Commonwealth v. Tedford, D., Aplt. ( 2020 )

[J-121-2019]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 773 CAP
:
Appellee : Appeal from the Order entered on
: February 11, 2019 in the Court of
: Common Pleas, Butler County,
v. : Criminal Division at No. CP-10-CR-
: 0000241-1986
:
DONALD MITCHELL TEDFORD, : SUBMITTED: December 24, 2019
:
Appellant :
OPINION
JUSTICE DONOHUE DECIDED: April 22, 2020
In this capital case, Appellant Donald Mitchell Tedford (“Tedford”) was convicted
of first-degree murder and rape on February 6, 1987. He appeals from the order of the
lower court dismissing a petition for relief (his second) filed pursuant to the Post
Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546 (“PCRA”), on December 2, 2014, as
amended by a counseled petition on May 5, 2015, and a supplemental petition filed on
June 9, 2015. In connection with his initial filings, Tedford sought wholesale discovery
of the prosecution’s entire file, but the PCRA court concluded that the petition (as
amended) was not timely filed. Tedford also appeals the PCRA court’s order denying
his supplemental PCRA petition, in which he requested discovery, an evidentiary
hearing, and/or a new trial based upon the admission of expert testimony presented at
trial related to microscopic hair analysis. The PCRA court concluded that pursuant to
Commonwealth v. Chmiel, 173 A.3d 617 (Pa. 2017), it had jurisdiction to consider the
merits of his newly discovered facts claims pursuant to Section 9545(b)(1)(ii) of the
PCRA. The PCRA court determined, however, that Tedford had not asserted a
meritorious claim in accordance with section 9543(a)(2)(vi) of the PCRA. Order of Court
Pursuant to Pa.R.A.P. 1925(a), 4/12/2019, at 27. For the reasons set forth hereinbelow,
we affirm in all respects.
This matter arises out of the murder and rape of Jeanine Revak, a twenty-two
year-old woman pursuing a career in interior design.1 In October or November 1985,
she visited an interior design and decorating store in Cranberry Township, Butler County,
known as “The Finishing Touch.” There she met Tedford, who as an inmate at the state
prison in Greensburg, had been granted work release to secure employment at The
Finishing Touch. Tedford interviewed Revak, and although she was not offered
employment at that time, she was encouraged by the opportunity and indicated that she
would remain in touch.
On Friday, January 10, 1986, Revak did not go to work as a result of a week-long
illness. During the day, her husband and friends were unsuccessful in attempts to
contact her by phone. At approximately noon, a truck driver stopped at The Finishing
Touch with a delivery, but the front door was locked. Tedford soon opened the door, at
which time the truck driver saw a young lady in the store (who Tedford later admitted
was Revak). When her husband came home from work, Revak was not at the house
and there was no note explaining her absence. After other attempts to locate her failed,
1The facts underlying the convictions are set forth in considerably greater detail in this
Court’s 1989 opinion affirming Tedford’s judgment of sentence on direct appeal.
Commonwealth v. Tedford, 567 A.2d 610, 611-12 (Pa. 1989).
[J-121-2019] - 2
at about 11:30 p.m. he called The Finishing Touch. Tedford answered, identifying
himself as “Don.” Revak’s husband asked Tedford if he remembered his wife, to which
Tedford responded that he did remember her, that she was a very talented girl, but that
he had not seen her that day. The next morning, Revak’s husband reported her missing
to the local police. Later in the day, he found her car parked some distance away in a
shopping center parking lot. There was no trace of Revak.
At around 12:30 p.m. that same day, two brothers hunting small game in
Washington County found a young woman's body along the shoulder of the road. The
rigid state of the body and its discoloration led them to believe that she was dead, so
they contacted the authorities. She had on a red jacket, a silk blouse, black slacks, one
mesh stocking, gold earrings, a gold necklace, and a wedding band. She was not
wearing shoes. When the body was turned over, it was discovered that her slacks were
unfastened and the zipper was down. When the investigator checked under her blouse,
he found that her bra was pushed up over her breasts. The slacks and jacket were
relatively clean except for the presence of some foreign items, which were identified as
blood, weeds, and thin, fiber-type material.
From January 10 to January 12, 1986, Tedford had a furlough from prison. He
was scheduled to be back in his cell at 9:00 p.m. on Monday, January 13, 1986. He did
not report back at that time and was thus considered to be an escapee. On Monday
night, January 13, 1986, he was arrested. Pursuant to a search warrant, authorities
seized samples of Tedford’s head hairs, pubic hairs, blood and saliva.
At trial, the Commonwealth contended that Tedford lured Revak to meet him, took
her to The Finishing Touch, and raped her there. Then, fearing that she would report
[J-121-2019] - 3
him for the rape, he strangled her to death and drove her body to the woods in
Washington County where he left it for the hunters to find the following day. The
Commonwealth relied upon significant circumstantial evidence tying Tedford to the
crimes, including that the victim had sperm and seminal fluid in her vagina and on her
slacks, which laboratory testing confirmed was consistent with Tedford’s blood groupings
and genetic characteristics. Commonwealth v. Tedford, 960 A.2d 1, 10 (Pa. 2008). The
Commonwealth also presented the testimony of two jailhouse informants, who stated
that Tedford admitted to them that he forced the victim to have sex with him and then
killed her to prevent her from reporting the rape to police. Id.Of significance to this appeal, the Commonwealth also presented the testimony
of Pennsylvania State Police Criminalist Scott Ermlick. Ermlick began his testimony by
indicating that he found a pubic hair on the victim’s underpants and offered the following
testimony with regard to this evidence:
Q. In examining the victim's clothing, did you find any hairs?
A. I found numerous hairs on her clothing specifically.
Q. Did you find any pubic hairs?
A. I found a pubic hair on the victim's underclothing, her
underpants.
Q. Were you able to determine whether or not that came from
her body?
A. It did not match the pubic hair samples that were supplied to
me by the coroner.
Q. Did you receive pubic hair samples from the victim's
husband?
A. I did.
[J-121-2019] - 4
Q. Were you able to compare them and determine whether or
not he could have contributed that hair?
A. I did examine them. I did compare them and based on what
my examination revealed, they are not from him.
Q. Did you receive pubic hair samples from the defendant?
A. I did.
Q. And were you able to compare those?
A. Yes, I was.
Q. What was the result?
A. That based on my examination I found the hair from the
victim's panties to be consistent with the hair from the
defendant.
Q. When you say consistent, that is not a positive match, is it?
A. No. There's really no way that you can take a hair and say
that it came from one individual and one individual only
unless you have some really unique characteristics, which
would maybe say like a female who would dye her hair one
color and then the next day dye it a different color, then you
would end up with two or three different dye lines that could
be measured from the root. When you're dealing with undyed
hair, the best that you can do is say it is consistent with,
based upon the microscopic analysis of that hair, the
questioned hair and the suspect of comparison hair.
Q When you found the pubic hair type and blood type were
consistent, are these two things that go together would you
expect when you see the one you would see the other?
A. No sir. They are independent factors.
Q. So the fact that he has similar blood does not mean that he
has similar pubic hair or vice versa?
A. That is correct. Each test should be taken as an independent
test.
N.T., 2/3/1987, at 229-30.
[J-121-2019] - 5
Ermlick also testified regarding various synthetic fibers found on the victim. As
this Court explained in its opinion on direct appeal,
[Tedford]'s ski sweater, removed from [his] car pursuant to a
search to which he consented was introduced into evidence.
Red synthetic fibers removed from the victim's blouse and
red synthetic fibers removed from [Tedford]'s ski sweater
were found to have the same microscopic characteristics.
The ultimate source of those fibers could not be determined.
