J-S66025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LOI NGOC NGHIEM                            :
                                               :
                       Appellant               :   No. 1649 EDA 2019

              Appeal from the PCRA Order Entered April 23, 2019
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0000566-2000


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

MEMORANDUM BY NICHOLS, J.:                          FILED FEBRUARY 11, 2020

        Appellant Loi Ngoc Nghiem appeals pro se from the order dismissing his

sixth Post Conviction Relief Act1 (PCRA) petition as untimely. Appellant, in

relevant part, claims that the Commonwealth interfered with his ability to

obtain the results of a DNA test that would establish his innocence. We affirm.

        The relevant facts giving rise to this appeal are well known to the

parties. Briefly, on April 4, 2000, Maria Polites discovered the body of her

son, Constantine Polites, at their home. He had been bound at the wrists and

ankles, stabbed in excess of forty times, and shot three times in the head.

She later discovered cash and personal property were missing from the home.

On April 5, 2000, Appellant went to the Upper Darby Police Department for an


____________________________________________


1   42 Pa.C.S. §§ 9541-9546.
J-S66025-19


interview about the murder. He then gave an incriminating statement to the

police.

       On June 14, 2002, a jury found Appellant guilty of murder in the first

degree, robbery, burglary, unlawful restraint, and possession of a firearm

without a license. The trial court sentenced Appellant to life plus twenty to

forty years’ imprisonment on June 27, 2002.

       Appellant appealed, and this Court affirmed on July 12, 2004.

Commonwealth v. Nghiem, 3700 EDA 2002 (Pa. Super. filed July 12, 2004)

(unpublished mem.). Appellant did not file a petition for allowance of appeal

to the Pennsylvania Supreme Court.

       Appellant subsequently filed several unsuccessful petitions for collateral

review. A discussion of the immediately preceding PCRA petition, which is not

the subject of the instant appeal, is necessary to explain the issues raised in

the PCRA petition that is before us.

       On March 24, 2017, Appellant filed his fifth2 PCRA petition, a motion for

post-conviction DNA testing pursuant to 42 Pa.C.S. § 9543.1.           Appellant

sought DNA testing on a large number of items, including a hair found at the


____________________________________________


2 “A motion for DNA testing, while clearly separate and distinct from claims
pursuant to other sections of the PCRA, nonetheless constitutes a
postconviction petition under the PCRA.” Commonwealth v. Williams, 909
A.2d 383, 384 n.1 (Pa. Super. 2006). The Appellant filed this PCRA petition
at the same time he was litigating his motion for post-conviction DNA testing
before the PCRA court. As a result, the Commonwealth occasionally refers to
the instant PCRA petition as his fifth PCRA petition and sixth PCRA pleading,
but it is actually his sixth petition for post-conviction relief.

                                           -2-
J-S66025-19


crime scene that did not match the victim or Appellant. Appellant’s Mot. for

Post-Conviction DNA Testing, 3/24/17, at 2-3; Appellant’s Mem. of Law in

Supp. of Mot. for Post-Conviction DNA Testing, 10/10/17, at 3-6; Suppl. Ex.

to Mot. for DNA Testing, 5/9/17, Ex. E (hair fiber report). The Commonwealth

answered the motion stating that on September 12, 2011, the Commonwealth

provided to trial counsel, among other things, an August 25, 2000 DNA test

performed on rectal swabs3 taken from the victim’s body (rectal swab report).

Appellee’s Am. Answer to Mot. for Post-Conviction DNA Testing, 10/10/17, at

1-2, Ex. A.     The rectal swab report indicated that the DNA on the swabs

matched the victim’s DNA. Id., Ex. B. The rectal swab report contained a

chart comparing various DNA genetic loci from the samples tested (DNA type

chart). Id., Ex. B at 2. The PCRA court denied the motion for DNA testing on

May 1, 2018. Appellant did not appeal the decision.

