[J-50-2018] [OAJC/OISR:Wecht, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 753 CAP
:
Appellee : Appeal from the Order dated June 23,
: 2017 in the Court of Common Pleas,
: Dauphin County, Criminal Division at
v. : No. CP-22-CR-0001773-2000.
:
: SUBMITTED: May 14, 2018
HERBERT BLAKENEY, :
:
Appellant :
OPINION IN SUPPORT OF AFFIRMANCE
JUSTICE MUNDY DECIDED: September 21, 2018
I join Justice Dougherty’s opinion in support of affirmance (OISA) in all respects,
except for his discussion of Commonwealth v. Chmiel, 173 A.3d 617 (Pa. 2017), upon
which the Opinion in Support of Reversal (OISR) relies. In Chmiel, the defendant
attempted to invoke Section 9545(b)(1)(ii) of the PCRA based on a Washington Post
newspaper article in which the Federal Bureau of Investigation acknowledged that “nearly
every examiner in an elite FBI forensic unit gave flawed [hair microscopy] testimony in
almost all trials in which they offered evidence against criminal defendants over more
than a two-decade period before 2000.” Chmiel, 173 A.3d at 622. This Court concluded
that this “public admission by the FBI, as the nation’s premier law enforcement agency
and the proponent of this forensic technique, of widespread error” was a newly-
discovered fact. Id. at 626. The Majority in Chmiel reached this conclusion despite any
showing from Chmiel that the FBI had any direct or indirect involvement in his case. I
continue to believe Chmiel was incorrectly decided. See generally id. at 631-33 (Mundy,
J., dissenting).
Nevertheless, Chmiel is readily distinguishable from the instant matter. As Justice
Dougherty correctly illustrates, Blakeney’s assertions of judicial bias based on race and
religion are, at best, imprecise and vague. OISA of Dougherty, J., at 4. Such allegations
cannot be material facts upon which Blakeney’s underlying claim for relief is “predicated.”
42 Pa.C.S. § 9545(b)(1)(ii). Consonant with my position in Chmiel, I conclude that, similar
to the FBI forensic analysis, Blakeney’s allegations cannot satisfy Section 9545(b)(1)(ii),
“because the purported newly-discovered facts do not affect his case.” Chmiel, 173 A.3d
at 633 n.2 (Mundy, J., dissenting). Therefore, aside from his discussion of Chmiel, I agree
with the balance of the reasoning set forth in Justice Dougherty’s OISA. Accordingly, I
respectfully disagree with the portion of the OISR that would reverse the PCRA court’s
order dismissing Blakeney’s serial PCRA petition as untimely filed.
[J-50-2018] [OAJC/OISR: Wecht, J.] - 2