J-A26015-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

NAEM WALLER 

Appellant

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 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 the 

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.
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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 were convicted for second[-]degree murder, 

robbery, carrying a firearm without a license, 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 the possession conviction, 

each to run consecutive with each other but concurrent to the life 

sentence.

Appellant appealed and, on April 12, 2006, the Pennsylvania 

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 timely 

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 to 

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 Supreme 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 PCRA 

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] codefendant[,] 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 from 
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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 merits 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 

genuine 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 response 

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.

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1

In our memorandum decision on direct appeal, this Court described TyRon’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 used 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 

Michael 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, unpublished memorandum 

at 5 (Pa. Super. filed April 12, 2006) (citation omitted).
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Appellant filed a timely notice of appeal, and he also complied with the 

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 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. See 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:

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

(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, 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 2007,

and, thus, his present petition filed in May of 2015 is patently untimely. 

Consequently, for 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. 
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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. They 

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 that 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 but 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 for 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 articles 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 now knowing that 
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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 us 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 (citations 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 have 

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.
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The proffered facts 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 March 20, 2015[,4] and Appellant did 

not receive any further correspondence 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, Appellant’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 (citations 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, it 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 

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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 locate [] Moses.” Appellant’s Brief at 7 (citations to the 

record omitted).
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rejected his attempt to meet a timeliness exception on the basis that Moses’s 

Affidavit contained 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. 1995).

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 under 

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 event.” 

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]. They 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 confession as an 

excited utterance. It is clear that a botched robbery and a murder 

can be deemed a “startling event or condition,” however, nowhere 
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in Moses’[s] statement is there a showing that the confession was 

made “so close in time as to render [declarant’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 emotional state 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 relationship 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 and does 

not avail itself of any hearsay exception[,] it would not implicate 

section 9545(b)(1)(ii), exception 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 explained that “[n]o definite time-limit or 

distance from the crime or event in issue can be fixed by the 

Courts 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 

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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.
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jurisprudence is embodied in the Comment to Pa.R.E. 803(2), 

which states that the statement (1) need not describe or explain 

the startling event or condition; it need only relate to it, and (2) 

need not be made contemporaneously with or immediately after, 

the startling 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 

court 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.”

Commonwealth 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 written 

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 reflective 

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. [] Moses’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 muthafucka[,]” 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, to 
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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 hearing are warranted. 

Appellant’s Brief at 14-16 (some citations omitted).

Given Appellant’s argument, we conclude that the PCRA court erred by 

finding, based only on Moses’s Affidavit, that Stan’s statements were not 

excited utterances. Initially, the 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 inoperable, or that the statement was a spontaneous reaction to 

that startling event.” PCO at 8 (internal quotation marks and citation 

omitted). Rather, we concur with Appellant that Moses’s Affidavit at least

suggests that Stan made the statement shortly after the shooting, and that 

he did so while in an excited state. The more 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 questions
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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 factual 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 these issues. Finally, if the court concludes that Appellant has 

satisfied these 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 issue, 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 by 
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failing to disclose Ty-Ron’s mental health issues, and that this 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 analysis 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: 3/1/21
Circulated 02/19/2021 03:05 PM