Commonwealth v. Robinson, A., Aplt.

Opinion

[J-51-2018] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 720 CAP : Appellee : Appeal from the Order dated : 12/8/2015 in the Court of Common : Pleas, Cumberland County, Criminal v. : Division at No. CP-21-CR-0001183- : 1996. : ANTYANE ROBINSON, : SUBMITTED: June 11, 2018 : Appellant :

OPINION IN SUPPORT OF AFFIRMANCE

JUSTICE MUNDY DECIDED: December 14, 2018 Consistent with my Opinion in Support of Affirmance (OISA) in Commonwealth v.

Blakeney, 193 A.3d 350 (Pa. 2018), I join Justice Dougherty’s OISA in all respects, except

to the extent he relies on Commonwealth v. Chmiel, 173 A.3d 617 (Pa. 2017). In Chmiel,

the defendant attempted to invoke the newly-discovered fact exception to the PCRA time-

bar based on a newspaper article in which the Federal Bureau of Investigation

acknowledged that its experts had provided flawed hair microscopy testimony at trials for

many years. Chmiel, 173 A.3d at 622. The Majority in Chmiel concluded the time-bar

exception applied, even though it was undisputed that the FBI did not have any direct or

indirect involvement with his case. I continue to believe Chmiel was incorrectly decided.

See generally id. at 631-33 (Mundy, J., dissenting).

Nevertheless, Chmiel is distinguishable from this case. Robinson’s assertions of

judicial bias do not relate to his case as “the referenced email traffic relates to a time

period beginning over a decade after appellant’s trial and several years after his 2005 initial PCRA case concluded; appellant’s case is not referenced in the emails; and the

content does not reflect any invidious discrimination or bias in any court case.” OISA of

Dougherty, J. at 1-2 (quoting Commonwealth’s Brief at 16-17) (internal quotation marks

and brackets omitted). Such alleged instances of judicial bias cannot be material facts

upon which Robinson’s underlying claim for relief is “predicated.” 42 Pa.C.S.

§ 9545(b)(1)(ii). As a result, I conclude that like the FBI forensic analysis in Chmiel,

Robinson’s allegations cannot satisfy the time-bar exception, “because the purported

newly-discovered facts do not affect his case.” Chmiel, 173 A.3d at 633 n.2 (Mundy, J.,

dissenting); Blakeney, 193 A.3d at 370 (Mundy, J., OISA). Accordingly, I would affirm the

order of the PCRA court.

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