Commonwealth v. Small, E., Aplt. ( 2020 )

[J-116-2019]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 8 EAP 2019
:
Appellee : Appeal from the Judgment of Superior
: Court entered on 10/29/2018 at No.
: 250 EDA 2018 reversing the Order
v. : entered on 12/14/2017 and remanding
: to the Court of Common Pleas,
: Philadelphia County, Criminal Division
ELWOOD SMALL, : at No. CP-51-CR-0521601-1982.
:
Appellant : SUBMITTED: November 18, 2019
OPINION
JUSTICE WECHT DECIDED: October 1, 2020
In this appeal, we consider the continued viability of what our jurisprudence has
dubbed the “public record presumption,” which precludes a petitioner from establishing
the existence of new facts that would support collateral review of an underlying conviction.
See Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017). Ordinarily, a petitioner seeking
relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46, must file the
petition within one year of the date upon which his or her judgment of sentence becomes
final. The PCRA sets forth three exceptions to this one-year limitation. Among these is
the “newly discovered fact” exception, which 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.”
42 Pa.C.S. § 9545(b)(1)(ii). Interpreting this provision, this Court has held that the newly
discovered fact exception is limited by a presumption relating to matters of public record,
pursuant to which a court may find that information available to the public is not a fact that
is “unknown” to the petitioner. See, e.g., Commonwealth v. Chester, 895 A.2d 520, 523
(Pa. 2006); Commonwealth v. Lark, 746 A.2d 585, 588 n.4 (Pa. 2000). In Burton,
however, we reasoned that, due to unrepresented inmates’ diminished access to such
records, the public record presumption “does not apply to pro se prisoner petitioners.”
Burton, 158 A.3d at 620.
In this case, the Superior Court reversed the PCRA court’s order granting relief to
Appellant Elwood Small, reasoning, inter alia, that our holding in Burton did not apply to
Small because he was represented by counsel some years earlier, in separate post-
conviction proceedings, and thus could not be considered pro se for purposes of Burton.
Although we ultimately conclude that Small is not entitled to relief, we nonetheless are
persuaded by Small’s frontal challenge to the public record presumption.
I.
The Commonwealth alleged that Small and his co-defendant, Larry Bell,
committed an armed robbery of a marijuana dealer, Patrick Blake, in Blake’s apartment
on December 23, 1981. In the ensuing struggle, Small stabbed both Blake, who survived,
and John McCrary, who died. Small and Bell were tried jointly in April 1983. At their trial,
Blake identified Bell and Small as the assailants, the former having wielded a shotgun
and the latter a knife. Blake testified that Small stabbed him during the robbery. Blake
struggled with Small and was stabbed again, but then escaped through a kitchen window.
As Blake fled, he saw Bell and McCrary struggling for control of the shotgun in the living
room. Investigators later recovered a lock pin and spring assembly from a pump-action
shotgun on the living room floor. Although Blake immediately recognized Bell from prior
drug transactions, it was not until Blake viewed a lineup ten months later that he identified
[J-116-2019] - 2
Small as the knife-wielding assailant. At the lineup, Blake noted that Small had facial
scars that Blake did not notice at the time of the robbery.
Bell testified in his own defense and provided a different account of the events,
which the PCRA court found significant to the instant petition. Bell admitted that he and
Small intended to rob Blake and McCrary. However, Bell denied any intention to assault
or murder the victims, and denied possessing a shotgun during the altercation. Bell
explained that, after he and Small entered the apartment, Small drew a knife, and Bell
ordered Blake and McCrary to lie on the floor. PCRA Court Opinion, 12/14/2017 (“PCRA
Ct. Op.”), at 7 (citing Notes of Testimony (“N.T.”), Trial, 4/11/1983, at 653, 664). Bell
explained that, as he attempted to bind Blake’s hands with a telephone cord, Blake
jumped up and struck Small, who fell to the ground. Id. (citing N.T., Trial, at 653-54).
McCrary then arose and began punching Bell, at which point Small came to Bell’s aid and
hit McCrary three times with what “sounded like punches.” Id. (citing N.T., Trial, at 654).
Bell testified that Small similarly “punched” Blake, who cried out that he had been stabbed.
Id. at 7-8 (citing N.T., Trial, at 656). Bell claimed that he was in a panic when he left the
apartment, and Small noticed that Bell had left a hat behind at the scene. The two
reentered Blake’s apartment by breaking a window of the apartment’s side door,
whereupon Bell retrieved his hat, and Small carried off a television set. On cross-
examination, Bell stated that he was not promised anything in exchange for his testimony,
and that he testified solely “to get this off [his] mind.” Id. at 9 (quoting N.T., Trial, at 722).
Small also testified in his own defense and denied any participation in the crimes.
Although Small was confronted with an incriminating statement that he purportedly had
given to detectives, in which he had admitted to serving as a “lookout” outside Blake’s
apartment, he denied having made the statement. Small claimed that the detectives
approached him in an interrogation room with the statement already prepared, and
[J-116-2019] - 3
instructed him to sign it. He refused and instead wrote “refuse to sign” at the bottom of
each page. With regard to the facial scarring that Blake noticed at the lineup, but did not
remember from the incident, Small testified that the scar on his face had been present
since 1979. In response to Bell’s testimony implicating Small in the crimes, Small
asserted that Bell earlier had admitted that he would not reveal the true identity of the
culprit, because he feared that his family would not be safe if he told the truth.
On April 13, 1983, the jury found both Small and Bell guilty of second-degree
murder, robbery, aggravated assault, and criminal conspiracy. On November 9, 1983,
the trial court sentenced Small to life imprisonment for second-degree murder, a
consecutive term of five to ten years’ imprisonment for conspiracy, and a concurrent term
of five to ten years’ imprisonment for aggravated assault. The Superior Court affirmed
Small’s judgment of sentence. Commonwealth v. Small, 494 A.2d 485 (Pa. Super. 1985).
Over the course of the following decades, Small made several attempts to obtain
relief under the PCRA, all of which were unsuccessful. He filed his first PCRA petition on
February 5, 1990, which was dismissed on June 10, 1992. The Superior Court affirmed
the dismissal, and this Court denied review. Commonwealth v. Small, 636 A.2d 1216
(Pa. Super. 1993), appeal denied, 642 A.2d 485 (Pa. 1994). He filed a second PCRA
petition on December 31, 1996, which was dismissed as untimely, and the dismissal
likewise was upheld on appeal. Commonwealth v. Small, 726 A.2d 415 (Pa. Super.
