[J-21-2017]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 726 CAP
:
Appellee : Appeal from the Order dated May 2,
: 2016 in the Court of Common Pleas,
: Lackawanna County, Criminal Division
v. : at No. CP-35-CR-0000748-1983.
:
: SUBMITTED: January 30, 2017
DAVID CHMIEL, :
:
Appellant :
OPINION
JUSTICE WECHT DECIDED: November 22, 2017
In 2002, David Chmiel was convicted and sentenced to death for the murder of
three elderly siblings.1 At Chmiel’s 2002 trial, the Commonwealth relied upon the
testimony of a state police forensic examiner, who opined that hair found at the crime
scene was microscopically similar to Chmiel’s hair. On April 20, 2015, the Federal
Bureau of Investigation (“FBI”) issued a press release admitting, for the first time, that
testimony by FBI analysts regarding microscopic hair analysis in criminal trials was
1
This Court provided a thorough recitation of the facts underlying the judgment of
sentence on direct appeal, Commonwealth v. Chmiel, 889 A.2d 501, 509-13 (Pa. 2005)
(“Chmiel I”), and in Chmiel’s first appeal pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-46, Commonwealth v. Chmiel, 30 A.3d 1111, 1123-25
(Pa. 2011) (“Chmiel II”).
erroneous in the vast majority of cases (hereinafter, “FBI press release”).2 The FBI
further admitted that it had, over the course of twenty-five years, conducted multiple
training courses for state and local forensic examiners throughout the country that
incorporated some of the same flawed language that the FBI examiners had used in lab
reports and trial testimony. Appendix C at 2.
On June 18, 2015, Chmiel filed a petition pursuant to the PCRA, asserting that
his conviction and death sentence rested upon unreliable microscopic hair comparison
evidence. Recognizing that his petition facially was untimely, Chmiel asserted that the
FBI press release constituted a newly discovered fact that satisfied the timeliness
exception set forth in Section 9545(b)(1)(ii).3 The PCRA court rejected Chmiel’s
2
Press Release, FBI, FBI Testimony on Microscopic Hair Analysis Contained
Errors in at Least 90 Percent of Cases in Ongoing Review (April 20, 2015),
https://www.fbi.gov/news/pressrel/press-releases/fbi-testimony-on-microscopic-hair-
analysis-contained-errors-in-at-least-90-percent-of-cases-in-ongoing-review; Appendix
C to Initial Brief of Appellant (hereafter, “Appendix C”).
3
The PCRA’s timeliness provisions provide, in relevant part:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second or subsequent
petition, shall be filed within one year of the date the judgment becomes
final, unless the petition alleges and the petitioner proves that:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or laws of this Commonwealth
or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to
the petitioner and could not have been ascertained by the exercise
of due diligence; or
(iii) the right asserted is a constitutional right that was recognized
by the Supreme Court of the United States or the Supreme Court of
(continued…)
[J-21-2017] - 2
reliance upon the FBI press release as a newly discovered fact, and dismissed the
petition as untimely. We reverse, and we remand for further proceedings.
George Surma was a Pennsylvania State Police (“PSP”) forensic scientist who
testified for the Commonwealth at Chmiel’s trial. At that time, Surma had been a
forensic scientist with the PSP for twenty-seven years and had testified as an expert in
forensic microscopy or electrophoresis on three to four hundred prior occasions.
Commonwealth v. Chmiel, 30 A.3d 1111, 1137 (Pa. 2011) (“Chmiel II”); Notes of
Testimony (“N.T.”), 8/27/2002, at 5-6. Surma testified that he had received extensive
training in the field of forensic science and had engaged in “advanced work in the
analysis of blood, electrophoresis of blood and miscroscopy.” Id. at 5.
