J-S71034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

MILTON SIMON WASHINGTON

                             Appellant                No. 3596 EDA 2015


                 Appeal from the PCRA Order October 30, 2015
        in the Court of Common Pleas of Lehigh County Criminal Division
                        at No(s): CP-39-CR-0000515-1987

BEFORE: BOWES, PANELLA, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                   FILED SEPTEMBER 12, 2017

        Appellant, Milton Simon Washington, appeals from an order dismissing

his fourth petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546 in this first-degree murder case.         Appellant contends that

after-acquired evidence of DNA test results exonerate him as the murderer.

We conclude that the DNA evidence, examined in light of the record as a

whole, does not entitle Appellant to a new trial. Accordingly, we affirm.

        The victim, Tina Wyatt, was last seen alive on the night of June 29,

1986, when she left the room at the Airport Inn in Allentown, Pennsylvania

that she and Appellant shared with her two children.           Wyatt worked as a

prostitute at the time of her death, and Appellant was her pimp.            N.T.,




*
    Former Justice specially assigned to the Superior Court.
J-S71034-16


9/21/87, at 23-24; N.T., 9/22/87, at 118, 476-81; N.T., 9/25/87, at 963-65,

1031-33.

      On the morning of June 30, 1986, Wyatt’s body was discovered at the

rear of a warehouse in Allentown. Defensive wounds, trauma to the head,

and multiple stab wounds were readily visible. Near her body, investigators

found a bloodstained two-by-four block of wood, numerous pieces of

bloodstained wood, a small silver folding knife, Wyatt’s wallet and comb, and

a business card with the name Christopher Christian on it. Wyatt’s brown

corduroy jacket was draped over her head, and her pants were draped over

her right ankle. Her sandals were near her body, and she was wearing her

bra and sweater, both of which were bloodstained. N.T., 9/21/87, at 26-28,

52-55, 68-70; N.T., 9/22/87, at 279; N.T., 9/30/87, at 1380.

      Police officers collected the wood pieces, the knife, the clothes and

personal items. No physical evidence linked Appellant to Wyatt’s death or

the crime scene.   An autopsy determined that Wyatt died from forty-nine

stab wounds.   She also sustained numerous blunt force injuries and other

serious injuries, including a broken left radius, fractured rib and skull

fracture. Defensive wounds were evident on her wrist, forearms, hands and

right elbow. N.T., 9/23/87, at 521, 524, 531-47, 549, 644-45.

      The state police laboratory received vaginal, anal, and gum swabs and

smears, throat swabs, pubic hairs and nail clippings taken during the

autopsy for biological testing.   The laboratory also received blood samples



                                     -2-
J-S71034-16


and other evidence collected at the crime scene, including the wood pieces,

the knife, and the victim’s clothing.   Serology results indicated that some

blood samples taken from the wood pieces and Wyatt’s jacket and jeans

were Type A. Wyatt’s blood type was Type A, and Appellant’s was Type B.

Human blood of an “undetermined” type was on the wood pieces, knife

handle and Wyatt’s sweater and bra.        The vaginal swab contained acid

phosphatase, an enzyme found in semen and sperm. N.T., 9/22/87, at 268-

71, 275-76, 279-80.

      Appellant met voluntarily with police and gave three interviews, two of

which he initiated.   On July 4, 1986, police arrested Appellant for an

unrelated parole violation.   While Appellant was incarcerated in county

prison, jailhouse informants came forward claiming that he confessed to

killing Wyatt.   As a result, Appellant was charged with homicide.       N.T.,

9/21/87, at 159; N.T., 9/23/87, at 716; N.T., 9/25/87, at 949-50, 987.

