J-S19026-19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
            v.                            :
                                          :
                                          :
MUWSA GREEN                               :
                                          :
                   Appellant              :   No. 2002 EDA 2018

            Appeal from the PCRA Order Entered May 29, 2018
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0002785-2008,
                         CP-51-CR-0014817-2007

BEFORE:   LAZARUS, J., KUNSELMAN, J., and STRASSBURGER*, J.

CONCURRING MEMORANDUM BY STRASSBURGER, J.:FILED JUNE 17, 2019

     Because the posture of Appellant’s case is similar substantially to the

precedent cited by the Majority, I am constrained to join the Majority’s

memorandum       quashing   Appellant’s   appeal.    Majority   at   5   (citing

Commonwealth v. Williams, __ A.3d __, 2019 WL 1272699 (Pa. Super.

2019) (quashing appeal listing multiple docket numbers filed pro se by

incarcerated PCRA petitioner three days after release of Commonwealth v.

Walker, 185 A.3d 969 (Pa. 2018)). I write separately to express my belief

that Williams is not congruent with the Supreme Court’s decision in

Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017).

     In Burton, our Supreme Court examined the types of information to

which prisoners have access while incarcerated.         The impetus to such

examination was to determine the scope of an exception to the jurisdictional


*Retired Senior Judge assigned to the Superior Court.
J-S19026-19

timeframe for filing a petition pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. By way of background, the PCRA permits

petitioners to file a petition outside of the statute’s general timeframe if the

petitioner is able to plead and prove the discovery of facts that were

unknown to the petitioner and could not have been ascertained with due

diligence.    42 Pa.C.S. § 9545(b)(1)(ii).       A presumption exists that

information in the public domain cannot be “unknown” for the purposes of

subsection 9545(b)(1)(ii).   In other words, publically available information

will be deemed to be known by the petitioner for purposes of determining

whether subsection 9545(b)(1)(ii) applies, whether or not the petitioner had

actual knowledge of such information.

      Burton, supported by former prisoners participating as amici, argued

that it was unreasonable to apply this presumption to him due to his lack of

access to information in the public domain as a result of his incarceration.

Our Supreme Court found this argument to be persuasive. The Court noted

that the prisoners’ access to the public domain is “distinctly compromised,”

and summarized at length the arguments set forth by amici to support this

conclusion. Burton, 158 A.3d at 636-38. For example, according to amici,

prisoners do not have unfettered access to the internet; instead, they must

“view materials which have been loaded onto the computer from a CD–ROM

and which are periodically updated.”     Id. at 636.   Many prisoners do not

know how to use computers, particularly if they entered prison many years



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ago. Id. Furthermore, “prisoners have limited physical access to prison law

libraries, as they must submit a request and be granted permission to use

the library.”    Id. at 637.     Obtaining information outside of prison in

hampered by the inmates’ inability to afford to pay for “phone calls,

stationery, envelopes, postage, and copying fees,” and restrictions on who

the prisoners may contact. Id. Library staff do not necessarily have legal

training or experience, and are prohibited from providing legal advice to

inmates. Id. Accordingly, the prisoners’ lack of access to information led

the Supreme Court to hold the presumption that information in the public

domain is known to PCRA petitioners cannot apply to incarcerated

petitioners. Id. at 638.

      Burton arises in a different context, but the heart of the issue is the

same. Pro se incarcerated litigants simply do not have access to information

in the same manner as other litigants. Appellant’s notice of appeal was filed

on June 18, 2019; it is likely he and other prisoners in his position were not

aware that Walker had been decided.         It is unfair and unreasonable for

courts to expect incarcerated pro se litigants to know that they needed to

comply with Walker’s mandates before they could even learn that Walker

existed.1   Were it not for Williams, based on the concerns recognized in



1
 I recognize that Burton’s holding applies specifically to information in the
public domain and not to judicial decisions. But this largely is for reasons
unrelated to prisoner’s access to information; instead, it is because a judicial
decision is not a “fact” for purposes of subsection 9545(b)(1)(ii),
(Footnote Continued Next Page)

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Burton, I would not demand strict compliance with Walker’s holding by

incarcerated pro se litigants until a reasonable time had passed enabling

those litigants to have the opportunity to become aware of Walker.        C.f.

Matter of M.P., 204 A.3d 976 (Pa. Super. 2019) (recognizing Walker’s

mandate but addressing merits of single appeal from different docket

numbers in case involving termination of parental rights). But alas, I must

concur with the Majority that we must quash this appeal, despite the harsh

result. See Commonwealth v. Beck, 78 A.3d 656, 659 (Pa. Super. 2013)

(“This panel is not empowered to overrule another panel of the Superior

Court.”).




(Footnote Continued)   _______________________

Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013), and the
statutory time-bar exception that does apply to judicial decisions “precludes
consideration of the petitioner’s knowledge” of the decision. Burton, 158
A.3d at 636 (emphasis removed). Even though the petitioner’s knowledge is
not relevant, it is notable that the PCRA provides petitioners with an
opportunity to discover a judicial decision. Commonwealth v. Lee, 206
A.3d 1, 6 n.8 (Pa. Super. 2019) (en banc) (explaining that PCRA petitioners
have 60 days or one year after a judicial decision to discover its existence
and to file a petition relying upon it, depending on which version of the PCRA
applies). Therefore, I still find the analysis in Burton to be pertinent to
courts’ expectations for pro se litigants’ compliance with Walker.


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