J-S92021-16

                                  2017 PA Super 288



COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       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
                        Civil Division at No(s): 2562 of 1976


BEFORE: SHOGAN, J., MOULTON, J., and STRASSBURGER, J.*

DISSENTING OPINION BY MOULTON, J.:                     FILED SEPTEMBER 7, 2017

       I respectfully dissent.       Because I believe Appellant has sufficiently

established that the outcome of his degree-of-guilt hearing would likely have

been different based on the new DNA evidence, I would reverse and remand

for a new degree-of-guilt hearing.

       This is a difficult case that requires us to address the burden of a

petitioner seeking PCRA relief based on exculpatory evidence not available at

the time of trial.       While I agree with much of the majority’s analysis,

particularly that the evidence was sufficient to convict Appellant of first-

degree murder, I do not share the majority’s confidence that the new DNA

evidence would not change the outcome of the proceedings.              Because I

____________________________________________


       *
           Retired Senior Judge assigned to the Superior Court.
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believe the DNA evidence seriously undermines the theory of the case

advanced by the prosecution at the degree-of-guilt hearing, and because

that theory was fully embraced by the factfinder, I believe Appellant is

entitled to a new degree-of-guilt hearing.

      There is no doubt that Appellant was responsible for the victim’s

death.    Appellant confessed to much of the conduct alleged by the

prosecution and pled guilty to the general charge of murder.              While

Appellant admitted some culpability, however, he did not admit to

intentionally killing the victim. His contention at the degree-of-guilt hearing,

therefore, was that he was not guilty of first-degree murder but only of

third-degree murder.

      In contrast, the prosecution’s theory at the degree-of-guilt hearing

was that Appellant was guilty of first-degree murder because, with

premeditation and deliberation, he intentionally killed the victim while she

resisted his sexual assault. This theory was premised on two key pieces of

evidence: (1) forensic evidence of seminal fluid found in the victim’s vaginal

and rectal areas; and (2) the testimony of Commonwealth witness Anthony

Lee Evans, to whom Appellant allegedly confessed to strangling the victim in

the course of sexually assaulting her.

      The trial court, sitting as factfinder at the degree-of-guilt hearing,

relied on both pieces of evidence in finding that Appellant intentionally killed

the victim:




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        [T]here is verification for Evans’ testimony that [the
        victim] died protesting a sexual attack upon her.
        Paul R. Daube, a chemist employed by the Pennsylvania
        State Police[,] testified that he conducted tests on
        [h]emorrhogic 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.

           In this case not only do the circumstances point to the
        conclusion that the slaying of [the victim] was wil[l]ful,
        deliberate    and   premeditated,    but    [Appellant’s]
        admission to [Evans] 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.

Trial Ct. Op., 7/18/77, at 6-7 (emphases added; internal citation omitted).

     Thirty-eight years later, however, DNA testing conclusively established

that Appellant was not the contributor of the seminal fluid recovered from

the victim’s body. As a result, Appellant sought PCRA relief based on this

after-discovered evidence.




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      The issue before this Court is whether the DNA evidence excluding

Appellant as the contributor of the seminal fluid requires a new degree-of-

guilt hearing under 9543(a)(2)(vi) of the PCRA, which provides:
         (a) To be eligible for relief under this subchapter, the
         petitioner must plead and prove by a preponderance of the
         evidence . . . :

            (2) That the conviction or sentence resulted from . . . :

                                       ...

            (vi) 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); see id. § 9543.1(f)(3).        To succeed on an

after-discovered evidence claim, the “petitioner must prove 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. Cox, 146 A.3d

221, 228 (Pa. 2016) (internal quotation omitted).

      Thus, to determine whether Appellant is entitled to a new degree-of-

guilt hearing under section 9543(a)(2)(vi), we must decide whether

Appellant has established by a preponderance of the evidence: (1) that the

DNA evidence is exculpatory; and (2) if so, that the DNA evidence would




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likely have changed the outcome of his degree-of-guilt hearing.1 I believe

Appellant has met his burden with respect to both elements.

       As to the first element, the majority concludes that the DNA evidence

is not “exculpatory” because it does not prove Appellant’s innocence of first-

degree murder. Maj. Op. at 15. The majority finds that the DNA evidence

would exculpate Appellant only if he had been convicted of a sexual offense.

Id. I cannot agree.

