A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

The Supreme Court of Pennsylvania has decided the case of COMMONWEALTH of Pennsylvania, Appellant, v. Edward WATTS, Appellee, 2011 WL 1587448, No. 50 EAP 2009 (April 28, 2011), an appeal from the Judgment of the Superior Court, 981 A.2d 325 (2009), No. 1963 EDA 2009, reversing and remanding the Order of the Court of Common Pleas of Philadelphia County dated May 15, 2008 at Nos. CP–51–CR–0711931–2000, CP–51–CR–0712001–2000 and CP–51–CR–0712011–2000. Justice Orie Melvin wrote the Opinion; there was no dissent.

The Court had granted allowance of appeal to determine whether a judicial opinion qualifies as a previously unknown “fact” capable of triggering the timeliness exception codified at section 9545(b)(1)(ii) of the Post Conviction Relief Act, 42 Pa.C .S. §§ 9541–9546, which applies if “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.” The Superior Court found that a serial PCRA petition was timely under section 9545(b)(1)(ii) because it had been filed less than sixty days after the Court had rendered its decision in Commonwealth v. Bennett, 930 A.2d 1264 (Pa.2007).

Justice Orie Melvin wrote that any petitioner requesting a nunc pro tunc appeal based on an abandonment of counsel theory had to show due diligence and establish that the petition was filed in accordance with Section 9545(b)(2). The Court did not authorize PCRA courts to grant post-conviction relief in every instance where a petitioner has been abandoned by appellate counsel, and it has neither stated nor implied that petitioners could circumvent the statutory filing deadline by citing Bennett as an independent basis for a new claim of ineffectiveness: “The latter proposition is absurd because section 9545(b)(1)(ii) applies only if the petitioner has uncovered facts that could not have been ascertained through due diligence, and judicial determinations are not facts.” Therefore, subsequent decisional law does not amount to a new “fact” under section 9545(b)(1)(ii) of the PCRA.

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