal, he asserts the PCRA court erred in dismissing the petition. For the reasons discussed below, we affirm.

We take the underlying facts and procedural history in this matter from our March 24, 2016 opinion and the PCRA court's September 21, 2018 opinion.

This Court previously set forth the factual basis of this case as follows:

[On March 15, 2001] Aliquippa Police Officer James Naim was on routine foot patrol in the Linmar Housing Plan when [Brown] approached him from the rear firing a nine millimeter handgun. Two bullets struck the officer in the head causing his immediate death. Testimony established that [Brown], who was well known to the law enforcement community, told several people that he was going to kill a police officer to "set an example."

Commonwealth v. Brown, 83 A.3d 1063 (Pa.Super.2013) (unpublished memorandum), at 1-2 (internal alterations and citation omitted).

The procedural history of this case is as follows. On May 10, 2002, [Brown] was convicted of third-degree murder. On May 29, 2002, [Brown] was sentenced to 20 to 40 years' imprisonment. This Court affirmed the judgment of sentence, and our Supreme Court denied allowance of appeal. Commonwealth v. Brown, 850 A.2d 5 (Pa.Super.2004) (unpublished memorandum), appeal denied, 581 Pa. 670, 863 A.2d 1142 (2004).

On June 30, 2005, [Brown] filed a pro se PCRA petition. Counsel was appointed and, on February 13, 2008, the PCRA court denied [Brown's] first PCRA petition. This Court affirmed the denial of PCRA relief, and our Supreme Court denied allowance of appeal. Commonwealth v. Brown, 965 A.2d 289 (Pa.Super.2008) (unpublished memorandum), appeal denied, 603 Pa. 689, 983 A.2d 725 (2009).

[Brown] thereafter sought federal habeas relief. Such relief was denied. Brown v. Mazurkiewicz, 2012 WL 954628 (W.D.Pa. Mar. 20, 2012). On July 12, 2012, [Brown] filed a pro se PCRA petition, his second. That petition was denied and this Court affirmed. Commonwealth v. Brown, 83 A.3d 1063 (Pa.Super.2013) (unpublished memorandum).

On June 7, 2013, [Brown] filed his third pro se PCRA petition. Thereafter, [Brown] filed an amended petition along with a motion to disqualify the Office of Attorney General ("OAG") and a motion seeking the PCRA court's recusal. On July 15, 2014, the PCRAcourt denied the motion to disqualify and the motion for recusal. On August 12, 2014, the PCRA court issued an amended notice of its intent to dismiss the petition without an evidentiary hearing. See Pa.R.Crim.P. 907. On December 22, 2014, the PCRA court dismissed the petition. This timely appeal followed.

Commonwealth v. Brown, 141 A.3d 491, 495-496 (Pa. Super. 2016) (footnotes omitted).

On March 24, 2016, this Court affirmed in part, vacated in part, and remanded. See id. at 495. While agreeing that Brown's petition was "patently untimely[,]" we found that "there [was] a genuine issue of material fact as to whether [Brown] pled and proved the applicability of the PCRA's newly-discovered fact exception." Id. at 507-508. This genuine issue of material fact concerned an affidavit filed by Angela White. Immediately following Officer Naim's murder, White was the subject of a drug investigation. In 2013, she provided an affidavit to Brown in which she stated that, as part of that investigation, there were wiretaps and, on one of them, an unknown individual confessed to killing Officer Naim. Id. at 502. We therefore remanded the matter for consideration solely of whether "Brown acted with due diligence in discovering [that there were wiretap tapes and transcripts in an unrelated matter that concerned his case]" and whether the wiretaps constituted admissible evidence. Id. at 507.

The PCRA court described the background of the wiretaps, their contents, the events following remand, and its findings of fact as follows:

On March 17, 2001, [Brown] was arrested and charged with [c]riminal [h]omicide relating to the death of Officer James Naimof the Aliquippa Police Department. Both the City of Aliquippa Police Department and the Beaver County District Attorney's Office requested that the offense be investigated by the Pennsylvania State Police and prosecuted by the Pennsylvania Office of the Attorney General. During the investigation, the Attorney General's Office did file [a]pplications with the Pennsylvania Superior Court seeking authorization to intercept electronic and wire communications of various individuals known to have associations with [Brown]. The Honorable Justin M. Johnson of the Superior Court of Pennsylvania approved three (3) separate [a]pplications for interceptions at Docket Numbers 12-1 W.D. 2001 on March 19, 2001; 12-2 W.D. 2001 on March 22, 2001, and 12-3 W.D. 2001 on April 9, 2001. The authorized intercepts involved the cellular telephones of Michael Glanton, Peris Smith and Michael Bigstaff, Jr. The authorized intercepts covered periods of time from March 19, 2001 through April 16, 2001. The [a]pplications which Judge Johnson authorized all related, by their allegations, to the murder of Officer Naim, and, further, that [Brown] was associated with Anthony Tusweet Smith, Perris Smith (both of whom are cousins of [Brown]), Michael Glanton and Michael Bigstaff, Jr. in the trafficking of illegal drugs.

