J-S46003-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
             v.                         :
                                        :
                                        :
TONEY TERRY DEBERRY                     :
                                        :
                   Appellant            :   No. 86 EDA 2018

             Appeal from the PCRA Order December 22, 2017
    In the Court of Common Pleas of Bucks County Criminal Division at
                     No(s): CP-09-CR-0005529-1987,
            CP-09-CR-0005530-1987, CP-09-CR-0005531-1987

BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.:                        FILED OCTOBER 16, 2018

      Toney Terry DeBerry appeals from the order that dismissed his petition

filed pursuant to the Post Conviction Relief Act (“PCRA”). Also before us is

the application to withdraw as counsel filed by Stuart Wilder, Esquire

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). We

deny counsel’s application to withdraw, vacate the order dismissing

Appellant’s petition, and remand for further proceedings.

      This Court summarized the facts and evidence underlying Appellant’s

convictions as follows.

            In the early morning hours of August 8, 1987, [Appellant]
      broke into a residence known as The Woman’s Place, by cutting
      open and removing a window screen. The Woman’s Place,
      located in Doylestown Township, is a temporary residential
      shelter for women and their children, who have been physically,
      mentally, or sexually abused. At the time [A]ppellant broke into
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     the shelter, Pamela Weaver and Alfrea Styles were sleeping in
     separate first floor bedrooms with their children.

           Appellant first entered the room of [Ms.] Weaver and
     awakened her while holding a knife to her throat. For the next
     hour Ms. Weaver was sexually assaulted by [A]ppellant. She
     was repeatedly raped and forced to commit oral sex upon
     [A]ppellant. When finished, [A]ppellant gagged Ms. Weaver with
     her own underwear and tied her hands with an electrical cord.
     Appellant threatened to kill Ms. Weaver if she left the room to
     notify police. He then exited into a lighted hallway.

             Next, [A]ppellant proceeded into [Ms.] Styles’ bedroom.
     Again, [A]ppellant awakened his victim while holding a knife to
     her throat. At knifepoint, [A]ppellant performed oral sex upon
     Ms. Styles while she lay in her bed. Appellant then forced Ms.
     Styles to leave with him. He took her to a secluded area behind
     the spring house building at the far end of the parking lot and
     . . . forced her to perform oral sex upon him. Appellant then
     raped Ms. Styles. During the attack, [A]ppellant and Ms. Styles
     observed lights flashing in the woods behind their location.
     During the course of the attack on Ms. Styles, Ms. Weaver had
     summoned the police. Appellant was soon after apprehended in
     a wooded area adjacent to the spring house.

            At the time of these attacks, [A]ppellant had been placed
     in the work release program from the Bucks County
     Rehabilitation Center.     Under the rules of the program,
     [A]ppellant was supposed to return to the center immediately
     after finishing work. On the night of the attack, [A]ppellant had
     finished working at approximately midnight.           Instead of
     returning to the center, [A]ppellant went to two separate bars
     and then proceeded with the attacks at the woman’s shelter.

            After being apprehended, [A]ppellant was presented to
     both victims for identification. [Ms.] Weaver positively identified
     [A]ppellant as the attacker. [Ms.] Styles stated that [A]ppellant
     looked like the attacker but did not make a positive
     identification. Ms. Styles later testified at trial that she knew
     immediately that [A]ppellant was the attacker but feared for her
     safety if she positively identified him to police in his presence.

           Appellant was arrested and charged with rape, involuntary
     deviate sexual intercourse, kidnapping, terroristic threats, simple

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      assault, unlawful restraint, false imprisonment, recklessly
      endangering another person, indecent assault, indecent
      exposure, burglary, and escape.          Aside from the victims’
      identifications of [A]ppellant, the police were also able to
      uncover physical evidence linking [A]ppellant to the assaults,
      such as finding [his] pubic hair in Ms. Weaver’s bed clothes.

             At the conclusion of his trial, the jury found [A]ppellant
      guilty of all charges.     Following the denial of post-verdict
      motions, [A]ppellant was sentenced to [an] aggregate . . . of
      thirty-three-and-one-half to sixty-seven years.

Commonwealth        v.     DeBerry,   636     A.2d     1209   (Pa.Super.    1993)

(unpublished memorandum at 1-3).

      This Court affirmed Appellant’s judgment of sentence in 1989, and our

Supreme     Court      denied   his   petition   for    allowance   of     appeal.

Commonwealth v. DeBerry, 559 A.2d 961 (Pa.Super. 1989), appeal

denied, 571 A.2d 380 (Pa. 1989).          Appellant filed several petitions for

collateral relief between 1992 and 2009, none of which was successful in

attacking his convictions or sentence.      Appellant also sought and received

DNA testing of the hair recovered from the crime scene; the results did not

exculpate Appellant.     See PCRA Court Opinion, 2/6/18, at 2.