Certain polyprophyrin fibers obtained from the victim's jacket
and from carpet backing from The Finishing Touch were
microscopically examined and it was determined that they
matched. Certain vegetable fibers found on the victim's
clothing were microscopically examined and compared with
vegetable fibers taken from The Finishing Touch and it was
determined that they were similar. The clothing of the victim
was loaded with lint and was not in a condition that you would
expect a person to wear. The victim's house and wardrobe
were examined and it was determined that the fibers found
on her clothing could not have come from her home or
wardrobe. Pennsylvania State Police Criminalist Scott
Ermlick testified that it is unusual to find three different types
of foreign fibers on a victim's clothing. He testified that,
contrary to popular belief, it is not very common to find a
cross transfer of fibers and hairs.
Tedford, 567 A.2d at 616.
Tedford, testifying on his own behalf, stated that he met Revak in late October or
early November, 1985 when she came to The Finishing Touch in search of a job. Tedford
stated that he and Revak formed a friendship and that she would stop by the store once
or twice a week. According to Tedford, he and Revak eventually developed a close
intimate relationship and that once a week they would have sexual intercourse on the
floor of his office at The Finishing Touch. Tedford testified that just before noon on
Friday, January 10, 1986, Revak unexpectedly walked into The Finishing Touch store to
see him. He testified that shortly after Revak arrived, a delivery man made a delivery to
the store, and that soon thereafter he and Revak went into his office, where the victim
[J-121-2019] - 6
disrobed and they had sexual intercourse on a mat he placed on the floor. According to
Tedford, after he and Revak had consensual sex, she dressed and left the store, having
spent no more than thirty to forty-five minutes at The Finishing Touch. He said that he
did not see or hear from her again.
The jury returned a verdict of guilty on the first-degree murder and rape charges.2
In the penalty phase of the trial, Tedford presented no mitigation evidence. The jury
found two aggravating circumstances3 and no mitigating circumstances and returned a
sentence of death. The trial court sentenced Tedford to death for first-degree murder
and a consecutive term of imprisonment of eight and a half to seventeen years for rape.
After being appointed new counsel, Tedford was permitted to file post-sentence motions
nunc pro tunc. He did so, raising multiple issues of trial court error and over eighty claims
of trial counsel ineffectiveness, including trial counsel's alleged failure to investigate and
call witnesses, recall certain prosecution witnesses, impeach prosecution witnesses,
present scientific evidence, challenge the prosecution's forensic evidence, and present
evidence in support of mitigating circumstances. See Tedford, 960 A.2d at 10. On April
29, 1988, the trial court, after a hearing, denied all of Tedford’s post-sentence motions.
On direct appeal, this Court affirmed the conviction and judgment of sentence.
Commonwealth v. Tedford, 567 A.2d 610, 611-12 (Pa. 1989).
2 18 Pa.C.S. §§ 3121(a), 2502(a).
3 42 Pa.C.S. §§ 9711(d)(6) (“The defendant committed a killing while in the perpetration
of a felony); 9711(d)(9) (“The defendant has a significant history of felony convictions
involving the use or threat of violence to the person”).
[J-121-2019] - 7
Tedford filed a pro se PCRA petition on July 12, 19954 and new counsel was
appointed. A counseled PCRA petition on January 15, 1997. He asserted claims for,
inter alia, the ineffectiveness of direct appellate counsel for failing to investigate and raise
trial counsel's ineffective performance in the manner in which he preserved and
developed a claim concerning alleged juror knowledge of appellant's prior convictions;
the ineffectiveness of appellate counsel in investigating and correcting trial transcript
alterations and deletions; the ineffectiveness of trial counsel to investigate and develop
various evidentiary issues (including challenges to the evidence supporting the rape
conviction); that post-trial and appellate counsel had a conflict of interest; and that the
prosecution had suppressed exculpatory evidence in violation of Brady v. Maryland, 373
U.S. 83 (1963).
In the course of litigating his first PCRA petition, Tedford filed various motions for
discovery. Among other things, he requested materials that were not contained in his
trial counsel’s file but that he believed existed, such as photographs taken during the
investigation, crime scene drawings, audiotapes of witness interviews, UPS delivery
logs, all property seized from him, and polygraph reports. The PCRA court reviewed
each request and determined that Tedford failed to show good cause to justify granting
4 On August 2, 1995, the PCRA court entered an order dismissing the pro se PCRA
petition without prejudice and directed Tedford to file a counseled petition. He did so on
January 15, 1996, but on January 28, 2000 the PCRA court dismissed it as untimely,
reasoning that it was his second PCRA petition and was not filed within one year of the
date his judgment of sentence became final. On appeal, this Court reversed the PCRA
court and remanded the case for consideration of the merits of the claims raised in
Tedford’s January 15, 1997 petition. Commonwealth v. Tedford, 781 A.2d 1167 (Pa.
2001). The Court ruled that the January 15, 1996 petition was merely an amendment to
his July 12, 1995 petition, and thus was not a second petition. Commonwealth v.
Tedford, 566 457, 781 A.2d 1167 (Pa. 2001).
[J-121-2019] - 8
discovery. Memorandum Opinion and Order, 6/12/2002. This Court affirmed, indicating
that the discovery requests were “overbroad, improper, and lacking in good cause.”
Tedford, 960 A.2d 1, 30 (Pa. 2008). On March 5, 2004, by memorandum opinion and
order the PCRA court dismissed all of Tedford’s PCRA claims except for the claim that
his post-trial and appellate counsel had labored under a conflict of interest. The PCRA
court held an evidentiary hearing on May 18, 2004 limited to that remaining claim, and
on July 16, 2004 it issued a second memorandum opinion and order denying the claim.
This Court affirmed those rulings on appeal. Tedford, 960 A.2d at 55.
Tedford filed a counseled petition for writ of habeas corpus in the United States
District Court for the Western District of Pennsylvania, alleging that his judgment of
sentence violated his federal constitutional rights. Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. 2254, 11/18/2009, at 93. He asserted eighteen claims for relief,
including those raised in his first PCRA petition, asserting that his rights under the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the United States Constitution were
violated because of prosecutorial suppression and manipulation of evidence; that the
Commonwealth withheld material, exculpatory evidence regarding plea deals it had with
certain witnesses; that the prosecutor committed misconduct during opening and closing
arguments; that his appellate attorney labored under a conflict of interest that adversely
affected his performance and deprived Tedford of the effective assistance of counsel;
and that trial counsel was ineffective in failing to investigate and present available
mitigating evidence. Id. In his prayers for relief, he asked the district court to grant
discovery; to conduct an evidentiary hearing; and, ultimately to vacate his convictions
and death sentence. Id.
[J-121-2019] - 9
In connection with his habeas filing, Tedford filed a motion for discovery seeking
precisely the same categories of documents and other materials he had requested in
connection with his first PCRA petition. The federal district court denied all but one of
Tedford’s document requests. Tedford v. Beard, 2010 WL 3885207, *1 (W.D. Pa. Sept.
28, 2010) (granting the request for “any previously undisclosed police reports regarding
the ‘further investigation’ referenced in the affidavit of probable cause”).
In January 2011, through counsel Tedford submitted a request to the
Pennsylvania State Police (“PSP”) under the Pennsylvania Right to Know Law (“RTKL”),
65 P.S. §§ 67.101-67.3104, for all documents relating to the investigation of the rape and
murder of Revak. The PSP denied the request on the grounds that the production of
criminal investigation materials is prohibited by the RTKL as well as Pennsylvania’s
Criminal History Record Information Act, 18 Pa.C.S. §§ 9101-9183. The PSP attached
to its response an index listing the records in its possession subject to Tedford’s RTKL
request and the statutory provisions that barred disclosure of those records to him.
Tedford’s counsel did not appeal this decision to the Pennsylvania Office of Open
Records, 65 P.S. § 67.1101, believing that the RTKL decision was in accordance with
state law. N.T., 3/28/2011, at 40.