      During Appellant’s jury trial in September 1987, the Commonwealth

claimed that Appellant beat Wyatt with a large piece of wood and stabbed

her multiple times because he was upset that she did not want to work as a

prostitute anymore.   Although the Commonwealth claimed that Appellant

bludgeoned Wyatt in the head and then stabbed her forty-nine times, no

blood evidence was found on Appellant or in his hotel room.      No Type B

blood (Appellant’s blood type) was found on crime scene evidence, despite

evidence of Wyatt’s defensive wounds sustained while trying to protect



                                    -3-
J-S71034-16


herself.   The Commonwealth highlighted inconsistencies in statements

Appellant provided to the police concerning the last time he saw Wyatt, the

clothes she wore the night she was murdered, and whether Appellant and

Wyatt’s children ate ice cream that night. N.T., 9/21/87, at 22-24, 102-03;

N.T., 9/22/87, at 270-75, 280, 284, 289; N.T., 9/23/87, at 547-48, 651-53;

N.T., 9/25/87, at 1005, 1008, 1015, 1021.

      Much of the Commonwealth’s evidence came from four jailhouse

informants who claimed Appellant “confessed” to them: Juan Cruz, Benjamin

Kennedy, Anthony Rish, and Andrew Gratt.        All four witnesses received

leniency in exchange for their testimony.

      Police originally suspected the first informant, Cruz, of murdering

Wyatt. Cruz testified he was staying at the Airport Inn on the night of the

murder. He said he saw Appellant and Wyatt arguing on the weekend of the

murder, and that Appellant slapped Wyatt and chased her in the direction of

where her body was found. He also testified on direct examination that on

Sunday afternoon, one day before the murder, Appellant told him he “did”

“something to his lady.” On cross-examination, Cruz testified Appellant said

this on Saturday, two days before the murder. Cruz also said that his rooms

at the Inn were either in his name or the name of his girlfriend, Gladys

Acevedo. During Cruz’s first interview with police, he stated that he knew

nothing about Wyatt’s death.       In exchange for Cruz’s testimony, the

Commonwealth informed the sentencing judge in Cruz’s criminal case about



                                    -4-
J-S71034-16


his assistance in Appellant’s case and moved for reduction of Cruz’s bail.

N.T., 9/21/87, at 188-89, 199-205, 219, 226, 228, 248.

      Cruz’s testimony was contradicted by Armin Desai, operator of the

Airport Inn at the time of Wyatt’s death, who testified he had no registration

records for Cruz or Acevedo for June 29 or June 30, 1986. In fact, Desai

had no registration records for Cruz or Acevedo in June 1986 after June

23rd. Acevedo also contradicted Cruz’s testimony by testifying that she and

Cruz did not stay at the Inn the weekend Wyatt died; instead, they stayed

on Second Street the entire weekend. N.T., 9/24/87, at 744-48, 755, 929.

      The second informant, Kennedy, Appellant’s long-time friend, testified

that at the time he shared a cell with Appellant, Appellant said he

“accident[ally]” killed Wyatt during a fight. According to Kennedy, Appellant

asked him to tell police that Cruz killed Wyatt, and that Appellant was at

Kennedy’s house that night.     Kennedy said he decided to testify against

Appellant because he heard rumors Appellant agreed to “shut up” Kennedy’s

wife, who planned to testify in an unrelated case.      In exchange for this

testimony, Kennedy’s bail was reduced, and he was released from jail. N.T.,

9/22/87, at 366, 369, 375-76, 378, 385.

      The third informant, Rish, was an inmate at Lehigh County Prison while

Appellant was incarcerated there for his parole violation.   Rish claimed his

friend Andrew Gratt, another inmate, knew both Appellant and Wyatt.

According to Rish, Gratt was upset about Wyatt’s death and wanted revenge



                                    -5-
J-S71034-16


on Appellant.    Rish said he and Gratt devised a plan to get Appellant to

confess to the murder so they could tell authorities. Rish also said Appellant

told Gratt he killed Wyatt because he loved her, and she made “good”

money but was going to leave him.      According to Rish, Appellant said his

other prostitutes would “think twice” about messing with him because of

what happened to Wyatt.     In exchange for this testimony, Rish’s bail was

reduced, and he was released from jail in March 1987.       N.T., 9/22/87, at

434-48.

