J-S67022-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALLAN C. CAMP, JR.
Appellant No. 508 WDA 2014
Appeal from the PCRA Order February 28, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0011111-1993
CP-02-CR-0011141-1993
BEFORE: DONOHUE, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED JANUARY 14, 2015
Appellant, Allan C. Camp, Jr., appeals pro se from the February 28,
2014 order dismissing as untimely his second petition for relief filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546. After careful review, we affirm.
The relevant factual and procedural history of the case follows. On
April 14, 1994, a jury convicted Appellant of numerous offenses, from nine
separate criminal informations, in connection with a series of burglaries
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*
Former Justice specially assigned to the Superior Court.
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perpetrated between September 19, 1991 and March 9, 1993.1 On April
21, 1994, the trial court sentenced Appellant to an aggregate term of
incarceration of 73 to 146 years. Appellant appealed his judgment of
sentence and this Court reversed his conviction on one burglary charge
unrelated to the cases on appeal, vacated the entire sentence, and
remanded for resentencing. See Commonwealth v. Camp, 862 PGH 1994
(Pa. Super. 1995) (unpublished memorandum) (Camp I). At Appellant’s
resentencing on September 12, 1995, the trial court again sentenced
Appellant to an aggregate term of incarceration of 73 to 146 years.2 After
Appellant’s direct appeal rights were reinstated, this Court affirmed the
September 12, 1995 judgment of sentence on September 14, 2000, and our
Supreme Court denied Appellant’s subsequent petition for allowance of
appeal on February 14, 2001. See Commonwealth v. Camp, 766 A.2d
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1
At issue in the current appeal are the case at CP-02-CR-0011111-1993,
wherein Appellant was convicted of burglary, 18 Pa.C.S.A. § 3502; rape, 18
Pa.C.S.A. §§ 3121(a)(1) and (2); involuntary deviate sexual intercourse
(IDSI), 18 Pa.C.S.A. § 3123(a)(5); aggravated indecent assault, 18
Pa.C.S.A. § 3125(a)(6); and indecent assault, 18 Pa.C.S.A. § 3126(a)(6);
and the case at CP-02-CR-0011141-1993, wherein Appellant was convicted
of burglary; rape; two counts of IDSI; and theft by unlawful taking, 18
Pa.C.S.A. § 3921(a). N.T., 4/21/94, at 2-3.
2
Appellant’s sentence on the charges subject to this appeal remained
unchanged, to wit, consecutive terms of incarceration of five to 10 years for
each burglary, seven and one-half to 15 years for each rape, seven and one-
half to 15 years for each IDSI, five to 10 years for aggravated indecent
assault, and no additional penalty on the remaining counts. N.T., 4/21/94,
at 13, 15.
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884 (Pa. Super. 2000) (unpublished memorandum), appeal denied, 785
A.2d 87 (Pa. 2001).
Thereafter, Appellant filed a timely first PCRA petition, which the PCRA
court denied on September 5, 2001. Appellant appealed, this Court affirmed
on September 6, 2002, and our Supreme Court denied Appellant’s petition
for allowance of appeal on December 19, 2002. See Commonwealth v.
Camp, 813 A.2d 900 (Pa. Super. 2002) (unpublished memorandum), appeal
denied, 813 A.2d 836 (Pa. 2002).
On October 2, 2013, Appellant filed a pro se PCRA petition. The PCRA
court appointed counsel to represent Appellant. On November 26, 2013,
counsel filed a motion to withdraw together with a no-merit letter in
accordance with the dictates of Commonwealth v. Turner, 544 A.2d 927
(Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super 1988)
(en banc). Appellant filed a response to counsel’s motion to withdraw on
December 12, 2013, which included a motion to preserve all forensic
evidence. On December 20, 2013, the PCRA court granted counsel’s motion
to withdraw and gave notice to Appellant, in accordance with Pennsylvania
Rule of Criminal Procedure 907, of its intention to dismiss his PCRA petition
without a hearing. Appellant did not file a response to the PCRA court’s Rule
907 notice, but did file a pro se motion for DNA testing pursuant to 42
Pa.C.S.A. § 9543.1 on December 20, 2013. On February 28, 2014, the
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PCRA court dismissed Appellant’s PCRA petition without a hearing. The
PCRA court did not dispose of Appellant’s motion for DNA testing.