Instead, through counsel Tedford filed a second discovery motion in federal court
to compel disclosure of the entire investigative file related to Revak’s death, as described
in the index the PSP attached to its response to his RTKL request. The district court
denied the request, indicating that it was based only on a “bald and general allegation
that a possibility exists that the [PSP] files might contain something of benefit to [him]”
and that such an assertion “is insufficient to justify discovery in federal habeas.” Tedford
[J-121-2019] - 10
v. Beard, 2014 WL 4828873, at *12 (Pa. Sept. 28, 2014). The court further explained
that Tedford’s request was based upon the faulty premise that he was entitled to the
entire investigative file before trial. Id. (“[A] criminal defendant has no legal entitlement
to review the prosecution’s entire investigative file, either before, during, or after trial.”)
(citing Pennsylvania v. Ritchie, 480 U.S. 39, 59-60 (1987) (“A defendant’s right to
discover exculpatory evidence does not include the unsupervised authority to search
through the Commonwealth’s files.”)). Finally, the federal court noted that Tedford had
not been sufficiently diligent in attempting to obtain the discovery in state court. Id. at
*13 (citing Memorandum Opinion and Order, 6/30/2011, at 12).
In 2014, Tedford filed a third motion for discovery in the federal district court,
identifying twenty categories of items that he contended should be produced. Tedford
v. Beard, 2014 WL 4828873, at *13. The court denied this motion, observing that there
was no basis to reconsider its prior determinations. Id. at *15-17. The district court
subsequently stayed the federal habeas proceedings to permit Tedford to pursue state
post-conviction proceedings, where he could seek additional discovery. Opinion and
Order, 11/7/2014, at 5-6.
On December 2, 2014, Tedford, proceeding pro se, filed a second PCRA petition.
He asserted various claims for relief, including that previous PCRA counsel had failed to
take adequate efforts to obtain discovery and did not develop issues relating to trial
counsel’s failure to obtain pre-trial discovery; that PCRA counsel had failed to identify
specific pieces of evidence for DNA testing; that the prosecution solicited and used
perjured testimony at trial; that the trial court advised a witness not to exercise his Fifth
Amendment rights; and that PCRA counsel did not develop issues relating to the
[J-121-2019] - 11
questionable collection, handling, and chain of custody of evidence. In connection with
his first claim regarding prior counsel’s failure to obtain discovery, Tedford included in
his pro se PCRA petition a lengthy request for discovery:
All and any records, documents, reports, statements, audio-
recordings, drafts and diagrams, photographs, photographic
negatives, clothing and shoes, blood and hair samples, rape
kit, fibers, lab reports, records and drawings, pathologist's
records, files and audio-recordings, all polygraph
examinations, and all and any other evidence in the
possession of state prosecuting authorities, State Police,
Cranberry Township Police, and any other police agency or
office, and including but not limited to the 823 pages of
records, documents and materials relating to this case which
are not in the possession of Pennsylvania State Police.
PCRA Petition, 12/2/2014, at 6.
On January 8, 2015, the PCRA court appointed counsel to represent him and
directed that an amended counseled petition be filed. On May 5, 2015, a counseled
amended PCRA petition was in fact filed. It was titled as “Consolidated Pleadings”
consisting of (1) an amended PCRA petition, (2) a petition for reconsideration of the
PCRA court’s memorandum opinion and order of June 12, 2002, rejecting his discovery
requests in connection with his first PCRA petition, (3) a petition for writ of habeas
corpus, (4) a petition for relief pursuant to Article I, Section 11 of the Pennsylvania
Constitution, and (5) a motion for DNA testing. In this petition, Tedford forthrightly
admitted in its introductory paragraph that his purpose in filing is to obtain all of the
discovery that had been denied to him in connection with his previous PCRA petition and
his federal habeas petition:
The primary focus of the matters now brought before this
Honorable Court is the critical issue of the lack of proper
discovery in the above case that has so distorted the rulings
of the trial, PCRA, appellate, and federal habeas corpus
[J-121-2019] - 12
courts in this matter from virtually the outset of the case. As
will be demonstrated herein, the issue of discovery has been
essentially dismissed by the courts based on the belief that
trial counsel received everything that he could have possibly
received in the proper exercise of the discovery roles as they
apply to a capital prosecution in the Commonwealth. That
belief, however, was undermined by [the] March 4, 2011,
acknowledgement from the [PSP] that what has been
revealed to Tedford about this case represents only about
45% of the materials gathered by the investigating agencies
in connection of this matter. That revelation should compel
this Court to revisit the issues of discovery which are
inextricably intertwined with the serious allegations Tedford
has made about the failures of his trial, appellate and PCRA
counsel and his claims that material exists that should
otherwise be disclosed.
Consolidated PCRA Pleadings, 1/8/2015, ¶ A.
In seeking this discovery, Tedford effectively acknowledged that discovery is
unavailable in the absence of an underlying action in a court, as he stated that in order
to “engage in the critical re-examination of discovery” here, he must “propose to the Court
an appropriate form of action in which that inquiry should be accomplished. Id. ¶ B.
Accordingly, his second PCRA petition asserted claims based upon (1) the
ineffectiveness of trial counsel to invoke the discovery process properly at trial, (2) the
ineffectiveness of trial counsel to otherwise adequately and effectively develop the facts
necessary to present a proper defense, (3) the failure of PCRA counsel to properly obtain
discovery pursuant to Rule 902(E)(2) by failing to file a properly focused motion to
establish good cause for the grant of that relief and by failing to uncover the existence of
a huge amount of undisclosed material relating to the case and still in possession of the
Commonwealth. Consolidated Pleadings, 5/5/2015, ¶ D(iv). In addition, and in an
implicit recognition that his second PCRA petition was not timely filed, he also
recommended four “end arounds” to the need to assert a timely and legally cognizable
[J-121-2019] - 13
claim under the PCRA. Specifically, he contended that his new filing could be considered
to be a motion to reconsider the denial of discovery in connection with his first PCRA
petition, noting that the prior PCRA court did not know that the Commonwealth had
withheld from him a majority of the investigative materials in the PSP’s files. Id., ¶ E.
Alternatively, his new filing could be treated as a petition for habeas relief pursuant to 42
Pa.C.S. § 6501, id., ¶ F, or as a request for relief pursuant to the “Remedies Clause” in
Article I, Section 11 of our state Constitution, id., ¶ G. Finally, he requested DNA testing.
Id., H.
In these “Consolidated Pleadings,” Tedford reiterated his demand that the
Commonwealth produce all of the documents in the PSP’s possession regarding the
Revak investigation, as identified on the index attached to the RTKL response. He
argued that the Commonwealth had previously represented to his trial counsel that it had
disclosed all available materials, but that in response to his RTKL request the PSP
indicated that it possessed 823 pages of materials. Id. at ¶¶ 27-28. Claiming that the
Commonwealth had only disclosed 375 to him, he insisted that the Commonwealth had
failed to disclose to him 478 pages relating to the Revak investigation and that he was
entitled to discovery of these documents. Id. at ¶¶ 109-208.
On June 9, 2015, Tedford filed another PCRA petition, styled as a “supplemental
petition,” in which he claimed an entitlement to relief based upon an April 20, 2015 press
release issued by the Federal Bureau of Investigation (“FBI”), in which the FBI admitted,
for the first time, that testimony provided by its analysts (and other analysts that it trained)
regarding microscopic hair comparative analysis was erroneous in the vast majority of
cases. Tedford argued that this press release constituted a newly discovered fact for
[J-121-2019] - 14
purposes of the Section 9545(b)(1)(ii) exception to the PCRA’s one-year time bar. In his
supplemental PCRA petition, Tedford alleged that Ermlick had been trained by the FBI
and utilized its now discredited techniques in connection with his expert scientific
testimony at trial.5 Tedford’s Supplemental PCRA Petition, 6/9/2015, ¶ 8. He sought
discovery related to Ermlick’s testimony, an evidentiary hearing, and the vacation of his
judgment of sentence. Id. ¶¶ 21, 23, 27.
