OPINION BY OLSON, J.:
Appellant, Jamie Brown, appeals pro se from the order entered on December 22, 2014 dismissing his third petition filed pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541 -9546. After careful consideration, we affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.
This Court previously set forth the factual background 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 Appellant 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 Appellant, 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Commonwealth v. Brown, 83 A.3d 1063 (Pa.Super.2013) (unpublished memorandum), at 1-2 (internal alterations and citation omitted).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, Appellant was convicted of third-degree murder. On May 29, 2002, Appellant 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 Commonwealth v. Brown, 850 A.2d 5 (Pa.Super.2004) (unpublished memorandum), appeal denied, 581 Pa. 670, 863 A.2d 1142 (2004).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, Appellant filed a pro se PCRA petition. Counsel was appointed and, on February 13, 2008, the PCRA court denied Appellants 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 Commonwealth v. Brown, 965 A.2d 289 (Pa.Super.2008) (unpublished memorandum), appeal denied, 603 Pa. 689, 983 A.2d 725 (2009).
Appellant 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, Appellant 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 Commonwealth v. Brown, 83 A.3d 1063 (Pa.Super.2013) (unpublished memorandum).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, Appellant filed his third pro se PCRA petition. Thereafter, Appellant filed an amended petition along with a motion to disqualify the Office of Attorney General (OAG) and a motion seeking the PCRA courts recusal. On July 15, 2014, the PCRA court 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. ,
Appellant presents five issues for our review:
1. Whether the [PCRA] court erred as a matter of law and/or abused its discretion in failing to disqualify the [OAG] from participating in the instant PCRA proceedings?
2. Whether the [PCRA] court erred as a matter of law and/or abused its discretion in failing to grant Appellants request for judicial recusal?
3. Whether the [PCRA] court erred as a matter of law and/or abused its discretion in denying and/or otherwise dismissing Appellants request for PCRA relief as untimely?
4. Whether the [PCRA] courts historical findings concerning the information provided by [Angela Y.] White [ (White) ] and [Anthony] Brown [ (Brown) ] are without any support in the record?
5. Whether the [PCRA] court erred as a matter of law and/or abused its discretion in denying and/or otherwise dismissing Appellants request for PCRA relief without ruling on his request for limited discovery?
Appellants Brief at 4 (complete capitalization removed).
In his first issue, Appellant argues that the PCRA court erred by denying his motion to disqualify the OAG. Appellant contends that disqualification of the OAG was required because one of the claims raised in his PCRA petition was that the OAG withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Second, Appellant argues that disqualification of the OAG was required pursuant to the Commonwealth Attorneys Act, 71 P.S. § 732-101 et seq.
We review the PCRA courts denial of a motion for disqualification for an abuse of discretion. Commonwealth v. Sims, 799 A.2d 853, 856 (Pa.Super.2002) (citations omitted). A prosecution is barred when an actual conflict of interest affecting the prosecutor exists in the case; under such circumstances a defendant need not prove actual prejudice in order to require that the conflict be removed. Commonwealth v. Ford, 122 A.3d 414, 418 (Pa.Super.2015) (internal quotation marks and citation omitted).
Appellant argues that the OAG should have been disqualified because, in his PCRA petition, he alleged that the OAG violated Brady. Appellant notes that any attorney who violates Brady is subject to disciplinary action and/or criminal penalties. Thus, according to Appellant, the OAG attorneys have a personal interest in ensuring his Brady claim fails which conflicts with their professional obligation to expose any Brady violations.
This claim fails for two reasons. First, when evaluating prosecutorial disqualification claims, individual rather than vicarious disqualification is the general rule. Ford, 122 A.3d at 418 (internal quotation marks and citation omitted). The attorney in the OAGs office who represented the Commonwealth with respect to Appellants third PCRA petition was not involved in Appellants original prosecution. Appellant cites Commonwealth v. Eskridge, 529 Pa. 387, 604 A.2d 700 (1992), in support of his argument that the general rule of individual disqualification should not apply in this case. Eskridge, however, is distinguishable from the case at bar. In that case, the district attorney himself, not a deputy, had a conflict of interest. [T]his Court held that where the conflict of interest lies with the chief prosecutor (i.e., the District Attorney), the prosecution is barred and the conflict cannot be resolved by delegating the matter to an assistant DA. Sims, 799 A.2d at 857 (citations omitted). Thus, Eskridge established a special rule relating to conflicts involving chief prosecuting authorities. Appellant does not argue that Attorney General Kathleen Kane has any conflict of interest in this case. Therefore, Appellants reliance on Eskridge is inapposite. Instead, the general rule of individual disqualification is appropriate in this case and Appellant does not explain how the attorney representing the Commonwealth with respect to his third PCRA petition had a conflict of interest.
