Commonwealth v. Small, 8 EAP 2019

CourtUnited States State Supreme Court of Pennsylvania
Citation238 A.3d 1267
Docket NumberNo. 8 EAP 2019,8 EAP 2019
Parties COMMONWEALTH of Pennsylvania, Appellee v. Elwood SMALL, Appellant
Decision Date01 October 2020

238 A.3d 1267

COMMONWEALTH of Pennsylvania, Appellee
Elwood SMALL, Appellant

No. 8 EAP 2019

Supreme Court of Pennsylvania.

Submitted: November 18, 2019
Decided: October 1, 2020



238 A.3d 1271

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 , 638 Pa. 687, 158 A.3d 618 (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, 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 , 586 Pa. 468, 895 A.2d 520, 523 (2006) ; Commonwealth v. Lark , 560 Pa. 487, 746 A.2d 585, 588 n.4 (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 post-conviction 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.


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

238 A.3d 1272

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 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 cross-examination, 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 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 , 343 Pa.Super. 618, 494 A.2d 485 (1985).

Over the course of the following decades, Small made several attempts to obtain relief under the PCRA, all of which

238 A.3d 1273

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 , 433 Pa.Super. 615, 636 A.2d 1216 (1993), appeal denied , 537 Pa. 631, 642 A.2d 485 (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 , 558 Pa. 630, 737 A.2d 1224 (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 , 619 Pa. 679, 62 A.3d 379 (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 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...

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