J-S17015-18

                              2018 PA Super 143


COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

GARY L. KRETCHMAR,

                          Appellant                   No. 3409 EDA 2017


            Appeal from the PCRA Order Entered October 4, 2017
               In the Court of Common Pleas of Bucks County
            Criminal Division at No(s): CP-09-CR-0001190-1987


BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.

OPINION BY BENDER, P.J.E.:                               FILED JUNE 1, 2018

      Appellant, Gary L. Kretchmar, appeals pro se from the order dismissing,

as untimely, his petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546.         Appellant argues that his petition

satisfied the retroactive constitutional right exception to the PCRA’s timeliness

requirements, Section 9545(b)(1)(iii), premised on our Supreme Court’s

decision in Commonwealth. v. Burton, 158 A.3d 618 (Pa. 2017). He also

claims the PCRA court erred by dismissing his petition without a hearing. After

careful review, we affirm.

      This Court previously summarized the factual history of Appellant’s

conviction as follows:

           On October 6, 1981, at approximately 2:00 p.m., Scott
      Rosenblum was found dead in his apartment in Bensalem
      Township, Bucks County, Pennsylvania. The victim suffered three
      gunshot wounds. Ballistics tests revealed that a .22 caliber
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     firearm was used to inflict the wounds.                Despite a
     contemporaneous investigation, which included the questioning of
     [A]ppellant, the crime was regarded as “unsolved” for many
     years. However, in January 1987, after a grand jury returned a
     presentment against [A]ppellant, a criminal complaint was filed
     charging [him] with criminal homicide. Aware of the action taken
     against him with respect to the homicide, [A]ppellant
     subsequently fled Pennsylvania and was ultimately arrested in San
     Diego, California, in July 1988, on an unrelated matter. Appellant
     was subsequently extradited to Pennsylvania and ultimately stood
     trial on, inter alia, charges of criminal homicide.

           Appellant was convicted in a jury trial of first-degree murder
     on November 22, 1988, and after a penalty phase hearing was
     held, a sentence of life imprisonment was imposed. Following
     sentencing, [A]ppellant filed a post-sentence motion, which was
     denied on May 25, 1989. Appellant filed a direct appeal to this
     [C]ourt, which resulted in the affirmance of his judgment of
     sentence on May 8, 1990. Commonwealth v. Kretchmar, 402
     Pa. Super. 656, 578 A.2d 38 (1990). Appellant subsequently filed
     a petition for allowance of appeal with the Pennsylvania Supreme
     Court, but that petition was denied on April 30, 1991.

            On or about April 13, 1992, [A]ppellant filed a motion for
     post-conviction collateral relief. Appellant's petition was denied
     on September 15, 1994 and was affirmed on appeal to this [C]ourt
     on December 29, 1995. A petition for allowance of appeal to the
     Pennsylvania Supreme Court was granted, Commonwealth v.
     Kretchmar, 545 Pa. 41, 679 A.2d 774 (1996); however, it was
     later concluded that allowance of appeal had been improvidently
     granted. Commonwealth v. Kretchmar, 547 Pa. 358, 690 A.2d
     234 (1997).

          Subsequently, [A]ppellant filed two additional petitions
     under the PCRA, one in 2002 and the other in 2006. Both petitions
     were denied by the PCRA court and affirmed on appeal.

Commonwealth v. Kretchmar, 971 A.2d 1249, 1250 (Pa. Super. 2009)

(hereinafter, “Kretchmar I”).

     Appellant filed his next PCRA petition on November 29, 2007. The PCRA

court dismissed the petition as untimely on September 15, 2008. This Court



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affirmed on April 8, 2009, and our Supreme Court denied allowance of appeal

on November 17, 2009. See Kretchmar I, appeal denied, 971 A.2d 1249

(Pa. 2009). Another PCRA petition followed on January 13, 2010, which was

dismissed on January 6, 2011. This Court affirmed on October 25, 2011, and

our Supreme Court denied allowance of appeal from that decision on February

22, 2012. See Commonwealth v. Kretchmar, 37 A.3d 1243 (Pa. Super.

2011) (unpublished memorandum) (hereinafter, “Kretchmar II”), appeal

denied, 38 A.3d 823 (Pa. 2012).

