J-E02007-15

                              2015 PA Super 272

IN RE: JOHN MARSHALL PAYNE, III                  IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
APPEAL OF: COMMONWEALTH OF
PENNSYLVANIA
                                                      No. 1113 MDA 2013


                Appeal from the Order Entered May 22, 2013
               In the Court of Common Pleas of York County
            Criminal Division at No(s): CP-67-MD-1000291-1986


BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, J., DONOHUE, J.,
        SHOGAN, J., ALLEN, J., LAZARUS, J., MUNDY, J., and STABILE, J.

OPINION BY BENDER, P.J.E.:                       FILED DECEMBER 29, 2015

      Herein, the Commonwealth appeals from the trial court’s order

granting John Marshall Payne III’s request for DNA testing of physical

evidence taken from the crime scene of the homicide for which Payne was

convicted of second-degree (felony) murder and related offenses.             The

Commonwealth contends the trial court erred when it found that there was a

reasonable probability that the results of the testing could demonstrate

Payne’s “actual innocence,” as is necessary to assert a successful claim

under the DNA testing statute, 42 Pa.C.S. § 9543.1.            Specifically, the

Commonwealth argues that the legal framework of Payne’s felony murder

conviction precludes such a finding because, in order to convict him, the jury

was not required to determine whether Payne was the principal actor. After

careful consideration, we affirm the trial court’s order granting testing.

      The instant appeal concerns Payne’s pro se motion/petition titled “Post

Conviction Relief Act petition seeking DNA testing pursuant to 42 Pa.C.S. §

9543.1,” which he filed on June 14, 2012. However, the procedural history
J-E02007-15



of this case began decades ago. In 1986, Payne was found guilty of second-

degree murder, aggravated assault, burglary, and conspiracy, after a trial

adjudicating the following facts:

       On December 17, 1981, the body of a 90 year-old woman, Elsie

Rishel, was discovered in her home by members of her family.            N.T,

8/18/86-8/22/86 (vol. II), at 406. The victim died as a result of blunt force

trauma to the head from an unknown instrument, possibly a telephone found

near her body. Id. at 417.1 Rishel’s body was found in her blood-soaked

bed, with a pillow on top of her head. Id. at 427. A trail of blood ran down

from her body to a pool of blood on the floor.    Id. Rishel’s dentures and

eyeglass were left in the bathroom. Id.2

       Evidence found at the scene was consistent with the theory that the

murder had occurred during the commission of a burglary.             Rishel’s

residence appeared “ransacked,” with numerous drawers and trunks left
____________________________________________


1
  The testifying pathologist, Dr. Joan Gibble, suggested that Rishel’s death
was likely due to a maximum of three blows, or, stated another way, three
“identifiable areas of injury.” Id. at 420. Dr. Gibble believed that these
injuries were consistent with blows delivered from a telephone.          Id.
However, during cross-examination, Dr. Gibble was asked, “From your
experience and the extent of the injuries that you observed, could the
deceased have suffered such an injury that you observed by falling at
someplace in her house and returning to her bed?” Id. at 425. Dr. Gibble
answered, “Yes, she could have.” Id. at 426.
2
  This was significant because Rishel’s daughter had testified that Rishel
always placed her glasses right next to her bed when retiring for the
evening. Id. at 407.




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open and their contents strewn about “haphazardly.” Id. at 427.3 A single

set of footprints left in the snow around Rishel’s home led from the street,

around the home, and ultimately to a broken window. Id. at 462-63. The

window’s glass was broken inwards from the outside. Id. at 446. A single

set of footprints also led from the front door on a diagonal trajectory back to

the street. Id. at 463. The lead investigator, Officer Robert Harman of the

Springettsbury Township Police Department, indicated that there was

nothing identifiable obtained from the footprints that could be used for

comparison to any suspects. Id.

       Ultimately,    no    physical     evidence   tied   Payne   to   the   Rishel

burglary/murder; however, numerous pieces of physical evidence were

collected from the scene of the crime.           For instance, several fingerprints

were recovered, although none of the recovered fingerprints matched Payne

or his alleged co-conspirators.         Id. at 441-42.     Many of the fingerprints

either belonged to the victim or her family members. Id. at 445. However,

at least one unidentifiable partial fingerprint was found on the glass from the




____________________________________________


3
  According to Rishel’s daughter, a camera appeared to be the only item that
had been stolen. Id. at 407. Indeed, Rishel’s pocketbook was left on the
kitchen counter, and cash hidden in one of Rishel’s drawers had been left
untouched. Id. at 407-08.




