J-S09005-21
2022 PA Super 38
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DEREK MURCHISON :
:
Appellant : No. 3585 EDA 2019
Appeal from the PCRA Order Entered November 27, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0913011-2002
BEFORE: OLSON, J., McCAFFERY, J., and STEVENS, P.J.E.*
OPINION BY McCAFFERY, J.: FILED FEBRUARY 28, 2022
Derek Murchison (Appellant) appeals from an order entered in the
Philadelphia County Court of Common Pleas that dismissed, without a hearing,
his third petition filed pursuant to the Post-Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546. As will be discussed below, Appellant was convicted
of first-degree murder and related charges in connection to the death of Linda
Willis (the victim). Appellant contends the court erred in finding he was not
entitled to PCRA relief when new DNA evidence revealed that (1) someone,
not Appellant, left blood at the crime scene, and (2) someone, again not him,
touched the weapon used in the commission of the murder, which contradicts
the prosecution’s theory of the case. For the reasons below, we affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
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We begin by summarizing the evidence and testimony introduced at
Appellant’s trial and then will turn to a review of relevant post-conviction
proceedings, including Appellant’s acquisition of new DNA1 test results and his
related request for a new trial based upon this after-acquired evidence.2
On October 5, 2001, the victim was found lying dead in her Philadelphia
home. At that time, Michael Cannon was a tenant in the victim’s home and
served as a key Commonwealth witness at Appellant’s trial. He testified about
events that occurred at the victim’s residence, her personal relationships, and
his discovery of her body on October 5th. Cannon described how the victim,
an addict, permitted people to smoke crack cocaine in her living room in
exchange for drugs. In addition, she provided sexual services to Cannon and
other men to obtain funds to support her drug habit. The victim also
maintained a romantic relationship with an individual named Cornell Mayrant.
According to Cannon, Appellant was a close acquaintance of the victim
and a frequent visitor in her home around the time of the murder. Appellant
shared a crack cocaine habit with the victim and, according to Cannon, the
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1 The term “DNA” refers to deoxyribonucleic acid, a molecule that carries and
encodes the human genome. The extraction and identification of unique
features of an individual’s DNA is used as an identification technique for
forensic purposes in criminal investigations. See Merriam-Webster’s
Collegiate Dictionary, 11th Ed., 2003.
2 The facts have been summarized from the PCRA court’s June 25, 2020,
Pa.R.A.P. 1925(a) opinion and the certified record.
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two collaborated in a scheme to purchase the drug. As part of this
arrangement, Appellant stole items of clothing from his employer and gave
them to the victim who, in turn, exchanged them on the street for money
and/or drugs.
On October 4, 2001, at about 11:00 p.m., Cannon was lying down in his
upstairs bedroom in the victim’s home when he heard her call for him from
the living room. Cannon, however, did not respond as he assumed the victim
intended to ask for money to buy crack, as she frequently did. Cannon claims
he did not hear sounds of a struggle on October 4th. The next day, Cannon
twice walked by the victim’s body as it lay on the couch, thinking she was
merely sleeping. He later telephoned the police after discovering, around 7:30
p.m., that the victim was dead.
When police investigators arrived at the victim’s home, they discovered
a five-foot wooden bed slat or board in her living room next to her sofa. Blood
on the board suggested it was used in an attack on the victim. A toy fire truck
was recovered on top of the board and a bloody, trampled newspaper
confirmed that a struggle occurred in the victim’s residence. Investigators
noted that she was naked below the waist and that her underwear was located
on the floor near the sofa.
Investigators collected several items for forensic testing in addition to
the board, the toy truck, and the newspaper. These items included a white
towel and a gray blanket recovered from the victim’s sofa. Because Cannon
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got the victim’s blood on his clothing when he found her, police officials
collected his boxer shorts, jacket, t-shirt, jeans, socks, and sneakers.
Subsequently, investigators submitted blood stains found on Cannon’s boxers,
jeans, and a single sock for DNA testing.
No fingerprint evidence linked Appellant to the victim’s murder. At the
time of Appellant’s 2004 trial, police investigators were unable to recover
fingerprint evidence from the wooden board believed to have been used in the
assault on the victim. Moreover, a partial fingerprint lifted from the toy fire
truck found at the crime scene offered insufficient points for identification.
Testimony elicited from the medical examiner (ME) revealed that the
victim died from asphyxiation caused by strangulation inflicted over the course
of several minutes.3 Her face, head, neck, and ribs also bore scratches,
abrasions, bruises, and other indicia of blunt force trauma consistent with
strikes from a blunt object. Toxicology tests showed that the victim ingested
cocaine up to an hour before her death.