     Appellant filed the instant pro se PCRA petition, his sixth, on May 23,

2017. On August 15, 2017, the PCRA court issued an order stating its intent

to dismiss Appellant’s petition pursuant to Pa.R.Crim.P. 907. Appellant filed

a timely response thereto on September 5, 2017. By order dated October 6,

2017, the PCRA court dismissed Appellant’s PCRA petition as untimely.

Appellant filed a timely notice of appeal on October 24, 2017. He then filed a

timely, court-ordered Pa.R.A.P. 1925(b) statement on November 13, 2017,

and the PCRA court subsequently issued its Rule 1925(a) opinion on December

15, 2017.

     Appellant now presents the following questions for our review:

     1. Did the PCRA [c]ourt commit an error of law when it held that
     the PCRA public record presumption rule announced in … Burton
     does not apply retroactively to Appellant's pro se prisoner PCRA
     petition?

        A. Did the state Supreme Court's holding in … Burton
        establish a watershed rule of PCRA procedure for pro se
        prisoner petitioners under the timeliness exception set forth
        in 42 Pa.C.S.[] § 9545(b)(1)(ii)?

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           B. Did the state Supreme Court's holding in … Burton
           establish a new constitutional right under the timeliness
           exception set forth in 42 Pa.C.S.[] § 9545(b)(1)(iii)?

      2. Did the PCRA [c]ourt abridge Appellant's 14th Amendment Due
      Process rights when the court dismissed his pro se prisoner PCRA
      petition without conducting a fact based assessment of Appellant's
      access to the FBI documents; which form the predicate for his
      timeliness exception claim under 42 Pa.C.S.[] § 9545(b)(1)(ii)?

Appellant’s Brief at 3.

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.       Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, which is facially untimely, because the PCRA

time limitations implicate our jurisdiction and may not be altered or

disregarded in order to address the merits of a petition. 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

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            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).    Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2).

      Appellant first argues that Burton created a new constitutional right, or

a watershed rule of PCRA procedure, which entitles him to invoke the

retroactive constitutional right exception to the PCRA’s time bar, Section

9545(b)(1)(iii).   He maintains that his previous two PCRA petitions were

denied based on application of the public record presumption rule, which, at

least for pro se petitioners, was abandoned by our Supreme Court in Burton.

The PCRA court determined that Burton did not create any such right, and

that our Supreme Court did not indicate that it intended Burton to apply

retroactively. We agree with the PCRA court.

      Our Supreme Court has set forth a two-part test to determine the

applicability of Section 9545(b)(1)(iii) to a new decision:

      Subsection (iii) of Section 9545 has two requirements. First, it
      provides that the right asserted is a constitutional right that was
      recognized by the Supreme Court of the United States or this
      [C]ourt after the time provided in this section. Second, it provides

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      that the right “has been held” by “that court” to apply
      retroactively. Thus, a petitioner must prove that there is a “new”
      constitutional right and that the right “has been held” by that court
      to apply retroactively. The language “has been held” is in the past
      tense. These words mean that the action has already occurred,
      i.e., “that court” has already held the new constitutional right to
      be retroactive to cases on collateral review. By employing the past
      tense in writing this provision, the legislature clearly intended that
      the right was already recognized at the time the petition was filed.

Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002).

      In Burton, our Supreme Court held that the presumption that

information which is of public record cannot be deemed “unknown,” for

purposes of Section 9545(b)(1)(ii), does not apply to incarcerated, pro se

petitioners. Burton, 158 A.3d at 638. Nowhere in the Burton decision did

our Supreme Court suggest the creation of a new constitutional right, nor did

the Court engage in any form of constitutional analysis in reaching that

decision. To the contrary, Burton is a case of statutory construction or, more

specifically, it limits the scope of a prior interpretation of the text of Section

9545(b)(1)(ii). In narrowing that prior interpretation, the Burton Court did

not invoke any provisions or rights set forth in the Pennsylvania or Federal

Constitutions. Indeed, there is not a single reference to either Constitution in

the opinion.

