J-S06036-23
2023 PA SUPER 69
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAYMOND CHARLES ROWE :
:
Appellant : No. 649 MDA 2022
Appeal from the PCRA Order Entered April 21, 2022
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0004108-2018
BEFORE: STABILE, J., NICHOLS, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED: APRIL 18, 2023
Raymond C. Rowe (“Appellant”) appeals from the order entered in the
Court of Common Pleas of Lancaster County denying his motion for post-
conviction DNA testing, filed pursuant to 42 Pa.C.S.A. § 9543.1 of the Post
Conviction Relief Act (“PCRA”), in which he requested DNA collection and
testing of potential Touch DNA samples from various items recovered from
the murder scene of his victim. After careful consideration, we affirm.
The present matter stems from the December 21, 1992, rape and
murder of Christi Mirack in her Lancaster County home. During her autopsy,
swabs were taken from her body and sent to the Pennsylvania State Police for
testing. Although a DNA profile was obtained and uploaded into a nationwide
database of offenders and unknown subjects, nearly 26 years would pass until
a match was found.
____________________________________________
* Former Justice specially assigned to the Superior Court.
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Specifically, on May 19, 2018, Appellant was identified as a strong viable
suspect after a genetic analysis of the DNA profile collected from the carpet
sample provided a significant match to a national database sample belonging
to him. Affidavit of Probable Cause at ¶ 24. The Pennsylvania State Police
initiated an undercover investigation of Appellant that included a surreptitious
acquisition and DNA testing of a water bottle and chewing gum he had used
and discarded. The DNA results matched those obtained from the sperm
fraction found on the carpet. Subsequent testing of swab samples of semen
and sperm taken from Ms. Mirack’s body showed all samples came from one
contributor and matched the DNA profile taken from the water bottle and
chewing gum. Id. at ¶¶ 26-29. A final, post-arrest DNA profile obtained from
a buccal swab of Appellant also matched DNA taken from the carpet and swabs
from Ms. Mirack’s body.
The PCRA court sets forth the pertinent post-arrest facts and procedural
history, as follows, with this Court’s supplementation provided in brackets:
On January 8, 2019, the Petitioner-Appellant tendered a guilty
plea [pursuant] to a negotiated plea agreement. The Petitioner
pleaded guilty to Criminal Homicide, three (3) counts of Rape by
Forcible Compulsion, two (2) counts of Involuntary Deviate Sexual
Intercourse—Forcible Compulsion, and Burglary. 18 Pa.C.S.A. §§
2501(a); 3121(1); 3123(A-1); and 3502(A), respectively. The
Court accepted the negotiated plea agreement and the
[Petitioner-Appellant] received life in prison without the possibility
of parole with a consecutive period of incarceration of sixty (60)
to one hundred and twenty (120) years pursuant to the terms
negotiated in the plea agreement. . . . No direct appeal to the
Superior Court was filed. The Petitioner’s sentence became final
on February 8, 2019.
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On November 21, 2020, the [Petitioner-Appellant], through his
attorney, filed an untimely Motion for Post-Conviction Relief
(“PCRA”) and a Post-Conviction DNA Testing Petition. Although
the PCRA Petition was filed nine (9) months beyond the PCRA time
requirement pursuant to 42 Pa.C.S.A. § 9545(b), the one-year
time bar does not apply to motions for the performance of forensic
DNA testing. 42 Pa.C.S.A. § 9543.1. [1]
...
[Specifically, [Petitioner-Appellant]’s motion for DNA testing
sought Touch DNA testing on several items recovered from the
murder scene in Ms. Mirack’s home. These items included a
wooden cutting board believed to have been used to batter the
victim, a toaster that was typically placed atop the cutting board
and presumably moved by the assailant, and items of Ms. Mirack’s
clothing that were forcibly removed from her body during the
apparent rape and/or used to asphyxiate her.]
The PCRA Court held an evidentiary hearing [on [Petitioner-Appellant]’s motion for Post-Conviction DNA testing] that spanned
three days: August 26, 2021, September 2, 2021, and September
8, 2021.
...
[At the DNA hearing, the following relevant facts regarding the
1992 murder were recounted:]
On . . . December 21, 1992, [the victim, Ms. Christy
Mirack, was found dead in her home.] Ms. Mirack’s
roommate [had] left the residence [earlier that
morning] at 7:00 a.m. for work[, after observing Ms.
