J-S67022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ALLAN C. CAMP, JR.

                            Appellant                  No. 508 WDA 2014


                Appeal from the PCRA Order February 28, 2014
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0011111-1993
                                          CP-02-CR-0011141-1993



BEFORE: DONOHUE, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                           FILED JANUARY 14, 2015

        Appellant, Allan C. Camp, Jr., appeals pro se from the February 28,

2014 order dismissing as untimely his second petition for relief filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. After careful review, we affirm.

        The relevant factual and procedural history of the case follows.   On

April 14, 1994, a jury convicted Appellant of numerous offenses, from nine

separate criminal informations, in connection with a series of burglaries




____________________________________________
*
    Former Justice specially assigned to the Superior Court.
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perpetrated between September 19, 1991 and March 9, 1993.1               On April

21, 1994, the trial court sentenced Appellant to an aggregate term of

incarceration of 73 to 146 years.              Appellant appealed his judgment of

sentence and this Court reversed his conviction on one burglary charge

unrelated to the cases on appeal, vacated the entire sentence, and

remanded for resentencing. See Commonwealth v. Camp, 862 PGH 1994

(Pa. Super. 1995) (unpublished memorandum) (Camp I).                At Appellant’s

resentencing on September 12, 1995, the trial court again sentenced

Appellant to an aggregate term of incarceration of 73 to 146 years.2 After

Appellant’s direct appeal rights were reinstated, this Court affirmed the

September 12, 1995 judgment of sentence on September 14, 2000, and our

Supreme Court denied Appellant’s subsequent petition for allowance of

appeal on February 14, 2001.           See Commonwealth v. Camp, 766 A.2d


____________________________________________
1
  At issue in the current appeal are the case at CP-02-CR-0011111-1993,
wherein Appellant was convicted of burglary, 18 Pa.C.S.A. § 3502; rape, 18
Pa.C.S.A. §§ 3121(a)(1) and (2); involuntary deviate sexual intercourse
(IDSI), 18 Pa.C.S.A. § 3123(a)(5); aggravated indecent assault, 18
Pa.C.S.A. § 3125(a)(6); and indecent assault, 18 Pa.C.S.A. § 3126(a)(6);
and the case at CP-02-CR-0011141-1993, wherein Appellant was convicted
of burglary; rape; two counts of IDSI; and theft by unlawful taking, 18
Pa.C.S.A. § 3921(a). N.T., 4/21/94, at 2-3.
2
  Appellant’s sentence on the charges subject to this appeal remained
unchanged, to wit, consecutive terms of incarceration of five to 10 years for
each burglary, seven and one-half to 15 years for each rape, seven and one-
half to 15 years for each IDSI, five to 10 years for aggravated indecent
assault, and no additional penalty on the remaining counts. N.T., 4/21/94,
at 13, 15.


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884 (Pa. Super. 2000) (unpublished memorandum), appeal denied, 785

A.2d 87 (Pa. 2001).

     Thereafter, Appellant filed a timely first PCRA petition, which the PCRA

court denied on September 5, 2001. Appellant appealed, this Court affirmed

on September 6, 2002, and our Supreme Court denied Appellant’s petition

for allowance of appeal on December 19, 2002.      See Commonwealth v.

Camp, 813 A.2d 900 (Pa. Super. 2002) (unpublished memorandum), appeal

denied, 813 A.2d 836 (Pa. 2002).

     On October 2, 2013, Appellant filed a pro se PCRA petition. The PCRA

court appointed counsel to represent Appellant.    On November 26, 2013,

counsel filed a motion to withdraw together with a no-merit letter in

accordance with the dictates of Commonwealth v. Turner, 544 A.2d 927

(Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super 1988)

(en banc).   Appellant filed a response to counsel’s motion to withdraw on

December 12, 2013, which included a motion to preserve all forensic

evidence. On December 20, 2013, the PCRA court granted counsel’s motion

to withdraw and gave notice to Appellant, in accordance with Pennsylvania

Rule of Criminal Procedure 907, of its intention to dismiss his PCRA petition

without a hearing. Appellant did not file a response to the PCRA court’s Rule

907 notice, but did file a pro se motion for DNA testing pursuant to 42

Pa.C.S.A. § 9543.1 on December 20, 2013.        On February 28, 2014, the




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PCRA court dismissed Appellant’s PCRA petition without a hearing.        The

PCRA court did not dispose of Appellant’s motion for DNA testing.