Approximately three years later, the Commonwealth filed a response.
Commonwealth’s Response, 9/18/2018. With regard to Tedford’s broad request for
discovery in connection with his amended counseled second PCRA petition, the
Commonwealth argued that the PCRA court lacked jurisdiction and authority to entertain
the request because the petition was not timely filed. Id., ¶ 13. With regard to Tedford’s
supplemental petition, the Commonwealth agreed that the PCRA court had jurisdiction
to consider the merits of his claim, based upon this Court’s decision in Commonwealth
v. Chmiel, 173 A.3d 617 (Pa. 2017), in which we ruled that the FBI 2015 press release
constituted an newly discovered fact for purposes of the timeliness exception in Section
9545(b)(1)(ii). Id. at 626. Nevertheless, the Commonwealth argued that Tedford’s
underlying claim was without merit. Id., ¶ 40. The Commonwealth claimed that the April
20, 2015 press release did not invalidate microscopic hair analysis entirely, but rather
merely acknowledged a high degree of “overclaiming” by its analysts – overstating the
extent to which the comparative analysis of hairs could identify the origin of a hair as
belonging a particular person. Id., ¶ 42. In this regard, the Commonwealth insisted that
5 He also asserted that his trial counsel was ineffective for failing to challenge the
admission of Ermlick’s testimony, a claim that he does not advance on appeal. Id. at 6.
[J-121-2019] - 15
Ermlick’s testimony did not involve any overclaiming, as he only testified that the pubic
hair found on Revak’s body was “consistent with” Tedford’s pubic hair, rather than
testifying the it “belonged to” Tedford. Id. at 47.
The PCRA court filed notice of its intention to dismiss all of the claims without an
evidentiary hearing, setting forth its reasons for dismissal pursuant to Pa.R.Crim.P.
909(B).6 PCRA Court Notice of Intentional to Dismiss pursuant to Pa.R.Crim.P. 909(B),
10/9/2018, 2-8. As to the request for discovery, the PCRA court understood Tedford to
be relying on the newly discovered facts exception in Section 9545(b)(1)(ii),7 with the
6 According to Pennsylvania Rule of Criminal Procedure 909(B)(2), “[i]f the judge is
satisfied from this review that there are no genuine issues concerning any material fact,
the defendant is not entitled to post-conviction collateral relief, and no legitimate purpose
would be served by any further proceedings, (a) the judge shall give notice to the parties
of the intention to dismiss the petition and shall state in the notice the reasons for the
dismissal.” Pa.R.Crim.P. 909(B)(2)(a). The Petitioner may respond to the proposed
dismissal within twenty days of the notice of intent to dismiss. Pa.R.Crim.P. 909(B)(2)(b).
7 Prior to 2018, the PCRA’s timeliness provisions provided, in relevant part:
(b) Time for filing petition.–
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date
the judgment becomes final, unless the petition alleges and
the petitioner proves that:
(i) the failure to raise the claim previously was
the result of interference by government officials
with the presentation of the claim in violation of
the Constitution or laws of this Commonwealth
or the Constitution or laws of the United States;
(ii) 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; or
(iii) the right asserted is a constitutional right that
was recognized by the Supreme Court of the
[J-121-2019] - 16
newly discovered fact being the PSP’s disclosure that it had not, contrary to prior
representations, produced to him all of the relevant documents in its possession
regarding the Revak investigation. Id. at 4-7. The PCRA court rejected this contention,
as Tedford had not filed the PCRA petition within sixty days of the date on the claim
could have been presented (March 4, 2011, the date on which he received the PSP’s
letter denying his RTKL request).8 Id. at 6. It also stated that Tedford could not raise his
claim because it was previously litigated and because he waived his claim when he failed
to pursue an appeal of the RTKL response with the Office of Open Records. Id. at 6
(citing 42 Pa.C.S. § 9544(a) and (b)). With regard to Tedford’s challenge to Ermlick’s
testimony regarding microscopic hair analysis testimony, the PCRA court held that
jurisdiction was lacking and that the press release did not constitute exculpatory
evidence that would have changed the outcome of trial. Id. at 7-8.
Tedford filed a response to the Rule 909(B) notice, asserting that the PCRA court
had jurisdiction over his amended counseled petition. He claimed that counsel
United States or the Supreme Court of
Pennsylvania after the time period provided in
this section and has been held by that court to
apply retroactively.
(2) Any petition invoking an exception provided in paragraph
(1) shall be filed within 60 days of the date the claim could
have been presented.
42 Pa.C.S. § 9545(b) (eff. Jan. 16, 1996 to Dec. 24, 2018). Section 9545(b)(2) was
amended in 2018 to provide that “[a]ny petition invoking an exception provided in
paragraph (1) shall be filed within one year of the date the claim could have been
presented.”
8 Prior to the effective date of this 2018 amendment, Section 9545(b)(2) provided that
“[a]ny petition invoking an exception provided in paragraph (1) shall be filed within 60
days of the date the claim could have been presented.” Because Tedford’s claim arose
well before the amendment to Section 9545(b)(2), the older version of the statute applies.
[J-121-2019] - 17
representing him at the time of his first PCRA petition were ineffective for failing to
properly advance and articulate his discovery request. Response to PCRA Court’s
Notice of Intention to Dismiss, 10/29/2018, at 11, 23-25. As such, he argued that
because he had a right to constitutionally effective counsel in his collateral relief efforts,
the PCRA time bar was unconstitutional as applied to him. Id. at 10-11. With respect to
his supplemental petition, he argued that Chmiel provided jurisdiction to consider this
petition.
On February 11, 2019, the PCRA court issued an order, again indicating its lack
of jurisdiction to hear the untimely PCRA requests regarding discovery matters. PCRA
Court Order, 2/11/2019, at 1. Based upon Chmiel, it corrected its previous ruling
regarding jurisdiction over the supplemental petition, but continued to maintain, for the
reasons set forth in the Rule 909(B) notice, that Tedford’s microscopic hair analysis claim
lacked any merit. Id. at 2.9
Tedford filed a timely counseled notice of appeal. In this Court, Tedford raises
three issues for our consideration:
1. Whether the [t]rial [c]ourt erred in concluding it lacked
jurisdiction to consider Tedford's PCRA pleading because it
was allegedly filed outside the statute of limitations provided
by Title 42 Pa.C.S. §9545(b) when proper jurisdiction was
conferred on the Court from each of the following alternative
bases:
a) the petition was timely pursuant to Title 42
Pa.C.S. §9545(b)(ii) as it was based on a new
9 The PCRA court granted Tedford leave to file an amended motion requesting leave for
DNA testing in conformity with 42 Pa.C.S. § 9543.1 within sixty days. PCRA Court Order,
2/11/2019, at 2-3. Tedford did not file an amended motion for DNA testing and does not
raise any arguments related to DNA testing before this Court.
[J-121-2019] - 18
fact that permitted a filing outside the statute of
limitations;
b) the petition properly sought reconsideration of
the previous, timely filed PCRA application
because the dismissal of that prior application
was based on a material error of fact that
required reconsideration; and,
c) the application of the statute of limitations
violates Tedford's rights to due process
pursuant to the 5th and 14th Amendments to
the United States Constitution and Article 1, §9
of the Constitution of the Commonwealth, and
his right to a judicial remedy pursuant to Article
1, §11 of the Constitution of the
Commonwealth?
2. Whether the [t]rial [c]ourt erred in dismissing the case where
the Commonwealth conceded it was amenable to discovery
and the only remaining issue was the precise method through
which discovery would be provided?
3. Whether the [t]rial [c]ourt erred in denying Tedford a new trial
without providing him discovery and an evidentiary hearing
where newly discovered evidence established critical expert
trial testimony regarding hair and fiber analysis lacked a
scientific basis and was unreliable?
