Commonwealth v. Smallwood

J-A06025-16

2017 PA Super 25

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

LETITIA DENISE SMALLWOOD

Appellee No. 709 MDA 2015

Appeal from the Order Entered April 20, 2015
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0000088-1972

BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

OPINION BY LAZARUS, J.: FILED FEBRUARY 01, 2017

The 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.1
____________________________________________

1
On September 30, 2016, and January 11, 2017, Smallwood filed motions
for leave to file post-submission communications (supplemental authority).
We grant both motions. See Pa.R.A.P. 2501(a). Two prior motions for
leave to file post-submission communications were filed on March 18, 2016
(Footnote Continued Next Page)
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On January 11, 1973, a jury convicted Smallwood of one count of

arson2 and two counts of first-degree murder.3 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 appeal4 on January 29, 1976. Commonwealth

v. Smallwood, 350 A.2d 822 (Pa. 1976).
_______________________
(Footnote Continued)

and August 5, 2016; those motions were granted by this Court by separate
orders, dated March 24, 2016, and August 8, 2016.
2
18 Pa.C.S. § 2502(d).
3
18 Pa.C.S. § 3301(a)(2).
4
See Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L.
673, art. II, § 202(1), 17 P.S. § 211.202(1) (Supp. 1975), modified by
Supreme Court Rule 73 of 1975, reenacted at 42 Pa.C.S.A. § 722. Prior to
the Act of September 23, 1980, P.L. 686, No. 137, § 1, effective November
22, 1980 (Act 137 of 1980), Section 722 of the Judicial Code included
among the classes of cases within the Supreme Court’s exclusive
jurisdiction, under the former version of its subsection (1), “Felonious
homicide.” Act No. 137 of 1980, which amended Section 722 of the Judicial
Code into its present form, had as a prime purpose relieving the Supreme
Court of the burden of dealing with all appeals in cases of felonious
homicide. Recognizing the increased burden the removal of these and other
matters from the Supreme Court’s jurisdiction would have on the Superior
Court, the legislature passed the Act of June 11, 1980, P.L. 213, No. 63, 42
Pa.C.S. § 541, which increased the size of Superior Court from seven to
fifteen members. In Act 137, the legislature also rewrote Section 722(4) of
the Judicial Code to insure by explicit requirement that an automatic,
searching and independent review of all death sentences would be available
in the Supreme Court on a mandatory basis, in accordance with Section
9711(h) of the Sentencing Code.

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Smallwood’s 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).

In 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.

Fifteen 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

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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.

The 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 killed.

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

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(“NFPA 921”)[5] 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.

Initially, 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

____________________________________________

5
The NFPA 921 is a guide for “scientific-based investigation and analysis of
fire and explosion incidents . . . [and] the foremost guide for rendering
accurate opinions as to incident origin, cause, responsibility, and
prevention.” NFPA 921 covers “[a]ll aspects of fire and explosion
investigation . . . from basic methodology to collecting evidence to failure
analysis. Guidelines apply to all types of incidents from residential fires and
motor vehicle fires to management of complex investigations such as high-
rise fires and industrial plant explosions.” The purpose of NFPA 921 is “to
assist individuals who are charged with the responsibility of investigating and
analyzing fire and explosion incidents and rendering opinions as to the
origin, cause, responsibility, or prevention of such incidents, and the damage
and injuries which arise from such incidents.” NFPA 921: Guide for Fire and
Explosion Investigators, National Fire Protection Association,
http://www.nfpa.org/codes-and-standards/all-codes-and-standards/list-of-
codes-and-standards?mode=code&code=921 (last visited Jan. 17, 2017).

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1972. However, fire investigation at that time was more of an
“art” than a science.

PCRA Court Opinion, 7/27/15, at 1-4.

Our 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.

Before 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.

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1999). A PCRA petition, including a second or subsequent petition, must be

filed within one year of the date the judgment becomes final, 6 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.

____________________________________________

6
A judgment of sentence “becomes final at the conclusion of direct review,
including discretionary review in the Supreme Court of the United States and
the Supreme Court of Pennsylvania, or at the expiration of time for seeking
the review.” 42 Pa.C.S. § 9545(b)(3). See Pa.R.A.P. 1113(a) (“[A] petition
for allowance of appeal shall be filed with the Prothonotary of the Supreme
Court within 30 days of the entry of the order of the Superior Court sought
to be reviewed.”); U.S. Sup.Ct. Rule 13 (“[A] petition for writ of certiorari
seeking review of a judgment of a lower state court that is subject to
discretionary review by the state court of last resort is timely when filed with
the clerk within ninety [90] days after entry of the order denying
discretionary review.”). The Pennsylvania Supreme Court denied
Smallwood’s direct appeal on January 29, 1976. Therefore, Smallwood’s
judgment of sentence became final on April 30, 1976, upon the expiration of
the time to seek review in the United States Supreme Court. See U.S.
Sup.Ct. Rule 13.

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Our 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 this burden.

The 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 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.