      Instead, the Burton Court grounded its decision on two precepts. First,

the Burton Court determined that “the application of the public record

presumption to pro se prisoners is contrary to the plain language of

subsection 9545(b)(1)(ii)[.]” Id. (emphasis added). Second, the Court

found that the prior interpretation “was imposed without any apparent


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consideration of a pro se prisoner's actual access to information of public

record.” Id. Thus, the Burton decision was based on the plain text of Section

9545(b)(1)(ii), and a common sense understanding that incarcerated PCRA

petitions do not have carte blanche access to information in the public domain.

        Moreover, the Burton decision did not constitute a watershed rule of

criminal procedure.

      New rules of procedure … generally do not apply retroactively.
      They do not produce a class of persons convicted of conduct the
      law does not make criminal, but merely raise the possibility that
      someone convicted with use of the invalidated procedure might
      have been acquitted otherwise. Because of this more speculative
      connection to innocence, we give retroactive effect to only a small
      set of “‘watershed rules of criminal procedure’ implicating the
      fundamental fairness and accuracy of the criminal proceeding.”
      That a new procedural rule is “fundamental” in some abstract
      sense is not enough; the rule must be one “without which the
      likelihood of an accurate conviction is seriously diminished.” This
      class of rules is extremely narrow….

Schriro v. Summerlin, 542 U.S. 348, 352 (2004).

      Here, the procedural rule in question is not a rule of criminal procedure,

as the “PCRA system is not part of the criminal proceeding itself, but is, in

fact, civil in nature.”    Commonwealth v. Haag, 809 A.2d 271, 284 (Pa.

2002). Thus, changes to PCRA procedure do not affect “fundamental fairness

and accuracy of the criminal proceeding.”          Schriro, 542 U.S. at 352

(emphasis added).         Thus, we hold that Burton did not establish a new

constitutional right nor a watershed rule of criminal procedure. Consequently,

there is no need to address whether “the right ‘has been held’ by ‘that court’




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to apply retroactively.”    Abdul-Salaam, 812 A.2d at 501.          Accordingly,

Appellant’s first claim is meritless.

      Next, Appellant asserts that the PCRA court erred by not conducting a

hearing to assess his ability to access certain FBI documents for purposes of

the timeliness exception set forth in Section 9545(b)(1)(ii). Notably, this is

not the first time that Appellant has attempted to seek collateral relief based

on these same documents.         As Appellant acknowledges, he received the

documents in question while litigating “his fourth PCRA action,” which

concluded in 2009. Appellant’s Brief at 27. Appellant’s fourth PCRA petition

was addressed by our decision in Kretchmar I. Appellant then filed his fifth

PCRA petition on January 13, 2010, which was the matter at issue in

Kretchmar II. Therefore, a discussion of our decisions in Kretchmar I and

Kretchmar II is necessary to understand the nature of Appellant’s claim.

      Kretchmar I concerned Appellant’s fourth petition for post-conviction

relief, filed on November 29, 2009, in which he sought to challenge his

conviction based on forensic evidence used in his case known as Comparative

Bullet Lead Analysis (“CBLA”). Kretchmar I, 971 A.2d at 1251. Utilizing

CBLA, “FBI Agent John Riley testified” during Appellant’s trial “that the bullets

extracted from Mr. Rosenblum's body matched in elemental composition those

found in the half-empty box discovered in Mr. Rosenblum's apartment creating

a high likelihood that they came from the same manufacturing run.” Id. at

1252. Subsequently, in 2004, the National Research Council of the National

Academies (“NAS”) issued a study assessing “the reliability of the science of

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CBLA    and    its   usefulness   as    a   forensic     evidentiary    tool[.]”   Id.

Contemporaneously, “a former chief metallurgist for the FBI, William Tobin,

offered public criticism of CBLA.” Id.

           A couple of years later, CBS News, through their weekly news
       magazine show “60 Minutes,” broadcast[ed] a feature on the FBI's
       usage of CBLA evidence entitled “Evidence of Injustice,” and
       contended that it was suspect as a forensic evidentiary tool.
       Indeed, the CBS spot suggested it was “junk science.” The 60
       Minutes piece relied heavily upon the assertions of Mr. Tobin, who
       was highly critical of CBLA evidence. The Washington Post further
       reported on CBLA evidence and questioned the evidentiary value
       of the forensic tool. It appears that sometime after the NAS issued
       its report, the FBI discontinued CBLA. Nevertheless, the above
       two reports spurred the FBI to issue a press release dated
       November 17, 2007, wherein John Miller, FBI Assistant Director
       for Public Affairs, is quoted as saying:

          Recently, joint reporting by the Washington Post and CBS
          News brought to our attention concerns that our messages
          on the discontinuation of bullet lead analysis were not clear
          enough and getting to the right people.... Press Release: FBI
          Laboratory to Increase Outreach in Bullet Lead Cases,
          11/17/07.

