Com. v. Howard, M.

J-S56012-20

                                   

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MELVIN HOWARD                              :
                                               :
                       Appellant               :   No. 2821 EDA 2019

            Appeal from the PCRA Order Entered September 11, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0304271-1988


BEFORE:      BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*

OPINION BY BENDER, P.J.E.:                             FILED NOVEMBER 9, 2022

        Appellant, Melvin Howard, appeals from the September 11, 2019 order

dismissing, as untimely, his petition filed pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. This Court originally affirmed that

order by opinion filed on April 20, 2020, therein agreeing with PCRA court that

Appellant had failed to demonstrate that the contents of a state government

report on capital punishment constituted newly-discovered facts under Section

9545(b)(1)(ii) so as to excuse the untimeliness of his petition. However, our

Supreme Court subsequently vacated our decision and remanded for this

Court to apply its holding in Commonwealth v. Small, 

 (Pa.

2020) (disavowing the ‘public record presumption’ as violative of the plain text

of Section 9545(b)(1)(ii)). See Commonwealth v. Howard, 

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S56012-20



(Pa. Super. 2021), vacated and remanded, 

 (Pa. 2021) (per

curiam order). After careful reconsideration of our prior decision and Small,

and for the reasons set forth herein, we again affirm the order dismissing

Appellant’s PCRA petition as untimely.

        The facts underlying Appellant’s conviction are not germane to this

appeal. The PCRA court described the relevant procedural history of this case

as follows:

        On September 14, 1989, a jury found [Appellant] guilty of first[-
        ]degree murder and related charges in connection with the
        stabbing death of Clarence Woodlock. During the penalty phase,
        the jury returned a verdict of death for the murder. [Appellant]
        appealed this judgment of sentence; his sentence was affirmed by
        the Pennsylvania Supreme Court on August 8, 1994.
        Commonwealth v. Howard, 

 (Pa. 1994).

        On May 11, 1995, [Appellant] filed his first PCRA petition, raising
        several claims of ineffective assistance of counsel. This petition
        was dismissed by the PCRA court and subsequently affirmed by
        the Sup[reme] Court on October 1, 1998. Commonwealth v.
        Howard, 

 (Pa. 1998). On July 17, 1999, he filed his
        second PCRA petition, claiming that the prosecutor’s use of
        peremptory strikes during jury selection was racially
        discriminatory in violation of Batson v. Kentucky, 

        (1986). This petition was dismissed as untimely on February 24,
        2000. The Supreme Court affirmed the dismissal on January 22,
        2002. Commonwealth v. Howard, 

 (Pa. 2002).

        On September 16, 2011, by agreement between the parties, the
        Honorable Carolyn Temin vacated [Appellant]’s death sentence
        and resentenced him to life imprisonment without the possibility
        of parole.[1]

____________________________________________


1   Appellant adds that:

(Footnote Continued Next Page)


                                           -2-
J-S56012-20


       On August 23, 2018, [Appellant] filed his third PCRA petition, the
       matter before this [c]ourt. [Appellant] is represented by Ayanna
       Williams, Esquire[,] of the Federal Community Defender Office for
       the Eastern District of Pennsylvania. In his petition, [Appellant]
       alleges a Batson violation based upon the findings of the [2018
       Joint State Government Commission Report on Capital
       Punishment (“JSGC Report”)]. He claims that the commission’s
       findings on jury selection in capital cases is a newly-discovered
       fact that allows him to overcome the time bar. On May 3, 2019,
       the Commonwealth filed its Motion to Dismiss. On May 21, 2019,
       [Appellant] replied to the Commonwealth’s Motion to Dismiss. On
       August 6, 2019, this [c]ourt sent [Appellant] a Notice of Intent [to
       Dismiss the Petition without a hearing] [p]ursuant to
       [Pa.R.Crim.P.] 907. On August 26, 2019, [Appellant] replied to
       the [Rule] 907 Notice. On September 11, 2019, this [c]ourt
       dismissed [Appellant]’s petition as untimely and without merit.
       On October 2, 2019, [Appellant] appealed this dismissal to the
       Superior Court.

PCRA Court Opinion (“PCO”), 6/30/20, at 2-3. The PCRA court did not order

Appellant to file a Pa.R.A.P. 1925(b) statement, and Appellant did not file one.

The court issued its Rule 1925(a) opinion on June 30, 2020.


____________________________________________


       While the second PCRA petition was pending, [Appellant] filed a
       Petition for a Writ of Habeas Corpus in the United States District
       Court for the Eastern District of Pennsylvania. The District Court
       held the federal proceedings in suspense pending the exhaustion
       of [Appellant]’s claim that, in light of Atkins v. Virginia, 

 (2001) [(prohibiting the execution of inmates with severe
       mental disabilities)], his death sentence was unconstitutional. On
       September 16, 2011, … [Judge] Temin…, by agreement of the
       parties, vacated Appellant’s death sentence and resentenced
       [him] to life in prison without the possibility of parole.

Appellant’s Post-Remand Brief at 3. Our review of the January 28, 2011
hearing addressing Appellant’s Atkins claim, and the September 15, 2011
resentencing hearing, indicates that Appellant either met the criteria for relief
under Atkins due to severe mental impairment, or that the Commonwealth
declined to oppose that claim after conducting its own investigation. See N.T.,
1/28/11, at 1-10.

                                           -3-
J-S56012-20



      Appellant previously presented the following questions for our review:

      I. Did the court below err in concluding that the claims raised in
      [Appellant]’s successor PCRA petition were untimely under 42
      Pa.C.S. § 9545(b), where the newly[-]discovered evidence
      included admissions from the [JSGC Report] regarding racial
      disparities in jury selection?

      II. Did the court below err in denying a new trial where [Appellant]
      pled and proved that racial discrimination during jury selection
      violated his rights to a jury of his peers and to be free from cruel
      punishments under Article I, Sections 6 and 13 of the
      Pennsylvania Constitution?

Appellant’s Pre-Remand Brief at 2.

