J. S35003/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :       IN THE SUPERIOR COURT OF
                                        :             PENNSYLVANIA
                        Appellant       :
                                        :
                   v.                   :          No. 2224 EDA 2015
                                        :
RICHARD BLACK                           :


                    Appeal from the Order, June 19, 2015,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0801921-2006


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND MUSMANNO, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED SEPTEMBER 09, 2016

      The Commonwealth of Pennsylvania (“Commonwealth”) appeals from

the order entered in the Court of Common Pleas of Philadelphia County that

granted the petition of Richard Black (“Black”) filed pursuant to the Post

Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”) and ordered a

new trial.

      The PCRA court set forth the following:

                   On January 7, 2011, [Black] entered into a
             negotiated guilty plea to possession with intent to
             manufacture or deliver (PWID) and persons not to
             possess, use, manufacture, control, sell or transfer
             firearms, and was sentenced to 2-5 years[’]
             incarceration on each charge to run concurrently.
             The plea was based upon evidence contained in the
             PARS [arrest report], prepared by Philadelphia Police
             Narcotics Field Unit Officer Brian Reynolds that, on
             February 13, 2006, Philadelphia Police Officers Brian
             Reynolds and Bogan received information from a
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          confidential source that a black male named “Rich”
          sold cocaine in the South Philadelphia area using his
          cell phone [] to facilitate sales. The source also
          stated that “Rich” drives a white Pontiac or a gold
          Honda. During the evening hours of February 13,
          2006, the source placed an order for cocaine with
          “Rich” using the cell phone number and arranged to
          meet at the Dunkin[’] Donuts at the corner of
          16th Street and Washington Avenue in the city and
          county of Philadelphia. The source was told that
          “Rich” would be driving the white Pontiac.           At
          approximately 9:40 P.M., Officer Thurston observed
          a Pontiac Grand Prix pull into the Dunkin[’] Donuts
          parking lot. Officers Reynolds and Bogan observed a
          male, later identified as [Black], exit the vehicle and
          enter the Dunkin[’] Donuts. The PARS does not
          indicate whether the confidential source identified
          [Black] as “Rich.”      Officers Reynolds, Brennan,
          Sharkus and Bogan entered the Dunkin[’] Donuts
          and approached [Black]. Officer Reynolds recovered
          drugs, money and drug paraphernalia from one of
          [Black’s] jacket pockets and a cell phone [] and
          index cards from the other. [Black] was arrested
          and transported for processing. Officer Reynolds
          conducted a field test and determined that the drugs
          recovered from [Black] were positive for cocaine and
          cocaine base. Officer Reynolds then secured the
          Grand Prix and obtained a search warrant.            At
          approximately 2:25 AM on February 14, 2006,
          Officer Bogan executed the search warrant on the
          vehicle. A bullet proof vest, firearm and ammunition
          were recovered from the trunk. Officer Reynolds
          was the only witness present at [Black]’s preliminary
          hearing.

                 On September 9, 2010, a motion to suppress
          and to identify the confidential informant was
          litigated before the Honorable Linda Carpenter.
          Officer Reynolds was the sole witness presented at
          the hearing. Officer Reynolds testified that he and
          Officer Bogan were with a confidential source and
          had the source make a phone call to arrange delivery
          of crack cocaine. The confidential source was not a
          registered confidential informant and this was the


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          first time Officer Reynolds had worked with him.
          Officer Reynolds testified that, when the confidential
          source made the call, through the phone, []
          (Officer Reynolds) heard the male on the other end
          of the call say that he would be arriving to the area
          of Dunkin[’] Donuts on 1500 Washington Avenue in a
          white Pontiac. Officers Reynolds and Bogan and
          other un-named [sic] officers, along with the
          confidential source proceeded to the designated
          area.      Officer Reynolds surveilled the areas
          somewhere between 15 minutes and 2 hours. At
          approximately 9:40 PM, Officer Reynolds observed
          [Black] arrive in a white Pontiac Grand Prix and enter
          the Dunkin[’] Donuts. Officer Reynolds testified that
          he then entered the store with other officers and
          approached [Black] as he stood at the counter.
          Officer Reynolds conducted a pat down and
          recovered illegal narcotics from [Black’s] right jacket
          pocket.     Also recovered from [Black’s] person
          was [sic] new and unused pink packets, a used silver
          razor, index cards, a cell phone and $1450. Based
          upon that, Officer Reynolds obtained a search
          warrant for the Pontiac. Recovered from the trunk
          was [sic] a bullet proof vest, and a Glock
          [.]40 caliber handgun with a laser mounted on it.
          The weapon was loaded with nine live rounds in the
          magazine. Officer Reynolds also testified that the
          source was not a confidential informant, just a
          person he had encountered in the 1700 block of
          South Orianna Street. He did not have any contact
          information for the source and was unable to retrieve
          contact information because the file had been lost.
          He also testified that he was the affiant on the
          search warrant. Both motions were subsequently
          denied. Thereafter, on January 7, 2011, [Black]
          pleaded guilty to the charges and received the
          negotiated sentence of 2-5 years[’] incarceration.
          No direct appeal was taken.

