Com. v. Waller, N.

J-A26015-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
NAEM WALLER
Appellant : No. 2824 EDA 2019
Appeal from the PCRA Order Entered September 26, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0713201-2002
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED: MARCH 1, 2021
Appellant, Naem Waller, appeals from the post-conviction court’s
September 26, 2019 order denying, as untimely, his petition filed under the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful
review, we vacate the court’s order in part, affirm in part, and remand for an
evidentiary hearing limited to one issue.
The PCRA court summarized the facts and procedural history of
Appellant’s case, as follows:
On April 12, 2002, at approximately 11:00 pm, Brian Birkelback
(“Birkelback”) and a group of friends met on the corner of Rising
Sun Avenue and Gilham Avenue in Philadelphia, PA. As they were
sitting in a vehicle, two men approached the vehicle asking the
group if they wanted to buy marijuana. One of the passengers in
the vehicle noticed that one of the approaching men had a gun
and yelled that this was a robbery. A tussle ensued between
Birkelback and one of the men, [during which] the man pulled out
“ Former Justice specially assigned to the Superior Court.
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a gun and shot Birkelback. After the shooting[,] the shooters fled
in a gold Grand Prix. Birkelback was pronounced dead at 12:19
a.m.[] on April 13, 2002.
Appellant and co-defendant, Devin Rouse (“Devin”), were tried by
jury on November 14, 2003[,] and April 14, 2004. Each trial
ended in a hung jury. On December 17, 2004, before the
Honorable Kathryn Streeter Lewis, a jury found Appellant and
Devin guilty. Both were convicted for second[-]degree murder,
robbery, carrying a firearm without a license, and possessing
instruments of crime in connection to the killing of Birkelback. On
February 11, 2005, Appellant was sentenced to life imprisonment
without parole for the murder, one to three years for the firearm
conviction, and one to two years for the possession conviction,
each to run consecutive with each other but concurrent to the life
sentence.
Appellant appealed and, on April 12, 2006, the Pennsylvania
Superior Court’ affirmed his judgment of sentence.
[Commonwealth v. Waller, 902 A.2d 984 (Pa. Super. 2006)
(unpublished memorandum).] Appellant filed a petition for
allowance of appeal in the Pennsylvania Supreme Court, which
denied a/locatur on October 12, 2006. [Commonwealth v.
Waller, 909 A.2d 305 (Pa. 2006).] Appellant filed his first timely
PCRA petition on September 12, 2007. The [PCRA] court issued
a notice of intent to dismiss the petition pursuant Pa.R.Crim.P.
907 (“Rule 907 notice”). On April 17, 2008, the court formally
dismissed the PCRA petition after Appellant failed to respond to
the notice. Appellant timely appealed the PCRA dismissal and on
July 29, 2009, the Pennsylvania Superior Court affirmed the
dismissal. [Commonwealth v. Waller, 981 A.2d 938 (Pa Super.
2009) (unpublished memorandum). | On April 7, 2010,
Pennsylvania Supreme Court denied the petition for allowance of
appeal. [Commonwealth v. Waller, 992 A.2d 889 (Pa. 2010). ]
On May 27, 2015, Appellant filed his second /[p/ro se PCRA
petition, alleging newly[-] and after[-|discovered facts. Appellant
attached an Affidavit claiming that two other people were
responsible for the alleged murder, and he attached [an opinion
from the PCRA court addressing a PCRA petition filed by his] co-
defendant[,] Devin[,] ... that allegedly reveals previously
undisclosed mental health issues suffered by Ty-Ron [Rouse]
when he was acting as Commonwealth’s witness against
Appellant[,] and that Ty-Ron recanted his testimony from
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Appellant’s trial." On July 17, 2018, Appellant filed a counseled
amended petition, attaching just the Affidavit. On March 19,
2019, Appellant filed a second[,] counseled[,] amended PCRA
petition attaching both the Affidavit and [the] PCRA [court]
opinion [in Devin’s case]. On June 26, 2019, a PCRA hearing was
scheduled to allow counsel from both sides to argue the merits of
holding an evidentiary hearing. After argument and having
reviewed the PCRA petition, the Affidavit, Devin’s PCRA opinion,
and the Commonwealth[’s] pleading[,] this [c]ourt found an
evidentiary hearing was not necessary because there was no
genuine issue of material fact, the petition was facially untimely[, |
and Appellant could not avail himself of the newly and after
discovered facts exception. This [c]Jourt filed a Rule 907 notice on
August 27, 2019[,] to which Appellant filed an untimely response
on September 18, 2019. Consequently, on September 26, 2019,
this [c]ourt formally dismissed Appellant’s second amended PCRA
petition.
PCRA Court Opinion (PCO), 12/24/19, at 1-3.
1 In our memorandum decision on direct appeal, this Court described Ty-
Ron’s testimony at Appellant’s trial, as follows:
On May 13, 2002, Ty-Ron Rouse, Devin’s first cousin, was in
custody on another matter. Ty-Ron told the police that Devin told
him that he went to rob Brian with two other people. Brian jumped
out of the car and he thought he had a weapon so he shot him in
the back. Devin told him that he used a 9mm to shoot Brian, they
left the car on Roosevelt Boulevard[,] and he threw the gun in the
river. The police picked him up for questioning and he told them
that he was on his way to see a girl. Ty-Ron testified at trial
concerning what Devin told him as well as how he knew Brian,
Michael, Devin and [Appellant]. Ty-Ron stated that Devin knew
Michael because he bought prescription drugs from him. He also
testified that Devin and [Appellant] knew each other very well and
that [Appellant] had access to his mother’s car. (N.T.[,]
12/13/04[, at] 37-53).
Commonwealth v. Waller, No. 686 EDA 2005, unpublished memorandum
at 5 (Pa. Super. filed April 12, 2006) (citation omitted).
