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Commonwealth of Pennsylvania v. Curtis Brandon

August 14, 2012

COMMONWEALTH OF PENNSYLVANIA APPELLEE
v.
CURTIS BRANDON APPELLANT



Appeal from the PCRA Order September 12, 2011 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0011441-1988 CP-02-CR-0011935-1988

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

BEFORE: DONOHUE, J., LAZARUS, J., and STRASSBURGER, J.*fn1

OPINION BY LAZARUS, J.

Curtis Brandon appeals, pro se, from the order of the Court of Common Pleas of Allegheny County dismissing his petition under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541, et seq. Upon review, we affirm.

Brandon was charged with criminal homicide*fn2 and criminal conspiracy*fn3 arising out of an incident that occurred on August 20, 1988, in which

Brandon struck the victim on the head with a baseball bat several times. Prior to that, the victim had also been shot in the back by another individual and ultimately died of his injuries. A jury found Brandon guilty of third- degree murder, and he was sentenced to life imprisonment. Brandon appealed and we affirmed his judgment of sentence by memorandum decision filed on August 9, 1991. Commonwealth v. Brandon, 599 A.2d 698 (Pa. Super. 1991) (unpublished memorandum). The Supreme Court of Pennsylvania denied his petition for allowance of appeal on April 14, 1992.

Brandon filed the instant PCRA petition, his fourth, on February 3, 2011. On June 15, 2011, the PCRA court issued its notice of intention to dismiss pursuant to Pa.R.Crim.P. 907. Brandon filed a response on July 11, 2011. On September 12, 2011, the PCRA court dismissed Brandon's petition as untimely. Brandon filed his notice of appeal on October 5, 2011, and a statement of matters complained of on appeal on October 20, 2011.

Brandon raises the following issues for our review:

1. WHETHER THE PCRA COURT ERRED BY DISMISSING THE PCRA PETITION WHERE IT WAS TIMELY FILED BY THE EXCEPTIONS TO ONE-YEAR PURSUANT TO [42 Pa.C.S.A. § 9545(b)(1)(ii-iii)]?

2. WHETHER THE PCRA COURT ERRONEOUSLY CONDUCTED AN [sic] MERIT ANALYSIS OF THE UNDERLYING CLAIM TO DENY THE PETITION? *fn4

3. WHETHER COMMONWEALTH'S PROSECUTOR'S FAILURE TO ESTABLISH THE UNAVAILABILITY OF DOCTOR AL-SHAKIR DURING ITS CASE-IN-CHIEF VIOLATED [Brandon's] FEDERAL SIXTH AMENDMENT CONFRONTATION CLAUSE BY HAVING DOCTOR JASNOSZ TESTIFY TO DOCTOR AL-SHAKIR'S AUTOPSY REPORT OF THE VICTIM'S CAUSE OF DEATH?

Brief of Appellant, at 3.

In short, Brandon asserts that the PCRA court erred in dismissing his petition as untimely because his claim fell under the newly-discovered facts and newly-recognized constitutional right exceptions to the time bar. 42 Pa.C.S.A. § 9545 (b)(1)(ii-iii). He further alleges that his Sixth Amendment right to confront his accuser was violated when the deputy pathologist, who performed the autopsy of the victim, rather than the chief pathologist, who signed the report, testified against him at trial.*fn5

This Court's standard of review regarding an order dismissing a PCRA petition is whether the determination of the PCRA court is supported by evidence of record and is free of legal error. Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa. Super. 2010) (citations omitted). "In evaluating a PCRA court's decision, our scope of review is limited to the findings of the PCRA court and the ...


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