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Brewer v. Comm. of PA. Parole

October 5, 2009

GERALD E. BREWER, SR., PETITIONER,
v.
COMM. OF PA. PAROLE, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Mitchell, M.J.

MEMORANDUM and ORDER

Gerald E. Brewer, Sr., has presented a petition for a writ of habeas corpus. For the reasons set forth below, the petition will be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.

Gerald E. Brewer, Sr., who is not presently incarcerated has presented a petition for a writ of habeas corpus seeking to challenge his conviction, by a jury, of theft by unlawful taking and retaliation against a victim, witness or party at No. CC200203571 in the Court of Common Pleas of Allegheny County, Pennsylvania. On August 25, 2003, he was sentenced to an aggregate two to seven year period of imprisonment.*fn1

An appeal was taken to the Superior Court in which the issues presented for review were:

I. The evidence is insufficient to prove that the defendant had violated 18 Pa.C.S.A. § 4953 retaliation against witness, victim, or party.

II. The court erred in admitting testimony that various procedures relating to the practices and procedures for seized money in place both before and during defendant's term as chief of police were "unreasonable". Since those opinions would not be helpful and would confuse, mislead or prejudice the jury.*fn2 On June 2, 2005, the judgment of sentence was affirmed.*fn3

A petition for allowance of appeal to the Pennsylvania Supreme Court was filed in which the sole issue presented was:

Did the Superior Court err in affirming petitioner's conviction for violation of 18 Pa.C.S.A. § 4593 retaliation against a witness as an "accomplice" ... in contravention of this Court's holdings in [citing Pennsylvania cases] requiring proof of the accomplice's intention and action in aiding an uncharged but otherwise complicit principal in the perpetration of an underlying crime?*fn4 Leave to appeal was denied on November 10, 2005.*fn5

Petitioner then filed a post-conviction motion which was treated as a PCRA petition.*fn6 Counsel was appointed to represent the petitioner, an amended PCRA petition was filed, and following an evidentiary hearing, the petition was dismissed on September 21, 2007.*fn7 An appeal was taken to the Superior Court in which the issues presented were:

1. Did the trial court err as a matter of law in failing to grant the petitioner's request for a new trial when the petitioner established that he had discovered after his conviction that the District Attorney's office had failed to turn over exculpatory evidence at his trial in violation of his due process rights under Brady v. Maryland, 373 U.S. 83 (1963)?

2. In the alternative, did the trial court err when it failed to award the petitioner a new trial based upon his claim of after-discovered evidence, the memorandum withheld by the Assistant District Attorney?*fn8 On July 9, 2008, the denial of post-conviction relief was affirmed.*fn9

A petition for allowance of appeal to the Pennsylvania Supreme Court was filed in which those same issues were raised*fn10 and on November 25, 2008, leave to appeal was denied.*fn11

The instant petition was executed on August 11, 2009, and in it, Brewer contends he is entitled to relief on the following grounds:

1. Trial court erred in failing to grant a new trial when after discovered evidence revealed that the prosecution had failed to disclose exculpatory evidence in violation of Brady v. Maryland which would have demonstrated that no funds were actually missing.

2. Improper introduction at trial of the petitioner's letter of resignation which was a privileged internal document ...


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