                            [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                 :


                                 DISSENTING OPINION


JUSTICE MUNDY                                            DECIDED: November 22, 2017
       The Majority concludes that Appellant has satisfied his burden under the newly-

discovered fact exception of the Post Conviction Relief Act’s (PCRA) time-bar.

Specifically, the Court inherently holds that the April 20, 2015 joint press release by the

FBI and other entities underlies Appellant’s constitutional and after-discovered evidence

claims in his PCRA petition. Because I conclude an unrelated federal agency’s press

release does not render timely under the PCRA a collateral attack on a state conviction

obtained through scientific analysis conducted by a state employee, I respectfully

dissent.

       As this Court recently explained, “[w]hen considering a claim seeking to invoke

section 9545(b)(1)(ii), the petitioner must establish only that (1) the facts upon which the

claim was predicated were unknown and (2) they could not have been ascertained by

the exercise of due diligence.” Commonwealth v. Cox, 146 A.3d 221, 227 (Pa. 2016)

(citation omitted). Furthermore, this Court has explained that “[d]ue diligence does not
require perfect vigilance and punctilious care, but merely a showing the party has put

forth reasonable effort to obtain the information upon which a claim is based.” Id. at 230

(quoting Commonwealth v. Edmiston, 65 A.3d 339, 348 (Pa. 2013)).

         The Majority agrees with Appellant that the joint press release contains two new

facts.    First, the FBI’s admission that its own experts provided scientifically flawed

testimony. Appellant’s Brief at 16. In this regard, the Majority stresses that “[i]t is this

concession, not the suspected unreliability of the forensic evidence as developed

through scientific advancements, that triggers the sixty-day window within which

[Appellant] was required to file his claim.” Majority Op. at 15. Second, the Majority

highlights the FBI’s acknowledgement that it instructed various state analysts over the

years in similar methods. Id. at 14.

         By its plain text, the newly-discovered fact exception applies only to facts that are

crucial to the underlying claims. See 42 Pa.C.S. § 9545(b)(1)(ii) (stating that a petition

will be considered timely where “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”) (emphasis added). Here, Appellant’s underlying claims in his PCRA petition

are premised on the notion that forensic examiner George Surma’s hair microscopy

testimony was inaccurate and inadmissible.

         Throughout the pendency of this case, Appellant has challenged the accuracy of

hair microscopy analysis. Most importantly, Appellant’s 2008 amended PCRA petition

explicitly stated that “[a]n FBI study comparing microscopic and mitochondrial DNA

analysis of hair found that the former was wrong approximately twelve percent of the

time.” Appellant’s Amended PCRA Petition, 6/30/08, at ¶ 291. Further, an April 16,

2012 Washington Post article specifically stated that the DOJ “started reviewing cases

in the 1990s after reports of sloppy work by examiners at the FBI lab was producing




                               [J-21-2017] [MO: Wecht, J.] - 2
unreliable forensic evidence in court trials.” Commonwealth’s Answer, 10/19/15, Exhibit

A, at 1 (emphasis added). In addition, a July 10, 2012 Washington Post article noted

the DOJ and FBI “launched a [new] review of thousands of criminal cases to determine

whether any defendants were wrongfully convicted or deserve a new trial because of

flawed forensic evidence[.]” Id. at Exhibit C, at 1. The review targeted over 10,000

“cases . . . where a microscopic hair examination conducted by the FBI was among the

evidence in a case that resulted in a conviction.” Id. The Washington Post followed up

in its July 29, 2014 article stating, “[n]early every criminal case reviewed by the FBI and

the [DOJ] as part of a massive investigation[,] started in 2012[,] of problems at the FBI

lab has included flawed forensic testimony from the agency[.]” Id. at Exhibit D, at 1. Up

to that point, “the FBI had reviewed about 160 cases[.]” Id. The article continued that

the DOJ notified 23 defendants, which included 14 death-penalty prisoners in August

2013.    All of these materials, at a minimum, reveal that the FBI and the DOJ had

questioned hair microscopy analysis long before the April 20, 2015 joint press release.

        The Majority does not dispute this, but emphasizes that the FBI’s admissions and

conclusions in the joint press release are the newly-discovered facts. See Majority Op.

at 14-15. It is the Majority’s view that these are the facts “upon which [Appellant’s]

claim[s are] predicated[.]” 42 Pa.C.S. § 9545(b)(1)(ii). The Majority does not explain

how these facts are any more specific to Appellant’s case than ones from his previous

PCRA petition. For the FBI’s admissions and conclusions to be considered newly-

discovered facts, it must also be true that these purported new facts are so essential

that the instant PCRA petition could not have been filed any earlier even with the

exercise of due diligence. See Cox, 146 A.3d at 227 (citation omitted). As I stress

above, Appellant was before this very Court in 2011 claiming Surma’s analysis in his




                             [J-21-2017] [MO: Wecht, J.] - 3
specific case was flawed and “junk science.”1 See Commonwealth v. Chmiel, 30 A.3d

1111, 1137-42 (Pa. 2011); Appellant’s Amended PCRA Petition, 6/30/08, at ¶ 291. The

Majority cites no legal authority for the proposition that the FBI’s agreement with

Appellant as to the science is an essential factual predicate to a legal claim for relief in a

case where the FBI was not involved.          See Majority Op. at 15.       Absent a direct

connection between the FBI’s press release and Appellant’s claim, I cannot agree that

Appellant has met his burden under Section 9545(b)(1)(ii). 2 See Cox, 146 A.3d at 227.

       Based on the foregoing, I conclude the PCRA court properly determined that

Appellant’s petition was untimely filed, and the court lacked jurisdiction to address his

claims. See id. Because I would affirm the order of the PCRA court, I respectfully

dissent.




1
   I point out this flaw in Appellant’s argument not to show that his claims are previously
litigated within the meaning of the PCRA, but rather to show that the FBI’s admissions
are not a necessary predicate for Appellant to litigate his specific claims.
2
  In addition, I agree with the Commonwealth that Appellant has not met his burden
because the purported newly-discovered facts do not affect his case. Appellant has not
averred that he was informed the expert testimony from his trial was reviewed by the
FBI or the DOJ. To the contrary, the FBI neither conducted the relevant analysis in
Appellant’s case, nor did an FBI analyst testify at trial. Surma was employed by the
Pennsylvania State Police, and Appellant has not pointed to any evidence that supports
the conclusion that Surma received training from the FBI.
      In his discovery motion, Appellant did not state that he ever contacted Surma or
the Pennsylvania State Police to ask whether he was trained by the FBI. Additionally,
Appellant’s principal brief does not contain any argument pertaining to his motion for
discovery. Appellant’s reply brief makes a reference to his discovery motion in the
conclusion section, but does not raise any substantive argument. See Appellant’s
Reply Brief at 5.



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