J-A06005-22
2022 PA Super 54
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIE JAMES HARDY :
:
Appellant : No. 430 WDA 2021
Appeal from the Order Entered March 9, 2021
In the Court of Common Pleas of Erie County
Criminal Division at CP-25-CR-0001647-1993
BEFORE: MURRAY, J., SULLIVAN, J., and COLINS, J.*
OPINION BY MURRAY, J.: FILED: March 30, 2022
Willie James Hardy (Appellant) appeals from the order denying his
petition for deoxyribonucleic acid (DNA) testing pursuant to Section 9543.1 of
the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541–9546. Upon
review, we deny Appellant’s petition for remand1 and affirm the order denying
Appellant’s petition for post-conviction DNA testing.
In 1993, Appellant was convicted of the murder of his co-worker and
former girlfriend (the Victim). Appellant and the Victim worked at Erisco
Industries (Erisco), a factory in Erie, Pennsylvania. On June 21, 1993,
Appellant strangled the Victim at Erisco after he and the Victim had completed
a night shift. He then placed the Victim’s body in her car, which was parked
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Appellant filed a Petition for Remand with this Court reiterating the argument
and requested relief set forth in his brief. See Petition for Remand, 12/20/21,
at 1-4; Appellant’s Brief at 28-45.
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at a loading dock. Appellant drove the car approximately one block, and
parked it by railroad tracks.
In a prior appeal, we recounted the following facts:
[S]everal Erisco workers testified about the night that the Victim
was murdered. First, Dale Teribery testified that he had waited
for the Victim to exit Erisco after their shift was over at 11:30 that
evening. Teribery explained that the Victim had gone to get her
car that had been parked in Loading Dock 3. [Appellant’s]
motorcycle was also parked in Loading Dock 3. Teribery sat in his
car smoking a cigarette, waiting for the Victim to leave. He
thought that he saw the Victim’s car drive down the street but,
after beginning to pursue the vehicle, he discovered that he was
mistaken. When he realized his mistake, Teribery drove around
[Erisco], keeping it in his sight as much as possible, hoping to see
the Victim’s car exit the loading dock. Teribery noticed that the
lights were still on in the loading dock, and the automatic door to
the loading dock was closed. [Erisco] was briefly out of Teribery’s
sight while he rounded a corner, but when he was able to see
[Erisco] again he noticed that the lights were out and the loading
dock door was closed; Teribery assumed that he had missed
seeing the Victim leave [Erisco]. Later, Teribery recalculated the
time that it took to circle [Erisco], and decided that he could not
have missed seeing either the Victim leaving or someone closing
the door to the loading dock.
Police timed Teribery as he re-enacted his drive around Erisco.
From this re-enactment, police determined that Teribery left
Erisco at approximately 11:45 p.m.
Erie Police Sergeant Stephen Franklin testified that he had been
in the vicinity of the Erisco facility on the night of June 21-22 while
on routine patrol. While driving past Erisco, Sergeant Franklin
noticed an individual leaving the Erisco facility on a motorcycle
that was towing a trailer. Sergeant Franklin estimated from his
logbooks that he observed this incident at 11:50 p.m.
Commonwealth v. Hardy, No. 1577 Pittsburgh 1996 (Pa. Super. Feb. 10,
1998) (unpublished memorandum at 4-6).
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Several people, including Appellant and the Victim, were working at
Erisco the night of the murder. N.T., 4/19/96, at 76-77, 151; N.T., 4/22/96
at 83; N.T., 4/24/96, at 69, 145-46. Appellant was the crew leader,
responsible for assigning duties and closing Erisco at the end of the shift. N.T.,
4/19/96, at 89-90. The uncontradicted trial testimony demonstrated that with
the exception of Appellant and the Victim, all employees who had clocked out
around 11:30 P.M., exited Erisco, and all except Mr. Teribery drove away.
N.T., 4/19/96, at 67-68, 82-84; N.T., 4/22/96, at 83-84, 93-96; N.T.,
4/24/96, at 69, 145-46.
