[J-82A-2013 and J-82B-2013] IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, STEVENS, JJ.

COMMONWEALTH OF PENNSYLVANIA, Appellant

v.

TERRANCE WILLIAMS, Appellee : : : : : : : : : : : No. 668 CAP Appeal from the Order entered on 09/28/2012 in the Court of Common Pleas, Criminal Division of Philadelphia County at No. CP-51-CR-0823621-1984, granting a Stay of Execution SUBMITTED: September 18, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellant

v.

TERRANCE L. WILLIAMS, Appellee : : : : : : : : : : : No. 669 CAP Appeal from the Order entered on 09/28/2012 in the Court of Common Pleas, Criminal Division of Philadelphia County at No. CP-51-CR-0823621-1984 SUBMITTED: September 18, 2013

OPINION

MR. JUSTICE EAKIN DECIDED: December 15, 2014 The Commonwealth appeals from the order granting a st ay of execution, vacating appellee’s death sentence, and awarding a new penalty hearing under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546 . We vacate the stay of execution and the grant of a new penalty phase, and r einstate the sentence of death.[J-82A-2013 and J-82B-2013] - 2

Appellee was sentenced to death after being convicted o f the robbery and murder of Amos Norwood February 3, 1986, his second murder con viction. A detailed account of the crime is set forth in our opinion on direct appe al. See Commonwealth v. Williams, 570 A.2d 75, 77-79 (Pa. 1990). Suffice it to say, ap pellee and his co-conspirator, Marc Draper, took Norwood to a graveyard, tied him with h is own clothes, and beat him to death with a tire iron — appellee returned the next day an d set fire to the corpse. At trial, appellee testified that Draper and another individua l committed the crime; he claimed he

was elsewhere at the time and uninvolved. He testifie d he did not know the victim, had never seen him before, and had no reason to be angry with him or wish to harm him. This Court affirmed the judgment of sentence Februar y 8, 1990, id., at 84, and appellee did not seek certiorari. He filed a timely PCRA petit ion March 24, 1995. At the 1998 PCRA hearing, now represented by the Fed eral Community Defenders Office (FCDO), appellee abandoned his trial testimony and argued Norwood engaged in homosexual acts with him, and as set forth below, presented evidence supporting this claim. The PCRA court denied relief, a nd this Court affirmed. Commonwealth v. Williams, 863 A.2d 505, 523 (Pa. 200 4). Appellee filed a second PCRA petition February 18, 2005, which was dismissed as untimely. This Court affirmed. Commonwealth v. Williams, 909 A.2d 297 (P a. 2006) (per curiam). Appellee filed a third PCRA petition June 1, 2005, which was d ismissed as untimely, and we affirmed. Commonwealth v. Williams, 962 A.2d 609 (P a. 2009) (per curiam). While that PCRA appeal was pending before this Court , appellee filed a federal habeas corpus petition December 19, 2005, which was den ied. The Third Circuit affirmed. Williams v. Beard, 637 F.3d 195, 238 (3d Cir. 2011). In his federal appeal, appellee contended trial counsel was ineffective for f ailing to present evidence he was psychologically damaged by years of sexual abuse, which i nfused him with rage toward[J-82A-2013 and J-82B-2013] - 3