Surma microscopically analyzed six hairs retrieved from a sweater sleeve mask
that was found at the crime scene. This mask had been cut from a sweater and used to
conceal the intruder’s identity during the murders. Commonwealth v. Chmiel, 889 A.2d
501, 510 (Pa. 2005) (“Chmiel I”). The police were able to trace the sweater sleeve
mask to Martin Chmiel, Chmiel’s brother. Id. At trial, Surma testified that he used a
comparison microscope to detect up to fourteen possible features of the cuticle, cortex,
and medulla of the hair. Chmiel II, 30 A.3d at 1124; N.T., 8/27/2002, at 14-23. Surma
subjectively selected these fourteen bases of comparison by considering “whatever
(…continued)
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).
[J-21-2017] - 3
features or characteristics [he found] in that particular hair.” Id. at 19. Surma did not
explain how many features had to be similar to warrant a conclusion of microscopic
similarity, or dissimilar to preclude such a conclusion. Nevertheless, Surma concluded
that two hairs found on the sweater sleeve mask were “microscopically similar” to hair
samples obtained from Chmiel, but not to those obtained from Chmiel’s brother, Martin,
or to the victims. Chmiel II, 30 A.3d at 1124; N.T., 8/27/2002, at 20, 26, 56.4 The
prosecutor exaggerated Surma’s conclusions in his opening and closing statements,
promising a “microscopic match,” between Chmiel’s hairs and those found at the crime
scene, N.T., 8/19/2002, at 79, and arguing that Surma’s testimony had established such
a “match.” N.T., 9/6/2002, at 175-77.
On March 21, 2007, Chmiel filed his first PCRA petition. Chmiel raised
numerous claims, including a claim that trial counsel was ineffective for failing to
challenge the admissibility of Surma’s testimony pursuant to Frye v. United States, 293
F. 1013 (D.C. Cir. 1923), and for failing to obtain an expert witness to rebut Surma’s
testimony. Chmiel II, 30 A.3d at 1138. This Court found no merit to these
ineffectiveness claims.
On June 18, 2015, Chmiel filed the present PCRA petition, asserting that his
conviction and death sentence rested upon unreliable hair comparison evidence in
violation of the Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution and Article I, Section 9 of the Pennsylvania Constitution. Chmiel also
sought discovery from the Commonwealth pursuant to Pa.R.Crim.P. 902(E)(1).
4
In addition, mitochondrial DNA analysis did not exclude Chmiel or Martin as
sources of two of the hairs found on the sweater sleeve mask. N.T., 8/29/2002, at 165-
67.
[J-21-2017] - 4
Recognizing that his petition was untimely on its face, Chmiel relied upon the
timeliness exception for newly discovered facts, 42 Pa.C.S. § 9545(b)(1)(ii). Chmiel
asserted that his claim was predicated upon the April 20, 2015 FBI press release, and
that he could not previously have ascertained the facts contained therein by the
exercise of due diligence. As support for his position that the press release revealed
newly discovered facts, Chmiel relied upon an April 18, 2015 article in The Washington
Post about the FBI press release. Chmiel filed his PCRA petition within sixty days of
the FBI press release. See 42 Pa.C.S. § 9545(b)(2). Because the FBI press release
and the Washington Post article describing the FBI’s findings are the basis of Chmiel’s
attempt to overcome the PCRA’s time restrictions, they warrant close review.
The FBI press release is entitled “FBI Testimony on Microscopic Hair Analysis
Contained Errors in at Least 90 Percent of Cases in Ongoing Review.” Appendix C at
1. In the press release, the FBI publicly disclosed the initial findings of an ongoing
investigation undertaken jointly by the Department of Justice (“DOJ”), the FBI, the
Innocence Project, and the National Association of Criminal Defense Lawyers
(“NACDL”). The investigation scrutinized the testimony of FBI analysts concerning
microscopic hair comparison analysis prior to 2000, the point at which mitochondrial
DNA testing became routine in the FBI. The review was prompted by exonerations of
three men who had been convicted, in part, based upon the scientifically flawed
testimony of three FBI hair examiners. The review encompassed cases in which FBI
microscopic hair comparison was used to link a defendant to a crime in both the federal
and state systems. The FBI concluded that its examiners’ testimony in at least 90% of
cases contained erroneous statements. The FBI’s findings “confirm[ed] that the FBI
[J-21-2017] - 5
microscopic hair analysts committed widespread, systematic error, grossly exaggerating
the significance of their data under oath with the consequence of unfairly bolstering the
prosecution’s case. . . .” Appendix C at 1.