Telford’s Brief at 5.
In Commonwealth v. Spotz, 84 A.3d 294 (Pa. 2014), this Court articulated an
appellate court’s scope and standard of review of a denial of PCRA relief as follows:
[A]n appellate court reviews the PCRA court's findings of fact
to determine whether they are supported by the record, and
reviews its conclusions of law to determine whether they are
free from legal error. The scope of review is limited to the
findings of the PCRA court and the evidence of record,
viewed in the light most favorable to the prevailing party at
the trial level.
Id. at 311 (quotation marks and citations omitted).
[J-121-2019] - 19
I. PCRA court’s jurisdiction over requests for discovery of PSP files
For his first claim, Tedford asserts that the PCRA court erred in dismissing his
second counseled PCRA petition as untimely. This Court has consistently held that the
PCRA's time restrictions are jurisdictional in nature and that a PCRA court must, before
considering the merits of claims asserted in a PCRA petition, first make a threshold
determination whether each claim was timely filed. See, e.g., Commonwealth v. Cox,
146 A.3d 221, 227 (Pa. 2016); Commonwealth v. Robinson, 139 A.3d 178, 185-186 (Pa.
2016); Commonwealth v. Taylor, 67 A.3d 1245, 1248-1249 (Pa. 2013).
In the vast majority of cases, if a PCRA claim is not timely filed, the PCRA court
must dismiss it.10 See, e.g., Commonwealth v. Jones, 54 A.3d 14, 18 (Pa. 2012); Taylor,
67 A.3d at 1249. Section 9545(b) of the PCRA establishes a one-year time bar for the
filing of PCRA claims, with three exceptions. We summarized the statutory language of
Section 9545(b) in Jones as follows:
A PCRA petition, including a second or subsequent one,
must be filed within one year of the date the petitioner's
judgment of sentence became final, unless he pleads and
proves one of the three exceptions outlined in 42 Pa.C.S. §
9545(b)(1). A judgment becomes final at the conclusion of
direct review by this Court or the United States Supreme
Court, or at the expiration of the time for seeking such review.
10 We decline Tedford’s invitation to treat his second PCRA petition as a petition for
habeas relief pursuant to 42 Pa.C.S. § 6501. If a petitioner's claim falls under the
parameters of the PCRA, it must be litigated under the PCRA statute. Commonwealth
v. Descardes, 136 A.3d 493, 501-503 (Pa. 2016) ("[W]here a petitioner's claim is
cognizable under the PCRA, the PCRA is the only method of obtaining collateral
review."). The PCRA governs seven types of enumerated errors as set forth in 42
Pa.C.S. § 9543(a)(2). These include violations of the state and federal constitutions, 42
Pa.C.S. § 9543(a)(2)(i), ineffective assistance of counsel, 42 Pa.C.S. § 9543(a)(2)(ii),
and after-discovered evidence that would have changed the outcome of trial, 42 Pa.C.S.
§ 9543(a)(2)(vi). As such, all of the claims in Tedford’s second PCRA petition are
cognizable under the PCRA statute and must be litigated under PCRA strictures,
including its timeliness requirements.
[J-121-2019] - 20
… The PCRA squarely places upon the petitioner the burden
of proving an untimely petition fits within one of the three
exceptions. The PCRA further requires a petition invoking
one of these exceptions to be filed within 60 days of the date
the claim could have been presented.
Jones, 54 A.3d at 16-17 (citations and footnote omitted).
In this case, this Court affirmed Tedford’s March 20, 1987 judgment on December
13, 1989 and his judgment of sentence became final ninety days thereafter. The one-
year time bar began to run on the date that the 1995 legislative amendments to the
PCRA statute became effective (January 16, 1996). As a result, the one-year limitations
period for filing a PCRA expired on January 16, 1997. Tedford, 960 A.2d at 11.
Therefore, for the PCRA court to have jurisdiction to consider Tedford’s second PCRA
petition, he was required to plead and prove one of the three enumerated exceptions to
the time bar. Tedford contends that he was entitled to file his current PCRA petition
based upon the newly discovered facts exception, which provides 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). He argues
that the “facts” which permitted the filing of his present PCRA petition include the
“revelations” in the PSP’s March 4, 2011 letter in response to his RTKL request.
Tedford’s Brief at 46-47. In particular, he posits that prior to receipt of this letter, he had
from the time of trial been assured by the Commonwealth that the 375 pages of
documents that he had received in discovery was the sum total of the documents
available for discovery. Id. at 44, 60. The March 4, 2011 letter and attachment, however,
revealed that the PSP had more than 800 documents in its possession, demonstrating
that Tedford had received only about 40 to 45% of the PSP’s files. Id. at 42.
[J-121-2019] - 21
Tedford does not deny that he failed to file his current PCRA petition within sixty
days of receipt of the PSP’s March 4, 2011 letter. Indeed, he did not file his current
PCRA petition until December 2, 2014, well over three years after the receipt of the
PSP’s letter. Tedford argues, however, that this lapse in time should be excused, as it
was the result of his prior counsel’s ineffectiveness. He posits that upon receipt of the
PSP’s letter, his prior counsel should have immediately filed (i.e., within sixty days) a
new PCRA petition. Id. at 46-47. The PCRA court rejected this argument, pointing out
that Tedford’s focus on the ineffectiveness of “prior counsel” was misguided, since his
present counsel was appointed to represent him in his federal court habeas proceedings
on September 11, 2012. Order of Court Pursuant to Pa.R.A.P. 1925(a), 4/12/2019, at
14 (citing Tedford, 2014 WL 4828873, at *13). As such, Tedford did not file the current
PCRA petition until more than two years after new counsel was appointed (following the
denial of his discovery requests in the federal district court). Id.Tedford’s contention, namely that the requirement that a PCRA claim based upon
the newly discovered facts exception in Section 9545(b)(1)(ii) must be filed within sixty
days from the date on which it could have been presented “did not apply to him” because
of his prior counsel’s ineffectiveness, overlooks that this Court has repeatedly held that
claims of ineffectiveness do not overcome the statutory time limitations of the PCRA
statute. In Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 786 (Pa. 2000), for
example, we stated that “claims of PCRA counsel’s ineffectiveness do not escape the
PCRA one-year time limitation merely because they are presented in terms of current
counsel’s discovery of the ‘fact’ that a previous attorney was ineffective.” Id. at 786.
More recently, in Commonwealth v. Robinson, 139 A.3d 178 (Pa. 2016), we observed
[J-121-2019] - 22
that “it is well-settled that couching a petitioner’s claims in terms of ineffectiveness will
not save an otherwise untimely filed petition from the application of the time restrictions
of the PCRA.” Id. at 186. We have also consistently held that courts have no power to
carve out equitable extensions to the PCRA’s timeliness requirements. See, e.g.,
Robinson, 139 A.3d at 180, 187; Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa. 2004);
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003); Commonwealth v. Fahy,
737 A.2d 214, 222 (Pa. 1999).
In an effort to avoid these rulings by this Court, Tedford cites to Commonwealth
v. Peterson, 192 A.3d 1123 (Pa. 2018), in which this Court held that counsel's negligence
per se in filing an untimely PCRA petition constitutes adequate grounds to permit the
filing of a new PCRA petition beyond the one-year time bar pursuant to the exception in
subsection 9545(b)(1)(ii). Id. at 1125. Peterson involved a unique procedural context.
