J-S17015-18

2018 PA Super 143

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

GARY L. KRETCHMAR,

Appellant No. 3409 EDA 2017

Appeal from the PCRA Order Entered October 4, 2017

In the Court of Common Pleas of Bucks County

Criminal Division at No(s): CP-09-CR-0001190-1987

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 

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. Appellant argues that his petition 

satisfied the retroactive constitutional 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 hearing. 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 County, Pennsylvania. The victim suffered three 

gunshot wounds. Ballistics tests revealed that a .22 caliber 
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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 regarded 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 homicide, [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 criminal 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, which 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 petition 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 September 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 that 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 petition on November 29, 2007. The PCRA 

court dismissed the petition as untimely on September 15, 2008. This Court 
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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 II”), 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 an 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)?
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B. Did the state Supreme Court's holding in ... Burton

establish a new constitutional right under the timeliness 

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 begin by addressing 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 forth 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 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 
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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 by 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 to 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 petitioners, 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 

recognized by the Supreme Court of the United States or this 

[C]ourt after the time provided in this section. Second, it provides 
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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” 

constitutional 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 construction 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 Federal 

Constitutions. Indeed, there is not a single reference to either Constitution 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 apparent 
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consideration 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 blanche 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 conduct 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 which 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 system 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 “fundamental fairness 

and accuracy of the criminal proceeding.” Schriro, 542 U.S. at 352

(emphasis added). Thus, we hold that Burton did not establish 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’ 
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to apply retroactively.” Abdul-Salaam, 812 A.2d at 501. Accordingly, 

Appellant’s first claim is meritless. 

Next, Appellant asserts that the PCRA court erred by not conducting a 

hearing to assess his ability to access certain FBI documents for purposes of 

the timeliness exception set forth in Section 9545(b)(1)(ii). Notably, this is

not the first time that Appellant has attempted to seek collateral relief based 

on these same documents. As Appellant acknowledges, he received the 

documents in question while litigating “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 issue in 

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

Kretchmar II is necessary to understand the nature of Appellant’s claim. 

Kretchmar I concerned Appellant’s fourth petition for post-conviction 

relief, filed on November 29, 2009, in which he sought to challenge his 

conviction based on forensic evidence used in his case known as Comparative 

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 

1252. Subsequently, in 2004, the National Research Council of the National 

Academies (“NAS”) issued a study assessing “the reliability of the science of 
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CBLA and its usefulness as a forensic evidentiary tool[.]” Id. 

Contemporaneously, “a former chief metallurgist 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 suggested it was “junk science.” The 60 

Minutes piece relied heavily upon the assertions of Mr. Tobin, who 

was highly critical of CBLA evidence. The Washington Post further 

reported on CBLA evidence and questioned the evidentiary value 

of the forensic tool. It appears that sometime after the NAS issued 

its report, the FBI 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 brought 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 (footnotes 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 to 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 Section 
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9545(b)(1)(ii) (permitting an untimely 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 untimely because, “what [A]ppellant contends was not known until 

November 17, 2007, was, in the very least, quite inferable from the original 

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 alternative 

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 possibility 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 found at Mr. Rosenblum's residence. In plain 

language, this choice of words clearly conveys a probability far 

less than certainty. In contrast, the CBS 60 Minutes spot, using 

the example of a defendant convicted of murder, Lee Wayne Hunt, 
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demonstrates some of the overreaching CBLA testimony which is 

at the heart of the controversy:

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 internal FBI reports he 

received in 2009 as the predicate for 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. ... See ... 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). 

Specifically, Appellant failed to prove that the five letters dated 

December 30, 2008, through July 17, 2009, present new facts 

that have not been previously 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 

Appellant 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 

relevance of the documents by pointing to a particular section of 

the 517-page report. Similarly, Appellant failed to challenge any 

specific portion of the forensic work performed in his case or to 

identify the person who conducted that forensic analysis. 

Appellant even neglects to mention whether the forensic work in 

question was used at his trial. Accordingly, we agree with the 

PCRA court’s conclusion 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 not 

even offer newly-discovered documents, much less newly-discovered facts. 

____________________________________________

related and other 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 the 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). 
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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 his previous petitions were denied exclusively by 

application of the rule abandoned in Burton, that is simply not the case. In 

Kretchmar I, this Court also denied his CBLA-related claim on an alternative 

basis, concluding that Agent Riley’s testimony was not 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, since 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. Thus, 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 issuance of the Burton decision. However, 

judicial decisions do not constitute new “facts” for purposes of the newlydiscovered evidence exception set forth in Section 9545(b)(1)(ii). See 

Commonwealth v. Watts, 23 A.3d 980, 986-87 (Pa. 2011). New legal 
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decisions 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-discovered 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