J-S05032-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES R. CRUZ, JR. :
:
Appellant : No. 643 MDA 2021
Appeal from the PCRA Order Entered April 19, 2021
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0001246-1993
BEFORE: PANELLA, P.J., STABILE, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED APRIL 14, 2022
Appellant, James R. Cruz, Jr., appeals from the April 19, 2021 Order
dismissing his second Petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-46, as meritless. After careful review, we
affirm.
A prior panel of this court set forth the relevant facts and procedural
history of this case as follows:
Cruz was convicted of criminal homicide and theft on June 14,
1994[,] and was sentenced to life imprisonment. At trial, the
Commonwealth entered evidence relating to a number of hairs,
recovered during the underlying criminal investigation, which
implicated Cruz in the murder. Specifically, hair identified as
belonging to the victim was found in the cab of Cruz’s truck, and
hair identified as belonging to Cruz was found on the ropes that
had been used to bind and fatally strangle the victim.
To establish that the recovered hairs belonged to Cruz and to the
victim, the Commonwealth relied, in part, on microscopic hair
analysis. FBI Agent Chester Blythe testified at trial regarding the
use of microscopic hair analysis as a forensic method. In this
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testimony, Agent Blythe drew scientific conclusions that
implicated Cruz in the murder of the victim. It is this testimony
that forms the basis of Cruz’s [] PCRA petition.
Per an agreement with the Innocence Project, the Department of
Justice (“DOJ”) ordered the FBI to undertake a review of cases
that involved microscopic hair analysis, including Cruz’s
conviction. As a result of that review, the DOJ issued a letter on
June 8, 2015[,1] that identified several areas in which Agent
Blythe’s testimony exceeded the scientific limitations of
microscopic hair analysis. A copy of the DOJ letter was
subsequently provided to Cruz and prompted [Cruz to file a] PCRA
petition[, his second, on March 10, 2015].
Commonwealth v. Cruz, No. 1728 MDA 2016, 1-2 (Pa. Super. filed Sept.
29, 2017).
Acknowledging that this PCRA petition was untimely on its face, Cruz
asserted that the DOJ letter reflected a “newly-discovered fact” pursuant to
42 Pa.C.S. § 9545(b)(1)(ii), and could, thus, serve as an excuse to the
untimeliness of the petition. The PCRA court disagreed with Cruz and, on
January 5, 2017, dismissed Cruz’s second PCRA petition as untimely. On
September 29, 2017, this Court affirmed. Cruz, No. 1728 MDA 2016. The
Pennsylvania Supreme Court granted Cruz’s petition for allowance of appeal,
reversed the Superior Court, and remanded to the PCRA court for
reconsideration in light of the Supreme Court’s holding in Commonwealth v.
____________________________________________
1The DOJ letter followed an April 20, 2015 FBI press release regarding the
pervasive inaccuracy of FBI analysis’ testimony related to microscopic hair
analysis.
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Chmiel, 173 A.3d 617 (Pa. 2017).2 See Commonwealth v. Cruz, 183 A.3d
348 (Pa. 2018).
Following remand, the PCRA court dismissed Appellant’s Petition without
a hearing finding that, even in light of the Supreme Court’s decision in Chmiel,
Appellant’s Petition was untimely. See PCRA Ct. Op., 12/14/18, at 1-2
(unpaginated). The PCRA court reasoned that Appellant’s 60-day time limit
for asserting the newly-discovered fact exception started on April 20, 2015,
the date of the FBI press release. The PCRA court determined that Appellant’s
PCRA Petition, dated September 10, 2015, was, therefore, untimely. On
November 15, 2019, this Court reversed the order dismissing Appellant’s
Petition as untimely and remanded the case once again to the PCRA court for
a determination of the merits. See Commonwealth v. Cruz, 223 A.3d 274
(Pa. Super. 2019).
On July 27, 2020, the PCRA court ordered the Commonwealth to file a
motion to dismiss Appellant’s Petition within 60 days. The order also provided
that “by agreement of the parties, the [c]ourt will decide the issues raised [in
the motion] on briefs and without a hearing.” Order, 7/27/20. The
Commonwealth timely filed its motion and accompanying brief, and Appellant
filed a timely response. On March 5, 2021, after considering the submissions
____________________________________________
2 In Chmiel, the Court held that the DOJ press release announcing the FBI’s
admissions “that its examiners gave flawed and scientifically unsupportable
testimony” which it spread to state and local analysis, constituted a newly-
discovered fact for purposes of overcoming the PCRA’s jurisdictional time bar.
Chmiel, 173 A.3d at 626.
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of the parties, the PCRA court issued notice of its intent to dismiss Appellant’s
Petition pursuant to Pa.R.Crim.P. 907 without further proceedings in
accordance with the “agreement of the parties to consider the matter on briefs
and without [an] evidentiary hearing” and “having found no genuine issues
concerning any material fact.” Rule 907 Notice, 3/5/21.
