from the Order Entered April 20, 2015 In the Court of Common
Pleas of Cumberland County Criminal Division at No(s):
BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.
Commonwealth of Pennsylvania appeals from the order, entered
in the Court of Common Pleas of Cumberland County, granting
Letitia Denise Smallwood's petition filed pursuant to the
Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.
§§ 9541-9546. After careful review, we are
constrained to conclude Smallwood has not satisfied the
newly-discovered facts exception under section 9545(b)(1)(ii)
of the PCRA, and, therefore, the PCRA court did not have
jurisdiction to address the merits of Smallwood's
petition. We, therefore, reverse the PCRA court's order
granting a new trial.
January 11, 1973, a jury convicted Smallwood of one count of
arson and two counts of first-degree
murder. The court sentenced Smallwood to
concurrent terms of ten to twenty years' imprisonment on
the arson count and life imprisonment on each murder count.
Smallwood filed post-trial motions, which were denied. The
Pennsylvania Supreme Court denied Smallwood's direct
appeal on January 29, 1976. Commonwealth v.
Smallwood, 350 A.2d 822 (Pa. 1976).
first post-conviction petition was denied in 1979. The
Pennsylvania Supreme Court affirmed the PCRA court's
order denying relief. See Commonwealth v. Smallwood,
442 A.2d 222 (Pa. 1982).
1999, Smallwood saw a television program that featured Dr.
Gerald Hurst, a chemist and renowned arson expert. In her
certification, Smallwood stated that in that program,
"Dr. Hurst explained the advances that had been made in
the field of fire investigation and also explained how he had
assisted a woman charged with a crime similar to the one I
was get her conviction overturned." Petitioner's
Certification, 5/15/14, at ¶ 11.
years later, on March 14, 2014, Smallwood filed a second PCRA
petition. The Commonwealth filed a motion to dismiss the
petition as untimely and, in the alternative, previously
litigated. On June 20, 2014, the PCRA court heard arguments.
Thereafter, the court held an evidentiary hearing on December
15, 2014, and a merits hearing on March 27, 2015. On April
20, 2015, the PCRA court concluded that Smallwood had met her
burden of proving the newly-discovered fact exception under
section 9545(b)(1)(ii) of the PCRA. The PCRA court granted
Smallwood a new trial. The Commonwealth filed a timely notice
of appeal and now raises three issues for our review:
1. Whether the PCRA court erred because the petition is
untimely[, ] as a "new" expert opinion based on old
methodology and facts does not reset the sixty-day clock nor
does expert shopping constitute due diligence?
2. Whether the PCRA court erred in granting petitioner a new
trial because the after-discovered evidence would be used
solely to impeach the credibility of Commonwealth witnesses?
3. Whether the PCRA court erred in granting petitioner a new
trial because the after-discovered evidence would not likely
result in a new trial?
Commonwealth's Brief, at 5.
PCRA court summarized the underlying facts as follows:
In the early morning hours of August 29, 1971, a fire raged
through the property at 11 North Pitt Street in the Borough
of Carlisle, Cumberland County, Pennsylvania. The property
consisted of two offices on the first floor and apartments on
the second and third floors. As a result of the fire, two
tenants residing in apartments on the third floor were
William H. Sweet, a Deputy Fire Marshal with the Pennsylvania
State Police performed the fire investigation. He arrested
[Smallwood] on September 4, 1972.
The Commonwealth's case against [Smallwood] was composed
primarily of circumstantial evidence. This circumstantial
evidence included both findings from the fire investigation
as well as evidence that [Smallwood] possessed the means,
motive and opportunity to commit the arson.
At trial, Trooper Sweet testified that the fire was
incendiary. His opinion was based largely on eyewitness
testimony which suggested that the fire had "started in
two separate places without interconnecting trails."
Although the eyewitness testimony was imprecise with regard
to the timing of when each saw the fire, Trooper Sweet
determined that the fire "started in two separate
places." Through his investigation, however, he was not
able to learn precisely what caused the fire. Nevertheless,
he did opine that it was arson.
At the evidentiary hearing held in connection with the
instant petition, Dr. Jason Sutula testified on behalf of
[Smallwood]. He was qualified as an expert in the field of
fire investigation. He identified the National Fire
Protection Association Publication 921 ("NFPA
921") as the "gold standard" for fire
investigators. It was first published in 1992 and has been
revised numerous times since then. Applying the methodology
of NFPA 921 to this case, Dr. Sutula took issue with Trooper
Sweet's conclusions 1) that the fire was arson; and 2)
that there were two points of origin.
