Appeal from the Order Entered on July 13, 2010 in the Court of Common Pleas, Criminal Division, Cambria County on 7/13/2010 at No. CP-11-CR-00001025- 1988
The opinion of the court was delivered by: Mr. Justice Baer
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
SUBMITTED: September 26, 2011
Stephen Rex Edmiston (Appellant) appeals from the denial of relief on two distinct Post-Conviction Relief Act (PCRA) petitions. See 42 Pa.C.S. §§ 9541-9546. First, Appellant appeals from the denial of relief on the claims raised in his second PCRA petition, which we affirm because the contentions raised therein are untimely. Second, Appellant seeks review of the PCRA court's denial of his motion for post-conviction DNA testing, filed pursuant to 42 Pa.C.S. § 9543.1. We affirm the denial of the DNA testing petition for a different reason than that offered by the PCRA court. We conclude that Appellant failed to demonstrate that his DNA testing petition was made "in a timely manner and for the purpose of demonstrating [his] actual innocence and not to delay the execution of sentence or administration of justice." 42 Pa.C.S. § 9543.1(d)(1)(iii).
We set forth the facts of this case in our two prior opinions, Commonwealth v. Edmiston, 634 A.2d 1078 (Pa. 1993) (Edmiston I) and Commonwealth v. Edmiston, 851 A.2d 883 (Pa. 2004) (Edmiston II). To summarize, on July 14, 1989, after a non-jury trial, Appellant was found guilty of murder in the first degree, rape, statutory rape, and involuntary deviate sexual intercourse. The Commonwealth's evidence supporting these convictions showed that Appellant kidnapped the two-year old victim, Bobbi Jo Matthew, from her bedroom in the early morning hours of October 5, 1988, drove her to a remote location, and proceeded to inflict separate and gruesome injuries on her. As we detailed in Edmiston I, the evidence demonstrated the following:
Here, a two-year-old girl, weighing thirty-four pounds and standing thirty-six inches tall, suffered the following serious injuries: scalping, blunt force to her torso, obliteration of her genital area, burning of her body and a skull fracture. She was scalped by being cut with a sharp knife-like instrument from the ear up across the front hair line of her forehead and down to the other ear. Her scalp was then peeled back to the nape of her head exposing the entire skull. Blunt force trauma to her chest and stomach was so forceful that it caused the tearing of her liver and lungs. This force was also one of two possible causes of two feet of the infant's intestines to protrude from her genital area. (The other possible cause was pulling the intestines out of the genital area). The genital area of the two-year-old child was completely obliterated and ripped to such an extent that there was only one large and bloody cavity where there originally were the anal and vaginal orifices. There were also areas of burning of the infant's body, many other lacerations and abrasions and a skull fracture.
All of these separate and gruesome injuries occurred while the child was living.
Edmiston I, 634 A.2d at 1084.
The victim lived with her father, Harold Matthew, and grandmother, Nancy Dotts, and several of Ms. Dotts' young children. Appellant was acquainted with the victim's family, and his uncle, Robert Brown, was Ms. Dotts' boyfriend. On the night of October 4, 1988, the victim went to bed in a bedroom she shared with three other children. Two children saw a man in the bedroom talking to the victim at approximately 3:30 in the morning, whom they believed to be Ms. Dotts' boyfriend, Mr. Brown. Mr. Matthew also observed a man in the house at that time, who said goodbye as he left. When the victim's family discovered that she was missing on the morning of October 5, 1988, they came to believe that the man who had been in the house in the middle of the night was Appellant.
Police arranged an interview with Appellant the following day. At the police barracks, Appellant waived his rights and consented to a search of his pickup truck, which revealed blood on the front seat, a blanket with fine, blond hairs, a blood-stained towel, bloody scissors, and a pair of shorts that the victim's family identified as those the victim wore to bed the night she disappeared.
The police confronted Appellant with what they discovered in his truck, voiced their suspicion, and asked him if he killed the victim. Although Appellant initially denied involvement, he soon began to waver. The police asked Appellant to reveal the location of the body. Appellant refused, but when the police asked Appellant to draw a map to the location of the victim's body, he complied. When asked what the police would find at that location, Appellant responded that they would find "a dead raped little girl." Notes of Testimony (N.T.) 7/10/89 at 103. He also stated that he did not know why he did it and began to cry. According to police, Appellant explained that the rape occurred in his pick-up truck, that he hit the victim several times with his fist, and ultimately covered her body with branches. Id. at 103-105.
