Com. v. Thomas, M. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARQUIS THOMAS :
:
Appellant : No. 2555 EDA 2022
Appeal from the PCRA Order Entered September 28, 2022
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0001721-2011
BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*
DISSENTING STATEMENT BY DUBOW, J.: FILED OCTOBER 20, 2023
I would affirm the Order dismissing the petition without a hearing as
untimely. Because Appellant failed to plead in his PCRA Petition why he was
unable to obtain the information earlier with the exercise of due diligence, I
conclude he has not satisfied the timeliness exception provided in Section
9545(b)(ii) and the trial court properly dismissed the Petition.
The PCRA provides, in relevant part, that “Any petition under this
subchapter, including a second or subsequent petition, shall be filed within
one year of the date the judgment becomes final, unless the petition alleges
and the petitioner proves that . . . (ii) the facts upon which the claim is
predicated were unknown to the petitioner and could not have been
ascertained by the exercise of due diligence[.]” 42 Pa.C.S. § 9545(b)(ii). As
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* Retired Senior Judge assigned to the Superior Court.
J-S20035-23
the Majority recognizes, the mere assertion that a petitioner only recently
learned of the existence of the newly-discovered evidence does not satisfy the
Section 9545(b)(1)(ii) timeliness exception. See MO at 10, citing
Commonwealth v. Sanchez, 204 A.3d 524, 526-27 (Pa. Super., 2019),
Commonwealth v. Pew, 189 A.3d 486, 489-90, Commonwealth v.
Priovolos, 746 A.2d 621, 625-26 (Pa. Super. 2000). In addition, although
the trial court addressed the issue as “after-discovered evidence,” a
determination on that basis occurs only if the petition is deemed timely.1 See
Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017) (recognizing the
distinction between the newly discovered facts exception provided in Section
9545(b)(ii) and the after-discovered evidence basis for relief delineated in
Section 9543).
Here, Appellant did not allege that the unknown facts could not have
been ascertained by the exercise of due diligence. Rather, Appellant submits
the following statement:
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1 Where a petition is “otherwise timely, to prevail on an after-discovered
evidence claim for relief under subsection 9543(a)(2)(vi), a petitioner must
prove that (1) the exculpatory evidence has been discovered after trial and
could not have been obtained at or prior to trial through reasonable diligence;
(2) the evidence is not cumulative; (3) it is not being used solely to impeach
credibility; and (4) it would likely compel a different verdict.” Burton, 158
A.3d at 630, citing Commonwealth v. D'Amato, 856 A.2d 806, 823 (Pa.
2004). Here, as the Majority notes, without a finding that Appellant’s petition
was timely, the court did not have jurisdiction to address whether the evidence
met the standards required for relief under Section 9543(a)(vi).
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[S]uch evidence could not have been ascertained at the time of
trial by the exercise of due diligence because the witness’s new
statement comes forward after revealing the prosecution required
the witness to violate the judge’s sequestration order [imposed
during the preliminary hearing] in order to get custody of her
daughter.
PCRA Petition, filed 9/7/21/ at ¶ 16 (emphasis added).
Appellant fails to acknowledge the timeliness requirements set forth in
Section 9545(b)(ii). The new evidence here is the witness statement given to
the private investigator in 2021. The timeliness exception requires a
petitioner to plead why he could not have obtained that statement prior to the
passage of the nine years following his conviction. In this case, Appellant does
not provide an explanation, but rather only makes a bald statement in the
PCRA petition that Appellant learned of the existence of the statement. This
does not satisfy the requirements necessary to establish the applicability of
the Section 9545(b)(ii) exception. Sanchez, 204 A.3d at 526-27.
Accordingly, I would affirm the PCRA court’s order dismissing the
petition as untimely.
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