[J-116-2019]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

ELWOOD SMALL,

Appellant

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No. 8 EAP 2019

Appeal from the Judgment of Superior 

Court entered on 10/29/2018 at No. 

250 EDA 2018 reversing the Order 

entered on 12/14/2017 and remanding 

to the Court of Common Pleas, 

Philadelphia County, Criminal Division 

at No. CP-51-CR-0521601-1982.

SUBMITTED: November 18, 2019

OPINION

JUSTICE WECHT DECIDED: October 1, 2020

In this appeal, we consider the continued viability of what our jurisprudence has 

dubbed the “public record presumption,” which precludes a petitioner from establishing 

the existence of new facts that would support collateral review of an underlying conviction. 

See Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017). Ordinarily, a petitioner seeking 

relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46, must file the 

petition within one year of the date upon which his or her judgment of sentence becomes 

final. The PCRA sets forth three exceptions to this one-year limitation. Among these is 

the “newly discovered fact” exception, which renders a petition timely when the petitioner 

establishes 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). Interpreting this provision, this Court has held that the newly 

discovered fact exception is limited by a presumption relating to matters of public record,
[J-116-2019] - 2

pursuant to which a court may find that information available to the public is not a fact that 

is “unknown” to the petitioner. See, e.g., Commonwealth v. Chester, 895 A.2d 520, 523 

(Pa. 2006); Commonwealth v. Lark, 746 A.2d 585, 588 n.4 (Pa. 2000). In Burton, 

however, we reasoned that, due to unrepresented inmates’ diminished access to such

records, the public record presumption “does not apply to pro se prisoner petitioners.” 

Burton, 158 A.3d at 620.

In this case, the Superior Court reversed the PCRA court’s order granting relief to 

Appellant Elwood Small, reasoning, inter alia, that our holding in Burton did not apply to 

Small because he was represented by counsel some years earlier, in separate postconviction proceedings, and thus could not be considered pro se for purposes of Burton. 

Although we ultimately conclude that Small is not entitled to relief, we nonetheless are 

persuaded by Small’s frontal challenge to the public record presumption.

I.

The Commonwealth alleged that Small and his co-defendant, Larry Bell, 

committed an armed robbery of a marijuana dealer, Patrick Blake, in Blake’s apartment 

on December 23, 1981. In the ensuing struggle, Small stabbed both Blake, who survived, 

and John McCrary, who died. Small and Bell were tried jointly in April 1983. At their trial, 

Blake identified Bell and Small as the assailants, the former having wielded a shotgun 

and the latter a knife. Blake testified that Small stabbed him during the robbery. Blake 

struggled with Small and was stabbed again, but then escaped through a kitchen window. 

As Blake fled, he saw Bell and McCrary struggling for control of the shotgun in the living 

room. Investigators later recovered a lock pin and spring assembly from a pump-action 

shotgun on the living room floor. Although Blake immediately recognized Bell from prior 

drug transactions, it was not until Blake viewed a lineup ten months later that he identified 
[J-116-2019] - 3

Small as the knife-wielding assailant. At the lineup, Blake noted that Small had facial 

scars that Blake did not notice at the time of the robbery.

Bell testified in his own defense and provided a different account of the events,

which the PCRA court found significant to the instant petition. Bell admitted that he and 

Small intended to rob Blake and McCrary. However, Bell denied any intention to assault 

or murder the victims, and denied possessing a shotgun during the altercation. Bell 

explained that, after he and Small entered the apartment, Small drew a knife, and Bell 

ordered Blake and McCrary to lie on the floor. PCRA Court Opinion, 12/14/2017 (“PCRA 

Ct. Op.”), at 7 (citing Notes of Testimony (“N.T.”), Trial, 4/11/1983, at 653, 664). Bell 

explained that, as he attempted to bind Blake’s hands with a telephone cord, Blake 

jumped up and struck Small, who fell to the ground. Id. (citing N.T., Trial, at 653-54). 

McCrary then arose and began punching Bell, at which point Small came to Bell’s aid and 

hit McCrary three times with what “sounded like punches.” Id. (citing N.T., Trial, at 654). 

Bell testified that Small similarly “punched” Blake, who cried out that he had been stabbed. 

Id. at 7-8 (citing N.T., Trial, at 656). Bell claimed that he was in a panic when he left the 

apartment, and Small noticed that Bell had left a hat behind at the scene. The two 

reentered Blake’s apartment by breaking a window of the apartment’s side door, 

whereupon Bell retrieved his hat, and Small carried off a television set. On crossexamination, Bell stated that he was not promised anything in exchange for his testimony,

and that he testified solely “to get this off [his] mind.” Id. at 9 (quoting N.T., Trial, at 722).

Small also testified in his own defense and denied any participation in the crimes. 

Although Small was confronted with an incriminating statement that he purportedly had 

given to detectives, in which he had admitted to serving as a “lookout” outside Blake’s 

apartment, he denied having made the statement. Small claimed that the detectives 

approached him in an interrogation room with the statement already prepared, and 
[J-116-2019] - 4

instructed him to sign it. He refused and instead wrote “refuse to sign” at the bottom of 

each page. With regard to the facial scarring that Blake noticed at the lineup, but did not 

remember from the incident, Small testified that the scar on his face had been present 

since 1979. In response to Bell’s testimony implicating Small in the crimes, Small

asserted that Bell earlier had admitted that he would not reveal the true identity of the 

culprit, because he feared that his family would not be safe if he told the truth.

On April 13, 1983, the jury found both Small and Bell guilty of second-degree 

murder, robbery, aggravated assault, and criminal conspiracy. On November 9, 1983, 

the trial court sentenced Small to life imprisonment for second-degree murder, a 

consecutive term of five to ten years’ imprisonment for conspiracy, and a concurrent term 

of five to ten years’ imprisonment for aggravated assault. The Superior Court affirmed 

Small’s judgment of sentence. Commonwealth v. Small, 494 A.2d 485 (Pa. Super. 1985).

Over the course of the following decades, Small made several attempts to obtain 

relief under the PCRA, all of which were unsuccessful. He filed his first PCRA petition on 

February 5, 1990, which was dismissed on June 10, 1992. The Superior Court affirmed 

the dismissal, and this Court denied review. Commonwealth v. Small, 636 A.2d 1216 

(Pa. Super. 1993), appeal denied, 642 A.2d 485 (Pa. 1994). He filed a second PCRA 

petition on December 31, 1996, which was dismissed as untimely, and the dismissal 

likewise was upheld on appeal. Commonwealth v. Small, 726 A.2d 415 (Pa. Super. 