1998), appeal denied, 737 A.2d 1224 (Pa. 1999). His third PCRA petition, filed on
November 16, 2007, and amended on March 12, 2010, similarly was dismissed as
untimely, and the dismissal again was upheld on appeal. Commonwealth v. Small, 60
A.3d 556 (Pa. Super. 2012), appeal denied, 62 A.3d 379 (Pa. 2013).
The instant appeal arises from Small’s fourth PCRA petition, which he filed pro se,
depositing it in the prison mail on July 22, 2014. In this petition, Small sought a new trial
[J-116-2019] - 4
based, in part, upon his discovery that Bell had testified during his own post-conviction
proceedings in a manner that purportedly differed from Bell’s trial testimony. Small
averred that he learned this on June 14, 2013, while conducting legal research in the
prison library. Due to what the PCRA court characterized as “some administrative and
inexplicable error,” Small’s petition was neither assigned to nor received by the PCRA
court until nearly three years later, on April 13, 2017. PCRA Ct. Op. at 16. On May 4,
2017, the PCRA court issued a notice of its intent to dismiss Small’s petition without
conducting an evidentiary hearing, pursuant to Pa.R.Crim.P. 907(1). Small responded to
the notice, contending that his averments satisfied the newly discovered fact exception to
the PCRA’s time bar, particularly in light of this Court’s decision in Burton.
The PCRA court reconsidered its intent to dismiss Small’s petition, and “realized”
that “Small did not actually have access to what he believed to be new evidence.” PCRA
Ct. Op. at 17. Small had based his claim solely upon a factual summary provided in a
1998 Superior Court decision affirming the denial of post-conviction relief to Bell, in which
the court stated that “Bell maintained that [Small] killed the victim for personal reasons;
he asserted that co-defendant Small’s wife had had an adulterous affair with the victim,
John McCrary.” Commonwealth v. Bell, 706 A.2d 855, 857 (Pa. Super. 1998). The PCRA
court found this summary to be insufficient to determine whether Small would be able to
develop a meritorious claim. Accordingly, the court arranged for pro bono counsel to
represent Small, and counsel was able to obtain the transcripts from evidentiary hearings
conducted in 1993 in connection with Bell’s PCRA proceedings. Thereafter, Small filed
a counseled, amended petition on October 30, 2017, asserting that he was entitled to a
new trial in light of the after-discovered evidence1 revealed in those transcripts, and
1 Distinct from the PCRA’s timeliness exception for newly discovered facts, “after-
discovered evidence” is a substantive basis for relief under the PCRA, applicable where
the petitioner pleads and proves by a preponderance of the evidence that his conviction
[J-116-2019] - 5
further challenging the trial court’s jury instruction regarding second-degree murder. The
PCRA court then held an evidentiary hearing on December 5, 2017.
The PCRA court assigned significant weight to the evidence revealed in the 1993
transcripts. When Bell was asked to explain how the murder of McCrary unfolded, he
testified: “We entered the apartment and [Small] flipped out and started stabbing the
guys.” PCRA Ct. Op. at 11 (quoting N.T., Bell PCRA Hearing, 3/5/1993, at 12). The
PCRA court concluded that this description differed substantially from Bell’s trial
testimony, inasmuch as it omitted Bell’s earlier explanation of the events that occurred
before the stabbing, such as Bell’s effort to tie up Blake, the fight that erupted between
the four men, and Bell’s initial impression that Small was “punching” rather than stabbing
the victims. Id. at 11, 27. The court noted that Bell introduced the testimony of a prison
associate, Robert Smithson, who claimed that Small had a personal motive to kill
McCrary—the allegation that initially inspired Small’s filing of his pro se petition. Id. at 11.
Finally, the PCRA court emphasized that Bell had provided a new motivation for his
decision to testify in his own defense at trial. Where he previously cited his conscience
as the reason for his testimony, Bell later asserted that he testified on the advice of his
counsel, who had told Bell that his testimony would serve as an admission to robbery, but
resulted from “[t]he unavailability at the time of trial of exculpatory evidence that has
subsequently become available and would have changed the outcome of the trial if it had
been introduced.” 42 Pa.C.S. § 9543(a)(2)(vi); see Commonwealth v. Bennett, 930 A.2d
1264, 1270-72 (Pa. 2007) (discussing the distinctions between the time bar exception
and the substantive basis for relief); see also Burton, 158 A.3d at 627-29 (same).
In order to obtain relief based upon exculpatory, after-discovered evidence, the
petitioner must establish 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. D’Amato, 856 A.2d 806, 823
(Pa. 2004).
[J-116-2019] - 6
might provide a defense to the murder charge. Id. at 11-13, 27. In light of the purported
disparities between Bell’s trial testimony and his testimony during his post-conviction
proceedings, the PCRA court concluded that the latter comprised newly discovered facts,
upon which Small could premise a substantive claim for relief based upon after-
discovered evidence.
The PCRA court acknowledged that, at the time, any PCRA petition invoking a
timeliness exception must have been filed within sixty days2 of the date upon which the
claim first could have been presented, and that Small discovered the Superior Court’s
1998 opinion in Bell’s appeal on June 14, 2013, but did not file his pro se petition until
over thirteen months later on July 22, 2014. Nonetheless, the court concluded that Small
had satisfied the sixty-day requirement because the sixty-day clock did not begin to tick
until Small received Bell’s 1993 transcripts from his counsel, which occurred on or about
September 3, 2017. Because Small filed his amended petition on October 30, 2017, the
PCRA court opined that Small had asserted the applicability of the newly discovered fact
exception within sixty days of the date that his claim initially could have been presented.
Id. at 25, 33.
The parties had stipulated that the 1993 transcripts were public records, and that
any member of the public could view them at the location where they were stored. The
PCRA court deemed the public availability of the transcripts to be a “cruel irony”
considering Small’s repeated, failed efforts to obtain them from prison. Id. at 33.
Following his discovery of the 1998 Superior Court opinion, Small had attempted to obtain
relief in federal court, had asked his daughter-in-law to locate the transcripts, had
attempted to subpoena the Commonwealth, and had filed a motion with the court of
2 The PCRA since has been amended to extend the sixty-day limitation to a period
of one year. See 42 Pa.C.S. § 9545(b)(2); Act of Oct. 24, 2018, P.L. 894, No. 146, § 2
(effective Dec. 24, 2018).
[J-116-2019] - 7
common pleas seeking the transcripts. Id. at 21-25. Despite what the PCRA court
considered to be exceptional diligence, Small labored in vain. Only once Small received
the assistance of counsel was he able to obtain the transcripts that contained the
testimony that ostensibly supported his claim of after-discovered evidence. Id. at 25, 31.
Thus finding the requisite due diligence, and in conjunction with its conclusion regarding
the PCRA’s sixty-day window, the PCRA court found that Small had established the
applicability of the newly discovered fact exception, rendering his petition timely and
vesting the court with jurisdiction to consider his substantive claims for relief.
