Com. v. Howard, M.

J-S56012-20
2021 PA Super 75COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MELVIN HOWARD :
:
Appellant : No. 2821 EDA 2019
Appeal from the PCRA Order Entered September 11, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0304271-1988
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*
OPINION BY BENDER, P.J.E.: FILED APRIL 20, 2021
Appellant, Melvin Howard, appeals from the order dismissing his
untimely petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546. After careful review, we affirm.
The facts underlying Appellant’s conviction are not germane to this
appeal. The PCRA court described the relevant procedural history of this case
as follows:
On September 14, 1989, a jury found [Appellant] guilty of first[-
]degree murder and related charges in connection with the
stabbing death of Clarence Woodlock. During the penalty phase,
the jury returned a verdict of death for the murder. [Appellant]
appealed this judgment of sentence; his sentence was affirmed by
the Pennsylvania Supreme Court on August 8, 1994.
Commonwealth v. Howard, 645 A.2d 1300 (Pa. 1994).
On May 11, 1995, [Appellant] filed his first PCRA petition, raising
several claims of ineffective assistance of counsel. This petition
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* Retired Senior Judge assigned to the Superior Court.
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was dismissed by the PCRA court and subsequently affirmed by
the Sup[reme] Court on October 1, 1998. Commonwealth v.
Howard, 719 A.2d 233 (Pa. 1998). On July 17, 1999, he filed his
second PCRA petition, claiming that the prosecutor’s use of
peremptory strikes during jury selection was racially
discriminatory in violation of Batson v. Kentucky, 476 U.S. 79(1986). This petition was dismissed as untimely on February 24,
2000. The Supreme Court affirmed the dismissal on January 22,
2002. Commonwealth v. Howard, 788 A.2d 351 (Pa. 2002).
On September 16, 2011, by agreement between the parties, the
Honorable Carolyn Temin vacated [Appellant]’s death sentence
and resentenced him to life imprisonment without the possibility
of parole.[1]
On August 23, 2018, [Appellant] filed his third PCRA petition, the
matter before this [c]ourt. [Appellant] is represented by Ayanna
Williams, Esquire[,] of the Federal Community Defender Office for
the Eastern District of Pennsylvania. In his petition, [Appellant]
alleges a Batson violation based upon the findings of the [2018
Joint State Government Commission Report on Capital
Punishment (“JSGC Report”)]. He claims that the commission’s
findings on jury selection in capital cases is a newly-discovered
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1 Appellant adds that:
While the second PCRA petition was pending, [Appellant] filed a
Petition for a Writ of Habeas Corpus in the United States District
Court for the Eastern District of Pennsylvania. The District Court
held the federal proceedings in suspense pending the exhaustion
of [Appellant]’s claim that, in light of Atkins v. Virginia, 536 U.S.
304 (2001) [(prohibiting the execution of inmates with severe
mental disabilities)], his death sentence was unconstitutional. On
September 16, 2011, the Honorable Carol Temin of the
Pennsylvania Court of Common Pleas, by agreement of the
parties, vacated Appellant’s death sentence and resentenced
[him] to life in prison without the possibility of parole.
Appellant’s Brief at 3. Our review of the January 28, 2011 hearing addressing
Appellant’s Atkins claim, and from the September 15, 2011 resentencing
hearing, indicates that Appellant either met the criteria for relief under Atkins
due to severe mental impairment, or that the Commonwealth declined to
oppose that claim after conducting its own investigation. See N.T., 1/28/11,
at 1-10.
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fact that allows him to overcome the time bar. On May 3, 2019,
the Commonwealth filed its Motion to Dismiss. On May 21, 2019,
[Appellant] replied to the Commonwealth’s Motion to Dismiss. On
August 6, 2019, this [c]ourt sent [Appellant] a Notice of Intent [to
Dismiss the Petition] [p]ursuant to [Pa.R.Crim.P.] 907. On August
26, 2019, [Appellant] replied to the [Rule] 907 Notice. On
September 11, 2019, this [c]ourt dismissed [Appellant]’s petition
as untimely and without merit. On October 2, 2019, [Appellant]
appealed this dismissal to the Superior Court.
PCRA Court Opinion (“PCO”), 6/30/20, at 2-3. The PCRA court did not order
Appellant to file a Pa.R.A.P. 1925(b) statement, and Appellant did not file one.
