[J-116-2019] [MO: Wecht, J.]
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
v. : reversing the Order entered on
: 12/14/2017 and remanding to the
: Court of Common Pleas,
ELWOOD SMALL, : Philadelphia County, Criminal
: Division at No. CP-51-CR-0521601-
Appellant : 1982.
:
: SUBMITTED: November 18, 2019
CONCURRING AND DISSENTING OPINION
JUSTICE DOUGHERTY DECIDED: October 1, 2020
I concur in the result reached by the majority. In my view, however, this result is
simply warranted by the glaring untimeliness of Small’s PCRA1 petition. More specifically,
I agree with the Superior Court’s conclusion that, “even if Bell's PCRA testimony
contained [newly discovered] facts, and [Small] could avail himself of [Commonwealth v.
Burton, 158 A.3d 618 (Pa. 2017)], he failed to comply with [S]ection 9545(b)(2) of the
PCRA.” Commonwealth v. Small, 250 EDA 2018, 2018 WL 5317602 at *4 (Pa. Super.
filed Oct. 29, 2018) (unpublished memorandum). “The PCRA is the sole means of
obtaining collateral relief on issues that are cognizable under the statute, see 42 Pa.C.S.
§9542, and we have held on numerous occasions that the PCRA time restrictions are
jurisdictional in nature; consequently, Pennsylvania courts may not entertain untimely
1 Post Conviction Relief Act, 42 Pa.C.S. §§9541-9546.
PCRA petitions.” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011), citing
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003); Commonwealth v. Brown,
943 A.2d 264, 267 (Pa. 2008). To establish jurisdiction, the PCRA requires a petitioner
seeking relief under the newly discovered facts exception to, among other things, file a
petition within sixty days of the date the claim could have been presented. See 42 Pa.C.S.
§9545(b)(2).2
The present record demonstrates that on June 13, 2013, Small learned of the
alleged “new facts” supporting his fourth PCRA petition — a 1998 Superior Court opinion
which discussed the testimony of Small’s co-defendant, Larry Bell, at Bell’s PCRA
hearing. See Appellant’s Brief at 2. Under the express terms of the PCRA, Small was
required to file his PRCA petition based on this “new fact” within sixty days of his learning
about it, i.e., on or before August 12, 2013. 42 Pa.C.S. §9545(b)(2). However, Small did
not file his PCRA petition until July 23, 2014, nearly one year after the statutory deadline.
Small was appointed PCRA counsel in September 2017, who obtained the transcript from
Bell’s PCRA hearing. Small then filed a counseled, amended PCRA petition on October
30, 2017, based on the alleged new facts deriving from Bell’s testimony.
In claiming he satisfied Section 9545(b)(2)’s sixty-day filing deadline, Small asserts
the time for filing ran from when he obtained the transcript of the proceeding to confirm
and support his claim, as opposed to when he first learned of the existence of that
potential evidence. Small thus alleges that the clock began to run when he filed his
amended PCRA petition, rather than his initial petition, and that the former was timely
2As acknowledged by the majority, the PCRA was amended in 2018 in order to, inter alia,
extend the deadline for filing a PCRA petition pursuant to the newly discovered facts
exception from sixty days to one year. See Majority Op. at 7, n.2, citing 42 Pa.C.S.
§9545(b)(2); Act of October 24, 2018, P.L. 894, No. 146, §2, (effective December 24,
2018). This amendment, however, does not apply to Small’s 2014 petition or his 2017
amendment.
[J-116-2019] [MO: Wecht, J.] - 2
filed within sixty days of receiving that transcript. See Appellant’s Brief at 21. The PCRA
court agreed, opining Small was unaware of the content of Bell’s testimony until he
received the transcript. See Tr. Ct. Op. at 25. In reversing the PCRA court, the Superior
Court determined Small’s petition was untimely as it was not filed within sixty days of
Small’s actual discovery in June 2013 of the 1998 opinion discussing Bell’s testimony.
See Small, 2018 WL 5317602 at *4.
The divergent views of the lower tribunals demonstrate confusion regarding when
Section 9545(b)(2) begins to run under the newly discovered fact exception, i.e., is the
sixty-day clock triggered when a petitioner first learns of the new fact or when he finally
obtains additional evidence to confirm its existence? Fortunately, our precedents
squarely resolve any confusion in this regard, and they do so in favor of the Superior
Court’s position in this matter.
We have long held that “a petition invoking any of the timeliness exceptions must
be filed within 60 days of the date the claim first could have been presented.”