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Appellant filed a timely notice of appeal, and he also complied with the
court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The PCRA court filed its Rule 1925(a) opinion on
December 24, 2019. Herein, Appellant states two issues for our review:
1. Did the PCRA [c]Jourt abuse its discretion in dismissing
Appellant’s PCRA [p]etition without [an] evidentiary hearing with
respect to his after[-]|discovered evidence claim related to Timothy
Moses?
2. Did the PCRA [c]Jourt abuse its discretion in dismissing
Appellant’s PCRA [p]etition without [an] evidentiary hearing with
respect to his Brady'?] and after[-]discovered evidence claim
related to Ty[-]Ron Rouse?
Appellant’s Brief at 2.
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the
timeliness of Appellant’s petition, because the PCRA time limitations implicate
our jurisdiction and may not be altered or disregarded in order to address the
merits of a petition. See Commonweatith v. Bennett, 930 A.2d 1264, 1267
(Pa. 2007). Under the PCRA, any petition for post-conviction relief, including
a second or subsequent one, must be filed within one year of the date the
judgment of sentence becomes final, unless one of the following exceptions
set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
2 Brady v. Maryland, 373 U.S. 83 (1963).
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(b) Time for filing petition.--
(1) 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:
(i) 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;
(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; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States
or the Supreme Court of Pennsylvania after the time
period provided in this section and has been held by
that court to apply retroactively.
42 Pa.C.S. § 9545(b)(1)(i)-Ciii). Additionally, at the time Appellant’s petition
was filed, section 9545(b)(2) required that any petition attempting to invoke
one of these exceptions “be filed within sixty days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).3
Here, Appellant’s judgment of sentence became final in January of 2007,
and, thus, his present petition filed in May of 2015 is patently untimely.
Consequently, for this Court to have jurisdiction to review the merits thereof,
3 An amendment to section 9545(b)(2), which became effective on December
24, 2018, changed the language to require that a petition “be filed within one
year of the date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2). That amendment applies to any claims arising on or after
December 24, 2017.
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Appellant must prove that he meets one of the exceptions to the timeliness
requirements set forth in 42 Pa.C.S. § 9545(b).
In Appellant's first issue, he argues that he meets the newly-discovered
fact exception of section 9545(b)(1)(ii) based on the following statement he
received from Timothy Moses, which Appellant reproduces in his brief, as
follows:
Stan killed white boy Brian on Gilham St back in April of April [sic]
of 2002. He was w/ Jizz. What happened was white boy Chris owed
them some money from a prior drug deal and they went to his crib
on Gilham St that night and Stan though[t] Brian was Chris. They
went to get they money, Brian jumped outta the car and started
fighting Stan and got shot. Brian got shot mainly due to mistake
identity. Stan had on that polo hat w/ the shirt to match. He was
dressed for the party we was supposed to go to the bar that night.
It was supposed to be his belated b-day part[y] w just us the Brill
Street Boys. Jizz just had on a hoody. He was always street. We
was all apart of the Brill Street gang and the cops was questioning
us about that shooting when it first happened but then they left
us alone. I wasn’t there when it happened but I was them [sic] on
Brill St right before they went around there. They drove Jizz Gold
gran Prix tinted windowed over there and when they came back
Stan hopped out the car and said damn dog. I just shot the wrong
mothafucka we ain’t never go to the bar either that night. I’ve
struggled this situation for a couples years now and a big reasons
why I decided to come forward now is because I’m not that same
street thug no more. I’ve been in jail for multiple years and today
I’m changed man. I’ve completed violence prevention thinking for
a change and etc. My whole mind frame today is different. I been
knew this information because its what they told me and I knew
that wasn’t bullshiting because the next day everybody was
talking about it so I went around Gilham St and saw exactly what
they was taking about. Stan been dead for years now and I
could’ve come forward but I was living that thug life the code of
silence. When I read those newspaper articles about the
vindication if Eugene Giyard for a murder that he didn’t even do
what he spent 16 yrs behind bars for I know that dev would be
subject to the same if I kept my mouth shut. I’ve been looking at
this dude C Devin in his face for multiple years now knowing that
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he was booked for a murder that my boys committed so I feel as
though now is the right time. Back in 2007 (I think) Dev
approached me. I guess he found out who I was somebody out
Launcrest [sic] and asked me if I knew who really killed Brian. I
told him that I couldn’t help him and we never spoke about that
again But the truth is now before you so ain’t no reason to keep
the wrong dudes behind bars any longer the way the police was
questioning us and everybody about this murder, your bound to
find some [RRO49] other information to corroborate what it is that
I’m saying.
I Timothy Moses Jr do her-by state that nobody coerced or offered
me with any favorable gifts, money, services for my statement.
I was incarcerated and thougth [s/c] that I would be in more
trouble with the prosecutors.
[signed] Timothy Moses 4-3-15 145 Lewis St. Phil Lansdowne
PA 19050
[witness, private investigator, and notary’s signatures omitted |
Appellant’s Brief at 8-9 (citations to the reproduced record omitted).
To establish that Moses’s statement constitutes a newly-discovered fact
under section 9545(b)(1)(ii), Appellant must show that: (1) the information
provided by Moses was unknown to him, and (2) that he could not have
ascertained it by the exercise of due diligence. See Commonwealth v.
Brown, 141 A.3d 491, 500 (Pa. Super. 2016) (citation omitted). In explaining
how he has met these requirements, Appellant states:
The facts predicating this claim, that Stan and Jizz committed this
offense, were unknown to Appellant. Appellant was not at the
scene of the shooting and was unaware of who the real
perpetrators were. There was no evidence within Appellant’s
discovery to indicate that Stan committed the instant offense. Nor
were these facts a matter of public record. Indeed, [] Moses
specifically states that he never before disclosed this information
and has in fact lied in the past when asked. As such, the proffered
facts were previously unknown to him.
