J-S53008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellant             :
                                         :
              v.                         :
                                         :
 ELWOOD SMALL                            :
                                         :
                   Appellee              :       No. 250 EDA 2018


              Appeal from the PCRA Order December 14, 2017
            in the Court of Common Pleas of Philadelphia County
             Criminal Division at No.: CP-51-CR-0521601-1982


BEFORE:    GANTMAN, P.J., OTT, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                        FILED OCTOBER 29, 2018

     The Commonwealth appeals from the grant of the fourth petition of

Appellee, Elwood Small, filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We reverse and remand.

     We take the underlying factual and procedural history from this Court’s

August 3, 2012 memorandum opinion and our independent review of the

certified record. On December 23, 1981, Appellee and his co-defendant, Larry

L. Bell, conspired to rob Patrick Blake, an acquaintance who previously had

sold drugs to them. Appellee and Bell entered Blake’s apartment to find Blake

and Jon McCrary. During the incident, Appellee stabbed Blake in the back

before he managed to escape through a first-floor window. Appellee fatally

stabbed McCrary three times in the chest.



____________________________________
* Retired Senior Judge assigned to the Superior Court.
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           . . . On April 13, 1983, a jury found Appell[ee] and [Bell]
     guilty of second degree murder, aggravated assault, simple
     assault, robbery, and conspiracy. On November 9, 1983, the
     court sentenced Appell[ee] to life imprisonment for the murder
     conviction, plus a consecutive term of five (5) to ten (10) years’
     imprisonment for the conspiracy conviction. This Court affirmed
     the judgment of sentence on March 22, 1985, and our Supreme
     Court denied Appell[ee’s] petition for allowance of appeal on
     November 26, 1985. (See Commonwealth v. Small, 494 A.2d
     485 (Pa. Super. 1985) (unpublished memorandum), appeal
     denied, ___ A.2d ___ (Pa. 1985)).

            On February 5, 1990, Appell[ee] filed a pro se PCRA petition.
     The court appointed counsel, who filed an amended petition on
     Appell[ee]’s behalf. On June 10, 1992, the court denied PCRA
     relief. This Court affirmed the order denying PCRA relief on
     September 16, 1993, and our Supreme Court denied Appell[ee]’s
     petition for allowance of appeal on March 7, 1994. (See
     Commonwealth v. Small, 636 A.2d 1216 (Pa. Super. 1993)
     (unpublished memorandum), appeal denied, 642 A.2d 485 (Pa.
     1994)).

            On December 31, 1996, Appell[ee] filed a second pro se
     PCRA petition. On June 18, 1997, the PCRA court dismissed the
     petition as untimely. This Court affirmed the PCRA court’s order
     on August 11, 1998, and our Supreme Court denied Appell[ee]’s
     petition for allowance of appeal on March 25, 1999. (See
     Commonwealth v. Small, 726 A.2d 415 (Pa. Super. 1998)
     (unpublished memorandum), appeal denied, 737 A.2d 1224 (Pa.
     1999)).

            Appell[ee] filed [his third] pro se PCRA petition . . . on
     November 16, 2007. In it, [he] claimed to have recently learned
     that the trial judge had coerced a juror into rendering a guilty
     verdict. The court appointed counsel, who filed an amended
     petition on March 12, 2010. On December 3, 2010 and December
     14, 2010, the court conducted evidentiary hearings on the matter.
     The court ultimately denied PCRA relief on April 29, 2011. [This
     Court affirmed the denial on August 3, 2012, and our Supreme
     Court denied further review on January 10, 2013.            (See
     Commonwealth v. Small, 60 A.3d 556 (Pa. Super. 2012)
     (unpublished memorandum), appeal denied, 62 A.3d 379 (Pa.
     2013)).]


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Commonwealth v. Small, No. 1370 EDA 2011, unpublished memorandum

at **1-3 (Pa. Super. filed Aug. 3, 2012) (some record citation formatting

provided).

        On July 23, 2014, Appellee filed his fourth pro se PCRA petition. On May

4, 2017, the court provided notice of its intent to dismiss the petition without

a hearing. See Pa.R.Crim.P. 907(1). Appellee responded pro se on May 15,

2017.     On August 30, 2017, the court appointed counsel, scheduled an

evidentiary hearing, and, pursuant to Appellee’s request, ordered the

Commonwealth to produce discovery, including trial transcripts and exhibits,

transcripts from any prior PCRA hearings, and the transcript and exhibits from

Mr. Bell’s PCRA hearings.        Appointed counsel filed an amended petition on

October 30, 2017, in which he asserted that Mr. Bell testified at his own PCRA

hearing in 1993. Counsel concedes that Bell did not recant his trial testimony,

but claims he “changed his testimony in subtle but important ways[,]” thus

creating doubt about Appellee’s role in the 1981 robbery and murder.

