Commonwealth v. Chmiel, No. 780 CAP

• Decision Date: 21 October 2020
• Docket Number: No. 780 CAP
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. David CHMIEL, Appellant
• Court: Pennsylvania Supreme Court

240 A.3d 564

COMMONWEALTH of Pennsylvania, Appellee

v.David CHMIEL, Appellant

No. 780 CAP

Supreme Court of Pennsylvania.

Submitted: July 14, 2020

Decided: October 21, 2020

Rosemary Auge, Esq., Tracy L. Ulstad, Esq., Federal Community Defender's Office, Eastern District of Pennsylvania, for Appellant.

Jennifer Anne Buck, Esq., Ronald Eisenberg, Esq., Pennsylvania Office of Attorney General, for Appellee.

Dania V. Bardavid, Esq., Craig Mitchell Cooley, Esq., James C. Dugan, Esq., M. Chris Fabricant, Esq., Margot G. Mooney, Esq., for Amicus Curiae Innocence Project.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

CHIEF JUSTICE SAYLOR

In this serial, capital post-conviction appeal, Appellant challenges the validity of expert testimony based upon microscopic comparison of hair samples.

For more than a century, forensic examiners have appeared in various criminal trials, employing a form of analysis known as microscopic hair comparison analysis. See, e.g. , Knoll v. State , 55 Wis. 249, 12 N.W. 369, 370 (1882). This entails "side-by-side, microscopic comparisons of hair samples in an effort to ascertain whether hairs from a crime scene matched hairs from a subject." U.S. v. Butler , 955 F.3d 1052, 1053 (D.C. Cir. 2020).

The absence of common standards for comparison and of studies sufficiently validating examiners’ results has yielded longstanding criticisms, some from prominent sources. See, e.g. , Nat'l Research Council, Strengthening Forensic Science in the United States: A Path Forward 161 (2009) (positing that courts "have recognized that testimony linking microscopic hair analysis with particular defendants is highly unreliable"); see also Williamson v. Reynolds , 904 F. Supp. 1529, 1558 (E.D. Okla. 1995) (determining that microscopic hair comparison analysis was unreliable and inadmissible under the federal screening test pertaining to scientific evidence), disapproved on other grounds Nguyen v. Reynolds , 131 F.3d 1340, 1354 (10th Cir. 1997).

A watershed was reached in April 2015, when the Federal Bureau of Investigation (the "FBI") participated in a joint press release with the United States Department of Justice (the "DOJ"), the Innocence Project, and the National Association of Criminal Defense Lawyers (the "NACDL"), entitled, "FBI Testimony on Microscopic Hair Analysis Contained Errors in at Least 90 Percent of Cases in Ongoing Review."

This press release disclosed the initial findings of the above agencies and organizations, premised on an ongoing joint investigation, indicating that FBI microscopic hair analysts had committed "widespread, systematic error, grossly exaggerating the significance of their data under oath with the consequence of unfairly bolstering the prosecution's case[.]" See Petition for Post-Conviction Relief dated June 16, 2015, in Commonwealth v. Chmiel , No. 83-CR-748 (C.P. Lackawanna), at Ex. C. The release also related that the FBI had trained many state and local hair examiners throughout the country using "the same scientifically flawed language." Id. at 2. The continuing reviews of criminal cases in light of such irregularities -- as well as similar over-claiming and overstatements associated with other feature-comparison methods of analysis, such as firearm toolmark, bite mark, tire tread and shoe tread examinations -- are reported to have contributed to the exoneration of numerous individuals. See President's Council of Advisors on Science and Technology, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods 3 (Executive Office of the President Sept. 2016) [hereinafter the "President's Council Report"].

On September 21, 1983, after invading the home of three elderly siblings -- James, Angelina, and Victor Lunario -- Appellant stabbed them to death during the course of a robbery.¹ In the aftermath, police found a makeshift mask at the scene that had been fashioned from a sweater sleeve. This distinctive sweater was soon identified as having belonged to Appellant's brother, Martin Chmiel.

After initially denying any involvement, Martin eventually admitted that he and Appellant had jointly planned to burglarize the victims’ home. Further, Martin disclosed that Appellant had privately confessed that he had proceeded with a robbery of his own accord and killed the Lunarios after Angelina screamed. Martin provided investigators with numerous non-public details about the robbery and murders, which he asserted had been related to him by Appellant. See Chmiel , No. 83-CR-748, 2019 WL 2090611, slip op. at 16-17 (cataloguing such details). Several witness statements established an alibi for Martin, in that the witnesses told police that he had been at a remote, forested location watching for brush fires at the time the killings were believed to have occurred. Accordingly, the investigation centered on Appellant.