Mirack getting ready to head to work and preparing
Christmas presents for her co-workers and students.
N.T. 1/8/9, at 6;] Affidavit of Probable Cause at ¶ 14.
____________________________________________
1 In Commonwealth v. McLaughlin, 835 A.2d 747 (Pa. Super. 2003), we
explained that a motion for DNA testing under section 9543.1 was not a PCRA
petition but, instead, a separate instrument that “allows for a convicted
individual to first obtain DNA testing which could then be used within a PCRA
petition[.]”
Id. at 750, quoting Commonwealth v. Weeks,
831 A.2d 1194,
1196 (Pa. Super. 2003). Accordingly, such a motion is not subject to the
PCRA's one-year time bar for petitions under Section 9545. Accord
Commonwealth v. Tyler,
234 A.3d 750, 753 (Pa. Super. 2020).
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Neighbors heard “a high pitched, unexpected scream”
coming from Ms. Mirack’s apartment between 7:10
and 7:20 am. Id. at ¶ 15. At around 9:20 a.m.,
Lancaster County-Wide Communications received a
phone call from [the Principal of Ms. Mirack’s school]
who arrived at her home to perform a wellness check
due to her absence from work and found her
unconscious on the living room floor. Id., at ¶ 5-7.
Within minutes, first responders arrived at the
residence and observed Ms. Mirack lying on her back
with facial injuries, clearly deceased with a wooden
cutting board located next to her head. Id. at ¶ 10.
Packages were strewn about the foyer and living room
area which is consistent with a struggle taking place
just in front of the front door of the residence. Id. at
¶ 13.
Upon further observation, the clothes on [Ms.
Mirack’s] torso were pushed upwards on her body and
the only piece of clothing [she] was wearing from the
waist down was socks. Id. at ¶ 10. Ms. Mirack’s pants
had likely been forcibly removed as evidenced by the
inside button laying on the floor near her body. Id.
at ¶ 12. Notably, among the limited amount of
clothing that she was still wearing was a brown leather
jacket and burgundy gloves; a factor that led
investigators to opine that she was attacked as she
was preparing to leave her home. Id. at ¶ 13.
An autopsy was then conducted the following day on
December 22, 1992, by Dr. Wayne Ross, Forensic
Pathologist of Lancaster County. Id. Dr. Ross
determined that the abrasions and bruising on Ms.
Mirack’s lower body were consistent with being a
victim of sexual assault. Id. at ¶ 16. Sperm and
semen were also found on and in her body. Id.
Several swabs collected from Ms. Mirack’s body during
the autopsy, including but not limited to vaginal, anal,
oral, back, and leg swabs, as well as [section of carpet
appearing stained with bodily fluids directly below Ms.
Mirack’s body] were packaged and sent to the
Pennsylvania State Police DNA Laboratory for DNA
analysis. Id. at ¶ 17. Dr. Ross ruled Ms. Mirack’s
cause of death as strangulation and the manner of
death as a homicide. Id. at ¶ 16.
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Upon review of discovery and the autopsy report, trial counsel also
opined [at the DNA hearing] that [the defense team had
concluded] that a sexual assault had occurred. Specifically, when
asked on direct examination if the [defense team determined that]
discovery supported the theory of consensual sex between Ms.
Mirack and the [Petitioner-Appellant], trial counsel answered, “no,
not that we determined.” N.T., DNA Hearing, 9/2/21, at 151. On
cross-examination, when asked about Defense theories and the
discovery in this case, trial counsel again stated that “consensual
doesn’t seem really compatible with the absolute beating and
trauma that [Ms. Mirack] suffered.” N.T. at 170-71.
...
[Regarding Appellant’s alleged confession, the record reflects that
the] day after the [Petitioner-Appellant]’s arrest on June 26, 2018,
a capital case team assembled by the Defender Association that
consisted of three attorneys, a paralegal, and an investigator went
to the prison to meet with the [Petitioner-Appellant]. N.T. at 140,
142. While discussing the circumstances of his arrest in a private
room within the prison, the [Petitioner-Appellant] [indicated to the
Defender Association investigator that he was in a relationship
with Ms. Mirack and that one morning before work he went to her
apartment where they began having sex. (Def. DNA Exhibit 13,
at 4). At some point, however, Ms. Mirack wanted the sexual
encounter to stop. (Def. DNA Exhibit 13, at 4). According to the
investigator, when Appellant reached that point in describing his
encounter with Ms. Mirack, he simply stated,] “I snapped. I just
snapped.” N.T. at 123-124, 126. This confession was then
disclosed to trial counsel immediately after the interview and then
memorialized in the investigator’s report written the following day.