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The proffered facts could not have been ascertained sooner by
exercise of diligence. As [] Moses states, this is the first time he
is discussing this matter. Stan and the Brill Street Gang["]s
involvement has never been a matter of public record. Based on
[] Moses’s statement, [] Birkelback and the other occupants of the
car were not Stan’s intended target. Absent an eyewitness
identification or member of the Brill Street Gang revealing this
information, there was no basis for Appellant to discern Stan’s
involvement. Thus, Appellant[,] through [the] exercise of
reasonable diligence[,] was unable to discover the evidence of
Stan’s involvement prior to [] Moses’s revelation.
Further, the record demonstrates that after [] Moses reached out
to Appellant on or around March 20, 2015[,4] and Appellant did
not receive any further correspondence from [] Moses. Appellant
promptly retained a private investigator to locate [] Moses. On
April 3, 2015, merely two weeks after receiving [] Moses’s initial
vague correspondence, Appellant’s private investigator was able
to locate and secure a statement from [] Moses. Thus, the record
establishes that Appellant acted diligently in learning his proffered
facts once he learned of their potential existence.
Appellant’s Brief at 11-12 (citations omitted). Finally, Appellant points out
that he received Moses’s statement on April 3, 2015, and he filed his petition
within 60 days thereof, on May 27, 2015, thereby meeting the 60-day
requirement of section 9545(b)(2).
The PCRA court agreed with Appellant that he satisfied section
9545(b)(2). See PCO at 5. However, it did not address whether the
information provided by Moses was previously unknown to Appellant, or
whether he acted with due diligence in discovering it. Instead, the court
4 Appellant claims that on March 20, 2015, he “received a vague note from []
Moses that indicated he had information about Appellant’s case. Appellant
replied to [] Moses but to no avail. Appellant retained an attorney and private
investigator to try to locate [] Moses.” Appellant’s Brief at 7 (citations to the
record omitted).
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rejected his attempt to meet a timeliness exception on the basis that Moses’s
Affidavit contained inadmissible hearsay. The court disagreed with Appellant’s
assertion that Stan’s statements were admissible under the ‘excited utterance’
exception to the rule precluding hearsay. The court reasoned:
Hearsay is a statement a declarant made outside of “testifying at
the current trial or hearing” and offered “in evidence to prove the
truth of the matter asserted in the statement.” Pa.R.E. 801. The
declarant is the person who made the statement[,] and a
statement may be an oral or written assertion. Id. An affidavit
is inadmissible hearsay when offered for its truth, unless it fits
within a hearsay exception. Sprague v. Walter, 656 A.2d 890,
913 (Pa. Super. 1995).
Appellant argues that Stan’s declaration when exiting the vehicle
fits within Pa.R.E. 803(2) hearsay exception as an excited
utterance. An excited utterance is “[a] statement relating to a
startling event or condition, made while the declarant was under
the stress of excitement that it caused.” Pa.R.E. 803(2). It is
made “spontaneously and without opportunity for reflection.”
Commonwealth v. Boczkowski, 846 A.2d 75, 95 ([Pa.] 2004).
To establish an excited utterance, the proponent must show “first,
that [the declarant] had witnessed an event sufficiently startling
and so close in point of time as to render her reflective thought
processes inoperable and, second, that [the] [declarant’s]
declarations were a spontaneous reaction to that startling event.”
Commonwealth v. Stokes, 615 A.2d 704, 712 ([Pa.] 1992)
(quoting Commonwealth v. Green, 409 A.2d 371, 373-74 ([Pa. ]
1979)).
Here, Appellant has failed to establish that Stan’s alleged
statement to Moses was an excited utterance. The relevant part
of Moses’[s] statement, as it relates to Stan’s alleged confession,
is as follows: “I was there on Brill St [sic] right before they went
around there [where the shooting occurred]. They drove Jizz[’s]
gold Grand Prix [with] tinted windows over there and when they
came back Stan hopped out [of] the car and said, “damn dog[,] I
just shot the wrong mothafucka.[’]” Moses Affidavit at 1.
Moses’[s] statement does not establish Stan’s confession as an
excited utterance. It is clear that a botched robbery and a murder
can be deemed a “startling event or condition,” however, nowhere
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in Moses’[s] statement is there a showing that the confession was
made “so close in time as to render [declarant’s] reflective
thought processes inoperable,” or that the statement was a
“spontaneous reaction to that startling event.” Stokes, 615 A.2d
at 712. Furthermore, Moses’[s] statement makes no mention of
the declarant’s physical appearance or emotional state when he
arrived [at] Brill street. The statement does not reveal how much
time passed in between the shooting and Stan[’s] making the
alleged confession. And ultimately, there is no showing that the
statement was a “spontaneous reaction” to the murder. Stan’s
confession is not admissible hearsay based on the excited
utterance exception.!
1 The Affidavit does not provide an address, telephone, or
any other contact information for Stan.!>! The Affidavit also
does not explain the extent of his relationship with Stan or
Jizz, aside from the fact that they used to be part of the
same alleged gang.
Since Stan’s alleged confession is inadmissible hearsay and does
not avail itself of any hearsay exception[,] it would not implicate
section 9545(b)(1)(ii), exception to the PCRA_ timeliness
requirement, and the court ... lack[s] jurisdiction to address this
claim.
PCO at 7-8.
On appeal, Appellant insists the court’s decision is erroneous,
contending:
[O]ur Supreme Court explained that “[n]o definite time-limit or
distance from the crime or event in issue can be fixed by the
Courts to determine what spontaneous utterances are admissible;
each case must depend on its own facts and circumstances.”
Commonweatith v. Noble, [88 A.2d 760, 763] (Pa. 1952). This
> The court states that Appellant failed to provide contact information for
“Stan,” but this appears to be a typo considering the court’s next sentence.
If the court did intend to refer to Stan, we fail to see why Stan’s contact
information was necessary, given that he is now deceased. Additionally, if the
court meant to refer to Moses, as we presume, Appellant points out that he
provided Moses’s address, date of birth, and the proposed substance of his
testimony in his pro se PCRA petition. See PCRA Petition, 5/27/15, at 6.
