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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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