Com. v. Chruby, W. ( 2021 )

J-S08028-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WALTER S. CHRUBY :
:
Appellant : No. 1111 MDA 2020
Appeal from the PCRA Order Entered August 10, 2020,
in the Court of Common Pleas of Centre County,
Criminal Division at No(s): CP-14-CR-0001267-1995.
BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED: JUNE 21, 2021
Walter S. Chruby appeals from the order denying, without a hearing, his
second petition filed pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
In 1995, a jury convicted Chruby of first-degree murder and related
charges after the victim, who suffered multiple stab wounds, was found dead
in her home. The trial court sentenced Chruby to an aggregate term of life in
prison. The PCRA court summarized the trial testimony as follows:
The trial evidence in the case at bar unfolded over the
course of seven days; fifty-four witnesses were called by the
Commonwealth and fourteen by [Chruby]. More than two
hundred exhibits were admitted into evidence. The
extensive trial evidence included: testimony regarding
[Chruby’s] increasingly desperate financial circumstances
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* Former Justice specially assigned to the Superior Court.
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and housing instability in the days before the murder;
testimony regarding [Chruby’s] actions in the days leading
up to the murder, his previous acquaintance with the victim,
and his telephone call to her home two days before the
murder; testimony regarding [Chruby’s] cash purchase of
items of clothing and sneakers at the Nittany Mall in the
days leading up to the murder, included a very unique t-
shirt with a Susquehanna Blues logo on the front; testimony
from individuals who saw [Chruby] wearing the
Susquehanna Blues t-shirt at his hotel in the several days
leading up to the murder; testimony regarding a credit card
missing from the victim’s possession, and that that same
credit card was used in the late afternoon/early evening on
the day of her death, by someone other than the victim, to
purchase clothes and shoes of the same type [Chruby] was
wearing when apprehended by the police; testimony
regarding [Chruby’s] actions after the murder, including his
change of clothing at Catherman’s Exxon that same day,
and his discarding of a bag in the dumpster at Catherman’s;
testimony from a sanitation worker that he found what
appeared to be bloodied items of clothing - - including a
Susquehanna Blues t-shirt, jeans with a unique belt
connected to [Chruby] by other witnesses, and shoes - - in
a bag in the Catherman’s dumpster the day after the
murder; testimony that bloody shoeprints from the murder
scene matched the print from a shoe found in the
Catherman’s dumpster; and testimony that [Chruby] was in
possession of the victim’s car the day after her murder, that
blood consistent with the victim’s blood type was found in
the car and on a sock worn by [Chruby] when he was
apprehended, and that the victim’s credit card that had been
used at the Nittany [M]all the day of her murder was found
hidden on the wheel-well of the car wrapped in bloodied
gloves.
Rule 907 Notice, 7/8/20, at 4-5.
Relevant to the present appeal, Robert Fram, an FBI special agent, who
the trial court accepted as an expert in hair and fiber analysis, testified on
behalf of the Commonwealth at Chruby’s trial. In his testimony, Special Agent
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Fram drew scientific conclusions from his microscopic hair and fiber analysis
on items which implicated Chruby in the victim’s murder.
Following the denial of post-trial motions, Chruby filed a timely appeal
to this Court. In an unpublished memorandum filed on March 9, 1999, we
found no merit to the five claims Chruby raised on appeal and affirmed his
judgment of sentence. Commonwealth v. Chruby, 737 A.2d 1270 (Pa.
Super. 1999). On July 15, 1999, our Supreme Court denied Chruby’s petition
for allowance of appeal. Chruby did not seek further review.
Chruby filed a pro se PCRA petition on June 25, 2003. The PCRA court
appointed counsel, and PCRA counsel filed an amended petition on January 2,
2004. In this petition, Chruby raised issues about trial counsel’s alleged
cocaine use during trial. Thereafter, the Commonwealth filed a motion to
dismiss. The PCRA court denied relief by order entered May 6, 2004. Chruby
filed a timely appeal to this Court. In an unpublished memorandum filed on
July 19, 2005, we affirmed the order denying post-conviction relief, and on
December 1, 2005, our Supreme Court denied Chruby’s petition for allowance
of appeal. Commonwealth v. Chruby, 883 A.2d 685 (Pa. Super. 2005),
appeal denied, 889 A.2d 1213 (Pa. 2005).