As a result of the intercepts which were memorialized on thirty-four (34) cassette tapes at Docket Number 12-1 W.D. 2001; fifty-three (53) cassette tapes at Docket Number 12-2 W.D. 2001, and twenty-two (22) cassette tapes at Docket Number 12-3 W.D. 2001 (109 total cassette tapes), the Office of the Attorney General did file additional charges against various individuals, one of whom was Angela Y. White, who also happens to be the maternal aunt of Michael Glanton. On March 30, 2001, fifteen (15) days after the murder of Officer Naim and thirteen (13) days after the arrest of [Brown], the Pennsylvania State Police pulled over and impounded a pick-up truck which was being operated by Angela White with Michael Glanton in the passenger seat, and a subsequent search of the truck revealed twelve (12) kilograms of cocaine in a hidden compartment under the bed of the truck. On November 30, 2001, Ms. White was interviewed by agents of the Pennsylvania Bureau of Narcotics Investigation at Fort Hood, Texas, where she was stationed in the military.

During the interview, which lasted four (4) hours and twenty (20) minutes, the agents did play portions of the taped intercepts forMs. White to listen to, and follow-up questions were asked. Some of the intercepts related to conversations between and among the aforementioned Michael Glanton, Perris Smith, Michael Bigstaff, Jr. and other individuals, including Angela White, and those intercepts also led to inquiries by the agents of Ms. White's knowledge of the murder of Officer Naim.

* * * *

Counsel was appointed for [Brown], and [the PCRA court] did grant [m]otions of [c]ourt-appointed counsel to acquire the wiretaps and logs from the Superior Court. Because the wiretaps were then over fifteen (15) years old, and because the Superior Court maintained records of that nature pursuant to internal operating procedures known only to the Superior Court, the initial attempts of [c]ourt-appointed counsel and [the PCRA court] were unsuccessful. [Brown] then retained private counsel with knowledge of the internal operating procedures of the Superior Court who, with and by [o]rder of [the PCRA court], was successful in securing release from the Superior Court of Pennsylvania archives of, first, the logs and tapes of wiretaps (34 in total) at Docket Number 12-1 W.D. 2001, and subsequently, the logs and tapes of wiretaps at Docket Numbers 12-2 W.D. 2001 and 12-3 W.D. 2001. As noted previously, Docket Number 12-2 W.D. 2001 contained 53 cassette tapes and Docket Number 12-3 W.D. 2001 contained an additional 22 cassette tapes, or 109 total cassette tapes at all three (3) Docket Numbers.

Over the course of six and one-half (6½) days, counsel for [Brown], counsel for the Commonwealth, this [c]ourt and this [c]ourt's [l]aw [c]lerks listened to all 109 cassette tapes while simultaneously reviewing all of the handwritten logs maintained simultaneously with the wiretaps of the mobile phone conversations. Those six and one-half (6½) days were conducted in camera in the [c]ourtroom with only those four (4) representatives being present. Following review of the logs and wiretaps, the [c]ourt did convene a PCRA Hearing in [c]ourt on November 29, 2017. At that hearing, the [c]ourt granted [Brown's] counsel's [m]otion that the testimony of Angela White be sealed, after which defense counsel called two (2) witnesses who testified in [o]pen [c]ourt.

FINDINGS OF FACT

1. There is no recording or log of recordings at Docket Numbers 12-1,12-2 or 12-3 W.D. 2001 which contain the statement of either the caller who initiated the phone call nor the recipient who answered the phone call, wherein any person claimed responsibility for the "killing of the police officer on Linmar, Alliquippa"[.]

2. There is no recording or log of recordings at Docket Numbers 12-1, 12-2 or 12-3 W.D. 2001, which contains the statement of either the caller nor the recipient of the call wherein any person was "the killer that was

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