1998), appeal denied, 737 A.2d 1224 (Pa. 1999). His third PCRA petition, filed on 

November 16, 2007, and amended on March 12, 2010, similarly was dismissed as 

untimely, and the dismissal again was upheld on appeal. Commonwealth v. Small, 60 

A.3d 556 (Pa. Super. 2012), appeal denied, 62 A.3d 379 (Pa. 2013).

The instant appeal arises from Small’s fourth PCRA petition, which he filed pro se, 

depositing it in the prison mail on July 22, 2014. In this petition, Small sought a new trial 
[J-116-2019] - 5

based, in part, upon his discovery that Bell had testified during his own post-conviction 

proceedings in a manner that purportedly differed from Bell’s trial testimony. Small 

averred that he learned this on June 14, 2013, while conducting legal research in the 

prison library. Due to what the PCRA court characterized as “some administrative and 

inexplicable error,” Small’s petition was neither assigned to nor received by the PCRA 

court until nearly three years later, on April 13, 2017. PCRA Ct. Op. at 16. On May 4, 

2017, the PCRA court issued a notice of its intent to dismiss Small’s petition without 

conducting an evidentiary hearing, pursuant to Pa.R.Crim.P. 907(1). Small responded to 

the notice, contending that his averments satisfied the newly discovered fact exception to 

the PCRA’s time bar, particularly in light of this Court’s decision in Burton.

The PCRA court reconsidered its intent to dismiss Small’s petition, and “realized”

that “Small did not actually have access to what he believed to be new evidence.” PCRA 

Ct. Op. at 17. Small had based his claim solely upon a factual summary provided in a 

1998 Superior Court decision affirming the denial of post-conviction relief to Bell, in which

the court stated that “Bell maintained that [Small] killed the victim for personal reasons; 

he asserted that co-defendant Small’s wife had had an adulterous affair with the victim, 

John McCrary.” Commonwealth v. Bell, 706 A.2d 855, 857 (Pa. Super. 1998). The PCRA 

court found this summary to be insufficient to determine whether Small would be able to 

develop a meritorious claim. Accordingly, the court arranged for pro bono counsel to 

represent Small, and counsel was able to obtain the transcripts from evidentiary hearings 

conducted in 1993 in connection with Bell’s PCRA proceedings. Thereafter, Small filed 

a counseled, amended petition on October 30, 2017, asserting that he was entitled to a 

new trial in light of the after-discovered evidence1revealed in those transcripts, and 

 

1 Distinct from the PCRA’s timeliness exception for newly discovered facts, “afterdiscovered evidence” is a substantive basis for relief under the PCRA, applicable where 

the petitioner pleads and proves by a preponderance of the evidence that his conviction 
[J-116-2019] - 6

further challenging the trial court’s jury instruction regarding second-degree murder. The 

PCRA court then held an evidentiary hearing on December 5, 2017.

The PCRA court assigned significant weight to the evidence revealed in the 1993 

transcripts. When Bell was asked to explain how the murder of McCrary unfolded, he

testified: “We entered the apartment and [Small] flipped out and started stabbing the 

guys.” PCRA Ct. Op. at 11 (quoting N.T., Bell PCRA Hearing, 3/5/1993, at 12). The 

PCRA court concluded that this description differed substantially from Bell’s trial 

testimony, inasmuch as it omitted Bell’s earlier explanation of the events that occurred 

before the stabbing, such as Bell’s effort to tie up Blake, the fight that erupted between 

the four men, and Bell’s initial impression that Small was “punching” rather than stabbing 

the victims. Id. at 11, 27. The court noted that Bell introduced the testimony of a prison 

associate, Robert Smithson, who claimed that Small had a personal motive to kill 

McCrary—the allegation that initially inspired Small’s filing of his pro se petition. Id. at 11. 

Finally, the PCRA court emphasized that Bell had provided a new motivation for his 

decision to testify in his own defense at trial. Where he previously cited his conscience 

as the reason for his testimony, Bell later asserted that he testified on the advice of his 

counsel, who had told Bell that his testimony would serve as an admission to robbery, but 

 

resulted from “[t]he unavailability at the time of trial of exculpatory evidence that has 

subsequently become available and would have changed the outcome of the trial if it had 

been introduced.” 42 Pa.C.S. § 9543(a)(2)(vi); see Commonwealth v. Bennett, 930 A.2d 

1264, 1270-72 (Pa. 2007) (discussing the distinctions between the time bar exception 

and the substantive basis for relief); see also Burton, 158 A.3d at 627-29 (same).

In order to obtain relief based upon exculpatory, after-discovered evidence, the 

petitioner must establish that: “(1) the evidence has been discovered after trial and it 

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).
[J-116-2019] - 7

might provide a defense to the murder charge. Id. at 11-13, 27. In light of the purported 

disparities between Bell’s trial testimony and his testimony during his post-conviction 

proceedings, the PCRA court concluded that the latter comprised newly discovered facts, 

upon which Small could premise a substantive claim for relief based upon afterdiscovered evidence.

The PCRA court acknowledged that, at the time, any PCRA petition invoking a 

timeliness exception must have been filed within sixty days2 of the date upon which the 

claim first could have been presented, and that Small discovered the Superior Court’s 

1998 opinion in Bell’s appeal on June 14, 2013, but did not file his pro se petition until 

over thirteen months later on July 22, 2014. Nonetheless, the court concluded that Small 

had satisfied the sixty-day requirement because the sixty-day clock did not begin to tick 

until Small received Bell’s 1993 transcripts from his counsel, which occurred on or about 

September 3, 2017. Because Small filed his amended petition on October 30, 2017, the 

PCRA court opined that Small had asserted the applicability of the newly discovered fact 

exception within sixty days of the date that his claim initially could have been presented. 

Id. at 25, 33.

The parties had stipulated that the 1993 transcripts were public records, and that 

any member of the public could view them at the location where they were stored. The 

PCRA court deemed the public availability of the transcripts to be a “cruel irony” 

considering Small’s repeated, failed efforts to obtain them from prison. Id. at 33. 

Following his discovery of the 1998 Superior Court opinion, Small had attempted to obtain 

relief in federal court, had asked his daughter-in-law to locate the transcripts, had 

attempted to subpoena the Commonwealth, and had filed a motion with the court of 

 

2 The PCRA since has been amended to extend the sixty-day limitation to a period 

of one year. See 42 Pa.C.S. § 9545(b)(2); Act of Oct. 24, 2018, P.L. 894, No. 146, § 2 

(effective Dec. 24, 2018).
[J-116-2019] - 8

common pleas seeking the transcripts. Id. at 21-25. Despite what the PCRA court 

considered to be exceptional diligence, Small labored in vain. Only once Small received 

the assistance of counsel was he able to obtain the transcripts that contained the 

testimony that ostensibly supported his claim of after-discovered evidence. Id. at 25, 31. 

