Com. v. Wells, E.

J-S12009-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWARD WELLS :
:
Appellant : No. 615 EDA 2021

Appeal from the PCRA Order Entered March 12, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005989-2008

BEFORE: BENDER, P.J.E., BOWES, J., and DUBOW, J.

MEMORANDUM BY BENDER, P.J.E.: FILED JULY 26, 2022

Appellant, Edward Wells, appeals from the order dismissing his petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9546. After careful review, we vacate the order denying Appellant’s petition

and remand for an evidentiary hearing.

In affirming Appellant’s judgment of sentence during his direct appeal,

this Court summarized the factual and procedural history of this case as

follows:

On April 9, 2008, Appellant and two other men approached an
individual named Jarrett Williams and shot at him. Appellant was
wearing a hooded sweatshirt with his hood up and his cohorts
were wearing ski masks. The victim, Ronald Green, was nearby
at a local Chinese store. Mr. Green knew Appellant, who had lived
in the area the previous summer. As Appellant approached him,
Mr. Green asked Appellant if he was “ButterRoll,” Appellant’s
nickname. Appellant responded in the affirmative and stated he
had words for the victim. Appellant then raised his weapon and
fired a shot at Mr. Green. Police responded to the area for shots
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fired. Mr. Green told police that “ButterRoll” shot at him and
described him as being five foot five inches in height. Appellant
is five foot five inches tall. In addition, Mr. Green and Mr. Williams
both selected a photograph of Appellant as “ButterRoll.”

Police arrested Appellant on April 10, 2008, and filed the original
criminal complaint in this matter on April 11, 2008. The case was
listed for trial on April 14, 2010, but was continued to the next
day at the Commonwealth’s request after three Commonwealth
witnesses, including Mr. Green, failed to appear. Efforts to locate
Mr. Green proved unsuccessful, and the court continued the case
upon motion of the Commonwealth, with jury selection to begin
on August 24, 2010. Appellant filed a [Pa.R.Crim.P.] 600 motion,
alleging that the Commonwealth had not timely brought Appellant
to trial. The court denied that motion on August 24, 2010, and
the parties selected eleven jurors that day. Still unable to locate
Mr. Green, on August 25, 2010, the Commonwealth requested a
continuance. Upon the court denying that request, the
Commonwealth asked the court to nolle prosse the matter without
prejudice. The trial court granted that request over Appellant’s
objection. Appellant appealed, arguing that the trial court erred
in issuing a nolle prosse and declining to grant his Rule 600
motion.

This Court addressed Appellant’s claim on the merits and affirmed,
finding that no Rule 600 violation had occurred as of August 25,
2010. Commonwealth v. Wells, 50 A.3d 248 (Pa. Super. 2012)
(unpublished memorandum). The Pennsylvania Supreme Court
denied Appellant’s petition for allowance of appeal on February
28, 2013. The record, then lodged with this Court, was returned
to the trial court on April 10, 2013[,] and received by that court
on April 11, 2013. However, prior to the physical record being
returned to the court of common pleas, and over Appellant’s
objection, the court granted the Commonwealth’s motion to
vacate the nolle prosse on March 20, 2013. The court then
scheduled a scheduling conference before a different judge for
April 3, 2013. That judge then set this matter for trial on May 20,
2013.

Mr. Green and another witness, Nalene Gravely, failed to appear.
The court issued bench warrants for those individuals and
continued the case to the following day. Appellant renewed his
motion to dismiss under Rule 600, and the court denied that
request. The following day, the Commonwealth, having
apprehended Mr. Green, asked for and received permission to hold

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him in custody as a material witness. Trial began that same date
and concluded on May 23, 2013. At trial, Mr. Green denied that
it was Appellant who fired the shot at him. The prosecution then
introduced a signed written statement Mr. Green provided to
police in which he identified Appellant as the perpetrator and
selected him from a photographic array as the shooter.[1]

Commonwealth v. Wells, No. 2570 EDA 2013, unpublished memorandum

at 1-4 (Pa. Super. May 12, 2015).

The jury convicted Appellant of aggravated assault, possession of an

instrument of crime, carrying a concealed firearm without a license, and

carrying a firearm on the public streets of Philadelphia, but acquitted him of

attempted murder. Id. at 4. Appellant was subsequently sentenced to 9½ to

22 years’ incarceration. Id. On direct appeal, Appellant raised 28 issues. Id.