(Amended Fourth PCRA Petition, 10/30/17, at 2). On December 14, 2017,

after a hearing on Appellee’s PCRA petition, the court granted his petition,

vacated his judgment of sentence, and ordered a new trial.                  The

Commonwealth timely appealed.1



____________________________________________


1 The PCRA court did not order the Commonwealth to file a concise statement
of errors. It filed an opinion on January 11, 2018 that was identical to the one
it filed in support of its order on December 14, 2017. See Pa.R.A.P. 1925.

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     The Commonwealth raises one question for this Court’s review.

“[Whether] the PCRA court err[ed] in granting [Appellee’s] petition because

the court’s findings were not supported by the record and were not free of

legal error?”   (Commonwealth’s Brief, at 4) (unnecessary capitalization

omitted).

     It is well-settled that:

           [W]e review a [grant or] denial of PCRA relief to determine
     whether the findings of the PCRA court are supported by the
     record and free of legal error. A PCRA court’s credibility findings
     are to be accorded great deference, and where supported by the
     record, such determinations are binding on a reviewing court. A
     PCRA court’s legal conclusions, however, are reviewed de novo.

Commonwealth v. Green, 168 A.3d 173, 175 (Pa. Super. 2017), appeal

denied, 183 A.3d 340 (Pa. 2018) (citations and quotation marks omitted).

     It is well-settled that:

            Before addressing the issues presented on appeal, we must
     determine whether Appellant’s instant PCRA petition was timely
     filed.    Our Supreme Court has stressed that [t]he PCRA’s
     timeliness requirements are jurisdictional in nature and must be
     strictly construed; courts may not address the merits of the issues
     raised in a petition if it is not timely filed. It is well settled that
     [a]ny and all PCRA petitions must be filed within one year of the
     date on which the petitioner’s judgment became final, unless one
     of three statutory exceptions applies. A judgment becomes final
     at the conclusion of direct review, including discretionary review
     in the Supreme Court of the United States and the Supreme Court
     of Pennsylvania, or at the expiration of time for seeking the
     review. 42 Pa.C.S.A. § 9545(b)(3).

Commonwealth v. Garcia, 23 A.3d 1059, 1061-62 (Pa. Super. 2011)

(footnote, case citations and quotation marks omitted). “The petitioner bears

the burden to allege and prove [that] one of the timeliness exceptions

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applies.” Id. at 1062 (citation omitted). Importantly, “[t]his time constraint

.   .   .   is   not   subject   to   tolling   or   other   equitable   considerations.”

Commonwealth v. Robinson, 185 A.3d 1055, 1058 (Pa. Super. 2018),

appeal denied, 2018 WL 4091605 (Pa. filed Aug. 28, 2018) (citation omitted).

        In the case sub judice, Appellee’s judgment of sentence became final on

February 24, 1986, which was ninety days after our Supreme denied him

further review and he did not petition for a writ of certiorari. See U.S. S. Ct.

R. 13; 42 Pa.C.S.A. § 9545(b)(3). Therefore, he had one year from that date

to file a petition for collateral relief unless he pleaded and proved that a

timeliness exception applied.             See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

Accordingly, Appellee’s current petition, filed on July 23, 2014, is untimely on

its face unless he pleads and proves one of the statutory exceptions to the

time-bar.

        Section 9545 of the PCRA provides only three exceptions that allow for

review of an untimely PCRA petition, including the discovery of previously

unknown facts that would have supported a claim. See id. at § 9545(b)(1)(ii).

A PCRA petition invoking the statutory exception must “be filed within 60 days

of the date the claim could have been presented.” Id. at § 9545(b)(2).

        Here, the Commonwealth argues that “[t]he court wrongly found that

[Appellee] satisfied the newly-discovered facts exception to the one-year

PCRA jurisdictional time-bar[.]” (Commonwealth’s Brief, at 11). We agree.




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       Appellee claims the applicability of the newly discovered facts exception

based on his discovery of statements made by Bell at his March 5, 1993 PCRA

hearing in which he provided “an entirely new account” of the crime, and “a

new motive for his testimony—namely, the strategic desire to evade a

homicide conviction by conceding a robbery conviction[.]” (Appellee’s Brief,

at 37-38; PCRA Ct. Op., at 42). This claim lacks merit.