The FBI press release quoted Peter Neufeld, co-director of the Innocence
Project, as saying that the results of the FBI’s review demonstrated an “epic miscarriage
of justice.” Id. The press release also quoted Norman L. Reimer, Executive Director of
NACDL, as stating that, although “[i]t will be many months before we can know how
many people were wrongly convicted based on this flawed evidence,” he was certain
that there were “many whose liberty was deprived and lives destroyed by prosecutorial
reliance on this flawed, albeit highly persuasive evidence.” Id. Mr. Reimer called upon
lawmakers to prevent similar systemic failures, and upon the courts to “give those who
were impacted by this evidence a second look at their convictions.” Id. The FBI
committed to “address[ing] errors made in statements by FBI examiners regarding
microscopic hair analysis in the context of testimony and laboratory reports.” Id.
The FBI press release also described the FBI’s efforts to train state and local hair
examiners in such “invalid” and “faulty” evidence:
Over the course of 25 years, the FBI conducted multiple two-week training
courses that reached several hundred state and local hair examiners
throughout the country and that incorporated some of the same
scientifically flawed language that the FBI’s examiners had used in some
lab reports and often in trial testimony. In response to the FBI/DOJ
review, the Texas Forensic Scientific Commission has already begun a
review of cases handled by analysts at state and local crime labs. Similar
audits are needed in most other states.
Id. at 2. The press release stated that the FBI’s review did not include cases in which
hair comparison was conducted by state and local crime labs. The findings prompted
[J-21-2017] - 6
the FBI to commit to “[s]trongly encourag[ing] the states again to conduct their own
independent reviews where its examiners were trained by the FBI.” Id.
The April 18, 2015 edition of The Washington Post reported upon the FBI’s
findings in an article entitled “FBI admits flaws in hair analysis over decades.” See
Appendix B.5 The article reported that the FBI and DOJ formally had acknowledged
that “nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost
all trials in which they offered evidence against criminal defendants over more than a
two-decade period before 2000.” Id. at 1. The Washington Post quoted legal analysts
as characterizing the FBI’s review as “a watershed in one of the country’s largest
forensic scandals, highlighting the failure of the nation’s courts for decades to keep
bogus scientific information from juries. . . .” Id. The questions following the FBI’s
review, according to the article, included how the courts will respond to findings that
“confirm long-suspected problems with subjective, pattern-based forensic techniques—
like hair and bite-mark comparisons—that have contributed to wrongful convictions in
more than one-quarter of 329 DNA-exoneration cases since 1989.” Id. The article
indicated that, although “unnamed federal officials previously acknowledged widespread
problems, the FBI until now has withheld comment because findings might not be
representative.” Id. at 2.
The Washington Post article explained that, until 2012, hair examiners lacked
written standards defining scientifically accurate ways to explain hair analysis results in
5
See also Spencer S. Hsu, FBI admits flaws in hair analysis over decades, The
Washington Post (April 18, 2015), https://www.washingtonpost.com/local/crime/fbi-
overstated-forensic-hair-matches-in-nearly-all-criminal-trials-for-
decades/2015/04/18/39c8d8c6-e515-11e4-b510-962fcfabc310_story.html.