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broken window.        Id. at 448-449.          This evidence, as well as other items

collected from the scene, were sent to the F.B.I. for testing.4

       In the absence of any physical evidence demonstrating his guilt,

Payne’s conviction was premised primarily on the testimony of three

Commonwealth witnesses: Deborah Wallick, Sonny Oglesby, and Christopher

Gibson. Wallick, Oglesby, and Gibson each purportedly heard Payne make

inculpatory    statements      to   them,       individually,   concerning   the   Rishel

burglary/murder.       Although their accounts of Payne’s inculpatory remarks

were consistent in broad strokes, there were some significant details that

varied between them. All three testified that Payne had told them that he

was accompanied by two cohorts during the home invasion, and that a

telephone had been used as the murder weapon.5                   However, their stories
____________________________________________


4
   Forty-four unique items were sent to an F.B.I. laboratory for testing.
Payne’s Petition for DNA Testing, 6/14/12, exhibit A.        In addition to
numerous fingerprints taken from the scene, these items included a black
plastic telephone, a screwdriver, glass from the broken window, the victim’s
clothing, numerous bed linens, blankets, pillows, tissues found under the
victim’s body, panties found on the floor in the bedroom, and vacuum
sweepings from the bedroom. Id.
5
  Additionally, there was testimony that Payne had revealed his knowledge
that the murder weapon was a telephone under suspicious circumstances.
Officer Daniel Garber of the Northern York County Regional Police
Department conversed with Payne in March of 1983 regarding an unrelated
investigation. During that conversation, Payne allegedly told Officer Garber
that a State Trooper was accusing him of beating a 90-year old woman to
death with a telephone. Officer Garber conveyed Payne’s comment to
Officer Harman.      Officer Harman had asked for assistance from the
Pennsylvania State Police in the Rishel investigation in January of 1982.
Trooper William Lenker had been assigned to provide that assistance.
(Footnote Continued Next Page)


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differed considerably with regard to other matters, such as whether Payne

had killed Rishel himself, as well as the identity of his co-conspirators.

      Wallick’s, Oglesby’s, and Gibson’s credibility were also suspect.

Wallick could only vaguely recall when and where Payne had incriminated

himself. Id. at 480, 483, 494. Related, perhaps, was Wallick’s admission

that she had been a heavy user of LSD at that time when Payne allegedly

confessed to his involvement in the burglary.             Id. at 491.   Additionally,

Wallick had previously been convicted of hindering prosecution. Id. at 489.

      Oglesby and Gibson were jailhouse informants who expected to

receive leniency in exchange for their testimony against Payne. At the time

of trial, Oglesby had pleaded guilty to third-degree murder in an unrelated

case, and had yet to be sentenced for that crime. Id. at 520. Part of his

plea bargain included his promise to testify against Payne regarding a

conversation the two had in prison, in which Payne purportedly inculpated

himself in Rishel’s death.          Id. at 528.      As he had been charged with

homicide generally, Oglesby could have been convicted of first-degree

murder in the absence of his plea.               Id. at 529.   Indeed, during cross-

examination, Oglesby admitted he knew that the District Attorney had




                       _______________________
(Footnote Continued)

Trooper Lenker testified that, as of March of 1983, he had not yet suspected,
nor even identified, the telephone as being the murder weapon.




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intended to seek the death penalty against him if his case had proceeded to

trial. Id.

      Additionally, Oglesby testified that police did not approach him about

obtaining information against Payne. Id. at 521. He claimed he volunteered

the information to the District Attorney’s Office.   Id.   However, Officer

Harman remembered things differently.      He testified that he “[r]eceived

street information that there’s a possibility that Sonny Olgesby had some

information pertaining to the homicide.”     Id. at 459.     Based on that

information, Officer Harman “got in contact with Mr. Olgesby.” Id. at 460.

      Gibson was charged with robbery, criminal conspiracy, and firearm

offenses before entering a plea bargain just prior to Payne’s trial.   Id. at

545. In exchange for his testimony against Payne, Gibson pled guilty to a

single theft offense and received “county time.” Id. at 550-51, 557. Gibson

testified that he had a conversation with Payne in the prison library on

August 15, 1986, just three days before the beginning of Payne’s trial. Id.

at 546. Gibson claimed that Payne approached him in the library and asked

him what he thought of his legal strategy of deflecting blame for the murder

of Rishel onto Rishel’s grandson.   Id.   Gibson said he asked Payne “who

really done it and he said himself and two other individuals….” Id. Gibson

also claimed that Payne had asked him a month and a half prior to the

August 15th conversation about finding someone to testify that Payne had

been employed during the month when Rishel was murdered. Id. at 548.