              Exception (b)(1)(ii) requires [a] 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. [T]his Court rejected [a] petitioner’s
       argument that a witness’s subsequent admission of alleged facts
       brought a claim within the scope of exception (b)(1)(ii) even
       though the facts had been available to the petitioner beforehand.
       . . . [T]his Court more recently held that an affidavit alleging
       perjury did not bring a petitioner’s claim of fabricated testimony
       within the scope of exception (b)(1)(ii) because the only “new”
       aspect of the claim was that a new witness had come forward to
       testify regarding the previously raised claim. Specifically, we held
       that the fact that the petitioner “discovered yet another conduit
       for the same claim of perjury does not transform his latest source
       into evidence falling within the ambit of [Section] 9545(b)(1)(ii).”

Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. Super. 2008)

(footnote, citations and most quotation marks omitted; emphases in

original).2

____________________________________________


2 Although we agree with the PCRA court that courts have often used “newly
discovered facts” and “after discovered evidence” interchangeably, its
implication that the terms should be used that way and require the same
analysis is incorrect. (See PCRA Ct. Op., at 30 n.7). In Commonwealth v.
Brown, 111 A.3d 171, 176 (Pa. Super. 2015), appeal denied, 125 A.3d 1197



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       Here, although Bell’s PCRA testimony, given ten years after trial, lacked

the detail of his trial testimony, it was materially consistent with his trial

testimony and defense. Specifically, he consistently maintained that although

he admittedly conspired to rob the victims, it was not his intent to murder or

assault them, and that, in fact, he was in shock after Appellee stabbed them.

(See N.T. Trial, 4/11/83, at 653-54, 656-59, 671-72); (See N.T. Bell PCRA

Hearing, 3/05/93, at 9, 11-12, 25).3 Hence, since trial, Appellee knew Bell’s

version of the events, and motivation for providing the trial testimony, and it

is not a newly discovered fact. See Marshall, supra at 720.

       Also, even if it could be considered a newly discovered fact, Bell’s PCRA

testimony was not unknown. It is well-settled that “matters of public record

are not unknown[,]” and therefore cannot form the basis for a PCRA timeliness


____________________________________________


(Pa. 2005), we observed that the jurisdictional timeliness exception at Section
9545(b)(1)(ii):

       has often mistakenly been referred to as the after-discovered
       evidence exception[,] [which is found at 42 Pa.C.S.A. §
       9543(a)(2)(vi).] . . . [A]s an initial jurisdictional threshold, Section
       9545(b)(1)(ii) requires a petitioner to allege and prove that there
       were facts unknown to him and that he exercised due diligence in
       discovering those facts. Once jurisdiction is established, a
       PCRA petitioner can present a substantive after-discovered-
       evidence claim.

Brown, supra at 176 (citations and quotation marks omitted; emphases
added).

3Based on our review, we also conclude that the record does not support the
court’s factual finding that Bell’s PCRA testimony offered a “new story” of the
events. (PCRA Ct. Op., at 42); see Green, supra at 175.

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exception. Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert.

denied, 134 S. Ct. 2695 (2014) (citations omitted). In Commonwealth v.

Burton, 158 A.3d 618 (Pa. 2017), our Supreme Court carved out an exception

to this general rule, holding that it “does not apply to pro se prisoner

petitioners[.]” Burton, supra at 620.

       Instantly, the Commonwealth maintains that the PCRA court erred in

applying the exception in Burton to Appellee, and in finding that, therefore,

Bell’s post-conviction testimony was unknown to him. We agree.

