                                 [J-21-2017]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                              EASTERN DISTRICT


    SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

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                :


                                        OPINION


JUSTICE WECHT                                          DECIDED: November 22, 2017

      In 2002, David Chmiel was convicted and sentenced to death for the murder of

three elderly siblings.1   At Chmiel’s 2002 trial, the Commonwealth relied upon the

testimony of a state police forensic examiner, who opined that hair found at the crime

scene was microscopically similar to Chmiel’s hair. On April 20, 2015, the Federal

Bureau of Investigation (“FBI”) issued a press release admitting, for the first time, that

testimony by FBI analysts regarding microscopic hair analysis in criminal trials was




1
       This Court provided a thorough recitation of the facts underlying the judgment of
sentence on direct appeal, Commonwealth v. Chmiel, 889 A.2d 501, 509-13 (Pa. 2005)
(“Chmiel I”), and in Chmiel’s first appeal pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-46, Commonwealth v. Chmiel, 30 A.3d 1111, 1123-25
(Pa. 2011) (“Chmiel II”).
erroneous in the vast majority of cases (hereinafter, “FBI press release”).2 The FBI

further admitted 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. Appendix C at 2.

      On June 18, 2015, Chmiel filed a petition pursuant to the PCRA, asserting that

his conviction and death sentence rested upon unreliable microscopic hair comparison

evidence. Recognizing that his petition facially was untimely, Chmiel asserted that the

FBI press release constituted a newly discovered fact that satisfied the timeliness

exception set forth in Section 9545(b)(1)(ii).3       The PCRA court rejected Chmiel’s




2
        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-hair-
analysis-contained-errors-in-at-least-90-percent-of-cases-in-ongoing-review; Appendix
C to Initial Brief of Appellant (hereafter, “Appendix C”).
3
      The PCRA’s timeliness provisions provide, in relevant part:

      (b) Time for filing petition.--

      (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:

            (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
(continued…)

                                        [J-21-2017] - 2
reliance upon the FBI press release as a newly discovered fact, and dismissed the

petition as untimely. We reverse, and we remand for further proceedings.

      George Surma was a Pennsylvania State Police (“PSP”) forensic scientist who

testified for the Commonwealth at Chmiel’s trial.      At that time, Surma had been a

forensic scientist with the PSP for twenty-seven years and had testified as an expert in

forensic microscopy or electrophoresis on three to four hundred prior occasions.

Commonwealth v. Chmiel, 30 A.3d 1111, 1137 (Pa. 2011) (“Chmiel II”); Notes of

Testimony (“N.T.”), 8/27/2002, at 5-6. Surma testified that he had received extensive

training in the field of forensic science and had engaged in “advanced work in the

analysis of blood, electrophoresis of blood and miscroscopy.” Id. at 5.

      Surma microscopically analyzed six hairs retrieved from a sweater sleeve mask

that was found at the crime scene. This mask had been cut from a sweater and used to

conceal the intruder’s identity during the murders. Commonwealth v. Chmiel, 889 A.2d

501, 510 (Pa. 2005) (“Chmiel I”). The police were able to trace the sweater sleeve

mask to Martin Chmiel, Chmiel’s brother. Id. At trial, Surma testified that he used a

comparison microscope to detect up to fourteen possible features of the cuticle, cortex,

and medulla of the hair. Chmiel II, 30 A.3d at 1124; N.T., 8/27/2002, at 14-23. Surma

subjectively selected these fourteen bases of comparison by considering “whatever



(…continued)
            Pennsylvania after the time period provided in this section and has
            been held by that court to apply retroactively.

      (2) Any petition invoking an exception provided in paragraph (1) shall be
      filed within 60 days of the date the claim could have been presented.

42 Pa.C.S. § 9545(b).



                                     [J-21-2017] - 3
features or characteristics [he found] in that particular hair.” Id. at 19. Surma did not

explain how many features had to be similar to warrant a conclusion of microscopic

similarity, or dissimilar to preclude such a conclusion. Nevertheless, Surma concluded

that two hairs found on the sweater sleeve mask were “microscopically similar” to hair

samples obtained from Chmiel, but not to those obtained from Chmiel’s brother, Martin,

or to the victims. Chmiel II, 30 A.3d at 1124; N.T., 8/27/2002, at 20, 26, 56.4 The

prosecutor exaggerated Surma’s conclusions in his opening and closing statements,

promising a “microscopic match,” between Chmiel’s hairs and those found at the crime

scene, N.T., 8/19/2002, at 79, and arguing that Surma’s testimony had established such

a “match.” N.T., 9/6/2002, at 175-77.

