J-S34007-18

                               2018 PA Super 279

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 BENNIE D. GRAVES                        :
                                         :
                   Appellant             :   No. 1104 WDA 2017

                 Appeal from the PCRA Order July 10, 2017
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0001310-1979,
                          CP-02-CR-0001311-1979


BEFORE:    BOWES, J., STABILE, J., and STRASSBURGER*, J.

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

     Bennie D. Graves appeals the July 10, 2017 order dismissing his PCRA

petition as untimely. After thorough review, we affirm.

     We provide excerpts of the trial court’s recitation of the facts pertinent

to our review:

     At approximately 11:00 p.m. on February 16, 1979, Yvonne
     Weston, before leaving her home for work, entrusted the care of
     her two children, ten-year[-] old [female] and eleven-year[-] old
     male, to her step-brother, Bennie Graves, the [Appellant], then
     living as a boarder in her house. [Appellant] spent the evening
     drinking beer, smoking marijuana and listening to the radio with
     his step-brother, Daniel Anderson, while the children slept in the
     upstairs bedroom. When Anderson left the house at 4:45 a.m.,
     he had no reason to suspect that the children were not asleep in
     their upstairs bedroom.

     Upon returning home at 7:10 a.m. the next morning, Mrs. Weston
     discovered the bodies of her children lying upon the living room
     floor. It was later determined that each had been strangled to
     death. She found the [Appellant] to be missing from the house.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     While her living and dining room were in disarray, Mrs. Weston
     found nothing missing and detected no signs of a forced entry.

     [The female child] was lying supine, with her legs spread apart,
     clothed only in an undershirt. Her pajamas and her underpants,
     which she had been wearing when she went to bed, were found
     folded upon a nearby table. A later examination revealed the
     presence of pubic hairs upon [her] legs and vaginal area which,
     under microscopic examination, exhibited characteristics
     consistent with a sample of [Appellant’s] hair, but inconsistent
     with samples taken from the two children. [The male child] was
     found fully clothed in pajamas and socks. [Appellant’s] bathrobe,
     which he had been wearing earlier that evening, was discovered
     to be spotted in several places with human blood.             Upon
     examination, it was found to be blood of the type consistent with
     the children’s blood type but inconsistent with that of [Appellant].

           ....

     . . . Appellant, at 9:20 a.m., told the police that after Daniel
     Anderson left the Weston home he fell asleep on the living room
     floor but was awakened sometime later when three black males,
     one of whom was armed, entered and demanded to know of the
     whereabouts of Butch Anderson, Mrs. Weston’s brother. He said
     that the men then brought the children downstairs and slapped
     them in an apparent effort to induce [Appellant] to tell them where
     Butch was. [Appellant] tried to assist the children, he said, was
     punched for his effort and then, after agreeing to take them to
     Butch, he was able to escape from them and run to the home of
     a female friend.

     After being informed of his Miranda rights, [Appellant] expressed
     a willingness to cooperate and to answer questions and gave an
     exculpatory statement. After being informed of his rights, he
     surrendered hair and saliva samples, clipped his fingernails, and
     submitted to having impressions made of his fingernails. . . . While
     in police custody it was noticed that [Appellant] had several fresh
     scratches on his shoulder which [Appellant] explained were
     inflicted by his girlfriend during a sexual encounter. Subsequent
     investigation revealed the presence of dried blood beneath [the
     female child’s] fingernails.




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Trial Court Opinion, 12/23/80, at 4-6 (footnotes and references to trial

transcript omitted).

      Appellant was charged with first-degree murder, third-degree murder,

and voluntary manslaughter in each of two criminal informations. A jury trial

commenced on January 16, 1980. At trial, the Commonwealth offered expert

testimony from Dr. Michael N. Sobel, an orthodontist, Dr. Robert Levine, a

criminalist, Dr. Lowell J. Levine, a forensic dentist, and Dr. Homer R. Campbell,

Jr., a dentist board-certified in forensic odontology, to link Appellant’s

fingernails to the scratches on the male child’s neck.          Jean Chelen, a

criminalist, testified regarding the consistency of the characteristics of pubic

hair found on the female victim and the pubic hair taken from Appellant, the

victims and the victims’ mother.

      Appellant offered expert forensic testimony from James M. Parker, Ph.D.

Dr. Parker had formerly been employed as a criminalist in the Allegheny

County crime laboratory, and taught forensic science at the University of

Pittsburgh. His expertise was in firearms, tool marks, and chemistry. In his

opinion, the comparison of fingernails and fingernail markings was not

generally accepted in forensic science. After examining the wounds at issue

herein, he could not state with a reasonable degree of scientific certainty that

they were caused by fingernails, or specifically, Appellant’s fingernails.