      In our prior Opinion, we did not reach Appellant’s second question,

having concluded that the JSGC Report did not meet the criteria for a newly-

discovered fact under Section 9545(b)(1)(ii), because there was “no

revelation in the JSGC Report of a specific error in Appellant’s case, an

admission of such an error by the prosecutor or the District Attorney’s office,

nor an admission of a systemic error that necessarily impacted Appellant’s

case.”   Howard, 249 A.3d at 1239.       In its per curiam order vacating our

decision, the Supreme Court did not explain its rationale for remanding in light

of Small.   Although this Court did not explicitly rely on the public record

presumption in affirming the PCRA court’s order denying relief, Justice

Dougherty, in a concurring statement joined by Justice Mundy, explained that

there were “stray statements” in our decision, including block-quoted portions

of the PCRA court’s Rule 1925(a) opinion, “that could arguably be interpreted

as conflicting with the holding in Small[,]” and that this Court had expressed




                                     -4-
J-S56012-20



its agreement with those block quotes without qualification. Howard, 266

A.3d at 1069–70 (Dougherty, J., concurring).2

       Upon    remand,      we    granted      Appellant’s    unopposed   motion   for

supplemental briefing on January 28, 2022.              Appellant now presents the

following questions for our review:

       I. Is remand to the [PCRA court] appropriate where the
       Pennsylvania Supreme Court has directed that this PCRA petition
       be analyzed under … Small[], and where the [PCRA court] has
       not yet had an opportunity to do so?

       II. Did the [PCRA court] err in concluding that the claims raised in
       [Appellant]’s … [PCRA] petition were untimely under 42 Pa.C.S. §
       9545(b), where the new facts included recent findings from the
       [JSGC] regarding racial discrimination in jury selection?

       III. Did the [PCRA court] err in considering [Appellant]’s claims on
       the merits after determining that it lacked jurisdiction?

       IV. Did the [PCRA court] err in denying the PCRA petition on the
       merits where [Appellant] showed that racial discrimination during
       jury selection violated his rights under Article I, Sections 6 and 13
       of the Pennsylvania Constitution?

Appellant’s Post-Remand Brief at 2.

       As noted above, the Supreme Court of Pennsylvania has directed this

Court to reconsider, in light of Small, our decision affirming the denial of

Appellant’s PCRA petition as untimely.            In general, we review “an order

dismissing or denying a PCRA petition” as to “whether the findings of the PCRA
____________________________________________


2  Justice Dougherty further opined that he did              not believe our decision
“intended to” violate, nor “actually” violated the           holding in Small, but he
believed a remand to this Court was appropriate              because “it could appear”
that this Court had “endorsed statements by the              PCRA court regarding the
now-defunct public record presumption[.]” Id.                 at 1070 (Dougherty, J.,
concurring).

                                           -5-
J-S56012-20



court are supported by the record and are free from legal error.”

Commonwealth v. Reid, 

, 405–06 (Pa. 2021). Appellant “has

the burden to persuade this Court that the PCRA court erred and that such

error requires relief.”   Commonwealth v. Wholaver, 

, 144–

45 (Pa. 2018).

      As to legal questions, “we apply a de novo standard of review to the

PCRA court’s legal conclusions[,]” Commonwealth v. Roney, 

,

603 (Pa. 2013), and this Court “may affirm a PCRA court’s order on any legal

basis.” Commonwealth v. Parker, 

, 595 (Pa. Super. 2021).

As to factual questions, “our 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” in the lower court. Commonwealth v. Burkett, 

, 1267 (Pa. Super. 2010). “Great deference is granted to the findings of

the PCRA court, and these findings will not be disturbed unless they have no

support in the certified record.” Commonwealth v. Daniels, 

,

798 (Pa. Super. 2008).

      Here, the PCRA court denied Appellant’s petition as untimely, and the

PCRA’s time limitations implicate our jurisdiction and may not be altered or

disregarded in order to address the merits of a petition. See Commonwealth

v. Bennett, 

, 1267 (Pa. 2007). Under the PCRA, any petition

for post-conviction relief, including a second or subsequent one, must be filed

within one year of the date the judgment of sentence becomes final, unless




                                     -6-
J-S56012-20



one of the following exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii)

applies:

      (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 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). Additionally, Section 9545(b)(2) requires that

any petition attempting to invoke one of these exceptions “be filed within one

year of the date the claim could have been presented.”                42 Pa.C.S. §

9545(b)(2).

      In his second issue, Appellant argues that the trial court erred in

dismissing his PCRA petition as untimely, contending that his discovery of the

JSGC Report and its contents constitute new facts that excuse the

untimeliness of his petition under Section 9545(b)(1)(ii). Relatedly, in his first

issue, Appellant advocates that we remand to the PCRA court so that it can



                                         -7-
J-S56012-20



reconsider his petition in light of Small, after holding a hearing to consider

Appellant’s factual averments regarding his knowledge of, and due diligence

in, discovering the new facts alleged. For ease of disposition, we start our

analysis with Appellant’s second claim.

       In his pre-remand brief, Appellant described the new facts as follows:

       Prompted by troubling reports from the American Bar Association
       … and the Pennsylvania Supreme Court’s Committee on Racial and
       Gender Bias in the Justice System…, the Pennsylvania Senate
       directed the JSGC “to conduct a study on capital punishment in
       this Commonwealth,” covering eighteen specific topics and
       problems. Pa. Sen. Res. 6 at 2-6 (Dec. 6, 2011). On June 25,
       2018, the JSGC issued its report entitled “Capital Punishment in
       Pennsylvania: The Report of the Task Force and Advisory
       Committee.”[3]

       The JSGC Report revealed that racial disparities in jury selection
       pervasively and persistently infected the Commonwealth’s capital
       prosecution system and that Pennsylvania should adopt structural
       and procedural reforms to address such defects. [Appellant]’s
       petition for PCRA and habeas relief, which raised constitutional
       violations arising from discriminatory jury selection practices in
       capital prosecutions, was filed within sixty days of the publication
       of the JSGC Report.

Appellant’s Pre-Remand Brief at 4 (footnote omitted). He further argued that:

       The discriminatory exercise of peremptory challenges against
       black prospective jurors in [Appellant]’s case was consistent with
       the systematic racial discrimination in jury selection identified in
       the JSGC Report. The prosecutor in [Appellant]’s case struck 1.5
       times as many black prospective jurors as white, which is
       statistically significant. The intentional and pervasive practice of
       race discrimination infringed on [Appellant]’s rights to be tried by
       a jury that was representative of the community and subjected


____________________________________________


3As of the date of the filing of this decision, the JSGC Report can be found at
http://jsg.legis.state.pa.us/publications.cfm?JSPU_PUBLN_ID=472.

                                           -8-
J-S56012-20


      him to a cruel punishment, in violation of Pennsylvania’s
      Constitution.

Id. at 42.

