J

- A26015

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

NAEM WALLER

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2824 EDA 2019
Appeal from the PCRA Order Entered September 26, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0713201

- 2002

BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E. *
MEMORANDUM BY BENDER, P.J.E.: FILED: MARCH 1, 2021
Appellant, Naem Waller, appeals from the post

- conviction court’s
September 26, 2019 order denying, as untimely, his petition filed under the
Post Conviction Relief Act (PCRA) , 42 Pa.C.S. §§ 9541

- 9546. After careful

review, we vacate the court’s order in part, affirm in part, and remand for an
evidentiary hearing limited to one issue

. The PCRA court summarized the facts and procedural history of
Appellant’s case, as follows :
On April 12, 2002, at approximately 11:00 pm, Brian Birkelback (“Birkelback”) and a group of friends met on the corner of Rising Sun Avenue and Gilham Avenue in Philadelphia, PA. As they were sitting in a vehicle, two men approached the vehicle asking t he group if they wanted to buy marijuana. One of the passengers in the vehicle noticed that one of the approaching men had a gun and yelled that this was a robbery. A tussle ensued between Birkelback and one of the men, [during which] the man pulled out

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.J

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a gun and shot Birkelback. After the shooting [,] the shooters fled in a gold Grand Prix. Birkelback was pronounced dead at 12:19

a.m. [] on April 13, 2002.
Appellant and co

- defendant, Devin Rouse (“ Devin ”), were tried by jury on November 14, 2003 [,] and April 14, 2004. Each trial ended in a hung jury. On December 17, 2004, before the Honorable Kathryn Streeter Lewis, a jury found Appellant and Devin guilty. Both wer e convicted for second[

- ] degree murder, robbery, carrying a firearm without a licen se, and possessing instruments of crime in connection to the killing of Birkelback. On February 11, 2005, Appellant was sentenced to life imprisonment without parole for the murder, one to three years for the firearm conviction, and one to two years for t he possession conviction,

ea ch to run consecutive with each other but concurrent to the life sentence. Appellant appealed and, on April 12, 2006, the Pennsylva nia Superior Court affirmed his judgment of sentence. [ Commonwealth v. Waller , 902 A.2d 984 (Pa. Super. 2006) (unpublished memorandum).] Appellant filed a petition for allowance of appeal in the Pennsylvania Supreme Court, which denied allocatur on October 12, 2006. [ Commonwealth v. Waller , 909 A.2d 305 (Pa. 2006).] Appellant filed his first timel y PCRA petition on September 12, 2007. The [PCRA] court issued a notice of intent to dismiss the petition pursuant Pa.R.Crim.P. 907 (“Rule 907 notice”). On April 17, 2008, the court formally dismissed the PCRA petition after Appellant failed to respond t o the notice. Appellant timely appealed the PCRA dismissal and on July 29, 2009, the Pennsylvania Superior Court affirmed the dismissal. [ Commonwealth v. Waller , 981 A.2d 938 (Pa Super. 2009) (unpublished memorandum).] On April 7, 2010, Pennsylvania Sup reme Court denied the petition for allowance of appeal. [ Commonwealth v. Waller , 992 A.2d 889 (Pa. 2010).]
On May 27, 2015, Appellant filed his second [p] ro se PC RA petition, alleging newly[

- ] and after[

- ] discovered facts. Appellant attached an Affidavit claiming that two other people were responsible for the alleged murder, and he attached [an opinion from the PCRA court addressing a PCRA petition filed by his] co
defendant [,] Devin[,] ... that allegedly reveals previously undisclosed mental health issues suffered by Ty

- Ron [Rouse] when he was acting as Commonwealth’s witness against Appellant [,] and that Ty

- Ron recanted his testimony fromJ

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Appellant’s trial. [ 1 ] On July 17, 2018, Appellant filed a counseled amended petition, attaching just the Affidavit. On March 19, 2019, Appellant filed a second [,] counseled [,] amended PCRA petition attaching both the Affidavit and [the] PCRA [court] opinion [in Devin’s case]