Thus finding the requisite due diligence, and in conjunction with its conclusion regarding 

the PCRA’s sixty-day window, the PCRA court found that Small had established the 

applicability of the newly discovered fact exception, rendering his petition timely and 

vesting the court with jurisdiction to consider his substantive claims for relief.

The PCRA court ultimately concluded that Bell’s 1993 testimony was exculpatory, 

unavailable at trial, non-cumulative, would not be used solely for impeachment, and likely 

would change the outcome of the trial, thus satisfying the requirements of a claim of afterdiscovered evidence. See supra n.1. It further asserted that Small’s challenge to the trial 

court’s jury instruction was rendered cognizable by the newly discovered facts and 

separately warranted relief.3 Accordingly, the PCRA court vacated Small’s judgment of 

sentence and awarded him a new trial.

On the Commonwealth’s appeal, the Superior Court reversed the order of the 

PCRA court, concluding that Small failed to establish the applicability of an exception to 

the PCRA’s time bar, which denied the PCRA court jurisdiction to award him relief. 

Commonwealth v. Small, 250 EDA 2018, 2018 WL 5317602 (Pa. Super. Oct. 29, 2018) 

(unpublished). The Superior Court panel detailed several bases for its disagreement with 

the PCRA court. First, the panel disagreed with the PCRA court’s characterizations of 

Bell’s 1993 testimony. Referencing Bell’s testimony that Small “flipped out and started 

stabbing the guys,” the Superior Court observed that this summary “lacked the detail of 

 

3 We do not reach the merits of either of Small’s substantive claims for relief in this 

opinion, and thus offer no comment upon the PCRA court’s reasoning.
[J-116-2019] - 9

[Bell’s] trial testimony.” Id., slip op. at 7. Nonetheless, in the court’s view, the testimony

was “materially consistent with his trial testimony and defense.” Id. Bell consistently had 

maintained that Small stabbed both victims, and that Bell had agreed to rob the victims 

but did not intend to assault or murder them. Since their joint trial, the Superior Court 

concluded, Small knew both Bell’s version of the events and his motivation for testifying, 

and Bell’s 1993 testimony therefore was not a newly discovered fact.

Most significantly for purposes of this appeal, the Superior Court further concluded 

that Bell’s 1993 transcripts were a matter of public record, and therefore could not be 

considered “unknown” to Small. Id. at 7-8 (citing Commonwealth v. Taylor, 67 A.3d 1245, 

1248 (Pa. 2013)). The panel recognized this Court’s holding in Burton that the public 

record presumption “does not apply to pro se prisoner petitioners.” Id. at 8 (quoting 

Burton, 158 A.3d at 620). Nonetheless, the court reasoned, Bell’s testimony had been

accessible since 1993, and the Superior Court had referenced it in two decisions, issued 

in 1995 and 1998. Small was represented by counsel on his third PCRA petition and 

appeal, from September 2008 to January 2013. Accordingly, “for over four years, from 

September 30, 2008 until January 10, 2013, [Small] was not a pro se prisoner, and Bell’s 

testimony could not be considered ‘unknown.’” Id. at 9. That is, due to Small’s past 

representation, the court concluded that Burton was inapplicable, and the public record 

presumption remained in force, defeating Small’s assertion of newly discovered facts.

As another basis for reversal, the Superior Court concluded that Small failed to 

comply with the sixty-day requirement of then-effective 42 Pa.C.S. § 9545(b)(2) 

(amended; see supra n.2). Small conceded that he discovered the 1998 Superior Court 

opinion in Bell’s case on June 13, 2013, but did not file his pro se PCRA petition until July 

22, 2014, thirteen months later. On this basis as well, the Superior Court deemed Small’s 

petition untimely. Small, slip op. at 9-10. Relatedly, even if the PCRA court was correct 
[J-116-2019] - 10

to deem the date that Small filed his amended petition to be the operative date for 

purposes of assessing timeliness, the Superior Court concluded, then the PCRA court 

erred in ordering that Small be provided with discovery before that date. Id. at 10 (citing 

42 Pa.C.S. § 9545(a) (“No court shall have the authority to entertain a request for any 

form of relief in anticipation of the filing of a petition under this subchapter.”)).4

Finding error on several distinct grounds, the Superior Court concluded that Small 

failed to satisfy the newly discovered fact exception. Thus, his petition was untimely, and 

the PCRA court lacked jurisdiction to consider Small’s substantive claims for postconviction relief. The court accordingly reversed the order of the PCRA court, reinstated 

Small’s judgment of sentence, and remanded. 

We granted Small’s petition for allowance of appeal in order to review the Superior 

Court’s treatment of Burton and the public record presumption. We further consider 

whether Small otherwise has established the applicability of the newly discovered fact 

exception.5

 

4 Although it appears that the transcripts at issue ultimately were obtained by Small’s 

counsel, not the Commonwealth, the Superior Court referred to an order that the PCRA 

court issued on August 30, 2017, which, inter alia, directed the Commonwealth to produce 

the transcripts from Bell’s post-conviction proceedings. If, as the PCRA court reasoned, 

Small’s petition should be deemed filed on October 30, 2017—the date upon which he 

filed his amended petition—then, the Superior Court reasoned, the PCRA court erred in 

ordering discovery in anticipation of filing a PCRA petition, in violation of 42 

Pa.C.S. § 9545(a). 

5 Specifically, we granted review of the following questions, as framed by Small:

(1) Where Small did not receive notice of his co-defendant Larry Bell’s 1993 

PCRA hearing, and where Small has been continuously incarcerated, with 

only limited assistance of counsel on unrelated claims since that time, was 

Bell’s PCRA testimony “unknown” to Small under Commonwealth v. Burton, 

638 Pa. 687, 158 A.3d 618 (2017)?

(2) Has Small otherwise satisfied the requirements for an exception to the 

PCRA time-bar under 42 Pa.C.S. § 9545(b)(1)(ii) based on his co-
[J-116-2019] - 11

II.

Small principally argues that this Court should expand upon Burton and simply 

eradicate the public record presumption entirely. Small highlights the Burton Court’s 

discussion of the presumption’s questionable origins and the absence of any express 

provision in the PCRA relating to public records or access thereto. Brief for Small at 28-

29 (citing Burton, 158 A.3d at 632-33). Recognizing that the opinions of both the majority 

and the dissenting Justices in Burton stated that wholesale abrogation of the public record 

presumption was beyond the scope of the decision, Small argues that the instant case 

presents the Court with an opportunity to do so now. Id. at 30. 

Small contends that the public record presumption is inconsistent with both the 

plain language of the PCRA and its purpose. As Burton highlighted, Small reiterates that 

the newly discovered fact exception makes no reference to public records; rather, it 

unambiguously sets forth only two elements: that “the facts upon which the claim is 

predicated were unknown to the petitioner,” and that those facts “could not have been 

ascertained by the exercise of due diligence.” Id. at 37 (quoting 42 Pa.C.S. 

