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- S17015

- 18 2018 PA Super 143

COMMONWEALTH OF PENN SYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. GARY L. KRETCHMAR, Appellant No. 3409 EDA 201 7

Appeal from the PCRA Order Entered October 4 , 201 7 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP

- 09

- CR

- 0 001190

- 1987

BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J. OPINION BY BENDER, P.J.E.: FILED JUNE 1, 2018 Appellant, Gary L. Kretchmar, appeals pro se from the order dismissing, as untimely, his petition filed pursuant to the Post Conviction Relief Act (“PC RA”), 42 Pa.C.S. §§ 9541

- 9546 . Appellant argues that his petition satisfied the retroactive constitution al right exception to the PCRA’s timeliness requirements, Section 9545(b)(1)(iii), premised on our Supreme Court’s decision in Commonwealth. v. Burton , 158 A.3d 618 (Pa. 2017)

. He also claims the PCRA court erred by dismissing his petition without a heari ng . After careful review, we affirm. This Court previously summarized the factual history of Appellant’s conviction as follows:

On October 6, 1981, at approximately 2:00 p.m., Scott Rosenblum was found dead in his apartment in Bensalem Township, Bucks Co unty, Pennsylvania. The victim suffered three gunshot wounds. Ballistics tests revealed that a .22 caliberJ

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firearm was used to inflict the wounds. Despite a contemporaneous investigation, which included the questioning of [A]ppellant, the crime was rega rded as “unsolved” for many years. However, in January 1987, after a grand jury returned a presentment against [A]ppellant, a criminal complaint was filed charging [him] with criminal homicide. Aware of the action taken against him with respect to the ho micide, [A]ppellant subsequently fled Pennsylvania and was ultimately arrested in San Diego, California, in July 1988, on an unrelated matter. Appellant was subsequently extradited to Pennsylvania and ultimately stood trial on, inter alia , charges of crim inal homicide. Appellant was convicted in a jury trial of first

- degree murder on November 22, 1988, and after a penalty phase hearing was held, a sentence of life imprisonment was imposed. Following sentencing, [A] ppellant filed a post

- sentence motion, wh ich was denied on May 25, 1989. Appellant filed a direct appeal to this [C] ourt, which resulted in the affirmance of his judgment of sentence on May 8, 1990. Commonwealth v. Kretchmar , 402 Pa. Super. 656, 578 A.2d 38 (1990). Appellant subsequently filed a petition for allowance of appeal with the Pennsylvania Supreme Court, but that petitio n was denied on April 30, 1991. On or about April 13, 1992, [A]ppellant filed a motion for post

- conviction collateral relief. Appellant's petition was denied on Septe mber 15, 1994 and was affirmed on appeal to this [C] ourt on December 29, 1995. A petition for allowance of appeal to the Pennsylvania Supreme Court was granted, Commonwealth v. Kretchmar , 545 Pa. 41, 679 A.2d 774 (1996); however, it was later concluded th at allowance of appeal had been improvidently granted. Commonwealth v. Kretchmar , 547 Pa. 358, 690 A.2d 234 (1997). Subsequently, [A] ppellant filed two additional petitions under the PCRA, one in 2002 and the other in 2006. Both petitions were denied by the PCRA court and affirmed on appeal. Commonwealth v. Kretchmar , 971 A.2d 1249, 1250 (Pa. Super. 2009) (hereinafter, “ Kretchmar I ”). Appellant filed his next PCRA p etition on November 29, 2007 . The PCRA court dismissed the petition as untimely on Septe mber 15, 2008. This CourtJ

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affirmed on April 8, 2009, and our Supreme Court denied allowance of appeal on November 17, 2009. See Kretchmar I , appeal denied , 971 A.2d 1249 (Pa. 2009). Another PCRA petition followed on January 13, 2010, which was dismissed on January 6, 2011. This Court affirmed on October 25, 2011, and our Supreme Court denied allowance of appeal from that decision on February 22, 2012. See Commonwealth v. Kretchmar , 37 A.3d 1243 (Pa. Super. 2011) (unpublished memorandum) (hereinafter, “ Kretchmar I I ”), appeal denied , 38 A.3d 823 (Pa. 2012). Appellant filed the instant pro se PCRA petition , his sixth, on May 23, 2017. On August 15, 2017, the PCRA court issued an order stating its intent to dismiss Appellant’s petition pursuant to Pa.R. Crim.P. 907. Appellant filed a timely response thereto on September 5, 2017. By order dated October 6, 2017, the PCRA court dismissed Appellant’s PCRA petition as untimely. Appellant filed a timely notice of appeal on October 24, 2017. He then filed a timely, court