                In December, 2012, the Philadelphia District
          Attorney’s Office advised the Philadelphia Police
          Commissioner that it would no longer [] use the
          testimony of certain officers from the Narcotics Field
          Unit, including Officer Brian Reynolds, in further


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           prosecutions because of credibility problems, and
           began dismissing open cases involving those officers.
           In early 2013, it was confirmed that the officers were
           under investigation by the FBI and Police Internal
           Affairs.[1] On February 19, 2013, [Black] filed a
           pro se PCRA petition asserting that he was entitled to
           relief because of the unavailability at the time of
           exculpatory evidence that has subsequently become
           available and would have changed the outcome of
           the trial if it had been introduced. PCRA counsel was
           appointed and, on May 15, 2014, counsel filed an
           amended petition alleging newly discovered evidence
           of corruption and misconduct in the prosecution of
           criminal cases by Officer Reynolds and members of
           the Narcotics Field Unit. This new evidence rendered
           [Black’s] guilty plea involuntary.         Office [sic]
           Reynolds and five others were under federal
           indictment for fabricating evidence, lying under oath
           and other misconduct.          After reviewing all the
           evidence presented by the Commonwealth and PCRA
           counsel and hearing argument at the January 9,
           2015 listing, on the following court date, June 19,
           2015, the Court granted [Black’s] petition for a new
           trial. [The Commonwealth] then requested a status
           listing to provide time to determine how they wished
           to proceed and the case was listed for status on
           August 7, 2015 without opposition. On July 6, 2015,
           [the     Commonwealth]        filed   a   motion    for
           reconsideration of the Court’s determination that
           [Black] was entitled to a new trial and requesting an
           evidentiary hearing. The motion contended other
           officers were involved in [Black’s] arrest and
           highlighted (by bolding) the names of officers other
           than Officer Reynolds contained in the PARS. [The
           Commonwealth] did not request an expedited court
           date or indicate witnesses who would be presented.
           However, on July[] 16, 2015, [the Commonwealth]
           filed the instant appeal effectively divesting the
           Court of its jurisdiction to address the motion.


1
  This court takes judicial notice of the fact that Officer Reynolds was
acquitted of corruption charges in the United States District Court for the
Eastern District of Pennsyvlania.


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PCRA court opinion, 10/13/15 at 1-4 (footnotes omitted).

     The Commonwealth raises the following issue for this court’s review:

“Did the PCRA court err in granting [Black] a new trial on an untimely PCRA

petition without jurisdiction, where [Black’s] burden went unmet as the court

did not hold an evidentiary hearing?” (Commonwealth’s brief at 4.)

     In PCRA appeals, our scope of review “is limited to the findings of the

PCRA court and the evidence on the record of the PCRA court’s hearing,

viewed   in     the   light   most   favorable   to   the   prevailing   party.”

Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008) (internal quotation

omitted). Because most PCRA appeals involve questions of fact and law, we

employ a mixed standard of review.       Commonwealth v. Pitts, 981 A.2d

875, 878 (Pa. 2009).      We defer to the PCRA court’s factual findings and

credibility determinations supported by the record.         Commonwealth v.

Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).             In contrast, we

review the PCRA court’s legal conclusions de novo. Id.

     “When reviewing the grant or denial of post-conviction relief, the

appellate court is limited to determining whether the lower court’s findings

are supported by the record and its order is otherwise free of legal error.

We grant great deference to findings of the PCRA court.” Commonwealth

v. Stark, 658 A.2d 816, 818 (Pa.Super. 1995) (citations omitted).

              Pennsylvania law makes clear no court has
              jurisdiction to hear an untimely PCRA petition.
              Commonwealth v. Robinson, 575 Pa. 500, 508,
              837 A.2d 1157, 1161 (2003). The most recent


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          amendments to the PCRA, effective January 16,
          1996, provide a PCRA petition, including a second or
          subsequent petition, shall be filed within one year of
          the date the underlying judgment becomes final.
          42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.
          Bretz, 830 A.2d 1273, 1275 (Pa.Super. 2003);
          Commonwealth v. Vega, 754 A.2d 714, 717
          (Pa.Super. 2000). A judgment is deemed 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.” 42 Pa.C.S.A. § 9545(b)(3).

