*1 the order of reasons, in Fine’s we reverse appeal, For these court the trial the order of reversing Court Superior judgment; we summary motion Dr. Checcio’s denying court; the case and we remand of the trial the order reinstate any properly resolution of for the Court Superior reasons, in Dr. For these issues. outstanding preserved Superior Court affirm the order appeal, Rice’s further proceedings. court for to the trial remand the case consid- in the not participate did Madame Justice Newman case. decision of this eration or
870A.2d 864 Pennsylvania, Appellee COMMONWEALTH v. Appellant. FISHER, Robert 451 CAP. No. Pennsylvania. Supreme Court of 13, 2004. Dec. Submitted March Decided *2 Lev, Fisher, appellant. Brian for Robert Stuart *3 Coonahan, PA, Patricia Eileen for the Amy Zapp, Com. appellee. CAPPY, C.J., CASTILLE, NIGRO, NEWMAN,
Before: SAYLOR, BAER, EAKIN and JJ.
OPINION BAER. Justice appeals Robert Fisher from the order of the
Appellant
dismissing
his
Montgomery County
Court of Common Pleas
for relief on the merits filed
to the Post-
pursuant
(“PCRA”),
9541-9546,
§§
Relief Act
Conviction
filed,
untimely
As
find the
hearing.
without
we
was
affirm.
In
underlying
The facts
this case are as follows.
the month
death,
boyfriend,
Linda
her
preceding
Appellant
Rowden’s
her because he
that she had
to
angry
gone
was
with
believed
implicate
drug-related
to
him in the
murder of a
police
Nigel
anger grew
man named
Anderson.1
over
Appellant’s
prior
1. As discussed in detail
in our
decision at Commonwealth v.
Fisher,
(1991) (Fisher I), police
suspect-
Pa.
Appellant apprehended was not until he when was City Pennsylvania found in New York and extradited to to 15, 1988, September stand trial for Ms. Rowden’s murder. On Appellant ed in Anderson’s death because Anderson was murdered testify against Appellant opportunity before he had an in a federal drug possession Eventually, Appellant trial. was convicted federal violating rights; civil however court Anderson's that conviction was appeal. overturned on trial, a of other
during jury Mayo eyewit Mr. and number The seeing Appellant nesses testified to shoot Ms. Rowden.2 and, in the first jury Appellant degree convicted murder following hearing, Appellant determined penalty-phase should be sentenced to death. Post-trial motions were eventu denied, the trial court sentenced ally formally Appellant and supra, referenced in footnote May death on 1989. As Appellant’s judgment direct this Court reversed appeal, sentence, that a asked holding, among things, question other jurors prejudicial voir dire of ánd during prospective was mandated the of a trial. Fisher I. grant new See retrial, in the
Upon Mayo Mr. testified that he was seated seat, Rowden, directly front beside Ms. who passenger was lean forward from the driving, Appellant when he observed Additionally, back seat and shoot her. Frieda Sambrick testi- steps nursing fied that she on the of a clinic located sitting spot 20 to 25 feet from the where Ms. Rowden’s approximately jury Ms. told the that she had vehicle crashed. Sambrick years, for eleven and she saw Ms. known when driving by, recognized Appellant, sitting she who was Rowden in the back seat. Ms. Sambrick said she saw lean Ms. gunshots forward and she heard followed Rowden’s crash, Appel- scream. She then saw the car and watched as got lant out of the car and ran from the scene.
