J-S44009-17




NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

JAVIER ORTIZ,

                         Appellant                   No. 3432 EDA 2016


           Appeal from the PCRA Order Entered October 21, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-1003051-1999


BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                      FILED AUGUST 31, 2017

      Appellant, Javier Ortiz, appeals from the order entered October 21,

2016, dismissing, as untimely, his petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.         After careful

review, we vacate that order and remand for an evidentiary hearing.

      During Appellant’s direct appeal, this Court summarized the facts

adduced at trial as follows:

             In this case, the record reveals the following: Appellant
      was arrested in connection with the shooting of Luis Delgado and
      Marcello Steele [hereinafter “Steele”], and he proceeded to a
      jury trial on February 9, 2001.       At trial, Anthony Coltrane
      testified that, during the early hours of May 9, 1999, he was
      sitting in his car at the corner of Marshall and Clearfield Streets
      in Philadelphia when he saw Appellant approach the driver’s side
      of a nearby car, pull on his hood, and start shooting inside of the
      car. Appellant then walked near Mr. Coltrane’s car and yelled at
      him in Spanish. Mr. Coltrane followed Appellant until he went
J-S44009-17


     into the passenger side of a waiting car near Indiana Street. At
     trial, Mr. Coltrane specifically identified Appellant as being the
     shooter.

           Rafael Alers testified5 that he was selling drugs on the
     street during the early morning hours of May 9, 1999, when he
     saw a person he knew as “Javelito” approach the vehicle at issue
     and fire approximately seven shots inside. Mr. Alers identified
     Appellant as being “Javelito,” and he indicated that he knew the
     deceased, Mr. Delgado. Prior to testifying during the preliminary
     hearing, Mr. Alers came into contact with Appellant. When Mr.
     Alers told Appellant he should not have killed Mr. Delgado,
     Appellant stated, “[I]t’s just business. That’s the way business
     goes.”
        5
          The Commonwealth was permitted to read Rafael Alers’
        preliminary hearing testimony into the record because Mr.
        Alers was proven to be unavailable at trial.

           Police Officer Brian Werner testified that he was on duty on
     May 9, 1999, and he responded to the shooting at issue at 1:43
     a.m. Upon arrival, he saw a male, who was in the driver’s seat,
     unconscious and bleeding profusely from his head.           Officer
     Werner and his partner loaded the male, who was later identified
     as being Luis Delgado, into their emergency patrol wagon and
     drove him directly to the hospital. Unfortunately, Mr. Delgado
     died from his wounds, and Officer Werner subsequently
     transported his body to the Medical Examiners’ Office. The
     passenger of the vehicle, who was later identified as being
     Marcello Steele, was transported from the scene by paramedics.

            Detective William Gross testified that on May 9, 1999, at
     approximately 3:15 a.m., he went to 6th and Clearfield Streets
     in Philadelphia to investigate the shooting at issue. Detective
     Gross testified that there were no bullets or bullet holes in the
     exterior of the automobile but that the interior contained a
     bullet, bullet holes, and numerous .9-millimeter shell casings.
     Detective Gross discovered a spent bullet6 on the sidewalk near
     the vehicle’s door.     Based on the evidence at the scene,
     Detective Gross opined that the shooter stood outside of the
     vehicle by the driver’s side door, stuck his hand inside of the
     vehicle, and shot a semiautomatic weapon inside of the vehicle.
        6
          A “spent bullet” is what remains after the bullet hits
        something.


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               Dr. Edwin Lieberman, an assistant medical examiner,
        testified that he conducted Mr. Delgado’s autopsy.         He
        discovered that Mr. Delgado was shot in the head, upper left
        arm, and right middle finger. Dr. Lieberman testified that Mr.
        Delgado was shot with a minimum of five bullets.

              Police Officer Nathan London testified that on May 12,
        1999, at approximately 9:00 a.m., he was outside of police
        headquarters when Anthony Coltrane approached him.              Mr.
        Coltrane told Officer London that he had witnessed a murder in
        the area of Marshall and Clearfield Streets on the date in
        question. Specifically, Mr. Coltrane told the officer that he saw a
        Hispanic male approach a parked car, pull out a gun, and fire
        several times into the car. Mr. Coltrane further told the officer
        that the Hispanic male said something to him in Spanish and
        then fled the area. In response to Mr. Coltrane’s information,
        Officer London took Mr. Coltrane to the department’s homicide
        unit.

