Com. v. Nghiem, L. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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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(unpublished mem.).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
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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,
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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.
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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).
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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?
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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).
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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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