       Here, the parties stipulated that Bell’s March 5, 1993 testimony is a

matter of public record. (See N.T. PCRA Hearing, 12/05/17, at 160-61). On

October 18, 1995, and January 13, 1998, this Court issued decisions related

to Bell’s hearing in which we referenced his PCRA testimony.4 On November

16, 2007, Appellee filed his third pro se PCRA petition. On September 30,


____________________________________________


4 In our October 18, 1995 decision, we observed, in pertinent part, that Bell’s
trial defense “[was] that he was innocent of the second-degree murder charge
because     [Appellee]    killed  the    victim   for   personal     motives[.]”
Commonwealth v. Bell, No. 2510 Phil. 1994, unpublished memorandum, at
*5 (Pa. Super. filed Oct. 18, 1995). In his PCRA petition, Bell claimed counsel
was ineffective for failing to “request[] the court to instruct the jury that
[Appellee’s] killing must have been committed in furtherance of the underlying
felony to convict [Bell] of second-degree murder.” Id. at *10. We agreed
with Bell, and remanded the matter for the PCRA court to consider the
prejudice that the Commonwealth would suffer in its ability to re-try Bell due
to his six-year delay in requesting relief. See id. at 12. In our January 13,
1998 opinion, we affirmed the PCRA court’s denial of Bell’s petition on the
ground that the Commonwealth would be prejudiced where the only
eyewitness to the crime was unavailable. See Commonwealth v. Bell, 706
A.2d 855, 859 (Pa. Super. 1998), appeal denied, 732 A.2d 611 (Pa. 1998).


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2008, the PCRA court appointed counsel, who filed an amended petition on

March 12, 2010, and represented Appellee until our Supreme Court denied

review of the PCRA court’s decision on January 10, 2013.

      Based on the foregoing, for over four years, from September 30, 2008

until January 10, 2013, Appellee was not a pro se prisoner, and Bell’s

testimony could not be considered “unknown.”       Hence, we agree with the

Commonwealth and conclude that the record does not support the PCRA

court’s finding that Burton applied to Appellee to render the public records

presumption inapplicable to him. See Green, supra at 175; Taylor, supra

at 1248.

      Moreover, even if Bell’s PCRA testimony contained after-discovered

facts, and Appellee could avail himself of the Burton holding, he failed to

comply with section 9545(b)(2) of the PCRA. See 42 Pa.C.S.A. § 9545(b)(2)

(“Any petition invoking an exception provided in paragraph (1) shall be filed

within 60 days of the date the claim could have been presented.”).

Specifically, Appellee concedes that he discovered this Court’s 1998 opinion

regarding Bell’s PCRA testimony on June 13, 2013. (See Appellee’s Brief, at

15). Therefore, he had sixty days, until August 12, 2013, to file his petition

based on these alleged newly discovered facts.          See 42 Pa.C.S.A. §

9545(b)(2). However, he failed to file his petition until July 23, 2014, over a

year after the fact’s discovery.   Hence, Appellee failed to comply with the




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PCRA’s timeliness requirements, and the PCRA court lacked jurisdiction to

review his claim. See Garcia, supra at 1061-62; 42 Pa.C.S.A. § 9545(b)(2).

      Finally, we note that the PCRA court erred when it found that Appellee

exercised due diligence by attempting to find further evidence (i.e., the

transcript itself) in support of the fact that Bell testified at a PCRA hearing

before filing his PCRA petition. (See PCRA Ct. Op., at 20). Although the court

made this finding based on a credibility determination, we are not bound by

that because, as a matter of law, this is not the due diligence contemplated

by the PCRA. The PCRA provides a mechanism for seeking discovery after

the petition has been filed if the petitioner can establish exceptional

circumstances. See Pa.R.Crim.P. 902(E)(1). Prior to that time, “[n]o court

shall have authority to entertain a request for any form of relief in

anticipation of the filing of a petition under this subchapter.” 42 Pa.C.S.A. §

9545(a) (emphasis added).

      In fact, in this case, consistent with section 9545 and Rule 902(E)(1),

the record reflects that after Appellee filed his PCRA petition, the PCRA court

ordered the Commonwealth to produce the transcript of Bell’s PCRA hearing.

(See Order, 8/30/17). Therefore, we conclude that the PCRA court committed

an error of law when it found Appellee exercised due diligence because he

attempted to obtain discovery in support of his PCRA claim before filing it,

where he was not entitled to the discovery in anticipation of filing the PCRA

petition. See 42 Pa.C.S.A. § 9545(a). Hence, for all of the foregoing reasons,


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we are constrained to conclude that the PCRA court erred as a matter of law

when it found that Appellee pleaded and proved a timeliness exception to the

PCRA. See Green, supra at 175.5

       Accordingly, we reverse its order granting PCRA relief, vacating

Appellee’s judgment of sentence, and ordering a new trial.

       Order reversed and judgment of sentence reinstated. Case remanded.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/29/18




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5 Additionally, we note the PCRA court vacated Appellee’s judgment of
sentence on the basis that this Court, in Bell’s appeal, concluded that the
second-degree murder jury instruction was prejudicial. (See PCRA Ct. Op.,
at 47). However, because Appellee has failed to plead and prove a timeliness
exception to support this claim, the PCRA court lacked jurisdiction to consider
this issue.

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