      In his post-remand brief, Appellant further maintains that:

      Most relevant to [Appellant]’s instant petition, the JSGC Report
      found that “the death qualification process systematically
      eliminates jurors who belong to certain social and demographic
      groups and can also change the way in which case facts are
      interpreted and discussed by a jury.” [JSGC Report] at 11
      (quotations omitted). Death qualification skews jury composition
      “in ways that consistently disadvantage capital defendants.” Id.
      at 26. The report recommended a number of structural reforms,
      including the “enactment of a Racial Justice Act to statutorily allow
      death sentences to be challenged on a statistical basis,” i.e.,
      without     necessarily   establishing     purposeful,    conscious
      discrimination. Id. at 12, 31.

Appellant’s Post-Remand Brief at 10.

      Appellant filed the petition under review on August 23, 2018, “within

sixty days of the publication of the JSGC Report[.]” Id. at 11. Appellant avers

that he

      did not know, prior to the JSGC Report, that “the death
      qualification process systematically eliminates jurors who belong
      to certain social and demographic groups,” which in turn,
      “change[s] the way in which case facts are interpreted and
      discussed by a jury.” JSGC Report [at] 11. Nor did [Appellant]
      know that the commission would recommend a new procedure for
      granting relief in cases, like his own, that involve racial disparities.
      Id. at 12, 31. [Appellant] could neither have learned these facts
      through due diligence nor anticipated that the JSGC would have
      found such systematic defects in the jury selection process in
      Pennsylvania capital cases. [Appellant] therefore meets the
      timeliness standard under [Section] 9545(b)(1)(ii).

Appellant’s Post-Remand Brief at 12. As the PCRA court declined to hold a

hearing, it made no factual findings regarding Appellant’s averments that



                                       -9-
J-S56012-20



these ostensible new facts were not previously known to him and that he could

not have ascertained those facts at an earlier time.

      As this Court has previously stated:

      The timeliness exception set forth in Section 9545(b)(1)(ii)
      requires a petitioner to demonstrate he did not know the facts
      upon which he based his petition and could not have learned those
      facts earlier by the exercise of due diligence. Commonwealth v.
      Bennett, 

, 1271 (Pa. 2007).             Due diligence
      demands that the petitioner take reasonable steps to protect his
      own interests. Commonwealth v. Carr, 

, 1168
      (Pa. Super. 2001). A petitioner must explain why he could not
      have learned the new fact(s) earlier with the exercise of due
      diligence. Commonwealth v. Breakiron, 

, 98 (Pa.
      2001); Commonwealth v. Monaco, 

, 1080 (Pa.
      Super. 2010)…. This rule is strictly enforced. 

 Additionally,
      the focus of this exception “is on the newly[-]discovered facts, not
      on a newly[-]discovered or newly[-]willing source for previously
      known facts.” Commonwealth v. Marshall, 

, 720
      (Pa. 2008)….

      The timeliness exception set forth at Section 9545(b)(1)(ii) has
      often mistakenly been referred to as the “after-discovered
      evidence” exception. Bennett, supra at … 1270. “This shorthand
      reference was a misnomer, since the plain language of subsection
      (b)(1)(ii) does not require the petitioner to allege and prove a
      claim of ‘after-discovered evidence.’” Id. Rather, as an initial
      jurisdictional threshold, Section 9545(b)(1)(ii) requires a
      petitioner to allege and prove that there were facts unknown to
      him and that he exercised due diligence in discovering those facts.
      See 42 Pa.C.S. § 9545(b)(1)(ii); Bennett, supra.                 Once
      jurisdiction is established, a PCRA petitioner can present a
      substantive after-discovered-evidence claim. See 42 Pa.C.S. §
      9543(a)(2)(vi) (explaining that to be eligible for relief under PCRA,
      petitioner must plead and prove by preponderance of evidence
      that conviction or sentence resulted from, inter alia, unavailability
      at time of trial of exculpatory evidence that has subsequently
      become available and would have changed outcome of trial if it
      had been introduced). In other words[:]

         [S]ubsection (b)(1)(ii) has two components, which must be
         alleged and proved. Namely, the petitioner must establish

                                     - 10 -
J-S56012-20


        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. If the petitioner alleges and
        proves these two components, then the PCRA court has
        jurisdiction over the claim under this subsection.

     Bennett, … 930 A.2d at 1272 (internal citations omitted)
     (emphasis in original). Thus, the “new facts” exception at Section
     9545(b)(1)(ii) does not require any merits analysis of an
     underlying after-discovered-evidence claim. Id. at … 1271.

Commonwealth v. Brown, 

, 176–77 (Pa. Super. 2015) (some

citations reformatted; footnote omitted).

     Appellant argues that the PCRA court’s reasoning for deeming his PCRA

petition untimely was undoubtably grounded in the now-defunct public record

presumption. The PCRA court determined that Appellant could not invoke the

newly-discovered evidence exception set forth in Section 9545(b)(1)(ii)

because its

     review of the JSGC [R]eport shows that the underlying data used
     to perform the statistical analysis was not new and was part of the
     public domain before the report’s release. Since the underlying
     data was known and available to the public for years prior to the
     report’s release, and [Appellant] has been represented by counsel
     so the pro se defendant exception does not apply, this report
     cannot be considered a newly-discovered fact for purposes of
     overcoming the time bar.

PCO at 8. In light of Small, this rationale for deeming Appellant’s petition

untimely without exception is unsustainable.

     The public record presumption generally held that information available

in the public record could not be deemed ‘unknown to the petitioner’ for

purposes of the timeliness exception set forth in Section 9545(b)(1)(ii). See

Commonwealth v. Burton, 

, 624–25 (Pa. 2017) (compiling


                                   - 11 -
J-S56012-20



cases applying the public record presumption).      The presumption originated

in Commonwealth v. Lark, 

, 588 (Pa. 2000), overruled by

Small, with a “two-sentence discussion, relegated to a footnote” that “did not

address the relevant statutory language” of Section 9545(b)(1)(ii). Burton,

158 A.3d at 632.        Citing that footnote from Lark, the public record

presumption was later applied by our Supreme Court in cases such as

Commonwealth v. Whitney, 

, 478 (Pa. 2003) (holding that a

study of the criminal justice system did not constitute newly-discovered

evidence under Section 9545(b)(1)(ii) where the underlying statistics were

part of the public record), overruled by Small, 238 A.3d at 1286 n.12, and

Commonwealth v. Chester, 

, 523 (Pa. 2006) (holding

evidence of an arrest was not ‘unknown’ to the petitioner because it was a

matter of public record), overruled by Small, 238 A.3d at 1286 n.12.

