Com. v. Hale, M.

• Court: Superior Court of Pennsylvania
• Decided: September 23, 2016
• Docket: 2940 EDA 2014
• Status: Unpublished

Opinion

J-A05008-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

MARSHALL HALE,

Appellant No. 2940 EDA 2014

Appeal from the PCRA Order of September 17, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0326571-1984

BEFORE: OLSON AND OTT, JJ. and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 23, 2016

Appellant, Marshall Hale, appeals from the order of September 17,

2014 entered in the Criminal Division of the Court of Common Pleas of

Philadelphia County that dismissed as untimely his sixth petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. Upon careful consideration and review, we conclude,

contrary to the PCRA court, that the present petition raises genuine issues

as to whether Appellant presented viable factual claims that were unknown

to him and that could not have been previously ascertained through

reasonable diligence. See 42 Pa.C.S.A. § 9545(b)(1)(ii). Accordingly, we

vacate the September 17, 2014 order of the PCRA court dismissing

Appellant’s present petition without a hearing and remand this matter for

further proceedings consistent with this memorandum.

*Former Justice specially assigned to the Superior Court J-A05008-16

On November 11, 1983, an unknown man confronted then 14-year old

N.A. at gunpoint and forced her into an abandoned house. Once inside, the

man forced N.A. to remove her clothing and then orally and vaginally raped

her. Upon completion, the attacker used N.A.’s blouse to wipe his penis. A

single attacker perpetrated the assault, which lasted approximately one-half

hour.

The attack caused N.A. to bleed profusely. After a few minutes, she

gathered her clothing, left the abandoned home, and eventually obtained

transportation to the hospital from police. At the hospital, N.A. received

surgery to repair lacerations on the interior wall of her vagina. In addition,

physicians performed a gynecological examination, including a rape kit, on

N.A.

On January 2, 1984, Appellant was charged with the attack on N.A.

and proceeded to trial in the Court of Common Pleas of Philadelphia County

on September 24-26, 1984. At trial, Appellant maintained that he did not

commit the attack on N.A. To establish that Appellant perpetrated the

assault, the Commonwealth heavily relied on N.A.’s identification testimony.

N.A. testified at length regarding each of the occasions on which she either

identified or described her attacker.1 On the date of the incident, N.A. gave

____________________________________________

1 In the intervening years since Appellant’s trial, our Supreme Court has authorized the use of expert testimony to challenge eyewitness testimony where the sole evidence to establish guilt was the testimony of a victim who (Footnote Continued Next Page)

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a description of the assailant to Philadelphia Police Officer Sonya Coleman

while at the hospital. She saw her attacker approaching from across the

street, observed him from a close distance during their initial encounter, and

saw his face for several minutes during the sexual assault. N.A. described

her attacker as approximately 29 years old, small ears and flat nose, height

around 5’7” to 5’9”, and “chubby” at 190 pounds.

A little over a month later, on December 30, 1983, Officer Coleman

went to N.A.’s house and showed her approximately eighteen photographs.

N.A. selected a photograph of Appellant from this photo array. Later that

same day, N.A. traveled to the Police Administration Building in Philadelphia

and reviewed a carousel of slides for approximately one and one-half hours.

N.A. picked two slides out of the array, one of which depicted Appellant. 2

On January 2, 1984, Officer Coleman and another officer returned to

N.A.’s house to “put pieces together” of a composite depiction of the

attacker. N.A. described her assailant as having a flat nose, small ears,

approximately 25 to 30 years of age, and about 5’9” in height. N.A. again

reviewed eight photographs and selected one that depicted Appellant.

_______________________ (Footnote Continued)

was under extreme duress when assaulted at gunpoint by a stranger of another race. See Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014). 2 On cross-examination, N.A. admitted that she said that one of the slides she picked out was “similar” to Appellant. See N.T., 9/25/84, at 250. On this occasion, N.A. estimated her attacker to be in his early 20’s.

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N.A. attended a line up at the Philadelphia detention center on

February 15, 1984. Although Appellant was in the sixth position, N.A. failed

to identify him. As she left the line up, N.A. told her mother that she

believed her attacker was in the sixth position, but she was too upset to

identify him since she believed that he could see her. N.A.’s description of

her attacker was largely the same as on previous occasions except that she

estimated his weight this time to be 165 pounds. N.A. also identified

Appellant as her attacker at the preliminary hearing in this matter on March

20, 1984. N.A. expressed some doubts, however, since she was scared.

To link Appellant to the assault against N.A., the Commonwealth also

presented the testimony of Maryann Scafidi, a serologist who performed

some of the forensic testing in this case. Scafidi testified that N.A. was a

virgin at the time of the attack and, therefore, the only individuals who could

have contributed to the biological deposits in the rape kit were N.A. and the

attacker. Scafidi also explained to the jury that a “secretor” referred to an

individual who secretes blood group antigens in all bodily fluids. Scafidi

testified that N.A. had blood type O and that she was a secretor. Scafidi

reported that Appellant had blood type A. She did not testify as to whether

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Appellant was a secretor as the results from the inhibition test 3 performed

on Appellant were not known at the time that Scafidi testified.

Scafidi explained for the jury the results of various forensic tests

performed on N.A.’s clothing and body. A rape kit performed on N.A.

included samples taken from N.A.’s mouth, vagina, vulva, and cervix. In

addition, a piece of tissue removed from N.A. during surgery was tested as

part of the forensic examination. Scafidi did not personally perform any

tests on biological materials recovered from N.A.’s rape kit. Instead, with

regard to the results from these tests, Scafidi read to the jury the contents

of a laboratory report entitled “MEMORANDUM: Laboratory Report,” which

was dated December 14, 1983. Section one of this report indicated that the

rape kit included samples taken from N.A.’s vagina, vulva, cervix, and

mouth. The report stated that N.A.’s vaginal, vulvular, and cervical samples

each showed the presence of sperm and acid phosphatase. The vulvular and

vaginal samples, however, were inconclusive for blood group substances and

the cervical sample showed the presence of H antigens. Neither sperm nor

acid phosphatase was detected in the sample drawn from N.A.’s mouth. The

3 An inhibition or agglutination-inhibition test is a serological technique used to identify unknown antigens in blood and bodily fluids. Mosby's Medical Dictionary, 9th Edition 2009, Elsevier.

