A.D. Brown v. Greene County Office of DA

A
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alton D. Brown,                                 :
                       Appellant                :
                                                :
               v.                               :
                                                :
Greene County Office of                         :   No. 1177 C.D. 2019
District Attorney                               :   Submitted: April 9, 2021


BEFORE:        HONORABLE P. KEVIN BROBSON, President Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE J. ANDREW CROMPTON, Judge

OPINION BY
JUDGE COVEY                                                  FILED: May 17, 2021

               Alton D. Brown (Brown) appeals, pro se, from the Greene County
Common Pleas Court’s (trial court) July 16, 2019 order denying Brown’s appeal
from the Appeals Officer (Appeals Officer) for the Greene County District
Attorney’s Office’s (District Attorney’s Office) decision, which denied Brown’s
Right-to-Know Law (RTKL)1 Request (Request). There are three issues before this
Court: (1) whether Brown timely appealed from the trial court’s order; (2) whether
the trial court erred by determining that the private criminal complaints were exempt
from disclosure under Section 708(b)(16) of the RTKL, 65 P.S. § 67.708(b)(16)
(criminal investigations); and (3) whether the trial court abused its discretion by
determining that the District Attorney’s Office did not possess the requested records.
After review, this Court quashes Brown’s appeal for lack of jurisdiction.




      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
                                   Background
             On May 1, 2017, Brown requested from the District Attorney’s Office:

             1. All [p]rivate [c]riminal [c]omplaints submitted to the
             [Greene County] prosecutor [(Prosecutor)] during the
             years of 2017-2016 [sic] (excluding any such complaints
             submitted by [Brown]).
             2. The [Greene] County [j]ob [d]escription for the . . .
             Prosecutor.
             3. Any document that governs investigations and
             disposition of private criminal complaints issued by the
             . . . Prosecutor.

Pennsylvania Office of Open Records (OOR) June 26, 2017 Final Determination
(Final Determination) at 2. On May 11, 2017, the District Attorney’s Office denied
the Request stating that Request item one, the private criminal complaints, were
related to criminal investigations, and Request items two and three did not exist, or
are not maintained by the District Attorney’s Office. On May 25, 2017, Brown filed
an appeal with the OOR.
             On June 16, 2017, the OOR reopened the record, and allowed for
additional information to be submitted, although none was provided by either party.
On June 26, 2017, the OOR issued its Final Determination, ruling that the District
Attorney’s Office did not offer any evidentiary basis to support its claim that no
records responsive to Request items two and three existed in its possession, custody
or control, nor did the District Attorney’s Office cite any exemptions for denying
access to such responsive records. The OOR further determined that, with regard to
Request item one, the OOR lacked jurisdiction to assess whether the requested
complaints are exempt as records related to a criminal investigation under Section
708(b)(16) of the RTKL. Therefore, the appeal was transferred to the Appeals
Officer.


                                         2
              On July 25, 2017, the District Attorney’s Office submitted an Affidavit
to the Appeals Officer from the Greene County Detective and the District Attorney
to support its position. On August 1, 2017, Brown provided a letter and several
exhibits to the Appeals Officer to support his position. On August 10, 2017, the
District Attorney’s Office submitted one additional District Attorney Affidavit. On
August 21, 2017, the Appeals Officer denied Brown’s appeal without a hearing,
determining that criminal investigative materials, such as the private criminal
complaints submitted to the District Attorney for review, are exempt under Section
708(b)(16) of the RTKL.
              On September 22, 2017, Brown appealed to the trial court. The trial
court held a hearing on December 4, 2017. On December 15, 2017, the trial court
denied Brown’s Request. Brown filed a Motion for Reconsideration. On December
18, 2017, the trial court denied Brown’s Motion for Reconsideration. On January
29, 2018, Brown appealed from both orders to this Court. By June 6, 2018 Order,
this Court remanded the case to the trial court to conduct a rehearing, create a
transcript, and issue a new decision within 60 days of entry of the Order.


                                            Facts
              The trial court held a hearing on July 12, 2018. On July 16, 2019, the
trial court denied Brown’s Request.2 On August 5, 2019, Brown filed a Motion for
Reconsideration, which the trial court denied on August 7, 2019. On August 20,
2019, Brown appealed from the July 16, 2019 order to this Court. By October 17,
2019 Order, this Court directed the parties to address whether the appeal is untimely



       2
         The one-year delay in the trial court’s ruling was caused by the delay in receiving the
hearing transcript.


                                               3
in their principal briefs on the merits or in an appropriate motion. Neither of the
parties complied with the Order.


                                     Timeliness of Appeal
               Initially, “[t]he timeliness of an appeal and compliance with the
statutory provisions granting the right to appeal implicate an appellate court’s
jurisdiction and its competency to act.” Commonwealth v. Williams, 

106 A.3d 583

,
(Pa. 2014). “Thus, an appellant’s failure to appeal timely an order generally divests
the appellate court of its jurisdiction to hear the appeal.”