      The fourth informant, Gratt, was released on his own recognizance

shortly after he and Rish contacted authorities about Appellant’s alleged

confession.     Gratt fled Pennsylvania, and the Commonwealth could not

locate him to bring him in as a witness during trial. His preliminary hearing

testimony, which was consistent with Rish’s trial testimony, was read into

the record during trial. N.T., 9/23/87, at 574, 579-80, 583, 589, 593, 620-

21.

      Appellant testified in his defense and denied any involvement in the

murder. He stated that he spent the night of June 29, 1986 in the motel

room with Wyatt’s children, except for a short time when he left to buy ice

cream at a nearby store.     In the early morning of June 30th, after not

hearing from Wyatt for several hours, Appellant called a cab and went

looking for her. While out, he saw a friend, Edward Godreau, who agreed to

drive him around to search for Wyatt. At 8:12 a.m. that morning, Appellant



                                    -6-
J-S71034-16


called the Allentown Communications Center to file a missing person report.

Appellant added that Wyatt’s estranged husband, Kerry Wyatt, threatened to

kill her two weeks before her murder and said she would be sorry for leaving

him.   Detective Sergeant Suppan corroborated this, testifying there were

“numerous incidents” involving Kerry Wyatt “prior to this [Wyatt’s death] up

until they moved away to the Airport Motor Inn . . . ah, maybe a week and a

half prior. There were numerous disturbance calls that we had received, the

patrol division.”   The parties stipulated at trial that Allentown Police

Department records reflected two reported disputes between Wyatt and

Kerry Wyatt.   N.T., 9/21/87, at 100, 117, 131-32; N.T., 9/25/87, at 968,

971, 974-75, 980, 1091; N.T., 9/28/87, at 1146-47.

       The jury found Appellant guilty of first-degree murder but could not

agree on the penalty, resulting in a sentence of life imprisonment without

the possibility of parole.    N.T., 9/29/87, at 1327-32, 1356-57; N.T.,

9/30/87, at 1508; N.T., 11/7/88, at 15.

       Less than one year after sentencing, Kennedy executed a sworn

affidavit recanting his trial testimony. Kennedy admitted perjuring himself

during Appellant’s trial and stated that “police officers gave me the

information I testified to during trial.” Kennedy further averred that not only

had Appellant not confessed to killing Wyatt, but he actually proclaimed his

innocence to Kennedy.     In 1991, Kennedy invoked his Fifth Amendment




                                     -7-
J-S71034-16


rights when called to testify at a hearing on Appellant’s motion for a new

trial based on after-discovered evidence. N.T., 12/16/91, at 6.

      Rish also recanted his testimony by sending Appellant letters on July

19, 1990 and September 29, 1992 that he and Gratt made up the story

about Appellant’s confession. Rish wrote that the District Attorney’s office

“forced” him to testify by threatening to put him “in front of the worst judge

and give [him] 5 to 10 years.” Am. PCRA Pet., Ex. B (July 19, 1990 & Sept.

29, 1992 Rish ltrs.). Rish, however, never submitted a sworn affidavit. 1

      In 1989, this Court dismissed Appellant’s direct appeal due to his

failure to file a brief.   Subsequently, Appellant filed multiple unsuccessful

post-conviction petitions requesting a new trial based on Kennedy’s and

Rish’s recantations.

      On February 29, 2012, however, the Commonwealth consented to,

and the PCRA court ordered, post-conviction DNA testing of numerous items

of physical evidence related to this case.      The court entered this order

“pursuant to the agreement of the parties and the authority of the Court

under 42 Pa.C.S. § 9543.1 and Pa.R.Crim.P. 902 . . .” Order, 2/29/12, at 1.

