Com. v. Smith, D.

J-S84045-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
DAVIS SMITH
Appellant No. 2927 EDA 2015
Appeal from the PCRA Order August 25, 2015
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-1005861-2000
BEFORE: OLSON, SOLANO, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 13, 2017
Appellant, Davis Smith, appeals from the order entered in the
Philadelphia County Court of Common Pleas denying his fourth Post
Conviction Relief Act1 (“PCRA”) petition as untimely. He argues that his
petition was timely filed pursuant to the “after discovered facts” exception to
the PCRA.2 We affirm.
A prior panel of this Court summarized the facts of this case as
follows:
On four to six occasions prior to August 21, 2000,
Appellant traveled to the Philadelphia home of Tanya
Serrano to purchase a quarter-pound of cocaine. Ms.
Serrano acted as an intermediary between Appellant and
cocaine supplier Jose Matos (the victim), and although
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
2
42 Pa.C.S. § 9545(b)(1)(ii).
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Appellant had purchased cocaine from Matos through Ms.
Serrano, Appellant had never actually met Matos. Ms.
Serrano testified at trial that she would receive $300 from
Matos for each transaction in which she was the
intermediary.
On August 21, 2000, Appellant called Ms. Serrano and
indicated that he wanted to purchase more cocaine.
Rather than waiting until Ms. Serrano advised him that she
had the cocaine in her possession, which had been the
procedure followed in the past, on this date Appellant
arrived at Serrano’s home early and was there when Matos
arrived to deliver the drugs to her. Ms. Serrano testified
that she and Matos thought this was strange and Matos
walked her toward the back of the house while whispering
something in her ear. As Serrano and Matos headed
toward the back room, she heard something behind her
and, when she turned to look, was hit on the back of her
head rendering her unconscious.
When Ms. Serrano regained consciousness, she dialed
911. When police responded to her home, they found
Matos lying face down on the floor with his head covered,
having been shot in the head, and Appellant was gone.
Later that evening, officers recovered a Colt .45 revolver
within one block of Ms. Serrano’s home that had a blood
stain on it later determined to be that of Matos. In
addition, a burned-out van belonging to Matos was found
within 150 yards from Appellant’s residence.
Commonwealth v. Ming a/k/a/ Smith, 2427 EDA 2004 (unpublished
memorandum at 1-2) (Pa. Super. Aug. 9, 2005).
The PCRA court summarized the procedural posture of this case as
follows:
On September 14, 2001, a jury convicted [Appellant] of
second-degree murder, robbery, and burglary. He was
sentenced to life imprisonment without parole for the
murder conviction and no additional sentence for the
remaining charges. [Appellant] filed a timely direct
appeal. The Superior Court affirmed the judgment of
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sentence on July 2, 2003.[3] The Supreme Court denied
[Appellant’s] allowance of appeal on December 2, 2003.[4]
On January 6, 2004, [Appellant] filed his first [PCRA
petition]. Counsel was appointed. Subsequently counsel
filed a “no merit” letter on July 6, 2004. Following
independent review of [Appellant’s] claims, the trial court
dismissed his petition. On August 9, 2005, the Superior
Court affirmed the dismissal.[5]
[Appellant, acting pro se,] filed the current petition on
February 5, 2015. . . . [T]his [c]ourt found that
[Appellant’s] petition for post conviction collateral relief
was untimely filed and dismissed his petition on August 25,
2015.
PCRA Ct. Op., 11/17/15, at 1-2 (footnote omitted). This timely appeal
followed. Appellant was not ordered to file a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal. The PCRA court filed a Pa.R.A.P. 1925(a)
opinion.
Appellant raises the following issues for our review:
I. Did Appellant plead his eligibility for PCRA relief and was
he eligible for PCRA relief[?]
II. Have advances in fire investigation science shown that
the analysis used by the fire marshal in Appellant’s trial
resulted in nonscientific expert testimony which was highly
unreliable and which contributed significantly to the
verdicts returned against Appellant[?]
