Com. v. Sanders, A. ( 2016 )

J-S50009-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ALPHONSO SANDERS
Appellant No. 2200 MDA 2015
Appeal from the PCRA Order November 18, 2015
in the Court of Common Pleas of Lancaster County Criminal Division
at No(s): CP-36-CR-0003826-1999
BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JULY 21, 2016
Appellant, Alphonso Sanders, appeals from the order dismissing his
second Post Conviction Relief Act1 (“PCRA”) petition. Appellant contends
that the PCRA court erred by holding that the exclusion of the testimony and
evidence regarding the victim’s hair would not have changed the verdict.
We affirm.
We adopt the facts and procedural history set forth in the PCRA court’s
opinion. See PCRA Ct. Op., 11/18/15, at 1-2. We also reproduce the facts,
as set forth by this Court’s prior opinion:
Appellant, a resident of Columbus, New Jersey, was
employed by Williams Telecommunications (Williams), a
subcontractor for PECO. For several months prior to the
victim’s death, Appellant was engaged in an extramarital
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
J-S50009-16
affair with the victim. Appellant was often observed
providing transportation to the victim in the van provided
to him by Williams, and the victim introduced Appellant to
others as her boyfriend. Appellant and the victim engaged
in sexual intercourse on a number of occasions throughout
their relationship. Also, Appellant provided monetary
support to the victim, including payments for hotel rooms
for the victim and a trip to Florida.
On April 28, 1999, four days after the discovery of the
victim’s body, Pennsylvania State Police established a time
to interview Appellant regarding the victim’s death at the
PECO headquarters in Philadelphia. When Appellant did
not appear at the scheduled time, the troopers proceeded
to his home in New Jersey and waited for him to arrive.
The troopers observed Appellant, in his Williams van, slow
down as he approached his driveway, but then pass
directly by it. Accordingly, the troopers followed Appellant
to an intersection where he failed to obey a stop sign.
Thereafter, the troopers activated their vehicle’s
alternating headlights to alert Appellant to pull over.
Instead of heeding to the implicit directive of the police,
Appellant initiated a chase in which his vehicle at times
exceeded 70 miles per hour. Nearly five miles from his
residence, police finally apprehended Appellant. In the
midst of the pursuit, Appellant discarded a black leather
gun holster in a sewer drain; however, the holster was
recovered by police.
After being apprehended, Appellant stated to police that
he had been at home on April 23, 1999, from 9:00 PM until
the next morning, and Appellant’s wife testified at trial that
he had arrived at home at 8:45 PM. However, evidence of
Appellant’s pager being called from his home phone
number at 11:05 PM that evening belied the alibi
statements. Appellant’s alibi was also discredited by
Detective Sergeant Edward Verbeke, who testified that he
had overheard Appellant, while in custody, tell his wife that
she had to tell “them” that he was at home on the night of
April 23, 1999. Moreover, a dispatcher from Williams
paged Appellant four times between 7:45 PM and 9:00 PM
that evening, to which Appellant did not respond.
According to the dispatcher, Appellant had never failed to
respond to a page prior to April 23, 1999. The last known
-2-
J-S50009-16
location of Appellant on April 23, 1999 was the PECO
Plymouth facility at 6:45 PM.
As of July 24, 1999, a Sig Sauer P226 handgun was
registered to Appellant. Appellant stated to police that he
purchased the handgun in 1990, but then sold it at a bar
to an unknown person during the summer of 1998. The
bullet fragments found in the victims body were consistent
with a number of handguns, including a Sig Sauer P226.
Also, the holster discarded by Appellant on April 28, 1999
was a type which could be used with the handgun.
Appellant stated to police that he was familiar with the
Peach Bottom Nuclear Power Plant (Peach Bottom)
because he visited it monthly in the scope of his
employment with Williams. Peach Bottom is located
directly across the Susquehanna River from Muddy Run
Park and owned by PECO. Appellant worked at Peach
Bottom on the morning of April 20, 1999, four days before
the victim’s body was found.
A search of the Williams van operated by Appellant
yielded a pamphlet from Muddy Run Park, a cooler, a nylon
bag, a wallet in the nylon bag, and a blanket. The victim’s
family members identified the cooler, the nylon bag, and
the wallet as possessions of the victim. The wallet was
further identified as one which the victim was using
immediately prior to her death. The victim’s mother
testified that she owned the blanket which was found.
Additionally, traces of [the] victim’s blood and hair,
established through a DNA analysis,[2] were found in the
cargo area of the van.