- ordered Pa.R.A.P. 1925(b) statement on November 13, 2017, and the PCRA court subsequently issued its Rule 1925(a) opinion on December 15, 2017. Appellant now presents the following questions for our review:
1. Did the PCRA [c] ourt commit a n error of law when it held that the PCRA public record presumption rule announced in ... Burton does not apply retroactively to Appellant's pro se prisoner PCRA petition? A. Did the state Supreme Court's holding in ... Burton establish a watershed rule of PCRA procedure for pro se prisoner petitioners under the timeliness exception set forth in 42 Pa.C.S. [] § 9545(b)(1)(ii)?J

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- B. Did the state Supreme Court's holding in ... Burton establish a new constitutional right under the tim eliness exception set forth in 42 Pa.C.S. [] § 9545(b)(1)(iii)? 2. Did the PCRA [c] ourt abridge Appellant's 14th Amendment Due Process rights when the court dismissed his pro se prisoner PCRA petition without conducting a fact based assessment of Appellant' s access to the FBI documents; which form the predicate for his timeliness exception claim under 42 Pa.C.S. [] § 9545(b)(1)(ii)? Appellant’s Brief at 3. This Court’ s standard of review regarding an order denying a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Ragan , 923 A.2d 1169, 1170 (Pa. 2007). We must beg in by address ing the timeliness of Appellant’ s petition, which is facially untimely, because the PCRA time limitations implicate our jurisdiction and may not be altered or disregarded in order to address the merits of a petition. Commonwealth v.
Bennett , 930 A.2d 1264, 1267 (Pa. 2007). Under the PCRA, any petition for post

- conviction relief, including a second or subsequent one, must be filed within one year of the date the judgment of sentence becomes final, unless one of the following exceptions set for th in 42 Pa.C.S. § 9545(b)(1)(i)

- (iii) applies: (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 al leges 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 theJ

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- 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 b y 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. 42 Pa.C.S. § 9545(b)(1)(i)

- (iii). Any petition attempting to invoke one of these exceptions “shall be filed within 60 days of the date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2). Appellant first argues that Burton created a new constitutional right, or a watershed rule of PCRA procedure, which entitles him t o invoke the retroactive constitutional right exception to the PCRA’s time bar, Section 9545(b)(1)(iii). He maintains that his previous two PCRA petitions were denied based on application of the public record presumption rule, which, at least for pro se p etitioners, was abandoned by our Supreme Court in Burton

. The PCRA court determined that Burton did not create any such right, and that our Supreme Court did not indicate that it intended Burton to apply retroactively. We agree with the PCRA court.
Our Supreme Court has set forth a two

- part test to determine the applicability of Section 9545(b)(1)(iii) to a new decision: Subsection (iii) of Section 9545 has two requirements. First, it provides that the right asserted is a constitutional right that was r ecognized by the Supreme Court of the United States or this [C] ourt after the time provided in this section. Second, it providesJ

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that the right “has been held” by “that court” to apply retroactively. Thus, a petitioner must prove that there is a “new” con stitutional right and that the right “has been held” by that court to apply retroactively. The language “has been held” is in the past tense. These words mean that the action has already occurred, i.e. , “that court” has already held the new constitutional right to be retroactive to cases on collateral review. By employing the past tense in writing this provision, the legislature clearly intended that the right was already recognized at the time the petition was filed. Commonwealth v. Abdul - Salaam , 812 A.2d 497, 501 (Pa. 2002).
In Burton , our Supreme Court held that the presumption that information which is of public record cannot be deemed “unknown,” for purposes of Section 9545(b)(1)(ii), does not apply to incarcerated, pro se petitioners. Burton , 158 A.3d at 638. Nowhere in the Burton decision did our Supreme Court suggest the creation of a new constitutional right, nor did the Court engage in any form of constitutional analysis in reaching that decision