men who made sexual advances toward him; appellee arg ued Norwood was one of these men and had been sexually abusing him since the age of 13. Appellee petitioned the United States Supreme Court for certiorari, which was d enied. Williams v. Wetzel, 133 S. Ct 65 (2012) (per curiam). On January 9, 2012, the FCDO visited Draper, who was ser ving a life sentence at SCI-Frackville. That same day, Draper signed an affid avit declaring he told detectives and the prosecution prior to trial that Norwood was a homosexual and was in a relationship with appellee. The affidavit also claime d the prosecution “wanted the motive to be a robbery and kept coming back to that. That’s ho w they wanted me to testify, that it was a robbery.” Draper’s Affidavit, 1/9/12, at 4. The FCDO revisited Draper March 1, 2012, obtaining another affidavit with similar declar ations. Appellee then filed this facially untimely PCRA petit ion March 9, 2012, his fourth state petition for collateral review. On July 27, 20 12, he filed a “Supplemental Petition for Post Conviction Relief and Notice of Filing Additiona l Evidence in Support of Stay of Execution,” although no execution warrant had been sig ned. An execution warrant was subsequently issued August 8, 2012, setting the execution for October 3, 2012. Appellee filed a “Renewed Motion for Stay of Executi on” August 28, 2012, and the Commonwealth filed a response September 7, 2012. On September 6, 2012, appellee filed a motion for discovery, requesting the production of exculpatory information from the Commonwealth “as well as any reports or notes made conc erning Norwood’s sexual relationship or sexual abuse of [appellee] or any othe r child under the age of 18.” Appellee’s Motion for Discovery, 9/6/12, at 5-6. On September 10, 2012, the PCRA court heard argument on the pleadings to determine whether the petition warranted an evident iary hearing. The court gave appellee time to obtain and submit additional inform ation from Draper, which led to his[J-82A-2013 and J-82B-2013] - 4

third affidavit, dated September 11, 2012. On Sept ember 14, the court heard additional argument and ordered an evidentiary hearing, which b egan September 20; only Draper and the trial prosecutor testified. On Saturday, Sep tember 22, the court ordered the Commonwealth to produce trial files and Philadelphia Police Department files and allowed both parties to review those files. 1 On September 24, documents from these files were offered and admitted into evidence, and t he PCRA court entered 11 exhibits sua sponte. See Exhibit List, 9/20/12. The court then directed appellee to amend his PCRA petition; on September 28, appellee filed an “ Amendment and Supplement to Petition for Post-Conviction Relief,” requesting relie f because the Commonwealth had given “sanitized” witness statements to the defense. The same afternoon, the court ruled there was a Brady 2 violation because that which was missing from original discovery suggested Norwood may have been a “homosexual ephebophiliac.” PCRA Court Opinion, 11/27/12, at 12-13 (citations omitted)

. 3 The PCRA court also concluded appellee’s fourth PCRA p etition met the “governmental interference” exception to the PCRA’s ti meliness requirement, 42 Pa.C.S. § 9545(b)(1)(i), 4 though it did not meet the “newly-discovered evidence” exception, id., §

1 The court’s order included files for both the Norwood murder and the murder of Herbert Hamilton. Both murders had the same trial prosecutor, the same defendant (appellee), and the same key witness (Draper). In the Hamilton mu rder, appellee was receiving money from Hamilton in exchange for sex; appellee mur dered Hamilton when he threatened to expose this relationship. Although the charge was first degree murder, the jury convicted appellee of third degree murder, about one year before the Norwood trial.

2 Brady v. Maryland, 373 U.S. 83 (1963).

3 The PCRA court defined “homosexual ephebophilia” as a psychological term for the attraction to “young men,” both adults and adolescents. See id., at 13 n.32.

4 Subsection (b)(1)(i) provides an untimely PCRA petiti on falls within an exception if the petitioner proves: “the failure to raise the claim pre viously was the result of interference by (continuedJ)[J-82A-2013 and J-82B-2013] - 5

9545(b)(1)(ii). 5 The court ordered a stay of execution pursuant to § 9 545(c)(2), 6 finding appellee exceeded the “strong likelihood” threshold and demonstrated actual success on the merits of his claim regarding the penalty phase. The court held the Commonwealth violated Brady and found appellee identified a speci fic claim, Norwood’s homosexual ephebophilia, which he was unable to discover or devel op due to interference by the

Commonwealth. The interference consisted of withholdin g or “sanitizing” three specific pieces of evidence: a statement by Norwood’s wife, a stat ement by the pastor of appellee’s church, and notes made by the prosecutor. The first statement involved a story Norwood’s wife to ld police, which was omitted from the 1984 police activity sheet. She said Norwood once woke her at 2 a.m. and asked her for money while a young male stood in the ha ll outside their bedroom. She saw Norwood load stereo equipment into his car and dri ve away with the young male. She told police she believed this to be a kidnapping; when Norwood returned home around 9 a.m., he said he was abducted but escaped by usi ng psychology on his captors. When his wife tried to call the police, Norwood asked he r to avoid their involvement. The second statement was from appellee’s pastor, who w as also a friend of Norwood. The pastor told police Norwood worked with and counseled young males in

(Jcontinued) 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.

