Commonwealth v. Brown, J., Aplt.

[J-56-2025] [MO: Wecht, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 3 WAP 2025

:

Appellee : Appeal from the Order of the

: Superior Court entered June 28,

: 2024, at No. 17 WDA 2022, Affirmed

v. : in Part and Vacating In Part the

: Order of the Court of Common

: Pleas of Beaver County entered

JAMIE M. BROWN, : December 15, 2021, at No. CP-04-

: CR-000913-2001 and remanding.

Appellant :

: SUBMITTED: May 20, 2025

CONCURRING AND DISSENTING OPINION

JUSTICE DOUGHERTY DECIDED: JANUARY 28, 2026

I agree with the majority1 that “a PCRA petitioner is required to establish the newly

discovered facts exception with evidence that would be admissible at a PCRA hearing.”

Majority Opinion at 2. I also agree with the majority that “a third-party confession to

another person . . . may serve as a newly discovered fact under the PCRA.” Id. And I

agree as well that “[a] different confession, to a different individual, at a different time,

necessarily is a distinct fact for purposes of Section 9545(b)(1)(ii)” and “not a new source

of a previously known fact[.]” Id. at 20. Where I part ways with the majority is in its

description of the new fact at issue here, and with its preemptive, advisory resolution of a

separate evidentiary issue over which we did not grant review.

1 Although Section V of the lead opinion has not garnered a majority vote, I nonetheless

refer to that opinion as the “majority” or “Majority Opinion” for ease of reference.

By way of background, Brown was convicted of third-degree murder for killing

Aliquippa Police Officer James Naim. Relevant here, in his fourth, facially untimely PCRA

petition, Brown alleged the Commonwealth was “aware . . . that Anthony Tusweet Smith

confessed to killing Officer Naim in 2009” to inmate Anthony Dorsett. PCRA Petition,

6/4/21, at ¶253. “Despite that fact,” Brown alleged, “that information was never provided

to [him] during his prior PCRA proceedings — even after [he] requested discovery that

could have potentially revealed such information.” Id. at ¶254; see id. at ¶264 (positing

the Commonwealth “failed to disclose [ ] Dorsett’s statement during [ ] Brown’s prior PCRA

proceedings”). However, Brown’s muddled presentation of his claim has caused some

confusion, and the majority regrettably fails to clarify the matter. Specifically, Brown

claimed the Commonwealth violated Brady,2 and he argued such “claims are cognizable

under 42 Pa.C.S. §9543(a)(2)(vi).” Id. at ¶245 (emphasis added), citing Commonwealth

v. Simpson, 66 A.3d 253, 264 n.16 (Pa. 2013).3

Herein lies the source of the present trouble. In Simpson, we acknowledged that

“[a] Brady claim is cognizable on collateral appeal under the PCRA.” 66 A.3d at 264 n.16.

In support, we cited Commonwealth v. Tedford, 960 A.2d 1, 30 n.19 (Pa. 2008), including

a parenthetical citing Section 9543(a)(2)(vi), which is colloquially known as the after-

discovered evidence provision. Tedford, however, does not support the proposition that

a Brady claim is really just an after-discovered evidence claim. Instead, Tedford merely

2 Brady v. Maryland, 373 U.S. 83, 87 (1963) (“the suppression by the prosecution of

evidence favorable to an accused upon request violates due process where the evidence

is material either to guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution”).

3 I observe that, in his PCRA petition, Brown passingly argued that, “even if the . . . Dorsett

information would not qualify as Brady evidence because his statement was provided in

2009 — after [ ] Brown’s trial, it still plainly meets the after-discovered evidence test[.]”

PCRA Petition, 6/4/21, at ¶259. However, Brown has since abandoned that claim as his

brief focuses exclusively upon Brady.

[J-56-2025] [MO: Wecht, J.] - 2

noted that “a Brady-like claim is specifically cognizable under the” PCRA through the

after-discovered evidence provision. Tedford, 960 A.2d at 30 n.19 (emphasis added).

