J-A11042-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JERMEL THOMAS BROWN                        :
                                               :
                       Appellant               :   No. 891 MDA 2019

               Appeal from the PCRA Order Entered May 1, 2019
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0000227-2007


BEFORE:      PANELLA, P.J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                            FILED JUNE 15, 2020

        Appellant, Jermel Thomas Brown, appeals from the order entered in the

Court of Common Pleas of Dauphin County dismissing his petition under the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, as untimely.

Appellant contends his petition qualified for a timeliness exception under the

newly-discovered evidence exception at Section 9545(b)(1)(ii) and newly-

recognized constitutional right exception at Section 9545(b)(1)(iii).         We

affirm.

        The PCRA court sets forth the pertinent facts and procedural history of

the present matter, as follows:

              Defendant [hereinafter “Appellant”] Jermel Brown was
        charged with robbery, conspiracy, and aggravated assault.
        Following a jury trial held on August 9th and 10th, 2007, Appellant
        was convicted of all charges and sentenced to twenty (20) to forty
____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-A11042-20


     (40) years of imprisonment. Appellant filed a notice of appeal and
     the Superior Court affirmed his judgment of sentence on June 30,
     2008.

           On March 8, 2015, Appellant filed a pro se PCRA petition.
     An amended petition was filed by appointed counsel, Kaitlyn
     Clarkson, Esq., asserting newly discovered evidence.            An
     additional amended petition was filed by Attorney Clarkson on
     August 22, 2017. Upon consideration of such petitions, [the PCRA
     court] held three hearings on the matter [on] November 20, 2017,
     July 30, 2018, and most recently on January 10, 2019. The most
     recent hearing on January 10th was scheduled after Appellant filed
     an additional motion to amend his PCRA petition, which was
     granted. Specifically, Appellant asserted a newly-recognized
     constitutional right pursuant to McCoy v. Louisiana, 138 S.Ct.
     1500 (2018) [(trial court’s ruling allowing counsel to proceed with
     strategy conceding guilt in guilt phase of capital case, over
     defendant’s objections, constituted a structural error entitling
     defendant to a new trial)].

           At [Appellant’s criminal trial of August, 2007,] the following
     evidence was established:

           On July 20, 2005, Linda Vargus went to the Harrisburg
           bus station to pick up her sister-in-law. (NT. 61).
           Vargus phoned her husband on the way home
           because she needed him to park the minivan. (NT. 61-
           62). Kevin Coleman (Vargus’s husband) came to the
           car (while Vargus went into the house), and parked
           the minivan less than a block away from their home
           at 1601 Green Street. (NT. 115). On his way back to
           the house, three men approached Coleman; the faces
           of two of them were covered with bandanas and all
           three men were holding guns. (N.T. 116). Coleman
           emptied his pockets and started to run; he heard five
           shots as he fled home. (N.T. 119-120). Coleman was
           shot twice in the right leg and once in the left leg.
           (N.T. 121). Vargus opened the door, saw Coleman
           lying in a pool of blood, and called 911. (N.T. 64-66).
           Coleman underwent extensive reconstructive surgery
           and has limited use of his leg. (N.T. 124-126).

                Less than one month after the shooting,
           Detective Donald Heffner of the Harrisburg Police

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           spoke to Appellant about the incident; he denied
           involvement.    (N.T. 144).    Subsequently, in the
           summer of 2006, Detective Heffner received
           information that an Ayodi Harper was involved in
           Coleman's robbery and shooting. Harper implicated
           Appellant Brown and another person (known as "Boo-
           Boo”) as the other perpetrators. (N.T. 140-143).
           When Detective Heffner re-interviewed Appellant, he
           claimed that Coleman approached him on the evening
           in question and asked to purchase drugs, and that
           Harper robbed and shot Coleman. (N.T. 146-147).
           Contrary to Appellant's version, Harper attested that
           the three men had been driving around that night
           looking for someone to rob. When they saw Coleman,
           they decided to surround him. Harper claimed that
           Coleman threw his wallet and started to run. While
           Harper went after the wallet, Appellant shot Coleman.
           (N.T. 87-91).

