J-S47031-19

                                2019 PA Super 342

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
 JAMES R. CRUZ, JR.                       :
                                          :
                    Appellant             :          No. 110 MDA 2019

            Appeal from the PCRA Order Entered December 18, 2018
                 in the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0001246-1993

BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.

OPINION BY MUSMANNO, J.:                       FILED NOVEMBER 15, 2019

      James R. Cruz, Jr. (“Cruz”), appeals from the Order dismissing his

second Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).    See 42 Pa.C.S.A. §§ 9541-9546.         We reverse and remand for

further proceedings.

      This Court previously set forth the relevant factual background as

follows:
             Cruz was convicted of criminal homicide and theft on June
      14, 1994[,] and was sentenced to life imprisonment. At trial, the
      Commonwealth entered evidence relating to a number of hairs,
      recovered during the underlying criminal investigation, which
      implicated Cruz in the murder. Specifically, hair identified as
      belonging to the victim was found in the cab of Cruz’s truck, and
      hair identified as belonging to Cruz was found on the ropes that
      had been used to bind and fatally strangle the victim.

            To establish that the recovered hairs belonged to Cruz and
      to the victim, the Commonwealth relied, in part, on microscopic
      hair analysis. [Federal Bureau of Investigation (“FBI”)] Agent
      Chester Blythe [(“Agent Blythe”)] testified at trial regarding the
      use of microscopic hair analysis as a forensic method. In [his]
      testimony, Agent Blythe drew scientific conclusions that
      implicated Cruz in the murder of the victim. …
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Commonwealth v. Cruz, 178 A.3d 208 (Pa. Super. 2017) (unpublished

memorandum at 1).           On December 22, 1995, this Court affirmed Cruz’s

judgment of sentence.        See Commonwealth v. Cruz, 674 A.2d 313 (Pa.

Super. 1995) (unpublished memorandum), appeal denied, 544 Pa. 673 (Pa.

1996).

       On March 10, 1997, Cruz filed his first PCRA Petition. The PCRA court

dismissed Cruz’s Petition, and this Court affirmed the dismissal.              See

Commonwealth v. Cruz, 120 A.3d 1047 (Pa. Super. 2015) (unpublished

memorandum), appeal denied, 633 Pa. 753 (Pa. 2015). “On April 20, 2015,

the [FBI] issued a press release admitting, for the first time, that testimony

by FBI analysts regarding microscopic hair analysis in criminal trials was

erroneous in the vast majority of cases (hereinafter, “FBI press release”).”

Commonwealth v. Chmiel, 173 A.3d 617, 619 (Pa. 2017).

       On September 10, 2015, Cruz filed the instant, pro se, PCRA Petition,

alleging that he had received a letter from the Department of Justice (the “DOJ

letter”), advising him that Agent Blythe’s testimony at his trial contained

erroneous statements.1 The PCRA court appointed Cruz counsel, who filed an

Amended Petition, arguing that Cruz’s PCRA Petition was timely filed under

the “newly-discovered fact” exception.           See 42 Pa.C.S.A. § 9545(b)(1)(ii).


____________________________________________


1 Specifically, the DOJ letter states, in relevant part, “[w]e have determined
that the microscopic hair comparison analysis testimony or laboratory report
presented in this case included statements that exceeded the limits of science
… and were, therefore, invalid….” Brief for Appellant, Appendix C.

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After filing a Pa.R.Crim.P. 907 Notice of Intent to Dismiss, the PCRA court

dismissed the Petition without a hearing. This Court affirmed the Order of the

PCRA court, holding that Cruz’s Petition was untimely, and did not qualify for

any of the three timeliness exceptions. See Commonwealth v. Cruz, 178

A.3d 208 (Pa. Super. 2017) (unpublished memorandum).

      Notably, the Cruz Court, relying on Commonwealth v. Edmiston, 65

A.3d 339 (Pa. 2013), held that the information within the DOJ letter was not

a “newly-discovered fact,” but was instead, “a new source of previously

knowable facts.” Cruz, 178 A.3d 208 (unpublished memorandum at 3). The

Cruz court stated that the FBI press release was merely new analysis of old

facts, and therefore, did not support a timeliness exception under section

9545(b)(1)(ii). Id.

      Cruz sought allowance of appeal with our Supreme Court.              The

Pennsylvania Supreme Court granted Cruz’s Petition for allowance of appeal,

vacated this Court’s order, and remanded to the PCRA court, in light of the

Pennsylvania Supreme Court’s decision in Chmiel, 173 A.3d at 628 (holding

that the FBI press release is a newly-discovered fact “upon which [appellant]’s

underlying claim is predicated,” as that phrase is defined in the PCRA’s

exception to the one-year filing requirement, 42 Pa.C.S.A. § 9545(b)(1)(ii)).