This court affirmed his judgment of sentence, and our Supreme Court denied

further review. Commonwealth v. Wells, 122 A.3d 446 (Pa. Super. 2015)

(unpublished memorandum), appeal denied, 132 A.3d 458 (Pa. 2016).

Appellant filed a previous PCRA petition, his first, on August 31, 2016.

Following multiple amendments and an evidentiary hearing, the PCRA court

ultimately dismissed that petition by order dated November 3, 2017.

Appellant filed a timely notice of appeal from that order, but he ultimately

withdrew that appeal on March 26, 2019.

____________________________________________

1 Additionally, we note that in his statement to police on the night of the
shootings, Jarret Williams indicated that he was able to identify Appellant,
despite the fact that Appellant was wearing a mask, because Green told
Williams that Appellant had been the shooter based on Green’s verbal
interaction with the shooter. See N.T. Trial, 5/22/13, at 177. At Appellant’s
trial, Williams, like Green, also recanted large portions of his statement to
police.

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While his prior appeal was pending before this Court, Appellant filed, pro

se, a PCRA petition on January 24, 2018. In that petition, Appellant alleged

the discovery of new evidence from Dontae Wright (hereinafter “Wright”), and

Appellant attached to his petition a notarized affidavit from Wright (hereinafter

“Wright affidavit” or “Wright’s affidavit”). See PCRA Petition, 1/23/18, Exhibit

A. In his affidavit, Wright claimed that, around the same time as the assault

of Green, he was attacked by a hooded gunman wearing all black, who asked,

“where is ButterRoll” while assaulting Wright. Id. Appellant argued in his

petition that this was new, exculpatory evidence because, as established at

his trial, Appellant was/is the person known as “ButterRoll,” and thus Wright’s

affidavit suggests that Green’s assailants were looking for Appellant and,

consequently, that Appellant was not one of Green’s attackers. Id. at 1-2.

Counsel was appointed and filed amended petitions on Appellant’s behalf

on May 9, 2019, and September 17, 2019. On January 8, 2021, the PCRA

court issued a boilerplate, Pa.R.Crim.P. 907 notice of its intent to dismiss the

petition without hearing, wherein the court indicated that the “issues raised in

the original and amended [PCRA] petition are without merit.” Rule 907 Notice,

1/8/21, at 1 (single page). Appellant filed a timely response on January 28,

2021, but the PCRA court ultimately issued an order denying the petition on

March 12, 2021. This timely appeal followed. Appellant filed a timely, court-

ordered Pa.R.A.P. 1925(b) statement on May 5, 2021, and the court issued its

Rule 1925(a) opinion on August 17, 2021.

Appellant now presents the following questions for our review:

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1. Did the PCRA [c]ourt err by dismissing [Appellant]’s PCRA
Petition as untimely when newly[-]discovered evidence was
uncovered on December 6, 2017[,] and [Appellant]’s pro se
PCRA Petition was filed, alleging the newly discovered
evidence, on January 24, 2018, merely forty-nine (49) days
after the facts upon which the claim was predicated became
known to [him]?

2. Did the PCRA [c]ourt err by dismissing [Appellant]’s PCRA
Petition without first holding an evidentiary hearing when
[Appellant] raised a claim of newly[-]discovered evidence,
in the form of a previously unknown eyewitness, who
authored, signed and notarized an affidavit stating he was
present and a victim himself of the crime in question[,] and
that the perpetrators of the crime were demanding to know
where [Appellant] was, indicating that [he] was not one of
the perpetrators?

Appellant’s Brief at 2.

As is pertinent to both issues before this Court, we

review an order dismissing a petition under the PCRA in the light
most favorable to the prevailing party at the PCRA level. This
review is limited to the findings of the PCRA court and the evidence
of record. We will not disturb a PCRA court’s ruling if it is
supported by evidence of record and is free of legal error. This
Court may affirm a PCRA court’s decision on any grounds if the
record supports it. Further, we grant great deference to the
factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we
afford no such deference to its legal conclusions. Where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal

citations omitted). Here, the record does not include a PCRA hearing, because

the PCRA court declined to hold one. Nevertheless,

the right to an evidentiary hearing on a post-conviction petition is
not absolute. It is within the PCRA court’s discretion to decline to
hold a hearing if the petitioner’s claim is patently frivolous and has
no support either in the record or other evidence. It is the

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responsibility of the reviewing court on appeal to examine each
issue raised in the PCRA petition in light of the record certified
before it in order to determine if the PCRA court erred in its
determination that there were no genuine issues of material fact
in controversy and in denying relief without conducting an
evidentiary hearing.

