J-S23030-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 TONEY DEBERRY                         :
                                       :
                   Appellant           :   No. 160 EDA 2020

         Appeal from the PCRA Order Entered December 20, 2019
    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

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 TONEY DEBERRY                         :
                                       :
                   Appellant           :   No. 161 EDA 2020

         Appeal from the PCRA Order Entered December 20, 2019
    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

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 TONEY DEBERRY                         :
                                       :
                   Appellant           :   No. 162 EDA 2020

         Appeal from the PCRA Order Entered December 20, 2019
    In the Court of Common Pleas of Bucks County Criminal Division at
J-S23030-20



                      No(s): CP-09-CR-0005529-1987,
              CP-09-CR-0005530-1987, CP-09-CR-0005531-1987


BEFORE: NICHOLS, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McCAFFERY, J.:                         FILED AUGUST 12, 2020

        In these consolidated cases,1 Toney DeBerry (Appellant) appeals from

the order entered in the Bucks County Court of Common Pleas denying his

serial petition filed pursuant to the Post Conviction Relief Act2 (PCRA), seeking

collateral relief from his jury convictions of, inter alia, rape, burglary and

escape3 in three separate cases. On appeal, Appellant asserts the PCRA court

erred in dismissing his request for a new trial based on an admission by the

Department of Justice (DOJ) and Federal Bureau of Investigation (FBI) that

some FBI examiners before 2000 may have overstated their conclusions

regarding microscopic hair comparison testimony. We affirm.

        The facts underlying Appellant’s arrest and conviction were summarized

by this Court in a prior appeal as follows:

              In the early morning hours of August 8, 1987, [A]ppellant
        . . . 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 the shelter,

____________________________________________


1 This Court granted Appellant’s application to consolidate these appeals on
February 3, 2020. Order, 2/3/20.

2   42 Pa.C.S. §§ 9541-9546.

3   18 Pa.C.S. §§ 3121, 3502, 5121(a).

                                           -2-
J-S23030-20


     Pamela Weaver and Alfrea Styles were sleeping in separate first
     floor bedrooms with their children.

           Appellant first entered the room of Pamela 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 Alfrea 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 again
     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. Pamela Weaver positively identified
     appellant as the attacker. Alfrea 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.

Commonwealth v. DeBerry, 207 PHL 1993 (unpub. memo. at 1-3) (Pa.

Super. 1993).


                                    -3-
J-S23030-20



       Appellant was arrested and charged in three separate cases. At Docket

No. CP-09-CR-5529-1987 (5529), Appellant was charged with escape for his

failure to return the Bucks County Rehabilitation Center after work release.

At Dockets CP-09-CR-5530-1987 (5530) and CP-09-CR-5531-1987 (5531),

Appellant was charged with the sexual assault of Weaver (5530) and Styles

(5531), respectively. The cases were consolidated and tried together before

a jury commencing on February 1, 1988.

       The PCRA court summarized some of the additional evidence presented

at trial:

       [A]n official from the Bucks County Men’s Correctional Center
       testified that Appellant failed to return from a job within the
       appointed time and was wanted for escape. The time he was
       missing included the time the rapes occurred at the shelter.

              Another corrections officer testified that after his capture,
       Appellant, while in a cell, was “hollering” to no one in particular
       that “you white dick, your white women love it.” Three days
       before the rape, a fellow inmate on work release with Appellant
       testified that, as they passed the shelter on the way to work at
       the Doylestown Inn, Appellant said, “Yes, there is some nice
       women. One day I might have me some of those . . . I have to
       stop in there one day and have me one of those.” Additionally,
       the Commonwealth offered expert testimony from an FBI agent
       that [a pubic hair] found at the [Weaver] crime scene was
       consistent with Appellant’s hair.

PCRA Ct. Op., 1/9/20, at 2 (unpaginated) (record citations omitted).          On

February 3rd, the jury returned a verdict of guilty on the following charges:

(1) at Docket No. 5529, escape; (2) at Docket No. 5530, burglary, rape,




                                      -4-
J-S23030-20



involuntary deviate sexual intercourse (IDSI),4 terroristic threats,5 simple

assault,6 and possession of an instrument of crime (PIC);7 and (3) at Docket

No. 5531, burglary, rape, IDSI, kidnapping,8 unlawful restraint,9 terroristic

threats, simple assault, and PIC. On April 28, 1988, the trial court sentenced

Appellant to an aggregate term of 33½ to 67 years’ imprisonment.

        This Court affirmed the judgment of sentence on direct appeal, and the

Pennsylvania Supreme Court denied Appellant’s petition for allocatur review.

Commonwealth v. DeBerry, 1638 PHL 1988 (unpub. memo.) (Pa. Super.

Jan. 10, 1989), appeal denied, 156 E.D. 1989 (Pa. Oct. 13, 1989). Appellant

filed his first PCRA petition, pro se, on June 18, 1992. The PCRA court denied

relief, and this Court affirmed on appeal. DeBerry, 207 PHL 1993. Appellant

filed several additional petitions for collateral relief in the ensuing years, none

of which resulted in relief.

