newly-discovered facts exception in Pennsylvania

2026It is well-established that, except in limited circumstances where counsel’s ineffectiveness resulted in a complete deprivation of appellate review, “counsel’s ineffectiveness may not be invoked as a newly-discovered ‘fact’ for purpose of invoking the [Section] 9545(b)(1)(ii) exception.” Commonwealth v. Peterson, 192 A.3d 1123, 1129 (Pa. 2018), citing Commonwealth v. Gamboa-Taylor, 753 A.2d 780 (Pa. 2000) and its progeny; see also Commonwealth v. Bennett, 930 A.2d 1264, 1273 (Pa. 2007).16 Pennsylvania jurisprudence addressing ineffective assistance of __________________________________________

2025To invoke the newly-discovered facts exception, a petitioner must plead and prove facts that were “unknown” to him or her, and that he or she could not uncover such facts with the exercise of “due diligence.” Commonwealth v. Bennett, 930 A.2d 1264, 1274 (Pa. 2007); see also Commonwealth v. Small, 238 A.3d 1267 , 1271 (Pa. 2020) (stating that, the newly-discovered facts exception “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”).

2026Our Supreme Court has repeatedly stated that “the newly-discovered facts ____________________________________________ 1 In the context of the newly-discovered facts exception, Appellant also discusses, and, at times, confuses it with the after-discovered evidence ground for PCRA relief. -5- exception to the time limitations of the PCRA, as set forth in [Section] 9545(b)(1)(ii), is distinct from the after-discovered evidence basis for relief delineated in 42 Pa.C.S. § 9543(a)(2).” Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017).

2026See Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017) (stating “the newly discovered facts exception to the time limitations of the PCRA, as set forth in [Section] 9545(b)(1)(ii), is distinct from the after-discovered evidence basis for relief delineated in 42 Pa.C.S. § 9543(a)(2)”(some formatting altered)).

2026The newly discovered facts exception to the PCRA time bar “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.” Commonwealth v. Small, 238 A.3d 1267 , 1271 (Pa. 2020) (quotation marks and citation omitted).

2026As such, the newly-discovered facts exception “does not necessitate proof of the elements of a claim of after-discovered evidence.” Small, 238 A.3d at 1286.

2026For a petitioner to establish that the newly discovered facts exception applies, the petitioner must “demonstrate he did not know the facts upon which he based his petition and could not have learned those facts earlier by the exercise of due diligence.” Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (citation omitted).

2025Abraham, Office before I was tried for murder and sentenced to life imprisonment.” Id. at 4. -4- The newly-discovered facts exception requires the petitioner “to demonstrate he did not know the facts upon which he based his petition and could not have learned those facts earlier by the exercise of due diligence.” Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015).

2025See Cox, supra; Boyd, supra. After a careful review of the petition, amended petitions, responses, and hearings in this matter, we are constrained to conclude that the PCRA court erred in determining that Yates had satisfied the newly-discovered facts exception.

2024See, e.g., Commonwealth v. Cox, 146 A.3d 221, 227 (Pa. 2016). -4- On appeal, Appellant argues that the instant petition is timely under the newly-discovered facts exception, 42 Pa.C.S.A. § 9545(b)(1)(ii).

2025Our Supreme Court has explained that the newly discovered facts exception “focuses on facts, not on a newly[]discovered or newly willing source for previously known facts.” Commonwealth v. Marshall, 947 A.2d 714, 721 (Pa. 2008) (internal quotation marks and emphasis omitted).

2024Walker’s affidavit, and subsequent testimony at the PCRA evidentiary hearing, do not constitute newly-discovered facts, for purpose of the newly-discovered facts exception pursuant to Section 9545(b)(1)(ii) but, rather, are newly-discovered or newly-willing sources that confirm or support a previously known fact, namely, as Appellant has consistently maintained, that he was not present in Mount Union on the - 26 - evening of the incident.16 See Commonwealth v. Marshall, 947 A.2d 714 , 720 (Pa. 2008) (stating, “the focus of the exception is on the newly[-]discovered facts, not a newly[-]discove

2023Thus, the information Appellant attempts now to proffer is more than 40 years old and cannot qualify as newly - 10 - discovered facts to establish a timeliness exception to the PCRA.7 To the extent Appellant believes that Small itself constitutes a “fact” for purposes of the newly-discovered facts exception, our caselaw also does not support Appellant’s argument, as “subsequent decisional law does not amount to a new “fact” under section 9545(b)(1)(ii) of the PCRA.” See, e.g., Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011).

