J-S04022-16

                               2016 PA Super 73

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                    Appellee               :
                                           :
                    v.                     :
                                           :
JAMIE BROWN,                               :
                                           :
                     Appellant             :     No. 152 WDA 2015

            Appeal from the PCRA Order of December 22, 2014
              In the Court of Common Pleas of Beaver County
            Criminal Division at No(s): CP-04-CR-0000913-2001

BEFORE:     BOWES, OLSON and STRASSBURGER,* JJ.

CONCURRING OPINION BY STRASSBURGER, J.:                     FILED MARCH 24, 2016

      I join the Majority Opinion, which, inter alia, concludes that Anthony

Brown’s affidavit does not enable Appellant to satisfy the newly-discovered-

fact exception of the PCRA. In reaching its conclusion, the Majority explains

that “Appellant failed to plead and prove that he acted with due diligence in

obtaining Brown’s affidavit.” Majority Opinion at 15. I agree.

      However, the Majority also observes 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.” Id. (quoting Commonwealth v. Yarris, 731 A.2d 581, 592 (Pa.

1999)). The Majority goes on to reason that

      [t]he alleged confession by Tommy Lemon is hearsay as it is an
      out-of-court statement offered for the truth of the matter


*Retired Senior Judge assigned to the Superior Court.
J-S04022-16

      asserted. See Pa.R.Evid. 801(c). Any argument that Tommy
      Lemon’s confession was a statement against interest fails
      because “for this exception to apply, the declarant must be
      unavailable as a witness, see Pa.R.Evid. 804(b), and [A]ppellant
      offers no proof [Lemon] is not available. Therefore, [Brown’s
      affidavit] was inadmissible hearsay and does not fall under [the
      newly-discovered fact] timeliness exception.” Commonwealth
      v. Abu-Jamal, 941 A.2d 1263, 1270 (Pa. 2008).

Id.

      I write separately to note that, but for my conclusion above regarding

Appellant’s failure to offer proof of his due diligence, I would afford Appellant

the opportunity to offer proof on remand that Tommy Lemon is unavailable

as a witness under Pa.R.E. 804(a) (e.g., through the declarant’s death,

refusal to testify, etc.).




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