§ 9545(b)(1)(ii)). With regard to the intent and construction of the PCRA, Small highlights 

this Court’s pronouncement that the PCRA was enacted “to provide a reasonable 

opportunity for those who have been wrongfully convicted to demonstrate the injustice of 

their conviction.” Id. at 36 (quoting Commonwealth v. Peterkin, 722 A.2d 638, 643 (Pa. 

1998)). Accordingly, we “must construe the provisions of the PCRA liberally to effect their 

objects and to promote justice.” Id. (quoting Bennett, 930 A.2d at 1270 (internal quotation 

 

defendant Bell’s PCRA testimony, such that the PCRA court’s grant of a 

new trial should be reinstated?

Commonwealth v. Small, 207 A.3d 289 (Pa. 2019) (per curiam) (brackets omitted).
[J-116-2019] - 12

marks omitted)). Because the public record presumption serves only to limit the right to 

seek relief, Small argues that it contravenes these principles.

The Superior Court’s application of the presumption in this case ostensibly rested 

upon the expectation that Small’s prior counsel, who earlier litigated a wholly unrelated 

claim on Small’s behalf, apprised himself of all matters of public record. Small argues 

that this expectation is “not realistic.” Id. at 32. Although PCRA counsel may have a duty 

to investigate matters lying outside the record, Small argues, the “role of counsel in 

seeking out and obtaining relevant information from the public record in a given 

engagement is highly context-dependent.” Id. As support for his view, Small notes that 

the Turner/Finley6 standard, which appointed PCRA counsel must satisfy before 

withdrawing from representation for want of a meritorious claim, requires only that PCRA 

counsel conduct a “thorough review of the record” for non-frivolous claims, not an extrarecord investigation of all potentially useful public records. Id. at 33 (emphasis in original; 

quoting Commonwealth v. Hampton, 718 A.2d 1250, 1254 (Pa. Super. 1998)). Thus, 

Small contends that the assistance of counsel in earlier post-conviction proceedings is 

“far from a guarantee that all relevant matters of public record will become known on a 

timely basis to a PCRA petitioner.” Id. at 34. In addition to the presumed discovery of 

existing records, Small observes, the public record presumption imposes an onerous 

obligation upon PCRA counsel to continuously monitor all potentially relevant public 

resources, notwithstanding the various burdens of doing so, and without regard to 

whether the petitioner has identified any particular record as a likely source of relevant 

material. Id. at 35.

 

6 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 

A.2d 213 (Pa. Super. 1988) (en banc); see generally Commonwealth v. Pitts, 981 A.2d 

875 (Pa. 2009) (addressing appellate review of Turner/Finley “no-merit” letter).
[J-116-2019] - 13

Even if we decline to eliminate the public record presumption entirely, Small 

contends that he was entitled to the benefit of Burton because he “was indisputably a pro 

se prisoner at the time he filed his Fourth PCRA petition,” and because he amply 

established that, due to his incarceration, he lacked earlier access to the information

necessary to establish his substantive claims for relief. Id. at 31. Small closely tracks the 

PCRA court’s analysis in the remainder of his arguments favoring the applicability of the 

newly discovered fact exception. He asserts that he acted with due diligence in his 

attempts to obtain the transcripts from Bell’s 1993 hearings, that the PCRA’s thenapplicable sixty-day clock did not begin to run until he received those transcripts, and that 

his substantive claims were predicated upon the facts discovered therein, i.e., the 

asserted discrepancies between Bell’s trial testimony and the testimony offered during 

Bell’s post-conviction proceedings. Id. at 38-46. Finally, assuming satisfaction of the 

time-bar exception, Small argues that he is entitled to a new trial upon the basis of afterdiscovered evidence, echoing the PCRA court’s reasoning. Id. at 47-51.7

 

7 Small’s position is supported by several amici curiae, which have filed two briefs 

in this appeal. The Pennsylvania Innocence Project argues that our holding in Burton

should be expanded so as to apply to all incarcerated individuals, regardless of whether 

or not they are proceeding pro se. Amicus contends that parsing the procedural history 

of a petitioner’s case in order to determine the precise time periods of prior representation 

can raise complications, including determining what exactly qualifies as legal 

representation, and what the scope of that representation may have been. Amicus offers, 

for example, representation with respect to a civil claim under the Prison Litigation Reform 

Act, 42 Pa.C.S. §§ 6601-08, as a type of prior representation upon which it would be 

unjust to premise the application of the public record presumption in the PCRA context. 

Brief for Amicus Curiae Pennsylvania Innocence Project at 22. Amicus urges us to view 

our decision in Burton as animated by concern with the diminished access to public 

records generally, which applies to all prisoners regardless of pro se status.

Amici the Pennsylvania Association of Criminal Defense Lawyers and the 

American Civil Liberties Union of Pennsylvania separately argue that this Court should 

reexamine our decisions that have interpreted the PCRA’s time restrictions to be 

jurisdictional in nature—an issue that is beyond the scope of the present appeal.
[J-116-2019] - 14

The Commonwealth counters that Bell’s 1993 PCRA testimony was consistent with 

his trial testimony. In both proceedings, Bell consistently maintained that Small was the 

individual who stabbed Blake and McCrary. The Commonwealth notes that Bell even 

used the same language—that Small “flipped out” and stabbed the victims—in both his 

trial testimony and his post-conviction testimony. Brief for Commonwealth at 20 

(comparing N.T., Trial, at 661, with N.T., Bell PCRA Hearing, 3/5/1993, at 12).8 Moreover, 

Bell’s purportedly new explanation of his motivation for testifying at trial is, in the 

Commonwealth’s view, not newly discovered, because Bell’s trial counsel implored the 

jury to convict Bell of robbery but acquit him of murder, i.e., the same theory that Bell later 

identified as the reason that he chose to testify. Id. at 21. Finally, although the PCRA 

court placed some significance upon the fact that Bell, in 1993, did not testify regarding 

his initial impression that Small had “punched” the victims rather than stabbed them, Bell’s 

trial testimony clearly reflected his understanding that Small had stabbed the victims. Id.

at 21-22. Accordingly, the Commonwealth not only argues that Bell’s 1993 testimony 

failed to reveal any exculpatory evidence concerning Small, but also that the testimony 

the PCRA court highlighted presented no “new” facts, because it was materially 

consistent with Bell’s trial testimony and strategy, of which Small has been aware since 

1983. The absence of any exculpatory evidence further serves as the heart of the 

Commonwealth’s argument regarding the absence of merit in Small’s claim of afterdiscovered evidence. Id. at 32-33.