5 Subsection (b)(1)(ii) provides an exception for an unt imely PCRA petition if the petitioner proves: “the facts upon which the claim is pr edicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence[.]” Id.

6 Subsection (c)(2) states no stay may be issued unless a PC RA petition meeting all requirements of this subchapter of the PCRA has been fi led and is pending, and the petitioner makes “a strong showing of likelihood of succe ss on the merits.” Id., § 9545(c)(2).[J-82A-2013 and J-82B-2013] - 6

the church for many years. Omitted from the 1984 activ ity sheet was the pastor’s suspicion that Norwood may have been a homosexual, and that five years earlier, the pastor received a complaint from a mother alleging No rwood propositioned her 17-year-old son for sex. The pastor also repeated for police the “kidnapping” story told by Norwood’s wife — this was included with the pastor’s sta tements in the 1984 police activity sheet, which had been disclosed to the defense.

The court also found the Commonwealth failed to discl ose handwritten notes by the trial prosecutor, purportedly recounting an instan ce of Norwood’s behavior toward a teenage male, which would establish the prosecution’s a wareness of Norwood’s homosexual proclivities. The court stated, had such evid ence been disclosed to the defense, trial counsel would have been able to challen ge the Commonwealth’s sympathetic portrayal of Norwood. The court concluded the inability to portray an unsympathetic victim was enough to undermine one’s confid ence the jury would have

returned the same verdict of death. 7 Finding appellee exercised due diligence, the court con cluded he did not know this evidence existed until his co-conspirator executed an aff idavit in January, 2012, declaring a possible motive for the crime, i.e., rage over being sexually abused by Norwood. Appellee timely filed his PCRA petition within 60 da ys of learning the substance of Draper’s affidavit. Furthermore, the court noted app ellee could not have known the

7 The court also stated the Commonwealth interfered wi th appellee’s Brady claim by “disput[ing] the existence of information in [its] file s about [] Norwood’s homosexual ephebophilia” when the Commonwealth represented to t he 1998 PCRA court that the only evidence involved in the case was appellee’s knowled ge that Norwood was a homosexual and his plan to extort money from Norwood but mentioned nothing about the additional “homosexual ephebophilia” evidence. PCRA Court Opinion, 11/27/12, at 15-17. The court added a supplemental opinion to it s PCRA opinion, describing additional instances that led it to conclude the prosecu tion exhibited “gamesmanship.” See id. app., at 1-15.[J-82A-2013 and J-82B-2013] - 7

Commonwealth interfered with his ability to present e vidence of Norwood’s homosexual ephebophilia until the underlying evidence was uncover ed during the hearing held as a result of Draper’s affidavit; therefore, appellee tim ely filed the amendment and supplement to his PCRA petition in order to particular ize his Brady claim just three days after government files were opened. Accordingly, th e court concluded appellee met his burden under 42 Pa.C.S. § 9545(b)(1)(i), and subsecti on (b)(2), so it had jurisdiction to grant relief. Finding appellee established his Brady claim, the court held he was entitled to a new penalty hearing. The court denied relief regarding the guilt phase. The Commonwealth filed this appeal, raising two issues for o ur review regarding the timeliness of appellee’s fourth PCRA petition and the merits of his Brady claim. 8 Our standard of review of the PCRA court’s grant of relief is clear: we examine whether the court’s findings are supported by the reco rd and whether its conclusions of law are free from legal error. Commonwealth v. Col avita, 993 A.2d 874, 886 (Pa. 2010). All PCRA petitions, “including a second or subsequent pe tition, shall be filed within one year of the date the judgment becomes final” unless an exception to timeliness applies. 42 Pa.C.S. § 9545(b)(1). “The PCRA’s time restriction s are jurisdictional in nature. Thus, [i]f a PCRA petition is untimely, neither this C ourt nor the [PCRA] court has jurisdiction over the petition. Without jurisdiction, we simply do not have the legal

