Com. v. Payne, R. ( 2019 )

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2019 PA Super 136COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAYMOND DALE PAYNE :
:
Appellant : No. 604 WDA 2016
Appeal from the PCRA Order April 13, 2016
In the Court of Common Pleas of Erie County Criminal Division at No(s):
No. 2562 of 1976
BEFORE: BENDER, P.J.E., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON,
J., STABILE, J., DUBOW, J., KUNSELMAN, J., and MURRAY, J.
DISSENTING OPINION BY SHOGAN, J.: FILED APRIL 29 2019
I respectfully dissent. After careful review, I agree with the PCRA court’s
conclusion that the DNA evidence is neither exculpatory nor would it have
changed the outcome of Appellant’s degree-of-guilt hearing. Accordingly, I
would affirm the April 13, 2016 order denying Appellant’s PCRA petition.
In its July 18, 1977 opinion, the lower court set forth the relevant facts
and procedural history of this decades-old case as follows:
[Appellant] was arrested on September 23, 1976 and
charged with the slaying of [a minor child (“the victim”)].
[The victim], a [sixteen-year-old] student at Strong Vincent
High School in Erie, had left her West 10th Street home the
morning of August 7th, 1975 apparently headed for the beach.
She never returned, and on August 12th her body was found
floating in Cuss[e]wago Creek off Route 98 about 12 miles north
of Meadville, in Crawford County.
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When found the victim’s hands and feet were bound by
copper wire. Wire also encircled and was imbedded in her neck.
Crawford County Coroner Wilbur C. Thomas ruled that the young
girl had been strangled listing the cause of death as “acute
asphyxiation due to ligature.”
The original charge against [Appellant], a teacher at the
school attended by [the victim], was originally instituted in
Crawford County, the body having been found there. However,
on Friday, October 8th, 1976, [Appellant,] with the consent of his
attorney and in the attorney’s presence, gave a statement to
Assistant District Attorney Donald E. Lewis. In the statement in
which [Appellant] categorized [the victim’s] death as accidental,
he revealed that her death had occurred in Erie County. As the
result thereof the murder charge was then filed in Erie County on
December 8, 1976.
Following several continuances requested by [Appellant]
and his counsel, trial was scheduled for Monday, April 11, 1977.
On that date [Appellant] entered a plea of guilty to murder
generally and a degree[-]of[-]guilt hearing was held before the
[lower court en banc] on June 7th, 1977. The merits have been
argued and the matter is now ripe for decision.
It is the contention of the Commonwealth that the facts
require a finding of murder in the first degree. The defense argues
that the crime should rise no higher than 3rd degree murder.
Under the plea, voluntary manslaughter could be a possible
determination. However, we are of the opinion that there are no
facts before the court that would justify that result or require its
further consideration.
Section 2501 of the Crimes Code describes criminal
homicide as “where a person intentionally, recklessly or
negligently causes the death of another person.”
Under the amendment to section 2502 of the Crimes Code,
effective March 26, 1974, murder is divided into three degrees.
“A criminal homicide constitutes murder in the first degree when
it is committed by an intentional killing. Murder in the second
degree is where the death of the victim occurred while the
defendant was engaged as a principal or accomplice in the
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perpetration of a felony. All other kinds of murder shall be murder
in the third degree.[”]
Under sub-section (d) intentional killing “is a killing by
means of poison, or by lying in wait, or by any other kind of willful,
deliberate and premeditated killing.[”]
The evidence before the court consists principally of the
physical evidence, the condition of the victim’s body, the
testimony of the pathologist, [Appellant’s] statement of October
8, 1976, and his admissions to his former cellmate, Anthony Lee
Evans.
While the defense called two former inmates of the Erie
County prison to attack the credibility of Evan[s’s] testimony, they
relied principally on [Appellant’s] version of the victim’s death as
contained in his statement to the authorities in Crawford County
in October of 1976.
