Com. v. Murchison, D.

J-E02004-22

                               

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 DEREK MURCHISON                         :
                                         :
                   Appellant             :   No. 3585 EDA 2019

          Appeal from the PCRA Order Entered November 27, 2019
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0913011-2002


BEFORE: PANELLA, P.J., OLSON, J., DUBOW, J., KUNSELMAN, J., NICHOLS,
        J., MURRAY, J., McLAUGHLIN, J., McCAFFERY, J., and SULLIVAN,
        J.

DISSENTING OPINION BY NICHOLS, J.:                     FILED MAY 10, 2023

      I disagree with the Majority’s decision to affirm the PCRA court’s order

denying relief on Appellant’s PCRA petition. Further, I agree with the Dissent

that the PCRA court applied the incorrect standard when evaluating the

substantive merits of Appellant’s after-discovered evidence claim. However,

I disagree with the Dissent that Appellant is entitled to a new trial at this

juncture. Therefore, I write separately and conclude that the proper remedy

is to vacate the PCRA court’s order and remand for the PCRA court to evaluate

Appellant’s after-discovered evidence claim under the proper legal standard.

      I agree with the Dissent that the PCRA court erroneously relied on

Commonwealth v. Brooks, 

 (Pa. Super. 2005) and

Commonwealth v. Heilman, 

 (Pa. Super. 2005) for the

proposition that a petitioner cannot prove actual innocence solely based on
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the absence of DNA evidence. See Dissenting Op. at 14-15. Because both

Brooks and Heilman involved requests for post-conviction DNA testing

pursuant to 42 Pa.C.S. § 9543.1(c), and did not address substantive claims of

after-discovered evidence under 42 Pa.C.S. § 9543(a)(2)(vi). See id. at 15-

16, 15 n.5.

      Indeed, Section 9543(a)(2)(vi) does not require proof of actual

innocence. As the Dissent explains, “a petitioner need only establish by a

preponderance of the evidence that the exculpatory after-discovered evidence

would have changed the outcome of the trial if it had been introduced.” Id.

at 13 (citation omitted and formatting altered); see also Commonwealth v.

Tedford, 

, 911 (Pa. 2020). Further, a petitioner may be entitled

to relief under this subsection “even when the record contains other evidence

that supports a conviction and even where it is possible that a second trial will

result in re-conviction.”   Dissenting Op. at 13 (citing Commonwealth v.

Payne, 

 (Pa. Super. 2019) (en banc)) (quotation marks

omitted); see also Commonwealth v. Cooney, 

 (Pa. 1971).

      Accordingly, I agree with the Dissent that the PCRA court erred in

rejecting Appellant’s substantive after-discovered evidence claim based on its

conclusion that the DNA evidence did not establish Appellant’s actual

innocence.

      However, to the extent the Dissent concludes that Appellant is entitled

to a new trial, I respectfully disagree. See Dissenting Op., at 8-11, 15-16.

Because the PCRA court has not yet evaluated Appellant’s after-discovered

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J-E02004-22



evidence claim under the correct standard, ordering a new trial at this juncture

is premature. Given the manner in which the PCRA court decided the issue,

there are no facts of record from which we can independently determine

whether Appellant is entitled to relief on his after-discovered evidence claim.

Therefore, this Court should remand the matter for the PCRA court to review

Appellant’s after-discovered evidence claim in accordance with the correct

standard. See, e.g., Commonwealth v. Weiss, 

 (Pa.

2009) (concluding that the PCRA court erred in granting relief on the

petitioner’s Brady1 claim without addressing whether the prosecution’s failure

to disclose evidence “undermined confidence in the outcome of [the

petitioner’s] trial, such as would have created a reasonable probability of a

different result” and remanding for the PCRA court to review “all the evidence

presented at trial, . . . for the potential negative effect disclosure of the alleged

impeachment evidence would have had thereon” (citation omitted));

Commonwealth v. Sullivan, 

 (Pa. Super. 2003)

(vacating and remanding for the trial court to evaluate the defendant’s weight-

of-the-evidence claim under the correct legal standard where record

evidenced that the trial court erroneously “blended the standards of review

applicable to” weight of the evidence and sufficiency of the evidence claims).

        For these reasons, I respectfully dissent from the Majority, but disagree

with the Dissent that a new trial should be ordered.                Based on the
____________________________________________


1   Brady v. Maryland, 

, 

, 

 (1963).


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J-E02004-22



circumstances of this case, I would vacate the PCRA court’s order and remand

for the PCRA court to evaluate Appellant’s after-discovered evidence claim

under the proper legal standard.




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