On March 25, 2021, Appellant filed a response to the court’s Rule 907
Notice. By Order filed on April 19, 2021, the PCRA court responded to
Appellant’s Rule 907 response and dismissed Appellant’s Petition.
This timely followed. Appellant complied with the PCRA court’s order to
file a Pa.R.A.P. 1925(b) statement and the court filed a Rule 1925(a) Opinion
referring this Court to the reasons stated in the Rule 907 Notice.
Appellant raises the following four issues on appeal:
1. Did the PCRA [c]ourt for the third time[] dismiss the PCRA
Petition without a merits review hearing where [Appellant] was
otherwise entitled to the same, in violation of Commonwealth
v. Chmiel or other controlling case law.?
2. Did the PCRA [c]ourt for the third time[] dismiss the PCRA
Petition on the basis of insufficient after-discovered evidence
which should have been addressed in the previous two
dismissals, causing an unnecessary 6-year delay, three appeals
to the Superior court and two appeals to the Supreme Court
thereby creating an abuse of proceeding that resulted in a
violation of [Appellant’s] due process rights?
3. Did the PCRA [c]ourt misstate the facts?
4. Did the PCRA [c]ourt incorrectly find that [Appellant] was
required to claim innocence on the basis this was a second
PCRA Petition when in fact the first PCRA Petition went 15 years
with no action because his counsel abandoned him[] and was
never reviewed on the merits due to the delay caused by the
abandonment?
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Appellant’s Brief at 4.
We review the denial of a PCRA Petition to determine whether the record
supports the PCRA court’s findings and whether its order is otherwise free of
legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This
Court grants great deference to the findings of the PCRA court if they are
supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.
Super. 2007). “Further, the PCRA court’s credibility determinations are
binding on this Court, where there is record support for those determinations.”
Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010). We
give no such deference, however, to the court’s legal conclusions.
Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011).
To be eligible for relief pursuant to the PCRA, Appellant must establish,
inter alia, that his conviction or sentence resulted from one or more of the
enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2). Appellant
must also establish that the issues raised in the PCRA petition have not been
previously litigated or waived. Id. at § 9543(a)(3).
Relevant here, the PCRA provides relief for a petitioner who
demonstrates his conviction or sentence resulted from “[t]he unavailability at
the time of trial of exculpatory evidence that has subsequently become
available and would have changed the outcome of the trial if it had been
introduced.” 42 Pa.C.S. § 9543(a)(2)(vi). To establish a claim of after-
discovered evidence, a petitioner must prove that the evidence: “(1) could not
have been obtained prior to the conclusion of the trial by exercise of
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reasonable diligence; (2) is not merely corroborative or cumulative; (3) will
not be used solely to impeach the credibility of a witness; and (4) would likely
result in a different verdict if a new trial were granted.” Commonwealth v.
Tedford, 228 A.3d 891, 911 (Pa. 2020) (citations omitted). The four-part
test is conjunctive and if one prong is not satisfied, there is no need to analyze
the remaining prongs. See Commonwealth v. Pagan, 950 A.2d 270, 293
(Pa. 2008).
There is no right to a PCRA hearing; a hearing is unnecessary where the
PCRA court can determine from the record that there are no genuine issues of
material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.
2008). “With respect to the PCRA court’s decision to deny a request for an
evidentiary hearing, or to hold a limited evidentiary hearing, such a decision
is within the discretion of the PCRA court and will not be overturned absent
an abuse of discretion.” Commonwealth v. Mason, 130 A.3d 601, 617 (Pa.
2015).
Although Appellant has presented four distinct questions for our review,
his counseled brief contains only two sections of argument titled “Genuine
Issue of Material Fact, Misstatement of Facts” and “Violation of Due Process.”
Notwithstanding this violation of Pa.R.A.P. 2119(a), which requires that an
appellant divide the argument “into as many parts as there are questions to
be argued,” we consider the arguments raised within each section to the
extent that we can discern them and that they are “fairly suggested” by the
statement of questions involved. See Pa.R.A.P. 2119(a), 2116(a).
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In the “Genuine Issue of Material Fact, Misstatement of Facts” section,
Appellant claims that the PCRA court erred in dismissing his PCRA petition
without holding a hearing on its merits. Appellant’s Brief at 13-14. Appellant
also asserts that there is a genuine issue of material fact regarding the
relevance to the crime of “physical hair evidence collected.” Id. at 11. He
further asserts that the PCRA court’s conclusion that there was “substantial”
evidence outside of the hair analysis testimony to support the jury’s verdict
“misstates the entire case[,]” especially where there was purportedly an
alternative viable suspect who authorities were unable to locate. Id. at 15-
16.
