Commonwealth v. Smallwood

• Decision Date: 01 February 2017
• Docket Number: No. 709 MDA 2015,709 MDA 2015
• Citation: 155 A.3d 1054
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Letitia Denise SMALLWOOD, Appellee
• Court: Pennsylvania Superior Court

155 A.3d 1054

COMMONWEALTH of Pennsylvania, Appellant

v.Letitia Denise SMALLWOOD, Appellee

No. 709 MDA 2015

Superior Court of Pennsylvania.

Argued March 15, 2016

FILED FEBRUARY 1, 2017

Reargument Denied April 6, 2017

Charles J. Volkert, Jr., Assistant District Attorney, Carlisle, for Commonwealth, appellant.

Nilam A. Sanghvi, Philadelphia, for appellee.

BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

OPINION BY LAZARUS, J.:

The Commonwealth of Pennsylvania appeals from the order, entered in the Court of Common Pleas of Cumberland County, granting Letitia Denise Smallwood's petition filed pursuant to the Post–Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541 –9546. After careful review, we are constrained to conclude Smallwood has not satisfied the newly-discovered facts exception under section 9545(b)(1)(ii) of the PCRA, and, therefore, the PCRA court did not have jurisdiction to address the merits of Smallwood's petition. We, therefore, reverse the PCRA court's order granting a new trial.¹

On January 11, 1973, a jury convicted Smallwood of one count of arson² and two counts of first-degree murder.³ The court sentenced Smallwood to concurrent terms of ten to twenty years' imprisonment on the arson count and life imprisonment on each murder count. Smallwood filed post-trial motions, which were denied. The Pennsylvania Supreme Court denied Smallwood's direct appeal⁴ on January 29, 1976. Commonwealth v. Smallwood , 465 Pa. 392, 350 A.2d 822 (1976).

Smallwood's first post-conviction petition was denied in 1979. The Pennsylvania Supreme Court affirmed the PCRA court's order denying relief. SeeCommonwealth v. Smallwood , 497 Pa. 476, 442 A.2d 222 (1982).

In 1999, Smallwood saw a television program that featured Dr. Gerald Hurst, a chemist and renowned arson expert. In her certification, Smallwood stated that in that program, "Dr. Hurst explained the advances that had been made in the field of fire investigation and also explained how he had assisted a woman charged with a crime similar to the one I was get her conviction overturned." Petitioner's Certification, 5/15/14, at ¶ 11.

Fifteen years later, on March 14, 2014, Smallwood filed a second PCRA petition. The Commonwealth filed a motion to dismiss the petition as untimely and, in the alternative, previously litigated. On June 20, 2014, the PCRA court heard arguments. Thereafter, the court held an evidentiary hearing on December 15, 2014, and a merits hearing on March 27, 2015. On April 20, 2015, the PCRA court concluded that Smallwood had met her burden of proving the newly-discovered fact exception under section 9545(b)(1)(ii) of the PCRA. The PCRA court granted Smallwood a new trial. The Commonwealth filed a timely notice of appeal and now raises three issues for our review:

1. Whether the PCRA court erred because the petition is untimely[,] as a "new" expert opinion based on old methodology and facts does not reset the sixty-day clock nor does expert shopping constitute due diligence?

2. Whether the PCRA court erred in granting petitioner a new trial because the after-discovered evidence would be used solely to impeach the credibility of Commonwealth witnesses?

3. Whether the PCRA court erred in granting petitioner a new trial because the after-discovered evidence would not likely result in a new trial?

Commonwealth's Brief, at 5.

The PCRA court summarized the underlying facts as follows:

In the early morning hours of August 29, 1971, a fire raged through the property at 11 North Pitt Street in the Borough of Carlisle, Cumberland County, Pennsylvania. The property consisted of two offices on the first floor and apartments on the second and third floors. As a result of the fire, two tenants residing in apartments on the third floor were killed.

William H. Sweet, a Deputy Fire Marshal with the Pennsylvania State Police performed the fire investigation. He arrested [Smallwood] on September 4, 1972.

The Commonwealth's case against [Smallwood] was composed primarily of circumstantial evidence. This circumstantial evidence included both findings from the fire investigation as well as evidence that [Smallwood] possessed the means, motive and opportunity to commit the arson.