Second, Appellant points to no authority for the proposition that allegations of a Brady violation warrant disqualification of an entire prosecutorial office. We are likewise unaware of any such authority. Instead, we find persuasive the reasoning of the Supreme Court of New Jersey in New Jersey v. Marshall, 148 N.J. 89, 690 A.2d 1 (1997). In that case, like in the case at bar, the defendant argued that the attorney generals office should have been disqualified from representing the state in collateral proceedings because he alleged that an individual employed by the attorney generals office violated Brady. Id. at 99, 690 A.2d 1. The Supreme Court of New Jersey held that [t]he fact that defendant alleges misconduct in prior proceedings cannot entitle him to disqualify counsel for the State. Id. Thus, we conclude that the PCRA court did not abuse its discretion in declining to disqualify the OAG because of Appellants Brady allegation.
Appellant argues, alternatively, that disqualification of the OAG is required pursuant to the Commonwealth Attorneys Act. Specifically, Appellant argues that there is no record showing that the Beaver County District Attorney asked the OAG to prosecute Appellants PCRA petition;
therefore, the OAG is without authority in this matter. This argument is waived. Under the PCRA, an issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal[,] or in a prior state postconviction proceeding. 42 Pa.C.S.A. § 9544(b). A defendant can challenge the OAGs prosecution of a case on grounds there was a violation of the Commonwealth Attorneys Act in his or her omnibus pretrial motion and on direct appeal. See Commonwealth v. Cosgrove, 545 Pa. 71, 680 A.2d 823, 826 (1996) ; see also Commonwealth v. Farmer, 750 A.2d 925, 928 (Pa.Cmwlth.2000), appeal denied, 568 Pa. 669, 795 A.2d 980 (2000) (considering challenge to the OAGs prosecution on direct appeal); cf. Commonwealth v. Carsia, 341 Pa.Super. 232, 491 A.2d 237, 240 (1985) (en banc), affd, 512 Pa. 509, 517 A.2d 956 (1986) (defendant has a right to challenge OAGs prosecution as it affects the validity of a criminal information). The OAG prosecuted Appellant at trial and represented the Commonwealth in Appellants direct appeal. As Appellant could have raised the issue at trial and on direct appeal but failed to do so, the issue is waived. Thus, the PCRA court did not abuse its discretion in declining to disqualify the OAG on this alternative ground.
In his second issue, Appellant contends that the PCRA court erred by denying his motion for recusal. We review the [PCRA] courts denial of the recusal motion for abuse of discretion. Becker v. M.S. Reilly, Inc., 123 A.3d 776, 778 (Pa.Super.2015) (citation omitted). When
considering a recusal request, the jurist must first make a conscientious determination of his or her ability to assess the case in an impartial manner, free of personal bias or interest in the outcome. The jurist must then consider whether his or her continued involvement in the case creates an appearance of impropriety and/or would tend to undermine public confidence in the judiciary. This is a personal and unreviewable decision that only the jurist can make. In reviewing a denial of a disqualification motion, we recognize that our judges are honorable, fair[,] and competent.
Commonwealth v. Orie Melvin, 103 A.3d 1, 23 (Pa.Super.2014) (citation and internal ellipsis omitted).
We are not persuaded by the merits of Appellants recusal claim. First, Appellant submits that [the PCRA courts] impartiality was demonstrated, in large part, by [its] rulings, which according to Appellant were almost invariably in favor of the prosecution. Adverse rulings alone do not, however, establish the requisite bias warranting recusal, especially where the rulings are legally proper. Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79, 90 (1998). As noted above, this Court has repeatedly held that the PCRA courts rulings were correct, both during trial and during Appellants two previous PCRA petitions. Thus, Appellants argument that the PCRA court was biased because of its previous adverse rulings is without merit.
Appellant contends that the PCRA courts actions during trial also evidenced its bias in this matter. Appellant admits, however, that such actions are not reflected in the trial record[.] Appellants Brief at 31. We must rely solely on the certified record; thus mere averments in a brief are insufficient to prove that the PCRA courts actions during trial were biased against Appellant. Appellant next contends that the PCRA courts opinion that 20 years imprisonment was insufficient evidences the PCRA courts bias. This statement by the PCRA court was made at sentencing and reflected the trial courts careful consideration of the sentencing factors set forth in 42 Pa.C.S.A. § 9721(b). Such consideration is required by statute and case law. See 42 Pa.C.S.A. § 9721(b) ; Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa.Super.2006). This observation does not furnish the basis for a recusal claim.
Appellant also argues that the PCRA court had personal knowledge of evidentiary facts which would likely be called into dispute[.] Appellants Brief at 27. Appellant, however, does not point to any such personal knowledge possessed by the PCRA court. As such, this contention is waived. See Pa.R.A.P. 2119(a) ; Burgoyne v. Pinecrest Cmty. Assn, 924 A.2d 675, 680 (Pa.Super.2007).
The PCRA court considered whether it was able to resolve Appellants claims free of bias or personal interest in the case. After concluding that it was able to impartially resolve Appellants third PCRA petition, the PCRA court determined that remaining on the case would neither present the appearance of impropriety nor undermine faith in the judiciary. Thus, it denied Appellants motion for recusal. For the reasons stated above, we find that the PCRA court did not abuse its discretion in denying Appellants recusal motion.
