J-S19026-19

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MUWSA GREEN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2002 EDA 2018

Appeal from the PCRA Order Entered May 29, 2018

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0002785-2008, 

CP-51-CR-0014817-2007

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

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

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

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

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

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

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

incarcerated PCRA petitioner three days after release of Commonwealth v. 

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

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

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

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

which prisoners have access while incarcerated. The impetus to such 

examination was to determine the scope of an exception to the jurisdictional 
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timeframe for filing a petition pursuant to the Post Conviction Relief Act

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

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

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

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

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

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

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

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

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

actual knowledge of such information.

Burton, supported by former prisoners participating as amici, argued 

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

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

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

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

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

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

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

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

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

know how to use computers, particularly if they entered prison many years 
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ago. Id. Furthermore, “prisoners have limited physical access to prison law 

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

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

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

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

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

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

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

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

domain is known to PCRA petitioners cannot apply to incarcerated 

petitioners. Id. at 638.

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

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

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

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

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

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

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

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

 

1 I recognize that Burton’s holding applies specifically to information in the 

public domain and not to judicial decisions. But this largely is for reasons 

unrelated to prisoner’s access to information; instead, it is because a judicial 

decision is not a “fact” for purposes of subsection 9545(b)(1)(ii), 

(Footnote Continued Next Page)
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Burton, I would not demand strict compliance with Walker’s holding by 

incarcerated pro se litigants until a reasonable time had passed enabling 

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

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

mandate but addressing merits of single appeal from different docket 

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

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

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

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

Court.”). 

(Footnote Continued) _______________________

Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013), and the 

statutory time-bar exception that does apply to judicial decisions “precludes 

consideration of the petitioner’s knowledge” of the decision. Burton, 158 

A.3d at 636 (emphasis removed). Even though the petitioner’s knowledge is 

not relevant, it is notable that the PCRA provides petitioners with an 

opportunity to discover a judicial decision. Commonwealth v. Lee, 206 

A.3d 1, 6 n.8 (Pa. Super. 2019) (en banc) (explaining that PCRA petitioners 

have 60 days or one year after a judicial decision to discover its existence 

and to file a petition relying upon it, depending on which version of the PCRA 

applies). Therefore, I still find the analysis in Burton to be pertinent to 

courts’ expectations for pro se litigants’ compliance with Walker.