Id.
Pennsylvania Rule of

Appellate Procedure (Rule) 903(a) provides:
“Except as otherwise prescribed by this [R]ule, the notice of appeal required by Rule
902 (manner of taking appeal) shall be filed within 30 days after the entry of the
order from which the appeal is taken.”3 Pa.R.A.P. 903(a). “Under the prisoner
mailbox rule, a prisoner’s pro se appeal is deemed filed at the time it is given to
prison officials or put in the prison mailbox.” Kittrell v. Watson, 

88 A.3d 1091

, 1096
(Pa. Cmwlth. 2014). Rule 121(f) specifies:

               Date of filing for incarcerated persons. -- A pro se filing
               submitted by a person incarcerated in a correctional
               facility is deemed filed as of the date of the prison
               postmark or the date the filing was delivered to the prison
               authorities for purposes of mailing as documented by a
               properly executed prisoner cash slip or other
               reasonably verifiable evidence.

Pa.R.A.P. 121(f) (bold text emphasis added). “In order to benefit from the [prisoner
mailbox] rule, [a prisoner] bears the burden of proving that he timely deposited
his . . . appeal in the prison mailbox.” 

Kittrell, 88 A.3d at 1097

.


       3
         “A party’s filing of a motion for reconsideration . . . does not stay the appeal period; the
appeal period is only tolled where the trial court ‘expressly grants’ the request for reconsideration.”
Oak Tree Condo. Ass’n v. Greene, 

133 A.3d 113

, 116 (Pa. Cmwlth. 2016).
                                                  4
               Here, the trial court’s order was docketed on July 16, 2019.4 Thus,
Brown had until August 15, 2019, to file his appeal. According to the notice of
appeal’s time stamp and the trial court’s docket entries, the Greene County
prothonotary received Brown’s appeal on August 20, 2019.5 See Original Record,
Vol. I at 12 (docket entries), 35 (notice of appeal).6 Although ordered by this Court
to address the timeliness of his appeal, Brown merely stated in his brief: “This appeal
was timely filed on 8/13/[20]19.” Brown Br. at 2. “Given the [] lack of substantive
evidence regarding the date upon which [Brown] sent his [notice of appeal] to
[Greene] County, [this Court] could not accept [Brown’s] argument without
engaging in speculation or conjecture. For us to do so would improperly relieve him
of his burden to prove timeliness.”7 Christopher v. Pa. Parole Bd. (Pa. Cmwlth. No.
1880 C.D. 2019, filed March 17, 2021), slip op. at 8.8 Consequently, Brown has not
met his “burden of proving that he timely deposited his . . . appeal in the prison
mailbox.” 

Kittrell, 88 A.3d at 1097

. Accordingly, because Brown’s notice of appeal
had to be filed by August 15, 2019, and the record evidence shows it was not filed
until August 20, 2019, five days thereafter, this Court is without jurisdiction to hear
the appeal. Williams.

       4
           The docket entry indicates the order was sent to Brown that same date.
       5
           The original record does not contain the mailing envelope.
         6
           Because the pages of the trial court’s original record are not numbered, the page numbers
referenced herein reflect electronic pagination.
         7
           Cf. Commonwealth v. Patterson, 

931 A.2d 710

, 714 (Pa. Super. 2007) (Although the
record lacked substantive evidence regarding the date the appellant mailed his notice of appeal,
the Pennsylvania Superior Court held that because “September 23rd and 24th were weekend
days[,] . . . in order for the trial court to have received the notice of appeal by September 25th, it
is likely that [the a]ppellant mailed his notice of appeal on or before September 22nd [(i.e., the
date it was due].”). However, in the instant matter, because August 15, 2019, was a Thursday, and
August 20, 2019, was the following Tuesday, no such inference can be drawn.
         8
           Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code §
69.414(a), an unreported panel decision of this Court issued after January 15, 2008, may be cited
for its persuasive value, but not as binding precedent. Christopher is cited herein for its persuasive
value.
                                                  5
                                     Conclusion
                For all of the above reasons, Brown’s appeal is quashed for lack of
jurisdiction.


                                        _________________________________
                                        ANNE E. COVEY, Judge


Judge Fizzano Cannon did not participate in the decision in this case.




                                          6
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Alton D. Brown,                       :
                    Appellant         :
                                      :
             v.                       :
                                      :
Greene County Office of               :   No. 1177 C.D. 2019
District Attorney                     :


                                  ORDER

             AND NOW, this 17th day of May, 2021, Alton D. Brown’s appeal from
the Greene County Common Pleas Court’s July 16, 2019 order is QUASHED for
lack of jurisdiction.



                                    _________________________________
                                    ANNE E. COVEY, Judge

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