The PCRA court ultimately concluded that Bell’s 1993 testimony was exculpatory,
unavailable at trial, non-cumulative, would not be used solely for impeachment, and likely
would change the outcome of the trial, thus satisfying the requirements of a claim of after-
discovered evidence. See supra n.1. It further asserted that Small’s challenge to the trial
court’s jury instruction was rendered cognizable by the newly discovered facts and
separately warranted relief.3 Accordingly, the PCRA court vacated Small’s judgment of
sentence and awarded him a new trial.
On the Commonwealth’s appeal, the Superior Court reversed the order of the
PCRA court, concluding that Small failed to establish the applicability of an exception to
the PCRA’s time bar, which denied the PCRA court jurisdiction to award him relief.
Commonwealth v. Small, 250 EDA 2018, 2018 WL 5317602 (Pa. Super. Oct. 29, 2018)
(unpublished). The Superior Court panel detailed several bases for its disagreement with
the PCRA court. First, the panel disagreed with the PCRA court’s characterizations of
Bell’s 1993 testimony. Referencing Bell’s testimony that Small “flipped out and started
stabbing the guys,” the Superior Court observed that this summary “lacked the detail of
3 We do not reach the merits of either of Small’s substantive claims for relief in this
opinion, and thus offer no comment upon the PCRA court’s reasoning.
[J-116-2019] - 8
[Bell’s] trial testimony.” Id., slip op. at 7. Nonetheless, in the court’s view, the testimony
was “materially consistent with his trial testimony and defense.” Id. Bell consistently had
maintained that Small stabbed both victims, and that Bell had agreed to rob the victims
but did not intend to assault or murder them. Since their joint trial, the Superior Court
concluded, Small knew both Bell’s version of the events and his motivation for testifying,
and Bell’s 1993 testimony therefore was not a newly discovered fact.
Most significantly for purposes of this appeal, the Superior Court further concluded
that Bell’s 1993 transcripts were a matter of public record, and therefore could not be
considered “unknown” to Small. Id. at 7-8 (citing Commonwealth v. Taylor, 67 A.3d 1245,
1248 (Pa. 2013)). The panel recognized this Court’s holding in Burton that the public
record presumption “does not apply to pro se prisoner petitioners.” Id. at 8 (quoting
Burton, 158 A.3d at 620). Nonetheless, the court reasoned, Bell’s testimony had been
accessible since 1993, and the Superior Court had referenced it in two decisions, issued
in 1995 and 1998. Small was represented by counsel on his third PCRA petition and
appeal, from September 2008 to January 2013. Accordingly, “for over four years, from
September 30, 2008 until January 10, 2013, [Small] was not a pro se prisoner, and Bell’s
testimony could not be considered ‘unknown.’” Id. at 9. That is, due to Small’s past
representation, the court concluded that Burton was inapplicable, and the public record
presumption remained in force, defeating Small’s assertion of newly discovered facts.
As another basis for reversal, the Superior Court concluded that Small failed to
comply with the sixty-day requirement of then-effective 42 Pa.C.S. § 9545(b)(2)
(amended; see supra n.2). Small conceded that he discovered the 1998 Superior Court
opinion in Bell’s case on June 13, 2013, but did not file his pro se PCRA petition until July
22, 2014, thirteen months later. On this basis as well, the Superior Court deemed Small’s
petition untimely. Small, slip op. at 9-10. Relatedly, even if the PCRA court was correct
[J-116-2019] - 9
to deem the date that Small filed his amended petition to be the operative date for
purposes of assessing timeliness, the Superior Court concluded, then the PCRA court
erred in ordering that Small be provided with discovery before that date. Id. at 10 (citing
42 Pa.C.S. § 9545(a) (“No court shall have the authority to entertain a request for any
form of relief in anticipation of the filing of a petition under this subchapter.”)).4
Finding error on several distinct grounds, the Superior Court concluded that Small
failed to satisfy the newly discovered fact exception. Thus, his petition was untimely, and
the PCRA court lacked jurisdiction to consider Small’s substantive claims for post-
conviction relief. The court accordingly reversed the order of the PCRA court, reinstated
Small’s judgment of sentence, and remanded.
We granted Small’s petition for allowance of appeal in order to review the Superior
Court’s treatment of Burton and the public record presumption. We further consider
whether Small otherwise has established the applicability of the newly discovered fact
exception.5
4 Although it appears that the transcripts at issue ultimately were obtained by Small’s
counsel, not the Commonwealth, the Superior Court referred to an order that the PCRA
court issued on August 30, 2017, which, inter alia, directed the Commonwealth to produce
the transcripts from Bell’s post-conviction proceedings. If, as the PCRA court reasoned,
Small’s petition should be deemed filed on October 30, 2017—the date upon which he
filed his amended petition—then, the Superior Court reasoned, the PCRA court erred in
ordering discovery in anticipation of filing a PCRA petition, in violation of 42
Pa.C.S. § 9545(a).
5 Specifically, we granted review of the following questions, as framed by Small:
(1) Where Small did not receive notice of his co-defendant Larry Bell’s 1993
PCRA hearing, and where Small has been continuously incarcerated, with
only limited assistance of counsel on unrelated claims since that time, was
Bell’s PCRA testimony “unknown” to Small under Commonwealth v. Burton,
638 Pa. 687, 158 A.3d 618 (2017)?
(2) Has Small otherwise satisfied the requirements for an exception to the
PCRA time-bar under 42 Pa.C.S. § 9545(b)(1)(ii) based on his co-
[J-116-2019] - 10
II.
Small principally argues that this Court should expand upon Burton and simply
eradicate the public record presumption entirely. Small highlights the Burton Court’s
discussion of the presumption’s questionable origins and the absence of any express
provision in the PCRA relating to public records or access thereto. Brief for Small at 28-
29 (citing Burton, 158 A.3d at 632-33). Recognizing that the opinions of both the majority
and the dissenting Justices in Burton stated that wholesale abrogation of the public record
presumption was beyond the scope of the decision, Small argues that the instant case
presents the Court with an opportunity to do so now. Id. at 30.
Small contends that the public record presumption is inconsistent with both the
plain language of the PCRA and its purpose. As Burton highlighted, Small reiterates that
the newly discovered fact exception makes no reference to public records; rather, it
unambiguously sets forth only two elements: that “the facts upon which the claim is
predicated were unknown to the petitioner,” and that those facts “could not have been
ascertained by the exercise of due diligence.” Id. at 37 (quoting 42 Pa.C.S.
