J-A26030-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BRIAN W MCKANT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3087 EDA 2022

Appeal from the PCRA Order Entered December 1, 2022

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-1300294-2006

BEFORE: DUBOW, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED APRIL 2, 2024

Brian W. McKant appeals the order entered denying his Post Conviction 

Relief Act (“PCRA”) petition. 42 Pa.C.S.A. §§ 9541-9546. He claims the PCRA 

court erred in rejecting his claims of after discovered evidence. We affirm. 

In August 2007, a jury convicted McKant of first-degree murder, 

possession of an instrument of crime, and firearms not to be carried without 

a license.1 We previously summarized the facts of McKant’s case. 

On January 9, 2006, [McKant] and two friends, Jerrell Smith 

and Bryheem Baldwin, were playing a dice game in front of 

1117 West Tioga Street, Philadelphia, Pennsylvania. Lamont 

Sparrow approached [McKant] and his friends. Hostile words 

were exchanged between the men.1 Sparrow then walked 

away from the other men towards a basketball hoop at the 

end of West Tioga Street.

Baldwin watched [McKant] walk up behind Sparrow and pull 

a handgun from his right jacket pocket. [McKant] then shot 

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1 18 Pa.C.S.A. §§ 2502(a), 907(a), and 6106(a)(1), respectively. 
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Sparrow twice in the back of the head. [McKant]

immediately fled the scene. Smith and Baldwin also left the 

scene and ran towards their residences.

When police arrived at the scene, Sparrow was lying face 

down in the street covered with a white sheet. Witnesses 

told police that they heard two “pops” coming from the 

direction of the basketball hoop and saw [McKant], Smith, 

and Baldwin run in different directions.

Several days after the shooting, Smith and Baldwin both 

were questioned separately regarding the shooting. Both 

men stated that [McKant] shot Sparrow. The two men also 

appeared at the district attorney’s office and provided 

signed statements, again implicating [McKant] as the 

shooter. On April 4, 2006, after eluding police for several 

months, [McKant] was arrested and charged with shooting 

Sparrow.

Prior to trial, Smith and Baldwin both decided not to testify 

against [McKant] and failed to appear at a preliminary 

hearing. The trial court ordered the two men to appear. At 

a rescheduled preliminary hearing, Baldwin appeared and 

recanted the statement he made to police. He testified that 

he did not see who killed Sparrow but that he heard the 

shots and ran from the scene.

1 The animosity between the men stem[med] from a prior 

incident, in which [McKant] was allegedly shot by Sparrow’s 

cousin, Robert Nicholas. On February 27, 2005, [McKant] 

was shot in the neck. [McKant] gave a statement to police 

where he identified Nicholas as the shooter. However, the 

case against Nicholas was dismissed when [McKant] 

recanted his statement and declined to identify Nicholas as 

the shooter. [McKant] told Smith that Sparrow was going to 

kill [McKant] for implicating Nicholas in the crime.

Commonwealth v. McKant, No. 95 EDA 2013, 2014 WL 10986730, at *1

(Pa.Super. filed Feb. 21, 2014) (unpublished mem.) (quoting 

Commonwealth v. McKant, No. 2813 EDA 2007, 972 A.2d 557, at *1–*3.

(Pa.Super. filed March 6, 2009) (unpublished mem.), appeal denied, 

Commonwealth v. McKant, 983 A.2d 727 (Table) (Pa. filed Nov. 5, 2009)).
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We affirmed the judgment of sentence, and our Supreme Court denied 

allowance of appeal in 2009. 

McKant filed the instant PCRA petition, his third, in May 2021. See

Second/Successive PCRA Petition, filed 5/20/21.2 He claimed “newly 

discovered evidence that was not disclosed to the defense due to 

governmental interference.” Id. at 3. This evidence included former detective 

Phillip Nordo’s misconduct of sexually assaulting, threatening, and coercing 

witnesses as well as a “decades long history/pattern and practice of abuse and 

fabrication of evidence.” Id. at 6. McKant maintained that his failure to raise 

the claim against Nordo was due to the Commonwealth’s failure to relay this 

information. See id. at 12-13. He claimed that he could not have obtained

this information with the exercise of due diligence because of “his limited 

ability to conduct an investigation from prison” and the information was only 

made public “after there were reports in the news[.]” Id. at 14. 