The police kept Appellant's hand-drawn map in a notebook, and, because there was no photocopying equipment available, copied the map onto another piece of paper by hand. With the copy of the map in hand, police attempted to find the victim's body. They enlisted the help of a local resident, Roger W. Kruis, who indicated his familiarity with the landmarks on the map and accompanied the police to the location. Police recovered the body at the location specified on the map. Additionally, investigators matched the tire tread and wear pattern found near the victim's body with the tires on Appellant's truck.
An autopsy was performed by Dr. Katherine Jasnosz of the Allegheny County Coroner's Office, during which her staff took black and white photographs and color slides (hereafter, the Coroner's photographs). N.T. 7/7/89 at 110. Dr. Jasnosz took oral as well as recto-vaginal smears and swabs from the victim. N.T. 7/7/89 at 130-31. Testing of blood samples taken from Appellant's truck resulted only in identification of the blood as type "O," which matched the blood type of both Appellant and the victim. As to the smears and swabs obtained by the Coroner, the laboratory the Commonwealth chose to conduct DNA testing reported that there was insufficient material for such DNA analysis. The defense chose another laboratory to conduct its own testing, which reported that it was able to extract DNA and that the DNA was from the victim. During a pre-trial conference, the defense indicated to the trial court that because Appellant's DNA was not found on the samples it submitted to its laboratory, it chose to decline further testing, and Appellant indicated his agreement with this decision.
Appellant's defense was that he was innocent, he was too drunk to commit these crimes or form the intent to commit these crimes, he spent a good part of the night in a drunken sleep inside his truck parked outside his mother's house, the Commonwealth's forensic evidence did not identify him as the perpetrator, and he attempted to point suspicion at his uncle Robert Brown, whom he resembled.
Appellant was found guilty at a bench trial and sentenced to death by a jury on October 5, 1989.*fn1 We affirmed on direct appeal. Edmiston I, 634 A.2d 1078. On May 29, 1996, Appellant filed his first petition for collateral relief under the PCRA. Following several amendments and an evidentiary hearing, the PCRA court denied the petition. On appeal from the denial of PCRA relief, this Court affirmed. Edmiston II.
On June 13, 2005, Appellant filed a second petition for PCRA relief (styled as a "Petition for Habeas Corpus Relief Under Article I, Section 14 of the Pennsylvania Constitution and for Statutory Relief Under 42 Pa.C.S. § 9545(b)(1)(i) & (ii)") (hereafter, Second PCRA Petition) premised upon the Coroner's photographs, which he claimed were newly discovered. In response to the Commonwealth's motion for a more specific pleading, on August 12, 2005, Appellant amended the Second PCRA Petition (hereafter, Amended PCRA Petition). On February 18, 2009, the National Academies of Science published a study entitled Strengthening Forensic Science in the United States: A Path Forward (hereafter, the NAS Report), which prompted the filing of Appellant's "Supplemental Petition for Post-Conviction Relief Based Upon Additional Newly Discovered Evidence," (hereafter, Supplemental PCRA Petition) on April 17, 2009. Appellant also filed a Motion for Post-Conviction DNA Testing pursuant to 42 Pa.C.S. § 9543.1, which the PCRA court denied on September 30, 2009.
On December 23, 2009, following an evidentiary hearing related to the timeliness of the Second PCRA Petition, as amended and supplemented, the PCRA court dismissed the claims raised therein as untimely, with the exception of one claim premised on the NAS Report related to hair comparison analysis. Following a hearing on the merits of this sole remaining claim, the PCRA court denied relief on April 26, 2010.
On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA court's findings are supported by the record and without legal error. Commonwealth v. Breakiron, 781 A.2d 94, 97 n. 4 (Pa. 2001). Our review of questions of law is de novo. Commonwealth v. Fahy, 959 A.2d 312, 316 (Pa. 2008).
A PCRA petition, including a second or subsequent petition, must be filed within one year of a final judgment, unless the petitioner alleges and proves that he is entitled to one of three exceptions to this general rule, and that the petition was filed within 60 days of the date the claim could have been presented:
(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.
(2) Any petition invoking an exception provided in paragraph
(1) shall be filed within 60 days of the date the claim could have been presented.