N.T. at 133-34, 138.
[Petitioner-Appellant] himself at the DNA hearing explained that
the reason why he was going to see Ms. Mirack on the morning of
her murder was to not only have sex but also break things off.
N.T., DNA Hearing, 8/26/21, at 55. [the Defender Association
investigator’s] report also indicates the [Petitioner-Appellant] told
him that on the day of Ms. Mirack’s murder, his intention was to
speak with her in hopes of breaking it off between them. N.T.,
DNA Hearing, 9/2/21, at 132. Specifically, the [Petitioner-Appellant] informed [the Defender Association investigator] that
he was upset that Ms. Mirack was going to tell his wife about the
affair and he went to her home to break things off. N.T. at 133.
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Trial counsel also testified that on several occasions the
[Petitioner-Appellant] indicated to him personally as well as cocounsel that he was guilty of this offense. N.T. at 145. The
[Petitioner-Appellant] indicated his guilt with counsel during case
discussions when he explained he and Ms. Mirack had a
consensual, ongoing relationship, and “he did it and he snapped.”
Id. Although the [Petitioner-Appellant] now denies the
confession, the description provided by trial counsel at the DNA
hearing as well as in reports conducted the day after his arrest
mirror some of the same details provided by the [Petitioner-Appellant] himself.
...
[At the DNA hearing, testimony indicated that] [i]n the days
leading up to [Petitioner-Appellant]’s guilty plea, trial counsel
informed the [Petitioner-Appellant] of what was going to be said
at the hearing and provided guidance on what he should expect
from the process. N.T. at 158. Trial counsel described the
[Petitioner-Appellant] as a person who is “very bright” and
“engaging” and a person who is “very calculating and weighs
options.” N.T. at 146. Counsel also stated that the [Petitioner-Appellant] was frightened by the possibility and certainty of a
death notice being filed and was concerned about the living
conditions of death row. Id.
[In considering Petitioner’s petition for DNA testing, the PCRA
court also factored statements made at] Appellant’s guilty plea
hearing. Prior to the plea acceptance, the Petitioner
acknowledged that he understood all of the charges he was
pleading guilty to and he understood that the Commonwealth
would have to prove he committed each charge beyond a
reasonable doubt. N.T., 1/8/19, at 4-6. Petitioner also
acknowledged that he signed the last page of the guilty plea
colloquy form. N.T. at 14.
The Commonwealth then read aloud a comprehensive recitation
of the facts of the case that included the following: “and [Ms.
Mirack] never showed up for work because shortly after [her
roommate] left the apartment the defendant forced his way into
her home, attacked her, physically attacked her, sexually
assaulted her both anally, vaginally, and orally with his penis and
then strangled her causing her death.” N.T. at 7. The
Commonwealth further informed the trial court that at the time of
the offense, the Petitioner was living four (4) miles away from Ms.
Mirack and was working at a company located down the road from
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her residence. N.T. at 10-11. Finally, the Commonwealth stated
that multiple witnesses saw a car that matched the description of
the Petitioner’s vehicle the morning of the murder. N.T. at 11.
...
When given the opportunity to address the court [at the guilty
plea], trial counsel stated, “He is here. He has admitted that he
did it. He’s told us, he has told other people since his arrest that
he, in fact, is guilty of this charge.” N.T. at 18. Counsel further
commented, “he is here today saying, I am the one who did this.
Back then I was not the same person that I am now.” Id.
Following statements made by counsel, the Petitioner voluntarily
addressed the court and stated, “I’d like to apologize to the Mirack
family. . . . And to the family, I can’t imagine what you’re going
through. I apologize.” N.T. at 22.
...
At the conclusion of the [Post-Conviction DNA Testing] hearing,
the PCRA Court ordered both parties to file briefs[, and both
parties complied].
PCRA Court Opinion, 4/21/22, at 1-2, 10-11, 12, 13.
By the PCRA Court’s Order of April 12, 2022, it denied Appellant’s motion
for Post-Conviction DNA Testing. First, it determined that Appellant failed to
meet the statutory threshold requirements of Section 9543.1(a)(2), see infra,
because he had never attempted to test the items prior to his guilty plea
despite the availability of effective Touch DNA collection methods and analysis.