Commonwealth v. Khalifah, 852 A.2d 1238, 1239–40 (Pa. Super. 2004)

(citations omitted).

1.

In his first issue, Appellant essentially contends the PCRA court erred in

determining that he failed to meet an exception to the PCRA’s timeliness

requirements. The PCRA’s 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
Constitution or laws of this Commonwealth or the
Constitution or laws of the United States;

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(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). Additionally, section 9545(b)(2) requires that

any petition attempting to invoke one of these exceptions “be filed within one

year of the date the claim could have been presented.” 42 Pa.C.S. §

9545(b)(2).2

Here, it is undisputed that Appellant was required to avail himself of a

timeliness exception due to the facial untimeliness of the PCRA petition

currently under review.3 Nevertheless, the PCRA court indicated that it had

dismissed Appellant’s petition on the merits in its Rule 907 notice, and only

first suggested that Appellant failed to meet a timeliness exception in its Rule

____________________________________________

2 Section “9545(b)(2) originally provided that a petition invoking a timeliness
exception was required to be filed within sixty days of the date the claim could
first have been presented. However, effective December 24, 2018, the
legislature amended Subsection 9545(b)(2)” to increase that time limit to one
year.” Commonwealth v. Vinson, 249 A.3d 1197, 1204 n.5 (Pa. Super.
2021). “The amendment to Subsection 9545(b)(2) only applies to ‘claims
arising on [December] 24, 2017, or thereafter.’” Id. (quoting 42 Pa.C.S. §
9545(b)(2) (comment)).

3The petition under review was untimely because it was not filed by May 25,
2017, one year after the 90-day time-period for filing certiorari in the United
States Supreme Court elapsed. PCRA Court Opinion (“PCO”), 8/17/21, at 4.
Appellant concedes the facial untimeliness of his petition in this regard, but
argues that his petition meets an enumerated exception. Appellant’s Brief at
8.

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1925(a) opinion. In its Rule 1925(a) opinion, the PCRA court indicated that

Appellant’s PCRA petition was untimely because

Wright’s affidavit is included in [Appellant’s] amended petition
filed 11 years after his arrest and six years after his conviction at
trial where two eyewitnesses identified [him] as the shooter.
[Appellant’s] amended PCRA petition provides no explanation as
to why the information provided by Wright could not have been
learned sooner. Additionally, the Wright affidavit is dated
December 6, 2017[,] and yet [Appellant] did not file his second
PCRA petition citing to the Wright affidavit until March 5, 2019,
which was more than 15 months after the Wright affidavit is
dated. Even if the untimeliness is excused as [newly-]discovered
evidence, [Appellant]’s second PCRA petition was untimely
because it [was] not filed within one year of the date that one of
the exceptions could have been presented, i.e., December 6,
2018.

PCO at 5-6.

We begin where the PCRA court ended, with the court’s indicating that

Appellant failed to satisfy the 1-year time limit set forth in section 9545(b)(2).

As discussed above, claims that could have been raised before December 24,

2017 are subject to the pre-amended time limit of 60 days. See n.2, supra.

Appellant’s claim ostensibly falls under the prior version of section 9545(b)(2),

given the date on Wright’s affidavit, which was December 6, 2017.

Appellant first filed a pro se petition raising a claim regarding Wright’s

affidavit on January 24, 2018, not on March 5, 2019, the latter being the date

on which Appellant filed an unrelated, pro se PCRA petition.4 Wright’s affidavit
____________________________________________

4 In Appellant’s pro se PCRA petition filed on March 5, 2019, he listed the lower
court’s docket number assigned to this matter, CP-51-CR-0005989-2008
(“case 5989”), alongside the docket number of an unrelated case, CP-51-CR-
(Footnote Continued Next Page)

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was attached to the January 2018 petition, which was filed well-within 60 days

as measured from the date of the affidavit.