With respect to the Victim’s clothing:
Both the shirt and the jeans that the Victim was wearing were
extremely dirty. Teribery testified that the Victim’s clothing had
not been that dirty when she completed her shift. Kaye Irwin,
another co-worker who worked the second shift on June 21 with
the Victim, also testified that the Victim’s clothes had not been
that dirty when the shift was over. The floor of the Erisco plant is
covered with a greasy dirt from the machines used therein. …
Hardy, supra at 6. The Commonwealth’s forensic expert testified the
dirt on Erisco’s floor contained an unusual mixture of elements, and
the samples taken from the Victim’s clothing matched the mixture.
N.T., 4/26/96, at 17-26, 78-80.
Several Erisco employees confirmed that normally, only the front of their
clothing from their thighs to stomach, and forearms to hands, got dirty. N.T.,
4/19/96, at 80-81, 103-04; N.T., 4/23/96, at 186-88, 191, 203, 219; N.T.,
4/24/96, at 169-70. They also testified that some employees wore protective
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gear, including bibs, aprons, booties and gloves, and Appellant was wearing
gloves the night of the murder. N.T., 4/22/96, at 81-82, 89, 106, 108; N.T.,
4/23/96, at 188, 224. Co-worker Kaye Irwin testified the Victim habitually
washed before leaving work and had done so the night of her murder. N.T.,
4/22/96, at 93, 99, 102.
In addition,
Mr. Lyall Bills, maintenance foreman at Erisco, testified that the
accordion gate of Loading Dock 3 had not been locked on the night
of June 21st. A bolt that screws into this gate was missing. An
octagon headed, three-eighth inch, threaded bolt was found lying
next to the Victim in the back seat of her car. Mr. Bills testified
that this bolt appeared to be the one missing from the accordion
gate. In addition, police detective David Bagnoni took the bolt
from the Victim’s car and attempted to thread it onto the
accordion gate at Loading Dock 3; the bolt fit into the gate
perfectly.
Mr. Bills also testified that a certain string, identified later as the
cord that had been around the Victim’s neck, was used to wrap
boxes at Erisco and could be found in a room off Loading Dock 3.
He stated that he had never seen that type of twine or string any
place other than the Erisco plant. In fact, a forensic expert, Mr.
John Robertson, testified that the twine around the Victim’s neck
was identical to the samples taken from Erisco.
The Commonwealth also presented the testimony of Ms. Angela
Stone who, at the time of the murder, lived behind the Erisco
plant. Ms. Stone testified that, on the night of the murder,
immediately following the late news, she walked to a nearby store.
Ms. Stone did not notice anything amiss on the way to the store
but, on her way home, she noticed a Blazer parked by the railroad
tracks behind Erisco. She returned home at approximately ten
minutes before midnight. Ms. Stone also saw the same car in the
same location the following day, surrounded by police officers.
This was the Victim’s car, and the Victim was discovered inside.
Hardy, supra at 6-8.
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Appellant established at trial that the area where the Victim’s car was
found was trash-strewn, and frequented by prostitutes and their customers,
as well as residents of the surrounding buildings who parked their cars in the
area. N.T., 4/23/96, at 256-57, 259-60; N.T., 4/24/96, at 56-58. In addition,
evidence from the Victim’s car had been contaminated by the Victim’s current
boyfriend, Kenneth Logan, co-workers who found her body, and emergency
personnel and police. N.T., 4/19/96, at 192-98; N.T., 4/23/96, at 108-11,
244-45, 248; N.T., 4/24/96, at 23, 31. Also, there was a delay of more than
45 minutes from when police arrived at the scene and when they secured the
area, allowing for the possible contamination of the car by bystanders. N.T.,
4/24/96, at 31, 36, 39-40.
When police questioned Appellant, he was unable to detail the procedure
he used to close the factory the night of the murder. Trial Court Opinion,
3/9/21, at 3. Appellant’s timecard showed he punched out at 11:31 P.M., but
did not activate Erisco’s alarm until 11:52 P.M. Id. at 4. Police conducted
three separate walkthroughs of Appellant’s closing procedure, and ascertained
Appellant had failed to account for 15 minutes of his time. Id. Appellant also
gave conflicting versions of events that night. N.T., 4/29/96, at 23-45.