Id. at 1254 (footnotes omitted).

       In the PCRA petition at issue in Kretchmar I, Appellant “predicated his

substantive PCRA claim entirely upon the internal findings of the FBI that its

personnel ‘had made mistakes in handling bullet lead testimony and should

have done more to alert defendants and the courts.’”                   Id. at 1254–55.

Essentially,    Appellant    asserted       that   the     FBI’s   statement,      and

contemporaneous news reports in November of 2007, contained facts which

were previously unknown to the general public and, therefore, provided a

basis for him to invoke the PCRA timeliness exception set forth in Section


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9545(b)(1)(ii) (permitting an untimely PCRA petition when “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”).

       In Kretchmar I, this Court determined that Appellant’s PCRA petition

was untimely because, “what [A]ppellant contends was not known until

November 17, 2007, was, in the very least, quite inferable from the original

NAS report published in 2004.” Id. at 1256. Arguably, that particular aspect

of the Kretchmar I decision was premised on the rule later rejected in

Burton; that is, that Appellant was presumed to have been capable of

discovering the 2004 NAS report at an earlier time because it was a matter of

public record.

       Nevertheless, the Kretchmar I Court then conducted an alternative

analysis, addressing Appellant’s claim on the merits, and ultimately concluding

that   “the   CBLA   testimony   offered     in   [A]ppellant's   trial   was   not

misrepresentative” of the limitations of the CBLA science. Id. Specifically,

the Kretchmar I Court found:

       The whole of Agent Riley's testimony conveys the limited
       evidentiary value of the CBLA analysis. Agent Riley admitted that
       there could be a hundred thousand bullets with the same
       composition as the ones in question here. This certainly conveys
       the possibility of a random match. Agent Riley stressed that his
       analysis revealed that the bullet fragments found in Mr.
       Rosenblum's body “could have come” from the same box of
       ammunition found at Mr. Rosenblum's residence.          In plain
       language, this choice of words clearly conveys a probability far
       less than certainty. In contrast, the CBS 60 Minutes spot, using
       the example of a defendant convicted of murder, Lee Wayne Hunt,



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       demonstrates some of the overreaching CBLA testimony which is
       at the heart of the controversy:

          For years, the FBI believed that lead in bullets had unique
          chemical signatures, and that by breaking them down and
          analyzing them, it was possible to match bullets, not only to
          a single batch of ammunition coming out of a factory, but to
          a single box of bullets. And that is what the FBI did in the
          case of Lee Wayne Hunt, tying a bullet fragment found
          where the murders took place to a box of bullets the
          prosecutors linked to Hunt.

       http://www.cbsnews.com/stories/2007/11/16/60minutes/main3
       512453.shtml.

             In the present case, Agent Riley did not testify that his
       findings proved conclusively that the bullet fragments were from
       the same box of ammunition and certainly left open the possibility
       of random matches. Thus, Agent Riley did not engage in the form
       of unfounded representation that was at the heart of the NAS
       study/report or the 60 Minutes and Washington Post pieces, and
       also at the heart of the press release [A]ppellant refers to in his
       current PCRA petition.

Kretchmar I, 971 A.2d at 1257.

        In Kretchmar II, Appellant reformulated the same claim he raised in

Kretchmar I, but instead of relying on the 2004 NAS study, or the subsequent

news coverage of the CBLA issue, he sought to use the internal FBI reports he

received in 2009 as the predicate for invoking Section 9545(b)(1)(ii).1 We
____________________________________________


1   These documents
       include[d] a report by the United States Department of Justice,
       dated April 15, 1997, a memorandum by the FBI, dated May 17,
       1999, and five letters between the FBI and the Bucks County
       District Attorney’s Office, dated April 24, 2008, through July 17,
       2009. … See … Appellant’s Amended PCRA Petition, 7/12/10,
       Appendices B, C, and G…. The 1997 report, which is over 500
       pages long, provides information regarding an FBI “investigation
       into laboratory practices and alleged misconduct in explosives-



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held that Appellant “failed to prove the newly-discovered evidence exception

because he failed to allege or prove any new facts.” Id. (emphasis added).