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010).

          The three statutory exceptions to the timeliness
          provisions in the PCRA allow for very limited
          circumstances under which the late filing of a
          petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).
          To invoke an exception, a petition must allege and
          prove:

          (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.


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             42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). “As such, when a
             PCRA petition is not filed within one year of the
             expiration of direct review, or not eligible for one of
             the three limited exceptions, or entitled to one of the
             exceptions, but not filed within 60 days of the date
             that the claim could have been first brought, the trial
             court has no power to address the substantive merits
             of a petitioner’s PCRA claims.” Commonwealth v.
             Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783
             (2000); 42 Pa.C.S.A. § 9545(b)(2).

Id. at 1079-1080.

     Initially, the Commonwealth contends that the PCRA court erred when

it granted Black a new trial without holding a hearing on an untimely PCRA

petition where Black did not meet his burden of proving a time bar

exception.

     As the Commonwealth points out, Black’s judgment of sentence

became final on February 7, 2011. Under Section 9545(b)(1) of the PCRA,

42 Pa.C.S.A. § 9545(b)(1), a petition must be filed within one year of the

date the judgment became final subject to certain exceptions. Black did not

file his petition until February 19, 2013, well beyond the one-year limit.

However, the PCRA court determined that Black’s untimeliness was excused

under the after-discovered evidence exception to the time bar.         Under

Section 9545(b)(2) of the PCRA, 42 Pa.C.S.A. § 9545(b)(2), a petitioner has

60 days to file a petition from the date that the claim could have been

presented.




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      In his amended petition which was filed on May 15, 2014, Black

asserts that while the Philadelphia County District Attorney’s Office notified

the City of Philadelphia Police Commissioner on December 3, 2012 that it

would not be using the testimony of Officer Reynolds any longer in the

prosecution of criminal cases based on its belief that his testimony was

incredible, this notification did not trigger the 60-day time limit because

Black could not have known about the notification even if he exercised due

diligence.

      With respect to this issue, the PCRA court determined:

             It is uncontroverted that [Black] could not have
             ascertained the facts upon which his claim is based,
             i.e., information       about the corruption and
             misconduct by the officer involved in the prosecution
             of his case, through the exercise of due diligence.
             [Black] plead [sic] guilty on January 7, 2011, well
             before the time the District Attorney declined to use
             the testimony of Officer Reynolds and other
             Narcotics Field Unit officers and began dismissing
             open cases involving the officers. The Court is also
             satisfied that [Black] met the 60 day requirement
             because his petition was filed during the time
             information was still being gathered and the police
             corruption matter was still evolving.      Therefore,
             [Black’s] petition met the after discovered evidence
             exception to the PCRA time bar and the Court had
             jurisdiction to address [Black’s] issues.

PCRA court opinion, 10/13/15 at 5-6.

      This court agrees with the PCRA court that Black could not have known

about the situation involving Officer Reynolds at the time that he pled guilty

on January 7, 2011.     Although the District Attorney sent the letter to the



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City of Philadelphia Police Commissioner on December 3, 2012, there is

nothing in the record that indicates that Black knew or could have known

about it at that time, even with the exercise of due diligence.      The PCRA

court determined that Black complied with the 60-day requirement because

the petition was filed during the time that information with respect to the

alleged police corruption was still being gathered and the investigation was

evolving.    This court determines that the PCRA court did not abuse its

discretion when it found that the petition complied with 42 Pa.C.S.A. §

9545(b)(2), assuming that the fact that Officer Reynolds was removed from

testifying   in cases and was subsequently       indicted constitutes after-

discovered evidence.

      The Commonwealth next contends that Black failed to meet his burden

of proving the existence of after-discovered evidence that would entitle him

to a new trial. The Commonwealth argues that, at most, Black was entitled

to an evidentiary hearing.

                   To obtain relief based on after-discovered
             evidence, [an] appellant 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.

Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008) (citations

omitted).



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      “The   test   is   conjunctive;    the     [appellant]   must   show   by   a

preponderance of the evidence that each of these factors has been met in

order for a new trial to be warranted.” Commonwealth v. Padillas, 997

A.2d 356, 363 (Pa.Super. 2010) (citation omitted). When an appellate court

reviews the decision to grant or deny a new trial on the basis of

after-discovered evidence, the appellate court must determine whether the

PCRA court committed an abuse of discretion or error of law that controlled

the outcome of the case.     Commonwealth v. Reese, 663 A.2d 206, 209

(Pa.Super. 1995).