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report stated that blood group substances were “not applicable” for the oral

sample drawn from N.A. The second section of the report stated that N.A.

had type O blood and that she was a secretor. The third section of the

report remarked that a piece of human tissue of unknown origin was

recovered from N.A.’s vaginal sample. No blood group substances were

indicated for the tissue and there is no report of the presence of sperm or

acid phosphatase on the extracted tissue.4

Scafidi personally performed forensic testing on the physical evidence

recovered in this case. Scafidi tested N.A.’s blouse, panties, socks, black

4 Specifically, the document titled “MEMORANDUM: Laboratory Report” and dated December 14, 1983 which was introduced at trial and testified to by Scafidi provided in relevant part as follows:

LABORATORY SPECIMENS

1. Origin of Microscopic examination Analysis for Prostatic Blood Group Sample for Sperm Acid Phosphatase Substances ________ ___________________ _________________ __________

Vaginal POSITIVE *POSITIVE INCONCLUSIVE

Vulvular POSITIVE *POSITIVE INCONCLUSIVE

Cervical POSITIVE *POSITIVE “H”

MOUTH NONE OBSERVED NOT DETECTED NOT APPLICABLE

2. [N.A.] is blood group “O” and a secretor.

3. Other remarks: A piece of human tissue, of unknown origin, was found in the vaginal sample.

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leather shoes, a tweed shirt, and a gray jacket.5 Blood was found on N.A.’s

blouse, underwear, socks, shoes, tweed shirt and gray jacket. The blood

detected on N.A.’s blouse and underwear was type B and the blood

recovered from N.A.’s socks was type A. Tests on blood recovered from

N.A.’s shoes, tweed shirt, and gray jacket were inconclusive. N.A.’s blouse

and underwear showed the presence of semen but no identifying features or

characteristics were given for the semen deposits recovered from N.A.’s

blouse or underwear.

Scafidi testified that an individual with blood type A, such as Appellant,

could not have been a contributor to the blood recovered from N.A.’s blouse

and underwear, which were stained with blood type B. Since results for the

inhibition tests performed on Appellant had not been disclosed prior to

Scafidi’s testimony, her testimony did not address whether Appellant could

have been a contributor to semen deposits found on the rape kit, blouse,

and underwear.

In the closing argument, the prosecutor characterized the blood

evidence as “confusing” since the results showed the presence of blood type

B, while N.A. had type O blood and Appellant had type A. The prosecutor

also noted the presence of blood type A on N.A.’s socks. Based on the

totality of this blood evidence, the prosecutor reasoned that, since Appellant

5 A Masonite board recovered from the scene of the attack showed the presence of human blood but no evidentiary material could be recovered.

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had blood type A, he was not excluded and he was included in the group of

people who could have committed this offense because of the type A blood

detected on the victim’s socks. The jury found Appellant guilty on

September 26, 1984. On April 3, 1985, the court sentenced Appellant to an

aggregate term of 23½ to 47 years’ incarceration.

Documents produced in 1998 (referred throughout this memorandum

as the 1998 production) show that immediately before the conclusion of

trial, the Commonwealth completed inhibition studies on Appellant’s blood

and saliva.6 These studies showed that Appellant was a secretor and that

his inhibition study profile was as follows: A0 B4+ H0.7 Moreover, the 1998

production included a report on the inhibition studies performed on N.A.’s

bodily fluids and rape kit. This report was dated November 11, 1983, the

same date as the attack. Even though this report was in the

Commonwealth’s possession ten months before Appellant’s trial, it was not

provided to the jury or used to correct or clarify Scafidi’s testimony, nor was

6 The report setting forth the results of the studies performed on Appellant’s blood and saliva was dated September 26, 1984, the last day of Appellant’s trial. 7 Specifically, the report on Appellant’s inhibition study provided, in relevant part, as follows:

Inhibition Studies

A B H 0 4+ 0

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it provided to Appellant until 1998. In contrast with the “MEMORANDUM:

Laboratory Report,” dated December 14, 1983 which was produced at trial,

the inhibition study data for deposits recovered from N.A.’s rape kit showed

these profiles: vagina (A3+ B2+ H3+); vulva (A3+ B1+ H1+);

cervix (A3+ B3+ H1+(weak)); mouth (A3+ B3+ H0);

tissue (A3+ B3+ H4+). N.A.’s inhibition test profile showed as A3+ B3+

H0.8

The record reflects that, in the aftermath of Appellant’s conviction, the

evidence generated in this case was confiscated by the trial court and likely

subjected to physical destruction. Documents attached to Appellant’s

petition state that a blood-stained piece of Masonite board, a vial of hair and ____________________________________________

8 Specifically, the November 11, 1983 report on the studies performed on N.A.’s bodily fluids and rape kit provided, in relevant part, as follows:

Inhibition Studies [on N.A.’s saliva]

A B H 3+ 3+ 0

Inhibition Studies [on rape kit]

A B H Vagina 3+ 2+ 3+ Vulva 3+ 1+ 1+ Cervix 3+ 3+ 1+[weak] Mouth 3+ 3+ 0 Tissue 3+ 3+ 4+

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red material, two additional vials of red material, and a footprint recovered

from the crime scene were confiscated by the trial court and destroyed

pursuant to court order on February 9, 1993. The court also ordered the

destruction of N.A.’s rape kit on May 17, 1989. In addition, N.A.’s socks,

skirt, jacket, shoes, blouse, and panties were confiscated by the court on

September 27, 1984.9

In the years following trial, Appellant undertook extensive efforts to

challenge his conviction and sentence in both state and federal court, as we

shall detail. Appellant filed a direct appeal on April 19, 1985, raising the

effectiveness of counsel and objecting to the discretionary aspects of his

sentence. On June 18, 1987, this Court affirmed and our Supreme Court

denied further review on January 27, 1988. Commonwealth v. Hale, 531

A.2d 32 (Pa. Super. 1987), appeal denied, 538 A.2d 497 (Pa. 1988).

Appellant filed his first collateral relief petition under the

Post-Conviction Hearing Act (PCHA), 42 Pa.C.S.A. §§ 9541, et seq.

(superseded), on April 5, 1988. The PCHA court appointed counsel who

filed an amended petition alleging that trial counsel was ineffective in failing

to challenge blood evidence and the expertise of the Commonwealth’s

serologist, Scafidi. The PCHA court dismissed Appellant’s petition on April 1,

1991. This Court affirmed the dismissal order on August 19, 1992 and our

9 It is not clear from the certified record as to whether these items of clothing seized on September 27, 1984 were destroyed.

