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March 3, 2026 Get Citation Alerts Download PDF Add Note

Com. v. Dartoe, T.

Superior Court of Pennsylvania

• Citations: None known
• Docket Number: 1985 EDA 2023
• Precedential Status: Non-Precedential

• Judges: Bender; Kunselman

• Opinion

• Authorities (10)

• Cited By (0)

• Summaries (0)

• Similar Cases (8.2K)

• PDF

Lead Opinion

                        by [John T. Bender](https://www.courtlistener.com/person/8224/john-t-bender/)

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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

MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 3, 2026

The Commonwealth of Pennsylvania appeals from the order granting

Thomas Dartoe’s petition filed under the Post-Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9545 and ordering his release from custody. After careful

consideration, we hold that Dartoe’s untimely PCRA petition did not establish,

as a newly discovered fact, that he was less than 14 years of age at the time

of the offense and thus could not be tried as an adult for his crimes. Rather,

Appellant had provided the PCRA court with a newly willing source for facts

about his age that had been previously known or could have been known

through due diligence. Accordingly, we reverse the PCRA court’s order and

remand for the reimposition of Dartoe’s judgment of sentence.

This case stems from a series of burglaries that occurred between

February and April of 2007. Dartoe was arrested in Philadelphia on April 11,

2007, confessed to six burglaries, and admitted to threatening and shooting
J-S43038-25

various burglary victims. See N.T. Guilty Plea, 12/14/09, at 11-15 (factual

recitation of the six burglaries in question). The parties litigated whether

Dartoe, who had been born in Liberia and did not have a birth certificate, was

older than fourteen, an issue relevant to whether the case could proceed in

adult criminal court. On September 12, 2007, the late honorable Frank Abram

Reynolds conducted a certification hearing to determine Dartoe’s age.

Immigration records listed a 1995 birth date for Dartoe. If those records were

accurate, Dartoe was eleven at the time of the crimes and ineligible for

prosecution in adult court. Yet the accuracy of that date was questioned

almost immediately. Judge Reynolds heard testimony from Dartoe’s foster

mother, who testified that Dartoe was older than she had initially been told by

authorities, and that she had moved him from third to sixth grade because he

was older than the other children in his class. Additionally, the Commonwealth

and the defense introduced conflicting bone scan evidence of his age at this

hearing. A police officer also testified that Dartoe told him, when arrested,

that he had a “younger sister” who was 13.

Judge Reynolds also noted that, based upon his observation in court of

Dartoe’s appearance, physical development, and “voice change,” Dartoe was

over the age of 14. See PCRA Court Opinion, 4/4/25 (hereinafter, PCO) at 9

(listing evidence from the decertification hearing). The case thus proceeded

in criminal court.

On December 14, 2009, Dartoe entered a negotiated guilty plea to one

count each of aggravated assault, conspiracy, criminal trespass, and

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J-S43038-25

possession of an instrument of crime.1 Prior to the sentencing hearing,

defense counsel obtained a forensic evaluation of Dartoe. As a part of this

evaluation, Dartoe’s uncle, Cheywlue Dartoe, provided information about

Dartoe’s birth and early life. Cheywlue was adamant at this time, despite

Judge Reynold’s ruling, that Dartoe was born in 1995. The evaluation also

noted that Dartoe had told doctors that his family told him to lie about his age

when coming to the United States. Nonetheless, on February 2, 2010, Dartoe

was sentenced to an aggregate term of seven to twenty years’ incarceration.

Dartoe did not file any post-sentence motions to withdraw his plea, nor did he

file a notice of appeal.

Acting pro se, Dartoe filed his first PCRA petition on January 6, 2012.

Counsel was appointed and filed an amended petition on Dartoe’s behalf. The

PCRA court dismissed the PCRA petition without a hearing, and Dartoe

appealed. This Court affirmed this dismissal because the PCRA petition had

been untimely filed, and the Pennsylvania Supreme Court declined Dartoe’s

request for additional review. See Commonwealth v. Dartoe, 1890 EDA

2014, 2016 WL 2894245 (Pa. Super. filed February 19, 2016) (unpublished

memorandum), appeal denied, 145 A.3d 723 (Pa. 2016).