. On June 26, 2019, a PCRA hearing was scheduled to allow counsel from both sides to argue the m erits of holding an evidentiary hearing. After argument and having reviewed the PCRA petition, the Affidavit, Devin’s PCRA opinion, and the Commonwealth [’s] pleading [,] this [c] ourt found an evidentiary hearing was not necessary because there was no genui ne issue of material fact, the petition was facially untimely[,] and Appellant could not avail himself of the newly and after discovered facts exception. This [c]ourt filed a Rule 907 notice on August 27, 2019 [,] to which Appellant filed an untimely respo nse
on September 18, 2019. Consequently, on September 26, 2019, this [c] ourt formally dismissed Appellant’s second amended PCRA petition.
PCRA Court Opinion (PCO), 12/24/19, at 1

- 3.

_________________ __________ ______ ____ _______

1 In our memorandum decision on direct appeal, this Court described Ty

Ron’s testimony at Appellant’s trial, as follows:

On May 13, 2002, Ty

- Ron Rouse, Devin’s first cousin, was in custody on another matter. Ty

- Ron told the police that Devin told him that he went to rob Brian with two other people. Brian jumped out of the car and he thought he had a weapon so he shot him in the back. Devin told him that he u sed a 9mm to shoot Brian, they left the car on Roosevelt Boulevard [,] and he threw the gun in the river. The police picked him up for questioning and he told them that he was on his way to see a girl. Ty

- Ron testified at trial concerning what Devin told him as well as how he knew Brian, Michael, Devin and [Appellant]. Ty

- Ron stated that Devin knew M ichael because he bought prescription drugs from him. He also testified that Devin and [Appellant] knew each other very well and that [Appellant] had access to his mother’s car. (N.T.[,] 12/13/04[, at] 37

- 53).

Commonwealth v. Waller , No . 686 EDA 2005, un published memorandum at 5 (Pa. Super. filed April 12, 2006) (citation omitted).J

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Appellant filed a timely notice of appeal, and he also complied with t he

court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The PCRA court filed its Rule 1925(a) opinion on
December 24, 2019. Herein, Appellant states two issues for our review:

1. Did the PCRA [c]ourt abuse its discretion in dismissing Appellant’s PCRA [p]etition without [an] evidentiary hearing with respect to his after[

- ]discovered evidence claim related to Timothy Moses?
2. Did the PCRA [c]ourt abuse its discretion in dismissing Appellant’s PCRA [p] etition without [an] evidentiary hearing with respect to his Brady [ 2 ] and after[

- ]discovered evidence claim related to Ty[

- ]Ron Rouse?
Appellant’s Brief at 2.
This Court’s standard of review regarding an order denying a petition

under the PCRA is whether t he 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 limitat ions implicate
our jurisdiction and may not be altered or disregarded in order to address the
merits of a petition. See Commonwealth v. Bennett , 930 A.2d 1264, 1267
(Pa. 2007). Under the PCRA, any petition for post

- conviction relief, including

a second o r 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:

_________________ __________ ______ ____ _______

2 Brady v. Maryland , 373 U.S. 83 (1963).J

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(b) Time for filing petition.

-- (1) Any petition under this su bchapter, 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 interfe rence 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;
(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 Sta tes 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, at the time Appellant’s petition
was filed, section 9545(b)(2) required that any petition attempting to invoke
one of these exceptions “be filed within sixty days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2). 3
Here, Appellant’s judgment of sentence became final in January of 2 00 7,

and , t hus, his present petition filed in May of 2015 is patently untimely

. Consequently, f or this Court to have jurisdiction to review the merits thereof,

_________________ __________ ______ ____ _______

3 An amendment to section 9545(b)(2), which became effective on December 24, 2018, changed the language to require that a petition “be filed within one year of the date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2). That amendment applies to any claims arising on or after December 24, 2017.J

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Appellant must prove that he meets one of the exceptions to the timeliness
requirements set forth in 42 Pa .C.S. § 9545(b).