3
See Commonwealth v. Ming, 2800 EDA 2001 (unpublished
memorandum) (Pa. Super. July 2, 2003).
4
See Commonwealth v. Ming, 363 EAL 2003 (Pa. Dec. 2, 2003).
5
See Ming a/k/a Smith, supra.
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III. Is Appellant entitled to a hearing on his claim that
advancements in fire investigation science now show the
evidence the Commonwealth introduced through its fire
marshal was unreliable and now violative of due process of
law[?]
Appellant’s Brief at 6.
First, Appellant contends the instant PCRA petition was timely based
upon newly discovered evidence pursuant to 42 Pa.C.S. § 9545(b)(1)(ii).
Appellant’s Pro Se Motion for Post Conviction Collateral Relief, 2/5/15, at 4.
He avers that there were fatal flaws in the fire science that was used at trial
by the Commonwealth, viz., the negative corpus methodology.6 Id.
Appellant claims he became aware of this fact from a news program on
January 24, 2015, “which aired a news interview of the release of prisoner
James Hugney from SCI/Rockview who was also convicted based upon fatal
flaw fire science in his case verbatim to the case sub judice.” Id. Appellant
argues that “[a]lthough [he] was not charged with arson, the
Commonwealth used the arson of the van to argue that he committed this
uncharged crime to destroy evidence of his guilt of the murder . . . .”
Appellant’s Brief at 18-19. Appellant contends that the PCRA petition is
6
We note that “‘[n]egative corpus,’ short for negative corpus delicti, is fire
investigator shorthand for the determination that a fire was incendiary based
on the lack of evidence of an accidental cause.” Schlesinger v. United
States, 898 F. Supp. 2d 489, 491–92 (E.D.N.Y. 2012).
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timely because he filed it within sixty days of learning of the case of
Commonwealth v. James Hugney. Appellant’s Brief at 17-18.
This Court has stated:
In reviewing the propriety of an order denying PCRA
relief, this Court is limited to examining whether the
evidence of record supports the determination of the PCRA
court, and whether the ruling is free of legal error. Great
deference is given to the findings of the PCRA court, which
may be disturbed only when they have no support in the
certified record.
Commonwealth v. Perry, 959 A.2d 932, 934-35 (Pa. Super. 2008)
(citations omitted).
As a prefatory matter, we determine whether Appellant’s PCRA petition
is timely.
Our Supreme Court has stressed that “[t]he PCRA’s
timeliness requirements are jurisdictional in nature and
must be strictly construed; courts may not address the
merits of the issues raised in a petition if it is not timely
filed.” Commonwealth v. Abu–Jamal, [ ] 941 A.2d
1263, 1267–68 ([Pa.] 2008) (citation omitted). See
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.
Super. 2010) (holding no court has jurisdiction to hear an
untimely PCRA petition). It is well settled that “[a]ny and
all PCRA petitions must be filed within one year of the date
on which the petitioner’s judgment became final, unless
one of three statutory exceptions applies.”
Commonwealth v. Perrin, 947 A.2d 1284, 1285 (Pa.
Super. 2008) [ ].
Commonwealth v. Garcia, 23 A.3d 1059, 1061-62 (Pa. Super. 2011)
(footnote omitted).
The timeliness exceptions to the PCRA requirements are set forth in 42
Pa.C.S. § 9545, which provides in pertinent part:
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(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:
* * *
(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[.]
* * *
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the date the
claim could have been presented.
42 Pa.C.S. § 9545(b)(1)(ii), (2).
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. Due diligence demands that the
petitioner take reasonable steps to protect his own
interests. A petitioner must explain why he could not have
learned the new fact(s) earlier with the exercise of due
diligence. This rule is strictly enforced. 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.
The timeliness exception set forth at Section
9545(b)(1)(ii) has often mistakenly been referred to as the
after-discovered evidence exception. 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.
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. Once
jurisdiction is established, a PCRA petitioner can present a
substantive after-discovered-evidence claim. See 42
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Pa.C.S.A. § 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, the new facts exception
at:
[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.
