J-S40012-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LARRY L. BELL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1618 EDA 2021

Appeal from the PCRA Order Entered August 5, 2021

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0402971-1982

BEFORE: PANELLA, P.J., STABILE, J., and KING, J.

MEMORANDUM BY PANELLA, P.J.: FILED MARCH 24, 2023

Larry Bell appeals from the order entered in the Philadelphia County 

Court of Common Pleas on August 5, 2021, dismissing his third petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-

9546. On appeal, Bell contends he is entitled to an evidentiary hearing that 

had been granted by a prior common pleas court judge assigned to this 

matter. As we find the prior judge had no jurisdiction to grant an evidentiary 

hearing due to the untimeliness of Bell’s PCRA petition, we affirm. 

We previously summarized the factual and procedural history of this 

case on another appeal as follows: 

Larry Bell and Elwood Small conspired to rob Patrick Blake, a drug 

dealer from whom Bell had recently purchased marijuana. After 

arming themselves, Bell with a shotgun and Small with a twelveinch kitchen knife, the two men went to Blake's apartment [] in 

Philadelphia and demanded money from him. Bell ordered Small 

to wake the victim, John McCrary, who was asleep. Blake was 
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stabbed by Small, but still managed to escape through a ground 

floor window. McCrary, attempting to wrest the gun from Bell, 

struggled with Bell before Small intervened. Small fatally stabbed 

McCrary. Meanwhile, residents outside the building came to 

Blake's aid and notified the police. Bell and Small fled from the 

apartment, carrying a small television set.

[On April 13, 1983,] Larry Bell and co-defendant Small were tried 

before a jury and convicted of second-degree murder, robbery, 

aggravated assault and criminal conspiracy. Bell was sentenced to 

life imprisonment on the murder conviction and to concurrent 

terms of imprisonment of two and one-half to five years for 

aggravated assault and conspiracy. Bell appealed to this court, 

which affirmed the judgment of sentence.[1] No petition for 

allocatur was filed.

On March 1, 1990, Bell filed a PCRA petition. After two evidentiary 

hearings, one on March 5, 1993 and one on July 12, 1993, the 

PCRA court denied Bell's petition. Bell filed an appeal to [the 

Superior Court], raising several claims of ineffectiveness of 

counsel and one claim of after-discovered evidence. In one of his 

ineffectiveness claims, Bell argued that counsel was ineffective for 

failing to object to the jury charge on second-degree murder. In 

its charge, the court stated as one of the elements of seconddegree murder that the jury must find that the killing was done 

“in the course of a robbery.” Bell argued that the proper charge 

states that the killing be “in furtherance of a robbery.” Bell [argued 

for the first time] that his co-defendant killed the victim for 

personal reasons; he asserted that co-defendant Small's wife had 

had an adulterous affair with the victim, John McCrary. Bell 

asserted, therefore, that the murder was not done in furtherance 

of the underlying felony (robbery).

[The Superior Court] determined that Bell's claim did affect the 

truth-determining process and, therefore, the claim was 

cognizable under the PCRA. However, because Bell had waited six 

years to file his PCRA petition, [the Superior Court] remanded, 

pursuant to 42 Pa.C.S.A. 9543(b), for a determination of whether 

the Commonwealth would be prejudiced in its ability to retry Bell. 

[The Superior Court] ordered that if prejudice were found, the 

____________________________________________

1 See Commonwealth v. Bell, 494 A.2d 476 (Pa. Super. 1985) (unpublished 

memorandum).
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order denying post-conviction relief should be reinstated; if 

prejudice were not found, a new trial would be ordered.

... 

Pursuant to this court's order, an evidentiary hearing was held on 

August 5, 1996. At that hearing, Detective Peter Dailey testified 

regarding his efforts to locate witnesses who had testified at trial. 

He testified that Patrick Blake, the Commonwealth's main witness, 

had left two forwarding addresses, both in New York City. 