After being sentenced to consecutive life sentences for first-degree murder, Peterson
petitioned for post-conviction relief. Although the docket reflected that an evidentiary
hearing was scheduled, it never took place and there was no further activity on the
petition for the next fifteen years. The PCRA court denied the petition on its merits, but
on appeal the Superior Court quashed the appeal because it had been filed one day too
late under the PCRA’s timeliness requirements. Peterson then filed a second petition,
seeking, based upon counsel's ineffectiveness in filing his first PCRA petition late,
reinstatement of his PCRA appellate rights nunc pro tunc to challenge the PCRA court's
order dismissing his first petition. This Court reversed the Superior Court’s quashal of
the second petition on timeliness grounds, ruling that counsel's untimely filing of
Peterson's first PCRA petition constituted ineffectiveness per se, “as it completely
[J-121-2019] - 23
deprived Peterson of any consideration of his collateral claims under the PCRA.” Id. at
1130. Counsel's ineffectiveness per se in connection with Peterson's first PCRA petition
was a newly discovered “fact” under Section 9545(b)(2)(iii), as the PCRA court had made
factual findings that Peterson did not know about the untimely filing and could not have
ascertained this fact through the exercise of due diligence. Id. at 1130-31. Given these
factual findings, and because counsel's untimely filing of Peterson's first PCRA petition
constituted ineffectiveness per se by completely foreclosing him from obtaining any
collateral review, we concluded that Peterson was entitled to invoke the subsection
9545(b)(1)(ii) exception to permit the filing of his second PCRA petition beyond the one-
year time bar. Id. at 1132.
Tedford argues that his prior counsel’s failure to timely file a new PCRA petition
within sixty days of receipt of the PSP’s letter constituted negligence per se. Tedford’s
Brief at 48. We disagree, as even if we assume that prior counsel’s (and current
counsel’s) actions constituted ineffective assistance of counsel, said ineffectiveness was
not ineffectiveness per se, as it did not wholly deprive Tedford of collateral PCRA review.
As the PCRA court correctly observed, Tedford previously litigated a substantial number
of collateral claims in connection with his first PCRA petition, including multiple claims of
ineffective assistance by trial and appellate counsel and numerous contentions that he
had been improperly denied discovery. Order of Court Pursuant to Pa.R.A.P. 1925(a),
4/12/2019, at 17. This Court thoroughly reviewed the certified record and affirmed the
PCRA’s denial of those claims. Tedford, 960 A.2d at 56. Moreover, any ineffectiveness
by counsel (past or present) has not jurisdictionally foreclosed all of Tedford’s current
[J-121-2019] - 24
collateral claims, as the PCRA court considered his microscopic hair analysis and DNA
testing on their merits.
Next, Tedford argues that if his current PCRA petition is untimely under the
strictures of Section 9545(b), then this provision of the PCRA is “unconstitutional as
applied.” Tedford’s Brief at 56-59. Again invoking the ineffectiveness of his prior
counsel, he contends that he has a constitutional right to “receive a fair hearing in
connection with his claims and the effective assistance of counsel pursuant to the 5 th, 6th
and 14th Amendments to the United States Constitution and Article I §9 of the
Constitution.” Id. at 56 (citing Commonwealth v. Smith, 121 A.3d 1049, 1053 (Pa. Super.
2014)). In this regard, he insists that “[h]is substantive right to seek relief and to a fair
procedure [has been] summarily repudiated by the mechanical operation of the statute
of limitations.” Id. at 58. He further argues that Article 1, Section 11, sometimes known
as the “Remedies Clause,” entitles him to relief from the ineffectiveness per se of his
prior counsel, as that constitutional provision “ensures that where legal injury has been
sustained there will always be some way for the individual to access the courts for relief.”
Id.
In his brief filed with this Court, Tedford makes no attempt to develop these
constitutional arguments. We note that this Court has rejected prior constitutional
challenges to the PCRA’s timeliness provisions. In Commonwealth v. Turner, 80 A.3d
754, 767 (Pa. 2013), we held that the PCRA “provide[s] a reasonable opportunity for
those who have been wrongly convicted to demonstrate the injustice of their conviction,”
and that “[t]he current PCRA places time limitations on such claims of error, and in so
doing, strikes a reasonable balance between society's need for finality in criminal cases
[J-121-2019] - 25
and the convicted person's need to demonstrate that there has been an error in the
proceedings that resulted in conviction." Id. at 767 (quoting Commonwealth v. Peterkin,
722 A.2d 638 (Pa. 1998)). Tedford does not address our reasoning in Turner and
Peterkin.
Finally, Tedford posits that the PCRA court had jurisdiction to consider his present
PCRA counseled petition as a reconsideration of his first petition, which was indisputably
timely filed. Tedford’s Brief at 51. He points to cases holding that Pennsylvania courts
may reconsider a prior decision when it finds that its original ruling was based upon a
“materially false factual premise.” Id. at 52 (citing Moore v. Moore, 634 A.2d 163, 166
(Pa. 1991); Nixon v. Nixon, 198 A. 154, 158-59 (Pa. 1938)). Tedford claims that his
collateral claims that counsel was ineffective in obtaining adequate discovery were
rejected because the Commonwealth denied that anything remained to be discovered,
and that, as a result, the PCRA court’s January 31, 2000 order denying discovery should
be vacated and his second PCRA petition should be considered as an amendment to
the first. Id. at 51-53.
Tedford does not cite to any authority for his proposal. The Commonwealth cites
to a case from this Court that rejected a similar request. In Commonwealth v. Wholaver,
177 A.3d 136 (Pa. 2018), the PCRA petitioner moved this Court to remand his case to
the PCRA court so that he could amend his petition to add an additional claim based on
an allegation of newly discovered facts. The PCRA petition had been filed seven years
earlier and decided three years earlier by the PCRA court. This Court denied the
request, stating:
Appellant is attempting to amend his PCRA petition to include
a claim of after-discovered evidence. Appellant fails to cite
[J-121-2019] - 26
any authority that would allow him to amend the petition
decided herein at this late stage of litigation. Accordingly, we
deny Appellant's motion for remand without prejudice to
Appellant to attempt to raise his after-discovered-evidence
claim in a serial PCRA petition.
Id. at 181.
In accordance with Wholaver, where a petitioner contends to have identified newly
discovered facts, the proper approach under the PCRA is to file a new PCRA claim in
accordance with Section 9545(b)(1)(ii). The PCRA court’s January 31, 2000 order was
entered twenty years ago and was subsequently affirmed by this Court twelve years ago.
Tedford, 960 A.2d at 1. The PCRA court’s denial of Tedford’s request for
“reconsideration”’ of its prior order was free from legal error.
II. The PCRA court did not err in dismissing the PCRA petition rather than
agree to a precise method through which discovery would be provided
For his second issue on appeal, Tedford contends that, without regard to the
strictures of the PCRA, the Commonwealth should have produced to him its entire file
(as itemized on the attachment to the PSP’s March 4, 2011 letter). Tedford contends
that the Commonwealth’s production of only 375 of the more than 800 documents in its
possession violated discovery rules, including the current Rule 573 of the Pennsylvania
Rules of Criminal Procedure. He argues that he is entitled to production of the entire
prosecution file so that he may determine whether the Commonwealth has committed
any Brady11 violations. He notes that the itemized list of documents includes various
reports identified as “crime report,” “interviews,” “medical information,” “suspect
11 A “Brady violation” consists of three elements: (1) suppression by the prosecution (2)
of evidence, whether exculpatory or impeaching, favorable to the defendant, (3) to the
prejudice of the defendant. See, e.g., Commonwealth v. Paddy, 800 A.2d 294, 305 (Pa.
2002).
[J-121-2019] - 27
information,” and “psychiatric reports,” among others. He insists that these categories
alone “strongly suggests the presence of Brady material within them,” and asks whether
“can anyone assert with confidence that Brady has been followed here,” particularly
given the Commonwealth’s previous failure to disclose that it possessed documents that
it had not produced to him. Tedford’s Brief at 43, 62. Tedford states that he offered the
Commonwealth and the PCRA court a review process whereby the Commonwealth
would submit a list of documents for which it would assert a claim of privilege and the
PCRA court would review the remaining documents in camera. Id. at 60. He argues
that the PCRA court erred by rejecting his proposal and dismissing his PCRA petition as
untimely. Id. at 65-66.