      On March 21, 2007, Chmiel filed his first PCRA petition.            Chmiel raised

numerous claims, including a claim that trial counsel was ineffective for failing to

challenge the admissibility of Surma’s testimony pursuant to Frye v. United States, 293

F. 1013 (D.C. Cir. 1923), and for failing to obtain an expert witness to rebut Surma’s

testimony.   Chmiel II, 30 A.3d at 1138.        This Court found no merit to these

ineffectiveness claims.

      On June 18, 2015, Chmiel filed the present PCRA petition, asserting that his

conviction and death sentence rested upon unreliable hair comparison evidence in

violation of the Sixth, Eighth, and Fourteenth Amendments to the United States

Constitution and Article I, Section 9 of the Pennsylvania Constitution.     Chmiel also

sought discovery from the Commonwealth pursuant to Pa.R.Crim.P. 902(E)(1).

4
      In addition, mitochondrial DNA analysis did not exclude Chmiel or Martin as
sources of two of the hairs found on the sweater sleeve mask. N.T., 8/29/2002, at 165-
67.



                                     [J-21-2017] - 4
      Recognizing that his petition was untimely on its face, Chmiel relied upon the

timeliness exception for newly discovered facts, 42 Pa.C.S. § 9545(b)(1)(ii). Chmiel

asserted that his claim was predicated upon the April 20, 2015 FBI press release, and

that he could not previously have ascertained the facts contained therein by the

exercise of due diligence. As support for his position that the press release revealed

newly discovered facts, Chmiel relied upon an April 18, 2015 article in The Washington

Post about the FBI press release. Chmiel filed his PCRA petition within sixty days of

the FBI press release. See 42 Pa.C.S. § 9545(b)(2). Because the FBI press release

and the Washington Post article describing the FBI’s findings are the basis of Chmiel’s

attempt to overcome the PCRA’s time restrictions, they warrant close review.

      The FBI press release is entitled “FBI Testimony on Microscopic Hair Analysis

Contained Errors in at Least 90 Percent of Cases in Ongoing Review.” Appendix C at

1. In the press release, the FBI publicly disclosed the initial findings of an ongoing

investigation undertaken jointly by the Department of Justice (“DOJ”), the FBI, the

Innocence Project, and the National Association of Criminal Defense Lawyers

(“NACDL”).   The investigation scrutinized the testimony of FBI analysts concerning

microscopic hair comparison analysis prior to 2000, the point at which mitochondrial

DNA testing became routine in the FBI. The review was prompted by exonerations of

three men who had been convicted, in part, based upon the scientifically flawed

testimony of three FBI hair examiners. The review encompassed cases in which FBI

microscopic hair comparison was used to link a defendant to a crime in both the federal

and state systems. The FBI concluded that its examiners’ testimony in at least 90% of

cases contained erroneous statements. The FBI’s findings “confirm[ed] that the FBI




                                    [J-21-2017] - 5
microscopic hair analysts committed widespread, systematic error, grossly exaggerating

the significance of their data under oath with the consequence of unfairly bolstering the

prosecution’s case. . . .” Appendix C at 1.

      The FBI press release quoted Peter Neufeld, co-director of the Innocence

Project, as saying that the results of the FBI’s review demonstrated an “epic miscarriage

of justice.” Id. The press release also quoted Norman L. Reimer, Executive Director of

NACDL, as stating that, although “[i]t will be many months before we can know how

many people were wrongly convicted based on this flawed evidence,” he was certain

that there were “many whose liberty was deprived and lives destroyed by prosecutorial

reliance on this flawed, albeit highly persuasive evidence.” Id. Mr. Reimer called upon

lawmakers to prevent similar systemic failures, and upon the courts to “give those who

were impacted by this evidence a second look at their convictions.”         Id.   The FBI

committed to “address[ing] errors made in statements by FBI examiners regarding

microscopic hair analysis in the context of testimony and laboratory reports.” Id.