In his third and fourth issues on appeal, Appellant contends that the PCRA court erred by dismissing his petition based upon its finding that it lacked jurisdiction to reach the merits. Crucial to the determination of any PCRA appeal is the timeliness of the underlying petition. Thus, we must first determine whether the instant PCRA petition was timely filed. Commonwealth v. Smith, 35 A.3d 766, 768 (Pa.Super.2011), appeal denied, 617 Pa. 630, 53 A.3d 757 (2012). The timeliness requirement for PCRA petitions is mandatory and jurisdictional in nature, and the court may not ignore it in order to reach the merits of the petition. Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa.Super.2013) (citation omitted). The question of whether a petition is timely raises a question of law. Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary. Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super.2013) (citations omitted).
A PCRA petition is timely if it is filed within one year of the date the judgment [of sentence] becomes final. 42 Pa.C.S.A. § 9545(b)(1). [A] judgment [of sentence] becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review.
42 Pa.C.S.A. § 9545(b)(3). Appellants judgment of sentence became final on March 3, 2005, 90 days after our Supreme Court denied allowance of appeal. See U.S. Sup.Ct. R. 13 (petition for a writ of certiorari must be filed within 90 days). Appellants present petition, his third, was filed on June 7, 2013. Thus, the petition was patently untimely.
An untimely PCRA petition may be considered if one of the following three exceptions applies:
(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i-iii). If an exception applies, a PCRA petition may be considered if it is filed within 60 days of the date the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2).
Appellant argues that he satisfied the newly-discovered fact exception under section 9545(b)(1)(ii) and, therefore, the PCRA court possessed jurisdiction over the merits of his petition. We first note that the Commonwealths brief and the PCRA courts opinion appear to conflate the newly-discovered fact exception with an after-discovered evidence claim. Compare 42 Pa.C.S.A. § 9545(b)(1)(ii) with 42 Pa.C.S.A. § 9543(a)(2)(vi) ; see Commonwealth v. Brown, 111 A.3d 171, 178 (Pa.Super.2015), appeal denied, --- Pa. ----, 125 A.3d 1197 (2015). It is possible for a petitioner to plead and prove the newly-discovered fact exception, which gives the PCRA court jurisdiction and permits it to consider the petition on the merits, and then ultimately fail on the merits of an after-discovered evidence claim. The newly-discovered fact exception
has two components, which must be alleged and proved. Namely, the petitioner must establish that: 1) the facts upon which the claim was predicated were unknown and 2) could not have been ascertained by the exercise of due diligence. If the petitioner alleges and proves these two components, then the PCRA court has jurisdiction over the claim under this subsection.
Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264, 1272 (2007) (internal quotation marks and citations omitted; emphasis removed).
Appellant contends that two separate affidavits provided newly-discovered facts.
We first address Appellants contention that Browns affidavit, dated August 17, 2013, and received by Appellant on or around September 9, 2013, constituted a newly-discovered fact. That affidavit reads as follows:
Three [ ] days after the murder of Officer James Naim[,] I was at Patrick Mastanico[]s apartment along with [Aliquippa Police Officers] Sonya Carter, Tommy Lemon[,] and David Edgil ... Tommy Lemon started [talking about] how he walked up behind [Officer] Naim and shot him in the back of his head and that when he went down he started kicking so he shot him again. And he was laughing about it. And started talking about how they (David Edgil [and] Tommy Lemon) [did] what they did because [ ] their jobs were on the line because [Officer] Naim was going to go and speak to some people about all the things going on in the Aliquippa Police Department. [T]hey were saying as to how they did it for all of their brother officers. And how they [planned] to put the blame on [Appellant] stating that [Appellant] told them that [there] was a hit list of cops because of a traffic stop they made on [Appellant] ... Also how they could make people say what they wanted them to[ ] say. At that point[,] Tommy Lemon looked over at me[,] got up[,] walked over[,] patted me on my shoulder[,] and said anyone talks about this they are going away for a long time. Because he [realized] I was not a cop.
Appellants Third Amended PCRA Petition, 9/24/13, at Exhibit B.
We conclude that Browns affidavit does not constitute a newly-discovered fact. We find instructive our Supreme Courts decision in Commonwealth v. Yarris, 557 Pa. 12, 731 A.2d 581 (1999). In Yarris, the petitioner sought to invoke the newly-discovered fact exception to the PCRAs timeliness requirement. He relied upon an affidavit by an individual who said that she heard another individual, not the petitioner, confess to the murder for which the petitioner had been convicted. Our Supreme Court held
that the evidence which purportedly reveals that someone other than [the petitioner] committed the murder is hearsay, not within any exception, and so unreliable as to be inadmissible. A claim which rests exclusively upon inadmissible hearsay is not of a type that would implicate the [newly-discovered fact] exception to the timeliness requirement, nor would such a claim, even if timely, entitle [the petitioner] to relief under the PCRA.
Id. at 592.