In that statement [Appellant] told of meeting [the victim]
as she was standing on the corner of Tenth and Raspberry Streets
and taking her for a ride. He stated he had been smoking
marijuana and had taken two “downs” (meprobamate) prior to
meeting the victim; that after voluntarily consuming a number of
the pills [the victim] agreed to pose for [Appellant], when he
asked her if he could take some “bondage pictures”
of her.
He stated that he continued to smoke marijuana as they
headed for the Everett C. Hall Community Park, a secluded
wooded area in Waterford Township in Erie County.
After arriving there he said that she allowed him to tie her
hands and ankles together with some clothesline which he had
purchased at the K-Mart. He had the victim get down on her
knees. He then tied one end of the rope to a tree, then wound it
around her neck and tied the other end to another tree.
At that time he discovered that he had left his camera in his
truck; that despite the fact that the girl appeared to be affected
by the pills she had consumed, he left her in the trussed[-]up
position and returned to his truck.
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While there he smoked some more marijuana and loaded
his camera. When he returned he discovered that the victim had
fallen forward and had expired.
He said he panicked, that he cut the bonds, placed her in
his truck and drove her back to his farm; that he then attached
cement blocks to her body with some copper wire and placed her
in a pond located at the property. Two days later he discovered
that the body had surfaced. He then transported the body to the
Cussewago Creek where it was found on August 12th.
[Appellant] denied that he had had sexual relations with the
victim or that he had in any way molested her.
Counsel for [Appellant] rely on this statement for their
defense, contending that [the victim’s] death was accidental; that
[Appellant] was at most negligent and that his degree of guilt
should rise no higher than 3rd degree.
We, however, are not impressed with either the accuracy or
credibility of [Appellant’s] statement. Yet it does have an
important bearing on our determination. Not only does it place
[Appellant] alone with the victim when she died, admittedly under
circumstances caused by him, but it does in many respects
corroborate other evidence introduced by the Commonwealth.
The most damaging Commonwealth testimony was
given by Anthony Lee Evans who was incarcerated along
with [Appellant] in the Erie County prison in January and
February of 1977. Mr. Evans testified that [Appellant] confided
in him and eventually described in detail what had occurred. He
said that [Appellant] told him that while he and [the
victim] were riding in his truck he had put some “downs”
(pills) in the victim’s beer; that while she was under the
influence of the drug he took her to the woods where he
tied her up in the manner above described and began
having sexual intercourse with her; that she begged him to
stop, crying and screaming; that she “made him mad” and
he grasped the rope “on each side of her and pulled it tight
until she was dead.”
At this point Mr. Evans’[s] testimony varies from
[Appellant’s] statement in that he testified that rather than taking
the body back to the farm and placing it in the pond, that
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[Appellant] said he covered the body with leaves and left it there
for several days until he decided where to dispose of it.
Evans further testified that [Appellant] told him [the
victim’s] death was a culmination of a sexual fantasy that he had
been living with for a long time; that “he likes to tie women up
and do crazy things to ‘em.”
Evans’[s] testimony corroborates in many respects the
statement given by [Appellant] to the Assistant District Attorney
of Crawford County.
In both statements he admits that the victim was under the
influence of pills ingested either voluntarily or administered by
subterfuge.
The reference to a “sexual fantasy” and [Appellant’s]
penchant for bondage is important, for in [Appellant’s] own
statement he admits that it was he who suggested the taking of
“bondage pictures.”
The manner in which [the victim] was tied is exactly the
same in both statements.
The only real variation is in the manner in which death was
caused. Even here there is verification for Evans’[s] testimony
that she died protesting a sexual attack upon her. Paul R. Daube,
a chemist employed by the Pennsylvania State Police testified that
he conducted tests on Hemorrhogic fluids extracted from the
victim’s vaginal and anal areas. He stated that he found the
presence of seminal acid phosphatase in both areas and that
seminal acid phosphatase is found only in semen.