        On November 26, 2002, Appellant filed a pro se motion seeking DNA

testing, of, inter alia, the pubic hair recovered from Weaver’s bed. See 42
____________________________________________


4   18 Pa.C.S. § 3123.

5   18 Pa.C.S. § 2706.

6   18 Pa.C.S. § 2701(a)(3).

7   18 Pa.C.S. § 907.

8   18 Pa.C.S. § 2901.

9   18 Pa.C.S. § 2902.




                                           -5-
J-S23030-20



Pa.C.S. § 9543.1.10 Counsel was appointed, and on January 23, 2006, the

PCRA court ordered DNA testing be conducted. See Docket Entry, 1/23/06.11

The PCRA court reviewed the DNA reports in camera, and, on October 19,

2006, entered the following order:

             AND NOW, this 19th day of October, 2006, having reviewed
       the DNA testing results, it is hereby ORDERED that [Appellant’s]
       Post Conviction Relief Petition filed November 11, 2002 is
       dismissed, as the Post-Conviction DNA testing results did not
       produce exculpatory results that would establish [Appellant’s]
       actual innocence of the offense for which he was convicted.

Order, 10/19/06 (emphasis added). See also N.T., PCRA H’rg, 12/14/17, at

6. At that time, the DNA report was not made part of the certified record.

       On July 17, 2015, Appellant filed the present PCRA petition, pro se,

asserting he was in possession of after-discovered evidence.12 Three days

later, on July 20th, Appellant’s former counsel, the Bucks County Public

____________________________________________


10  “An individual convicted of a criminal offense in a court of this
Commonwealth and serving a term of imprisonment . . . may apply by making
a written motion to the sentencing court for the performance of forensic DNA
testing on specific evidence that is related to the investigation or prosecution
that resulted in the judgment of conviction.” 42 Pa.C.S. § 9543.1(a),
subsequently amended by Act 2018-147 (S.B. 916), § 1, approved October
24, 2018, eff. December 24, 2018.

11 We note the January 23, 2006, order granting DNA testing is not included
in the certified record.

12  See 42 Pa.C.S. § 9542(a)(2)(vi) (petitioner may be entitled to post-
conviction collateral relief if they plead and prove their conviction resulted
from “[t]he unavailability at the time of trial of exculpatory evidence that has
subsequently become available and would have changed the outcome of the
trial if it had been introduced.”).



                                           -6-
J-S23030-20



Defender’s Office, also filed a PCRA petition on Appellant’s behalf, invoking

the newly-discovered facts exception to the PCRA’s time restrictions.13 See

Appellant’s Post-Conviction Relief Act Petition (Counseled PCRA Petition),

7/20/15, at 4 (unpaginated), citing 42 Pa.C.S. § 9545(b)(1)(ii). Both petitions

were based upon a letter former counsel received from the DOJ, dated May

28, 2015. The letter informed counsel that the DOJ “recently undertook a

review of certain evidence that was presented in [Appellant’s] case.”     DOJ

Letter to Counsel, 5/28/15.14 Attached to the May 28th letter, was a letter

dated May 21, 2015, which the DOJ sent to the Bucks County District

Attorney’s office, which prosecuted Appellant. The May 21st letter stated, in

relevant part:

            DOJ has been engaged in a review of microscopic hair
       comparison reports and testimony presented by the FBI
       Laboratory before December 31, 1999, after which mitochondrial
       DNA testing[15] became routine. [I]n some cases, FBI Laboratory
____________________________________________


13It appears counsel filed this petition unaware Appellant had filed a pro se
petition a few days earlier.

14 The DOJ’s letter to Appellant’s former counsel, dated May 28, 2015, was
attached to Appellant’s pro se PCRA petition, filed on July 17, 2015. The May
28th letter referred to a May 21, 2015, letter — which the DOJ sent to the
Bucks County District Attorney’s Office — that detailed the DOJ’s findings. The
May 21st letter was also attached to Appellant’s July 2015 pro se petition.

15In Commonwealth v. Chmiel, 889 A.2d 501 (Pa. 2005) (direct appeal),
the Pennsylvania Supreme Court explained:

       Humans have both nuclear DNA and mitochondrial DNA.
       Mitochondrial DNA is found outside of the cell nucleus, in the
       mitochondria, and is inherited only from one’s mother



                                           -7-
J-S23030-20


       examiners exceeded the limits of science by overstating the
       conclusions that may appropriately be drawn from a positive
       association between evidentiary hair and a known hair sample.
       . . .

DOJ Letter to Commonwealth, 5/21/15, at 1. However, the letter stated that

the DOJ “found no error either in the FBI Laboratory report or in any examiner

testimony” in Appellant’s case. Id. Nevertheless, the letter also stated that

“the Innocence Project and the National Association of [Criminal] Defense

Attorneys (“IP/NACDL”) believe that an erroneous report or testimony was

used in [Appellant’s] case.” Id. Counsel’s petition averred that the improper

hair analysis testimony tainted Appellant’s conviction, and the petition was

timely filed within 60 days of the date Appellant received the DOJ letter.