8 The Commonwealth’s issues, set forth verbatim, are:

I. Was [appellee]’s fourth PCRA petition, in which he alleged a violation of Brady[] based on the non-disclosure of information he had known since before trial, untimely? II. In any event, was [appellee]’s Brady claim meritl ess where the information in question would not have been reasonabl y likely to change the outcome, had no apparent exculpatory value, and had b een known all along by [him]?

Commonwealth’s Brief, at 3.[J-82A-2013 and J-82B-2013] - 8

authority to address the substantive claims.” Commonweal th v. Chester, 895 A.2d 520, 522 (Pa. 2006) (first alteration in original) (inter nal citations and quotation marks omitted). As timeliness is distinct from the merits of the underly ing claims, we must first determine whether appellee’s PCRA petition was timely filed in o rder to decide whether this Court has legal authority to address its substantive claims. S ee Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008) (consideration of Brady claim separate from consideration of its timeliness). This, appellee’s fourth PCRA petition, was untimely on its face, as it was filed over 20 years after his judgment of sentence became final. The PCRA petitioner has the burden of proving an untimely petition falls within an exception outlined in § 9545(b)(1). See Commonwealth v. Hawkins, 953 A.2d 1248, 1253 (Pa. 2008) (“[I]t is the [petitioner]’s burden to allege and prove that one of the timeline ss exceptions applies.” (citation omitted)). Furthermore, any PCRA petition filed un der a timeliness exception must be filed within 60 days of when the petition could have first been presented. 42 Pa.C.S. § 9545(b)(2). “‘[T]he 60-day rule requires a petition er to plead and prove that the

information on which he relies could not have been obt ained earlier, despite the exercise of due diligence.’” Commonwealth v. Albrecht, 994 A .2d 1091, 1094 (Pa. 2010) (quoting Stokes, at 310). Although a Brady violation might fall within the “ governmental interference” exception, § 9545(b)(1)(i) nonetheless requires a petit ioner to plead and prove: (1) the failure to previously raise the claim was the result of interference by government officials and (2) the information on which he relies could not h ave been obtained earlier with the exercise of due diligence. Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008) (citation omitted). The merits of a Brady claim need not be addressed until it is established that the instant petition was timely filed. Stokes, at 310. Thus, the proper[J-82A-2013 and J-82B-2013] - 9

questions for our review are whether the Commonwealth interfered with appellee’s ability to present a claim that Norwood was a homosexual with a sexual attraction to teenage males, and whether appellee was duly diligent in obta ining such information. The PCRA court held it had jurisdiction under the “go vernmental interference” exception to the PCRA’s time-bar, concluding the allege d Brady violations posited by appellee met the requirements of 42 Pa.C.S. § 9545( b)(1)(i). The Commonwealth contends appellee’s PCRA petition failed to establish th is exception, as appellee would have known well before trial of any sexual relationshi p or abuse between Norwood and himself. In fact, the Commonwealth argues, if anyone knew about Norwood’s homosexual proclivities toward teenage males, it was app ellee himself. The Commonwealth points to the evidence of appellee’s stat ements during the murder, taunting Norwood for “liking boys,” and appellee’s pla n to extort Norwood by threatening to expose his homosexual activity. Further, the Commonwealth contends appellee not only could have presented evidence of ephebophilia much sooner, but points out ap pellee did present just such a claim during his first PCRA proceedings in 1998, where he offered testimony from several witnesses alleging Norwood sexually abused him. The Comm onwealth also posits that appellee’s instant PCRA petition admitted he knew abo ut Norwood’s homosexual tendencies years before the murder. Since appellee alr eady knew about this alleged material evidence, the Commonwealth contends any “sani tization” of evidence by the prosecution does not amount to a Brady violation. Acc ordingly, the Commonwealth asserts, appellee did not prove the timeliness exception applies, and the PCRA court was without jurisdiction to rule on appellee’s petition, m uch less grant a stay of execution and a new penalty phase.[J-82A-2013 and J-82B-2013] - 10