. To the contrary, Burton is a case of statutory co nstruction or, more specifically, it limits the scope of a prior interpretation of the text of Section 9545(b)(1)(ii). In narrowing that prior interpretation, the Burton Court did not invoke any provisions or rights set forth in the Pennsylvania or Federa l
C onstitutions. Indeed, there is not a single reference to either C onstitution in the opinion. Instead, the Burton Court grounded its decision on two precepts. First, the Burton Court determined that “ the application of the public record presumption to pro se prisoners is contrary to the plain language of subsection 9545(b)(1)(ii) [.]” Id. (emphasis added). Second, the Court found that the prior interpretation “was imposed without any apparentJ

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consider ation of a pro se prisoner's actual access to information of public record.” Id. Thus, the Burton decision was based on the plain text of Section 9545(b)(1)(ii), and a common sense understanding that incarcerated PCRA petitions do not have carte blanc he access to information in the public domain.

Moreover, the Burton decision did not constitute a watershed rule of criminal procedure. New rules of procedure ... generally do not apply retroactively. They do not produce a class of persons convicted of con duct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise. Because of this more speculative connection to innocence, we give retroactive effect to only a small set of “‘watershed rules of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.” That a new procedural rule is “fundamental” in some abstract sense is not enough; the rule must be one “without whi ch the likelihood of an accurate conviction is seriously diminished.” This class of rules is extremely narrow.... Schriro v. Summerlin , 542 U.S. 348, 352 (2004). Here, the procedural rule in question is not a rule of criminal procedure , as the “PCRA syste m is not part of the criminal proceeding itself, but is, in fact, civil in nature.” Commonwealth v. Haag , 809 A.2d 271, 284 (Pa. 2002). Thus, changes to PCRA procedure do not affect “f undamental fairness and accuracy of the criminal proceeding

. ” Schriro , 542 U.S. at 352 (emphasis added)

. Thus, we hold that Burton did not establ ish a new constitutional right nor a watershed rule of criminal procedure

. Consequently, there is no need to address whether “the right ‘has been held’ by ‘that court’J

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to apply r etroactively.” Abdul - Salaam , 812 A.2d at 501. Accordingly, Appellant’s first claim is meritless. Next, Appellant asserts t hat the PCRA court erred by not conducting a hearing to assess his ability to access certain FBI documents for purposes of the tim eliness exception set forth in Section 9545(b)(1)(ii). Notably, this is not the first time that Appellant has attempted to seek collateral relief base d on these same documents. As Appellant acknowledges, he received the documents in question while litiga ting “his fourth PCRA action,” which concluded in 2009. Appellant’s Brief at 27. Appellant’s fourth PCRA petition was addressed by our decision in Kretchmar I . Appellant then filed his fifth PCRA petition on January 13, 2010, which was the matter at iss ue in Kretchmar I

I . Therefore, a discussion of our decisions in Kretchmar I and Kretchmar I

I is necessary to understand the nature of Appellant’s claim. Kretchmar I concerned Appellant’s fourth petition for post

- conviction relief, filed on Novem ber 29, 2009, in which he sought to challenge his
convicti on based on forensic evidence used in his case known as Comparativ e Bullet Lead Analysis (“CBLA”). Kretchmar I , 971 A.2d at 1251. Utilizing
CBLA , “FBI Agent John Riley testified” during Appellant’ s trial “that the bullets extracted from Mr. Rosenblum's body matched in elemental composition those found in the half

- empty box discovered in Mr. Rosenblum's apartment creating a high likelihood that they came from the same manufacturing run.” Id. at 125 2. Subsequently, in 2004, the National Research Council of the National Academies (“NAS”) issued a study assessing “the reliability of the science ofJ

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CBLA and its usefulness as a forensic evidentiary tool[.]” Id. Contemporaneously, “ a former chief metal lurgist for the FBI, William Tobin, offered public criticism of CBLA. ” Id.