In the opinion of the court the accidental theory advanced
by the defense lacks credibility. It is our belief that the testimony
of Evans is more consistent with the established facts than the self
serving statement of [Appellant].
The specific intent to kill which is necessary to constitute
murder in the first degree may be found from the circumstances
surrounding the slaying together with all reasonable inferences
therefrom.…
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In this case not only do the circumstances point to the
conclusion that the slaying of [the victim] was willful, deliberate
and premeditated, but [Appellant’s] admission to his
cellmate verifies that conclusion and removes all doubt.
The testimony before the court is also consistent with a
slaying in the perpetration of a forceful rape which would
constitute murder in the second degree. However, having
concluded that [Appellant] is guilty of an intentional
killing, we need not further pursue the theory of felony
murder.
Degree-of-Guilt Court Opinion, 7/18/77, at 1-6 (original emphasis and some
capitalization omitted) (emphasis added).
Based on the foregoing, Appellant was convicted of first-degree murder.
On August 5, 1977, the lower court sentenced Appellant to a term of life in
prison. Appellant filed a notice of appeal, and our Supreme Court affirmed
Appellant’s judgment of sentence on January 24, 1979. Commonwealth v.
Payne, 396 A.2d 630 (Pa. 1979).
After several unsuccessful attempts at post-conviction relief, on January
8, 1997, Appellant filed a PCRA petition, which, inter alia, requested DNA
testing on the seminal fluid recovered from the victim’s body. The PCRA court
denied Appellant’s petition, a panel of this Court affirmed that order, and our
Supreme Court denied Appellant’s petition for allowance of appeal.
Commonwealth v. Payne, 704 A.2d 1120, 763 PGH 97 (Pa. Super. filed
October 28, 1997) (unpublished memorandum), appeal denied, 717 A.2d 533(Pa. 1998). In affirming that PCRA order, this Court stated the following in
response to Appellant’s contention that he was entitled to DNA testing:
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[Appellant’s] assertion that the court relied upon the fact
that the victim was raped in its decision to convict him of
first-degree murder is not supported by the facts. The court
had several pieces of evidence connecting [Appellant] to this
crime, not only his confession. Police traced the wire found on the
victim’s body to wire found on [Appellant’s] property. The court
also considered the testimony of [Appellant’s] cell mate, Anthony
Lee Evans. Evans corroborated much of the story given in
[Appellant’s] confession, differing only in connection with the
manner in which the victim died. Evans testified that [Appellant]
had told him about having intercourse with the victim while she
was bound to the tree, and that when she begged him to stop he
tightened the rope around her neck, strangling her. [Appellant]
told his cell mate that this had been a fantasy of his for some time.
The court stated in its Opinion, dated July 18, 1977, that it
found [Appellant’s] claim that the victim’s death was accidental
lacked credibility. Rather, the court believed the account of the
incident given by Evans. Thus, the presence of semen, and
the identity of the person from whom the semen
originated, was not a major consideration in the
determination of first-degree murder. [Degree-of-Guilt Court
Opinion, 7/18/77, at 7]. Accordingly, we will not find that a
miscarriage of justice has occurred in this case.
Payne, 763 PGH 97 (unpublished memorandum at *4-5) (emphases added).
Thus, the semen evidence, from which the DNA evidence was obtained, was
not the sine qua non of first-degree murder. This Court has already held that
the facts do not support Appellant’s assertion that the first-degree murder
gradation was based on a rape. Id. at *4.
On February 6, 2003, Appellant filed a motion for DNA testing pursuant
to a then newly passed statute, 42 Pa.C.S. § 9543.1, the PCRA provision
permitting DNA testing under certain circumstances. The PCRA court denied
that motion, and Appellant filed a notice of appeal to this Court. On November
18, 2003, a panel of this Court affirmed the order of the PCRA court, and on
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May 11, 2004, our Supreme Court denied Appellant’s petition for allowance of
appeal. Commonwealth v. Payne, 841 A.2d 577, 762 WDA 2003 (Pa.