In Commonwealth v. Williams, 86 A.3d 771 (Pa. 2014), this Court articulated the
discovery procedures that apply in PCRA cases. We specifically rejected any contention
that a petitioner is entitled to review every document in the prosecutor’s filed, regardless
of whether the petitioner has asserted a Brady claim:
By way of PCRA discovery background, it is important to
reemphasize that, although substantive Brady claims may be
cognizable under the PCRA, Brady does not govern the
question of the scope of discovery under the PCRA. District
Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S.
at 68–69, 129 S.Ct. 2308 [2009]. Furthermore, the
Commonwealth is correct that there is no general right, under
Brady and our Criminal Rules as a trial matter, or under Rule
902(E)(2) as a capital PCRA matter, to inspect the
prosecutor's file. Brady imposes an affirmative and
continuing duty upon the government to disclose exculpatory
information, but it establishes no specific right in the
defendant to review the Commonwealth's file to see, for
example, if he agrees with the Commonwealth's assessment
and representation.
* * *
[J-121-2019] - 28
This Court elaborated upon the limitations of Brady in the
capital PCRA context in Williams, supra:
Nor would Brady v. Maryland have required the
PCRA court to enter a specific order directing
the production of exculpatory documents from
the Commonwealth. While the
Commonwealth's obligations under Brady
continue through all stages of the judicial
process, see Pennsylvania v. Ritchie, 480 U.S.
39, 59, 107 S.Ct. 989, 1002, 94 L.Ed.2d 40(1987), the Commonwealth is, in the first
instance, the judge of what information must be
disclosed. See generally Commonwealth v.
Copenhefer, 553 Pa. 285, 319, 719 A.2d 242,
259 (1998) (stating that it is the petitioner's
burden to “prove, by reference to the record,
that evidence was withheld or suppressed by
the prosecution”).
Williams, 732 A.2d 1167, 1175–76 (Pa. 1999); see also
Commonwealth v. Edmiston, 851 A.2d 883, 887 n. 3 (2004).
Given this background, we may summarily reject appellee's
argument that he has a right to PCRA discovery conferred by
the commentary to Criminal Rule 573 merely because he has
raised a Brady claim. This argument misperceives Rule 573
and its associated commentary, as well as the scope of
Brady. Chapter 5 of the Criminal Rules governs “Pretrial
Procedures in Court Cases,” with Rule 573 specifically
addressing “Pretrial Discovery and Inspection.” Rule
573(B)(2)(a) provides that, upon a motion for pre-trial
discovery, the court has discretion to order the
Commonwealth to allow a defendant's attorney to inspect,
copy, or photograph any evidence identified by the defendant
that is material to the defense and where disclosure is in the
interest of justice. The comment then clarifies that this rule
applies “only to court cases.” By comparison, the comment
notes that Brady applies “to all cases, including court cases
and summary cases.” Pa.R.Crim.P. 573 cmt. The comment
says nothing about PCRA discovery, much less an
entitlement to discovery, or even about the scope of
discovery in instances where Brady controls. The comment
merely adverts to pre-trial Brady obligations in both summary
and court cases, in a rule devoted to court cases. The
comment does not address, much less alter the controlling
[J-121-2019] - 29
Rule 902(E)(2) parameters for, discovery in collateral attacks
brought under the PCRA.
* * *
Thus, although the Commonwealth has a continuing duty to
disclose exculpatory evidence it discovers, appellee's right to
PCRA discovery is governed by Rule 902(E)(2), not by
Brady. This is not to say that a Brady claim raised on PCRA
review may never warrant some form of discovery. See
Williams, supra. A sufficient, specific PCRA factual proffer
may be made and credited by the PCRA judge so as to, for
example, convince the judge that the Commonwealth has not
been candid about the content of its files, so that inspection,
whether in camera or by the defense, is warranted. But, the
mere fact that a claim sounds in Brady does not, on its own,
create a special right to PCRA discovery.
* * *
Notably, this Court has viewed overly broad discovery
requests under Rule 902(E)(2) with suspicion. A general
claim of necessity is insufficient. Instead, discovery requests
in the PCRA setting must be accompanied by an explanation
why the exculpatory information was unavailable to prior
counsel and must identify specific documents or items that
were not disclosed pre-trial or during the trial proceedings.
Williams, 732 A.2d at 1175; Commonwealth v. Carson, 913
A.2d at 261 (“[A] PCRA petitioner is not entitled to discovery
where he has not shown the existence of requested
documents, as speculation that requested documents will
uncover exculpatory evidence does not satisfy the
requirements of Rule 902(E)(2).”) (citations omitted).
Williams, 86 A.3d at 787-789.12
12 In Tedford’s federal habeas proceedings, the federal district court responded similarly,
indicating that merely because the PSP file contains more records than were made
available to petitioner's defense does not support the inference that the prosecution
improperly suppressed information. Tedford v. Beard, 2014 WL 4828873, at *12 (Pa.
Sept. 28, 2014) (“As counsel well knows, such a bald and general allegation that a
possibility exists that the PSP's files might contain something of benefit to Petitioner,
without more, is insufficient to justify discovery in federal habeas.”). The district court
also cited to precedent from the United States Supreme Court holding that "[t]here is no
[J-121-2019] - 30
For these reasons, the trial court did not err in dismissing Tedford’s PCRA petition
rather than providing him with access to the entirety of the Commonwealth’s files.
Tedford’s demand to review the Commonwealth’s files did not identify “specific
documents or items that were not disclosed pre-trial or during trial proceeds,” id. at 789,
but rather is comprised entirely of conjecture that damaging documents may exist in
those files.
III. Microscopic Hair Analysis Claim
For his final issue, Tedford asserts that the PCRA court erred in denying
discovery, an evidentiary hearing, and relief in the form of a new trial with respect to his
claim that Ermlick, the Commonwealth’s expert criminology analyst, testified improperly
as to the strength of the microscopic hair analysis at trial. Tedford’s Brief at 66. The
Commonwealth and PCRA court agreed with Tedford that the FBI’s April 20, 2015 press
release13 which reported the initial findings of an ongoing investigation that scrutinized
the testimony of FBI analysts concerning microscopic hair comparison analysis prior to
2000,14 provided PCRA courts with jurisdiction to hear this claim. Based upon this
general constitutional right to discovery in a criminal case, and Brady did not create one.
Id. (citing Pennsylvania v. Ritchie, 480 U.S. 39, 59-60 (1987) (quoting Weatherford v.
Bursey, 429 U.S. 545, 559 (1977)).
13 See Commonwealth’s response to Tedford’s supplemental PCRA, 9/18/2018, at 40
(“The Commonwealth agrees with Tedford that the April 20, 2015 joint press release …
regarding FBI microscopic hair comparison analysis satisfies the [newly] discovered fact
exception to the one-year PCRA time bar to permit an otherwise untimely PCRA claim
to be considered on the merits.”).
14 In or around 2000, mitochondrial DNA testing replaced microscopic analysis at the
FBI. FBI 2015 Press Release, 4/15/2015, at 1 (stating that “[t]he review focuses on
cases worked prior to 2000, when mitochondrial DNA testing on hair became routine at
the FBI.”).
[J-121-2019] - 31
investigation,15 the FBI concluded that its examiners' testimony “in at least 90% of cases
contained erroneous statements” and that its analysts “committed widespread,
systematic error, grossly exaggerating the significance of their data under oath with the
consequence of unfairly bolstering the prosecution's case.” Chmiel, 193 A.3d at 621. In
Chmiel, this Court ruled that the FBI 2015 press release constitutes a newly discovered
fact for purposes of the section 9545(b)(1)(ii) exception to the PCRA’s one-year time bar.
Id. at 626.