Counseled PCRA Petition at 3-4.

       On November 13, 2015, the Commonwealth filed a motion to dismiss

the petition as time-barred.         Specifically, the Commonwealth averred the

newly-discovered fact Appellant relied upon was the opinion of the IP/NACDL

that the examiner who testified at Appellant’s trial exceeded the limits of

appropriate testimony.       Commonwealth’s Motion to Dismiss Serial Petition,

11/13/15, at 5-6 (unpaginated). Moreover, the Commonwealth emphasized

that the hair sample at issue had already been tested for mitochondrial DNA

and the results established that Appellant could not be excluded as the
____________________________________________


       (distinguishable from DNA forming the nucleus of each cell, which
       is inherited from both parents).

Id. at 513 n.9 (record citations omitted).



                                           -8-
J-S23030-20



source of the hair.      Id. at 6.     The Commonwealth also argued:   (1) the

evidence presented at trial apart from the hair analysis was “substantial;” (2)

Appellant previously challenged counsel’s ineffectiveness for failing to

adequately investigate the FBI hair analysis testimony; and (3) the

Washington Post published an article in April of 2015, stating that the FBI

admitted its hair analysis testimony was flawed, which was more than 60 days

before Appellant filed his pro se petition. Id. at 7-8.

       New counsel, Stuart Wilder, Esquire, was appointed,16 and filed an

amended petition on September 15, 2017.           Attorney Wilder asserted the

petition was timely based upon the newly-discovered facts exception and

Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017). See id. at 638 (“[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.”). However, his only request for relief was to order

the Commonwealth to submit the results of the DNA test to “the Combined

DNA Index System (CODIS) to determine if anyone else in the system has

DNA that matches his, proving [Appellant’s] long stated claim of innocence.”

Appellant’s Motion to Amend PCRA Petition, 9/15/17, at 4.




____________________________________________


16 The Office of the Public Defender requested the appointment of private
counsel because Appellant had previously alleged his public defender was
ineffective. See Appellant’s Petition for Appointment of Private Counsel,
7/20/15, at 1.


                                           -9-
J-S23030-20



      The PCRA court conducted an evidentiary hearing on December 14,

2017, at which time the 2006 mitochondrial DNA test results were made part

of the record.    See N.T., 12/14/17, at 6-7.       The report concluded that

mitochondrial DNA “sequences obtained from [the pubic hair and from

Appellant] are the same. Therefore, [Appellant] (or another member of the

same maternal lineage) cannot be excluded as the source of [the pubic hair].”

Id., Exhibit C-1, Mitochondrial DNA Report, 8/11/05, at 1 (unpaginated). At

the hearing, Attorney Wilder stated that while he believed the petition was

timely filed, he “couldn’t find anything else that could be done that wasn’t

done” by prior counsel who represented Appellant during the DNA testing

period. N.T., 12/14/17, at 12. Moreover, the Commonwealth pointed out that

the remedy offered in the DOJ letter is mitochondrial DNA testing, which had

already occurred in Appellant’s case. Id. at 16. On December 20, 2017, the

PCRA court entered an order dismissing Appellant’s petition. Appellant filed a

timely appeal. In its opinion, the court clarified that it dismissed the petition

because it was untimely filed. See PCRA Ct. Op., 2/6/18, at 6 (concluding

Appellant relied on a “new source of previously knowable facts and not a

newly-discovered fact” since Appellant had challenged the “integrity of the

field of microscopic hair comparison analysis” at trial).




                                     - 10 -
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       On appeal, Attorney Wilder filed a Turner/Finley17 “no merit” letter and

petition to withdraw. However, a panel of this Court denied counsel’s petition

to withdraw, vacated the order dismissing Appellant’s petition, and remanded

for further proceedings, directing the PCRA court to “make a timeliness

determination in light of” Commonwealth v. Chmiel, 173 A.3d 617 (Pa.

2017) (PCRA appeal).18 Commonwealth v. DeBerry, 86 EDA 2018 (unpub.

memo. at 9-10) (Pa. Super. 2018).

       Upon remand, on January 24, 2019, the PCRA court entered an order

directing both Appellant and the Commonwealth to submit memoranda of law

“addressing the issues of jurisdiction and merit in regards to [Appellant’s]

PCRA.” Order, 1/24/19. Attorney Wilder again filed an application for leave

to withdraw and a Turner/Finley “no merit” letter. In the “no merit” letter,

counsel argued the petition was timely filed within 60 days of the date the

DOJ informed Appellant of the FBI’s possible flawed analysis.          Attorney
____________________________________________


17 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

18 In Chmiel, the Pennsylvania Supreme Court determined the petitioner
established the 42 Pa.C.S. § 9545(b)(1)(ii) newly-discovered facts exception
when he filed a petition within 60 days of the publication of the same
Washington Post article the Commonwealth referenced herein. The article
reported that the FBI, for the first time, “publicly admitted that the testimony
and statements provided by its analysts about microscopic hair comparison
analysis were erroneous in the vast majority of cases.” Chmiel, 173 A.3d at
625. The Chmiel Court held that the FBI’s acknowledgment of the flawed
science involved in hair analysis constituted a “newly-discovered fact”
sufficient to invoke the PCRA’s time for filing exception. Id. at 626-27.