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Supreme Court denied allocator on December 29, 1992. Commonwealth

v. Hale, 617 A.2d 389 (Pa. Super. 1992), appeal denied, 621 A.2d 578 (Pa.

1992).

Appellant filed his second petition under the PCRA on October 7, 1993.

Appellant alleged in this petition that he was innocent and that he was

entitled to DNA testing under Commonwealth v. Brison, 618 A.2d 420

(Pa. super. 1992). In response, the Commonwealth represented that the

evidence no longer existed. The PCRA court denied this petition on June 2,

1995. This Court affirmed the dismissal order on September 16, 1996 and

our Supreme Court denied allocator on February 20, 1997.

Commonwealth v. Hale, 686 A.2d 1363 (Pa. Super. 1996), appeal denied,

690 A.2d 1161 (Pa. 1997).

Next, Appellant filed a habeas corpus petition in the United States

District Court for the Eastern District of Pennsylvania on February 17, 1998.

On July 8, 1998, while this petition was pending, the Commonwealth

produced 25 pages of laboratory reports reflecting tests conducted on

physical evidence relating to the instant offenses (the 1998 production).

This material was unaccompanied by a summary or explanation interpreting

the data. The 1998 production included the results of inhibition studies as

we have described above. The habeas court denied Appellant’s request for

counsel and an expert to interpret the scientific data. In addition, on August

12, 1998, the court denied the petition without prejudice for failure to

exhaust state remedies. In a motion to reconsider dismissal of the habeas

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petition, Appellant argued that forensic evidence would demonstrate his

innocence but that without the assistance of counsel or experts he lacked

the capacity to demonstrate how the laboratory results showed his

innocence.

On September 10, 1998, Appellant filed his third petition for PCRA

relief, claiming that the Commonwealth continued to withhold unspecified

exculpatory evidence. The PCRA court dismissed this petition as untimely

and this Court dismissed the ensuing appeal on January 9, 2001 for failure

to file a brief.

Appellant filed his fourth PCRA petition, pro se, on July 9, 2001. In

this petition, Appellant attempted to reinstate his appeal from the previous

dismissal of his prior petition for collateral relief. The PCRA court denied this

petition as untimely and meritless on November 26, 2001 and this Court

affirmed that determination on May 6, 2003.

Appellant filed a second pro se petition for habeas corpus relief on May

19, 2003 in the United States District Court for the Eastern District of

Pennsylvania. The court denied this petition on November 25, 2003,

concluding that the claim was time-barred and that Appellant displayed a

lack of due diligence in failing to amend his original habeas petition.

Appellant filed his fifth PCRA petition on April 14, 2006. Relying on

Commonwealth v. Collins, 888 A.2d 564 (Pa. 2005), Appellant argued

that his petition was timely under the newly-discovered constitutional right

exception set forth at 42 Pa.C.S.A. § 9545(b)(1)(iii). In addition, Appellant

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invoked the newly-discovered fact timeliness exception under 42 Pa.C.S.A.

§ 9545(b)(1)(ii) based on his contention that the 1998 production of

laboratory materials demonstrated the Commonwealth’s suppression of

exculpatory evidence at trial within the meaning of Brady v. Maryland, 373

U.S. 83 (1963). The PCRA court held that the petition was untimely on

November 30, 2006. On November 15, 2007, this Court affirmed the

dismissal of the petition, concluding that it was time-barred because of

Appellant’s failure to file it within 60 days of when the claims first could have

been made as required by 42 Pa.C.S.A. § 9545(b)(2).

On December 21, 2007, Appellant filed a third habeas corpus petition,

pro se, before the United States District Court for the Eastern District of

Pennsylvania. The petition alleged that Appellant’s trial counsel had been

ineffective. The court denied the petition on January 29, 2008 on grounds

that it was untimely and, therefore, the court lacked jurisdiction to entertain

it.

On March 31, 2009, Appellant filed his sixth PCRA petition, pro se,

alleging corruption within the Philadelphia Police Department and the use of

false evidence to support convictions by the Special Victims Unit in other

cases. While this petition was pending, Appellant forwarded a letter to the

Pennsylvania Innocence Project (PIP) in May 2009. After reviewing

information relating to Appellant’s case, and seeking to determine whether

additional evidence was available for DNA testing, PIP agreed to represent

Appellant on a pro bono basis on May 7, 2010. PIP forwarded Appellant’s

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case materials, including items disclosed in the 1998 production, to

Lawrence Presley, a former director of forensic sciences at Arcadia University

and the former Chief of the Federal Bureau of Investigation’s DNA Analysis

Unit. Based upon his review, Presley determined on May 13, 2010 that the

inhibition studies performed by the Commonwealth on November 11, 1983

and at the end of Appellant’s trial on September 26, 1984, but not disclosed

until 1998, excluded Appellant as a potential contributor to the deposits

recovered from N.A.’s rape kit. On the strength of this observation, PIP, on

Appellant’s behalf, filed an amended petition on July 2, 2010 arguing that

Appellant was entitled to collateral relief. In addition, the amended petition

invoked the timeliness exception set forth at 42 Pa.C.S.A. § 9545(b)(1)(ii),

claiming that Presley’s conclusions constituted newly-discovered facts that

were unknown to Appellant and that could not have previously been

discovered despite due diligence. In support of this contention, Appellant

asserted that an incarcerated and unrepresented individual such as himself,

who lacked scientific training, was incapable of deciphering the raw data

produced to him by the Commonwealth in 1998. Additionally, Appellant

maintained that efforts he undertook to secure legal representation and

expert assistance in the wake of the 1998 production demonstrated

reasonable diligence in the protection of his interests. Appellant also alleged

that his filing of the amended petition within 60 days of learning of Presley’s

conclusions satisfied the requirements of 42 Pa.C.S.A. § 9545(b)(2).

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Appellant also included a claim seeking DNA testing of any remaining

evidence in his case that could be recovered.