Appellant was subsequently charged with and tried for
first degree murder. Following a 13 day trial, which
2
We note that DNA analysis established that the blood belonged to the
victim. N.T. Trial, 7/20/00, at 1656. DNA analysis was not used on the
hair, as such testing was not routine at that time. Id. at 1735-36 (listing
items analyzed for DNA); R.R. at 1a (noting mitochondrial DNA testing of
hair became routine after December 31, 1999, which was after the date of
the forensic examinations in this case).
-3-
J-S50009-16
included the testimony of 67 witnesses, the jury found
Appellant guilty.
Commonwealth v. Sanders, 1750 MDA 2000, at 1-6 (Pa. Super. May 22,
2001) (emphasis added and citations omitted).
We add that at trial, a Federal Bureau of Investigation forensic
examiner testified and submitted a report comparing the victim’s hair to hair
recovered from the interior of Appellant’s van. In pertinent part, the
examiner testified as follows on direct examination:
You know, if I can compare that questioned hair to a
known sample and compare all of those microscopic
characteristics from root all the way to the tip, I can
determine whether or not they exhibit the same
microscopic characteristics. If that’s the case, I can
conclude that the hair is consistent with coming
from that person.
Now, hairs are not a means of absolute personal
identification. It’s not a fingerprint. But it’s rare for me
to see two people’s hair samples that I cannot
distinguish.
* * *
[District attorney:] Now, the opinions that you’ve given
as far as the comparison and inclusion of [the victim’s]
hairs that you’ve testified to this morning, are they to a
reasonable degree of scientific certainty?
A Yes.
N.T. Trial, 7/21/00, at 1848, 1854 (emphasis added).3
3
As noted infra, the United States Department of Justice (“DOJ”) concluded
the emphasized testimony was erroneous. We acknowledge, however, that
-4-
J-S50009-16
Appellant was sentenced to life imprisonment. On direct appeal,
Appellant challenged, inter alia, the sufficiency of the evidence. This Court
rejected Appellant’s claim, reasoning as follows:
Appellant and the victim were engaged in an extramarital
sexual relationship. Statements and evidence regarding
Appellant’s whereabouts on the night of April 23, 1999 and
Appellant’s contacts with the victim prior to that night were
inconsistent, making the veracity of his alibi dubious. Due
to Appellant’s employment, he was familiar with the
remote area where the victim’s body was found. Traces of
the victim’s blood were found in Appellant’s Williams van,
along with personal items of the victim, including her
wallet, and a brochure from Muddy Run Park. A handgun,
consistent with the one used to kill the victim, was
registered to Appellant, and he attempted to dispose of a
holster, also consistent with the gun, when encountered by
the police.
Additionally, Appellant’s flight from police on April 28,
1999 may be considered by the jury to show Appellant’s
consciousness of guilt in the slaying. . . .
In the case at bar, Appellant noticed the unmarked
police vehicles near his home and, nevertheless, continued
past. He then ran a stop sign and led police, who had
activated their lights, on a chase for nearly five miles. In
the midst of his flight from police, Appellant attempted to
secret a gun holster, which connected him to the victim’s
death.
Id. at 8-9. This Court affirmed on direct appeal, and our Supreme Court
denied Appellant’s petition for allowance of appeal on September 21, 2001.
Commonwealth v. Sanders, 786 A.2d 987 (Pa. Sept. 21, 2001) (table).
a portion of the emphasized “testimony” was actually the district attorney’s
question. N.T., 7/21/00, at 1854.
-5-
J-S50009-16
Appellant filed a timely first PCRA petition, which the PCRA court
denied. This Court affirmed on May 24, 2005, and our Supreme Court
denied Appellant’s petition for allowance of appeal on November 30, 2015.
See Commonwealth v. Sanders, 1106 MDA 2004 (Pa. Super. May 24,
2005), aff’d, 889 A.2d 1215 (Pa. Nov. 30, 2015) (table).
On September 15, 2014, DOJ counsel sent a letter to the district
attorney for Lancaster County. The letter informed the Commonwealth that
the report and testimony of the FBI forensic examiner regarding the victim’s
hair was inaccurate. Attached to the letter was, inter alia, a July 18, 2013
report stating the examiner made inappropriate statements falling within two
categories of error:
The examiner assigned to the positive association a
statistical weight or probability or provided a likelihood
that the questioned hair originated from a particular
source, or an opinion as to the likelihood or rareness of the
positive association that could lead the jury to believe that
valid statistical weight can be assigned to a microscopic
hair association. This type of testimony exceeds the limit
of the science.
The examiner cites the number of cases or hair analyses
worked in the lab and the number of samples from
different individuals that could not be distinguished from
one another as a predictive value to bolster the conclusion
that a hair belongs to a specific individual. This type of
testimony exceeds the limits of the science.