               Appellant testified that he did not shoot the victims and
        that he was not in the area at the time of the shooting. He
        testified that he was in Reading, Pennsylvania at the time of the
        shooting. On cross-examination, he admitted that his nickname
        was “Javelito.”

Commonwealth v. Ortiz, No. 2596 EDA 2004, unpublished memorandum

at 2-5 (Pa. Super. filed July 13, 2005). Notably, Steele, the only surviving

victim in this case, was not called to testify at Appellant’s trial.

        On September 24, 2001, Appellant was convicted by a jury of first-

degree murder, attempted murder, and carrying a firearm on a public

street.1     On April 24, 2001, the trial court sentenced Appellant to

consecutive terms of life imprisonment, 8-20 years’ incarceration, and 1-2

years’ incarceration, respectively. This Court affirmed Appellant’s judgment

____________________________________________


1
    18 Pa.C.S. §§ 2502(a), 901, and 6108, respectively.



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of sentence on December 5, 2005. Commonwealth v. Ortiz, 883 A.2d 692

(Pa. Super. 2005) (unpublished memorandum), appeal denied, 887 A.2d

1241 (Pa. 2005).

       Appellant filed his first PCRA petition, pro se, on December 5, 2005.

Subsequently appointed PCRA counsel filed an amended petition on his

behalf on February 21, 2008.          After the PCRA court denied his first PCRA

petition, this Court affirmed on June 26, 2012. Commonwealth v. Ortiz,

53 A.3d 939 (Pa. Super. 2012) (unpublished memorandum). Appellant did

not seek review from that decision with our Supreme Court.

       Appellant filed, pro se, his second PCRA petition on May 11, 2015,

which is the subject of the instant appeal.              See Appellant’s Initial PCRA

Petition, 5/11/15 (hereinafter “Initial Petition”).            Appellant then filed a

supplemental      PCRA     petition    on      August   10,   2015.   See   Appellant’s

Supplemental PCRA Petition, 8/10/15 (hereinafter “Supplemental Petition”).

The PCRA court then appointed counsel, who filed an amended petition on

Appellant’s behalf on December 22, 2015. See Appellant’s Amended PCRA

Petition, 12/22/15 (hereinafter “Amended Petition”).2 On October 21, 2016,

the PCRA court denied the Petition without a hearing, on the basis that it

had been untimely filed.          PCRA Court Opinion (PCO), 11/3/16, at 1-3.

Appellant timely filed a notice of appeal from that decision, and now

____________________________________________


2
  Hereinafter, Appellant’s Initial, Supplemental, and Amended Petitions will
be referred to collectively as the “Petition,” where appropriate.



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presents the following question for our review: “Did the [PCRA] court err in

denying … [A]ppellant an evidentiary hearing when [A]ppellant alleged in his

PCRA Petition newly discovered evidence that demonstrated that he was

innocent of the offenses of which he was convicted and[,] if credible[,] would

have entitled him to a new trial?” Appellant’s Brief at 2.

      This Court's standard of review regarding an order denying a petition

filed 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. Commonwealth 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:

      (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



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            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)-(iii).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Instantly, Appellant concedes that his Petition was untimely, but avers

that he meets the newly discovered facts exception set forth in 42 Pa.C.S. §

9545(b)(1)(ii).

             The timeliness exception set forth at Section 9545(b)(1)(ii)
      has often mistakenly been referred to as the “after-discovered
      evidence” exception. [Commonwealth v.] Bennett, … 930
      A.2d [1264,] 1270 [(Pa. 2007)]. “This shorthand reference was
      a misnomer, since the plain language of sub-Section (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:


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         [S]ubsection (b)(1)(ii) has two components, which must
         be alleged and proved. Namely, the petitioner 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, 176–77 (Pa. Super. 2015)

(footnote omitted).

      Appellant’s newly discovered facts claim is based on two sworn

affidavits he recently obtained from the surviving victim, Steele. See Steele

Affidavit I, 5/6/15, at 1 (single page) (attached to Initial Petition); Steele

Affidavit II, 8/6/15 (single page) (attached to Supplemental Petition).

Steele, as noted above, did not testify at Appellant’s trial.   Furthermore,

there is no indication in the record that Steele ever identified Appellant as

his assailant.   Thus, Steele’s proposed testimony exonerating Appellant is

not a recantation of any prior testimony.