The alleged confession by Tommy Lemon is hearsay as it is an out-of-court statement offered for the truth of the matter asserted. See Pa.R.Evid. 801(c). Any argument that Tommy Lemons confession was a statement against interest fails because for this exception to apply, the declarant must be unavailable as a witness, see Pa.R.Evid. 804(b), and [A]ppellant offers no proof [Lemon] is not available. Therefore, [Browns affidavit] was inadmissible hearsay and does not fall under [the newly-discovered fact] timeliness exception. Commonwealth v. Abu-Jamal, 596 Pa. 219, 941 A.2d 1263, 1270 (2008).
Furthermore, Appellant failed to plead and prove that he acted with due diligence in obtaining Browns affidavit. To the contrary, Appellants strategy at trial included an effort to present evidence that another Aliquippa police officer killed Officer Naim. See Appellants Brief at 19; Trial Court Opinion, 10/18/02, at 6-8. Thus, according to Appellant, he had reason to believe prior to trial-over 13 years before the filing of the instant PCRA petition-that an Aliquippa police officer killed Officer Naim. He therefore had reason to investigate those officers to see if there was any evidence that would support his theory. Nowhere in Appellants PCRA petition does he aver that he took action to investigate whether such evidence existed. Instead, he merely stated in a conclusory fashion that he could not have discovered the alleged confession until he received Browns affidavit. Thus, even if Browns affidavit were a newly-discovered fact, Appellant failed to file his PCRA petition within 60 days of when he could have discovered the fact with the exercise of due diligence.
We now turn to the affidavit from White, dated April 17, 2013, which Appellant argues provides information which led to the discovery of a newly-discovered fact. That affidavit reads as follows:
To Whom It May Concern:
I would like to inform you that there is a [wiretap] that indicates the person that killed the police officer [in the] Linmar [Housing Plan in] Aliquippa. I was asked about this when I was being interrogated on the [a]rmy [b]ase in Ft. Hood[,] Texas. I know that a [wiretap] do[es] exist that contains this information. The [t]ape has the voice of the killer that was bragging about what he did. I did not know anything about that misfortune at the time so I did not focus on what was being said to me. I just wanted to inform the courts that there is a tape that has the voice of a killer on it. I do not remember the names of the officers that shared bits of information with me about this case. Just want to help the courts find out the truth.
Appellants Third Amended PCRA Petition, 9/24/13, at Exhibit A.
Appellant states that after receiving Whites affidavit, he undertook a thorough investigation which included obtaining the transcripts from Whites criminal trial in 2003 in the Court of Common Pleas of Beaver County. He avers that he read the transcripts of Whites trial and learned that the wiretap conversations that she referenced in her 2013 affidavit contained exculpatory material. At the outset, we note that Whites affidavit itself is not a newly-discovered fact. Our Supreme Court addressed a situation like the one in the case sub judice in Commonwealth v. Castro, 625 Pa. 582, 93 A.3d 818 (2014). In Castro, the petitioner relied upon a newspaper article to establish the newly-discovered fact exception to the PCRAs timeliness requirement. Our Supreme Court held that a newspaper article contain[ed] allegations that suggest such evidence may exist, but allegations in the media, whether true or false, are no more evidence than allegations in any other out-of-court situation. Id. at 825.
In this case, Whites affidavit does not set forth who made the statements on the wiretaps nor does it set forth the name of the officers who played the wiretaps for White. The affidavit states that the wiretaps had the voice of a killer; however, it fails to aver that the voice heard on the wiretap was not Appellants voice. Instead, the affidavit merely references exculpatory wiretaps that may exist. This is similar to Castro in which the newspaper article referenced a possible video tape that could be evidence. See id. at 827. Thus, there is no fact within the affidavit, only information which could lead Appellant to discover facts.
We thus turn to whether Appellant pled and proved the existence of a newly-discovered fact as a result of Whites affidavit. Appellant used Whites affidavit to locate transcripts which referenced wiretaps played at Whites trial. Appellants Third Amended PCRA Petition, 9/24/13, at 9 (Subsequent investigation included obtaining the complete transcripts from [ ] Whites criminal trial.). Appellant did not attach to his third amended PCRA petition any transcript which included the actual conversations from the wiretap interception. Instead, he stated that the wiretap conversations contain extensive dialogue between several individuals (both known and unknown to [Appellant] ), as well as graphic, exculpatory discussion[s] concerning the March 15, 2001 shooting of Officer Naim. Id.
In order to determine whether Appellant pled and proved the existence of a newly-discovered fact, we must first consider whether Appellant properly supplemented his third amended PCRA petition. As part of his third amended petition, Appellant sought permission to further amend and/or supplement his petition if necessary. Appellants Third Amended PCRA Petition, 9/24/13, at 21. As noted above, after the Commonwealth filed its response, Appellant filed a reply to the Commonwealths response. Contained within that reply was a supplement to his third amended PCRA petition. This reply/supplement was filed without leave of court.
Pennsylvania Rule of Criminal Procedure 902 provides, in relevant part, that the petitioner shall attach to the petition any affidavits, records, documents, or other evidence which show the facts stated in support of the grounds for relief, or the petition shall state why they are not attached. Pa.R.Crim.P. 902(D). Furthermore, Pennsylvania Rule of Criminal Procedure 905 provides, in relevant part, that the PCRA court may grant leave to amend or withdraw a petition for post-conviction collateral relief at any time. Amendment shall be freely allowed to achieve substantial justice. Pa.R.Crim.P. 905(A).
