PA Supreme Court: The Attorney General Can Now Intervene When the Philadelphia DA Concedes PCRA Relief

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided Commonwealth v. Brown, No. 32 EM 2023 (Pa. June 16, 2026), reversing a Philadelphia judge's decision to vacate a second-degree murder conviction for which the District Attorney's Office had agreed to concede relief. Exercising its rarely used King’s Bench authority, the Court held that a Philadelphia prosecutor’s agreement does not substitute for a judge's independent review, and it announced a new rule for Philadelphia. From now on, whenever the DA’s Office concedes that a defendant is entitled to relief under the Post Conviction Relief Act, the PCRA court must give the Office of Attorney General notice and a chance to intervene before it rules. Justice Dougherty wrote for the Court.

The decision strikes at one of the most important programs of the current District Attorney’s administration. Since 2018, the DA’s Office has conceded relief in more than 120 old cases, most of them murders, and it has agreed to undo roughly three quarters of the death sentences that were on the books when the District Attorney took office. Brown holds that those agreements cannot carry a case on their own, and it writes an adversary into the process by letting the state Attorney General step in as a full party. For a defendant who was counting on an agreed concession to move a case forward, the path just became longer and less certain, and the AG’s Office tends to reflexively oppose the grant of relief in nearly every case.

The Facts of the Case

The case grew out of a 2003 robbery and murder at a Rite Aid at 12th Street and Girard Avenue in Philadelphia. A store employee tipped off a group about the cash kept in the store’s safes. After a failed robbery attempt, the group returned the next day, and one of the men shot and killed the manager, Michael Richardson, during the robbery. A jury convicted Lavar Brown of second-degree murder for his role in the robbery conspiracy, and the court sentenced him to life in prison. Brown was later convicted of a separate, unrelated first-degree murder and sentenced to death, and his Rite Aid conviction served as an aggravating circumstance supporting that death sentence.

The claim at the center of this appeal surfaced years later. In a 2021 petition, Brown argued that the Commonwealth had violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to tell the defense that a cooperating witness, Ronald Vann, had falsely accused a young woman named Kennisha Paige of taking part in the robbery. Paige could not have been involved because she was in a residential facility for girls, hundreds of miles away, on the day of the murder. Brown pointed to four documents from the investigation that, in his view, showed Vann had named Paige and that detectives had later confirmed her alibi. His theory was that a witness willing to accuse an innocent person was a witness the jury might not have believed when he pointed the finger at Brown.

What Happened in the PCRA Court

The DA’s Office agreed. In 2021, it conceded that Brown was entitled to a new trial. The families of Brown’s murder victims asked to intervene, but the PCRA court allowed them to participate only as friends of the court, without access to the prosecution’s files.

The trial judge was openly skeptical. Again and again, he told the parties that the documents did not actually show Vann had accused Paige. As he put it at one hearing, “on the face of the documents that were submitted to me, I can’t tell that that, in fact, happened.” He said more than once that he wanted an evidentiary hearing and that he wanted to hear from the detectives and prosecutors who had worked the case. Then, after the defense and the District Attorney’s Office both told him a hearing was unnecessary, the judge reversed course. On May 5, 2023, he granted a new trial with the Commonwealth’s consent, without holding a hearing and without deciding whether the claim was even timely. The victims’s families petitioned the Supreme Court, which took the unusual step of granting King’s Bench review.

The Supreme Court's Decision

The Court reversed on every front. It first held that the claim may have been untimely. Brown’s conviction became final in 2007, and he raised the Brady claim more than thirteen years later. The PCRA’s one-year deadline is jurisdictional, and a court must decide timeliness claim by claim before reaching the merits, no matter what the parties have agreed. The PCRA court never addressed the deadline at all. As the Court reminded, “[t]he agreement of the parties . . . does not suffice to vest a court with jurisdiction.” Commonwealth v. Rivera, 324 A.3d 452 (Pa. 2024).