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     None of these witnesses had any independent knowledge regarding

the killing of Elsie Rishel apart from Payne’s inculpatory statements, and

Payne produced multiple witnesses to rebut Gibson’s and Oglesby’s

testimony.    The first of these defense witnesses was Wendell Murray.

Murray testified that he assisted Payne in the prison law library on August

15, 1986, the same day Gibson purportedly had a conversation there with

Payne.   Id. at 578.   Murray said that he and Payne were engaged in a

discussion of Payne’s case on that day. Id. Murray suggested that Gibson

could have learned details of the case by overhearing Payne’s conversation

with Murray in the close quarters of the prison library.   Id. Nevertheless,

Murray said Payne maintained his innocence in their conversations and, on

that specific day, Payne had not spoken directly to Gibson at all. Id. at 578-

79. Murray also said that Gibson and Oglesby knew each other, and that he

had observed them secretly conversing with one another in the prison

courtyard the following day. Id. at 580-81.

     William Jones, another defense witness, had been in the same pod as

Oglesby, and said that he and Oglesby became “close” while in prison

together. Id. at 589. He testified that Oglesby told him that Oglesby had

learned many of the details concerning Payne’s case from Officer Harman,

and not from his conversation with Payne.     Id. at 589-90.    These details

included a telephone being used as a murder weapon and the name of one

of Payne’s co-conspirators.   Id. at 590.   Jones also indicated that, in the

week before Payne’s trial, he had seen Oglesby and Gibson speaking

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together for two hours in the prison courtyard while secluded from the rest

of the inmates. Id. at 590-91.

     Payne    testified in   his own defense, and denied any level of

participation in the burglary or killing of Rishel. Id. at 610-42. He said he

did not learn that he was a suspect until 1983, and simply did not recall

where he was when the crime was committed. He also denied making any

inculpatory statements to Wallick, Oglesby, and Gibson.        Nevertheless,

based primarily on the testimony of those three witnesses, a jury convicted

Payne of the above-mentioned offenses. On March 23, 1987, the trial court

sentenced Payne to a mandatory term of life in prison.

     Payne filed a timely direct appeal, and this Court affirmed his

judgment of sentence in a memorandum decision filed on February 29,

1988. Commonwealth v. John M. Payne, III, No. 413 Harrisburg 1987,

unpublished memorandum at 4 (Pa. Super. filed February 29, 1988). It is

unclear from the record whether Payne sought review of that decision with

our Supreme Court.

     Soon thereafter, Payne sought production of certain documents held

by the Commonwealth for the purpose of pursuing post-conviction relief.

See Motion for Production of Documents Nunc Pro Tunc, 8/5/88. The trial

court denied the motion, and Payne filed a timely appeal from that decision.

This Court affirmed, concluding that the trial court did not err in denying

Payne’s motion as he was not entitled to discovery for post-conviction relief

where no post-conviction petition was pending before the trial court.   See

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Commonwealth v. John M. Payne, 624 Harrisburg 1988, unpublished

memorandum at 1-2 (Pa. Super. filed May 15, 1989), allocatur denied, 45

M.D. Misc. Dkt. 1990 (January 23, 1991).

        Payne subsequently filed his first PCRA6 petition on June 7, 1991,

wherein Payne continued to assert his innocence. See Payne’s 1991 PCRA

Petition, 6/7/91, at 3 (stating “Petitioner has maintained throughout all

proceedings that he is innocent of the charges that were brought against

him…”). The 1991 PCRA petition was denied on June 25, 1992, and Payne

filed a timely pro se appeal.         This Court affirmed “the dismissal of all of

[Payne]’s PCRA claims except those regarding his judgments of sentence for

conspiracy, burglary, and robbery.”            Commonwealth v. John M. Payne,

No. 00581 Harrisburg 1992, unpublished memorandum at 18 (Pa. Super.

filed April 30, 1993).7      Notably, this Court reversed Payne’s conviction for

conspiracy, holding that the statute of limitations for that offense had

expired when Payne was charged with it in 1986:

        The instant crimes occurred on December 17, 1981.            The
        applicable statute of limitations for conspiracy was two years.
        42 Pa.C.S. § 5552(a). On December 14, 1984[,] 42 Pa.C.S. §
        5551 was amended to provide that if a murder occurred then
        there is no statute of limitations regarding a conspiracy charge.
        The amendment did not apply to [Payne] since his crimes
        occurred three years prior to the amendment. [Payne] was not
____________________________________________


6
    Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq.
7
    Payne was convicted of robbery in an unrelated case.




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       charged until January, 1986 with the instant crimes. Hence, the
       statute of limitations had run on the conspiracy charge. His trial
       counsel was ineffective for failing to raise this issue and we find
       that the [PCRA] court erred in finding that counsel was effective.