Appellant filed a timely pro se notice of appeal on March 28, 2014.
The PCRA court did not order Appellant to file a Pennsylvania Rule of
Appellate Procedure Rule 1925(b) concise statement of errors complained of
on appeal. The PCRA Court issued a Rule 1925(a) opinion on July 15, 2014.
On appeal, Appellant raises the following issues for our review.
1. Whether the PCRA court was in error when it
dismissed Appellant’s PCRA petition without a
hearing, where Appellant raised and demonstrated a
strong prima facie showing of actual innocence
through newly discovered evidence?
2. Whether the PCRA court was in error when it
dismissed Appellant’s PCRA motions to preserve all
forensic DNA evidence as well as Appellant’s motion
for PCRA DNA retesting, where the Commonwealth’s
forensic testing is unreliable?
Appellant’s Brief at 4.
We acknowledge the following principles guiding our consideration of
an appeal from the denial of PCRA relief. “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. Edmiston, 65 A.3d 339, 345 (Pa. 2013)
(citation omitted), cert. denied, Edmiston v. Pennsylvania, 134 S. Ct. 639
(2013). “[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
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prevailing party at the PCRA court level.” Commonwealth v. Koehler, 36
A.3d 121, 131 (Pa. 2012) (citation omitted). “The PCRA court’s credibility
determinations, when supported by the record, are binding on this Court.”
Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation omitted).
“However, this Court applies a de novo standard of review to the PCRA
court’s legal conclusions.” Id.
In order to be eligible for PCRA relief, a petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2).
These issues must be neither previously litigated nor waived. 42 Pa.C.S.A.
§ 9543(a)(3). In its February 28, 2014 order, the PCRA court denied
Appellant’s PCRA petition without a hearing based on a lack of any genuine
issue of material fact entitling him to relief, however, it noted the
untimeliness of Appellant’s petition in its July 15, 2014 Rule 1925 opinion.
PCRA Court Order, 2/28/14, at 1; Trial Court Opinion, 7/15/14, at 2.
The issue of timeliness implicates the jurisdiction of this Court and the
PCRA court. “Because these timeliness requirements are mandatory and
jurisdictional in nature, no court may properly disregard or alter them in
order to reach the merits of the claims raised in a PCRA petition that is filed
in an untimely manner.” Commonwealth v. Lopez, 51 A.3d 195, 196 (Pa.
2012) (internal quotation marks and citation omitted). The PCRA “confers
no authority upon this Court to fashion ad hoc equitable exceptions to the
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PCRA time-bar[.]” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011)
(citation omitted). This is to “accord finality to the collateral review
process.” Id. “It is well settled that [a]ny and all PCRA petitions must be
filed within one year of the date on which the petitioner’s judgment became
final, unless one of three statutory exceptions applies.” Commonwealth v.
Garcia, 23 A.3d 1059, 1061-1062 (Pa. Super 2011) (internal quotation
marks, citation, and footnote omitted), appeal denied, 38 A.3d 823 (Pa.
2012). “We have repeatedly stated it is the appellant’s burden to allege and
prove that one of the timeliness exceptions applies. Whether [an a]ppellant
has carried his burden is a threshold inquiry prior to considering the merits
of any claim.” Edmiston, supra at 346 (citation omitted).
The Act provides, in relevant part, as follows.
§ 9545. Jurisdiction and proceedings
…
(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;
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(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.
…
42 Pa.C.S.A. § 9545(b).
Instantly, Appellant’s PCRA petition is patently untimely. Appellant’s
judgment of sentence became final on May 15, 2001, 90 days after our
Supreme Court denied Appellant’s petition for allowance of appeal and in the
absence of further appeal to the Supreme Court of the United States. See
Sup. Ct. R. 13. Appellant’s PCRA petition, having been filed on October 2,
2013, is clearly beyond the one-year filing requirement. Appellant
acknowledges as much but argues he has properly pled and proved an after-
discovered facts exception to the PCRA timeliness constraints.3 Appellant’s
Brief at 12.
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3
In his brief, Appellant conflates his Section 9543(a)(2)(vi) unknown-
evidence claim with his Section 9545(b)(1)(ii) unknown-facts timeliness
exception. Appellant’s Brief at 13-15. “An after-discovered evidence claim
(Footnote Continued Next Page)
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Our Supreme Court has previously described a
petitioner’s burden under the newly-discovered fact
exception as follows.