      Appellant filed a timely pro se notice of appeal on March 28, 2014.

The PCRA court did not order Appellant to file a Pennsylvania Rule of

Appellate Procedure Rule 1925(b) concise statement of errors complained of

on appeal. The PCRA Court issued a Rule 1925(a) opinion on July 15, 2014.

      On appeal, Appellant raises the following issues for our review.

            1.    Whether the PCRA court was in error when it
            dismissed Appellant’s PCRA petition without a
            hearing, where Appellant raised and demonstrated a
            strong prima facie showing of actual innocence
            through newly discovered evidence?

            2.    Whether the PCRA court was in error when it
            dismissed Appellant’s PCRA motions to preserve all
            forensic DNA evidence as well as Appellant’s motion
            for PCRA DNA retesting, where the Commonwealth’s
            forensic testing is unreliable?

Appellant’s Brief at 4.

      We acknowledge the following principles guiding our consideration of

an appeal from the denial of PCRA relief.     “On appeal from the denial of

PCRA relief, our standard and scope of review is limited to determining

whether the PCRA court’s findings are supported by the record and without

legal error.” Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013)

(citation omitted), cert. denied, Edmiston v. Pennsylvania, 134 S. Ct. 639

(2013). “[Our] scope of review is limited to the findings of the PCRA court

and the evidence of record, viewed in the light most favorable to the


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prevailing party at the PCRA court level.” Commonwealth v. Koehler, 36

A.3d 121, 131 (Pa. 2012) (citation omitted). “The PCRA court’s credibility

determinations, when supported by the record, are binding on this Court.”

Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation omitted).

“However, this Court applies a de novo standard of review to the PCRA

court’s legal conclusions.” Id.

      In order to be eligible for PCRA relief, a petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2).

These issues must be neither previously litigated nor waived. 42 Pa.C.S.A.

§ 9543(a)(3).    In its February 28, 2014 order, the PCRA court denied

Appellant’s PCRA petition without a hearing based on a lack of any genuine

issue of material fact entitling him to relief, however, it noted the

untimeliness of Appellant’s petition in its July 15, 2014 Rule 1925 opinion.

PCRA Court Order, 2/28/14, at 1; Trial Court Opinion, 7/15/14, at 2.

      The issue of timeliness implicates the jurisdiction of this Court and the

PCRA court.     “Because these timeliness requirements are mandatory and

jurisdictional in nature, no court may properly disregard or alter them in

order to reach the merits of the claims raised in a PCRA petition that is filed

in an untimely manner.” Commonwealth v. Lopez, 51 A.3d 195, 196 (Pa.

2012) (internal quotation marks and citation omitted). The PCRA “confers

no authority upon this Court to fashion ad hoc equitable exceptions to the


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PCRA time-bar[.]” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011)

(citation omitted).   This is to “accord finality to the collateral review

process.” Id. “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.

Garcia, 23 A.3d 1059, 1061-1062 (Pa. Super 2011) (internal quotation

marks, citation, and footnote omitted), appeal denied, 38 A.3d 823 (Pa.

2012). “We have repeatedly stated it is the appellant’s burden to allege and

prove that one of the timeliness exceptions applies. Whether [an a]ppellant

has carried his burden is a threshold inquiry prior to considering the merits

of any claim.” Edmiston, supra at 346 (citation omitted).

     The Act provides, in relevant part, as follows.

           § 9545. Jurisdiction and proceedings

                                            …

           (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;




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                           (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.

                     (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.A. § 9545(b).

       Instantly, Appellant’s PCRA petition is patently untimely.         Appellant’s

judgment of sentence became final on May 15, 2001, 90 days after our

Supreme Court denied Appellant’s petition for allowance of appeal and in the

absence of further appeal to the Supreme Court of the United States. See

Sup. Ct. R. 13. Appellant’s PCRA petition, having been filed on October 2,

2013, is clearly beyond the one-year filing requirement.                   Appellant

acknowledges as much but argues he has properly pled and proved an after-

discovered facts exception to the PCRA timeliness constraints.3 Appellant’s

Brief at 12.