       On December 14, 2017, while the motion for DNA testing was still

pending, Appellant filed the instant pro se PCRA petition, his sixth, which was

docketed on December 27, 2017. Therein, he argued that he obtained the

rectal swab report for the first time when he received the Commonwealth’s

answer to his motion for DNA testing on October 16, 2017. Appellant’s PCRA

Pet., 12/14/17, at 3; Appellant’s Mem. of Law in Supp. of PCRA Pet., 9/7/19,

____________________________________________


3The Commonwealth’s answer interchangeably refers to these as anal swabs
and rectal swabs. Appellee’s Am. Answer to Mot. For Post-Conviction DNA
Testing, 10/10/17, at 1-2.



                                           -3-
J-S66025-19


at 3-5. Appellant then compared the rectal swab report with the March 28,

2002 hair fiber report (hair fiber report), which he already possessed.4

Appellant argued that he realized for the first time after comparing the two

reports that the hair fiber report should have included a DNA type chart.

Appellant’s Mem. of Law in Supp. of PCRA Pet., 9/7/19, at 4-9. Appellant

contended that the Commonwealth possessed the “missing” DNA type chart

but refused to disclose it in violation of its Brady5 obligations. Appellant’s

Mem. of Law in Supp. of PCRA Pet., 9/7/19, at 7-18.

____________________________________________


4 Appellant already had the March 28, 2002 report (hair fiber report) which
discussed the examination of hair fibers found at the crime scene. Appellant’s
Brief at 6; see also Appellant’s Mem. of Law in Support of Mot. For Post-
Conviction DNA Testing, 3/24/17, at 3-4; Suppl. Ex. to Mot. For DNA Testing,
5/9/17, Ex. E. Conclusion number nine of the hair fiber report states that a
hair found in the middle bedroom of the victim’s house did not come from the
Appellant or the victim. Appellant’s Mem. of Law in Supp. of PCRA Pet.,
9/7/19, Ex. BB at 2-3. Appellant was aware of this fact at the time of trial.
Appellant’s Brief at 6.

5 Brady v. Maryland, 373 U.S. 83 (1963). In Brady, the United States
Supreme Court held that “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence
is material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.” Brady, 373 U.S. at 87. A defendant must
demonstrate the following to establish a Brady violation: “(1) the evidence
was suppressed by the Commonwealth, either willfully or inadvertently; (2)
the evidence was favorable to the defendant; and (3) the evidence was
material, in that its omission resulted in prejudice to the defendant.”
Commonwealth v. Haskins, 60 A.3d 538, 547 (Pa. Super. 2012) (citation
omitted). In proving a Brady violation, “[t]he burden rests with the defendant
to prove, by reference to the record, that evidence was withheld or suppressed
by the prosecution. The withheld evidence must have been in the exclusive
control of the prosecution at the time of trial.” Id. (internal quotation marks
and citation omitted). However, “[n]o Brady violation occurs when the



                                           -4-
J-S66025-19


       Procedurally, Appellant claimed that the instant PCRA petition satisfied

the governmental interference exception to the PCRA’s one year time bar

pursuant to 42 Pa.C.S. § 9545(b)(1)(i). Appellant’s Mem. of Law in Supp. of

PCRA Pet., 9/7/19, at 18-22; Appellant’s Brief at 20-23.            Appellant’s

substantive claims for post-conviction relief were supported by his claims of

Brady violations and ineffective assistance of counsel relating to the alleged

missing DNA type chart from the hair fiber report. Appellant’s Mem. of Law

in Supp. of PCRA Pet., 9/7/19, at 7-18, 22-28.

       On March 8, 2019, the PCRA court issued a Pa.R.Crim.P. 907 notice of

intent to dismiss without a hearing, which stated that Appellant’s petition was

untimely and his claim lacked merit. Appellant filed a pro se response that

the PCRA court docketed on April 22, 2019. On April 25, 2019, the PCRA court

dismissed Appellant’s petition as untimely.6

       Appellant filed a timely pro se notice of appeal on Tuesday, May 28,

2019.7     The PCRA court did not order Appellant to comply with Pa.R.A.P.

1925(b).