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jurisprudence is embodied in the Comment to Pa.R.E. 803(2),
which states that the statement (1) need not describe or explain
the startling event or condition; it need only relate to it, and (2)
need not be made contemporaneously with or immediately after,
the startling event. It is sufficient if the stress of excitement
created by the startling event or condition persists as a substantial
factor in provoking the utterance. See, Pa.R.E. 803(2) Comment.
“In assessing a statement offered as an excited utterance, the
court must consider, among other things, whether the statement
was in narrative form, the elapsed time between the startling
event and the declaration, whether the declarant had an
opportunity to speak with others and whether, in fact, she did so.”
Commonwealth v. Carmody, 799 A.2d 143, 147-48 (Pa. Super.
2002) (finding no excited utterance exception for a victim’s
written statement that “was given subsequent to several
intervening events,” where the victim gave verbal statements to
an officer, then was taken into another room to give a written
statement). However, the “crucial question, regardless of the
lapse of time, is whether, at the time the statement was made,
the nervous excitement continues to dominate while the reflective
process[es] remain[] [in] abeyance.” Commonwealth v. Gore,
396 A.2d 1302, 1305 (Pa. Super. 1978).
Here, [] Moses’s statement establishes that Stan’s confession was
related to the startling event, the shooting, and was made while
Stan was still under the stress of the event. [] Moses’s statement
reflects that the men were supposed to go out to the bar that
night, Stan and Jizz left to go collect a debt, and that when Stan
and Jizz returned the same night, Stan “hopped” out of the car
and confessed that he “just shot the wrong muthafuckal[,]” and
that the shooting impacted Stan in such a way that the men did
not go to the bar. [] Moses’s statement and putative testimony
confirm that it was the same night as the shooting, because the
following day [] Moses went to view the crime scene on Gilham
Street to confirm what Stan had said. The location of the shooting
and Brill Street are both in the Lawncrest neighborhood of north
Philadelphia. Stan “hopping” out of the car reflects a physical
manifestation of the stress that he was under. See [i]d. Coupled
with his confession that it had “just” happened and the fact that
the gang changed their plans from going to the bar, the
reasonable inference based on [] Moses’s statement is that Stan
went directly from Gilham Street to Brill Street and was still under
the stress of the event when he made the confession to [] Moses.
See [i]d[.]; ... Gore, supra (regardless of lapse of time, to
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determine whether a declaration was an excited utterance, is
whether the nervous excitement continues to dominate the
reflective process).
As such, Appellant has met his burden of pleading and proving his
proffered evidence is not inadmissible hearsay. Reversal and
remand for an evidentiary hearing are warranted.
Appellant’s Brief at 14-16 (some citations omitted).
Given Appellant’s argument, we conclude that the PCRA court erred by
finding, based only on Moses’s Affidavit, that Stan’s statements were not
excited utterances. Initially, the court is correct that “[a] claim which rests
exclusively upon inadmissible hearsay is not of a type that would implicate the
[newly-discovered fact] exception to the timeliness requirement, nor would
such a claim, even if timely, entitle [the petitioner] to relief under the PCRA.”
Commonwealth v. Brown, 141 A.3d 491, 501 (Pa. Super. 2016) (quoting
Commonwealth v. Yarris, 731 A.2d 581, 592 (Pa. 1999)). However, based
on the record as it currently stands, we are compelled to disagree with the
court’s decision that “nowhere in Moses’[s] statement is there a showing that
the confession was made so close in time as to render [his] reflective thought
processes inoperable, or that the statement was a spontaneous reaction to
that startling event.” PCO at 8 (internal quotation marks and citation
omitted). Rather, we concur with Appellant that Moses’s Affidavit at least
suggests that Stan made the statement shortly after the shooting, and that
he did so while in an excited state. The more specific information about Stan’s
physical appearance and his emotional condition, and the exact amount of
time that elapsed between the shooting and his confession, are all questions
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of material fact that warrant an evidentiary hearing. See Commonwealth
v. Grayson, 212 A.3d 1047, 1054-55 (Pa. Super. 2019) (“Generally, if there
are factual issues to be- resolved, the PCRA court should hold
an evidentiary hearing.”) (internal quotation marks and citations omitted).
Therefore, we vacate the portion of the PCRA court’s order that denied
Appellant’s claim premised on Moses’s Affidavit and remand for an evidentiary
hearing on that issue. If Appellant proffers sufficient evidence to prove that
Stan’s statements were excited utterances, the PCRA court shall then decide
if the information contained in Moses’s Affidavit was unknown to Appellant,
and if he exercised due diligence in obtaining it, as the court never made
findings on these issues. Finally, if the court concludes that Appellant has
satisfied these requirements of section 9545(b)(1)(ii), it shall then determine
if a new trial is warranted based on this after-discovered evidence. See
Commonwealth v. Padillas, 997 A.2d 356, 363 (Pa. Super. 2010) (“To be
granted a new trial based on the basis of after-discovered evidence[, the
petitioner] must demonstrate that the 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) 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.”) (citations omitted).
In Appellant’s second issue, he argues that he has discovered new
evidence that Ty-Ron Rouse has a serious mental illness, and that he recanted
his testimony at trial. He claims that the Commonwealth violated Brady by
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failing to disclose Ty-Ron’s mental health issues, and that this new evidence,
combined with Ty-Ron’s recantation, warrants a new trial.
In assessing Appellant’s argument, we have reviewed the record,
pertinent case law, the Commonwealth’s brief, and the PCRA court’s opinion.
We conclude that the PCRA court’s analysis correctly disposes of Appellant’s
Brady and after-discovered evidence claims regarding Ty-Ron’s mental health
issues and his purported recantation. See PCO at 8-13. Thus, we adopt this
portion of the PCRA court’s opinion in affirming the portion of the court’s order
that denied Appellant relief based on his claims involving Ty-Ron Rouse.