A couple of years later, CBS News, through their weekly news magazine show “60 Minutes,” broadcast [ed] a feature on the FBI's usage of CBLA evidence entitled “Evidence of Injustice,” and contended that it was suspect as a forensic evidentiary tool. Indeed, the CBS spot s uggested it was “junk science.” The 60 Minutes piece relied heavily upon the assertions of Mr. Tobin, who was hi ghly critical of CBLA evidence. The Washington Post further reported on CBLA evidence and questioned the evidenti ary value of the forensic tool. It appears that sometime after the NAS issued its report, the F BI discontinued CBLA. Nevertheless, the above two reports spurred the FBI to issue a press release dated November 17, 2007, wherein John Miller, FBI Assistant Director for Public Affairs, is quoted as saying: Recently, joint reporting by the Washington Post and CBS News broug ht to our attention concerns that our messages on the discontinuation of bullet lead analysis were not clear enough and getting to the right people.... Press Release: FBI Laboratory to Increase Outreach in Bullet Lead Cases, 11/17/07. Id. at 1254 (footnote s omitted).
In the PCRA petition at issue in Kretchmar I , Appellant “predicated his substantive PCRA claim entirely upon the internal findings of the FBI that its personnel ‘had made mistakes in handling bullet lead testimony and should have done more t o alert defendants and the courts.’” Id. at 1254

– 55. Essentially, Appellant asserted that the FBI ’s statement , and contemporaneous news reports in November of 2007, contained facts which were previously unknown to the general public and, therefore, provided a basis for him to invoke the PCRA timeliness exception set forth in SectionJ

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9545(b)(1)(ii) ( permitting an u ntimely PCRA petition when “ 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 ” ).
In Kretchmar I , this Court determined that Appellant’s PCRA petition
was untim ely because, “ what [A] ppellant contends was not known until November 17, 2007, was, in the very least, quite inferable from the origin al NAS report published in 2004.” Id. at 1256. Arguably, that particular aspect of the Kretchmar I decision was premised on the rule later rejected in
Burton ; that is, that Appellant was presumed to have been capable of discovering the 2004 NAS report at an earlier time because it was a matter of public record. Nevertheless, the Kretchmar I Court then conducted an alterna tive analysis, addressing Appellant’s claim on the merits, and ultimately concluding that “the CBLA testimony offered in [A] ppellant's trial was not misrepresentative ” of the limitations of the CBLA science. Id. Specifically, the Kretchmar I Court found: The whole of Agent Riley's testimony conveys the limited evidentiary value of the CBLA analysis. Agent Riley admitted that there could be a hundred thousand bullets with the same composition as the ones in question here. This certainly conveys the po ssibility of a random match. Agent Riley stressed that his analysis revealed that the bullet fragments found in Mr. Rosenblum's body “could have come” from the same box of ammunition foun d at Mr. Rosenblum's residence. In plain language, this choice of w ords clearly conveys a proba bility far less than certainty. In contrast, the CBS 60 Minutes spot, using the example of a defendant convicted of murder, Lee Wayne Hunt,J

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demonstrates some of the overreaching CBLA testimony which is at the heart of the contr oversy: For years, the FBI believed that lead in bullets had unique chemical signatures, and that by breaking them down and analyzing them, it was possible to match bullets, not only to a single batch of ammunition coming out of a factory, but to a single box of bullets. And that is what the FBI did in the case of Lee Wayne Hunt, tying a bullet fragment found where the murders took place to a box of bullets the prosecutors linked to Hunt. http://www.cbsnews.com/stories/2007/11/16/60minutes/main3 512453.shtml

. In the present case, Agent Riley did not testify that his findings proved conclusively that the bullet fragments were from the same box of ammunition and certainly left open the possibility of random matches. Thus, Agent Riley did not engage in the form of unfounded representation that was at the heart of the NAS study/report or the 60 Minutes and Washington Post pieces, and also at the heart of the press release [A] ppellant refers to in his current PCRA petition. Kretchmar I , 971 A.2d at 1257.
In Kretchmar II , Appellant reformulated the same claim he raised in Kretchmar I , but instead of relying on the 2004 NAS study, or the subsequent news coverage of the CBLA issue, he sought to use the int ernal FBI reports he received in 2009 as the predicate fo r invoking Section 9545(b)(1)(ii). 1 We

_________________ __________ ______ ____ _______ 1 These documents include[d] a report by the United States Department of Justice, dated April 15, 1997, a memorandum by the FBI, dated May 17, 1999, and five letters between the FBI and the Bucks County District Attorney’s Office, dated April 24, 2008, through July 17, 2009

