J-S56035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                             Appellee

                       v.

DEREL BRITTON,

                             Appellant                 No. 1974 MDA 2015


             Appeal from the PCRA Order Entered October 9, 2015
               In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0000013-2015


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

DISSENTING MEMORANDUM BY BENDER, P.J.E.:                 FILED JULY 22, 2016

        I respectfully disagree with the Majority’s conclusion that Appellant

failed to meet the after-discovered fact exception of 42 Pa.C.S. §

9545(b)(1)(ii). Therefore, I dissent.

        Appellant premises his after-discovered fact claim on a letter his

mother received on March 22, 2013, from Calvin McKinney. In the letter,

McKinney states that his brother, Fred (“CJ”) McKinney, committed the

attempted murder for which Appellant was convicted.             I agree with the

Majority that Appellant’s petition satisfied the 60-day filing requirement of

section 9545(b)(2).         See Majority Decision at 8 n.4.    However, I cannot

agree with the Majority’s determination that Calvin’s letter “constitutes, at
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S56035-16


most, a newly discovered or newly willing source for known facts.” Id. at 9

(citation omitted).

      The Majority reasons that during trial, Appellant attempted to prove

that Fred McKinney was the real shooter.      Id. at 11.   The portions of the

record discussed by the Majority certainly support the conclusion that

Appellant at least suspected, if not definitively knew, that Fred McKinney

was the perpetrator of the crimes for which Appellant was on trial. However,

nothing in the record indicates that Appellant was aware that Calvin knew

that Fred committed the shooting, or that Calvin would be willing to admit

the same. In my view, these are the after-discovered facts that stem from

Calvin’s letter. Accordingly, I do not consider the letter as a new source of a

previously known fact.

      Additionally, given that Calvin’s letter demonstrates that he was

unwilling to admit his brother’s guilt until recently, as Fred is now deceased,

I also disagree with the Majority’s alternative conclusion that Appellant failed

to demonstrate due diligence. It is clear, from the portion of Calvin’s letter

quoted by the Majority, that he would not have offered any information

inculpating his brother, even had defense counsel attempted to talk to him.

See Majority Decision at 3-4 (quoting Appellant’s Response to PCRA Court’s

May 9, 2013 Order, filed 5/20/13, attached exhibit (Calvin McKinney’s

Letter)). Consequently, I agree with Appellant that “[t]here was no reason

to suspect that [Calvin] had this information or that he was willing to come


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forward with the information he held any [time] prior to March of 2013. His

‘loyalty’ was to his ‘brother[,’] not to [A]ppellant.” Appellant’s Brief at 11.

      For these reasons, I would conclude that Appellant satisfied the

timeliness exception of section 9545(b)(1)(ii) based on Calvin McKinney’s

letter. Accordingly, I would remand for an evidentiary hearing, at which the

PCRA court could apply the four-pronged test for deciding if that after-

discovered evidence warrants a new trial. Commonwealth v. Choice, 830

A.2d 1005, 1008 (Pa. Super. 2003) (“To warrant relief, after-discovered

evidence must meet a four prong test: (1) the evidence could not have been

obtained before the conclusion of the trial by reasonable diligence; (2) the

evidence is not merely corroborative or cumulative; (3) the evidence will not

be used solely for purposes of impeachment; and (4) the evidence is of such

a nature and character that a different outcome is likely.”).        Therefore, I

respectfully dissent.




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