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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

JAMES R. CRUZ, JR.

                            Appellant                      No. 1728 MDA 2016


               Appeal from the PCRA Order September 14, 2016
                In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0001246-1993


BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                             FILED SEPTEMBER 29, 2017

        James Cruz, Jr. appeals from the order, entered in the Centre County

Court of Common Pleas, dismissing his second Post Conviction Relief Act1

(“PCRA”) petition. We affirm.

        The relevant facts and procedural history of this case are as

follows. Cruz was convicted of criminal homicide and theft on June 14, 1994

and was sentenced to life imprisonment.                At trial, the Commonwealth

entered evidence relating to a number of hairs, recovered during the

underlying     criminal     investigation,     which     implicated   Cruz   in   the

murder. Specifically, hair identified as belonging to the victim was found in


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1
    42 Pa.C.S. §§ 9541-9546.
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the cab of Cruz’s truck, and hair identified as belonging to Cruz was found on

the ropes that had been used to bind and fatally strangle the victim.

      To establish that the recovered hairs belonged to Cruz and to the

victim, the Commonwealth relied, in part, on microscopic hair analysis. FBI

Agent Chester Blythe testified at trial regarding the use of microscopic hair

analysis as a forensic method.      In this testimony, Agent Blythe drew

scientific conclusions that implicated Cruz in the murder of the victim. It is

this testimony that forms the basis of Cruz’s current PCRA petition.

      Per an agreement with the Innocence Project, the Department of

Justice (“DOJ”) ordered the FBI to undertake a review of cases that involved

microscopic hair analysis, including Cruz’s conviction. As a result of that

review, the DOJ issued a letter on June 8, 2015 that identified several areas

in which Agent Blythe’s testimony exceeded the scientific limitations of

microscopic hair analysis.   A copy of the DOJ letter was subsequently

provided to Cruz, which prompted the current PCRA petition.

      As a threshold issue, a court has no jurisdiction to hear an untimely

PCRA petition. Commonwealth v. Robinson, 837 A.2d 1157 (Pa. 2003).

To be timely, a PCRA petition must be filed within one year of final

judgment.   42 Pa.C.S. § 9545(b)(1).      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 review.” 42 Pa.C.S. § 9545(b)(3).


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       Cruz was sentenced on June 14, 1994, and this Court affirmed his

judgment of sentence on December 22, 1995.                Commonwealth v. Cruz,

674 A.2d 313 (Pa. Super. 1995).                The Pennsylvania Supreme Court then

denied Cruz’s Petition for          Allowance      of Appeal on June    26, 1996.

Commonwealth v. Cruz, 678 A.2d 364 (Pa. 1996).                  Cruz’s judgment of

sentence thus became final on September 24, 1996, when the time expired

for him to file a writ of certiorari with the United States Supreme Court. See

U.S. Sup. Ct. R. 13(1) (requiring writ of certiorari to be filed within 90 days

after entry of judgment).

       Cruz had one year from this date, until September 24, 1997, to file a

timely PCRA appeal. Cruz’s first PCRA petition was filed timely on March 10,

1997, and its dismissal was eventually affirmed by this Court on March 5,

2015.2 However, Cruz’s second petition, at issue here, is patently untimely.

Accordingly, the PCRA court had no jurisdiction to entertain that petition

unless Cruz established one of the exceptions to the jurisdictional time bar.

       To invoke an exception, the petitioner must allege and prove one of

the following:

       (i) the failure to raise the claim previously was the result of
       interference by government officials with the presentation of the
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2
  The record does not explain the delay between the 1997 filing and the
2015 disposition of the first PCRA appeal. See Commonwealth v. Cruz,
No. 384 MDA 2014 (Pa. Super. March 5, 2015) (“Appellant’s petition
languished for the next 15 years until, for unstated reasons, it came to the
court’s attention.”)



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      claim in violation of the 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).

      Cruz contends that the DOJ letter reflects a “newly-discovered fact,”

pursuant to section 9545(b)(1)(ii), and can thus serve to excuse the

untimeliness of the current PCRA petition. He argues that he could not have

known about the deficiencies in Agent Blythe’s testimony prior to receiving

the letter, and that these deficiencies comprise the “newly-discovered fact”

which could support relief under the PCRA.

