J-S72008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

WALTER S. CHRUBY

                            Appellant                  No. 304 MDA 2016


                 Appeal from the PCRA Order January 27, 2016
                In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0001267-1995


BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.:                      FILED DECEMBER 09, 2016

        Appellant, Walter S. Chruby, appeals from the order entered in the

Centre County Court of Common Pleas, which dismissed as untimely his

second petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1

We vacate and remand for further proceedings.

        The relevant facts and procedural history of this case are as follows.

On October 4, 1995, the Commonwealth charged Appellant with criminal

homicide, burglary, criminal trespass, robbery, theft by unlawful taking, and

access device fraud, in connection with the murder of Victim.        Appellant

proceeded to a jury trial in June 1997.        Agent Fram, a FBI hair analysis

____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-S72008-16


expert who analyzed several items related to Victim’s death, testified on

behalf of the Commonwealth at Appellant’s trial.            In his testimony, Agent

Fram drew scientific conclusions which implicated Appellant in the murder of

Victim. The jury ultimately convicted Appellant of first-degree murder and

all other charged offenses on June 25, 1997.          On July 3, 1997, the court

sentenced Appellant to an aggregate term of life imprisonment without the

possibility   of   parole,   followed   by   ten   (10)    to   twenty   (20)   years’

imprisonment.      This Court affirmed the judgment of sentence on March 9,

1999, and our Supreme Court denied allowance of appeal on July 15, 1999.

See Commonwealth v. Chruby, 737 A.2d 1270 (Pa.Super. 1999), appeal

denied, 559 Pa. 712, 740 A.2d 1144 (1999).

      On June 25, 2003, Appellant filed his first PCRA petition, and the PCRA

court appointed counsel on August 19, 2003.               Counsel filed an amended

PCRA petition on January 2, 2004, which raised issues about trial counsel’s

alleged cocaine use during trial.       On March 10, 2004, the Commonwealth

filed a motion to dismiss the petition as untimely, and the court denied PCRA

relief on May 6, 2004. On July 19, 2005, this Court affirmed the denial of

PCRA relief, and our Supreme Court denied allowance of appeal on

December 1, 2005.            See Commonwealth v. Chruby, 883 A.2d 685

(Pa.Super. 2005), appeal denied, 586 Pa. 707, 889 A.2d 1213 (2005).

      Appellant filed his second and current PCRA petition pro se on

February 12, 2015, and the court appointed counsel on February 26, 2015.


                                        -2-
J-S72008-16


In the petition, Appellant claimed he received a December 19, 2014 letter

from the district attorney’s office, which informed Appellant of the FBI’s

findings that Agent Fram’s trial testimony exceeded the limits of science.

Appellant’s petition asserted the FBI’s findings constituted a newly-

discovered fact, pursuant to 42 Pa.C.S.A. § 9545(b)(1)(ii), to excuse the

untimeliness of the petition.   On April 22, 2015, appointed counsel filed a

motion for extension of time to file an amended PCRA petition and a motion

for the appointment of a microscopic hair analysis expert. The court held a

hearing on the motions on June 12, 2015; however, the court did not

expressly rule on either motion. On July 10, 2015, the Commonwealth filed

a motion to dismiss Appellant’s PCRA petition as untimely, and the court

issued notice of its intent to dismiss the petition without a hearing pursuant

to Pa.R.Crim.P. 907 on January 13, 2016.       Appellant filed a response on

January 26, 2016, and the court dismissed Appellant’s petition as untimely

on January 27, 2016. Appellant timely filed a notice of appeal on February

19, 2016. On March 7, 2016, the court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

and Appellant timely complied on March 14, 2016.

      Appellant raises the following issue for our review:

         DID   THE   [PCRA]   COURT   ERR   IN  DISMISSING
         [APPELLANT’S] PCRA PETITION AS BEING UNTIMELY, AND
         MORE SPECIFICALLY, DID THE LETTER FROM THE FBI
         DATED SEPTEMBER 30, 2014 CONSTITUTE A NEWLY-
         DISCOVERED FACT AND WAS [APPELLANT’S] PETITION
         FILED WITHIN SIXTY DAYS OF HIM BECOMING AWARE OF

                                     -3-
J-S72008-16


          THAT LETTER?

(Appellant’s Brief at 4).

      As a preliminary matter, we must determine whether Appellant timely

filed his current PCRA petition. Commonwealth v. Harris, 972 A.2d 1196

(Pa.Super. 2009), appeal denied, 603 Pa. 684, 982 A.2d 1227 (2009).

Pennsylvania law makes clear no court has jurisdiction to hear an untimely

PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837 A.2d 1157

(2003).   The most recent amendments to the PCRA, effective January 16,

1996, provide that a PCRA petition, including a second or subsequent

petition, shall be filed within one year of the date the underlying judgment

becomes final. 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Bretz, 830

A.2d 1273 (Pa.Super. 2003). A judgment is deemed 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 review.” 42 Pa.C.S.A. § 9545(b)(3).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused.    42 Pa.C.S.A. § 9545(b)(1).     To invoke an exception, a

petition must allege and the petitioner must prove:

          (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;


                                      -4-
J-S72008-16


         (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.A. § 9545(b)(1)(i)-(iii).    A petitioner must raise a timeliness

exception within 60 days of the date the claim could have been presented.