McKant also claimed newly discovered evidence that Detective Micah 

Spotwood “acted consistent[ly] in this case with a newly identified 

unconstitutional pattern and practice within the Philadelphia Police Homicide 

Unit.” Id. at 18. He listed numerous tactics allegedly used by the Homicide 

Unit including verbal and physical abuse of witnesses or suspects. He also

alleged that these tactics were identified by Common Pleas Judge Teresa 

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2 McKant filed his first PCRA petition on August 23, 2010, and his second on 

November 2, 2017. See McKant, 2014 WL 10986730, at *2;

Commonwealth v. McKant, No. 113 EDA 2020, 2021 WL 1854310, at *1

(Pa.Super. filed May 10, 2021) (unpublished mem.)
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Sarmina in Commonwealth v. Dwayne Thorpe (CP-51-CR-0011433-2008), 

an unpublished trial court opinion authored in June 2018. See id. at 18, 27.

McKant argued that he first learned of these practices “because [PCRA] 

counsel has represented literally hundreds of defendants who have been 

convicted of homicides in Philadelphia that she was able to discern the 

existence of a pattern and practice.” Id. at 28 (emphasis removed). He also 

maintained that he could not have uncovered this evidence earlier because of 

his incarcerated status. McKant claimed that in his case, Detective Spotwood 

would not allow him to use the restroom while being interviewed and 

threatened “that if [McKant] didn’t confess to him he would get the death 

penalty.” Id. at 20, 21. McKant also referenced Commonwealth v. Reuben

White (CP-51-CR-0003382-2013), another unpublished trial court opinion, 

where “it was alleged that Det. Spotwood . . . used isolation and threats in 

order to get witnesses . . . to sign statements.” Id. at 19. McKant further 

claimed that Mr. White filed a civil suit for malicious prosecution against 

Detective Spotwood. 

In a supplemental PCRA petition, McKant claimed he discovered new

evidence in the homicide detectives’ file (“H file”) and the prosecutor’s file 

(“DAO file”) related to his case, that he did not receive from the 

Commonwealth until December 20, 2021. Supplemental PCRA Petition, filed 

2/7/22; Uncontested Motion for Time for Further Investigation and Leave to 

Supplement, filed 12/24/21, at 3 (noting that PCRA counsel received an 

electronic copy of H file on 12/20/21).
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The H file contained the criminal records of two individuals, Christopher 

Denmark and Jermaine Winn. The H file also contained a handwritten note 

marked “To Do” and stating that detectives intended to interview Denmark 

and Winn. See Exhibit to Supplemental PCRA Petition, filed Feb. 7, 2022, at 1 

(unpaginated); H File at Bates 5.3 The file contained a police report related to

Sparrow, the decedent in McKant’s case. Handwriting on the report read,

“threaten[ed] by Jerell Smith[.] Sparrow wanted Jerel[l] to stop selling drugs 

to his mother.” H File at Bates 149. Additionally, the H file included a Crime 

Scene Unit Service Report for a firearm, dated months after the murder in 

McKant’s case. A fingerprint examination of the gun yielded “negative” results. 

H File at Bates 513. The H file also had paperwork concerning the seizure of a 

vehicle belonging to Bryanne McKant, McKant’s sister, as well as vehicle 

information noting that a vehicle was not “used in the incident by the 

offender.” H File at Bates 75, 207. McKant maintained that all the evidence

recovered from the H file was unknown to him and could not be ascertained 

with the exercise of due diligence. 

The court held a brief hearing on December 1, 2022. It concluded that 

“Nordo had minimal involvement in this case, . . . is not alleged to have done 

anything, and . . . the extent of his criminal conduct which came to light later, 

I don’t believe that that warrants a new trial.” N.T., 12/1/22, at 5-6. It also 

concluded “as to Detective Spotwood, there’s no history of misconduct or of 

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3 The second supplemental petition refers to items in the H File by the Bates 

numbers on the copies attached to the petition. We do the same. 
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any other allegations. So I don’t believe that that would warrant a new trial 

either.” Id. at 7. Regarding the crime scene report for the firearm found in 

the H file, the court concluded “without fingerprint results, I don’t think it 

would have been sufficient to overturn the verdict.” Id. at 10. Following the 

hearing, the court entered an order dismissing McKant’s petition, and this 

timely appeal followed. 

McKant raises three issues on appeal: 

I. Did the PCRA Court err in finding no merit to 

[McKant’s] claim of newly discovered evidence of 

misconduct by Det. Nordo which was not disclosed by 

the Commonwealth in violation of [McKant’s] rights 

under the Fifth, Sixth and Fourteenth Amendments of 

the U.S. Constitution and Article I sec. 9 of the PA 

Constitution?

II. Did the PCRA Court err in finding no merit to 

[McKant’s] claim of newly discovered evidence of an 

unconstitutional interrogation pattern and practice 

utilized by Det. Spotwood which violated [McKant’s] 

rights under the Sixth and Fourteenth Amendments of 

the U.S. Constitution and Article I sec. 9 of the PA 

Constitution?