R.R. at 5a. The DOJ forwarded a copy of the letter and exhibits to
Appellant’s trial counsel, the National Association of Criminal Defense
-6-
J-S50009-16
Attorneys, and the Innocence Project. R.R. at 3b. On November 11, 2014,
Appellant’s trial counsel forwarded the DOJ letter to Appellant. R.R. at 7a.
On January 9, 2015,4 Appellant, pro se, filed a PCRA petition attaching
trial counsel’s November 11, 2014 letter. The PCRA court appointed
counsel, who filed an amended PCRA petition that attached, inter alia, all of
the above-referenced DOJ correspondence. Appellant’s counsel’s brief also
cited testimony not referenced in the DOJ correspondence and contended
that testimony was similarly erroneous:
1. Two hairs scraped from the blanket were consistent with
head hairs removed from the victim [citing N.T. Trial at
1852];
2. A pubic hair originating from a Caucasian person was
found on the blanket ([the victim] was a Caucasian) [citing
N.T. Trial at 1862];
3. A head hair scraped from the blanket [recovered from
the interior rear of Appellant’s van] was observed to
contain a red substance [citing N.T. Trial at 1853]. The
hair was sent to [a different forensic examiner, whose
testimony is not at issue,] who identified the substance as
blood, although not necessarily human [citing N.T. Trial at
1642].
4
See generally Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa.
Super. 2006) (discussing prisoner mailbox rule). The PCRA court docketed
Appellant’s petition on January 14, 2015. The Commonwealth does not
challenge whether the PCRA court had jurisdiction over Appellant’s PCRA
petition. PCRA Ct. Op. at 5 n.5. Upon review, we agree. See generally 42
Pa.C.S. § 9545(b)(2) (stating petition should be filed within sixty days of
date claim could have been presented).
-7-
J-S50009-16
Brief of Appellant Urging Post-Conviction Relief, 6/30/15, at 2.5 The parties
“agreed an evidentiary hearing was unnecessary.” PCRA Ct. Op. at 2. On
November 18, 2015, the PCRA court denied Appellant’s second PCRA
petition. Appellant timely appealed and timely filed a court-ordered
Pa.R.A.P. 1925(b) statement.
The PCRA court filed a Rule 1925(a) opinion citing the four-factor
after-discovered evidence test:
To obtain relief based on a claim of after discovered
exculpatory evidence, the defendant must prove that the
evidence (1) could not have been obtained prior to the
conclusion of trial by the exercise of due diligence, (2) is
not merely corroborative or cumulative, (3) will not be
used solely to impeach the credibility of a witness, and (4)
would likely result in a different verdict if a new trial were
granted. Commonwealth v. Foreman, 55 A.3d 532, 537
(Pa. Super. 2012) (citing Commonwealth v. Pagan, 597
Pa. 69, 106, 950 A.2d 270, 292 (2008)). The defendant
must show by a preponderance of the evidence that each
of these factors has been met in order for a new trial to be
warranted. Foreman, 55 A.3d at 537 (citations omitted).
PCRA Ct. Op. at 4.
Prior to extensively summarizing the evidence, the PCRA court opined
as follows:
Moreover, [Appellant] in his brief exaggerates the
significance of [the forensic examiner’s] testimony. Even if
it were disregarded in its entirety, there is no reasonable
basis to conclude that the absence of his testimony would
result in a different verdict if a new trial were granted.
5
Appellant’s brief also quoted other testimony not directly addressed by the
PCRA court in its opinion.
-8-
J-S50009-16
Excluding jury selection, [Appellant’s] trial lasted 13 days.
The Commonwealth presented evidence from 60
witnesses, excluding [the forensic examiner at issue], and
introduced 212 exhibits. While largely circumstantial, this
evidence was nonetheless more than sufficient to allow
the jury to find Appellant guilty of murder in the first
degree beyond a reasonable doubt.
Id. at 7 (emphasis added). After summarizing the evidence, the PCRA court
concluded, “Given all of the evidence presented, direct and circumstantial,
[Appellant] has not proven that the absence of the microscopic hair analysis
would have resulted in a different verdict.” Id. at 11 (emphasis
added).
Appellant raises the following issue:
Did the PCRA Court err and/or abuse its[] discretion in
denying relief pursuant to § 9543(a)(2)(vi) by finding that
the exclusion of Oien’s[, i.e., the forensic examiner,]
testimony and all the inferences and arguments therefrom
would not have changed the outcome of Appellant’s trial?
Appellant’s Brief at 4.