Appellant’s assertion that the PCRA court erred in dismissing his petition
without a hearing lacks merit as that the parties stipulated to the court
resolving the issues on the briefs without a hearing. Moreover, it is well-
settled that a PCRA hearing is unnecessary where the PCRA court can
determine from the record that there are no genuine issues of material fact.
Here, as explained below, it was apparent to the PCRA court that Appellant
did not present any genuine issues of material fact necessitating an
evidentiary hearing. Thus, the PCRA court did not err or abuse its discretion
in dismissing Appellant’s petition without holding a hearing.
With respect to Appellant’s other claims, following our review, we
conclude that the record belies Appellant’s claim that the PCRA court misstated
the facts of record and reached an erroneous conclusion. The Honorable
Jonathan D. Grine, sitting as the PCRA court, has authored a comprehensive,
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thorough, and well-reasoned Rule 907 Notice, citing the record, including the
relevant testimony, and relevant case law in addressing Appellant’s claim. The
record supports the PCRA court’s findings, and the Rule 907 Notice is
otherwise free of legal error. We, thus, affirm on the basis of the PCRA court’s
March 5, 2021 Rule 907 Notice, which outlines the substantial evidence
presented at trial that it was Appellant who committed the crimes and then
properly concludes that the after-discovered evidence would not likely result
in a different verdict. See Rule 907 Notice, 3/5/21, at 5-6, 10 (concluding
that it properly dismissed Appellant’s PCRA Petition because Appellant failed
to demonstrate that a new trial would likely result in a different verdict
because: (1) Agent Blythe’s “testimony concerning the microscopic hair
analysis was but one piece of evidence in the context of a seven day trial;”
(2) “just under 50 witnesses [testified], and, overall, there was ample
evidence” including evidence of Appellant’s DNA present in semen and
spermatozoa obtained from the victim’s body and her underwear “upon which
the jury returned the guilty verdict;” and (3) Agent Blythe’s testimony
regarding the hair analysis “was thoroughly mitigated by cross-
examination.”).
In the section of his brief entitled “Violation of Due Process,” Appellant
complains that “excessive delay[] and repeated dismissals,” together with the
PCRA court’s refusal to hold a hearing on the merits of the instant petition,
resulted in the violation of his due process rights. Appellant’s Brief at 16-18.
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Appellant has not cited in his brief to the place in the record where he
preserved this claim. This is a violation of Pa.R.A.P. 2119(c) (requiring citation
to the record) and, moreover, our review of the record indicates that Appellant
has raised this issue for the first time on appeal. Accordingly, he has waived
it. See Pa.R.A.P. 302(a) (“Issues not raised in the [lower] court are waived
and cannot be raised for the first time on appeal.”).
In sum, the record supports the trial court’s findings. Accordingly, the
court did not err in dismissing Appellant’s PCRA petition without a hearing.
Order affirmed. The parties are instructed to attach a copy of the PCRA
court’s March 5, 2021 Rule 907 Notice to all future filings.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/14/2022
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Circulated 03/25/2022 01:07 PM
McGraw
Trialonas
IN THE COURT OF COMMON PLEAS OF CENTRE COUNTY, PENNSYLVANIA
CRIMINAL ACTION —LAW
COMMONWEALTH OF PENNSYLVANIA
V. CP-14-CR- 1246-1993
080338 80.E 03'11 A
JAMES ROBERT CRUZ, JR., N_
Defendant/
Petitioner
r
CA
Attorneyfor Commonwealth: Sean McGraw, Es0&_*e -
Attorneyfor Defendant/Petitioner: Steven P. Trialonaff guire3
0
NOTICE OF INTENTION TO DISMISS PCRA PURSUANVT•Or'" --
PENNSYLVANIA RULE OF CRIMINAL PROCEDURE 907(1) ON
On November 15, 2019,the Superior Court reversed this Court'
sdismissal of Defendant
James Cruz's ("Petitioner") Post-conviction Relief Act Petition ("PCRA") under 42 Pa. C.S.A.
§9541 et seq, based on the untimeliness of the petition and remanded the matter for further
proceedings.
Counsel agreed to submit the matter on briefs and without hearing and the Court directed
the parties to file briefs in an Order entered on July 31 ,2020 .The Commonwealth filed an
Amended Motion to Dismiss Second or Subsequent Post-conviction Relief Act Petition and Brief
in Support on September 25, 2020. On December 1, 2020,Petitioner filed aBrief in Opposition.
Petitioner raised only one issue in this PCRA asserting he was provided ineffective assistance of
counsel regarding the FBI Agent Chester Blythe'
stestimony regarding microscopic hair
comparison.Counsel for Petitioner and an Assistant District Attorney representing the Centre
County District Attorney's office reached astipulation which was provided to the Court.
Counsel stipulated that Petitioner withdrew his claim based on ineffective assistance of counsel
and substituted his PCRA claim under 42 Pa. C.S.A. §9543(a)(2)(vi) based on the purported
exculpatory evidence that has subsequently become available and would have changed the
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