                                          - 11 -
J-S23030-20



Wilder’s “No Merit” Letter, 1/31/19, at 5 (unpaginated). However, counsel

acknowledged he could not demonstrate Appellant was entitled to relief since

DNA testing of the hair sample revealed inculpatory results, and the sample

was consumed during the testing.19                 Id.   On February 13th, the

Commonwealth filed a memorandum in opposition to PCRA relief.

       Thereafter, on April 30, 2019, Attorney Wilder withdrew his application

to withdraw, and filed a motion seeking both leave to amend the PCRA petition

and a hearing.         Specifically, counsel argued this Court’s decision in

Commonwealth v. Payne, 210 A.3d 299 (Pa. Super. 2019) (en banc),

appeal denied, 218 A.3d 1201 (Pa. 2019), represented a “change in the law”

with respect to a petitioner’s burden of proof in an after-discovered evidence

challenge. Appellant’s Motion for Hearing, 4/30/19, at 2 (unpaginated). He

asserted the Payne Court held a petitioner must establish only by a

preponderance of the evidence that the after-discovered evidence would have

changed the outcome of the trial — not, as previously held, that the new

evidence if presented would have “resulted in an acquittal.” Id. Thereafter,

the Commonwealth filed a supplemental motion to dismiss the petition

asserting, inter alia, that Appellant’s reliance on Payne was “wholly

____________________________________________


19 Counsel averred that he had “consulted with a private DNA specialist who
performs work for defense counsel[, and s]he informed [him] that after
looking at the testimony from the original trial, and the results of the testing
reported in 2006 and 2009, that she would not be able to adduce any evidence
that would indicate that [Appellant] was not a person likely to possess the
DNA on the hair sample attributable to him.” Attorney Wilder’s “No Merit”
Letter at 5.

                                          - 12 -
J-S23030-20



unfounded.” Commonwealth’s Supplemental Motion to Dismiss, 7/16/19, at

7 (unpaginated).

       On September 9, 2019, the PCRA court issued notice of its intent to

dismiss Appellant’s petition as both untimely filed and meritless. Appellant

filed a responsive brief on September 30th. Nevertheless, on December 20,

2019, the PCRA court entered an order denying relief. Specifically, the court

found Appellant’s petition “was timely,” but denied relief “for lack of merit.”

Order, 12/20/19. These timely appeals followed.20

       On    January    13,    2020,    Appellant    filed   an    application   seeking

consolidation of the three appeals.            The following day, this Court issued

Appellant, at each docket, a per curiam rule to show cause why the appeals

should not be quashed as violative of the Supreme Court’s ruling in

Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018) (holding that

“when a single order resolves issues arising on more than one lower court

docket, separate notices of appeal must be filed”).               Appellant filed timely

responses to the show cause orders, and on January 28, 2020, the Court

entered an order at each docket referring the matter to the merits panel.

Subsequently, on February 3, 2020, this Court granted the application for




____________________________________________


20 On December 23, 2019, the PCRA court entered an order at each docket,
directing Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied with the orders,
and filed a Rule 1925(b) statement at each docket. The PCRA court filed a
joint opinion on January 9, 2020.

                                          - 13 -
J-S23030-20



consolidation “without prejudice for the merits panel to quash any or all of

[the] appeals upon review.” Order, 2/3/20.

      Appellant raises the following two issues on appeal, which we have

reordered for ease of disposition:

      1. Do separate notices of appeal in three related cases that
      visibly, patently and obviously only refer to a single docket
      number satisfy the requirement that separate notices of appeal
      referencing only a single docket number be filed in an appeal?

      2. Is the admission by an agency that its expert’s testimony, more
      than twenty years earlier on behalf of the Commonwealth, was
      scientifically invalid of sufficient weight to require the award of a
      new trial?

Appellant’s Brief at 3.

      First, Appellant contends that we should not quash this appeal pursuant

to Walker. We agree.

      In Walker, “the Commonwealth filed a single notice of appeal from an

order that disposed of four motions to suppress evidence filed by four criminal

defendants . . . at four different docket numbers.” Walker, 185 A.3d at 971.

The Pennsylvania Supreme Court held that the common practice of filing a

single notice of appeal from an order disposing of cases at more than one

docket violated the Pennsylvania Rules of Appellate Procedure. Id. at 976.

See also Pa.R.A.P. 341(a), note (“Where . . . one or more orders resolves

issues arising on more than one docket or relating to more than one judgment,

separate notices of appeal must be filed.”).     Thus, the Court announced a




                                     - 14 -
J-S23030-20



prospective ruling21 that now requires appellants to file separate notices of

appeal “when a single order resolves issues arising on more than one lower

court docket[.]” Walker, 185 A.3d at 977. The Court further held: “The

failure to do so will result in quashal of the appeal.” Id.