In Appellant ’s first issue, he argues that he meets the newly

- discovered

fact exception of section 9545(b)(1)(ii) based on the following statement he
received from Timothy Moses , which Appellant reproduces in his brief, as

follows :

Stan killed white boy Brian on Gilham St back in April of April [ sic ] of 2002. He was w/ Jizz. What happened was white boy Chris owed them some money from a prior drug deal and they went to his crib on Gilham St that night and Stan though[t] Brian was Chris. T hey went to get they money, Brian jumped outta the car and started fighting Stan and got shot. Brian got shot mainly due to mistake identity. Stan had on that polo hat w/ the shirt to match. He was dressed for the party we was supposed to go to the bar tha t night. It was supposed to be his belated b

- day part[y] w just us the Brill Street Boys. Jizz just had on a hoody. He was always street. We was all apart of the Brill Street gang and the cops was questioning us about that shooting when it first happened b ut then they left us alone. I wasn ’ t there when it happened but I was them [ sic ] on Brill St right before they went around there. They drove Jizz Gold gran Prix tinted windowed over there and when they came back Stan hopped out the car and said damn dog. I just shot the wrong mothafucka we ain ’ t never go to the bar either that night. I ’ ve struggled this situation for a couples years now and a big reasons why I decided to come forward now is because I ’ m not that same street thug no more. I ’ ve been in jail fo r multiple years and today I ’ m changed man. I ’ ve completed violence prevention thinking for

a change and etc. My whole mind frame today is different. I been knew this information because its what they told me and I knew that wasn ’ t bullshiting because the next day everybody was talking about it so I went around Gilham St and saw exactly what they was taking about. Stan been dead for years now and I could ’ ve come forward but I was living that thug life the code of silence. When I read those newspaper article s about the vindication if Eugene Giyard for a murder that he didn ’ t even do what he spent 16 yrs behind bars for I know that dev would be subject to the same if I kept my mouth shut. I ’ ve been looking at this dude C Devin in his face for multiple years no w knowing thatJ

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he was booked for a murder that my boys committed so I feel as though now is the right time. Back in 2007 (I think) Dev approached me. I guess he found out who I was somebody out Launcrest [ sic ] and asked me if I knew who really killed Brian. I told him that I couldn ’ t help him and we never spoke about that again But the truth is now before you so ain ’ t no reason to keep the wrong dudes behind bars any longer the way the police was questioning u s and everybody about this murder, your bound to find some [RR049] other information to corroborate what it is that I ’ m saying.
I Timothy Moses Jr do her

- by state that nobody coerced or offered me with any favorable gifts, money, services for my statement. I was incarcerated and thougth [ sic ] that I would be in more trouble with the prosecutors.
[signed] Timothy Moses 4

- 3

- 15 145 Lewis St. Phil Lansdowne

PA 19050
[witness, private investigator, and notary ’ s signatures omitted]
Appellant’s Brief at 8

- 9 (citat ions to the reproduced record omitted).

To establish that Moses’ s statement constitutes a newly

- discovered fact

under section 9545(b)(1)(ii), Appellant must show that: (1) the information
provided by Moses was unknown to him, and (2) that he could not hav e
ascertained it by the exercise of due diligence. See Commonwealth v.

Brown , 141 A.3d 491, 500 (Pa. Super. 2016) (citation omitted). In explaining
how he has met these requirements, Appellant states:

The facts predicating this claim, that Stan and Jizz committed this offense, were unknown to Appellant. Appellant was not at the scene of the shooting and was unaware of who the real perpetrators were. There was no evidence within Appellant’s discovery to indicate that Stan committed the instant offense. Nor were these facts a matter of public record. Indeed, [] Moses specifically states that he never before disclosed this information and has in fact lied in the past when asked. As such, the proffered facts were previously unknown to him.J