§ 9545(b)(1)(ii)). With regard to the intent and construction of the PCRA, Small highlights
this Court’s pronouncement that the PCRA was enacted “to provide a reasonable
opportunity for those who have been wrongfully convicted to demonstrate the injustice of
their conviction.” Id. at 36 (quoting Commonwealth v. Peterkin, 722 A.2d 638, 643 (Pa.
1998)). Accordingly, we “must construe the provisions of the PCRA liberally to effect their
objects and to promote justice.” Id. (quoting Bennett, 930 A.2d at 1270 (internal quotation
defendant Bell’s PCRA testimony, such that the PCRA court’s grant of a
new trial should be reinstated?
Commonwealth v. Small, 207 A.3d 289 (Pa. 2019) (per curiam) (brackets omitted).
[J-116-2019] - 11
marks omitted)). Because the public record presumption serves only to limit the right to
seek relief, Small argues that it contravenes these principles.
The Superior Court’s application of the presumption in this case ostensibly rested
upon the expectation that Small’s prior counsel, who earlier litigated a wholly unrelated
claim on Small’s behalf, apprised himself of all matters of public record. Small argues
that this expectation is “not realistic.” Id. at 32. Although PCRA counsel may have a duty
to investigate matters lying outside the record, Small argues, the “role of counsel in
seeking out and obtaining relevant information from the public record in a given
engagement is highly context-dependent.” Id. As support for his view, Small notes that
the Turner/Finley6 standard, which appointed PCRA counsel must satisfy before
withdrawing from representation for want of a meritorious claim, requires only that PCRA
counsel conduct a “thorough review of the record” for non-frivolous claims, not an extra-
record investigation of all potentially useful public records. Id. at 33 (emphasis in original;
quoting Commonwealth v. Hampton, 718 A.2d 1250, 1254 (Pa. Super. 1998)). Thus,
Small contends that the assistance of counsel in earlier post-conviction proceedings is
“far from a guarantee that all relevant matters of public record will become known on a
timely basis to a PCRA petitioner.” Id. at 34. In addition to the presumed discovery of
existing records, Small observes, the public record presumption imposes an onerous
obligation upon PCRA counsel to continuously monitor all potentially relevant public
resources, notwithstanding the various burdens of doing so, and without regard to
whether the petitioner has identified any particular record as a likely source of relevant
material. Id. at 35.
6 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550
A.2d 213 (Pa. Super. 1988) (en banc); see generally Commonwealth v. Pitts, 981 A.2d
875 (Pa. 2009) (addressing appellate review of Turner/Finley “no-merit” letter).
[J-116-2019] - 12
Even if we decline to eliminate the public record presumption entirely, Small
contends that he was entitled to the benefit of Burton because he “was indisputably a pro
se prisoner at the time he filed his Fourth PCRA petition,” and because he amply
established that, due to his incarceration, he lacked earlier access to the information
necessary to establish his substantive claims for relief. Id. at 31. Small closely tracks the
PCRA court’s analysis in the remainder of his arguments favoring the applicability of the
newly discovered fact exception. He asserts that he acted with due diligence in his
attempts to obtain the transcripts from Bell’s 1993 hearings, that the PCRA’s then-
applicable sixty-day clock did not begin to run until he received those transcripts, and that
his substantive claims were predicated upon the facts discovered therein, i.e., the
asserted discrepancies between Bell’s trial testimony and the testimony offered during
Bell’s post-conviction proceedings. Id. at 38-46. Finally, assuming satisfaction of the
time-bar exception, Small argues that he is entitled to a new trial upon the basis of after-
discovered evidence, echoing the PCRA court’s reasoning. Id. at 47-51.7
7 Small’s position is supported by several amici curiae, which have filed two briefs
in this appeal. The Pennsylvania Innocence Project argues that our holding in Burton
should be expanded so as to apply to all incarcerated individuals, regardless of whether
or not they are proceeding pro se. Amicus contends that parsing the procedural history
of a petitioner’s case in order to determine the precise time periods of prior representation
can raise complications, including determining what exactly qualifies as legal
representation, and what the scope of that representation may have been. Amicus offers,
for example, representation with respect to a civil claim under the Prison Litigation Reform
Act, 42 Pa.C.S. §§ 6601-08, as a type of prior representation upon which it would be
unjust to premise the application of the public record presumption in the PCRA context.
Brief for Amicus Curiae Pennsylvania Innocence Project at 22. Amicus urges us to view
our decision in Burton as animated by concern with the diminished access to public
records generally, which applies to all prisoners regardless of pro se status.
Amici the Pennsylvania Association of Criminal Defense Lawyers and the
American Civil Liberties Union of Pennsylvania separately argue that this Court should
reexamine our decisions that have interpreted the PCRA’s time restrictions to be
jurisdictional in nature—an issue that is beyond the scope of the present appeal.
[J-116-2019] - 13
The Commonwealth counters that Bell’s 1993 PCRA testimony was consistent with
his trial testimony. In both proceedings, Bell consistently maintained that Small was the
individual who stabbed Blake and McCrary. The Commonwealth notes that Bell even
used the same language—that Small “flipped out” and stabbed the victims—in both his
trial testimony and his post-conviction testimony. Brief for Commonwealth at 20
(comparing N.T., Trial, at 661, with N.T., Bell PCRA Hearing, 3/5/1993, at 12).8 Moreover,
Bell’s purportedly new explanation of his motivation for testifying at trial is, in the
Commonwealth’s view, not newly discovered, because Bell’s trial counsel implored the
jury to convict Bell of robbery but acquit him of murder, i.e., the same theory that Bell later
identified as the reason that he chose to testify. Id. at 21. Finally, although the PCRA
court placed some significance upon the fact that Bell, in 1993, did not testify regarding
his initial impression that Small had “punched” the victims rather than stabbed them, Bell’s
trial testimony clearly reflected his understanding that Small had stabbed the victims. Id.
at 21-22. Accordingly, the Commonwealth not only argues that Bell’s 1993 testimony
failed to reveal any exculpatory evidence concerning Small, but also that the testimony
the PCRA court highlighted presented no “new” facts, because it was materially
consistent with Bell’s trial testimony and strategy, of which Small has been aware since
1983. The absence of any exculpatory evidence further serves as the heart of the
Commonwealth’s argument regarding the absence of merit in Small’s claim of after-
discovered evidence. Id. at 32-33.
8 In point of fact, Bell testified at trial that he was planning to rob Blake and McCrary,
but with regard to Small: “I didn’t know he was going to go crazy or freak out on anybody.”
N.T., Trial, at 661 (emphasis added). By contrast, during his post-conviction proceedings,
Bell testified that Small “flipped out and started stabbing the guys.” N.T., Bell PCRA
Hearing, 3/5/1993, at 12 (emphasis added). Although there is a slight variation in the
colloquialism that Bell employed, the difference is insignificant. The Commonwealth’s
observation therefore is well-taken despite its minor misquotation of the cited testimony.