Order vacated in part, affirmed in part. Remanded for an evidentiary
hearing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Es¢
Prothonotary
Date: 3/1/21
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Circulated 02/19/2021 03:05 PM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION — CRIMINAL SECTION
*
COMMONWEALTH OF : CP-51-CR-0713201-2002
PENNSYLVANIA :
v. : FILED
NAEM WALLER, : DEC 24 2019
Appellant : Office of Judicial Records
Appeais/Post Trial
OPINION
Ransom, J December 24, 2019
FACTUAL AND PROCEDUAL HISTORY
Appeilant, Naem Waller (“Appellant”), appeals, through counsel, from the September 26,
2019, Order dismissing his second petition seeking collateral relief pursuant the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-5456. Appellant relied on the newly and after
discovered facts exception of the PCRA, Section 9545(b)(1)(ii). Pursuant to Section 95 45(b)(DGd,
Appellant claims in his second petition that; (1) an Affidavit of Statement (“the Affidavit”) from,
an individual named Timothy Moses (“Moses”), reveals that two other people were the true
perpetrators of the alleged murder contains newly and after-discovered facts, (2) previously
undisclosed mental health records of a Commonwealth witness, Ty-Ron Rouse (“Ty-Ron”), is
newly and after discovered Brady evidence, and, (3) that Ty-Ron recanted his testimony that he
gave at Appellant’s trial is newly and after discovered facts.
This Court determined that Appellant’s petition was facially untimely, without merit, and
that none of the statutory exceptions applied. Therefore, the Court dismissed the petition as
untimely,
A brief summary of the factual and procedural history follows. On April 12, 2002, at
approximately 11:00 pm, Brian Birkelback (“Birkelback”) and a group of friends met on the corner
of Rising Sun Avenue and Gilham Avenue in Philadelphia, PA. As they were sitting in a vehicle,
two men approached the vehicle asking the group if they wanted to buy marijuana. One of the
passengers in the vehicle noticed that one of the approaching men had a gun and yelled that this
was a robbery. A tussle ensued between Birkelback and one of the men, where the man pulled out
a gun and shot Birkelback. After the shooting the shooters fled in a gold Grand Prix. Birkelback
was pronounced dead at 12:19 a.m., on April 13, 2002.
Appellant and co-defendant, Devin Rouse (“Devin”), were tried by jury on November 14,
2003 and April 14, 2004. Each trial ended in a hung jury. On December 17, 2004, before the
Honorable Kathryn Streeter Lewis, a jury found Appellant and Devin guilty. Both were convicted
for second degree murder, robbery, carrying a firearm without a license, and possessing
instruments of crime in connection to the killing of Birkelback. On February 11, 2005, Appellant
was sentenced to life imprisonment without parole for the murder, one to three years for the firearm
conviction, and one to two years for the possession conviction, each to run consecutive with each
other but concurrent to the life sentence.
Appellant appealed and, on April 12, 2006, the Pennsyivania Superior Court affirmed his
judgment of sentence. Appellant filed a petition for allowance of appeal in the Pennsylvania
Supreme Court, which denied a/locatur on October 12, 2006. Appellant filed his first timely PCRA
petition on September 12, 2007. The trial court issued a notice of intent to dismiss the petition
pursuant Pa.R.Crim.P.907 (“Rule 907 notice”). On April 17, 2008, the court formally dismissed
the PCRA petition after Appeilant failed to respond to the notice. Appellant timely appealed the
PCRA dismissal and on July 29, 2009, the Pennsylvania Superior Court affirmed the dismissal.
On April 7, 2010, Pennsylvania Supreme Court denied the petition for allowance of appeal.
On May 27, 2015, Appellant filed his second Pro se PCRA petition, alleging newly and
after discovered facts. Appellant attached an Affidavit claiming that two other people were
responsible for the alleged murder, and he attached co-defendant Devin’s PCRA opinion that
allegedly reveals previously undisclosed mental health issues suffered by Ty-Ron when he was
acting as Commonwealth’s witness against Appellant and that Ty-Ron recanted his testimony from
Appellant’s trial. On July 17, 2018, Appellant filed a counseled amended petition, attaching just
the Affidavit. On March 19, 2019, Appellant filed a second counseled amended PCRA petition
attaching both the Affidavit and Devin’s PCRA opinion, On June 26, 2019, a PCRA hearing was
scheduled to allow counsel from both sides to argue the merits of holding an evidentiary hearing.
After argument and having reviewed the PCRA petition, the Affidavit, Devin’s PCRA opinion,
and the Commonwealth pleading this Court found an evidentiary hearing was not necessary
because there was no genuine issue of material fact, the petition was facially untimely and
Appellant could not avail himself of the newly and after discovered facts exception. This Court
filed a Rule 907 notice on August 27, 2019 to which Appellant filed an untimely response on
September 18, 2019. Consequently, on September 26, 2019, this Court formally dismissed
Appellant’s second amended PCRA petition. Appellant appeals the dismissal.
In the event that the Appellate Court rules that an analysis of the issues raised on appeal is
appropriate, the analysis by the trial court is set forth below.
ISSUES
I, Did this Court properly dismiss without an evidentiary hearing the issue of Timothy
Moses’ Affidavit of Statement as newly and after discovered evidence because his
testimony is inadmissible under any hearsay exception?
II. Did this Court properly dismiss without an evidentiary hearing Defendant’s claim that
Ty-Ron Rouse’s undisclosed mental illness is newly and after discovered Brady material?
I. Did this Court properly dismiss without an evidentiary hearing Defendant’s claim that
Ty-Ron Rouse’s recantation is newly and after discovered evidence?
DISCUSSION
A PCRA petition must be filed within one year of the date the judgment of sentence
becomes final. 42 Pa.C.S.A. § 9545(b)(1). For the purposes of the PCRA, “a judgment becomes
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.” Id. § 9545(b)(3). The finality of the conviction consideration is the same for second
and any subsequent PCRA petitions. Commonwealth v. Dehart, 730 A.2d 991, 993 (Pa.Super.