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The proffered f acts could not have been ascertained sooner by exercise of diligence. As [] Moses states, this is the first time he is discussing this matter. Stan and the Brill Street Gang[’]s involvement has never been a matter of public record. Based on [] Moses’ s statement, [] Birkelback and the other occupants of the car were not Stan’s intended target. Absent an eyewitness identification or member of the Brill Street Gang revealing this information, there was no basis for Appellant to discern Stan’s involvement . Thus, Appellant[,] through [the] exercise of reasonable diligence[,] was unable to discover the evidence of Stan’s involvement prior to [] Moses’s revelation.
Further, the record demonstrates that after [] Moses reached out to Appellant on or around Mar ch 20, 2015[, 4 ] and Appellant did not receive any further co rrespondence from [] Moses. Appellant promptly retained a private investigator to locate [] Moses. On April 3, 2015, merely two weeks after receiving [] Moses’s initial vague correspondence, Appe llant’s private investigator was able to locate and secure a statement from [] Moses. Thus, the record establishes that Appellant acted diligently in learning his proffered facts once he learned of their potential existence.
Appellant’s Brief at 11

- 12 (ci tations omitted). Finally, Appellant points out

that he received Moses’ s statement on April 3, 2015, and he filed his petition
within 60 days thereof, on May 27, 2015, thereby meeting the 60

- day
requirement of section 9545(b)(2).
The PCRA court agreed with Appellant that he satisfied section
9545(b)(2). See PCO at 5. However, i t did not address whether the
information provided by Moses was previously unknown to Appellant, or
whether he acted with due diligence in discovering it. Instead, the court

_________________ __________ ______ ____ _______

4 Appellant claims that on March 20, 2015, he “received a vague note from [] Moses that indicated he had information about Appellant’s case. Appellant replied to [] Moses but to no avail. Appellant retained an attorney and private investigator to try to l ocate [] Moses.” Appellant’s Brief at 7 (citations to the record omitted).J

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re jected his attempt to meet a timeliness exce ption on the basis that M oses’s

A ffidavit contai ned inadmissible hearsay. The court disagreed with Appellant’s

assertion that Stan’s statements were admissible under the ‘excited utterance’
exception to the rule precluding hearsay. The court reasoned:

Hearsay is a statement a declarant made outside of “testifying at the current trial or hearing” and offered “in evidence to prove the truth of the matter asserted in the statement.” Pa.R.E. 801. The declarant is the person who made the statement [,] and a statement may be an oral or written assertion. Id. An affidavit is inadmissible hearsay when offered for its truth, unless it fits within a hearsay exception. Sprague v. Walter , 656 A.2d 890, 913 (Pa. Super. 19 95). Appellant argues that Stan’s declaration when exiting the vehicle fits within Pa.R.E. 803(2) hearsay exception as an excited utterance. An excited utterance is “[a] statement relating to a startling event or condition, made while the declarant was un der the stress of excitement that it caused.” Pa.R.E. 803(2). It is made “spontaneously and without opportunity for reflection.” Commonwealth v. Boczkowski , 846 A.2d 75, 95 ([Pa.] 2004). To establish an excited utterance, the proponent must show “first , that [the declarant] had witnessed an event sufficiently startling and so close in point of time as to render her reflective thought processes inoperable and, second, that [the] [declarant’s] declarations were a spontaneous reaction to that startling eve nt.” Commonwealth v. Stokes , 615 A.2d 704, 712 ([Pa.] 1992) (quoting Commonwealth v. Green , 409 A.2d 371, 373

- 74 ([Pa.] 1979)). Here, Appellant has failed to establish that Stan’s alleged statement to Moses was an excited utterance. The relevant part of Moses’ [s] statement, as it relates to Stan’s alleged confession, is as follows: “I was there on Brill St [ sic ] right before they went around there [where the shooting occurred]. T hey drove Jizz [’s] gold Grand Prix [with] tinted windows over there and when they came back Stan hopped out [of] the car and said, “damn dog [,] I just shot the wrong mothafucka. [’] ” Moses Affidavit at 1. Moses’ [s] statement does not establish Stan’s conf ession as an excited utterance. It is clear that a botched robbery and a murder can be deemed a “startling event or condition,” however, nowhereJ