[S]ubsection (b)(1)(ii) has two components,
which must be alleged and proved. Namely,
the petitioner must establish 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.”
42 Pa.C.S. § 9545(b)(1)(ii) (emphasis added).
Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d
1264, 1272 (2007). “Due diligence demands that
the petitioner take reasonable steps to protect his
own interests. A petitioner must explain why he
could not have learned the new fact(s) earlier with
the exercise of due diligence. This rule is strictly
enforced.” [Commonwealth v.] Williams, [35
A.3d 44,] 53 [(Pa. Super. 2011), appeal denied, 50
A.3d 121 (Pa. 2012)]. Additionally, as this Court has
often explained, all of the time-bar exceptions are
subject to a separate deadline.
The statutory exceptions to the
timeliness requirements of the PCRA are also
subject to a separate time limitation and must
be filed within sixty (60) days of the time the
claim could first have been presented. See 42
Pa.C.S.A. § 9545(b)(2). The sixty (60) day
time limit ... runs from the date the petitioner
first learned of the alleged after-discovered
facts. A petitioner must explain when he first
learned of the facts underlying his PCRA claims
_______________________
(Footnote Continued)
and the timeliness exception based on previously unknown facts are distinct.
The issues are analyzed differently.” Commonwealth v. Frey, 41 A.3d
605, 611 (Pa. Super. 2012) (citations omitted), appeal denied, 65 A.3d 413
(Pa. 2013). “Thus, the relative merit of Appellant’s underlying PCRA claims
is not the issue when determining whether his PCRA petition satisfies the
after-discovered fact exception.” Commonwealth v. Davis, 86 A.3d 883,
891, n.7 (Pa. Super. 2014).
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and show that he brought his claim within sixty
(60) days thereafter.
Id. (some citations omitted).
Commonwealth v. Medina, 92 A.3d 1210, 1216 (Pa. Super. 2014).4
Instantly, Appellant’s underlying claim is that the Commonwealth
presented forensic DNA evidence at trial that it “knew or should have known
to be false.” Appellant’s Brief at 11. In support of that claim, Appellant
advances, as a previously unknown fact, an article authored by “Dr. Ernest
P. Chiodo, M.D., J.D., M.P.H., M.B.A., C.I.H., which include’s [sic] his expert
opinion on what constitutes a ‘match’ in DNA forensics.” Appellant’s Brief at
13. Appellant cites the following excerpt from Dr. Chiodo’s article as the
pertinent new “fact”.
In DNA profiling, a number of genetic loci are
sampled. If “any” of the genetic loci differ between
the suspect and the crime scene sample, then the
suspect is excluded as a source of the crime scene
sample.
Appellant’s Brief at 14, quoting Ernest P. Chiodo, Genetic and DNA Evidence:
The Emperor Has No Clothes, Prison Legal News, Aug. 2013, at 40;
Appellant’s PCRA petition, 10/2/13, Exhibit A. Appellant further notes, “the
tenor of the article … was [a] warning against exaggerated statistical
probabilities by prosecutors.” Id., quoting PCRA Counsel’s 11/26/13, No-
Merit Letter, at 3.
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4
Our Supreme Court has granted the Commonwealth’s petition for
allowance of appeal in Medina. Commonwealth v. Medina, ---A.3d---,
2014 WL 6991663, (Pa. 2014).
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Upon review of Appellant’s PCRA petition, his response to counsel’s
motion to withdraw, and Appellant’s appellate briefs, we conclude that Dr.
Chiodo’s article does not constitute a new “fact” as that term is employed in
Section 9545(b)(1)(ii). In Commonwealth v. Gamboa-Taylor, 753 A.2d
780, 786-787 (Pa. 2000), our Supreme Court addressed whether revised
expert opinions relative to the appellant’s competency could constitute newly
discovered facts for the purpose of Section 9545(b)(1)(ii).
This Court has held that a medical expert’s change of
opinion from that given at trial, which is based
merely on the examination of additional information
that was available at the time the initial opinion was
proffered, does not constitute after-discovered
evidence. Commonwealth v. Cross, 555 Pa. 603,
726 A.2d 333 (1999). Certainly, in keeping with the
rationale of Cross, a completely new opinion
uncovered after trial would also not be recognized as
after-discovered evidence.