      Cellmark Forensics conducted the DNA testing. On October 4, 2013,

Cellmark excluded Appellant as the source of the male DNA profile obtained

from the sperm on the inside crotch of Wyatt’s jeans. See Am. PCRA Pet.,

1
  Rish’s letter to Appellant in 1992 stated that Rish was “going into the
federal system,” an apparent reference to federal prison. The Federal
Prisoner Locator indicates that a prisoner named Anthony Rish died in 2010.



                                      -8-
J-S71034-16


Ex. C (Oct. 4, 2013 Cellmark Report).       The state police uploaded this

unidentified male DNA profile to CODIS, but it did not match the profile of

any individual in the DNA databanks or establish any “investigative leads.”

Am. PCRA Pet., Ex. D (Apr. 10, 2014 PSP Report). There were no conclusive

results from tests on numerous other items of evidence.

     On November 13, 2013, Appellant, through counsel, filed his fourth

PCRA petition seeking a new trial based on the DNA test results. On June

11, 2015, Appellant filed a motion to amend this petition along with an

amended fourth PCRA petition.2 On October 8, 2015, the PCRA court issued

a Pa.R.Crim.P. 907 notice of intent to dismiss the amended petition without

a hearing and a supporting opinion. The court reasoned as follows:

        [Appellant]’s argument is misplaced, as it is based on the
        incorrect assumption that the semen in the crotch area of
        the victim’s jeans belonged to her murderer. There is no
        factual basis for this supposition, and therefore amounts to
        mere speculation. The record evidence demonstrates that
        the victim was a prostitute. While it is undisputed that
        semen was found in the crotch area of the victim’s jeans,
        there is no evidence to establish when this semen was
        deposited there. Therefore, the absence of [Appellant]’s
        DNA is not significant, consequential, or material to a
        determination of [Appellant]’s guilt or innocence, and thus
        by no means can it be deemed exculpatory in nature.

        In the within matter, the evidence presented at trial and
        considered by the jury was sufficient to support the

2
  Although the court never explicitly granted Appellant’s motion to amend, it
implicitly granted Appellant leave to amend his fourth PCRA petition by
stating later in the case that it had reviewed Appellant’s November 13, 2015
petition “as amended on June 11, 2015.” Pa.R.Crim.P. 907 Notice of Intent
to Dismiss, 10/8/15, at 1.



                                    -9-
J-S71034-16


         verdict. The record evidence revealed that a few hours
         before the victim’s body was discovered, [Appellant] was
         seen yelling at the victim for not being on the street
         working, and that he bit her. [Appellant] then chased the
         victim towards the warehouse where the victim’s body was
         subsequently discovered a few hours later. Juan Cruz and
         Christopher Christian testified that the victim indicated to
         them that she wanted to stop being a prostitute, but she
         could not because [Appellant] made her continue. In
         addition, Benjamin Kennedy and Anthony Rish testified
         that [Appellant] tried to have them provide a fake alibi
         defense for him. Moreover, Juan Cruz, Benjamin Kennedy,
         and Andrew Gratt testified that [Appellant] admitted to
         them that he had killed the victim. In addition, this Court
         notes that the jury knew that there was no direct physical
         evidence linking [Appellant] to the crime scene or to the
         weapons. The jury also was aware of the fact that semen
         was present on a vaginal swab done on the victim. Hence,
         this DNA evidence offered by [Appellant] cannot be
         categorized     as    “newly-discovered,”      but    rather
         corroborative in nature.      As such, this Court cannot
         conclude that the outcome of the trial would have been
         different had the jury been presented with this DNA
         evidence.