2022In this limited circumstance, where previous PCRA counsel’s ineffective assistance constituted a “fact” for purposes of the newly-discovered fact exception, the Bennett Court explained, the petitioner was still required to “prove that the facts were ‘unknown’ to him and that he could not uncover them with the exercise of ‘due diligence’.” Id. at 1274 ; see also Commonwealth v. Watts, 23 A.3d 980, 984 (Pa. 2011) (stating, “when a petitioner claims he was abandoned on appeal by former counsel, he may successfully invoke [the newly-discovered facts exception pursuant to Section] 9545(b)(1)(ii) if

2026It is well-established that, except in limited circumstances where counsel’s ineffectiveness resulted in a complete deprivation of appellate review, “counsel’s ineffectiveness may not be invoked as a newly-discovered ‘fact’ for purpose of invoking the [Section] 9545(b)(1)(ii) exception.” Commonwealth v. Peterson, 192 A.3d 1123, 1129 (Pa. 2018), citing Commonwealth v. Gamboa-Taylor, 753 A.2d 780 (Pa. 2000) and its progeny; see also Commonwealth v. Bennett, 930 A.2d 1264, 1273 (Pa. 2007).16 Pennsylvania jurisprudence addressing ineffective assistance of __________________________________________

2024Commonwealth v. Gamboa-Taylor, 753 A.2d 780 , 785 (Pa. 2000) (holding that, an ineffective assistance of PCRA counsel claim layered on top of a claim involving trial counsel’s ineffectiveness does not satisfy the newly-discovered facts exception to the PCRA jurisdictional time-bar); see also Commonwealth v. Robinson, 139 A.3d 178 , 186 (Pa. 2016) (stating that, couching a petitioner’s claim in terms of ineffectiveness will not save an ____________________________________________ 22 Section 9545(b)(1)(i) provides a timeliness exception when a petitioner establishes that “the failure to raise th

2021See Shannon, supra; see also Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (stating that a newly willing source for previously known facts cannot satisfy the newly-discovered facts exception).

2020See Commonwealth v. Shannon, 184 A.3d 1010, 1017 (Pa. Super. 2018) (discussing Commonwealth v. Chmiel, 173 A.3d 617 (Pa. 2017), and finding that “the majority of our Supreme Court believes that[,] while we need not find a ‘direct connection’ between the newly-discovered facts and the claims asserted by a petitioner, the statutory language requires there be some relationship between the two.”) (emphasis added). -8- Accordingly, because Hawkins has failed to show any connection between the underlying claims and his newly-discovered facts, we are unable to conclude that he has established the new

2022Moreover, a plain-reading of Section 9545(b)(1)(ii) suggests a limiting-approach whereby only those facts which are relied upon to establish the newly-discovered facts exception to the jurisdictional time-bar may then be proffered in support of after-discovered evidence claims. 42 Pa.C.S.A. § 9545(b)(1)(ii) (stating, 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 (emphasis added)); see also Commonwealth v. Brown, 141 A.3d 491 , 507 n.14 (Pa. Super. 2016) (suggesting that, a PCRA court has jurisdic

2021Our inquiry here focuses upon whether a newspaper article triggers the newly-discovered facts exception to the PCRA’s timeliness requirement. -8- exercise of due diligence, including an assessment of the petitioner's access to public records.” Id. (citation omitted).

2023“Due diligence requires neither perfect vigilance nor punctilious care, but rather it requires reasonable efforts by a petitioner, based on the particular circumstances, to uncover facts that may support a claim for collateral relief.” Commonwealth v. Burton, 121 A.3d 1063, 1071 (Pa. Super. 2015) (en banc).

2023“Due diligence requires neither perfect vigilance nor punctilious care, but rather it requires reasonable efforts by a petitioner, based on the particular circumstances, to uncover facts that may support a claim for collateral relief.” Commonwealth v. Burton, 121 A.3d 1063, 1071 (Pa. Super. 2015) (en banc). ____________________________________________ 8 Because Nichols discovered that his petition for allowance of appeal was denied, at the earliest, in November or December 2021, he filed the instant petition within one year of the time the claim of abandonment could have been presented. 42 Pa.