Super. filed November 18, 2003) (unpublished memorandum), appeal denied,
___ A.2d___, 626 WAL 2003 (Pa. filed May 11, 2004).
Specifically, this Court pointed out that
[e]ven if one credits [Appellant’s] contention that DNA evidence
would call into question the sexual assault, which [Appellant]
contends was used as an aggravating factor leading to his
conviction for first degree murder,2 there is no question in this
case concerning the “identity of the perpetrator.” Hence, there is
no basis for [Appellant] to obtain relief under this section.
2It bears mention that [Appellant] did not plead guilty, nor
was he convicted of any sexual offense.
Payne, 762 WDA 2003 (unpublished memorandum at *3).
On September 9, 2011, Appellant filed a second motion for DNA testing
pursuant to Section 9543.1. On October 4, 2011, the PCRA court denied relief.
Appellant filed a notice of appeal to this Court, and on July 31, 2012, this
Court affirmed the order denying Appellant relief. On July 12, 2013, our
Supreme Court denied Appellant’s petition for allowance of appeal.
Commonwealth v. Payne, 55 A.3d 152, 1717 WDA 2011 (Pa. Super. filed
July 31, 2012) (unpublished memorandum), appeal denied, 69 A.3d 601 (Pa.
2013).
Meanwhile, on May 16, 2011, Appellant filed a complaint in the United
States District Court for the Western District of Pennsylvania against the Erie
County District Attorney’s Office alleging violations of 42 U.S.C. § 1983 for its
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refusal to permit DNA testing. On December 16, 2014, the federal district
court signed a stipulated order permitting post-conviction DNA testing. The
DNA test results established conclusively that Appellant was excluded as a
contributor to the seminal fluid found on the victim’s body.
On August 21, 2015, Appellant, through counsel, filed a PCRA petition
asserting that he is entitled to a new trial or degree-of-guilt hearing based on
this after-discovered evidence. Appellant’s eligibility for relief is premised on
42 Pa.C.S. § 9543(a)(2)(vi), and satisfaction of the requirement that
Appellant’s conviction resulted from “[t]he 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.” PCRA Petition,
8/21/15, at 2. The Commonwealth filed a response to the petition, and on
April 13, 2016, the PCRA court entered a final order and opinion denying
Appellant relief. The PCRA court found as follows:
Here, [Appellant] has failed to show the DNA evidence was
exculpatory and would have changed the outcome of the
proceedings. As discussed supra, our appellate courts have
previously determined that presence of semen and the identity of
the donor of the semen were not determining factors in finding
[Appellant] guilty of first-degree murder. Furthermore,
[Appellant] was not convicted of any sexual offense….
The evidence, including [Appellant’s] statement to
Crawford County District Attorney Donald Lewis and his
concealment of [the victim’s] body, clearly established
[Appellant’s] guilt of first-degree murder; accordingly, the
DNA evidence would not have changed the outcome.
PCRA Court Opinion, 4/13/16, at 8-9 (emphasis added) (footnote omitted).
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Appellant timely filed a notice of appeal, and both Appellant and the
PCRA court complied with Pa.R.A.P. 1925.
On appeal, Appellant presents three questions for our review.
[1.] Did the PCRA court err in finding that [after-]discovered DNA
evidence was not likely to change the outcome of [Appellant’s]
criminal proceeding notwithstanding that the [after-discovered]
evidence rebuts the Commonwealth’s overall theory of the case
and disproves a key inference that the prosecution and finder of
fact relied on to establish the intent necessary for conviction?
[2.] Did the PCRA court err to the extent that it held the [after-]
discovered evidence was immaterial or not exculpatory?
[3.] Did the PCRA court err by not considering [Appellant’s] claims
under the United States and Pennsylvania constitutions?
Appellant’s Brief at 4.