Gamboa-Taylor, supra at 786. The Court concluded that all of the “facts”
pertaining to the appellant’s mental condition were known or knowable at
trial and a new opinion regarding the same is “not a cognizable claim under
the narrow [timeliness] exception for after-discovered evidence.” Id. at
787.
Here, Dr. Chiodo’s article, and his opinions expressed therein, present
no new fact pertinent to the DNA evidence in Appellant’s trial. Rather, Dr.
Chiodo’s article cautions against prosecution assertions of DNA statistical
matches that are based on incorrect assumptions. Appellant’s PCRA petition,
10/2/13, Exhibit A, Ernest P. Chiodo, Genetic and DNA Evidence: The
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Emperor Has No Clothes, Prison Legal News, Aug. 2013, at 40-41. At most,
Dr. Chiodo’s article suggests a theory upon which to question evidence of
DNA matches that are based on statistical probability. See id. In other
words, it suggests a lens through which to view such evidence. There is no
suggestion that this approach is a new discovery or based on new science.
See id. In fact, Appellant concedes that he does not argue that Dr. Chiodo’s
article presents “a new technique for DNA analysis, or a scientific advance in
the field,” but merely that the article itself was previously unknown and
unavailable. Appellant’s Reply Brief at 3-4 (internal quotation marks
omitted). It is thus apparent that Appellant has failed to allege a new
unknown fact upon which his claim is grounded.5 See Gamboa-Taylor,
supra.
Having failed to assert an exception to the PCRA’s timeliness
limitations, we conclude Appellant’s October 2, 2013 PCRA petition is
untimely and that the PCRA court and this Court lack jurisdiction to address
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5
Significantly, Appellant raised the issue of trial counsel’s ineffectiveness
“for failing to object to statistical analysis of DNA evidence offered by several
of the Commonwealth’s expert witnesses” in his first direct appeal. Camp I,
supra at 11. This Court determined that “[a]ssuming arguendo that the
admission of the statistical analysis was error, in light of other physical
evidence supporting Appellant’s convictions the error was harmless.” Id.
Thus, all the facts relative to the propriety of the Commonwealth’s DNA
evidence were known at the time of Appellant’s trial.
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its merits. Accordingly, we conclude the PCRA court did not err or abuse its
discretion in dismissing Appellant’s PCRA petition without a hearing.6
In his second issue, Appellant challenges the PCRA court’s purported
denial of his motion for DNA testing under 42 Pa.C.S.A. § 9543.1. As noted
above, however, the PCRA court never disposed of that motion. Further,
“the litigation of a motion for DNA testing under Section 9543.1 is, in
substance, a wholly separate proceeding from litigation of a PCRA petition.”
Commonwealth v. Scarborough, 64 A.3d 602, 609 (Pa. 2013); see also
Edmiston, supra at 342 (addressing PCRA petition and motion for DNA
testing as distinct actions), Williams, supra at 50-51 (noting, “[t]his Court
has held that a PCRA petition cannot be used to make a motion for DNA
analysis, and the reverse is surely true as well”) (internal quotation marks
and citations omitted). Therefore, the PCRA court’s February 28, 2014 order
dismissing Appellant’s PCRA petition did not affect Appellant’s still-pending
motion for DNA testing. Accordingly, there is no final order from which
Appellant can appeal relative to his motion for DNA testing. See Pa.R.A.P.
301 (explaining requisites for an appealable order). Because Appellant’s
second issue is premature, we cannot address it.
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6
Because we determine Appellant did not aver a new fact that would satisfy
the time-bar exception under Section 9545(b)(1)(ii), we do not need to
address whether August 2013 was the original publication date of the article
or a reprinting as asserted by the Commonwealth, or whether Appellant
acted with due diligence to discover the article. See Commonwealth’s Brief
at 24-25.
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Based on the foregoing, we conclude the PCRA court committed no
error or abuse of discretion in dismissing Appellant’s PCRA petition as
untimely. Further, we conclude the PCRA court’s dismissal of Appellant’s
PCRA petition did not dispose of Appellant’s motion for DNA testing, which
remains pending before the PCRA court. Accordingly, we affirm the PCRA
court’s February 28, 2014 order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/14/2015
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