 

8

In point of fact, Bell testified at trial that he was planning to rob Blake and McCrary, 

but with regard to Small: “I didn’t know he was going to go crazy or freak out on anybody.” 

N.T., Trial, at 661 (emphasis added). By contrast, during his post-conviction proceedings, 

Bell testified that Small “flipped out and started stabbing the guys.” N.T., Bell PCRA 

Hearing, 3/5/1993, at 12 (emphasis added). Although there is a slight variation in the 

colloquialism that Bell employed, the difference is insignificant. The Commonwealth’s 

observation therefore is well-taken despite its minor misquotation of the cited testimony.
[J-116-2019] - 15

Rebutting Small’s contentions regarding the remaining requisites of the newly 

discovered fact exception, the Commonwealth maintains that Small did not exercise due 

diligence because his prior counsel could have located the transcripts, and either Small 

or his daughter-in-law could have retained new counsel to assist him, but did not. With 

regard to Small’s repeated attempts to obtain the transcripts, the Commonwealth argues 

that these constituted discovery requests, which under the PCRA require a showing of 

exceptional circumstances, and with which the Commonwealth has no duty to comply 

absent a court order. Id. at 30 (citing Pa.R.Crim.P. 902(E)(1) (providing that “no discovery 

shall be permitted” absent “a showing of exceptional circumstances”)). As for the PCRA’s 

then-effective sixty-day limitation, the Commonwealth stresses that, on Small’s own 

account, he began searching for the transcripts on June 14, 2013, but did not file the 

instant PCRA petition for over one year. Contrary to the view of the PCRA court, the 

Commonwealth argues that Small was not precluded from seeking relief within sixty days 

of June 14, 2013. Indeed, Small sought relief within sixty days of that date based upon 

his knowledge at the time, but attempted to do so in federal court, not under the PCRA. 

Small then later filed the instant petition pro se, still never having seen the transcripts.

Turning to the central question, the Commonwealth argues that the public record 

presumption should be preserved as a general matter. It further contends that abolishing 

the presumption would make no difference to Small, in light of the alternative bases for 

dismissal that it has developed. The Commonwealth acknowledges that the language of 

the PCRA requires only that the asserted facts be unknown to the petitioner. However, 

the Commonwealth again stresses the due diligence component of the newly discovered 

fact exception, suggesting that, at least as it concerns formerly represented petitioners,

the public record presumption should be viewed as applicable to the “due diligence” 

prong, rather than the “unknown” prong. Id. at 36. The Commonwealth argues that this 
[J-116-2019] - 16

Court already has done so, in Commonwealth v. Staton, 184 A.3d 949, 957 (Pa. 2018), 

in which we held that the petitioner failed to establish that his trial counsel’s alleged 

conflict of interest could not have been ascertained earlier with the exercise of due 

diligence, and noted that the petitioner had been represented by counsel at various points 

in the past. The Commonwealth argues that Staton controls the question presented here, 

and establishes that Small cannot satisfy the due diligence requirement due to his earlier 

representation.9

With regard to statutory interpretation, the Commonwealth observes that the 

General Assembly has amended the PCRA since this Court adopted the public record 

presumption, but has not repudiated it expressly. Accordingly, in the Commonwealth’s 

view, the public record presumption effectively has become a part of the statutory

scheme. Brief for Commonwealth at 37 (citing 1 Pa.C.S. § 1922(4)). Finally, the 

Commonwealth argues that the PCRA should be interpreted in a manner that advances 

the statute’s interest in preserving the finality of criminal judgments, and “disregarding the 

reality that counseled petitioners have access to public records would needlessly 

denigrate the principle of finality.” Id. at 40.

 

9 We disagree that Staton is dispositive of our analysis here. Staton is readily 

distinguishable from the instant case, because we emphasized that the asserted new fact 

was accessible well before even the date of Staton’s trial. Staton, 184 A.3d at 957. Staton

also did not present the nuanced issue relating to the precise timing of past legal 

representation, and did not encompass a direct challenge to the validity of the public 

record presumption. Staton’s reference to the petitioner’s prior representation was a 

component of our fact-specific assessment of due diligence, which we found lacking. This 

does not mean, as the Commonwealth suggests, that this Court merely shifted a 

categorical public record presumption from the “unknown” prong of the newly discovered 

fact exception to the “due diligence” prong. To the contrary, Burton called for casespecific analyses of pro se prisoners’ knowledge and their exercise of due diligence. To 

resurrect the public record presumption for pro se prisoners simply by deeming it an 

interpretation of a different statutory term would not only elevate form over substance, but 

would defeat the entire purpose of our decision in Burton.
[J-116-2019] - 17

III.

Our standard of review in a PCRA appeal requires us to determine whether the 

PCRA court’s findings of fact are supported by the record, and whether its conclusions of 

law are free from legal error. Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015). 

The scope of our review is limited to the findings of the PCRA court and the evidence of 

record, which we view in the light most favorable to the party who prevailed before that

court. Commonwealth v. Hanible, 30 A.3d 426, 438 (Pa. 2011). Here, Small was the 

prevailing party. The PCRA court’s factual findings and credibility determinations, when 

supported by the record, are binding upon this Court. Mason, 130 A.3d at 617. However, 

we review the PCRA court’s legal conclusions de novo. Id.

Any PCRA petition, including a second or subsequent petition, must be filed within 

one year of the date that the petitioner’s judgment of sentence becomes final. 42 Pa.C.S. 

§ 9545(b)(1). We have construed the PCRA’s timing provisions as jurisdictional in nature, 

and no court may entertain an untimely PCRA petition. Burton, 158 A.3d at 627 (citing 

Commonwealth v. Brown, 943 A.2d 264, 267 (Pa. 2008)). His judgment of sentence 

having become final decades ago, Small’s fourth PCRA petition indisputably was untimely 

on its face. Accordingly, Small could establish jurisdiction in the PCRA court only by 

pleading and proving the applicability of an exception to the PCRA’s time bar. The 

exception at issue here, as noted above, applies 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.” 42 Pa.C.S. § 9545(b)(1)(ii).

A.

As indicated by the central question presented, our analysis builds upon the 

foundation we laid in this Court’s decision in Burton. Like Small, Burton was serving a 

prison sentence for murder when he learned of a development in his co-defendant’s case 
[J-116-2019] - 18

that revealed potentially exculpatory information, but had been a matter of public record 

for years before Burton discovered it. The PCRA court dismissed Burton’s PCRA petition 

as untimely. A panel of the Superior Court initially reversed the PCRA court’s order and 

remanded for an evidentiary hearing, but the Superior Court subsequently granted the 

Commonwealth’s application for reargument and heard the matter en banc. A majority of 

the en banc panel again reversed the PCRA court’s order, concluding that pro se prisoner 

petitioners like Burton should not be presumed to know facts available in the public record, 

so as to defeat their claims based upon newly discovered facts. Commonwealth v. 