      The resiliency of the public record presumption was first questioned in

Bennett. Bennett had argued that his discovery of the dismissal of his prior

appeal (due to his prior counsel’s failure to file a brief) was a newly-discovered

fact for purposes of Section 9545(b)(1)(ii), even though the dismissal of his

appeal had been a matter of public record for some time. Bennett, 930 A.2d

at 1274. Distinguishing the matter from the circumstances in Chester, the

Bennett Court determined that it was “illogical to believe that a counsel that

abandons his or her client for a requested appeal will inform his client that his

case has been dismissed because of his own failures” and, “in light of the fact

that counsel abandoned” his incarcerated client, there was “no other way in

                                     - 12 -
J-S56012-20



which a prisoner could access” the public record that revealed that the appeal

had been dismissed.    Id. at 1275.    Thus, in Bennett, the Supreme Court

began to recognize cracks in the logic underlying the public record

presumption, particularly with respect to incarcerated, pro se litigants.

      Those cracks widened in Burton, wherein our Supreme Court

categorically rejected the application of the public record presumption to

incarcerated, pro se litigants. Burton, 158 A.3d at 638 (holding 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”). In 1993, Burton was convicted of first-degree murder

in a case involving the death of his fellow inmate, Seth Floyd. Id. at 621.

Burton’s co-defendant, Melvin Goodwine, was convicted of conspiracy. Id. In

2009, Goodwine filed an expungement motion in which he admitted to killing

Floyd in self-defense, and further stated that he was advised not to raise that

defense during his 1993 joint trial with Burton. Id. at 622. Burton did not

discover Goodwine’s expungement motion until 2013, when his case was

being reviewed by a staff attorney with the Pennsylvania Innocence Project.

Id.   Citing Bennett, Burton filed a PCRA petition alleging that his 2013

discovery of Goodwine’s 2009 expungement motion met the requirements of

Section 9545(b)(1)(ii). Id. The PCRA court denied his petition as untimely.

On appeal, this Court held that the public record presumption was not

absolute, holding instead that “the presumption of access to information

available in the public domain does not apply where the untimely PCRA

                                     - 13 -
J-S56012-20



petitioner is pro se” and incarcerated. Commonwealth v. Burton, 

, 1073 (Pa. Super. 2015) (en banc).

       Our Supreme Court affirmed, finding that “the application of the public

record presumption to pro se prisoners is contrary to the plain language of

subsection     9545(b)(1)(ii)     and     was      imposed   without   any   apparent

consideration of a pro se prisoner’s actual access to information of public

record.” Burton, 158 A.3d at 638. The Burton Court further advised that,

       in determining whether a petitioner qualifies for the exception to
       the PCRA’s time requirements pursuant to subsection
       9545(b)(1)(ii), the PCRA court must first determine whether “the
       facts upon which the claim is predicated were unknown to the
       petitioner.” In some cases, this may require a hearing. After the
       PCRA court makes a determination as to the petitioner’s
       knowledge, it should then proceed to consider whether, if the facts
       were unknown to the petitioner, the facts could have been
       ascertained by the exercise of due diligence, including an
       assessment of the petitioner’s access to public records.

Id. (footnote omitted).

       Thus, Burton effectively created an exception to the public record

presumption, an exception the PCRA court refused to apply in this case

because Appellant had been represented by counsel since his 1989

conviction.4 PCO at 8. However, the Burton exception to the public record

presumption was short-lived, as our Supreme Court ultimately abandoned the

public record presumption entirely in Small.

____________________________________________


4 It is evident that Appellant was represented by counsel during the litigation
of his prior PCRA petitions, although it is not clear if he has been continuously
represented at all times since his conviction.


                                          - 14 -
J-S56012-20



       Small and his co-defendant, Larry Bell, were convicted in 1983 of

second-degree murder and related offenses that occurred during the armed

robbery of a marijuana dealer in 1981. Small, 238 A.3d at 1271–72.           In

2014, Small filed a facially untimely PCRA petition, his fourth, alleging his

discovery of Bell’s testimony at a 1993 PCRA hearing that differed from his

testimony at trial.      Id. at 1272-74.       It was undisputed “that the 1993

transcripts were public records.” Id. at 1274. However, Small first discovered

the existence of the transcripts in 2013 in a Superior Court opinion from 1998,

and he filed a PCRA petition thirteen months later. Id. Small subsequently

exercised “exceptional diligence” in his attempts to obtain the 1993 transcript

until, finally, with the assistance of counsel, he obtained a copy in September

of 2017. Id. Small then filed an amended petition within 60 days. Id.5 The

PCRA court determined that Small met the requirements of Section

9545(b)(1)(ii), thereby excusing the facial untimeliness of his petition, and

further determined that he was entitled to a new trial on the merits of his

after-discovered evidence claim. Small, 238 A.3d at 1275.

       This Court reversed following the Commonwealth’s appeal, holding,

inter alia, “that Bell’s 1993 transcripts were a matter of public record, and

therefore could not be considered ‘unknown’ to Small[,]” and that the Burton

____________________________________________


5 Prior to December 24, 2018, Section 9545(b)(2) provided only a 60-day
window to file a petition invoking a timeliness exception after the new claim
could have been presented. See Commonwealth v. Tedford, 

,
902 n.7 (Pa. 2020). Here, because Appellant filed his petition on August 23,
2018, he was subject to the 60-day time limit.

                                          - 15 -
J-S56012-20



exception to the public record presumption did not apply because Small had

been represented by counsel from 2008 to 2013. Id. at 1275-76 (citations to

the Superior Court’s memorandum decision omitted).         Our Supreme Court

ultimately affirmed the Superior Court’s order on alterative grounds, holding

that Small had failed to satisfy the terms of Section 9545(b)(1)(ii) because he

had “known the substance of Bell’s version of the events since their joint trial

in 1983, and neither Bell’s later summary nor his omission of minor details

constitute[d] a ‘new story’ of the events.” Id. at 1287. However, the Small

Court rejected the lower court’s application of the public record presumption,

holding that

      because the public record presumption stands in tension with the
      plain language of the newly discovered fact exception, because we
      have recognized its deficiencies already in Burton, and because
      the instant appeal presents a direct challenge to its continued
      application, it is our prerogative and our duty to steer our
      precedent back toward the language of the statute from which we
      have strayed.       Accordingly, we disavow the public record
      presumption. To the extent that earlier decisions, including our
      own, relied upon and applied that presumption to reject a
      petitioner’s claim, they now are overruled.

Id. at 1285–86 (footnotes omitted).