       Specifically, Appellant failed to prove that the five letters dated
       December 30, 2008, through July 17, 2009, present new facts
       that have not been previously considered. In 2009, this Court
       addressed the propriety of the same FBI agent’s testimony and
       held that it was not misrepresentative and, thus, did not deny
       Appellant a fair and impartial trial. []Kretchmar [I], 971 A.2d
       [at] 1257…. Furthermore, we are unable to discern how the other
       two documents, the 1997 report and the 1999 memorandum,
       relate to Appellant’s case. Appellant has not demonstrated the
       relevance of the documents by pointing to a particular section of
       the 517-page report. Similarly, Appellant failed to challenge any
       specific portion of the forensic work performed in his case or to
       identify the person who conducted that forensic analysis.
       Appellant even neglects to mention whether the forensic work in
       question was used at his trial. Accordingly, we agree with the
       PCRA court’s conclusion that “[Appellant] has not met his burden
       in establishing th[e newly-discovered evidence] timeliness
       exception.” PCRA Court Opinion, 4/8/11, at 8.

Kretchmar II, No. 208 EDA 2011, unpublished memorandum at 9-10.

       Instantly, Appellant is attempting to make yet another challenge to

Agent Riley’s CBLA-related testimony. On this occasion, however, he does not

even offer newly-discovered documents, much less newly-discovered facts.

____________________________________________


       related and other cases.” Appellant’s Amended PCRA Petition,
       7/12/10, Appendix B. The 1999 memorandum summarizes the
       findings in the 1997 report. Appellant’s Amended PCRA Petition,
       7/12/10, Appendix C. The five letters refer to an FBI agent’s
       testimony regarding the comparative bullet-lead analysis
       conducted in Appellant’s case.

Kretchmar II, No. 208 EDA 2011, unpublished memorandum at 9 (Pa. Super.
filed October 25, 2011).




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Instead, Appellant is attempting to utilize the Burton decisions as a

jurisdictional hook by which to relitigate his previous two PCRA petitions. And,

although Appellant claims his previous petitions were denied exclusively by

application of the rule abandoned in Burton, that is simply not the case. In

Kretchmar I, this Court also denied his CBLA-related claim on an alternative

basis, concluding that Agent Riley’s testimony was not undermined by the

subsequent criticisms of CBLA in the CBS and Washington Post news reports.

In Kretchmar II, this Court determined that the additional documents

produced by Appellant did not present any new facts to undermine Agent

Riley’s testimony, since Appellant failed to identify which parts of those

documents constituted relevant, newly-discovered facts. The Kretchmar II

Court also found that Appellant failed to identify which part of Agent Riley’s

analysis was challenged by the new documents.           Thus, it is clear that

Appellant’s prior CBLA-related claims, raised in two separate PCRA petitions,

were not exclusively denied on the basis for the rule circumscribed in Burton.

      In any event, Appellant’s current PCRA petition presents no new

documents, no new evidence, and, most critically, no new facts. Accordingly,

his claims fails to meet the requirements of Section 9545(b)(1)(ii) on its face.

The only circumstance that has changed since Appellant’s previous PCRA

petition is our Supreme Court’s issuance of the Burton decision. However,

judicial decisions do not constitute new “facts” for purposes of the newly-

discovered evidence exception set forth in Section 9545(b)(1)(ii).         See

Commonwealth v. Watts, 23 A.3d 980, 986-87 (Pa. 2011).               New legal

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decisions can only overcome the PCRA’s timeliness requirements in the

context of Section 9545(b)(1)(iii). Accordingly, we conclude the PCRA court

did not err when it dismissed Appellant’s PCRA petition without a hearing.

Appellant did not plead newly-discovered facts so as to properly invoke

Section 9545(b)(1)(ii) and, therefore, no evidentiary hearing was required to

determine if Appellant exercised due diligence in the discovery of those facts.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/1/18




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