This Court has considered this issue before. In Commonwealth v. Boyd, 835 A.2d 812 (Pa.Super.2003), the petitioner filed a supplement without leave of court. The PCRA court did not strike the supplement and considered the supplement when it addressed the petitioners arguments. This Court held that by failing to strike the supplement and addressing it when it ruled on the petition, the PCRA court implicitly permitted amendment under Rule 905(A). Id. at 816. Thus, when a petitioner files supplemental materials to a PCRA petition, and the PCRA court considers such materials, an attempt by the Commonwealth to preclude consideration of such materials fails. Id.; Commonwealth v. Dennis, 597 Pa. 159, 950 A.2d 945, 959 n. 11 (2008).
We conclude that the PCRA court accepted Appellants reply/supplement. The PCRA court did not strike the filing. The PCRA court also considered the merits of Appellants reply/supplement. In its Rule 907 notice, the PCRA court began by stating, Upon review and consideration of [Appellants t]hird pro se PCRA [p]etition, as well as his [a]mendment thereto, the Commonwealths [m]emorandum in response to [Appellants] third amended PCRA [p]etition, the [Appellant]s [r]eply to the Commonwealths [r]esponse ... Rule 907 Notice, 7/15/14, at 1. Thus, like in Boyd, we conclude that the PCRA court implicitly allowed Appellant to supplement his third amended PCRA petition with the January 9, 2014 filing. Therefore, we must consider not only Appellants amended petition filed on September 24, 2013, but also the supplemental materials filed on January 9, 2014.
In those supplemental materials, Appellant attached transcripts from Whites criminal proceedings. The first transcript is from Whites January 11, 2003 suppression hearing. That transcript revealed that this Court authorized three wiretap orders, although the details of those orders are not clear from the January 11, 2003 transcript. The second transcript is from Whites suppression hearing on February 24, 2003. In that transcript, the Commonwealths attorney stated There were conversations over that wiretap talking about the murder of Officer Naim[.] Appellants Reply to Commonwealths Response to Third Amended PCRA Petition, 1/9/14, at Exhibit B.3. The third transcript is from Whites jury trial held on March 6, 2003. That transcript includes an index listing 13 tapes of wiretap communications entered into evidence at Whites trial, along with the associated transcripts. Id. at Exhibit C.3. That transcript also contains summaries of two conversations intercepted by the wiretap which discuss Officer Naims death. Id. at C.5.
Contrary to the Commonwealths argument, the recordings may be admissible as statements against interest (or as non-hearsay). A statement against interest is a statement
a reasonable person in the declarants position would have made only if the person believed it to be true because, when made, it was so contrary to the declarants proprietary or pecuniary interest or had so great a tendency to invalidate the declarants claim against someone else or to expose the declarant to civil or criminal liability; and [ ] is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
Pa.R.Evid. 804(b)(3). Such a statement is admissible if the declarant is unavailable. See Pa.R.Evid. 804(a).
The Commonwealth contends that Appellant failed to plead and prove that the declarant was unavailable. In order for a declarant to be unavailable for the purposes of Rule 804, Appellant must plead and prove that the declarant is absent from the trial or hearing and [Appellant] has not been able, by process or other reasonable means, to procure ... the declarants attendance or testimony[.] Pa.R.Evid. 804(a)(5)(B). Appellant pled that he did not know the identity of individuals who made statements on the wiretaps and, ipso facto, Appellant was unable to procure the declarants testimony through reasonable means.
We find this situation distinguishable from Yarris and Abu-Jamal, discussed supra, and Appellants claim relating to Browns affidavit. In Yarris and Abu-Jamal, along with Appellants claim relating to Browns affidavit, the only proof of the alleged confessions was an affidavit by a third-party. Compare that with Appellants argument related to Whites affidavit, which contained information that could lead to a recording of the communications regarding Officer Naims murder. A recording from a wiretap may be more trustworthy than an oral statement overheard by a third-party. Without more context of the wiretap interceptions, it is impossible to determine if the statements contained in the wiretap were reliable under Rule 804(b)(2). The conversations may have details which would indicate the statements regarding Officer Naims murder are reliable. There is some support for this theory-and that comes from a statement made by the Commonwealths attorney. The Commonwealths attorney noted that they arrested White and her co-conspirators after the wiretap conversations regarding Officer Naims murder because things were getting too dangerous. See Appellants Reply to Commonwealths Response to Third Amended PCRA Petition, 1/9/14, at Exhibit B.3. Common sense dictates that the Commonwealth wouldnt take such action unless it believed that the conversations were reliable. Thus, we conclude that there is a genuine issue of material fact as to whether the wiretaps would be admissible evidence, and therefore could be used to satisfy the newly-discovered fact exception to the PCRAs timeliness requirement.