III. Did the PCRA Court err in finding no merit to 

[McKant’s] claim of newly discovered suppressed 

evidence which had been contained in the H/DAO files 

related to 1) Smith having a motive and means to kill 

Sparrow 2) evidence of a gun and 3) seizure of 

[McKant’s] sister’s vehicle. 

McKant’s Br. at 3 (suggested answers omitted). 

When reviewing the denial of PCRA relief, “[w]e must determine whether 

the PCRA court’s ruling is supported by the record and free of legal error.” 
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Commonwealth v. Presley, 193 A.3d 436, 442 (Pa.Super. 2018) (citation 

omitted).

We first address the timeliness of the subject petition. The PCRA court 

“deemed” the petition timely because the Commonwealth “declined” to 

address the timeliness of the subject petition and supplements. Rule 1925(a) 

Opinion, filed 4/19/23, at 8. This was improper. As is well known, settled law 

treats the PCRA’s time restrictions as restrictions on courts’ subject matter 

jurisdiction, which cannot be created by consent or waiver. See 

Commonwealth v. Reid, 235 A.3d 1124, 1140, 1143 n.8 & n.10 (Pa. 2020).

Therefore, the court should have assessed the timeliness of the petition sua 

sponte. See Commonwealth v. Beatty, 207 A.3d 957, 961 (Pa.Super. 

2019). When a PCRA court lacks jurisdiction, we likewise lack jurisdiction and 

may raise the question ourselves. See Commonwealth v. Harris, 114 A.3d 

1, 6 (Pa.Super. 2015).

Any petition for relief under the PCRA must be filed within one year after 

the petitioner’s judgment of sentence has become final, unless the petition 

pleads, and the petitioner proves, that an exception applies. 42 Pa.C.S.A. § 

9545(b)(1); Commonwealth v. Larkin, 235 A.3d 350, 355-56 (Pa.Super. 

2020) (en banc). A judgment of sentence is 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). The exceptions include

governmental interference and new facts. See id. at § 9545(b)(1)(i)-(ii). The 
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governmental interference exception applies where the petitioner pleads and 

proves that “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[.]” Id. at § 9545(b)(1)(i). The new facts exception 

requires the petitioner to plead and prove that “the facts upon which the claim 

is predicated were unknown” and “could not have been ascertained by the 

exercise of due diligence[.]” Id. at § 9545(b)(1)(ii). The petitioner must raise 

any exception within one year that the claim could have been raised. Id. at § 

9545(b)(2).

McKant’s judgment of sentence became final on February 3, 2010, when 

his time to file a petition for writ of certiorari with the United States Supreme 

Court expired. He therefore had until February 3, 2011, to file a timely petition 

and the instant petition filed 10 years later is patently untimely. McKant

claimed the governmental interference and new fact time bar exceptions and 

the PCRA court determined that McKant satisfied both.

We agree that McKant satisfied the new fact exception regarding Nordo’s 

misconduct and the evidence recovered in the H file. He had no knowledge of 

the evidence and could not have obtained said evidence with the exercise of 

due diligence. As McKant noted in his PCRA petition, “[o]nly the DA’s Office 

and/or the Police Department had access to evidence” of Nordo’s misconduct

stemming back to 2005 and McKant only gained access to the H file in 

December 2021. Second/Supplemental PCRA Petition, at 13; Uncontested 
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Motion for Time for Further Investigation and Leave to Supplement, at 3; see

Commonwealth v. Brown, 111 A.3d 171, 176-177 (Pa.Super. 2015) (new 

fact exception satisfied where petitioner pleads and proves 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”) (citation omitted) 

(emphasis removed).

However, McKant fails to satisfy the new fact exception for his claims 

against Detective Spotwood. The alleged abusive tactics of Detective 

Spotwood were known to McKant. In his PCRA petition, McKant claimed that 

Detective Spotwood prevented him from using the restroom during his 

interrogation. Furthermore, at least one witness testified at trial that they 

were threatened by the detectives, one of whom was Detective Spotwood. 

See N.T., 8/7/07, at 15, 35; Second/Supplemental PCRA Petition, at 21. Even 

assuming McKant did not know about the alleged pattern of unconstitutional 

interviewing tactics of the Philadelphia Homicide Unit, he knew of Detective 

Spotwood’s alleged conduct. McKant fails to plead and prove the new-fact 

exception for this claim, as such we do not address its merits. 