      The jury found Appellant guilty of first-degree murder in the death of

the female child, and third-degree murder of the male child. After additional


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testimony, the jury by separate verdict imposed the death penalty.            On

December 23, 1980, the court vacated the death sentence and, on January

23, 1981, sentenced Appellant to a term of ten to twenty years imprisonment

for third-degree murder, and a consecutive term of life in prison for the first-

degree murder.

      Appellant’s judgment of sentence was affirmed on direct appeal.

Commonwealth v. Graves, 456 A.2d 561 (Pa.Super. 1983).                 He filed a

petition for allowance of appeal, but was granted leave to withdraw it on May

13, 1983. In the meantime, Appellant filed a PCHA petition on April 6, 1983,

counsel was appointed, and the petition was subsequently dismissed.            No

appeal was taken. Appellant filed a second petition for collateral relief in 1994,

and counsel was appointed. Counsel filed a Turner/Finley no-merit letter

and moved to withdraw, which the court granted. Appellant’s PCRA petition

was dismissed on August 8, 1997, and no appeal was filed.

      Appellant’s third PCRA petition, which was filed on March 4, 2008, was

dismissed as untimely.     This Court affirmed that order on July 19, 2009.

Commonwealth v. Graves, 981 A.2d 919 (Pa.Super. 2009) (unpublished

memorandum).        After an unsuccessful habeas petition in federal court,

Appellant filed a fourth PCRA petition on May 4, 2017, which is the subject of

the instant appeal. The Commonwealth filed an answer, the court issued Rule

907 notice of its intent to dismiss the PCRA petition, and dismissed the petition

on July 11, 2017.


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      Appellant timely filed the within appeal and complied with the court’s

order to file a Pa.R.A.P. 1925(b) concise statement of errors. The PCRA court

filed its Rule 1925(a) opinion, and the matter is ripe for our review.

      Appellant presents three questions for our review:

      [1] Did the PCRA court [err and] abuse [its] discretion in
      dismissing [the] petition when evidence presented establish[ed]
      [an] exception to the timeliness requirement?

      [2] Did the PCRA court [err] and abuse [its] discretion in failing to
      address meritorious claims presented to the court for review?

      [3] Was Appellant denied due process of law from the court below
      during proceedings?

Appellant’s brief at iv.

      “Our review of a PCRA court’s decision is limited to examining whether

the PCRA court’s findings of fact are supported by the record, and whether its

conclusions of law are free from legal error.” Commonwealth v. Chmiel,

173 A.3d 617, 624-25 (Pa. 2017) (quoting Commonwealth v. Koehler, 36

A.3d 121, 131 (Pa. 2012)). “Our review of questions of law is de novo.” Id.

at 625. “Our scope of review is limited to the PCRA court's findings and the

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

as the prevailing party.” Id.

      Before we can address the merits of the issues raised, we must

determine whether Appellant has established that his PCRA petition was timely

filed, as the time-bar is jurisdictional. 42 Pa.C.S. § 9545(b). “A PCRA petition,

including a second or subsequent petition, shall be filed within one year of the


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date the underlying judgment becomes final.” Commonwealth v. Brown,

111 A.3d 171, 175 (Pa.Super. 2015). “A judgment of sentence 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. 42 Pa.C.S. § 9545(b)(3).”

Commonwealth v. Hernandez, 79 A.3d 649, 650 (Pa.Super. 2013).

      The petition is patently untimely.    Thus, we have no jurisdiction to

entertain it unless Appellant pled and proved one of the three exceptions to

the PCRA’s one-year time limitation set forth in § 9545:

      (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;

      (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). Moreover, in order to invoke one of these

exceptions, the petition must be filed within sixty days of the date the claim

could first have been presented. Id. at § 9545(b)(2).

      Appellant maintains that his petition is timely filed under the exception

for newly-discovered facts. He avers that he filed the petition within sixty


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days of his receipt of the National Academy of Science (“NAS”) Report of 2009,

which he obtained from the prison librarian on March 4, 2017. The new fact

gleaned from that report, according to Appellant, was that “microscopic [hair]

analysis studies alone are of limited probative value[,]” and a finding of “no

scientific support for the use of hair comparison for individualization in the

absence of nuclear DNA.”1 Appellant’s brief at 3. In essence, he contends

that this fact was unknown to him until then, and could not have been

ascertained by the exercise of due diligence. He also relies upon the Supreme

Court’s recent decision in Commonwealth v. Burton, 158 A.3d 618, 637-38

(Pa. 2016), in which the Court held that “pro se prisoners are not

constructively charged with knowledge of materials in the public domain for

purposes of due diligence.”

