Commonwealth, Aplt. v. Burton, S.

[J-110-2016]

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 9 WAP 2016

:

Appellant : Appeal from the Order of the Superior

: Court entered August 25, 2015 at No.

: 1459 WDA 2013, vacating the Order of

v. : the Court of Common Pleas of

: Allegheny County entered August 27,

: 2013 at Nos. CP-02-CR-0004017-1993

SHAWN LAMAR BURTON, : and CP-02-CR-0004276-1993 and

: remanding the case.

Appellee :

: SUBMITTED: September 9, 2016

OPINION

JUSTICE TODD DECIDED: MARCH 28, 2017

In this discretionary appeal by the Commonwealth, we consider whether the

presumption that information of public record cannot be considered “unknown” for

purposes of proving the newly-discovered facts exception to the time requirements of

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, applies to pro se

petitioners who are incarcerated. For the reasons discussed below, we hold that the

presumption does not apply to pro se prisoner petitioners, and so we affirm the Superior

Court’s order remanding the matter to the trial court for further proceedings.

I. Factual and procedural background

On March 9, 1993, at approximately 12:15 p.m., Officer Gary Fluman, a

correctional officer at the Allegheny County Jail, received a report from an inmate that

there was a problem on Range 17, in the East Block of the jail. After requesting back-

up, Officer Fluman approached Cell 17-S. A group of inmates was gathered outside the

cell and advised Officer Fluman that someone was under the bed and would not come

out. Initially, Officer Fluman could see only the mattress and bedding, but, when he

entered the cell and removed the mattress and bedding, he observed that inmate Seth

Floyd had a ligature consisting of a shoe lace and a piece of nylon cord tied around his

neck; the other end of the ligature was tied to a chain that holds the bed to the wall.

Officer Fluman could not detect a pulse, and another officer who had arrived on the

scene radioed for a doctor. A third officer cut the ligature, and the doctor unsuccessfully

attempted to revive Floyd. Following an autopsy, it was determined that Floyd died as a

result of asphyxiation due to ligature strangulation, and the manner of death was listed

as pending due to suspicious circumstances.

During their investigation into Floyd’s death, correctional officers interviewed

several inmates. One inmate reported that he was walking past Floyd’s cell on his way

to lunch and observed Appellee Shawn Burton and another individual, Melvin

Goodwine, engaged in conversation with Floyd inside his cell. When confronted with

this information, Goodwine admitted that he had been in Floyd’s cell for a short time.

Appellee, however, denied being in the vicinity of Floyd’s cell around the time of Floyd’s

death, and, in fact, denied ever being in Floyd’s cell. Appellee later admitted that he

was near Floyd’s cell at the time he died, but maintained that he had never been inside

Floyd’s cell.

Two other inmates reported that, a few minutes before Floyd was found dead,

they observed Appellee and Goodwine in Floyd’s cell, wrestling him onto his bunk and

pinning him while he struggled to free himself. One of these two witnesses also stated

that, shortly after he observed the physical altercation among Appellee, Goodwine, and

Floyd, he saw Appellee and Goodwine run down the stairs, away from the area of

[J-110-2016] - 2

Floyd’s cell. Another witness reported that, a few days before Floyd’s death, he

overheard a conversation between Appellee and Goodwine in which Appellee told

Goodwine that they needed to “fix that guy from California.” Affidavit for Criminal

Complaint against Shawn Burton, 3/19/93, at 2. The witness explained that it is

common knowledge in prison that the term “fix” means kill. Id. Further, it was

confirmed that Floyd originally was from California, having recently moved to the

Pittsburgh area. Based on the above evidence, Appellee and Goodwine were charged

with Floyd’s murder.

Appellee and Goodwine were tried jointly before the Honorable Donna Jo

McDaniel. On September 28, 1993, Appellee was convicted of first-degree murder1 and

conspiracy,2 and Goodwine was convicted of conspiracy. Appellee was sentenced to a

mandatory term of life imprisonment; Goodwine was sentenced to 5 to 10 years

imprisonment. Appellee appealed his judgment of sentence, which was affirmed by the

Superior Court. Commonwealth v. Burton, 688 A.2d 1225 (Pa. Super. filed Nov. 8,

1996) (unpublished memorandum). This Court denied his petition for allowance of

appeal on August 15, 1997. Commonwealth v. Burton, 700 A.2d 437 (Pa. 1997).

On August 4, 1998, Appellee filed his first pro se PCRA petition, asserting

various claims of ineffective assistance of counsel. After a series of procedural

irregularities not relevant herein, Appellee filed an amended PCRA petition on October

5, 2005. The PCRA court dismissed Appellee’s amended PCRA petition on December

12, 2005, and the Superior Court ultimately affirmed the PCRA court’s dismissal on

1

18 Pa.C.S. § 2502(a).

2

18 Pa.C.S. § 903.

[J-110-2016] - 3

February 21, 2007. Commonwealth v. Burton, 924 A.2d 688 (Pa. Super. filed Feb. 21,

2007) (unpublished memorandum),3 appeal denied, 936 A.2d 39 (Pa. 2007).

On May 30, 2013, Appellee received a letter from Charlotte Whitmore, a staff

attorney with the Pennsylvania Innocence Project. The letter, dated May 23, 2013,

included a copy of a pro se “Motion for Partial Expunction of Adult Criminal Record”

(hereinafter “Motion to Expunge”) filed by Goodwine on July 29, 2009. In the Motion to

Expunge, Goodwine asserted that he murdered Floyd “in self defense,” but was

“advised not to use this defense at trial.” Motion to Expunge, at 2 ¶ 4. Goodwine

further averred in the motion that “an innocent man went to jail for a crime that

[Goodwine] committed.” Id. ¶ 5. According to Attorney Whitmore, she received copies

of the Motion to Expunge and the trial court’s subsequent opinion denying the motion

from Twyla Bivins, who claimed to have received the documents from Goodwine’s ex-

girlfriend. In her letter to Appellee, Attorney Whitmore explained that the Innocence

Project had not yet determined whether it would become involved in Appellee’s case,

but advised him that, if he was not previously aware of the averments made by

Goodwine in his Motion to Expunge, Appellee had 60 days to file a PCRA petition based

on this “new evidence.” Letter to Shawn Burton from Charlotte Whitmore, 5/23/13, at 1.

On July 11, 2013, Appellee filed pro se a second PCRA petition asserting, inter

alia, that Goodwine’s Motion to Expunge and the statements contained therein

constituted newly-discovered exculpatory evidence that was unavailable at the time of

his trial and which would have changed the outcome of his trial if the evidence had been

introduced, citing, inter alia, this Court’s decision in Commonwealth v. Bennett, 930

A.2d 1264 (Pa. 2007), and referencing the exception to the PCRA’s time limitations set

3

This author, as a judge on the Superior Court at the time, was a member of the three-

judge panel.

[J-110-2016] - 4

forth at 42 Pa.C.S. § 9545(b)(1)(ii). On August 6, 2013, the PCRA court issued notice

of its intention to dismiss Appellee’s petition without a hearing pursuant to Pa.R.Crim.P.

907 on the grounds that it was untimely; that Appellee failed to aver any exceptions to

the PCRA’s time requirements; that the petition was patently frivolous and without

support on the record; that there were no genuine issues concerning any material fact;

and that no purpose would be served by an evidentiary hearing. 4 On August 21, 2013,

Appellee filed a response to the PCRA court’s Rule 907 notice,5 and six days later, the

PCRA court dismissed Appellee’s PCRA petition as “patently frivolous and without

support on the record.” PCRA Court Order, 8/27/2013.