However, Appellant’s January 2018 petition was premature. His appeal

from the dismissal of his first PCRA petition was still pending until this Court

granted Appellant’s motion to withdraw that appeal on March 26, 2019.5

“Pennsylvania law makes clear the trial court has no jurisdiction to consider a

subsequent PCRA petition while an appeal from the denial of the petitioner’s

prior PCRA petition in the same case is still pending on appeal.”

Commonwealth v. Beatty, 207 A.3d 957, 961 (Pa. Super. 2019). Thus, the

PCRA court had no jurisdiction to entertain a petition based on the newly-

discovered evidence from Wright’s affidavit while this Court still held

jurisdiction of the appeal from the denial of Appellant’s prior PCRA petition in

this case.6 Consequently, the clock could not start running for purposes of

Section 9545(b)(2) on the date of Wright’s affidavit. Instead, in these

circumstances,

[w]here a prior petition is pending on appeal, a subsequent
petition must be filed within the time limits set forth in Section
9545(b)(2) as measured from the date of the order that

____________________________________________

0004435-2013 (“case 4435”). However, apart from listing case 5989’s docket
number, the March 2019 petition exclusively raised matters concerning case
4435.

5 See Order Dismissing Appeal at 32 EDA 2018, 3/26/19, at 1 (single page).

6 We note that, even if Appellant’s March 5, 2019 petition was related to this
matter, the PCRA court lacked jurisdiction to consider it at that time due to
the still-active prior PCRA appeal in case 5989.

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finally resolves the appeal in the prior petition, because
that date is the first date the claim could be presented.

Id. at 963 (emphasis added).

Here, Section 9545(b)(2)’s time limit began on the date this Court

granted Appellant’s motion to withdrawal his prior PCRA appeal, which was

March 26, 2019. Appellant’s next filing after that date occurred 44 days later,

on May 9, 2019, when his counsel filed an amended PCRA petition, in which

he (again) raised Wright’s affidavit as newly-discovered evidence. See

Appellant’s Amended PCRA Petition, 5/9/19, at 2 ¶¶ 6-7 (unnumbered pages).

Based on this record, we conclude that Appellant satisfied Section

9545(b)(2)’s time limit, as his May 2019 petition, raising a claim pertaining to

Wright’s affidavit, was filed within 60 days of the date he was first able to raise

it.7

Next, the PCRA court also determined that Appellant failed to satisfy the

requirements of the newly-discovered evidence exception because Appellant

ostensibly did not “establish that he could not have learned of the facts in

Wright’s affidavit by exercising due diligence.” PCO at 5.

The timeliness exception set forth in Section 9545(b)(1)(ii) …
requires a petitioner to plead and prove: (1) she did not know the
fact(s) upon which she based her petition; and (2) she could not
have learned those fact(s) earlier by the exercise of due diligence.
____________________________________________

7 We note that existing caselaw does not make it clear whether the 60-day or
1-year time limit applies to claims which might have been raised before
December 24, 2017 but for a pending, prior PCRA appeal that did not
terminate until after that date. However, we need not address that question
today as Appellant’s petition, filed on May 9, 2019, satisfies both the pre- and
post-amended time limit of Section 9545(b)(2), as it was filed within 60 days
of the date Appellant’s prior appeal was withdrawn.

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Bennett, supra. Due diligence demands the petitioner to take
reasonable steps to protect her own interests. Commonwealth
v. Carr, 768 A.2d 1164 (Pa. Super. 2001). This standard,
however, entails “neither perfect vigilance nor punctilious care,
but rather it requires reasonable efforts by a petitioner, based on
the particular circumstances, to uncover facts that may support a
claim for collateral relief.” Commonwealth v. Burton, 121 A.3d
1063, 1071 (Pa. Super. 2015) (en banc), aff'd, … 158 A.3d 618
([Pa.] 2017). Thus, “the due diligence inquiry is fact-sensitive and
dependent upon the circumstances presented.” Id. at 1070. A
petitioner must explain why she could not have learned the new
fact earlier with the exercise of due diligence. Commonwealth
v. Breakiron, … 781 A.2d 94 ([Pa.] 2001). This rule is strictly
enforced. Commonwealth v. Monaco, 996 A.2d 1076 (Pa.
Super 2010)….

Commonwealth v. Shiloh, 170 A.3d 553, 557–58 (Pa. Super. 2017).