The court issued its Rule 1925(a) opinion on June 30, 2020.
Appellant now presents the following questions for our review:
I. Did the court below err in concluding that the claims raised in
[Appellant]’s successor PCRA petition were untimely under 42
Pa.C.S. § 9545(b), where the newly[-]discovered evidence
included admissions from the [JSGC Report] regarding racial
disparities in jury selection?
II. Did the court below err in denying a new trial where [Appellant]
pled and proved that racial discrimination during jury selection
violated his rights to a jury of his peers and to be free from cruel
punishments under Article I, Sections 6 and 13 of the
Pennsylvania Constitution?
Appellant’s Brief at 2.
We review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level. This
review is limited to the findings of the PCRA court and the evidence
of record. We will not disturb a PCRA court’s ruling if it is
supported by evidence of record and is free of legal error. This
Court may affirm a PCRA court’s decision on any grounds if the
record supports it. Further, we grant great deference to the
factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we
afford no such deference to its legal conclusions. Where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review plenary.
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Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal
citations omitted).
We must begin by addressing the timeliness of Appellant’s petition,
because the PCRA time limitations implicate our jurisdiction and may not be
altered or disregarded in order to address the merits of a petition. See
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the
PCRA, any petition for post-conviction relief, including a second or subsequent
one, must be filed within one year of the date the judgment of sentence
becomes final, unless one of the following exceptions set forth in 42 Pa.C.S. §
9545(b)(1)(i)-(iii) applies:
(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 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.
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42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, Section 9545(b)(2) requires that
any petition attempting to invoke one of these exceptions “be filed within one
year of the date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2).
Appellant concedes that his petition is untimely. In his first issue, he
asserts that his petition meets the timeliness exception set forth in Section
9545(b)(1)(ii), which concerns newly-discovered facts. Appellant describes
the new facts as follows:
Prompted by troubling reports from the American Bar Association
… and the Pennsylvania Supreme Court’s Committee on Racial and
Gender Bias in the Justice System…, the Pennsylvania Senate
directed the JSGC “to conduct a study on capital punishment in
this Commonwealth,” covering eighteen specific topics and
problems. Pa. Sen. Res. 6 at 2-6 (Dec. 6, 2011). On June 25,
2018, the JSGC issued its report entitled “Capital Punishment in
Pennsylvania: The Report of the Task Force and Advisory
Committee.”[2]
The JSGC Report revealed that racial disparities in jury selection
pervasively and persistently infected the Commonwealth’s capital
prosecution system and that Pennsylvania should adopt structural
and procedural reforms to address such defects. [Appellant]’s
petition for PCRA and habeas relief, which raised constitutional
violations arising from discriminatory jury selection practices in
capital prosecutions, was filed within sixty days of the publication
of the JSGC Report.
Appellant’s Brief at 4 (footnote omitted). He further argues that:
The discriminatory exercise of peremptory challenges against
black prospective jurors in [Appellant]’s case was consistent with
the systematic racial discrimination in jury selection identified in
the JSGC Report. The prosecutor in [Appellant]’s case struck 1.5
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2As of the date of the filing of this decision, the JSGC Report can be found at
http://jsg.legis.state.pa.us/publications.cfm?JSPU_PUBLN_ID=472.
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times as many black prospective jurors as white, which is
statistically significant. The intentional and pervasive practice of
race discrimination infringed on [Appellant]’s rights to be tried by
a jury that was representative of the community and subjected
him to a cruel punishment, in violation of Pennsylvania’s
Constitution.
Id. at 42.
Thus, the crux of Appellant’s argument is that the JSGC Report provides
newly-discovered evidence of racial discrimination that occurred during his
jury selection process, providing a factual basis to support several
constitutional claims that would potentially entitle him to a new trial. The
PCRA court determined that the JSGC Report did not satisfy the requirements
of Section 9545(b)(1)(ii), concluding generally that:
[A] review of the JSGC [R]eport shows that the underlying data
used to perform the statistical analysis was not new and was part
of the public domain before the report’s release. Since the
underlying data was known and available to the public for years
prior to the report’s release, and [Appellant] has been represented
by counsel so the pro se defendant exception does not apply, this
report cannot be considered a newly-discovered fact for purposes
of overcoming the time bar.
PCO at 8.
As this Court has previously stated:
The timeliness exception set forth in Section 9545(b)(1)(ii)
requires a petitioner to demonstrate he did not know the facts
upon which he based his petition and could not have learned those
facts earlier by the exercise of due diligence. Commonwealth v.