      The PCRA court disagreed with Cruz and denied his petition without a

hearing under Pa.R.Crim.P. 907(1). In so doing, the PCRA court held that

Commonwealth v. Edmiston, 65 A.3d 339 (Pa. 2013), is analogous and

controlling here, and that this precedent precludes the DOJ letter from

qualifying as a “newly-discovered fact.” Because we substantially agree with

the trial court’s assessment, we affirm the order dismissing Cruz’s PCRA

petition.

      Our standard of review for an order denying post-conviction relief is

limited to examining whether the PCRA court’s determination is supported by

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evidence of record and whether it is free of legal error. Commonwealth v.

Wilson, 824 A.2d 331 (Pa. Super. 2003) (en banc).           The scope of our

review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the trial

level. Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). Finding no

error of law in the PCRA court’s reliance on Edmiston, we affirm its

decision.

      In Edmiston, the appellant attempted to argue that a recently-

published study by the National Academy of Sciences was a “newly-

discovered fact” because the study broadly criticized the use of microscopic

hair analysis as a forensic technique. Our Supreme Court concluded that the

study itself was not a “newly-discovered fact” but was instead a restatement

of existing facts from a new source. Because the NAS study was merely a

third party’s analysis of the existing science underlying microscopic hair

analysis, and because that science had been available in the public record

for years before the appellant’s PCRA petition, the Court concluded that the

study could not be a “new fact” and therefore the petition was untimely.

      Here, like Edmiston, Cruz relies on a new source of previously

knowable facts, and not on a “newly-discovered fact.”      The DOJ reviewed

Agent Blythe’s testimony and concluded that some of his statements

exceeded the limits of science at the time of the trial. In so deciding, the

DOJ reviewed no new material but instead relied on an analysis of the trial


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transcripts as interpreted through the lens of the 2012 edition of the

microscopic hair comparison analysis standards.

       To the extent that the conclusions in the DOJ letter are wholly

dependent on facts that were known at the time of the trial, the letter

cannot constitute “newly-discovered facts” as required by the PCRA statute.

As the PCRA court here noted in its opinion:          “[T]he hair examiner’s

testimony did exist at the time of Petitioner’s trial and Petitioner had the

opportunity to attack the credibility of the microscopic hair comparison in the

case and the integrity of the field of microscopic hair comparison analysis in

general.” Trial Court Opinion, 8/5/16, at 3.

       Since the underlying facts existed in the record from the moment

Agent Blythe testified in court, the letter from the DOJ represents “facts that

were previously known but are now presented through a newly discovered

source.” Edmiston, 65 A.3d at 352. Because the DOJ reviewed only the

existing testimony and scientific standards and offered its own opinion

thereon, we agree with the PCRA court that the DOJ letter does not contain

“newly-discovered facts” to support a timeliness exception under section

9545(b)(1)(ii).3

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3
   We also note that Cruz argues that Commonwealth v. Chruby, 304 MDA
2016 (Pa. Super. December 9, 2015), should control our decision due to the
significant factual similarities between that case and the instant case.
Chruby, however, is an unpublished memorandum decision and is not
binding precedent.    See 210 Pa. Code § 65.37; see also Schaaf v.
(Footnote Continued Next Page)


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      Accordingly, we find no error in the PCRA court’s dismissal of Cruz’s

second, untimely PCRA petition. Robinson, supra.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/2017




                       _______________________
(Footnote Continued)

Kaufman, 850 A.2d 655 (Pa. Super. 2004) (discussing section 65.37 and
corresponding limitations on use of unpublished memorandum decisions).
Thus, we are not bound to reach the same result as that case. Regardless,
Chruby is also distinguishable from this case as the remand in Chruby was
procedurally justified due to unresolved motions pending at the time of that
case’s dismissal. Here, there are no such unresolved issues to cloud the
facts before us, and the dismissal by the trial court was proper.



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