Op., 10/8/15, at 4-5. In a footnote, the court added:

         [Appellant] . . . argues that the recanted testimony of
         Commonwealth witnesses Benjamin Kennedy and Anthony
         Rish is “newly-discovered” evidence. However, this Court
         finds this contention to be without merit, as [Appellant]
         has raised this issue on multiple occasions in the past and
         it has been repeatedly rejected by the courts.          This
         renewed assertion cannot be entertained by this Court yet
         again. Of note, the Supreme Court of Pennsylvania has
         found recantation testimony to be inherently unreliable
         evidence, and do not form a basis for any relief.

Id. at 5 n.3.

      On October 30, 2015, the court dismissed Appellant’s petition.

Appellant filed a timely appeal and subsequently complied with Pa.R.A.P.



                                    - 10 -
J-S71034-16


1925. The PCRA court adopted its October 8, 2015 opinion as its Rule 1925

opinion.

      Appellant raises four questions in this appeal, which we have re-

ordered for purposes of disposition:

           1. Whether the PCRA court erred in concluding the DNA
           evidence was not exculpatory?

           2. Whether the PCRA court erred in failing to consider the
           full record when analyzing whether the DNA evidence
           would have changed the outcome of [Appellant’s] trial if it
           had been presented to the jury?

           3. Whether the PCRA court’s determination that the DNA
           evidence would not have changed the outcome of
           [Appellant’s] trial if it had been presented to the jury is not
           supported by the record?

           4. Whether the PCRA court erred in not considering
           recantations of two Commonwealth witnesses in analyzing
           the request for a new trial?

Appellant’s Brief at 3-4.

      Preliminarily, we observe that both the parties’ stipulation to conduct

DNA testing was timely.       Agreements to conduct DNA testing are exempt

from the PCRA’s one-year jurisdictional time bar within section 9545(b)(1).

See Commonwealth v. Conway, 14 A.3d 101, 108 n.2 (Pa. Super. 2011).

In addition, Appellant’s fourth PCRA petition was timely.         When the court

grants DNA testing, the petitioner must file a PCRA petition within sixty days

after obtaining DNA test results. See id.; 42 Pa.C.S. § 9543.1(f)(1). Upon

receipt of this petition, and any answer filed by the Commonwealth, “the

court shall determine whether the exculpatory evidence resulting from the


                                       - 11 -
J-S71034-16


DNA testing conducted under this section would have changed the outcome

of the trial as required by section 9543(a)(2)(vi).”           42 Pa.C.S. §

9543.1(f)(3).   Here, Appellant timely filed his fourth PCRA petition within

sixty days after obtaining the DNA results.     Accordingly, we turn to the

issues raised in his appeal.

      In an appeal from the denial of a PCRA petition, we determine whether

the record supports the PCRA court’s findings and whether its order is

otherwise free of legal error. See Commonwealth v. Fears, 86 A.3d 795,

803 (Pa. 2014).    We accord great deference to the findings of the PCRA

court if they are supported by the record. Commonwealth v. Boyd, 923

A.2d 513, 515 (Pa. Super. 2007). We apply a de novo standard of review

with regard to the PCRA court’s legal conclusions.       Commonwealth v.

Medina, 92 A.3d 1210, 1215 (Pa. Super. 2014) (en banc).

      The first three issues in this appeal essentially raise the same

question: whether the PCRA court applied the wrong test in denying

Appellant’s fourth petition.   Below is a recitation of the proper standards

followed by their application to this case.

      The PCRA delineates seven classes of claims that are eligible for relief

under the PCRA.     See 42 Pa.C.S. § 9543(a)(2).    Of relevance here is the

“after-discovered evidence” provision, which states that a claim alleging “the

unavailability at the time of trial of exculpatory evidence that has

subsequently become available and would have changed the outcome of the



                                     - 12 -
J-S71034-16


trial if it had been introduced” is cognizable under the PCRA. 42 Pa.C.S. §

9543(a)(2)(vi).   To establish this claim, the petitioner must prove by a

preponderance of the evidence 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. D'Amato, 856 A.2d 806, 823 (Pa. 2004); see

also 42 Pa.C.S. § 9543(a) (setting forth preponderance standard).