Ms. Walker also testified at the retrial. She related that to the shooting talking admitted the victim police. changed apartment She said he clothes at her immediately left. The presented Commonwealth additional evidence to establish that fled the Norristown area years and remained at until he large apprehended seven later York. New
Finally, testimony introduced ballistics Commonwealth witness, through expert Agent Riley. Agent its FBI John lead anal- Riley comparative testified that he conducted bullet during Appel- 2. We do not review the introduced into evidence facts judgment we reversed the lant's first trial because sentence jury's supporting the remanded for a new trial. The facts second verdict are reviewed infra. *5 box of bullets (CBLA) open from the of bullets eight ysis fragments the bullet apartment with found at Ms. Walker’s that six of He concluded body.3 from the victim’s recovered ana were apartment found at Ms. Walker’s bullets eight from Ms. retrieved from the bullets indistinguishable lytically eight tested remaining two body, while Rowden’s that Riley opined Agent minor differences. compositional had close com or of indistinguishable are analytically bullets that the same box come from typically association positional that these by saying finding He his qualified ammunition. ammunition, box of also come from another bullets could have box, to be manufactured most have had likely but that would date on or about the same packaged Peters and by Remington cross- in this case. On by police as the box recovered conclu examination, challenged Agent Riley’s defense counsel by bullets manufactured out that other pointed sions composi in the area had the same Peters and sold Remington them could tion, bought anyone that who raising possibility from the the bullets recovered be associated with equally body. victim’s trial, jury again a convicted
At the conclusion of the second
and,
following
degree
in the first
of murder
should be
that
hearing, determined
penalty-phase
followed, Appel-
that
appeal
to death.
the direct
sentenced
review, raising guilt-
for
thirty separate issues
lant asserted
Addressing each
error,
error.
penalty-phase
as well as
phase
murder
in the first
issue,
the conviction for
we affirmed
compositional analy-
Agent Riley
testified at trial that he conducted
(CBLA)
fragments
from the victim and
bullets
recovered
sis
two
randomly
of ammunition found at
eight
selected from the box
bullets
collected
apartment.
been used when bullets
Ms. Walker's
CBLA has
comparison
fragmented
microscopic
with a
are
for
at a crime scene
too
no
has been recovered.
suspected firearm or in cases which
firearm
comparison
spectrographically analyzed fragments are
The lead
smelting
with those
ammunition
elements associated with lead
trace
Agent
attempting to
suspect.
Riley explained that he was
seized from a
composition
the bullets he examined
compare
elemental
lead,
antimony, copper
looking
elements in the
such
for trace
arsenic, silver,
bismuth, unique
particular manufacturer.
to a
tin and
unique
particular
even
opined
these trace elements are
He
of bullets.
batches
boxes
but
degree,
vacated the death sentence and remanded for a
Fisher,
new sentencing hearing. See Commonwealth v.
(1996) (Fisher II)
Pa.
After a
sentencing
new
in
hearing
jury
which a third
death,
determined that Appellant should be sentenced to
trial court formally
23,
sentenced
on
Appellant
July
death
1997.
direct appeal,
On
this Court
affirmed
sentence of
Fisher,
558,
death. Commonwealth v.
559 Pa.
Once Appellant’s
appeal
direct
became
in
he filed
a second PCRA petition, which was treated as a first petition,
issues,
raising fourteen
none of which are
to this
relevant
II,
penalty
4.
In Fisher
we concluded that the death
statute
effect at
prohibited
the time of the
impact
testimony.
second trial
victim
The
statute has since been amended and we have determined that victim
impact testimony
permissible
is
with certain limitations. See Common-
Means,
309,
(2001)
wealth v.
(plurality);