     Jury Trial, August 9-10, [2007], Notes of Testimony, Vol. I and
     Vol. II].

           In his first amended PCRA petition, Appellant concedes [his
     present] petition is untimely; however, he alleges a timeliness
     exception—the facts upon which this claim is predicated were
     unknown to Appellant and could not have been ascertained by the
     exercise of due diligence. See 42 Pa.C.S.A. § 9545(b)(1)(ii).
     Specifically, in his petition Appellant averred that he was made
     aware of a letter written by Ayodi Harper stating that [Harper] lied
     during trial.

           At the first PCRA hearing, Mr. Harper was called as a
     witness. He testified that he resides at Coal Township SCI, and
     acknowledged that he testified against Appellant at trial regarding
     the July 20, 2005 robbery. [PCRA Hearing, November 20, 2017,
     Notes of Testimony at 14-21]. Mr. Harper confirmed at the PCRA
     hearing that, at trial, he had initially testified that he did not
     remember what happened. Following a recess, however, Mr.
     Harper stated that the district attorney threatened to revoke his
     negotiated plea deal if he did not testify against Appellant. Mr.
     Harper went on to testify at trial that he, Appellant, and a third
     person by the name of “Boo” (Cordero Urrutia) participated in the
     robbery. [PCRA Hearing, N.T. at 22-29J.


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            Mr. Harper was then asked to identify a copy of a letter,
     which he claimed was written by him. He attested that he wrote
     it in 2014 to another inmate by the name of Richard Wimbush.
     [PCRA Hearing, N.T. at 31-34]. He was hoping that Mr. Wimbush
     could help to get his sentence reduced or vacated, and that it
     might help Appellant as well. [PCRA Hearing, N.T. at 37, 45-48].
     In the letter, Mr. Harper claimed that he and Appellant were asleep
     in a car on 14th Street at the time of the robbery. [PCRA Hearing,
     N.T. at 48, 51, 54, 67]. Mr. Harper stated that he did not testify
     truthfully at trial, and that Appellant did not commit the July 20,
     2005 robbery. [PCRA Hearing, N.T. at 69].

            Mr. Wimbush also testified at the hearing and confirmed that
     he knew Mr. Harper from Coal Township SCI. Mr. Wimbush stated
     that Mr. Harper sought him out for help with filing a grievance, as
     he had the reputation as a jailhouse lawyer. He stated that he
     and Mr. Harper were in a restricted housing unit together and
     communicated much of the time by passing notes.               [PCRA
     Hearing, N.T. at 75-84]. He identified the letter in question as the
     letter that was written to him by Mr. Harper and explained that it
     was to aid in a post-conviction petition for Mr. Harper to receive
     back-time, and to help Appellant. [PCRA Hearing, N .T. at 87-89].
     Mr. Wimbush was transferred out of SCI Coal Township and was
     transferred to SCI Forest in November of 2014, where he met
     Appellant. Appellant expressed interest in pursuing a PCRA claim,
     and Mr. Wimbush provided Appellant [information] about the
     letter written by Mr. Harper. [PCRA Hearing, N.T. at 90-98].
     Following Mr. Wimbush’s testimony, Appellant's attorney
     requested a continuance to present testimony of Appellant.

           On July 30, 2018, a second PCRA hearing was held.
     Appellant testified and confirmed that his co-defendant, Mr.
     Harper, originally took the stand at trial claiming not to recall
     anything about the crimes, and after the trial recess, he implicated
     Appellant in the burglary. [PCRA Hearing, July 30, 2018, N.T., pp.
     16-19]. Appellant confirmed that he [and] Mr. Wimbush met in
     prison in November of 2015. He discovered that Mr. Wimbush
     knew about his case, and ultimately Mr. Wimbush gave Appellant
     the letter written by Mr. Harper. Appellant stated that everything
     in the letter was true. [PCRA Hearing, N. T. at 22-36, 56].