42 Pa.C.S § 9545(b) (emphasis added).

As stated above, Smallwood’s judgment of sentence became final 40

years ago; therefore, her petition is patently untimely. If, as the PCRA court

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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

presented.” 42 Pa.C.S. § 9545(b)(2). See Commonwealth v. Albrecht,

994 A.2d 1091 (Pa. 2010); Commonwealth v. Marshall, 947 A.2d 714,

720 (Pa. 2008).7

In her PCRA petition, Smallwood relies on Dr. Sutula’s February 18,

2014 affidavit.8 In his affidavit, Dr. Sutula applied the most recent edition of

____________________________________________

7
The goal of the PCRA is to provide relief to the wrongfully convicted by
ferreting out colorable claims of wrongful convictions. 42 Pa.C.S. § 9541, et
seq.
8
Dr. Sutula holds a doctorate in Engineering from the College of Science and
Engineering at the University of Edinburgh, Scotland, and both a Master of
Science Degree and a Bachelor of Science Degree in Fire Protection
Engineering from the University of Maryland. Doctor Sutula holds two
certifications from the National Association of Fire Investigators (NAFI): he
is a Certified Fire and Explosion Investigator (CFEI) and a Certified Fire
Investigation Instructor (CFII).

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the NFPA 921 standards9 to the facts of Smallwood’s case. Doctor Sutula

stated:

The most important result of the NFPA 921 technical committee’s
work, along with feedback from the general public, was a
document that clearly outlined an accepted methodology for
conducting sound fire and explosion investigations. Additionally,
the first guide discredited many common misconceptions and
“rules of thumb” that were routinely used to form opinions and
conclusions about a given fire scene. . . . Currently, both of the
organizations that certify fire investigators, NAFI and IAAI,[ 10]
recognize NFPA 921 as the authoritative guide when performing
a fire investigation. Both organizations have incorporated NFPA
____________________________________________

9
NFPA 921, Guide for Fire and Explosion Investigation, 2014 Edition.
10
The International Association of Arson Investigators (IAAI) issued the
following statement on January 12, 2013:

It is the position of the International Association of Arson
Investigators that National Fire Protection Association (NFPA)
Document 921 is widely recognized as an authoritative guide for
the fire investigation profession. In addition, NFPA 921 is an
important reference manual, and sets forth guidance and
methodology regarding the determination of the origin and cause
of fires. This Association uses NFPA 921, along with other
documents including NFPA 1033, as a foundation for its training
and certification programs.

The statement reaffirms the IAAI’s long-standing recognition of
the importance of NFPA 921 to the knowledge and methodology
of fire investigation. “Authoritative” means the guide is an
accepted source of information, and known to be accurate and
reliable. By its own terms the document is not a “standard,” and
is subject to revision and updating on a periodic basis to allow it
to remain current with the expanding scientific and technical
knowledge in the fire investigation field.

NFPA 921/1033 Position Statement, https://www.firearson.com/NFPA-
9211033-Position-Statement/Default.aspx (last visited Jan. 17, 2017).

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921 as the foundation for their certification process,
recommend its methodology when conducting a fire
investigation, and use the document to generate questions that
appear on their individual certification exams.

Affidavit of Jason A. Sutula, Ph.D., 2/18/15, at ¶¶ 17-21 (emphasis added).

Doctor Sutula opined, to a reasonable degree of engineering and scientific

certainty, that application of those standards indicates that Trooper Sweet’s

classification of the fire as incendiary was premature because two other

possible causes of the fire, electrical and accidental, had not been ruled out.

Id. at ¶¶ 35-41.

The PCRA court determined that the “newly[-]discovered facts” were

Dr. Sutula’s application of the NFPA 921 standards to the evidence available

in this case. PCRA Court Opinion, 7/27/15, at 6-8. The court stated that

from the time Smallwood saw the 1999 television program featuring Dr.

Hurst, she “attempted to acquire more information on the current advances

in fire science while trying to secure legal assistance to pursue her claim.”

Id. at 6. The PCRA court recounted Smallwood’s decade-long effort to

support her claim that “new science” would undermine Trooper Sweet’s

opinion that the fire was arson. Id.

Smallwood contacted Dr. Hurst, as well as attorney and law professor

Thomas M. Place,11 to discuss her case. Shortly after seeing Dr. Hurst on

____________________________________________

11
Thomas M. Place, a member of the Pennsylvania bar and professor of law
at Pennsylvania State University, The Dickinson School of Law, is the author
of The Pennsylvania Post-Conviction Relief Act—Practice and Procedure
(Footnote Continued Next Page)

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television, she petitioned the court for copies of her transcripts and state

police reports. She corresponded with Dr. Hurst throughout the spring of

1999, and corresponded with Professor Place, who agreed in 2000 to work

on her case with Dr. Hurst.

Smallwood, incarcerated and indigent, attempted to reconstruct the

floor plans of the building at 11 North Pitt Street, filing a Right to Know

request in an attempt to obtain records from the Union Fire Company. She

also contacted various agencies for investigative and legal assistance,

including Susquehanna Legal Services, the Pennsylvania Institutional Law

Project, the Defender Association of Philadelphia, the Innocence Institute at

Point Park University, Spotlight Enterprises, Centurion Ministries, the

Innocence Project in New York, and Associated Fire Consultants, Inc. See

Evidentiary Hearing, 3/27/15, Certification of Letitia Smallwood, 5/15/14,

Exhibit P-2, ¶ 24.

In March 2000, Centurion Ministries wrote to Smallwood, indicating

Professor Place hoped to obtain a new trial for her with the help of Dr. Hurst.