Detective Dailey sent certified mail to both addresses; both letters 

were returned as undeliverable. Detective Dailey also attempted 

to contact Blake through the Department of Motor Vehicles and 

the welfare department, with no success. 

Detective Dailey learned that the victim's father, Carl McCrary, 

had passed away; the victim's mother had no information about 

Blake's whereabouts. Additionally, Detective Dailey contacted the 

funeral director who had buried the victim. The funeral director 

indicated that he did not know the victim's friends. Detective 

Dailey also attempted to contact two other witnesses without 

success: Marcella McCullough and Willa Mae Lockhart. Another 

witness, Walter Anderson, was on probation and, at the time of 

the evidentiary hearing, had not reported to his probation officer 

in five months. 

The only two witnesses available for retrial were Carl Day, who 

saw Bell fleeing from the scene, and Richard Spraggins, who was 

with Blake after the incident. We note, as did the trial court, that 

the defense presented no rebuttal, and neither party offered any 

information as to the whereabouts of these witnesses. 

Following the hearing, the court determined that in light of the 

lack of available witnesses, in particular the key eyewitness, 

Patrick Blake, the Commonwealth would be prejudiced in its 

efforts to retry Bell. The court, therefore, reinstated the order 

denying collateral relief. 

Commonwealth v. Bell, 706 A.2d 855 (Pa. Super. 1998) (citations omitted). 

Bell appealed and this Court affirmed the order denying collateral relief on 
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January 13, 1998, and our Supreme Court denied allowance of appeal. See 

id., appeal denied, 732 A.2d 611 (Pa. 1998).

In 2011, Bell filed a second PCRA petition, in which he claimed to have 

recently learned that the trial judge had coerced a juror into rendering a guilty 

verdict. The PCRA court denied relief on January 6, 2012. We affirmed the 

denial on appeal and our Supreme Court denied allowance of appeal. See 

Commonwealth v. Bell, No. 363 EDA 2012 (Pa. Super. Filed August 10, 

2012) (unpublished memorandum), appeal denied, 60 A.3d 566 (Pa. 2013).

On May 9, 2014, Bell filed the instant PCRA petition pro se. Bell 

subsequently filed multiple supplemental and amended petitions. In an 

amended petition filed on April 24, 2018, Bell asserted that while doing 

research in the prison law library, he “stumbled across” an opinion from his 

co-defendant’s case, which referenced testimony from an investigator who 

stated he was able to locate all of the trial witnesses including the key 

eyewitness, Blake. He asserted this “new fact” entitled him to an evidentiary 

hearing. The Commonwealth filed a motion to dismiss, arguing the petition 

was untimely and that Bell failed to plead an exception to the PCRA time-bar. 

On June 18, 2019, the PCRA court ordered an evidentiary hearing be held. 

The evidentiary hearing was rescheduled several times. In the 

meantime, before an evidentiary hearing was held, the case was transferred 

to a new Judge, the Honorable Scott DiClaudio. On March 11, 2020, present 

counsel was appointed, and subsequently filed an amended petition, in which 
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Bell again requested an evidentiary hearing based on newly discovered facts 

related to Blake’s whereabouts. The Commonwealth responded to the 

amended petition, arguing that based on the “law of the case doctrine”, the 

necessity for an evidentiary hearing should be reconsidered in order to uphold 

the Superior Court’s prior 1998 ruling in this matter. After issuing notice of its 

intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907, 

the PCRA court dismissed the petition. This timely appeal followed. 

“Our standard of review for issues arising from the denial of PCRA relief 

is well-settled. We must determine whether the PCRA court’s ruling is 

supported by the record and free of legal error.” Commonwealth v. Presley, 

193 A.3d 436, 442 (Pa. Super. 2018) (citation omitted). Furthermore, “a PCRA 

petitioner is not automatically entitled to an evidentiary hearing.” 