2026Thus, “[i]n cases involving ineffectiveness per se, [Section 9545](b)(1)(ii) is a limited extension of the one-year time requirement under circumstances when a petitioner has not had the review to which he [or she] was entitled due to a circumstance that was beyond his [or her] control.” Peterson, 192 A.3d at 1130 (emphasis added; original quotation marks omitted), quoting Bennett, 930 A.2d at 1273 . - 14 - Moreover, from our review of the Gamboa-Taylor and Bennett lines of cases, we are able to glean that, not only must the ineffectiveness cause the complete deprivation of appellate review in

2026It is well-established that, except in limited circumstances where counsel’s ineffectiveness resulted in a complete deprivation of appellate review, “counsel’s ineffectiveness may not be invoked as a newly-discovered ‘fact’ for purpose of invoking the [Section] 9545(b)(1)(ii) exception.” Commonwealth v. Peterson, 192 A.3d 1123, 1129 (Pa. 2018), citing Commonwealth v. Gamboa-Taylor, 753 A.2d 780 (Pa. 2000) and its progeny; see also Commonwealth v. Bennett, 930 A.2d 1264, 1273 (Pa. 2007).16 Pennsylvania jurisprudence addressing ineffective assistance of __________________________________________

2026“The newly-discovered facts exception, however, 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.” Id. at 128 (brackets and citation omitted).

2026“To invoke the newly-discovered facts exception, a petitioner must plead and prove facts that were unknown to the petitioner despite the exercise of due diligence.” Commonwealth v. Branthafer, 315 A.3d 113, 128 (Pa. Super. 2024).

2026Brown sought allowance of appeal from this Court solely as to the Superior Court’s holding that Brown had failed to establish the newly discovered facts exception because 40 Commonwealth v. Brown, 308 A.3d 768 , 769 (Pa. 2023) (per curiam). 41 731 A.2d at 592 (“A claim which rests exclusively upon inadmissible hearsay is not of a type that would implicate the [newly discovered facts] exception to the timeliness requirement[.]”); see also Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1270 (citing Yarris for the proposition that “a claim based on inadmissible hearsay does not implicate” the newly di

2026As the Supreme Court has explained, a Brady violation may constitute governmental interference; however, an appellant may not “begin with a discussion of the merits of a Brady claim; rather [he] must begin with a discussion of why the instant petition was timely filed.” Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008). -8- To satisfy the newly discovered facts exception, a petitioner must plead and prove “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).

2026Commonwealth v. Abu-Jamal, 596 Pa. 219 , 227 (2008)(citing Commonwealth v. Breakiron, 566 Pa. 323 , (Pa. 2001)); 42 Pa.C.S.A. §9545(b)(2).

2024See Johnston, supra; see also Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001) (rejecting attempt to invoke section 9545(b)(1)(ii) because appellant failed to offer evidence that he exercised due diligence in obtaining facts upon which claim was based).

2021See Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa. 2013) (“[T]o constitute facts which were unknown to a petitioner and could not have been ascertained by the exercise of due diligence, the information … must not be facts that were previously known but are now presented through a newly discovered source.”), overruled on other grounds by, Commonwealth v. Small, 238 A.3d 1267 (Pa. 2020) (holding that there is no requirement, within the newly-discovered facts exception, that the information must not be of public record).

2018The PCRA court agreed, largely based upon our Supreme Court’s decision in Commonwealth v. Edmiston, 65 A.3d 339 (Pa. 2013). -6- J-S46003-18 In Edmiston, the petitioner attempted to satisfy the newly- discovered-facts exception by relying upon a report from the National Academy of Science (“NAS”) indicating that there was no scientific support for finding a match by microscopic hair comparison analysis that is not also accompanied by mitochondrial DNA analysis.

2026See Monaco, supra. As such, we cannot address the merits of Appellant’s third PCRA petition unless he meets one of the timeliness exceptions set forth supra. In the case sub judice, Appellant suggests that he is entitled to the newly discovered facts exception set forth in Subsection 9545(b)(1)(ii).

2025See Monaco, supra. As such, we cannot address the merits of Appellant’s PCRA petition unless he meets one of the timeliness exceptions set forth supra. In the case sub judice, Appellant suggests that he is entitled to the newly discovered facts exception set forth in Subsection 9545(b)(1)(ii).

2026See id.; see also Whitehawk, supra. Though Appellant briefly refers to purported after-discovered evidence of Officer Grayo’s misconduct, it is well settled that “the newly-discovered facts exception to the time limitations of the PCRA, as set forth in subsection 9545(b)(1)(ii), is distinct from the after- discovered basis for relief delineated in 42 Pa.C.S.A. § 9543(a)(2).” -4- Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017); see also Commonwealth v. Reeves, 296 A.3d 1228, 1232 (Pa. Super. 2023) (“Once jurisdiction is established, a PCRA petitioner can present a substantive after- discov

2026In Reeves, we held that an appellant’s petition did not meet the newly discovered facts exception where the appellant pointed only to “newspaper articles referencing misconduct by [detectives on appellant’s case] in matters unrelated to [the appellant.]” Reeves, 296 A.3d at 1233 .