Bennett, 930 A.2d 1264, 1271 (Pa. 2007). Due diligence
demands that the petitioner take reasonable steps to protect his
own interests. Commonwealth v. Carr, 768 A.2d 1164, 1168
(Pa. Super. 2001). A petitioner must explain why he could not
have learned the new fact(s) earlier with the exercise of due
diligence. Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa.
2001); Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.
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Super. 2010)…. This rule is strictly enforced. Id. Additionally,
the focus of this exception “is on the newly[-]discovered facts, not
on a newly[-]discovered or newly[-]willing source for previously
known facts.” Commonwealth v. Marshall, 947 A.2d 714, 720
(Pa. 2008)….
The timeliness exception set forth at Section 9545(b)(1)(ii) has
often mistakenly been referred to as the “after-discovered
evidence” exception. Bennett, supra at … 1270. “This shorthand
reference was a misnomer, since the plain language of subsection
(b)(1)(ii) does not require the petitioner to allege and prove a
claim of ‘after-discovered evidence.’” Id. Rather, as an initial
jurisdictional threshold, Section 9545(b)(1)(ii) requires a
petitioner to allege and prove that there were facts unknown to
him and that he exercised due diligence in discovering those facts.
See 42 Pa.C.S. § 9545(b)(1)(ii); Bennett, supra. Once
jurisdiction is established, a PCRA petitioner can present a
substantive after-discovered-evidence claim. See 42 Pa.C.S. §
9543(a)(2)(vi) (explaining that to be eligible for relief under PCRA,
petitioner must plead and prove by preponderance of evidence
that conviction or sentence resulted from, inter alia, unavailability
at time of trial of exculpatory evidence that has subsequently
become available and would have changed outcome of trial if it
had been introduced). In other words[:]
[S]ubsection (b)(1)(ii) has two components, which must be
alleged and proved. Namely, the petitioner must establish
that: 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.
Bennett, … 930 A.2d at 1272 (internal citations omitted)
(emphasis in original). Thus, the “new facts” exception at Section
9545(b)(1)(ii) does not require any merits analysis of an
underlying after-discovered-evidence claim. Id. at … 1271.
Commonwealth v. Brown, 111 A.3d 171, 176–77 (Pa. Super. 2015) (some
citations reformatted, footnote omitted).
Appellant first asserts that the PCRA court erred by determining that the
substance of the facts contained in the JSGC Report was not previously
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unknown, asserting that “a governmental agency’s public admission of
widespread, systemic error in criminal prosecutions, like the JSGC Report …,
itself represents a new fact triggering the … time period to file a successive
petition” under Section 9545(b)(2), relying on our Supreme Court’s reasoning
in Commonwealth v. Chmiel, 173 A.3d 617 (Pa. 2017). Appellant’s Brief at
13. He further argues:
To the extent that the JSGC Report relied on pre-existing data and
research, the report’s authoritative analysis of both old and new
data—and the Governor’s express invocation of the these
recommendations to establish a moratorium on executions10—
make the report “new evidence . . . of a higher grade or character
than what was previous [available] on a material issue.”
Commonwealth v. Small, 189 A.3d 961, 975-76 (Pa. 2018)
(holding that [a] witness’ testimony recounting a confession by an
alternate suspect was not “merely” cumulative of other
statements because of its details and the caliber of the witness);
Commonwealth v. McCracken, 659 A.2d 541, 545 (Pa. 1995)
(upholding grant of new trial under the after-discovered-evidence
standard where it was belatedly learned that the defendant may
have been convicted on the basis of false testimony though the
defendant previously had alleged that the witness’ testimony was
unreliable).
10 On February 13, 2015, Governor Tom Wolf issued the first
in a series of reprieves postponing executions of death-
sentenced Pennsylvania prisoners until the JSGC Report was
issued and “any recommendations contained therein [were]
satisfactorily addressed.” Commonwealth v. Williams,
129 A.3d 1199, 1202 (Pa. 2015).
Id. at 15.
