Commonwealth v. Howard
Decision Date | 12 November 2021 |
Docket Number | No. 223 EAL 2021,223 EAL 2021 |
Citation | 266 A.3d 1067 (Table) |
Parties | COMMONWEALTH of Pennsylvania, Respondent v. Melvin HOWARD, Petitioner |
Court | Pennsylvania Supreme Court |
AND NOW , this 12th day of November, 2021, the Petition for Allowance of Appeal is GRANTED. We VACATE the decision of the Superior Court and REMAND for the Superior Court to apply Commonwealth v. Small, ––– Pa. ––––, 238 A.3d 1267 (2020).
Justice Dougherty files a concurring statement in which Justice Mundy joins.
In Commonwealth v. Small, ––– Pa. ––––, 238 A.3d 1267 (2020), a majority of this Court, over the partial dissent of three Justices (including this one), disavowed the "public record presumption" that previously had applied to petitioners seeking relief under the newly-discovered facts exception to the Post Conviction Relief Act ("PCRA"). See 42 Pa.C.S. § 9545(b)(1)(ii) ( ). That presumption, generally speaking, operated to impute knowledge of facts to PCRA petitioners once they became part of the public record. The Small majority, however, concluded the presumption existed "only because this Court engrafted it upon [ Section 9545(b)(1)(ii) ’s] language in [ Commonwealth v. Lark , 560 Pa. 487, 746 A.2d 585, 588 n.4 (2000) ], and then perpetuated our extra-statutory innovation in later cases[.]" Small , 238 A.3d at 1284. Thus, the majority rejected any continuing "categorical rule of exclusion" regarding matters of public record and overruled a swath of prior decisions that had relied upon and applied it. Id .
In the present matter, the Court grants Melvin Howard's petition for allowance of appeal, vacates the Superior Court's published opinion below, see Commonwealth v. Howard , 249 A.3d 1229 (Pa. Super. 2021), and remands with a general instruction for that court to "apply" our decision in Small . But the Court's per curiam order does not inform that court regarding which aspect(s) of its published opinion the Court finds troubling or explain how it ran afoul of Small . In the absence of such guidance, I offer the following perspective.
Before the PCRA court, petitioner alleged a Batson1 violation — a claim which he similarly raised more than two decades ago in an earlier, unsuccessful PCRA petition.
Recognizing his instant petition was plainly untimely, petitioner averred he met the newly-discovered facts exception under Section 9545(b)(1)(ii) based on the 2018 release of the Joint State Government Commission Report on Capital Punishment ("JSGC Report"). More specifically, he argued the "material facts upon which the claim is presented — the conclusions and recommendations set forth in the JSGC Report — were not available to [him, his] counsel, or the public until June 25, 2018, and could not have been ascertained earlier by the exercise of due diligence." PCRA Petition, 8/23/2018 at ¶15; id . at ¶18 ().
Beyond his broad-based reliance on the "conclusions and recommendations set forth in the JSGC Report," petitioner also more pointedly argued that "a governmental agency's public admission of widespread, systematic error in criminal prosecutions, like the JSGC Report and the gubernatorial moratorium based thereon, itself presents a new fact triggering the 60-day time period to file a successive PCRA claim." Id . at ¶17, citing Commonwealth v. Chmiel , 643 Pa. 216, 173 A.3d 617, 626 (Pa. 2017). And, with respect to Section 9545(b)(1)(ii) ’s due diligence component, petitioner claimed he "could not have presented this petition earlier because the report's conclusions and recommendations establish ‘a new theory or method of obtaining relief on collateral review.’ " Id . at ¶15, quoting Commonwealth v. Smith , 35 A.3d 766, 771 (Pa. Super. 2011).2 The Commonwealth opposed the petition for relief, and the PCRA court subsequently issued a Pa.R.Crim.P. 907 notice of intent to dismiss the petition as untimely and meritless.
On appeal, petitioner largely pressed the same arguments he raised below. Significantly, though, he clarified what he believed to be the new fact that gave the PCRA court jurisdiction over his petition: "The new fact is not that [petitioner] was convicted by a biased jury; what conferred jurisdiction on the lower court is the JSGC's admission that juries selected in capital cases like [petitioner]’s were shaped by a jury selection process that eliminated certain social and demographic groups." Petitioner's Superior Court Brief at 11. Then, in his reply brief, which was submitted after this Court decided Small (, )petitioner honed his argument further still:
[T]he fact at issue is not the evidence and data underlying the JSGC Report or even the record evidence in [petitioner]’s case. Rather, the ‘new fact’ giving rise to [petitioner]’s claims of constitutional error is the JSGC's public admission, following an internal investigation, that juries selected in capital cases like [petitioner]’s were shaped by a discriminatory jury selection process that eliminated certain social and demographic groups. It is this admission by a governmental agency of widespread systemic error in criminal prosecutions, and the recommendation that defendants be able to pursue relief based on statistical racial disparities in jury composition, that conferred jurisdiction on the PCRA court.
Petitioner's Superior Court Reply Brief at 4, citing Chmiel , supra .
The Superior Court ultimately rejected this argument. After reproducing at length the PCRA court's analysis, as well as portions of this Court's decision in Chmiel , the Superior Court held the JSGC Report is "distinguishable from the public admissions at issue in Chmiel ." Howard , 249 A.3d at 1238. It explained:
Nothing about this thoughtful analysis, to my mind, is remotely implicated by our decision in Small . Indeed, the phrase "public record" is entirely absent from this part of the Superior Court's discussion. I therefore do not believe our present instruction to "apply" Small pertains to this specific holding — which, in my view, was the crux of the Superior Court's opinion.
Nevertheless, I join the Court's decision to remand this matter because there are other stray statements throughout the Superior Court's opinion that could arguably be interpreted as conflicting with the holding in Small . Most notably, at least one aspect of the PCRA court's opinion as block-quoted by the Superior Court makes direct reference to law that is no longer sound:
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Commonwealth v. Howard
...text of Section 9545(b)(1)(ii)). See Commonwealth v. Howard , 249 A.3d 1229 (Pa. Super. 2021), vacated and remanded , 662 Pa. 309, 266 A.3d 1067 (2021) (per curiam order). After careful reconsideration of our prior decision and Small , and for the reasons set forth herein, we again affirm t......