The Commonwealth contends that the wiretap tapes and transcripts are merely a new conduit to support Appellants claim that another individual killed Officer Naim. Cf. Commonwealth v. Johnston, 42 A.3d 1120, 1128 (Pa.Super.2012) (a new conduit is not a newly-discovered fact for the purposes of the PCRAs timeliness exception). This argument fails, however, for two reasons. First, the wiretaps are not a new conduit because they are contemporaneous recordings, made prior to Appellants trial. Thus, they are different than a new witness-appearing years after a judgment of sentence becomes final-providing an affidavit or testimony. Second, Appellant is not using the wiretaps as a new conduit to argue that another individual killed Officer Naim. Instead, Appellant is using the existence of the wiretap tapes and transcripts to support his claim that the Commonwealth violated Brady by withholding this evidence. Thus, the wiretap tapes and transcripts are not a new conduit. The averments in Appellants third amended PCRA petition, combined with the transcripts attached to his January 9 supplement, are sufficient to raise a genuine issue of material fact as to whether he pled and proved the existence of a newly-discovered fact.
The Commonwealth next argues, in a conclusory fashion, that Appellant failed to plead and prove that he presented his claim within 60 days of when he could have discovered the existence of the wiretap tapes and transcripts with the exercise of due diligence. It is undisputed that Appellant filed his third PCRA petition within 60 days of receiving Whites affidavit. Thus, the question is whether Appellant acted with due diligence in seeking out the tapes and transcripts. This Court has held that due diligence requires neither perfect vigilance nor punctilious care, but rather it requires reasonable efforts by a petitioner, based on the particular circumstances, to uncover facts that may support a claim for collateral relief. Commonwealth v. Burton, 121 A.3d 1063, 1071 (Pa.Super.2015) (en banc ) (citations omitted).
After careful examination of applicable case law, we conclude that there is a genuine issue of material fact as to whether Appellant pled and proved that he acted with due diligence. In this case, it is unclear whether the wiretap tapes and transcripts are contained within Whites public case file. In Burton, however, this Court held that the presumption of access to information available in the public domain does not apply where the untimely PCRA petitioner is pro se. Id. at 1073. Thus, whether the wiretap tapes and transcripts were located in Whites public court record is not dispositive as to whether Appellant acted with due diligence.
We find instructive Commonwealth v. Davis, 86 A.3d 883, 888 (Pa.Super.2014). In Davis, this Court concluded that the petitioner was not required to search for transcripts, in unrelated case files, to exercise due diligence when he did not know about the witness deal with the Commonwealth. Davis, 86 A.3d at 890-891. In this case, Whites case was unrelated to Appellants case and there is no evidence that Appellant should have been searching Whites case file for evidence related to his case.
We also find instructive Commonwealth v. Medina, 92 A.3d 1210 (Pa.Super.2014) (en banc), appeal granted, 629 Pa. 318, 105 A.3d 658 (2014). In Medina, this Court held that a witness recantation was a newly-discovered fact and that Medina acted with due diligence in learning about the recantation. In so holding, the en banc Court relied on the fact that the petitioner was not at the scene of the crime and, thus, had no way of knowing whether the witness trial testimony was truthful. Id. at 1217, citing Commonwealth v. Loner, 836 A.2d 125, 137 n. 5 (Pa.Super.2003) (en banc ). Furthermore, Medina was unaware of the police coercion that led to the witness testimony. We find this analogous to the case at bar in which, according to the evidence of record and Appellants averments, Appellant was not at the scene of the conversations recorded over the wiretap. Furthermore, there is no evidence of record that Appellant, or any of his representatives, were present during Whites questioning in Texas or during Whites criminal trial in Pennsylvania. Accordingly, we conclude that there is a genuine issue of material fact as to whether Appellant pled and proved that he acted with due diligence in seeking out and finding the wiretap tapes and transcripts. Appellant is entitled to a hearing on this claim. See Pa.R.Crim.P. 907(1) and cmt. (authorizing summary dismissal only where, inter alia, there is no genuine issue as to any fact relating to a claim set forth in the petition).
The PCRA court, in dismissing Appellants petition, found that the statements referred to by White in her affidavit, and referenced by Appellant in his third amended PCRA petition, were made by Appellants co-defendant to police. Rule 907 Notice, 7/15/15, at 3. There is simply no evidence in the record to support this finding by the PCRA court. Evidence may exist which supports the PCRA courts finding; however, that evidence is not of record in this case. The Commonwealth failed to submit such evidence as part of its response to Appellants third amended PCRA petition and the PCRA court did not hold a hearing to admit said evidence. Thus, the PCRA courts finding that the statement referenced in Whites affidavit was Appellants co-defendants statement to police is unsupported by the record and cannot serve as the basis for dismissal of Appellants third amended PCRA petition.
To be clear, we do not hold that Appellant has satisfied his burden of pleading and proving the applicability of the newly-discovered fact exception to the PCRAs timeliness requirement. Instead, we hold that Appellants PCRA petition, along with the Commonwealths response, and Appellants reply, presents a genuine issue of material fact as to whether Appellant acted with due diligence in discovering the wiretap tapes and transcripts. If Appellant did act with due diligence, and the PCRA court concludes that the statements on the wiretap are admissible evidence, then Appellant has pled and proved the applicability of the newly-discovered fact exception to the PCRAs timeliness requirement. If Appellant has in fact pled and proved the applicability of the newly-discovered fact exception, the PCRA court possesses jurisdiction to consider the merits of Appellants claims that relate to these newly-discovered facts.
