J-S84045-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

DAVIS SMITH

 Appellant No. 2927 EDA 2015

Appeal from the PCRA Order August 25, 2015

in the Court of Common Pleas of Philadelphia County Criminal Division

at No(s): CP-51-CR-1005861-2000

BEFORE: OLSON, SOLANO, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 13, 2017

Appellant, Davis Smith, appeals from the order entered in the 

Philadelphia County Court of Common Pleas denying his fourth Post 

Conviction Relief Act1(“PCRA”) petition as untimely. He argues that his 

petition was timely filed pursuant to the “after discovered facts” exception to 

the PCRA.2 We affirm.

A prior panel of this Court summarized the facts of this case as 

follows:

On four to six occasions prior to August 21, 2000, 

Appellant traveled to the Philadelphia home of Tanya 

Serrano to purchase a quarter-pound of cocaine. Ms. 

Serrano acted as an intermediary between Appellant and 

cocaine supplier Jose Matos (the victim), and although 

 

*

Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.

2 42 Pa.C.S. § 9545(b)(1)(ii).
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Appellant had purchased cocaine from Matos through Ms. 

Serrano, Appellant had never actually met Matos. Ms. 

Serrano testified at trial that she would receive $300 from 

Matos for each transaction in which she was the 

intermediary.

On August 21, 2000, Appellant called Ms. Serrano and 

indicated that he wanted to purchase more cocaine. 

Rather than waiting until Ms. Serrano advised him that she 

had the cocaine in her possession, which had been the 

procedure followed in the past, on this date Appellant 

arrived at Serrano’s home early and was there when Matos 

arrived to deliver the drugs to her. Ms. Serrano testified 

that she and Matos thought this was strange and Matos 

walked her toward the back of the house while whispering 

something in her ear. As Serrano and Matos headed 

toward the back room, she heard something behind her 

and, when she turned to look, was hit on the back of her 

head rendering her unconscious.

When Ms. Serrano regained consciousness, she dialed 

911. When police responded to her home, they found 

Matos lying face down on the floor with his head covered, 

having been shot in the head, and Appellant was gone. 

Later that evening, officers recovered a Colt .45 revolver 

within one block of Ms. Serrano’s home that had a blood 

stain on it later determined to be that of Matos. In 

addition, a burned-out van belonging to Matos was found 

within 150 yards from Appellant’s residence.

Commonwealth v. Ming a/k/a/ Smith, 2427 EDA 2004 (unpublished 

memorandum at 1-2) (Pa. Super. Aug. 9, 2005).

The PCRA court summarized the procedural posture of this case as 

follows:

On September 14, 2001, a jury convicted [Appellant] of 

second-degree murder, robbery, and burglary. He was 

sentenced to life imprisonment without parole for the 

murder conviction and no additional sentence for the 

remaining charges. [Appellant] filed a timely direct 

appeal. The Superior Court affirmed the judgment of 
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sentence on July 2, 2003.[3] The Supreme Court denied 

[Appellant’s] allowance of appeal on December 2, 2003.[4]

On January 6, 2004, [Appellant] filed his first [PCRA 

petition]. Counsel was appointed. Subsequently counsel 

filed a “no merit” letter on July 6, 2004. Following 

independent review of [Appellant’s] claims, the trial court 

dismissed his petition. On August 9, 2005, the Superior 

Court affirmed the dismissal.[5]

[Appellant, acting pro se,] filed the current petition on 

February 5, 2015. . . . [T]his [c]ourt found that 

[Appellant’s] petition for post conviction collateral relief 

was untimely filed and dismissed his petition on August 25, 

2015.

PCRA Ct. Op., 11/17/15, at 1-2 (footnote omitted). This timely appeal 

followed. Appellant was not ordered to file a Pa.R.A.P. 1925(b) statement 

of errors complained of on appeal. The PCRA court filed a Pa.R.A.P. 1925(a) 

opinion.

Appellant raises the following issues for our review:

I. Did Appellant plead his eligibility for PCRA relief and was 

he eligible for PCRA relief[?]

II. Have advances in fire investigation science shown that 

the analysis used by the fire marshal in Appellant’s trial 

resulted in nonscientific expert testimony which was highly 

unreliable and which contributed significantly to the 

verdicts returned against Appellant[?]

 

3 See Commonwealth v. Ming, 2800 EDA 2001 (unpublished 

memorandum) (Pa. Super. July 2, 2003). 

4 See Commonwealth v. Ming, 363 EAL 2003 (Pa. Dec. 2, 2003).

5 See Ming a/k/a Smith, supra. 
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III. Is Appellant entitled to a hearing on his claim that 

advancements in fire investigation science now show the 

evidence the Commonwealth introduced through its fire 

marshal was unreliable and now violative of due process of 

law[?]