Thus, the new facts exception at Section 9545(b)(1)(ii)
does not require any merits analysis of an underlying
after-discovered-evidence claim.
Commonwealth v. Brown, 111 A.3d 171, 176-77 (Pa. Super. 2015)
(quotation marks and some citations omitted).
Our Pennsylvania Supreme Court
has addressed the meaning of facts as that term is
employed in Section 9545(b)(1)(ii) and held that, to
constitute such facts, the information may not be part of
the public record. Similarly, we have held that a petitioner
must allege and prove previously unknown facts, not
merely a newly discovered or newly willing source for
previously known facts. These principles have been
applied when a petitioner has relied on a study to satisfy
the time-bar exception of Section 9545(b)(1)(ii). See
[Commonwealth v. Lark, 746 A.2d 585, 588 n.4 (Pa.
2000)] (concluding that because a particular study of the
Philadelphia criminal justice system consisted of statistics
which were public record, it could not be said that the
statistics were unknown to the petitioner).
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Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa. 2013) (quotation
marks and some citations omitted).
In the instant case, Appellant’s judgment of sentence became final on
March 1, 2004, which marked the expiration of the ninety-day time period
for seeking certiorari in the United States Supreme Court after the
Pennsylvania Supreme Court declined to hear Appellant’s appeal on
December 2, 2003. See 42 Pa.C.S. § 9545(b)(3) (stating “a judgment
becomes final at the conclusion of direct review, including discretionary
review in the Supreme Court of the United States and the Supreme Court of
Pennsylvania, or at the expiration of time for seeking the review”).
Appellant then had generally one year within which to file his PCRA petition.
The instant PCRA petition, filed on February 5, 2015, is patently untimely.
See 42 Pa.C.S. § 9545(b)(1).
Instantly, the PCRA court opined:
In his February 5, 2015, PCRA petition, [Appellant]
raised an after-discovered evidence argument. He based
this argument on a decision in release of James Hugney.
The premise of Mr. Hugney’s case was whether or not
there was arson that caused the death of his son. He was
convicted based upon the Negative Corpus method of fire
investigation, and he was released because this was not
supported by modern science.
* * *
[Appellant] stated that he became aware of this case
while watching the news on January 24, 2015, and [he]
filed this petition on February 5, 2015; therefore, he
claimed that he met the 60-day requirement for filing.
[Appellant] was mistaken. The alleged after-discovered
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evidence in this case asserted by [Appellant] was the new
methods of fire investigation as cited in the release of Mr.
Hugney. However, fire investigation has improved and
there have been many updates made prior to the case of
Mr. Hugney; [Appellant] has failed to show due diligence
in presenting this argument.
PCRA Ct. Op. at 3-4 (footnote omitted). We agree no relief is due.
In the case sub judice, Appellant acknowledges that
[i]n 1998, the Eleventh Circuit for the first time held that
purported “fire science” testimony must satisfy the
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579(1993) standard, and upheld the exclusion of an “expert’s”
negative corpus analysis. Michigan Millers Mutual Ins.
Corp. v. Benfield, 140 F.3d 915, 919-21 (11th Cir. 1998).
Appellant’s Brief at 21.7 Appellant avers that “[t]he 2011 revision of NFPA
(National Fire Protection Association) 921 (see page 245) rejected the
doctrine of negative corpus . . . .” Id. at 9.
Appellant failed to plead and prove why the facts were unknown and
could not have been ascertained by the exercise of due diligence. See
Brown, 111 A.3d at 176-77; Edmiston, 65 A.3d at 352. Appellant did not
plead and prove any exception to the PCRA’s timeliness requirement. See
42 Pa.C.S. § 9545(b)(1)(ii); Brown, 111 A.3d at 176-77. Thus, the PCRA
court did not err in denying his PCRA petition as untimely. See Garcia, 23
A.3d at 1061-62.
Order affirmed.
7
See Appellant’s Brief at 15-16.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/13/2017
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