In May 2000, Dr. Hurst wrote to Smallwood and told her “she had not been

forgotten,” and that Professor Place was “looking for an additional expert in

the area.” Id. at ¶ 23(u).

_______________________
(Footnote Continued)

(2016 11th ed.) and various other publications on post-conviction law in
Pennsylvania.

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In August 2002, Dr. Hurst wrote to Smallwood; he relayed to her that

another expert had informed Professor Place that Dr. Hurst’s approach to her

case was not correct. Dr. Hurst acknowledged there was more than one way

to approach the case, and emphasized she needed a competent attorney

who understood post-conviction law. Because she knew Professor Place was

an expert in that area, she “continued to rely on his commitment to [her]

case.” Id. at ¶ 23(ww).

In September 2004, Smallwood wrote to her friend, Ms. Grant, telling

her that “Professor Place had just stopped working on my case[,]” asking her

to help her find an attorney, and suggesting Dr. Hurst “testify through a

deposition because of his poor health.” Id. at ¶ 23(aaa). In June 2009,

Smallwood again wrote to Ms. Grant, “expressing frustration that Professor

Place had procrastinated about my case for ten years.” Id. at ¶ 23(jjj).12

On September 24, 2009, Smallwood wrote to the Pennsylvania Innocence

Project asking for assistance with her case. Id. at ¶ 25.

In 2012, the Pennsylvania Innocence Project at Temple University

Beasley School of Law contacted the Cumberland County District Attorney’s

Office and requested copies of any records remaining in the case file.

____________________________________________

12
The record is replete with references that Professor Place for years
unsuccessfully sought assistance to discover additional information about the
construction of the interior of the building. It was his opinion this
information was essential for any expert to be able to call into question the
trial testimony of the Commonwealth’s expert.

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Ultimately, the Innocence Project was notified on January 17, 2014 that Dr.

Sutula had completed his review of the available records from Smallwood’s

case. Nilam A. Sanghvi, staff attorney at the Pennsylvania Innocence

Project, certified that Dr. Sutula had informed him and his co-counsel,

Joshua D. Snyder of Boni & Zack, LLC, “that he had completed his review of

the available materials from Ms. Smallwood’s case[.]” See Evidentiary

Hearing, 3/27/15, Certification of Witness Pursuant to 42 Pa.C.S. §

9545(d)(1), 3/13/14, Exhibit P-95, at ¶ 2. Based on his review of the

available documents, Attorney Sanghvi certified that Dr. Sutula had

concluded that “Trooper Williams Sweet’s testimony, and the evidence he

relied on to reach it, were fundamentally unreliable in light of what is now

known about fire investigations[.]” Id. at ¶ 3. Of note, Dr. Sutula stated

that, “based on the evidence presented, it was impossible to say whether

the fire was accidental or was intentionally set.” Id.

The PCRA court concluded that Smallwood had met the due diligence

component of the newly-discovered facts exception under section

9545(b)(1)(ii). The PCRA court also found that the sixty-day clock ran from

February 18, 2014, the date Dr. Sutula submitted his affidavit to the

Pennsylvania Innocence Project. Therefore, the PCRA court was satisfied

that Smallwood had exercised due diligence in bringing her claim and that

her petition, filed on March 14, 2014, within 60 days of the Dr. Sutula’s

affidavit, was timely filed. Quoting our Supreme Court and this Court, the

PCRA court stated that the due diligence standard “requires neither perfect

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vigilance nor punctilious care, based on the particular circumstances, to

uncover facts that may support a claim for collateral relief[,]” yet “demands

that the petitioner take reasonable steps to protect [her] own interests.”

PCRA Court Opinion, supra at 5, quoting Commonwealth v. Hill, 736 A.2d

578, 588 (Pa. 1999) (internal citations omitted) and Commonwealth v.

Marshall, 947 A.2d 714, 720 (Pa. Super. 2008) (citation and punctuation

omitted) (emphasis added).

The Commonwealth disputes the PCRA court’s due diligence

determination, arguing that what occurred between 1999 and 2014 was not

due diligence or reasonable efforts, but instead, “years of attorney and

expert shopping.” Appellant’s Brief, at 71. Essentially, the Commonwealth

concedes that in 1972, the time of trial, arson investigation was more of an

art than a science. Considerable advances made in the ensuing twenty

years transformed the art of fire investigation into a science. Publication of

NFPA 921, and its subsequent revisions, and application of its principles, are

now critical to the determination of whether a fire was incendiary. The

Commonwealth contends that Dr. Sutula’s February 18, 2014 affidavit,

which relied on the 2014 edition of the NFPA 921, is simply a “new” opinion

based on “old methodology and facts[.]” Appellant’s Brief, at 57. The

Commonwealth claims that the petition is untimely because a “new” expert

opinion based on old methodology and facts does not “reset” the clock, “nor

does expert shopping constitute due diligence[.]” Commonwealth’s Brief, at

4.

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We are constrained to agree. Both Smallwood and the trial court

misapprehend the focus of where due diligence is to be examined. Simply

put, the methodology on which Dr. Sutula relies has been in the public

domain since 1992, and Smallwood became aware of it through Dr. Hurst in

1999.