On appeal from the denial of PCRA relief, the standard of review requires
that this Court determine whether the ruling of the PCRA court is supported
by the record and free of legal error. Commonealth v. Lewis, 63 A.3d 1274,
1278 (Pa. Super. 2013). “The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record.” Id.Moreover, “[t]he PCRA court’s credibility determinations, when supported by
the record, are binding on this Court.” Commonwealth v. Wholaver, 177
A.3d 136, 144 (Pa. 2018).
In Appellant’s first issue, he avers that the PCRA court erred in
concluding that after-discovered DNA evidence likely would not change the
outcome of Appellant’s degree-of-guilt hearing. Relevant to this claim,
Section 9543(a)(2)(vi)
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provides for post-conviction relief where a petitioner could prove
a claim of newly discovered exculpatory evidence. In order to
succeed on such a claim, the petitioner must establish by a
preponderance of the evidence that:
(1) the evidence has been discovered after the trial and it
could not have been obtained at or prior to trial through
reasonable diligence;
(2) such evidence is not cumulative;
(3) it is not being used solely to impeach credibility; and
(4) such evidence would likely compel a different verdict.
Commonwealth v. Fiore, 780 A.2d 704, 711 (Pa. Super. 2001) (emphasis
added).1
As noted above, Appellant contends that the PCRA court erred in
concluding that this after-discovered evidence would not have changed the
outcome of Appellant’s degree-of-guilt hearing. Appellant’s Brief at 22-40.
Specifically, Appellant argues that the
new evidence at issue here directly undermines the inferences
used against [Appellant] to secure a conviction forty years ago.
In advancing the credibility of its jail-house informant and seeking
to undermine [Appellant’s] explanation, the Commonwealth
created a strong inference that seminal fluid found in the victim
was [Appellant’s]. That evidence and inference were critical
reasons why the [degree-of-guilt court] found the intent
necessary to render a verdict of first-degree murder. [Appellant’s]
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1 In this case, there is no dispute that the evidence was not available, nor
could it have been available, at the time of trial. Additionally, this evidence is
neither cumulative nor being used solely to impeach credibility. Moreover, it
is well settled that a change in the outcome of a degree-of-guilt hearing is a
change in the verdict as contemplated by the PCRA. Commonwealth v.
Bonaccurso, 625 A.2d 1197, 1201 (Pa. Super. 1993).
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conviction, however, cannot stand in the face of modern analysis
proving that the seminal fluid was not his after all.
Id. at 30. As panels of our Court have concluded in prior appeals of this case,
none of this is accurate.
Essentially, Appellant is arguing that this after-discovered evidence
created reasonable doubt as to the specific-intent-to-kill element of first-
degree murder. “Specific intent and malice may be inferred through
circumstantial evidence, such as the use of a deadly weapon on a vital part of
the victim’s body.” Commonwealth v. Hicks, 156 A.3d 1114, 1124 (Pa.
2017). In Commonwealth v. Pruitt, 951 A.2d 307 (Pa. 2008), and
Commonwealth v. Keaton, 729 A.2d 529 (Pa. 1999), our Supreme Court
upheld first-degree murder convictions and found that the defendants
possessed a specific intent to kill under similar circumstances.
In Pruitt, the defendant admitted to breaking into the home of a sixty-
nine-year-old woman, covering her mouth with a towel, tying it, removing her
clothing, tying her up, and leaving her there “while he went upstairs to look
for money.” Pruitt, 951 A.2d at 314. “When he came back downstairs with
the victim’s money, she was not moving.” Id. The forensic pathologist
testified that the victim’s death was caused by “strangulation, most likely with
the towel that was found around her neck.” Id. Our Supreme Court held that
the “evidence is sufficient to support the mens rea element of first-degree
murder, i.e., a specific intent to kill.” Id. Specifically, the Pruitt Court stated
that “this Court has held on several occasions that evidence of death by
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strangulation can be sufficient to establish the requisite intent for first-degree
murder.” Id. (citing Commonwealth v. Mitchell, 902 A.2d 430, 445 (Pa.