In Chmiel, the appellant filed an untimely PCRA petition, “asserting that
his conviction and death sentence rested upon unreliable hair comparison
evidence in violation of the Sixth, Eighth, and Fourteenth Amendments to the
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United States Constitution….” Chmiel, 173 A.3d at 621. Chmiel argued that
an FBI press release (and a related Washington Post article) regarding
historically flawed hair analysis constituted new facts that satisfied the
timeliness exception of Section 9545(b)(1)(ii). The press release was
entitled “FBI Testimony on Microscopic Hair Analysis Contained
Errors in at Least 90 Percent of Cases in Ongoing Review.” In the
press release, the FBI publicly disclosed the initial findings of an
ongoing investigation undertaken jointly by the Department of
Justice …, the FBI, the Innocence Project, and the National
Association of Criminal Defense Lawyers …. The investigation
scrutinized the testimony of FBI analysts concerning microscopic
hair comparison analysis prior to 2000, the point at which
mitochondrial DNA testing became routine in the FBI. The review
was prompted by exonerations of three men who had been
convicted, in part, based upon the scientifically flawed testimony
of three FBI hair examiners. The review encompassed cases in
which FBI microscopic hair comparison was used to link a
defendant to a crime in both the federal and state systems. The
FBI concluded that its examiners’ testimony in at least 90% of
cases contained erroneous statements. The FBI’s findings
“confirm[ed] that the FBI microscopic hair analysts committed
widespread, systematic error, grossly exaggerating the
significance of their data under oath with the consequence of
unfairly bolstering the prosecution’s case....”
Id. (citations omitted). Importantly, the “revelation was the first time the FBI
acknowledged that its microscopic hair analysts committed widespread,
systemic error by grossly exaggerating the significance of their data in criminal
trials.” Id. at 625. In denying Chmiel’s petition, the PCRA court had “narrowly
construed the newly[-]discovered[-]facts exception in holding that the
underlying information contained in the FBI press release was simply
confirmation of information that was already available in the public domain,”
relying on our Supreme Court’s decision in Commonwealth v. Edmiston, 65
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A.3d 339 (Pa. 2013). Id. at 625-26. The Chmiel Court summarized its prior
holding in Edmiston as follows:
Edmiston involved a PCRA petition filed by a capital defendant
who, like Chmiel, was convicted following the introduction of hair
comparison analysis testimony at trial. On February 18, 2009, the
National Academy of Sciences published a report entitled
“Strengthening Forensic Science in the United States: A Path
Forward” (hereinafter, “the NAS Report”). The NAS Report was a
review of prior studies and articles, as well as the National
Academy of Sciences’ conclusion that “there was no scientific
support for the use of microscopic hair analysis for
individualization that is not accompanied by mitochondrial DNA
analysis.” Edmiston, 65 A.3d at 351.
On April 17, 2009, Edmiston raised a facially untimely claim for
post-conviction relief premised upon the NAS Report. Edmiston,
65 A.3d at 344. Edmiston relied upon the NAS Report in
attempting to establish the newly[-]discovered[-]fact exception to
the one-year time bar. Edmiston, 65 A.3d at 350–51; 42 Pa.C.S.
§ 9545(b)(1)(ii). Edmiston asserted that the NAS Report was a
newly[-]discovered fact that supported his claim of actual
innocence, because it demonstrated that the Commonwealth’s
hair analysis evidence was “false, misleading, and unreliable.”
Edmiston, 65 A.3d at 351.
On appeal from the PCRA court’s dismissal of Edmiston’s petition
as untimely, this Court addressed the applicability of the newly[-
]discovered[-]facts exception to the PCRA’s jurisdictional time
restrictions. See 42 Pa.C.S. § 9545(b)(1)(ii). We observed that,
“to constitute facts which were unknown to a petitioner and could
not have been ascertained by the exercise of due diligence, the
information must not be of public record and must not be facts
that were previously known but are now presented through a
newly discovered source.” Edmiston, 65 A.3d at 352.6
Evaluating Edmiston’s reliance upon the NAS Report as a newly
discovered fact, this Court explained that “the ‘fact’ [that
Edmiston] relies upon as newly discovered is not the publication
of the NAS Report, but the analysis of the scientific principles
supporting hair comparison analysis.” Id. This Court held that
the “fact” contained within the NAS Report was not new, as
questions about the reliability of hair comparison analysis had
existed in various sources prior to publication of the NAS Report:
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“Specifically, the NAS Report refers to various studies and reports
published in the public domain as early as 1974 and as recently
as 2007. As such, the information relied upon by [Edmiston] in
the Report constitutes facts that were in the public domain and
could have been discovered by [Edmiston] through the exercise
of due diligence prior to the filing of his ... Petition.” Edmiston,
65 A.3d at 352. This analysis led the Court to conclude that the
NAS Report failed to satisfy the timeliness exception for newly
discovered facts.