The victim’s state of undress caused investigators to suspect sexual
assault. Notwithstanding these suspicions, tests performed on oral, rectal,
____________________________________________
3 The victim’s time of death was not clearly established by the evidence
introduced at trial. The ME estimated that the victim died between midnight
and noon on October 5, 2001, or possibly earlier. This timeline, however,
conflicted with the testimony of two witnesses, Faithlyn Gordon (Gordon) and
Mayrant, who claimed they saw the victim on her porch around 4:00 p.m. on
October 5th, only a few hours before Cannon claimed to have discovered the
victim’s corpse and telephoned authorities. See N.T., 6/14/04, at 107-125.
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and vaginal swabs obtained during the victim’s autopsy did not reveal the
presence of spermatozoa. Despite extensive pretrial forensic testing, no DNA
analysis linked Appellant to the crime scene.
A post-mortem examination showed the presence of human tissue
under the victim’s fingernails and DNA testing of this tissue revealed
contributions from two unknown males. The contributors’ DNA did not match
the DNA profiles of Appellant, Cannon, or Mayrant. Forensic testing also
showed that the DNA profile of the tissue recovered from the fingernails of the
victim’s left hand differed from the DNA profile of the tissue recovered from
the fingernails of her right hand.
Laboratory technicians conducted pretrial DNA testing on the wooden
board, the toy fire truck, the gray blanket, and the white towel recovered on
or near the living room sofa where Cannon discovered the victim’s body. DNA
material recovered from blood stains on the wooden board and the toy fire
truck was consistent with the victim’s genetic profile. However, forensic tests
available at the time of Appellant’s trial were unable to detect DNA deposits
on the wooden board and the toy fire truck from any other contributor.
Investigators also analyzed blood and semen deposits recovered from
the gray blanket collected at the crime scene. DNA testing of the blood stains
found on the blanket identified the victim as a contributor. These laboratory
tests excluded Appellant, Cannon, and Mayrant as contributors. Analysis of
semen stains on the blanket also excluded Appellant, Cannon, and Mayrant.
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However, partial DNA profiles from at least three unknown men were
recovered from the semen deposits on the blanket.
Two suspected semen stains on the white towel were also subjected to
forensic analysis. Appellant and Mayrant were excluded as contributors of
genetic material recovered from both areas. Cannon could not be excluded
as a minor contributor of genetic material recovered from one of the stains
found on the towel. Partial DNA profiles from no fewer than two unknown
males were developed from tests performed on the semen stains found on the
towel.
Forensic analysts also subjected Cannon’s boxer shorts, jeans, and a
single sock to DNA testing. The victim was included as a contributor to a blood
stain found on the heel of Cannon’s sock. DNA testing techniques available
prior to Appellant’s trial could not definitively identify contributors to the blood
stains found on Cannon’s boxer shorts and jeans. The victim, however, could
not be excluded as the source of blood4 found on Cannon’s underwear.
Without forensic evidence that connected Appellant to the crime scene,
the Commonwealth’s case relied heavily upon the testimony of three
witnesses who relayed what Appellant said to them in the days, weeks, and
____________________________________________
4 We note the blood on Cannon’s underwear was described as “a small and
rather light blood stain.” N.T., 6/11/04, at 60.
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months following the victim’s murder. None of these individuals, however,
witnessed the killing.
The first witness, Karen Thomas,5 met Appellant when she lived in the
victim’s home for approximately one month in 2001. Sometime between 2:00
a.m. and 3:00 a.m. on October 5, 2001, Thomas observed Appellant two
blocks from the victim’s residence carrying a tote bag that contained clothing
he was attempting to sell. According to Thomas, Appellant complained that
he just left the victim’s home because “that bitch put [him] out.” PCRA Ct.
Op., 6/25/20, at 3. Appellant then asked Thomas if she knew where or to
whom the victim sold clothing. Thomas declined to answer and walked away
from Appellant.
The second witness, Dasheika Bowie, the mother of four of Appellant’s
children, testified that she and Appellant shared a residence in October 2001,
but they were no longer were in a romantic relationship at the time of
Appellant’s 2004 trial. According to Bowie, Appellant returned to their shared
residence one evening in October 2001 and told her he had been in a fight
with a young guy and his girlfriend. Appellant presented with a black eye,
scratches on his neck, and an injured lip. Bowie testified that Appellant said
he hit the woman with “a stick” and left the area without knowing whether
____________________________________________
5 Thomas testified that the Commonwealth agreed to assist her in enrolling
in a drug rehabilitation program in exchange for her testimony at Appellant’s
2004 trial.
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she was dead or alive. PCRA Ct. Op. at 3. Appellant also told Bowie that he
refused a request by the young man to “finish [the woman] off” after striking
her. Id.