      Appellant filed the instant PCRA petition on July 16, 2015, alleging that

the FBI microscopic hair analyst who testified at his trial “exceeded the limits

of science by overstating the conclusions that may be drawn from a positive

association between evidentiary hair and a known sample.” PCRA Petition,

7/16/15, at 3.   Appellant contended that, absent the faulty testimony, he

would have been acquitted. Id.


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      The PCRA court appointed counsel, and an amended petition was filed.

Counsel was replaced in 2017, and another amended petition was filed. The

PCRA court held a hearing on December 14, 2017, and dismissed the

petition as untimely on December 20, 2017.        Appellant thereafter filed a

timely notice of appeal.

      In this Court, counsel filed a petition to withdraw and no-merit letter

pursuant to Turner and Finley.      Before we consider the substance of the

appeal,   we   must   determine   whether   counsel   followed   the   required

procedure, which we have summarized as follows.

      Counsel petitioning to withdraw from PCRA representation must
      proceed under [Turner and Finley and] must review the case
      zealously. Turner/Finley counsel must then submit a “no-
      merit” letter to the trial court, or brief on appeal to this Court,
      detailing the nature and extent of counsel’s diligent review of the
      case, listing the issues which petitioner wants to have reviewed,
      explaining why and how those issues lack merit, and requesting
      permission to withdraw.

      Counsel must also send to the petitioner: (1) a copy of the “no
      merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
      and (3) a statement advising petitioner of the right to proceed
      pro se or by new counsel.

      Where counsel submits a petition and no-merit letter that satisfy
      the technical demands of Turner/Finley, the court—trial court
      or this Court—must then conduct its own review of the merits of
      the case. If the court agrees with counsel that the claims are
      without merit, the court will permit counsel to withdraw and
      deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa.Super. 2012) (cleaned up).




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        We are satisfied from the review of counsel’s application and no-merit

letter that counsel has complied with the technical requirements of Turner

and Finley.1 Therefore, we will consider the substance of the appeal.

         We begin with a review of the applicable law. “Our standard of review

of a trial court order granting or denying relief under the PCRA calls upon us

to determine ‘whether the determination of the PCRA court is supported by

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

Barndt, 74 A.3d 185, 192 (Pa.Super. 2013) (quoting Commonwealth v.

Garcia, 23 A.3d 1059, 1061 (Pa.Super. 2011)).

        We first consider whether Appellant’s petition was timely, as the

timeliness of a post-conviction petition is jurisdictional. Commonwealth v.

Lewis, 63 A.3d 1274, 1280-81 (Pa.Super. 2013). To be timely, a petition

for relief under the PCRA, including a second or subsequent petition, must be

filed within one year of the date the judgment of sentence is final. For the

PCRA court to have jurisdiction to entertain a facially-untimely petition, the

petition must allege, and the petitioner must prove, that an exception to the

time for filing the petition is met and that the claim was raised within sixty

days of the date on which it became available. 42 Pa.C.S. § 9545(b).

        Appellant alleged that his petition satisfied the newly-discovered facts

exception found at 42 Pa.C.S. § 9545(b)(1)(ii). He contended that he filed

____________________________________________


1   Appellant has not filed a pro se response.



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the petition within sixty days of discovering through media sources and a

letter from the Buck’s County Public Defender’s Office that some of the

evidence offered against him at trial was unreliable.             Amended PCRA

Petition, 9/8/17, at 4.

       As noted above, at Appellant’s trial the Commonwealth offered expert

testimony that the hair found at the crime scene was consistent with

Appellant’s hair.   In April 2015, the FBI admitted in a press release that

analysts offering testimony about microscopic hair comparison “committed

widespread, systematic error, grossly exaggerating the significance of their

data   under    oath   with   the   consequence   of   unfairly   bolstering   the

prosecution’s case,” in at least 90% of cases. Commonwealth v. Chmiel,

173 A.3d 617, 621 (Pa. 2017).          Accordingly, Appellant asked that his

judgment of sentence be vacated and his convictions overturned. Amended

PCRA Petition, 9/8/17, at 4.

       The Commonwealth filed a response to the amended petition,

contending that Appellant failed to satisfy the newly-discovered facts

exception.     The Commonwealth argued that the correspondence from the

Department of Justice did not contain facts, let alone new ones.          Second

Motion to Dismiss, 9/13/17, at ¶ 18. The PCRA court agreed, largely based

upon our Supreme Court’s decision in Commonwealth v. Edmiston, 65

A.3d 339 (Pa. 2013).




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     In   Edmiston,    the   petitioner   attempted    to   satisfy   the   newly-

discovered-facts exception by relying upon a report from the National

Academy of Science (“NAS”) indicating that there was no scientific support

for finding a match by microscopic hair comparison analysis that is not also

accompanied by mitochondrial DNA analysis.            Id. at 351.      The Court

rejected the argument, holding that the facts referenced in the NAS report

existed in the public domain for many years (e.g., studies published between

1974 and 2007) and could have been discovered by the petitioner earlier

through the exercise of due diligence. Id. at 352-53.