The PCRA court summarily concluded that Appellant’s amended PCRA

petition provided “no explanation as to why the information provided by

Wright could not have been learned sooner.” PCO at 5. Appellant argues that

in the at-issue affidavit, “Wright indicated that he never came forward as a

witness because he was scared. If the witness himself was admittedly

unwilling, at the time, to make his existence known to anyone, it would have

been impossible for [Appellant] to have discovered this evidence with any

amount of due diligence.” Appellant’s Brief at 14-15.

In Wright’s affidavit, Wright explicitly stated that he did not come

forward on the day of the shooting because he was scared to do so. Wright’s

Affidavit, 12/6/17, at 1 (single page). Moreover, there is no evidence of record

indicating that the incident involving Wright was known to Appellant, or should

have been known to him, until Wright made contact with Appellant in prison

and provided him with the at-issue affidavit. While “a defendant who fails to

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question or investigate an obvious, available source of information[] cannot

later claim evidence from that source constitutes newly discovered evidence,”

the record here does not support a determination Wright was an obvious

source of potentially exculpatory evidence in Appellant’s case.

Commonwealth v. Padillas, 997 A.2d 356, 364 (Pa. Super. 2010). On the

face of the Wright affidavit, Wright’s observations on the same evening of the

assault on Green were only known to him until he approached Appellant in

prison many years later.

Moreover, even if not immediately apparent from the Wright affidavit

itself, Appellant repeatedly made this argument before the PCRA court. In the

memorandum of law filed in support of his pro se, January 2018 PCRA petition,

Appellant explicitly argued that he did not learn of the facts in Wright’s

affidavit until Wright met with him in the chapel at S.C.I. Graterford in “late

2017.” Memorandum in Support of Appellant’s pro se PCRA Petition, 1/19/18,

at 2. He also averred therein that “a reasonable investigation could not have

revealed that [Wright] was there on 4/9/2008 being held up or almost killed

by masked men actually looking for a man named ‘ButterRoll,’ which happens

to be [Appellant]. And if the Commonwealth’s prosecutors did not know,

[Appellant] and his counsel had no reason to look for this evidence and

probably could not have found it if they had.” Id.

Additionally, in Appellant’s counseled, May 2019 amended petition, he

specifically incorporated the contents of his pro se, January 2018 petition.

Appellant’s Amended PCRA Petition, 5/9/19, at ¶ 6 (“This Amended Petition

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specifically incorporates all allegations in said petition filed by the petitioner

as though expressly set forth herein.”). Furthermore, in a memorandum

accompanying Appellant’s May 2019 petition, he specifically argued that “[t]he

newly discovered evidence in this matter was unavailable as [Appellant] had

no way at the time of trial of knowing that Mr. Wright was a witness as he had

never come forward.” Memorandum in Support of Appellant’s Amended PCRA

Petition, 5/9/19, at 2 (unnumbered pages).

Thus, the record simply does not support the PCRA court’s determination

that Appellant offered no explanation in the at-issue PCRA petition for his

failure to uncover the new evidence contained in the Wright affidavit at an

earlier time. Appellant specifically averred such a reason in both his

(premature) January 2018 petition, and in his May 2019 amended petition

that explicitly incorporated the January 2018 petition. Moreover, that reason

was self-evident from the Wright affidavit that was attached to both petitions.

Thus, on the record before us, we reject the PCRA court’s conclusion that

Appellant failed to satisfy the timeliness exception set forth in Section

9545(b)(1)(ii) based solely on the pleadings. Accordingly, we conclude that

the PCRA court erred by denying Appellant’s petition as untimely without a

hearing.

2.

In his second issue, Appellant challenges the PCRA court’s conclusion

that Appellant’s petition “is meritless even if it was timely filed.” PCO at 6.

An after-discovered-evidence claim warrants relief when

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the petitioner … demonstrate[s] the new 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. The test applies with full force to claims
arising under Section 9543(a)(2)(vi) of the PCRA. In addition, …
the proposed new evidence must be producible and admissible.

Commonwealth v. Small, 189 A.3d 961, 972 (Pa. 2018).