The final witness, Carolyn Hunt, is the mother of two of Appellant’s
children. Hunt testified that she introduced Appellant to the victim sometime
between 1998 and 1999 when she resided in the victim’s home. According to
Hunt, Appellant came to her residence in January 2002 and confessed to killing
the victim. Specifically, Appellant admitted that he knocked the victim
unconscious with a punch to the face because she could not account for a
shortage in either crack cocaine or money from one of their clothing
transactions. When the victim regained consciousness, Appellant strangled
her and struck her in the head with a stick before leaving the house covered
in blood. Appellant also told Hunt that he believed he heard someone upstairs
in the victim’s house when he and the victim began to argue.6
To support its case at trial, the Commonwealth introduced evidence
intended to demonstrate Appellant’s consciousness of guilt. This evidence
consisted of police testimony concerning two events. In the first episode,
____________________________________________
6 The Commonwealth also called Nola Rutledge to rebut Appellant’s attacks
on Hunt’s credibility. Rutledge testified that Hunt contemporaneously
informed Rutledge about Appellant’s confession. Rutledge also testified that,
in January 2002, Hunt told Rutledge that Appellant admitted that he choked
the victim and struck her with something while the two argued. See N.T.,
6/11/04, at 6-21.
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Appellant, on August 3, 2002, attempted to escape custody by climbing
through the ceiling of a police interview room while awaiting interrogation.
See PCRA Ct. Op. at 5 n.3. In the second episode, a sheriff’s detective
thwarted Appellant’s attempt to escape custody by climbing through a vent in
the ceiling of a holding room at the courthouse. See id.
The Commonwealth also introduced a letter Appellant wrote to Hunt
from prison four months after she testified at his preliminary hearing. In it,
Appellant appeared to concede his presence at the crime scene, stating he did
not kill the victim but merely found her dead. He also appeared to warn Hunt
against becoming involved in the case, telling her to “think about what [she
is] saying” and suggesting that she “made a very, very big mistake.” See
N.T., 6/10/04, at 138-144, 159, 172.
At the conclusion of trial on June 16, 2004, a jury found Appellant guilty
of first-degree murder in the victim’s death, as well as possession of an
instrument of crime (“PIC”) and escape.7 Thereafter, on August 10, 2004, the
trial court sentenced Appellant to serve life imprisonment without the
possibility for parole for his first-degree murder conviction. In addition, the
court imposed two to five years’ imprisonment for PIC and one to two years’
____________________________________________
7 See 18 Pa.C.S. §§ 2502, 907, and 5121(a), respectively. Appellant was
originally charged with criminal homicide, encompassing first-degree murder,
third-degree murder, and voluntary manslaughter. All three homicide
offenses were submitted to the jury for consideration.
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incarceration for escape, to run consecutively to one another, but concurrently
to Appellant’s sentence for first-degree murder.
This Court considered this matter twice on direct appeal. In the first
direct appeal, a panel affirmed Appellant’s judgment of sentence after
determining that Appellant waived his appellate claims because counsel failed
to file a complete set of trial transcripts and failed to develop meaningful
arguments with specific references to the record. See Commonwealth v.
Murchinson, 899 A.2d 1159, 1162 (Pa. Super. 2006).8 This Court again
affirmed Appellant’s convictions and sentences after Appellant’s direct appeal
rights were reinstated pursuant to an order granting collateral relief. See
Commonwealth v. Murchinson, 708 EDA 2007 (unpub. memo.) (Pa. Super.
Apr. 28, 2008). The Pennsylvania Supreme Court denied Appellant’s
subsequent petition for allowance of appeal. See Commonwealth v.
Murchison, 286 EAL 2008 (Pa. Oct. 17, 2008).
Appellant filed a second PCRA petition (his first substantive petition) on
January 9, 2009, alleging ineffective assistance of both trial and appellate
counsel. After counsel was appointed, the PCRA court denied the petition
without a hearing on May 24, 2010. We affirmed the order denying collateral
____________________________________________
8 Our prior decisions disposing of Appellant’s first and second direct appeals
were captioned as “Commonwealth v. Murchinson,” whereas Appellant’s name
in the instant appeal is spelled “Murchison.” We shall refer to the respective
cases according to the spelling which appears in each caption.
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relief on May 3, 2011. See Commonwealth v. Murchison, 1574 EDA 2010
(unpub. memo.) (Pa. Super. May 3, 2011).
In the years following Appellant’s trial, significant advancements in DNA
collection and profiling technology have occurred. Newly-emerged extraction
techniques and analytical methodologies, known as “Touch DNA” or “Contract
Trace DNA,”9 now enable the collection of DNA from traces of blood, skin cells,
sweat, semen, tears, or mucous that may remain on a surface. Availing
himself of this new technology, Appellant, on October 18, 2012, filed a petition
for DNA testing pursuant to 42 Pa.C.S. § 9543.1, followed by an amended
petition on June 13, 2013. On June 3, 2014, the court granted the petition
and ordered DNA testing of materials that remained within the
Commonwealth’s custody.
On September 4, 2015, Appellant filed a PCRA petition alleging that
newly-obtained, exculpatory DNA test results met the criteria for after-
acquired evidence that would entitle him to relief. See 42 Pa.C.S. §
____________________________________________
9 Touch DNA, also known as Trace DNA “is a forensic method for analyzing
DNA left at the scene of a crime. It is called ‘touch DNA’ because it only
requires very small samples, for example from the skin cells left on an object
after it has been touched or casually handled, or from footprints.” See Touch
DNA, WIKIPEDIA, THE FREE ENCYCLOPEDIA,
https://en.wikipedia.org/wiki/Touch_DNA, (last visited January 25, 2022)
(footnotes omitted).
