The opinion
[J-53-2025]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 817 CAP
:
Appellee : Appeal from the Order entered on
: August 1, 2024, in the Court of
: Common Pleas of Dauphin County,
v. : Criminal Division, at No. CP-22-CR-
: 0001773-2000.
:
HERBERT BLAKENEY, : SUBMITTED: May 8, 2025
:
Appellant :
OPINION
JUSTICE McCAFFERY DECIDED: November 5, 2025
Herbert Blakeney appeals from the dismissal, as untimely, of his third Post
Conviction Relief Act (PCRA)1 petition. This Court previously detailed the evidence
presented at trial in Blakeney’s direct appeal. See Commonwealth v. Blakeney, 946 A.2d
645 (Pa. 2008). Due to the limited issue in Blakeney’s current appeal, a brief summary
of that evidence will suffice.
Blakeney was convicted of the first-degree murder of his estranged wife’s (though
not Blakeney’s) 14-month-old son, as well as the attempted murder and aggravated
assault of Duana Swanson, his estranged wife’s roommate. Key to the Commonwealth’s
case was the testimony of Harrisburg Police Officer William Vernouski. Officer Vernouski
testified that while responding to a report of a domestic disturbance, he encountered
1 42 Pa.C.S. §§ 9541-9546.
Swanson’s thirteen-year-old son fleeing from a butcher knife–wielding Blakeney. Upon
seeing Officer Vernouski, Blakeney stabbed Swanson in the chest and subsequently
choked her unconscious.
According to Officer Vernouski, Blakeney then dared the officer to shoot him while
he made threatening gestures. When Officer Vernouski declined to shoot, Blakeney
grabbed his estranged wife’s 14-month-old son and held him as a human shield. Officer
Vernouski, now joined by other officers, attempted to defuse the situation. Blakeney
refused to put the child down, however, and ultimately killed the child by sawing through
the child’s throat with the butcher knife. Officer Vernouski shot Blakeney three times.
Blakeney and Swanson survived; the child did not.
Relevant to the issue in this appeal, Blakeney chose to represent himself at trial.
Blakeney maintained his innocence while asserting Officer Vernouski had killed the child.
Blakeney claimed he was the victim of a police cover-up and conspiracy.
During voir dire, Blakeney questioned Juror #7 based on the juror’s written
questionnaire. On the form, the juror had initially responded “yes” to the question, “Have
you, or anyone in your family, or close friend, been charged with a crime?” However, the
checkmark next to “yes” had been scribbled out and the “no” response was selected
instead.
Twenty years and five PCRA petitions later, Blakeney’s post-conviction counsel
located an obituary for Juror #7’s mother that listed the names of her relatives. Counsel
researched these names and discovered that, prior to Blakeney’s trial, Juror #7’s nephew
was charged with the attempted murder of the nephew’s infant son. In fact, the nephew
had a preliminary hearing on the same day that Blakeney questioned Juror #7 during voir
dire.
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Counsel promptly filed the instant PCRA petition, asserting that until October 16,
2023, Blakeney was unaware that Juror #7 had failed to reveal that the juror’s nephew
had been charged with a crime similar to the charges against Blakeney. Based on this
assertion, Blakeney argued that while his petition was facially untimely, the allegations
set forth in the petition qualified for the previously unknown fact exception to the time bar,
42 Pa.C.S. § 9545(b)(ii).2 He contended Juror #7’s misrepresentation denied him his right
to a fair and impartial jury.
On May 29, 2024, the PCRA court issued an order, accompanied by a
memorandum opinion, apprising Blakeney of the court’s intent to dismiss the PCRA
petition without a hearing. After setting forth the appropriate standards governing
Blakeney’s claim that the petition qualified for an exception to the PCRA’s time bar, the
court summarily rejected Blakeney’s position:
Here, [Blakeney] asserts that jury bias existed at the time of [Blakeney’s]
trial based upon [Juror #7’s] having answered a juror questionnaire in the
affirmative, then crossing the answer out, to answer in the negative. The
question inquired as to whether the juror or anyone in his family, or a close
friend, ha[d] been charged with a crime. [Blakeney] asserts that the answer
was untruthful, citing a June 25, 2002[] news article which reported that a
person … alleged to be [Juror #7’s] nephew, was charged with attempted
homicide of an infant.