Appellant relies on the exceptions for governmental interference and previously unknown facts. See 42 Pa.C.S. § 9545(b)(1)(i) & (ii). The proper questions with respect to these timeliness exceptions are whether the government interfered with Appellant's ability to present his claim and whether Appellant was duly diligent in seeking the facts on which his claims are based. Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008); Commonwealth v. Abu-Jamal, 941 A.2d 1263 (Pa. 2008) (concluding that not only must a petitioner assert that the facts upon which the claim is predicated were not previously known to the petitioner, but also that they could not have been ascertained through due diligence); Commonwealth v. Hawkins, 953 A.2d 1248 (Pa. 2006) ("although a Brady claim may fall within the governmental interference exception, the petitioner must plead and prove that the failure to previously raise these claims was the result of interference by governmental officials, and that the information could not have been obtained earlier with the exercise of due diligence.").
In the case of both exceptions on which Appellant relies, there is the requirement that he filed his claims within 60 days of the date the claim could have been presented.
42 Pa.C.S. § 9545(b)(2). We have established that this 60-day rule requires a petitioner to plead and prove that the information on which his claims are based could not have been obtained earlier despite the exercise of due diligence. Commonwealth v. Albrecht, 994 A.2d 1091 (Pa. 2010); Stokes, 959 A.2d 306; Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008).
The time requirements established by the PCRA are jurisdictional in nature; consequently, Pennsylvania courts may not entertain untimely PCRA petitions. Commonwealth v. Watts, 23 A.3d 980 (Pa. 2011); Commonwealth v. Brown, 943 A.2d 264, 267 (Pa. 2008); Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003). We have repeatedly stated it is the appellant's burden to allege and prove that one of the timeliness exceptions applies. See, e.g., Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999). Whether Appellant has carried his burden is a threshold inquiry prior to considering the merits of any claim.
Appellant's Second PCRA Petition is untimely on its face. As Appellant's judgment became final prior to the 1995 enactment of the time requirements and amendments to the PCRA, he had one year from the effective date of the PCRA amendments to file a timely petition. Indeed, this rule accounted for Appellant's first PCRA petition being timely. Edmiston, 851 A.2d at 887 n.1. We are now presented with Appellant's second petition, which was filed on June 13, 2005, and the Supplement thereto, filed on April 17, 2009. These filings are clearly untimely. Therefore, unless one of the statutory exceptions apply, the courts lack jurisdiction to consider the claims raised therein.
We first address the specific contentions that the PCRA court found were untimely. Appellant relies on the exceptions of Section 9545(b)(1)(i) and (ii) to advance these issues. He asserts that the exception for governmental interference at Section 9545(b)(1)(i) applies because the Commonwealth interfered with the presentation of his claims by failing to provide him with mandatory discovery and exculpatory information, specifically, the Coroner's photographs, statements by Mr. Kruis indicating that the map police showed him, which led to the discovery of the victim's body, was not the one drawn by Appellant, and prior statements of Commonwealth witness Mr. Brown. Appellant further argues that these three pieces of evidence, which he discovered independently, constitute newly discovered facts within the exception contained at Section 9545(b)(1)(ii). Appellant also argues that he raised these claims on June 13, 2005, in the Second PCRA Petition, within 60 days of learning of the evidence on which each claim is based, thereby complying with Section 9545(b)(2).
The first claim we address is premised upon the Coroner's photographs, specifically, 70 black and white photographs and 53 35mm color photographic slide transparencies of the victim's body, which were taken during the victim's autopsy on October 7, 1988, by the Allegheny County Coroner's Office. During the autopsy, Pennsylvania State Police Trooper Vanneman also took color photographs of the victim's body. Appellant asserts that despite defense counsel's repeated requests for discovery, physical evidence, and records made in the course of scientific testing, the prosecutor did not deliver the actual Coroner's photographs to trial counsel. Instead, it made available only the 18 color photographs taken by the state trooper during the victim's autopsy.*fn2 Appellant acknowledges that the prosecutor marked several of the Coroner's photographs as exhibits, but argues that this was insufficient to attribute awareness of the photographs to trial counsel because the prosecutor represented to the court that they were not material to the case, and they were not admitted into evidence.
According to Appellant, it was not until February 2005 that he was able to access the Coroner's photographs and slides.*fn3 Specifically, the Allegheny County Coroner's Office advised Appellant that it possessed the Coroner's photographs on February 17, 2005; upon Appellant's request, on March 23, 2005, he received 34 black and white photographs and, on April 14, 2005, copies of the 53 color photographic slides. Appellant had the slides enlarged sufficiently to have his forensic experts analyze them, and, on May 16, 2005, they rendered their opinions that the photographs were exculpatory. Appellant raised this claim in his ...