6 We recently held that “the presumption that information
which is of public record cannot be deemed ‘unknown’ for
purposes of subsection 9545(b)(1)(ii) does not apply to pro
se prisoner petitioners.” Commonwealth v. Burton, …
158 A.3d 618, 637-38 ([Pa.] 2017).
Chmiel, 173 A.3d [at] 623–24….
The Chmiel Court ultimately rejected the PCRA court’s reliance on
Edmiston, distinguishing Chmiel’s claim as follows:
There are two newly discovered facts upon which
Chmiel’s underlying claim is predicated, both of which were
made public for the first time in the Washington Post article
and the FBI press release. First, the FBI publicly
admitted that the testimony and statements provided
by its analysts about microscopic hair comparison
analysis were erroneous in the vast majority of cases.
The FBI’s revelation reverberated throughout the country,
marking a “watershed in one of the country’s largest
forensic scandals,” precisely because it constituted a public
admission by the government agency that had propounded
the widespread use of such scientifically flawed testimony.
The revelation was the first time the FBI acknowledged that
its microscopic hair analysts committed widespread,
systemic error by grossly exaggerating the significance of
their data in criminal trials. The Washington Post article
acknowledged the novelty of the FBI’s disclosures: “While
unnamed federal officials previously acknowledged
widespread problems, the FBI until now has withheld
comment because findings might not be representative.”
Second, the FBI press release included the revelation that
the FBI had trained many state and local analysts to
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provide the same scientifically flawed opinions in
state criminal trials.
With these newly discovered, material facts, the FBI press
release indicates that Surma’s[3] trial testimony may have
exceeded the limits of science and overstated to the jury the
significance of the microscopic hair analysis. Surma used
microscopic hair analysis in an attempt to link Chmiel to the
crime. The FBI now has publicly repudiated the use of
microscopic hair analysis to “link a criminal defendant to a
crime.” The FBI’s repudiation and disclosure about its role
in training state and local forensic examiners satisfies
Section 9545(b)(1)(ii), and entitles Chmiel to a merits
determination of his underlying claim.
Chmiel, 173 A.3d at 625–26 (emphasis added, citations to the record
omitted).
In the instant case, the PCRA court distinguished the JSGC Report from
the evidence presented in Chmiel, reasoning:
In the case at bar, [Appellant] makes a similar argument to …
Chmiel, arguing that the information in the JSGC[] [R]eport could
not have been discovered until the report’s release on June 25,
2018. He claims that he “relies in significant part on the
recommendations and conclusions of the report” which could not
have been discovered before the report was released, however he
does not specify what those conclusions or recommendations
were. Most detrimental to [his] newly-discovered[-]fact argument
is that the Chmiel [C]ourt did not overturn the standard in
Pennsylvania that statistical analysis of the criminal justice system
does not meet the newly-discovered[-]fact exception to the time-
bar. Rather, it found that … Chmiel was relying on facts presented
for the first time in a press release, not any underlying statistical
analysis. Without specifying which conclusions and
recommendations are new and analogous in nature to the new
facts in Chmiel, the relief granted in Chmiel is inapplicable to
[Appellant]. Indeed, a review of the JSGC [R]eport shows that
the underlying data used to perform the statistical analysis was
not new and was part of the public domain before the report’s
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3 Surma testified at Chmiel’s trial as the Commonwealth’s hair analysis expert.
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release. Since the underlying data was known and available to
the public for years prior to the report’s release, and [] has been
represented by counsel so the pro se defendant exception does
not apply, this report cannot be considered a newly-discovered
fact for purposes of overcoming the time bar.
Furthermore, the JSGC [R]eport is substantially different than the
press release in Chmiel. The press release in Chmiel contained
an admission of improper scientific analysis from the prosecutorial
agency that had been convicting defendants using this analysis.