____________________________________________
3
  In his brief, Appellant conflates his Section 9543(a)(2)(vi) unknown-
evidence claim with his Section 9545(b)(1)(ii) unknown-facts timeliness
exception. Appellant’s Brief at 13-15. “An after-discovered evidence claim
(Footnote Continued Next Page)

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                    Our Supreme Court has previously described a
             petitioner’s burden under the newly-discovered fact
             exception as follows.

                       [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.”
                       42 Pa.C.S. § 9545(b)(1)(ii) (emphasis added).

             Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d
             1264, 1272 (2007). “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.”    [Commonwealth v.] Williams, [35
             A.3d 44,] 53 [(Pa. Super. 2011), appeal denied, 50
             A.3d 121 (Pa. 2012)]. Additionally, as this Court has
             often explained, all of the time-bar exceptions are
             subject to a separate deadline.

                              The    statutory   exceptions   to    the
                       timeliness requirements of the PCRA are also
                       subject to a separate time limitation and must
                       be filed within sixty (60) days of the time the
                       claim could first have been presented. See 42
                       Pa.C.S.A. § 9545(b)(2). The sixty (60) day
                       time limit ... runs from the date the petitioner
                       first learned of the alleged after-discovered
                       facts. A petitioner must explain when he first
                       learned of the facts underlying his PCRA claims

                       _______________________
(Footnote Continued)
and the timeliness exception based on previously unknown facts are distinct.
The issues are analyzed differently.” Commonwealth v. Frey, 41 A.3d
605, 611 (Pa. Super. 2012) (citations omitted), appeal denied, 65 A.3d 413
(Pa. 2013). “Thus, the relative merit of Appellant’s underlying PCRA claims
is not the issue when determining whether his PCRA petition satisfies the
after-discovered fact exception.” Commonwealth v. Davis, 86 A.3d 883,
891, n.7 (Pa. Super. 2014).


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                      and show that he brought his claim within sixty
                      (60) days thereafter.

              Id. (some citations omitted).

Commonwealth v. Medina, 92 A.3d 1210, 1216 (Pa. Super. 2014).4

       Instantly, Appellant’s underlying claim is that the Commonwealth

presented forensic DNA evidence at trial that it “knew or should have known

to be false.”    Appellant’s Brief at 11.        In support of that claim, Appellant

advances, as a previously unknown fact, an article authored by “Dr. Ernest

P. Chiodo, M.D., J.D., M.P.H., M.B.A., C.I.H., which include’s [sic] his expert

opinion on what constitutes a ‘match’ in DNA forensics.” Appellant’s Brief at

13.   Appellant cites the following excerpt from Dr. Chiodo’s article as the

pertinent new “fact”.

              In DNA profiling, a number of genetic loci are
              sampled. If “any” of the genetic loci differ between
              the suspect and the crime scene sample, then the
              suspect is excluded as a source of the crime scene
              sample.

Appellant’s Brief at 14, quoting Ernest P. Chiodo, Genetic and DNA Evidence:

The Emperor Has No Clothes, Prison Legal News, Aug. 2013, at 40;

Appellant’s PCRA petition, 10/2/13, Exhibit A. Appellant further notes, “the

tenor of the article … was [a] warning against exaggerated statistical

probabilities by prosecutors.”        Id., quoting PCRA Counsel’s 11/26/13, No-

Merit Letter, at 3.
____________________________________________
4
   Our Supreme Court has granted the Commonwealth’s petition for
allowance of appeal in Medina. Commonwealth v. Medina, ---A.3d---,
2014 WL 6991663, (Pa. 2014).


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       Upon review of Appellant’s PCRA petition, his response to counsel’s

motion to withdraw, and Appellant’s appellate briefs, we conclude that Dr.

Chiodo’s article does not constitute a new “fact” as that term is employed in

Section 9545(b)(1)(ii). In Commonwealth v. Gamboa-Taylor, 753 A.2d

780, 786-787 (Pa. 2000), our Supreme Court addressed whether revised

expert opinions relative to the appellant’s competency could constitute newly

discovered facts for the purpose of Section 9545(b)(1)(ii).

            This Court has held that a medical expert’s change of
            opinion from that given at trial, which is based
            merely on the examination of additional information
            that was available at the time the initial opinion was
            proffered, does not constitute after-discovered
            evidence. Commonwealth v. Cross, 555 Pa. 603,
            726 A.2d 333 (1999). Certainly, in keeping with the
            rationale of Cross, a completely new opinion
            uncovered after trial would also not be recognized as
            after-discovered evidence.