____________________________________________


defendant knew, or with reasonable diligence, could have discovered the
evidence in question.” Id.

6 The PCRA court docketed the order on April 24, 2019, but notice was not
given until April 25, 2019.

7 Generally, a notice of appeal must be filed within thirty days of the entry of
the order from which the appeal is taken. Pa.R.A.P. 903(a). Here, the order
dismissing Appellant’s PCRA petition was entered on April 25, 2019. See



                                           -5-
J-S66025-19


       Appellant raises the following issues on appeal:

       1. Did the PCRA court err in holding, without an evidentiary
       hearing under Pa.R.Crim.P.908, that [Appellant’s] petition was
       untimely where there was exculpatory evidence in the form of DNA
       excluding [Appellant] which shows: (a) that the hair found at the
       crime scene did not come from him and (b) the DNA genetic profile
       of the individual whose name remains unknown (DNA type chart)
       was not previously known or understood by [Appellant], was a
       newly discovered fact pursuant to 42 Pa.C.S. § 9545(b)(1)(ii)?

       2. Did the PCRA Court err in holding, without an evidentiary
       hearing under Pa.R.Crim.[P.] 908, that [Appellant’s] petition was
       untimely where there was evidence that any delay establishing
       untimeliness was a result of government interference pursuant to
       42 Pa.C.S. § 9545(b)(1)(i) because the Commonwealth withheld
       and continues to withhold exculpatory tests showing the genetic
       profile (DNA type chart) of the DNA profile of the individual whose
       name is unknown from [Appellant] in violation of Brady?

       3. Is [Appellant] eligible for relief under 42 Pa.C.S. § 9543(a)(2)(i)
       because the Commonwealth withheld and continues to withhold
       exculpatory evidence, lab tests revealing that the genetic profile
       (DNA type chart) of the DNA profile of the individual whose name
       is unknown, neither match [Appellant] nor made available to the
       defense before, during or after trial, in violation of Brady?

       4. Is [Appellant] eligible for relief under 42 Pa.C.S. §
       9543(a)(2)(vi) because of the unavailability at the time of trial of
       the genetic profile (DNA type chart) of the DNA profile of the
       individual whose name remains unknown, which shows that the
       hair found at the crime scene not only did not match [Appellant],
       it pointed to an “alternative suspect” whose name and genetic
       profile is still unknown, which, if presented to the jury, there would
       have been a reasonable probability of a different result?


____________________________________________


Pa.R.A.P. 108(a)(1), (d)(1) (the date of entry of an order is the day the clerk
of the court mails copies of the order to the parties). The thirtieth day from
April 25, 2019, was Saturday, May 25, 2019. Furthermore, Monday, May 27,
2019, was Memorial Day. Therefore, Appellant’s pro se notice of appeal, which
was docketed on the next business day, was timely filed. See 1 Pa.C.S. §
1908.

                                           -6-
J-S66025-19


      5. Did the PCRA court err in dismissing [Appellant’s] petition
      without an evidentiary hearing under Pa.R.Crim.P. 908 where
      material issues of fact existed as to the Commonwealth not
      committing a Brady violation and/or Government Interference,
      but instead [Appellant’s] Trial Counsel denied [him] effective
      assistance, whereupon the Commonwealth did provide the
      exculpatory evidence of the genetic profile of the unnamed
      individual and counsel omitted said exculpatory evidence from the
      jury?

Appellant’s Brief at 2-3 (emphasis omitted).

      Appellant’s issues are related, and we will summarize them together.

Appellant argues that the Commonwealth has in its possession, but refused to

provide to him, DNA test results in the form of a DNA type chart related to the

March 28, 2002 hair fiber report. Appellant’s Brief at 12-17, 19-23; see also

Appellant’s Mem. of Law in Supp. of PCRA Pet., 9/7/19, Ex. BB. Appellant also

argues that the “missing” DNA type chart for the hair fiber report is a newly

discovered fact conclusively excluding him as the source of the DNA found at

the crime scene. Appellant’s Brief at 9, 10, 17.