Appellee filed a timely appeal to the Superior Court, and complied with the PCRA

court’s instruction to file a statement of matters complained of on appeal pursuant to

Pa.R.A.P. 1925(b). In his 1925(b) statement, Appellee claimed, inter alia, that he

qualified for an exception to the PCRA’s time limitations pursuant to 42 Pa.C.S. §

9545(b)(1)(ii), which provides that, 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,” a petition may be filed within 60 days of the date the claim could have

been presented. 42 Pa.C.S. § 9545(b)(1)(ii). In its Rule 1925(a) opinion in support of

4

Pursuant to Rule 907, a PCRA court has discretion to dismiss a PCRA petition without

a hearing if the court is satisfied that there are no genuine issues concerning any

material fact; that the defendant is not entitled to post-conviction collateral relief; and

that no legitimate purpose would be served by further proceedings. Pa.R.Crim.P.

907(1); Commonwealth v. Roney, 79 A.3d 595, 604 (Pa. 2014).

5

Although the Superior Court below suggested that Appellee’s response to the PCRA

court’s Rule 907 notice was untimely, a review of the original record indicates that

Appellee’s response, consisting of an amended PCRA petition and a request for an

evidentiary hearing and the appointment of counsel, was placed in the prison mailbox

by Appellee on August 21, 2013, and, moreover, was received by the PCRA court on

August 23, 2013. Thus, Appellee’s response appears to have been timely. See

Pa.R.Crim.P. 907(1) (a petitioner may file a response to the proposed dismissal within

20 days of the date of the notice).

[J-110-2016] - 5

its dismissal of Appellee’s petition, the PCRA court held that, “because [Appellee’s]

Petition was untimely filed and . . . he failed to properly aver any exceptions to the time-

limitation provisions” of the PCRA, the court did not have jurisdiction to address the

petition. Commonwealth v. Burton, 2013 WL 10257593, at *1 (Pa. Common Pleas

Allegheny Cty. filed Nov. 4, 2013).

In July 2014, in an unpublished memorandum opinion, a divided panel of the

Superior Court vacated the PCRA court’s order and remanded for an evidentiary

hearing. The Commonwealth filed a timely application for reargument en banc, which

the Superior Court granted, and the Superior Court withdrew its panel decision.

On August 25, 2015, in a published opinion authored by President Judge

Emeritus John Bender, the en banc Superior Court vacated the PCRA court’s order

dismissing Appellee’s second PCRA petition, and remanded for an evidentiary hearing.

Commonwealth v. Burton, 121 A.3d 1063 (Pa. Super. 2015) (en banc). The majority6

first observed that, because Appellee’s judgment of sentence became final on

November 13, 1997, he had until November 13, 1998 to file a PCRA petition, and, thus,

the instant petition was facially untimely.7 However, as Appellee asserted that he

qualified for an exception to the PCRA’s time limitations under subsection 9545(b)(1)(ii),

in that the statements contained in Goodwine’s Motion to Expunge were unknown to

him and could not have been discovered earlier with the exercise of due diligence, the

6

Justices Christine Donohue and Sallie Updyke Mundy, who at the time were judges on

the Superior Court, joined the majority opinion.

7

Pursuant to 42 Pa.C.S. § 9545, as amended in 1995, any PCRA petition, including a

second or subsequent one, must be filed within one year of the date the judgment of

sentence becomes final. 42 Pa.C.S. § 9545(b)(1). Appellee’s judgment of sentence

became final on November 13, 1997, 90 days after this Court denied his petition for

allowance of appeal. Id. § 9545(b)(3) (a judgment of sentence becomes final at the

conclusion of direct review or at the expiration of the time period for seeking the review).

[J-110-2016] - 6

majority proceeded to consider “the appropriate level of diligence required of an

untimely PCRA petitioner.” Burton, 121 A.3d at 1068.

Relying on, inter alia, this Court’s decisions in Commonwealth v. Selenski, 994

A.2d 1083, 1089 (Pa. 2010) (in the context of a Rule 600 motion, holding due diligence

“does not require perfect vigilance and punctilious care, but merely a showing the

Commonwealth has put forth a reasonable effort”), and its own decisions in

Commonwealth v. Davis, 86 A.3d 883 (Pa. Super. 2014),8 and Commonwealth v.

Medina, 92 A.3d 1210 (Pa. Super. 2014) (en banc),9 the majority concluded that “due

8

In Davis, the petitioner, who was convicted of first-degree murder and robbery, filed an

untimely PCRA petition alleging he had received “new evidence” in the form of an

affidavit from one of the Commonwealth’s witnesses admitting that he lied when he

testified at trial that the petitioner had confessed to the murder. Petitioner subsequently

received a second affidavit from the same witness claiming that the Commonwealth

coerced his false testimony by promises of leniency and a threat to send him to prison if

he did not cooperate. After receiving the affidavits, the petitioner obtained and reviewed

the notes of testimony from the witness’ sentencing hearing, at which he testified that he

had been forced to testify against the petitioner. The PCRA court rejected the

petitioner’s claim that the affidavits and notes of testimony qualified him for an exception

under subsection 9545(b)(1)(i) or (ii), noting that, because evidence of the witness’ deal

with the Commonwealth was offered in open court at the witness’ sentencing hearing, it

was a matter of public record which the petitioner could have discovered earlier with the

exercise of due diligence. The Superior Court reversed, concluding, inter alia, that,

under “the specific facts of [the] case,” petitioner did not fail to exercise due diligence in

discovering the transcripts. Id. at 890. The court reasoned that, because there was no

testimony at the petitioner’s trial suggesting the Commonwealth had made promises to

the witness, holding that the petitioner should have sought out the transcripts of the

witness’ sentencing hearing in an unrelated case “would suggest that [the petitioner]

should have assumed the Commonwealth’s witnesses were committing perjury, and the

Commonwealth was improperly permitting them to do so. Due diligence does not

require a defendant to make such unreasonable assumptions.” Id. at 890-91.

9

In Medina, the petitioner was convicted of murder based on the trial testimony of two

young brothers. Fourteen years later, one of the brothers recanted and claimed that a

detective had coerced his testimony. The petitioner sought collateral relief, claiming the

recantation constituted newly-discovered facts sufficient to qualify him for an exception

to the PCRA’s time restrictions. Following a hearing, the PCRA court found the

testimony of the petitioner and the recanting witness credible, and granted a new trial.

The Commonwealth appealed, arguing that, because the petitioner failed to contact the

witness for more than 14 years, he failed to establish that, with the exercise of due

(continued…)

[J-110-2016] - 7

diligence requires neither perfect vigilance nor punctilious care, but rather it requires

reasonable efforts by a petitioner, based on the particular circumstances, to uncover

facts that may support a claim for collateral relief.” Burton, 121 A.3d at 1071.10

The majority recognized that this Court has held that “publicly available

information cannot predicate a timeliness exception beyond the 60-day grace period

defined in Section 9545(b)(2).” Id. (citing Commonwealth v. Taylor, 67 A.3d 1245, 1248

(Pa. 2013) (information revealing a potential conflict on the part of defense counsel was

on file with the clerk of courts before defendant was convicted; as such, the information

was publicly available and did not support the “newly-discovered evidence” exception to

the PCRA); Commonwealth v. Chester, 895 A.2d 520, 523 (Pa. 2006) (trial counsel’s

arrest for DUI within days of his court appearance on behalf of petitioner was a matter of

public record and thus was not “unknown” to petitioner for purposes of the “newly

(…continued)

diligence, he could not have learned earlier that the witness’ testimony had been

coerced. The Superior Court disagreed:

[The petitioner] had no way of knowing what the detective said to the

Commonwealth’s key child witnesses or that his threats were the reason

the boys lied at trial. In addition, reasonable investigation could not have

revealed it since even at the PCRA evidentiary hearing the

Commonwealth’s prosecutors claimed they had not known of the

detective’s conduct. If the Commonwealth’s prosecutors did not know,

[the petitioner] and his counsel had no reason to look for this evidence and

probably could not have found it if they had.