. ... S ee ... Appellant’s Amended PCRA Petition, 7 /12/10, Appendices B, C, and G .... The 1997 report, which is over 500 pages long, provides information regarding an FBI “investigation into laboratory practices and alleged misconduct in explosives

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held that Appellant “failed to prove the newly

- discovered evidence exception because he failed to allege or prove any new facts. ” Id. (emphasis added). Specifica lly, Appellant failed to prove that the five letters dated December 30 , 2008, through July 17, 2009, present new facts that have not been previou sly considered. In 2009, this Court addressed the propriety of the same FBI agent’s testimony and held that it was not misrepresentative and, thus, did not deny A ppellant a fair and impartial trial. [] Kretchmar [ I ] , 971 A.2d [at] 1257

.... Furthermore, we are unable to discern how the other two documents, the 1997 report and the 1999 memorandum, relate to Appellant’s case. Appellant has not demonstrated the relevan ce of the documen ts by pointing to a particular section of the 517

- page report. Similarly, App ellant failed to challenge any specific portion of the forensic work performed in his case or to identify the person who conducted that forensic analysi s. Appellant even neglects to mention whether the forensic work in qu estion was used at his trial. Accordingly, we agree with the PCRA court’s co nclusion that “[Appellant] has not met his burden in establishing th[e newly

- discovered evidence] timeliness exception.” PCRA Court Opinion, 4/8/11, at 8. Kretchmar II , No. 208 EDA 2011 , unpublished memorandum at 9

- 10

. Instantly, Appellant is attempting to make yet another challenge to Agent Riley’s CBLA

- related testimony . On this occasion, however, he does no t even offer newly

- discovered documents , much less newly

- discovered facts

.

_________________ __________ ______ ____ _______ related and o ther cases.” Appellant’s Amended PCRA Petition, 7/12/10, Appendix B. The 1999 memorandum summarizes the findings in the 1997 report. Appellant’s Amended PCRA Petition, 7/12/10, Appendix C. The five letters refer to an FBI agent’s testimony regarding th e comparative bullet

- lead analysis conducted in Appellant’s case. Kretchmar II , No. 208 EDA 2011 , unpublished memorandum at 9 (Pa. Super. filed October 25, 2011 )

.J

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Instead, Appellant is attempting to utilize the Burton decisions as a jurisdictional hook by which to relitigate his previous two PCRA petitions. And, although Appellant claims hi s previous petitions were denied exclusively by application of the rule abandoned in Burton , that is simply not the case . I n Kretchmar I , this Court also denied his CBLA

- related claim on an alternative basis, concluding that Agent Riley’s testimony was no t undermined by the subsequent criticisms of CBLA in the CBS and Washington Post news reports

. In Kretchmar II , this Court determined that the additional documents produced by Appellant did not present any new facts to undermine Agent Riley’s testimony , s ince Appellant failed to identify which parts of those documents constituted relevant, newly

- discovered facts. The Kretchmar II Court also found that Appellant failed to identify which part of Agent Riley’s analysis was challenged by the new documents . T hus, it is clear that Appellant’ s prior CBLA

- related claims, raised in two separate PCRA petitions,
were not exclusively denied on the basis for the rule circumscribed in Burton

. In any event, Appellant’s current PCRA petition presents no new documents, no new evidence, and , most critically, no new facts. Accordingly, his claims fails to meet the requirements of Section 9545(b)(1)(ii) on its face. The only circumstance that has changed since Appellant’s previous PCRA petition is our Supreme Court’s iss uance of the Burton decision . However, judicial decisions do not constitute new “facts” for purposes of the newly

discovered evidence exception set forth in Section 9545(b)(1)(ii). See Commonwealth v. Watts , 23 A.3d 980, 986

- 87 (Pa. 2011). New legalJ

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dec isions can only overcome the PCRA’s timeliness requirements in the context of Section 9545(b)(1)(iii). Accordingly, we conclude the PCRA court did not err when it dismissed Appellant’s PCRA petition without a hearing. Appellant did not plead newly

- discov ered facts so as to properly invoke Section 9545(b)(1)(ii) and, therefore, no evidentiary hearing was required to determine if Appellant exercised due diligence in the discovery of those facts. Order affirmed

. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/1/18