      Our standard of review from the dismissal of a PCRA petition “is limited

to examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted). “We will

not disturb findings that are supported by the record.” Id.

      “[T]he timeliness of a PCRA petition is a jurisdictional requisite.”

Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super. 2015). A PCRA

petition, “including a second or subsequent petition, shall be filed within one


                                     -7-
J-S66025-19


year of the date the judgment becomes final” unless the petitioner pleads and

proves one of three statutory exceptions. 42 Pa.C.S. § 9545(b)(1). The three

statutory exceptions to the PCRA’s one year time bar are:

       (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).          To invoke one of these exceptions, a

petitioner must also file his petition within sixty days of the date the claim

could have been presented. See 42 Pa.C.S. § 9545(b)(2).8 A PCRA petitioner

has the “burden to allege and prove that one of the timeliness exceptions

applies.”   Commonwealth v. Albrecht, 994 A.2d 1091, 1094 (Pa. 2010)

(citation omitted).




____________________________________________


8Section 9545(b)(2) was amended on October 24, 2018, effective December
24, 2018, extending the time for filing from sixty 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 of Oct. 24, 2018, P.L.
894, No. 146, § 3. Because Appellant filed the instant serial PCRA petition on
December 14, 2017, the amended Section (b)(2) does not apply to him.


                                           -8-
J-S66025-19


     There is no dispute that Appellant’s conviction became final in 2004, and

that Appellant’s current PCRA petition, which was filed on December 14, 2017,

is facially untimely. Because Appellant filed the instant PCRA petition more

than one year after his conviction became final, he must satisfy one of the

exceptions to the PCRA time bar. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). In his

brief, Appellant raises both the governmental interference and newly

discovered fact exceptions, alleging that the Commonwealth has committed

and is continuing to commit a Brady violation by withholding from Appellant

an alleged DNA type chart indicating that a hair found at the crime scene

matches an individual other than Appellant or the victim. Appellant’s Brief at

13-23.

     The Pennsylvania Supreme Court has noted that

     [a]lthough a Brady violation may fall within the governmental
     interference exception, the petitioner must plead and prove the
     failure to previously raise the claim was the result of interference
     by government officials, and the information could not have been
     obtained earlier with the exercise of due diligence. Section
     9545(b)(1)(ii)’s exception requires the facts upon which the
     Brady claim is predicated were not previously known to the
     petitioner and could not have been ascertained through due
     diligence. In [Commonwealth v. Bennett, 930 A.2d 1264, 1271
     (Pa. 2007)], we clarified that § 9454(b)(1)(ii)’s exception does not
     contain the same requirements as a Brady claim, noting “we
     made clear the exception set forth in subsection (b)(1)(ii) does
     not require any merits analysis of the underlying claim. Rather,
     the exception merely requires that the ‘facts’ upon which such a
     claim is predicated must not have been known to appellant, nor
     could they have been ascertained by due diligence.”

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008) (citations

omitted); see also Commonwealth v. Smith, 194 A.3d 126, 133 (Pa. Super.

                                    -9-
J-S66025-19


2018). Due diligence “requires reasonable efforts by a petitioner, based on

the particular circumstances, to uncover facts that may support a claim for

collateral relief.” Commonwealth v. S. Burton, 121 A.3d 1063, 1071 (Pa.

Super. 2015) (en banc) (citations omitted).

       Relatedly,

       [t]he right to an evidentiary hearing on a post-conviction petition
       is not absolute. It is within the PCRA court’s discretion to decline
       to hold a hearing if the petitioner’s claim is patently frivolous and
       has no support either in the record or other evidence. It is the
       responsibility of the reviewing court on appeal to examine each
       issue raised in the PCRA petition in light of the record certified
       before it in order to determine if the PCRA court erred in its
       determination that there were no genuine issues of material fact
       in controversy and in denying relief without conducting an
       evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations and

formatting omitted).

