Com. v. Nghiem, L. ( 2020 )


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  • J-S66025-19
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    LOI NGOC NGHIEM                            :
    :
    Appellant               :   No. 1649 EDA 2019
    Appeal from the PCRA Order Entered April 23, 2019
    In the Court of Common Pleas of Delaware County Criminal Division at
    No(s): CP-23-CR-0000566-2000
    BEFORE: STABILE, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
    MEMORANDUM BY NICHOLS, J.:                          FILED FEBRUARY 11, 2020
    Appellant Loi Ngoc Nghiem appeals pro se from the order dismissing his
    sixth Post Conviction Relief Act1 (PCRA) petition as untimely. Appellant, in
    relevant part, claims that the Commonwealth interfered with his ability to
    obtain the results of a DNA test that would establish his innocence. We affirm.
    The relevant facts giving rise to this appeal are well known to the
    parties. Briefly, on April 4, 2000, Maria Polites discovered the body of her
    son, Constantine Polites, at their home. He had been bound at the wrists and
    ankles, stabbed in excess of forty times, and shot three times in the head.
    She later discovered cash and personal property were missing from the home.
    On April 5, 2000, Appellant went to the Upper Darby Police Department for an
    ____________________________________________
    1   42 Pa.C.S. §§ 9541-9546.
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    interview about the murder. He then gave an incriminating statement to the
    police.
    On June 14, 2002, a jury found Appellant guilty of murder in the first
    degree, robbery, burglary, unlawful restraint, and possession of a firearm
    without a license. The trial court sentenced Appellant to life plus twenty to
    forty years’ imprisonment on June 27, 2002.
    Appellant appealed, and this Court affirmed on July 12, 2004.
    Commonwealth v. Nghiem, 3700 EDA 2002 (Pa. Super. filed July 12, 2004)
    (unpublished mem.). Appellant did not file a petition for allowance of appeal
    to the Pennsylvania Supreme Court.
    Appellant subsequently filed several unsuccessful petitions for collateral
    review. A discussion of the immediately preceding PCRA petition, which is not
    the subject of the instant appeal, is necessary to explain the issues raised in
    the PCRA petition that is before us.
    On March 24, 2017, Appellant filed his fifth2 PCRA petition, a motion for
    post-conviction DNA testing pursuant to 42 Pa.C.S. § 9543.1.           Appellant
    sought DNA testing on a large number of items, including a hair found at the
    ____________________________________________
    2 “A motion for DNA testing, while clearly separate and distinct from claims
    pursuant to other sections of the PCRA, nonetheless constitutes a
    postconviction petition under the PCRA.” Commonwealth v. Williams, 
    909 A.2d 383
    , 384 n.1 (Pa. Super. 2006). The Appellant filed this PCRA petition
    at the same time he was litigating his motion for post-conviction DNA testing
    before the PCRA court. As a result, the Commonwealth occasionally refers to
    the instant PCRA petition as his fifth PCRA petition and sixth PCRA pleading,
    but it is actually his sixth petition for post-conviction relief.
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    crime scene that did not match the victim or Appellant. Appellant’s Mot. for
    Post-Conviction DNA Testing, 3/24/17, at 2-3; Appellant’s Mem. of Law in
    Supp. of Mot. for Post-Conviction DNA Testing, 10/10/17, at 3-6; Suppl. Ex.
    to Mot. for DNA Testing, 5/9/17, Ex. E (hair fiber report). The Commonwealth
    answered the motion stating that on September 12, 2011, the Commonwealth
    provided to trial counsel, among other things, an August 25, 2000 DNA test
    performed on rectal swabs3 taken from the victim’s body (rectal swab report).
    Appellee’s Am. Answer to Mot. for Post-Conviction DNA Testing, 10/10/17, at
    1-2, Ex. A.     The rectal swab report indicated that the DNA on the swabs
    matched the victim’s DNA. 
    Id., Ex. B.
    The rectal swab report contained a
    chart comparing various DNA genetic loci from the samples tested (DNA type
    chart). 
    Id., Ex. B
    at 2. The PCRA court denied the motion for DNA testing on
    May 1, 2018. Appellant did not appeal the decision.