But although the two claims undoubtedly share some similarities, they are most certainly

not the same.

A Brady claim is grounded in the prosecution’s failure to disclose material evidence

favorable to the defense, which constitutes a violation of the defendant’s due process

rights under the Fourteenth Amendment. See Commonwealth v. Smith, 17 A.3d 873, 887

(Pa. 2011); see id. (to succeed on a Brady claim, a defendant “must plead and prove that

(1) the prosecutor has suppressed evidence; (2) the evidence, whether exculpatory or

impeaching, is helpful to the defendant; and (3) the suppression prejudiced the

defendant”) (internal quotations and citation omitted). As such, under the PCRA, a Brady

claim falls within the scope of Section 9543(a)(2)(i), which provides relief for convictions

or sentences resulting from “[a] violation of the Constitution of this Commonwealth or the

Constitution or laws of the United States which, in the circumstances of the particular

case, so undermined the truth-determining process that no reliable adjudication of guilt or

innocence could have taken place.” 42 Pa.C.S. §9543(a)(2)(i). We have recognized as

much on multiple occasions. See Commonwealth v. Natividad, 200 A.3d 11, 29 n.13 (Pa.

2019) (addressing a post-conviction claim alleging a “due process violation under Brady

pursuant to 42 Pa.C.S. §9543(a)(2)(i)”); Smith, 17 A.3d at 887-88 (“In the PCRA context,

a petitioner must demonstrate that the alleged Brady violation so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could have taken

place.”) (internal quotations and citation omitted).

Meanwhile, the after-discovered evidence provision under Section 9543(a)(2)(vi)

addresses claims based on the “[t]he unavailability at the time of trial of exculpatory

evidence that has subsequently become available and would have changed the outcome

[J-56-2025] [MO: Wecht, J.] - 3

of the trial if it had been introduced.” 42 Pa.C.S. §9543(a)(2)(vi). To succeed under this

provision, a petitioner must prove that: “(1) the evidence has been discovered after trial

and it 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.” Commonwealth v. Cox, 146 A.3d 221, 228 (Pa.

2016) (internal quotations and citation omitted).

As can be seen, even though an after-discovered evidence claim under Section

9543(a)(2)(vi) is “Brady-like” in some ways, it is substantively distinct. Tedford, 960 A.2d

at 30 n.19. Unlike a Brady claim, an after-discovered evidence claim does not require a

violation of the law, nor does it require any involvement by the Commonwealth. To be

sure, it is possible that where a successful Brady claim lies, so too may a successful after-

discovered evidence claim. Certain facts may support both a Brady claim and an after-

discovered evidence claim. But that will not always be the case.4 What matters is whether

the facts satisfy the two independent tests outlined above.

The difference between the two types of claims is critical not only as a substantive

matter, but also with respect to the timebar. See 42 Pa.C.S. §9545(b)(1) (providing that

any PCRA petition must be filed within one year of date of judgment becoming final unless

one of three narrow exceptions applies). Where, as here, a defendant invokes the newly

discovered facts exception to the timebar, he must prove that “the facts upon which the

claim is predicated were unknown to [him] and could not have been ascertained by the

4 For example, the mere fact a defendant discovers that another person confessed to the

crime might be enough, on its own, to satisfy the after-discovered evidence test. But it

would not alone suffice to prove a Brady violation. That would require the defendant to

plead and prove the additional fact that the Commonwealth suppressed the confession.

Put differently, the existence of the confession is a fact that would support both a Brady

claim and an after-discovered evidence claim, but a Brady claim still requires more.

[J-56-2025] [MO: Wecht, J.] - 4

exercise of due diligence[.]” 42 Pa.C.S. §9545(b)(1)(ii) (emphasis added).5 Not all claims

are alike. Nor are all facts. The relevant predicate facts for one type of claim may not be

the same for another. Such is often the situation with Brady and after-discovered

evidence claims.

