Commonwealth v. Small, E., Aplt.

• Court: Supreme Court of Pennsylvania
• Decided: October 1, 2020
• Docket: 8 EAP 2019
• Status: Published

Opinion

[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