As alternate grounds for overcoming the PCRA’s timeliness

requirement, Appellant invoked the governmental interference exception

found at 42 Pa.C.S.A. § 9545(b)(1)(i). The underlying premise of

Appellant’s governmental interference claim is that the Commonwealth

violated his rights under Brady in suppressing the laboratory reports

contained in the 1998 production. In conjunction with this claim, Appellant

asserts that the Commonwealth owed him a duty to provide him with either

assistance or explanatory guidance to aide in his comprehension of the 1998

production. Paralleling his Brady claim, Appellant asserted that the

Commonwealth acted in violation of Giglio v. United States, 405 U.S. 150

(1972) when it failed to take steps to correct Scafidi’s allegedly misleading

testimony upon its completion of inhibition studies involving Appellant’s

blood shortly before the conclusion of trial on September 26, 1984.

Appellant relied on Presley’s conclusions to substantiate his claims that

he was entitled to collateral relief based upon previously unknown facts that

were wrongfully withheld from him by government officials. Presley’s report

indicated that the 1998 production included raw data indicating that

Appellant had type A blood and that he secreted antigens corresponding to

his blood type in all of his bodily fluids. This inhibition study was performed

after Scafidi testified for the Commonwealth but before the jury found

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Appellant guilty. The results of the inhibition study were not presented to

the jury before it found Appellant guilty.

Presley also made several observations interpreting the raw data set

forth in the 1998 production. Specifically, Presley noted that the September

26, 1984 inhibition test performed on Appellant showed the following

results: A0 B4+ H0. The November 11, 1983 inhibition study performed on

the deposits recovered from N.A.’s rape kit showed these profiles: vagina

(A3+ B2+ H3+); vulva (A3+ B1+ H1+); cervix (A3+ B3+ H1+(weak));

mouth (A3+ B3+ H0); tissue (A3+ B3+ H4+).10 N.A.’s inhibition study

profile showed as A3+ B3+ H0. Presley noted that the inhibition study

profiles for both N.A. and Appellant showed that they are H0, meaning that

neither of them expressed the H antigen on their red blood cells. In

addition, since both N.A. and Appellant were secretors (meaning that

antigens corresponding to their respective blood types appears in all their

bodily fluids), the H antigen would not be present in a sample mixture in

which they were the exclusive contributors. Presley further noted the

undisputed testimony in the case that established that N.A. had no prior

sexual partners and that there was only a single perpetrator in the rape.

Based upon these factors, in combination with the fact that inhibition studies

10 The term “inconclusive” which is used in the “MEMORANDUM: Laboratory Report” dated December 14, 1983 to which Scafidi testified at Appellant’s trial does not appear in the raw data contained in the 1998 production.

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performed on swabs from N.A.’s rape kit showed the presence of H antigens

in all three locations, Presley concluded that Appellant could not have raped

the victim. Presley communicated his findings to PIP on or around May 13,

2010 and summarized his observations in a letter included with Appellant’s

amended petition, which was filed on July 2, 2010.

Appellant’s petition spelled out the steps he took to secure assistance

in presenting his claims following the 1998 production. In 1999, Appellant

sent letters to the Innocence Project in New York and Centurion Ministries in

New Jersey. Neither organization offered assistance after learning that

physical evidence in the case was no longer available for testing. Following

trial, Appellant also asked other groups for help, including the National

Association for the Advancement of Colored People (NAACP) Legal Defense

Fund, Inc., the National Association of Criminal Defense Lawyers, Volunteers

in Prison, the National Legal Aide & Defender Association, Attorney General

Janet Reno, the Allegheny County Bar Association, the Erie County Bar

Association, Legal Services, Inc., and Keystone Legal Services. Many of

these organizations declined assistance on grounds that they do not offer

pro bono services or because they received information that the evidence in

this case no longer existed.

The Commonwealth filed its answer to Appellant’s sixth petition on

September 17, 2012. In its answer, the Commonwealth maintained that

Appellant’s petition was unreviewable because his claims were previously

litigated. Specifically, the Commonwealth argued that Appellant’s third,

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fourth, and fifth PCRA petitions raised claims identical to those advanced in

the present submission. The Commonwealth also asserted that Presley’s

conclusions merely reinterpreted earlier data and did not constitute

newly-discovered facts. Lastly, the Commonwealth criticized the validity of

Presley’s report as embracing a faulty premise that did not establish

Appellant’s innocence.

Contrary to Presley’s report, the Commonwealth claimed that both

N.A. and Appellant expressed the H antigen in their blood. Citing the

“MEMORANDUM: Laboratory Report,” dated December 14, 1983 and

introduced through Scafidi at trial, the Commonwealth alleged that inhibition

studies conducted on material recovered from N.A.’s rape kit were

inconclusive “except for the blood typing results from the seminal fluid

recovered from N.A.’s cervix and vulva, which contained H antigens,

corresponding to N.A.’s ‘O’ blood type.” 11 Commonwealth’s Answer, 9/12/12,

at 11. The Commonwealth also alleged that Appellant wrongly maintained

that the semen on N.A.’s blouse and panties indicated type B blood. The

Commonwealth asserted that only blood evidence recovered from the

victim’s clothing was found to be type B, not the seminal fluid. The

11 This is contrary to Scafidi’s testimony at trial (N.T., 9/26/84, at 386-388) and the “MEMORANDUM: Laboratory Report” dated December 14, 1983 which establish that blood type testing for N.A.’s cervical sample was inconclusive.

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Commonwealth explained that as there was no evidence that the rapist bled

during the attack, the analysis of blood detected on N.A.’s clothing was

irrelevant.12 Id. at 12.

The Commonwealth also cited several reasons to reject Appellant’s

governmental interference claim. First, the Commonwealth averred that

Appellant failed to plead and prove that the actions of a government official

interfered with the presentation of his claims. In particular, the

Commonwealth pointed out that Appellant’s inability to retain an expert who

was willing, prior to the instant petition, to interpret the raw data in the

1998 production in a way that was favorable to him was not the fault of

state agents. Moreover, the Commonwealth argued that Appellant’s Brady

claim was fundamentally flawed since: (1) the information on which he now

relies was, in fact, produced; (2) the evidence was inconclusive and not

exculpatory; and, (3) Appellant was not prejudiced since the jury received

testimony that he could not have contributed to the blood on the victim’s

clothing.