Consider this case. The majority concludes that to meet the newly discovered fact

exception, “Brown must prove the ‘fact’ upon which the claim is predicated — that

Tusweet Smith confessed to Dorsett.” Majority Opinion at 36; see id. at 28 (“[I]n order to

establish the predicate fact, Brown will have to prove at th[e] hearing, with admissible

evidence, that Tusweet Smith made the confession to Dorsett.”); id. at 36 (“For purposes

of the newly discovered facts exception, . . . [w]hat matters is that Tusweet Smith told

Dorsett that he committed the murder, and Dorsett provided a statement to that effect.”).

I would agree with this statement if the claim before us were a pure after-discovered

evidence claim. But, as the majority explains, it is not; instead, “Brown raises a Brady

claim[.]” Majority Opinion at 19. That type of claim is predicated on a different type of

fact. Typically, “the fact[ ] upon which [a] Brady claim [is] predicated” is “that the

Commonwealth withheld evidence[.]” Natividad, 200 A.3d at 29. And, indeed, that is

exactly what Brown pled in his petition. See PCRA Petition, 6/4/21, at ¶253-254 (alleging

the Commonwealth was “aware of” the supposed confession yet, “[d]espite that fact, that

information was never provided”) (emphasis added); see id. at ¶255 (arguing the

Commonwealth “fail[ed] to provide this Brady evidence”) (emphasis added); id. at ¶264

(contending the Commonwealth “failed to disclose [ ] Dorsett’s statement during [ ]

Brown’s prior PCRA proceedings”) (emphasis added). Even the majority, at times, seems

to recognize the proper operative fact underlying Brown’s Brady claim is his discovery of

5 As demonstrated above, Section 9545(b)(1)(ii) technically speaks of “unknown” facts.

However, in the interest of consistency, I will follow the lead of the majority and refer to

Section 9545(b)(1)(ii) as the newly discovered facts exception.

[J-56-2025] [MO: Wecht, J.] - 5

the Commonwealth’s knowledge of, and failure to disclose, the alleged confession. See,

e.g., Majority Opinion at 10 (explaining “Brown argued that the Commonwealth violated

Brady . . . when it failed to disclose evidence related to Dorsett’s 2009 federal plea deal,

including the Dorsett/Tusweet Smith statement”) (emphasis added); id. at 19 (“In the

current PCRA petition, Brown raises a Brady claim predicated upon Brown’s

discovery, in 2018, of the 2009 statement by Dorsett”) (emphasis added).

Despite the fact Brown has preserved only a Brady claim, the majority concludes

that “[w]hether the underlying claim . . . is or is not a Brady claim” is a “matter[ ] for merits

review, not for assessment of jurisdictional timeliness.” Id. at 29; see id. (“In this case,

the nature of the underlying substantive claim for relief does not impact the timeliness

analysis”). This position is directly at odds with the plain text of the newly discovered

facts exception, which, again, requires a petitioner to plead and prove that “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)(1)(ii) . As we recently

and unanimously explained, “the newly discovered facts exception, as well as the

requirements of Section 9545(b)(2) of the PCRA, are claim specific, not petition based.”

Commonwealth v. Rivera, 324 A.3d 452, 468 (Pa. 2024) (emphasis added); see id.

(where “a facially untimely PCRA petition presents various claims and invokes the newly

discovered facts exception, a court can only consider the merits of the claims that meet

the exception”); see also Commonwealth v. Tedford, 228 A.3d 891, 904 (Pa. 2020) (“This

Court has consistently held that the PCRA’s time restrictions are jurisdictional in nature

and that a PCRA court must, before considering the merits of claims asserted in a PCRA

petition, first make a threshold determination whether each claim was timely filed.”)

