[J-21-2017][M.O. – Wecht, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 726 CAP
:
Appellee : Appeal from the Order dated 5/2/16 in
: the Court of Common Pleas,
v. : Lackawanna County, Criminal Division
: at No. CP-35-CR-0000748-1983
:
DAVID CHMIEL, :
:
Appellant : SUBMITTED: January 30, 2017
CONCURRING OPINION
CHIEF JUSTICE SAYLOR DECIDED: November 22, 2017
I support the majority’s holding that jurisdiction lies. However, I have difficulty
with the linchpin of its analysis, i.e., that forensic examiner George Surma “used
microscopic hair analysis in an attempt to link Chmiel to the crime[s]” of which he was
accused, on the order of the linkage that has now been repudiated by the Federal
Bureau of Investigation. Majority Opinion, slip op. at 13.
To the extent that the issue is whether Mr. Surma used hair comparison
“definitively to link” Appellant to the crimes, id. at 15, I do not believe that this is what
occurred. In point of fact, the examiner explained to the jury that he could never say
whether a particular hair derived from a specific person, see N.T., August 27, 2002, at
30; that he was engaged only in a “process of exclusion,” id., and that any hair sample
could have the same microscopic characteristics as hair taken from multiple individuals.
See id. at 31. Along these lines, Mr. Surma couched his conclusion in terms of the
evidence-sample hairs being “a possible source from [Appellant’s] head.” See id. at 23.
As noted by a prominent commentator, the FBI’s revelations would appear to be
“limited to the issue of overclaiming.” David H. Kaye, Ultracrepidarianism in Forensic
Science: The Hair Evidence Debacle, 72 W ASH. & LEE REV. ONLINE 227, 228-29 (2015).
In other words, although the agency has disapproved the use of physical comparisons
as definitive proof of identity, it has not discredited microscopic hair comparison analysis
as “an entire invalid science.” Id. at 233. Indeed, the collaborators in the national
review of criminal prosecutions in which such analysis was used have categorized the
potential areas of concern as follows:
Error Type 1: The examiner stated or implied that the
evidentiary hair could be associated with a specific individual
to the exclusion of all others.
Error Type 2: The examiner assigned to the positive
association a statistical weight or probability, or provided a
likelihood that the questioned hair originated from a
particular source, or rendered an opinion on the likelihood or
rareness of the positive association that could lead the jury
to believe that valid statistical weight can be assigned to a
microscopic hair sample.
Error Type 3: The examiner cited the number of cases or
hair analyses worked in the lab and the number of samples
from different individuals that could not be distinguished from
one another as a predictive value to bolster the conclusion
that a hair belongs to a specific individual.
DOJ, 65 Forensic Science and Forensic Evidence I, at 6-7 (Jan. 2017). Notably, from
my point of view at least, it would be difficult to attribute any of these errors to Mr.
Surma’s testimony.1
1
As Appellant emphasizes, the prosecutor may have engaged in overclaiming, inter
alia, via his assertion in his closing remarks that Mr. Surma’s testimony depicted that
the two evidence-sample hairs ”match[ed] up to” Appellant’s hair. N.T., Sep. 6, 2002, at
175. However, any misstatements the prosecutor may have made to the jury
(continued…)
[J-21-2017][M.O. – Wecht, J.] - 2
Despite the above reservations, I join the balance of the majority’s analysis on
the basis of Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264 (2007), which
decoupled the “facts” contemplated by Section 9545(b)(ii) of the PCRA from the “claims”
serving as the explicit bases for statutory post-conviction relief per Section 9543(a).
See id. at 402–10, 930 A.2d at 1275–80 (Saylor, J., dissenting). In this regard, I agree
with the majority’s determination that the FBI’s press release and attendant admissions
constitute a newly discovered fact triggering jurisdiction under Bennett. As I understand
Bennett, no further analysis concerning the relationship between the newly-discovered
fact and the underlying merits-based claim is necessary or appropriate in the
jurisdictional assessment. See id.
Finally, I observe that the liberal conferral of jurisdiction, in this instance, is
consistent with the approach of conscientious prosecutors who are not opposing post-
conviction review to determine whether criminal cases may have been affected by the
acknowledged systemic error in the FBI’s practices. See FBI Press Release, FBI
Testimony on Microscopic Hair Analysis Contained Errors in at Least 90 Percent of
Cases in Ongoing Review, at 2 (Apr. 20, 2015).
Justice Baer joins this concurring opinion.
(…continued)
concerning what Mr. Surma had said are not after-discovered facts, since they have
been readily available for review since the time of trial.
Significantly, as well, the collaborators’ concerns do not appear to be with the use of
microscopic hair comparison analysis as a means of exclusion, as occurred relative to
Appellant’s brother.
[J-21-2017][M.O. – Wecht, J.] - 3