On August 11, 2014, the PCRA court forwarded Appellant a notice,

pursuant to Pa.R.Crim.P. 907, of the court’s intent to dismiss Appellant’s

12 The Commonwealth added that Scafidi informed the jury that blood found on N.A.’s blouse and panties was type B and, as such, could not have come from Appellant or N.A. The Commonwealth noted, in this connection, that the blood evidence was unreliable, and thus could not form the basis of relief, since the victim’s blood did not show up on her own panties.

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petition without a hearing. Appellant did not respond to the Rule 907 notice.

Thereafter, on September 17, 2014, the PCRA court issued an order

dismissing Appellant’s petition as untimely.

The PCRA court initially addressed Appellant’s effort to invoke the

governmental interference exception. Here, the court determined that

Appellant failed to show that government officials prevented him from

reaching out to experts to interpret the data included in the 1998

production. Accordingly, the court concluded that Appellant failed to file the

instant petition within 60 days from which the claim could first have been

presented. The court also determined that the laboratory results included in

the 1998 production merely confirmed Scafidi’s trial testimony in which she

said that neither Appellant’s nor N.A.’s blood was found on the victim’s

blouse or panties and, therefore, the test results were inconclusive.

Appellant thus failed to show prejudice since there was no reason to believe

that the trial would have concluded differently if the laboratory results had

been released to the defense.

Turning to Appellant’s newly-discovered facts claim, the PCRA court

made several findings of fact disputing the statements set forth in Presley’s

report. The court rejected Presley’s conclusions to the extent he found that

neither Appellant nor N.A. expressed the H antigen on their red blood cells.

Without citation to authority, the court deemed these assessments as

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“contradicted by the generally accepted principles of serological testing.”

PCRA Court Opinion, 1/30/15, at 11.13 Moreover, and again without citation

to the record or scientific authority, the court specifically found “that

[Appellant’s] serological testing indicated that [he] did in fact possess H

antigens in his blood.” Id. The court therefore concluded that the presence

of H antigens in the samples recovered from N.A.’s rape kit corroborated

Appellant’s conviction.

In addition, the court rejected the contention that Presley’s report

contained newly-discovered facts that supported an exception to the PCRA’s

time-bar. Because of this, the court reasoned that Appellant needed to file

his petition within 60 days of the 1998 production if he believed that the raw

data exonerated him. The court viewed Appellant’s present claim as the

subject of several prior petitions and therefore deemed Presley as a newly

willing source of proof for purely cumulative claims. Having rejected,

without attribution, Presley’s claims regarding the source of deposits

obtained from N.A.’s rape kit, the court argued that Appellant used Presley’s

report to advance a claim that he could not be guilty because type B blood

was found on the victim’s clothing and neither Appellant nor N.A. had type B

blood. Consequently, the court dismissed Appellant’s petition as untimely.

13 The certified record does not contain any evidence as to the generally accepted principles of serological testing applicable to this case; therefore, we are not sure what the PCRA court relied upon in reaching this conclusion.

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Appellant filed a timely notice of appeal. The trial court did not order the

submission of a concise statement under Pa.R.A.P. 1925(b).

On appeal, Appellant raises the following claims:

Did the PCRA court err in holding, without an evidentiary hearing under Pa.R.Crim.P. 908, that [Appellant’s] petition was untimely where there was evidence that [Appellant’s] status as a Type A [s]ecretor which shows: (a) that the semen found on the victim and on her clothing did not come from him and (b) was not previously known or understood by [Appellant], was a newly-discovered fact pursuant to 42 Pa.C.S.A. § 9545(b)(1)(ii)?

Did the PCRA court err in holding, without an evidentiary hearing under Pa.R.Crim.P. 908, that [Appellant’s] petition was untimely where there was evidence that any delay establishing untimeliness was a result of government interference pursuant to 42 Pa.C.S.A. § 9545(b)(1)(i) because the Commonwealth withheld exculpatory test showing that [Appellant] is a Type A [s]ecretor and thus the semen found on the victim and her clothing did not come from him, in violation of Brady?

Is [Appellant] eligible for relief under 42 Pa.C.S.A. § 9543(a)(2)(i) because the Commonwealth withheld exculpatory evidence, lab tests showing that [Appellant] is a Type A [s]ecretor, and thus the semen found on the victim and her clothing did not come from him, in violation of Brady and Giglio?

Is [Appellant] eligible for relief under 42 Pa.C.S.A. § 9543(a)(2)(vi) because of the unavailability at the time of trial of exculpatory blood evidence that [Appellant] is a Type A [s]ecretor which shows that the semen found on the victim and her clothing did not come from him, which, if presented to the jury, there would have been a reasonable probability of a different result?

Did the PCRA court err in dismissing [Appellant’s] petition without an evidentiary hearing under Pa.R.Crim.P. 908 where material issues of fact existed as to (a) whether the Commonwealth complied with the [PCRA c]ourt’s March 28, 2013 [o]rder directing the Commonwealth to conduct an

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evidentiary search “in order to permit DNA and additional blood serum testing of all physical evidence;” and (b) whether physical evidence may exist for testing as provided by 42 Pa.C.S.A. § 9543,1?

Appellant’s Brief at 2-4.

Before we begin our discussion, we address certain matters pertaining

to the scope of our review. In his third and fourth claims, Appellant alleges

that he is entitled to collateral relief because the Commonwealth violated his

constitutional rights and because exculpatory evidence that would have

altered the outcome of his trial has subsequently become available. In our

discretion, we shall defer ruling on these claims. The trial court dismissed

the instant petition, without a hearing, as untimely and Appellant appealed

that ruling. It is thus premature for this Court to weigh in at this stage of

the proceedings on issues that were not reached by the PCRA court and for

which no evidentiary record has been developed. Given the obvious

complexity of the serological evidence in this matter, we cannot abandon our

role as a reviewing court and take on matters as a court of first instance.

Accordingly, we shall confine our discussion to the issues of timeliness and

Appellant’s request for confirmation regarding the availability of evidence for

forensic testing.

We begin with Appellant’s contention that the PCRA court erred in

concluding, without a hearing, that he failed to demonstrate that his petition

advanced a claim based on newly-discovered facts under 42 Pa.C.S.A.

§ 9545(b)(1)(ii). Based on Presley’s report, Appellant claims that he learned

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for the first time in May 2010 that he was a type A secretor and that the raw

data included within the 1998 production excluded him as a possible

contributor to the deposits recovered from N.A.’s rape kit and that therefore

he is excluded as the rapist. Appellant maintains that these facts were

unknown to him prior to that time and that this information was unknowable

to him despite the exercise of due diligence.

