Pennsylvania Post Conviction Relief Act (PCRA) Petition – Newly Discovered Evidence

There are different issues which may be raised in a defendant’s Post Conviction Relief Act Petition, as provided in 42 Pennsylvania Consolidated Statute Section 9541, et. seq., which include:

• ineffective assistance of counsel;
• prosecutorial misconduct (i.e., a Brady violation);
• unlawful guilty plea;
• newly discovered evidence; or
• an illegal sentence (i.e., falls outside the maximum allowed under Pennsylvania law).

This article will discuss PCRA petitions based on newly discovered evidence. For ineffective assistance of counsel, see Pennsylvania Post Conviction Relief Act (PCRA) Petition – Ineffective Assistance of Counsel (IAC) During Plea Bargaining.


A court can grant post conviction relief on the basis of newly discovered evidence if the defendant proves the “unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.” See Pennsylvania Post Conviction Relief Act § 9543 (a)(2)(vi).

In other words, a defendant must establish 3 things pursuant to the statute:

1. the unavailability of the evidence at the time of trial,
2. the evidence is exculpatory in nature, and
3. the outcome of the trial would have been different, i.e., the defendant would not have been convicted.


Unavailable evidence has to be evidence that could not be obtained prior to trial by reasonable diligence and is discovered after trial. Consider the following scenario. A defendant is convicted of homicide at trial. Throughout trial, the defendant maintains that there was a witness who witnessed the murder, and that the witness saw another person shoot the victim. However, this witness could not be located at the time of trial. The defendant’s attorney tried to find the witness by interviewing his friends and family, but to no avail. The trial could not be delayed, and the defendant is convicted at trial.

After the defendant is convicted, the witness finally comes forward. The witness was afraid and went in hiding after witnessing the murder committed by another person, not the defendant. Based on this newly discovered evidence, the court may grant post conviction relief.


Newly discovered evidence is exculpatory when it tends “to establish defendant’s innocence of the crimes charged, as differentiated from that which, although favorable, is merely collateral or impeaching.” What that means is that newly discovered evidence cannot be exculpatory if there was other evidence that proved defendant shot the victim. For example, if there were other witnesses that testified at trial that they saw the defendant shoot the victim, then this newly discovered evidence is not exculpatory even though it is favorable. On the other hand, if the defendant was convicted of homicide based on circumstantial evidence, then this newly discovered evidence is exculpatory.


The last prong the defendant has to establish is that if the newly discovered exculpatory evidence was available at the time of trial, there would have been a different outcome.


If you have questions about filing a PCRA petition for a loved one after trial, David S. Nenner, a criminal defense lawyer in Philadelphia, can help. Mr. Nenner has been a criminal defense lawyer since 1985.  It is important to have an experienced criminal trial lawyer who can identify issues for appeal to review your case. Call (215) 515-0042 for a free consultation.

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