      Instantly, the PCRA court clearly applied the public record presumption

in deeming Appellant’s petition untimely without exception.      See PCO at 8

(determining that the JSGC Report could not “be considered a newly-

discovered fact for purposes of overcoming the time bar” because “the

underlying data was known and available to the public for years prior to the

report’s release,” and because “the pro se defendant exception[,]” i.e., the


                                     - 16 -
J-S56012-20



Burton exception to the public record presumption, did not apply due to

Appellant’s prior representation by counsel). Since the PCRA court ruled on

that basis, and without the benefit of an evidentiary hearing, it failed to

evaluate Appellant’s factual averments regarding the two elements necessary

to prove an exception under Section 9545(b)(1)(ii), those averments being

that “the JSGC Report’s conclusions and recommendations, and much of its

underlying data, were unknown” to Appellant before the report’s publication,

Appellant’s PCRA Petition, 8/23/18, at 6 ¶ 17, and that he “could not have

previously discovered the factual predicates for his claims by exercising due

diligence[,]” id. at 7 ¶ 18. Hence, Appellant argues in his first issue that this

Court should remand for the PCRA court to assess these factual averments.

       However, the PCRA court provided an alternative legal analysis for

determining that Appellant failed to prove the applicability of the newly-

discovered evidence exception, based on its reading of the JSGC report

juxtaposed against our Supreme Court’s decision in Commonwealth v.

Chmiel, 

 (Pa. 2017).6              PCO at 8-9.   Thus, we now turn to

consider the PCRA court’s alternative analysis, which first requires some

discussion of our Supreme Court’s ruling in Chmiel.


____________________________________________


6 Appellant repeatedly cited Chmiel in his petition. Particularly relevant here,
Appellant cited Chmiel for the proposition that “a governmental agency’s
public admission of widespread, systemic error in criminal prosecutions, like
the JSGC Report…, itself represents a new fact triggering the 60-day time
period to file a successive PCRA claim.” Appellant’s PCRA Petition, 8/23/18,
at 6-7 ¶ 17.

                                          - 17 -
J-S56012-20



      In Chmiel, the appellant filed an untimely 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….” Chmiel, 173 A.3d at 621. Chmiel argued that

an FBI press release (and a related Washington Post article) regarding

historically flawed hair analysis constituted new facts that satisfied the

timeliness exception of Section 9545(b)(1)(ii). The press release was

      entitled “FBI Testimony on Microscopic Hair Analysis Contained
      Errors in at Least 90 Percent of Cases in Ongoing Review.” In the
      press release, the FBI publicly disclosed the initial findings of an
      ongoing investigation undertaken jointly by the Department of
      Justice…, the FBI, the Innocence Project, and the National
      Association of Criminal Defense Lawyers…. 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 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….”

Id. (citations omitted).

      Importantly, 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.” Id. at

625. In denying Chmiel’s petition, the PCRA court had “narrowly construed


                                     - 18 -
J-S56012-20



the newly[-]discovered[-]facts exception in holding that the underlying

information contained in the FBI press release was simply confirmation of

information that was already available in the public domain,” relying on our

Supreme Court’s decision in Commonwealth v. Edmiston, 

 (Pa.

2013), overruled by Small. Id. at 625-26. The Chmiel Court summarized

its prior holding in Edmiston as follows:

      Edmiston involved a PCRA petition filed by a capital 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 a
      newly discovered source.”        Edmiston, 65 A.3d at 352.6


                                    - 19 -
J-S56012-20


     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.
        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.” … Burton, … 158 A.3d [at] 637-
        38….

Chmiel, 173 A.3d at 623–24.

     The Chmiel Court ultimately rejected the PCRA court’s reliance on

Edmiston, distinguishing Chmiel’s claim as follows:

        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,” 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

                                   - 20 -
J-S56012-20


           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.”
           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[7] 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.” 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.

Chmiel, 173 A.3d at 625–26 (emphasis added; citations to the record

omitted).

        Here, in its alternative analysis, the PCRA court found that

        the JSGC [R]eport is substantially different than the press release
        in Chmiel. The press release in Chmiel contained an admission
        of improper scientific analysis from the prosecutorial agency that
        had been convicting defendants using this analysis. The JSGC
        [R]eport, on the other hand, was released by an independent and
        bipartisan governmental agency and does not include any
        language that could be considered an admission of error by
        prosecutors or the judiciary with respect to the imposition of the
        death penalty. [Appellant] claims that the report contains “the
        admission of widespread, systemic error in criminal prosecutions,”
        however, this [c]ourt’s review of the text of the report did not
        uncover such an admission. While the report does note areas of
        concern and suggests recommendations, it does not go so far as
____________________________________________


7   Surma testified at Chmiel’s trial as the Commonwealth’s hair analysis expert.


                                          - 21 -
J-S56012-20


      to admit widespread, systemic error in criminal prosecutions. It
      should also be noted that the task force members behind the
      report are Pennsylvania state senators, unlike the press release in
      Chmiel which was released by the FBI, a federal law enforcement
      agency. Since the holding in Chmiel is inapplicable, this [c]ourt
      properly dismissed [Appellant]’s petition as untimely since the
      JSGC [R]eport was not a newly-discovered fact capable of
      overcoming the PCRA’s time bar.

PCO at 8-9.

      Thus, rather than relying on the Burton exception to the public record

presumption in determining that Appellant failed to satisfy the requirements

of Section 9545(b)(1)(ii), the PCRA court’s alternative analysis instead

focused on deficiencies regarding the nature and the source of the ostensible

new evidence. The court indicated that, unlike the FBI’s admission in Chmiel,

which had a direct link to expert evidence admitted in Chmiel’s trial to prove

his guilt, the JSGC Report contains no analogous admissions of misconduct or

faulty science regarding the selection of Appellant’s jury by either the

investigating agency involved in Appellant’s case or by the District Attorney’s

Office that prosecuted him.     Thus, the PCRA court was unconvinced by

Appellant’s reliance on Chmiel as to whether he satisfied the requirements of

Section 9545(b)(1)(ii).

      The Commonwealth agrees with the PCRA court that there is no

“analogous link” between the content of the JSGC Report in this case and the

FBI’s admissions in Chmiel.      Commonwealth’s Post-Remand Brief at 19

(stating that Chmiel’s petition asserted that “the forensic examiner who

testified in [Chmiel’s] case was trained by the FBI and provided that same



                                    - 22 -
J-S56012-20



scientifically unsupportable testimony[,]” which “demonstrated a link between

the newly discovered fact and [Chmiel’s] conviction, requiring a remand for

further factfinding”). By contrast, nothing in the JSGC Report speaks directly

to the manner or circumstances in which Appellant’s jury was selected beyond

generalities about the potential of death-qualified juries being biased against

capital defendants.

