holding that “to constitute facts which were unknown to a petitioner and could not have 2 Specifically, Appellant contends that his present counsel performed an internet search of “Lance Marshall attorney” on “July 28 or 29, 2014” which uncovered two articles, published in the Centre Daily Times and the Lehigh County Morning Call in 2009, detailing the Pennsylvania Attorney General’s investigation into Attorney Marshall. -5- J-S29036-15 been ascertained by the exercise of due diligence, the information must not be of public record”
How later courts described this case
- holding that “to constitute facts which were unknown to a petitioner and could not have 2 Specifically, Appellant contends that his present counsel performed an internet search of “Lance Marshall attorney” on “July 28 or 29, 2014” which uncovered two articles, published in the Centre Daily Times and the Lehigh County Morning Call in 2009, detailing the Pennsylvania Attorney General’s investigation into Attorney Marshall. -5- J-S29036-15 been ascertained by the exercise of due diligence, the information must not be of public record”
- stating that “[w]e cannot say that a petitioner who is aware of the factual basis of his claim but who raises the claim over 15 years later complied with the jurisdictional, statutory requirement to file his claim within 60 days of the date the claim could have been presented”
- explaining that the proper questions with respect to timeliness exceptions of the PCRA are whether the government interfered with petitioner’s ability to present his claim, and whether petitioner was duly diligent in seeking the facts on which his claims are based
- stating that “[a]s we have explained, the nature of the constitutional violations alleged has no effect on the application of the PCRA time bar. … Rather, the only cognizable exceptions are set forth at Section 9545(b)(1).” (internal citations omitted)
Written by the judges who cited it.
The opinion
CONCURRING OPINION
Justice TODD.
I join the Majority Opinion in all but one respect. I cannot agree with the majority that Appellant’s PCRA claim, premised on the February 2009 Report (the “Report”) from the National Academy of Sciences (the “Academy”), was untimely.
As the majority discusses, Appellant relies on the Report to support a challenge to the expert hair analysis testimony offered at trial, which concluded that hair found in Appellant’s track came from the victim. In particular, Appellant relies on the Report’s section entitled “Analysis of Hair Evidence,” and the following conclusions therein:
— The Academy “found no scientific support for the use of hair comparisons for individualization in the absence of nuclear DNA;”
— “No scientifically accepted statistics exist about the frequency with which particular characteristics of hair are distributed in the population;” and
— “There appear to be no uniform standards on the number of features on which hairs must agree before an examiner may declare a ‘match’.”
Report at 5-25 to 5-26 (quoted in Appellant’s Brief at 23). Nevertheless, the majority concludes that these “facts” in the Report “were not new, and existed in various sources prior to the publication” of the Report, and thus “were in the public domain and could have been discovered by Appellant through the exercise of due diligence” prior to the filing of his PCRA petition. Majority Opinion at 352-53. Accordingly, the majority rejects the claim as untimely under the PCRA. See 42 Pa. C.S.A. § 9545(b)(l)(ii) (to rely on timeliness exception, petitioner must prove that “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”). I cannot agree.
The Academy is unlike other scientific bodies. It was chartered by the federal government during the Civil War, with a mandate to advise the government on science and technical matters. See 36 U.S.C. § 150301 , Historical Notes; id. § 150303 (“On request of the United States Government, the [Academy] shall investigate, examine, experiment, and report on any subject of science or art.”). According to the Academy, it is a society of distinguished scholars and, since 1863, has been “charged with providing independent, ob *360 jective advice to the nation on matters related to science and technology.” 1 It is arguably the Nation’s most prestigious scientific organization.
In November 2005, reportedly in the wake of several high profile mistaken prosecutions relying on forensics, Congress authorized the Academy to conduct a study on the state of forensic science, resulting in its February 2009 Report. See .Report at S — 1. In preparation for the Report, the Academy heard testimony from experts in government, law enforcement, law, academia, and elsewhere; reviewed published materials, studies, and reports related to forensic science; and conducted independent research. Report at S-2.
Specifically with regard to its analysis of hair evidence, the Report discusses studies from the Journal of Forensic Sciences and other publications. 2 See Report at 5-22 to 5-26. However, with regard to its conclusions cited above, and in particular its sweeping statement that it “found no scientific support for the use of hair comparisons for individualization in the absence of nuclear DNA”, the Report cites no sources. Thus, these are not merely the regurgitated conclusions from previously published studies, or from a prior Academy report, which Appellant could have uncovered previously with some diligence.