[J-116-2019] - 14
Rebutting Small’s contentions regarding the remaining requisites of the newly
discovered fact exception, the Commonwealth maintains that Small did not exercise due
diligence because his prior counsel could have located the transcripts, and either Small
or his daughter-in-law could have retained new counsel to assist him, but did not. With
regard to Small’s repeated attempts to obtain the transcripts, the Commonwealth argues
that these constituted discovery requests, which under the PCRA require a showing of
exceptional circumstances, and with which the Commonwealth has no duty to comply
absent a court order. Id. at 30 (citing Pa.R.Crim.P. 902(E)(1) (providing that “no discovery
shall be permitted” absent “a showing of exceptional circumstances”)). As for the PCRA’s
then-effective sixty-day limitation, the Commonwealth stresses that, on Small’s own
account, he began searching for the transcripts on June 14, 2013, but did not file the
instant PCRA petition for over one year. Contrary to the view of the PCRA court, the
Commonwealth argues that Small was not precluded from seeking relief within sixty days
of June 14, 2013. Indeed, Small sought relief within sixty days of that date based upon
his knowledge at the time, but attempted to do so in federal court, not under the PCRA.
Small then later filed the instant petition pro se, still never having seen the transcripts.
Turning to the central question, the Commonwealth argues that the public record
presumption should be preserved as a general matter. It further contends that abolishing
the presumption would make no difference to Small, in light of the alternative bases for
dismissal that it has developed. The Commonwealth acknowledges that the language of
the PCRA requires only that the asserted facts be unknown to the petitioner. However,
the Commonwealth again stresses the due diligence component of the newly discovered
fact exception, suggesting that, at least as it concerns formerly represented petitioners,
the public record presumption should be viewed as applicable to the “due diligence”
prong, rather than the “unknown” prong. Id. at 36. The Commonwealth argues that this
[J-116-2019] - 15
Court already has done so, in Commonwealth v. Staton, 184 A.3d 949, 957 (Pa. 2018),
in which we held that the petitioner failed to establish that his trial counsel’s alleged
conflict of interest could not have been ascertained earlier with the exercise of due
diligence, and noted that the petitioner had been represented by counsel at various points
in the past. The Commonwealth argues that Staton controls the question presented here,
and establishes that Small cannot satisfy the due diligence requirement due to his earlier
representation.9
With regard to statutory interpretation, the Commonwealth observes that the
General Assembly has amended the PCRA since this Court adopted the public record
presumption, but has not repudiated it expressly. Accordingly, in the Commonwealth’s
view, the public record presumption effectively has become a part of the statutory
scheme. Brief for Commonwealth at 37 (citing 1 Pa.C.S. § 1922(4)). Finally, the
Commonwealth argues that the PCRA should be interpreted in a manner that advances
the statute’s interest in preserving the finality of criminal judgments, and “disregarding the
reality that counseled petitioners have access to public records would needlessly
denigrate the principle of finality.” Id. at 40.
9 We disagree that Staton is dispositive of our analysis here. Staton is readily
distinguishable from the instant case, because we emphasized that the asserted new fact
was accessible well before even the date of Staton’s trial. Staton, 184 A.3d at 957. Staton
also did not present the nuanced issue relating to the precise timing of past legal
representation, and did not encompass a direct challenge to the validity of the public
record presumption. Staton’s reference to the petitioner’s prior representation was a
component of our fact-specific assessment of due diligence, which we found lacking. This
does not mean, as the Commonwealth suggests, that this Court merely shifted a
categorical public record presumption from the “unknown” prong of the newly discovered
fact exception to the “due diligence” prong. To the contrary, Burton called for case-
specific analyses of pro se prisoners’ knowledge and their exercise of due diligence. To
resurrect the public record presumption for pro se prisoners simply by deeming it an
interpretation of a different statutory term would not only elevate form over substance, but
would defeat the entire purpose of our decision in Burton.
[J-116-2019] - 16
III.
Our standard of review in a PCRA appeal requires us to determine whether the
PCRA court’s findings of fact are supported by the record, and whether its conclusions of
law are free from legal error. Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).
The scope of our review is limited to the findings of the PCRA court and the evidence of
record, which we view in the light most favorable to the party who prevailed before that
court. Commonwealth v. Hanible, 30 A.3d 426, 438 (Pa. 2011). Here, Small was the
prevailing party. The PCRA court’s factual findings and credibility determinations, when
supported by the record, are binding upon this Court. Mason, 130 A.3d at 617. However,
we review the PCRA court’s legal conclusions de novo. Id.
Any PCRA petition, including a second or subsequent petition, must be filed within
one year of the date that the petitioner’s judgment of sentence becomes final. 42 Pa.C.S.
§ 9545(b)(1). We have construed the PCRA’s timing provisions as jurisdictional in nature,
and no court may entertain an untimely PCRA petition. Burton, 158 A.3d at 627 (citing
Commonwealth v. Brown, 943 A.2d 264, 267 (Pa. 2008)). His judgment of sentence
having become final decades ago, Small’s fourth PCRA petition indisputably was untimely
on its face. Accordingly, Small could establish jurisdiction in the PCRA court only by
pleading and proving the applicability of an exception to the PCRA’s time bar. The
exception at issue here, as noted above, applies where “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).
A.
As indicated by the central question presented, our analysis builds upon the
foundation we laid in this Court’s decision in Burton. Like Small, Burton was serving a
prison sentence for murder when he learned of a development in his co-defendant’s case
[J-116-2019] - 17
that revealed potentially exculpatory information, but had been a matter of public record
for years before Burton discovered it. The PCRA court dismissed Burton’s PCRA petition
as untimely. A panel of the Superior Court initially reversed the PCRA court’s order and
remanded for an evidentiary hearing, but the Superior Court subsequently granted the
Commonwealth’s application for reargument and heard the matter en banc. A majority of
the en banc panel again reversed the PCRA court’s order, concluding that pro se prisoner
petitioners like Burton should not be presumed to know facts available in the public record,
so as to defeat their claims based upon newly discovered facts. Commonwealth v.
Burton, 121 A.3d 1063 (Pa. Super. 2015) (en banc).
This Court embraced the reasoning of the Superior Court’s en banc majority. We
noted that the newly discovered fact exception, by its express terms, requires only that
the petitioner 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.” Burton, 158 A.3d at 631-32 (quoting 42 Pa.C.S. § 9545(b)(1)(ii); emphasis in
original). The “statute itself contains no exception, express or constructive, regarding
information that is of public record.” Burton, 158 A.3d at 632 (emphasis in original).