Our standard of review in this case is well-settled. This Court will not

disturb a PCRA court's ruling if it is supported by evidence of record and is

free of legal error. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.

Super. 2012). We grant deference to the factual findings of the PCRA court

and will not disturb those findings unless they have no support in the record.

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011). However,

we afford no such deference to its legal conclusions. Commonwealth v.

Paddy, 15 A.3d 431, 442 (Pa. 2011). Where the petitioner raises questions

of law, our standard of review is de novo and our scope of review plenary.

Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010). Moreover,

pursuant to Pa.R.Crim.P. 908, the PCRA court shall schedule a hearing

whenever a petition, together with the Commonwealth’s answer, raise

material issues of fact. Pa.R.Crim.P. 908.

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To succeed in pleading and proving a timeliness exception under

§ 9545(b)(1)(ii),14 Appellant must demonstrate that “the facts upon which

[his] claim is predicated were unknown to [him] and could not have been

ascertained by the exercise of due diligence.” 42 Pa.C.S.A. § 9545(b)(1)(ii).

“Due diligence demands that the petitioner take reasonable steps to protect

his own interests. A petitioner must explain why he could not have learned

of the new fact(s) earlier with the exercise of due diligence.”

Commonwealth v. Williams, 35 A.3d 44, 53 (Pa. Super. 2011) (citations

omitted) (emphasis added), appeal denied, 50 A.3d 121 (Pa. 2012).

14 Because Appellant’s petition is manifestly untimely, it is subject to dismissal unless Appellant pleads and proves one of the following three statutory exceptions:

(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 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.A. § 9545(b)(1)(i)-(iii). Additionally, any petition invoking an exception provided in 42 Pa.C.S. § 9545(b)(1) must be filed within 60 days of the date that the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2).

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Moreover, a petitioner seeking to invoke an exception set forth in 42

Pa.C.S.A. § 9545(b)(1) must file his petition within 60 days of the date that

the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2). “[T]he

60–day rule requires a petitioner to plead and prove that the information on

which he relies could not have been obtained earlier, despite the exercise of

due diligence.” Commonwealth v. Williams, 105 A.3d 1234, 1239-1240

(Pa. 2014).

Based upon careful examination of the parties’ submissions before this

Court and the PCRA court, the opinion issued by the PCRA court, and the

certified record, we conclude that Appellant raises genuine issues of fact as

to whether the facts set forth in Presley’s report were unknown to him

before May 2010. We reach this conclusion in view of the totality of

circumstances, including the sophisticated scientific nature of the analysis

employed by Presley in developing his report, Appellant’s status as an

incarcerated and unrepresented individual who lacks scientific training and

experience, and the vast difference between the present claim and

Appellant’s prior generic requests for collateral relief. We further conclude,

in light of Appellant’s efforts to obtain both representation and a scientific

interpretation of the raw data contained in the 1998 production, that

Appellant raises genuine issues as to whether the instant claims were

unknowable to him before May 2010 despite the exercise of reasonable

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diligence. Accordingly, we shall vacate the PCRA court’s dismissal order and

remand this matter for a hearing. We summarize our reasons below.

At the outset, we note a glaring legal error in the PCRA court’s

assessment of Appellant’s newly-discovered facts claim. In the section of its

opinion addressing exceptions to the PCRA’s time-bar, the court set forth the

legal test for examining whether a petitioner is entitled to collateral relief

based upon after-acquired evidence pursuant to 42 Pa.C.S.A.

§ 9543(a)(2)(vi), rather than applying the standard used to determine

whether the timeliness exception for newly-discovered facts has been met.

See PCRA Court Opinion, 1/30/15, at 8. Our Supreme Court has held that

the newly-discovered facts exception does not require a court to analyze the

after-discovered evidence rule. Commonwealth v. Bennet, 930 A.2d

1264, 1270 (Pa. 2007); Commonwealth v. Brown, 111 A.3d 171, 179 (Pa.

Super. 2015) (new facts exception set forth at § 9545(b)(1)(ii) does not

require merits analysis of underlying after-discovered-evidence claim).

Although this legal error alone would justify vacating the court’s dismissal

order, we do not end our discussion here so that we might address other

claims and issues discussed by the PCRA court and the Commonwealth in

order to lend guidance to the proceedings on remand.

With respect to the factual basis for Appellant’s claims, both the PCRA

court and the Commonwealth disputed Presley’s assessment that neither

N.A. nor Appellant expressed the H antigen on their red blood cells and, by

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extension, in their other bodily secretions, as both are secretors. See

Commonwealth’s Motion to Dismiss Appellant’s Amended PCRA Petition and

Request for Post-Conviction DNA Testing, 9/17/12, at 11 (“both N.A. [sic]

and [Appellant’s] blood contain H antigens”); PCRA Court Opinion, 1/30/15,

at 11 (suggesting that Presley’s conclusion that neither N.A. nor Appellant

expressed H antigens on their red blood cells is “without scientific basis and

[is] directly contradicted by the generally accepted principles of serological

testing”). Neither the court nor the Commonwealth, however, cited an

evidentiary or authoritative source in support of their respective positions.

Although the Commonwealth’s expert, Michael P. Garvey, Jr., disputed

Presley’s conclusions regarding the presence of H antigens in N.A.’s and

Appellant’s blood, he did not do so in absolute terms, leaving room for the

conclusions set forth in Presley’s report.15 Moreover, no hearing was

15 In his report, Garvey stated as follows:

In section 5, [Presley] incorrectly states that “The victim’s blood does not contain H antigens, and neither does [Appellant’s].” The inhibition studies for both the complainant and [Appellant] indicate the presence of H antigens. As the H antigen is the precursor protein for all ABO blood groups, it is expected to be found in a Type O individual, and not uncommon to be found in the remaining types of ABO groups. [Presley’s] further conclusions about the presence of H antigens and the source of the stains are not supported by the analyses.