At trial, Trooper Sweet testified that the fire was incendiary. His opinion was based largely on eyewitness testimony which suggested that the fire had "started in two separate places without interconnecting trails." Although the eyewitness testimony was imprecise with regard to the timing of when each saw the fire, Trooper Sweet determined that the fire "started in two separate places." Through his investigation, however, he was not able to learn precisely what caused the fire. Nevertheless, he did opine that it was arson.

At the evidentiary hearing held in connection with the instant petition, Dr. Jason Sutula testified on behalf of [Smallwood]. He was qualified as an expert in the field of fire investigation. He identified the National Fire Protection Association Publication 921 ("NFPA 921")⁵ as the "gold standard" for fire investigators. It was first published in 1992 and has been revised numerous times since then. Applying the methodology of NFPA 921 to this case, Dr. Sutula took issue with Trooper Sweet's conclusions 1) that the fire was arson; and 2) that there were two points of origin.

Initially, Dr. Sutula pointed out that Trooper Sweet's classification of the fire as incendiary was "premature." He went on to explain that pursuant to NFPA 921 principles, a fire cannot be classified as incendiary until other potential causes have been considered and ruled out. Potential causes in this case included a malfunction of the building's electrical system as well as an accidental ignition of discarded furniture and trash in the halls due to carelessly discarded smoking materials. Applying the principles of NFPA 921 to the available evidence, Dr. Sutula concluded that the cause of this fire must be classified as "undetermined."

Further, Dr. Sutula pointed out that the original investigation was not sufficient to determine that there was a second point of origin on the third floor. It should be noted that Dr. Sutula acknowledged that Trooper Sweet's original investigation was acceptable according to the methodology of fire investigation in 1972. However, fire investigation at that time was more of an "art" than a science.

PCRA Court Opinion, 7/27/15, at 1–4.

Our standard of review for an order denying post-conviction relief is limited to examining whether the PCRA court's determination is supported by evidence of record and whether it is free of legal error. Commonwealth v. Jermyn , 551 Pa. 96, 709 A.2d 849, 856 (1998) ; Commonwealth v. Wilson , 824 A.2d 331 (Pa. Super. 2003) (en banc ). The scope of our review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the trial level. Commonwealth v. Spotz , 624 Pa. 4, 84 A.3d 294, 311 (2014). A second or subsequent petition for post-conviction relief will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred. Commonwealth v. Allen , 557 Pa. 135, 732 A.2d 582, 586 (1999). A prima facie showing of entitlement to relief is made "only by demonstrating either that the proceedings which resulted in conviction were so unfair that a miscarriage of justice occurred which no civilized society could tolerate, or the defendant's innocence of the crimes for which he was charged." Commonwealth v. Ali , 624 Pa. 309, 86 A.3d 173, 177 (2014), citing Allen , 732 A.2d at 586.

Before addressing the merits of a PCRA petition, we must first determine whether the PCRA court had jurisdiction to entertain the underlying petition. SeeCommonwealth v. Fahy , 558 Pa. 313,737 A.2d 214, 223 (1999). A PCRA petition, including a second or subsequent petition, must be filed within one year of the date the judgment becomes final,⁶ unless appellant can plead and prove one of three exceptions set forth under 42 Pa.C.S.A. § 9545(b)(1), and that the petition was filed within 60 days of the date the claim could have been presented. 42 Pa.C.S. § 9454(b)(2). SeeCommonwealth v. Alcorn , 703 A.2d 1054, 1056–57 (Pa. Super. 1997). These time limits are jurisdictional in nature, "implicating a court's very power to adjudicate a controversy." Ali , 86 A.3d at 177, citing Fahy, supra . Accordingly, the "period for filing a PCRA petition is not subject to the doctrine of equitable tolling[.]" Fahy , 737 A.2d at 222.

Instead, the time for filing can be extended "only if the PCRA permits it to be extended, i.e. , by operation of one of the statutorily enumerated exceptions to the PCRA time-bar." Ali , 86 A.3d at 177, citing Fahy , 737 A.2d at 222.

Our Supreme Court has repeatedly stated it is the petitioner's burden to allege and prove that one of the timeliness exceptions applies. See, e.g. , Commonwealth v. Beasley , 559 Pa. 604, 741 A.2d 1258, 1261 (1999). The Commonwealth contends Smallwood has not carried this burden.

The PCRA provides, in relevant part:

(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 petition proves that:

(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.

(2) Any petition invoking an exception provided in paragraph (1)

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