92 A.3d at 1216.

On December 11, 2014, this Court granted the Commonwealth’s petition for

allowance of appeal in Medina. Commonwealth v. Medina, 105 A.2d 658 (Pa. 2014)

(order); however, we subsequently dismissed the appeal as having been improvidently

granted. Commonwealth v. Medina, 140 A.3d 675 (Pa. 2016) (order).

10

The Superior Court suggested that, although this Court “has yet to adopt expressly

the Selenski definition of due diligence,” which the Superior Court applied in Davis, in

the context of the PCRA, this Court “has done so implicitly” in Commonwealth v.

Edmiston, 65 A.3d 339, 348 (Pa. 2013) (quoting Selenski, but ultimately rejecting a

second PCRA as untimely because the photographic evidence at issue was available at

the time of trial).

[J-110-2016] - 8

discovered evidence” exception to the PCRA); Commonwealth v. Lark, 746 A.2d 585,

588 n.4 (Pa. 2000) (suggesting that statistics contained in a study of the Philadelphia

criminal justice system were of public record and could not be said to have been

unknown)).

However, the majority opined that “the rule is not absolute. It must adhere to the

statutory language of Section 9545. The requirement is that Section 9545(b)(1)(ii) facts

are ‘unknown to the petitioner.’” Burton, 121 A.3d at 1071 (emphasis original). The

majority suggested that, while the presumption regarding public records is “reasonable

when . . . petitioner retains access to public information, such as when a petitioner is

represented by counsel,” a pro se petitioner, who likely is incarcerated,11 does not have

access to information otherwise readily available to the public, and, indeed, is “no longer

a member of the public.” Id. at 1072 (citing 42 Pa.C.S. § 9543(a)(1)). Quoting at length

from our decision in Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007), wherein we

held that the public record presumption does not apply to PCRA prisoners who are

abandoned by their counsel, the majority reasoned: “[i]f our Supreme Court [in Bennett]

has recognized expressly that, without the benefit of counsel, we cannot presume a

petitioner has access to information contained in his own public, criminal docket, then

surely it cannot be that we presume a pro se petitioner’s access to public information

contained elsewhere.” Burton, 121 A.3d at 1073. Accordingly, the majority held that

“the presumption of access to information available in the public domain does not apply

where the untimely PCRA petitioner is pro se.” Id.

11

To be eligible for relief under the PCRA, a petitioner must plead and prove, inter alia,

that he has been convicted of a crime and, at the time relief is granted, is: (1) currently

serving a sentence of imprisonment, probation or parole for the crime; (2) awaiting

execution of a sentence of death for the crime; or (3) serving a sentence which must

expire before the person may commence serving the disputed sentence. 42 Pa.C.S. §

9543(a)(1)(i)-(iii).

[J-110-2016] - 9

The majority additionally concluded that there was no factual record developed

by the PCRA court to support its rejection of Appellee’s assertion that he first learned of

the statements Goodwine made in his Motion to Expunge when he received the letter

from the Innocence Project in May 2013. Suggesting that Appellee’s diligence “may be

sufficient,” the majority held that Appellee raised genuine issues of material fact which

warranted an evidentiary hearing, and remanded the matter. Id. at 1073-74.12

Judge Judith Olson, joined by President Judge Susan Peikes Gantman and

Judge Jacqueline Shogan, dissented. Suggesting that this Court’s case law holding

that public records cannot be considered “unknown” for purposes of the newly-

discovered facts exception “leaves no room for concepts of relaxed vigilance or

diminished diligence,” Judge Olson stated:

because a PCRA petitioner carries the burden to plead and

prove that a timeliness exception applies, a fair reading of

the case law clearly requires a petitioner to comb, regularly

and routinely, through public sources in order to locate

potentially exculpatory materials and come forward with a

detailed explanation as to why an untimely request for

collateral relief should be addressed.

Id. at 1076-77 (Olson, J., dissenting) (citing Commonwealth v. Williams, 35 A.3d 44 (Pa.

Super. 2011)). In Judge Olson’s view, by failing to allege any specific steps he took to

uncover Goodwine’s Motion to Expunge, Appellee failed to demonstrate why he could

not have discovered the information earlier with the exercise of due diligence, and, thus,

12

In order “[t]o obtain reversal of a PCRA court's decision to dismiss a petition without a

hearing, an appellant must show that he raised a genuine issue of fact which, if resolved

in his favor, would have entitled him to relief, or that the court otherwise abused its

discretion in denying a hearing.” Roney, 79 A.3d at 604.

[J-110-2016] - 10

failed to raise a genuine issue of material fact that entitled him to a hearing. Burton,

121 A.3d at 1078.

Judge Olson further offered that, because the majority exempted Appellee from

the public records doctrine “based solely upon his pro se status, not what he did to

uncover any allegedly unknown facts,” and, because “[n]early every petitioner” who

invokes the exception will be incarcerated and/or pro se, “going forward, there is every

reason to believe that all pro se petitioners who invoke the after-discovered facts

exception based on public information will be entitled to a hearing on their claims.” Id.

at 1078-79.

The dissent also maintained that “the Majority’s blanket conclusion that all pro se

petitioners lack access to public records rests on unsubstantiated assumptions.” Id. at

1079. According to the dissent, “[i]ncarcerated individuals (whether pro se or

represented by counsel) reside in prisons, not off-the-grid islands. Prisons within this

Commonwealth have law libraries, computer terminals, internet access, and legal aid

assistance.” Id. The dissent posited that, by “exempt[ing] all pro se petitioners” from

the public records presumption, the majority “favors pro se petitioners over other

members of the potential PCRA petitioner class without a rational basis,” and

“incentivizes petitioners to forego the retention of counsel, even if it is within their

means.” Id. at 1080. The dissent characterized the majority’s approach as an

impermissible reallocation of the burdens of pleading and proof in PCRA petitions to the

Commonwealth, without any guidance “as to how subjective elements factor into the

due diligence inquiry.” Id. at 1081.

With regard to the majority’s reliance on Bennett, the dissent stated:

Bennett . . . never involved an express holding that

petitioners are entitled to special, access-based

accommodations where they lack the benefit of counsel.

Instead, the Supreme Court concluded that an order

[J-110-2016] - 11

dismissing the petitioner’s first PCRA appeal was only a

public record in the broadest sense because such orders are

not sent directly to the prisoner but only to counsel on the

assumption that counsel will inform his client of the court’s

action. The Court then noted that the logic of this

assumption breaks down where counsel abandons his client.

Thus, the Court declined to treat the order as a public record

where the prisoner’s only means of access to the information

was restricted by counsel’s abandonment.

Id. at 1084 n.9.