The JSGC [R]eport, on the other hand, was released by an
independent and bipartisan governmental agency and does not
include any language that could be considered an admission of
error by prosecutors or the judiciary with respect to the imposition
of the death penalty. [Appellant] claims that the report contains
“the admission of widespread, systemic error in criminal
prosecutions,” however, this [c]ourt’s review of the text of the
report did not uncover such an admission. While the report does
note areas of concern and suggests recommendations, it does not
go so far as to admit widespread, systemic error in criminal
prosecutions. It should also be noted that the task force members
behind the report are Pennsylvania state senators, unlike the
press release in Chmiel which was released by the FBI, a federal
law enforcement agency. Since the holding in Chmiel is
inapplicable, this [c]ourt properly dismissed [Appellant]’s petition
as untimely[,] since the JSGC [R]eport was not a newly-
discovered fact capable of overcoming the PCRA’s time bar.
PCO at 8-9.
We agree with the PCRA court. The JSGC Report is more analogous to
the NAS Report in Edmiston, and is distinguishable from the public
admissions at issue in Chmiel. Although Appellant contends that he is not
relying on the underlying data of the JSGC Report, but instead on the report’s
conclusions based on the underlying data, we agree with the PCRA court that
those conclusions do not constitute evidence “of a higher grade or character
than what was previous[ly available] on a material issue.” Small, 189 A.3d
at 975-76. We further agree with the Commonwealth that:
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[Appellant] here asserts that “the new fact is not that [he] was
convicted by a biased jury,” but rather “the JSGC’s admission that
juries selected in capital cases like [Appellant]’s were shaped by
a jury selection process that eliminated certain social and
demographic groups.” []Appellant’s [B]rief at 11[]. However,
this so-called “admission” is not a fact that has any relation or
direct nexus to [Appellant]’s own case.3 The report does not
allege that the prosecutor in [Appellant]’s case acted with
discriminatory intent.
3 It is important to note that nowhere in the JSGC [R]eport
is there an “admission” of wrongdoing on the part of the
Commonwealth. The report merely cites other reports
suggesting hypothetically that “attorneys, who know
statistical research on demographics and attitudes, might
rely on that knowledge to exclude potential jurors … to
increase the possibility of creating a jury that will decide in
their favor.” JSGC Report at 11 (emphasis added).
Commonwealth’s Brief at 10-11.
In Chmiel, by contrast, the FBI admitted that its hair analysis was
flawed in the vast majority of cases, and that its own experts, and the experts
trained by the FBI, had given fatally flawed scientific opinion testimony
concerning the strength of that evidence in virtually every case in which hair
analysis was presented. That provided a distinct and concrete link to the
flawed evidence and related scientific opinion testimony presented at Chmiel’s
trial, where the Commonwealth had presented a witness, Surma, who had
made the problematic scientific claims.
There is no analogous admission in the instant case regarding the
prosecutor’s ostensible discriminatory exclusion of jurors at Appellant’s capital
trial. Rather, akin to Edmiston with respect to the NAS Report, a systemic
problem has been identified in the JSGC Report regarding racial and other
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problematic demographic disparities in jury selection. However, there has
been no revelation in the JSGC Report of a specific error in Appellant’s case,
an admission of such an error by the prosecutor or the District Attorney’s
office, nor an admission of a systemic error that necessarily impacted
Appellant’s case. Thus, Appellant fails to convince us that his claim is on par
with the revelations that triggered the timeliness exception of Section
9545(b)(1)(ii) in Chmiel. Accordingly, we conclude that the JSGC Report
does not constitute a “newly-discovered fact” that was previously unknown to
Appellant when he filed the PCRA petition under review.
Consequently, we need not address whether Appellant acted with due
diligence in acquiring that information, because he fails to satisfy the first
prong of the test for newly-discovered facts. Appellant concedes that he relies
“in significant part on the recommendations and conclusions of the JSGC
Report, which were entirely unknown to him before the report was issued on
June 25, 2018,” and not the underlying statistical data. Appellant’s Brief at
16. Because we determine those conclusions do not constitute newly-
discovered facts within the meaning of Section 9545(b)(1)(ii), it is
unnecessary to determine if Appellant acted diligently in discovering the JSGC
Report.
Furthermore, because Appellant cannot successfully invoke Section
9545(b)(1)(ii) to excuse the untimeliness of his PCRA petition, we cannot
address Appellant’s second issue or the PCRA court’s alternative analysis of
the underlying constitutional claim(s). See Commonwealth v. Abu-Jamal,
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833 A.2d 719, 723–24 (Pa. 2003) (“The PCRA’s timeliness requirements are
jurisdictional in nature and a court may not address the merits of the issues
raised if the PCRA petition was not timely filed.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2021
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