Expert Report of Michael P. Garvey, Jr., 6/29/11, at 6-7 ¶ 5e. Garvey’s report states that H antigens are “expected to be found in” individuals with type O blood and that such antigens are “not uncommon” in other blood (Footnote Continued Next Page)

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conducted in this case to establish the relevant scientific principles governing

this dispute and to evaluate the respective expert opinions through

conventional means. The proper way to resolve this conflict in the parties’

factual contentions is to conduct a hearing in which the experts are

subjected to examination.16 We cannot overemphasize the importance of

groups. As such, Garvey does not foreclose the inferences and conclusions drawn by Presley. This classic battle between the expert for the Commonwealth and the expert for Appellant should have been resolved by convening a hearing, placing the witnesses under oath, and subjecting them to cross-examination. It is not the PCRA court’s prerogative to credit one witness and reject another based on the reports submitted in support of the parties’ pleadings. 16 Throughout its submissions in defense of the PCRA court’s ruling, the Commonwealth repeatedly credits its own expert and criticizes the report filed on behalf of Appellant. These efforts are confusing at best, misleading at worst, and only serve to illustrate the need for a hearing at which the parties can air their disputed positions. For example, the Commonwealth complains that Appellant misrepresents the report prepared by the Commonwealth’s expert, noting that the portions of the report referenced by Appellant were based on “inconclusive” data that could not be used to identify the source of semen recovered from N.A.’s rape kit. See Commonwealth’s Brief at 14 n.3. However, the term “inconclusive” appears only in the document titled “MEMORANDUM: Laboratory Report,” dated December 14, 1983, which was introduced at trial. That term is not used in the raw data included in the 1998 production on which Presley relies. In addition, even if the various lab reports in this case cannot be used to identify the source of a particular semen deposit, it is at least conceivable that they can be used to exclude Appellant, which is the theme of Presley’s report.

The Commonwealth takes this same tact again at footnote 5 on page 16 of its brief where it asserts that supposedly new facts regarding Appellant’s semen are irrelevant since, according to the testimony introduced at trial in 1984, N.A.’s clothes contained a mixture of blood and an indeterminate quantity of semen. Again, this assertion overlooks the fact that the raw data (Footnote Continued Next Page)

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resolving this disputed issue at a hearing, as Presley’s conclusion regarding

the absence of the H antigen in both Appellant and N.A. laid the foundation

for his overall conclusion that Appellant could not be a contributor to the

semen deposits recovered from N.A.’s rape kit based upon the inhibition

study profiles included in the 1998 production. On remand, the PCRA court

should allow a thorough vetting of the disputed scientific principles and

findings advanced by the parties.

The inclination to resolve this complex matter on the parties’

submissions has spilled over onto other aspects of this dispute. Both the

PCRA court and the Commonwealth argue that Appellant’s current request

for collateral relief is unreviewable because it raises claims that were the

subject of litigation in prior petitions. They therefore assert that Presley

serves only as a newly willing source of advancing arguments previously

resolved on multiple past occasions. See Commonwealth’s Motion to

Dismiss Appellant’s Amended PCRA Petition and Request for Post-Conviction

DNA Testing, 9/17/12, at 9-11 (“[Presley’s report] is simply an interpretation

of the same facts already known from the laboratory data” and merely raises

found in the 1998 production contained a very specific profile for the material recovered from N.A.’s rape kit, which Presley used to draw his conclusions. For these critical components of his opinion, Presley did not rely on the inconclusive rape kit testimony introduced at trial, the inconclusive test results found in the “MEMORANDUM: Laboratory Report” of December 14, 1983, or the blood evidence that Scafidi communicated to the jury.

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issues addressed in Appellant’s third, fourth, and fifth petitions); PCRA Court

Opinion, 1/30/15, at 12 (“the report prepared by Presley merely serves as a

newly willing source to advance an argument already litigated multiple

times, including at trial”).

Strictly speaking, whether a similar claim or similar relief is requested

in a prior petition is not the focus of the newly-discovered facts exception to

the time-bar. To invoke § 9545(b)(1)(ii) properly, the petitioner need only

plead and prove that the basis for the claim was unknown to him and could

not have been discovered despite reasonable diligence. 42 Pa.C.S.A.

§ 9545(b)(1)(ii). While there is obvious overlap since a claim will be

“known” if it has been previously litigated, courts must use caution to focus

on the precise factual or legal basis of the current claim and not to link

claims merely because they seek the same type of relief or challenge the

same type of evidence. Under the PCRA, jurisdictional rules are strictly

enforced and its provisions bar re-litigation of the same claims; however, the

statute imposes no upward limit on the number and ways a petitioner might

seek relief, so long as the jurisdictional requirements are met and the

present claim involves distinct factual or legal components. For example, a

petitioner may assert a claim that he is innocent because his blood type was

not recovered from the evidence. If he loses, he is not precluded from

asserting a later claim alleging that his DNA is not a match, even though

both claims assert his innocence and challenge blood or biological evidence

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recovered from the crime scene. In the present petition, Appellant relies

upon a scientific assessment of serological reports that were produced to

him in 1998, long after trial. This is not the same thing as his prior generic

claims alleging that there exists unspecified evidence that exonerates him.

This problem of overgeneralization appears to have led the PCRA court

astray. The PCRA court here argued that, “[Appellant] used [Presley’s]

report to advance the argument that because [type B] blood was found at

the scene, and neither [Appellant] nor N.A. had [type B] blood, then he

cannot be guilty.” PCRA Court Opinion, 1/30/15, at 12. Although Appellant

litigated this claim at trial and asserted it in prior collateral proceedings, it is

not the basis of the instant petition. Appellant’s present claims allege that

based upon his inhibition study profile, together with inhibition studies

performed on N.A. and the samples recovered from her rape kit (as reflected

in the 1998 production), he cannot be a contributor to the semen recovered

from N.A.’s body and therefore did not commit the rape. It may be the

case, as Garvey’s report suggests, that the studies performed on Appellant,

N.A., and the rape kit are not reliable to support the inferences drawn by

Presley or that Presley’s claims conflict with accepted serological principles,

but this is not a decision that can be made based only on the parties’

submissions and without a hearing. We have reviewed the prior submissions

filed by Appellant in the context of his third, fourth, and fifth petitions and it

is clear that the present petition raises factual contentions far different from

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those previously raised.17 Accordingly, Appellant’s past petitions are not

grounds for refusing to consider whether the factual assertions made by

Presley were unknown to Appellant before May 2010 and, if so, whether

Appellant could have made those factual assertions prior to that time

through the exercise of due diligence.

We are not persuaded by the arguments offered by the PCRA court

and the Commonwealth to establish that Appellant failed to raise genuine

issues as to whether he exercised due diligence in bringing the instant claim.