The PCRA court reasoned that even assuming the requested Next Generation
Sequencing (“NGS”) test that Appellant seeks is better able to distinguish
between multiple contributors in a DNA sample than is the standard STR test,
neither his expert witness nor the Commonwealth’s could assert definitively
that NGS would represent a more reliable or advantageous test compared to
STR under the circumstances of this case because the items had never been
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tested in the first place. As such, the PCRA court concluded that Appellant
failed to establish that effective Touch DNA collection and analysis of the items
in question was unavailable at the time of his guilty plea.
In the alternative, the PCRA court concluded that Appellant had failed
to carry his burden under Section 9543.1(c)(3)(ii)(A) of presenting a prima
facie case that the requested DNA testing of the specific evidence, assuming
exculpatory results, would establish his actual innocence.2 In this regard, the
PCRA court explained:
The Petitioner baldly asserts his actual innocence, however, the
foundation of this claim rests on baseless excuses and denials that
have been conjured up, years later, for his benefit. Petitioner
alleges that he is not on a fishing expedition and “the items to be
tested in this case could conclusively establish who the real
perpetrator of these crimes is.” Petitioner’s Motion in Support of
DNA Testing, November 30, 2021, p. 26. At least five (5) other
suspects, however, were investigated and all were cleared via
DNA through testing of the blood and semen in the living room
area. Id. at 169-70.
A murder suspect may be convicted on wholly circumstantial
evidence. Commonwealth v. Heilman, 867 A.2d 542, 547 (Pa.
Super. 2005). The trial court in the instant matter is satisfied that
____________________________________________
2 The PCRA court properly observed that Section 9543.1(c)(3)(ii)(A) is
reinforced by Section 9543.1(d)(2)(i), which provides in relevant part:
(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 guilty
plea, the court determines that there is no reasonable probability[] 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(d)(2)(i).
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there is no reasonable probability that DNA testing would produce
the exculpatory evidence needed to establish the Petitioner’s claim
of actual innocence. Upon review of the record and consideration
of the circumstantial evidence of the crime scene, the Petitioner’s
multiple confessions, and the non-disputed facts and apology at
the guilty plea, the trial court finds that the Petitioner’s claim of
actual innocence is not satisfied.
PCRA Court Opinion, at 9
In this timely appeal, Appellant raises two questions for this Court’s
consideration:
1. Did the PCRA Court err by concluding that Appellant had not made a
showing that his actual innocence could be established by DNA
testing of specific items pursuant to 42 Pa.C.S. § 9543.1?
2. Did the PCRA Court err by concluding that the newly formulated
methods for conducting “touch DNA” analysis and “Next Generation”
testing do not satisfy the requirements of 42 Pa.C.S. § 9543.1?
Brief of Appellant, at 4.
Our standard of review in this case is as follows:
Generally, the trial court's application of a statute is a question of
law that compels plenary review to determine whether the court
committed an error of law. When reviewing an order denying a
motion for post-conviction DNA testing, this Court determines
whether the movant satisfied the statutory requirements listed in
Section 9543.1. We can affirm the court's decision if there is any
basis to support it, even if we rely on different grounds to affirm.
Commonwealth v. Walsh, 125 A.3d 1248, 1252–53 (Pa. Super. 2015)
(citation omitted).
We begin by addressing Appellant’s second issue, as it is dispositive of
the present appeal. Requests for post-conviction DNA testing are governed
by statute at 42 Pa.C.S.A. § 9543.1(a) which sets forth, inter alia, three
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alternative threshold requirements that an applicant must establish to obtain
requested DNA testing:
§ 9543.1. Postconviction DNA testing
(a) Motion.—
(1) An individual convicted of a criminal offense in a court of this
Commonwealth and serving a term of imprisonment or awaiting
execution because of a sentence of death may apply by making a
written motion to the sentencing court 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.
(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.
42 Pa.C.S.A. § 9543.1(a).
Our jurisprudence interpreting subsection 9543.1(a)(2) has recognized
that an applicant’s motion for DNA testing of evidence discovered prior to the
applicant’s conviction meets the threshold requirement with respect to
untested evidence only if “it was not already DNA tested because (a)
technology for testing did not exist at the time of the applicant's trial; (b) the
applicant's counsel did not request testing in a case that went to verdict before
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January 1, 1995; or (c) 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. Commonwealth v. Williams, 35 A.3d 44, 49
(Pa. Super. 2011). See also Walsh,
125 A.3d at 1254 (quoting
Commonwealth v. Perry,
959 A.2d 932 (Pa. Super. 2008) (holding PCRA
counsel was not ineffective for declining to pursue post-conviction DNA testing
where technology for testing existed at time of trial, verdict came after
January 1, 1995, and court had not refused request for funds for testing;
consequently, appellant could not have met his threshold burden under
Section 9543.1(a)(2)).