        Subsequently, in Commonwealth v. Creese, 216 A.3d 1142 (Pa.

Super. 2019), a panel of this Court applied the Walker holding narrowly. In

that case, the defendant filed one notice of appeal from an order dismissing

his post-conviction collateral petition dealing with four, related lower court

dockets. Id. at 1143. The defendant listed all four docket numbers on the

notice of appeal, which was then, presumably, photocopied by the clerk of

courts so that one identical copy of the notice was placed in each of the

certified records. Id. at 1143, 1144 n.1. This Court quashed the appeal,

finding it violated the ruling in Walker.22 Id. at 1144. The Creese panel

opined:23

              We read our Supreme Court’s decision in Walker as
        instructing that we may not accept a notice of appeal listing
        multiple docket numbers, even if those notices are included in
        the records of each case. Instead, a notice of appeal may
        contain only one docket number.


____________________________________________


21   The Walker decision was filed on June 1, 2018.

22 We note the notice of appeal in Creese was filed on December 20, 2018;
thus, it was subject to Walker’s prospective ruling. See Creese, 216 A.3d
at 1143.

23   We note the ruling was divided, with one judge filing a dissenting opinion.


                                          - 15 -
J-S23030-20



Id. (emphases added).             The Creese Court did not apply its ruling

prospectively, so that were we to apply the holding herein, we would have no

choice but to quash Appellant’s appeal.

       Recently, however, an en banc panel of this Court overruled the

language in Creese mandating that a notice of appeal may contain only one

docket number. In Commonwealth v. J. Johnson, ___ A.3d ___, 1620 WDA

2018 (Pa. Super. 2020) (en banc),24 the defendant, who was appealing his

judgment of sentence entered at four separate dockets, filed four notices of

appeal pursuant to Walker. Id. at 3. Each notice of appeal listed all four

docket numbers; however, the defendant italicized one docket number on

each notice “to identify which notice corresponded with each appealed case.”

Id. The en banc panel overruled the pronouncement in Creese that “a notice

of appeal may contain only one docket number.” J. Johnson, 1620 EDA 2018

at 12 (citation and emphasis omitted). The panel opined:

              Importantly, we observe that Rule 341 and Walker make
       no mention of case numbers on a notice of appeal. To be sure,
       the error in Walker was the filing of a single notice of appeal
       affecting multiple cases and several defendants. The bright-line
       rule set forth in Walker only required an appellant to file a
       “separate” notice of appeal for each lower court docket the
       appellant was challenging.

               Here, it is indisputable that [the defendant] filed a separate
       notice of appeal for each of the four dockets below, because he
       italicized only one case number on each notice of appeal. Unlike
       Creese, the clerk of courts played no role in typing four separate
____________________________________________


24The appeals at J. Johnson were also docketed in this Court at Nos. 2045
EDA 2018, 2046 EDA 2018, and 2047 EDA 2018.


                                          - 16 -
J-S23030-20


     notices of appeal and italicizing the individual docket numbers on
     [the defendant’s] behalf. Based on our review of Walker and Rule
     341, [the defendant] filed separate notices that perfected four
     appeals from each of the four common pleas court dockets. The
     fact that the notices contained all four lower court numbers is of
     no consequence. Indeed, the Rules of Appellate Procedure are to
     be liberally construed to effectuate justice. Pa.R.A.P. 105(a); see
     also 1 Pa.C.S.A. § 1928(c). We should not invalidate an otherwise
     timely appeal based on the inclusion of multiple docket numbers,
     a practice that the Rules themselves do not expressly forbid.

           By stating that each notice of appeal may contain only one
     number, Creese imposed upon appellants an additional
     requirement found in neither Walker nor Rule 341. Although our
     Supreme Court may adopt such a rule in the future, it did not do
     so in Walker. As such, in so far as Creese stated “a notice of
     appeal may contain only one docket number,” 216 A.3d at 1144
     (emphasis added), that pronouncement is overruled.

Id. at 11-12 (footnotes omitted).

     We conclude the holding in J. Johnson is controlling under the facts of

the present case.    Here, the record reveals Appellant filed three separate

notices of appeal. Although each notice listed all three docket numbers, two

docket numbers were crossed out. Thus, each notice featured one (different)

docket number that was not crossed out, signifying the appeal was from that

docket number.      See Appellant’s Notices of Appeal, 12/20/19.   Moreover,

although all three notices were time-stamped at 3:51, the location of the

stamps on the documents revealed they were not simply duplicates, copied

by the clerk of courts. See id. Accordingly, because we conclude Appellant

properly complied with the requirements of Walker, we decline to quash this

appeal.




                                    - 17 -
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         In his second issue, Appellant contends he is entitled to PCRA relief

based upon after-discovered evidence, namely “the 2015 admission by the

FBI that its hair analysis technique was unreliable.” Appellant’s Brief at 16.