      The FBI press release also described the FBI’s efforts to train state and local hair

examiners in such “invalid” and “faulty” evidence:

      Over the course of 25 years, the FBI conducted multiple two-week training
      courses that reached several hundred state and local hair examiners
      throughout the country and that incorporated some of the same
      scientifically flawed language that the FBI’s examiners had used in some
      lab reports and often in trial testimony. In response to the FBI/DOJ
      review, the Texas Forensic Scientific Commission has already begun a
      review of cases handled by analysts at state and local crime labs. Similar
      audits are needed in most other states.


Id. at 2. The press release stated that the FBI’s review did not include cases in which

hair comparison was conducted by state and local crime labs. The findings prompted




                                     [J-21-2017] - 6
the FBI to commit to “[s]trongly encourag[ing] the states again to conduct their own

independent reviews where its examiners were trained by the FBI.” Id.

       The April 18, 2015 edition of The Washington Post reported upon the FBI’s

findings in an article entitled “FBI admits flaws in hair analysis over decades.” See

Appendix B.5 The article reported that the FBI and DOJ formally had acknowledged

that “nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost

all trials in which they offered evidence against criminal defendants over more than a

two-decade period before 2000.” Id. at 1. The Washington Post quoted legal analysts

as characterizing the FBI’s review as “a watershed in one of the country’s largest

forensic scandals, highlighting the failure of the nation’s courts for decades to keep

bogus scientific information from juries. . . .” Id. The questions following the FBI’s

review, according to the article, included how the courts will respond to findings that

“confirm long-suspected problems with subjective, pattern-based forensic techniques—

like hair and bite-mark comparisons—that have contributed to wrongful convictions in

more than one-quarter of 329 DNA-exoneration cases since 1989.” Id. The article

indicated that, although “unnamed federal officials previously acknowledged widespread

problems, the FBI until now has withheld comment because findings might not be

representative.” Id. at 2.

       The Washington Post article explained that, until 2012, hair examiners lacked

written standards defining scientifically accurate ways to explain hair analysis results in



5
       See also Spencer S. Hsu, FBI admits flaws in hair analysis over decades, The
Washington Post (April 18, 2015), https://www.washingtonpost.com/local/crime/fbi-
overstated-forensic-hair-matches-in-nearly-all-criminal-trials-for-
decades/2015/04/18/39c8d8c6-e515-11e4-b510-962fcfabc310_story.html.



                                     [J-21-2017] - 7
court. Prior to such standards, FBI hair analysts routinely testified to the “near-certainty

of ‘matches’ of crime scene hairs,” id. at 2, supporting their conclusions with incomplete

or misleading statistics. Id. In truth, there was no accepted research on the frequency

with which hair from different individuals may appear the same.          According to the

article, warnings about the problems with hair analysis had been mounting since 2002,

when the FBI reported that its own DNA testing revealed that examiners reported false

hair matches 11% of the time. Id. at 3. Like the FBI press release, the article reported

that “the same FBI examiners whose work is under review taught 500 to 1,000 state and

local crime lab analysts to testify in the same ways.” Id. at 3-4.

       Relying upon the FBI press release to satisfy the PCRA’s newly discovered facts

exception, Chmiel asserted in his petition that Surma was trained by the FBI and

provided the same scientifically unsupportable testimony that the FBI now disclaims,

linking the hairs recovered from the sweater sleeve mask to Chmiel, while also

excluding Martin Chmiel. In tandem with his PCRA petition, Chmiel sought discovery

pursuant to Rule 902(E)(1), which provides that “no discovery shall be permitted at any

stage of the proceedings, except upon leave of court after a showing of exceptional

circumstances.”    Pa.R.Crim.P. 902(E)(1).     Chmiel asserted that he had established

exceptional circumstances to depose Surma, to take discovery regarding every other

case in which Surma had testified, and to obtain documentary evidence in the FBI’s

possession regarding the FBI’s internal review of the use of hair comparison evidence.