Herein, Appellant posits that the requested Touch DNA collection and
testing methods are presently accepted as sound science in criminal forensics
but were not available at the time of his 2019 guilty plea. At the PCRA hearing,
Appellant advanced this position through the expert testimony of Ms.
Katherine Cross, a forensic biologist and the technical DNA leader at Guardian
Forensic Sciences in Abington, PA.
According to Ms. Cross, the requested Touch DNA collection method,
called “combination method”, relates to how skin cells are gathered for
traditional Short Tandem Repeat, or “STR”, analysis. The “combination
method” of collecting skin cells simply takes collection methods such as
scraping, vacuuming, or swabbing that traditionally have been used in
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isolation and now employs them together at the outset to gather a larger
sample of cells for testing. N.T., 8/26//21, at 17-20.
On cross-examination, however, Ms. Cross clarified that “the
combination method” really does not constitute a new method but simply
applies multiple existing methods together at the beginning of a collection.
N.T. at 46. Whereas the traditional process consists of employing each
traditional collection method separately and then combining the samples at
the end, the combination method applies all traditional methods at the
beginning of the process to minimize interpretational issues when conducting
analysis. N.T. at 46-47.
The requested Touch DNA testing method addressed by Ms. Cross is
Next-Generation Sequencing, or NGS, which goes beyond the traditional STR
testing of a DNA fragment. Whereas STR looks at DNA fragment repeats to
determine identity, NGS testing looks at the building block base pairs within
the repeats and sequences them. According to Ms. Cross, NGS enables the
analyst to differentiate between contributors to a Touch DNA sample: “So
what [NGS] allows us to do is potentially determine more accurately the
number of contributors to a sample and if there are any differences in those
contributors so that we don’t have this problem of overlapping like we have
now [with STR].” N.T. at 21.
Ms. Cross agreed, however, that in 2018 and 2019 Touch DNA STR
testing “was being utilized in cases effectively” and was available to Appellant
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and his defense team to use on all relevant crime scene items. N.T. at 35.
She also conceded that NGS is not needed in a case where there are strong
DNA links available, and she opined that traditional STR testing is reliable in
testing samples involving two contributors and even three contributors where
one contributor is prominent. N.T. at 36. When asked whether NGS is
indicated in every case, she answered, “Oh, absolutely not.” N.T. at 36, 42.
In further testimony, Ms. Cross stated that “the only technological
improvement in Touch DNA testing was the approval and acceptance of the
next-generation sequencing technology for samples that have low levels of
DNA.” N.T., 9/8/21 at 271. She added that compared to a body fluid sample,
there is significantly less DNA in a touch sample. N.T. at 272. Asked if NGS
is something that could be useful in a case like the present one, Ms. Cross
replied, “It could be. It’s – any testing, the best you could say is it could be[,]
until you see what the results are. It is available and is another technology
that can be used.” N.T. at 273.
The Commonwealth’s cross-examination of Ms. Cross sought to develop
further the discussion regarding when a NGS test is appropriate, asking Dr.
Cross whether NGS testing “would have, again, only been implicated should
they not have been able to get a good STR result?” N.T. at 275. Dr. Cross
answered,
[NGS] is something that can either supplement STR results that
were partial, or it is something that can be used for low level in
place of STR. If you have a good solid STR result, then, no, you
would not need to proceed to the next generation sequencing.
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...
With Touch DNA samples, I would expect it to be low-level and
potentially partial profiles, not full independent profiles.
N.T. at 276.
The PCRA court followed up on this answer by asking questions that
underscored how the lack of any STR testing on the items in question impaired
her ability to opine whether NGS would have been needed in this case:
PCRA Court: . . . I understand what you’re saying is if these
items had been submitted in 2018 and for whatever reason they
were not able to obtain samples that readily resulted in a DNA
profile being obtained, that there is [sic] scientific advances since
then that might enable somebody to get a sequence from them
today?
Ms. Cross: That’s correct.
PCRA Court: But we don’t know whether or not DNA could
have been obtained from any of them because they’ve [the items]
never been submitted for analysis?