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014). Rather,

It is within the PCRA court's discretion to decline to hold a hearing 

if the petitioner's claim is patently frivolous and has no support 

either in the record or other evidence. It is the responsibility of 

the reviewing court on appeal to examine each issue raised in the 

PCRA petition in light of the record certified before it in order to 

determine if the PCRA court erred in its determination that there 

were no genuine issues of material fact in controversy and in 

denying relief without conducting an evidentiary hearing.

Id. (citation omitted).

Bell raises two issues for our review: 

1. The PCRA Court erred when it denied an evidentiary hearing 

that had been previously granted by Judge Genece Brinkley on 

6/18/19. 
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2. The PCRA Court erred when it denied [Bell]’s newly discovered 

evidence claim. 

Appellant’s Brief, at 14. We find resolution of the second issue is relevant to 

resolution of Bell’s first issue, and therefore address these issues together.

In its brief, the Commonwealth agrees with Bell’s first claim, and in 

doing so cites to the law of the case doctrine again, but now for the opposite 

proposition that Bell is entitled to an evidentiary hearing. The issue, as distilled 

from Bell’s and the Commonwealth’s briefs, is whether, under the coordinate 

jurisdiction rule - a rule encompassed within the law of the case doctrine -

Judge DiClaudio was required to proceed with the evidentiary hearing that had 

been granted by the previous PCRA Judge. 

Generally, the coordinate jurisdiction rule commands that upon 

transfer of a matter between trial judges of coordinate jurisdiction, 

a transferee trial judge may not alter resolution of a legal question 

previously decided by a transferor trial judge. More simply stated, 

judges of coordinate jurisdiction should not overrule each other's 

decisions.

Zane v. Friends Hosp., 836 A.2d 25, 29 (Pa. 2003) (citations omitted). 

“Consistent with the law of the case doctrine, the coordinate jurisdiction rule 

serves to protect the expectations of the parties, to insure uniformity of 

decisions, to maintain consistency in proceedings, to effectuate the 

administration of justice, and to bring finality to the litigation.” Id. 

The Court in Zane made clear, however, that the general prohibition 

against revisiting the prior holding of a judge of coordinate jurisdiction is not 

absolute. See id. Of relevance here, “an exception is permitted where the 
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prior holding was clearly erroneous and would create a manifest injustice if 

followed.” Id. 

The purpose for this limited exception is largely self-evident. To 

accede to a coordinate judge's order that is clearly erroneous 

would be not only to permit an inequity to work on the party 

subject to the order, but would allow an action to proceed in the 

face of almost certain reversal on appellate review. Moreover, the 

requirement that the prior holding also create a manifest injustice 

serves as a significant curb on the exception so that it would apply 

to only those situations in which adhering to the prior holding 

would be, in essence, plainly intolerable.

In sum, while a judge must in most circumstances defer to the 

prior decision of another judge of coordinate jurisdiction, he or she 

is not required to do so in the limited and exceptional situation in 

which, inter alia, the prior judge's order is clearly erroneous and 

would result in a manifest injustice. 

Id. at 29-30. 

Here, we find the original PCRA Judge’s order granting an evidentiary 

hearing on Bell’s petition was clearly erroneous as his PCRA petition was 

untimely filed and Bell failed to meet his burden to plead and prove an 

exception to the PCRA time-bar. 

The statutory requirement that a PCRA petition be filed within one year 

of the date the judgment of sentence becomes final is a “jurisdictional 

deadline” and a PCRA court may not ignore the untimeliness of a petition to 

address the merits of the issues raised therein. Commonwealth v. 

Whiteman, 204 A.3d 448, 450 (Pa. Super. 2019).

A PCRA petition, including a second or subsequent one, must be 

filed within one year of the date the petitioner’s judgment of 

sentence becomes final, unless he pleads and proves one of the 

three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A 
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judgment becomes final at the conclusion of direct review by this 

Court or the United States Supreme Court, or at the expiration of 

the time for seeking such review. The PCRA’s timeliness

requirements are jurisdictional; therefore, a court may not 

address the merits of the issues raised if the petition was not 

timely filed. The timeliness requirements apply to all PCRA 

petitions, regardless of the nature of the individual claims raised 

therein. The PCRA squarely places upon the petitioner the burden 

of proving an untimely petition fits within one of the three 

exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (internal citations 

and footnote omitted). 