Chruby filed a second PCRA petition on February 12, 2015, and the PCRA
court again appointed counsel. In this petition Chruby alleged that he received
a December 19, 2014 letter from the district attorney’s office, which informed
him of the FBI’s findings that Special Agent Fram’s trial testimony exceeded
the limits of science. Chruby’s petition asserted that the FBI’s findings
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constituted a newly-discovered fact, which met one of the PCRA’s time-bar
exceptions. See 42 Pa.C.S.A. § 6545(b)(1)(ii).
On July 10, 2015, the Commonwealth filed a motion to dismiss Chruby’s
second PCRA petition as untimely filed. On January 13, 2016, the PCRA court
issued Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without a
hearing. Chruby filed a response. By order entered January 27, 2016, the
PCRA court dismissed Chruby’s petition as untimely filed.
Chruby filed a timely appeal to this Court. In an unpublished
memorandum filed on December 9, 2016, we vacated the order denying post-
conviction relief. Commonwealth v. Chruby, 159 A.3d 998 (Pa. Super.
2016). In doing so, we noted that the record was “not sufficiently developed
to review whether [Chruby met] the requirements” of the newly-discovered
fact exception. Id., unpublished memorandum at 8. We therefore remanded
for further proceedings.
Following remand, the PCRA court entered an order stating that, given
our Supreme Court’s decision in Commonwealth v. Chmiel, 173 617 (Pa.
2017), the 2014 FBI report qualified as a newly-discovered fact such that the
court could consider the merits of Chruby’s after-discovered evidence claim.
On July 8, 2020, the PCRA court issued Pa.R.Crim.P. 907 notice of its
intent to dismiss the petition without a hearing. Chruby did not file a timely
response. On August 7, 2020, the PCRA court dismissed Chruby’s second
PCRA petition. After discovering that counsel did not receive the Rule 907
notice in a timely manner, and after receiving Chruby’s response, the PCRA
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court entered an order stating that there was no basis for reconsideration of
its previous order denying post-conviction relief. This timely appeal followed.
Both Chruby and the PCRA court have complied with Pa.R.A.P. 1925.
Chruby raises the following issues on appeal:
I. Did the [PCRA] court commit an abuse of discretion
and/or error of law in dismissing [Chruby’s] petition
without a hearing?
II. Did the presentation of false/misleading testimony of
FBI Agent Fram constitute harmless error?
Chruby’s Brief at 4 (excess capitalization omitted).
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is to ascertain whether “the determination of the PCRA court
is supported by the evidence of record and is free of legal error. The PCRA
court’s findings will not be disturbed unless there is no support for the findings
in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92
(Pa. Super. 2013) (citations omitted).
The PCRA court has discretion to dismiss a petition without
a hearing when the court is satisfied 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 further proceedings.
To obtain a reversal of a PCRA court’s decision to dismiss a
petition without a hearing, an appellant must show that he
raised a genuine issue of material fact which, if resolved in
his favor, would have entitled him to relief, or that the court
otherwise abused its discretion in denying a hearing.
Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citations
omitted).
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We will address Chruby’s claims together. Chruby contends:
The introduction of false and misleading testimony,
through Agent Fram of the FBI hair and fiber laboratory, was
not harmless error. As such, [Chruby’s] PCRA Petition
should not have been dismissed without the benefit of a
hearing. This evidence was not so insignificant that it did
not contribute to the verdict, and [Chruby] should be
entitled to a full hearing on the PCRA petition.
Chruby’s Brief at 14.
Initially, we note that Chruby’s reliance upon the “harmless error
doctrine” is misplaced. As our Supreme Court has summarized:
Harmless error exists if the state proves either: (1) the
error did not prejudice the defendant or the error was de
minimis; or (2) the erroneously admitted evidence was
merely cumulative of other untainted evidence which was
substantially similar to the erroneously admitted evidence;
or (3) the properly admitted and uncontradicted evidence
of guilty was so overwhelming and the prejudicial effect of
the error was so insignificant by comparison that the error
could not have contributed to the verdict.
Commonwealth v. Fulton, 179 A.3d 475, 493 (Pa. 2018). Generally,
“[t]The Commonwealth bears the burden of proving that the error was
harmless beyond a reasonable doubt.” Id. But see Commonwealth v.
Hamlett, 240 A.3d 486, 492 (Pa. 2020) (reasoning that “the availability of
discretionary sua sponte review in appropriate cases serves as an exception
to the ordinary rule that the government bears the burden of persuasion
relative to harmless error”).
Here, by contrast, Chruby contends that the PCRA court erred in finding
no merit to his claim that he was eligible for relief, in the form of a new trial,
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based upon “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.A. § 9543(a)(2)(vi).