           Mr. Harper was called back to testify at the second PCRA
     hearing, and stated the opposite of what he had testified to at the
     November 20, 2017 hearing. This time, Mr. Harper outright

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J-A11042-20


     denied having written the letter in question and testified that he
     had not ever seen it prior to the first PCRA hearing. He also denied
     that he ever met Mr. Wimbush or spoke with him about filing
     grievances. Finally, he stated that the testimony he gave at trial
     was accurate, and that the robbery was actually committed by
     Appellant in the presence of himself and Cordero Urrutia (“Boo”).
     [PCRA Hearing, N.T. at 62-81].

            Appellant also offered testimony at the third and final PCRA
     hearing on January 10, 2019. Appellant was questioned about []
     letters he wrote in 2007 to his trial attorney, Wendy Grella, Esq.
     In such letters he relayed to Attorney Grella that he was not
     present for the crimes in question. [PCRA Hearing, January 10,
     2019, Notes of Testimony, pp. 11-13]. Appellant testified that he
     was only able to meet with Attorney Grella a couple of times, so
     he wrote her multiple letters and spoke with her on at least eight
     occasions. Appellant recalled telling Attorney Grella that he was
     not present at the scene of the crimes approximately six times
     during prison visits and four times in writing. [PCRA Hearing, N.T.
     at 13-15]. Appellant admitted that in his statement to Detective
     Heffner, he said he was at the scene of the crime, and that
     Detective Heffner informed him that Mr. Harper had put him at
     the scene of the crime. [PCRA Hearing, N.T. at 16-17]. When
     asked if Attorney Grella told the jury during trial that he was
     present for the crimes charged, Appellant answered yes. He went
     on to explain that he believed it occurred during closing
     arguments, and that the case of McCoy is what made Appellant
     question it. Appellant claims Attorney Grella lied to the jury in
     making them believe that the statement he gave to Detective
     Heffner was truthful. Appellant did not confront her with lying to
     the jury because it “happened real fast.” [PCRA Hearing, N.T. at
     20-22].

PCRA Court Opinion, 4/30/19, at 1-5.

     The PCRA court rejected both of Appellant’s stated exceptions to the

PCRA time-bar. With respect to the newly-discovered facts claim, the court

concluded Appellant failed to prove the facts in question were previously

unknown to him, as Harper testified it was Appellant who had reminded him

prior to trial that they had no involvement in this robbery because they had


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J-A11042-20



been sleeping in a car at the time. Nor did the PCRA court accept Appellant’s

claim of a newly-recognized constitutional right exception founded on the

United States Supreme Court case McCoy without a proper argument that the

decision applied retroactively to PCRA matters. This timely appeal followed.

       Appellant presents the following two questions for our consideration:

       1. After-Discovered Evidence. Brown received a letter through
          another inmate from his co-defendant. This letter explained
          that “this case we really didn’t have anytning to do with.”
          Brown knew of his co-defendant’s lie when he testified, but
          could not prove the lie until he received his co-defendant’s
          recantation. Did the trial court err in finding this was not after-
          discovered evidence?

       2. Structural Error.    The Supreme Court decided McCoy v.
          Louisiana, holding that an attorney cannot override the client’s
          choice regarding the objective of his defense. Did the trial court
          err in holding that McCoy only applies to death penalty cases?

Appellant’s brief, at 4.1

       “In reviewing the denial of PCRA relief, we examine whether the PCRA

court's determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted). Here, the PCRA court concluded

Appellant untimely filed his petition and failed to establish the applicability of

one of the time-for-filing exceptions. See PCRA Court Opinion, 4/30/2019, at

5-7.


____________________________________________


1In Appellant’s first issue, he mistakenly identifies his jurisdictional challenge
as an “After-Discovered Evidence” claim when it is apparent that he raises a
“Newly-Discovered Facts” claim. See infra.

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J-A11042-20



        The PCRA timeliness requirement is mandatory and jurisdictional in

nature. Commonwealth v. Taylor, 933 A.2d 1035, 1038 (Pa. Super. 2007).