Burton, 121 A.3d 1063 (Pa. Super. 2015) (en banc).

This Court embraced the reasoning of the Superior Court’s en banc majority. We 

noted that the newly discovered fact exception, by its express terms, requires only that 

the petitioner plead 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.” Burton, 158 A.3d at 631-32 (quoting 42 Pa.C.S. § 9545(b)(1)(ii); emphasis in 

original). The “statute itself contains no exception, express or constructive, regarding 

information that is of public record.” Burton, 158 A.3d at 632 (emphasis in original). 

Because the public record presumption exists only by virtue of judicial interpretation, the 

Burton Court traced the rule to its origin in Commonwealth v. Lark, 746 A.2d 585 (Pa. 

2000). 

In Lark, this Court deemed a Batson10 claim to be timely based upon the release 

by the Philadelphia District Attorney’s Office of a training video that instructed prosecutors 

to rely upon race and gender stereotypes in striking potential jurors. Lark, 746 A.2d at 

588. The Lark Court rejected the Batson claim on the merits, but also rejected an 

 

10 Batson v. Kentucky, 476 U.S. 79 (1986) (holding that the Equal Protection Clause 

of the Fourteenth Amendment to the United States Constitution forbids a prosecutor from 

challenging potential jurors solely on account of their race).
[J-116-2019] - 19

additional Batson argument due to Lark’s failure to establish the newly discovered fact 

exception to the PCRA’s time bar. Lark had highlighted a then-recent academic study of 

the Philadelphia courts, which addressed racially discriminatory jury selection practices. 

The Lark Court reasoned: “The statistics which comprise the study were of public record 

and cannot be said to have been ‘unknown’ to [Lark]. As such, this information does not 

fall within the purview of 42 Pa.C.S. § 9545(b)(1)(ii).” Id. at 588 n.4. In Burton, we 

criticized Lark, noting that it lacked legal or statutory support for its sweeping conclusion, 

and made no attempt to reconcile its holding with the specific language of 42 Pa.C.S. 

§ 9545(b)(1)(ii). Burton, 158 A.3d at 632-33. Our subsequent decisions applying the 

presumption in Chester and Commonwealth v. Whitney, 817 A.2d 473, 478 (Pa. 2003), 

“simply cited the Lark footnote and contained no independent analysis or discussion.” 

Burton, 158 A.3d at 633.

Burton contrasted the scant analyses of Lark, Whitney, and Chester with this 

Court’s decision in Bennett. Bennett asserted that his trial counsel was ineffective, but

the court nonetheless appointed his trial counsel to represent Bennett in his PCRA 

appeal, and counsel thereafter failed to file an appellate brief in the Superior Court, 

causing Bennett’s appeal to be dismissed. Bennett, 930 A.2d at 1266. When Bennett

later learned of the dismissal, he again sought relief under the PCRA, asserting that his 

now-untimely second PCRA petition satisfied the newly discovered fact exception

because he had only recently learned that his allegedly ineffective trial counsel was 

appointed as appellate PCRA counsel, that counsel then abandoned him, and that the 

Superior Court dismissed his appeal. Id. at 1272. Because the Superior Court’s order 

dismissing Bennett’s appeal was publicly available, two of the dissenting Justices in 

Bennett opined that the order was not “unknown” to the petitioner for purposes of the 

newly discovered fact exception. The Bennett Majority disagreed, opining that rigid 
[J-116-2019] - 20

application of a public record presumption would be “attractive in its simplicity,” but would 

not give due consideration to the circumstances of the case. Id. at 1275. The Superior 

Court’s dismissal order “was a matter of ‘public record’ only in the broadest sense.” Id. 

Such orders, Bennett reasoned, are not sent directly to the prisoner, but instead to 

counsel, who there already had abandoned his client once. In light of that abandonment, 

we found “no other way in which a prisoner could access the ‘public record.’” Id. Bennett

thus distinguished earlier application of the public record presumption because “the 

matter of ‘public record’ does not appear to have been within [Bennett’s] access.” Id.

Although counsel’s abandonment was a significant consideration in Bennett, in 

Burton we observed that the ruling in Bennett also was driven by Bennett’s lack of access 

to public records in prison. Addressing that latter rationale in greater detail, we considered 

the arguments of amici curiae, Pennsylvania Exonerees, composed of former pro se 

prisoners who had been exonerated and released from incarceration. Amici provided 

insight into the limited avenues available for legal research in prisons, as well as inmates’

relative lack of access to public records. Burton, 158 A.3d at 636-37. We found this 

diminished access to be significant, and adopted “the essence of our holding in Bennett.” 

Id. at 638. We concluded:

[T]he 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. We 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.

Id. (footnote omitted). We directed future PCRA courts considering similar petitions to 

employ the statutory language, and to determine whether “the facts upon which the claim 
[J-116-2019] - 21

is predicated were unknown to the petitioner,” which may require a hearing. “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.” Id.

The majority opinion in Burton was authored by Justice Todd and joined by Chief 

Justice Saylor and this author, thus garnering a majority of the five-member Court. Justice 

Donohue and Justice Mundy did not participate in the decision of Burton. Chief Justice 

Saylor authored a concurring opinion, expressing his agreement with the majority’s 

holding based upon Bennett and the majority’s development thereof, but reiterating a 

point of disagreement with Bennett’s statutory analysis. Id. at 638-39 (Saylor, C.J., 

concurring) (citing Bennett, 930 A.2d at 1275-80 (Saylor, J., dissenting)).

Justice Baer dissented in an opinion joined by Justice Dougherty. Justice Baer 

questioned the majority’s reliance upon the extra-record material offered by amici, and

rejected the creation of a “status-based exception” to the public record presumption that 

“swallows nearly the entirety of the rule given that incarcerated pro se petitioners 

constitute the group of PCRA petitioners who regularly invokes and relies upon the 

exceptions to the PCRA’s time-bar.” Id. at 639 (Baer, J., dissenting). Anticipating the 

difficulty that precipitated the instant appeal, Justice Baer found it unclear when an 

incarcerated petitioner must have been pro se in order to benefit, and asked: “does the 

incarcerated petitioner have to be pro se when the ‘unknown fact’ occurred, when it 

became publicly accessible, or when he files his PCRA petition?” Id. at 639 n.3. Although 

Justice Baer recognized that the validity or prudence of the public record presumption 

itself was not at issue in Burton, he agreed with the Majority that the “presumption may 

be in tension with the statutory language which governs the newly-discovered-facts 
[J-116-2019] - 22

exception,” and suggested that this Court perhaps “should reconsider the public record 

presumption in general if that opportunity presents itself” in a future case. Id. at 640-41.