[J-21-2017] - 7
court. Prior to such standards, FBI hair analysts routinely testified to the “near-certainty
of ‘matches’ of crime scene hairs,” id. at 2, supporting their conclusions with incomplete
or misleading statistics. Id. In truth, there was no accepted research on the frequency
with which hair from different individuals may appear the same. According to the
article, warnings about the problems with hair analysis had been mounting since 2002,
when the FBI reported that its own DNA testing revealed that examiners reported false
hair matches 11% of the time. Id. at 3. Like the FBI press release, the article reported
that “the same FBI examiners whose work is under review taught 500 to 1,000 state and
local crime lab analysts to testify in the same ways.” Id. at 3-4.
Relying upon the FBI press release to satisfy the PCRA’s newly discovered facts
exception, Chmiel asserted in his petition that Surma was trained by the FBI and
provided the same scientifically unsupportable testimony that the FBI now disclaims,
linking the hairs recovered from the sweater sleeve mask to Chmiel, while also
excluding Martin Chmiel. In tandem with his PCRA petition, Chmiel sought discovery
pursuant to Rule 902(E)(1), which provides that “no discovery shall be permitted at any
stage of the proceedings, except upon leave of court after a showing of exceptional
circumstances.” Pa.R.Crim.P. 902(E)(1). Chmiel asserted that he had established
exceptional circumstances to depose Surma, to take discovery regarding every other
case in which Surma had testified, and to obtain documentary evidence in the FBI’s
possession regarding the FBI’s internal review of the use of hair comparison evidence.
The PCRA court dismissed Chmiel’s PCRA petition as untimely. According to
the PCRA court, our decision in Commonwealth v. Edmiston, 65 A.3d 339 (Pa. 2013),
controlled the timeliness inquiry. Edmiston involved a PCRA petition filed by a capital
[J-21-2017] - 8
defendant who, like Chmiel, was convicted following the introduction of hair comparison
analysis testimony at trial. On February 18, 2009, the National Academy of Sciences
published a report entitled “Strengthening Forensic Science in the United States: A Path
Forward” (hereinafter, “the NAS Report”). The NAS Report was a review of prior
studies and articles, as well as the National Academy of Sciences’ conclusion that
“there was no scientific support for the use of microscopic hair analysis for
individualization that is not accompanied by mitochondrial DNA analysis.” Edmiston, 65
A.3d at 351.
On April 17, 2009, Edmiston raised a facially untimely claim for post-conviction
relief premised upon the NAS Report. Edmiston, 65 A.3d at 344. Edmiston relied upon
the NAS Report in attempting to establish the newly discovered fact exception to the
one-year time bar. Edmiston, 65 A.3d at 350-51; 42 Pa.C.S. § 9545(b)(1)(ii). Edmiston
asserted that the NAS Report was a newly discovered fact that supported his claim of
actual innocence, because it demonstrated that the Commonwealth’s hair analysis
evidence was “false, misleading, and unreliable.” Edmiston, 65 A.3d at 351.
On appeal from the PCRA court’s dismissal of Edmiston’s petition as untimely,
this Court addressed the applicability of the newly discovered facts exception to the
PCRA’s jurisdictional time restrictions. See 42 Pa.C.S. § 9545(b)(1)(ii). We observed
that, “to constitute facts which were unknown to a petitioner and could not have been
ascertained by the exercise of due diligence, the information must not be of public
record and must not be facts that were previously known but are now presented through
[J-21-2017] - 9
a newly discovered source.” Edmiston, 65 A.3d at 352.6 Evaluating Edmiston’s
reliance upon the NAS Report as a newly discovered fact, this Court explained that “the
‘fact’ [that Edmiston] relies upon as newly discovered is not the publication of the NAS
Report, but the analysis of the scientific principles supporting hair comparison analysis.”
Id. This Court held that the “fact” contained within the NAS Report was not new, as
questions about the reliability of hair comparison analysis had existed in various
sources prior to publication of the NAS Report: “Specifically, the NAS Report refers to
various studies and reports published in the public domain as early as 1974 and as
recently as 2007. As such, the information relied upon by [Edmiston] in the Report
constitutes facts that were in the public domain and could have been discovered by
[Edmiston] through the exercise of due diligence prior to the filing of his . . . Petition.”