      In his affidavits, Steele averred that on March 23, 2015, he was

transferred from SCI-Mahonoy to SCI-Frackville. On March 24, 2015 he saw

Appellant in the prison yard and introduced himself.       Appellant did not

recognize him at first, so he told Appellant that he “was in the car with Luis

Delgado when he was killed and that [he] knew that [Appellant] was not the



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person who shot [them].” Steele Affidavit I at 1 ¶ 4. Steele told Appellant

“that the person who shot [him] was Robert Paredes.” Id.

       Steele is now willing to testify that Appellant was not his assailant and,

moreover, that he knows precisely who injured him and murdered Luis

Delgado on May 9, 1999. Id. Steele also indicated in his affidavits that he

was not willing to testify to that effect in the past out of fear of retribution

from the actual perpetrator of the attack.         Id. at ¶ 3.   Moreover, Steele

stated that “homicide detectives … showed me photo arrays in 1999 of

[Appellant] and kept trying to coerce me into saying that he was the one …

that committed the crime, when I kn[e]w for a fact it was Robert Paredes….”

Steele Affidavit II at 1 ¶ 2. Although reluctant to disclose Robert Paredes’

identity to those detectives, Steele “gave them a proper description of a guy

with a beard, and hoped that they would find the guy themselves.” Steele

Affidavit I at 1 ¶ 3.3

       Virtually no analysis, whatsoever, is provided by the PCRA court to

support its denial of the Petition.        Indeed, the PCRA court does not even

mention the nature of Appellant’s claim at all in it opinion. The PCRA court’s

opinion consists entirely of boilerplate PCRA law, and a single sentence


____________________________________________


3
  Indeed, when interviewed by police, Steele stated that the assailant “had a
hoodie on, [and] either had a beard or something covering the bottom of his
face. It happened so quick I couldn’t get a good look at him.” Investigation
Interview Record, 4/12/00, at 3 (attached as the second exhibit to Initial
Petition).



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declaring that Appellant purportedly “failed to properly plead an exception

[to the PCRA’s timeliness requirements,] much less meet his burden of

proof….”     PCO at 3.        More troubling, our own review of the Petition

demonstrates that Appellant most certainly pleaded the applicability of a

timeliness exception, specifically, 42 Pa.C.S. § 9545(b)(1)(ii). On its face,

Appellant’s Petition appears also to satisfy the requirements of 42 Pa.C.S. §

9545(b)(2), as Appellant filed it within 60 days of first speaking to Steele on

March 24, 2015.         Appellant specifically averred the applicability of the

timeliness exception set forth in Section 9545(b)(1)(ii) in his Initial Petition, 4

Supplemental Petition,5 and in his Amended Petition.6           Accordingly, it is

abundantly clear that this Court cannot affirm on the basis set forth in the

PCRA court’s opinion, because the cursory conclusion announced therein is

not at all supported by the evidence of record. Ragan, 923 A.2d at 1170.

Indeed, the record directly contradicts the basis for the PCRA court’s

decision.

        Nevertheless, this Court “may affirm a PCRA court's decision on any

grounds if the record supports it.” Commonwealth v. Ford, 44 A.3d 1190,
____________________________________________


4
  See Initial Petition (Memorandum of Law at 3) (attached as the first
exhibit).
5
    See Supplemental Petition at 1 ¶ 1.
6
 See Amended Petition at 2 ¶ 4 (incorporating, by reference, the Initial and
Supplemental Petitions); Id. at ¶ 5a (directly averring his satisfaction of
Sections 9545(b)(1)(ii) and 9545(b)(2)).



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1194 (Pa. Super. 2012). Accordingly, we now turn to the Commonwealth’s

brief, in which the Commonwealth asserts several arguments for affirming

the PCRA court’s denial of the Petition on alternative grounds.

      First, the Commonwealth contends that Appellant

      failed to offer to prove in his petition that he raised this claim
      within sixty days of first learning of the alleged after-discovered
      evidence. See 42 Pa.C.S. § 9545(b)(2) (claims raised pursuant
      to statutory exceptions to time-bar must be raised within sixty
      days); Commonwealth v. Bennett, 930 A.2d 1264, 1271 (Pa.
      2007) (PCRA petitioner must explain why he could not have
      learned the new facts earlier with the exercise of due diligence).
      Rather, he simply averred in his Memorandum of Law that Mr.
      Steele "did not come forward to tell the truth until 3-23-15 due
      to fear of the real perpetrator of the crime" (Memorandum of
      Law, 1). In his petition, he vaguely averred only that this
      allegedly "newly discovered evidence... could not have been
      discovered until 3-23-15" (Amended Petition, 2, ¶ 5a), without
      further explanation. This bald averment fell far short of fulfilling
      his burden, and this alone was enough for the PCRA court to
      dismiss his petition as untimely.