The dissent distinguished Bennett from the instant case on the basis that

Goodwine’s Motion to Expunge “resided on a public trial docket, available to all who

sought it.” Id. It noted that Appellee “offered no explanation for why he could not

obtain” the Motion to Expunge, and, further, that because Appellee acted pro se from

the beginning of the instant proceedings, he never had an expectation of counsel’s

assistance and thus Bennett does not apply. Id. Finally, the dissent concluded that the

circumstances underlying the instant case “were more than sufficient to trigger an

investigation” by Appellee, such that he failed to establish the newly-discovered facts

exception to the PCRA. Id. at 1075.

The Commonwealth sought allowance of appeal, and, on April 6, 2016, this Court

granted review of the following issue:

Does Superior Court’s published en banc decision

contravene established precedent in concluding a hearing

was necessary to determine whether [Appellee] acted with

due diligence in invoking the after-discovered facts exception

to [the] time bar by (1) creating an exception for pro se

petitioners to the long-standing rule presuming that publicly

available information cannot be deemed unknown for

purposes of 42 Pa.C.S.A. § 9545(b)(1)(ii) where a petition

has been filed beyond 60 days of the date the information

entered the public domain, and by (2) shifting the burden of

pleading and proof to the Commonwealth under such

circumstances?

[J-110-2016] - 12

Commonwealth v. Burton, 134 A.3d 446 (Pa. 2016) (order).13

II. Analysis

Pursuant to 42 Pa.C.S. § 9545(b)(1), any PCRA petition, including a second or

subsequent one, must be filed within one year of the date the judgment of sentence

becomes final. The PCRA’s time restrictions are jurisdictional in nature, and a court

may not entertain untimely PCRA petitions. Commonwealth v. Brown, 943 A.2d 264,

267 (Pa. 2008). However, Section 9545(b)(1) provides three exceptions to the general

time requirements of the PCRA:

(b) Time for filing petition.—

(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

13

In reviewing the grant or denial of PCRA relief, we examine whether the PCRA court’s

determination is supported by the record and free of legal error. Commonwealth v.

Mitchell, 141 A.3d 1277, 1283-84 (Pa. 2016). The PCRA court's credibility

determinations, when supported by the record, are binding on this Court; however, we

apply a de novo standard of review to the PCRA court's legal conclusions. Roney, 79

A.3d at 603.

[J-110-2016] - 13

(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). As noted previously, to qualify for any of the exceptions to the

PCRA’s one-year time limitation, including the newly-discovered facts exception under

subsection 9545(b)(1)(ii), the exception must be pled within 60 days of the date the

claim could have been presented. Id. § 9545(b)(2).

As a preliminary matter, we find it necessary to address, once again, the

appropriate terminology for referring to the exception set forth in subsection

9545(b)(1)(ii). At one time, this Court referred to subsection 9545(b)(1)(ii) as the “after-

discovered evidence” exception. See, e.g., Commonwealth v. Johnson, 863 A.2d 423

(Pa. 2004). However, as we acknowledged in Bennett, such reference was a

“misnomer, since the plain language of subsection (b)(1)(ii) does not require the

petitioner to allege and prove a claim of ‘after-discovered evidence.’” 930 A.2d at 1270.

Indeed, “[b]y imprecisely referring to this subsection as the ‘after-discovered evidence’

exception, we have ignored its plain language,” and “erroneously engrafted Brady-like

considerations into our analysis of subsection (b)(1)(ii).” Id.14 We further observed that

our decision in Commonwealth v. Lambert, 884 A.2d 848 (Pa. 2005), should have

dispelled “[a]ny confusion created by the mislabeling” of subsection 9545(b)(1)(ii):

14

A claim brought under Brady v. Maryland, 373 U.S. 83 (1963), alleges a failure by the

Commonwealth to produce material evidence, and requires a petitioner to demonstrate

that: (1) the prosecutor has suppressed evidence; (2) the evidence, whether exculpatory

or impeaching, is helpful to the petitioner; and (3) the suppression prejudiced the

petitioner. Commonwealth v. Smith, 17 A.3d 873, 887 (Pa. 2011).

[J-110-2016] - 14

In Lambert, the appellant raised a number of Brady claims

and alleged that the court had jurisdiction over his claims

under subsection (b)(1)(ii). The Commonwealth urged us to

follow a similar analysis to that set forth in [Commonwealth

v. Johnson, 863 A.2d 423 (Pa. 2004)], arguing that appellant

must establish a meritorious Brady claim in order to fall

within an exception set forth in subsections (b)(1)(i)-(iii). In

rejecting the Commonwealth’s argument, we made clear that

the exception set forth in subsection (b)(1)(ii) does not

require any merits analysis of the underlying claim. Rather,

“the exception merely requires that the ‘facts’ upon which

such a claim is predicated must not have been known to

appellant, nor could they have been ascertained by due

diligence.” Lambert, 884 A.2d at 852. Therefore, our

opinion in Lambert indicated that the plain language of

subsection (b)(1)(ii) is not so narrow as to limit itself to only

claims involving “after-discovered evidence.” Rather,

subsection (b)(1)(ii) has two components, which must be

alleged and proved. Namely, the petitioner must establish

that: 1) “the facts upon which the claim was predicated were

unknown” and (2) could not have been ascertained by the

exercise of due diligence.” 42 Pa.C.S.

§ 9545(b)(1)(ii)(emphasis added). If the petitioner alleges

and proves these two components, then the PCRA court has

jurisdiction over the claim under this subsection. See

Lambert, supra.

Bennett, 930 A.2d at 1271-72 (emphasis original).

Thus, generally, the exception to the PCRA’s time requirements set forth in

subsection 9545(b)(1)(ii) is now referred to as the “newly-discovered fact” exception.

See Commonwealth v. Cox, 146 A.3d 221, 227 (Pa. 2016); Mitchell, 141 A.3d at 1282

n.4; Commonwealth v. Robinson, 139 A.3d 178, 186 (Pa. 2016); Medina, 92 A.3d at

1216, 1224. While, on occasion, some courts have used a variation of this phrase, see,

e.g., Taylor, 67 A.3d at 1248 (“There are three exceptions to the timeliness requirement,

including an exception for newly-discovered evidence.”), Burton, 121 A.3d at 1071

(“Also relevant to our disposition is the nature of the after-discovered facts relied upon

by Appellant.”), the phrase “newly-discovered fact” timeliness exception, in our view,

most accurately reflects the requirements of subsection 9545(b)(1)(ii), and is the least

[J-110-2016] - 15

likely to be confused with the after-discovered evidence eligibility-for-relief provision set

forth in subsection 9543(a)(2). Thus, for purposes of clarity and consistency, we

encourage courts to utilize the phrase “newly-discovered fact(s)” when referring to the

timeliness exception provided under subsection 9545(b)(1)(ii).

Turning our attention to the instant case, in dismissing Appellee’s PCRA petition

as untimely, the PCRA court stated:

In order to sustain an untimely PCRA Petition under the

after-discovered evidence exception, a petitioner must show

that the evidence: (1) has been discovered after the trial and

could not have been obtained prior to the conclusion of the

trial by the exercise of reasonable diligence; (2) is not merely

corroborative or cumulative; (3) will not be used solely for

impeachment purposes; and (4) is of such a nature and

character that a different verdict will likely result if a new trial

is granted.[] Commonwealth v. Johnson, 841 A.2d 136, 140-

141 (Pa. Super. 2003). “Exception [(b)(1)(ii)] requires the

petitioner to allege and prove that there were ‘facts’ that

were ‘unknown to him’ and that he could not have

ascertained those facts by the exercise of ‘due diligence’ …

The focus of the exception ‘is on [the] newly discovered

facts, not on a newly discovered or newly willing source for

previously known facts.”’ Commonwealth v. Marshall, 947

A.2d 716, 720 (Pa. 2008), internal citations omitted.