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9543(a)(2)(vi).10 Appellant’s petition relied upon several new DNA laboratory
reports issued between September 4, 2014, and July 6, 2016. Among other
things, the reports revealed the following new findings.
First, the wooden board. Pretrial forensic testing of blood stains on the
wooden board established the presence of DNA consistent with the victim’s
genetic profile. Those forensic tests, however, were unable to detect DNA on
the wooden board from any other contributor. New tests conducted on
portions of the wooden board that were not stained with the victim’s blood
revealed the presence of trace DNA from an unknown contributor who could
not have been Appellant. See Petition for Post-Conviction Relief Pursuant to
42 Pa.C.S. § 9543, 9/4/15, Exhibit A, DNA Lab Report, 7/6/15, at ¶¶ 1 and 2
and Exhibit B, DNA Lab Report, at ¶ 6. Mayrant could not be excluded as a
contributor to the trace DNA deposit obtained from the area of the board that
was not bloodstained. See id. at ¶ 6.
Next is Cannon’s sock. Pretrial DNA analysis confirmed the victim as a
contributor to a blood stain found on the heel of Cannon’s sock. New tests,
however, showed the presence of DNA from a second, unknown contributor
(not Appellant) in the blood stain found on the heel of Cannon’s sock. See
Petition for Post-Conviction Relief Pursuant to 42 Pa.C.S. 9543, Exhibit B, DNA
____________________________________________
10 The petition was amended on July 6, 2016, to address additional DNA test
results.
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Lab Report, 6/15/15, at 1-2 (two contributors to blood stain); see also DNA
Lab Report, 7/6/15, at ¶ 2 (excluding Appellant as contributor).
Third is Cannon’s boxer shorts. Pretrial DNA testing techniques could
not definitively identify contributors to the blood stain found on Cannon’s
boxer shorts. The victim, however, could not be excluded as a source of this
deposit. New tests definitively identified the victim as the source of blood
detected on Cannon’s boxer shorts. See DNA Lab Report, 6/15/15, at ¶ 2.
Lastly, the grey blanket. Pretrial testing detected three unknown
contributors to the semen stains found on the grey blanket recovered from
the victim’s sofa. New tests established a fourth unknown contributor to the
semen stains found on the blanket. See Amended Petition for Post-Conviction
Relief Pursuant to 42 Pa.C.S. § 9543, 7/5/16, at ¶¶ 11 and 40; see also id.
at Exhibit E, DNA Lab Report, 5/4/16, at 2.
On July 9, 2019, the Commonwealth submitted a letter to the PCRA
court stating that “after thoroughly reviewing the DNA testing results and the
trial notes, the Commonwealth will agree to PCRA relief.” Commonwealth
Letter, 7/9/19. The Commonwealth’s letter further advised the PCRA court
that, in exchange for the Commonwealth’s agreement not to oppose
Appellant’s request for PCRA relief, Appellant agreed to “plead nolo contendere
to third-degree murder and PIC with a negotiated term of incarceration of 20-
to 40 years.” Id.
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However, on October 29, 2019, the PCRA court issued notice of its intent
to dismiss Appellant’s petition pursuant to Pa.R.Crim.P. 907. The court’s
notice declared that Appellant’s petition was untimely and lacked merit.
Appellant responded to the court’s notice on November 15, 2019.11
On November 27, 2019, the PCRA court entered its order dismissing
Appellant’s petition for untimeliness and lack of merit. Appellant filed a timely
notice of appeal on December 17, 2019. The PCRA court did not order
Appellant to file a concise statement of errors complained of on appeal but
issued an opinion pursuant to Pa.R.A.P. 1925(a) on June 25, 2020.
In its opinion, the PCRA court reversed its earlier determination, as
noted in its Rule 907 notice and order, that Appellant’s petition was untimely
and, instead, explained that Appellant’s timely petition was nonetheless
subject to dismissal because it lacked substantive merit. See PCRA Ct. Op.
at 2 n.2 (finding Appellant’s petition timely under 42 Pa.C.S. § 9543.1(f)(1)12).
____________________________________________
11 On November 26, 2019, the Commonwealth reiterated its position that
Appellant was entitled to relief in the form of a new trial, emphasizing its view
that the new DNA test results, if presented at Appellant’s 2004 trial, likely
would have produced a different outcome. See Commonwealth Letter,
11/26/19.
12Section 9543.1(f)(1) provides: “After the DNA testing conducted under this
section has been completed, the applicant may, pursuant to section
9545(b)(2) (relating to jurisdiction and proceedings), during the one-year
period beginning on the date on which the applicant is notified of the test
results, petition to the court for postconviction relief pursuant to section
9543(a)(2)(vi) (relating to eligibility for relief).”