Bell’s judgment of sentence became final in 1985, thirty days after this 

Court affirmed his judgment of sentence. See 42 Pa. C.S.A. § 9545(b)(3) 

(judgment of sentence becomes final “at the conclusion of direct review ... or 

at the expiration of time for seeking the review”). The instant petition – filed 

approximately thirty years later – is patently untimely. Therefore, the PCRA 

court lacked jurisdiction to review Bell’s petition unless Bell was able to 

successfully plead and prove one of the statutory exceptions to the PCRA’s 

time-bar. See 42 Pa. C.S.A. § 9545(b)(1)(i)-(iii). 

The PCRA provides three exceptions to its time-bar: 

(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 

(iii) the right asserted is a constitutional right that was recognized 

by the Supreme Court of the United States or the Supreme Court 
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of Pennsylvania after the time period provided in this section and 

has been held by that court to apply retroactively. 

42 Pa. C.S.A. § 9545(b)(1)(i)-(iii). Exceptions to the time-bar must be pled in 

the petition, and may not be raised for the first time on appeal. See 

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007); see also

Pa.R.A.P. 302(a) (providing that issues not raised before the lower court are 

waived and cannot be raised for the first time on appeal). 

Bell claims he met the requirements of Section 9545(b)(1)(ii), i.e., the 

newly discovered fact exception to the PCRA’s time-bar, based on his assertion 

that the location of the key witness, Blake, has been discovered. 

Section 9545(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.” See 

Commonwealth v. Bennett, 930 A.2d 1264, 1270-72 (Pa. 2007). “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 714, 720 (Pa. 2008) (citation and brackets omitted). “Due 

diligence demands that the petitioner take reasonable steps to protect his own 

interests. A petitioner must explain why he could not have learned of the new 

fact(s) earlier with the exercise of due diligence.” Commonwealth v. 

Williams, 35 A.3d 44, 53 (Pa. Super. 2011) (citations omitted). Further, the 

“fact” on which the petitioner predicates his claim to an exception to the timebar must bear some logical connection to a plausible claim for relief. See 
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Commonwealth v. Robinson, 185 A.3d 1055, 1062 (Pa. Super. 2018) (en 

banc).

Preliminarily, we must address whether Bell’s underlying claim is 

relevant to a claim warranting PCRA relief. We recognize that a merits-based 

analysis is inappropriate at this stage. See Commonwealth v. Bennett, 930 

A.2d 1264, 1271 (Pa. 2007); see also Commonwealth v. Cox, 146 A.3d 

221, 227 (Pa. 2016). However, “[r]ecognizing the nature of the underlying 

claim - as distinguished from assessing its merits - is necessary to determine 

whether Appellant acted with due diligence in unearthing the newlydiscovered facts.” Robinson, at 1062. 

[W]hile Bennett and its progeny instruct courts to avoid analyzing 

the merits of the underlying claim, we believe that principle cannot 

go so far as to altogether preclude the courts from considering the 

claim the petitioner seeks to raise in determining whether an 

evidentiary hearing is warranted. As an extreme example, 

suppose an incarcerated PCRA petitioner asserted in an untimely 

petition that he recently discovered that the Houston Astros won 

the 2017 World Series. It would defy reason to suggest that a 

PCRA court must hold an evidentiary hearing to carefully apply the 

newly-discovered fact inquiry before considering how that fact 

could possibly matter. Cox stated that “The function of a section 

9545(b)(1)(ii) analysis is that of a gatekeeper.” A gatekeeping 

function contemplates that there may be a reason to open the 

gate.

Id. at 1061-62 (some citations omitted). 

