PCRA time-bar “newly-discovered facts” exception

Com. v. Small, 2018 WL 5317602 (Pa. Super. 2018)(unreported), allocatur granted Apr. 23, 2019, appeal docket 8 EAP 2019

The Supreme Court has granted allocatur in this case to revisit the “newly-discovered facts” exception as alleged by an incarcerated prisoner to the one-year Post Conviction Relief Act (PCRA) petition jurisdictional time-bar.

The PCRA provides that petitions must be filed within one year of the date on which the petitioner’s judgment becomes final, unless one of three statutory exceptions applies:

(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:

(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;

(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or

(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.

42 Pa.C.S § 9545 (b)(1).

Under the PCRA, a judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review. 42 Pa.C.S. § 9545(b)(3). Commonwealth v. Garcia, 23 A.3d 1059, 1061-62 (Pa. Super. 2011).  When beyond the time limit and relying on an exception, the petition must be filed “within 60 days of the date the claim could have been presented.” 42 Pa.C.S  § 9545(b)(2).

Appellant Small and his co-conspirator Bell were convicted of second degree murder in 1983 when they stabbed and killed their robbery victims.  They were sentenced to life imprisonment.  Small’s judgment of sentence became final on February 24, 1986, so he had one year from that date to file a PCRA petition.

Small filed multiple PCRA petitions over the years which were denied.  He filed the present (fourth) PCRA petition on July 23, 2014, invoking the newly discovered facts exception based on his discovery of statements made by his co-conspirator Bell at Bell’s March 5, 1993 PCRA hearing in which Bell provided “an entirely new account” of the crime, and “a new motive for his testimony—namely, the strategic desire to evade a homicide conviction by conceding a robbery conviction[.]”  Slip Op. at 6.  The PCRA court granted Small a new trial, but the Superior Court reversed.

The Superior Court reasoned that Bell’s 1993 PCRA testimony was not “unknown” because it was a matter of public record and had been recited in published court decisions. In so ruling, the Superior Court distinguished the holding in Commonwealth v. Burton, wherein the Supreme Court made clear that pro se prisoners cannot be deemed to “know” the content of public records:

[W]e hold that the 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.

Commonwealth v. Burton, 158 A.3d 618, 638 (Pa. 2017) (emphasis in original).

Specifically, the Superior Court reasoned that Small had been represented by court-appointed counsel in previous PCRA petitions subsequent to Bell’s 1993 PCRA testimony and so should have “known” of Bell’s testimony:

Based on the foregoing, for over four years, from September 30, 2008 until January 10, 2013, Appellee was not a pro se prisoner, and Bell’s testimony could not be considered “unknown.” Hence, we agree with the Commonwealth and conclude that the record does not support the PCRA court’s finding that Burton applied to Appellee to render the public records presumption inapplicable to him.

Slip Op. at 9.

The Superior Court additionally reasoned that Bell’s PCRA testimony was  not “new” because it largely tracked his trial testimony, that even if “unknown,” Small failed to act on it within 60 days of the time he claims to have learned of it,  and that the PCRA court erred when it found that Small exercised due diligence by attempting to find  the transcript of Bell’s PCRA hearing before filing his PCRA petition.

Apparently concerned about the obstacles an incarcerated individual may face in obtaining access to information, the Supreme Court has granted allocatur to review the Superior Court’s reversal of the PCRA’s court grant of a new trial. The issues, as stated by petitioner, are:

(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[, 158 A.3d 618 (Pa. 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 codefendant Bell’s PCRA testimony, such that the PCRA court’s grant of a new trial should be reinstated?

Allocatur grants present an excellent opportunity for your group or association to advance your legal and policy goals by filing an amicus brief. Participating as an amicus has proven to be an effective method of advising and influencing courts and often can involve far fewer resources than traditional lobbying.

If you are interested or would like more information, contact Kevin McKeon or Dennis Whitaker.