Opinion
J-51-2018 No. 720 CAP
12-14-2018
COMMONWEALTH OF PENNSYLVANIA, Appellee v. ANTYANE ROBINSON, Appellant
Appeal from the Order dated 12/8/2015 in the Court of Common Pleas, Cumberland County, Criminal Division at No. CP-21-CR-0001183-1996. OPINION IN SUPPORT OF AFFIRMANCE JUSTICE MUNDY
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.