The NFPA 921 standard is the new fact in this case. As such,

Smallwood had to demonstrate the standard was unknown to her and could

not have been ascertained by the exercise of due diligence any earlier than

60 days before she filed her second PCRA petition. She has not

demonstrated this; instead, the record reveals that after learning of NFPA

921 in 1999, Smallwood spent immense time and effort over the next fifteen

years attempting to find evidence of the construction of the subject building

so that her expert could offer an alternative theory as to the cause of the

fire. If successful, an alternative theory would call into question -- and

eliminate -- arson as a credible conclusion using the scientific method under

NFPA 921. Of significance here, however, is that Smallwood did not have to

establish an alternative theory for purposes of overcoming the timeliness

exception; she simply needed to establish that application of the scientific

method under NFPA 921 would lead to the conclusion that the cause of the

fire in this case was undetermined.

Although Dr. Sutula’s February 18, 2014 affidavit did contain newly-

discovered facts that would permit the PCRA court to consider an otherwise

untimely petition, we cannot conclude that Smallwood established that these

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“facts” could not have been ascertained prior to 2014 with the exercise of

due diligence. Smallwood put forth great effort, but we are unable to find

that these steps over fifteen years were reasonable given the statutory time

restrictions. What these efforts demonstrate is due diligence in attempting

to unearth new evidence to support an alternative theory of the cause of the

fire in this case after learning of the NFPA 921 standard. These efforts do

not bear upon the existence and timing of Smallwood’s knowledge of NFPA

921 through Dr. Hurst in 1999, the new fact in this case. Several recent

cases are instructive.

In Commonwealth v. Cox, 146 A.3d 221 (Pa. 2016), the defendant

confessed to two murders, and the court joined the cases for trial in 1995.

In addition to the defendant’s confessions, the Commonwealth introduced

the testimony of Philadelphia Police Officer James O’Hara, who had

performed ballistics testing on bullets recovered from the victims’ bodies.

The jury convicted defendant of two counts of first-degree murder.

Defendant was sentenced to life imprisonment for one murder and to death

on the other. On direct appeal, the Supreme Court affirmed,

Commonwealth v. Cox, 728 A.2d 923 (Pa. 1999) and, thereafter, affirmed

the denial of his first PCRA petition. Commonwealth v. Cox, 983 A.2d 666

(Pa. 2009). Defendant filed a second PCRA petition, claiming counsel was

ineffective for failing to have independent ballistics testing performed. Our

Supreme Court held the defendant failed to establish that he had acted with

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due diligence in seeking out ballistics evidence, and therefore had failed to

prove an exception to the one-year time bar. The Court stated:

Cox was required to establish that the fact upon which he bases
his claim was unknown to him and that he could not have
discovered it through due diligence. The fact upon which Cox’s
claim is based is the conclusion that the second Davis bullet was
not fired from the gun used in the Watson murder. This
conclusion resulted from the ballistics analysis performed by
Officers Walker and Cruz. Cox did not discover this fact until
Officers Walker and Cruz issued their report on April 30, 2013; it
was therefore unknown to him until that date. Cox cannot,
however, establish that he could not have ascertained this fact
through the exercise of due diligence. . . . Cox’s initial attempt
to obtain the ballistics evidence was made in his first PCRA
petition, in connection with his claim that counsel was ineffective
for failing to seek independent ballistics testing. The salient
question is whether in so doing, Cox acted with reasonable effort
to discover the facts upon which his claim is based. . . .
[T]here is no question that Cox knew that more testing
could be performed on the ballistics evidence at the time
of trial in 1995. It was not until six years later, in 2001,
that Cox first attempted to obtain the ballistics evidence
through his first PCRA petition, in connection with his
claim that trial counsel was ineffective for failing to seek
independent testing thereof. By raising this claim in his first
PCRA petition, Cox has effectively conceded that the testing
could have been done at the time of trial. . . . Cox acknowledges
that the testing could have been done at the time of trial, but
offers no explanation as to why he did not seek such testing at
that time. Instead, he took no action to obtain the additional
testing for six years. It is this lengthy, unexplained delay
that defeats the possibility of a conclusion that Cox acted
with reasonable effort to obtain ballistics testing.

Cox, 146 A.3d at 230-31 (citations and footnotes omitted) (emphasis

added).13
____________________________________________

13
Notably, the Cox Court stated:
(Footnote Continued Next Page)

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Similarly, in Commonwealth v. Stokes, 959 A.2d 306 (Pa. 2008),

the Court concluded that the defendant could not prove due diligence in

discovering files containing allegedly exculpatory evidence, the information

upon which his claims were based, because the record revealed that he

knew that the files existed for years before he attempted to obtain them.

Notably, the Stokes Court emphasized that defendant “never asserted that

the prosecution (or anyone else) prevented him from gaining access to those

files in the [twelve] years between the date his direct appeal was decided

and the date he ultimately sought the files.” Id. at 310-11. “The

defendant’s knowledge of the files, absent action to obtain them,

_______________________
(Footnote Continued)

Importantly, our review of the record reveals that Cox has never
alleged that he asked trial counsel to seek independent ballistics
testing or that his counsel refused such a request. Were that
the situation, there could be a basis upon which to
conclude that he attempted to act diligently, but that his
efforts were thwarted by trial counsel.