Further, he insists “the Commonwealth’s reliance on the junk science

fundamentally altered the [jury’s] decision on guilt or innocence” regardless

of whether he would have been convicted without the evidence. Id. at 19.

Thus, Appellant argues he is entitled to a hearing on his claim. Id. at 22.

         Our standard of review of an order denying PCRA relief is well-

established.     “[W]e examine whether the PCRA court’s determination ‘is

supported by the record and free of legal error.’”                  Commonwealth v.

Mitchell,     141    A.3d    1277,    1283–84       (Pa.    2016)    (citation     omitted).

Furthermore, “[t]he PCRA court’s findings will not be disturbed unless there is

no support for the findings in the certified record.” Commonwealth v. Cruz,

223 A.3d 274, 277 (Pa. Super. 2019) (citation omitted).

         The statutory requirement that a PCRA petition be filed within one year

of the date the judgment of sentence becomes final is both “mandatory and

jurisdictional in nature[,]” and a PCRA court may not ignore the untimeliness

of   a    petition   to   address    the   merits   of     the   issues   raised    therein.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013). See also 42

Pa.C.S. § 9545(b)(1). Here, Appellant’s judgment of sentence was final on

December 12, 1989, 60 days after the Pennsylvania Supreme Court denied

Appellant’s petition for allocatur review, and Appellant did not file a petition

for certiorari in the United States Supreme Court. See U.S. Sup. Ct. Rule 20.1

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(eff. June 30, 1980, repealed Jan. 1 1990). Thus, the present petition, filed

more than 25 years later, is facially untimely.25              See 42 Pa.C.S. §

9545(b)(1).

       Nevertheless, an untimely petition may be considered if one of the three

timeliness exceptions applies.        42 Pa.C.S. § 9545(b)(1)(i)-(iii).   A petition

invoking one of the exceptions must be filed “within 60 days of the date the

claim could have been presented.”              42 Pa.C.S. § 9545(b)(2). 26    Here,

Appellant invoked the “newly-discovered facts” exception set forth in Section

9545(b)(1)(ii).

       Under this subsection, a petitioner must plead and prove “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[.]”           42 Pa.C.S. §

9545(b)(1)(ii).     “[T]he focus of this exception ‘is on the newly discovered

facts, not on a newly discovered or newly willing source for previously known

____________________________________________


25 We note that when the Section 9545 timing requirements were enacted in
1995, the statute provided a grace period for those petitioners whose
judgments of sentence were final before the effective date of the Act,
permitting them to file a first PCRA within one year of the act’s effective date,
or no later than January 16, 1997. Commonwealth v. Williams, 828 A.2d
981, 987 n.9 (Pa. 2003), citing Section 3(1) of the Act of Nov. 17, 1995 (Spec.
Sess. No. 1) P.L. 1118, No. 32, found as a note to 42 Pa.C.S. §§ 9542, 9543,
9544, 9545, and 9546. Because the present petition is not Appellant’s first,
and was filed after the January 1997 extended deadline, he cannot benefit
from the grace period.

26 This subsection was amended in 2018 to provide petitioners with one year
to invoke a timeliness exception. However, the amendment applies only to
“claims arising on Dec. 24, 2017 or thereafter.” 42 Pa.C.S. § 9545(b)(2).
Thus, is it not applicable here.

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J-S23030-20



facts.’” Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. 2015) (citation

omitted).   Furthermore, we note Section 9545(b)(1)(ii) is a jurisdictional

threshold, which “does not require any merits analysis of an underlying after-

discovered-evidence claim.” Id. at 177 (emphasis added). “Once jurisdiction

is established, a PCRA petitioner can present a substantive after-discovered-

evidence claim” pursuant to Section 9543(a)(2)(vi).      Id. at 176.   See 42

Pa.C.S.A. § 9543(a)(2)(vi) (providing relief under the PCRA if a petitioner

pleads and proves “[t]he unavailability at the time of trial of exculpatory

evidence that has subsequently become available and would have changed

the outcome of the trial if it had been introduced”).

      In the present case, the PCRA court found Appellant established the

newly-discovered evidence exception to the time-for-filing requirements.

PCRA Ct. Op., 1/9/20, at 3. We agree.

      The DOJ letter forwarded to Appellant in May of 2015 from his former

counsel was the first time Appellant (an incarcerated, unrepresented

defendant) learned that his case had been reviewed by the DOJ to determine

if the expert hair analysis testimony “exceeded the limits of science.” See

DOJ Letter to Commonwealth at 1. Although the DOJ “found no error,” the

letter stated that the IP/NADCL disagreed. Id.

      The Commonwealth insists, however, that the only “newly-discovered

fact” in Appellant’s pro se and original counseled petitions is the DOJ letter.