      For support, the Commonwealth relies on Commonwealth v. Castro,

93 A.3d 818 (Pa. 2014), where this court remanded for an evidentiary

hearing to determine if information contained in a newspaper article that the

arresting officer was under investigation for corruption and the falsification

of evidence in another case involving the same confidential informant

constituted after-discovered evidence. The Commonwealth appealed to the

Pennsylvania Supreme Court. Our supreme court reversed on the basis that

the motion did not address the potential evidence that Castro would use to

support his request for a new trial:

                    However, we hold a motion must, at the very
             least, describe the evidence that will be presented at
             the hearing.        Simply relying on conclusory
             accusations made by another, without more, is
             insufficient to warrant a hearing. . . . The motion
             says nothing about which, if any, of this potential
             evidence appellee would rely on to support his
             request for a new trial. Absent identification of the


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              actual testimony, physical evidence, documentation
              or other type of evidence to support the allegations
              of Officer Cujdik’s wrongdoing, we cannot conclude
              appellee had evidence to offer; to conclude otherwise
              would be speculation.

Id. at 827.

     The Commonwealth uses Castro to support its contention that, at the

very least, the matter should be remanded to the PCRA court for an

evidentiary hearing. The Commonwealth does not rely on Castro to argue

that Black is not entitled to any relief at all. The Commonwealth argues that

the PCRA court erred in awarding Black a new trial rather than conducting an

evidentiary hearing on the purported after-discovered evidence as this court

did in Castro before our supreme court reversed.

     In   his       amended    post-conviction   petition   with   consolidated

memorandum of law, Black alleged:

              10.   Following [Black’s] guilty plea and sentencing
                    on January 7, 2011, Officer Reynolds came
                    under      investigation     concerning    his
                    investigatory practices.

              11.   On December 3, 2012, the Philadelphia District
                    Attorney’s Office sent a letter to Police
                    Commissioner Charles Ramsey advising that it
                    would not be using the testimony of
                    Officer Reynolds in its prosecution of criminal
                    cases based upon its belief that his testimony
                    was incredible.

              12.   On March 2, 2013, the Honorable Diana Louis
                    Anhalt granted a new trial in the case of
                    Commonwealth v. Joseph Scott, CP-51-CR-
                    0000525-2012 based upon the District
                    Attorney’s letter to Police Commissioner


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                 Charles Ramsey. The defendant had entered a
                 plea of nolo contender [sic] to a drug offense
                 twelve day[s] prior to the District Attorney’s
                 letter. . . .

          13.    Numerous federal civil rights lawsuits have
                 been filed against Officer Reynolds and the
                 Philadelphia Police Department with regard to
                 Reynolds’ investigatory practices. . . .

          14.    On January 19, 2014, it was reported for the
                 first time in the Philadelphia Inquirer that a
                 federal grant [sic] jury had been convened to
                 determine whether federal charges were
                 warranted against Officer Reynolds and other
                 police officers. . . .

          15.    On January 19, 2014, it was also reported that
                 Officer Reynolds was removed from the
                 Narcotics Unit and given a low profile
                 departmental job. . . .

          16.    Since December 2012, numerous prosecutions
                 have been dismissed as a result of the
                 involvement of Officer Reynolds. . . .

          17.    Narcotics Officer Jeffrey Walker is cooperating
                 with federal authorities and is expected to
                 testify against Officer Reynolds. . . .

          ....

          20.    The information concerning Police Officer
                 Reynolds is not merely corroborative or
                 cumulative and will not be used solely to
                 impeach the credibility of a witness. The newly
                 discovered evidence in question attacks the
                 heart and soul of the Commonwealth’s case
                 against [Black].

          21.    Presentation of the newly-discovered evidence
                 would likely result in a different verdict if a
                 new trial were granted.



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             22.   In    light   of    the     allegations   against
                   Officer Reynolds, his claim that there was a
                   confidential source is called into question.

             23.   In fact, at the motion to suppress,
                   Officer Reynolds   could     not   recall any
                   information and did not have any paperwork
                   concerning the confidential source. . . .

             24.   Following the denial of [Black’s] motion to
                   suppress physical evidence, which may have
                   been based upon the false testimony of
                   Officer Reynolds, [Black] had no choice but to
                   enter a guilty plea.

             25.   To the extent that [Black] was    forced to plead
                   guilty based upon the allegedly   false testimony
                   presented at the hearing on       the motion to
                   suppress, his guilty plea         may not be
                   considered to be knowing,         voluntary and
                   intelligent.