565 Pa.
On Commonwealth untimely that the was petition, alleging petition PCRA any exception not fit to the timeliness did within PCRA, to 42 pursuant requirements (as below). 9545(b)(1) 3, 2004, § fully May Appel set forth On That Reply, along Discovery.9 lant filed a with a Motion date, opinion same court issued an order and PCRA initially The PCRA court found that the dismissing PCRA. It that the petition timely recognized study, was filed. which on, in late relying published was November (within 2003, and his filed in of 2004 petition January It that the information on days). opined Appellant’s him previously; claim is based could not have been known to thus, current fell exception his PCRA within below). 9545(b)(1)(ii) (as fully established in set forth Section However, the court further that because determined not resulted in a differ Appellant’s new evidence would have outcome, if presented, ent even was not entitled to relief pursuant Specifically, substantive PCRA. into calling PCRA court found new evidence testimony not question accuracy Agent Riley’s would it acquit Appellant; accordingly, have been sufficient to con trial, cluded that not entitled to a Appellant was new dismissed his on the merits. appealed *8 out, astutely points 8. As the Commonwealth attached Tobin’s petition, curriculum vitae to his PCRA but did not include it in his appellate points brief to this Court. The Commonwealth also out that vitae, according publications to the list of included with his curriculum 2002, therefore, done Tobin has research into CBLA since and the theories he asserts therein have been available and discoverable years. Appellant for more than two data, sought Discovery, Appellant 9. his Motion for the FBI test to, including laboratory report, but not limited all notes and memoran- data, da, original computer printouts test from the Activation Neutron tests, Analysis Inductively analyses, and Conducted Plasma statistical applied pertinent statistical standards to the CBLA. and/or 285 Court, jurisdiction to collateral directly this has review 9546(d). § to 42 Pa.C.S. appeals capital pursuant cases analy Before can review the PCRA court’s merits we claim, of we must ascertain whether we have sis PCRA, to the jurisdiction petition.10 the Pursuant over PCRA one of date that year must be filed within the petition PCRA becomes final. 42 Pa. judgment sentence petitioner’s 9545(b)(1). purposes § A becomes final for judgment C.S. review, including “at the conclusion of direct discre PCRA Supreme in the Court United States tionary review or at the Supreme Pennsylvania, expiration Court 9545(b)(3). § If for 42 seeking time review.” jurisdiction is this Court has no over petition untimely, PCRA 1, Murray, Commonwealth v. 562 Pa. 753 A.2d petition. (2000). 201, jurisdiction, simply 202-203 Without do not legal authority have the to address substantive claims. above, of sentence became Appellant’s judgment As noted on Supreme final after the U.S. Court denied certiorari Octo- 2, January ber 2000. filed the instant on 15, Thus, 2004. it is that did not file this obvious that year judgment PCRA one of the date his within 9545(b)(1). Nonetheless, § became final. 42 Pa.C.S. Ap- See be considered if it fits one of the pellant’s petition may within three timeliness exceptions requirements to PCRA’s (1) questions raises three for review. He claims that he expert on the basis of inaccurate and unreliable scientific was convicted right rights testimony, process in violation of his to due his under Eighth and Fourteenth Amendments and the PCRA Court erred in harmless, (2) concluding any error was that he is entitled to a new Agent Riley’s expert newly-discovered trial based evidence that (3) testimony scientifically forensic relative to CBLA is unreliable and actions, ruling that the court below erred its and treatment of this case, including rulings denying Appellant's requests discovery its However, evidentiary hearing. jurisdiction and an we are without to jurisdiction appeal reach of his unless Court has the merits Appellant's petition, jurisdiction review and such does not exist when Appellant’s petition untimely satisfy exceptions is and fails to one of the Fahy, requirements. v. Pa. timeliness Commonwealth Peterkin, 547, (1999); 737 A.2d Commonwealth v. 554 Pa. (1998). 722 A.2d
286 9545(b)(1) of the That PCRA. Section
elucidated Section provides: or including this a second
Any petition subchapter, under of the year shall be filed one subsequent petition, -within final, alleges unless the judgment petition date the becomes that: petitioner proves (i) the result previously the failure to raise the claim presenta- officials by government of interference with of the or laws of tion of the claim violation Constitution or the or of the this Commonwealth Constitution laws States; United