       The PCRA court dismissed Chmiel’s PCRA petition as untimely. According to

the PCRA court, our decision in Commonwealth v. Edmiston, 65 A.3d 339 (Pa. 2013),

controlled the timeliness inquiry. Edmiston involved a PCRA petition filed by a capital




                                      [J-21-2017] - 8
defendant who, like Chmiel, was convicted following the introduction of hair comparison

analysis testimony at trial. On February 18, 2009, the National Academy of Sciences

published a report entitled “Strengthening Forensic Science in the United States: A Path

Forward” (hereinafter, “the NAS Report”).    The NAS Report was a review of prior

studies and articles, as well as the National Academy of Sciences’ conclusion that

“there was no scientific support for the use of microscopic hair analysis for

individualization that is not accompanied by mitochondrial DNA analysis.” Edmiston, 65

A.3d at 351.

      On April 17, 2009, Edmiston raised a facially untimely claim for post-conviction

relief premised upon the NAS Report. Edmiston, 65 A.3d at 344. Edmiston relied upon

the NAS Report in attempting to establish the newly discovered fact exception to the

one-year time bar. Edmiston, 65 A.3d at 350-51; 42 Pa.C.S. § 9545(b)(1)(ii). Edmiston

asserted that the NAS Report was a newly discovered fact that supported his claim of

actual innocence, because it demonstrated that the Commonwealth’s hair analysis

evidence was “false, misleading, and unreliable.” Edmiston, 65 A.3d at 351.

      On appeal from the PCRA court’s dismissal of Edmiston’s petition as untimely,

this Court addressed the applicability of the newly discovered facts exception to the

PCRA’s jurisdictional time restrictions. See 42 Pa.C.S. § 9545(b)(1)(ii). We observed

that, “to constitute facts which were unknown to a petitioner and could not have been

ascertained by the exercise of due diligence, the information must not be of public

record and must not be facts that were previously known but are now presented through




                                    [J-21-2017] - 9
a newly discovered source.”       Edmiston, 65 A.3d at 352.6        Evaluating Edmiston’s

reliance upon the NAS Report as a newly discovered fact, this Court explained that “the

‘fact’ [that Edmiston] relies upon as newly discovered is not the publication of the NAS

Report, but the analysis of the scientific principles supporting hair comparison analysis.”

Id. This Court held that the “fact” contained within the NAS Report was not new, as

questions about the reliability of hair comparison analysis had existed in various

sources prior to publication of the NAS Report: “Specifically, the NAS Report refers to

various studies and reports published in the public domain as early as 1974 and as

recently as 2007. As such, the information relied upon by [Edmiston] in the Report

constitutes facts that were in the public domain and could have been discovered by

[Edmiston] through the exercise of due diligence prior to the filing of his . . . Petition.”

Edmiston, 65 A.3d at 352. This analysis led the Court to conclude that the NAS Report

failed to satisfy the timeliness exception for newly discovered facts.

       In the instant case, the PCRA court analogized the FBI press release to the NAS

Report in Edmiston, reasoning that the information contained within the FBI press

release was available in the public domain prior to 2015, and that Chmiel could have

discovered it through the exercise of due diligence more than sixty days prior to filing

the PCRA petition on June 18, 2015. In particular, the PCRA court relied upon an

article from the Washington Post dated April 16, 2012, reporting that the DOJ had

begun to review internally numerous cases after reports that sloppy work by FBI



6
      We recently 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.” Commonwealth v. Burton, ___ A.3d ___, 2017 WL
1149203, at *16 (Pa. 2017).



                                     [J-21-2017] - 10
forensic examiners were producing unreliable hair comparison evidence at trials. PCRA

Court Opinion at 28-29. The article reported that the DOJ had disclosed the results of

the review to the defendants in fewer than half of approximately “250-plus questioned

cases” included in the review.   Id. at 29. On July 10, 2012, the Washington Post

confirmed that the DOJ and FBI had launched a review of thousands of criminal cases

that included microscopic hair examination by the FBI.        On July 29, 2014, the

Washington Post reported that the DOJ and the FBI were in the midst of their internal

review, that most of the cases under review included flawed forensic testimony from the

FBI, and that the DOJ had begun to notify affected defendants. Id. at 30-31.

      Assuming, arguendo, that the FBI press release satisfied the timeliness

exception for newly discovered facts, the PCRA court held that Chmiel was not entitled

to relief because his claim was previously litigated.   See 42 Pa.C.S. § 9544(a)(3).

According to the PCRA court, Chmiel already had challenged the scientific validity of

Surma’s hair comparison evidence and methodology in his prior PCRA petition, when

he raised a claim of counsel ineffectiveness for failing to move for exclusion of such

evidence pursuant to Frye, and for failing to hire an expert to counter Surma’s

testimony. Finally, the PCRA court held that Chmiel had failed to establish exceptional

circumstances to warrant discovery pursuant to Rule 902(E)(1).