Edmiston, 65 A.3d at 352. This analysis led the Court to conclude that the NAS Report
failed to satisfy the timeliness exception for newly discovered facts.
In the instant case, the PCRA court analogized the FBI press release to the NAS
Report in Edmiston, reasoning that the information contained within the FBI press
release was available in the public domain prior to 2015, and that Chmiel could have
discovered it through the exercise of due diligence more than sixty days prior to filing
the PCRA petition on June 18, 2015. In particular, the PCRA court relied upon an
article from the Washington Post dated April 16, 2012, reporting that the DOJ had
begun to review internally numerous cases after reports that sloppy work by FBI
6
We recently held that “the presumption that information which is of public record
cannot be deemed ‘unknown’ for purposes of subsection 9545(b)(1)(ii) does not apply to
pro se prisoner petitioners.” Commonwealth v. Burton, ___ A.3d ___, 2017 WL
1149203, at *16 (Pa. 2017).
[J-21-2017] - 10
forensic examiners were producing unreliable hair comparison evidence at trials. PCRA
Court Opinion at 28-29. The article reported that the DOJ had disclosed the results of
the review to the defendants in fewer than half of approximately “250-plus questioned
cases” included in the review. Id. at 29. On July 10, 2012, the Washington Post
confirmed that the DOJ and FBI had launched a review of thousands of criminal cases
that included microscopic hair examination by the FBI. On July 29, 2014, the
Washington Post reported that the DOJ and the FBI were in the midst of their internal
review, that most of the cases under review included flawed forensic testimony from the
FBI, and that the DOJ had begun to notify affected defendants. Id. at 30-31.
Assuming, arguendo, that the FBI press release satisfied the timeliness
exception for newly discovered facts, the PCRA court held that Chmiel was not entitled
to relief because his claim was previously litigated. See 42 Pa.C.S. § 9544(a)(3).
According to the PCRA court, Chmiel already had challenged the scientific validity of
Surma’s hair comparison evidence and methodology in his prior PCRA petition, when
he raised a claim of counsel ineffectiveness for failing to move for exclusion of such
evidence pursuant to Frye, and for failing to hire an expert to counter Surma’s
testimony. Finally, the PCRA court held that Chmiel had failed to establish exceptional
circumstances to warrant discovery pursuant to Rule 902(E)(1).
We have exclusive jurisdiction over appeals of determinations made in death
penalty cases. 42 Pa.C.S. § 722(4); 42 Pa.C.S. § 9546(d). “Our review of a PCRA
court’s decision is limited to examining whether the PCRA court’s findings of fact are
supported by the record, and whether its conclusions of law are free from legal error.”
Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012). Our review of questions of
[J-21-2017] - 11
law is de novo. Commonwealth v. Fahy, 959 A.2d 312, 316 (Pa. 2008). Our scope of
review is limited to the PCRA court’s findings and the evidence of record, viewed in the
light most favorable to the Commonwealth as the prevailing party. Id.
To be eligible for post-conviction relief, a petitioner must prove by a
preponderance of the evidence that his conviction or sentence resulted from one of
several enumerated circumstances, see 42 Pa.C.S. § 9543(a)(2), and that the issues
have not been previously litigated or waived, id. § 9543(a)(3). “A PCRA petition,
including a second or subsequent petition, must be filed within one year of a final
judgment, unless the petitioner alleges and proves that he is entitled to one of three
exceptions to this general rule, and that the petition was filed within 60 days of the date
the claim could have been presented.” Edmiston, 65 A.3d at 345; 42 Pa.C.S. § 9545(b).
This is a jurisdictional limitation. Commonwealth v. Bennet, 930 A.2d 1264, 1267 (Pa.
2007).