Unlike Burton, the instant appeal presents a direct challenge to the public record 

presumption. We agree with Small that the time has come to correct our precedent. As 

both the Burton Majority and Justice Baer in dissent recognized, the plain language of the 

newly discovered fact exception does not call for any assessment of whether the asserted 

facts appear in the public record. It merely requires that the “facts” upon which the 

petitioner’s 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). This language 

plainly calls for a circumstance-dependent analysis of the petitioner’s knowledge, not that 

of the public at large. “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.” Burton, 158 A.3d at 632 (emphasis in original). 

Our decision in Burton suggested a restoration of the primacy of the statutory 

language. Burton’s exception for pro se prisoners reflected a sensible understanding that 

incarcerated individuals enjoy only limited access to public records. Absent a challenge 

to the presumption itself, however, this Court could go only so far, despite our unanimous 

recognition of the tension between the statutory language and this Court’s interpretation 

of it. As Justice Baer observed, however, difficulties remain. The determination of when 

representation should be dispositive remains a complication. See id. at 639 n.3 (Baer, J., 

dissenting). Assessing whether a petitioner is, in fact, represented, or is instead only a 

prospective client, can also be a challenge. See, e.g., Commonwealth v. Brensinger, 218 

A.3d 440, 450-53 & n.10 (Pa. Super. 2019) (en banc). Further, although incarcerated pro 

se petitioners now are entitled to application of the statute as written, those who are not 

incarcerated, or who are represented by counsel, remain subject to a rigid presumption 
[J-116-2019] - 23

of judicial invention that can overcome their otherwise meritorious assertions of newly 

discovered facts.

The public record presumption exists only because this Court engrafted it upon the 

statutory language in Lark, and then perpetuated our extra-statutory innovation in later 

cases such as Chester and Whitney without meaningful discussion. Burton, 158 A.3d at 

633. But as in all matters of statutory construction, the plain language of the law must 

govern. See 1 Pa.C.S. § 1921(b) (“When the words of a statute are clear and free from 

all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its 

spirit.”). There is nothing ambiguous about the statute’s reference to facts that were 

“unknown to the petitioner.” 42 Pa.C.S. § 9545(b)(1)(ii). Although “due diligence,” id., is 

a flexible concept that varies with the context of a given case, it is a term of art wellunderstood by courts. Even assuming, arguendo, that any portion of the newly 

discovered fact exception could be deemed ambiguous, resolving any such ambiguity 

does not require the creation of a categorical rule of exclusion based upon a single factor 

with respect to which the statute is silent.

It takes little imagination to appreciate the ways in which the public record 

presumption can lead to results in tension with the statutory language. In any 

circumstance in which a PCRA petitioner can establish the facial requirements of the 

newly discovered fact exception, but the court rejects the claim merely due to the earlier 

public availability of the information, the court is overriding the language of the PCRA. 

“[I]t is not for the courts to add, by interpretation, to a statute, a requirement which the 

legislature did not see fit to include.” Commonwealth v. Wright, 14 A.3d 798, 814 (Pa. 

2011) (quoting Commonwealth v. Rieck Inv. Corp., 213 A.2d 277, 282 (Pa. 1965)). The 

instant case provides one such example of the severe consequences that can result. The 

content of the asserted public record here was not widely reported in a newspaper or 
[J-116-2019] - 24

available online—it was a paper transcript from 1993, which was locked away in court 

storage. As in Bennett, the transcript “was a matter of ‘public record’ only in the broadest 

sense.” Bennett, 930 A.2d at 1275. To presume that all members of the public know the 

contents of such a document is an absurdity that the language of the PCRA neither 

requires nor tolerates.

It bears emphasizing that the public record presumption serves only a gatekeeping 

function, precluding the petitioner from invoking a time-bar exception, which, in turn, 

precludes the court from reaching the substantive merits of the petition. Although rote 

application of the presumption is “attractive in its simplicity,” id. at 1275, our duty is not to 

streamline the process of denying potentially meritorious claims. Courts must apply 

statutes as they are written.

In the instant appeal, the Commonwealth’s advocacy focuses primarily upon the 

facts and case-specific circumstances, which we will resolve in Part III(B), infra. As for 

the broader question of the continued viability of the public record presumption, the 

Commonwealth primarily advances two principles of statutory construction. The 

Commonwealth contends that the PCRA embodies the legislature’s intent to advance the 

interest in the finality of judgments. Brief for Commonwealth at 39-40. However, when a 

statute is clear and free from ambiguity, we do not disregard its language in pursuit of its 

spirit. 1 Pa.C.S. § 1921(b). Moreover, even if we go beyond the plain language, the 

purpose of the PCRA is not simply to preclude relief for all time, a draconian means of 

advancing finality. To the contrary, the PCRA “provides for an action by which persons 

convicted of crimes they did not commit and persons serving illegal sentences may obtain 

collateral relief.” 42 Pa.C.S. § 9542. The PCRA provides a mechanism to obtain

collateral relief; finality of a judgment is merely a consequence of the denial of such relief. 

In any event, the Commonwealth’s argument is at odds with our previous conclusion that 
[J-116-2019] - 25

“we must construe the provisions of the PCRA liberally ‘to effect their objects and to 

promote justice.’” Bennett, 930 A.2d at 1270 (quoting 1 Pa.C.S. § 1928(c)).

The Commonwealth further cites the interpretive presumption that the General 

Assembly implicitly endorses this Court’s interpretation of statutory language when it 

amends the statute and declines to correct us. See Brief for Commonwealth at 37-38; 1 

Pa.C.S. § 1922(4) (court may presume “[t]hat when a court of last resort has construed 

the language used in a statute, the General Assembly in subsequent statutes on the same 

subject matter intends the same construction to be placed upon such language”). 

Although the Commonwealth’s point is well-taken, we do not view the asserted 

presumption to be controlling. Application of this presumption is discretionary, not 

mandatory. Id. § 1922 (“the following presumptions, among others, may be used”) 

(emphasis added). Although there are certainly circumstances in which this presumption 

can be helpful, and although “the legislative body is free to correct any errant 

interpretation of its intentions,” Commonwealth v. Hunt, 983 A.2d 627, 638 (Pa. 2009) 

(quoting Shambach v. Bickhart, 845 A.2d 793, 807 (Pa. 2004) (Saylor, J. concurring)),

this Court’s departure from the plain language of a statute should not be viewed 

categorically as placing the burden upon the General Assembly to detect our error and to 

marshal the resources to correct it. The General Assembly makes its intent known 

through the statutory language, itself. And ultimately it is this Court that is responsible for 

its own precedent.