Rather, these are the novel conclusions concerning the deficiencies in the analysis of hair evidence from the leading science advisory body in the Nation, after being charged under federal law to make these very assessments, and following its own investigation and research. No amount of prior diligence by Appellant, no amount of combing through the Journal of Forensic Sciences, Forensic Science Review, Forensic Science Communications, or any of the other studies or publications the Academy reviewed from the last 40 years, could have produced such findings. Such findings bear the unique imprimatur of the Academy.
In PCRA terms, these “facts” — the conclusions from the Academy — did not exist before the publication of the Academy’s Report. For this reason, this case differs from those cited by the majority. See Commonwealth v. Fisher, 582 Pa. 276 , 870 A.2d 864 (2005) (rejecting affidavit from FBI expert challenging bullet analysis as it reiterated his previously published opinions) 3 ; Commonwealth v. Lark, 560 Pa. 487 , 746 A.2d 585 (2000) (rejecting statistical analysis in law review article of race disparity in death penalty system as it was based on statistical data in the public record); Commonwealth v. Whitney, 572 Pa. 468, 476 , 817 A.2d 473, 478 (2003) (same). Accordingly, with respect to Appellant’s PCRA claim based on the Report, I would find Appellant’s claim to be timely filed. 4
*361 Nevertheless, I would reject the claim, as I agree with the PCRA court that introduction of the Academy’s conclusions— while damning to the hair analysis testimony offered against Appellant at trial— would be in the nature of impeachment evidence and, given the overwhelming character of the other evidence offered against Appellant, would not have altered the outcome of his trial. See Trial Court Opinion, 4/26/10, at 11-12. Thus, I would reject Appellant’s PCRA claim on this alternative basis. See Commonwealth v. D’Amato, 579 Pa. 490, 519 , 856 A.2d 806, 823-24 (2004) (for PCRA claim to qualify under previously-unavailable-evidenee provision in 42 Pa.C.S.A. § 9543(a)(2)(vi), evidence, inter alia, must not be used solely for impeachment, and must compel a different verdict). Accordingly, I concur in the majority’s rejection of this claim. 5
. Mission Statement of the National Academy of Sciences, http://www.nasonline.org/about-nas/mission/ (last visited April 18, 2013).
. Notably, none of the discussions in its section addressing hair evidence reference its own prior findings or those of its related organs — the National Academy of Engineering, the Institute of Medicine, or the National Research Council.
. Indeed, our decision in Fisher may be read to support the timeliness of Appellant’s claim herein. Therein, we also addressed the petitioner's reliance on an Academy article, enti-tied “Forensic Analysis: Weighing Bullet Lead Evidence,” and essentially agreed with the PCRA court's threshold determination that this information was not previously available. However, contrary to the petitioner's assertions, we concluded that the article suggested the bullet analysis used in the petitioner’s case was reasonably accurate. Fisher, 582 Pa. at 287 , 870 A.2d at 870 . Thus, we determined that the article did not provide a basis on which the petitioner could predicate a timeliness exception because it did not, on the merits, support his claim. Id.
. The Commonwealth argues that Appellant's presentation of this claim was untimely because Appellant failed to prove that he did not learn of the Report prior to its publication, noting that the version of the Report Appellant attached to his PCRA petition was labeled “PREPUBLICATION COPY,” indicating it may have been discoverable prior to publication. Commonwealth’s Brief at 34. However, in his petition, Appellant asserts that the pre-publication copy is the version issued by the Academy on February 18, 2009, and his PCRA petition was filed within 60 days of that date. Supplemental Petition for Post-Conviction Relief at 1; see 42 Pa.C.S.A. § 9545(b)(2) ("Any petition invoking [a timeliness] exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.”). Thus, I conclude the claim based on the Report was timely.
. To the degree Appellant’s request for post-conviction discovery was based in part on this claim, I join the majority’s conclusion that the trial court’s decision to deny discovery should not be disturbed. See Majority Opinion at 353. I concur not because, as the majority concludes, the claim was untimely, but because, in my view, the claim lacked sufficient merit to support a showing of exceptional circumstances justifying discovery.