Appellant relayed to Detective Bagnoni that after the shift ended and the other
workers had left, he and the Victim were “the only two in the building.” Id.
at 25-26. According to Appellant, he was aware the Victim had a new
boyfriend. Id. at 29. However, in the days prior to and on the night of the
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murder, Appellant begged the Victim to marry him, but she refused. Id. at
23-32.
On December 10, 1993, a jury convicted Appellant of aggravated assault
and first-degree murder. The trial court sentenced Appellant to life in prison.
Appellant filed a direct appeal challenging the admission of hearsay testimony
regarding the Victim’s suspicion that Appellant had vandalized her car in the
weeks prior to her murder. Finding merit to this issue, this Court vacated
Appellant’s convictions, and remanded for a new trial. Commonwealth v.
Hardy, 663 A.2d 248 (Pa. Super. Apr. 11, 1995) (unpublished memorandum),
appeal denied,
668 A.2d 1124 (Pa. 1995).
Following Appellant’s second trial, a jury convicted Appellant of first-
degree murder (although the trial court dismissed the aggravated assault
charge). The trial court sentenced Appellant to life in prison. Appellant filed
an appeal raising issues relating to sufficiency, recusal, and evidentiary
rulings. In particular, Appellant challenged the trial court’s preclusion of
evidence of other crimes committed in the area around Erisco. This Court
found no merit to Appellant’s claims, and affirmed the judgment of sentence.
Commonwealth v. Hardy, 714 A.2d 1084 (Pa. Super. Feb. 10, 1998)
(unpublished memorandum), appeal denied,
727 A.2d 128 (Pa. 1998).
In November 1999, Appellant filed a timely first PCRA petition, which
the PCRA court dismissed without a hearing. Appellant appealed and this
Court affirmed. Commonwealth v. Hardy, 777 A.2d 502 (Pa. Super. Mar.
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8, 2001) (unpublished memorandum), appeal denied, 782 A.2d 542 (Pa.
2001).
On July 15, 2020, Appellant, through counsel, filed the instant petition
for post-conviction DNA testing. Appellant sought re-testing of items that had
been tested previously, all of which excluded Appellant as a DNA contributor.
Petition for Post-Conviction DNA Testing, 7/15/20, at 1, 11-13. He also sought
first-time DNA testing of various items found in and around the Victim’s car.
See id. at 18-19.
The Commonwealth filed a response on September 14, 2020, arguing
that the petition was untimely and Appellant failed to make a prima facie case
that DNA testing would prove his innocence. Commonwealth Response,
9/14/20, at 17-20. On November 2, 2020, Appellant filed a reply. On March
9, 2021, the trial court denied the petition without a hearing. 2 This appeal
followed. Both the trial court and Appellant have complied with Pa.R.A.P.
1925.
On appeal, Appellant presents the following issues:
1. [Appellant], who is serving a life without parole sentence, filed
a DNA testing motion in 2020 after being unrepresented for
decades. Did the trial court err when it held that [Appellant’s]
petition for DNA testing was untimely, even though the DNA
testing statute does not have any specific timing
requirements?
____________________________________________
2 The trial court was not required to issue Pa.R.Crim.P. 907 notice. See 42
Pa.C.S.A. § 9543.1(d)(2).
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2. [Appellant] sought DNA testing of both evidence that had been
subjected to limited forensic testing decades ago in 1993 and
of evidence, including the piece of twine likely used to murder
[the Victim], that has never been tested. Did the trial court
err in concluding that, with respect to both previously-tested
and never-before-tested evidence, [Appellant] did not meet
the threshold requirement of 42 Pa.C.S.A. § 9543.1(a)(2) of
showing that newer DNA testing technology exists that could
prove substantially more accurate and substantially probative
results even though [Appellant] presented expert evidence
about testing advances?
