from the PCRA Order Entered December 18, 2018 in the Court of
Common Pleas of Centre County Criminal Division at No(s):
BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.
R. Cruz, Jr. ("Cruz"), appeals from the Order
dismissing his second Petition for relief filed pursuant to
the Post Conviction Relief Act ("PCRA").
See 42 Pa.C.S.A. §§ 9541-9546. We reverse
and remand for further proceedings.
Court previously set forth the relevant factual background as
Cruz was convicted of criminal homicide and theft on June 14,
1994[, ] and was sentenced to life imprisonment. At trial,
the Commonwealth entered evidence relating to a number of
hairs, recovered during the underlying criminal
investigation, which implicated Cruz in the murder.
Specifically, hair identified as belonging to the victim was
found in the cab of Cruz's truck, and hair identified as
belonging to Cruz was found on the ropes that had been used
to bind and fatally strangle the victim.
To establish that the recovered hairs belonged to Cruz and to
the victim, the Commonwealth relied, in part, on microscopic
hair analysis. [Federal Bureau of Investigation
("FBI")] Agent Chester Blythe [("Agent
Blythe")] testified at trial regarding the use of
microscopic hair analysis as a forensic method. In [his]
testimony, Agent Blythe drew scientific conclusions that
implicated Cruz in the murder of the victim. …
Commonwealth v. Cruz, 178 A.3d 208 (Pa. Super. 2017)
(unpublished memorandum at 1). On December 22, 1995, this
Court affirmed Cruz's judgment of sentence. See
Commonwealth v. Cruz, 674 A.2d 313 (Pa. Super. 1995)
(unpublished memorandum), appeal denied, 544 Pa. 673
March 10, 1997, Cruz filed his first PCRA Petition. The PCRA
court dismissed Cruz's Petition, and this Court affirmed
the dismissal. See Commonwealth v. Cruz, 120 A.3d
1047 (Pa. Super. 2015) (unpublished memorandum), appeal
denied, 633 Pa. 753 (Pa. 2015). "On April 20, 2015,
the [FBI] issued a press release admitting, for the first
time, that testimony by FBI analysts regarding microscopic
hair analysis in criminal trials was erroneous in the vast
majority of cases (hereinafter, "FBI press
release")." Commonwealth v. Chmiel, 173
A.3d 617, 619 (Pa. 2017).
September 10, 2015, Cruz filed the instant, pro se,
PCRA Petition, alleging that he had received a letter from
the Department of Justice (the "DOJ letter"),
advising him that Agent Blythe's testimony at his trial
contained erroneous statements. The PCRA court appointed Cruz
counsel, who filed an Amended Petition, arguing that
Cruz's PCRA Petition was timely filed under the
"newly-discovered fact" exception. See 42
Pa.C.S.A. § 9545(b)(1)(ii). After filing a Pa.R.Crim.P.
907 Notice of Intent to Dismiss, the PCRA court dismissed the
Petition without a hearing. This Court affirmed the Order of
the PCRA court, holding that Cruz's Petition was
untimely, and did not qualify for any of the three timeliness
exceptions. See Commonwealth v. Cruz, 178 A.3d 208
(Pa. Super. 2017) (unpublished memorandum).
the Cruz Court, relying on Commonwealth v.
Edmiston, 65 A.3d 339 (Pa. 2013), held that the
information within the DOJ letter was not a
"newly-discovered fact," but was instead, "a
new source of previously knowable facts." Cruz,
178 A.3d 208 (unpublished memorandum at 3). The Cruz
court stated that the FBI press release was merely new
analysis of old facts, and therefore, did not support a
timeliness exception under section 9545(b)(1)(ii).
sought allowance of appeal with our Supreme Court. The
Pennsylvania Supreme Court granted Cruz's Petition for
allowance of appeal, vacated this Court's order, and
remanded to the PCRA court, in light of the Pennsylvania
Supreme Court's decision in Chmiel, 173 A.3d at
628 (holding that the FBI press release is a newly-discovered
fact "upon which [appellant]'s underlying claim is
predicated," as that phrase is defined in the PCRA's
exception to the one-year filing requirement, 42 Pa.C.S.A.
§ 9545(b)(1)(ii)). See Commonwealth v. Cruz,
183 A.3d 348 (Pa. 2018) (unpublished per curiam order).
remand, the PCRA court dismissed Cruz's Petition without
a hearing, finding that, even in light of the Pennsylvania
Supreme Court's holding in Chmiel, Cruz's
Petition was untimely. See PCRA Court Opinion,
12/14/18, at 1-2 (unnumbered). The PCRA court reasoned that
Cruz's sixty-day time limit for asserting the
newly-discovered fact exception started on April 20, 2015,
the date of the FBI press release. The PCRA court determined
that Cruz's PCRA Petition, dated September 10, ...