Cox, 146 A.3d at 231 (emphasis added). Professor Place certified that he
did not believe Dr. Hurst’s analysis provided a strong enough basis for filing
a PCRA petition, and that in is view, “the strict timeline for filing a PCRA
petition would only be triggered by a final expert report.” See Evidentiary
Hearing, 3/27/15, Certification of Witness Pursuant to 42 Pa.C.S. §
9545(d)(1), March 13, 2014, Exhibit P-93, at ¶ 5. He stated that he
“needed a more definite report from Dr. Hurst or an opinion from another
arson expert.” Id. at ¶ 6. Professor Place tried to obtain other experts; one
did not respond, and the other stated he did not have enough information
about the building to reach a conclusion. Id. Despite Smallwood’s sense of
urgency and her frustration with Professor Place, we are unable to conclude
that her efforts were “thwarted.”

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precluded a finding of due diligence.” Id. (emphasis added). The

Court concluded:

Because the record reflects that [defendant] was aware of the
files upon which he now relies several years before he ever
sought them, and because [defendant] failed to explain why he
did not request these files earlier, he did not establish the due
diligence required to excuse him from over a decade of inaction.
[Defendant] has not explained why it is that he sought the files
in 2004, but failed to do so earlier. Nor does he describe how it
was that he was able to acquire the documents in 2004, but
could not do so before that date. [Defendant] has not satisfied
[the] exception[] to the PCRA’s timeliness requirement.

Id. at 311-12.

In Commonwealth v. Edmiston, 65 A.3d 339, 348 (Pa. 2013), the

Pennsylvania Supreme Court considered whether a 2009 National Academy

of Science report, entitled Strengthening Forensic Science in the United

States: A Path Forward, (“NAS Report”), which detailed the imprecision of

microscopic hair analysis, constituted a newly-discovered fact for purposes

of establishing the exception to the PCRA time requirements. There,

following a bench trial, the court convicted Edmiston of the gruesome rape

and murder of a two-year old child. The court sentenced Edmiston to death.

Edmiston sought relief under the PCRA, which the court denied. The

Supreme Court affirmed denial of post-conviction relief. Commonwealth v.

Edmiston, 851 A.2d 883 (Pa. 2004).

On June 13, 2005, Edmiston filed a second PCRA petition, premised

upon the coroner’s photographs. On August 12, 2005, he amended his

second petition. On February 18, 2009, prompted by the publication of the

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NAS Report, Edmiston supplemented his amended petition and, following an

evidentiary hearing related to timeliness, the PCRA court dismissed the

petition with the exception of the claim premised on the NAS Report related

to hair comparison analysis. The PCRA court concluded that to the extent

the NAS Report contained a specific examination of the scientific support for

various methodologies of hair analysis, it qualified as new information under

section 9545(b)(1)(ii).

In this regard, the PCRA court observed that the deficiencies and
weaknesses of forensic science are nothing new, and commonly
form the basis for attacks on expert testimony in the courtroom.
What was new, in the PCRA court’s view, was that these
deficiencies have now been collected, investigated, and
studied in a report bearing the imprimatur of the NAS.
Because the NAS Report was published less than 60 days
before Appellant filed his Supplemental Petition, the PCRA
court held this claim was timely.

Edmiston, 65 A.3d at 351.

After a hearing on the merits, however, the PCRA denied relief. The

court found that the Commonwealth’s expert, Bruce Tackett, who had

testified that the hairs found in Edmiston’s truck exhibited the “same”

microscopic characteristics as the hairs he had taken from the victim’s head,

“did not individualize the hair found in [Edmiston’s] truck to the victim, and

was therefore not inconsistent with the NAS Report.” Id. at 351, n.8.

Further, the court held that “the newly[-]discovered information in the NAS

Report would be useful only for impeachment and, moreover, would not

have changed the outcome of the trial.” Id.

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J-A06025-16

Edmiston appealed to our Supreme Court. Edmiston claimed that the

NAS Report’s discussion of the “imprecision of microscopic hair analysis,” is

a newly-discovered fact that undermined “the strength of the

Commonwealth’s evidence that the hairs found in his truck ‘matched’ the

victim’s.” Id. at 350. The Commonwealth disputed the PCRA court’s finding

of timeliness under section 9545(b)(1)(ii), arguing that the information on

which the NAS Report was based had been “in existence in the public

domain for years prior to being compiled in the NAS Report[.]” Id. at 351

(emphasis added). Therefore, had Edmiston exercised due diligence, that

information “could have been discovered by [Edmiston] well before being

included in the NAS Report in February 2009.” Id. The Court agreed:

As the PCRA court found, therefore, [Edmiston] has not carried
his burden of establishing that he was not aware of the factual
predicate of his claim at the time of trial and that succeeding
counsel could not, with the exercise of due diligence, have
presented this claim more than 60 days before he raised it on
June 13, 2005. We cannot say that a petitioner who is
aware of the factual basis of his claim but who raises the
claim over 15 years later complied with the jurisdictional,
statutory requirement to file his claim within 60 days of
the date the claim could have been presented.