Appellant contends that after excluding the examiner’s testimony,
there was insufficient testimony to sustain his conviction. He argues that
the PCRA court erred by conducting a sufficiency analysis and should have
instead viewed the record “from the perspective of [sic] juror in a new trial—
with the Commonwealth bearing the burden of overcoming the Appellant’s
presumption of innocence beyond a reasonable doubt.”6 Id. at 14-15.
6
Appellant cites no legal authority for this proposition.
-9-
J-S50009-16
Appellant then exhaustively sets forth testimony and evidence that in his
view establishes reasonable doubt.
The Commonwealth counters that the disputed testimony was
minimally inculpatory. Commonwealth’s Brief at 19. It denied that the
PCRA court viewed the record in the light most favorable to the
Commonwealth. Id. at 20-21. The Commonwealth asserts that the PCRA
court “viewed the evidence through the eyes of a hypothetical jury” and was
ideally suited for the role, as the court had the opportunity to weigh the
evidence presented. Id. at 21. Alternatively, the Commonwealth insists
that regardless of how the record is viewed, the evidence against Appellant
was overwhelming. Id. The Commonwealth contends it established motive
opportunity, and underscores Appellant’s behavior prior to and after the
victim’s death, including the police chase. Id. at 21-22. We conclude
Appellant is not entitled to relief.
“On appeal from the denial of PCRA relief, our standard and scope of
review is limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v. Abu-
Jamal, 941 A.2d 1263, 1267 (Pa. 2008) (citation omitted). The PCRA
provides that a petitioner is entitled to relief if the conviction resulted from
the “unavailability at the time of trial of exculpatory evidence that has
subsequently become available and would have changed the outcome of the
trial if it had been introduced.” 42 Pa.C.S. § 9543(a)(2)(vi).
- 10 -
J-S50009-16
To obtain relief based upon newly-discovered evidence
under the PCRA, Appellant must establish that: (1) the
evidence has been discovered after trial and it could not
have been obtained at or prior to trial through reasonable
diligence; (2) the evidence is not cumulative; (3) it is not
being used solely to impeach credibility; and (4) it would
likely compel a different verdict.
Commonwealth v. Washington, 927 A.2d 586, 595-96 (Pa. 2007) (citing
Commonwealth v. D’Amato, 856 A.2d 806, 823 (Pa. 2004), and
Commonwealth v. Abu–Jamal, 720 A.2d 79, 94 (Pa. 1998)).7
Initially, we assume that the DOJ correspondence qualifies as
“exculpatory” evidence. See 42 Pa.C.S. § 9543(a)(2)(vi). We acknowledge
that the PCRA court, somewhat inartfully, suggested that the record was
“more than sufficient” to permit a jury to find Appellant guilty. See PCRA
Ct. Op. at 7. Preceding that phrase, however, the PCRA court held “there is
no reasonable basis to conclude that the absence of [the examiner’s]
testimony would result in a different verdict if a new trial were granted.” Id.
7
The language can be traced to Ludlow’s Heirs’ Lessee v. Park, 4 Ohio 5,
44 (1829) (“In considering the motion, the court will not inquire, whether,
taking the newly discovered evidence in connection with that exhibited on
the trial, a jury might be induced to give a different verdict, but whether the
legitimate effect of such evidence would be to require a different verdict.”),
which was first cited by our Supreme Court in Commonwealth v.
Flanagan, 7 Watts & Serg. 415, 424 (Pa. 1844) (stating, “And in Lewellen
v. Parker [sic], (4 Har. O. R. 5), it is ruled that in considering the motion,
the court will not inquire whether, taking the newly discovered testimony in
connection with that exhibited on the trial, a jury might be induced to give a
different verdict; but whether the legitimate effect of such evidence would
require a different verdict.”). See also Commonwealth v. Carter, 116 A.
409, 410 (Pa. 1922).
- 11 -
J-S50009-16
The PCRA court reinforced that holding at the end of its decision by
concluding Appellant “had not proven that the absence of the microscopic
hair analysis would have resulted in a different verdict.” See id. at 11.
In conjunction with the PCRA court’s recitation of the four-factor after-
discovered evidence test, id. at 4, we conclude the PCRA court properly
applied the applicable test. See Washington, 927 A.2d at 595-96. If the
DOJ correspondence was introduced at trial, we question whether the
legitimate effect of such evidence—given the entire record—would require
or likely compel a different verdict. See id.; Flanagan, 7 Watts & Serg. at
424. As the PCRA court essentially observed, Appellant had motive and
opportunity. See PCRA Ct. Op. at 8-9. Accordingly, having discerned no
legal error, we affirm. See Abu-Jamal, 941 A.2d at 1267.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2016
- 12 -