      We have exclusive jurisdiction over appeals of determinations made in death

penalty cases. 42 Pa.C.S. § 722(4); 42 Pa.C.S. § 9546(d). “Our review of a PCRA

court’s decision is limited to examining whether the PCRA court’s findings of fact are

supported by the record, and whether its conclusions of law are free from legal error.”

Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012). Our review of questions of




                                    [J-21-2017] - 11
law is de novo. Commonwealth v. Fahy, 959 A.2d 312, 316 (Pa. 2008). Our scope of

review is limited to the PCRA court’s findings and the evidence of record, viewed in the

light most favorable to the Commonwealth as the prevailing party. Id.

         To be eligible for post-conviction relief, a petitioner must prove by a

preponderance of the evidence that his conviction or sentence resulted from one of

several enumerated circumstances, see 42 Pa.C.S. § 9543(a)(2), and that the issues

have not been previously litigated or waived, id. § 9543(a)(3).        “A PCRA petition,

including a second or subsequent petition, must be filed within one year of a final

judgment, unless the petitioner alleges and proves that he is entitled to one of three

exceptions to this general rule, and that the petition was filed within 60 days of the date

the claim could have been presented.” Edmiston, 65 A.3d at 345; 42 Pa.C.S. § 9545(b).

This is a jurisdictional limitation. Commonwealth v. Bennet, 930 A.2d 1264, 1267 (Pa.

2007).

         As noted, Chmiel relies upon the timeliness exception for newly discovered facts.

See 42 Pa.C.S. § 9545(b)(1)(ii). This exception “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. Lambert, 884 A.2d 848, 852

(Pa. 2005). As this Court explained in Edmiston, to fall within this exception, the factual

predicate of the claim “must not be of public record and must not be facts that were

previously known but are now presented through a newly discovered source.”

Edmiston, 65 A.3d at 352.

         The PCRA court narrowly construed the newly discovered facts exception in

holding that the underlying information contained in the FBI press release was simply




                                      [J-21-2017] - 12
confirmation of information that was already available in the public domain.       In this

conclusion, the PCRA court erred.

       There are two newly discovered facts upon which Chmiel’s underlying claim is

predicated, both of which were made public for the first time in the Washington Post

article and the FBI press release. First, the FBI publicly admitted that the testimony and

statements provided by its analysts about microscopic hair comparison analysis were

erroneous in the vast majority of cases. The FBI’s revelation reverberated throughout

the country, marking a “watershed in one of the country’s largest forensic scandals,” see

Appendix B at 1, precisely because it constituted a public admission by the government

agency that had propounded the widespread use of such scientifically flawed testimony.

The revelation was the first time the FBI acknowledged that its microscopic hair analysts

committed widespread, systemic error by grossly exaggerating the significance of their

data in criminal trials. The Washington Post article acknowledged the novelty of the

FBI’s disclosures:      “While unnamed federal officials previously acknowledged

widespread problems, the FBI until now has withheld comment because findings might

not be representative.” See Appendix B at 2. Second, the FBI press release included

the revelation that the FBI had trained many state and local analysts to provide the

same scientifically flawed opinions in state criminal trials.

       With these newly discovered, material facts, the FBI press release indicates that

Surma’s trial testimony may have exceeded the limits of science and overstated to the

jury the significance of the microscopic hair analysis. Surma used microscopic hair

analysis in an attempt to link Chmiel to the crime. The FBI now has publicly repudiated

the use of microscopic hair analysis to “link a criminal defendant to a crime.”      See




                                      [J-21-2017] - 13
Appendix C at 1. The FBI’s repudiation and disclosure about its role in training state

and local forensic examiners satisfies Section 9545(b)(1)(ii), and entitles Chmiel to a

merits determination of his underlying claim.7

       Contrary to the PCRA court’s opinion and the dissenting opinion by Justice

Mundy, see Dissenting Opinion at 3, the fact that the FBI was internally reviewing the

accuracy of microscopic hair analysis or testimony is not the newly discovered fact upon

which Chmiel’s claim is based.       Rather, the newly discovered facts 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

dispersion of such scientifically flawed language to state and local analysts.