Id. at 349 (emphasis added).14 Thus, the Court held that Edmiston had

failed to prove the timeliness exception set forth at section 9545(b)(1)(ii):

____________________________________________

14
Alternatively, Edmiston argued that if his claims were untimely due to
counsel’s ineffectiveness for failing to exercise due diligence, then the
Court’s refusal to entertain the merits violated his due process rights and his
(Footnote Continued Next Page)

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J-A06025-16

This Court has addressed the meaning of “facts” as that term is
employed in Section 9545(b)(1)(ii) and held that, to constitute
such “facts,” the information may not be part of the public
record. Similarly, we have held that a petitioner must allege
and prove previously unknown “facts,” not merely a “newly
discovered or newly willing source for previously known
facts.” These principles have been applied when a petitioner
has relied on a study to satisfy the time-bar exception of Section
9545(b)(1)(ii). See [Commonwealth v.] Lark, 746 A.2d
[585,] 588 n.4 [(Pa. 2000)] (concluding that because a
particular study of the Philadelphia criminal justice system
consisted of statistics which were public record, it could not be
said that the statistics were unknown to the petitioner).

Id. at 352 (emphasis added). See also Commonwealth v. Whitney, 817

A.2d 473 (Pa. 2003) (holding PCRA petitioner did not meet newly-discovered

facts exception where statistics that comprised criminal justice study were of

public record and could not be said to have been unknown to petitioner).

Likewise, in Commonwealth v. Fisher, 870 A.2d 864 (Pa. 2005), the

defendant relied on the timeliness exception in section 9545(b)(1)(ii) to

raise a claim based in part on an affidavit from a retired FBI metallurgist,
_______________________
(Footnote Continued)

right to counsel. Our Supreme Court stated: “[W]e have previously
rejected attempts to circumvent the timeliness requirements of the PCRA by
asserting prior counsel’s ineffectiveness for failing to timely raise a claim.”
Edmiston, 65 A.3d at 349, citing Commonwealth v. Lesko, 15 A.3d 345,
367 (Pa. 2011) (“[I]t is well established that the fact that petitioner’s claims
are couched in terms of ineffectiveness will not save an otherwise untimely
petition from the application of the time restrictions of the PCRA.”). Cf.
Cox, 146 A.3d at 231 (“Cox has never alleged that he asked trial counsel to
seek independent ballistics testing or that his counsel refused such a
request. Were that the situation, there could be a basis upon which to
conclude that he attempted to act diligently, but that his efforts were
thwarted by trial counsel. However, this is simply not the case here.”).

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J-A06025-16

which Fisher argued would undermine the Commonwealth’s expert trial

testimony. The Court reversed the PCRA court’s determination that the

petition fell within the newly-discovered facts exception to the timeliness

requirement, holding “the claim based on the expert’s affidavit was not

timely because the expert had published his opinions in previous research

that had been available and discoverable for more than the two prior years.”

Id. at 871. See also Commonwealth v. Johnson, 863 A.2d 423, 427 (Pa.

2004) (exception focuses on facts, “not on a newly discovered or newly

willing source for previously known facts”).

Applying these principles to the case at hand, we conclude that

Smallwood’s petition does not meet the newly-discovered facts exception.

The methodology upon which Dr. Sutula relied has been in the public domain

since 1992, and Smallwood learned of it in 1999; thus, it had been available

and discoverable for many years prior to the filing of Smallwood’s petition.

See Edmiston, supra; Cox, supra; Stokes, supra; Fisher, supra.

Although the methodology has been developed and refined over time, the

basic premise of Dr. Sutula’s affidavit is that Trooper Sweet “concluded that

this fire was incendiary without proper use of methodology to come to that

determination.” N.T. PCRA Hearing, 3/27/15, at 33. Essentially, Dr. Sutula

did not see any evidence that Trooper Sweet used the scientific method. Id.

at 40.

As noted, the NFPA 921 was first published in 1992, and has been

updated on a three-year cycle. The 1992 version of the NFPA 921 focused

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on determining origin and cause of fires and explosives using accepted

scientific principles. See NFPA 921, Guide for Fire and Explosion

Investigations, 1992 Edition. The NFPA was revised in 1995, 1998, 2001,

2004, 2008, 2011 and, most recently, in December 2013 (the 2014 edition).

It is critical to Smallwood’s claim that she prove the science was evolving,

and that what Dr. Sutula could testify to in 2014 was significantly different

from that which Dr. Hurst could testify to in 1999.

In his affidavit, Dr. Sutula relied on the most recent edition, the 2014

edition. Dr. Sutula’s affidavit provides:

NFPA 921 [Guide for Fire and Explosion Investigations, 2014
Edition] recommends the use of the Scientific Method
when conducting a fire investigation. Section 4.2 of the
2014 edition states, “This method provides for the organizational
and analytical process desirable and necessary in a successful
fire investigation. . . . The Scientific Method is an iterative
process. Thus, each hypothesis must be tested until it is
verified, ruled out, or a determination is made that there is
insufficient date to verify it or rule it out. . . . In addition to the
use of the Scientific Method, NFPA 921 warns about the
inappropriate use of the process of elimination.

***

Thus, in practice, if a proper fire investigation is
conducted, any and all accidental fire causes must be
considered, tested, and systematically eliminated before
hypotheses related to an incendiary fire can be developed.
If one or more accidental fire causes remain as a
possibility, either because they are consistent with the
available evidence or because they cannot be tested due
to insufficient available evidence, then the fire cause must
remain as undetermined.