Ms. Cross: That’s correct.
N.T. at 276-277.
The Commonwealth’s expert, Michael Biondi, the Quality Assurance
Program manager for the Pennsylvania State Police Forensic DNA Division,
also answered the PCRA court’s questions regarding the significance of the
absence of prior Touch DNA testing of the items in question:
Mr. Biondi: I’m not entirely sure, because all of those items
could have been tested with STR technology, the same technology
we’re using that’s widely in use in the forensic community now.
N.T at 267.
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In that respect, Mr. Biondi noted that Appellant’s lawyers could have
submitted the items for reliable Touch DNA testing but elected not to do so.
N.T. at 269. When the PCRA court asked him if there was anything newly
available that would make Touch DNA testing any more productive in this case
than it would have been back in 2018, Mr. Biondi answered, “Not to my
knowledge, but it’s hard to say because you don’t know what the results of
the testing would have been.” N.T. at 269.
On this record, we discern no error with the PCRA court’s determination
that Appellant failed to meet the threshold requirement of establishing the
unavailability of effective DNA collection and testing capable of producing
probative results under the circumstances at the time he pleaded guilty. STR
technology for testing Touch DNA samples inarguably was in existence,
effective, and known to Appellant and his team of defenders at the time of
Appellant’s plea, see N.T., 9/2/21, at 120-21, but they elected to forego such
testing.3 In addition, Appellant failed to establish that the STR technology
____________________________________________
3 Indeed, one counsel on Appellant’s Defender team insinuated that
incriminating circumstantial evidence militated against sending the items out
for testing, suggesting by analogy that if an arrested client threw a gun on the
ground and the prosecution did not send it out for testing, “I am not going to
ask the DA’s Office to send that gun out to be tested because I don’t want my
client’s DNA to be found on it. So that’s a strategic decision that I would make
that I would say I’d be really careful about whether or not I was going to do
that.” N.T., 9/2/21, at 195-96. This statement dovetailed with testimony
from other counsel who acknowledged concern amongst themselves and
Appellant about the accumulation of inculpatory evidence and its potential to
prompt a Commonwealth decision to pursue a capital trial. N.T. 9/2/19 at
146, 151, 170-171.
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available at the time of his plea would have produced inferior results compared
to the requested NGS technology, as both experts conceded they could only
speculate about the quantity and quality of the Touch DNA samples capable
of collection from the items since no testing had been attempted.
This rationale aligns with relevant decisions of this Court. For instance,
in Commonwealth v. Hardy, 2022 PA Super 54,
274 A.3d 1240, 1251
(2022), reargument denied (June 7, 2022), appeal granted, No. 185 WAL
2022,
2022 WL 17827949 (Pa. Dec. 21, 2022),4 the applicant Hardy was tried
by jury in 1998 and convicted of first-degree murder for the death-by-
strangulation of his co-worker and former girlfriend (the “Victim”) at their
worksite. Nearly 20 years after his judgment of sentence was affirmed and
his collateral appeal denied on the merits, Hardy filed a 2020 motion for Post-
Conviction DNA testing in which he sought to apply new and allegedly more
probative DNA technology to re-test previously tested items and test never-
before-tested items found in and around the Victim's car. Id. at 1245.
The PCRA court denied Hardy’s petition without a hearing. With respect
to the untested items, and despite the applicant Hardy’s claim of newer
technology that would render more probative results, the PCRA court opined
____________________________________________
4 On December 21, 2022, the Pennsylvania Supreme Court issued a per curiam
order granting allowance of appeal on three issues, including the issue asking,
“Did Appellant satisfy the requirements of 42 Pa.C.S. § 9543.1(a)(2), with
regard to evidence previously tested for DNA and evidence not previously
tested for DNA?”.
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that Appellant had not met the threshold requirements. It noted that the
items were all known before trial, effective 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.
On appeal, Hardy asked, inter alia, whether the trial court erred with
respect to never-before-tested evidence when it concluded that he did not
meet the threshold requirement of 42 Pa.C.S.A. § 9543.1(a)(2). Hardy
argued 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 1249. On this issue, we affirmed the trial court without further discussion,
stating that we discerned no error with the trial court’s factual findings and
legal conclusions after careful consideration and review.5
In Walsh, the applicant was tried and convicted in 2004 of aggravated
assault and related offenses for attacking his wife with a claw hammer in the
presence of witnesses, who testified Appellant had landed several hammer
blows to his wife’s head. After several failed direct and collateral appeals, the
applicant filed a 2014 PCRA petition seeking post-conviction DNA testing under
Section 9543.1(a)(2). The crux of his petition was that testing would reveal
an absence of his wife’s DNA on the hammer, which result, he maintained,
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5 The Hardy decision went on to address and reject on the merits the
applicant’s claim that he had established a prima facie case of actual innocence
as set forth in Section 9543.1(c)(3) and reinforced in Section 9543.1(d)(2).