Because the public record presumption exists only by virtue of judicial interpretation, the
Burton Court traced the rule to its origin in Commonwealth v. Lark, 746 A.2d 585 (Pa.
2000).
In Lark, this Court deemed a Batson10 claim to be timely based upon the release
by the Philadelphia District Attorney’s Office of a training video that instructed prosecutors
to rely upon race and gender stereotypes in striking potential jurors. Lark, 746 A.2d at
588. The Lark Court rejected the Batson claim on the merits, but also rejected an
10 Batson v. Kentucky, 476 U.S. 79 (1986) (holding that the Equal Protection Clause
of the Fourteenth Amendment to the United States Constitution forbids a prosecutor from
challenging potential jurors solely on account of their race).
[J-116-2019] - 18
additional Batson argument due to Lark’s failure to establish the newly discovered fact
exception to the PCRA’s time bar. Lark had highlighted a then-recent academic study of
the Philadelphia courts, which addressed racially discriminatory jury selection practices.
The Lark Court reasoned: “The statistics which comprise the study were of public record
and cannot be said to have been ‘unknown’ to [Lark]. As such, this information does not
fall within the purview of 42 Pa.C.S. § 9545(b)(1)(ii).” Id. at 588 n.4. In Burton, we
criticized Lark, noting that it lacked legal or statutory support for its sweeping conclusion,
and made no attempt to reconcile its holding with the specific language of 42 Pa.C.S.
§ 9545(b)(1)(ii). Burton, 158 A.3d at 632-33. Our subsequent decisions applying the
presumption in Chester and Commonwealth v. Whitney, 817 A.2d 473, 478 (Pa. 2003),
“simply cited the Lark footnote and contained no independent analysis or discussion.”
Burton, 158 A.3d at 633.
Burton contrasted the scant analyses of Lark, Whitney, and Chester with this
Court’s decision in Bennett. Bennett asserted that his trial counsel was ineffective, but
the court nonetheless appointed his trial counsel to represent Bennett in his PCRA
appeal, and counsel thereafter failed to file an appellate brief in the Superior Court,
causing Bennett’s appeal to be dismissed. Bennett, 930 A.2d at 1266. When Bennett
later learned of the dismissal, he again sought relief under the PCRA, asserting that his
now-untimely second PCRA petition satisfied the newly discovered fact exception
because he had only recently learned that his allegedly ineffective trial counsel was
appointed as appellate PCRA counsel, that counsel then abandoned him, and that the
Superior Court dismissed his appeal. Id. at 1272. Because the Superior Court’s order
dismissing Bennett’s appeal was publicly available, two of the dissenting Justices in
Bennett opined that the order was not “unknown” to the petitioner for purposes of the
newly discovered fact exception. The Bennett Majority disagreed, opining that rigid
[J-116-2019] - 19
application of a public record presumption would be “attractive in its simplicity,” but would
not give due consideration to the circumstances of the case. Id. at 1275. The Superior
Court’s dismissal order “was a matter of ‘public record’ only in the broadest sense.” Id.
Such orders, Bennett reasoned, are not sent directly to the prisoner, but instead to
counsel, who there already had abandoned his client once. In light of that abandonment,
we found “no other way in which a prisoner could access the ‘public record.’” Id. Bennett
thus distinguished earlier application of the public record presumption because “the
matter of ‘public record’ does not appear to have been within [Bennett’s] access.” Id.
Although counsel’s abandonment was a significant consideration in Bennett, in
Burton we observed that the ruling in Bennett also was driven by Bennett’s lack of access
to public records in prison. Addressing that latter rationale in greater detail, we considered
the arguments of amici curiae, Pennsylvania Exonerees, composed of former pro se
prisoners who had been exonerated and released from incarceration. Amici provided
insight into the limited avenues available for legal research in prisons, as well as inmates’
relative lack of access to public records. Burton, 158 A.3d at 636-37. We found this
diminished access to be significant, and adopted “the essence of our holding in Bennett.”
Id. at 638. We concluded:
[T]he presumption that information which is of public record cannot be
deemed “unknown” for purposes of subsection 9545(b)(1)(ii) does not apply
to pro se prisoner petitioners. As discussed above, the application of the
public record presumption to pro se prisoners is contrary to the plain
language of subsection 9545(b)(1)(ii) and was imposed without any
apparent consideration of a pro se prisoner’s actual access to information
of public record. We find nothing presented in the instant appeal to
undermine the implicit conclusion we made in Bennett that prisoners’
access to public records is distinctly compromised; indeed, there is much to
support that conclusion.
Id. (footnote omitted). We directed future PCRA courts considering similar petitions to
employ the statutory language, and to determine whether “the facts upon which the claim
[J-116-2019] - 20
is predicated were unknown to the petitioner,” which may require a hearing. “After the
PCRA court makes a determination as to the petitioner’s knowledge, it should then
proceed to consider whether, if the facts were unknown to the petitioner, the facts could
have been ascertained by the exercise of due diligence, including an assessment of the
petitioner’s access to public records.” Id.
The majority opinion in Burton was authored by Justice Todd and joined by Chief
Justice Saylor and this author, thus garnering a majority of the five-member Court. Justice
Donohue and Justice Mundy did not participate in the decision of Burton. Chief Justice
Saylor authored a concurring opinion, expressing his agreement with the majority’s
holding based upon Bennett and the majority’s development thereof, but reiterating a
point of disagreement with Bennett’s statutory analysis. Id. at 638-39 (Saylor, C.J.,
concurring) (citing Bennett, 930 A.2d at 1275-80 (Saylor, J., dissenting)).
Justice Baer dissented in an opinion joined by Justice Dougherty. Justice Baer
questioned the majority’s reliance upon the extra-record material offered by amici, and
rejected the creation of a “status-based exception” to the public record presumption that
“swallows nearly the entirety of the rule given that incarcerated pro se petitioners
constitute the group of PCRA petitioners who regularly invokes and relies upon the
exceptions to the PCRA’s time-bar.” Id. at 639 (Baer, J., dissenting). Anticipating the
difficulty that precipitated the instant appeal, Justice Baer found it unclear when an
incarcerated petitioner must have been pro se in order to benefit, and asked: “does the
incarcerated petitioner have to be pro se when the ‘unknown fact’ occurred, when it
became publicly accessible, or when he files his PCRA petition?” Id. at 639 n.3. Although
Justice Baer recognized that the validity or prudence of the public record presumption
itself was not at issue in Burton, he agreed with the Majority that the “presumption may
be in tension with the statutory language which governs the newly-discovered-facts
[J-116-2019] - 21
exception,” and suggested that this Court perhaps “should reconsider the public record
presumption in general if that opportunity presents itself” in a future case. Id. at 640-41.
