Opinion

Com. v. Dartoe, T.

Court
Superior Court of Pennsylvania
Filed
Mar 3, 2026
Status
Unpublished
Author
Kunselman
On the bench
Bender; Kunselman
Cited by
0 cases
Authority
More cited than 39.0%

The opinion

J-S43038-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

THOMAS DARTOE : No. 1985 EDA 2023

Appeal from the Order Entered July 20, 2023

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

No(s): CP-51-CR-0006369-2007

BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and BENDER, P.J.E.

CONCURRING MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 3, 2026

I agree with the Majority that Thomas Dartoe’s serial PCRA petition was

untimely. I write separately to address the impact in this case of the recent

ruling in Commonwealth v. (Jamie) Brown, _ A.3d _, 2026 WL 227113

(Pa. Jan. 28, 2026), as it pertains to the “newly discovered fact” exception to

the one-year time limit of the PCRA. 42 Pa.C.S. § 9545(b)(1)(ii).

By statute, any PCRA petition, “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” one of three enumerated

exceptions. 42 Pa.C.S. § 9545(b)(1). The exception at play here requires the

petitioner to 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.” Id. § 9545(b)(1)(ii). We have long held that the newly-

discovered-fact exception is based on “newly discovered facts, not on a newly

J-S43038-25

discovered or newly willing source for previously known facts.”

Commonwealth v. Balestier-Marrero, 314 A.3d 549, 554 (Pa. Super.

2024) (citation omitted).

Our Supreme Court’s new precedent illustrates how this rule applies. In

Brown, the petitioner was convicted of murdering police officer James Naim;

the Commonwealth disclosed before trial that another man, Tusweet Smith,

confessed to the killing to inmate Steve Zambory. _ A.3d at _, 2026 WL

227113, at *2. The petitioner ultimately filed a PCRA petition based in part

on his discovery that Smith also confessed to inmate Anthony Dorsett. Id. at

*5. The PCRA court deemed the petition to be untimely, since it believed this

was a new source of a previously known fact, and this Court affirmed. The

Supreme Court granted allowance of appeal to address the applicability of the

newly-discovered-fact exception. Id. at *7–8.

As a threshold matter on review, the Supreme Court rejected the

Commonwealth’s argument that Smith’s previous confession to Zambory

rendered Brown’s subsequent claim moot. Id. at *10. For purposes of the

timeliness of Brown’s petition, Smith’s statement (the second confession) to

Dorsett was a “fact” that was previously unknown to Brown. Id.

The fact that Tusweet Smith confessed to Zambory on January 14,

2005, is separate and distinct from the fact that Tusweet Smith

independently confessed to another person (Dorsett) at another

time. The previously known fact is that Tusweet Smith confessed

to Zambory. The new and previously unknown fact is that

Tusweet Smith confessed to Dorsett. A different confession, to a

different individual, at a different time, necessarily is a distinct

fact for purposes of Section 9545(b)(1)(ii). Tusweet Smith’s

confession to Dorsett is not a new source of a previously known

-2-

J-S43038-25

fact, but a newly discovered fact entirely, and one that previously

was unknown to Brown.

Id. “Two separate confessions are two distinct facts for purposes of”

subsection 9545(b)(1)(ii). Id. at *11.

Here, the “newly discovered” fact in Dartoe’s second amended PCRA

petition is not that Dartoe was born in 1995. Dartoe has “known” this

birthdate since the outset of the case, and he has litigated it extensively.

Instead, it appears that the purported new fact is that Cheywlue was present

in the house on the day Dartoe was born (and can testify to the same). 1 Like

Smith’s second confession in Brown that was a distinct fact from Smith’s

previously known confession, Cheywlue’s statement here is a distinct fact from

the other statements Dartoe previously used to litigate the factual issue of his

birthdate. Thus, Dartoe could meet the newly-discovered-fact exception by

proving that Cheywlue’s statement was “unknown to [Dartoe] and could not

have been ascertained by the exercise of due diligence.” 42 Pa.C.S.

§ 9545(b)(1)(ii).

On this record, however, Dartoe could not meet his burden. Cheywlue’s

assertion that Dartoe was born in 1995 was “known” to Dartoe no later than

2005, when the issue of his age was first litigated. Commonwealth’s Exhibit

E, PCRA Hearing, 4/27/2023. Therefore, although Cheywlue’s statement is a

distinct fact from other evidence of Dartoe’s birth date, it was not unknown to

Dartoe. Further, Dartoe failed to prove why he could not have (re)discovered

____________________________________________

1 If Dartoe is asserting a different new fact, this is not clear from his petition

or his brief.

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J-S43038-25

this fact—Cheywlue’s memory of Dartoe’s birth or that Cheywlue was present

for the birth—earlier by the exercise of due diligence. The PCRA court

observed that Dartoe learned of Cheywlue’s address and potential value only

through the efforts of his immigration attorney. PCRA Court Opinion, 4/4/25,

at 20–21. However, the immigration attorney is at best a newly discovered

source for the previously known fact of Cheywlue’s personal knowledge and

insistence that Dartoe was born in 1995. Therefore, Dartoe cannot prove that

his PCRA claim based on Cheywlue’s statements is timely.

-4-

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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