Com. v. Fisher

• Decision Date: 30 March 2005
• Citation: 582 Pa. 276,870 A.2d 864
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Robert FISHER, Appellant.
• Court: Pennsylvania Supreme Court

870 A.2d 864

582 Pa. 276

COMMONWEALTH of Pennsylvania, Appellee v. Robert FISHER, Appellant.

No. 451 CAP.

Supreme Court of Pennsylvania.

Submitted December 13, 2004.

Decided March 30, 2005.

Stuart Brian Lev, for Robert Fisher, appellant.

Amy Zapp, Patricia Eileen Coonahan, for the Com. of PA, appellee.

Before: CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.

OPINION

Justice BAER.

Appellant Robert Fisher appeals from the order of the Court of Common Pleas of Montgomery County dismissing his petition for relief on the merits filed pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546, without a hearing. As we find the petition was untimely filed, we affirm.

The facts underlying this case are as follows. In the month preceding Linda Rowden's death, her boyfriend, Appellant was angry with her because he believed that she had gone to the police to implicate him in the drug-related murder of a man named Nigel Anderson.¹ Appellant's anger grew over Ms. Rowden's willingness to cooperate with authorities, and in turn, Ms. Rowden complained to the Norristown police that Appellant had assaulted and was harassing her. The police took a report, prepared a complaint against Appellant, and advised him to stay away from her.

Unfortunately, the couple was together one final time on July 10, 1980. According to witnesses, on that date Ms. Rowden was driving her car down Dekalb Street in Montgomery County with Richard Mayo riding in the front passenger seat and Appellant riding in the back seat. It was daylight and the windows of the car were down. Mr. Mayo testified that Appellant and Ms. Rowden were arguing about her cooperation with the police investigation of the Anderson murder case when Appellant leaned forward and shot Ms. Rowden twice with a revolver. Ms. Rowden slumped forward and lost control of the vehicle. The vehicle swerved to the right, and crashed into parked cars lining Dekalb Street. Appellant jumped out of the backseat and walked quickly down a side street with the gun still in his hand. Mr. Mayo immediately got out and yelled for help. He then ran to an emergency phone, and called the police. A subsequent autopsy confirmed that Ms. Rowden died as a result of the shooting.

In the meantime, Appellant fled the scene. He went to the apartment of Denise Walker where he told Ms. Walker that he had just shot Ms. Rowden because she "was running her face to the detectives" about the Anderson murder. Appellant then changed his clothes, told Ms. Walker he was leaving town, and fled the area shortly thereafter. A search of Ms. Walker's apartment uncovered a set of Appellant's clothes and an opened box of Remington-Peters bullets. Appellant was not apprehended until 1987, when he was found in New York City and extradited to Pennsylvania to stand trial for Ms. Rowden's murder. On September 15, 1988, during a jury trial, Mr. Mayo and a number of other eyewitnesses testified to seeing Appellant shoot Ms. Rowden.² The jury convicted Appellant of murder in the first degree and, following a penalty-phase hearing, determined that Appellant should be sentenced to death. Post-trial motions were eventually denied, and the trial court formally sentenced Appellant to death on May 3, 1989. As referenced in footnote 1, supra, on direct appeal, this Court reversed Appellant's judgment of sentence, holding, among other things, that a question asked during voir dire of prospective jurors was prejudicial and mandated the grant of a new trial. See Fisher I.

Upon retrial, Mr. Mayo testified that he was seated in the front passenger seat, directly beside Ms. Rowden, who was driving, when he observed Appellant lean forward from the back seat and shoot her. Additionally, Frieda Sambrick testified that she was sitting on the steps of a nursing clinic located approximately 20 to 25 feet from the spot where Ms. Rowden's vehicle crashed. Ms. Sambrick told the jury that she had known Appellant for eleven years, and when she saw Ms. Rowden driving by, she recognized Appellant, who was sitting in the back seat. Ms. Sambrick said she saw Appellant lean forward and she heard the gunshots followed by Ms. Rowden's scream. She then saw the car crash, and watched as Appellant got out of the car and ran from the scene.

Ms. Walker also testified at the retrial. She related that Appellant admitted shooting the victim for talking to the police. She said he changed clothes at her apartment and immediately left. The Commonwealth presented additional evidence to establish that Appellant fled the Norristown area and remained at large until he was apprehended seven years later in New York.