Gamboa-Taylor, supra at 786. The Court concluded that all of the “facts”

pertaining to the appellant’s mental condition were known or knowable at

trial and a new opinion regarding the same is “not a cognizable claim under

the narrow [timeliness] exception for after-discovered evidence.”      Id. at

787.

       Here, Dr. Chiodo’s article, and his opinions expressed therein, present

no new fact pertinent to the DNA evidence in Appellant’s trial. Rather, Dr.

Chiodo’s article cautions against prosecution assertions of DNA statistical

matches that are based on incorrect assumptions. Appellant’s PCRA petition,

10/2/13, Exhibit A, Ernest P. Chiodo, Genetic and DNA Evidence: The

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Emperor Has No Clothes, Prison Legal News, Aug. 2013, at 40-41. At most,

Dr. Chiodo’s article suggests a theory upon which to question evidence of

DNA matches that are based on statistical probability.       See id.    In other

words, it suggests a lens through which to view such evidence. There is no

suggestion that this approach is a new discovery or based on new science.

See id. In fact, Appellant concedes that he does not argue that Dr. Chiodo’s

article presents “a new technique for DNA analysis, or a scientific advance in

the field,” but merely that the article itself was previously unknown and

unavailable.      Appellant’s Reply Brief at 3-4 (internal quotation marks

omitted).     It is thus apparent that Appellant has failed to allege a new

unknown fact upon which his claim is grounded.5          See Gamboa-Taylor,

supra.

       Having failed to assert an exception to the PCRA’s timeliness

limitations, we conclude Appellant’s October 2, 2013 PCRA petition is

untimely and that the PCRA court and this Court lack jurisdiction to address




____________________________________________
5
  Significantly, Appellant raised the issue of trial counsel’s ineffectiveness
“for failing to object to statistical analysis of DNA evidence offered by several
of the Commonwealth’s expert witnesses” in his first direct appeal. Camp I,
supra at 11. This Court determined that “[a]ssuming arguendo that the
admission of the statistical analysis was error, in light of other physical
evidence supporting Appellant’s convictions the error was harmless.” Id.
Thus, all the facts relative to the propriety of the Commonwealth’s DNA
evidence were known at the time of Appellant’s trial.



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its merits. Accordingly, we conclude the PCRA court did not err or abuse its

discretion in dismissing Appellant’s PCRA petition without a hearing.6

       In his second issue, Appellant challenges the PCRA court’s purported

denial of his motion for DNA testing under 42 Pa.C.S.A. § 9543.1. As noted

above, however, the PCRA court never disposed of that motion.            Further,

“the litigation of a motion for DNA testing under Section 9543.1 is, in

substance, a wholly separate proceeding from litigation of a PCRA petition.”

Commonwealth v. Scarborough, 64 A.3d 602, 609 (Pa. 2013); see also

Edmiston, supra at 342 (addressing PCRA petition and motion for DNA

testing as distinct actions), Williams, supra at 50-51 (noting, “[t]his Court

has held that a PCRA petition cannot be used to make a motion for DNA

analysis, and the reverse is surely true as well”) (internal quotation marks

and citations omitted). Therefore, the PCRA court’s February 28, 2014 order

dismissing Appellant’s PCRA petition did not affect Appellant’s still-pending

motion for DNA testing.         Accordingly, there is no final order from which

Appellant can appeal relative to his motion for DNA testing. See Pa.R.A.P.

301 (explaining requisites for an appealable order).       Because Appellant’s

second issue is premature, we cannot address it.

____________________________________________
6
  Because we determine Appellant did not aver a new fact that would satisfy
the time-bar exception under Section 9545(b)(1)(ii), we do not need to
address whether August 2013 was the original publication date of the article
or a reprinting as asserted by the Commonwealth, or whether Appellant
acted with due diligence to discover the article. See Commonwealth’s Brief
at 24-25.


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     Based on the foregoing, we conclude the PCRA court committed no

error or abuse of discretion in dismissing Appellant’s PCRA petition as

untimely.   Further, we conclude the PCRA court’s dismissal of Appellant’s

PCRA petition did not dispose of Appellant’s motion for DNA testing, which

remains pending before the PCRA court.      Accordingly, we affirm the PCRA

court’s February 28, 2014 order.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/14/2015




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