    On December 14, 2017, while the motion for DNA testing was still
    pending, Appellant filed the instant pro se PCRA petition, his sixth, which was
    docketed on December 27, 2017. Therein, he argued that he obtained the
    rectal swab report for the first time when he received the Commonwealth’s
    answer to his motion for DNA testing on October 16, 2017. Appellant’s PCRA
    Pet., 12/14/17, at 3; Appellant’s Mem. of Law in Supp. of PCRA Pet., 9/7/19,
    ____________________________________________
    3The Commonwealth’s answer interchangeably refers to these as anal swabs
    and rectal swabs. Appellee’s Am. Answer to Mot. For Post-Conviction DNA
    Testing, 10/10/17, at 1-2.
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    at 3-5. Appellant then compared the rectal swab report with the March 28,
    2002 hair fiber report (hair fiber report), which he already possessed.4
    Appellant argued that he realized for the first time after comparing the two
    reports that the hair fiber report should have included a DNA type chart.
    Appellant’s Mem. of Law in Supp. of PCRA Pet., 9/7/19, at 4-9. Appellant
    contended that the Commonwealth possessed the “missing” DNA type chart
    but refused to disclose it in violation of its Brady5 obligations. Appellant’s
    Mem. of Law in Supp. of PCRA Pet., 9/7/19, at 7-18.
    ____________________________________________
    4 Appellant already had the March 28, 2002 report (hair fiber report) which
    discussed the examination of hair fibers found at the crime scene. Appellant’s
    Brief at 6; see also Appellant’s Mem. of Law in Support of Mot. For Post-
    Conviction DNA Testing, 3/24/17, at 3-4; Suppl. Ex. to Mot. For DNA Testing,
    5/9/17, Ex. E. Conclusion number nine of the hair fiber report states that a
    hair found in the middle bedroom of the victim’s house did not come from the
    Appellant or the victim. Appellant’s Mem. of Law in Supp. of PCRA Pet.,
    9/7/19, Ex. BB at 2-3. Appellant was aware of this fact at the time of trial.
    Appellant’s Brief at 6.
    5 Brady v. Maryland, 
    373 U.S. 83
    (1963). In Brady, the United States
    Supreme Court held that “the suppression by the prosecution of evidence
    favorable to an accused upon request violates due process where the evidence
    is material either to guilt or to punishment, irrespective of the good faith or
    bad faith of the prosecution.” 
    Brady, 373 U.S. at 87
    . A defendant must
    demonstrate the following to establish a Brady violation: “(1) the evidence
    was suppressed by the Commonwealth, either willfully or inadvertently; (2)
    the evidence was favorable to the defendant; and (3) the evidence was
    material, in that its omission resulted in prejudice to the defendant.”
    Commonwealth v. Haskins, 
    60 A.3d 538
    , 547 (Pa. Super. 2012) (citation
    omitted). In proving a Brady violation, “[t]he burden rests with the defendant
    to prove, by reference to the record, that evidence was withheld or suppressed
    by the prosecution. The withheld evidence must have been in the exclusive
    control of the prosecution at the time of trial.” 
    Id. (internal quotation
    marks
    and citation omitted). However, “[n]o Brady violation occurs when the
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    Procedurally, Appellant claimed that the instant PCRA petition satisfied
    the governmental interference exception to the PCRA’s one year time bar
    pursuant to 42 Pa.C.S. § 9545(b)(1)(i). Appellant’s Mem. of Law in Supp. of
    PCRA Pet., 9/7/19, at 18-22; Appellant’s Brief at 20-23.            Appellant’s
    substantive claims for post-conviction relief were supported by his claims of
    Brady violations and ineffective assistance of counsel relating to the alleged
    missing DNA type chart from the hair fiber report. Appellant’s Mem. of Law
    in Supp. of PCRA Pet., 9/7/19, at 7-18, 22-28.
    On March 8, 2019, the PCRA court issued a Pa.R.Crim.P. 907 notice of
    intent to dismiss without a hearing, which stated that Appellant’s petition was
    untimely and his claim lacked merit. Appellant filed a pro se response that
    the PCRA court docketed on April 22, 2019. On April 25, 2019, the PCRA court
    dismissed Appellant’s petition as untimely.6
    Appellant filed a timely pro se notice of appeal on Tuesday, May 28,
    2019.7     The PCRA court did not order Appellant to comply with Pa.R.A.P.
    1925(b).