Commonwealth v. Marshall, 947 A.2d 714, 719-20 (Pa. 2008), citing 42 Pa.C.S. §9545(b)
(emphasis added). More recently, we have explained that Section 9545(b)(2)'s sixty-day
filing requirement is triggered on the date a petitioner receives “material alerting him of
[a] claim[,]” not on the date he merely discovers “additional proof supporting the merits of
[that] claim[.]” Commonwealth v. Natividad, 200 A.3d 11, 29 (Pa. 2019) (emphasis
added); see also Marshall, 947 A.2d at 720 (the focus of the newly discovered fact
exception is on “newly discovered facts, not on a newly discovered or newly willing source
for previously known facts.”) (emphasis omitted).
In applying the above standards to the present case, it is evident Small failed to
satisfy the requirements of 42 Pa.C.S. §9545(b)(2), and therefore the PCRA court lacked
jurisdiction over the petition. The transcript of Bell’s PCRA hearing did not contain a fact
[J-116-2019] [MO: Wecht, J.] - 3
unknown to Small, but simply provided additional confirmation of the fact Small allegedly
discovered on June 13, 2013, when he learned of the Superior Court’s 1998 opinion.
Moreover, Small first took action after his June 13, 2013 discovery, which belies his claim
he was unaware of the “new fact” of Bell’s testimony until after he received the transcript
of Bell’s PCRA hearing. The record is clear that, on June 28, 2013, just over two weeks
after finding the Superior Court opinion, Small filed a motion in federal court for relief
pursuant to Federal Rule of Civil Procedure 60(b) based on that newly discovered
evidence. See Appellant’s Brief at 16-17, citing Small v. Gills, No. 99-cv-03063, Doc. No.
24 (E.D.Pa. June 28, 2013). It is plainly apparent that Small discovered the alleged “new
fact” as of June 13, 2013, and was thus required to file his PCRA petition on or before
August 12, 2013 to comply with the jurisdictional PCRA time requirements. The additional
support of the transcript did not act to restart the time within which Small could bring his
PCRA claim. Accordingly, the PCRA court lacked jurisdiction to award relief due to the
untimeliness of Small’s petition, and the decision below should be affirmed on this basis
alone.3
I respectfully dissent, however, from the majority’s overly-expansive endeavor to
“eradicate the public record presumption entirely.” Majority Op. at 11. For one thing, the
question upon which we granted review as to this issue is more limited than the majority
suggests. Specifically, we granted review to consider, inter alia, whether “Bell’s PCRA
3 Curiously, although the majority acknowledges the Superior Court deemed Small’s
failure to comply with 42 Pa.C.S. §9545(b)(2) to be “another basis for reversal,” Majority
Op. at 9, the majority does not discuss this point further in its analysis. Instead, it agrees
solely with a wholly separate basis for upholding the lower court — i.e., that court’s
conclusion “Bell’s 1993 PCRA testimony was materially similar to his trial presentation,
and thus did not reveal any previously unknown facts.” Majority Op. at 27. While I agree
with the majority and the Superior Court that the record does not support Small’s claim
that the alleged new facts were unknown to him, I question the majority’s decision to
resolve the case on this basis rather than upon the straightforward ground that Small’s
petition was plainly untimely pursuant to Section 9545(b)(2).
[J-116-2019] [MO: Wecht, J.] - 4
testimony [was] ‘unknown’ to Small under [Burton.]” Commonwealth v. Small, 207 A.3d
289 (Pa. 2019) (per curiam). While I take no issue with the majority’s discussion of Burton
or even its conclusion that the “unknown” prong of 42 Pa.C.S. §9545(b)(1)(ii) “does not
call for any assessment of whether the asserted [newly discovered] facts appear in the
public record[,]” Majority Op. at 22, I cannot support the majority’s unwarranted analysis
of the statute’s wholly separate “due diligence” prong.
“To qualify for an exception to the PCRA's time limitations under subsection
9545(b)(1)(ii), a petitioner need only establish that the facts upon which the claim is based
were [(1)] unknown to him and [(2)] could not have been ascertained by the exercise of
due diligence.” Burton, 158 A.3d at 629. In other words, the statute imposes two
independent requirements that a PCRA petitioner must overcome. In Burton, the Court
focused exclusively upon the first requirement, i.e., the “unknown” prong of the statute.
See, e.g., id. at 632 (“In requiring that the facts be unknown to the petitioner, the statute
itself contains no exception, express or constructive, regarding information that is not of
public record.”) (emphasis in original). Likewise, after thoroughly tracing the origins of the
public records presumption, the Burton majority revealed the presumption was born in
Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000). There, in a single footnote and with
little accompanying analysis, the Court announced the presumption for the first time, and
it did so based on the same assumption made in Burton: that it derives from the
“unknown” prong of Section 9545(b)(1)(ii), rather than its alternative “due diligence
prong.” See Lark, 746 A.2d at 588, n.4 (“The statistics which comprise the study were of
public record and cannot be said to have been “unknown” to Appellant. As such, this
information does not fall within the purview of 42 Pa.C.S. §9545(b)(1)(ii).”) (emphasis
added).