We begin with the Commonwealth’s contention that Appellant failed to

explain why he did not learn his blood type, secretor status, and inhibition

study profile before trial since it was obvious at that time that forensic

serology would be an important component of this case. See

Commonwealth Brief at 14-15 (“[Appellant] was entitled to test his bodily

17 In its brief, the Commonwealth quotes a portion from our 2007 memorandum decision in which we rejected an appeal challenging the denial of Appellant’s fifth petition. See Commonwealth Brief at 17. The quoted language refers to our rejection of a claim in which Appellant alleged that the Commonwealth suppressed exculpatory evidence contained in the 1998 production in violation of Brady. That ruling had nothing to do with the factual and legal questions currently raised by Appellant’s petition in which he asserts that a scientific interpretation of the raw data found in the 1998 production presents newly-discovered facts that were unknown to him before May 2010 and previously unknowable despite the exercise of reasonable diligence. For this reason, the Commonwealth’s attempt to block review under the law of the case doctrine fails. See Commonwealth v. Starr, 664 A.2d 1326, 1331-1332 (Pa. 1995) (law of the case applies only to decisions on same issue and exception to rule applies where there is a change in the evidence).

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fluids before, during, or after trial. He did not do so, even though . . . it was

obvious that the forensic results would be an integral aspect of his

defense.”). Doubling down on this assertion, the Commonwealth contends

that: “If testing [Appellant’s] bodily fluids would prove his innocence, then 18 due diligence required him to seek that testing prior to trial.” Id. at 16.

Frankly, we are puzzled as to why the Commonwealth makes this assertion

since its own brief undercuts the contention. In fact, the Commonwealth

recognizes:

The reason prior counsel did not hasten to ascertain whether [Appellant’s] semen contains antigens is, of course, because it is irrelevant. Of the three sperm-containing samples recovered from N.A.’s rape kit, antigen testing was inconclusive for two of them and the third contained H antigens common to all blood types.

Commonwealth Brief at 16 n.5 (emphasis added), citing N.T., 9/24/84,

387-388).

We wholly agree with the Commonwealth’s refutation of its own

position regarding Appellant’s exercise of due diligence prior to trial. The

factual posture of this case at that time showed only that blood type test ____________________________________________

18 It appears that the Commonwealth is conflating the burden of proof required at the time of trial and the burden of proof necessary to establish due diligence for purposes of the newly-discovered facts exception to the timeliness requirement under the PCRA. Although a petitioner has the burden to establish due diligence for purposes of the PCRA, we remind the Commonwealth that the burden at trial is on the Commonwealth to prove a defendant’s guilt, not on the defendant to prove his innocence. Thus, contrary to the Commonwealth’s statement, Appellant had no obligation to “prove his innocence” such that he should have sought testing prior to trial.

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results on materials recovered from N.A.’s rape kit were inconclusive. It was

not until the production of raw data in 1998 that detailed information

became available. At the time of trial, counsel for Appellant had no reason

to have his client tested since there was no base line data available for

comparison. Arguably, then, the Commonwealth’s own concession suggests

a plausible, if not compelling, argument that the Commonwealth’s actions

led Appellant to relax his vigilance and forgo forensic blood testing prior to

trial.

The issue of Appellant’s due diligence in the wake of the 1998

production presents a more complicated question. Both the PCRA court and

the Commonwealth assert that Appellant had both the means and obligation

to file his claim within 60 days of the 1998 production. See PCRA Court

Opinion, 1/30/15, at 11 (“If [Appellant] believed that the [test] results [in

the 1998 production] might have exonerated him, he should have filed a

PCRA petition within 60 days of receiving them.”); Commonwealth Brief at

15. We conclude, under the circumstances in this case, that Appellant raised

genuine issues of fact as to his employment of due diligence.

At first blush, it seems easy to conclude that an 11- or 12-year delay

in filing a petition easily defeats a claim under § 9545(b)(1)(ii) and (2). As

we stated above, however, due diligence requires only that a petitioner

exercise due diligence in the protection of his interests. Although in 1998

Appellant received the raw data on which his claim now relies, it is not at all

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clear that he possessed at that time the capacity to formulate the particular

claim now before us. The petition avers, without dispute, that Appellant was

incarcerated and unrepresented from 1998 until 2010. In addition, the

petition alleges that Appellant lacks training and experience in serology and

forensic sciences. During the period from 1998 until 2010, Appellant took

several steps to secure representation and expert assistance in

understanding the information produced to him, including a letter writing

campaign to various agencies and the filing of multiple requests for collateral

relief. We conclude, in view of these circumstances, that Appellant has

raised genuine issues as to whether he exercised due diligence in the pursuit

of his legal interests, as advanced in the present petition. On remand, the

PCRA court should inquire into what skill, training and experience it took to

raise the particular claim leveled in the instant petition, whether Appellant

possessed such talents, and (if not) whether Appellant’s efforts

demonstrated due diligence in securing assistance with the preparation of

his claim.

In sum, we conclude that Appellant raises genuine issues of fact as to

whether the facts set forth in Presley’s report were unknown to him before

May 2010. We further conclude, in light of Appellant’s efforts to obtain both

representation and a scientific interpretation of the raw data contained in the

1998 production, that Appellant raises genuine issues as to whether the

instant claims were unknowable to him before May 2010 despite the exercise

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of reasonable diligence. Accordingly, we vacate the PCRA court’s dismissal

order and remand this matter for a hearing on the issue of whether

appellant properly invoked the exception to the PCRA’s timeliness

requirement under 9545(1)(ii).19 In addition, the PCRA court on remand

shall direct the Commonwealth to certify in writing what evidence remains

available for DNA testing. For all items that are no longer available, the

Commonwealth shall certify in writing what efforts were undertaken to locate

the evidence.

Order vacated. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/23/2016

19 In the context of his governmental interference claim under 42 Pa.C.S.A. § 9545(b)(1)(i), Appellant argues that the Commonwealth withheld exculpatory information and, upon its subsequent production, failed to furnish the means by which the raw scientific data could be deciphered. He also asserts that the Commonwealth failed to clarify misleading testimony introduced to the jury by Scafidi. In light of our resolution of Appellant’s newly-discovered facts claim, we need not address Appellant’s claim under § 9545(b)(1)(i).

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