(emphasis added); Commonwealth v. Porter, 35 A.3d 4, 13 (Pa. 2012) (explaining Section

9545(b) “speaks in singular terms of ‘the claim’ or ‘the right’ which is the subject of a serial

[J-56-2025] [MO: Wecht, J.] - 6

PCRA ‘petition’” and, as such, the exceptions “are claim-specific”). Although the majority

assures us this extensive “precedent is intact[,]” Majority Opinion at 30 n.88, in reality, the

majority ignores it and writes out of Section 9545(b)(1)(ii) the phrase, “upon which the

claim is predicated.” In so doing, the majority obliterates the timebar so long as a

petitioner pleads and proves any newly discovered fact at all — even one having nothing

whatsoever to do with the substantive claims raised in the petition.6

Because the majority identifies the wrong triggering predicate fact for the Brady

claim before us, I cannot join those parts of its opinion.

Additionally, I must dissent from the majority’s sua sponte decision of an

evidentiary issue over which we did not grant allowance of appeal. As the majority relates,

“this Court granted allowance of appeal to address ‘[w]hether a third-party confession to

another person can serve as a newly-discovered fact under the PCRA.’” Id. at 15, quoting

Commonwealth v. Brown, 333 A.3d 310 (Pa. 2025) (per curiam). The answer to that sole,

limited question is “yes,” as the majority rightly concludes. However, since we did not

grant allowance of appeal to also play out hypothetical scenarios for introducing “Dorsett’s

plea deal statement,” depending on whether “Tusweet Smith testifies and denies making

the confession,” or “refuse[s] to testify” at all, id. at 37, I respectfully dissent from the

majority’s detour down that path in Section V. That evidentiary issue might never arise

6 Imagine, for instance, that Brown proffered Tusweet Smith’s confession as a newly

discovered fact but, as a substantive matter, only raised an unrelated claim challenging

trial counsel’s failure to present character witnesses. Under the majority’s view, Brown’s

petition would be timely and he would still be entitled to a hearing on the merits, even

though nothing prevented him from raising his ineffective assistance of counsel claim

earlier. That is patently absurd. The newly discovered facts exception’s explicit reference

to “the claim” plainly means the underlying substantive claim — here, a Brady claim.

[J-56-2025] [MO: Wecht, J.] - 7

upon remand and is not a “subsidiary question fairly” subsumed within the question we

did agree to resolve. Pa.R.A.P. 1115(a)(3).7

I respectfully concur in part and dissent in part.

Justice Mundy joins the dissenting portion of this concurring and dissenting

opinion.

7 The majority claims I “would have us resolve whether a third-party confession can serve

as a newly discovered fact under the PCRA, but would not address whether the

Dorsett/Tusweet Smith statement, in particular, did so here.” Majority Opinion at 35.

Respectfully, the majority is mistaken. I agree this Court should address why the panel

erred in holding Brown’s petition “rested solely upon inadmissible hearsay[.]” Id. at 36. I

disagree only with the majority’s unnecessary and unwarranted detour into dicta about

the statement against interest exception in addressing that error. As the majority notes,

Brown certified his intent to call Dorsett, Tusweet Smith, and others as witnesses at a

PCRA hearing. See PCRA Petition, 6/4/21, Witness Certification for Anthony Dorsett (“it

is expected that Mr. Dorsett will testify that as part of his plea deal he disclosed to law

enforcement . . . that Anthony Tusweet Smith confessed to him too [sic] killing Officer

Naim”); PCRA Petition, 6/4/21, Witness Certification for Anthony Tusweet Smith (“counsel

intends to call Mr. Smith to question him concerning his confessions and concerning his

involvement in the killing of Officer Naim”). “[I]f he successfully calls Tusweet Smith to

testify,” then Brown will not be relying on inadmissible hearsay because “Tusweet Smith’s

testimony would not be hearsay.” Majority Opinion at 37. That is all we need to say so

we should say no more. The majority does not also “need[ ] to address why” other

testimony that may or may not be presented at the PCRA hearing “is not inadmissible

hearsay.” Majority Opinion at 36 (emphasis added). It simply chooses to.

[J-56-2025] [MO: Wecht, J.] - 8