42 Pa.C.S.A. § 9545(b)(2).     “As such, when a PCRA petition is not filed

within one year of the expiration of direct review, or not eligible for one of

the three limited exceptions, or entitled to one of the exceptions, but not

filed within 60 days of the date that the claim could have been first brought,

the trial court has no power to address the substantive merits of a

petitioner’s PCRA claims.”   Commonwealth v. Gamboa-Taylor, 562 Pa.

70, 77, 753 A.2d 780, 783 (2000).

      “The newly discovered facts exception has two components, which

must be alleged and proved.” Commonwealth v. Brown, 141 A.3d 491,

500 (Pa.Super. 2016). Specifically:

         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.

Id. (quoting Commonwealth v. Bennett, 593 Pa. 382, 395-96, 930 A.2d

1264, 1272 (2007). Importantly, “to constitute facts which were unknown

                                      -5-
J-S72008-16


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.” Commonwealth v. Edmiston, 619 Pa. 549, 570-71,

65 A.3d 339, 352 (2013), cert denied, ___ U.S. ___, 134 S.Ct. 639, 187

L.Ed.2d 423 (2013).

      Instantly, the court sentenced Appellant on July 3, 1997. On March 9,

1999, this Court affirmed the judgment of sentence, and our Supreme Court

denied allowance of appeal on July 15, 1999.           Appellant’s judgment of

sentence became final on October 13, 1999, upon expiration of time to file a

petition for writ of certiorari with the United States Supreme Court.       See

U.S.Sup.Ct.R. 13 (allowing ninety days to file petition for writ of certiorari).

Appellant filed the present petition on February 12, 2015, over fifteen years

after his judgment of sentence became final; thus, the petition is patently

untimely.

      Nevertheless, Appellant’s current PCRA petition asserts the newly-

discovered    facts     exception   to   the   PCRA   timeliness   requirements.

Specifically, Appellant’s petition alleges he received a letter from the district

attorney’s office dated December 19, 2014, which informed Appellant of the

FBI’s September 30, 2014 report about Agent Fram’s overreaching scientific

conclusions at trial.    As a result of these allegations, the court appointed

counsel to represent Appellant, and on April 22, 2015, appointed counsel


                                         -6-
J-S72008-16


filed a motion for the appointment of a microscopic hair analysis expert and

a motion for an extension of time to file an amended petition.     The court

held argument on the motions on June 22, 2015. At the conclusion of the

hearing, the court gave the Commonwealth thirty days to file a motion to

dismiss Appellant’s PCRA petition and Appellant twenty days to respond to

the Commonwealth’s motion.      The court also stated it would rule on the

motion to amend the petition once it made a decision with respect to

Appellant’s motion for the appointment of a microscopic hair analysis expert.

Despite the court’s statements at the June 12, 2015 hearing, the court did

not rule on either motion.   Instead, the court issued Rule 907 notice on

January 13, 2016, after it received the Commonwealth’s motion to dismiss

and Appellant’s response to the Commonwealth’s motion.       On January 26,

2016, Appellant filed a response to Rule 907 notice in which he again alleged

the newly discovered facts exception to the PCRA timeliness requirement.

Nevertheless, the court dismissed Appellant’s petition as untimely on

January 27, 2016.

     Appellant’s current pro se PCRA petition claims he could not have

discovered the erroneous nature of Agent Fram’s testimony without the FBI’s

September 30, 2014 report, which admitted Agent Fram’s testimony

exceeded the limits of science. Appellant’s petition explains that he learned

of the FBI’s conclusions about Agent Fram’s testimony when the district

attorney sent a copy of the FBI report to Appellant by letter dated December


                                    -7-
J-S72008-16


19, 2014, which suggests Appellant filed his February 12, 2015 petition

within sixty days of learning of the alleged newly-discovered fact. See 42

Pa.C.S.A. § 9545(b)(2). Further, the information contained in the December

19, 2014 letter might qualify as an exception to the PCRA timeliness

requirement. See Brown, supra. The record, however, is not sufficiently

developed to review whether Appellant meets the requirements of that

exception or whether Appellant is entitled to PCRA relief, because the court

did not independently address these assertions at the June 12, 2015

hearing. Consequently, a remand is necessary as the PCRA court is in the

best position to receive and evaluate evidence regarding the timeliness of

Appellant’s PCRA petition. See Commonwealth v. Kenney, 557 Pa. 195,

202-03, 732 A.2d 1161, 1165 (1999) (holding Superior Court has no original

jurisdiction in PCRA proceedings; if record is insufficient for review, case

should be remanded for further inquiry). Therefore, we conclude the best

resolution of this case is to vacate and remand the matter to the PCRA court

to rule on Appellant’s outstanding motions after an independent analysis and

hearing on whether Appellant’s claim qualifies for the newly discovered fact

exception to the PCRA timeliness requirements. Accordingly, we vacate and

remand for further proceedings.




                                   -8-
J-S72008-16


      Order vacated; case remanded with instructions.   Jurisdiction is

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/9/2016




                                -9-