3. The Supreme Court and this Court have acknowledged the factintensive nature of an analysis of the timeliness of a post-conviction DNA testing petition, and [Appellant] presented
expert evidence about testing advances. Did the trial court err
in denying [Appellant’s] petition without holding an evidentiary
hearing?
Appellant’s Brief at 3-4.
When reviewing an order denying a request for post-conviction DNA
testing, we employ the same standard of review as when we review the denial
of PCRA relief; i.e., we determine whether the ruling is supported by the record
and free of legal error. Commonwealth v. Gacobano, 65 A.3d 416, 419
(Pa. Super. 2013).
Requests for post-conviction DNA testing are governed by 42 Pa.C.S.A.
§ 9543.1, which provides in relevant part:
(a) Motion.--
(1) An individual convicted of a criminal offense in a court
of this Commonwealth may apply by making a written
motion to the sentencing court at any time for the
performance of forensic DNA testing on specific evidence
that is related to the investigation or prosecution that
resulted in the judgment of conviction.
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(2) The evidence may have been discovered either prior to
or after the applicant’s conviction. The evidence shall be
available for testing as of the date of the motion. If the
evidence was discovered prior to the applicant’s conviction,
the evidence shall not have been subject to the DNA testing
requested because the technology for testing was not in
existence at the time of the trial or the applicant’s counsel
did not seek testing at the time of the trial in a case where
a verdict was rendered on or before January 1, 1995, or the
evidence was subject to the testing, but newer technology
could provide substantially more accurate and substantially
probative results, or the applicant’s counsel sought funds
from the court to pay for the testing because his client was
indigent and the court refused the request despite the
client’s indigency.
…
(6) The motion shall explain how, after review of the record
of the applicant’s trial, there is a reasonable possibility …
that the testing would produce exculpatory evidence that
would establish:
(i) the applicant’s actual innocence of the offense for
which the applicant was convicted;
…
(c) Requirements.--In any motion under subsection (a), under
penalty of perjury, the applicant shall:
…
(2)(i) in a sworn statement subject to the penalties under
18 Pa.C.S. §§ 4902 (relating to perjury) and 4903 (relating
to false swearing), assert the applicant’s actual innocence
of the offense for which the applicant was convicted and that
the applicant seeks DNA testing for the purpose of
demonstrating the applicant’s actual innocence; and
…
(3) present a prima facie case demonstrating that the
identity of or the participation in the crime by the
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perpetrator was at issue in the proceedings that
resulted in the applicant’s conviction and sentencing;
and
(ii) DNA testing of the specific evidence,
assuming exculpatory results, would establish
... the applicant’s actual innocence of the
offense for which the applicant was convicted;
…
(d) Order.—
(1) Except as provided in paragraph (2), the court shall
order the testing requested in a motion under subsection (a)
under reasonable conditions designed to preserve the
integrity of the evidence and the testing process upon a
determination, after review of the record of the applicant’s
trial ...
…
(2) The court shall not order the testing requested in a
motion under subsection (a) if, after review of the record of
the applicant’s trial, the court determines that there is no
reasonable possibility … that the testing would produce
exculpatory evidence that:
(i) would establish the applicant’s actual innocence of
the offense for which the applicant was convicted[.]
42 Pa.C.S.A. § 9543.1.
Appellant first disputes the trial court’s conclusion that his petition was
untimely. Appellant’s Brief at 28-36. Appellant cites no case law to support
his contention that his petition, filed approximately 20 years after his
judgment of sentence became final, is timely. Id. Rather, Appellant
challenges the trial court’s reliance on Commonwealth v. Edmiston, 65 A.3d
339 (Pa. 2013), overruled on different grounds by Commonwealth v.
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Small, 238 A.3d 1267 (Pa. 2020), and Commonwealth v. Walsh,
125 A.3d
1248 (Pa. Super. 2015). Id. at 31-36.