[J-116-2019] [MO: Wecht, J.] - 5
Notwithstanding the Burton majority’s rejection of the public record presumption
for pro se incarcerated prisoners under the “unknown” prong of the statute, there are
compelling reasons to believe the presumption is actually founded under the “due
diligence” prong. Indeed, as Justice Baer explained in his dissenting opinion in Burton,
which I joined, the presumption “appears to be based upon the legal fiction that if a fact
is available through some public resource, it is then ascertainable through the exercise of
due diligence.” Id. at 640 n.4. Chief Justice Saylor adopts a similar view in this matter,
and forwards a persuasive argument supporting this understanding. See Concurring and
Dissenting Opinion (Saylor, C.J.) at 1-2 (“Clearly, the Legislature’s prescription for
diligence demonstrates its intention to incorporate a form of constructive notice into the
statute, and I fail to see how an interpretation recognizing that, as a general rule, matters
of public record can be discovered through a diligent inquiry distorts this legislative design
or frustrates the legislative purpose.”).
For my part, I am largely aligned with the view that the presumption emanates, if
anywhere, from the due diligence prong of Section 9545(b)(1)(ii). It seems apparent to
me that, if something is widely known or available in the public sphere, less diligence is
required to find it, particularly where a petitioner is represented by counsel. Accord
Commonwealth’s Brief at 36 (“Due diligence certainly contemplates accessing relevant
public records where the prisoner is able to do so through counsel. Indeed, that is implicit
in the statutory obligation to exercise ‘reasonable effort.’”), citing Commonwealth v.
Edmiston, 65 A.3d 339, 348 (Pa. 2013). I also tend to agree with the Commonwealth that
our recent decision in Commonwealth v. Staton, 184 A.3d 949 (Pa. 2018), strongly
supports the notion that due diligence should be the focus in those matters that fall outside
of Burton’s limited rule. In Staton, in an essentially unanimous opinion4 authored by
4 Justice Todd, the author of Burton, concurred only in the result in Staton.
[J-116-2019] [MO: Wecht, J.] - 6
Justice Mundy, we concluded that “although Staton initially filed the instant petition pro
se, . . . unlike Burton, he has been represented by various attorneys at various points in
the last decade.” 184 A.3d at 957. Moreover, of particular relevance to the instant matter,
we explained:
Burton only pertains to the part of Section 9545(b)(1)(ii) relating to whether
the facts were “unknown.” This Court stressed that the due diligence
requirement is separate and distinct from the discrete issue addressed in
Burton. See Burton, 158 A.3d at 638 (stating, “[a]fter 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.”) (emphasis
added). Based on these considerations, we conclude Staton has not met
his burden to show he could not have learned of these facts earlier with the
exercise of due diligence.
Id. To me, Staton highlights the reality that we have for too long placed undue emphasis
on the “unknown” prong of the statute, when we should have instead trained our attention
on the “due diligence” prong.
Rather than tackle these colorable (if not correct) arguments head on, the majority
sweeps them into a single footnote in a section of its opinion that precedes its actual legal
analysis. See Majority Op. at 16 n.9. Therein, after contorting itself while attempting to
distinguish Staton, the majority proceeds to summarily reject the entirety of the “due
diligence” argument set forth above in one brief sentence: “To resurrect the public record
presumption for pro se prisoners 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.” Majority Op. at 16 n.9. This conclusion is troubling, for at least
three reasons.
First, as noted, Small did not seek allowance of appeal, and thus we did not grant
allowance of appeal, to consider whether the public records presumption is more properly
grounded in the “due diligence” prong of Section 9545(b)(1)(ii). On the contrary, the
[J-116-2019] [MO: Wecht, J.] - 7
limited issue before us here is whether “Bell’s PCRA testimony [was] ‘unknown’ to Small
under [Burton]?” Small, 207 A.3d at 289. Consequently, in my view, the majority’s
decision to declare that the public records presumption is unsustainable under the “due
diligence” prong of the statute, in addition to being unsustainable under the “unknown”
prong, improperly exceeds the bounds of the narrow question before us.