The Commonwealth also suggests the PCRA court attempted to circumvent a valid death sentence and undermine the integrity of this Court’s ruling in appellee’s first PCRA appeal. The Commonwealth refers to the orderin g of what amounted to additional discovery to supplement appellee’s inadequate petition, the court’s lengthy examination of the trial prosecutor after PCRA counsel finished his examination, and the admission of “court exhibits” sua sponte, later basing its “government al interference” decision on one of its own exhibits. In sum, the Commonwealth conten ds the PCRA court “went to great lengths to expand the record, to reshape [appellee]’s cl aim, and to limit the Commonwealth.” Commonwealth’s Reply to Defendant’s R esponse to Emergency Application to Lift Illegal Stay of Execution, 10/2/1 2, at 12. The Commonwealth, therefore, requests we vacate the stay of execution and the grant of a new penalty phase. Appellee argues the PCRA court’s timeliness findings wer e supported by the record and devoid of legal error. While appellee ad mits he had prior knowledge of Norwood’s sexual orientation, he contends such prior kno wledge is critically different from evidence of homosexual ephebophilia and sexual abuse of other teenage males. He distinguishes the failure to present the defense of rage at trial, his 1998 ineffectiveness claim, from the inability to present Norwood as unsympa thetic, and repeats that knowledge of homosexuality is not the same as knowledge of homosexual ephebophilia, insofar as it relates to the ability to paint an unsym pathetic picture of Norwood. Appellee argues he met § 9545(b)(1)(i)’s exception beca use the Commonwealth interfered with his ability to proffer this particular Brady claim, and that he exercised due diligence by presenting the claim within 60 days of obt aining the facts on which the claim was based. Further, appellee asserts a PCRA petitioner’ s previous knowledge of a fact applies only to § 9545(b)(1)(ii)’s newly-discovered evi dence exception, not § 9545(b)(1)(i), alleging the Commonwealth is required to disclose evidence in its[J-82A-2013 and J-82B-2013] - 11

possession even if the defense has previous knowledge or o ther information about that fact, and the failure to disclose such evidence violates Brady, constituting governmental interference with the ability to present a Brady claim

. Our examination of the three omissions alleged lead s to the inescapable conclusion that appellee is not entitled to relief. T he missing reports were found to be relevant to Norwood’s character, but the failure to ex plore or exploit that character was not a result of governmental interference — there is abundant evidence appellee knew of Norwood’s homosexuality and conduct with teenage boys well before trial, sufficient to present him as unsympathetic before the jury. Appellee himself was a teenage male admittedly engaged in homosexual acts with Norwood. Although he denied any involvement in the crime at trial, evidence included h is plan to extort Norwood by threating to expose him for being a homosexual, and statements in which Draper and appellee taunted Norwood for “liking boys” while they were bea ting him. N.T. Trial, 1/22/86, at 667-68; N.T. Trial, 1/23/86, at 813-14; see also N.T. PCRA Hearing, 9/20/12, at 219; N.T. PCRA Hearing Vol. 2, 9/24/12, at 13. Draper testif ied at trial that appellee told him Norwood was a homosexual. N.T. Trial, 1/23/86, at 8 14. We agree with the courts that have previously considered appellee’s claims based on sexu al orientation — there is no

reasonable conclusion that the result of a trial for th is horrific crime would have been different had the missing information been provided a s appellee would have liked. Further, evidence offered at appellee’s first PCRA h earing in 1998 demonstrated the extent of available knowledge of Norwood’s sexual appetites. At that proceeding, counsel offered three expert witnesses, all of whom test ified appellee and Norwood were in a homosexual relationship in which appellee was abuse d by Norwood; they suggested the murder was an “enraged killing” in response to the sexual abuse. See N.T. PCRA Hearing, 4/8/98, at 106, 115, 156-59, 186; N.T. PCR A Hearing, 4/9/98, at 360-61, 375-76;[J-82A-2013 and J-82B-2013] - 12