We now turn to the substance of McKant’s appellate issues. McKant

claims he is entitled to a new trial based on the after-discovered evidence of

Nordo’s misconduct and the evidence contained in the H file. To succeed on a 

claim of after-discovered evidence, the petitioner must plead and prove that:

the new 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) 
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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. Small, 189 A.3d 961, 972 (Pa. 2018); 42 Pa.C.S.A. § 

9543(a)(2)(vi). “The test is conjunctive; the [petitioner] must show by a 

preponderance of the evidence that each of these factors has been met in 

order for a new trial to be warranted.” Commonwealth v. Padillas, 997 A.2d 

356, 363 (Pa.Super. 2010), appeal denied, 14 A.3d 826 (Pa. 2010) (emphasis 

added). Furthermore, the evidence must be admissible and producible. Small, 

189 A.3d at 972.

Nordo’s Misconduct

McKant claims that “Nordo acted consistent[ly] in [McKant’s] case with 

[Nordo’s] . . . described historical behavior.” McKant’s Br. at 15. He alleges 

that Nordo fabricated evidence by testifying regarding an unrelated case, that 

McKant told him that a man named Robert Nicholas shot McKant. See id. at 

16 (citing N.T., 8/8/07, at 8, 10). McKant claims at the time of this interaction 

with Nordo, his jaw was wired shut and he could not talk. Thus, he could not 

have identified Nicholas. He further alleges that Nordo’s misconduct rendered 

his testimony unreliable and could have been “determinative of [McKant’s] 

guilt or innocence.” Id. at 28. 

The PCRA court concluded that Nordo’s misconduct in unrelated cases

“did not warrant a new trial.” 1925(a) Op., at 12. It further noted that Nordo

had minimal involvement in McKant’s case and was not alleged to have 
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committed any misconduct in the instant case. We agree with the reasoning 

of the PCRA court.

McKant claims that Nordo acted consistently in the instant case with his 

“described historical behavior.” However, there is no evidence that Nordo

sexually assaulted, threatened, or coerced any witness in the instant case.

Moreover, Nordo did not interview any of the witnesses that identified McKant 

as the shooter, was not involved in the collection of any evidence, and his 

involvement was limited to investigating the shooting of McKant that occurred 

months before the murder. Thus, any evidence of Nordo’s misconduct would 

have merely been used to impeach his credibility and would not have likely 

resulted in a different outcome of the trial. Padillas, 997 A.2d at 363.

Evidence in H File

McKant maintains that when the H file evidence is viewed collectively, it 

“could reasonably be taken to put the whole case in such a different light as 

to undermine confidence in the verdict.” McKant’s Br. at 56. The pieces of 

evidence from the H file that McKant claims would have caused a different 

result at trial include the criminal records for Denmark and Winn, the 

handwritten note about the victim being threatened by Jerrell Smith, the crime 

scene report about a recovered gun, and the form completed by Detective 

Spotwood that a vehicle was not used in the murder.

The PCRA court rejected McKant’s claim, concluding that he “failed to 

establish how these pieces of evidence were favorable or would have 
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compelled a different result at his trial.” 1925(a) Op., at 16. The PCRA court’s

determination is supported by the record and free of legal error.

First, the note in the file mentioning that the victim had been threatened 

by Smith would not have likely resulted in a different verdict in the case 

considering the overwhelming evidence against McKant. Several days after 

the murder, Smith and Baldwin identified McKant as the shooter when 

interviewed by police and again when they spoke with prosecutors at the DA’s 

Office. Though Smith and Baldwin recanted their identification of McKant at 

trial, the jury was able to consider their prior identification to police. 

Furthermore, McKant had an opportunity at trial to suggest that someone else 

had a motive to kill the victim but declined to do so because it would have 

allowed the Commonwealth to introduce his statement to police that gave him 

a motive to kill the victim. See N.T., 8/8/07, at 99-103. Likewise, presenting 

the jury with Smith’s alleged motive to kill would have allowed the 

Commonwealth to introduce McKant’s motive to kill and would not have likely 

resulted in a different outcome of the trial.

Second, the information in the file related to Winn and Denmark offers 

McKant no relief. It is purely speculative whether these men had information, 

favorable or otherwise, that would have resulted in a different outcome of the 

trial. Similarly, the evidence of the recovery of a gun would not have resulted 

in a different outcome in McKant’s case. The paperwork noted that fingerprint 

testing on the gun was negative. Additionally, the paperwork did not suggest 

that the gun was in any way connected to the murder. Moreover, the 
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paperwork for the firearm noted that it was a .380 caliber firearm, in contrast 

to the .38 or .357 bullets that were recovered from the victim’s body. See H

File – at Bates 513; N.T., 8/7/07, at 127.

Finally, concerning the paperwork by Detective Spotwood that indicated 

that a vehicle was not used by the “offender” in “this incident,” McKant claims 

that he would have used it to “impeach[] the evidence that [McKant] used 

that car.” McKant’s Br. at 54. However, impeachment is an insufficient basis 

on which to seek PCRA relief for new evidence. Moreover, even assuming the 

evidence would not be used purely for impeachment, it would have been 

unlikely to have resulted in a different trial outcome. We affirm the order of 

the PCRA court.

Order affirmed.

Date: 4/2/2024