The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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
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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
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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
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1 If Dartoe is asserting a different new fact, this is not clear from his petition
or his brief.
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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.
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