Id. at 1250-51.
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would establish he did not directly strike his wife and thus prove his “actual
innocence” on the charge of aggravated assault.
Upon review of the record, this Court determined Appellant had failed
to meet the threshold requirements as needed to obtain relief under Section
9543.1, as he had not subjected the hammer to available DNA testing at the
time of trial:
Instantly, [Walsh’s] trial took place on May 6–7, 2004. At trial,
the Commonwealth introduced testimony concerning [Walsh’s]
assault on Victim using a claw hammer and admitted into evidence
the hammer used in the attack. Thus, the evidence [Walsh] seeks
to have DNA tested was discovered and available before [Walsh’s]
trial. Additionally, DNA testing technology was available at the
time of [Walsh’s] trial in 2004, the jury reached its verdict after
January 1, 1995, and the court did not refuse a request for funds
for DNA testing. Consequently, [Walsh] is unable to satisfy the
threshold requirements necessary to obtain post-conviction DNA
testing. See 42 Pa.C.S.A. § 9543.1(a)(2); B. Williams, supra;Perry, supra.
Walsh,
125 A.3d 1248, 1257 (Pa. Super. 2015).
Most recently in Commonwealth v. Goyette, 287 A.3d 869 (Table),
282 WDA 2022 (unpublished memorandum) (Pa. Super. filed October 17,
2022),6 a three-judge panel of this Court upheld a PCRA court’s order denying
the applicant Goyette’s 2021 request for DNA testing of two previously
untested blood-covered items—his steering wheel cover and a pair of sneakers
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6 Under amended Pa.R.A.P. 126, non-precedential decisions are not binding
but may be cited as “persuasive” authority. See Pa.R.A.P. 126(b)(2) (stating
that unpublished non-precedential decisions of the Superior Court filed after
May 1, 2019, may be cited for their persuasive value).
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found in his apartment house’s dumpster—recovered by investigators shortly
after his 2005 brutal attack of an elderly victim. Goyette contended that
testing would reveal the absence of his DNA from the items and, therefore,
lend support to his claim of actual innocence. The Commonwealth filed a
response arguing, inter alia, that Goyette was not entitled to further DNA
testing because testing was available at the time of his trial and he chose to
forego it.
In affirming the PCRA court’s order, our panel found that Goyette’s
failure to establish any of the alternative threshold requirements of Section
9543.1(a)(2), alone, provided grounds to deny his motion for DNA testing. Of
particular note for our purposes was the observation that Goyette could not
obtain requested testing with purportedly more reliable new methods of
testing because he had not sought available DNA testing on such items
previously:
Goyette has not established any of these requirements.
Technology for DNA testing was undisputedly in existence by the
time of his 2007 trial, as items of evidence were submitted for
testing and introduced at his trial. His trial took place well after
the January 1, 1995, cut-off date for testing items when trial
counsel failed to previously request it. The inner portion of the
sneakers and the steering wheel cover were not previously
subjected to testing, so he may not seek additional testing on the
basis that new methods are more reliable. Finally, the record
reveals that he did not previously file a motion for DNA testing
that was denied despite his indigency. As Goyette cannot meet
any of Section 9543.1(a)(2)’s threshold requirements, the PCRA
court was entitled to deny the petition on this basis alone.
Goyette, 287 A.3d 869 at **2 (emphasis added).
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Consistent with this jurisprudence, we conclude Appellant has failed to
meet the threshold requirement under Section 9543.1(a)(2) that the items
proposed for testing were not already DNA tested because technology for
testing did not exist at the time of his guilty plea. The record established that
Appellant was aware of the items, that they could have undergone the STR
method of Touch DNA testing that has proven effective, and that expert
opinion refrained from positing that the STR method would have been
inadequate so as to require recently available NGS Touch DNA analysis. For
these reasons, we affirm the order of the PCRA court denying Appellant’s
motion for Post-Conviction DNA testing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/18/2023
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