The Commonwealth counters that Appellant “could have — and should
have — sought DNA testing earlier than twenty-four years after his
conviction.” Commonwealth Brief at 37-38. The Commonwealth points out
that Appellant did not seek DNA testing after the denial of his PCRA petition
in 2000. Id. at 38. The Commonwealth claims Appellant, “seeks to have a
second bite at the apple with regards to testing the evidence.” Id.
“Section 9543.1(d) requires the petitioner to make a timely request for
DNA testing.”3 Walsh, 125 A.3d at 1254-55. “In analyzing timeliness for
purposes of Section 9543.1(d)(1)(iii), the court must consider the facts of
each case to determine whether the applicant’s request for post-conviction
DNA testing is to demonstrate his actual innocence or to delay the execution
of sentence or administration of justice.”
Id. at 1255.
In finding Appellant’s petition untimely, the trial court explained:
Though DNA testing was available and performed on some items
of evidence prior to [Appellant’s] trials, [Appellant] did not request
DNA testing on the remaining items. Notably, [Appellant’s] DNA
was not found on items tested. Despite [Appellant’s] averment of
advances in many areas of technology including DNA testing,
[Appellant] waited 27 years after his first conviction in 1993 and
24 years after his second conviction in 1996 to request any DNA
testing.
____________________________________________
3 “The PCRA’s one-year time bar does not apply to motions for the
performance of forensic DNA testing under Section 9543.1.” Walsh, 125 A.3d
at 1252 (citations omitted).
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…
Since his first and second trial, [Appellant] has been aware of the
evidence he now wishes to be tested. … No new evidence has
come to light. [Appellant] relies on advances in DNA testing.
However, Commonwealth v. Walsh states, “[T]he statute does
not make advances in technology an excuse for failing to timely
request DNA testing.” Commonwealth v. Walsh, [125 A.3d at
1256]. [Appellant’s] attempts to distinguish the facts in this case
from those in Edmiston are unavailing.
Trial Court Opinion, 3/9/21, at 15-16. We agree.
In Edmiston, the defendant was sentenced in 1989 to death for the
murder of a two-year-old girl. Edmiston, 65 A.3d at 342-44. After
unsuccessfully filing two PCRA petitions, the defendant in 2009 — more than
19 years after his conviction — filed a petition for post-conviction DNA testing.
Id. at 344. In deeming the petition untimely, our Supreme Court highlighted
that the defendant did not seek additional DNA testing at trial; or in 2002,
when the post-conviction testing provisions were enacted; or in his second
PCRA petition.
Id. at 357-58. The Supreme Court concluded:
Appellant’s guilty status has not changed since his 1989
conviction; advances in technology allegedly occurring after that
date do not explain why he, if truly innocent, did not seek
immediate testing, or, at the very least, testing available as
technology improved during the intervening years, rather than
languishing on death row, all the while being supposedly innocent.
Id. at 358.
Similarly, in Walsh, the defendant was convicted of murder. His
conviction was affirmed on appeal, and he subsequently filed three
unsuccessful PCRA petitions. Walsh, 125 A.3d at 1251. In 2014, more than
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10 years after his conviction, he filed a petition for post-conviction DNA
testing, which the trial court denied. Id. On appeal, we affirmed the trial
court’s determination that the petition was untimely.
Id. at 1258. We
observed that the evidence he sought to test was “discovered and available”
before trial, when DNA testing was available, and further, he had not sought
DNA testing in his PCRA petitions.
Id. at 1257-58.
Instantly, we agree with the trial court that Edmiston is analogous. The
items Appellant seeks to test were available at trial, and some of the items
were tested and the test results excluded Appellant as a contributor. Appellant
did not request the additional testing before or after either of his trials. Also,
Appellant did not raise the issue of DNA testing in his PCRA petition. As noted,
the post-conviction testing provisions were enacted in 2002. Appellant did
not request testing after the enactment. While Appellant was unrepresented
following the denial of his request for PCRA relief, he has proffered no
explanation as to why he did not seek DNA testing, pro se or otherwise,
between 2002 and 2020, when he filed the instant petition. In sum, Appellant
has not explained why, “if truly innocent, [he] did not seek immediate testing,
or, at the very least, testing available as technology improved during the
intervening years, rather than languishing [in prison], all the while being
supposedly innocent.” Edmiston, 65 A.3d at 358. This issue does not merit
relief.