Dartoe filed the pro se PCRA petition underlying these proceedings on

December 13, 2017, and a supplement thereto on May 14, 2018. In the

December 13, 2017 petition, Dartoe claimed that a “manifest injustice”

---

1 18 Pa.C.S. §§ 2702(a), 903(a)(1), 3503a)(1)(ii), and 907(a), respectively.

-3-
J-S43038-25

occurred with the prosecution of an eleven-year-old as an adult. In the

supplement, Dartoe raised the claim that he had obtained new evidence in the

form of a letter from the Pennsylvania Innocence Project, dated April 23, 2018,

which included information that another individual was responsible for

Dartoe’s crimes. Attorney Peter A. Levin was appointed, and filed an amended

PCRA petition on September 18, 2019, asserting that the exculpatory

information received from the Innocence Project showed someone other than

Dartoe had committed his crimes; the amended petition also attempted to re-

litigate the determination of Dartoe’s age. On this latter point, Attorney Levin

produced school and social security records that list Dartoe’s birth date as

1. Counsel also filed amendments to Dartoe’s PCRA petition after

obtaining the PCRA court’s permission to do so. 2 The Commonwealth opposed

Dartoe’s arguments and, over time, filed multiple motions to dismiss his PCRA

petition.

The PCRA court ordered an evidentiary hearing to be conducted on the

amended petition. On April 19, 2023, just days before this hearing, Attorney

---

2 The PCRA court’s opinion states that amendments were filed with leave of

court, but the docket does not reflect that counsel sought the permission of
the PCRA court to file an amendment, or that the court granted any such
request. We note that, under Pa.R.Crim.P. 905(A), amendments to a PCRA
petition “are not ‘self-authorizing’ such that a petitioner may simply ‘amend’
a pending petition with a supplemental pleading. Rather, the Rule explicitly
states that amendment is permitted only by direction or leave of the PCRA
court.” Commonwealth v. Miranda, 317 A.3d 1070, 1076 (Pa. Super. 2024)
(citations omitted). Thus, a petitioner’s attempts to amend their PCRA petition
will not preserve a claim if the PCRA court did not authorize the amendment.
Commonwealth v. Baumhammers, 92 A.3d 708, 730-31 (Pa. 2014).

-4-
J-S43038-25

Levin filed a second supplemental petition, now asserting that he had received

new information and documentation from Susan Roy, Esquire, an immigration

attorney, that show Dartoe’s birth date as 1995. These documents include

immigration records going back to 1999.

On April 27, 2023, the PCRA court conducted the evidentiary hearing at

which Dartoe’s uncle testified via telephone. Thereafter, on July 20, 2023,

the court granted Dartoe’s PCRA petition and vacated his convictions, finding

that Judge Reynolds had erred by failing to transfer this case to juvenile court.

Specifically, the PCRA court concluded that the fact of Dartoe’s actual age was

a non-waivable jurisdictional issue, and that Dartoe’s uncle provided newly

discovered evidence relevant to that issue, and that the birthdate included in

Dartoe’s immigration records was correct. The Commonwealth filed a notice

of appeal, and both it and the PCRA court have complied with Pa.R.A.P. 1925. 3

On appeal, the Commonwealth raises the following issues for our

review:

1. Did the lower court err by ruling that [Dartoe’s] claim was
   

   entitled to the “newly discovered [fact]” exception to the PCRA’s
   time bar, where all the salient facts had been known to defendant
   for decades and were well established by record evidence long
   before the present PCRA petition was filed?

2. Did the lower court err by granting PCRA relief on a claim
   that was, in addition to being untimely, both waived and
   meritless?

   ---

3 We note with displeasure that the brief filed by the Commonwealth in this

appeal fails to conform to the requirements of Pa.R.A.P. 2111(a)(10) and
(a)(11) in that neither the PCRA court’s opinion nor the Commonwealth’s
statement of errors are properly appended thereto.