      DNA testing is a special form of after-discovered evidence that is

governed by the detailed procedures within 42 Pa.C.S. § 9543.1.        Section

9543.1(a) provides in relevant part:

         An individual convicted of a criminal offense in a court of
         this Commonwealth and serving a term of imprisonment . .
         . 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.

42 Pa.C.S. § 9543.1(a)(1). Within this motion, the applicant must:

         (c) present a prima facie case demonstrating that the:

            (i) identity of or the participation in the crime by the
            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:

               (A) the applicant’s actual innocence of the offense
               for which the applicant was convicted [.] . .



                                    - 13 -
J-S71034-16


42 Pa.C.S. § 9543.1(c)(3)(i)-(ii)(A).

      Section 9543.1(d) prescribes when the court must order DNA testing

and when it must not:

         (1) Except as provided in paragraph (2), the court shall
         order the testing requested in a motion under subsection
         (a) . . . upon a determination, after review of the record of
         the applicant’s trial, that the:

            (i) requirements of subsection (c) have been met;

            (ii) evidence to be tested has been subject to a chain of
            custody sufficient to establish that it has not been
            altered in any material respect; and

            (iii) motion is made in a timely manner and for the
            purpose of demonstrating the applicant’s actual
            innocence and not to delay the execution of sentence or
            administration of justice.

         (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. § 9543.1(d) (emphases added).

         [O]n its face, the prima facie requirement set forth in §
         9543.1(c)(3) and reinforced in § 9543.1(d)(2) requires
         that an appellant demonstrate that there is a “reasonable
         possibility” that “favorable results of the requested DNA
         testing ‘would establish ’ the appellant’s actual innocence
         of the crime of conviction.” . . . The parties to this appeal
         agree, as did the trial court, that the definition of “actual
         innocence” that is to be applied in the evaluation of the
         effect of new evidence is that articulated by the United
         States Supreme Court in its [o]pinion in Schlup v. Delo,
         513 U.S. 298, 327 [] (1995), namely, that the newly


                                    - 14 -
J-S71034-16


          discovered evidence must make it “more likely than not
          that no reasonable juror would have found him guilty
          beyond a reasonable doubt.” Thus, this standard requires
          a reviewing court “to make a probabilistic determination
          about what reasonable, properly instructed jurors would
          do,” if presented with the new evidence. Id., 513 U.S. at
          329 . . .

Conway, 14 A.3d at 109 (some citations and footnote omitted).             As a

matter of law, an order authorizing DNA testing constitutes a prima facie

determination that favorable test results will establish the applicant’s actual

innocence. Id.

      Within sixty days after obtaining the DNA test results, the petitioner

may file a PCRA petition seeking relief on the basis of after-acquired

evidence.     42 Pa.C.S. § 9543.1(f)(1).     The court shall then “determine

whether the exculpatory evidence resulting from the DNA testing conducted

under this section would have changed the outcome of the trial as required

by section 9543(a)(2)(vi).” 42 Pa.C.S. § 9543.1(f)(3). To assess whether

the test results would have changed the outcome of trial, the PCRA court

must assess the new evidence “in light of the evidence as a whole.”

D’Amato, 856 A.2d 806, 825 (Pa. 2004) (emphasis added).            “In making

that determination, a court should consider the integrity of the alleged after-

discovered evidence, the motive of those offering the evidence, and the

overall     strength   of   the   evidence    supporting    the    conviction.”

Commonwealth v. Padillas, 997 A.2d 356, 365 (Pa. Super. 2010).




                                    - 15 -
J-S71034-16


      Even when DNA test results favor the applicant, they do not guarantee

a new trial.    Instead, the PCRA court must weigh “exculpatory” (i.e.,

favorable) test results against the rest of the evidence and the reliability of

the persons offering the evidence.     42 Pa.C.S. § 9543.1(f)(3); D’Amato,

856 A.2d at 825; Padillas, 997 A.2d at 365.        In other words, the PCRA

court must construe a favorable DNA test as providing additional support for

a new trial, but not necessarily compelling one.

