42 Pa.C.S. §9545(b)(1)(ii) exception to PCRA timeliness rule if not the same as the after discovered evidence rule of 42 Pa.C.S. § 9543(a)(2); 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 PCRA does not apply to pro se prisoner petitioners

Commonwealth v. Burton, 9 WAP 2016 (Pa. 3/28/2017)

Corrections officer interviewed several inmates after finding an inmate dead under his cot with a ligature around his neck at the Allegheny County jail in 1993. Information form one of the interviewees implicated Mr. Burton, but when he was interviewed he denied even being in the deceased’s cell, although another inmate said he had been then. Other inmates reported that Mr Burton and another inmate were struggling with the deceased’s in his cell right before his death. And yet another reported that Mr. Burton had said he need to “fix” the deceased. Mr. Burton was tried for and convicted of murder in 1993. A co-defendant was convicted only of conspiracy. Mr. Burton’s conviction affirmed on appeal. Two subsequent PCRA petitions were unsuccessful.

In 2013, Mr. Burton received a letter form the Pennsylvania Innocence Project that had a 2009 expungement motion from the co-defendant wherein he claimed he murdered the vicim in self-defense. Within 60 days of receiving the letter, Mr. Burton filed a PCRA petition citing the expungement petition, claiming 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. Supporting his claim that the timeliness exception of 42 Pa.C.S. §9545(b)(1)(ii) he cited Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007) (an incarcerated PCRA litigant is not automatically deemed to have notice of dismissal of his case due to his lawyer failing to file a brief when counsel did not tell him of the dismissal”; §9545(b)(i)(ii) is not an “after discovered evidence exception”). The PCRA court dismissed the petition on timeliness grounds, but the Superior Court (in both panel and en banc divided opinions) reversed and reinstated the petition.

A thoughtful opinion by Justice Todd affirmed the Superior Court, she first went to lengths to state that 42 Pa.C.S. §9545(b)(i)(ii) is not the traditional “after discovered evidence” rule. To qualify for it, a petition needs to show “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.” Using the Statutory Construction Act, 1 Pa.C.S. §§ 1501 et seq., Justice Todd wrote, “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.” In so doing, the Court rejected holdings in Commonwealth v. Lark, 746 A.2d 585, 588 n.4 (Pa. 2000) and cases citing it that matters of public record for more than sixty days prior to filing a petition cannot be unknown to a petition under §9545(b)(1)(ii) as pronouncements underwritten by little analysis. Also, answering the dissenters arguments, Justice Todd discussed the inadequacies of prison law libraries, and prisoners lack of access to up to date court dockets. (This part of the opinion was based on an amicus brief filed by a group call “Pennsylvania Exonorees.” I have not been able to find this brief anywhere online. If someone does and says me the link I will post it here. From Justice Todd’s description it is a wonderful “Brandeis brief” about the difficulty inmates have getting access to information about their cases.) The final holding: “[I]n 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.”

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