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J-S43038-25

Commonwealth’s Brief at 4.

“We review the denial of a PCRA petition to determine whether the

record supports the PCRA court’s findings and whether its order is free of legal

error.” Commonwealth v. Min, 320 A.3d 727, 730 (Pa. Super. 2024)

(citation omitted). The scope of our review is “limited to the findings of the

PCRA court and the evidence of record, viewed in the light most favorable to

the prevailing party at the trial level.” Commonwealth v. Hanible, 30 A.3d

426, 438 (Pa. 2011) (citation omitted). We defer to the factual findings of the

post-conviction court which was tasked with hearing the evidence and

assessing witness credibility. Commonwealth v. Johnson, 289 A.3d 959,

979 (Pa. 2023). The PCRA court’s legal determinations, however, are subject

to plenary review. Commonwealth v. Howell, 322 A.3d 243, 245 (Pa.

Super. 2024).

We begin our evaluation of this appeal by addressing the timeliness of

Dartoe's petition, because PCRA time limitations implicate our jurisdiction and

may not be disregarded in order to address the merits thereof. 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 applies:

(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

-6-
J-S43038-25

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, any petition attempting to

invoke one of these exceptions must “be filed within one year of the date the

claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).

Dartoe’s PCRA petition is untimely on its face. Dartoe’s judgment of

sentence became final on March 4, 2010, upon expiration of the 30-day period

to file a direct appeal. Pa.R.A.P. 903(a) (notice of appeal must be filed within

30 days of the order under appeal). He thus had one year from that date to

file a timely PCRA petition. 42 Pa.C.S. § 9545(b)(1) (providing that a PCRA

petition must be filed within one year of the judgment of sentence becoming

final). In other words, to be timely, the underlying PCRA petition had to be

filed by March 4, 2011. See, e.g., Commonwealth v. Brown, 943 A.2d 264,

268 (Pa. 2008) (holding “in circumstances in which no timely direct appeal is

filed relative to a judgment of sentence, and direct review is therefore

-7-
J-S43038-25

unavailable, the one-year period allowed for the filing of a post-conviction

petition commences upon the actual expiration of the time period allowed for

seeking direct review, as specified in the PCRA.”). The instant petition, filed

December 13, 2017, is therefore untimely.

Dartoe has asserted that he has provided newly discovered facts under

42 Pa.C.S. 9545(b)(1)(ii). Specifically, Dartoe first claimed that he received

a letter from the Pennsylvania Innocence Project, dated April 23, 2018, which

had attached a copy of a letter written on April 12, 2018 by another prisoner,

Thorne Thomas,4 and that this letter claimed responsibility for Dartoe’s

crimes. By the time of the evidentiary hearing, however, Attorney Levin

declined to pursue the information contained in the 2018 letter, maintaining

only that the court lacked jurisdiction because of the alleged error made about

Dartoe’s age.

Attorney Levin’s petition also presented purported “new” information

received from Attorney Roy,5 asserting that Dartoe was born on July 4, 1995.

N.T. 4/27/23, at 38-39. This date comports with immigration records, but

contradicts Judge Reynolds’s 2007 finding that Dartoe’s birth date was July 4,

1. We note that the supplemental petition disclosed neither when Attorney

Roy received the new information, nor when Dartoe became aware of it.

---

4 According to the opinion filed by the trial court, this person “claimed to be”

Dartoe’s younger brother. PCO at 4. According to the Commonwealth’s brief,
this is Dartoe’s cousin. Brief for Appellant at 9.

5 It is unclear when Attorney Roy became involved with Mr. Dartoe.

-8-
J-S43038-25

The newly discovered facts exception “renders a petition timely when

the petitioner establishes 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.’” Commonwealth v. Small, 238 A.3d 1267, 1271

(Pa. 2020), quoting 42 Pa.C.S. § 9545(a)(1)(ii). A PCRA court must first

determine whether “the facts upon which the claim is predicated were

unknown to the petitioner[.]” Id. (quotation marks omitted). If the PCRA

court concludes that the facts were unknown, then the PCRA court must next

examine whether “the facts could have been ascertained by the exercise of

due diligence[.]” Id. (citation and quotation marks omitted). “Due diligence

demands that the petitioner take reasonable steps to protect his own

interests.” Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015).