As noted, Chmiel relies upon the timeliness exception for newly discovered facts.
See 42 Pa.C.S. § 9545(b)(1)(ii). This exception “requires that the ‘facts’ upon which
such a claim is predicated must not have been known to appellant, nor could they have
been ascertained by due diligence.” Commonwealth v. Lambert, 884 A.2d 848, 852
(Pa. 2005). As this Court explained in Edmiston, to fall within this exception, the factual
predicate of the claim “must not be of public record and must not be facts that were
previously known but are now presented through a newly discovered source.”
Edmiston, 65 A.3d at 352.
The PCRA court narrowly construed the newly discovered facts exception in
holding that the underlying information contained in the FBI press release was simply
[J-21-2017] - 12
confirmation of information that was already available in the public domain. In this
conclusion, the PCRA court erred.
There are two newly discovered facts upon which Chmiel’s underlying claim is
predicated, both of which were made public for the first time in the Washington Post
article and the FBI press release. First, the FBI publicly admitted that the testimony and
statements provided by its analysts about microscopic hair comparison analysis were
erroneous in the vast majority of cases. The FBI’s revelation reverberated throughout
the country, marking a “watershed in one of the country’s largest forensic scandals,” see
Appendix B at 1, precisely because it constituted a public admission by the government
agency that had propounded the widespread use of such scientifically flawed testimony.
The revelation was the first time the FBI acknowledged that its microscopic hair analysts
committed widespread, systemic error by grossly exaggerating the significance of their
data in criminal trials. The Washington Post article acknowledged the novelty of the
FBI’s disclosures: “While unnamed federal officials previously acknowledged
widespread problems, the FBI until now has withheld comment because findings might
not be representative.” See Appendix B at 2. Second, the FBI press release included
the revelation that the FBI had trained many state and local analysts to provide the
same scientifically flawed opinions in state criminal trials.
With these newly discovered, material facts, the FBI press release indicates that
Surma’s trial testimony may have exceeded the limits of science and overstated to the
jury the significance of the microscopic hair analysis. Surma used microscopic hair
analysis in an attempt to link Chmiel to the crime. The FBI now has publicly repudiated
the use of microscopic hair analysis to “link a criminal defendant to a crime.” See
[J-21-2017] - 13
Appendix C at 1. The FBI’s repudiation and disclosure about its role in training state
and local forensic examiners satisfies Section 9545(b)(1)(ii), and entitles Chmiel to a
merits determination of his underlying claim.7
Contrary to the PCRA court’s opinion and the dissenting opinion by Justice
Mundy, see Dissenting Opinion at 3, the fact that the FBI was internally reviewing the
accuracy of microscopic hair analysis or testimony is not the newly discovered fact upon
which Chmiel’s claim is based. Rather, the newly discovered facts are the FBI’s
admissions, as the proponent of microscopic hair analysis, that its examiners gave
flawed and scientifically unsupportable testimony, and spread its flawed methodology to
state and local analysts. Although the existence of the FBI’s internal investigation was
known, the press release marked the first public admission by the FBI regarding its
conclusions about testimony premised upon microscopic hair analysis and the
dispersion of such scientifically flawed language to state and local analysts.
7
To the extent Chief Justice Saylor believes that Surma’s testimony may in fact
not have constituted the type of junk science that the FBI now has repudiated, see
Concurring Opinion at 1-2, those considerations go to the merits of the underlying issue
rather than to the timeliness of the PCRA petition. See Concurring Opinion at 3;
Commonwealth v. Bennett, 930 A.2d 1264, 1271 (Pa. 2007) (“the exception set forth in
subsection (b)(1)(ii) does not require any merits analysis of the underlying claim.”).