       The Commonwealth cites Commonwealth v. Edmiston, 65 A.3d 339,

352 (Pa. 2013), for the proposition that facts unknown to the petitioner for

purposes of the exception cannot be information previously known and a

matter of public record, but merely presented through a newly-discovered

source.    It maintains that Appellant’s alleged newly-discovered fact, the

inability to link hair samples to a particular person through microscopic



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1 Appellant also alleges, and the record supports, that the NAS report
questioned the validity of forensic odontology, i.e., bite mark comparison, for
positive identification. He did not allege, however, that this was a newly-
discovered fact gleaned from the NAS report for purposes of the timeliness
exception.

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analysis, was known in the 1970s.              The NAS report, according to the

Commonwealth, was merely “a compilation and review of decades of studies

in the forensic sciences.” Commonwealth brief at 20. Those studies dated

from 1974 through 2007.            The NAS report was thus a new source for

previously known facts.

       The Commonwealth points out that in Edmiston, our Supreme Court

determined that the 2009 NAS Report was not a newly-discovered fact in 2013

for purposes of the exception to the PCRA time-bar. The PCRA court herein

relied upon that holding in concluding that, “it stands to reason that the same

report is not new evidence in 2017.” PCRA Court Opinion, 10/17/17, at 4.

       The Commonwealth also argues that Appellant admittedly received a

copy of a Washington Post article from a fellow inmate in 2016, which

referenced an April 20, 2015 FBI press release, that contained facts held to

be newly-discovered in Chmiel, supra. He also cited in his PCRA petition the

case of U.S. v. John Flick, 2016 WL 80669 (W.D. Pa. Jan. 7, 2016), in which

a federal district court determined that an expert’s testimony regarding hair

samples “exceeded the limits of science.”2          However, the Commonwealth

points out that Appellant did not disclose when he first learned of the


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2 Following the Department of Justice review, the U.S. Attorney in the Flick
case was notified that the expert’s report in the case contained a number of
errors, rendering the report invalid. After the government agreed that the
sentence should be vacated, the court so ordered and resentenced Mr. Flick
to a shorter term of imprisonment, with credit for time served, pursuant to 28
U.S.C. § 2255, which does not have a time limitation such as the PCRA.

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Washington Post article or the Flick decision, or rely upon those publications

as his newly-discovered fact from which he had sixty days to file a PCRA

petition. Instead, he calculates the sixty-day period in which to file a PCRA

petition asserting a timeliness exception from March 4, 2017, the date when

he received the NAS report from the librarian, and maintains that the petition

is timely under the § 9545(b)(1)(ii) exception. He offers no explanation why

he could not have filed a petition within sixty days of his receipt of a copy of

the Washington Post article or the FBI press release, which he states occurred

in 2016.3

       Although Appellant does not direct us to the Supreme Court’s decision

in Chmiel, supra, the Commonwealth forthrightly addresses it. One month

after the PCRA court issued its opinion in this case, the Supreme Court decided

Chmiel. Chmiel filed a PCRA petition alleging that his conviction and death

sentence rested upon unreliable hair comparison evidence in violation of the

Sixth, Eighth, and Fourteenth Amendments to the United States Constitution

and Article I, Section 9 of the Pennsylvania Constitution. Chmiel asserted that

his PCRA petition challenging evidence of hair analysis was timely under the



____________________________________________


3 In support of his claim that the NAS report included new facts, Appellant
points to the 2012 Washington Post article that he admittedly possessed in
2016, and which reported that the FBI knew that its flawed forensic hair
analysis “may have led to convictions of potentially innocent people.”
Appellant’s brief at 4. Thus, by Appellant’s own admission, he knew in 2016
of the newly-discovered fact recognized in Chmiel, but failed to file the within
petition within sixty days of acquiring that knowledge.

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exception for newly-discovered facts. The alleged new fact was the April 20,

2015 FBI press release, which acknowledged that testimony of its analysts

regarding hair analysis in the past twenty-five years was erroneous in most

cases.    Furthermore, the FBI had trained many state and local forensic

examiners in the flawed language used to express their conclusions regarding

hair analysis.    Chmiel asserted further that the Pennsylvania State Police

expert who testified in his case was trained by the FBI and provided the same

scientifically unsupportable testimony that the FBI press release discredited.4

He filed a PCRA petition within sixty days of the FBI press release.