The rule that a petitioner must explain why he could not have learned the new

facts earlier with the exercise of due diligence is strictly enforced. Id.

The PCRA court in the instant case found that Dartoe had provided newly

discovered facts in the form of “testimony from an uncle who had sent his

nephew to foster care when he was less than eight years old.” PCO at 1. The

PCRA court explained that the uncle’s testimony made “a persuasive showing

that a criminal court jurisdictional violation occurred leading to a miscarriage

of justice; a juvenile who was under the age of fourteen when he committed

offenses that brought him over thirteen years in state prison….” Id. at 2. This

was error because the uncle’s information cannot be a “newly discovered fact.”

The information was available in court as early as 2007.

-9-
J-S43038-25

The PCRA court here conflated the timeliness exception contained in the

PCRA for newly discovered facts – specifically, 42 Pa.C.S. § 9545(b)(1)(ii) –

with the after-discovered evidence eligibility-for-relief provision set forth in 42

Pa.C.S. § 9543(a)(2). Critically, the newly discovered fact exception does not

entail an analysis of the merits of the underlying claim. Bennett, 930 A.2d

at 1271. Rather, “the statutory language commands that the operative ‘facts’

be ‘unknown’ to the petitioner.” Id. Accordingly, the court must first evaluate

whether Dartoe has put forth facts, newly known to him, in support of his

claim that the court did not have jurisdiction over him because he was under

the age of 14 at the time of the offense.

Dartoe has not claimed that his age was previously unknown to him,

just that it had not been properly established in court. However, we note that

“the focus of the exception found at § 9545(b)(1)(ii) is on newly discovered

facts, not on newly discovered or newly willing sources that corroborate

previously known facts or previously raised claims.” Commonwealth v.

Maxwell, 232 A.3d 739, 745 (Pa. Super. 2020) (emphasis added).

Here, the PCRA court credited Cheywlue’s testimony that Dartoe was

born in 1995, and not 1992, after receiving his testimony at the PCRA hearing

on April 27, 2023. However, while this is relevant to the merits of the after-

discovered evidence claim, it is irrelevant as far as the timeliness issue. As

the Commonwealth points out, Cheywlue is mentioned in July 2005 juvenile

history notes from Dartoe’s file, which were compiled before Judge Reynolds

• 10 - J-S43038-25

denied decertification in 2007, and which would have been a part of the record

that Judge Reynolds reviewed before the decertification hearing.

Thus, Cheywlue provided no “new” information for the PCRA court such

that Dartoe established an exception to the timeliness rule for PCRA petitions.

The issue of Dartoe’s age was extensively litigated prior to Judge Reynold’s

decision on this issue in 2007. Cheywlue is simply a new source of information

on the issue. In fact, as Cheywlue’s information was available prior to the

decertification hearing, he is not even a new source. Accordingly, we

conclude that the PCRA court erred in finding that Dartoe’s PCRA petition was

timely under the newly discovered fact exception in 42 Pa.C.S.

§ 9545(b)(1)(ii).

Because Dartoe has failed to provide new facts that he was unaware of

prior to his decertification hearing, we find as a matter of law that Dartoe

failed to invoke the newly discovered fact exception. See Maxwell, 232 A.3d

at 747. Accordingly, we reverse the order granting PCRA relief and remand

for re-imposition of Dartoe’s judgment of sentence.

Order reversed. Case remanded with instructions. Jurisdiction

relinquished.

Judge McLaughlin joins this memorandum.

Judge Kunselman files a concurring memorandum.

• 11 - J-S43038-25

Date: 3/3/2026

• 12 -

  Concurrence Opinion

                      by Kunselman
  

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-