In 2024, the U.S. Supreme Court decided Smith v. Arizona, 602 U.S. 779 (2024), to clarify how the Confrontation Clause applies when the prosecution uses an expert witness to relay forensic work performed by someone who does not testify. The Court explained that if a testifying expert conveys an out-of-court statement to support the expert’s opinion, and that statement supports the opinion only if it is true, then the statement is being offered for its truth. And if the statement is testimonial, the Confrontation Clause bars it unless the original declarant is unavailable and the defendant previously had a chance to cross-examine that declarant. The Court emphasized that this conclusion follows from its earlier Confrontation Clause forensic-evidence cases like Crawford, Melendez-Diaz, and Bullcoming.
Against that backdrop, Commonwealth v. Johnson, 2026 PA Super 32 (Pa. Super. Feb. 23, 2026), involved a second, facially untimely PCRA petition. Johnson tried to fit his claim into the PCRA’s “new constitutional right” timeliness exception, 42 Pa.C.S. § 9545(b)(1)(iii), arguing that Smith recognized a constitutional right after his judgment of sentence became final and that the decision should apply retroactively. He tied that argument to trial testimony from a deputy medical examiner, arguing the testimony was the sort of expert “surrogate” presentation that Smith addressed.
The Superior Court rejected the timeliness argument for two independent reasons. First, it held that Smith did not “recognize a new constitutional right” for PCRA purposes; rather, it clarified and applied existing Confrontation Clause principles to a recurring expert-testimony problem, and Smith itself described its holding as following from prior precedent. Second, even assuming Smith announced something new, the court held the statutory exception still was not met because Smith has not been “held” to apply retroactively to cases on collateral review—something the PCRA requires to exist at the time the petitioner files.
Because Johnson could not satisfy § 9545(b)(1)(iii), the Superior Court concluded the PCRA court lacked jurisdiction to reach the merits of his Confrontation Clause claim at all. It therefore affirmed the dismissal of the petition as untimely, expressly declining to weigh in on the PCRA court’s alternative discussions of waiver and harmless error.