    ____________________________________________
    defendant knew, or with reasonable diligence, could have discovered the
    evidence in question.” 
    Id. 6 The
    PCRA court docketed the order on April 24, 2019, but notice was not
    given until April 25, 2019.
    7 Generally, a notice of appeal must be filed within thirty days of the entry of
    the order from which the appeal is taken. Pa.R.A.P. 903(a). Here, the order
    dismissing Appellant’s PCRA petition was entered on April 25, 2019. See
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    Appellant raises the following issues on appeal:
    1. Did the PCRA court err in holding, without an evidentiary
    hearing under Pa.R.Crim.P.908, that [Appellant’s] petition was
    untimely where there was exculpatory evidence in the form of DNA
    excluding [Appellant] which shows: (a) that the hair found at the
    crime scene did not come from him and (b) the DNA genetic profile
    of the individual whose name remains unknown (DNA type chart)
    was not previously known or understood by [Appellant], was a
    newly discovered fact pursuant to 42 Pa.C.S. § 9545(b)(1)(ii)?
    2. Did the PCRA Court err in holding, without an evidentiary
    hearing under Pa.R.Crim.[P.] 908, that [Appellant’s] petition was
    untimely where there was evidence that any delay establishing
    untimeliness was a result of government interference pursuant to
    42 Pa.C.S. § 9545(b)(1)(i) because the Commonwealth withheld
    and continues to withhold exculpatory tests showing the genetic
    profile (DNA type chart) of the DNA profile of the individual whose
    name is unknown from [Appellant] in violation of Brady?
    3. Is [Appellant] eligible for relief under 42 Pa.C.S. § 9543(a)(2)(i)
    because the Commonwealth withheld and continues to withhold
    exculpatory evidence, lab tests revealing that the genetic profile
    (DNA type chart) of the DNA profile of the individual whose name
    is unknown, neither match [Appellant] nor made available to the
    defense before, during or after trial, in violation of Brady?
    4. Is [Appellant] eligible for relief under 42 Pa.C.S. §
    9543(a)(2)(vi) because of the unavailability at the time of trial of
    the genetic profile (DNA type chart) of the DNA profile of the
    individual whose name remains unknown, which shows that the
    hair found at the crime scene not only did not match [Appellant],
    it pointed to an “alternative suspect” whose name and genetic
    profile is still unknown, which, if presented to the jury, there would
    have been a reasonable probability of a different result?
    ____________________________________________
    Pa.R.A.P. 108(a)(1), (d)(1) (the date of entry of an order is the day the clerk
    of the court mails copies of the order to the parties). The thirtieth day from
    April 25, 2019, was Saturday, May 25, 2019. Furthermore, Monday, May 27,
    2019, was Memorial Day. Therefore, Appellant’s pro se notice of appeal, which
    was docketed on the next business day, was timely filed. See 1 Pa.C.S. §
    1908.
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    5. Did the PCRA court err in dismissing [Appellant’s] petition
    without an evidentiary hearing under Pa.R.Crim.P. 908 where
    material issues of fact existed as to the Commonwealth not
    committing a Brady violation and/or Government Interference,
    but instead [Appellant’s] Trial Counsel denied [him] effective
    assistance, whereupon the Commonwealth did provide the
    exculpatory evidence of the genetic profile of the unnamed
    individual and counsel omitted said exculpatory evidence from the
    jury?
    Appellant’s Brief at 2-3 (emphasis omitted).
    Appellant’s issues are related, and we will summarize them together.
    Appellant argues that the Commonwealth has in its possession, but refused to
    provide to him, DNA test results in the form of a DNA type chart related to the
    March 28, 2002 hair fiber report. Appellant’s Brief at 12-17, 19-23; see also
    Appellant’s Mem. of Law in Supp. of PCRA Pet., 9/7/19, Ex. BB. Appellant also
    argues that the “missing” DNA type chart for the hair fiber report is a newly
    discovered fact conclusively excluding him as the source of the DNA found at
    the crime scene. Appellant’s Brief at 9, 10, 17.
    Our standard of review from the dismissal of a PCRA petition “is limited
    to examining whether the PCRA court’s determination is supported by the
    evidence of record and whether it is free of legal error.” Commonwealth v.
    Ousley, 
    21 A.3d 1238
    , 1242 (Pa. Super. 2011) (citation omitted). “We will
    not disturb findings that are supported by the record.” 