1999),
Here, Appellant’s conviction became final on January 12, 2007, ninety days after the
Supreme Court of Pennsylvania denied a//ocatur and time to petition for certiorari with the US
Supreme Court expired. Appellant filed the instant pro se PCRA on May 29, 2015, more than
seven years after the conviction became final. His PCRA petition is facially untimely.
A PCRA petition however, may be filed after expiration of the timeliness requirement if
the Appellant alleges and proves one of the statutory exceptions. Prior October 24, 2018, a
petitioner must have filed the petition under an exception “within 60 days of the time the claim
could have been presented.” Id. § 9545(b)(2) (Nov. 17, 1995), Post October 24, 2018, and
applied retroactively to claims on or before October 24, 2017, a petitioner must file the petition
under an exception “within one year of the date the claim could have been presented.” Id. §
9545(b)(2) (Oct. 24, 2018).
Appellant received Moses’ statement in April of 2015, therefore, the pre-amended statute
applies. The statement was taken and notarized on April 3, 2015 and Appellant filed his pro se
PCRA on May 27, 2015. There is a fifty-two day time period between the time the statement was
taken and the PCRA petition was filed. Appellant’s attorney mailed the opinion revealing Ty-
Ron’s mental illness and alleged recantation on April 14, 2015. That is a forty-one day period
between the mailing and the filing of the pro se petition. Both time periods fit within the sixty
day filing requirement of submitting a claim under a timeliness exception. Therefore, the PCRA
petition is timely for consideration of whether the timeliness exception of section 9545(b)(2)
(Nov. 17, 1995) applies.
Appellant relies on section 9545(b)(1)(ii). To raise a substantive after-discovered-facts
claim by a facially untimely PCRA, the Appellant “must first establish jurisdiction by pleading
and proving an exception to the PCRA time-bar.” Commonwealth v, Brown, 111 A.3d 171, 179
(Pa.Super. 2015). Section 9545(b)(1)Gi) does not “require any merits analysis of the underlying
[atter-discovered-facts] claim.” Commonwealth v. Bennet, 930 A.2d 1264, 1271 (2007)
(clarification added). To establish jurisdiction pursuant section 9545(b)(1)(ii), a petitioner must
allege and prove, “(1) the facts upon which the claim was predicated were unknown; and (2)
could not have been ascertained by the exercise of due diligence.”. Bennett, 930 A.2d at 1272
(internal emphasis omitted). “Due diligence demands that the petitioner take reasonable steps to
protect his own interests.” Brown, 111 A.3d at 176. “A petitioner must explain why he could not
have learned the new fact(s) earlier with the exercise of due diligence. Id. “This rule is strictly
enforced,” Id. “Additionally, the focus of this exception ‘is on the newly discovered facts, not on
a newly discovered or newly willing source for previously known facts.’” Id. (quoting
Commonwealth v. Marshall, 947 A.2d 714, 720 (2008)). However, “a claim which rests
exclusively upon inadmissible hearsay is not of a type that would implicate the after-discovered
facts exception to the timeliness requirement.” Commonwealth v. Yarris, 731 A.2d 581, 592
(1999). As such, Appellant’s first claim fails.
I. Timothy Moses’ Affidavit of Statement is based on inadmissible hearsay that does not
avail itself of any hearsay exception which leayes this court without jurisdiction to hear
this claim.
Appellant’s first contention is that the court erred in dismissing the Affidavit as newly
and after discovered facts. To understand the court’s decision, a summary of the Affidavit
follows:
In the Affidavit, Moses alleges that he is a former member of the Brill Street Gang. He
further alleges that two members of the gang, unrelated to the Appellant, were responsible for the
robbery and murder of Brian Birkelback. According to Moses, the shooter was a man named
“Stan” and Stan was accompanied by a man named “Jizz.” Moses denies any involvement in the
robbery and murder. He alleges that the murder was a result of mistaken identity; Stan mistook
Birkelback for a man named “Chris,” who owed Stan money from a previous drug deal. Jizz
drove Stan to the location of the murder in his gold Grand Prix with tinted windows, the same
vehicle described by the witnesses of the murder. Moses states that after the alleged shooting
Stan and Jizz drove back to Brill Street and when Stan exited the vehicle he told Moses that he
had “shot the wrong mothafucka,” The following day Moses claims that “everybody was talking
about [the shooting] so [he] went around Gilham Street and saw exactly what they was [sic]
talking about.” He further asserts that Stan is deceased and that he does not know Jizz’s real
identity. Timothy Moses Affidavit Of Statement at 1-2.
Moses’ Affidavit makes three assertions: (1) Stan and Jizz were responsible for the
murder and robbery of Brian Birkelback; (2) that Appellant was not at the scene of the crime;
and (3) Appellant was not affiliated with the individuals who committed the murder and robbery,
Moses admits he was not an eyewitness to the murder, therefore, he lacks firsthand knowledge of
the events that transpired the night of the murder and relies on secondhand information to
recount what he alleges in his affidavit. Id. at 1. Appellant’s first claim stems from a hearsay
statement by Stan, an alleged former gang affiliate of Moses. According to Moses, sometime on
the night of the shooting, Stan returned to Brill Street and after he exited the gold Grand Prix he
confessed to Moses that he shot the wrong person. Moses allegedly remembers that night
because members of the gang were supposed to go out to celebrate Stan’s belated birthday at a
bar, Id. at 2,
Hearsay is a statement a declarant made outside of “testifying at the current trial or
hearing” and offered “in evidence to prove the truth of the matter asserted in the statement.”
Pa.R.E. 801. The declarant is the person who made the statement and a statement may be an oral
or written assertion. Id, An affidavit is inadmissible hearsay when offered for its truth, unless it
fits within a hearsay exception. Sprague v. Walter, 656 A.2d 890, 913 (Pa.Super. 1995).
Appellant argues that Stan’s declaration when exiting the vehicle fits within Pa.R.E.
803(2) hearsay exception as an excited utterance. An excited utterance is “[a] statement relating
to a startling event or condition, made while the declarant was under the stress of excitement that
it caused.” Pa.R.E. 803(2). It is made “spontaneously and without opportunity for reflection.”