Appellant was arrested and brought to trial on three counts of first-degree murder and other crimes on three occasions, the last of which occurred in 2002.² Martin Chmiel testified consistent with the police interviews in which he incriminated Appellant.

Of particular relevance here, investigators attested to having found samples of hair on the sweater mask located at the crime scene. The Commonwealth presented microscopic hair comparison analyses of those evidence samples as related by George Surma, a then-retired forensic scientist previously employed by the Pennsylvania State police. Mr. Surma testified that he had examined the hairs in 1984, and two taken from the mask, in particular, were "microscopically similar" to samples of Appellant's hair but were not similar to samples taken from Martin Chmiel. N.T., Aug. 27, 2002, at 19, 23. According to Mr. Surma, Martin could be excluded as a contributor. See id. at 20-21. On cross-examination, Mr. Surma agreed that he could never say, based upon microscopic comparison alone, that an evidence sample was "the same" as a hair taken from a subject or that an evidence sample derived from any particular individual. Id. at 26, 30. Indeed, Mr. Surma conceded that two hairs taken from his own head might appear dissimilar upon microscopic examination. See id. at 27.

Additionally, an expert in mitochondrial DNA testified that neither Appellant nor Martin Chmiel could be excluded as sources of these two evidence samples. See N.T., Aug. 29, 2002, at 166.³ Because, however, a mixture of profiles was present in the evidence samples, the expert didn't perform a database search, and accordingly, was unable to supply probabilistic information concerning how likely it was that Appellant or Martin were contributors. See id. at 173.⁴

Appellant testified in the defense case. Significantly, he admitted to having conspired with Martin Chmiel, on various occasions during the months preceding the victims’ murders, to burglarize the victims’ home. See, e.g. , N.T., Sept. 4, 2002, at 140, 235. Appellant related that it was either his or Martin's idea to make masks and that he was present when Martin fashioned them from the sweater. See id. at 141-143. By his own admission, Appellant participated in several trips in which he and Martin drove by the Lunarios’ residence, either as part of the planning or in an attempt to perpetrate the burglary. See, e.g. , id. at 144, 153. It was Appellant's testimony that the latest of these events occurred approximately two-and-one-half weeks before the killings. See id. at 151-153. Appellant stated that, when he and Martin drove by the residence, they found the Lunarios were at home. See id. at 153. Thus, Appellant maintained, the contemplated burglary was thwarted, since "that was part of the original plan, that if we did [proceed with the burglary], we would do it when they weren't home so no one would get hurt." Id. Subsequently, Appellant claimed, he withdrew entirely from the conspiracy. See id. at 157 (reflecting Appellant's testimony that, "I says [to Martin,] I don't want to hear anything more about robbing the Lunarios or robbing anyone.").

Appellant also admitted to having been in possession of the sweater masks for several months after their making. See id. at 145, 157. He asserted, however, that at the time he refused to proceed further with the conspiracy, he threw the bag containing the masks into a dumpster in Martin's presence, "just so you know where it's going." See id. at 157. According to Appellant, "that was the end of that." Id. Confronting the testimony of the numerous witnesses supporting Martin's alibi and others undermining his own version of the events on the night of the killings, Appellant asserted that those witnesses were engaged in a longstanding conspiracy to lie in order to implicate him. See, e.g. , N.T., Sept. 5, 2002, at 31, 45-49, 84-85.

Appellant was convicted and sentenced to death, and the judgments of sentence were affirmed on direct appeal. See Chmiel , 585 Pa. 547, 889 A.2d 501. This Court also affirmed the denial of post-conviction relief on Appellant's first petition following the 2002 retrial. See Commonwealth v. Chmiel , 612 Pa. 333, 30 A.3d 1111 (2011). Notably, several of the rejected claims entailed the allegations that Appellant's trial counsel was ineffective for failing to challenge the admissibility of Mr. Surma's testimony pursuant to Frye v. United States , 293 F. 1013 (D.C. 1923),⁵ and for failing to obtain an expert witness to rebut that evidence. See Chmiel , 612 Pa. at 382-87, 30 A.3d at 1140-42.

In June 2015, Appellant filed a serial PCRA petition, citing prominently to the joint press release of the FBI, the DOJ, the Innocence Project, and the NACDL; contending that his convictions were based upon "unreliable scientific evidence"; and arguing that the joint press release was confirmatory. Petition for Post-Conviction Relief in Chmiel , No. 83-CR-748, at 7, 12. According to the petition, Mr. Surma "was trained by the FBI and ... provided the same scientifically unsupportable testimony that the...