Finally, the Commonwealth introduced ballistics testimony through its expert witness, FBI Agent John Riley. Agent Riley testified that he conducted comparative bullet lead analysis (CBLA) of eight bullets from the open box of bullets found at Ms. Walker's apartment with the bullet fragments recovered from the victim's body.³ He concluded that six of the eight bullets found at Ms. Walker's apartment were analytically indistinguishable from the bullets retrieved from Ms. Rowden's body, while the remaining two of the eight tested had minor compositional differences. Agent Riley opined that bullets that are analytically indistinguishable or of close compositional association typically come from the same box of ammunition. He qualified his finding by saying that these bullets could have also come from another box of ammunition, but that box, most likely would have had to be manufactured by Remington Peters and packaged on or about the same date as the box recovered by police in this case. On cross-examination, defense counsel challenged Agent Riley's conclusions and pointed out that other bullets manufactured by Remington Peters and sold in the area had the same composition, raising the possibility that anyone who bought them could equally be associated with the bullets recovered from the victim's body.

At the conclusion of the second trial, a jury again convicted Appellant of murder in the first degree and, following a penalty-phase hearing, determined that Appellant should be sentenced to death. In the direct appeal that followed, Appellant asserted thirty separate issues for review, raising guilt-phase error, as well as penalty-phase error. Addressing each issue, we affirmed the conviction for murder in the first degree, but vacated the death sentence and remanded for a new sentencing hearing. See Commonwealth v. Fisher, 545 Pa. 233, 681 A.2d 130 (1996) (Fisher II) (holding that victim impact evidence is not admissible during the penalty phase of a capital case).⁴

After a new sentencing hearing in which a third jury determined that Appellant should be sentenced to death, the trial court formally sentenced Appellant to death on July 23, 1997. On direct appeal, this Court affirmed the sentence of death. Commonwealth v. Fisher, 559 Pa. 558, 741 A.2d 1234 (1999) (Fisher III). On February 8, 2000, we denied reargument in Fisher III, and on October 2, 2000, the U.S. Supreme Court denied certiorari. See Fisher v. Pennsylvania, 531 U.S. 829, 121 S.Ct. 81, 148 L.Ed.2d 43 (2000).

While the direct appeal in Fisher III was pending, Appellant filed his first PCRA petition, alleging ineffective assistance of counsel.⁵ The trial court appointed new counsel, who filed post-sentence motions, as well as an amended PCRA petition. Following an evidentiary hearing, the trial court denied the post-trial motion and dismissed the PCRA petition. In Fisher III, we handled Appellant's procedural misstep in filing a PCRA petition during the pendency of his direct appeal by addressing all of the issues Appellant was attempting to raise. See Fisher III.

Once Appellant's direct appeal became final, in 2000, he filed a second PCRA petition, which was treated as a first petition, raising fourteen issues, none of which are relevant to this current appeal. The PCRA court appointed new counsel, who filed an amended PCRA petition. Following an evidentiary hearing, the PCRA court dismissed the petition, and on December 31, 2002, this Court affirmed. Commonwealth v. Fisher, 572 Pa. 105, 813 A.2d 761 (2002) (Fisher IV). On January 15, 2004, Appellant filed the instant PCRA petition, which alleged newly discovered evidence. Specifically, Appellant claimed that on November 21, 2003, the Associated Press reported that a soon to be released study by the National Academy of Science (NAS) had determined that the methods utilized by the FBI in CBLA cases were imprecise and flawed. In support of his claim, Appellant attached to his PCRA petition an undated article published by the National Academies Press entitled "Forensic Analysis: Weighing Bullet Lead Evidence." See Exhibit 2 attached to Appellant's brief.⁶⁷ Appellant also contended that Agent Riley's CBLA testimony was critical to his conviction and the new study refutes the underlying theory that bullets from the same batch of lead share a common "chemical fingerprint." Appellant, through counsel, retained the services of William A. Tobin, a retired forensic metallurgist from the FBI Laboratory, who stated, in an affidavit dated January 13, 2004, which he attached to his Appellate brief as Exhibit 3, that the expert opinion offered by Agent Riley at trial was not scientifically reliable and that there is no meaningful or comprehensive scientific research or study validating the premises required to support the practice of CBLA. Id. at Exhibit 3.⁸

On April 21, 2004, the Commonwealth filed an Answer to the PCRA petition, alleging that the petition was untimely and did not fit within any of the exception to the timeliness requirements of the PCRA, pursuant to 42 Pa.C.S. § 9545(b)(1) (as set forth fully below). On May 3, 2004, Appellant filed a Reply, along with a Motion for Discovery.⁹ That same date, the PCRA court issued an order and opinion dismissing the PCRA. The PCRA court initially found that the petition...