       This Court addressed what constitutes exculpatory evidence under

section 9543(a)(2)(vi) in Commonwealth v. Bonaccurso, 625 A.2d 1197

(Pa.Super. 1993).       In that case, Bonaccurso, who had been convicted of

first-degree murder, sought PCRA relief based on after-discovered evidence,

in the form of eyewitness testimony, that Bonaccurso’s shooting of the

victim was accidental. Id. at 1198. We determined that the evidence was

exculpatory because, if believed, it would support a third-degree, rather

than a first-degree, murder conviction:
               When we consider whether granting Bonaccurso a new
           trial was an error of law we must decide whether the
           evidence was unavailable, whether it is exculpatory, and
           whether it would affect the outcome of the trial. The first
           question is easily disposed of. [The witness] left the scene
           and lied to the police about whether he had seen any of
           that day’s events. He was unavailable. Whether the
           evidence is exculpatory is also straightforward.
           Bonaccurso’s and [the witness’s] version of the
____________________________________________


       1
       As the majority points out, it is undisputed that the DNA evidence
was not available at the time of trial and is neither cumulative nor being
used solely to impeach credibility. See Maj. Op. at 11 n.2.



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J-S92021-16


         events, if believed, paints a picture of third-degree
         murder, not first-degree. When a defendant is found
         guilty of third-degree murder, that verdict implies a verdict
         of not guilty on the charge of first-degree murder.
         Therefore, testimony which would make more likely
         than not a change in degree from first to third is
         exculpatory.

Id. at 1200 (emphases added).       We further concluded that the evidence

would likely affect the outcome of the trial because if the witnesses were to

“testify at trial as they did at the PCRA hearing, it would be difficult for the

Commonwealth to prove the premeditation and lack of provocation which a

conviction for first-degree murder would require.” Id. at 1201. Therefore,

we reversed the PCRA court’s order and remanded for a new trial.

      Here, the majority ignores both the prosecution’s theory of the case,

which shaped the conduct of the 1977 degree-of-guilt hearing, and the

impact of the new DNA evidence on that theory.            At the hearing, the

prosecution argued, and the trial court accepted, that the presence of

seminal fluid, presumed to be Appellant’s, was proof of the intent required

for a first-degree murder conviction.    This theory was bolstered by Evans’

testimony that Appellant admitted killing the victim while perpetrating a

sexual assault. The trial court specifically credited Evans’ testimony, finding

it “[t]he most damaging” to Appellant and “more consistent with the

established facts” than Appellant’s “accidental theory,” which did not account

for the presence of seminal fluid in the victim’s body. Trial Ct. Op., 7/18/77,

at 5-6. According to the trial court, the seminal fluid “verifi[ed] . . . Evans’

testimony that [the victim] died protesting a sexual attack upon her” and


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“remove[d] all doubt” about the required premeditation for first-degree

murder. Id. at 6.

       In my view, the new DNA evidence excluding Appellant as the

contributor of the seminal fluid is exculpatory because it creates the

possibility of reasonable doubt regarding his mens rea at the time of the

murder.     The evidence directly contradicts, though it does not completely

disprove, the key inference on which the prosecution and the trial court

relied to convict Appellant of first-degree murder – that the victim died while

resisting Appellant’s sexual attack.           The evidence also calls into question

Evans’ credibility and supports Appellant’s position that the killing was not

intentional. Cf. Bonaccurso, 625 A.2d at 1200.2

       I also disagree with the majority’s conclusion that Appellant has not

met his burden of proving, by a preponderance of the evidence, that the

DNA evidence would likely have changed the outcome of his degree-of-guilt

hearing.    Contrary to the Commonwealth’s assertion on appeal, the record

shows that the sexual assault evidence was central to the prosecution’s

case. Three of the four Commonwealth witnesses discussed the evidence,

and the prosecutor emphasized it during his closing argument. 3 See N.T.,
____________________________________________


       2
       Were the factfinder to conclude that the killing was not intentional,
Appellant could only be subject to liability for either second- or third-degree
murder.
       3
        The prosecutor stated: “[A]ll of the words from [Appellant] are
consistent with the fact that this was an intentional killing; that at least it
(Footnote Continued Next Page)


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6/7/77, at 15-16, 20-21, 44-45, 56-57; N.T., 6/28/77, at 17.              More

critically, the trial court explicitly relied on the sexual assault evidence in

convicting Appellant of first-degree murder. See Trial Ct. Op., 7/18/77, at

6-7.   Under these circumstances, I cannot conclude that DNA evidence

would not have resulted in a different verdict.

       Two cases are instructive on this point.       In Commonwealth v.