As for our precedent, we do not take lightly the decision to depart therefrom. But 

stare decisis has its limits. While “stare decisis serves invaluable and salutary principles, 

it is not an inexorable command to be followed blindly when such adherence leads to 

perpetuating error.” Stilp v. Commonwealth, 905 A.2d 918, 967 (Pa. 2006). Indeed, 

particularly when this Court’s prior cases have “distorted the clear intention of the 
[J-116-2019] - 26

legislative enactment and by that erroneous interpretation permitted the policy of that 

legislation to be effectively frustrated,” this Court has “no alternative but to rectify our 

earlier pronouncements and may not blindly adhere to the past rulings out of a deference 

to antiquity.” Mayhugh v. Coon, 331 A.2d 452, 456 (Pa. 1975). As established above, 

because the public record presumption stands in tension with the plain language of the 

newly discovered fact exception, because we have recognized its deficiencies already in 

Burton,

11 and because the instant appeal presents a direct challenge to its continued 

application, it is our prerogative and our duty to steer our precedent back toward the 

language of the statute from which we have strayed. Accordingly, we disavow the public 

record presumption. To the extent that earlier decisions, including our own, relied upon 

and applied that presumption to reject a petitioner’s claim, they now are overruled.12

 

11 Chief Justice Saylor maintains that the public record presumption “reflects a 

reasonable interpretation of Section 9545(b)(1)(ii)’s requirement that, to implicate the 

relevant exception to the PCRA’s one-year time bar, newly discovered facts ‘could not 

have been ascertained by the exercise of due diligence.’” Conc. & Diss. Op. at 1 (Saylor, 

C.J.) (quoting 42 Pa.C.S. § 9545(b)(1)(ii)). However, he would “refine” the presumption 

by examining “whether [the petitioner’s] inquiry should have been focused on the relevant 

subject matter,” and by clarifying that the presumption may be rebutted with a showing 

that, despite the exercise of diligence, the petitioner was unable to discover the 

documents in question. Id. at 2. Respectfully, while these refinements might comprise 

salutary adjustments to the pre-Burton status quo, they also illustrate the unnecessary 

difficulties created by preserving the flawed, extra-textual public record exception. 

Combined with the concerns Justice Baer expressed in Burton and those raised in the 

foregoing discussion, what we find are persistent questions about how to apply the 

presumption fairly and with sensitivity to the difficulties lay people, and especially 

prisoners, may encounter obtaining even information that technically is accessible to the 

general public—difficulties associated both with knowing that such information is relevant 

and exists and with obtaining it. Presumptions serve their purpose only when they simplify 

areas of inquiry. But the public record presumption confuses more than it clarifies, and 

superimposing additional refinements in an effort to bring the presumption’s operation 

into sync with the realities faced by prisoners only complicates the matter. 

12 These decisions include Taylor, 67 A.3d at 1248-49; Commonwealth v. Edmiston, 

65 A.3d 339, 352-53 (Pa. 2013); Commonwealth v. Lopez, 51 A.3d 195, 196 (Pa. 2012)

(per curiam); Commonwealth v. Hawkins, 953 A.2d 1248, 1255 (Pa. 2006) (Opinion 
[J-116-2019] - 27

B.

That Small is relieved of the public record presumption does not mean that Small 

prevails. The public record presumption has operated only as a barrier to entry; without 

it, the textual requirements of the time-bar exception remain. The Superior Court

concluded that Bell’s 1993 PCRA testimony was materially similar to his trial presentation, 

and thus did not reveal any previously unknown facts. The Commonwealth adeptly 

develops this point. We reiterate Bennett’s conclusion that the newly discovered fact 

exception “does not require any merits analysis of the underlying claim,” and application 

of the time-bar exception therefore does not necessitate proof of the elements of a claim 

of after-discovered evidence. Bennett, 930 A.2d at 1271 (discussing Commonwealth v. 

Lambert, 884 A.2d 848 (Pa. 2005)). Nonetheless, the statutory language commands that 

the operative “facts” be “unknown” to the petitioner. 42 Pa.C.S. § 9545(b)(1)(ii).

Even when viewed in the light most favorable to Small as the prevailing party, 

Hanible, 30 A.3d at 438, the record does not support the PCRA court’s finding that Bell’s 

1993 testimony reflected “a new story of the robbery and murder with a newly added 

motive for [Bell’s] testimony,” that conflicted with Bell’s trial testimony. PCRA Ct. Op. at 

42. After a review of the record of both proceedings, as well as the parties’ arguments, it 

is clear that the Superior Court correctly deemed Bell’s 1993 testimony to be “materially 

consistent with his trial testimony and defense.” Small, slip op. at 7. 

It is true that Bell’s 1993 testimony omitted details from the sequence of events 

that he described at trial, but during his 1993 PCRA proceedings, Bell was asked to 

provide a summary of how the murder occurred, which Bell condensed into a single 

sentence: “We entered the apartment and [Small] flipped out and started stabbing the 

 

Announcing the Judgment of the Court); Chester, 895 A.2d at 523-24; Whitney, 817 A.2d 

at 476; and Lark, 746 A.2d at 588 n.4.
[J-116-2019] - 28

guys.” N.T., Bell PCRA Hearing, 3/5/1993, at 12. This was not a recantation of Bell’s trial 

testimony. Bell continued to assert that Small was the individual who stabbed Blake and 

McCrary, and, as the Commonwealth highlights, he used very similar language in 

describing the incident at trial. See supra n.8. Despite the PCRA court’s emphasis upon 

the later absence of any reference to Bell’s initial impression that Small was “punching” 

the victims rather than stabbing them, Bell’s trial testimony undoubtedly reflected his 

assertion that Small had stabbed Blake and McCrary, and that assertion was 

communicated to Small at trial. Thus, Small has known the substance of Bell’s version 

of the events since their joint trial in 1983, and neither Bell’s later summary nor his 

omission of minor details constitute a “new story” of the events. Likewise, the 

Commonwealth persuasively establishes that Bell’s motivation for testifying at trial was 

no secret; Bell expressly disclaimed any intent to assault or murder the victims despite 

his participation in the robbery, and his counsel argued this to the jury as a basis to acquit 

Bell of murder. Accordingly, none of the facts that the PCRA court highlighted can be 

deemed “unknown” under the circumstances of this case.

Small’s assertion of newly discovered facts is not foreclosed pursuant to a 

categorical presumption regarding matters of public record. However, because the 

Commonwealth has established that the factual record does not support Small’s position 

on the statutory requirements, Small nonetheless cannot establish the applicability of an 

exception to the PCRA’s time bar, and the PCRA court accordingly lacked jurisdiction to 

award him relief upon his substantive claims.

The order of the Superior Court is affirmed.

Justices Baer, Todd and Donohue join the opinion.

Chief Justice Saylor files a concurring and dissenting opinion.
[J-116-2019] - 29

Justice Dougherty files a concurring and dissenting opinion in which Justice Mundy 

joins.