Commonwealth’s Brief at 19. To the extent present counsel also referred to

the Washington Post article, the Commonwealth maintains that the DOJ letter

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J-S23030-20



did not mention the Washington Post article, and none of Appellant’s

counseled or pro se petitions established when he learned the information in

that article. See Commonwealth’s Brief at 19-21. Furthermore, it emphasizes

that the DOJ’s letter informed Appellant that “both the DOJ and FBI found no

error in the testimony of the FBI examiner at Appellant’s trial.” Id. at 24

(emphasis added).

     However, our review of the record reveals Attorney Wilder asserted, in

the September 2017 amended petition, that Appellant first learned of the

potentially flawed testimony when prior counsel forwarded him the DOJ letter:

     [Appellant] filed his petition within sixty days of learning of
     information published by the Innocence Project and the
     Washington Post on April 18 and April 20, 2015, and from M[a]y
     21, 2015 letter received by the Bucks County Public Defender’s
     Office, concerning the unreliability of evidence presented at his
     trial, which he only learned about when he received the May
     28, 2015 letter from the Public Defenders’ Office.

Appellant’s Amended PCRA Petition, 9/15/17, at 4 (emphasis supplied). See

also Attorney Wilder’s “No Merit” Letter at 5. Although the Washington Post

article and FBI press release — which first reported the FBI’s admission that

its hair analysis was flawed — were in the public domain as early as April of

2015, the PCRA court explained that Appellant was incarcerated and not

represented by counsel at that time.        PCRA Ct. Op., 1/9/20, at 5.    In

Burton, the Pennsylvania Supreme Court held that “the 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.” Burton, 158 A.3d. at 638 (emphasis added). Thus, we conclude

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the record supports the PCRA court’s finding that Appellant was first “made

aware of the faulty FBI hair evidence by way of letter from the [DOJ] to the

Bucks County Public Defender on May 28, 2015 and subsequent forwarding to

him.” PCRA Ct. Op., 1/9/20, at 5.

       Furthermore, although the May 2015 letter stated that the DOJ found

“no error” in the testimony at Appellant’s trial, Appellant was not required to

accept the DOJ’s findings, particularly since the letter itself acknowledged that

the IP/NACDL came to a contrary conclusion.               See DOJ Letter to

Commonwealth at 1 (stating the IP/NACDL “believe that an erroneous report

or testimony regarding microscopic hair comparison analysis was used in this

case”). Thus, Appellant was entitled to rely on the “newly-discovered fact”

that the FBI’s hair comparison was flawed in many cases, and to argue that it

may have been so in his case.27 Accordingly, we agree Appellant’s petition

was timely filed pursuant to 42 Pa.C.S. § 9545(b)(1)(ii).
____________________________________________


27 We do not agree with the Commonwealth’s assertion that this Court’s
decision in Cruz, 223 A.3d 274, compels a different result.                See
Commonwealth’s Brief at 21-23. In that case, like here, the PCRA petitioner
was convicted based upon hair analysis testimony, and in July of 2015, the
petitioner received a letter from the DOJ concerning its investigation of such
testimony. See Cruz, 223 A.3d at 275. However, in Cruz, the DOJ letter
informed the petitioner that the testimony in his case “contained erroneous
statements.” Id. The petitioner filed a PCRA petition in September of 2015
asserting newly-discovered facts. Id. The PCRA court initially dismissed the
petition without a hearing, and this Court affirmed, finding the petition was
not based on a newly-discovered fact, but rather, on “a new source of
previously knowable facts.” Id. at 276. The Supreme Court subsequently
vacated that ruling, and remanded the case to the PCRA court for
reconsideration in light of Chmiel. Id.



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J-S23030-20



       Nevertheless, in order to obtain relief on his after-discovered evidence

claim, Appellant must prove his conviction resulted from “[t]he unavailability

at the time of trial of exculpatory evidence that has subsequently become

available and would have changed the outcome of the trial if it had been

introduced.” See 42 Pa.C.S. § 9543(a)(2)(vi). In Burton, the Pennsylvania

Supreme Court explained:

       [T]o prevail on an after-discovered evidence claim for relief under
       subsection 9543(a)(2)(vi), a petitioner must prove that (1) the
       exculpatory evidence has been discovered after trial and could not
       have been obtained at or prior to trial through reasonable
       diligence; (2) the evidence is not cumulative; (3) it is not being
       used solely to impeach credibility; and (4) it would likely compel
       a different verdict.

____________________________________________


      The PCRA court again dismissed the petition, finding that the 60-day
“time limit for asserting the newly-discovered fact exception started on April
20, 2015, the date of the FBI press release[,]” so that the petition, filed in
September of 2015, was untimely. Cruz, 223 A.3d at 276. On appeal, this
Court disagreed, concluding:

       Here, [the petitioner’s] newly-discovered fact is the DOJ and FBI’s
       specific admission that [the analyst’s] testimony, in particular
       contains erroneous statements, not the DOJ and FBI’s general
       admission that [the petitioner’s] case might be one of the
       thousands of cases that was based on bad science. Thus, the July
       27, 2015 DOJ letter, and not the FBI press release, triggered the
       sixty-day time limit.