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As there is no dispute surrounding the timeliness of Appellant’s petition, we
shall not discuss this issue further.
Appellant raises the following issues for our review:
Did the PCRA court err in finding that the new evidence
identifying “touch” DNA on the wooden board that belonged to
someone other than [Appellant] was “the same” as DNA evidence
presented at trial showing merely that blood from two stains on a
different part of the wooden board belonged to the victim?
Did the PCRA court compound that error by concluding,
[based upon] that erroneous finding, that all of the new DNA
evidence – including not only the new “touch” DNA on the board,
but also new DNA evidence showing blood from a second person
at the crime scene who was not [Appellant] – was “merely
cumulative” of evidence presented at trial?
Did the PCRA court err as a matter of law when it applied
the wrong legal standard and dismissed [Appellant’s] unopposed
PCRA petition on the basis that the new evidence did not by itself
“establish his actual innocence” and therefore would not have led
to a different outcome?
Appellant’s Brief at 3-4.
Appellant alleges in this appeal that the PCRA court made erroneous
findings of fact and conclusions of law in rejecting his claim that the results of
new DNA testing constitute after-discovered evidence which entitle him to
relief under 42 Pa.C.S.A. § 9543(a)(vi). As Appellant’s claims are closely
related, we address them in a single discussion.
Appellant first contends that the new DNA evidence is not the same as
the DNA evidence presented at his 2004 trial. See Appellant’s Brief at 26. He
specifically points to the wooden board and states, “the PCRA court repeatedly
relied on the proposition that the jury heard evidence at trial ‘that
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[Appellant’s] DNA was not on the wooden slat,’ and that the new DNA evidence
regarding the wooden board is the same as the DNA testing presented at
trial[.]” Id. at 26-27 (reproduced record citations omitted). Appellant avers,
“This flawed factual premise is not supported by the record and led, in turn,
to a flawed legal analysis of the second prong of the test for whether new
evidence warrants PCRA relief – namely, whether the new evidence is merely
corroborative or cumulative.” Id. at 27. He further asserts the jury never
heard that his DNA was not on the board, but rather, “the Commonwealth
used the two pre-trial DNA test results from the board merely to show that
[the victim]’s blood was on the board, and to support the inference that
someone had beaten her with the board.” Id. at 28. He states, “The results
of the DNA evidence heard by the jury merely confirmed that obvious
inference.” Id.
Appellant then turns to the new DNA evidence and alleges “it was the
first time that any evidence was presented either connecting, or eliminating
any particular person, let alone [him], from touching that area of the board.”
Id. at 29-30. Therefore, Appellant argues the court erred in finding that the
new evidence was merely cumulative because the “systematic exclusion of
[himself] from the board used to beat [the victim] is evidence of a completely
different character than the identification of [the victim]’s blood on the board.”
Id. at 30. He also suggests that the presence of an unknown person’s DNA
on the board “tends to show that a person held the board before leaving it at
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the crime scene, and that person was not” Appellant. See id. at 32 (emphasis
omitted). Additionally, Appellant highlights purported discrepancies with the
testing of Cannon’s sock, his boxer shorts, the blanket, and towel. See id. at
32-34. He contends that the new DNA evidence raises credibility questions
concerning Cannon’s testimony.
Appellant also contends the new DNA evidence would likely result in a
different outcome because the Commonwealth’s case centered on
circumstantial evidence, and thus, “the new evidence would have had a
substantial impact on the jury’s deliberation and would likely have changed
the outcome of the case.” Appellant’s Brief at 34. He asserts the PCRA court
relied upon the wrong standard when it stated that the new evidence could
not “establish his actual innocence.” See id. (citation omitted). Appellant
states that the PCRA requires only that the new evidence “would have changed
the outcome of the trial if it had been introduced.” See id. at 35, citing 42
Pa.C.S. § 9543(a)(2)(iv). He reiterates that the new DNA evidence shows
that someone touched the unstained end of the wooden board that was used
to beat the victim, and that he was not that person. Id. at 37.13 Lastly,
Appellant states the Commonwealth’s “concession” that the “new evidence
____________________________________________
13 Appellant also speculates that “the jury struggled to reach its verdict”
because it “deliberat[ed] over the course of two days and ask[ed] multiple
questions, including about lesser degrees of murder.” Appellant’s Brief at 38.
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would likely change the result should be afforded significant persuasive value
by this Court.” Id. at 39.
Our standard of review of an order denying PCRA relief is well-
established:
Our review of a PCRA court’s decision is limited to examining
whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error. We view the findings of the PCRA court and the evidence
of record in a light most favorable to the prevailing party. With
respect to the PCRA court’s decision to deny a request for an
evidentiary hearing, or to hold a limited evidentiary hearing, such
a decision is within the discretion of the PCRA court and will not
be overturned absent an abuse of discretion. The PCRA court’s
credibility determinations, when supported by the record, are
binding on this Court; however, we apply a de novo standard of
review to the PCRA court’s legal conclusions.
Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (citations and
quotation marks omitted).
To be entitled to PCRA relief, a petitioner must plead and prove by a
preponderance of the evidence, that his conviction or sentence resulted from
one or more of the circumstances enumerated in 42 Pa.C.S. § 9543(a)(2),
which provides, in relevant part:
(2) That the conviction or sentence resulted from one or more of
the following:
…
(vi) The unavailability at the time of trial of exculpatory
evidence that has subsequently become available and would
have changed the outcome of the trial if it had been
introduced.
42 Pa.C.S. § 9543(a)(2)(vi).
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To establish such a claim, a petitioner must prove that (1) the
evidence has been discovered after trial and it could not have been
obtained at or prior to trial through reasonable diligence; (2) the
evidence is not cumulative; (3) it is not being used solely to
impeach credibility; and (4) it would likely compel a different
verdict.
Commonwealth v. Cox, 146 A.3d 221, 228 (Pa. 2016) (citations and
quotation marks omitted). See also Commonwealth v. Small,
238 A.3d
1267, 1273 n.1 (Pa. 2020); Commonwealth v. D'Amato,
856 A.2d 806, 823
(Pa. 2004).
Here, the PCRA court found the following,
[Appellant] is unable to prove that the more recent DNA results
are not cumulative and would have likely compelled a different
verdict.
First, none of the claimed “new” DNA results are in fact new
and would be cumulative of the evidence already produced at trial.
[Appellant] makes much of the fact that he was excluded as a
contributor of DNA on the wooden slat. However, at trial, the jury
was, in fact, presented with evidence that [Appellant]’s DNA was
not on the wooden slat. Moreover, they also were informed that
he was not one of the contributors of the sperm on the towel and
blanket and that there were several unknown male contributors of
DNA on the towel and blanket.5 The only truly “new” piece of
information from the more recent DNA testing is that the DNA on
Cannon’s sock came from [the victim] and an unknown person.
Significantly, at trial, the jury learned that the DNA from Cannon’s
sock came from [the victim], but did not know about the unknown
person’s DNA. . . . Thus, the DNA results from the most recent
testing are cumulative of the DNA evidence that was produced
already at trial.
________________
5 [The victim] engaged in prostitution to support her drug
habit; therefore, it would not be strange for multiple men’s
semen to be on items in her home. Clearly, the jury did not
give this much weight.
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________________
[Appellant] argues that the newer DNA testing results,
specifically the lack of [his] DNA on the wooden slat, are not
“merely” cumulative, but are “of a higher grade or character than
what was previously presented on a material issue,” and therefore
support relief. See . . . Small, [189 A.3d at 975]. However, to
the contrary, this evidence is not of a higher grade or character.
In fact, it produced the very same result, namely, that
[Appellant]’s DNA was not found on the wooden slat. Thus, the
jury already was presented with this evidence at trial and,
knowing that [Appellant]’s DNA was not on the wooden slat, chose
to find him guilty of [the victim’s] murder.
Last, none of this claimed “new” DNA evidence is
exculpatory in any way and would not have changed the outcome
at trial. Pennsylvania courts have repeatedly held that negative
DNA results, meaning cases where a person’s DNA material is not
found, do not establish actual innocence. Commonwealth v.
Brooks, 875 A.2d 1141, 1147 (Pa. Super. 2005). “In DNA as in
other areas, an absence of evidence is not evidence of absence.”
Id. (quoting Commonwealth v. Heilman,
867 A.2d 542, 544
(Pa. Super. 2005)). See also Commonwealth v. Smith, 889
A.2d 582, 586 (Pa. Super. 2005) (“The absence of [the]
appellant’s DNA [in or on the evidence to be subjected to testing]
cannot be meaningful and cannot establish his actual innocence of
the murder.”). The fact that [Appellant]’s DNA was not found on
these items, particularly the wooden slat, is meaningless and does
not establish his actual innocence of killing [the victim] by
strangulation. What renders it even more meaningless is that the
jury was presented with this same evidence at trial ─ that
[Appellant]’s DNA was not detected at the crime scene ─ and the
jury still chose to find [him] guilty of [the victim’s] murder.
Furthermore, the medical examiner determined that [the victim’s]
cause of death was manual strangulation, not trauma caused by
the wooden slat. (N.T. 6/10/04, p. 55). Thus, whether
[Appellant] was excluded as a source of DNA on the wooden slat
in no way establishes his actual innocence since the wooden slat
was not even the murder weapon. The record demonstrates that
the jury convicted [Appellant] not based upon DNA evidence, but
rather upon the medical examiner’s conclusion that [the victim]
was strangled, by witness Thomas’ testimony that placed
[Appellant] near [the victim’s] house with a bag of stolen clothes,
and by [Appellant]’s own confessions to witness[es] Hunt and
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Bowie. Since there was overwhelming witness testimony at
[Appellant]’s trial, [he] is unable to show that his newer DNA
testing results would likely compel a different verdict. Thus, no
relief is due.