Appellant’s Brief at 6.

First, Appellant contends the instant PCRA petition was timely based 

upon newly discovered evidence pursuant to 42 Pa.C.S. § 9545(b)(1)(ii). 

Appellant’s Pro Se Motion for Post Conviction Collateral Relief, 2/5/15, at 4. 

He avers that there were fatal flaws in the fire science that was used at trial 

by the Commonwealth, viz., the negative corpus methodology.6 Id. 

Appellant claims he became aware of this fact from a news program on 

January 24, 2015, “which aired a news interview of the release of prisoner 

James Hugney from SCI/Rockview who was also convicted based upon fatal 

flaw fire science in his case verbatim to the case sub judice.” Id. Appellant 

argues that “[a]lthough [he] was not charged with arson, the 

Commonwealth used the arson of the van to argue that he committed this 

uncharged crime to destroy evidence of his guilt of the murder . . . .” 

Appellant’s Brief at 18-19. Appellant contends that the PCRA petition is 

 

6 We note that “‘[n]egative corpus,’ short for negative corpus delicti, is fire 

investigator shorthand for the determination that a fire was incendiary based 

on the lack of evidence of an accidental cause.” Schlesinger v. United 

States, 898 F. Supp. 2d 489, 491–92 (E.D.N.Y. 2012).
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timely because he filed it within sixty days of learning of the case of 

Commonwealth v. James Hugney. Appellant’s Brief at 17-18. 

This Court has stated: 

In reviewing the propriety of an order denying PCRA 

relief, this Court is limited to examining whether the 

evidence of record supports the determination of the PCRA 

court, and whether the ruling is free of legal error. Great 

deference is given to the findings of the PCRA court, which 

may be disturbed only when they have no support in the 

certified record. 

Commonwealth v. Perry, 959 A.2d 932, 934-35 (Pa. Super. 2008) 

(citations omitted).

As a prefatory matter, we determine whether Appellant’s PCRA petition 

is timely. 

Our Supreme Court has stressed that “[t]he PCRA’s 

timeliness requirements are jurisdictional in nature and 

must be strictly construed; courts may not address the 

merits of the issues raised in a petition if it is not timely 

filed.” Commonwealth v. Abu–Jamal, [ ] 941 A.2d 

1263, 1267–68 ([Pa.] 2008) (citation omitted). See 

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa. 

Super. 2010) (holding no court has jurisdiction to hear an 

untimely PCRA petition). It is well settled that “[a]ny and 

all PCRA petitions must be filed within one year of the date 

on which the petitioner’s judgment became final, unless 

one of three statutory exceptions applies.” 

Commonwealth v. Perrin, 947 A.2d 1284, 1285 (Pa. 

Super. 2008) [ ]. 

Commonwealth v. Garcia, 23 A.3d 1059, 1061-62 (Pa. Super. 2011) 

(footnote omitted). 

The timeliness exceptions to the PCRA requirements are set forth in 42 

Pa.C.S. § 9545, which provides in pertinent part:
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(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:

* * *

(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[.]

 * * *

(2) Any petition invoking an exception provided in 

paragraph (1) shall be filed within 60 days of the date the 

claim could have been presented.

42 Pa.C.S. § 9545(b)(1)(ii), (2). 

The timeliness exception set forth in Section 

9545(b)(1)(ii) requires a petitioner to demonstrate he did 

not know the facts upon which he based his petition and 

could not have learned those facts earlier by the exercise 

of due diligence. Due diligence demands that the 

petitioner take reasonable steps to protect his own 

interests. A petitioner must explain why he could not have 

learned the new fact(s) earlier with the exercise of due 

diligence. This rule is strictly enforced. Additionally, the 

focus of this exception is on the newly discovered facts, 

not on a newly discovered or newly willing source for 

previously known facts.

The timeliness exception set forth at Section 

9545(b)(1)(ii) has often mistakenly been referred to as the 

after-discovered evidence exception. This shorthand 

reference was a misnomer, since the plain language of 

subsection (b)(1)(ii) does not require the petitioner to 

allege and prove a claim of after-discovered evidence. 