N.T. PCRA Hearing, 4/13/98, at 540, 542-44, 551-54, 569-70. Additionally, appellee’s high school teacher, who was also a private psychotherapist , testified Norwood molested young boys, including appellee, and he learned this in formation from several people in early 1997. N.T. PCRA Hearing, 4/8/98, at 226-33. Appellee’s friend, Donald Fisher, who was also in a homosexual relationship with appellee for approximately five years, testified appellee and Norwood began a homosexual rel ationship when appellee was approximately 15 years old, which lasted a few years, a nd Norwood was abusive, liked to inflict pain, and enjoyed having sex with teenage mal es. N.T. PCRA Hearing, 4/13/98, at 597, 602-05, 617. Fisher also testified appellee wo uld engage in homosexual acts with Norwood for money, alcohol, and other gifts. Id., at 617-18. Fisher learned this information not only from observing the relationship between appellee and Norwood but also because appellee told Fisher. Id. Additionally, the defense stated throughout the hearings that its mitigation witnesses were offered to show Norwood molested young

males and to demonstrate trial counsel’s ineffectiveness in investigating the homosexual relationship between appellee and Norwood and the ab use involved in that relationship. See N.T. PCRA Hearing, 4/8/98, at 235-37; N.T. PCRA Hearing, 4/13/98, at 603. Appellee’s prior knowledge was also evident at his fede ral habeas corpus proceeding, during which he alleged Norwood was a closet ed homosexual from whom he could extort cash by threatening to expose Norwood’s secr et to his wife. Williams, 637 F.3d at 200. Analyzing the record from appellee’s fi rst PCRA proceeding, the Third Circuit noted appellee and Norwood began their homose xual relationship when appellee was approximately 13 years old. Id., at 229. The co urt stated Norwood was physically abusive toward appellee, once allegedly beating him w ith a belt. Id., at 229-30. The federal district court also elicited testimony from appel lee’s first PCRA proceeding showing Norwood was a homosexual with whom appellee h ad sex in exchange for[J-82A-2013 and J-82B-2013] - 13

money, drugs, and gifts. See Williams v. Beard, 2007 U.S. Dist. LEXIS 41310, at *106 n.32 (E.D. Pa. May 8, 2007). The PCRA court itself acknowledged appellee’s argument s from the 1998 PCRA hearing supported his prior knowledge, stating appellee “elicited evidence from [] Fisher that [] Norwood was very degrading and he liked to hav e sex with kids. However, the current claim does not rest solely upon that evidence.” See N.T. PCRA Hearing, 9/28/12, at 21. The court also noted the defense, at the time of trial, indeed had information suggesting Norwood was a homosexual — a state ment from a witness disclosing appellee told him Norwood “‘was a homosexual and was the type to pay people.’” Id., at 27-28. Appellee’s PCRA counsel a lso referenced his prior knowledge at the hearings. See N.T. PCRA Hearing, 9/10/12, at 24 (“[W]e tried to present in prior proceedings evidence about the sexual abuse by [] Norw ood of [appellee.]”). And quite tellingly, Draper’s affidavits established h e knew appellee and Norwood were in a homosexual relationship — “[appellee] had also told me that Norwood was gay” and during the murder, “[appellee] was yelling ‘so yo u like boys, so you like boys’ as he hit Norwood” — and appellee told Draper the murder was ab out the homosexual relationship. Draper’s Affidavit, 9/11/12, at 2-4. Draper confirmed appellee’s prior knowledge of Norwood’s homosexual proclivities repeatedl y in his PCRA testimony. See N.T. PCRA Hearing, 9/20/12, at 219; N.T. PCRA H earing Vol. 1, 9/24/12, at 88, 93, 96; N.T. PCRA Hearing Vol. 2, 9/24/12, at 12-13. The evidence alleged to comprise the Brady violation does not include information unknown to appellee, or information he would have be en unable to find on his own. The “kidnapping” story told by Norwood’s wife indicates that a probably untruthful story was told to her, but nothing more. The PCRA court appar ently read between the lines and presumed the story was a lie to hide Norwood’s homosexu ality from his wife. And[J-82A-2013 and J-82B-2013] - 14