      The Commonwealth concedes that, “in certain places, the [JSGC] Report

does, in fact, contain new facts” that might satisfy the requirements of Section

9545(b)(1)(ii), but that Appellant has failed to cite those facts or tie them to

a claim he could potentially raise if he overcomes the PCRA’s time bar. Id. at

5. The Commonwealth acknowledges that

      no litigant could reasonably be expected to independently acquire
      statistical data from the Department of Corrections regarding the
      number of capitally sentenced individuals with IQs of 75 or lower.
      JSGC Report[] at 7-8, 120-[]21. Nor would such a litigant have
      access [to] statistics regarding the number of capitally sentenced
      individuals receiving mental health services. [Id.] at 9-10, 124-
      []25.

      Particularly after Small, supra, the Commonwealth also agrees
      that statistics regarding the number of death sentences imposed
      on defendants represented by court-appointed counsel were not
      available before the [JSGC] Report. JSGC Report[] at 17, 75, 89.
      Similarly, prior to the [JSGC] Report, statistics regarding the
      percentage of death sentences overturned statewide due to
      ineffective assistance of counsel could not realistically have been
      developed independently by individual litigants. [Id.] at 183-
      []84. The Commonwealth agrees that statistical data such as this,
      which took the preparers of the [JSGC] Report some six years to
      gather and evaluate, constitute new evidence that a PCRA
      petitioner could not have discovered sooner through the exercise
      of due diligence. Small, 238 A.3d at 1286.



                                     - 23 -
J-S56012-20



Commonwealth’s Post-Remand Brief at 7-8.

     However, the Commonwealth notes that the JSGC Report separately

     refers to conclusions drawn by other outside researchers and
     entities—conclusions not based on any statistical data
     independently developed or verified by the actual preparers of the
     [JSGC] Report. Often these conclusions appear in quotation
     marks. Although it states that an outside researcher reached
     these conclusions, the [JSGC] Report does not explicitly vouch for
     those conclusions as its own.

     Such instances specifically include the passages cited in
     [Appellant]’s brief. See[,] e.g.[,] JSGC Report[] at 11, 146[,]
     cited in [Appellant’s Post-Remand Brief] at 10. There, in a context
     distinct from any discussion of intentional discrimination by
     prosecutors in the selection of capital juries, the [JSGC] Report
     separately discusses the “death qualification” process.          In
     addressing the possible impact of that process on the composition
     of capital juries, the [JSGC] Report quotes an article written by
     Logan A. Yelderman, et. al., which appeared in a book entitled
     Advances in Psychology and Law. JSGC Report[] at 11 n.73.
     According to the Yelderman article:

        Research examining the effects of death qualification on jury
        composition suggests that death qualification often results
        in juries that are biased in ways that consistently
        disadvantage capital defendants.

     [Id.] at 11, 146 (emphasis added).3 Importantly, although it
     notes certain conclusions drawn by the Yelderman article, the
     [JSGC] Report does not explain or examine the “research”
     underlying those conclusions.      Nor does the [JSGC] Report
     explicitly endorse the validity of Professor Yelderman’s
     conclusions, which “suggest” that death qualification can
     inadvertently operate to exclude members of certain groups,
     where disapproval of the death penalty is more pervasive.
     Significantly, the [JSGC] Report does not explain how Yelderman
     reached his conclusions and does not discuss any statistical
     studies that support his conclusions. [Id.] at 146.
        3 Although the [JSGC] Report does not explain who the
        author is, an internet search discloses that Yelderman is “an
        assistant professor of psychology in the Prairie View A&M
        University College of Juvenile Justice and Psychology. He

                                   - 24 -
J-S56012-20


         has a Ph.D. in Social Psychology from the University of
         Nevada, Reno. His research lies at the intersection of
         religion, social psychology, and law. His primary interests
         involve topics associated with religious fundamentalist
         beliefs, insanity defense and death penalty decision-making,
         emotion, and parole. Additional research interests involve
         problem-solving courts, particularly juvenile drug treatment
         courts.” http://www.pvamu.edu › cojjp.

      Similarly, the Report quotes that portion of the Yelderman article
      that states that “the death qualification process potentially results
      in biased juries.” [Id.] at 145 (emphasis added). The Report
      quotes the same article to the effect that “[t]he process likely
      excludes those who strongly oppose the death penalty at a higher
      rate than those who strongly support the death penalty.” [Id.] at
      146 (emphasis added). Once again, the Report does not evaluate
      or explain the basis for Yelderman’s conclusions regarding the
      “potential” or “likely” impact of the death qualification process.
      The [JSGC] Report notes, however, that in Wainwright v. Witt,
      

 (1985), the United States Supreme Court upheld the
      process whereby participation in capital juries is limited to
      venirepersons who are willing to consider imposing the death
      penalty.

      Notably, although [Appellant] claims that the Commonwealth
      purposely employed discriminatory jury selection practices here,
      his brief does not cite any section of the Report that specifically
      addresses that issue.

Commonwealth’s Post-Remand Brief at 8-11.

      The Commonwealth consequently maintains that Appellant cannot

benefit from the holding in Small, “because those sections of the JSGC Report

cited in both [Appellant’s] PCRA petition and his Brief do not contain the type

of new facts that can be found elsewhere in the Report--i.e.[,] factual

determinations based on statistics compiled and evaluated by the preparers

of the [JSGC] Report themselves.” Id. at 15. The Commonwealth argues

that “the portions relied upon by” Appellant are instead “conclusions drawn by



                                     - 25 -
J-S56012-20



outside researcher Logan A. Yelderman regarding the impact of the death

qualification process on the composition of capital juries.” Id. at 16. The

Commonwealth notes that Yelderman “was not a member of the Advisory

Committee that prepared the [JSGC] Report[,]” the JSGC Report never

“explain[ed] the basis for Yelderman’s conclusions[,]” and that “the preparers

of the Report themselves [did not] independently verif[y] Yelderman’s

conclusions, either on the basis of Yelderman’s research or on the basis of

their own evaluation of statistical data from Pennsylvania.”         Id.   The

Commonwealth observes that “the quotations from the Yelderman article

seemingly address possibilities and likelihoods, rather than statistically

verifiable facts.” Id.

      The   Commonwealth     contrasts   these   references   to   Yelderman’s

conclusions with portions of the JSGC Report that constitute statements “of

fact based on statistical data compiled by the preparers” of the JSGC Report.

Id. at 17. Furthermore, the Commonwealth argues that, “even if the [JSGC]

Report contained a new fact about the death qualification process, that new

fact would not support [Appellant]’s claim of purposeful prosecutorial

discrimination against African American venirepersons during his own trial”

because Appellant’s “brief does not cite to any facts in the Report that

specifically address issues relating to Batson v. Kentucky, 

(1986).” Id. at 18. The Commonwealth concludes that since Appellant’s “new

fact[s are] not based on statistics compiled and evaluated by the preparers of

the JSGC Report and” where such facts would “not support [his] claim of

                                    - 26 -
J-S56012-20



purposeful discrimination, this Court should affirm the PCRA court’s decision.”