PCRA Ct. Op. at 8-10 (emphasis in original).
We agree with the trial court’s determination that the new DNA testing
is merely cumulative and was not likely to compel a different result. As such,
we affirm on the basis of its opinion, but set forth the following additional
analysis.
First, it is imperative to compare the “old” DNA evidence with the “new”
DNA evidence. The “old” DNA evidence revealed the following: (1) the two
male contributors of DNA found under the victim’s fingernails did not match
the DNA profiles of Appellant, Cannon, or Mayrant; (2) forensic tests were
unable to detect DNA deposits on the wooden bed slat or toy fire truck besides
the victim; (3) blood and semen testing of the blanket excluded Appellant,
Cannon, and Mayrant as contributors; (4) semen testing of the towel excluded
Appellant and Mayrant, but Cannon could not be excluded as a minor
contributor; and (5) analysis of Cannon’s boxer shorts (upper left rear), jeans
(upper right leg), and a sock (heel) revealed the victim as a contributor on his
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sock only, but contributors to the blood stains on his underwear and jeans
could not be definitively identified though the victim could not be excluded. 14
In comparison, the “new” DNA evidence now revealed that (1) testing
of the wooden slat presented the victim’s DNA, as well as the presence of
trace DNA from an unknown contributor who could not have been Appellant;
(2) there was the presence of a second, unknown contributor in the blood
stain found on Cannon’s sock and Appellant was excluded as a contributor;
(3) the victim was the source of blood detected on Cannon’s boxer shorts; and
(4) a fourth unknown contributor was found as to the semen stains on the
blanket.
Contrary to Appellant’s argument, when viewing the older and newer
evidence together, the testing provides no substantial change in the evidence
apart from (1) the victim’s blood officially being confirmed on Cannon’s boxer
shorts and (2) Appellant being excluded as the unknown contributor on the
wooden board. Nevertheless, with respect to that board, no other person’s
DNA was identified on the wooden slat beside the victim’s at the time of
Appellant’s trial or now. While the new DNA testing revealed the presence of
trace DNA from an unknown contributor who could not have been Appellant,
____________________________________________
14The locations of the blood stains were taken from Appellant’s amended PCRA
petition. See Petition for Post-Conviction DNA Testing Pursuant to 42 Pa.C.S.
§ 9543.1, 10/18/2012, at 6.
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this cannot be viewed as consequential concerning the outcome of the trial
when looking at the other evidence.
We emphasize the fact the victim’s cause of death was manual
strangulation. See N.T., 6/10/04, at 55. When reviewing the totality of the
circumstances in connection with this crucial fact, the “new” DNA evidence is
neither inculpatory nor exculpatory. The PCRA court centered its analysis on
this fact. Indeed, this “new” DNA evidence neither implicates Appellant nor
exonerates him. At best, it introduces evidence of a third-party contributor
with respect to Cannon’s clothing, but the jury was presented with similar
evidence at the 2004 trial as to possibility of other contributors, including
Cannon, and it still chose to find Appellant guilty.
Moreover, the fact that the “new” DNA evidence confirming the victim’s
blood on Cannon’s boxer shorts is not as outcome determinative as Appellant
suggests. The jury was presented with testimony that Cannon was the first
person to discover the victim’s body. He testified that he saw her body on the
couch and tried to wake her up by shaking her head. See N.T., 6/9/04, at
89-90. There was also testimony that the victim’s nose was caked with blood,
there was blood coming out of her ear, and blood around her as well as on the
floor. See id. at 21, 23. Based on this testimony, the jury could have inferred
that when Cannon reached down to touch the victim, her blood would most
likely end up on his clothing. As such, the confirmation of the victim’s DNA
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on Cannon’s boxer shorts is insignificant when looking at the testimony in
toto.
Likewise, the evidence of the unknown contributors on the blanket, the
towel, Cannon’s sock, and trace materials on the wooden board is also
insignificant in light of the fact that the jury was presented with the following
evidence: (1) the victim was a crack cocaine addict who allowed other addicts
to use drugs in her house in exchange for money; (2) she rented rooms to
boarders; and (3) she also engaged in prostitution in her house to support her
habit. See PCRA Ct. Op at 2. Therefore, the fact that there was evidence of
numerous unknown contributors at scene is not substantially indicative of
another perpetrator due to the transient nature of the home.
Furthermore, we call attention to the testimony of several eyewitnesses
whose cumulative testimony established that: (1) Appellant was in the vicinity
of the victim’s home around the time of the murder, (2) he was observed to
have significant scratches and injuries on his person; and (3) most
importantly, he confessed to killing the victim.15 We reiterate the following
testimony. Karen Thomas,16 the victim’s roommate, testified that on the night
____________________________________________
15 It also merit mentioning that Appellant attempted to escape custody on
two occasions. See Commonwealth v. Spotz, 84 A.3d 294, 316 (Pa. 2014)
(flight may constitute circumstantial evidence of consciousness of guilt).