although this story was omitted from the wife’s stateme nts in the 1984 police activity sheet, it was disclosed with the pastor’s statements in the same sheet. That is, appellee was already aware of this story, whatever its value, th rough other means. See Reverend’s Disclosed Statement, Exhibit C-2, PCRA Heari ng, 9/20/12, at 5. Since appellee had it, the government did not interfere w ith his ability to obtain it. The pastor’s suggestion that he suspected Norwood may h ave been a homosexual would hardly have surprised appellee, who kn ew that for years. The government did not keep appellee from ferreting out the reverend, even if his opinion might have been admissible. The pastor’s report that he once received a complaint alleging Norwood propositioned a teenage male would have been equally unsurprising. These allegations confirmed what appellee already knew — Norwood was a homosexual with attraction toward teenage males, like himself. 9 There simply is no surprise in this revelation, no new information or insinuation that o nly now suggests Norwood might be made to look “unsympathetic.”

The third “interference” involves nondisclosure of hand written notes of the trial prosecutor; the PCRA court concluded they recounted a speci fic instance of homosexual ephebophilia. In toto, the notes read, “[N]ot true — Mrs. House — son in play — Ronald — 16 yrs.[sic] — touched on privates — I don’t do that — nobody wd [sic] have to know — brought boy home [and] asked him not to say anything @ [sic] the — he stopped coming to church — disappeared — never verified it — 29 yrs. [si c] — 1st X [sic] — never heard from others @ [sic] possible incidents.” See Exhibit Cour t-2, PCRA Hearing, 9/20/12, at

9 The reverend refused to make these statements in writ ing but related them to police in confidence. He stated, “[H]e himself handled the matt er internally and the complaint never went any further than that.” See Police Activ ity Sheet, Exhibit P-24, PCRA Hearing, 9/20/12.[J-82A-2013 and J-82B-2013] - 15

2. The court sua sponte admitted these cryptic notes int o evidence and used them to question the trial prosecutor. 10 These murky notes, if decipherable with any degree of confidence, do not indicate the origin or veracity of their content; they do not indicate whether the notes were written during a witness interview, much less who was being inter viewed. Indeed, they start with the notation “not true.” They do not mention Norwo od, whose connection to the notes we are asked to insinuate. One could infer they involve t he incident omitted from the pastor’s statements in the 1984 police activity sheet, wh ere a mother told of Norwood’s propositioning her teenage son. However, next to app ellee’s own evidence at the 1998 hearing, it adds little or nothing whatsoever to the information available and already presented. The ability to pursue the mitigating tacti c of making Norwood appear unsympathetic was not created by these notes. Lastly, we note a measure of bootstrapping in appell ee’s argument. It is difficult to conclude appellee learned something new from Draper’s l atest affidavit, as Draper’s information was derived from appellee’s own statements to Draper prior to and at the time of the murder. Further, Draper’s suggestion that appe llee was enraged at the time of the murder depends on Norwood’s prior abuse of appellee, which necessarily establishes appellee’s knowledge of Norwood’s proclivities before t rial. Thus, any failure to previously raise this claim was not the result of governm ental interference. See Commonwealth v. Grant, 813 A.2d 726, 730 (Pa. 2002) (“[N]o Brady violation occurs where parties had equal access to the information or if the defendant knew or could have