On the merits, the Court held that Brown never proved the one fact his entire claim depended on, that Vann accused Paige in the first place. A prosecutor cannot suppress evidence that does not exist. The documents were inconclusive, and one of them cut the other way, because it discussed the Rite Aid murder without mentioning Paige at all. None of Vann’s many recorded statements named her, and two detectives declared that they would have documented any such accusation. Because a genuine dispute of fact remained, the Court held that the PCRA court had to hold an evidentiary hearing before it could grant relief, whether or not the parties wanted one.

The Court's Findings About the DA’s Office

Much of the opinion focused on how the District Attorney’s Office handled the case. The Court found that the Office fell short of its duty of candor to the court. It withheld a 2003 memorandum showing that Vann had named both Brown and his co-conspirator months earlier than the Office told the judge, a fact that undercut the very theory the Office was advancing. It joined a stipulation the Court found false, and it repeated the same misstatements in its filings. It never interviewed a single witness before conceding, and it opposed both an evidentiary hearing and the families’ efforts to see the file. Quoting the Third Circuit’s decision in an earlier concession case, the Court noted that “[c]andor is especially critical when proceedings are non-adversarial.” Wharton v. Superintendent Graterford SCI, 95 F.4th 140 (3d Cir. 2024).

The Court then walked through a series of other cases, including Wharton, Murchison, and Perrin, in which state and federal courts had rejected the Office's concessions or faulted its conduct. It concluded that the problem was not that the Office concedes relief, which a prosecutor must do when the law and facts require it, but that too many of its concessions have gone untested and have proven unreliable.

The New Rule for Philadelphia

To address that perceived pattern, the Court used its constitutional rulemaking power to require that, in any Philadelphia PCRA case where the DA’s Office concedes relief, the PCRA court give the Attorney General notice and an opportunity to intervene before ruling. The Attorney General does not replace the District Attorney and may well agree that relief is warranted (although this particular AG’s Office almost certainly will not). The point, the Court explained, is to restore an adversary to a one-sided proceeding so the judge can reach a reliable result. The Court grounded the Attorney General’s right to intervene in the Commonwealth Attorneys Act and limited the rule to Philadelphia because, in its words, that is where the problem is.

The Court divided. Justice Dougherty's opinion drew the votes of Justices Mundy, Brobson, and McCaffery, with Brobson and McCaffery also writing separately. Justice Donohue, joined by Chief Justice Todd, agreed that the grant of a new trial had to be reversed but would not have imposed the new intervention requirement. Justice Wecht dissented and would have declined to hear the case at all.

The Takeaway

Brown is a significant decision, and for defendants in Philadelphia it is a difficult one. For years, a concession from the District Attorney’s Office was often the surest route to relief in an old case. After Brown, that concession no longer clears the path. The Attorney General, which usually defends convictions reflexively and is far less sympathetic, can now enter the case as a full party and oppose relief, which means more litigation, more delay, and in many cases a contested hearing where there would have been none.

The decision also reaffirms principles that matter in every post-conviction case, not just the ones the District Attorney concedes. The PCRA’s time limits are jurisdictional, and a petitioner must plead and prove a timeliness exception for each claim, even a claim the Commonwealth agrees has merit. A prosecutor’s agreement is never a substitute for judicial review, and a judge faced with a real dispute of fact must hold a hearing. For defense counsel, the lesson is to build a complete record rather than lean on the Commonwealth's agreement. That means proving timeliness, gathering the underlying evidence, and preparing to litigate the claim on its merits even when no one is on the other side.

Finally, the Court split three ways, and two justices, including the Chief Justice, would not have created the new procedure. The Court described its rule as subject to future refinement through the normal rulemaking process, so this is likely not the last word on how Philadelphia’s concession cases will be handled. It is also unclear how long this rule will remain in effect, whether it is retroactive to cases on appeal, and whether it would survive even if Philadelphia one day elects a different District Attorney.

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