In his final issue, Appellant argues that the PCRA court erred by failing to rule on his request for limited discovery. We conclude that this issue is not ripe for disposition. If the PCRA court has jurisdiction over the merits of Appellants petition, limited discovery may be appropriate. On the other hand, if the PCRA court lacks jurisdiction to consider the merits of Appellants petition, limited discovery would be unnecessary. We leave it to the PCRA court to determine if limited discovery is necessary after determining if it possesses jurisdiction over the merits of Appellants third amended PCRA petition.
In sum, we conclude that the PCRA court did not abuse its discretion in denying Appellants motion to disqualify the OAG and his motion for recusal. Appellants petition was patently untimely; however, there is a genuine issue of material fact as to whether Appellant pled and proved the applicability of the PCRAs newly-discovered fact exception. We deem Appellants last issue not ripe for disposition. Accordingly, we affirm the PCRA courts orders denying Appellants motions for recusal and disqualification. We affirm the PCRA courts order that it lacks jurisdiction over any claim raised in Appellants third amended PCRA petition relating to Browns affidavit. We vacate the trial courts dismissal of the portions of Appellants third amended PCRA petition that relate to the wiretap tapes and transcripts, and remand for appointment of counsel and an evidentiary hearing to determine if Appellant has pled and proved the applicability of the newly-discovered fact exception.
Order affirmed in part and vacated in part. Case remanded. Jurisdiction relinquished.
Judge BOWES joins this Opinion.
Judge STRASSBURGER files a Concurring Opinion.
CONCURRING OPINION BY STRASSBURGER, J.:
I join the Majority Opinion, which, inter alia, concludes that Anthony Browns affidavit does not enable Appellant to satisfy the newly-discovered-fact exception of the PCRA. In reaching its conclusion, the Majority explains that Appellant failed to plead and prove that he acted with due diligence in obtaining Browns affidavit. Majority Opinion at 502. I agree.
However, the Majority also observes that [a] claim which rests exclusively upon inadmissible hearsay is not of a type that would implicate the [newly-discovered fact] exception to the timeliness requirement, nor would such a claim, even if timely, entitle [the petitioner] to relief under the PCRA. Id. (quoting Commonwealth v. Yarris, 557 Pa. 12, 731 A.2d 581, 592 (1999) ). The Majority goes on to reason that
[t]he alleged confession by Tommy Lemon is hearsay as it is an out-of-court statement offered for the truth of the matter asserted. See Pa.R.Evid. 801(c). Any argument that Tommy Lemons confession was a statement against interest fails because for this exception to apply, the declarant must be unavailable as a witness, see Pa.R.Evid. 804(b), and [A]ppellant offers no proof [Lemon] is not available. Therefore, [Browns affidavit] was inadmissible hearsay and does not fall under [the newly-discovered fact] timeliness exception. Commonwealth v. Abu-Jamal, 596 Pa. 219, 941 A.2d 1263, 1270 (2008).
Id.
I write separately to note that, but for my conclusion above regarding Appellants failure to offer proof of his due diligence, I would afford Appellant the opportunity to offer proof on remand that Tommy Lemon is unavailable as a witness under Pa.R.E. 804(a) (e.g., through the declarants death, refusal to testify, etc.).
18 Pa.C.S.A. § 2502(c).
On January 22, 2015, the PCRA court ordered Appellant to file a concise statement of errors complained of on appeal (concise statement). See Pa.R.A.P.1925(b). On February 13, 2015, Appellant filed his concise statement. On April 20, 2015, the PCRA court issued its Rule 1925(a) opinion. All issues raised on appeal were included in Appellants concise statement.
After the notice of appeal was filed, Appellant filed his brief eight days late. The Commonwealth thereafter sought dismissal of this appeal because of the untimely filing. The application to dismiss was referred to a motions panel of this Court, which denied the application on October 23, 2015.
We have re-numbered the issues for ease of disposition.
The Commonwealth contends that the order denying Appellants motion for disqualification was a final order and Appellants failure to file his appeal within 30 days of that order precludes jurisdiction over this issue. The order denying Appellants motion, however, was not a final order under Pennsylvania Rule of Appellate Procedure 341 as it did not dispose of all of Appellants claims. Furthermore, even if it were a collateral order, Appellant did not waive the issue by failing to file a notice of appeal within 30 days of entry of the order. This Court has held that although collateral orders may be appealed within 30 days of their entry, the substance of the collateral order is not forever precluded when an appeal is not taken within this period. Jones v. Faust, 852 A.2d 1201, 1203 (Pa.Super.2004), citing In re Estate of Petro, 694 A.2d 627, 631 (Pa.Super.1997). Thus, we have jurisdiction to reach the merits of this issue.