      For two reasons, the PCRA court determined that the new DNA

evidence would not change the outcome of Appellant’s trial: (1) the

circumstantial evidence favorable to the Commonwealth, such as the fact

that Wyatt was a prostitute and there was no evidence of the time the

semen was deposited; and (2) the court’s view that the DNA evidence was

simply “corroborative in nature,” because the jury “was aware of the fact

that semen was present on a vaginal swab done on the victim,” and that

there was “no direct physical evidence” linking Appellant to the crime. PCRA

Ct. Op., 10/8/12, at 4-5.   We conclude that the PCRA court balanced the

evidence correctly by analyzing the new DNA evidence “in light of the

evidence as a whole.” D’Amato, 856 A.2d at 825.

      Admittedly, the case against Appellant was not overwhelming.         The

only witnesses to implicate him in the crime—Cruz, Kennedy, Rish, and

Gratt—had an incentive to finger him as the murderer to obtain their release

from custody in their own cases.         These witnesses had no personal



                                     - 16 -
J-S71034-16


knowledge of Wyatt’s death, claiming only that Appellant confessed to them

while he was incarcerated with them on a parole violation.    Gratt did not

even show up to testify at trial.   While Cruz claimed to have seen a fight

between Wyatt and Appellant at the Airport Inn shortly before the murder,

his testimony was demonstrably flawed.       He gave varying accounts as to

when he saw the two fighting, and he claimed Appellant said he “did,” past

tense, “something bad to his lady” on Saturday or Sunday—one to two days

before her murder.     Defense witnesses cast additional doubt on Cruz’s

testimony.    Cruz’s girlfriend testified he stayed with her elsewhere in

Allentown that weekend. The Airport Inn operator also testified that neither

Cruz nor his girlfriend was registered at the motel that weekend, despite

Cruz’s testimony that his practice was to register under one of their names.

Further, at least one other individual had a motive to kill Wyatt: her

estranged husband, who had threatened to kill her two weeks before her

murder.

     At the crime scene, Wyatt was found naked from the waist down, with

her jeans around her ankles and semen on her jeans. There were defensive

wounds on her hands and arms. No physical evidence connected Appellant

to the crime scene.

     Nevertheless, the DNA results did not change the complexion of the

evidence enough to warrant a new trial. Although the DNA tests irrefutably

excluded Appellant as the source of the semen on Wyatt’s jeans, the jury



                                    - 17 -
J-S71034-16


was made aware during trial that no physical evidence connected Appellant

to the crime. The DNA tests merely provided further proof that there was no

physical evidence of Appellant’s guilt.      Further, the DNA results do not

demonstrate when the semen was deposited on her jeans.             Given her

profession as a prostitute, one of her customers could have deposited the

semen well before she was killed. Moreover, given the evidence in this case,

we are constrained to disagree with Appellant that the fact that his DNA was

not found in the sperm stain would have permitted his trial counsel to mount

a defense that was not already available at the time of trial. Thus, Appellant

failed to prove by a preponderance of the evidence that the new evidence

would likely have compelled a different verdict.

      In his final argument, Appellant claims that the PCRA court erred by

failing to consider the recantations of two Commonwealth witnesses,

Kennedy and Rish, into its analysis of whether to grant Appellant a new trial.

We hold that Kennedy’s recantation does not deserve any weight, because

he invoked his right against self-incrimination at an evidentiary hearing

relating to his recantation.   We also will not accord any weight to Rish’s

recantation, because he never submitted a written recantation under oath.

Nor does it appear that Rish will have the opportunity to do so in the future,

as he probably is deceased.

      Order affirmed.




                                    - 18 -
J-S71034-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/12/2017




                          - 19 -