2006); Commonwealth v. Simmons, 662 A.2d 621, 629 (Pa. 1995)).
Similarly, in Keaton, police found the partially decomposed body of the
victim, a former girlfriend of Keaton’s, in a basement of a house known for
crack-cocaine activity. A “pair of tights was tied tightly around her neck as a
ligature.” Keaton, 729 A.2d at 534. The autopsy revealed the victim had
recently used alcohol and cocaine. Keaton admitted to having tied up the
victim, “but claimed it was merely part of a ‘sex game.’” Id. at 535. He also
admitted to having left the victim unconscious and tied up in the basement
while he left the house to obtain more drugs. Keaton claimed that the
evidence was insufficient to sustain a first-degree murder conviction because
he did not intentionally kill the victim. Our Supreme Court found Keaton’s
argument unavailing and stated that “the act of tightening a strap around a
person’s neck, with enough force and violence to kill the victim, [is] sufficient
to permit a finding of specific intent to kill.” Id. at 537. Additionally, this
Court took into account the fact that Keaton left the victim tied up “on the
floor, unconscious in the pitch black of the basement.” Id.
Herein, Appellant confessed and admitted to his role in the death of the
victim. According to Appellant, he provided drugs to the victim, tied her up
in a way that included suspending her between two trees with a rope
bound around her neck and her hands tied behind her back, and left
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her in that position. The bindings that Appellant secured around the victim’s
neck caused her death. As in Pruitt and Keaton, these facts are sufficient to
establish a specific intent to kill to support a first-degree-murder conviction.
Moreover, “[a]ctions of the accused that occur before, during, and after
are admissible as evidence to show malice.” Commonwealth v. Gonzalez,
858 A.2d 1219, 1223 (Pa. Super. 2004) (emphasis in original). “[E]vidence
of acts to conceal a crime, such as disposing of the victim’s body, are relevant
to prove the accused’s intent or state of mind.” Commonwealth v. Dollman,
541 A.2d 319, 322 (Pa. 1988).
By his own admission, Appellant went to great lengths to conceal the
victim’s body. Appellant admitted he used cement blocks and copper wire to
submerge the victim’s body in a pond on his property. After her body re-
surfaced, he transported her to another location and tried to submerge her
body again. Mr. Evans testified Appellant had relayed to him that when he
threw the dead body into the water, it was the climax to his sexual fantasy,
and Appellant said, “[H]e shot off all over himself.” N.T., 6/7/77, at 59.
Mr. Evans’s testimony was contrary to Appellant’s version of events
where Appellant stated that he “panicked” when the victim died. Moreover,
Mr. Evans did not testify that Appellant ever ejaculated on or inside the victim;
rather, Mr. Evans used a more vulgar statement saying that “[Appellant] shot
off all over himself.” N.T., 6/7/77, at 59. Mr. Evans also testified that
Appellant confessed that while he began having intercourse with the victim,
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she made Appellant mad so he strangled her with the rope, pulling the rope
tight until she was dead. Id. at 55-56.
Based on the evidence, Appellant’s statements, and the testimony of
Mr. Evans, which the court found credible, I conclude that the outcome of the
degree-of-guilt hearing would not have been different even if the results of
the DNA testing had been available because the evidence established
Appellant’s intent to kill the victim. As discussed above, the degree-of-guilt
panel found Mr. Evans credible because his version of events made more
sense that Appellant’s self-serving statements. Mr. Evans testified that
Appellant ejaculated on himself, not inside or on the victim. Moreover,
Appellant was not convicted of rape, and the DNA evidence does not diminish
the degree-of-guilt panel’s credibility assessment. Accordingly, I would find
that Appellant is entitled to no relief on his first claim of error.2
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2 Appellant avers that the 1977 degree-of-guilt court opinion “clearly based
the finding of intentional strangulation on evidence of seminal fluid found in
the victim.” Appellant’s Reply Brief at 3. This is wrong. As noted, the degree-
of-guilt court found that
[t]he specific intent to kill which is necessary to constitute murder
in the first degree may be found from the circumstances
surrounding the slaying together with all reasonable inferences
therefrom.…
In this case not only do the circumstances point to the
conclusion that the slaying of [the victim] was willful, deliberate
and premeditated, but [Appellant’s] admission to his
cellmate verifies that conclusion and removes all doubt.