       Instantly, in rejecting Appellant’s argument, the PCRA court concluded

that Appellant did not plead and prove that a Brady violation occurred. The

PCRA court found that the hair fiber report was provided to defense counsel

prior to trial, and Appellant was aware that a hair fiber belonging to someone

other than Appellant and the victim existed.       PCRA Ct. Op., 7/10/19, at 6

(unpaginated). The PCRA court reasoned that the fact that the rectal swab

report contained a DNA type chart did not prove that a similar chart was

created for the hair fiber report, or that the Commonwealth was withholding

it.   Id.   The PCRA court further found that Appellant did not exercise due

diligence in investigating the hair fiber report, which had been produced prior

                                      - 10 -
J-S66025-19


to trial. Id. For these reasons, the PCRA court concluded that there was no

governmental interference that prevented Appellant from investigating the

hair fiber report since the date of trial and that the PCRA petition was untimely.

Id. at 6, 8.

      Following our review, we agree with the PCRA court that Appellant’s

petition is untimely. Appellant did not plead and prove a DNA type chart for

the hair fiber report existed and that the Commonwealth withheld it. Because

Appellant’s factual premise is purely speculative, he cannot establish his PCRA

petition was timely filed under the governmental interference exception. See

Commonwealth. v. Dickerson, 900 A.2d 407, 411 (Pa. Super. 2006)

(finding that alleged Brady violation did not establish governmental

interference exception to the PCRA time bar because it was “nothing but pure

speculation”). Furthermore, Appellant’s previous PCRA submissions indicate

that he had the hair fiber report prior to the filing of the instant petition. See

Supp’l PCRA Pet., 2/21/07, Exs. at 58 (exhibits are not consistently labeled or

paginated); Suppl. Ex. to Mot. for DNA Testing, 5/9/17, Ex. E. Even if there

were a missing DNA type chart, and the record before us does not establish

that there is one, Appellant cannot show that this information could not have

been obtained earlier with the exercise of due diligence. Copies of the hair

fiber report have been attached to several of Appellant’s PCRA filings going

back to 2007. An investigation into a supposedly missing DNA type chart in




                                     - 11 -
J-S66025-19


2017 was not a reasonable effort to uncover facts based on Appellant’s

particular circumstances.

      Moreover, we note that Appellant’s argument that his petition is timely

under the newly discovered fact exception has been raised for the first time

on appeal. See Pa.R.A.P. 302(a) (“Issues not raised before the lower court

are waived and cannot be raised for the first time on appeal.”);

Commonwealth v. F. Burton, 936 A.2d 521, 525 (Pa. Super. 2007)

(“exceptions to the time bar must be pled in the PCRA petition, and may not

be raised for the first time on appeal.”).   Our examination of the record

indicates that Appellant only argued the governmental interference exception

to the PCRA court and the PCRA court found Appellant had not established

that exception.   See PCRA Ct. Op., 7/10/19, at 3-6 (unpaginated).        As

Appellant did not present the newly discovered evidence exception to the

PCRA court, it is waived.

      Even if Appellant had not waived his newly discovered fact argument,

his petition would still be untimely.   There are two elements to a newly

discovered fact claim to overcome the PCRA’s one-year time bar: “1) the facts

upon which the claim was predicated were unknown and 2) could not have

been ascertained by the exercise of due diligence. If the petitioner alleges

and proves these two components, then the PCRA court has jurisdiction over

the claim under this subsection.” Brown, 111 A.3d at 176-77 (citation and

formatting altered).   “[T]he ‘new facts’ exception at Section 9545(b)(1)(ii)


                                    - 12 -
J-S66025-19


does not require any merits analysis of an underlying after-discovered-

evidence claim.” Id. at 177. Here, for the reasons discussed above, Appellant

did not prove that the fact upon which his claim was predicated was unknown

or that he exercised due diligence.

      Because nothing in the record establishes the existence of a DNA type

chart for the hair fiber report, Appellant failed to plead and prove one of the

timeliness exceptions. Accordingly, we conclude that the PCRA court acted

within its discretion in declining to hold an evidentiary hearing. See Wah, 42

A.3d at 338. Having discerned no error of law, we affirm the order below.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/11/20




                                      - 13 -
