Philadelphia criminal appeals lawyer Lloyd Long discusses details surrounding the Pennsylvania’s Superior Court’s decision in the Brown case for PCRA.

This was an appeal of a PCRA order from Beaver County denying the appellant’s third PCRA petition. Appellant had been convicted of third-degree murder for the killing of a police officer in 2001.

The first claim advanced was that the Office of the Attorney General should have been disqualified because it was being accused of a Brady violation in the proceedings. But individual prosecutor, as opposed to entire-office, disqualification is the general rule in criminal case motions like this (except where the chief prosecutor in an office has the actual conflict). Nor is there any precedent for an entire office being disqualified based on a Brady claim.

The appellant also claimed that the OAG should have been disqualified under the Commonwealth Attorney Act because there was no indication that the Beaver County DA had asked the OAG to handle the third PCRA petition. This claim was waived because the appellant did not raise it at trial or on direct appeal (when the OAG was also prosecuting him) as required by the Act.

The appellant proffered two claims of newly-discovered evidence. The first was an affidavit from an individual who claimed he heard a police officer state that the victim’s killing was an “inside job” – he had been killed by other officers to protect their own. Because this was hearsay, it did not satisfy the exception to the PCRA’s timebar. Aside from serious issues surrounding the statement’s reliability, there was no indication that the officers who made the statements were unavailable, which might have otherwise made it a statement against interest. Nor did the appellant plead and prove that he acted with due diligence to obtain the affidavit.

The second claim was an affidavit from another individual stating the existence of a wiretap containing the voice of the actual killer. This was not a “fact” – rather, it merely referenced some evidence that might exist and lead to certain facts. In a supplemental filing, the appellant attached transcripts from the affiant’s criminal proceedings that dealt with wiretaps. The deceased officer’s killing was discussed in the wiretaps, but it is unclear who made the statements. Accordingly, the declarant could well be unavailable. The fact that the statements were contained on wiretaps made the statements reliable under Pa.R.E. 804(b)(2).

The panel remanded the matter to the lower court for a determination as to whether the appellant had acted with due diligence in obtaining the second affidavit. Because an evidentiary hearing is required, the court must appoint counsel under Pa.R.Crim.P. 904(D).

Judge Strassburger concurred, but would have allowed the appellant to prove the unavailability of the police officer declarant identified in the first affidavit.

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