(ii) predicated which the claim is were upon facts and could not been ascer- petitioner unknown to the have by diligence; tained the exercise due (iii) right asserted is a constitutional that was right States or recognized by Supreme Court United after the time Supreme Pennsylvania period Court of apply in this section and has been held to provided retroactively. Pa.C.S; 9545(b)(1). § one or more of Any petition invoking
42 60 from the date exceptions days these must be filed within See that the claim could been 42 Pa.C.S. presented. have 9545(b)(2). § court found that this
Although 42 Pa. “newly-discovered exception, fell evidence” within 9545(b)(1)(h), requirements, upon § to the timeliness C.S. above, review, As noted disagree.11 Appellant’s petition timely alleges be considered unless his will not the claim proves upon “that the facts is not petitioner were unknown to the and could have predicated the exercise of due 42 diligence.” been ascertained 9545(b)(1)(h). court that the Appellant argued § the PCRA court; Nevertheless, infra, discussed we affirm the trial albeit on grounds. ruling "A or decision of a lower court will be alternative any despite supported affirmed if it can be basis the lower court’s Terry, assignment wrong 513 Pa. of a reason." Commonwealth v. (1987) (citing Elgart, 521 A.2d Sherwood v. 383 Pa. (Pa. 1955)). A.2d 899 testimony of that the conclusively demonstrates report NAS witness, went far expert the Commonwealth’s Agent Riley, he linked the reliability when of scientific beyond the bounds *10 to a box of bullets body the recovered from victim’s bullets attached in apartment. left Ms. Walker’s Press and an Academies by the National published an article the Tobin, his claim. Because support to by affidavit William the in of 2003 and PCRA November appeared article thereof, the 13, 2004, days within January filed on the claim met Appellant’s concluded that simply court PCRA However, the article of the PCRA. jurisdictional requirements discov- “newly a basis for his provides claims which claim,” contention. support not his ered does assertions, National Academies the Appellant’s Contrary FBI for chemical the uses technique article calls the Press Specifically, and reliable. cases accurate analysis CBLA currently the technique FBI is best the article states that the fragments, for bullet while technology analyzing available The article more results. suggestions precise even making of reasonably way accurate deter- that CBLA is concludes composition- came from the same two bullets mining whether lead, although it states volume ally indistinguishable further if can be enhanced reliability CBLA value are implemented. recommendations report’s claim that the Appellant’s language hardly supports This FBI in utilized establishes that the methods study NAS Thus, although we “imprecise cases and flawed.” CBLA were to the extent that this information the PCRA court agree with Petitioner in of 2003 when became available to November only he can upon it not basis which reported, provide it does sup- does not untimely study an claim because predicate by Agent that the methods utilized Appellant’s contention port (and imprecise FBI in so and flawed general) were Riley unreliable. Riley’s expert opinion as to render Agent Likewise, fault use Mr. we find with jurisdictional overcoming as a basis for Tobin’s affidavit Mr. Tobin offered Although of the PCRA. requirements time 13, 2004, facially appears his and it January affidavit information, Mr. Tobin states therein that he provide new began any meaningful his research into whether there was scientific research or studies that could vali- comprehensive date the in March of 1998. Ac- premises supporting CBLA cording publications to his list of attached to his curriculum vitae, attached to the filed affidavit with court, concerning Mr. Tobin has authored articles his Therefore, Mr. To- position regarding CBLA since 2002. January bin’s views as set forth his 2004 affidavit do not newly exception meet the evidence to the timeli- discovered requirements they ness of the PCRA as the information contain has been available and discoverable for more than two years. Accordingly, disagree with PCRA court’s find- that this falls ing “newly-discovered within the evi- *11 9545(b)(l)(ii), § dence” exception, Pa.C.S. to the PCRA requirements. timeliness
Although we find that the court erred in that finding jurisdiction it had to entertain on the Appellant’s petition merits, assuming timely, agree even we with the PCRA court that not be entitled to relief Appellant would 9543(a)(2)(vi) pursuant to Section of the provides: PCRA which (a) eligible General rule.—To be for relief under this sub- chapter, the must a petitioner plead prove by prepon- derance the evidence all of the following:
* * * (2) That the conviction or sentence resulted from one or more of the following:
* * * (vi) The at the unavailability exculpato- time of trial of ry evidence that has become subsequently available and changed would have the outcome of the trial if it had been introduced. 9543(a)(2)(vi). §