Dr. Sutula pointed out that Trooper Sweet's
classification of the fire as incendiary was
"premature." He went on to explain that pursuant to
NFPA 921 principles, a fire cannot be classified as
incendiary until other potential causes have been considered
and ruled out. Potential causes in this case included a
malfunction of the building's electrical system as well
as an accidental ignition of discarded furniture and trash in
the halls due to carelessly discarded smoking materials.
Applying the principles of NFPA 921 to the available
evidence, Dr. Sutula concluded that the cause of this fire
must be classified as "undetermined."
Further, Dr. Sutula pointed out that the original
investigation was not sufficient to determine that there was
a second point of origin on the third floor. It should be
noted that Dr. Sutula acknowledged that Trooper Sweet's
original investigation was acceptable according to the
methodology of fire investigation in 1972. However, fire
investigation at that time was more of an "art"
than a science.
PCRA Court Opinion, 7/27/15, at 1-4.
standard of review for an order denying post-conviction
relief is limited to examining whether the PCRA court's
determination is supported by evidence of record and whether
it is free of legal error. Commonwealth v. Jermyn,
709 A.2d 849, 856 (Pa. 1998); Commonwealth v.
Wilson, 824 A.2d 331 (Pa. Super. 2003) (en
banc). The scope of our 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 at the
trial level. Commonwealth v. Spotz, 84 A.3d 294, 311
(Pa. 2014). A second or subsequent petition for
post-conviction relief will not be entertained unless a
strong prima facie showing is offered to demonstrate that a
miscarriage of justice may have occurred. Commonwealth v.
Allen, 732 A.2d 582, 586 (Pa. 1999). A prima facie
showing of entitlement to relief is made "only by
demonstrating either that the proceedings which resulted in
conviction were so unfair that a miscarriage of justice
occurred which no civilized society could tolerate, or the
defendant's innocence of the crimes for which he was
charged." Commonwealth v. Ali, 86 A.3d 173, 177
(Pa. 2014), citing Allen, 732 A.2d at 586.
addressing the merits of a PCRA petition, we must first
determine whether the PCRA court had jurisdiction to
entertain the underlying petition. See Commonwealth v.
Fahy, 737 A.2d 214, 223 (Pa. 1999). A PCRA petition,
including a second or subsequent petition, must be filed
within one year of the date the judgment becomes final,
unless appellant can plead and prove one of three exceptions
set forth under 42 Pa.C.S.A. § 9545(b)(1), and that the
petition was filed within 60 days of the date the claim could
have been presented. 42 Pa.C.S. § 9454(b)(2). See
Commonwealth v. Alcorn, 703 A.2d 1054, 1056-57 (Pa.
Super. 1997). These time limits are jurisdictional in nature,
"implicating a court's very power to adjudicate a
controversy." Ali, 86 A.3d at 177, citing
Fahy, supra. Accordingly, the "period
for filing a PCRA petition is not subject to the doctrine of
equitable tolling[.]" Fahy, 737 A.2d at 222.
Instead, the time for filing can be extended "only if
the PCRA permits it to be extended, i.e., by
operation of one of the statutorily enumerated exceptions to
the PCRA time-bar." Ali, 86 A.3d at 177, citing
Fahy, 737 A.2d at 222.
Supreme Court has repeatedly stated it is the
petitioner'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). The Commonwealth contends Smallwood has not carried
PCRA provides, in relevant part:
(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 petition 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
(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
(2) Any petition invoking an exception provided in paragraph
(1) shall be filed within 60 days of the date the claim could
have been presented.
42 Pa.C.S § 9545(b) (emphasis added).
stated above, Smallwood's judgment of sentence became
final 40 years ago; therefore, her petition is patently
untimely. If, as the PCRA court found, Smallwood's
petition alleges and proves that her claim was predicated
upon "newly[-]discovered facts that were unknown"
and that those facts could not have been discovered sooner
through the exercise of "due diligence, " 42
Pa.C.S. §9545(b)(1)(ii), then "the PCRA court ha[d]
jurisdiction over the claim under this subsection."
Commonwealth v. Bennett, 930 A.2d 1264, 1270 (Pa.
2007) (footnote omitted). Additionally, Smallwood's
petition invoking the newly-discovered fact exception was
required to be "filed within 60 days of the date the
claim could have been ...