Similar to Robinson, the claim here is not as extraneous as the above 

example. Nevertheless, we can find no relevant connection between finding 

the current address of a trial witness thirty years after trial, and how that fact 

ultimately matters in a third, untimely, PCRA petition. With this in mind, we 
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proceed to review Bell’s claim to determine whether an evidentiary hearing 

was warranted. 

Here, Bell’s underlying claim is that he is now due a new trial because 

the Commonwealth would no longer be prejudiced by a new trial. Bell seeks 

to get a new trial thirty years after his judgment of sentence became final 

based on the “fact” that an address has been found for the key witness at 

trial, Blake. Notably, other than the bold assertion that an address linked to 

Blake has been discovered, there is no indication of whether it has been 

verified that Blake currently resides at that location, that he has been 

contacted in any manner, or that he is willing or able to testify at this time.

On its own, this failure is sufficient to affirm the denial of PCRA relief. At 

this point, it is pure conjecture that: the address linked to Blake in 2017 would 

allow the Commonwealth to contact Blake; Blake is available to testify; and 

Blake is still capable of credibly testifying to events that happened in 1982. In 

light of these circumstances, we conclude Bell has failed to allege sufficient 

facts to support his claim he is entitled to a new trial at this time. 

Even if we were to overlook these deficiencies, we would conclude that 

Bell has failed to establish the newly discovered alleged address of Blake is 

sufficient to qualify as an exception to the PCRA’s time-bar. Bell’s claim is 

based on our 1998 disposition which ended the proceedings on his first PCRA 

petition. The only connection between the alleged current address of Blake, 

the newly discovered “fact” Bell relies on to confer jurisdiction, and any 
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substantive claim Blake would seek to raise, is Blake’s bold claim that the 

Commonwealth would no longer be prejudiced to retry Bell.2 

In 1996, pursuant to 42 Pa. C.S.A. 9543(b),3this Court remanded this 

case to the PCRA court for a determination of whether the Commonwealth 

would be prejudiced in its ability to retry Bell due to Bell waiting six years after 

his judgment of sentence became final to file his first PCRA petition. On 

remand, the PCRA court determined that the Commonwealth would be 

prejudiced by a retrial due to various reasons, including the unavailability of 

Blake. Bell timely appealed that decision to this Court. 

On appeal, Bell argued that the PCRA court’s finding that the 

Commonwealth would be prejudiced even though he had established eligibility 

for relief under the PCRA pursuant to Section 9543(b), thus precluding retrial, 

resulted in a denial of due process. We highlighted that Bell disregarded the 

context in which he raised his constitutional arguments. Specifically, that “[i]n 

the context of a post-conviction petition, the issue of delay, and in this case 

unexplained delay, which impacts upon the Commonwealth’s proofs, is a

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2

 Bell conveniently disregards the fact that another two decades has passed 

since we first found his claim was prejudicially delayed by seven years, and 

that numerous other factors would likely affect a retrial at this time. 

3 “Even if the petitioner meets the requirements of subsection (a), the 

petitioner shall be dismissed if it appears that, because of a delay in filing the 

petition, the Commonwealth had been prejudiced either in its ability to 

respond to the petition or in its ability to re-try the petitioner.” 42 Pa. C.S.A. 

9543(b). 
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factor in assessing the merit of a claim raised in a post-conviction petition.” 

Bell, 706 A.2d at 861 (citations omitted). While delay cannot be considered 

alone, it is a relevant factor to be considered among others in determining 

whether or not a petition is frivolous: 

The long delay is a relevant consideration in this review, and 

where there is no justification for the delay, the court may take a 

more stringent approach to the allegations raised in the petition, 

especially when the delay has resulted in problems of proof for the 

Commonwealth. Particularly, when the opportunity to have raised 

the issues earlier would have provided a more meaningful review 

with a greater capacity to reconstruct the record through 

testimony and other evidence, delay will play a much heavier role 

than otherwise. 

See Commonwealth v. McAndrews, 520 A.2d 870, 872 (Pa. Super. 1987). 