42 'Amato, recently Most in Commonwealth v. D 856 A.2d (Pa.2004), set forth the criteria for newly-discovered evidence that would warrant PCRA relief on substantive relief under the PCRA order to obtain grounds. evi upon newly-discovered conditioned grounds substantive establish, dence, aby preponderance a defendant must alia, evidence, likely compel that such inter evidence would D different verdict. 'Amato at is unable to establish that such
Clearly, Appellant compel a different likely evidence would verdict. was critical to
argument Agent Riley’s testimony CBLA at trial. As vastly importance his conviction overstates its above, in the car as Mayo Appellant noted Richard watched Sambrick, at close Ms. who range. shot Ms. Rowden twice also testified that she Appellant years, knew for eleven shooting. did the Addi watched from street to her Ms. testified that confessed tionally, Walker Rowden, provided compelling that he killed Ms. and she that Ms. Appellant complained motive because Ms. Walker her face to the about the running Rowden “was detectives” Anderson murder. evidence, best, connec possible
The CBLA at established a tion and the bullets recovered from between may that a factfinder body. testimony suggests victim’s Such crime are have inferred that bullets recovered at a scene particular comparative traceable to a source much like used in soil fiber analysis matching samples conducting above, however, As noted counsel suc analysis. defense in haring Agent Riley any cessful admit that number of bullets Thus, could match those from the if recovered victim. even theory, could discredited the CBLA completely have *12 and that the proven could have bullets recovered the of body from victim’s did not come from the box ammuni tion found in Ms. it is still apartment, Walker’s uncontroverted that the died as a result of inflicted victim two bullet wounds the Appellant. Appellant gotten could have ammunition Thus, anywhere. from the ex discrediting Commonwealth’s pert witness criticism of his scientific does technique with new exculpate Appellant. not See Commonwealth v. Abdul-Sa laam, (2002) (rejecting 571 Pa. 812 A.2d an after- 497 petitioner challenged discovered evidence claim where recent disclosures that evidence with adequacy fingerprint admissibility fingerprint and reliability undermined the overwhelming inculpat- because there evidence evidence was that the and he unable to show evidence ing petitioner was trial). if Accordingly, the outcome of the even alter would requirements had met the timeliness procedural PCRA, substantively Appellant’s claim fails. sum, Appellant’s petition conclude that PCRA was any exceptions did not meet of the to the PCRA untimely and therefore affirm the order of requirements. timeliness We Protho- petition. court the instant The dismissing PCRA of the Court is directed to transmit notary Supreme of this case to the complete record Governor.
§ 9711®. in Concurring Opinion CAPPY files a which
Chief Justice join. Justice NIGRO Justice NEWMAN concurring. Chief Justice CAPPY for join Majority respects I in all save its Opinion of the the National Academies of Science study by treatment (“NAS”). It for the in a improper Majority engage it analysis study merits of the order to dismiss NAS brief, the Tobin untimely. Upon my Appellant’s review of affidavit, I study, accept Appellant’s and the NAS cannot study “newly-discovered” the NAS constitutes position upon study Information which the NAS relies had evidence. far in instant PCRA been existence advance therefore, study the NAS does not constitute Whitney, after-discovered evidence. Commonwealth v. Cf of the (2003)(finding study 572 Pa. 817 A.2d Bal- justice system by criminal Professors David Philadelphia newly-discovered not George dus and Woodworth was evi- upon the information it relied existed at dence because timely petition). the time for to file PCRA un- Consequently, Appellants because qualify newly-discover- on its face and does not timely PCRA, exception timing requirement ed evidence
291 the merits of either the jurisdiction to consider we are without Crews, v. claims. Commonwealth study Appellants that a PCRA court lacks (Pa.2004)(stating A.2d The untimely petition). claims in an jurisdiction to address 286-89, study (Op. on the at views NAS Majority Opinion’s 870-71) could be entitled 870 A.2d at whether 871-72), 287-90, at in the absence of relief at 870 A.2d (Op. so, render these statements mere dicta. jurisdiction to do join Majority Opinion. I cannot respects, respectfully these join this concurring Justice N1GRO and Justice NEWMAN opinion.
870 A.2d PENNSYLVANIA, OF COMMONWEALTH DEPARTMENT SERVICES, Department OF GENERAL Revenue, Appellee, v. SYSTEMS, INC., Appellant.
ON-POINT TECHNOLOGY No. 264 MAP 2003. Supreme Pennsylvania. Court of
Argued May 2004. Decided March M. Robert Phila- Terry Henry, Esq., Hayes, Esq., William delphia, Systems, for On-Point Inc. Technology