COMMONWEALTH OF PENNSYLVANIA v. ELWOOD SMALL
No. 8 EAP 2019
Supreme Court of Pennsylvania, Eastern District
October 1, 2020
Appeal from the Judgment of Superior Court entered on 10/29/2018 at No. 250 EDA 2018 reversing the Order entered on 12/14/2017 and remanding to the Court of Common Pleas, Philadelphia County, Criminal Division at No. CP-51-CR-0521601-1982. SUBMITTED: November 18, 2019
[J-116-2019]
JUSTICE WECHT
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“),
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
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
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
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
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
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
further challenging the trial court‘s
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
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
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
[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
As another basis for reversal, the Superior Court concluded that Small failed to comply with the sixty-day requirement of then-effective
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
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
II.
Small principally argues that this Court should expand upon Burton and simply eradicate the public record presumption entirely. Small highlights the Burton
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
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
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
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
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
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
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
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
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.
A.
As indicated by the central question presented, our analysis builds upon
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
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
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
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
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
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.
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
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.”
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
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
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
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
“we must construe the provisions of the PCRA liberally ‘to effect their objects and to promote justice.‘” Bennett, 930 A.2d at 1270 (quoting
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;
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
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
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.
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.
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
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.
Justice Dougherty files a concurring and dissenting opinion in which Justice Mundy joins.
Notes
(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
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.