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in Moses’ [s] statement is there a showing that the confession was made “so close in time as to render [declara nt’s] reflective thought processes inoperable,” or that the statement was a “spontaneous reaction to that startling event.” Stokes , 615 A.2d at 712. Furthermore, Moses’ [s] statement makes no mention of the declarant’s physical appearance or em otional sta te when he arrived [at] Brill street. The statement does not reveal how much time passed in between the shooting and Stan [’s] making the alleged confession. And ultimately, there is no showing that the statement was a “spontaneous reaction” to the murder . Stan’s confession is not admissible hearsay based on the excited utterance exception. 1

1 The Affidavit does not provide an address, telephone, or any other contact information for Stan

. [ 5 ] The Affidavit also does not explain the extent of his relations hip with Stan or Jizz, aside from the fact that they used to be part of the same alleged gang. Since Stan’s alleged confession is inadmissible hearsay a nd does not avail itself of any hearsay exception [,] it would not implicate section 9545(b )(1)(ii), exce ption to the PCRA timeliness requirement, and the court

... lack [s] jurisdiction to address this claim.

PCO at 7

- 8.
On appeal, Appellant insists the court’s decision is erroneous,
contending:

[O]ur Supreme Court exp lained that “[n]o definite time

- limit or distance from the crime or event in issue can be fixed by the Court s to determine what spontaneous utterances are admissible; each case must depend on its own facts and circumstances.” Commonwealth v. Noble , [88 A.2d 760, 763] (Pa. 1952). This

_________________ __________ ______ ____ _______

5 The court states that Appellant failed to provide contact information for

“ Stan, ” but this appears to be a typo considering the court’s next sentence. If the court did intend to refer to Stan, we fail to see why Stan’s contact information was necessary, given that he is now deceased. Additionally, if the court meant to refer to Moses , as we presume, Appellant points out that he provided Moses’ s address, date of birth, and the proposed substance of his testimony in his pro se PCRA petition

. See PCRA Petition, 5/27/15, at 6.J

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jurispruden ce is embodied in the Comment to Pa.R.E. 803(2), which states that the statement (1) need not describe or explain the startl ing event or condition; it need only relate to it, and (2) need not be made contem poraneously with or immediately after, the startli ng event. It is sufficient if the stress of excitement created by the startling event or condition persists as a substantial factor in provoking the utterance. See , Pa.R.E. 803(2) Comment.

“ In assessing a statement offered as an excited utterance, the

co urt must consider, among other things, whether the statement was in narrative form, the elapsed time between the startling event and the declaration, whether the declarant had an opportunity to speak with others and whether, in fact, she did so.” Commonwea lth v. Carmody , 799 A.2d 143, 147

- 48 (Pa. Super. 2002) (finding no excited utterance exception for a victim’ s written statement that “was given subsequent to several intervening events , ” where the victim gave verbal statements to an officer, then was taken into another room to give a w ritten statement). However, the “ crucial question, regardless of the lapse of time, is whether, at the time the statement was made, the nervous excitement continues to dominate while the refle ctive process[es] remain[] [in] abeyance.” Commonwealth v. Gore , 396 A.2d 1302, 1305 (Pa. Super. 1978).
Here, [] Moses’ s statement establishes that Stan’ s confession was related to the startling event, the shooting, and was made while Stan was still under the stress of the event. [] Mos es’ s statement reflects that the men were supposed to go out to the bar that night, Stan and Jizz left to go collect a debt, and that when Stan and Jizz returned the same night, Stan “hopped” out of the car and confessed that he “ just shot the wrong muthaf ucka [,] ” and that the shooting impacted Stan in such a way that the men did not go to the bar. [] Moses’ s statement and putative testimony confirm that it was the same night as the shooting, because the following day [] Moses went to view the crime scene on Gilham Street to confirm what Stan had said. The location of the shooting and Brill Street are both in the Lawncrest neighborhood of north Philadelphia. Stan “hopping” out of the car reflects a physical manifestation of the stress that he was under. See [i] d. Coupled with his confession that it had “just” happened and the fact that the gang changed their plans from going to the bar, the reasonable inference based on [] Moses’s statement is that Stan went directly from Gilham Street to Brill Street and was still under the stress of the event when he made the confession to [] Moses. See [i] d