Affidavit of Dr. Sutula, supra, at ¶¶ 20–23.

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J-A06025-16

Doctor Sutula went on to explain that the 2014 edition of the NFPA

listed examples of observable data that could lead to a hypothesis of an

incendiary cause, including “known accelerants, photographic evidence of

multiple ignition points separated by portions of the building that are

unburned and that have no other accidental explanation, and physical

remains of incendiary devices designed to initiate a fire without the presence

of an arsonist.” Id. at ¶ 24. Doctor Sutula noted that the only

documentation available were four photos of the exterior of the building and

the Pennsylvania State Police Report for Incident #H2-64398, both of which

contain no evidence to support the conclusion that the fire that occurred at

11 North Pitt Street in Carlisle was incendiary in nature. Id. at ¶ 25. Doctor

Sutula also noted that the narrative of the Pennsylvania State Police

investigator described the areas where the greatest damage occurred, and

this was the only “evidence” that the fire was of incendiary origin. There

were no photographs, and there was no evidence that would indicate use of

an accelerant. Id. at ¶ 27.

Doctor Sutula points out alternative accidental fire causes that the

investigation did not rule out, including an electrical fire or an accidental fire,

noting in particular the prevalence of cigarette smoking in 1972 and the

existence of combustibles, old furniture, including a couch and an

overstuffed chair, which were located in the second floor hallway. Id. at ¶¶

31-32.

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In his supplemental affidavit, filed on July 7, 2014, in response to the

Commonwealth’s April 24, 2014 Motion to Dismiss Smallwood’s PCRA

Petition, Dr. Sutula states:

The Commonwealth stated that since NFPA 921 was published in
1992, the tools to perform a proper fire investigation were
available at that point and Ms. Smallwood should have presented
it as “new evidence” at that time. . . . First, . . . the 2014
edition of NFPA 921 is vastly enhanced from the first edition and
supersedes all previous editions as the current standard of care.
The 2014 edition contains the most recent revisions on fire
investigation methodology, the improper use of “negative
corpus” and the process of elimination, and the appropriate
guidelines for when to classify a fire as undetermined. None of
these topics were immediately recognized or common practice in
. . . 1992. Second, a large portion of the fire investigation
community was slow to adopt NFPA 921 as the standard
of care in fire investigation. Although IAAI [International
Association of Arson Investigators] was formed in 1951,
the fire investigation organization did not formally accept
NFPA 921 as the authoritative guide in fire investigation
until January 12, 2013. Based on the continual revisions and
improvements to the NFPA 921 and the 21-year timeframe
required for one of the main certifying organizations within the
fire investigation community to recognize NFPA 921 as the
authoritative guide in fire investigation, Ms. Smallwood would
have not known about, understood, or been able to take
advantage of the full provisions of NFPA 921 in 1992, and,
therefore, would not have been able to present this information
as “new evidence” at that time.

Dr. Sutula’s Supplemental Affidavit, 7/7/14, at ¶¶ 26-29. Doctor Sutula also

noted that the 2014 edition “provides a much more scientifically acceptable

framework for completing all aspects of a fire investigation[,] and . . . is the

standard of care in the fire investigation community and supersedes all

previous editions with regard to proper fire investigation.” Id. at ¶ 22.

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J-A06025-16

In sum, and as stated above, the NFPA has been continually updated

on a three-year cycle, but the basic premise, the use of the “scientific

method,” has remain unchanged. The essence of Dr. Sutula’s affidavit is

that there is no indication that Trooper Sweet used the scientific method in

his fire investigation, and, consequently, two other causes of the fire,

accidental and electrical, had not been ruled out. He does not explain how

revisions to NFPA 921 subsequent to 1992 changed the use of the scientific

method to alter his basic premise that under NFPA 921 the cause of the fire

had to be considered undetermined. Dr. Sutula’s affidavit discussing the use

of the scientific method over a dozen years after Smallwood became aware

of it does nothing more than introduce facts previously known but now

presented through a newly discovered source – Dr. Sutula. If we were to

accept Smallwood’s position that Dr. Sutula’s affidavit constitutes the “new

fact” to trigger the timeliness exception, petitioners could endlessly file

petitions by producing “new facts” through new sources.

We also reject the suggestion that Smallwood’s petition was timely

because the NFPA 921 standards were not generally accepted until after the

International Association of Arson Investigators (IAAI) issued its position

statement adopting the NFPA 921 as the authoritative guide in fire

investigation on January 12, 2013. The IAAI’s 2013 adoption of the

standards do not change the fact that the use of the scientific method to

study fire investigations was known as early as 1992 under the then-

published NFPA standards. See Edmiston, supra (fact relied upon as

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J-A06025-16

newly discovered evidence is not publication of NAS Report, but analysis of

scientific principles supporting hair comparison analysis). Even were we to

give Smallwood the benefit of the January 12, 2013 date, her petition was

not timely filed within 60 days of that date. See 42 Pa.C.S. § 9545(b)(2).

In fact, it was not filed until well over one year after the IAAI statement.