Specifically, [Appellee] avers that a Motion for Expungement

filed by his co-defendant Melvin [Goodwine] on July 29, 2009

constitutes after-discovered evidence. Goodwine’s Petition

avers that although he was acquitted of a homicide charge,

he committed the crime in self-defense. [Appellee] now

claims that Goodwine’s 2009 Motion for Expungement is

exculpatory. A careful review of the record reveals that

[Appellee] has failed to satisfy the requirements of the after-

discovered evidence exception to the time limitation

provisions of the Post-Conviction Relief Act.

PCRA Court Opinion, 2013 WL 10257583, at *2.

In discussing the requirements for relief under Section 9543(a)(2), and

repeatedly referring to Appellee’s claim as one of after-discovered evidence, it appears

[J-110-2016] - 16

that the PCRA court misapprehended the requirements for establishing the newly-

discovered facts exception to the PCRA’s time limitations. To reiterate, the newly-

discovered facts exception to the time limitations of the PCRA, as set forth in subsection

9545(b)(1)(ii), is distinct from the after-discovered evidence basis for relief delineated in

42 Pa.C.S. § 9543(a)(2). 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 unknown to him and could not have been ascertained by

the exercise of due diligence. However, where a petition is otherwise timely, to prevail

on an after-discovered evidence claim for relief under subsection 9543(a)(2)(vi), a

petitioner must prove that (1) the exculpatory evidence has been discovered after trial

and 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); see Cox, 146 A.3d at 227-28 (“Once jurisdiction has been properly

invoked (by establishing either that the petition was filed within one year of the date

judgment became final or by establishing one of the three exceptions to the PCRA’s

time-bar), the relevant inquiry becomes whether the claim is cognizable under [Section

9543] of the PCRA.”).

The PCRA court offered the following additional explanation for its dismissal of

Appellee’s PCRA petition:

[Appellee] was charged with both Criminal Homicide and

Criminal Conspiracy, indicating the presence of or joint

commission with another individual - here, Melvin Goodwine.

[Appellee] would obviously have known of Goodwine and his

role in the crime inasmuch as they were co-conspirators in

the crime and co-defendants at trial. There is no reasonable

or logical argument that Goodwine’s 2009 Motion or its

averments were not known to [Appellee] under these

circumstances.

[J-110-2016] - 17

Moreover, [Appellee] has provided no reasonable basis to

use the Innocence Project’s letter as the “after-discovered

evidence” date. The Innocence Project did not simply

receive Goodwine’s Petition from the unidentified Twyla

[Bivins] out of the blue, make the connection to the

Defendant’s case unassisted and contact [Appellee] with

news of the Motion four (4) years after its filing. [Appellee]

cannot circumvent the time limitation provisions of the Post-

Conviction Relief Act by simply [failing] to provide the

relevant dates and information.

Given the specific facts and circumstances of this case,

there is no reasonable argument that the purported

exculpatory evidence contained in Goodwine’s Motion could

not have been discovered at least by 2009 if not earlier. As

such, [Appellee] has failed to satisfy the after-discovered

evidence exception to the time limitation provisions of the

Post Conviction Relief Act.

PCRA Court Opinion, 2013 WL 10257583, at *3.

In reversing the PCRA court’s order, the Superior Court held that, because there

was an insufficient factual record upon which the PCRA court could determine whether

Appellee had prior knowledge of the averments contained in Goodwine’s Motion to

Expunge, particularly in light of Appellee’s claim of innocence as to the charges of both

murder and conspiracy, the above findings of the PCRA court were “premature,” and

noted the Motion to Expunge “raises genuine issues of material fact that warrant

development.” Burton, 121 A.3d at 1074. Critically, for purposes of the present appeal,

the Superior Court also held that the public record presumption does not apply to a pro

se PCRA petitioner, notwithstanding the fact that the PCRA court did not expressly rely

on or discuss the public record presumption in its opinion.15 We thus proceed to

15

Given its conclusion that the trial court’s factual findings were premature, arguably,

the Superior Court could have remanded the matter to the PCRA court simply for a

hearing and factual determination as to whether Appellee had actual prior knowledge of

the averments contained in Goodwine’s Motion to Expunge, without addressing the

public record presumption. However, an appellate court may affirm a PCRA court’s

order for any reason of record. See Commonwealth v. Moore, 937 A.2d 1062, 1073

(continued…)

[J-110-2016] - 18

consider the issue of whether the public record presumption should apply to pro se

PCRA petitioners, as contemplated in our grant of review.

The Commonwealth offers several reasons in support of its contention that the

Superior Court erred in holding the public record presumption does not apply to pro se

PCRA petitioners. First, the Commonwealth asserts that the Superior Court’s decision

is in conflict with this Court’s decisions holding that matters of public record cannot be

deemed unknown for the purpose of invoking the after-discovered facts exception.

Commonwealth’s Brief at 21 (citing Taylor, supra; Chester, supra; and Lark, supra).

The Commonwealth further argues that, by creating an exception to the public

record presumption for pro se prisoners, the Superior Court “erroneously shifts the

burden in an after-discovered facts case from a petitioner to the Commonwealth to

establish whether petitioner exercised due diligence.” Id. at 22. The Commonwealth

also echoes the observation of the dissent that, by exempting only pro se petitioners,

the Superior Court’s approach favors them “over other members of the potential PCRA

petitioner class without a rational basis.” Id. at 32 n.13 (citation omitted).

Finally, the Commonwealth argues that the exception created by the Superior

Court is based on an “unsupported assumption that pro se prisoners ‘do not have

access to information otherwise readily available to the public.’” Id. at 21. It suggests

that, “while an inmate may not be permitted direct access to the internet, he could

(…continued)

(Pa. 2007). In this case, despite the PCRA court’s conclusions regarding Appellee’s

actual knowledge, the Superior Court could have affirmed the PCRA court’s order

based on the extant case law providing that public records are deemed known, thereby

avoiding a remand. Thus, the Superior Court’s consideration of the public record

presumption was appropriate in the context of its resolution of the instant case.

[J-110-2016] - 19

nonetheless submit a request to a civilian prison employee, such as the prison librarian,

to search for the desired public information or record.” Id. at 26.