We disagree with Justice Mundy’s position that Chmiel must, at this juncture,
demonstrate a more “direct connection” between the FBI press release and his
underlying claim. See Dissenting Opinion at 4. Chmiel’s underlying claim is that his
conviction rests upon unreliable hair comparison evidence in violation of the United
States and Pennsylvania Constitutions. Pursuant to Bennett, all that Chmiel must
demonstrate is 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.’” Bennett, 930
A.2d at 1272 (citing 42 Pa.C.S. § 9545(b)(1)(ii)). As explained above, Chmiel’s claim is
predicated upon the newly discovered facts contained within the FBI press release.
Such facts could not have been ascertained by the exercise of due diligence prior to the
issuance of the FBI press release.
[J-21-2017] - 14
Moreover, this Court’s analysis of the NAS Report in Edmiston does not control
the timeliness of Chmiel’s second PCRA petition. With respect to hair analysis, “the
[NAS] Report reviewed prior studies and articles to conclude that there was no scientific
support for the use of microscopic hair analysis for individualization that is not
accompanied by mitochondrial DNA analysis.” Edmiston, 65 A.3d at 351. This Court
concluded that the facts proffered in the NAS Report were not new, and had existed in
various sources prior to publication of the report.
Although the NAS Report compiled preexisting public data and studies and
questioned the science underlying microscopic hair analysis, it unquestionably was not
an admission by the authority behind the science that the science and related testimony
were, in fact, flawed. In contrast, the FBI press release is not old wine in a new bottle,
see Appellant’s Brief at 17; it was a public admission by the FBI, as the nation’s premier
law enforcement agency and the proponent of this forensic technique, of widespread
error. It is this concession, not the suspected unreliability of the forensic evidence as
developed through scientific advancements, that triggers the sixty-day window within
which Chmiel was required to file his claim. This concession did not exist in the public
domain prior to April 20, 2015.
The accepted understanding in the forensic science community of microscopic
hair comparison analysis has shifted since Chmiel’s conviction. This shift in
understanding reveals a recognition of the flawed scientific premise that microscopic
hair comparison could be used definitively to link a criminal defendant to a crime.
Although the scientific foundation of such conclusory assertions was called into question
beginning as early as 1974, Edmiston, 65 A.3d at 352, and continually thereafter, this
[J-21-2017] - 15
substantial shift in understanding was not embraced or acknowledged by the FBI until it
went public with the preliminary results of its independent review. Scientific
breakthroughs in rejecting the ability of a forensic hair analyst to opine about statistical
significance, or to link a defendant to a crime, reached a tipping point with the 2009
NAS Report. At that time, however, the FBI remained silent on the reliability of what it
now concedes is “invalid,” “flawed,” and “faulty” evidence. See Appendix C at 1-2. The
FBI’s view in April 2015 stands in sharp contrast to its flawed understanding of the
significance of microscopic hair comparison analysis in the early 2000s.
Nor are Chmiel’s claims previously litigated, as the PCRA court held. Section
9543(a)(3) of the PCRA provides that “an issue” has been previously litigated if “the
highest appellate court in which the petitioner could have had review as a matter of right
has ruled on the merits of the issue.” 42 Pa.C.S. § 9544(a)(2); Commonwealth v.
Beasley, 678 A.2d 773, 778 (Pa. 1986). In this context, “issue” is “the discrete legal
ground” that was forwarded to the highest appellate court and which would have entitled
the defendant to relief. Commonwealth v. Collins, 888 A.2d 564, 570 (Pa. 2005).
Although there can be many theories and allegations in support of a single issue,
Section 9544 refers to the discrete legal ground already raised and decided. Id. An
issue is not previously litigated when it does not rely solely upon previously litigated
evidence. Commonwealth v. Miller, 746 A.2d 592, 602 n.9 & 10 (Pa. 2000).
