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2023 PA Super 80
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: PANELLA, P.J., OLSON, J., DUBOW, J., KUNSELMAN, J., NICHOLS,
J., MURRAY, J., McLAUGHLIN, J., McCAFFERY, J., and SULLIVAN,
J.
DISSENTING OPINION BY OLSON, J.: FILED MAY 10, 2023
Respectfully, I must dissent. I am unable to agree with the Majority
that the PCRA1 court correctly concluded that the new DNA2 evidence proffered
by Appellant, Derek Murchison (Appellant), was merely cumulative and
unlikely to compel a different result. I also believe that the PCRA court relied
upon inapplicable case law in determining that Appellant was not entitled to
relief. Under such circumstances, our well settled standard of review compels
reversal of a PCRA court order. See Commonwealth v. Laboy, 230 A.3d
1134, 1137 (Pa. Super. 2020) (order denying collateral relief is reviewed to
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1Like the Majority, I use the acronym “PCRA” to refer to the Post-Conviction
Relief Act found at 42 Pa.C.S.A. §§ 9541-9546.
2The term “DNA” refers to deoxyribonucleic acid, a molecule that carries and
encodes the human genome. See Merriam-Webster’s Collegiate Dictionary,
11th Ed., 2003.
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assess whether PCRA court’s determination is supported by the evidence of
record and is free of legal error).
Recently, our Supreme Court confirmed that “`after-discovered
evidence’ is a substantive basis for relief under the PCRA, applicable where
the petitioner pleads and proves by a preponderance of the evidence that his
conviction resulted from 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.” Commonwealth v. Small,
238 A.3d 1267, 1273 n.1 (Pa. 2020) (citations and internal quotation marks
omitted), citing 42 Pa.C.S.A. § 9543(a)(2)(vi). “[T]o obtain relief based upon
exculpatory, after-discovered evidence, the petitioner must establish 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.” Small, 238 A.3d at 1273 n.1,
quoting Commonwealth v. D'Amato,
856 A.2d 806, 823 (Pa. 2004). In
determining whether after-discovered evidence is of such nature and
character that it would likely compel a different verdict if a new trial were
granted, a court considers various factors, including the integrity of the
after-discovered evidence and the overall strength of the evidence supporting
the conviction. See Commonwealth v. Padillas,
997 A.2d 356, 365 (Pa.
Super. 2010), appeal denied,
14 A.3d 826 (Pa. 2010).
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The PCRA court concluded that Appellant’s after-discovered evidence
claim lacked merit since, in its view, recent DNA test results merely replicated
the evidence placed before the jury at Appellant’s original trial and because
the new evidence was not likely to compel a different result. See PCRA Court
Opinion, 6/25/20, at 8. I disagree. I begin my analysis by recounting the
PCRA court’s findings with respect to the DNA evidence introduced at
Appellant’s original 2004 trial and then move to the court’s findings with
respect to the new DNA evidence offered by Appellant.
In its Rule 1925(a) opinion, the PCRA court offered the following
summary of the forensic crime scene evidence presented to the jury at
Appellant’s original trial.
➢ [Michael Cannon, Cornell Mayrant, and Appellant] were all
excluded as the source of any DNA material [recovered] from
under [the victim’s, Linda Willis,] left and right hand fingernails.
➢ The DNA material found under Willis’ right [] hand fingernails was
consistent with a mixture of Willis’ [DNA] and [that from] at least
one unknown male contributor.
➢ [The] DNA material found under Willis’ left [] hand fingernails was
consistent with a mixture of [Willis’ DNA] and [that from] at least
one other unknown male contributor who was not the same male
[whose genetic material was recovered from Willis’] right hand.
➢ The blood samples from a toy fire engine and the wooden slat (two
samples were taken from each item in different areas) showed
that Willis was the source of the DNA material.
➢ A blanket from the sofa, Willis’ sweater, and a towel found at the
scene were tested for DNA. [Appellant], Mayrant, and Cannon
were all excluded as the sources of DNA ([recovered from] blood
and [semen] deposits) detected on the sweater and blanket.
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There were three unknown [males whose genetic material was
recovered from] the towel.
➢ Willis was included as a contributor to the blood stains on
Cannon’s boxer shorts, socks, and pants.
➢ No sperm was [recovered from] Willis’ vagina or rectum.
PCRA Court Opinion, 6/25/20, at 4-5.
After recounting the forensic evidence introduced at Appellant’s 2004
trial, the PCRA court then presented its assessment of the new DNA test
results. According to the PCRA court, the new DNA tests showed:
➢ [Appellant] is excluded as a source of DNA [material] on the
wooden [board used to bludgeon Willis].