10 Although the Commonwealth contends the PCRA court violated Pa.R.Crim.P. 902(E)(1) in the “Statement of the Case” section of i ts brief, see Commonwealth’s Brief, at 19, the Commonwealth does not raise a discovery issue on appeal; thus, we will not address discovery matters. See Pa.R.A.P. 302(a).[J-82A-2013 and J-82B-2013] - 16

uncovered such evidence with reasonable diligence.” (cita tion omitted)); see also Commonwealth v. Morris, 822 A.2d 684, 696-97 (Pa. 20 03). Like appellee’s failed effort to establish a timeliness exception, his Brady claim provides no grounds for PCRA relief because the claim i s inapposite to the necessary materiality inquiry. The United States Supreme Cour t has never held Brady materiality is measured in terms of “effects on the defense strategy.” See Commonwealth v. Weiss, 81 A.3d 767, 810-11 (Pa. 2013) (Castille, C.J., concur ring, joined by Eakin, J.). Further, Brady does not permit a defendant to shield himself f rom his prior perjury at trial. See id.,

at 811-13. Appellee’s Brady theory suggested that had he received additional information about Norwood’s homosexual proclivities, his defense wou ld have learned his actual motive for the murder, i.e., rage over being sexuall y abused by Norwood, which, in turn, would possibly lead to a new strategy where appellee d oes not perjure himself and Norwood is portrayed unsympathetically. Yet, at the time of trial, appellee was aware of potential witnesses and information that would establish Norwood’s homosexual attraction to teenage males. Appellee could have used his prior knowledge and his counsel’s due diligence to obtain additional informati on and witnesses to support a different trial theory than that presented. He could have argued Norwood’s homosexual proclivities developed into sexual abuse, leading to r age and ultimate murder of Norwood. He could also have created a portrait of Norwood consiste nt with that now proffered. However, appellee chose not to do so. Instead, appellee perjured himself at trial, testifyi ng he did not know the victim, had never seen him before, took no part in the murder, an d had no reason to be angry with him or wish to harm him. The defense he chose to presen t disclaimed knowledge of Norwood, which is antithetical to what he knew and could have presented — evidence[J-82A-2013 and J-82B-2013] - 17

that showed Norwood as a molester, which may have led t o establishing a motive of rage, or evidence allowing him to depict Norwood as an unsav ory character and sexual predator. Given the choice of defense, such strategie s were not relevant. 11 Given the details of appellee’s crime, showing the jury the victim was “unsympathetic” was not a plan that was likely to cause reciprocal sympathy for the man who bludgeoned him and incinerated his body. Regardless, this alleged “sanitize d information” claim, coupled with the possible effect on appellee’s defense strategy, lacks any basis under Brady, as it is neither exculpatory nor material. See Weiss, at 810 -13 (Castille, C.J., concurring, joined by Eakin, J.). In sum, the Commonwealth did no t obstruct appellee’s ability to present Norwood as unsympathetic. Appellee had prior k nowledge of the information on which he based his Brady claim, and could have presented the claim much sooner — prior to trial or at any time over the last 20 years . Because appellee’s theory was built on perjury, and the information on which he relied was n ot exculpatory, the PCRA court erred in finding his claim material under Brady. Accordingly , the record does not support the PCRA court’s finding appellee established his burden of proof regarding the “governmental interference” exception. See Abu-Jamal, at 1268 (citation omitted). Because the PCRA court was thus without jurisdiction to consider the merits of this petition, see Hawkins, at 1252 (citations omitted), we vacate the court’s order, dismiss this petition as time-barred, and reinstate the judgme nt of sentence of death. The Prothonotary is directed to transmit the complete record in this case to the Governor pursuant to 42 Pa.C.S. § 9711(i). Order vacated; petition dismissed; judgment of sentenc e reinstated.

11 Trial counsel indicated at a hearing on appellee’s p ost-sentence motions that he was left with using appellee’s youth as a potential mitig ating factor — since appellee provided him little, if any, assistance, he was frustrated in effo rts to present a compelling group of character witnesses on his behalf. See N.T. Post-Sentence Motions, 4/24/87, at 21-27.[J-82A-2013 and J-82B-2013] - 18

Jurisdiction relinquished.

Mr. Chief Justice Castille and Messrs. Justice Baer and Ste vens join the opinion. Mr. Chief Justice Castille files a concurring opinion. Mr. Justice Saylor and Madame Justice Todd concur in the result.