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Appellant next argues that the PCRA court erred in concluding that the
DNA evidence was neither material nor exculpatory.3 Appellant’s Brief at 40-
49. Specifically, Appellant suggests that the PCRA court erred by considering
evidence not of record. First, Appellant criticizes the PCRA court for creating
a “newly-minted theory” regarding the perpetrator of this crime. Appellant’s
Brief at 42. Appellant takes issue with the following conclusion set forth by
the PCRA Court:
The presence of DNA material of another male does not help
[Appellant’s] case, it hurts it. In this court’s view, the DNA
evidence of another male is more inculpatory than ever, strongly
suggesting that [Appellant] had an undisclosed partner in his
depraved, murderous endeavor.
PCRA Court Opinion, 4/13/16, at 12). Additionally, Appellant disagrees with
the PCRA court’s conclusion that “the primary use of the DNA evidence is for
impeachment: to quibble with the verdict and Evans’[s] credibility.” Id.
(footnote omitted).
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Degree-of-Guilt Court Opinion, 7/18/77, at 6 (emphasis added). These
findings reveal that the degree-of-guilt court relied on the credible testimony
of Mr. Evans and not exclusively or “clearly” on the presence of seminal fluid.
As noted, excluding the evidence of semen does not exculpate Appellant of
first-degree murder; it does not even exonerate Appellant of sexually
assaulting the victim.
3 Because I conclude that the outcome of Appellant’s criminal proceedings
would not have been different, it is unnecessary to address this argument
because Appellant did not meet the criteria for a new trial based upon after-
discovered evidence. Fiore, 780 A.2d at 711. However, I address the
remaining issues in an effort to clarify my position.
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While I agree with Appellant that the PCRA court erred with respect to
these conclusions, I cannot agree that this entitles Appellant to relief. In
considering both the materiality and the exculpatory nature of the DNA
evidence, the presence of semen in the victim’s body from someone other
than Appellant could implicate an accomplice, as the PCRA court suggested.
However, it is equally likely that this evidence could lead to the conclusion
that the victim had sexual intercourse, consensual or otherwise, with someone
other than Appellant or an accomplice.
Furthermore, the presence of semen from someone other than Appellant
is in no way exculpatory as to Appellant’s first-degree murder conviction. In
DNA testing cases, “a test that is favorable to the petitioner does not
guarantee acquittal. An absence of evidence is not evidence of absence.”
Commonwealth v. Kunco, 173 A.3d 817, 824 (Pa. Super. 2017). As I have
repeatedly noted above, rape was never the basis for first-degree murder.
The fact that the semen found in the victim did not match Appellant’s
DNA is not an exoneration. Simply stated, the DNA evidence does not
exculpate Appellant of first-degree murder, and it does not necessarily prove
that Appellant did not sexually assault the victim. In other words, Appellant
could have sexually assaulted the victim without leaving semen in or on the
victim’s body. The only fact of which the DNA is conclusive is that Appellant’s
DNA was not found inside or on the victim. Thus, despite the PCRA court’s
speculation concerning a third party, I agree that Appellant is not entitled to
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PCRA relief based on the absence of a DNA match to Appellant. I reiterate
that Appellant’s cellmate, Mr. Evans, testified and his testimony was found
credible. As an appellate court, we do not disturb credibility determinations
that are supported by the record. Wholaver, 177 A.3d at 144. I discern no
error in the degree-of-guilt panel finding that Mr. Evans was credible, and I
conclude there is no basis upon which to disturb the panel’s findings of
credibility.