7
       To the extent Chief Justice Saylor believes that Surma’s testimony may in fact
not have constituted the type of junk science that the FBI now has repudiated, see
Concurring Opinion at 1-2, those considerations go to the merits of the underlying issue
rather than to the timeliness of the PCRA petition. See Concurring Opinion at 3;
Commonwealth v. Bennett, 930 A.2d 1264, 1271 (Pa. 2007) (“the exception set forth in
subsection (b)(1)(ii) does not require any merits analysis of the underlying claim.”).
       We disagree with Justice Mundy’s position that Chmiel must, at this juncture,
demonstrate a more “direct connection” between the FBI press release and his
underlying claim. See Dissenting Opinion at 4. Chmiel’s underlying claim is that his
conviction rests upon unreliable hair comparison evidence in violation of the United
States and Pennsylvania Constitutions. Pursuant to Bennett, all that Chmiel must
demonstrate is that “1) ‘the facts upon which the claim was predicated were unknown’
and 2) ‘could not have been ascertained by the exercise of due diligence.’” Bennett, 930
A.2d at 1272 (citing 42 Pa.C.S. § 9545(b)(1)(ii)). As explained above, Chmiel’s claim is
predicated upon the newly discovered facts contained within the FBI press release.
Such facts could not have been ascertained by the exercise of due diligence prior to the
issuance of the FBI press release.



                                     [J-21-2017] - 14
       Moreover, this Court’s analysis of the NAS Report in Edmiston does not control

the timeliness of Chmiel’s second PCRA petition. With respect to hair analysis, “the

[NAS] Report reviewed prior studies and articles to conclude that there was no scientific

support for the use of microscopic hair analysis for individualization that is not

accompanied by mitochondrial DNA analysis.” Edmiston, 65 A.3d at 351. This Court

concluded that the facts proffered in the NAS Report were not new, and had existed in

various sources prior to publication of the report.

       Although the NAS Report compiled preexisting public data and studies and

questioned the science underlying microscopic hair analysis, it unquestionably was not

an admission by the authority behind the science that the science and related testimony

were, in fact, flawed. In contrast, the FBI press release is not old wine in a new bottle,

see Appellant’s Brief at 17; 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 Chmiel was required to file his claim. This concession did not exist in the public

domain prior to April 20, 2015.

       The accepted understanding in the forensic science community of microscopic

hair comparison analysis has shifted since Chmiel’s conviction.            This shift in

understanding reveals a recognition of the flawed scientific premise that microscopic

hair comparison could be used definitively to link a criminal defendant to a crime.

Although the scientific foundation of such conclusory assertions was called into question

beginning as early as 1974, Edmiston, 65 A.3d at 352, and continually thereafter, this




                                      [J-21-2017] - 15
substantial shift in understanding was not embraced or acknowledged by the FBI until it

went public with the preliminary results of its independent review.               Scientific

breakthroughs in rejecting the ability of a forensic hair analyst to opine about statistical

significance, or to link a defendant to a crime, reached a tipping point with the 2009

NAS Report. At that time, however, the FBI remained silent on the reliability of what it

now concedes is “invalid,” “flawed,” and “faulty” evidence. See Appendix C at 1-2. The

FBI’s view in April 2015 stands in sharp contrast to its flawed understanding of the

significance of microscopic hair comparison analysis in the early 2000s.

       Nor are Chmiel’s claims previously litigated, as the PCRA court held. Section

9543(a)(3) of the PCRA provides that “an issue” has been previously litigated if “the

highest appellate court in which the petitioner could have had review as a matter of right

has ruled on the merits of the issue.” 42 Pa.C.S. § 9544(a)(2); Commonwealth v.

Beasley, 678 A.2d 773, 778 (Pa. 1986). In this context, “issue” is “the discrete legal

ground” that was forwarded to the highest appellate court and which would have entitled

the defendant to relief.   Commonwealth v. Collins, 888 A.2d 564, 570 (Pa. 2005).

Although there can be many theories and allegations in support of a single issue,

Section 9544 refers to the discrete legal ground already raised and decided. Id. An

issue is not previously litigated when it does not rely solely upon previously litigated

evidence. Commonwealth v. Miller, 746 A.2d 592, 602 n.9 & 10 (Pa. 2000).