2025See Commonwealth v. Castro, 93 A.3d 818 , 825 n.11 (Pa. 2014) (reiterating that, “[facts] cannot - 12 - consist of what one hears on the news” (citation omitted)); see also Reid, 235 A.3d at 1146 (holding, a judicial decision is not a fact to support the newly-discovered facts exception because “an in-court ruling or published judicial opinion is law[;] it is simply the embodiment of abstract principles applied to actual events.

2025Commonwealth v. Reid, 235 A.3d 1124 , 1143 (Pa. 2020) (stating, “[w]ithout jurisdiction, [courts] simply do not have legal ____________________________________________ 7 Although the first issue, as set forth in Appellant’s pro se appellate brief identifies a challenge based upon only the newly-discovered facts exception, Appellant also raised a challenge based upon governmental interference in his amended Rule 1925(b) concise statement and in the argument section of his appellate brief.

2026Brown sought allowance of appeal from this Court solely as to the Superior Court’s holding that Brown had failed to establish the newly discovered facts exception because 40 Commonwealth v. Brown, 308 A.3d 768 , 769 (Pa. 2023) (per curiam). 41 731 A.2d at 592 (“A claim which rests exclusively upon inadmissible hearsay is not of a type that would implicate the [newly discovered facts] exception to the timeliness requirement[.]”); see also Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1270 (citing Yarris for the proposition that “a claim based on inadmissible hearsay does not implicate” the newly di

2026Brown sought allowance of appeal from this Court solely as to the Superior Court’s holding that Brown had failed to establish the newly discovered facts exception because 40 Commonwealth v. Brown, 308 A.3d 768 , 769 (Pa. 2023) (per curiam). 41 731 A.2d at 592 (“A claim which rests exclusively upon inadmissible hearsay is not of a type that would implicate the [newly discovered facts] exception to the timeliness requirement[.]”); see also Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1270 (citing Yarris for the proposition that “a claim based on inadmissible hearsay does not implicate” the newly di

2024The newly discovered facts exception applies only where the defendant shows both that he did not know the facts upon which he bases his PCRA petition and that he could not have learned of those facts earlier by the exercise of due diligence. 42 Pa.C.S. § 9545(b)(1)(ii); Commonwealth v. Sanchez, 204 A.3d 524, 526 (Pa. Super. 2019).

2024See Commonwealth v. Sanchez, 204 A.3d 524, 526-27 (Pa. Super. 2019) (finding the petitioner could not meet the newly discovered fact exception based on misconduct of a detective he read about in a news article, where he did “not explain how the facts regarding (the detective’s] civil judgments could not have been ascertained sooner by the -6- exercise of due diligence,” and where the petition was filed almost a year after the detective was found liable); Commonwealth v. Fleetwood, 242 A.3d 394 , at *3 (Pa. Super. 2020) (unpublished [mem.]) (cited for persuasive value) (using the date of the de

2025Regarding Section 9545(b)(1)(ii), we have recently acknowledged: “The newly-discovered facts 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.” Commonwealth v. Small, 238 A.3d 1267 , 1286 (Pa. 2020) (original quotation marks omitted) (noting that, the newly-discovered facts exception to the jurisdictional time-bar is distinct from an after-discovered evidence claim, which is a substantive basis for relief pursuant to 42 Pa.C.S.A. §

2025Regarding Section 9545(b)(1)(ii), we have recently reiterated: “The newly-discovered facts 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.” Commonwealth v. Small, 238 A.3d 1267 , 1286 (Pa. 2020) (original quotation marks omitted) (noting that, the newly-discovered facts exception to the jurisdictional time-bar is distinct from an after-discovered evidence claim, which is a substantive basis for relief pursuant to 42 Pa.C.S.A. § 954

2025Accord Commonwealth v. Natividad, 200 A.3d 11, 29 (Pa. 2019) (concluding that claim raised promptly after the disclosure of material withheld by the Commonwealth satisfied the § 9545(b)(1)(i) and (ii) exceptions); Commonwealth v. Hart, 199 A.3d 475, 481 (Pa.Super. 2018) (concluding that Hart had invoked the newly-discovered facts exception as to letters withheld by the Commonwealth, as “Hart could not be expected to assume that the Commonwealth may not have been forthright when it -7- reassured him that no other correspondence existed”).

2021“A petitioner satisfies the newly- discovered facts exception when the petitioner pleads and proves that (1) the facts upon which the claim [is] predicated were unknown and (2) could not have been ascertained by the exercise of due diligence.” Commonwealth v. Hart, 199 A.3d 475, 481 (Pa. Super 2018) (emphasis in original) (quoting Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007)).