    Id. “[T]he timeliness
    of a PCRA petition is a jurisdictional requisite.”
    Commonwealth v. Brown, 
    111 A.3d 171
    , 175 (Pa. Super. 2015). A PCRA
    petition, “including a second or subsequent petition, shall be filed within one
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    year of the date the judgment becomes final” unless the petitioner pleads and
    proves one of three statutory exceptions. 42 Pa.C.S. § 9545(b)(1). The three
    statutory exceptions to the PCRA’s one year time bar are:
    (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 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.
    42 Pa.C.S. § 9545(b)(1)(i)-(iii).          To invoke one of these exceptions, a
    petitioner must also file his petition within sixty days of the date the claim
    could have been presented. See 42 Pa.C.S. § 9545(b)(2).8 A PCRA petitioner
    has the “burden to allege and prove that one of the timeliness exceptions
    applies.”   Commonwealth v. Albrecht, 
    994 A.2d 1091
    , 1094 (Pa. 2010)
    (citation omitted).
    ____________________________________________
    8Section 9545(b)(2) was amended on October 24, 2018, effective December
    24, 2018, extending the time for filing from sixty days of the date the claim
    could have been first presented to one year. The amendment applies to claims
    arising on December 24, 2017, or thereafter. See Act of Oct. 24, 2018, P.L.
    894, No. 146, § 3. Because Appellant filed the instant serial PCRA petition on
    December 14, 2017, the amended Section (b)(2) does not apply to him.
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    There is no dispute that Appellant’s conviction became final in 2004, and
    that Appellant’s current PCRA petition, which was filed on December 14, 2017,
    is facially untimely. Because Appellant filed the instant PCRA petition more
    than one year after his conviction became final, he must satisfy one of the
    exceptions to the PCRA time bar. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). In his
    brief, Appellant raises both the governmental interference and newly
    discovered fact exceptions, alleging that the Commonwealth has committed
    and is continuing to commit a Brady violation by withholding from Appellant
    an alleged DNA type chart indicating that a hair found at the crime scene
    matches an individual other than Appellant or the victim. Appellant’s Brief at
    13-23.
    The Pennsylvania Supreme Court has noted that
    [a]lthough a Brady violation may fall within the governmental
    interference exception, the petitioner must plead and prove the
    failure to previously raise the claim was the result of interference
    by government officials, and the information could not have been
    obtained earlier with the exercise of due diligence. Section
    9545(b)(1)(ii)’s exception requires the facts upon which the
    Brady claim is predicated were not previously known to the
    petitioner and could not have been ascertained through due
    diligence. In [Commonwealth v. Bennett, 
    930 A.2d 1264
    , 1271
    (Pa. 2007)], we clarified that § 9454(b)(1)(ii)’s exception does not
    contain the same requirements as a Brady claim, noting “we
    made clear the exception set forth in subsection (b)(1)(ii) does
    not require any merits analysis of the underlying claim. Rather,
    the exception merely requires that the ‘facts’ upon which such a
    claim is predicated must not have been known to appellant, nor
    could they have been ascertained by due diligence.”
    Commonwealth v. Abu-Jamal, 
    941 A.2d 1263
    , 1268 (Pa. 2008) (citations
    omitted); see also Commonwealth v. Smith, 
    194 A.3d 126
    , 133 (Pa. Super.
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    2018). Due diligence “requires reasonable efforts by a petitioner, based on
    the particular circumstances, to uncover facts that may support a claim for
    collateral relief.” Commonwealth v. S. Burton, 
    121 A.3d 1063
    , 1071 (Pa.
    Super. 2015) (en banc) (citations omitted).
    Relatedly,
    [t]he right to an evidentiary hearing on a post-conviction petition
    is not absolute. It is within the PCRA court’s discretion to decline
    to hold a hearing if the petitioner’s claim is patently frivolous and
    has no support either in the record or other evidence. It is the
    responsibility of the reviewing court on appeal to examine each
    issue raised in the PCRA petition in light of the record certified
    before it in order to determine if the PCRA court erred in its
    determination that there were no genuine issues of material fact
    in controversy and in denying relief without conducting an
    evidentiary hearing.
    Commonwealth v. Wah, 
    42 A.3d 335
    , 338 (Pa. Super. 2012) (citations and
    formatting omitted).