➢ The DNA on Cannon’s sock is a mixture from at least two
contributors and Willis is the contributor of the major
component. [Appellant] is excluded as a contributor.
➢ [Appellant] is excluded as a contributor of the sperm found on
the towel and blanket. The cuttings from the towel reveal[]
two unknown male DNA profiles. The cuttings from the blanket
reveal four more unknown male [DNA] profiles.
Id. at 6.
Starting with the PCRA court’s assessment of the DNA evidence
recovered from Cannon’s boxer shorts, socks, and jeans, I note initially that
the PCRA court observed that Willis’ inclusion as a contributor to the blood
stains found on Cannon’s boxer shorts, socks, and jeans was presented to the
jury at Appellant’s 2004 trial. See id. at 4-5. Subsequently, the court noted
that new DNA test results included within Appellant’s amended PCRA petition
filed on July 5, 2016 showed that “[t]he DNA on Cannon’s sock is a mixture
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from at least two contributors and Willis is the contributor of the major
component. [Appellant] is excluded as a contributor.” Id. at 6.
These observations are only partly accurate. The PCRA court correctly
found that DNA analysis performed before Appellant’s 2004 trial confirmed the
victim as a contributor to a blood stain found on the heel of Cannon’s sock.
Moreover, the PCRA court correctly found that new tests performed in 2015
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 DNA
Lab Report, 6/15/15, at 1 (two contributors to blood stain; see also DNA Lab
Report, 7/6/15, at ¶ 2 (excluding Appellant as contributor). Nevertheless, the
PCRA court’s findings with respect to Cannon’s jeans and his boxer shorts are
not accurate. DNA testing procedures available before Appellant’s 2004 trial
could not definitively identify contributors to the blood stains found on
Cannon’s jeans or his boxer shorts. At that time, Willis could not be
excluded as a source of the blood found on Cannon’s underwear. Willis was
not definitively identified as a contributor to the blood stain found on Cannon’s
boxer shorts until more recent DNA testing was conducted in 2015. No
evidence in the record identifies the source of any blood stains found on
Cannon’s jeans. Thus, contrary to the PCRA court’s findings, the jury at
Appellant’s 2004 trial was not confronted with evidence showing that the
victim was included as a contributor to the blood stains found on Cannon’s
boxer shorts and jeans.
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Moreover, the PCRA court’s factual findings with respect to the wooden
slat used to bludgeon the victim do not account for the entirety of the
uncontested new evidence. The PCRA court correctly noted that, prior to the
2004 trial, the victim was a confirmed source of DNA material recovered from
the wooden board used in the attack. Id. at 5. Additionally, the court
accurately observed that new forensic tests excluded Appellant as a
contributing source of DNA found on the board. Id. at 6. However, the court
never acknowledged, much less assessed, new DNA tests showing the
presence of DNA from an unknown contributor on the wooden board, a fact
that the jury at Appellant’s first trial never heard.
My colleagues in the Majority do not refute these errors and omissions
in the PCRA court’s findings. Instead, they defend them. The Majority views
the victim’s blood on Cannon’s boxer shorts as “insignificant,” explaining he
could have gotten her blood on his undergarments when he attempted to wake
her. Majority Opinion at 24-25. Moreover, while the Majority acknowledges
and agrees that “new DNA testing revealed the presence of trace [genetic
material on the wooden slat] from an unknown contributor who could not have
been Appellant,” the Majority dismisses this revelatory discovery as
inconsequential, in view of the other evidence. Majority Opinion at 25
(emphasis added). After reviewing the record in this case, including the errors
and omissions by the PCRA court, I am unable to share the confidence of my
learned colleagues.
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The new evidence here is new, not cumulative.3 And the new and
undisputed evidence offered by Appellant placed the victim’s blood on the
boxer shorts of her housemate and occasional lover and, in addition, placed
the genetic material of unknown individuals on Cannon’s sock and a weapon
used in a fatal assault. I would conclude that such new evidence is
exculpatory.
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3 The Majority says it agrees with the PCRA court’s conclusion that Appellant’s
new DNA test results were “merely cumulative,” see Majority Opinion at 22,
but its subsequent analysis substantially undermines this assessment. With
respect to the wooden board, the Majority concedes that Appellant’s new DNA
evidence “revealed [] the presence of trace DNA from an unknown
contributor who could not have been Appellant[.]” Id. at 23 (emphasis
added). As for Cannon’s sock, the Majority admits that the new DNA evidence
“introduce[d] evidence of a third-party contributor” who was not the victim
or Appellant. Id. at 24 (emphasis added). Lastly, as to Cannon’s
undergarments, the Majority acknowledges that the new DNA test results
“confirm[ed] the victim’s blood on Cannon’s boxer shorts[.]” Id. (emphasis
added).
