                            [J-21-2017] [MO: Wecht, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                EASTERN DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                 :   No. 726 CAP
                                              :
                     Appellee                 :   Appeal from the Order dated May 2,
                                              :   2016 in the Court of Common Pleas,
                                              :   Lackawanna County, Criminal Division
              v.                              :   at No. CP-35-CR-0000748-1983
                                              :
                                              :   SUBMITTED: January 30, 2017
DAVID CHMIEL,                                 :
                                              :
                     Appellant                :


                                 CONCURRING OPINION


JUSTICE DONOHUE                                         DECIDED: November 22, 2017

       I join in full the well-reasoned majority opinion of Justice Wecht.         I write

separately to express my concern for the dubious strategy employed by the

Pennsylvania Attorney General’s Office in this matter.       In its April 20, 2015 press

release, the FBI publicly disclosed that examiners in its microscopic hair comparison

unit had routinely provided opinions lacking scientific basis, and that it had trained many

state and local analysts to provide such scientifically flawed opinions. Majority Op. at 2.

Accordingly, Chmiel filed a discovery motion seeking to learn whether the

Commonwealth’s testifying forensic examiner at his trial (George Surma) was a

recipient of such FBI training. In response, in both the PCRA court and again in this

Court, the Pennsylvania Attorney General’s Office vigorously opposed the discovery

request, repeatedly emphasizing Chmiel’s lack of “any direct evidence” that Surma was
(or was not) trained in microscopic hair analysis by the FBI1 and arguing that Chmiel’s

claim of a newly discovered fact is thus “based on sheer conjecture and rank

speculation.” PCRA Court Opinion, 12/30/2015, at 24; Commonwealth’s Brief at 20.

Based upon these arguments, the PCRA court denied the discovery motion.

      Justice Wecht notes that on remand, the PCRA court should reconsider Chmiel’s

discovery request in light of this Court’s timeliness decision. Majority Op. at 18 n.7. In

my view, however, Chmiel should not be forced into the discovery process to obtain this

described information, as whether or not Surma was trained by the FBI is clearly within

the knowledge and control of the prosecutors in the Pennsylvania Attorney General’s

Office litigating the present PCRA petition. If Surma in fact received FBI training, these

prosecutors, knowing that Chmiel had been convicted on the basis of expert testimony

that has been established to be unreliable and not scientifically supportable, should

have immediately and voluntarily provided the information to Chmiel’s defense lawyers.

      In the FBI’s press release that forms the basis for Chmiel’s current PCRA

petition, the United States Department of Justice indicated that in federal cases, it “will

not raise procedural objections, such as statute of limitations and procedural default

claims, in response to defendants’ petitions seeking a new trial because of the faulty




1
  Surma’s trial testimony suggests to the contrary. When asked, “If you went to the FBI,
the crime lab down there, would they be able to do anything different from what you
were doing,” Surma responded, “They would have done basically what I did.” N.T.,
10/16-29/1984, Vol. II at 1381. This testimony provides a basis for concluding that
Surma may have learned the microscopic hair comparison techniques he employed in
this case from FBI training.




                             [J-21-2017] [MO: Wecht, J.] - 2
evidence.”2 The Pennsylvania Attorney General’s Office clearly has not adopted this

approach, and because of the jurisdictional requirements in Pennsylvania’s Post

Conviction Relief Act, 42 Pa.C.S. § 9545(b)(1), I take no umbrage with the Attorney

General’s Office’s decision to litigate the legal issue of the timeliness of Chmiel’s PCRA

petition. I am, however, greatly troubled by its decisions to refuse to disclose factual

information to Chmiel relevant to the PCRA petition; to oppose Chmiel’s attempts to

obtain this information through discovery; and then to use Chmiel’s lack of this

information as a basis for opposing his request for a new trial. In my view, it is neither

fair game nor appropriate for a prosecutor to base an argument on the defendant’s lack

of information about a fact that is in the full knowledge and control of the prosecutor in

an attempt to prevent a new trial after a conviction based on junk science.

      Prosecutors have a unique role in our criminal justice system. This Court has

codified the “Special Responsibilities of a Prosecutor” to provide that “[a] prosecutor has

the responsibility of a minister of justice and not simply that of an advocate.”

Pennsylvania Rules of Professional Conduct 3.8 (comment). We have further observed

that “[a] defendant does not have a right not to be prosecuted; he does, however, have

a right to have his case reviewed by an administrator of justice with his mind on the

public purpose, not by an advocate whose judgment may be blurred by subjective

reasons.”    Commonwealth v. Eskridge, 604 A.2d 700, 701 (Pa. 1992) (citing

Commonwealth v. Dunlap, 335 A.2d 364, 368 (Pa. 1975) (Hoffman, J., dissenting)); see

2
   Appendix C to Initial Brief of Appellant; Press Release, FBI, FBI Testimony on
Microscopic Hair Analysis Contained Errors in at Least 90 Percent of Cases in Ongoing
Review (April 20, 2015), https://www.fbi.gov/news/pressrel/press-releases/fbi-testimony-
on-microscopic-hairanalysis-contained-errors-in-at-least-90-percent-of-cases-in-
ongoing-review.



                             [J-21-2017] [MO: Wecht, J.] - 3
also Commonwealth v. Briggs, 12 A.3d 291, 331 (Pa. 2011). As aptly stated by the

United States Supreme Court,

              [The prosecutor] is the representative not of an ordinary
              party to a controversy, but of a sovereignty whose obligation
              to govern impartially is as compelling as its obligation to
              govern at all; and whose interest, therefore, in a criminal
              prosecution is not that it shall win a case, but that justice
              shall be done.

Berger v. United States, 295 U.S. 78, 88 (1935) (emphasis added); see also Brady v.

Maryland, 373 U.S. 83, 87 (1963) (“Society wins not only when the guilty are convicted

but when criminal trials are fair; our system of the administration of justice suffers when

any accused is treated unfairly.”).

       The prosecutor’s duty to seek justice trumps his or her role as an advocate to win

cases for the Commonwealth.           See Jonathan A. Rapping, Who’s Guarding the

Henhouse? How the American Prosecutor Came to Devour Those He is Sworn to

Protect, WASHBURN L.J. 513, 518 (2012).               As a result, the prosecutors in the

Pennsylvania Attorney General’s Office had an ethical obligation to inform Chmiel’s

defense counsel as to whether or not the Commonwealth’s testifying expert had been

trained by the FBI. The decision not to do so, and to instead use Chmiel’s lack of this

information as a basis for denying him a new trial, was in derogation of the role of the

prosecutor as a minister of justice. The integrity of our criminal justice system depends

on all of the players fulfilling their roles. In my view, in this case, the prosecutor fell well

short of what is required.




                               [J-21-2017] [MO: Wecht, J.] - 4