Unlike Burton, the instant appeal presents a direct challenge to the public record
presumption. We agree with Small that the time has come to correct our precedent. As
both the Burton Majority and Justice Baer in dissent recognized, the plain language of the
newly discovered fact exception does not call for any assessment of whether the asserted
facts appear in the public record. It merely requires that the “facts” upon which the
petitioner’s 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). This language
plainly calls for a circumstance-dependent analysis of the petitioner’s knowledge, not that
of the public at large. “In requiring that the facts be unknown to the petitioner, the statute
itself contains no exception, express or constructive, regarding information that is of public
record.” Burton, 158 A.3d at 632 (emphasis in original).
Our decision in Burton suggested a restoration of the primacy of the statutory
language. Burton’s exception for pro se prisoners reflected a sensible understanding that
incarcerated individuals enjoy only limited access to public records. Absent a challenge
to the presumption itself, however, this Court could go only so far, despite our unanimous
recognition of the tension between the statutory language and this Court’s interpretation
of it. As Justice Baer observed, however, difficulties remain. The determination of when
representation should be dispositive remains a complication. See id. at 639 n.3 (Baer, J.,
dissenting). Assessing whether a petitioner is, in fact, represented, or is instead only a
prospective client, can also be a challenge. See, e.g., Commonwealth v. Brensinger, 218
A.3d 440, 450-53 & n.10 (Pa. Super. 2019) (en banc). Further, although incarcerated pro
se petitioners now are entitled to application of the statute as written, those who are not
incarcerated, or who are represented by counsel, remain subject to a rigid presumption
[J-116-2019] - 22
of judicial invention that can overcome their otherwise meritorious assertions of newly
discovered facts.
The public record presumption exists only because this Court engrafted it upon the
statutory language in Lark, and then perpetuated our extra-statutory innovation in later
cases such as Chester and Whitney without meaningful discussion. Burton, 158 A.3d at
633. But as in all matters of statutory construction, the plain language of the law must
govern. See 1 Pa.C.S. § 1921(b) (“When the words of a statute are clear and free from
all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its
spirit.”). There is nothing ambiguous about the statute’s reference to facts that were
“unknown to the petitioner.” 42 Pa.C.S. § 9545(b)(1)(ii). Although “due diligence,” id., is
a flexible concept that varies with the context of a given case, it is a term of art well-
understood by courts. Even assuming, arguendo, that any portion of the newly
discovered fact exception could be deemed ambiguous, resolving any such ambiguity
does not require the creation of a categorical rule of exclusion based upon a single factor
with respect to which the statute is silent.
It takes little imagination to appreciate the ways in which the public record
presumption can lead to results in tension with the statutory language. In any
circumstance in which a PCRA petitioner can establish the facial requirements of the
newly discovered fact exception, but the court rejects the claim merely due to the earlier
public availability of the information, the court is overriding the language of the PCRA.
“[I]t is not for the courts to add, by interpretation, to a statute, a requirement which the
legislature did not see fit to include.” Commonwealth v. Wright, 14 A.3d 798, 814 (Pa.
2011) (quoting Commonwealth v. Rieck Inv. Corp., 213 A.2d 277, 282 (Pa. 1965)). The
instant case provides one such example of the severe consequences that can result. The
content of the asserted public record here was not widely reported in a newspaper or
[J-116-2019] - 23
available online—it was a paper transcript from 1993, which was locked away in court
storage. As in Bennett, the transcript “was a matter of ‘public record’ only in the broadest
sense.” Bennett, 930 A.2d at 1275. To presume that all members of the public know the
contents of such a document is an absurdity that the language of the PCRA neither
requires nor tolerates.
It bears emphasizing that the public record presumption serves only a gatekeeping
function, precluding the petitioner from invoking a time-bar exception, which, in turn,
precludes the court from reaching the substantive merits of the petition. Although rote
application of the presumption is “attractive in its simplicity,” id. at 1275, our duty is not to
streamline the process of denying potentially meritorious claims. Courts must apply
statutes as they are written.
In the instant appeal, the Commonwealth’s advocacy focuses primarily upon the
facts and case-specific circumstances, which we will resolve in Part III(B), infra. As for
the broader question of the continued viability of the public record presumption, the
Commonwealth primarily advances two principles of statutory construction. The
Commonwealth contends that the PCRA embodies the legislature’s intent to advance the
interest in the finality of judgments. Brief for Commonwealth at 39-40. However, when a
statute is clear and free from ambiguity, we do not disregard its language in pursuit of its
spirit. 1 Pa.C.S. § 1921(b). Moreover, even if we go beyond the plain language, the
purpose of the PCRA is not simply to preclude relief for all time, a draconian means of
advancing finality. To the contrary, the PCRA “provides for an action by which persons
convicted of crimes they did not commit and persons serving illegal sentences may obtain
collateral relief.” 42 Pa.C.S. § 9542. The PCRA provides a mechanism to obtain
collateral relief; finality of a judgment is merely a consequence of the denial of such relief.
In any event, the Commonwealth’s argument is at odds with our previous conclusion that
[J-116-2019] - 24
“we must construe the provisions of the PCRA liberally ‘to effect their objects and to
promote justice.’” Bennett, 930 A.2d at 1270 (quoting 1 Pa.C.S. § 1928(c)).
The Commonwealth further cites the interpretive presumption that the General
Assembly implicitly endorses this Court’s interpretation of statutory language when it
amends the statute and declines to correct us. See Brief for Commonwealth at 37-38; 1
Pa.C.S. § 1922(4) (court may presume “[t]hat when a court of last resort has construed
the language used in a statute, the General Assembly in subsequent statutes on the same
subject matter intends the same construction to be placed upon such language”).
Although the Commonwealth’s point is well-taken, we do not view the asserted
presumption to be controlling. Application of this presumption is discretionary, not
mandatory. Id. § 1922 (“the following presumptions, among others, may be used”)
(emphasis added). Although there are certainly circumstances in which this presumption
can be helpful, and although “the legislative body is free to correct any errant
interpretation of its intentions,” Commonwealth v. Hunt, 983 A.2d 627, 638 (Pa. 2009)
(quoting Shambach v. Bickhart, 845 A.2d 793, 807 (Pa. 2004) (Saylor, J. concurring)),
this Court’s departure from the plain language of a statute should not be viewed
categorically as placing the burden upon the General Assembly to detect our error and to
marshal the resources to correct it. The General Assembly makes its intent known
through the statutory language, itself. And ultimately it is this Court that is responsible for
its own precedent.