The Majority cannot have it both ways: newly-obtained test results that
reveal, introduce, and confirm novel facts that were not presented at a prior
trial logically constitute new evidence, not cumulative proof. Moreover, as I
shall explain below, the new test results here introduced arguments and
claims that Appellant could not (and did not) make at his 2004 trial; hence,
any finding that the new evidence is “merely cumulative” is inconsistent with
the unrefuted circumstances presented in this appeal and our prior
precedents. See Padillas, 997 A.2d at 365 (noting that evidence is more
likely to be deemed cumulative or corroborative where it merely supports
claims the defendant previously made and litigated at a prior trial). Lastly,
since no physical evidence linked Appellant to the crime scene and his only
connection to the killing came from incriminating statements he made to
individuals who did not witness the relevant events, the Commonwealth’s case
in 2004 was largely a circumstantial one and our cases hold, in such instances,
that “[n]ew evidence to support a defendant's claim of innocence is less likely
to be deemed cumulative if the conviction is based largely on circumstantial
evidence.”
Id. (emphasis added).
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Given these conclusions, I am unable to agree that Appellant’s
after-discovered evidence does not entitle him to relief. In this case, no
physical evidence linked Appellant to the crime scene; hence, Appellant’s only
connection to Willis’ killing came through his inculpatory, out-of-court
statements to individuals who did not witness the relevant events, two of
whom were Appellant’s former romantic partners and one of which
acknowledged receiving assistance from the Commonwealth in obtaining
placement into drug treatment in exchange for her testimony. Moreover, as
stated, the PCRA court rendered factual determinations that were either
inconsistent with the record or failed to account for uncontested facts. Finally,
as I shall explain more fully below, the PCRA court misapprehended the legal
standard applicable to an after-discovered evidence claim, appearing to insist
that Appellant prove his actual innocence where he needed only to
demonstrate, by a preponderance of the evidence, that a different verdict was
likely. See Commonwealth v. Payne, 210 A.3d 299, 304 (Pa. Super. 2019)
(en banc) (“[A] petitioner must only establish by a preponderance of the
evidence that the exculpatory after-discovered evidence would have changed
the outcome of the trial if it had been introduced.”) (internal quotation marks
omitted), appeal denied,
218 A.3d 1201 (Pa. 2019).
In my view, Appellant’s after-discovered evidence, together with the
facts which the PCRA court failed to apprehend properly, would likely have a
significant impact on a fact-finder’s perception of this case. In contrast to the
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PCRA court’s observations, the jury at Appellant’s 2004 trial heard only that
Willis was “not excluded” as a source of DNA material recovered from Cannon’s
underwear. In this posture, the jury could have found that the evidence was
unrelated to the case and attributed little significance to it. New DNA analysis
offered by Appellant definitively identified Willis as a contributor to the blood
stain found on the inside waistband of Cannon’s boxer shorts. Confirmation
of the victim’s blood on the undergarment of her part-time sexual partner,
Cannon, leaves almost no room to find that the deposit is unrelated to this
case. As such, the new evidence implicated a substantially more compelling
alternate suspect than was present at Appellant’s first trial and, in this way,
supplied a factual predicate for the argument that the killing resulted from a
romantic or domestic dispute.4
Similarly, new results from tests performed on Cannon’s sock and the
wooden board would likely have a significant differentiating impact on the
outcome of a second trial. Prior to Appellant’s 2004 trial, Willis was a known
source of DNA found on Cannon’s sock and the wooden board used to assault
____________________________________________
4 Recall that Cannon testified that he twice walked by the victim’s corpse as it
lay on the sofa, thinking she was merely asleep. When police investigators
arrived, however, they noted that the victim was naked from the waist down
and that her underwear, together with a bloody wooden board, a bloody toy
fire truck, and a trampled newspaper, all lay within close proximity of both the
victim and the sofa. Consider, for a moment, the arguments that might now
be possible and the new picture that might emerge from Cannon’s testimony
if an accomplished criminal defense attorney could confront him with vigor
about the discovery of the victim’s blood on the inside of his underwear against
the backdrop of this horrific crime scene.