The court cannot ignore a petition's untimeliness and reach the merits of the

petition. Id.

        A PCRA petition must be filed within one year of the date the underlying

judgment becomes final. See 42 Pa.C.S. § 9545(b)(1). Appellant’s judgment

of sentence became final on February 12, 2009, ninety days after the

Pennsylvania Supreme Court denied his petition for allowance of appeal, and

Appellant did not petition the United States Supreme Court for certiorari.

Therefore, Appellant had until February 12, 2010, to file a timely petition,

making the one before us, filed over five years after that date, patently

untimely.

        Nevertheless, an untimely PCRA petition may still be considered if one

of   the    three   time-for-filing   exceptions   applies.   See   42   Pa.C.S.   §

9545(b)(1)(i)–(iii). A PCRA petition alleging any of the exceptions under

Section 9545(b)(1) must be filed within 60 days of when the PCRA claim could

have first been brought. 42 Pa.C.S. § 9545(b)(2).

        Here, Appellant asserts his petition meets the timeliness exceptions

applicable    for   claims   of   newly   discovered   facts,   found    at   Section

9545(b)(1)(ii), and after-recognized constitutional rights, found at Section

9545(b)(1)(iii). See Appellant’s Brief, at 21–28. We address each claim in

turn.




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J-A11042-20



     With respect to a claim of newly-discovered facts, this Court has

previously explained:

     The timeliness exception set forth in Section 9545(b)(1)(ii)
     requires a petitioner to demonstrate he did not know the facts
     upon which he based his petition and could not have learned those
     facts earlier by the exercise of due diligence. Commonwealth v.
     Bennett, 593 Pa. 382, 395, 930 A.2d 1264, 1271 (2007). Due
     diligence demands that the petitioner take reasonable steps to
     protect his own interests. Commonwealth v. Carr, 768 A.2d
     1164, 1168 (Pa. Super. 2001). A petitioner must explain why he
     could not have learned the new fact(s) earlier with the exercise of
     due diligence. Commonwealth v. Breakiron, 566 Pa. 323, 330–
     31, 781 A.2d 94, 98 (2001); Commonwealth v. Monaco, 996
     A.2d 1076, 1080 (Pa. Super.2010), appeal denied, 610 Pa. 607,
     20 A.3d 1210 (2011).         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.” Commonwealth v. Marshall, 596
     Pa. 587, 596, 947 A.2d 714, 720 (2008) (emphasis in original).

     The timeliness exception set forth at Section 9545(b)(1)(ii) has
     often mistakenly been referred to as the “after-discovered
     evidence” exception. Bennett, supra at 393, 930 A.2d at 1270.
     “This shorthand reference was a misnomer, since the plain
     language of subsection (b)(1)(ii) does not require the petitioner
     to allege and prove a claim of ‘after-discovered evidence.’” Id.
     Rather, as an initial jurisdictional threshold, Section 9545(b)(1)(ii)
     requires a petitioner to allege and prove that there were facts
     unknown to him and that he exercised due diligence in discovering
     those facts. See 42 Pa.C.S.A. § 9545(b)(1)(ii); Bennett, supra.
     Once jurisdiction is established, a PCRA petitioner can present a
     substantive after-discovered-evidence claim. See 42 Pa.C.S.A. §
     9543(a)(2)(vi) (explaining that to be eligible for relief under PCRA,
     petitioner must plead and prove by preponderance of evidence
     that conviction or sentence resulted from, inter alia, unavailability
     at time of trial of exculpatory evidence that has subsequently
     become available and would have changed outcome of trial if it
     had been introduced). In other words, the “new facts” exception
     at:
            [S]ubsection (b)(1)(ii) has two components, which
            must be alleged and proved. Namely, the petitioner

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J-A11042-20


            must establish that: 1) the facts upon which the claim
            was predicated were unknown and 2) could not have
            been ascertained by the exercise of due diligence. If
            the petitioner alleges and proves these two
            components, then the PCRA court has jurisdiction over
            the claim under this subsection.