Although the DNA taken from the seminal fluid found on the victim does
not match Appellant, the semen was but one factor at Appellant’s degree-of-
guilt hearing. The Majority states that “[t]he proper focus is whether the
after-discovered evidence significantly refutes an assertion on which the
Degree of Guilt Panel and the Commonwealth placed significant weight.”
Majority Opinion, at 4. However, the Majority cites no authority for this
parallel “significance” standard. Additionally, the Majority errantly states that
the degree of guilt panel “placed significant weight on the theory that
Appellant murdered the victim while raping her.” Majority Opinion, at 11
(emphasis added). As I pointed out supra, there was no finding of rape, and
the semen evidence was not the lynchpin of the degree-of-guilt panel’s
conclusion. See Payne, 763 PGH 97 (unpublished memorandum at *4) (“the
presence of semen and the identity of the person from whom the
semen originated, was not a major consideration in the determination
of first-degree murder”). Once again, I emphasize that:
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The testimony before the court is also consistent with a
slaying in the perpetration of a forceful rape which would
constitute murder in the second degree. However, having
concluded that [Appellant] is guilty of an intentional
killing, we need not further pursue the theory of felony
murder.
Degree-of-Guilt Court Opinion, 7/18/77, at 7 (emphasis added). Reviewing
this statement, it cannot be concluded that the degree-of-guilt panel
“significantly relied” on the rape theory; rather, the rape theory was espoused
purely as a possible alternative basis for conviction.
The absence of a DNA match does not establish Appellant’s innocence—
Appellant’s argument is an indictment of Mr. Evans’s testimony and the PCRA
court’s credibility determinations. Were it necessary to address this issue, I
would conclude that Appellant is entitled to no relief.
Finally, Appellant claims that the PCRA court erred by not addressing
Appellant’s “claim that his constitutional rights independently compel a new
trial.” Appellant’s Brief at 49. Appellant argues the following:
[Appellant] has been imprisoned for almost forty years
under a theory based on evidence of seminal fluid that we now
know was wrongly used against him. The newly discovered DNA
evidence dramatically undercuts the claim that he murdered [the
victim] in the course of a sexual assault and creates reasonable
doubt as to the element of intent. The PCRA court did not,
however, address [Appellant’s] claim that his continued
incarceration despite this new evidence violates due process under
the United States and Pennsylvania Constitutions. For that reason
as well, this Court should at the very least remand for further
proceedings.
Appellant’s Brief at 50-51.
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Although he phrases this argument in terms of his rights under the
United States and Pennsylvania Constitutions, Appellant’s argument, in
reality, is a catchall claim suggesting that this Court should remand for the
PCRA court to reconsider its decision. I am satisfied that the review conducted
by this Court and the PCRA court provided the protections Appellant is afforded
under the United States and Pennsylvania Constitutions. The DNA evidence
does not prove, as Appellant suggests, that he is innocent of first-degree
murder—it does not even prove that he did not sexually assault the victim.
In conclusion, the degree-of-guilt panel relied significantly on Mr.
Evans’s testimony. Degree-of-Guilt Court Opinion, 7/18/77, at 6. The newly
discovered DNA evidence does not disturb or negate the degree-of-guilt
panel’s determination that Mr. Evan’s was credible. Wholaver, 177 A.3d at
144. I discern no error in the degree-of-guilt panel’s reliance on Mr. Evans’s
testimony, and I conclude that this testimony supported a finding of first-
degree murder. As noted herein, the absence of Appellant’s DNA does not
prove that Appellant did not sexually assault the victim, and I do not find that
the result of the underlying proceedings would have been different even in
light of the DNA evidence.
For the reasons set forth above, I would affirm the decision of the PCRA
court. Therefore, I respectfully dissent.
Judges Olson and Stabile join this Dissenting Opinion.
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