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her. New testing, however, confirmed the presence of DNA from unknown
contributors in genetic material recovered from Cannon’s sock and the wooden
board. Although these new facts were uncontested, the PCRA court and the
Majority, in large measure, fail to explore and assess their implications. The
PCRA court expressed no opinion about the presence of DNA from an unknown
contributor on the wooden board and equated new evidence about an
unknown contributor to stains on Cannon’s sock to evidence the jury heard at
Appellant’s 2004 trial. See PCRA Court Opinion, 6/25/20, at 8. But new and
incontrovertible proof concerning both known and unknown parties at a violent
crime scene would present a treasure trove of ammunition to a skilled trial
advocate representing a defendant who could not be connected by physical
evidence to a particular offense. Such uncontested evidence would open new
lines of persuasive and factually compelling attacks upon the Commonwealth’s
witnesses, claims, and theories since the new facts raise legitimate questions
about Appellant’s involvement in the crime or, alternatively, the level and
nature of his intent, if the jury were to conclude that Appellant participated in
Willis’ killing.
The PCRA court’s failure to carefully consider the implications of
Appellant’s new evidence and the probable impact it would have in the context
of a purely circumstantial case is not only troubling but also likely led the court
to underestimate the novel nature and potential consequences of Appellant’s
new proof. New evidence which merely confirms that an individual was not
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present at a crime scene may not be very compelling when assessing whether
such evidence would result in a different verdict at a second trial. But that is
not the picture that emerges from the new evidence proffered in this case.
The new evidence here definitively placed Willis’ DNA on the waistband of
Cannon’s undergarments, in contrast with merely an outer garment as in
Appellant’s first trial. This introduced the possibility of a violent confrontation
resulting from a domestic disturbance. Appellant’s after-discovered evidence
also confirmed the presence of unknown individuals whose DNA was recovered
from blood stains found on Cannon’s sock and trace materials found on the
wooden board used to bludgeon Willis. Appellant’s new evidence thus
extended the known locations of the victim’s DNA and brought to light the
crime-scene presence of previously unknown individuals. Because the
evidence was exculpatory and probative of material facts that were unknown
and unaddressed at the 2004 trial, the newly discovered proof supports an
order granting a new trial. See Commonwealth v. Small, 189 A.2d 961,
973-974 (Pa. 2018) (evidence tending to prove material facts different from
those addressed in prior trial can support after-discovered evidence claim).
My conclusions are supported by a prior en banc decision issued by this
Court. In Payne, supra, the defendant entered a general guilty plea to
murder in 1977. Payne,
210 A.3d at 300. Thereafter, the case proceeded to
a degree of guilt hearing before three judges, who found the defendant guilty
of first-degree murder. The verdict of the judges rested upon the
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Commonwealth's theory that the defendant murdered the victim while
committing rape. Id. at 302. In 2014, DNA testing excluded the defendant
as a contributor to seminal fluid recovered from the victim.
Id. at 301. The
defendant petitioned for collateral relief on the strength of the 2014 DNA tests.
Id. The PCRA court denied relief after concluding that the DNA evidence was
unlikely to change the results of the degree of guilt hearing since other
evidence supported Payne’s first-degree murder conviction.
Id. at 301-302.
In rejecting the PCRA court's analysis, the en banc panel in Payne
explained a petitioner’s burden in establishing that after-discovered DNA
evidence would likely alter the outcome of a trial if it had been introduced.
We said:
When evaluating whether a petitioner has established by a
preponderance of the evidence that the after-discovered evidence
would likely produce a different verdict, a court must examine the
persuasiveness of the new evidence assuming the fact-finder
believes it. Commonwealth v. Fiore, 780 A.2d 704, 713-714
(Pa. Super. 2001). This inquiry includes evaluations of (1) the
nature of the new evidence; (2) whether, and to what extent, the
new evidence is consistent or inconsistent with other trial
testimony; and (3) whether, and to what extent, the new evidence
is consistent or inconsistent with documentary evidence. Id.
Our Supreme Court has examined several case-specific factors,
including: (1) the prosecution's theory at the original trial, and
the difficulty of making this argument in light of the new evidence;
and (2) the prosecutor's closing remarks, which may demonstrate
the importance of the new evidence. See Commonwealth v.
Bulted, 443 Pa. 422,
279 A.2d 158, 161-62 (1971)[.]
Payne,
210 A.3d at 302.
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Our case law does not require that a petitioner establish that
after-discovered evidence proves his innocence beyond a reasonable doubt.
Id. at 304. Instead, as I explained above, “a petitioner [need] only establish
by a preponderance of the evidence that the exculpatory after-discovered
evidence would have changed the outcome of the trial if it had been
introduced.”
Id. “[T]he focus [of our analysis] is on whether [a petitioner]
has proven by a preponderance of the evidence that the after-discovered
evidence would likely have changed the Commonwealth's theory of the
case[.]”
Id. at 305. Hence, relief may be awarded even when the record
contains other evidence that supports a conviction and even where it is
possible that a second trial will result in re-conviction. See
id. at 304-305.