To address this claim, we first note the test applied to after-discovered
evidence under the PCRA. When discussing the test in the context of a PCRA
appeal, our Supreme Court summarized:
[W]e have viewed this analysis in criminal cases as
comprising four distinct requirements, each of which, if
unproven by the petitioner, is fatal to the request for a new
trial. As stated, the four-part test requires the petitioner to
demonstrate the new evidence: (1) could not have been
obtained prior to the conclusion of trial by the exercise of
reasonable diligence; (2) is not merely corroborative or
cumulative; (3) will not be used solely to impeach the
credibility of a witness; and (4) would likely result in a
different verdict if a new trial were granted. The test applies
with full force to claims arising under Section 9543(a)(2)(vi)
of the PCRA. In addition, we have held the proposed new
evidence must be producible and admissible.
Commonwealth v. Small, 189 A.3d 961, 972 (Pa. 2018) (citations omitted).
As noted in Small, Chruby had the burden of proving that a different
verdict would have resulted had Special Agent Fram’s conclusions regarding a
microscopic hair analysis not been presented. In its Rule 907 notice, the PCRA
explained why Chruby did not sustain his burden of proof:
[C]onsidering the nature of the offending testimony, the
[PCRA court] concludes that, in comparison to the other
evidence establishing guilt, the tainted evidence was so
insignificant that it could not have contributed to the verdict.
Special Agent Fram’s testimony concerning the hair sample,
was that, in his opinion, a hair sample obtained from
[Chruby] had the same characteristics as hair found on the
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Susquehanna Blues t-shirt stained with the victim’s blood
and with a hair found in the victim’s car after her death, and
that as a result, he could conclude the hair samples were
consistent with having come from the same individual. As
highlighted above, even without the offending testimony,
there was ample evidence and testimony from numerous
other witnesses connecting [Chruby] to both the car and the
bloody t-shirt. Furthermore, as the Commonwealth points
out, even without the objectionable testimony from Special
Agent Fram, the jury could properly have inferred that the
light brown hair from a Caucasian individual found in the car
and on the t-shirt had come from [Chruby], a Caucasian
individual with light brown hair who was connected to the t-
shirt and the victim’s car by the testimony of numerous
witnesses. Thus, the jury could have considered the
presence of the hair as circumstantial evidence further
linking [Chruby] to the bloodied shirt and car even without
testimony from Special Agent Fram. Although the [PCRA
court] is mindful that testimony from an expert can take on
special significance in the eyes of a jury, particularly on
scientific principles, the [PCRA court] is persuaded that
Agent Fram’s microscopic hair comparison testimony did not
play a role in the verdict, and that the same verdict would
have been reached in the absence of the testimony.
Rule 907 Notice, 8/7/20, at 5.
Our review of the record supports the PCRA court’s conclusion that
Chruby failed to meet his burden of proving that a new trial without Special
Agent Fram’s testimony would result in a different verdict.1 We note that,
although Special Agent Fram’s conclusions regarding his microscopic hair
analysis “exceeded science,” his expert testimony regarding a fiber analysis
did not. Additionally, Special Agent Fram was not the only expert witness
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1 Although the PCRA court also concluded that the Commonwealth met its
burden of proving “harmless error,” this determination was not necessary.
See supra.
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called by the Commonwealth; expert testimony regarding DNA and blood
analysis also linked Chruby to the crime. As the PCRA court summarized
above, other evidence including the bloody t-shirt, shoe prints, and credit card
use linked Chruby to this crime.
Given our review of the record, we cannot agree with Chruby’s
characterization of Agent Fram’s microscopic hair testimony as a “critical piece
of evidence,” such that a different verdict would result without it. Chruby’s
Brief at 23. See Commonwealth v. Chmiel, 240 A.3d 564, 575 (Pa. 2020)
(agreeing with the PCRA court that Chmiel had “failed to demonstrate the
verdict against him would be different in a trial in which [the expert’s
unreliable microscopic hair analysis] would be excluded”).
In sum, because Chruby did not meet his burden regarding after-
discovered evidence, the trial court properly denied him post-conviction relief
in the form of a new trial. Additionally, given the overwhelming evidence of
guilt, we conclude an evidentiary hearing on his PCRA petition was not
warranted.2
Order affirmed.
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2 Chruby contends that he “should have been presented with the opportunity
to show that there was a pattern on behalf of the FBI as it relates to tainted
evidence they were presenting and their knowledge of same[.]” Chruby’s Brief
at 27. Chruby does not establish how testimony regarding this fact would aid
him in proving that the absence of Agent Fram’s testimony at a new trial would
result in a different verdict.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/21/2021
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