Bulted, 279 A.2d 158, 159 (Pa. 1971), a jury convicted Bulted of first-

degree murder for the shooting of his wife. At trial, Bulted testified that the

gun discharged accidentally during an altercation with his wife about her

sexual relationship with another man, Francisco Matos.         Matos did not

appear at trial because the parties could not locate him. Id. at 160-61. The

prosecution relied heavily on Matos’s non-appearance, claiming that he was

a “phantom” witness. Id. at 161. After trial, however, Bulted located and

deposed Matos, and Matos’s testimony corroborated Bulted’s trial testimony

regarding Matos’s relationship with Bulted’s wife. Id.

       On appeal, our Supreme Court held that this evidence warranted a

new trial because “[t]he emphasis which the district attorney placed on the

supposed ‘phantom’ nature of Francisco Matos in his closing remarks is

indicative of the crucial importance which Francisco Matos and his supposed



                       _______________________
(Footnote Continued)

was a rape, that the facts of the case show that there was intercourse
between the two.” N.T., 6/28/77, at 17.



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J-S92021-16



non[-]existence played in the case presented by the Commonwealth.” Id. at

161-62.     The Supreme Court explained:
              When we further consider the great discretion
           given to a jury to choose between the various
           degrees of homicide, we believe that a second trial
           would be likely to produce a different result, even if
           the jury refused to believe any part of [Bulted’s]
           case other than that testified to by Francisco Matos.
           The jury would only have to take heed of the court’s
           charge in light of [Bulted’s] testimony, as now
           corroborated by Francisco Matos, to arrive at a different
           verdict, even if they found that [his] wife died because he
           pulled the trigger rather than because the gun went off
           accidentally, after she threatened to kill him. . . .

                                       ...

              Under the circumstances, it would be monstrously
           unjust to deny [Bulted] a second trial at which the jury will
           have an opportunity to weigh the testimony of Matos
           before reaching their verdict.

Id. at 162 (emphasis added).

      In Commonwealth v. Fiore, 780 A.2d 704, 708 (Pa.Super. 2001), a

jury convicted Fiore of criminal conspiracy to commit murder and criminal

solicitation.   Fiore subsequently sought PCRA relief based on the after-

discovered testimony of co-defendant Nikolai Zdrale, who was deposed 13

years after the alleged conspiracy.        Id. at 712.   At his deposition, Zdrale

testified that he and Fiore, while they disliked the victim, did not conspire to

murder him. Id.

      On appeal, this Court found that despite minor inconsistencies in

Zdrale’s    testimony,   his   testimony    directly   contradicted   that   of   two

Commonwealth witnesses, one of whom was a convicted perjurer and the


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other of whom admitted lying to police.        Id. at 713.   In concluding that

Zdrale’s testimony would likely produce a different verdict, we examined the

impact of such testimony on the prosecution’s theory of the case at the time

of trial:
               Mr. Zdrale’s testimony contradicts the Commonwealth’s
            case-in-chief. At trial, the Commonwealth contended that
            Mr. Zdrale was the middleman in the murder-for-hire
            conspiracy. He was the link between Mr. Fiore, the person
            who wanted [the victim] killed, and Mr. Smith and Mr.
            Thomas, the men hired to kill [the victim]. Mr. Zdrale
            professed that there was no conspiracy. We believe that a
            jury should be presented with the testimony of Mr. Zdrale
            to permit it to determine whether his version of the events
            is more credible than that of Mr. Smith and Mr. Thomas.

Id. at 714. Therefore, we concluded that Fiore “proved by a preponderance

of the evidence that . . . [Zdrale’s] testimony[,] if believed by a jury[,]

would likely have changed the outcome of the trial.”            Id.; see also

Bonaccurso, 625 A.2d at 1201 n.3 (“It is demonstrable that had the

defense known of the [newly-discovered] evidence . . . [,] the trial tactics

would have changed.”).

         In this case, the prosecution’s theory of the case, and the conduct of

Appellant’s degree-of-guilt hearing, almost certainly would have been

different had the DNA evidence been available in 1977. A factfinder should

be given the opportunity to weigh the DNA evidence along with the other

available evidence before determining Appellant’s appropriate degree of

guilt.




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J-S92021-16



     Accordingly, I would conclude that the DNA evidence excluding

Appellant as the contributor of the seminal fluid found in the victim’s body

requires a new degree-of-guilt hearing and, therefore, would reverse the

PCRA court’s order.

     For these reasons, I respectfully dissent.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/7/2017




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