In its closing argument to the 2004 jury, the Commonwealth placed
great weight on the contention that the physical evidence recovered from the
crime scene did not point to any attacker other than Appellant. In fact, the
Commonwealth suggested that the jury would have to seriously question
Appellant’s culpability if the DNA evidence confirmed only the crime scene
presence of the victim and some third person (not Appellant). See N.T.,
6/15/04, at 99. That is precisely what Appellant’s after-discovered DNA
evidence has done. Thus, given the new evidence proffered by Appellant, one
of the Commonwealth’s central arguments in favor of guilt in 2004 is now
unavailable. The Majority’s affirmance of the PCRA court’s ruling, premised
primarily on other evidence supporting Appellant’s conviction and the
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testimony of witnesses who did not see the fatal assault on the victim, conflicts
with our prior en banc statement in Payne. Because Appellant’s new DNA
evidence refuted the Commonwealth’s central theory of guilt as it was
presented to the jury in 2004, I would hold that Appellant met his burden of
proving, by a preponderance of proof, that after-discovered evidence would
likely have changed the verdict in this case.
Lastly, the PCRA court’s uncertainty about the applicable legal standard
placed a burden upon Appellant which was likely inconsistent with our
jurisprudence. The record establishes that the DNA evidence introduced at
Appellant’s original, 2004 trial did not show the presence of his genetic
material on the wooden slat or on Cannon’s sock. New DNA testing, however,
placed the genetic material of unknown persons on the wooden slat and
Cannon’s sock. These new facts are not contested. See Majority Opinion at
23; PCRA Court Opinion, 6/25/20, at 8 (“The only truly ‘new’ piece of
information from the more recent DNA testing is that the DNA on Cannon’s
sock came from Willis and an unknown person. Significantly, at trial, the
jury learned that the DNA from Cannon’s sock came from Willis, but did not
know about the unknown person’s DNA.”) (emphasis added).
Rather than weighing the potential impact of this new evidence within
the context of the extant record, the PCRA court cited our prior decisions in
Commonwealth v. Brooks, 875 A.2d 1141 (Pa. Super. 2005) and
Commonwealth v. Heilman,
867 A.2d 542 (Pa. Super. 2005), in which we
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said that negative DNA results, meaning cases where a person’s DNA material
is not found, do not establish actual innocence.5 See PCRA Court Opinion,
6/25/20, at 9; see also Brooks, 875 A.2d at 1147, quoting Heilman,
867
A.2d at 544. Relying on our prior decisions, the PCRA court concluded that
Appellant’s new evidence was “meaningless” and did not establish his actual
innocence, since his DNA was not found on the wooden slat or Cannon’s sock.
See PCRA Court Opinion, 6/25/20, at 9.
My position is not that Brooks and Heilman lend no support for the
principles addressed in those cases. My concern, instead, is that the
proposition for which they were cited by the PCRA court has no application in
this case. The issues raised in the context of this appeal do not involve
threshold requests for DNA testing under the PCRA. Moreover, Appellant’s
new evidence did not simply show that his DNA was not found on the wooden
slat or Cannon’s sock. Rather, his new evidence confirmed the presence of
genetic material from unknown persons on those items. Most importantly,
while the 2004 jury heard evidence which showed that Appellant’s genetic
material was not recovered from any items present at the crime scene, it did
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5 Brooks and Heilman involved requests for DNA testing pursuant to 42
Pa.C.S.A. § 9543.1(c), which requires a prima facie showing that DNA testing
of specific evidence, assuming exculpatory results, would establish actual
innocence. See 42 Pa.C.S.A. § 9543.1(c). The decisions do not purport to
establish guidelines for entitlement to relief on a claim asserting exculpatory
after-discovered evidence.
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not hear evidence which affirmatively placed the genetic material shed by
unknown persons onto Cannon’s sock and the wooden slat. Appellant’s new
evidence was exculpatory and, at the very least, suggested his “innocence”
because it brought alternative culprits into the picture. As such, Brooks and
Heilman do not, in my view, foreclose relief, as the PCRA court appears to
have concluded. See PCRA Court Opinion, 6/25/20, at 9 (“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 Willis 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 [Appellant] guilty
of Willis’ murder.”). In short, not only did the PCRA court cite inapplicable
case law, it did so for the purpose of drawing a largely irrelevant conclusion.
Because Appellant came forward with exculpatory, noncumulative
evidence that was unavailable to him at the time of his original trial in 2004,
I would vacate the order denying his petition for collateral relief and remand
for a new trial.
Judges Dubow and Kunselman join this Dissenting Opinion.
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