Commonwealth’s Brief at 7-8.

      We disagree. Steele’s proposed testimony, if ultimately found credible

by the PCRA court, would constitute sufficient proof that Appellant filed his

Initial Petition in accordance within the 60-day requirement set forth in

Section 9545(b)(2).    The notion that Appellant must “prove” the factual

averments in his Petition, in the Petition itself, rather than at an evidentiary

hearing, is an absurdity.   While it is possible in some circumstances that




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proof of the basis for relief could be provided in a PCRA petition itself,7 there

would never be any need for an evidentiary hearing if, in fact, in all

circumstances, averments must be both pled and proven in the petition.

Rather, a PCRA petition must, at a minimum, aver facts which, if proven,

would be sufficient to entitle the petitioner to relief. A hearing will always be

(or almost always) be required, where the basis for relief is a newly

discovered fact. Indeed, apart from the obviousness of these principles, our

Rules of Criminal Procedure make them quite explicit:

       (A) Except as provided in Rule 907, the judge shall order a
       hearing:

          (1) whenever the Commonwealth files a motion to dismiss
          due to the defendant's delay in filing the petition; or

          (2) when the petition for post-conviction relief or the
          Commonwealth's answer, if any, raises material issues
          of fact. However, the judge may deny a hearing on a
          specific issue of fact when a full and fair evidentiary
          hearing upon that issue was held at trial or at any
          proceeding before or after trial.

Pa.R.Crim.P. 908(A).

       Here, Appellant raised material issues of fact in his Petition regarding:

(1) whether he satisfied Section 9545(b)(2) by proffering Steele as a

____________________________________________


7
  For instance, claims relying on the timeliness exception set forth in Section
9545(b)(1)(iii) are often “provable” in a PCRA petition itself, because the
claim is premised on a new legal decision potentially affecting the petitioner.
However, even in those circumstances, an evidentiary hearing might
occasionally be necessary to determine whether the case under review is
sufficiently analogous to the new decision, such as when the existing record
is not sufficient to make that determination.



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witness; (2) by averring that Steele would testify consistently with his

proffered affidavits at the requested hearing; and (3) by presenting those

affidavits, which on their face assert facts that could provide relief under

Section   9545(b)(2)    if   found    credible.    It   is   beyond   this   Court’s

comprehension what more Appellant could have done in these circumstances

to satisfy, in the petition itself, the requirements of the PCRA statute and

Rule 908.      While Appellant could potentially provide more corroborating

evidence, Steele’s and Appellant’s testimony, alone, if deemed credible by

the factfinder, would be sufficient to satisfy the exception pled by Appellant.

Moreover, the Commonwealth’s argument that Appellant merely presented

“bald averments” of his satisfaction of Section 9545(b)(2) is belied by the

ample discussion provided in the Petition regarding Appellant’s satisfaction of

that provision.

      Second, but relatedly, the Commonwealth asserts that Appellant failed

to sufficiently aver facts in the Petition demonstrating that he acted with due

diligence, and, instead, that “the proffered affidavit itself rebuts any

conceivable claim of due diligence.”         Commonwealth’s Brief at 8.        This

argument is also belied by the record.

      Appellant did, in fact, aver facts in his Petition which, if believed by the

factfinder at an evidentiary hearing, could be sufficient to demonstrate that

he acted with due diligence.         Appellant did not baldly aver that he acted

with due diligence in discovering the new evidence (Steele’s exonerating

affidavits).   On their face, Steele’s affidavits indicate that Steele was not

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inclined to assist the police between the time of the shooting and Appellant’s

trial. See Steele Affidavit I at 1 ¶ 3 (“I was interviewed by the detectives in

the hospital. At the time of the interview, I wasn’t interested in cooperating,

[b]ecause I didn’t want the guy who shot me or his crew to come after me

or my family.”).