As for our precedent, we do not take lightly the decision to depart therefrom. But
stare decisis has its limits. While “stare decisis serves invaluable and salutary principles,
it is not an inexorable command to be followed blindly when such adherence leads to
perpetuating error.” Stilp v. Commonwealth, 905 A.2d 918, 967 (Pa. 2006). Indeed,
particularly when this Court’s prior cases have “distorted the clear intention of the
[J-116-2019] - 25
legislative enactment and by that erroneous interpretation permitted the policy of that
legislation to be effectively frustrated,” this Court has “no alternative but to rectify our
earlier pronouncements and may not blindly adhere to the past rulings out of a deference
to antiquity.” Mayhugh v. Coon, 331 A.2d 452, 456 (Pa. 1975). As established above,
because the public record presumption stands in tension with the plain language of the
newly discovered fact exception, because we have recognized its deficiencies already in
Burton,11 and because the instant appeal presents a direct challenge to its continued
application, it is our prerogative and our duty to steer our precedent back toward the
language of the statute from which we have strayed. Accordingly, we disavow the public
record presumption. To the extent that earlier decisions, including our own, relied upon
and applied that presumption to reject a petitioner’s claim, they now are overruled.12
11 Chief Justice Saylor maintains that the public record presumption “reflects a
reasonable interpretation of Section 9545(b)(1)(ii)’s requirement that, to implicate the
relevant exception to the PCRA’s one-year time bar, newly discovered facts ‘could not
have been ascertained by the exercise of due diligence.’” Conc. & Diss. Op. at 1 (Saylor,
C.J.) (quoting 42 Pa.C.S. § 9545(b)(1)(ii)). However, he would “refine” the presumption
by examining “whether [the petitioner’s] inquiry should have been focused on the relevant
subject matter,” and by clarifying that the presumption may be rebutted with a showing
that, despite the exercise of diligence, the petitioner was unable to discover the
documents in question. Id. at 2. Respectfully, while these refinements might comprise
salutary adjustments to the pre-Burton status quo, they also illustrate the unnecessary
difficulties created by preserving the flawed, extra-textual public record exception.
Combined with the concerns Justice Baer expressed in Burton and those raised in the
foregoing discussion, what we find are persistent questions about how to apply the
presumption fairly and with sensitivity to the difficulties lay people, and especially
prisoners, may encounter obtaining even information that technically is accessible to the
general public—difficulties associated both with knowing that such information is relevant
and exists and with obtaining it. Presumptions serve their purpose only when they simplify
areas of inquiry. But the public record presumption confuses more than it clarifies, and
superimposing additional refinements in an effort to bring the presumption’s operation
into sync with the realities faced by prisoners only complicates the matter.
12 These decisions include Taylor, 67 A.3d at 1248-49; Commonwealth v. Edmiston,
65 A.3d 339, 352-53 (Pa. 2013); Commonwealth v. Lopez, 51 A.3d 195, 196 (Pa. 2012)
(per curiam); Commonwealth v. Hawkins, 953 A.2d 1248, 1255 (Pa. 2006) (Opinion
[J-116-2019] - 26
B.
That Small is relieved of the public record presumption does not mean that Small
prevails. The public record presumption has operated only as a barrier to entry; without
it, the textual requirements of the time-bar exception remain. The Superior Court
concluded that Bell’s 1993 PCRA testimony was materially similar to his trial presentation,
and thus did not reveal any previously unknown facts. The Commonwealth adeptly
develops this point. We reiterate Bennett’s conclusion that the newly discovered fact
exception “does not require any merits analysis of the underlying claim,” and application
of the time-bar exception therefore does not necessitate proof of the elements of a claim
of after-discovered evidence. Bennett, 930 A.2d at 1271 (discussing Commonwealth v.
Lambert, 884 A.2d 848 (Pa. 2005)). Nonetheless, the statutory language commands that
the operative “facts” be “unknown” to the petitioner. 42 Pa.C.S. § 9545(b)(1)(ii).
Even when viewed in the light most favorable to Small as the prevailing party,
Hanible, 30 A.3d at 438, the record does not support the PCRA court’s finding that Bell’s
1993 testimony reflected “a new story of the robbery and murder with a newly added
motive for [Bell’s] testimony,” that conflicted with Bell’s trial testimony. PCRA Ct. Op. at
42. After a review of the record of both proceedings, as well as the parties’ arguments, it
is clear that the Superior Court correctly deemed Bell’s 1993 testimony to be “materially
consistent with his trial testimony and defense.” Small, slip op. at 7.
It is true that Bell’s 1993 testimony omitted details from the sequence of events
that he described at trial, but during his 1993 PCRA proceedings, Bell was asked to
provide a summary of how the murder occurred, which Bell condensed into a single
sentence: “We entered the apartment and [Small] flipped out and started stabbing the
Announcing the Judgment of the Court); Chester, 895 A.2d at 523-24; Whitney, 817 A.2d
at 476; and Lark, 746 A.2d at 588 n.4.
[J-116-2019] - 27
guys.” N.T., Bell PCRA Hearing, 3/5/1993, at 12. This was not a recantation of Bell’s trial
testimony. Bell continued to assert that Small was the individual who stabbed Blake and
McCrary, and, as the Commonwealth highlights, he used very similar language in
describing the incident at trial. See supra n.8. Despite the PCRA court’s emphasis upon
the later absence of any reference to Bell’s initial impression that Small was “punching”
the victims rather than stabbing them, Bell’s trial testimony undoubtedly reflected his
assertion that Small had stabbed Blake and McCrary, and that assertion was
communicated to Small at trial. Thus, Small has known the substance of Bell’s version
of the events since their joint trial in 1983, and neither Bell’s later summary nor his
omission of minor details constitute a “new story” of the events. Likewise, the
Commonwealth persuasively establishes that Bell’s motivation for testifying at trial was
no secret; Bell expressly disclaimed any intent to assault or murder the victims despite
his participation in the robbery, and his counsel argued this to the jury as a basis to acquit
Bell of murder. Accordingly, none of the facts that the PCRA court highlighted can be
deemed “unknown” under the circumstances of this case.
Small’s assertion of newly discovered facts is not foreclosed pursuant to a
categorical presumption regarding matters of public record. However, because the
Commonwealth has established that the factual record does not support Small’s position
on the statutory requirements, Small nonetheless cannot establish the applicability of an
exception to the PCRA’s time bar, and the PCRA court accordingly lacked jurisdiction to
award him relief upon his substantive claims.
The order of the Superior Court is affirmed.
Justices Baer, Todd and Donohue join the opinion.
Chief Justice Saylor files a concurring and dissenting opinion.
[J-116-2019] - 28
Justice Dougherty files a concurring and dissenting opinion in which Justice Mundy
joins.
[J-116-2019] - 29