       The PCRA court in Chmiel relied upon Edmiston in rejecting Chmiel’s

reliance upon the FBI press release as a newly-discovered fact, and dismissed

the petition as untimely. The court equated the FBI press release with the

NAS report as merely referring to facts that had been in the public domain

since 1974, and that could have been discovered earlier with the exercise of

reasonable diligence. Our Supreme Court reversed and remanded for further

proceedings. It recognized that “[t]here were two newly-discovered facts as

a result of the FBI press release and the Washington Post article” upon which

Chmiel’s claim was predicated. Chmiel, supra at 625. “First, the FBI publicly

admitted that the testimony and statements provided by its analysts about

microscopic hair comparison analysis were erroneous in the vast majority of

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4Chmiel also asserted that there were exceptional circumstances to justify
deposing the expert pursuant to Pa.R.Crim.P. 902(E)(1).


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cases.” Id. Our Supreme Court called it a “revelation,” as it “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.”      Id.    The second newly-discovered fact was the

acknowledgement by the FBI in the press release that it “had trained many

state and local analysts to provide the same scientifically flawed opinions in

state criminal trials.” Id. The analyst in Chmiel’s case was trained by the

FBI, and thus, the Court reasoned that the expert’s trial testimony “may have

exceeded the limits of science and overstated to the jury the significance of

the microscopic hair analysis.”5 Id.

       The Commonwealth contends that Chmiel does not invalidate the PCRA

court’s holding herein. We agree. Appellant’s alleged newly-discovered fact

in the instant case was the 2009 NAS report, which the Edmiston Court held

was not a new fact in 2013. Had Appellant asserted the Washington Post

article or the FBI press release as the new fact for purposes of the time-bar in

a PCRA petition filed within sixty days of that publication, this case would be

governed by Chmiel, and we would reverse and remand for further

proceedings. However, despite acquiring knowledge of the 2015 FBI press

release and Washington Post article sometime in 2016, Appellant inexplicably


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5 The Court ruled that, “[t]he FBI's repudiation and disclosure about its role in
training state and local forensic examiners satisfies Section 9545(b)(1)(ii),
and entitles Chmiel to a merits determination of his underlying claim.”
Commonwealth v. Chmiel, 173 A.3d 617, 626 (Pa. 2017).

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failed to file a PCRA petition within sixty days alleging the newly-discovered

facts contained therein as the basis for the timeliness exception. Since the

alleged new fact in the NAS report is not new,6 the instant PCRA petition filed

within sixty days of Appellant’s 2017 receipt of that report is not timely.

       Thus, Edmiston, not Chmiel, controls our decision.7           Appellant’s

petition filed sixty days after his receipt of the NAS report is untimely, and no

relief is due.



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6 The Commonwealth maintains that the NAS report impugned the reliability
of microscopic hair analysis to positively identify a particular hair as being
from a specific individual. It contends that the NAS article did not cast doubt
on the hair analysis conducted in the instant case, nor was it used for purposes
of a positive identification. We concur with that assessment. The report did
not contain the type of concessions from law enforcement that were contained
in the FBI press release and reported in the Washington Post article.
Specifically, the NAS report did not contain the results of the FBI’s review of
its own files and its conclusion that in ninety percent of the cases prior to
2000, microscopy expert testimony was flawed, which was a newly-discovered
fact recognized in Chmiel.

7 Edmiston subsequently obtained relief when he filed a subsequent PCRA
petition in Clearfield County on June 17, 2015, (within sixty days of the April
20, 2015 FBI press release), in which he asserted that his conviction and
sentence were based upon flawed hair analysis and improper expert testimony
from a Pennsylvania State Police criminalist, who had been trained by the FBI.
He asserted therein that the FBI press release contained a newly-discovered
fact that rendered his petition timely under § 9545(b)(i)(ii). The PCRA court
dismissed the petition as untimely on August 12, 2016. A panel of this Court
reversed after applying the Supreme Court decision in Commonwealth v.
Chmiel, 173 A.3d 617 (Pa. 2017), as dispositive. See Commonwealth v.
Edmiston, 2018 WL 419069 (Pa.Super. 2018) (unpublished memorandum).
Edmiston apparently filed a similar PCRA petition in Cambria County, which
was dismissed on July 18, 2016. He appealed that order, and the Supreme
Court reversed on January 18, 2018, based on Chmiel. See Commonwealth
v. Edmiston, 179 A.3d 447 (Pa. 2018) (per curiam order).

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     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2018




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