J-S31022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
               v.                        :
                                         :
                                         :
STEPHEN REX EDMISTON,                    :
                                         :
                     Appellant           :     No. 1273 WDA 2016

                   Appeal from the PCRA Order August 12, 2016
                In the Court of Common Pleas of Clearfield County
               Criminal Division at No(s): CP-17-CR-0000652-1988


BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                          FILED JANUARY 16, 2018

        Stephen Rex Edmiston (“Appellant”) seeks review of the Order entered

by the Clearfield County Court of Common Pleas dismissing his Petition filed

pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9546,     as   untimely.    Based   on   the   recent   decision   rendered    in

Commonwealth v. Chmiel, 2017 WL 5616233, 726 CAP (Pa. filed Nov. 22,

2017), we reverse and remand for further proceedings.

        The underlying facts and procedural history of the case have been set

forth in prior Opinions and we need not restate them in detail here.          See

Commonwealth v. Edmiston, 65 A.3d 339 (Pa. 2013) (“Edmiston III”),

Commonwealth v. Edmiston, 851 A.2d 883 (Pa. 2004) (“Edmiston II”),

and Commonwealth v. Edmiston, 634 A.2d 1078 (Pa. 1993) (“Edmiston

I”). For purposes of this appeal, we note that a jury sentenced Appellant to
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death in connection with the 1988 Kidnapping, Murder, Rape, Statutory

Rape, and Involuntary Deviate Sexual Intercourse of two-year-old Bobbi Jo

Matthew.1     Among the evidence submitted at trial was a report from Bruce

Kevin Tackett, a criminalist with the Pennsylvania State Police (“PSP”), who

had conducted a microscopic comparison of hair samples collected from

Appellant’s truck with hair belonging to the victim.    Mr. Tackett, who was

trained in hair analysis by the Federal Bureau of Investigation (“FBI”),

concluded that the hair found in the truck had the same microscopic

characteristics as the victim’s hair and that the hair came from the victim or

“from someone with hair just like hers.” N.T., 3/1/1990, at 115.

       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 a majority of cases.” Chmiel, supra at

*1. The FBI also admitted, for the first time, “that it had, over the course of

twenty-five years, conducted multiple training courses for state and local

forensic examiners throughout the country that incorporated some of the

same flawed language that the FBI examiners had used in lab reports and

trial testimony.”    Id.
____________________________________________


1 Appellant was convicted of Burglary and Kidnapping and sentenced for
those crimes by the Clearfield County Court of Common Pleas at CP-17-CR-
0652-1988. He was convicted of Murder, Rape and the related offenses and
sentenced for those crimes in Cambria County at CP-11-CR-1025-1988.
Appellant filed the Notice of Appeal in the instant matter only under the
Clearfield County docket number.



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       On June 17, 2015, Appellant filed the instant consolidated Petition

seeking Habeas Corpus and PCRA Relief,2 asserting that his conviction and

sentence were based on a flawed hair analysis and improper expert

testimony. He asserted that the April 20, 2015 FBI press release contained

a newly discovered fact that rendered his Petition cognizable under the

PCRA’s timeliness exception provided in 42 Pa.C.S. § 9545(b)(1)(ii).      On

June 22, 2015, he filed a Motion for Discovery seeking, inter alia,

information relevant to the training received by PSP criminalists between

1980 and 2000 in hair and fiber analysis.

       After filing a Pa.R.Crim.P. 907 Notice, the PCRA court3 dismissed the

Petition as untimely, concluding that “[t]he only ‘new’ thing [Appellant]

could garner from the press release and article is an update on the opinion

of third-parties regarding facts which have been readily available in the

public domain for years.” Trial Ct. Op., dated 5/31/16, at 4.4

       Appellant timely appealed and raised the following issues for our

review:
____________________________________________


2 The PCRA court properly considered Appellant’s separate request for
habeas corpus relief as cognizable under the PCRA. See Trial Ct. Op., dated
3/31/16, at 4-5.

3Appellant filed his Petitions in both Cambria and Clearfield Counties. The
court consolidated the Petitions for adjudication in Cambria County. See
Order, filed 2/3/16.