Commonwealth v. Boczkowski, 846 A.2d 75, 95 (2004). To establish an excited utterance, the
proponent must show “first, that [the declarant] had witnessed an event sufficiently startling and
so close in point of time as to render her reflective thought processes inoperable and, second, that
[declarant’s] declarations were a spontaneous reaction to that startling event.” Commonwealth v.
Stokes, 615 A.2d 704, 712 (1992) (quoting Commonwealth v. Green, 409 A.2d 371, 373-74
(1979)).
Here, Appellant has failed to establish that Stan’s alleged statement to Moses was an
excited utterance. The relevant part of Moses’ statement, as it relates to Stan’s alleged
confession, is as follows: “I was there on Brill St [sic] right before they went around there [where
the shooting occurred]. They drove Jizz gold Grand Prix tinted windows over there and when
they came back Stan hopped out the car and said, “damn dog I just shot the wrong mothafucka.”
Moses Affidavit at 1. Moses’ statement does not establish Stan’s confession as an excited
utterance. It is clear that a botched robbery and a murder can be deemed a “startling event or
condition,” however, nowhere in Moses’ statement is there a showing that the confession was
made “so close in time as to render {declarant’s] reflective thought processes inoperable,” or that
the statement was a “spontaneous reaction to that startling event.” Stokes, 615 A.2d at 712.
Furthermore, Moses’ statement makes no mention of the declarant’s physical appearance or
emotional state when he arrived to Brill street. The statement does not reveal how much time
passed in between the shooting and Stan making the alleged confession, And ultimately, there is
no showing that the statement was a “spontaneous reaction” to the murder. Stan’s confession is
not admissible hearsay based on the excited utterance exception!,
Since Stan’s alleged confession is inadmissible hearsay and does not avail itself of any
hearsay exception it would not implicate section 9545(b)(1)(ii), exception to the PCRA
timeliness requirement, and the court would lack jurisdiction to address this claim.
I. Appellant’s Brady claim that Ty-Ron Rouse’s undisclosed mental health issues were
mental health impeachment evidence is without merit.
Appellant’s Brady claim is timely raised under section 9545(b)(1)(ii) newly discovered
1 The Affidavit does not provide an address, telephone, or any other contact information for Stan. The Affidavit also
does not explain the extent of his relationship with Stan or Jizz, aside from the fact that they used to be part of the
same alleged gang.
facts exception as he has shown that the facts upon which the claim was predicated were
unknown and could not have been ascertained by the exercise of due diligence’. Therefore the
court has jurisdiction to address the substance of Appellant’s Brady claim.
To establish a Brady claim, the Appellant must “establish that the evidence withheld was
favorable to him, i.e., that it was exculpatory or had impeachment value; the evidence was
suppressed by the prosecution; and prejudice resulted.” Commonwealth v. Miller, 987 A.2d 638,
655 (2009). Prejudice is established with a showing that “evidence in question was material to
guilt or punishment, and that there is a reasonable probability that the result of the proceeding
would have been different but for the alleged suppression of the evidence.” Id. (quoting
Commonwealth v. James Dennis, 950 A.2d 945, 966 (2008) (internal citations and quotation
marks omitted)), “The mere possibility that an item of undisclosed information might have
helped the defense, or might have affected the outcome of the trial, does not establish materiality
in the constitutional sense.” Id. (quoting Commonwealth v. Chambers, 807 A.2d 872, 887
(2002)). The Appellant will fail to establish a Brady claim if he “either knew of the existence of
the evidence in dispute or could have discovered it by exercising reasonable diligence.” Id.Ty-Ron is Appellant’s co-defendant, Devin’s cousin. Ty-Ron was in custody on an
unrelated matter when he told police that Devin confided in him that he had committed the
Birkelback robbery with two other people. Devin filed a PCRA petition to which the PCRA court
filed an opinion granting a new trial. An issue that Devin raised in that petition was that the
Commonwealth failed to disclose that Ty-Ron “had been suffering from severe mental health
problems” when acting as a Commonwealth witness for the trial. Devin subsequently dropped
2 Appellant pled and it was uncontested that Appellant had not previously known about Ty-Ron’s mental health
issues and that he did not receive this information until his previous attorney, Norris Gelman, sent him a copy of
Devin Rouse’s PCRA opinion. After he received the opinion, Appellant filed a PCRA petition claiming a timeliness
exception.
this claim because he was unsuccessful in locating Ty-Ron for the hearing. The court’s opinion
did not reveal the type or severity of mental health problem that Ty-Ron may have been suffering
at that time, or whether it affected his ability to perceive or recall events accurately.
Commonwealth v. Rouse, PCRA Court Opinion, 3020 EDA 2614, at 3-8.
Mental health disabilities on their own are not relevant or admissible to impeach a
witness's credibility unless they “impair a witness’s ability to observe, recall, or report events,”
Commonwealth v, Miller, 212 A.3d 1114, 1125 (Pa.Super. 2018) (quoting Commonwealth v.
Davido, 106 A.3d 611, 637 (2014)). The Commonwealth is not required by Brady to disclose
mental health records that do not possess mental health impeachment evidence. Id. at 1125-26,
Appellant asserts that Devin’s PCRA opinion revealed impeachable evidence concerning
Ty-Ron Rouse, who was an important Commonwealth witness in Appellant’s trial. Appellant has
failed to support his assertion that Ty-Ron’s “severe mentai health problem” was the kind of
impeachable mental health evidence that would trigger Brady. Appellant asserts that simply
because Ty-Ron had mental health problems that it is on its own impeachable evidence. This
assertion lacks merit. The Devin opinion does not reveal whether Ty-Ron’s mental health issue
affected his “ability to observe, recall, or report events,” In fact, it is an issue that court did not
address or investigate because it is a claim Devin dropped when he was unable to locate his
cousin, T'y-Ron, to testify at his PCRA hearing. Nothing on the record, and nothing that the
Appellant provided, indicates the Ty-Ron’s mental health problem was of the sort that would
trigger Brady. As such, Appellant has failed to show that Ty-Ron’s mental health problem had
impeachable value and his Brady claim must fail because it lacks merit.