Id. at 20.

      Appellant responds that the Commonwealth misconstrues the nature of

the “new facts” he cites from the JSGC Report.             He maintains that,

“[c]onsistent with his PCRA [P]etition, in both his pre- and post-remand

briefing to this Court, [Appellant] argued that the JSGC’s admissions and

recommendation related to race discrimination in jury selection are the new

facts on which he bases his PCRA petition.” Appellant’s Post-Remand Reply

Brief at 4. Specifically, Appellant first argues that:

      The PCRA Petition relies on the JSGC’s admission, following an
      internal investigation, that juries selected in Pennsylvania capital
      cases like [Appellant]’s were shaped by a discriminatory jury
      selection process that eliminated certain demographic groups.
      See PCRA Petition [at] ¶¶ 11, 15, 17, 33. The JSGC based this
      conclusion, in part, on a survey of existing social science
      literature. However, contrary to the Commonwealth’s assertion,
      [Appellant] does not contend that the discussion of the social
      science literature itself is a “new fact” but rather that it is the
      JSGC’s admission that gives rise to the PCRA court’s jurisdiction.

Appellant’s Post-Remand Reply Brief at 2-3.

      Second, Appellant relies on “the recommendation endorsed by the JSGC

to remedy the systemic errors in capital jury selection….” Appellant’s Post-

Remand Reply Brief at 3 (emphasis in original). He avers that

      [t]he JSGC [Report] recommended the “enactment of a Racial
      Justice Act to statutorily allow death sentences to be challenged
      on a statistical basis,” i.e., without necessarily establishing
      purposeful, conscious discrimination. See, e.g., PCRA Petition
      [at] ¶ 11. It would have been nonsensical for the JSGC to make
      such a recommendation without first recognizing that the problem



                                      - 27 -
J-S56012-20


       of racial discrimination infected capital prosecutions in the
       Commonwealth.

Appellant’s Post-Remand Reply Brief at 3-4.

       In contrast with the petitioner’s successful invocation of Section

9545(b)(1)(ii) based upon the FBI’s admissions in Chmiel, we agree with the

Commonwealth that, here, the alleged admissions in the JSGC Report does

not constitute new facts upon which Appellant might eventually obtain relief.

Appellant has failed to cite evidence from the JSGC Report of the sort of

widespread, systemic error akin to the new facts addressed in Chmiel. In

Chmiel, the FBI admitted that its hair analysis was flawed in the vast majority

of cases, and that its own experts, and the experts trained by the FBI, had

given fatally flawed scientific opinion testimony concerning the strength of

that evidence in virtually every case in which hair analysis was presented.8

That provided a distinct and concrete link to the flawed evidence and related

scientific   opinion    testimony     presented    at   Chmiel’s   trial,   where   the

Commonwealth had called a witness, Surma, who had made the problematic

scientific claims on behalf of the prosecution. Thus, on their face, the new

facts in Chmiel held the potential to afford Chmiel a new trial based on after-

discovered evidence that directly refuted some of the evidence that had been

used to convict him.


____________________________________________


8 “[T]he 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.” Chmiel, 173 A.3d at 625 (emphasis added).


                                          - 28 -
J-S56012-20



        There is no analogous admission in the instant case regarding the

prosecutor’s ostensible, discriminatory exclusion of jurors at Appellant’s

capital trial based on race, nor for any other issue regarding juror bias due to

the death qualification process. There has been no revelation in the JSGC

Report of a specific error in Appellant’s case, an admission of such an error by

the prosecutor or the District Attorney’s office, nor an admission of a systemic

error that necessarily impacted or was likely to have affected Appellant’s

conviction. To the contrary, we agree with the Commonwealth’s assessment

that the alleged admission in the JSGC Report is merely a quotation of a

conclusion from an outside scholar, Yelderman, who, based on research and

statistics neither discussed nor revealed in the report, surmised that “that the

death qualification process potentially results in biased juries.” JSGC Report

at 10-11 (quoting Logan A. Yelderman et al., Capital-izing Jurors: How Death

Qualification Relates to Jury Composition, Jurors’ Perceptions, & Trial

Outcomes, in Advances in Psychology & Law: Vol. 2, 27, 32 (B.H. Bornstein &

M.K. Miller eds. 2016) (emphasis added).9 Even if the JSGC Report can be

said to have endorsed these statements from the Yelderman Article, the

statements only speak to a potential of biased or unfairly excluded jurors due

to the death qualification process.            It did not state or imply that potential

jurors from Appellant’s trial had been unfairly excluded by race, intentionally

or unintentionally, nor did it state that any of the jurors had actually been
____________________________________________


9   Hereinafter “Yelderman Article.”


                                          - 29 -
J-S56012-20



biased in favor of finding him guilty. The JSGC Report also did not state that

there was a significant probability that either of these types of errors occurred.

Rather, the portions of the Yelderman Article discussed in the JSGC Report

that were cited by Appellant as newly-discovered facts in his PCRA petition

speak only of hypothesized potential of such errors due to the manner in which

jurors are qualified to try a capital case. Indeed, the manner in which the

JSGC Report discusses Yelderman’s research strongly suggests that further

inquiries are required to demonstrate the magnitude of the death qualification

process’s potential to affect juror demographics and biases.10, 11

____________________________________________


10 In describing Yelderman’s research, the JSGC Report indicates that that his
research “suggests that ‘the death qualification process facilitates
convictions[,]’” and that the “contention is that systematically excluding”
jurors based their unwillingness to issue a death sentence “leads to ‘increased
receptivity to guilt confirming evidence and aggravating factors while
simultaneously rejecting innocence confirming evidence and mitigating
factors.’” JSGC Report at 147 (quoting Yelderman Article at 47, 42) (emphasis
added). This language indicates that the JSGC Report is describing troubling-
yet-reasonable hypotheses that jurors are systemically selected for a pro-
conviction bias and/or disproportionated excluded by race via the death
qualification process, rather than a statement of fact about empirical research
demonstrating a final or definitive conclusion that jurors are, in fact, biased
or excluded on racial grounds by that process. Indeed, the JSGC Report then
admits that “[t]his research has not yet been judicially accepted[,]” citing
Yelderman’s own recommendations for further inquiry, such as using “actual
trials, trial videos, or reenactments … to increase the realism related to
participating in a capital trial[,]” suggesting that no such empirical research
to prove or verify Yelderman’s hypotheses has yet occurred. JSGC Report at
147 (quoting Yelderman Article at 48).