4 The court also dismissed Appellant’s Motion for Discovery.      See Order,
dated 7/31/16 (filed 8/12/16).



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            1. Did the PCRA court err in concluding that the PCRA
               petition was untimely, where the newly disclosed
               evidence included admissions from the FBI that its
               training of state examiners on hair comparison methods
               was flawed and scientifically unsupportable?

            2. Did the PCRA court err in denying a new trial where
               [Appellant] pled and proved that his conviction rested
               on unreliable hair comparison evidence, in violation of
               the Sixth and Fourteenth Amendments of the United
               States Constitution and Article I, Section 9, of the
               Pennsylvania Constitution?

Appellant’s Brief at 2.

      We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its Order is otherwise

free of legal error.      Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014). “The scope of review is limited to the findings of the PCRA court and

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

party at the trial level.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.

2014) (citation omitted).

      It is well-settled that the time requirements provided in the PCRA are

jurisdictional in nature; thus, Pennsylvania courts may not review untimely

PCRA petitions. Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011).

Under the PCRA, any Petition “including a second or subsequent petition,

shall be filed within one year of the date the judgment becomes final[.]” 42

Pa.C.S. § 9545(b)(1).       A Judgment of Sentence becomes final “at the

conclusion of direct review, including discretionary review in the Supreme


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Court of the United States and the Supreme Court of Pennsylvania, or the

expiration of time for seeking the review.”        42 Pa.C.S. § 9545(b)(3).

Appellant’s Petition, filed over two decades after his Judgments of Sentence

became final, is facially untimely.

      However, the PCRA provides three timeliness exceptions that must be

alleged and proven to obtain review. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). A

petition “invoking an exception … shall be filed within 60 days of the date the

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

Appellant based his June 17, 2015 PCRA Petition on an averment that the

April 20, 2015 FBI press release contains newly discovered facts. See 42

Pa.C.S. § 9545(b)(1)(ii). Pursuant to the recent decision in Chmiel, supra,

we agree.

      In Chmiel, the Pennsylvania Supreme Court addressed the same

issues Appellant has presented here. The Court reviewed prior case law and

emphasized the difference between questions about the reliability of hair

comparison analysis that have been around for decades, and the FBI’s first

public admission on April 20, 2015, of “‘invalid,’ ‘flawed,’ and ‘faulty’” hair

analysis evidence. Chmiel at *7. In concluding that the FBI press release

does indeed contain “newly discovered facts” upon which to rely in a facially

untimely PCRA petition, the Court stated:

      Contrary to the PCRA court’s opinion …, the fact that the FBI was
      internally reviewing the accuracy of microscopic hair analysis or
      testimony is not the newly discovered fact upon which
      [Appellant’s] claim is based. Rather, the newly discovered facts

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       are the FBI’s admissions, as the proponent of microscopic hair
       analysis, that its examiners gave flawed and scientifically
       unsupportable testimony, and spread its flawed methodology to
       state and local analysts. Although the existence of the FBI’s
       internal investigation was known, the press release marked the
       first public admission by the FBI regarding its conclusions about
       testimony premised upon microscopic hair analysis and the
       dissemination of such scientifically flawed language to state and
       local analysts.
                                            ***
       It is this concession … that triggers the sixty-day window within
       which [Appellant] was required to file his claim. This concession
       did not exist in the public domain prior to April 20, 2015.

Chmiel, supra, at *6-7.

       Chmiel is dispositive of the issues Appellant has raised here.      The

FBI’s concessions contained in its April 20, 2015 press release triggered the

sixty-day window within which Appellant had to file his Petition.   Appellant

filed his Petition within sixty days, on June 17, 2015.      Accordingly, we

reverse the order of the PCRA court dismissing Appellant’s Petition as

untimely, and remand for further proceedings.5

       Order reversed. Case remanded. Jurisdiction relinquished.




____________________________________________


5 The PCRA court dismissed Appellant’s request for discovery to ascertain
whether Tackett was trained by the FBI, ostensibly because the underlying
claim was time-barred. The “PCRA court should reconsider the discovery
request in light of our [disposition].” Chmiel, supra, at n.8.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/16/2018




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