[Blakeney] fails to state why he could not have learned of the information
earlier, particularly when he bases his claim upon a June 25, 2002[] news
article. The information is not a new fact, but at best, a new discovery of a
previously known fact. [Blakeney] therefore fails to satisfy 42 Pa.C.S. §
9545(b)(ii)[, the previously unknown fact exception to the PCRA’s time bar.]
Opinion and Order, 5/29/2024, at 6.
2 The previously unknown fact exception creates jurisdiction to entertain a facially
untimely PCRA petition 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)(ii).
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Blakeney’s appeal from the PCRA court’s order comes directly to this Court
pursuant to 42 Pa.C.S. § 9546(d) (“A final order [addressing a PCRA petition] in a case
in which the death penalty has been imposed shall be directly appealable only to the
Supreme Court pursuant to its rules.”). He raises a single issue for our review:
Did the PCRA Court err when it ignored Mr. Blakeney’s uncontradicted
allegations regarding his knowledge and diligence and instead dismissed
his PCRA petition as untimely on the basis of the now-repudiated public
record presumption, see Commonwealth v. Small, 238 A.3d 1267, 1286
(Pa. 2020)?
Appellant’s Brief at 2.
Since no hearing was held, the PCRA court did not make any factual findings. The
order is based purely on legal reasoning. We thus review the dismissal of Blakeney’s
PCRA petition de novo to determine whether the PCRA court’s legal conclusions are free
from legal error. See Small, 238 A.3d at 1280.
For a PCRA petition to be facially timely, it must be filed within one year of the date
the petitioner’s judgment of sentence becomes final. See 42 Pa.C.S. § 9545(b)(1). Since
the PCRA’s time bar is jurisdictional in nature, “no court may entertain an untimely PCRA
petition.” Small, 238 A.3d at 1280.
Here, Blakeney concedes his PCRA petition is facially untimely, as it was filed over
a decade after his judgment of sentence became final. See Appellant’s Reply Brief at 2
(“The PCRA petition explicitly and clearly invokes the newly-discovered fact exception in
subsection (b)(1)(ii) … as a basis for jurisdiction.”). Nevertheless, Blakeney may still
avoid the time bar by establishing that one of three statutory exceptions apply. See 42
Pa.C.S. § 9545(b)(1)(i-iii) (providing for exceptions to the time bar based on assertions
that (i) government officials improperly interfered with the petitioner’s ability to present the
substantive claim; (ii) the facts underlying the substantive claim were previously unknown
to the petitioner, who could not have discovered them earlier through due diligence; and
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(iii) the petitioner’s claim is based on a newly recognized constitutional right that has been
held to apply retroactively).
Consistent with the allegations in his petition, Blakeney argues that the previously
unknown fact exception applies to his petition. This exception requires only that Blakeney
plead and prove that facts relevant to his claim were unknown to him and could not have
been discovered earlier through the exercise of due diligence. See Small, 238 A.3d at
1281. “The statute itself contains no exception, express or constructive, regarding
information that is of public record.” Id. (citation, internal quotation marks, and emphasis
omitted). Thus, “the newly discovered fact exception does not call for any assessment
of whether the asserted facts appear in the public record.” Id. at 1283 (emphasis added).
Instead, it “calls for a circumstance-dependent analysis of the petitioner’s knowledge, not
that of the public at large.” Id. As such, “[i]n 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.” Id. at 1284.
Here, the PCRA court’s summary conclusion is ambiguous. It may be read as
resting on one of two legal theories, both of which are problematic. First, it may represent
a conclusion that Blakeney is presumed to have known of Juror #7’s nephew’s criminal
charges because they were published in a newspaper prior to Blakeney’s trial. However,
this conclusion would constitute legal error.
Again, the PCRA court cannot presume that Blakeney knew of the pending
charges merely because they were published in a newspaper. See Small, 238 A.3d at
1283. The Commonwealth concedes that the PCRA court’s reasoning contradicts Small,
but contends that the PCRA court was entitled to apply the public records presumption
because no case has held that Small can be applied retroactively. In essence, the
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Commonwealth argues that the central holding of Small — the repudiation of the public
records presumption — cannot apply here because Blakeney’s trial occurred before Small
was issued. This argument, however, misapprehends both the nature of Small’s analysis
and also its explicit text. Small addressed the statutory requirements for establishing a
court’s jurisdiction to consider the merits of a PCRA petition. Accordingly, the procedural
step for applying Small is the filing of a PCRA petition, not the date of the underlying trial.