     Analogizing the situation to that in Edmiston, the PCRA court

concluded that the publications relied upon by Appellant were merely new

sources for previously-knowable facts.     PCRA Court Opinion, 2/6/18, at 6.

In doing so, the PCRA court overlooked our Supreme Court’s decision in

Chmiel, issued shortly before the PCRA court dismissed Appellant’s petition.

     In Chmiel, the petitioner similarly filed a petition following the 2015

FBI press release and Washington Post article about it. Chmiel, supra at

621. Also similar to the instant case, the PCRA court dismissed the petition

as untimely, finding based upon Edmiston that filing within sixty days of the

publications did not satisfy the newly-discovered facts exception. Chmiel,

supra at 623. Our Supreme Court disagreed, explaining as follows.

          There are two newly[-]discovered facts upon which
     Chmiel’s underlying claim is predicated, both of which were
     made public for the first time in the Washington Post article and
     the FBI press release. First, the FBI publicly admitted that the

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       testimony and statements provided by its analysts about
       microscopic hair comparison analysis were erroneous in the vast
       majority of cases. The FBI’s revelation reverberated throughout
       the country, marking a “watershed in one of the country’s
       largest forensic scandals,” precisely because it constituted a
       public admission by the government agency that had
       propounded the widespread use of such scientifically[-]flawed
       testimony.      The revelation was the first time the FBI
       acknowledged that its microscopic hair analysts committed
       widespread, systemic error by grossly exaggerating the
       significance of their data in criminal trials. The Washington Post
       article acknowledged the novelty of the FBI’s disclosures: “While
       unnamed federal officials previously acknowledged widespread
       problems, the FBI until now has withheld comment because
       findings might not be representative.” Second, the FBI press
       release included the revelation that the FBI had trained many
       state and local analysts to provide the same scientifically[-]
       flawed opinions in state criminal trials.

Id. at 625 (citations omitted).         Accordingly, the Court held that Chmiel’s

petition, filed within sixty days of the publication of the press release,

satisfied the newly-discovered facts exception. Id. at 628.

       Appellant, unlike Chmiel, did not file his petition within sixty days of

the FBI press release or Washington Post article. Rather, it was filed almost

three months after the publication of the press release, but within sixty days

of a letter sent to Appellant forwarding correspondence from the Department

of Justice to the Bucks County District Attorney concerning the testimony of

the FBI hair analyst in Appellant’s case.2


____________________________________________


2 The letter indicates that, upon review of the testimony given in Appellant’s
case, there was a disagreement between the FBI on the one hand, and the
Innocence Project and National Association of Criminal Defense Lawyers on
(Footnote Continued Next Page)


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      The PCRA court, applying Edmiston rather than Chmiel, did not make

a factual determination regarding when Appellant learned of the new facts

on which his claim is based, and whether he acted with due diligence in

discovering them.3 Hence, we cannot determine from the record before us

whether the petition was timely filed under Chmiel. Therefore, we vacate

the order dismissing Appellant’s petition as untimely, and remand for the

PCRA court to make a timeliness determination in light of Chmiel.4

(Footnote Continued) _______________________

the other, as to whether there were inappropriate statements made at
Appellant’s trial concerning hair analysis.

3 See Commonwealth v. Burton, 158 A.3d 618, 638 (Pa. 2017) (“[T]he
presumption that information which is of public record cannot be deemed
‘unknown’ for purposes of subsection 9545(b)(1)(ii) does not apply to pro se
prisoner petitioners. . . . After the PCRA court makes a determination as to
the petitioner’s knowledge, it should then proceed to consider whether, if the
facts were unknown to the petitioner, the facts could have been ascertained
by the exercise of due diligence, including an assessment of the petitioner’s
access to public records.”) (internal quotation marks omitted).

4 Should the PCRA court determine that Appellant’s petition satisfies the
newly-discovered-facts exception under Chmiel and Burton, the court must
then examine the merits of the underlying after-discovered-evidence claim
to determine whether a new trial is warranted. To establish entitlement to a
new trial based upon after-discovered evidence, the criminal defendant must
show that the additional evidence

      (1) could not have been obtained prior to the conclusion of the
      trial by the exercise of reasonable diligence; (2) is not merely
      corroborative or cumulative; (3) will not be used solely to
      impeach the credibility of a witness; and (4) would likely result
      in a different verdict if a new trial were granted.

Commonwealth v. Padillas, 997 A.2d 356, 363 (Pa.Super. 2010) (citation
omitted).



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     For the above-stated reasons, we deny counsel’s application to

withdraw, vacate the PCRA court’s order dismissing Appellant’s petition, and

remand for further proceedings consistent with this memorandum.

     Application to withdraw as counsel denied.          Order vacated.   Case

remanded with instructions. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/18




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