The entirety of the PCRA court’s analysis under the after-discovered

evidence standard is contained in a single paragraph in its Rule 1925(a)

opinion, wherein the court reasons as follows:

Wright’s affidavit only serves to attack Green’s credibility
regarding the identification of the person who shot at him and
what was said to him before he was shot at. Additionally, Wright’s
affidavit discusses an incident from nine years earlier and is vague
as to the time and place of the incident—referring to “Old York
Road” and “late night.” The affidavit also gives no indication of
who the alleged shooter is referring to or talking to, i.e., Wright
or an accomplice. Thus, at most, Wright’s affidavit would
exculpate [Appellant] if he was convicted of shooting at Wright.
But Wright’s affidavit does not exculpate [Appellant] for shooting
at Green or Williams. See … Padillas, 997 A.2d [at] 365
([stating] “a court must assess after-discovered evidence is of
such a nature and character that it would likely compel a different
verdict if a new trial was granted[]”)

PCO at 6. Thus, the PCRA court essentially determined that Appellant failed

to demonstrate that the after-discovered evidence contained in the Wright

affidavit 1) was not solely for the purposes of impeachment, and 2) would

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have compelled a different verdict because it did not tend to exculpate

Appellant for shooting at Green.8

Appellant first argues that the after-discovered evidence would not have

been offered solely to impeach the Commonwealth’s witnesses. He points out

that Green “testified at trial that [Appellant] was not the shooter.” Appellant’s

Brief at 15 (emphasis in original). Thus, Appellant contends that the content

of Wright’s affidavit “is consistent with Green’s testimony while also providing

new, after-discovered evidence that did not come in through any other witness

at trial.” Id.

Indeed, at Appellant’s trial, Green admitted that he was the target of a

shooting on April 9, 2008, and further acknowledged that he had spoken to

police soon thereafter, but he denied knowing, or having previously identified,

Appellant as the shooter, based on his own recollection of the event at the

time of trial. N.T. Trial, 5/22/13, at 57-64. Green claimed he could not recall

anything about the incident due to his ostensible intoxication on that date, as

well as the passage of five years from the incident until the time of trial. Id.

____________________________________________

8 The PCRA court also presumably found that Appellant had not acted with due
diligence in discovering the new evidence contained in the Wright affidavit
under the after-discovered-evidence test, commensurate with its analysis
under the newly-discovered evidence exception to the PCRA court’s timeliness
requirements. For the same reasons discussed supra, we conclude that, on
the face of his petition and the Wright affidavit, and in the absence of an
evidentiary hearing, Appellant satisfied the due diligence standard for both
tests. Furthermore, it is immediately apparent that because the Wright
affidavit describes a separate assault from that which involved victims Green
and Williams, the new evidence is not merely cumulative or corroborative of
the evidence produced at Appellant’s trial.

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at 66-68. He specifically denied that his faltering memory was due to a threat

of retaliation. Id. at 65. However, when shown the statement he made to

police, Green did not deny having identified Appellant at that time, and he did

not deny having previously picked Appellant out of a photo array; he instead

maintained that he had no recollection of having done so. Id. at 71-74.9

Nevertheless, Green refused to identify Appellant as his assailant in court, and

specifically denied that Appellant had shot him during cross-examination. Id.

at 80.

Given the peculiarities of Green’s testimony at trial, we agree with

Appellant that Wright’s affidavit cannot be said to provide only evidence with

which to impeach Green’s trial testimony. Even if the after-discovered

evidence tends to impeach Green’s pre-trial statements to police identifying

Appellant, it could also be read to corroborate Green’s trial testimony insofar

as that testimony called into question his prior identification of Appellant as

his assailant.

In any event, Appellant maintains that “Wright does not purport to have

heard the conversation Green had with one of the gunmen, and none of his

proposed testimony has to do with what Green claims to have seen and

heard.” Appellant’s Brief at 15. We agree. Wright’s proposed testimony does

____________________________________________

9At one point, Green indicated that he did not want to “mak[e] stuff up[,]”
and stated: “If it’s right here, then this is a statement and this is what was
written and this is what was said. So[,] I don’t remember none of this. This
happened five years ago. I’m just telling you what’s on the paper.” Id. at
72.