[.] ; ... Gore , supra (regardless of lapse of time, toJ

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determine whether a declaration was an excited utterance, is whether the nervous excitement continues to dominate the reflective process).
As such, Appellant has met his burden of pleading and proving his proffered evidence is not inadmissible hearsay. Reversal and remand for an evidentiary he aring are warranted.
Appellant’s Brief at 14

- 16 (some citations omitted).
Given Appellant’s argument, we conclude that the PCRA cou rt erred by
finding , based only on Moses’ s Affidavit, that Stan’s statements were not

excited utterances. Initially, t he court is correct that “[a] claim which rests
exclusively upon inadmissible hearsay is not of a type that would implicate the

[ newly

- discovered fact ] exception to the timeliness requirement, nor would
such a claim, even if timely, entitle [the petitioner] to relief under the PCRA.”

Commonwealth v. Brown , 141 A.3d 491, 501 (Pa. Super. 2016) (quoting

Commonwealth v. Yarris , 731 A.2d 581, 592 (Pa. 1999)). However , based
on the record as it currently stands, we are compelled to disagree with the

court’s decision that “nowhere in Moses’ [s] statement is there a showing that
the confession was made so close in time as to render [his] reflective thought

processes inope rable, or that the statement was a spontaneous reaction to
that startling event.” PCO at 8 (internal quotatio n marks and citation
omitted). Rather, we concur with Appellant that Moses’ s Affidavit at least

suggests that Stan made the statement shortly aft er the shooting, and that

he did so while in an excite d state. The m ore specific information about Stan’s
physical appearance and his emotional condition , and the exact amount of
time that elapsed between the shooting and his confession , are all questionsJ

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of material fact that warrant an evidentiary hearing

. See Commonwealth

v. Grayson , 212 A.3d 1047, 1054

- 55 (Pa. Super. 2019) (“ Generally, if there

are fact ual issues to be resolved, the PCRA court should hold

an evidentiary hearing

. ”) (internal quotation marks and citations omitted).
Therefore, we vacate the portion of the PCRA court’s order that denied
Appellant’s claim premised on Moses’ s Affidavit and remand for an evidentiary
hearing on that issue . If Appellant proffers sufficient evidence to prove that

Stan’s statements were excited utterances , the PCRA court shall then decide

if the information contained in Moses’ s Affidavit was unknown to Appellant,
and if he exercised due diligence in obtaining it, as the court never made
findings on th ese issues. Finally, i f the court concludes that Appellant has

satisfied the se requirements of section 9545(b)(1)(ii), it shall then determine

if a new trial is warranted based on this after

- discovered evidence. See

Commonwealth v. Padillas , 997 A.2d 356 , 363 (Pa. Super. 2010) (“ To be
granted a new trial based on the basis of after

- discovered evidence [, the

petitioner ] must demonstrate that the 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. ”) (citations omitted).
In Appellant’s second iss ue, he argues that he has discovered new
evidence that Ty

- Ron Rouse has a serious mental illness, and that he recanted
his testimony at trial. He claims that the Commonwealth violated Brady byJ

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failing to disclose Ty

- Ron’s mental health issues, and that th is new evidence,
combined with Ty

- Ron’s recantation, warrants a new trial.
In assessing Appellant’s argument, we have reviewed the record,
pertinent case law, the Commonwealth’s brief, and the PCRA court’s opinion.

We conclude that the PCRA court’s ana lysis correctly disposes of Appellant’s

Brady and after

- discovered evidence claims regarding Ty

- Ron’s mental health

issues and his purported recantation. See PCO at 8

- 13. Thus, we adopt this
portion of the PCRA court’s opinion in affirming the portion of the court’s order
that denied Appellant relief based on his claims involving Ty

- Ron Rouse.
Order vacated in part, affirmed in part. Remanded for an evidentiary
hearing. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/1/21Circulated 02/19/2021 03:05 PM