The Commonwealth contends that the order denying Appellants motion for recusal was a final order and Appellants failure to file his notice of appeal within 30 days of that order deprives us of jurisdiction over this issue. This Court has held, however, that a defendants motion seeking recusal is not a final order (or a collateral order). See Commonwealth v. Orie, 33 A.3d 17, 19-20 (Pa.Super.2011) ; Darlington et al, Pennsylvania Appellate Practice § 313:107.5 (2015 ed.); see also Commonwealth v. Druce, 577 Pa. 581, 848 A.2d 104, 107 (2004) (deciding recusal issue in context of direct appeal taken from judgment of sentence entered more than 30 days after denial of recusal motion). Thus, the appeal from the order denying Appellants recusal motion properly lies from the order dismissing his PCRA petition.
Although not phrased as such, Appellants fourth issue challenges the PCRA courts findings with respect to the timeliness of his third PCRA petition. As we exercise de novo review over the PCRA courts timeliness determination, Appellants fourth issue is addressed within the context of whether his third PCRA petition was timely.
On the other hand:
To obtain relief based on after-discovered evidence, [a petitioner] must demonstrate that the evidence: (1) could not have been obtained prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely to impeach the credibility of a witness; and (4) would likely result in a different verdict if a new trial were granted.
Commonwealth v. Pagan, 597 Pa. 69, 950 A.2d 270, 292 (2008) (citations omitted).
On April 17, 2013, White signed one of the two affidavits at issue in this case. Within 60 days of receiving Whites affidavit, Appellant located the transcripts from Whites criminal trial and filed this, his third, PCRA petition. Thereafter, Appellant received Browns affidavit. Within 60 days of receiving Browns affidavit, Appellant filed his third amended PCRA petition. The Commonwealth then filed its response to Appellants third amended PCRA petition. Appellant responded by filing a reply to the Commonwealths response. That reply was filed without leave of court.
Although titled an affidavit, Browns document is technically an unsworn declaration. See 18 Pa.C.S.A. § 4904. For simplicity, we refer to the document as an affidavit.
Appellant averred, in a supplement filed without leave of court, that at Whites suppression hearing, the Commonwealths attorney stated that the wiretap conversations included discussions regarding Officer Naims murder. The Commonwealth counters that this averment was insufficient to plead and prove the existence of the wiretaps. This argument is disingenuous. The Commonwealth is fully aware now, as it was at the time of Appellants trial, that the wiretap exists, that there were tapes of the wiretap and that there were transcripts of the wiretap tapes. Senior Deputy Attorney General Linda H. Barr represented the Commonwealth at Whites trial as well as at Appellants trial. See, e.g., N.T., 4/29/02, at 2 (listing Linda H. Barr as appearing on behalf of the Commonwealth); Appellants Reply to Commonwealths Response to Third Amended PCRA Petition, 1/9/14, at Exhibit C.1 (copy of notes of testimony from Whites trial listing Linda H. Barr as appearing on behalf of the Commonwealth).
Our Supreme Court has condemned the unauthorized filing of supplements and amendments to PCRA petitions, and held that claims raised in such supplements are subject to waiver. Commonwealth v. Reid, 627 Pa. 151, 99 A.3d 470, 484 (2014) (collecting cases). In Reid, our Supreme Court found issues raised in supplements filed without leave of court to be waived. Id. The finding of waiver in Reid, however, is consistent with Boyd and Dennis. Specifically, in Reid there is no evidence the PCRA court addressed the supplemental claims until four years after the notice of appeal was filed. Reid, 99 A.3d at 483-484. On the other hand, in Boyd, Dennis, and the case sub judice the PCRA court considered the supplemental materials prior to dismissing the petition. See Dennis, 950 A.2d at 959 n. 11 ; Boyd, 835 A.2d at 816 ; Rule 907 Notice, 7/15/14, at 1.
Our Supreme Courts decision in Commonwealth v. Mason, --- Pa. ----, 130 A.3d 601 (2015), is also distinguishable from the case at bar. In Mason, our Supreme Court concluded that the PCRA court did not intend to allow supplementation, rather counsels misrepresentations to the PCRA court resulted in such consideration. Id. at 627. Thus, it found that the claims raised in the petitioners supplement were not implicitly accepted by the PCRA court. See id.
Furthermore, in both Reid and Mason the issue was the addition of supplemental claims. In this case, there were no claims added by Appellants supplement. Instead, Appellant only sought to supplement the record for claims that had been properly pled in the amended PCRA petition.
As discussed infra, the situation surrounding Whites affidavit also differs from the situation regarding Browns affidavit because there is a genuine issue of material fact related to whether Appellant acted with due diligence in discovering the existence of the wiretap transcripts while, for the reasons stated supra, there is no such dispute as it relates to Browns affidavit.
Even if the PCRA court possesses jurisdiction over the claims arising from Whites affidavit and the resulting wiretap tapes and transcripts, for the reasons set forth above, the PCRA court lacks jurisdiction over any claim arising from Browns affidavit.
See Pa.R.Crim.P. 904(D) (emphasis added) (On a second or subsequent petition, when an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, and an evidentiary hearing is required ..., the judge shall appoint counsel to represent the defendant.).