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not directly refute the credibility of Green’s pretrial identification of Appellant

regarding a separate incident. Thus, we disagree with the PCRA court’s

conclusion that Wright’s affidavit would be used solely to impeach the

credibility of a witness.10

Nevertheless, the PCRA court also held that Appellant’s after-discovered

evidence claim was not meritorious based on its cold reading of the Wright

affidavit, concluding that Wright’s proposed testimony would not likely result

in a different verdict. PCO at 6. The sole issue litigated at Appellant’s trial

was whether Appellant was Green’s assailant, and Green and Williams’

identifications of Appellant were, at least in part, based upon the fact that

Appellant went by the nickname, “ButterRoll.” Appellant argues that evidence

that Wright’s assailant asked where “ButterRoll” was, in close proximity in

time and location to the assault on Green, implies that the gunman was

seeking Appellant and, therefore, that Appellant was not one of Green’s

attackers. Appellant’s Brief at 14.

In its cursory analysis, the PCRA court rejects this theory on two

grounds. First, the court suggests that the Wright affidavit “is vague as to the

time and place of the incident—referring to ‘Old York Road’ and ‘late night.’”

PCO at 6. However, as Appellant explains, the PCRA court’s conclusion in that

regard “suggest[s] that [Wright] is de[scribing] a different shooting, on the
____________________________________________

10Given the fact that Williams’ identification of Appellant was primarily based
on Green’s interaction with the shooter, we reach the same conclusion with
regard to Williams’ identification of Appellant. Wright’s affidavit would not
serve merely to impeach Williams’ prior testimony.

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same night, at the same approximate time and location and while the gunman

was asking for [Appellant]. This is implausible.” Appellant’s Brief at 17. We

agree with Appellant, insofar as we read the Wright affidavit on its face without

the benefit of an evidentiary hearing. Whether Wright’s affidavit is describing

an incident that is sufficiently close in temporal and spatial proximity to justify

making inferences about the identity of Green’s assailant are factual questions

that can only be resolved with further development of the record at an

evidentiary hearing. Wright’s affidavit does not obviously preclude that both

incidents occurred close in time and location to one another, assuming that

Wright’s account was credible. Furthermore, Wright’s credibility also was not

properly assessed because the PCRA court failed to conduct an evidentiary

hearing.

The PCRA court also found Appellant’s after-discovered-evidence claim

lacked merit because Wright’s “affidavit also gives no indication of who the

alleged shooter is referring to or talking to, i.e., Wright or an accomplice.”

PCO at 6. Although the PCRA court failed to elaborate on this point, we

assume it meant that Wright’s assailant might have been speaking to his

cohorts, not Wright. Wright wrote in his affidavit that, after he began running

away from the gunman, he tripped, at which point “there was another tall

skinny guy standing over top of me with a gun pointed at my head yelling[,]

‘where is ButterRoll, where is ButterRoll[?’] I told him I didn’t know then I

heard a gun shot go off….” Wright Affidavit at 1 (single page). This at least

suggests that Wright believed that the assailant was talking to him, and the

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affidavit certainly does not foreclose that possibility on its face. Any ambiguity

in that regard should have been resolved at an evidentiary hearing, and

contemporaneous to an assessment of Wright’s credibility.

We further note that the PCRA court did not suggest, nor in our view

does the record of Appellant’s trial suggest, that the evidence of Appellant’s

guilt was overwhelming, such that the new evidence presented in Wright’s

affidavit could not possibly have made a difference at Appellant’s trial. There

was no physical evidence supporting Appellant’s conviction. The was no

evidence of Appellant’s guilt beyond Green’s and Williams’ identification of

Appellant to police, and there was no audio or video recordings of their

respective statements. While the evidence at trial was legally sufficient to

support a conviction, it was not so overpowering that we can reasonably say

that additional evidence that calls into question the victims’ identification of

Appellant to police would not have made a difference at Appellant’s trial,

especially given the fact that Green and Williams essentially recanted

substantial portions of those statements to police at trial. That is, we cannot

say this without the benefit of an evidentiary hearing where Wright’s proposed

testimony can undergo further development by Appellant and further scrutiny

by the Commonwealth. In sum, we conclude that the PCRA court erred in

denying Appellant’s petition without a hearing on the merits where there are

issues of material fact left unresolved, and where Appellant’s petition is not

patently frivolous. See Khalifah, supra.

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Accordingly, we vacate the order denying Appellant’s PCRA petition, and

remand for an evidentiary hearing to address Appellant’s after-discovered-

evidence claim. The PCRA court may also address the timeliness of Appellant’s

petition under the newly-discovered evidence exception if new facts pertaining

to that exception come to light at the hearing.

Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/26/2022

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