In response to the Commonwealth’s arguments, Appellee maintains that the

instant case “is analogous to Bennett in every material respect,” and, therefore, Bennett

is controlling. Appellee’s Brief at 16. Appellee observes that the Commonwealth, in its

principal brief, failed to cite, let alone distinguish, the Bennett decision. Furthermore,

Appellee suggests that, while the dissent below mentioned Bennett in a footnote, its

rationale for distinguishing Bennett was illogical. In this regard, Appellee notes that the

focus of Bennett was on the impact of the absence of counsel, not the reason for the

absence of counsel, and the impact of the absence of counsel in Bennett and the

instant case is the same. Appellee’s Brief at 18. Appellee further contends that the due

diligence requirement of subsection 9545(b)(1)(ii) is centered on the reasonableness of

a petitioner’s conduct, as recognized by the Superior Court in Davis, supra, and Medina,

supra. Appellee’s Brief at 19-20.16

As the proper interpretation and scope of subsection 9545(b)(1)(ii) is a matter of

statutory construction, we are guided by the Statutory Construction Act (“Act”). 1

Pa.C.S. §§ 1501 et seq. The goal of statutory construction is to ascertain the

Legislature's intent. 1 Pa.C.S. § 1921(a). Thus, every statute shall be construed, if

possible, to give effect to all its provisions. Id. When the words of a statute are clear

and free from ambiguity, the letter of it is not to be disregarded under the pretext of

16

Three amicus briefs have been filed on behalf of Appellee in this matter: one by

Pennsylvania Exonerees; a joint brief by The Pennsylvania Innocence Project and the

Innocence Network; and a joint brief by the Pennsylvania Association of Criminal

Defense Lawyers, American Civil Liberties Union of Pennsylvania, Pennsylvania

Institutional Law Project, and the Pennsylvania Prison Society. We will address the

various arguments of amici where relevant to our analysis.

[J-110-2016] - 20

following its spirit. Id. § 1921(b). Furthermore, we must construe the provisions of the

PCRA liberally “to effect their objects and to promote justice.” See id. § 1928(c).

To qualify for the exception under subsection 9545(b)(1)(ii), a petitioner must

allege 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.” 42

Pa.C.S. § 9545(b)(1)(ii) (emphasis added). 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.

Indeed, it was this Court that first alluded to the concept of a public record

presumption in Lark. Therein, the pro se appellant, who was convicted in 1985 of first-

degree murder and related offenses, filed a facially untimely second PCRA petition,

asserting, inter alia, that the prosecution at trial had used its peremptory strikes in a

racially discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79 (1986).

The PCRA court dismissed the petition as untimely. On appeal, we considered whether

the appellant qualified for the newly-discovered facts exception under subsection

9545(b)(1)(ii) based on the April 1997 release by the Philadelphia District Attorney’s

Office of a videotape depicting a training session by Jack McMahon, wherein McMahon

trained district attorneys to use race and gender-based stereotypes as a basis for

striking potential jurors. Noting that the substance of the tape was not publicized until

April 1997, we concluded that, because “the facts upon which Appellant based his claim

were not known to him and could not have been discovered in the exercise of due

diligence until that date,” the appellant’s “presentation of the claim regarding the

McMahon tape in the second PCRA petition was timely.” 746 A.2d at 588. Although

the PCRA court did not address the merits of the appellant’s Batson claim, we found

that a sufficient record existed to enable this Court’s review of the claim. Ultimately, we

[J-110-2016] - 21

rejected the appellant’s claim on its merits, holding “the McMahon tape itself is not

sufficient evidence of racial discrimination” in the appellant’s case. Id. at 589.

However, we also rejected the appellant’s additional Batson argument on the

basis of a public record presumption:

As additional proof of a Batson violation, Appellant points to

a study of the Philadelphia criminal justice system which,

according to Appellant, indicates that African-Americans

convicted of first degree murder receive the death penalty

more often than white defendants, in part because of the

District Attorney’s practice of striking African-American

venirepersons at a higher rate of than other potential jurors.

See David Baldus, George Woodworth et al., Racial

Discrimination and the Death Penalty in the Post-Furman

Era: An Empirical and Legal Overview, with Recent Findings

from Philadelphia, 83 Cornell L. Review 1638 (1998). 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).

746 A.2d at 588 n.4 (emphasis added).17 This two-sentence discussion, relegated to a

footnote and which did not address the relevant statutory language, was our only

analysis supporting the creation of the public record presumption.

We considered the newly-discovered fact exception to the PCRA’s time

limitations again in Chester. Therein, the petitioner’s court-appointed counsel filed a

second and facially untimely PCRA petition on behalf of the petitioner, asserting that

trial counsel’s arrest for driving under the influence (“DUI”) several days after entering

17

Three years after Lark, in Commonwealth v. Whitney, 817 A.2d 473 (Pa. 2003), we

once again rejected an assertion that the Baldus-Woodworth Study constituted “newly

discovered evidence” that qualified the appellant for the “newly discovered evidence”

exception to the PCRA’s time limitation on the basis that “the statistics which comprise

the study were of public record and cannot be said to have been ‘unknown’ to

Appellant.” Id. at 478 (citing Lark, 746 A.2d at 588 n.4).

[J-110-2016] - 22

an appearance on behalf of the petitioner created a conflict of interest, and that the

prosecution’s failure to inform him of trial counsel’s arrest and the conflict of interest

violated the mandates of Brady. The PCRA court dismissed the petition as untimely.

On appeal, the petitioner alleged that his discovery of trial counsel’s DUI arrest

constituted “newly discovered evidence” that qualified him for the exception under

subsection 9545(b)(1)(ii). Chester, 895 A.2d at 522. The Commonwealth maintained

that “the exercise of due diligence would have resulted in Appellant discovering trial

counsel’s arrest,” and, specifically, that “the simple act of checking the clerk of courts’

file” would have revealed that evidence. Id. at 523. In rejecting the petitioner's claim,

we cited the Lark footnote and our subsequent decision in Whitney, see supra note 15,

for the proposition that “information is not ‘unknown’ to a PCRA petitioner when the

information was a matter of public record,” and we held that, merely because the

petitioner did not discover evidence of trial counsel’s DUI arrest at an earlier date did

not mean the information was “unknown” to him for purposes of subsection

9545(b)(1)(ii). Chester, 895 A.2d at 523.

The manner in which the public record presumption was created by this Court

warrants discussion. The Lark Court engaged in no analysis and cited no legal or

statutory support for its determination that information that is a matter of public record

cannot be deemed “unknown” by a PCRA petitioner. Moreover, the Lark Court made no

attempt to reconcile its holding with the specific language of subsection 9545(b)(1)(ii),

requiring that the facts upon which a claim is predicated be unknown to the petitioner.

This Court’s subsequent decisions in Whitney and Chester simply cited the Lark

footnote and contained no independent analysis or discussion.

Approximately one year after our decision in Chester, we determined that the

public record presumption, as applied in Chester, Whitney, and Lark, did not apply to an

[J-110-2016] - 23

incarcerated PCRA petitioner who did not have access to the public record upon which

his claim was based.18 In Bennett, the appellant was convicted of first-degree murder

and related crimes. He did not file a direct appeal from his judgment of sentence, but

later filed a timely pro se PCRA petition asserting, inter alia, that his trial counsel was

ineffective for failing to file a notice of appeal. The PCRA court denied relief, noting that

the appellant failed to allege or prove that he requested trial counsel to file a direct

appeal on his behalf. The appellant filed a timely pro se appeal with the Superior Court,

raising a claim of trial counsel’s ineffectiveness. Inexplicably, the PCRA court appointed

prior allegedly-ineffective trial counsel to represent the appellant in his PCRA appeal.