Amended Post Conviction Petition with Consolidated Memorandum of Law,

5/15/14 at 4-5 and 10-11, ¶¶ 10-17, 20-25 (citations omitted).

      As required by Castro, Black asserts that he has clearly identified the

actual testimony, physical evidence, documentation, or other evidence that

would be produced at a hearing because there is a wealth of documentary

evidence with respect to the investigation of Officer Reynolds including

volumes and volumes of testimony from the grand jury proceedings and

federal court trial.

      With respect to this issue, the PCRA court determined:

             As indicated above, [Black] was sentenced on
             January 7, 2011 well prior to the evidence of
             Officer Reynolds’ participation in fabricating evidence
             and committing misconduct in the prosecution of


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          cases, the December 2012 letter indicating that the
          District Attorney declined to use testimony from
          Officer Reynolds because of credibility concerns, and
          the ongoing investigations by the FBI and Internal
          Affairs.   This evidence was not cumulative or
          corroborative of other evidence and would likely
          result in a different verdict if a new trial were
          granted.    Additionally, had this information been
          available at or prior to trial, it would likely have
          changed the way trial counsel advised [Black] and
          would have permitted trial counsel other avenues of
          inquiry during the litigation of appellee’s motions.

                 [The Commonwealth] also complains that the
          Court erred when it granted [Black’s] petition
          without first conducting an evidentiary hearing.
          There is no absolute right to an evidentiary hearing.
          Where there is no genuine issue of material fact, no
          evidentiary     hearing    is    required.         See
          Commonwealth v. Springer, 961 A.2d 1262, 1264
          (Pa.Super. 2008) (On appeal, we examine the issues
          raised in light of the record “to determine whether
          the PCRA court erred in concluding that there were
          no genuine issues of material fact and in denying
          relief without an evidentiary hearing.”). It should be
          noted that [the Commonwealth] did not request an
          evidentiary hearing prior to or at the June 19, 2015
          listing where [Black’s] PCRA petition was granted.
          (N.T. 06/19/15 pg. 4-5)[Footnote 5]               [The
          Commonwealth] made the first request for an
          evidentiary hearing in its motion to reconsider filed
          July 6, 2015. Moreover, while [the Commonwealth]
          requested an evidentiary hearing in the motion, and
          highlighted names of officers that appeared in the
          PARS besides Officer Reynolds, no indication of who
          would testify at the evidentiary hearing and/or what
          the testimony would be was included.              [The
          Commonwealth] provided no evidence to refute the
          information the Court had available to it.
          Notwithstanding, appellant then filed the instant
          appeal thereby transferring jurisdiction to the
          Superior Court and precluding the Court’s ability to
          rule on the motion to reconsider its decision.



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                   [Footnote 5] Because of the significant
                   number of cases under review, the
                   appellant and the Public Defender
                   engaged in a process whereby they
                   would    evaluate   cases   and    make
                   recommendations to the Court.        In
                   [Black’s] case, [the Commonwealth]
                   argued against relief and the Defender
                   agreed.     However, [Black] engaged
                   private counsel who argued for relief.
                   (N.T. 03/06/15 pg. 3-5)     Despite the
                   difference of opinion between [the
                   Commonwealth] and private counsel, no
                   evidentiary hearing was requested.

PCRA court opinion, 10/13/15 at 6-7.

      While Black could have identified the actual evidence he intends to

present with more specificity, he believes the evidence will indicate that

there was not a confidential informant who tipped off Officer Reynolds

concerning Black especially since Officer Reynolds could not recall any

information about the informant and did not have any paperwork concerning

the confidential informant at the motion to suppress. The trial court’s denial

of Black’s motion to suppress evidence could have been made in error based

upon the false testimony of Officer Reynolds. Had the trial court granted the

motion to suppress, Black may not have entered a guilty plea. If Black can

prove this theory, the after-discovered evidence would not just impeach the

credibility of Officer Reynolds but possibly could result in a different verdict if

a new trial were granted.

      Given the record before this court, we believe the best course of action

is to remand to the PCRA court for an evidentiary hearing on this possible


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after-discovered evidence as in Castro.      Although the PCRA court stated

that the Commonwealth only requested an evidentiary hearing in its motion

for reconsideration and then appealed to divest the PCRA court of

jurisdiction to rule on the motion for reconsideration, the Commonwealth

had no reason to request a hearing until Black prevailed before the PCRA

court.    Further, the Commonwealth had to appeal in a timely manner and

could not wait for the PCRA court to rule on its motion before appealing.

         Order vacated.   This case is remanded to the PCRA court for an

evidentiary hearing on the proffered after-discovered evidence. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/9/2016




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