      Bennett, supra at 395, 930 A.2d at 1272 (internal citations
      omitted) (emphasis in original). Thus, the “new facts” exception
      at Section 9545(b)(1)(ii) does not require any merits analysis of
      an underlying after-discovered-evidence claim. Id. at 395, 930
      A.2d at 1271.

Commonwealth v. Brown, 111 A.3d 171, 176–177 (Pa. Super. 2015)

(emphasis in original), appeal denied, 125 A.3d 1197 (Pa. 2015). Accordingly,

we must determine whether Appellant has established “there were facts

unknown to him and that he exercised due diligence in discovering those

facts.” Id. at 176.

      In the PCRA court’s Pa.R.A.P. 1925(a) opinion, it reviews the pertinent

record of Mr. Harper’s trial testimony, his PCRA letter/affidavit, and his

testimony at both PCRA hearings, and observes, “It is highly questionable that

Mr. Harper’s letter could constitute [newly]-discovered evidence where

Appellant himself was the source of such evidence and therefore knew of such

prior to trial. See [Marshall, supra]; Commonwealth v. Medina, 92 A.3d

1210, 1216 (Pa.Super. 2014).” PCRA Court Opinion, at 6. Even if Mr. Harper’s

letter did satisfy the timeliness exception, the court continues, Appellant

would not be entitled to relief on substantive grounds under the after-

discovered evidence doctrine because Mr. Harper disavowed his recantation

at the second PCRA hearing, denying he authored the letter and reasserting



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J-A11042-20



his trial testimony that Appellant shot Mr. Coleman during the robbery.

Therefore, the court concluded, Appellant did not carry his burden of proving

that    such    evidence     would   likely   compel   a   different   result.   See

Commonwealth v. Cox, 146 A.3d 221, 228 (Pa. 2016) (explaining after-

discovered evidence claim requires petitioner to prove that the evidence has

been discovered after trial and it could not have been obtained at or prior to

trial through reasonable diligence, the evidence is not cumulative, it is not

being used solely to impeach credibility, and it would likely compel a different

result).

        After careful review of the record, we agree with the PCRA court that

the present matter is distinguishable from Medina. In Medina, the defendant

was convicted of murder based in part on the testimony of Hector Toro.

Medina, 92 A.3d at 1213 (citation omitted). Fourteen years after Medina was

convicted, and five years after his judgment of sentence became final, Hector

Toro recanted his trial testimony. Id. at 1213–1214. Within 60 days of the

recantations, Medina filed a PCRA petition and alleged that the recantation

satisfied the newly-discovered facts exception to the PCRA's timeliness

requirement. Id. at 1217 (citation omitted).

        This Court held that that the PCRA court's conclusion that Medina had

satisfied the newly-discovered facts exception was supported by the record,

as     Hector   Toro   had   unequivocally    implicated   Medina   throughout    all

proceedings leading up to and including the criminal trial, and there was no

indication that his identification was in any way subject to coercion.           We

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J-A11042-20



concluded, therefore, “that [Medina] could not have discovered the source of

Hector Toro's recantation, or the recantation itself, through the exercise of

due diligence, and his second petition was filed timely under the [newly]-

discovered evidence exception.” Id. at 1217–18.

      Here, in contrast, Appellant does not dispute that he was the source of

the facts asserted in Harper’s recantation. Indeed, he admits that he told

Harper on the day of trial that they were not involved in this particular robbery,

and that Harper thereafter equivocated at trial by first claiming not to

remember his involvement in Mr. Coleman’s robbery. Only after the court

granted the Commonwealth’s request for an immediate recess did Harper

return and testify against Appellant.

      Defense counsel thereafter provided vigorous cross-examination to the

extent it prompted Harper to confirm that the plea deal he struck with the

District Attorney’s office depended upon his testifying consistently with his

earlier statement identifying Appellant as the sole gunman in this robbery.

The defense, however, despite Appellant’s conversation with Harper that

morning, never extended that line of questioning by asking Harper whether

he initially balked at recollecting the robbery because, in fact, Appellant and

he had been elsewhere sleeping at the time.