      Moreover, in the legal memorandum accompanying the Initial Petition,

Appellant dedicated a substantial part of his argument to the issue of due

diligence. Therein, Appellant averred the following:

      The Petitioner now turns toward the due diligence standard that
      must be met to completely invoke jurisdiction.

             The Petitioner avers that the Commonwealth did not call
      Mr. Steele as a witness during his trial for the murder of Mr.
      Delgado, and he was unable to cross examine him concerning
      the identity of the shooter. Additionally, in his affidavit, Mr.
      Steele himself announced that he was reluctant to cooperate
      with the police investigating the crime, and intentionally failed to
      provide the name of Mr. Paredes as the shooter, out of fear of
      retaliation against him and his family. Even if Mr. Steele were
      called to testify, he would have provided, at a minimum,
      misleading information concerning the identity of the shooter.
      The Petitioner cannot be faulted for failing to timely discover new
      evidence from a person who admittedly lied to the police
      concerning the identity of the shooter.           Nevertheless, the
      Petitioner avers that he made several attempts at locating Mr.
      Steele throughout the years after the trial occurred.           The
      Petitioner sent several letters to Mr. Steele’s last known address,
      all of which were returned to him undelivered. The Petitioner
      solicited the assistance of the community in locating Mr. Steele
      and they were unable to locate him because he intentionally
      absented himself from the area in which he was living. The
      Petitioner even solicited the assistance of a private investigator,
      wh[o] was unable to locate Mr. Steele to conduct an interview
      with him. As such, the Petitioner has made many reasonable
      attempts at due diligence to discover Mr. Steele’s whereabouts.



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             When Mr. Steele approached the Petitioner at SCI-
      Frackville, the Petitioner was not even aware of who he actually
      was until he introduced himself. The Petitioner had never met
      Mr. Steele previously, and he was unfamiliar with where Mr.
      Steele lived or who he associated with. The Petitioner has
      clearly met the standard of … due diligence ….

Initial Petition (Memorandum of Law at 4-5).

      The Commonwealth, however, claims in its brief that Appellant “only

vaguely averred … that this allegedly ‘newly discovered evidence … could not

have been discovered until 3-23-15’ … without further explanation.”

Commonwealth’s Brief at 8. This assertion is clearly not supported by the

record. Appellant’s due diligence averments were not vague, and they were

explained in sufficient detail to justify an evidentiary hearing on their merits.

      We next consider the Commonwealth’s assertion that Steele’s affidavit

itself rebuts Appellant’s due diligence averment.          The Commonwealth

argues:

      The affidavit avers that in 2002, Mr. Steele told a private
      investigator hired by defendant that defendant was not the
      shooter and that he would be willing to testify. Even if Mr.
      Steele had been "unknown" by defendant at the time of trial
      (and of course he was, as one of the two victims, known to
      defendant at trial), defendant still did not file his petition until
      May 11, 2015, thirteen years after the affidavit alleges that Mr.
      Steele first informed the defense of his supposed recantation.

Commonwealth’s Brief at 9.

      Here, the Commonwealth drastically overstates its case and, at best,

has identified a reasonable topic of inquiry for an evidentiary hearing to

determine whether Appellant acted with due diligence.              That is, the



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Commonwealth has essentially identified a basis upon which to challenge

Appellant’s claim of due diligence, but has not disproven it on the face of the

record. In Steele’s second affidavit, he stated:

      I was also seen by a Private Investigator … in 2002 on behalf of
      [Appellant]’s lawyer at the time, James Bruno.           I was
      interviewed …. I gave [the investigator] a signed affidavit in
      hopes of rectifying the wrong that was done to [Appellant]. I
      stayed in the County Jail [for] a time and then went to State
      Prison and was never called to testify.

Steele Affidavit II at ¶ 3.

      The    Commonwealth’s        argument        assumes     too   much   from      this

statement.     First, it is neither clear nor obvious that the investigator

identified by Steele is the same one which Appellant referenced in the legal

memorandum       attached     to   his   Initial   Petition.    Steele   identifies    an

investigator working on behalf of Appellant’s attorney, not Appellant directly,

and claims that he met with him in 2002.                Appellant’s discussion of an

investigator, on the other hand, suggests that he hired one directly, and he

does not specifically indicate when that person conducted his investigation.

It is possible, given these limited facts, that Steele and Appellant are not

discussing the same investigator.        Of course, any such confusion could be

cleared up at an evidentiary hearing.