    Instantly, in rejecting Appellant’s argument, the PCRA court concluded
    that Appellant did not plead and prove that a Brady violation occurred. The
    PCRA court found that the hair fiber report was provided to defense counsel
    prior to trial, and Appellant was aware that a hair fiber belonging to someone
    other than Appellant and the victim existed.       PCRA Ct. Op., 7/10/19, at 6
    (unpaginated). The PCRA court reasoned that the fact that the rectal swab
    report contained a DNA type chart did not prove that a similar chart was
    created for the hair fiber report, or that the Commonwealth was withholding
    it.   
    Id. The PCRA
    court further found that Appellant did not exercise due
    diligence in investigating the hair fiber report, which had been produced prior
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    to trial. 
    Id. For these
    reasons, the PCRA court concluded that there was no
    governmental interference that prevented Appellant from investigating the
    hair fiber report since the date of trial and that the PCRA petition was untimely.
    
    Id. at 6,
    8.
    Following our review, we agree with the PCRA court that Appellant’s
    petition is untimely. Appellant did not plead and prove a DNA type chart for
    the hair fiber report existed and that the Commonwealth withheld it. Because
    Appellant’s factual premise is purely speculative, he cannot establish his PCRA
    petition was timely filed under the governmental interference exception. See
    Commonwealth. v. Dickerson, 
    900 A.2d 407
    , 411 (Pa. Super. 2006)
    (finding that alleged Brady violation did not establish governmental
    interference exception to the PCRA time bar because it was “nothing but pure
    speculation”). Furthermore, Appellant’s previous PCRA submissions indicate
    that he had the hair fiber report prior to the filing of the instant petition. See
    Supp’l PCRA Pet., 2/21/07, Exs. at 58 (exhibits are not consistently labeled or
    paginated); Suppl. Ex. to Mot. for DNA Testing, 5/9/17, Ex. E. Even if there
    were a missing DNA type chart, and the record before us does not establish
    that there is one, Appellant cannot show that this information could not have
    been obtained earlier with the exercise of due diligence. Copies of the hair
    fiber report have been attached to several of Appellant’s PCRA filings going
    back to 2007. An investigation into a supposedly missing DNA type chart in
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    2017 was not a reasonable effort to uncover facts based on Appellant’s
    particular circumstances.
    Moreover, we note that Appellant’s argument that his petition is timely
    under the newly discovered fact exception has been raised for the first time
    on appeal. See Pa.R.A.P. 302(a) (“Issues not raised before the lower court
    are waived and cannot be raised for the first time on appeal.”);
    Commonwealth v. F. Burton, 
    936 A.2d 521
    , 525 (Pa. Super. 2007)
    (“exceptions to the time bar must be pled in the PCRA petition, and may not
    be raised for the first time on appeal.”).   Our examination of the record
    indicates that Appellant only argued the governmental interference exception
    to the PCRA court and the PCRA court found Appellant had not established
    that exception.   See PCRA Ct. Op., 7/10/19, at 3-6 (unpaginated).        As
    Appellant did not present the newly discovered evidence exception to the
    PCRA court, it is waived.
    Even if Appellant had not waived his newly discovered fact argument,
    his petition would still be untimely.   There are two elements to a newly
    discovered fact claim to overcome the PCRA’s one-year time bar: “1) the facts
    upon which the claim was predicated were unknown and 2) could not have
    been ascertained by the exercise of due diligence. If the petitioner alleges
    and proves these two components, then the PCRA court has jurisdiction over
    the claim under this subsection.” 
    Brown, 111 A.3d at 176-77
    (citation and
    formatting altered).   “[T]he ‘new facts’ exception at Section 9545(b)(1)(ii)
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    does not require any merits analysis of an underlying after-discovered-
    evidence claim.” 
    Id. at 177.
    Here, for the reasons discussed above, Appellant
    did not prove that the fact upon which his claim was predicated was unknown
    or that he exercised due diligence.
    Because nothing in the record establishes the existence of a DNA type
    chart for the hair fiber report, Appellant failed to plead and prove one of the
    timeliness exceptions. Accordingly, we conclude that the PCRA court acted
    within its discretion in declining to hold an evidentiary hearing. See 
    Wah, 42 A.3d at 338
    . Having discerned no error of law, we affirm the order below.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/11/20
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