2023See Commonwealth v. Albrecht, 994 A.2d 1091 , 1093 n.2 (Pa. 2010) (explaining that the 1995 amendments to the PCRA provided that a petitioner whose judgment of sentence became final on or before January 16, 1996, had a one-year grace period or until January 16, 1997, to file a first PCRA petition). -6- pertaining to McGuire, Appellant failed to demonstrate a fact that triggered the newly-discovered facts exception set forth at 42 Pa.C.S. § 9545(b)(1)(ii).

2016Any PCRA petition invoking one of these exceptions “shall be filed within 60 days of the date the claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2); Albrecht, 994 A.2d at 1094 . -3- J-S70036-16 Brown invokes the newly-discovered facts exception at 9545(b)(1)(ii),1 and argues that his counsel was ineffective at sentencing for failing to include information about his drug addiction and treatment in the pre- sentence investigation report (“PSI”).

2019Next, quoting Commonwealth v. Starr, Griffin argues that although an appellate court generally may not alter the resolution decided by the same 4 In Burton, the Supreme Court held that if a petitioner pleads timeliness based on the newly discovered facts exception, "the PCRA court must first determine whether 'the facts upon which the claim is predicated were unknown to the petitioner" and then consider whether "the facts could have been ascertained by the exercise of due diligence, including an assessment of the petitioner's access to public records." Burton, 158 A.3d at 638 . - 6 - J -S24021

2019Similarly, the dissent acknowledged, “the presumption may be in tension with the statutory language which governs the newly-discovered-facts exception.” Id., at 640 (Baer, J., dissenting).

2022Commonwealth v. Shaw, 217 A.3d 265, 270 (Pa. Super. 2019). “[T]he focus of the exception found at § 9545(b)(1)(ii) is on newly-discovered facts, not on newly-discovered or newly-willing sources that corroborate previously known facts or previously raised claims.” Commonwealth v. Maxwell, 232 A.2d 739 , 745 (Pa. Super. 2020) (citation omitted).5 5 The PCRA court appears to have mistakenly referred to Appellant’s claims as involving issues of after discovered evidence rather than the newly-discovered facts exception to the PCRA time-bar requirement.

2022In other words, the fact that a petitioner has “discovered yet another conduit” for the same claim previously presented “does not transform his latest source into evidence falling within the ambit of section 9545(b)(1)(ii).” Commonwealth v. Maxwell, 232 A.3d 739, 745 , (Pa.Super. 2020) (en banc), appeal denied, ___ Pa. ___, 242 A.3d 1290 (2020) (quoting Commonwealth v. Marshall, 596 Pa. 587, 597 , 947 A.2d 714, 720 (2008)).1 ____________________________________________ 1 The substantive claim of after-discovered evidence and the newly-discovered facts exception to the PCRA timeliness requireme

2025To succeed in raising that exception, a petitioner must establish that: (1) “the facts upon which the claim is predicated were unknown,” and (2) the facts “could not have been ascertained by the exercise of due diligence[.]” Id. at § 9545(b)(1)(ii). “[T]he due diligence inquiry is fact-sensitive and dependent upon the circumstances presented.” Commonwealth v. Shiloh, 170 A.3d 553, 558 (Pa.Super. 2017) (citation omitted).

2022See id.; see also Commonwealth v. Shiloh, 170 A.3d 553, 558 (Pa. Super. 2017) (remanding for a determination concerning the PCRA’s newly discovered facts exception and explaining that the “due diligence inquiry” under 42 Pa.C.S. § 9545(b)(1) is a fact-sensitive determination, dependent upon the circumstances presented).

2026As we recently and unanimously explained, “the newly discovered facts exception, as well as the requirements of Section 9545(b)(2) of the PCRA, are claim specific, not petition based.” Commonwealth v. Rivera, 324 A.3d 452 , 468 (Pa. 2024) (emphasis added); see id. (where “a facially untimely PCRA petition presents various claims and invokes the newly discovered facts exception, a court can only consider the merits of the claims that meet the exception”); see also Commonwealth v. Tedford, 228 A.3d 891 , 904 (Pa. 2020) (“This Court has consistently held that the PCRA’s time restrictions are juri

2026As we recently and unanimously explained, “the newly discovered facts exception, as well as the requirements of Section 9545(b)(2) of the PCRA, are claim specific, not petition based.” Commonwealth v. Rivera, 324 A.3d 452 , 468 (Pa. 2024) (emphasis added); see id. (where “a facially untimely PCRA petition presents various claims and invokes the newly discovered facts exception, a court can only consider the merits of the claims that meet the exception”); see also Commonwealth v. Tedford, 228 A.3d 891 , 904 (Pa. 2020) (“This Court has consistently held that the PCRA’s time restrictions are juri