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In his second issue, Appellant maintains the trial court erred in finding
he had not met the requirements of 42 Pa.C.S.A. § 9543.1(a)(2). Appellant
avers there is “newer DNA testing technology … that could provide
substantially more accurate and substantially probative results as to
previously-tested evidence.” Appellant’s Brief at 37. Appellant contends that
using newer DNA technology to test the “never-before-tested evidence …
could yield the identity of the true perpetrator in this case.” Id. at 43.
The Commonwealth asserts Appellant did not meet the requirements of
42 Pa.C.S.A. § 9543.1(a)(2) because he “knew of the existence of the
evidence throughout the entirety of the 1993 trial, 1996 trial, and [his] 2000
PCRA petition, and chose not to subject the evidence to testing.”
Commonwealth Brief at 30 (emphasis omitted). The Commonwealth points
out that, at both trials, the defense strategy was to challenge forensic testing
demonstrating the Victim was killed inside the factory, as well as findings
concerning the time of death; Appellant never asserted that the DNA testing
was insufficient. Id. at 32-33.
The trial court agreed with the Commonwealth in concluding Appellant
was not entitled to post-conviction DNA testing as to the previously tested
items or untested items. Trial Court Opinion, 3/9/21, at 13-14. The court
emphasized that the previously tested items excluded Appellant. Id. at 13.
The court stated:
This is not a case where prior DNA results were inconclusive or
could not exclude [Appellant] as a possible contributor of DNA.
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Under these circumstances, even in the face of newer technology,
[Appellant] has failed to satisfactorily demonstrate how DNA re-testing of these items could provide “substantially more accurate
and substantially more probative results.”
Id. at 13-14.
With respect to the untested items, the court opined Appellant had not
met the threshold requirements. It noted that the items were all known before
trial; DNA testing was available at the time of trial; the verdict was rendered
after January 1, 1995; and the court did not refuse funds for DNA testing. Id.
at 14.
Appellant also claims he established a prima facie case of actual
innocence. Appellant’s Brief at 36-44. To succeed on a petition for DNA
testing “[t]he text of the statute set forth in Section 9543.1(c)(3) and
reinforced in Section 9543.1(d)(2) requires the applicant to demonstrate that
favorable results of the requested DNA testing would establish the applicant’s
actual innocence of the crime of conviction.” Walsh, 125 A.3d at 1254–55
(citation omitted). “The statutory standard to obtain testing requires more
than conjecture or speculation; it demands a prima facie case that the DNA
results, if exculpatory, would establish actual innocence.” Id.; see also
Commonwealth v. B. Williams, 35 A.3d 44, 50-51 (Pa. Super. 2011).
Further, “this Court has repeatedly held that the mere absence of a
defendant’s DNA, by itself, does not satisfy the ‘actual innocence’ requirement
under section 9543.1(d)(2)(i).” Commonwealth v. Tyler,
234 A.3d 750,
754 (Pa. Super. 2020) (footnote and citations omitted).
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Appellant’s argument is flawed. Appellant views the facts in his favor,
rather than the light most favorable to the Commonwealth as verdict winner.
See Appellant’s Brief at 4-25. Moreover, while Appellant argues that newer
DNA testing is more accurate, he fails to articulate why results from newer
testing would be probative. See id. at 36-44. Most importantly, Appellant
fails to explain how the results of DNA testing would demonstrate his actual
innocence. See id.
The record reveals considerable circumstantial evidence of Appellant’s
guilt. As discussed above, Appellant was the last person seen with the Victim
after he and the Victim clocked out of work at approximately 11:30 P.M. The
Victim’s car containing her body was moved from the loading dock between
11:30 P.M. and midnight. Appellant set the Erisco alarm at 11:52 P.M., and
forensic evidence, specifically the dirt on the Victim’s clothing, indicated she
was strangled inside the factory.