Rather, as an initial jurisdictional threshold, Section 

9545(b)(1)(ii) requires a petitioner to allege and prove 

that there were facts unknown to him and that he 

exercised due diligence in discovering those facts. Once 

jurisdiction is established, a PCRA petitioner can present a 

substantive after-discovered-evidence claim. See 42 
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Pa.C.S.A. § 9543(a)(2)(vi) (explaining that to be eligible 

for relief under PCRA, petitioner must plead and prove by 

preponderance of evidence that conviction or sentence 

resulted from, inter alia, unavailability at time of trial of 

exculpatory evidence that has subsequently become 

available and would have changed outcome of trial if it had 

been introduced). In other words, the new facts exception 

at:

[S]ubsection (b)(1)(ii) has two components, which 

must be alleged and proved. Namely, the petitioner 

must establish that: 1) the facts upon which the 

claim was predicated were unknown and 2) could

not have been ascertained by the exercise of due 

diligence. If the petitioner alleges and proves these 

two components, then the PCRA court has 

jurisdiction over the claim under this subsection.

Thus, the new facts exception at Section 9545(b)(1)(ii) 

does not require any merits analysis of an underlying 

after-discovered-evidence claim.

 

Commonwealth v. Brown, 111 A.3d 171, 176-77 (Pa. Super. 2015) 

(quotation marks and some citations omitted). 

Our Pennsylvania Supreme Court 

has addressed the meaning of facts as that term is 

employed in Section 9545(b)(1)(ii) and held that, to 

constitute such facts, the information may not be part of 

the public record. Similarly, we have held that a petitioner 

must allege and prove previously unknown facts, not 

merely a newly discovered or newly willing source for 

previously known facts. These principles have been 

applied when a petitioner has relied on a study to satisfy 

the time-bar exception of Section 9545(b)(1)(ii). See 

[Commonwealth v. Lark, 746 A.2d 585, 588 n.4 (Pa. 

2000)] (concluding that because a particular study of the 

Philadelphia criminal justice system consisted of statistics 

which were public record, it could not be said that the 

statistics were unknown to the petitioner).
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Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa. 2013) (quotation 

marks and some citations omitted).

In the instant case, Appellant’s judgment of sentence became final on 

March 1, 2004, which marked the expiration of the ninety-day time period 

for seeking certiorari in the United States Supreme Court after the 

Pennsylvania Supreme Court declined to hear Appellant’s appeal on 

December 2, 2003. See 42 Pa.C.S. § 9545(b)(3) (stating “a judgment 

becomes final at the conclusion of direct review, including discretionary 

review in the Supreme Court of the United States and the Supreme Court of 

Pennsylvania, or at the expiration of time for seeking the review”). 

Appellant then had generally one year within which to file his PCRA petition. 

The instant PCRA petition, filed on February 5, 2015, is patently untimely. 

See 42 Pa.C.S. § 9545(b)(1). 

Instantly, the PCRA court opined:

In his February 5, 2015, PCRA petition, [Appellant] 

raised an after-discovered evidence argument. He based 

this argument on a decision in release of James Hugney. 

The premise of Mr. Hugney’s case was whether or not 

there was arson that caused the death of his son. He was 

convicted based upon the Negative Corpus method of fire 

investigation, and he was released because this was not 

supported by modern science.

 * * *

[Appellant] stated that he became aware of this case 

while watching the news on January 24, 2015, and [he] 

filed this petition on February 5, 2015; therefore, he 

claimed that he met the 60-day requirement for filing. 

[Appellant] was mistaken. The alleged after-discovered 
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evidence in this case asserted by [Appellant] was the new 

methods of fire investigation as cited in the release of Mr. 

Hugney. However, fire investigation has improved and 

there have been many updates made prior to the case of 

Mr. Hugney; [Appellant] has failed to show due diligence

in presenting this argument. 

PCRA Ct. Op. at 3-4 (footnote omitted). We agree no relief is due.

In the case sub judice, Appellant acknowledges that 

[i]n 1998, the Eleventh Circuit for the first time held that 

purported “fire science” testimony must satisfy the 

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 

(1993) standard, and upheld the exclusion of an “expert’s” 

negative corpus analysis. Michigan Millers Mutual Ins. 

Corp. v. Benfield, 140 F.3d 915, 919-21 (11th Cir. 1998).

Appellant’s Brief at 21.7 Appellant avers that “[t]he 2011 revision of NFPA 

(National Fire Protection Association) 921 (see page 245) rejected the 

doctrine of negative corpus . . . .” Id. at 9. 

Appellant failed to plead and prove why the facts were unknown and 

could not have been ascertained by the exercise of due diligence. See 

Brown, 111 A.3d at 176-77; Edmiston, 65 A.3d at 352. Appellant did not 

plead and prove any exception to the PCRA’s timeliness requirement. See

42 Pa.C.S. § 9545(b)(1)(ii); Brown, 111 A.3d at 176-77. Thus, the PCRA 

court did not err in denying his PCRA petition as untimely. See Garcia, 23 

A.3d at 1061-62.

Order affirmed.

 

7 See Appellant’s Brief at 15-16.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/13/2017