In his first PCRA petition, Chmiel argued that his counsel was ineffective for
failing to challenge the admissibility of Surma’s testimony pursuant to Frye, and for
failing to rebut Surma’s testimony with an expert witness. Chmiel II, 30 A.3d at 1138. In
support of this claim, Chmiel presented a forensic chemical microscopist, Samuel
[J-21-2017] - 16
James Palenik. Palenik testified that, although microscopic hair analysis has value as
an investigative tool, it cannot be used for positive identification. Id. at 1139. Palenik
also testified about the flaws in Surma’s procedures. For example, Palenik testified that
Surma’s findings were not verified by an independent microscopist as was required by
the industry guidelines that were in existence at the time of Chmiel’s trial. Chmiel also
supported his claim by relying upon a series of forensic science journals, law review
articles, and newspaper reports disputing the accuracy of hair comparison evidence.
Chmiel included an FBI study comparing microscopic hair analysis to mitochondrial
DNA analysis, and identifying error rates for microscopic hair analysis.
The Frye test is essentially a test for the admissibility of novel science, providing
that the “[a]dmissibility of [ ] scientific evidence depends upon the general acceptance of
its validity by those scientists active in the field to which the evidence belongs.”
Commonwealth v. Dengler, 890 A.2d 372, 381 (Pa. 2005) (quoting Commonwealth v.
Topa, 369 A.2d 1277, 1281 (Pa. 1977)). Chmiel’s prior post-conviction attack on the
Commonwealth’s hair analysis evidence was a challenge to the admissibility of the
science of hair microscopy, and to counsel’s failure to challenge the admissibility on this
basis. Chmiel II, 30 A.3d at 1141. In rejecting his ineffectiveness claim, this Court
observed that “many jurisdictions [ ], prior to [Chmiel’s] 2002 trial, had determined that
human hair analysis by microscopical comparison is an accepted and reliable scientific
method or technique.” Chmiel II, 30 A.3d at 1141. We were careful not to “discredit the
notion . . . that a once-viable science may lose its wide acceptance in the scientific
community . . . .” Chmiel II, 30 A.3d at 1142. Our rejection of Chmiel’s claim was
premised upon the lack of support for his view that, at the time of his 2002 trial, forensic
[J-21-2017] - 17
hair microscopy was no longer an accepted science. Id. Indeed, at the time of Chmiel’s
2008 PCRA hearing, Palenik relied upon the same scientific methodology as did Surma
to testify that hair microscopy was a recognized science to which a “minimal reserve of
experts . . . exists who can critically examine the validity of a scientific determination in a
particular case.” Id. (quoting Dengler, 890 A.2d at 381 (describing one of the principal
concerns of Frye)). We found no merit to Chmiel’s Frye-based ineffectiveness claim.
Chmiel’s current claim is premised upon the fact that, since the FBI’s April 20,
2015 admission, microscopic hair analysis no longer is considered to be scientifically
reliable. This issue does not rest upon the evidence and arguments made in Chmiel’s
prior PCRA ineffectiveness claim. Chmiel’s prior PCRA claim and the current claim are
premised upon discrete legal grounds. See Collins, 888 A.2d at 570. The current claim
is not previously litigated.
Accordingly, the information contained within the FBI’s press release did not exist
in the public domain prior to publication of the press release. The FBI’s concessions in
its press release triggered the sixty-day window within which Chmiel had to file his
petition. See 42 Pa.C.S. § 9545(b)(2). Chmiel filed his petition within sixty days, on
June 18, 2015. Accordingly, we reverse the order of the PCRA court dismissing
Chmiel’s petition as untimely and previously litigated, and we remand for further
proceedings.8
8
The PCRA court denied Chmiel’s request for discovery to ascertain whether
Surma was trained by the FBI based upon its ruling that the underlying claim was time-
barred. To the extent this question is necessary to resolve the merits of Chmiel’s
underlying claim, the PCRA court should reconsider the discovery request in light of our
timeliness conclusion.
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Justices Todd, Donohue and Dougherty join the opinion.
Chief Justice Saylor files a concurring opinion in which Justice Baer joins.
Justice Donohue files a concurring opinion.
Justice Mundy files a dissenting opinion.
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