Second, I strongly disagree with the assertion that the Commonwealth’s argument
concerning the “due diligence” prong “elevate[s] form over substance[.]” Majority Op. at
16 n.9. In my view, the Commonwealth’s argument merely reflects the reality that the
statute contains two prongs, not one, and “that the due diligence requirement is separate
and distinct from the discrete issue addressed in Burton.” Staton, 184 A.3d at 957. As
such, I do not believe it elevates form over substance to contend, as the Commonwealth
does, that is entirely possible that an analysis of the “due diligence” prong might compel
a different conclusion than we reached in Burton, which only considered the separate and
discrete “unknown” prong. See, e.g., 1 Pa.C.S. §1921(a) (“Every statute shall be
construed, if possible, to give effect to all its provisions.”).
Third, and finally, I cannot support the implication that we should be unconcerned
about whether a separate statutory component yields a separate result simply because it
“would defeat the entire purpose of our decision in Burton.” Majority Op. at 16 n.9. Our
only “purpose” in Burton was to interpret Section 9545(b)(1)(ii) — and, more precisely,
the phrase “unknown to the petitioner” — so as to “ascertain and effectuate the intention
of the General Assembly.” 1 Pa.C.S. §1921(a). Respectfully, whether our interpretation
of the “due diligence” prong leads to a contrary result than we reached in Burton should
have no bearing whatsoever on the purely legal question regarding the legislature’s intent,
[J-116-2019] [MO: Wecht, J.] - 8
and the implicit suggestion that it is permissible to ignore statutory intent so as to protect
“the purpose of our decision in Burton[,]” is worrisome.5
In sum, I concur in the result reached by the majority, but I dissent from its decision
to address and summarily reject a separate issue of statutory construction not fairly
presented in this appeal.6
5 I am likewise troubled by the majority’s cursory treatment of the principle of stare decisis
and the canon of statutory construction codified at 1 Pa.C.S. §1922(4) (“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”). See Majority Op. at 25-26. Regarding the former, as this
Court very recently explained, “changing course demands a special justification — over
and above the belief that the precedent was wrongly decided — in matters involving
statutory, as opposed to constitutional, construction.” Commonwealth v. Reid, 752 CAP,
2020 WL 4803596 at *30 (Pa. Aug. 18, 2020), citing, e.g., Commonwealth v. Doughty,
126 A.3d 951, 955 (Pa. 2015) (“In cases resolved upon statutory interpretation, stare
decisis does implicate greater sanctity because the legislature can prospectively amend
the statute if it disagrees with a court’s interpretation.”); Shambach v. Bickhart, 845 A.2d
793, 807 (Pa. 2004) (Saylor, J., concurring) (“[S]tare decisis has ‘special force’ in matters
of statutory ... construction [ ] because ... the legislat[ure] is free to correct any errant
interpretation of its intentions[.]”); In re Burtt’s Estate, 44 A.2d 670, 677 (Pa. 1945) (“A
statutory construction, once made and followed, should never be altered upon the
changed views of new personnel of the court.”). And with respect to the latter, I find it a
dangerous matter to so casually disregard a statutorily-crafted presumption solely on the
basis that it would be unreasonable to “plac[e] the burden upon the General Assembly to
detect our error and to marshal the resources to correct it.” Majority Op. at 25. The
legislature apparently does not share the majority’s concern for its own competency and
abilities in this regard, or else it would not have fashioned the presumption in the first
place. More fundamentally, the majority’s explanation flies in the face of our prior
precedents interpreting the presumption. See, e.g., Fonner v. Shandon, Inc., 724 A.2d
903, 906 (Pa. 1999) (“The failure of the General Assembly to change the law which has
been interpreted by the courts creates a presumption that the interpretation was in
accordance with the legislative intent; otherwise the General Assembly would have
changed the law in a subsequent amendment.”) (citation omitted). For these reasons, I
cannot endorse the majority’s blanket rejection of this statutory presumption, the only
apparent purpose of which is to allow the majority to reach its desired result in this matter.
6 Although I dissent from the majority’s decision to abolish the public records presumption,
I also observe its holding is not as drastic as it may appear at first glance. Notably, a
careful reading of the opinion reveals that the majority only eliminates the “categorical
rule of exclusion” created by the public records presumption, Majority Op. at 23, while
leaving intact the possibility that where certain matters are so obviously reported in the
[J-116-2019] [MO: Wecht, J.] - 9
Justice Mundy joins this opinion.
public domain, a petitioner will be unlikely to surmount the “due diligence” prong of the
statute. See id. at 23-24 (explaining that due diligence is “a flexible concept that varies
within the context of a given case” and likely will not be satisfied where, for example, the
public record was “widely reported in a newspaper or available online”).
[J-116-2019] [MO: Wecht, J.] - 10
Commonwealth v. Small, E., Aplt.
Combined Opinion