Ill. Ty-Ron Rouse’s undisclosed mental health issue is not newly and after discovered facts.
Appellant’s claim is timely for consideration pursuant section 9545(b)(1)(ii), for the same
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facts as the Brady claim?, meaning this court has jurisdiction to consider the substance of this
claim.
In order to meet the timeliness exception of the PCRA as after-discovered facts,
Appellant must demonstrate that the facts:
(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) 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. Pagan, 950 A.2d 270, 292 (2008).
The test is conjunctive and Appellant must satisfy each element of the exception. Id. at
293. Appellant’s claim fails this burden.
While Appellant has shown that these facts could not have been obtained prior to the
conclusion of trial by exercise of due diligence and that it is not merely corroborative or
cumulative, he fails to meet the two additional elements. Appellant, through counsel, argued at
the PCRA hearing on June 26, 2019, that “the mental health evidence could be used as
impeachment evidence about [Ty-Ron’s] ability to perceive and tell the truth.” N.T., 6/26/2019,
at 6. This clearly demonstrates that the mental health report would be used solely to impeach the
credibility of the witness. Therefore, this evidence fails to meet the requirements of being after-
discovered facts pursuant the timeliness exception of the PCRA.
IV. Ty-Ron Rouse’s recantation is not newly and after discovered facts.
Appellant’s claim is timely pursuant section 9545(b)(1)(ii), for the same facts as the
3 Infra, note 2.
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previous claims’, meaning this court has jurisdiction to evaluate the merit of this claim.
Appellant’s assertion that Ty-Ron’s “recantation” would entitle him to PCRA relief is
misguided. Appellant claims that Devin’s PCRA opinion revealed evidence that Ty-Ron recanted
his statement in the case against Devin Rouse. That assertion is not supported by the Devin
Rouse PCRA opinion. According to the PCRA opinion, the first time Devin raised the issue of
Ty-Ron’s “recantation” was on November 30, 2010, in his “Petition to Remand to Augment
PCRA Record and for Hearing Regarding After-Discovered Evidence,” In that petition, among
other issues, Devin claimed that Ty-Ron had signed a false statement to deflect blame from
himself. The Superior Court denied this petition but permitted him to raise new issues in his
appellate brief. On November 21, 2011, the Superior Court, subsequently, vacated the PCRA
court’s order denying Devin’s petition and ordered an evidentiary hearing on the new claims of
ineffectiveness of counsel and after-discovered facts. On March 9, 2012, Devin filed an amended
PCRA petition, where he again claimed, among other issues, that Ty-Ron gave false testimony.
On January 27, 2014, an evidentiary hearing was held to address Devin’s claims but the court did
not address the false testimony claim. Devin’s PCRA petition for relief was granted on the issue
of ineffectiveness of counsel to preserve and present Appellee’s due process claim. PCRA Court
Opinion, 3020 EDA 2014, at 6-8.
Following the elements of the after-discovered facts test, the Appellant has failed to
establish that Ty-Ron’s recantation would pass the test. It is uncontested that Appellant could not
have obtained this evidence prior to conclusion of trial or with the exercise of due diligence.
Appellant, however, has not established that this evidence is not cumulative or corroborative of
his assertion that he is innocent. He has not established that this evidence is not solely for
4 Infra, note 2. Devin Rouse’s PCRA opinion also revealed that along with Ty-Ron’s mental health nondisclosure
issuc, he also alleged that “Ty-Ron had signed a false statement in an attempt to deflect blame from himself.”
12
impeachment of Ty-Ron’s credibility. Most importantly, Appellant has not shown that this
recantation would result in a different verdict if a new trial was granted, in light of the fact that at
the June 26, 2019 PCRA hearing, the Commonwealth revealed that Ty-Ron had recanted his
recantation and re-adopted his previous testimony. N.T., 6/26/19, at 11-12.
Ty-Ron’s recantation would not constitute newly and after-discovered facts requirements
of the PCRA. As such, this claim is untimely and without merit.
Vv. Regardless of the merit of the claims, Appellant is not entitled to an evidentiary hearing.
A PCRA court in not required to grant a PCRA Appellant an evidentiary hearing to
develop a factual basis for his claims. Commonwealth v. Maddrey, 205 A.2d 323, 328 (Pa.Super.
2019). “It is well settled that there is no absolute right to an evidentiary hearing on a PCRA
petition, and if the PCRA court can determine from the record that nu genuine issues of material
fact exist, then a hearing is not necessary.” Id, (quoting Commonwealth v. Jones, 942 A.2d 903,
906 (Pa.Super. 2008)) (internal brackets and quotation marks omitted). “To obtain reversal of a
PCRA court’s decision to dismiss a petition without a hearing, an appellant must show that he
raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or
that the court otherwise abused its discretion in denying a hearing.” Id, (quoting Commonwealth
y. Hanible, 30 A.3d 426, 452 (2011).
At the June 26, 2019, PCRA hearing Appellant, through counsel, requested an
evidentiary hearing to flesh out “factual issues as to whether [Stan’s confession] is an excited
utterance.” N.T., 6/26/19, at 5. Appeliant further claims that the court erred in dismissing his
PCRA petition, in whole, without an evidentiary hearing. As stated above, Appellant is not
entitled to an evidentiary hearing, as this court determined for reasons set forth above that no
genuine issue of material facts existed in determining the merits of Appellant’s claims. As such,
13
' the court dismissed Appellant’s petition without an evidentiary hearing having determined that
Moses’ Affidavit of Statement was outside of the court’s jurisdiction and the other claims were
untimely, having failed to establish newly and after discovered facts.
Appellant was not entitled to an evidentiary hearing.
CONCLUSION
Based on the foregoing analysis, denial of the PCRA petition should be affirmed.
BY THE COURT:
t
Ransom, J.
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