Counsel failed to file a brief, and the Superior Court dismissed the appellant’s appeal for

that reason. Thereafter, the appellant filed a second pro se PCRA petition, seeking

reinstatement of his PCRA appeal rights. The PCRA court granted the petition, and

new counsel was appointed and filed an appeal from the PCRA court’s dismissal of the

appellant’s first PCRA petition. The Superior Court quashed the appeal, however,

concluding the appellant’s second PCRA petition, from which his appellate rights were

reinstated, was untimely and, thus, the PCRA court did not have jurisdiction to grant

relief. On discretionary appeal before this Court, the appellant argued that he qualified

for the newly-discovered facts exception to the PCRA’s time requirements because

there were facts that were unknown to him − i.e., he did not know that his prior trial

counsel was appointed to represent him in his PCRA appeal; he did not know that

18

After Bennett, in Commonwealth v. Taylor, this Court again cited Chester, Whitney,

and Lark in support of our holding that information that a petitioner’s trial counsel had

previously represented his father-in-law could not be deemed unknown for the purpose

of the “newly discovered evidence” exception to the PCRA because the cases

evidencing that representation had been docketed and filed with the clerk of courts, and

were available to the public. 67 A.3d at 1248-49. However, as we discuss below, the

petitioner in Taylor, like those in Lark, Whitney, and Chester, was represented by

counsel.

[J-110-2016] - 24

counsel failed to file a brief with the Superior Court; and he did not know that the

Superior Court dismissed his appeal.

We acknowledged in Bennett that allegations of PCRA counsel’s ineffectiveness

generally cannot be invoked as a newly-discovered “fact” for purposes of subsection

9545(b)(1)(ii). 930 A.2d at 1272. However, we determined that the appellant made

sufficient allegations that counsel abandoned him for purposes of his first PCRA appeal,

and thus we proceeded to consider whether the appellant met the requirements of

subsection 9545(b)(1)(ii) − that the facts were unknown to him and that he could not

have uncovered them with the exercise of due diligence. We concluded that “[s]uch

questions require further fact-finding and the PCRA court, acting as fact finder, should

determine whether Appellant met the ‘proof’ requirement under 42 Pa.C.S.

§ 9545(b)(1)(ii).” Id. at 1274.

In response to the dissenting opinion of former Justice Eakin in Bennett, joined

by former Chief Justice Castille, that, based on Chester, the Superior Court’s dismissal

of the appellant’s appeal could not be considered unknown to him because an order

dismissing an appeal is a matter of public record, we explained that “implicit in the

decision in Chester was the recognition that the public record could be accessed by the

defendant.” Bennett, 930 A.2d at 1275 (emphasis added). We elaborated:

While the dissenting opinion [advocating strict application of

the public record presumption] is attractive in its simplicity, it

does not give due consideration to the circumstances the

instant case raises. The August 14th order [dismissing the

petitioner’s first PCRA appeal] was a matter of “public

record” only in the broadest sense. Such orders are not sent

directly to the prisoner. Rather, counsel is sent the notice on

the assumption that counsel will inform his client of the

court’s action. In a case such as the instant one, it is illogical

to believe that a counsel that abandons his or her client for a

requested appeal will inform this client that his case has

been dismissed because of his own failures. More

[J-110-2016] - 25

importantly, in light of the fact that counsel abandoned

Appellant, we know of no other way in which a prisoner

could access the “public record.” Rather, we believe this

situation is sufficiently distinct from the situation in Chester,

since in this case, the matter of “public record” does not

appear to have been within Appellant’s access.

Id. (internal footnotes omitted).19

The Commonwealth, in its reply brief, disputes that Bennett is controlling in the

instant case. Specifically, the Commonwealth avers that our decision in Bennett was

based solely on the fact that the defendant had been abandoned by counsel:

“Presumably, in a situation where a petitioner is unrepresented and acting pro se from

the inception of the proceeding, like respondent in the instant matter, the above

assumption is inapplicable since any orders issued in such a case would be sent

directly to the petitioner.” Commonwealth’s Reply Brief at 7. According to the

Commonwealth, “the Bennett Majority could not have meant . . . that it was the

defendant’s incarcerated status, in and of itself, that prevented his access to the

information. . . . It was the abandonment by counsel, not the fact of his incarceration,

that kept the defendant from learning about the dismissal order in a timely manner.” Id.

at 8.

A careful reading of Bennett, however, reveals that it was the combination of the

defendant’s incarcerated status and the fact that he had been abandoned by counsel

that, in this Court’s view, undercut the public record presumption. In the instant case,

after careful consideration, we conclude that, however reasonable the public record

presumption may be with regard to PCRA petitioners generally, the presumption cannot

reasonably be applied to pro se PCRA petitioners who are incarcerated.20

19

Unlike in Bennett, the PCRA petitioners in Lark, Whitney, Chester, and Taylor were all

represented by counsel.

20

We have not been asked in this appeal to reconsider the applicability of the public

record presumption generally. Indeed, the dissent implies that this is a reason for not

(continued…)

[J-110-2016] - 26

In this case, the Superior Court en banc majority determined that, while the

public record presumption is reasonable when applied to a petitioner who retains

access to public information, such as when a petitioner is represented by counsel, it is

not reasonable to apply the presumption to pro se petitioners who are incarcerated and

who do not have access to information otherwise readily available to the public. Burton,

121 A.3d at 1072. The Superior Court further recognized that the public record

presumption “must adhere to the statutory language of Section 9545. The requirement

is that subsection 9545(b)(1)(ii) facts are ‘unknown to the petitioner.’” Id. at 1071

(emphasis original).

The dissent below responded:

Appellant’s incarcerated and pro se status hardly

distinguishes the present case from any other in which an

untimely petition asserts a timeliness exception. Nearly

every petitioner who invokes the exception found at §

9545(b)(1)(ii) in order to litigate an untimely petition will be

incarcerated. This is because serving a sentence is a

prerequisite for eligibility for collateral relief. 42 Pa.C.S.A. §

9543(a)(1)(i).

Burton, 121 A.3d at 1078. The dissent further opined that the “clear and unequivocal

holding” of Taylor, supra, that “matters of public record are not unknown,” means that

“public records are not unknown to anyone, particularly PCRA petitioners (pro se and

represented alike). To whom, apart from PCRA petitioners such as Appellant, could the

(…continued)

addressing the more narrow question presented of whether the presumption applies to

pro se petitioner prisoners. See Dissenting Opinion (Baer, J., dissenting) at 5 (“It may

be that this Court should reconsider the public record presumption in general if that

opportunity presents itself, but this case does not involve such a broad issue.”); id. at 4

(same). Respectfully, as a general matter, we decide the cases before us, and the

dissent has offered no jurisprudential impediment to following that rule in this case.

Accordingly, we have tailored our analysis and decision to the issue we accepted for

review, and the facts presented.

[J-110-2016] - 27

Supreme Court have been referring in formulating this rule?” Id. at 1077 n.3. In answer

to this rhetorical question, we note that, in order to be eligible for PCRA relief, a

petitioner must currently be serving a sentence of imprisonment, probation, or parole.

See supra note 11. Thus, contrary to the suggestion of the dissent below, PCRA

petitioners who are not incarcerated, such as probationers and parolees, also fall within

this category.

The dissent additionally challenged the majority’s “blanket conclusion” that all pro

se prisoners lack access to public records, stating:

Incarcerated individuals (whether pro se or represented by

counsel) reside in prisons, not off-the-grid islands. Prisons

within this Commonwealth have law libraries, computer

terminals, internet access, and legal aid assistance. It is

unsurprising, then, that in the closely related context of

petitions that invoke newly-recognized constitutional rights

under § 9545(b)(1)(iii), this Court routinely denies relief to

pro se, incarcerated petitioners where, among other things,

they fail to file their petitions within 60 days of the date a

court decision enters the public domain.

Burton, 121 A.3d at 1079 (emphasis original).

