J-E02004-22

2023 PA Super 80

COMMONWEALTH OF PENNSYLVANIA

v.

DEREK MURCHISON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3585 EDA 2019

Appeal from the PCRA Order Entered November 27, 2019

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0913011-2002

BEFORE: PANELLA, P.J., OLSON, J., DUBOW, J., KUNSELMAN, J., NICHOLS, 

J., MURRAY, J., McLAUGHLIN, J., McCAFFERY, J., and SULLIVAN, 

J.

DISSENTING OPINION BY NICHOLS, J.: FILED MAY 10, 2023

I disagree with the Majority’s decision to affirm the PCRA court’s order 

denying relief on Appellant’s PCRA petition. Further, I agree with the Dissent 

that the PCRA court applied the incorrect standard when evaluating the 

substantive merits of Appellant’s after-discovered evidence claim. However, 

I disagree with the Dissent that Appellant is entitled to a new trial at this 

juncture. Therefore, I write separately and conclude that the proper remedy 

is to vacate the PCRA court’s order and remand for the PCRA court to evaluate 

Appellant’s after-discovered evidence claim under the proper legal standard. 

I agree with the Dissent that the PCRA court erroneously relied on 

Commonwealth v. Brooks, 875 A.2d 1141 (Pa. Super. 2005) and 

Commonwealth v. Heilman, 867 A.2d 542 (Pa. Super. 2005) for the 

proposition that a petitioner cannot prove actual innocence solely based on 
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the absence of DNA evidence. See Dissenting Op. at 14-15. Because both 

Brooks and Heilman involved requests for post-conviction DNA testing 

pursuant to 42 Pa.C.S. § 9543.1(c), and did not address substantive claims of 

after-discovered evidence under 42 Pa.C.S. § 9543(a)(2)(vi). See id. at 15-

16, 15 n.5. 

Indeed, Section 9543(a)(2)(vi) does not require proof of actual 

innocence. As the Dissent explains, “a petitioner need only establish by a 

preponderance of the evidence that the exculpatory after-discovered evidence 

would have changed the outcome of the trial if it had been introduced.” Id.

at 13 (citation omitted and formatting altered); see also Commonwealth v. 

Tedford, 228 A.3d 891, 911 (Pa. 2020). Further, a petitioner may be entitled 

to relief under this subsection “even when the record contains other evidence 

that supports a conviction and even where it is possible that a second trial will 

result in re-conviction.” Dissenting Op. at 13 (citing Commonwealth v. 

Payne, 210 A.3d 299, 304-05 (Pa. Super. 2019) (en banc)) (quotation marks 

omitted); see also Commonwealth v. Cooney, 282 A.2d 29, 31 (Pa. 1971). 

Accordingly, I agree with the Dissent that the PCRA court erred in 

rejecting Appellant’s substantive after-discovered evidence claim based on its 

conclusion that the DNA evidence did not establish Appellant’s actual 

innocence. 

However, to the extent the Dissent concludes that Appellant is entitled 

to a new trial, I respectfully disagree. See Dissenting Op., at 8-11, 15-16. 

Because the PCRA court has not yet evaluated Appellant’s after-discovered 
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evidence claim under the correct standard, ordering a new trial at this juncture 

is premature. Given the manner in which the PCRA court decided the issue, 

there are no facts of record from which we can independently determine 

whether Appellant is entitled to relief on his after-discovered evidence claim. 

Therefore, this Court should remand the matter for the PCRA court to review 

Appellant’s after-discovered evidence claim in accordance with the correct 

standard. See, e.g., Commonwealth v. Weiss, 986 A.2d 808, 815-16 (Pa. 

2009) (concluding that the PCRA court erred in granting relief on the 

petitioner’s Brady1 claim without addressing whether the prosecution’s failure 

to disclose evidence “undermined confidence in the outcome of [the 

petitioner’s] trial, such as would have created a reasonable probability of a 

different result” and remanding for the PCRA court to review “all the evidence 

presented at trial, . . . for the potential negative effect disclosure of the alleged 

impeachment evidence would have had thereon” (citation omitted));

Commonwealth v. Sullivan, 820 A.2d 795, 806-07 (Pa. Super. 2003) 

(vacating and remanding for the trial court to evaluate the defendant’s weightof-the-evidence claim under the correct legal standard where record 

evidenced that the trial court erroneously “blended the standards of review 

applicable to” weight of the evidence and sufficiency of the evidence claims). 

For these reasons, I respectfully dissent from the Majority, but disagree 

with the Dissent that a new trial should be ordered. Based on the 

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1 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
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circumstances of this case, I would vacate the PCRA court’s order and remand 

for the PCRA court to evaluate Appellant’s after-discovered evidence claim 

under the proper legal standard.