Tedford seeks relief pursuant to Section 9543(a)(2)(vi) of the PCRA, which states
as follows:
§ 9543. Eligibility for relief
(a) General rule.--To be eligible for relief under this subchapter, the
petitioner must plead and prove by a preponderance of the evidence all of
the following:
* * *
(2) That the conviction or sentence resulted from one or more
of the following:
* * *
(vi) 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.
42 Pa.C.S. § 9543(a)(2)(vi). To obtain relief under the PCRA on an after-discovered
evidence claim, a Petitioner must demonstrate that the evidence:
(1) could not have been obtained prior to the conclusion of
the trial by the exercise of reasonable diligence; (2) is not
merely corroborative or cumulative; (3) will not be used solely
15 The FBI, the Department of Justice (“DOJ”), the National Association of Criminal
Defense Lawyers, and the Innocence Project jointly participated in the study.
[J-121-2019] - 32
to impeach the credibility of a witness; and (4) would likely
result in a different verdict if a new trial were granted.
Commonwealth v. Small, 189 A.3d 961, 969 (Pa. 2018); Commonwealth v. Pagan, 950
A.2d 270, 292 (Pa. 2008).
While recognizing that it possessed jurisdiction to consider Tedford’s claim
pursuant to Chmiel, the PCRA court, based on its review of the merits of the claim,
denied it without granting discovery or an evidentiary hearing. In denying relief, the
PCRA court explained that the FBI 2015 press release regarding microscopic hair
comparison testimony pertains only to testimony in which experts “overclaimed” the
strength of their scientific analysis. Citing to a DOJ publication, the PCRA court indicated
that the FBI 2015 press release concluded that FBI trained analysts “overclaimed” by
committing one of the following errors approximately 96% of the time when offering trial
testimony:
Error Type 1: The examiner stated or implied that the
evidentiary hair could be associated with a specific individual
to the exclusion of all others.
Error Type 2: The examiner assigned to the positive
association a statistical weight or probability, or provided a
likelihood that the questioned hair originated from a particular
source, or rendered an opinion on the likelihood or rareness
of the positive association that could lead the jury to believe
that valid statistical weight can be assigned to a microscopic
hair sample.
Error Type 3: The examiner cited the number of cases or hair
analyses worked in the lab and the number of samples from
different individuals that could not be distinguished from one
another as a predictive value to bolster the conclusion that a
hair belongs to a specific individual.
PCRA Court Opinion, 4/12/2019, at 26 (citing DOJ, 65 Forensic Science and Forensic
Evidence I, at 6-7 (Jan. 2017)). While observing that Ermlick was trained by the FBI,
[J-121-2019] - 33
upon a review of his trial testimony in this case, the PCRA court determined that Ermlick’s
testimony “does not appear to contain the ‘overclaiming’ errors that form the basis of the
[FBI 2015 press release].” Id. On that basis, the PCRA court decided that “[t]he
revelations in the [FBI 2015 press release,] viewed together with Mr. Ermlick’s trial
testimony, do not constitute exculpatory evidence that would likely have changed the
outcome of trial in this matter.” Id. The PCRA court thus concluded that an “evidentiary
hearing was unnecessary and relief was not warranted based on the testimony
presented at trial.” Id. at 27.
On appeal to this Court, the Commonwealth supports the PCRA court’s analysis.
The Commonwealth indicates that the FBI 2015 press release “revealed that FBI
analysts' testimony and reports over a 20-year period contained erroneous statements”
by “grossly exaggerating the significance of their data under oath, with the consequence
of unfairly bolstering the prosecutions' case." Commonwealth’s Brief at 64. The
Commonwealth insists that Ermlick did not identify the pubic hair found on Revak’s
person as belonging to Tedford, but rather only that it was “consistent” with a pubic hair
recovered from Tedford’s person. Id. 69-71. The Commonwealth also emphasizes that
Ermlick informed the jury how he conducted his testing (by looking at both hairs under
the microscope simultaneously and locating similarities or differences), and told the jury
that his analysis was subjective, in that no mathematical standards were utilized.
Tedford’s Brief at 71.
Tedford disagrees that Ermlick’s testimony did not involve “overreaching,” as it
effectively identified him as the source of the pubic hair by conveying to the jury that it
was “consistent” with his pubic hairs but not “consistent” with those of the other likely
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sources (Revak and her husband). Tedford’s Reply Brief at 34. In Chmiel, a majority of
the justices held that the “FBI has now publicly repudiated the use of microscopic hair
analysis to ‘link a criminal defendant to a crime.’” Chmiel, 173 A.3d at 626. Tedford
contends that the FBI 2015 press release “establishes that Ermlick’s testimony was not
a mere technicality of a rule or procedure but was an ominous and tangible component
of the phenomenon of wrongful convictions of which all society has taken stark
cognizance in the past several years.” Id. at 36.
We need not address whether Ermlick’s testimony constituted “overreaching,” as
on this record we conclude that Tedford has failed to demonstrate that Ermlick’s hair
comparison testimony prejudiced him. As indicated, to obtain a new trial the petitioner
must demonstrate that the after-discovered evidence at issue “would likely result in a
different verdict if a new trial were granted.” Small, 189 A.3d at 969. At trial, Tedford
testified that he and Revak had consensual sex at The Finishing Touch at around noon
on January 10, 1986, the day of her murder. The uncontested presence of Tedford’s
seminal fluid on Revak’s clothing, along with Tedford’s testimony, establishes that sexual
relations occurred, and the only issue for the jury was whether these relations were
consensual (as Tedford testified) or whether Tedford raped her (which in turn resulted in
her murder, as the Commonwealth contends). The presence of the pubic hair, even if it
was “consistent” with Tedford’s own pubic hairs, provides no insight whatsoever with
regard to the consensual (or violent) nature of the encounter. Because both Tedford and
the Commonwealth agreed that Tedford and Revak had sexual relations on the day of
the murder, the presence of his pubic hair on her clothing is unremarkable. If a new trial
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were granted, it is highly unlikely that the absence of expert hair comparison testimony
would likely result in a different verdict.
In this regard, Tedford has never argued to the contrary. Instead, Tedford has
argued that Ermlick’s scientific testimony as a whole, including his opinions of the
consistency of the fiber evidence, prejudiced him. Ermlick testified that red synthetic
fibers removed from Revak’s clothing and synthetic fibers on Tedford’s ski sweater
shared the same microscopic characteristics, and that fibers found on Revak’s jacket
were consistent with carpet and twine found at The Finishing Touch (and could not have
come from her home or the location where her body was recovered). Tedford has
repeatedly stressed the prosecutor’s remark at the end of his closing argument that “what
‘saved’ the case for the prosecution was the hair and fiber evidence linking Tedford to
Revak’s murder.” Tedford’s Reply Brief at 38. In fact, at this point in his closing
statement, the prosecutor did not even mention hair evidence,16 as he instead informed
the jury that “[w]hat saved this case was the wool clothing and also the apparent fact
there were a lot of fibers in The Finishing Touch, and she somehow was in contact with
them.” N.T., 2/6/1987, at 717.
The FBI 2015 press release strictly limited its scope to expert testimony regarding
hair comparison analysis and included no findings relating to fiber comparison analysis.
As a result, only expert testimony regarding hair comparison analysis constitutes after-
discovered evidence for purposes of the Small four-factor test. Limiting our focus to
16 The prosecutor mentioned the pubic hair found on Revak’s body only once in his
closing argument. At the outset, the prosecutor indicated that the Commonwealth had
presented a strong case of circumstantial evidence against Tedford, listing the “pubic
hair on her underwear that matched his” as one of a number of items of circumstantial
evidence. N.T., 2/6/1987, at 669.
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Ermlick’s expert testimony regarding the pubic hair on Revak’s clothing, we cannot say
that it so prejudiced Tedford that its absence at a new trial would result in a different
outcome.
The order of the PCRA court is hereby affirmed.
Chief Justice Saylor and Justices Baer, Todd, Dougherty, Wecht and Mundy join
the opinion.
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