See note 6, supra. As Smallwood was required to file her petition within 60

days of when her claims could have been presented, and has not explained

why she could not have filed her petition prior to 2014, her petition is

untimely. Clearly, the information available in the public domain even as

late as January 2013, the date the IAAI formally accepted NFPA 921, would

have provided a basis for Dr. Sutula, or any expert, to conclude that Trooper

Sweet’s classification of the fire as incendiary was premature. Although we

cannot state for certain that Dr. Sutula did not opine anything that Dr. Hurst

could not have said in 1999, we can positively state that Dr. Sutula did not

opine anything that could not have been determined prior to January 12,

2013.15
____________________________________________

15
Significantly, and as a comparison to the 2014 edition on which Dr. Sutula
relies, the 1992 edition of the NFPA sets forth the methodology for fire
investigation in section 2-3.6:

2-3.6 Test the Hypothesis (Deductive Reasoning). All
other possible origins and causes must be eliminated. The
investigator does not have a truly provable hypothesis unless it
can stand the test of careful and serious challenge. This is done
by the principle of deductive reasoning, in which the investigator
compares his or her hypothesis to all known facts. If the
(Footnote Continued Next Page)

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J-A06025-16

This case is deeply troubling on several levels.16 There is no doubt in

this Court’s opinion that the expert currently retained would give an opinion

that the fire that occurred on August 29, 1971 was of undetermined origin.

From the evidence available and the current state of “fire science,” it is likely

that the Commonwealth’s expert might well concede that fact. It seems

axiomatic that a jury hearing Smallwood’s statements and the evidence in

light of the uncertainty of the origin of the fire might well reach a different

conclusion as to Smallwood’s guilt than that determined by the original jury

who heard Trooper Sweet’s testimony that the fire was of incendiary origin.

What remains incomprehensible is why Smallwood, who clearly knew

about the advancements in fire science as early as 1999, waited until March

14, 2014, to file a petition for post-conviction relief based upon this new
_______________________
(Footnote Continued)

hypothesis cannot withstand an examination by deductive
reasoning, it must be either discarded as not provable and
a new more adequate hypothesis tested or the fire cause
must be listed as “unknown.”

NFPA 921: Guide for Fire and Explosion Investigators, National Fire
Protection Association (1992) (emphasis added). See supra, note 2.
16
We note that Smallwood has maintained her innocence throughout and
that we are cognizant of the fact that an indigent, incarcerated petitioner is
limited in resources. However, had Smallwood filed her petition in 1999, the
court would have appointed counsel, in the interests of justice, even though
this was not a first petition. See Pa.R.Crim.P. 904(D), (E). See also
Comment, Pa.R.Crim.P. 904 (“[T]he rule now limits appointment of counsel
on second or subsequent petitions so that counsel should be appointed only
if the judge determines that an evidentiary hearing is required. Of course,
the judge has the discretion to appoint counsel in any case when the
interests of justice require it.”).

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J-A06025-16

fact. Even her own expert opines that the 2014 version of the NFPA is a

refinement rather than a revision of the 1992 NFPA, so the fact relied upon

by Smallwood was in the public domain as early as 1992 and Smallwood

knew of it in 1999. Smallwood did not file her petition within 60 days of the

1999 occurrence. Our focus is not on the date the expert published his

opinion, but on the petitioner’s “reasonable efforts” to bring forth the newly-

discovered fact of the NFPA 921 standards based on the information that

was publicly available and accessible to her, and any number of experts, for

years.

There is nothing in the record before us to indicate that Smallwood’s

valid rationale for Smallwood’s failure to file a timely petition. It is not

alleged that lack of funding impeded her from filing a petition. There is

evidence that Professor Place may have asked Smallwood to wait for an

affidavit from her expert prior to filing her current petition, but that is not a

ground for relief advanced in this petition, and even it if were, layered

ineffectiveness would not confer timeliness on an otherwise untimely

petition. In short, Smallwood has not advanced any theory that would fall

within any exception to the rule of timeliness for filing a PCRA.

We conclude, therefore, that Smallwood knew or had reason to know

of NFPA 921, the newly-discovered fact, prior to 2014, in fact, in 1999, and

thus her knowledge precludes a finding of due diligence under section

9545(b)(1)(ii). See Stokes, 959 A.2d at 310-11 (knowledge of facts,

absent action to obtain them, precluded finding of due diligence); see also

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J-A06025-16

Edmiston, 65 A.3d at 348, 352 (PCRA petitioner cannot establish due

diligence based on alleged newly-discovered photographs where record

reveals petitioner knew photographs existed at time of trial but did not raise

claim until fifteen years later; petitioner must allege and prove previously

unknown “facts,” not merely provide newly willing source for previously

known facts). Because Smallwood cannot establish that she acted with due

diligence, she has failed to meet the section 9545(b)(1)(ii) exception to the

PCRA’s jurisdictional time-bar. Smallwood’s PCRA petition is, therefore,

untimely, and the PCRA court did not have jurisdiction to reach the merits of

her claim. Fahy, supra.

Accordingly, we reverse the PCRA court’s order granting a new trial.17

Jurisdiction relinquished.

Judge Dubow did not participate in the consideration or decision of this

case.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/1/2017
____________________________________________

17
In light of our determination that Smallwood’s petition is untimely and
thus the PCRA court had no jurisdiction to entertain it, we need not address
the remaining issues the Commonwealth raises on appeal.

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