      Furthermore, even assuming it was the same person, it is not at all

clear that the investigator conveyed this information to his employer,

whether that employer was Appellant alone, or his attorney. While it may

seem implausible at first glance that an investigator would not have


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conveyed this information to Appellant or his attorney (a signed affidavit

exonerating Appellant, no less), it seems equally implausible to this Court

that, with such an affidavit in hand, neither Appellant nor his prior attorney

would have used it as basis to make a newly discovered facts claim at an

earlier time.8 A wholly distinct possibility is that Steele embellished his own

efforts to right the wrong he had inflicted on Appellant by staying silent

during the investigation.

       All these possibilities, like the Commonwealth’s argument, are merely

speculative. The core issue with regard to the purported 2002 affidavit, if it

ever existed at all, is whether Appellant was aware of it but nevertheless

failed to act. Clearly, such a determination can only be made following an

evidentiary hearing.        Neither this Court, nor the Commonwealth, can

accurately make legal conclusions based on purported ‘facts’ which have yet

to be assessed, in any capacity, by the PCRA court.

       Finally,   we   address     the   perfunctory   argument   offered   by   the

Commonwealth in a few sentences set forth at the end of its brief.

Commonwealth’s Brief at 9.           The Commonwealth essentially asserts that

because Appellant knew he was not the shooter (given his assertion of

innocence), that “he would have known that any eyewitnesses would have

been able to exonerate him.          Steele’s affidavit thus could not theoretically

____________________________________________


8
  Appellant’s first PCRA petition was not filed until February 10, 2003, after
Steele’s purported production of an exonerating affidavit.



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contain any ‘fact’ unknown to [Appellant] at his trial over a decade ago.”

Id.   The Commonwealth believes this argument flows naturally from the

undisputed proposition that Section 9545(b)(1)(ii) is focused “on the newly

discovered facts, not on a newly discovered or newly willing source for

previously known facts.” Brown, 111 A.3d at 176.

      The problem with this line of argumentation is that it presumes that

the newly discovered fact at issue is the very proposition of Appellant’s

innocence itself. This is an absurd assumption because, if taken to its logical

conclusion, no evidence of any sort, physical or testimonial, could ever

satisfy   the   exception   to   the   PCRA’s    time-bar   set   forth   in   Section

9545(b)(1)(ii), unless the petitioner believed himself to be guilty at the time

of trial, but only later discovered his innocence.          The Commonwealth’s

argument seems clever enough at first glance, but at its heart, it is circular,

meaningless, or both. If taken seriously, it would completely eviscerate the

purpose of Section 9545(b)(1)(ii).

      In this context, guilt and innocence are terms of art; specifically, legal

conclusions which flow from facts established by evidentiary rules and

credibility determinations, not facts in and of themselves.               The newly

discovered facts exception therefore does not contemplate innocence itself

as a fact which might be newly discovered – at least not exclusively.

Instead, it concerns newly discovered evidence or facts which tend to prove

innocence or disprove guilt.




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         Instantly, Steele was, by his own admission, not willing to exonerate

Appellant before and during Appellant’s trial.         If found credible at an

evidentiary hearing, this would demonstrate that Appellant was not aware,

and could not have become aware before or during his trial, that Steele

could have identified the actual assailant, thereby exonerating Appellant.

Thus, the proffered evidence of Steele’s testimony is new to Appellant, even

if Appellant always knew himself to be innocent.              Indeed, Appellant

specifically avers that, prior to his trial, his trial “counsel relayed to him that

he spoke to Mr. Steele and that [Steele] could not provide any information

concerning the identity of the assailant.”     Initial Petition (Memorandum of

Law at 5).

         For the above reasons, we conclude that the PCRA court abused its

discretion in denying Appellant’s Petition without a hearing.        The cursory

conclusion set forth in its opinion was not supported by the record, and this

Court cannot identify any other legal basis upon which to affirm that

conclusion, after careful consideration of the arguments to that effect

presented by the Commonwealth. Accordingly, we are compelled to remand

for an evidentiary hearing to determine whether Appellant acted with due

diligence in discovering the new facts represented by Steele’s affidavits, and,

if so, whether the newly discovered facts are credible and warrant a new

trial.

         Order vacated.      Case remanded for an evidentiary hearing.

Jurisdiction relinquished.

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     Judge Musmanno concurs in the result of this memorandum.

     Judge Shogan notes her dissent.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/31/2017




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