J-S20035-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MARQUIS THOMAS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2555 EDA 2022

Appeal from the PCRA Order Entered September 28, 2022

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

No(s): CP-23-CR-0001721-2011

BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*

DISSENTING STATEMENT BY DUBOW, J.: FILED OCTOBER 20, 2023

I would affirm the Order dismissing the petition without a hearing as 

untimely. Because Appellant failed to plead in his PCRA Petition why he was

unable to obtain the information earlier with the exercise of due diligence, I 

conclude he has not satisfied the timeliness exception provided in Section 

9545(b)(ii) and the trial court properly dismissed the Petition. 

The PCRA provides, in relevant part, that “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 . . . (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[.]” 42 Pa.C.S. § 9545(b)(ii). As 

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* Retired Senior Judge assigned to the Superior Court.
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the Majority recognizes, the mere assertion that a petitioner only recently 

learned of the existence of the newly-discovered evidence does not satisfy the 

Section 9545(b)(1)(ii) timeliness exception. See MO at 10, citing 

Commonwealth v. Sanchez, 204 A.3d 524, 526-27 (Pa. Super., 2019), 

Commonwealth v. Pew, 189 A.3d 486, 489-90, Commonwealth v. 

Priovolos, 746 A.2d 621, 625-26 (Pa. Super. 2000). In addition, although 

the trial court addressed the issue as “after-discovered evidence,” a 

determination on that basis occurs only if the petition is deemed timely.

1 See

Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017) (recognizing the 

distinction between the newly discovered facts exception provided in Section 

9545(b)(ii) and the after-discovered evidence basis for relief delineated in 

Section 9543).

Here, Appellant did not allege that the unknown facts could not have 

been ascertained by the exercise of due diligence. Rather, Appellant submits 

the following statement:

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1 Where a petition is “otherwise timely, to prevail on an after-discovered 

evidence claim for relief under subsection 9543(a)(2)(vi), a petitioner must 

prove that (1) the exculpatory evidence has been discovered after trial and 

could not have been obtained at or prior to trial through reasonable diligence; 

(2) the evidence is not cumulative; (3) it is not being used solely to impeach 

credibility; and (4) it would likely compel a different verdict.” Burton, 158 

A.3d at 630, citing Commonwealth v. D'Amato, 856 A.2d 806, 823 (Pa. 

2004). Here, as the Majority notes, without a finding that Appellant’s petition 

was timely, the court did not have jurisdiction to address whether the evidence 

met the standards required for relief under Section 9543(a)(vi).
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[S]uch evidence could not have been ascertained at the time of 

trial by the exercise of due diligence because the witness’s new 

statement comes forward after revealing the prosecution required 

the witness to violate the judge’s sequestration order [imposed 

during the preliminary hearing] in order to get custody of her 

daughter.

PCRA Petition, filed 9/7/21/ at ¶ 16 (emphasis added).

Appellant fails to acknowledge the timeliness requirements set forth in 

Section 9545(b)(ii). The new evidence here is the witness statement given to 

the private investigator in 2021. The timeliness exception requires a 

petitioner to plead why he could not have obtained that statement prior to the 

passage of the nine years following his conviction. In this case, Appellant does 

not provide an explanation, but rather only makes a bald statement in the 

PCRA petition that Appellant learned of the existence of the statement. This 

does not satisfy the requirements necessary to establish the applicability of 

the Section 9545(b)(ii) exception. Sanchez, 204 A.3d at 526-27. 

Accordingly, I would affirm the PCRA court’s order dismissing the 

petition as untimely.