This is obvious from Small itself, as Small’s trial occurred in 1983, and yet this Court
concluded that Small was “relieved of the public record presumption[.]” Small, 238 A.3d
at 1286.
Moreover, even if we assume that Blakeney was aware of the charges, there is
nothing in the record at this point to support a finding that Blakeney was aware that Juror
#7 was related to the person identified in the newspaper article. As this is a necessary
fact underpinning Blakeney’s claim that Juror #7 answered the voir dire question(s)
untruthfully, we cannot conclude as a matter of law that Blakeney knew of the facts upon
which his claim for relief relied.
In a disjointed argument, the Commonwealth contends that Blakeney should be
imputed with the knowledge that the two men are related because they share the same
last name. See Commonwealth’s Brief at 16. Yet, barely a page later, the
Commonwealth asserts that we should affirm the dismissal of Blakeney’s petition
because “he failed to plead or prove a definitive familial relationship between the two
individuals[.]” Id. at 17. While Blakeney has pleaded a definitive familial relationship,
see PCRA Petition, 10/20/2023, at 12, he has not yet had an opportunity to prove it. The
fact that the men share the same last name is some evidence of the relationship, but this
is ultimately a factual question to be addressed after a hearing. Certainly, if the
Commonwealth is not willing to concede the relationship based on the shared last name,
[J-53-2025] - 6
it is inappropriate to conclude, as a matter of law, that Blakeney knew of the relationship
based on that same circumstance.
A second alternative theory interprets the PCRA court’s order as a conclusion that
Blakeney has not established due diligence in discovering the facts underpinning his
claim. Advancing this alternative interpretation, the Commonwealth contends that “the
juror’s questionnaire clearly put [Blakeney] on notice that he should further investigate
this juror as to this claim.” Commonwealth’s Brief at 14. Blakeney characterizes the
Commonwealth’s argument as contrary to our precedent, which “does not require perfect
vigilance and punctilious care, but merely a showing [that a] party has put forth reasonable
effort to obtain the information upon which a claim is based.” Appellant’s Brief at 12 (citing
Commonwealth v. Cox, 146 A.3d 221, 230 (Pa. 2016) (citation and internal quotation
marks omitted)).
Blakeney asserts Juror #7 orally affirmed that he intended to answer “no” on the
written questionnaire during voir dire. See Appellant’s Brief at 6. The transcript does not
clearly support this interpretation:
Q[:] Question No. 27. You scribbled out yes, no. Someone in your family
being charged with a crime.
A[:] Have I ever been charged with a crime?
Q[:] Yes.
A[:3] Okay. [The prosecutor] got you to understand regardless of, I do have
certain rights and I don’t have to, and you have to respect that. You can
follow the rules.
A[:] Yeah.
3 The transcript identifies this response as an answer from Juror #7. However, it is clear
from the context that this was actually a question Blakeney posed to the juror.
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N.T., 8/2/2002, at 249. Nevertheless, we decline to hold that Blakeney had an obligation
to ask further questions based solely on the scribbled out answer.4 It is not the equivalent
of a vague or ambiguous answer. Instead, it clearly indicates the intended answer was
“no.” Blakeney was entitled to accept Juror #7’s written response at face value when
preparing for an imminent capital trial. Further, Blakeney was not required to research
the extended family of Juror #7 to discover whether the juror answered the written
question honestly. Holding Blakeney, or any counsel, to a higher standard would be
expecting perfect vigilance, not reasonable effort. See Cox, 146 A.3d at 230.
Thus, under either interpretation of the PCRA court’s analysis, the PCRA court
erred.5 We accordingly vacate the PCRA court’s order and remand for further
proceedings consistent with this opinion.
Chief Justice Todd and Justices Donohue, Dougherty, Wecht and Brobson join the
opinion.
Justice Mundy concurs in the result.
4 Whether Juror #7 answered the written question honestly but mistakenly, as opposed
to being intentionally deceptive, is an issue relevant to the merits of Blakeney’s underlying
claim of a biased juror. See Commonwealth v. Aljoe, 216 A.2d 50, 54 (Pa. 1966).
5 We address only the explicit analysis of the PCRA court.
The Commonwealth raises
several other challenges to the sufficiency of Blakeney’s PCRA petition. See
Commonwealth’s Brief at 17-23. However, as the PCRA court did not address those
issues, they are not currently before us.
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