We therefore found that Bell’s claim, which we determined was essentially a 

sufficiency of the evidence claim, was not cognizable in the context of a PCRA 

petition after an unexplained extensive delay. 

Accordingly, the denial of collateral relief at that time was based on Bell’s 

unexplained delay of over six years in filing his first PCRA petition, which 

ultimately rendered his claim meritless. That decision was final and cannot be 

reopened decades later simply because an address was found for a witness. 

While Blake’s unavailability was noted to be important in making that panel’s 

decision, this fact was ultimately just one factor, albeit a very influential one, 

in concluding that Bell’s claims became meritless due to the unexplained 

delay:

At the [hearing on remand], Detective Parker Dailey 

testified regarding his efforts to locate witnesses who had testified 
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at trial. He testified that Patrick Blake, the Commonwealth’s main 

witness, had left two forwarding addresses, both in New York City. 

Detective Dailey sent certified mail to both addresses; both letters 

were returned as undeliverable. Detective Dailey also attempted 

to contact Blake through the Department of Motor Vehicles and 

the welfare department, with no success.

Detective Dailey learned that the victim’s father, Carl 

McCrary, had passed away; the victim’s mother had no 

information about Blake’s whereabouts. Additionally, Detective 

Dailey contacted the funeral director who had buried the victim. 

The funeral director indicated that he did not know the victim’s 

friends. Detective Dailey also attempted to contact two other 

witnesses without success: Marcella McCullough and Willa Mae 

Lockhart. Another witness, Walter Anderson, was on probation 

and, at the time of the evidentiary hearing, had not reported to 

his probation officer in five months.

The only two witnesses available for retrial were Carl Day, 

who saw Bell fleeing from the scene, and Richard Spraggins, who 

was with Blake after the incident. We note, as did the [PCRA] 

court, that the defense presented no rebuttal, and neither party 

offered any information as to the whereabouts of these witnesses.

Following the hearing, the court determined that in light of 

the lack of available witnesses, in particular the key eyewitness, 

Patrick Blake, the Commonwealth would be prejudiced in its 

efforts to retry Bell. The court, therefore, reinstated the order 

denying collateral relief.

Bell, 706 A.2d at 858.

Even if the connection between Bell’s newly discovered fact and his 

underlying claim were relevant for PCRA relief, we would nevertheless find he 

failed to exercise due diligence because he failed to plead or prove why he 

was not able to learn this information at an earlier time. Bell knew that he was 

not granted a new trial, at least in part, to the unavailability of Blake in 1998. 

Bell did not plead what efforts he undertook to find Blake in the intervening 
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years. Arguably, even if he had, it would not have been enough to satisfy due 

diligence. Bell was put on notice as early as 1996 that his retrial was 

contingent on locating key witnesses from the first trial, such as Blake, when 

this Court remanded for an evidentiary hearing on whether retrial would 

prejudice the Commonwealth. His duty to exercise due diligence began before 

the August 5, 1996 hearing on remand, where Bell had an opportunity to rebut 

the Commonwealth’s claim that it was prejudiced in its ability to retry him. He 

presented no evidence then, and pleaded nothing in the current petition or its 

amendments that would establish he made any efforts, let alone reasonable 

efforts, to locate Blake. 

Because Bell’s petition was untimely filed, and Bell did not plead and 

prove an exception to the time-bar, the PCRA court had no jurisdiction to 

conduct an evidentiary hearing on Bell’s claims. See Whiteman, 204 A.3d at 

450. Accordingly, the initial Judge’s order granting an evidentiary hearing on 

Bell’s current petition was clearly erroneous. Further, we find that holding an 

evidentiary hearing without jurisdiction would create a manifest injustice. 

Accordingly, Judge DiClaudio’s order dismissing the PCRA petition without a 

hearing was not in violation of the coordinate jurisdiction rule. We therefore 

affirm the order dismissing Bell’s PCRA petition without a hearing.

Order affirmed. Jurisdiction relinquished. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/24/2023