16 To the extent there is a question concerning Thomas’ credibility because
she testified that the Commonwealth agreed to assist her in enrolling in a drug
rehabilitation program in exchange for her testimony, we note the jury heard
(Footnote Continued Next Page)
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of the murder, she saw Appellant two blocks from the victim’s home, and he
indicated that was where he was coming from but the victim had “put [him]
out.” See PCRA Ct. Op at 3. Dasheika Bowie, the mother of four of Appellant’s
children, testified that Appellant disappeared around the time of the murder
and after he returned, she saw that he had a black eye and a busted lip as
well as scratches on his neck. See id. He told Bowie that he had gotten into
a fight with a man and woman and that he hit them with a stick. See
id.
Lastly, Carolyn Hunt, the mother of two of Appellant’s children, testified that
in January of 2002, Appellant confessed to her that he murdered the victim.
See id. at 4. Appellant explained that an argument concerning their illegal
joint business turned into a physical altercation, in which Appellant punched
and choked the victim and she passed out several times. See id. Appellant
said he then strangled her, struck her with a wooden stick, and left. See id.
The testimony of these witnesses was significant. As the PCRA court properly
concluded, the record established that the jury convicted Appellant based on
the cause of death and the witness testimony, which placed Appellant near
the victim’s house on the night of the murder, as well as his own confessions
to two witnesses ─ not the DNA evidence. See PCRA Ct. Op.at 10.
____________________________________________
that testimony and still found her to be credible based on the conviction. See
Commonwealth v. Ramtahal,
33 A.3d 602, 607 (Pa. 2011) (stating “the
jury, which passes upon the weight and credibility of each witness’s testimony,
is free to believe all, part, or none of the evidence.”).
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Lastly, to the extent that Appellant argues that the PCRA court applied
the incorrect standard, we note the court properly opined Appellant was
required to demonstrate that the “more recent DNA results [we]re not
cumulative and would have likely compelled a different verdict.” PCRA Ct. Op.
at 8; see also id. at 10 (stating Appellant was “unable to show that his newer
DNA testing results would likely compel a different verdict.”). The court’s
reference to “actual innocence” concerned prior case law which held that
“negative DNA results, meaning cases where a person’s DNA material is not
found, do not establish actual innocence.” Id. at 9 (emphasis omitted), citing
Brooks, 875 A.2d at 1147. The court’s statement did not actually go to the
standard but to inferences that can or cannot be made regarding negative
DNA tests. As such, Appellant’s argument has no merit.
Therefore, we conclude the PCRA court properly found the “new” DNA
evidence was merely cumulative and not likely to compel a different result.
Accordingly, Appellant has not met the high burden of demonstrating that he
is entitled to PCRA relief.17
____________________________________________
17 We note when the Commonwealth first filed its appellee’s brief, it changed
course from its position at the PCRA proceeding level and stated that the
“PCRA court properly denied relief after reasonably determining that the new
DNA evidence would not have affected the verdict.” Commonwealth’s Brief,
2/10/21, at 20. One day later, it filed application to withdraw its brief, which
was granted. See Order, 2/26/21. It then filed a new appellee’s brief,
wherein it returned to its original position that Appellant was entitled to PCRA
relief based on the new DNA testing. See Commonwealth’s Brief, 2/26/21, at
2-24.
(Footnote Continued Next Page)
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Order affirmed.
President Judge Emeritus Stevens joins this Opinion.
Judge Olson files a Dissenting Opinion.
____________________________________________
We recognize the duty of the District Attorney is to seek justice and not
merely a conviction. However, a District Attorney also has a duty to be an
advocate for the citizens of the Commonwealth and not replace the findings
of the PCRA court which are consistent with the record. Under the facts of the
instant case involving first degree murder, it is clear from the record and the
PCRA court’s analysis, the conviction was based on the testimony of the
witnesses as well as on the cause of death and Appellant’s confession to two
witnesses. The DNA evidence was not the basis of the conviction.
The analysis set forth in Justice Dougherty’s concurring opinion in the
recent decision, Commonwealth v. Wardlaw, 249 A.3d 937 (Pa. 2021), is
insightful:
In its brief and at oral argument, the district attorney in this
matter joined the appellant in asking us to reverse the Superior
Court on the discrete legal issue presented. Had we adopted this
shared position — rather than overwhelmingly rejected it — we
would have tied the hands of all other prosecutors across the
Commonwealth. It seems to me that, to ensure the
Commonwealth’s interests are adequately represented
when a legal issue in an appeal has statewide implications
and a county district attorney does not intend to advocate
in opposition to the defense position, the district attorney
should be required to communicate that decision to the
Attorney General. Such a process would afford the Attorney
General the opportunity to make a more timely and reasoned
assessment of whether his involvement in the case is warranted,
either by means of intervention or as an amicus curiae.
Id. at 955 (emphasis added).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/2022
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