      For these reasons, we discern no error with the PCRA court’s rejection

of Appellant’s newly discovered facts claim, as he had failed to make the

requisite demonstration that the facts upon which the claim was predicated

were unknown to him at the time of trial.        The above record shows that

                                     - 11 -
J-A11042-20



Appellant knew at trial both the underlying facts of the alleged alibi that Harper

shared in his PCRA letter/affidavit of recantation and that Harper’s favorable

guilty plea deal depended on his following through with incriminating

testimony at Appellant’s trial. See Commonwealth v. Padillas, 997 A.2d

356, 363–64 (Pa. Super. 2010) (holding a petitioner who fails to question an

obvious, available source of information, cannot later claim evidence from that

source constitutes newly discovered evidence).

      Finally, and also unlike in Medina, the recantation at issue here was

withdrawn by the witness. In this respect, we find it significant that Harper

expressly disavowed his recantation during the course of the PCRA

proceedings, and the PCRA court, which had the benefit of observing Harper

on the witness stand for two hearings, did not conclude that Harper’s initial

recantation was, nonetheless, credible.         Accordingly, Appellant’s newly

discovered facts claim affords him no relief.

       In Appellant’s remaining claim, he attempts to invoke the newly-

created-constitutional-right exception to the PCRA’s timeliness requirements,

Section 9545(b)(1)(iii), by citing McCoy. In McCoy, the High Court held that

a defendant has the Sixth Amendment right to require that his counsel refrain

from conceding guilt during the guilt phase of a capital trial, even when

counsel reasonably believes the concession is crucial to the defense strategy

of avoiding the death penalty.     See McCoy, 138 S.Ct. at 1509.          McCoy

further observed that the trial court’s ruling allowing counsel to proceed with

that strategy over defendant’s objections constituted a structural error

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entitling defendant to a new trial without first establishing prejudice. Id. at

1511.

        Here, the PCRA court determined that Section 9545(b)(1)(iii) does not

apply to Appellant’s petition because the McCoy decision has not been held

by the United States Supreme Court to apply retroactively. We agree.

        Assuming arguendo that the “structural error” holding in McCoy, a

capital case, is applicable to the case at hand, the newly-recognized

constitutional right exception in Section 9545(b)(1)(iii) would still be

inapplicable. Our Supreme Court has held that:

        Subsection (iii) of Section 9545 has two requirements. First, it
        provides that the right asserted is a constitutional right that was
        recognized by the Supreme Court of the United States or this court
        after the time provided in this section. Second, it provides that
        the right “has been held” by “that court” to apply retroactively.
        Thus, a petitioner must prove that there is a “new” constitutional
        right and that the right “has been held” by that court to apply
        retroactively. The language “has been held” is in the past tense.
        These words mean that the action has already occurred, i.e., “that
        court” has already held the new constitutional right to be
        retroactive to cases on collateral review.

Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002).

        Here, Appellant fails to establish that McCoy “has been held” by the

United States Supreme Court to apply retroactively on collateral review. The

McCoy decision itself neither expresses nor implies the Court’s intent to have

the decision apply retroactively on collateral review, and Appellant cites no

decision applying it retroactively or otherwise recognizing in it a retroactive




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effect. Therefore, Appellant cannot successfully claim the timeliness exception

set forth in Section 9545(b)(1)(iii).2

       For the preceding reasons, Appellant’s untimely petition did not satisfy

either timeliness exception raised. Accordingly, we conclude the PCRA court

did not err in dismissing it.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/15/2020




____________________________________________


2 We also find persuasive this Court’s recent memoranda decisions in
Commonwealth v. Parker, 2020 WL 755044, at *3 (Pa.Super. February 14,
2020) and Commonwealth v. Hoffman, 2020 WL 200838, at *2 (Pa.Super.
January 13, 2020), in which this Court determined that McCoy does not create
or otherwise recognize a new constitutional right for purposes of Section
9545(b)(1)(iii).


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