       In his first PCRA petition, Chmiel argued that his counsel was ineffective for

failing to challenge the admissibility of Surma’s testimony pursuant to Frye, and for

failing to rebut Surma’s testimony with an expert witness. Chmiel II, 30 A.3d at 1138. In

support of this claim, Chmiel presented a forensic chemical microscopist, Samuel




                                     [J-21-2017] - 16
James Palenik. Palenik testified that, although microscopic hair analysis has value as

an investigative tool, it cannot be used for positive identification. Id. at 1139. Palenik

also testified about the flaws in Surma’s procedures. For example, Palenik testified that

Surma’s findings were not verified by an independent microscopist as was required by

the industry guidelines that were in existence at the time of Chmiel’s trial. Chmiel also

supported his claim by relying upon a series of forensic science journals, law review

articles, and newspaper reports disputing the accuracy of hair comparison evidence.

Chmiel included an FBI study comparing microscopic hair analysis to mitochondrial

DNA analysis, and identifying error rates for microscopic hair analysis.

       The Frye test is essentially a test for the admissibility of novel science, providing

that the “[a]dmissibility of [ ] scientific evidence depends upon the general acceptance of

its validity by those scientists active in the field to which the evidence belongs.”

Commonwealth v. Dengler, 890 A.2d 372, 381 (Pa. 2005) (quoting Commonwealth v.

Topa, 369 A.2d 1277, 1281 (Pa. 1977)). Chmiel’s prior post-conviction attack on the

Commonwealth’s hair analysis evidence was a challenge to the admissibility of the

science of hair microscopy, and to counsel’s failure to challenge the admissibility on this

basis. Chmiel II, 30 A.3d at 1141. In rejecting his ineffectiveness claim, this Court

observed that “many jurisdictions [ ], prior to [Chmiel’s] 2002 trial, had determined that

human hair analysis by microscopical comparison is an accepted and reliable scientific

method or technique.” Chmiel II, 30 A.3d at 1141. We were careful not to “discredit the

notion . . . that a once-viable science may lose its wide acceptance in the scientific

community . . . .” Chmiel II, 30 A.3d at 1142. Our rejection of Chmiel’s claim was

premised upon the lack of support for his view that, at the time of his 2002 trial, forensic




                                     [J-21-2017] - 17
hair microscopy was no longer an accepted science. Id. Indeed, at the time of Chmiel’s

2008 PCRA hearing, Palenik relied upon the same scientific methodology as did Surma

to testify that hair microscopy was a recognized science to which a “minimal reserve of

experts . . . exists who can critically examine the validity of a scientific determination in a

particular case.” Id. (quoting Dengler, 890 A.2d at 381 (describing one of the principal

concerns of Frye)). We found no merit to Chmiel’s Frye-based ineffectiveness claim.

       Chmiel’s current claim is premised upon the fact that, since the FBI’s April 20,

2015 admission, microscopic hair analysis no longer is considered to be scientifically

reliable. This issue does not rest upon the evidence and arguments made in Chmiel’s

prior PCRA ineffectiveness claim. Chmiel’s prior PCRA claim and the current claim are

premised upon discrete legal grounds. See Collins, 888 A.2d at 570. The current claim

is not previously litigated.

       Accordingly, the information contained within the FBI’s press release did not exist

in the public domain prior to publication of the press release. The FBI’s concessions in

its press release triggered the sixty-day window within which Chmiel had to file his

petition. See 42 Pa.C.S. § 9545(b)(2). Chmiel filed his petition within sixty days, on

June 18, 2015.      Accordingly, we reverse the order of the PCRA court dismissing

Chmiel’s petition as untimely and previously litigated, and we remand for further

proceedings.8



8
       The PCRA court denied Chmiel’s request for discovery to ascertain whether
Surma was trained by the FBI based upon its ruling that the underlying claim was time-
barred. To the extent this question is necessary to resolve the merits of Chmiel’s
underlying claim, the PCRA court should reconsider the discovery request in light of our
timeliness conclusion.



                                      [J-21-2017] - 18
Justices Todd, Donohue and Dougherty join the opinion.

Chief Justice Saylor files a concurring opinion in which Justice Baer joins.

Justice Donohue files a concurring opinion.

Justice Mundy files a dissenting opinion.




                              [J-21-2017] - 19