There are several problems with the dissent’s analysis. First, in noting that, in

contrast to subsection 9545(b)(1)(ii), courts routinely deny relief to pro se incarcerated

petitioners under subsection 9545(b)(1)(iii) if they do not file a petition within 60 days of

a decision creating a newly-recognized constitutional right, the dissent failed to note

that, unlike subsection (b)(1)(ii), subsection (b)(1)(iii) precludes consideration of the

petitioner’s knowledge and an assessment of due diligence.

Moreover, the averments made by amici suggest that the dissent’s assumptions

regarding Appellee’s access to public records are erroneous. In their amicus brief,

[J-110-2016] - 28

Pennsylvania Exonorees (hereinafter “Exonerees”)21 first assert that the Pennsylvania

Department of Corrections’ (“DOC”) policies do not provide for inmate access to the

internet or internet-based tools for legal research, either directly or through prison staff.

Exonerees’ Brief at 7 (citing, inter alia, DOC Policy Statement Access to Provided Legal

Services, No. DC-ADM007 (April 6, 2015)). They explain that, while there are computer

terminals, prisoners cannot access web-based tools or resources; rather, prisoners may

view materials which have been loaded onto the computer from a CD-ROM and which

are periodically updated. Id. at 12. Exonerees state that none of them had any type of

internet access during their incarcerations, which spanned the years 1982 through

2016, nor did they know of any prisoners who did have such access. Id. at 8.

Exonerees additionally note that many prisoners do not know how to use the

computers, particularly if they entered prison many years ago. Id. at 13.

Exonerees further contend that the Commonwealth’s prison law libraries have

limited resources, consisting primarily of case law and statutes, and that the available

materials do not include public case dockets or pleadings, such as motions and

transcripts. Id. at 10-11. Exonerees claim that each of them “struggled to obtain court

filings from their own cases for many years because these documents were not

available to them in prison.” Id. at 11. Moreover, Exonerees note that prisoners have

limited physical access to prison law libraries, as they must submit a request and be

granted permission to use the library, and a prisoner generally may access the library

21

Pennsylvania Exonerees are former Pennsylvania pro se prisoners who ultimately

were exonerated and released. The exonerees include Kenneth Granger, released in

2010 after 28 years of incarceration; Lance Felder, released in 2014 after 15 years of

incarceration; Lewis “Jim” Fogle, released in 2015 after 34 years of incarceration;

Eugene Gilyard, released in 2014 after 15 years of incarceration; and Crystal Weimer,

released in 2016 after 11 years of incarceration.

[J-110-2016] - 29

for a maximum of six hours per week. Id. at 13. Exonerees contend that they did not

receive six hours of access per week. Id.

According to Exonerees, obtaining information from outside of prison also is

difficult because inmates often cannot afford to pay for the necessary phone calls,

stationery, envelopes, postage, and copying fees, and because DOC policy prohibits

inmates from sending mail to former inmates or parolees, or telephoning a judge,

criminal justice official, prosecutor, or court administrator without prior approval. Id. at

12 (citing Inmate Handbook, Section II.N.5.d; II.H.1).

Finally, Exonerees maintain that the DOC’s policy statements contradict the

Superior Court dissent’s suggestion that there is legal aid assistance available to pro se

prisoners. They note that DOC policy prohibits library staff from providing legal advice

to inmates, and, that, in any event, library staff is not required to have legal training or

experience. Id. at 17-18. Exonerees contend that they never received assistance from

anyone with legal training or experience in their respective pro se legal efforts. Id. at 19.

Notwithstanding the above, the Commonwealth posits that, “[e]ven assuming

[Appellee] had no access to the internet due to his incarceration, respondent could have

periodically corresponded with the Department of Court Records via letter, or he could

have directed a third party, such as a family member, to inquire about the status of the

co-defendant’s case via the internet.” Commonwealth’s Reply Brief at 14.

Appellee offers the following description of his obligation under the

Commonwealth’s model:

First, Mr. Burton must write the Allegheny County

Department of Court Records and inquire about new activity

on Goodwine’s docket. Second, the clerk must promptly

write back to Mr. Burton, explaining that Goodwine filed an

expungement motion. Third, Mr. Burton must write again to

request that a copy of Goodwine’s expungement motion be

mailed to him. Fourth, the court must order Goodwine’s case

[J-110-2016] - 30

file from storage (because 1993 criminal case files are not

housed at the Department of Court Records). Fifth, after a

possible delay in waiting for Goodwine’s case file to arrive,

the court must copy Goodwine’s expungement motion and

mail it to Mr. Burton. Sixth, Mr. Burton must review the

motion for any potentially exculpatory facts. Seventh, and

finally, Mr. Burton must prepare his pro se PCRA petition

relying on any newly-discovered facts and file it within 60

days.

Here is the kicker, though: Mr. Burton must repeat this

process over and over to ensure he meets the 60-day rule.

Moreover, Mr. Burton should also unremittingly monitor the

dockets of the inmates who testified against him, who are

even more likely sources of exculpatory evidence than

Goodwine appeared to be. Under the Commonwealth’s rule,

then, indigent prisoners would have to pay for postage to

keep up a continuing stream of correspondence with court

records departments—and, in turn, courts would receive

unceasing docket inquiries from inmates who would have no

other way to protect their right to petition for post-conviction

relief based on after-discovered facts. It is absurd to

presume that the General Assembly could have intended an

outcome so unaffordable to prisoner litigants and so likely to

consume excessive court resources.

Appellee’s Brief at 41-42.

Based on the foregoing presentations of the parties and amici, and an

examination of the text of subsection 9545(b)(1)(ii), we expressly adopt herein what was

the essence of our holding in Bennett. Specifically, we 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.22 We

22

For these reasons, we easily dismiss the suggestion of the Commonwealth and the

dissent below that the majority’s approach implicates an equal protection issue, in that it

“creates different classes of petitioners without fact-based justification.” Burton, 121

(continued…)

[J-110-2016] - 31

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.

Accordingly, consistent with the statutory language, in determining whether a

petitioner qualifies for the exception to the PCRA’s time requirements pursuant to

subsection 9545(b)(1)(ii), the PCRA court must first determine whether “the facts upon

which the claim is predicated were unknown to the petitioner.” In some cases, this may

require a hearing.23 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.

The order of the Superior Court is affirmed.

Chief Justice Saylor and Justice Wecht join the opinion.

Chief Justice Saylor files a concurring opinion.

Justice Baer files a dissenting opinion in which Justice Dougherty joins.

Justices Donohue and Mundy did not participate in the consideration or decision

of this case.

(…continued)

A.3d at 1080; Commonwealth’s Brief at 32 n.13. Rather, the majority’s approach and

our holding applies to all pro se PCRA petitioners who are incarcerated, as it is this

particular group whose access to public records is in question, and so are rationally

distinguishable from all counseled, or non-incarcerated, petitioners.

23

We disagree with the position of the Commonwealth and the dissent below that the

Superior Court’s majority’s approach “impermissibly reallocate[s] the burdens of

pleading and proof in PCRA cases.” Burton, 121 A.3d at 1081; Commonwealth’s Brief

at 22. A pro se incarcerated PCRA petitioner is still required to prove that the facts

upon which his claim of a timeliness exception under subsection 9545(b)(1)(ii) is based

were unknown to him and not ascertainable by the exercise of due diligence. Our

decision merely eliminates what we conclude is an unjustifiable presumption.

[J-110-2016] - 32