See Commonwealth v. Cruz, 183 A.3d 348 (Pa. 2018) (unpublished per

curiam order).




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      On remand, the PCRA court dismissed Cruz’s Petition without a hearing,

finding that, even in light of the Pennsylvania Supreme Court’s holding in

Chmiel, Cruz’s Petition was untimely. See PCRA Court Opinion, 12/14/18, at

1-2 (unnumbered). The PCRA court reasoned that Cruz’s sixty-day time limit

for asserting the newly-discovered fact exception started on April 20, 2015,

the date of the FBI press release. The PCRA court determined that Cruz’s

PCRA Petition, dated September 10, 2015, was untimely. Cruz filed a timely

Notice of Appeal and a Pa.R.A.P. 1925(b) Concise Statement of matters

complained of on appeal.

      On appeal, Cruz presents the following questions for our review:

      1) Did the PCRA [c]ourt misinterpret the Pennsylvania Supreme
      Court’s remand for compliance with [Chmiel, supra,] and
      improperly dismiss the PCRA Petition as untimely?

      2) Did the PCRA [c]ourt fail to recognize the PCRA Petition was
      timely filed within 60 days of counsel’s receipt of the FBI letter
      identifying the flawed DNA analysis and acknowledging that the
      United States was waiving any default defense to permit
      resolution of legal claims?

Brief for Appellant at 4. We will address Cruz’s issues together, as they both

challenge the PCRA court’s application of Chmiel.

      Cruz alleges that the PCRA court misinterpreted our Supreme Court’s

holding in Chmiel, 173 A.3d 617. See Brief for Appellant at 10-17. According

to Cruz, he relies on new facts from the DOJ letter, not the FBI press release.

Id. at 10-14. Cruz states that the DOJ letter is dated July 27, 2015, and he




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filed his PCRA Petition on September 10, 2015, within the PCRA’s sixty-day

time limit, see 42 Pa.C.S.A. § 9545(b)(2).2 See Brief for Appellant at 15-17.

       “The standard of review of an order dismissing a PCRA petition is

whether that determination is supported by the evidence of record and is free

of legal error.”    Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super.

2017).    “The PCRA court’s findings will not be disturbed unless there is no

support for the findings in the certified record.”      Id. (citation omitted).

Further, “a PCRA court has discretion to dismiss a PCRA petition without a

hearing if the court is satisfied that there are no genuine issues concerning

any material fact; that the defendant is not entitled to post-conviction

collateral relief; and that no legitimate purpose would be served by further

proceedings.” Commonwealth v. Brown, 161 A.3d 960, 964 (Pa. Super.

2017) (citations omitted).

       Section 9545(b)(1)(ii) states that

       (1) Any petition under this subchapter, including a second or
       subsequent petition, shall be filed within one year of the date the
       judgment becomes final, unless the petition alleges and the
       petitioner proves that:

                                          ***


____________________________________________


2 Section 9545(b)(2) was amended on October 24, 2018, effective in 60 days
(i.e., Dec. 24, 2018), extending the time for filing from 60 days of the date
the claim could have been first presented, to one year. The amendment
applies to claims arising on December 24, 2017, or thereafter. See Act 2018,
Oct. 24, P.L. 894, No. 146, § 3 (hereinafter “Act 146”). In the instant case,
the one-year time limit of Act 146 does not apply to Cruz’s PCRA Petition,
since he filed it on September 10, 2015.

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         (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….

42 Pa.C.S.A. § 9545(b)(1)(ii) (emphasis added).

      In Chmiel,      the   Pennsylvania   Supreme   Court distinguished   the

appellant’s case from the facts in Edmiston. Chmiel, 173 A.3d at 626. The

Chmiel Court stated that whereas the “newly-discovered facts” asserted in

Edmiston “were not new, and had existed in various sources prior to

publication of the report,”

      the FBI press release is not old wine in a new bottle …; it was a
      public admission by the FBI, as the nation’s premier law
      enforcement agency and the proponent of this forensic technique,
      of widespread error. It is this concession, not the suspected
      unreliability of the forensic evidence as developed through
      scientific advancements, that triggers the sixty-day window within
      which [the appellant] was required to file his claim.

Id.   Therefore, the FBI press release triggered the appellant’s sixty-day

window to file his PCRA petition. Id. at 628.

      Here, Cruz’s newly-discovered fact is the DOJ and FBI’s specific

admission that Agent Blythe’s testimony, in particular, contains erroneous

statements, not the DOJ and FBI’s general admission that Cruz’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.     See, e.g., Chmiel, 173 A.3d at 625-26; 42 Pa.C.S.A.

§ 9545(b)(2).     Therefore, Cruz filed his PCRA Petition within sixty days of

discovering these new facts, on September 10, 2015. Accordingly, we reverse



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the Order of the PCRA court dismissing Cruz’s Petition as untimely, and we

remand for further proceedings.

      Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/2019




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