Appellant requests testing on evidence taken from the Victim’s body,
car, and debris in the area surrounding the car. Appellant’s Brief, at 36-40;
Petition for Post-Conviction DNA Testing, 7/15/20, at 18-19. However,
Appellant fails to establish the relevance of such evidence, where trial
testimony established the Victim was killed at the factory, not in the area
where her car was moved. Also, as Appellant’s counsel demonstrated by
questioning various witnesses, the area around the Victim’s car was trash-
strewn, frequented by prostitutes and customers, and used for parking by
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tenants of nearby buildings. Appellant fails to show a compelling nexus
between the requested testing and the murder. Notably, the trial court had
excluded evidence of prior crimes/criminals in the area unless Appellant could
connect the evidence to the murder. Appellant failed to do so. See Hardy,
supra at 15-17 (affirming the trial court’s exclusion of the evidence).
As underscored at trial, both the exterior and interior of the Victim’s car,
including the Victim’s car keys, were contaminated by at least two of the three
individuals who found her body, as well as emergency personnel and police.
N.T., 4/19/96, at 192-98; N.T., 4/23/96, at 108-11, 244-45, 248; N.T.,
4/24/96, at 23, 31. While the presence of Appellant’s DNA would be
inculpatory, its absence would not be exculpatory. See Tyler, supra. As for
items inside the car, some had spilled from the Victim’s purse. N.T., 4/19/96,
at 195-98; N.T., 4/23/96, at 108-10, 248. Appellant showed no nexus
between the remaining materials (such as used tissues, an ad from a pizza
restaurant, and an empty soda can) and the murder.
As to the remaining items: the Victim’s fingernail clippings, clothing,
rape kit, garage-door bolt, and twine used to strangle the Victim, Appellant
likewise failed to establish that testing (or re-testing) would establish a prima
facie case of innocence. The Victim’s current boyfriend testified he and the
Victim had sex the day of the murder, which DNA testing confirmed. N.T.,
4/23/96, at 114. Testing of fingernail scrapings showed only the Victim’s DNA,
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and the forensic evidence, at best, was ambiguous as to whether the Victim
sustained defensive injuries. N.T., 4/22/96, at 214-16.
With respect to the garage door bolt, the twine, and the Victim’s clothes,
neither the presence nor absence of Appellant’s DNA would be meaningful.
Many people, including Appellant, touched the garage door bolt when opening
and closing the door at the loading dock. See N.T., 4/19/96, at 94, 207, 209;
N.T., 4/23/96, at 41, 50. Trial testimony also demonstrated the twine could
be found on the floor of the factory, in boxes near the loading dock, and was
touched by many people. See N.T., 4/23/96, 35-37, 47, 54-55, 193-96, 204-
05. The testimony also highlighted that employees regularly wore protective
gear, including gloves. N.T., 4/22/96, at 81-82, 89, 106, 108; N.T., 4/23/96,
at 188, 224. Appellant was seen wearing gloves the evening of the murder;
thus, the absence of his DNA would not demonstrate his actual innocence.
See N.T., 4/22/96, at 81-82, 89, 106, 108; N.T., 4/23/926, at 188, 244; see
also Tyler, 234 A.3d at 754. As Appellant offers only “conjecture and
speculation,” he cannot establish a prima facie case of actual innocence.
Accordingly, the trial court did not err in finding Appellant failed to meet the
requirements of §§ 9543.1(c)(3) and 9543.1(d)(2). See Walsh, 125 A.3d at
1254–55.
Accordingly, after careful consideration and review, we discern no error
in the trial court’s factual findings and legal conclusions. We thus affirm the
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J-A06005-22
denial of Appellant’s petition seeking post-conviction DNA testing,4 and deny
Appellant’s petition for remand.
Petition for remand denied. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/30/2022
____________________________________________
4 Because of our disposition of Appellant’s first two issues, we decline to
address his third issue concerning the trial court’s denial of his petition without
a hearing.
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