11Appellant appears to suggest that his failure to prove a link between the
JSGC Report and a specific and/or likely error in his own case constitutes
analysis on the merits of his underlying claim. See Appellant’s Post-Remand
(Footnote Continued Next Page)


                                          - 30 -
J-S56012-20




____________________________________________


Brief at 6 (arguing that the Commonwealth’s assertion that he failed to
demonstrate a sufficiently close link between the newly-discovered facts and
his conviction “conflates the jurisdictional inquiry under [Section]
9545(b)(1)(ii) with the separate merits inquiry into whether a new fact is
sufficiently related to a petitioner’s claims”). We disagree. We assume for
purposes of our analysis under the newly-discovered-facts exception that the
portions of the JSGC Report cited by Appellant are credible, and that that they
are fairly construed as admissions by the state. Nevertheless, we conclude
that the nature of the admission—that potential risks exist of demographic
groups being excluded from juries and/or jurors being selected for a pro-
conviction bias due to death qualification—cannot alone demonstrate that
Appellant’s jurors were compromised in that manner. Stated another way,
even if Appellant could prove, on the merits of his underlying claims, that such
a potential existed when his jury was empaneled, that would fall far short of
proving any significant likelihood that the specific jurors in Appellant’s case
were compromised by the death qualification process.

As this Court explained while discussing Chmiel in Commonwealth v.
Robinson, 

, 1062 (Pa. Super. 2018): “[A] recognition of ‘the
underlying claim’ was relevant to Chmiel’s invocation of [Section]
9545(b)(1)(ii)…, even if that analysis did not assess the strength of those
newly-discovered facts as it bore on the likelihood of ultimately achieving
relief.” The Robinson Court noted that Section 9545(b)(1)(ii) provides a
“gatekeeping function” that requires at least some minimal assessment of how
a newly-discovered fact might ultimately affect a claim upon which relief might
ultimately be granted. See id. at 1061-62. Here, in rejecting Appellant’s
invocation of Section 9545(b)(1)(ii), we do not reject the credibility or weight
of Appellant’s ostensibly newly-discovered facts. We accept for purposes of
our analysis under the newly-discovered-fact exception that the JSGC Report
constitutes a government admission that the death qualification process has
the potential to exclude racial or other demographic groups
disproportionately, and/or to select for a pro-conviction bias. However, we
conclude that, even viewing these factual averments in a light most favorable
to him, those new facts would still not be of a nature or quality that could
ultimately provide him with relief on his underlying claim(s), because they
speak only to a potential of systemic error in all death penalty trials, rather
than a quantifiable likelihood that such a systemic error necessarily or
probably impacted Appellant’s case specifically.



                                          - 31 -
J-S56012-20



      Thus, Appellant fails to convince us that the ‘admissions’ cited from the

JSGC Report are of a nature or quality on par with, or even approaching, the

revelations that satisfied the timeliness exception of Section 9545(b)(1)(ii) in

Chmiel. The FBI’s admission in Chmiel was that the hair analysis actually

used to demonstrate Chmiel’s guilt was fundamentally flawed, directly

undermining confidence in the fairness of his conviction. Here, by contrast,

the ‘admissions’ cited by Appellant from the JSGC Report speak only to a

supposition that the death qualification process potentially biased jurors in

favor of guilt and/or excluded certain racial groups from the pool of eligible

jurors. In our view, such ‘admissions’ do not add any new facts of a higher

grade or quality regarding Appellant’s previously-litigated Batson claims, or

for any other claim premised on juror bias, because the new facts only speak

to a generalized potential that the death qualification process undermined the

fairness of the composition of Appellant’s jury.

      We also conclude that the recommendations contained in the JSGC

Report cannot satisfy the requirements of Section 9545(b)(1)(ii). The JSGC

Report   recommended      as   follows:   “One     remedy   supported   by   the

subcommittee on procedure would be enactment of a Racial Justice Act to

statutorily allow death sentences to be challenged on a statistical basis, in

addition to purposeful discrimination.” JSGC Report at 149.

      First, this recommendation does not satisfy the newly-discovered-fact

exception because it speaks exclusively to a potential legislative remedy for

death row inmates. As noted above, Appellant’s sentence has already been

                                     - 32 -
J-S56012-20



commuted to life imprisonment and, therefore, he does not fall within the

scope of the proposed remedy.      By its express terms, the subcommittee’s

recommendation does not address persons in Appellant’s situation, those

being individuals who were tried by a death-qualified jury, but who were not

sentenced to death or who are no longer subject to the prospect of capital

punishment.

      Second, the recommendation is for a potential legislative remedy, one

that has not yet come into being. A proposed legislative remedy is a policy

aspiration, not a newly-discovered fact that is pertinent to an existing set of

legal claims. This recommendation adds nothing to Appellant’s ability to seek

relief under the current legal framework of his underlying claims, under

Batson or otherwise.      To the contrary, the proposed relief is a tacit

acknowledgment that a legal remedy for statistical-based claims challenging

the death qualification process’s effect on jury composition and bias does not

yet exist.

      Appellant argues that it “would have been nonsensical for the JSGC to

make such a recommendation without first recognizing that the problem of

racial discrimination infected capital prosecutions in the Commonwealth.”

Appellant’s Post-Remand Reply Brief at 3-4.        While this may be true,

recognition of a potential systemic problem is not the same thing as an

admission of error, or even an admission of a likely error, in the empaneling

of every death-qualified jury. Rather, it is a proposal for how such issues

might be further examined and addressed in the future. Appellant’s argument

                                    - 33 -
J-S56012-20



that such a remedy must exist now under the PCRA due to the JSGC’s

recommendation is mere bootstrapping. Accordingly, we conclude that the

JSGC’s recommendation also does not satisfy the requirements of Section

9545(b)(1)(ii). Thus, Appellant’s second claim lacks merit.

       Because we conclude that Appellant cannot possibly satisfy Section

9545(b)(1)(ii) based on the admissions and recommendations he cited from

the JSGC Report, we ascertain no need to remand for an evidentiary hearing.

Furthermore, due to Appellant’s failure to successfully invoke an exception to

the PCRA’s timeliness requirements, we do not reach his third and fourth

claims addressing the merits of his underlying claim(s).12

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/09/2022




____________________________________________


12 Consequently, we do not address the PCRA court’s alterative analysis on
the merits of Appellant’s underlying Batson claim.

                                          - 34 -