Id. at 277. We do not conclude this decision undermines our conclusion
herein. As noted above, Appellant averred he first learned of the potentially
flawed testimony when he received the DOJ letter, and he filed the petition
within 60 days of receipt of that letter. Although his letter stated the DOJ and
FBI found no error in the analyst’s trial testimony, it also stated that the
IP/NACDL disagreed with that conclusion, and put Appellant on notice, for the
first time, that the testimony might be flawed. Thus, Cruz does not compel a
different result.

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J-S23030-20



Burton, 158 A.3d at 629 (citations omitted).

      Here, Appellant argues “[t]he ‘fact’ at issue in this matter is the 2015

admission by the FBI that its hair analysis technique was unreliable, and an

offer of expert testimony to show that the FBI’s 2015 admission was true.”

Appellant’s Brief at 16. Relying on Payne, 210 A.3d 299, Appellant asserts

the focus should be on whether the after-discovered evidence “significantly

refutes an assertion on which the [jury] and the Commonwealth placed

significant weight” and not whether he would have been convicted of first-

degree murder without the now discredited evidence. Appellant’s Brief at 17,

quoting Payne, 210 A.3d at 302. He claims the Payne Court established a

new standard “when evidence debunking Commonwealth scientific evidence

requires a new trial.” Id.

      We conclude Appellant’s reliance on Payne is misplaced. In that case,

the defendant pled guilty to murder generally in 1977. Payne, 210 A.3d at

300. The case proceeded to a degree of guilt hearing before three judges,

who convicted the defendant of first-degree murder, based upon the

Commonwealth’s theory that the defendant murdered the victim while he

raped her. Id. at 300, 302. In 2014, a DNA test “established conclusively

that [the defendant] was excluded as a contributor to [ ] seminal fluid found

on the victim’s body.” Id. at 301. The defendant sought PCRA relief based

upon this after-discovered evidence. Id. However, the PCRA court denied

relief because it concluded the “DNA evidence was not likely to change the




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J-S23030-20



results of the Degree of Guilt Panel” because there was other evidence in the

record to support the first-degree murder conviction. Id. at 301-02.

      In rejecting the PCRA court’s analysis, the en banc panel opined:

      The proper focus is whether the after-discovered evidence
      significantly refutes an assertion on which the Degree of Guilt
      Panel and the Commonwealth placed significant weight. Because
      the Commonwealth argued and the Degree of Guilt Panel accepted
      the theory that [the defendant] murdered the victim while he
      raped her and the DNA evidence refutes the assertion that [the
      defendant] raped the victim, we find that [the defendant] proved
      by a preponderance of the evidence that the DNA evidence would
      likely result in a different verdict.

Id. at 302.

      The     after-discovered   DNA    evidence    that    invalidated   the

Commonwealth’s theory of the case in Payne is distinguishable from the

newly-discovered evidence here.    First, in the present case, there was no

irrefutable finding that the analyst’s testimony was wrong. Unlike the DNA

evidence in Payne, which excluded the defendant as the source of the semen

on the victim, here, the DOJ stated that, upon its review of the testimony in

Appellant’s case, there was no basis for relief. Rather, the IP/NACDL believed

the testimony was improper. Moreover, and significantly, mitochondrial DNA

testing established that Appellant could not be excluded as a contributor of

the hair recovered from the scene.      Thus, Appellant, or someone in his

mother’s lineage, was the source of the hair. See Chmiel, 889 A.2d at 513




                                    - 25 -
J-S23030-20



n.9.      Rather than exculpating Appellant, this evidence was inculpatory.28

Indeed, in its letter to the Commonwealth, the DOJ offered mitochondrial DNA

testing of the relevant hair evidence “[i]n the event . . . that further testing is

appropriate or necessary.” Commonwealth’s DOJ Letter, at 2.

          Appellant insists, however, that Payne “established that the debunking

of junk science presented at a decades old trial entitles one to a new trial —

even if a defendant would have been convicted without the evidence — if the

Commonwealth’s reliance on the junk science fundamentally altered the fact

finder’s     decision   on   guilt   or   innocence.”   Appellant’s   Brief   at   19.

Fundamentally, he asks this Court to look at his trial through a narrow lens —

focusing on the exculpatory new evidence debunking the hair analysis

testimony, but ignoring the inculpatory mitochondrial DNA evidence. This is

not what Payne requires us to do. Accordingly, Appellant is entitled to no

relief.

          Order affirmed.




____________________________________________


28 Appellant states in his brief that this “evidence does not establish that the
hair was [his] and would not now be admissible to do so.” Appellant’s Brief
at 19. While the mitochondrial DNA test did not conclusively establish the hair
was Appellant’s, it did narrow the culprits to a person in Appellant’s mother’s
lineage. That fact, coupled with the other evidence implicating Appellant,
strongly suggests he is the source of the hair. Moreover, Appellant provides
no explanation why the DNA results would not be admissible at a retrial.


                                           - 26 -
J-S23030-20


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/12/2020




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