Id. at 9.      This Court also found that double jeopardy barred Payne’s

sentence for burglary, as he had already been convicted and sentenced for

felony murder. Id. at 16. On remand, the trial court resentenced Payne, on

July 5, 1994, for the unrelated robbery conviction.8

       On June 14, 2012, Payne filed a pro se motion/petition titled “Post

Conviction Relief Act petition seeking DNA testing pursuant to 42 Pa.C.S. §

9543.1” (hereinafter, “Payne’s Petition for DNA Testing” or “the Petition”). 9

The trial court10 appointed counsel to represent him, and a hearing was held

____________________________________________


8
  While acknowledging that Payne’s sentences for conspiracy and burglary
had been vacated and declining (correctly) to reimpose sentence for those
offenses, the trial court failed to acknowledge that Payne’s sentence for
conspiracy had not merely been vacated—the conviction itself had been
reversed by this Court’s April 30, 1993 memorandum. See Order, 7/5/94,
at 2.
9
  Payne provided documentary evidence to the trial court, in the form of a
prison postage slip dated February 9, 2012, demonstrating that he
attempted to file the Petition on that date. However, that earlier petition
was not docketed in the lower court. Numerous pro se letters from Payne
subsequently appear in the docket prior to the June 14, 2012 refiling, in
April, May, and early June of 2012, although those letters have not been
preserved by the clerk of courts in the certified record. The trial court does
not address this matter in its Pa.R.A.P. 1925(a) opinion; however, the court
proceeded as if Payne’s petition was timely filed, and the Commonwealth
does not contend otherwise in its brief to this Court.
10
   This and all subsequent references to the “trial court” refer to the court
that received and ruled upon Payne’s Petition for DNA Testing unless
otherwise specified.



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on the matter on February 19, 2013. Subsequently, on May 23, 2013, the

trial court issued an order granting Payne’s Petition for DNA Testing.   The

Commonwealth filed a timely notice of appeal from that order and filed a

timely, court-ordered Pa.R.A.P. 1925(b) statement of errors complained of

on appeal.    The trial court issued its Rule 1925(a) opinion on August 15,

2013.

        The Commonwealth’s appeal was initially heard by a three-judge panel

of this Court.   In an unpublished memorandum, a majority of the panel

affirmed on the basis of the trial court’s Rule 1925(a) opinion, holding that

the trial court’s order granting DNA testing was supported by the evidence of

record and free of legal error. The panel majority also opined that the trial

court was presented with factors militating both in favor of and against DNA

testing under the applicable standard, and the court had reasonably applied

its discretion to grant testing in the circumstances of this case. See In re:

John Marshall Payne, III, 1113 MDA 2013 (Pa. Super. filed October 3,

2014) (unpublished memorandum) (withdrawn by order granting en banc

review on December 16, 2014).       One judge dissented, agreeing with the

Commonwealth that the jury’s verdict could withstand any possible result of

DNA testing. Id. (J. Bowes dissenting). The Commonwealth subsequently

filed a timely request for en banc argument, which was granted by per

curiam order dated December 16, 2014.        As a result of that order, the

October 3, 2014 memorandum decision was withdrawn.            Oral argument

before the instant en banc panel occurred on June 29, 2015.

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       The Commonwealth now presents the following question for our

review:

       Whether the court below erred as a matter of law in determining
       that DNA testing would produce exculpatory evidence that would
       establish [Appellee]’s actual innocence?

Commonwealth’s Resubmitted Brief (“Commonwealth’s Brief”), 6/30/15, at 4

(unnecessary capitalization omitted).

       “Post conviction DNA testing falls under the aegis of the [PCRA],[11]

and thus, ‘[o]ur standard of review permits us to consider only whether the
____________________________________________


11
  Nevertheless, as this Court explained in Commonwealth v. Williams, 35
A.3d 44 (Pa. Super. 2011), the PCRA’s jurisdictional time-bar does not
preclude a request for DNA testing made pursuant to Section 9543.1:

       An application for DNA testing should be made in a motion, not
       in a PCRA petition. Commonwealth v. Weeks, 831 A.2d 1194,
       1196 (Pa. Super. 2003). Though brought under the general
       rubric of the PCRA, motions for post-conviction DNA testing are
       “clearly separate and distinct from claims brought pursuant to
       other sections of the PCRA.” Commonwealth v. Perry, 959
       A.2d 932, 938 (Pa. Super. 2008). This Court has consistently
       held the one-year jurisdictional time bar of the PCRA does not
       apply to motions for DNA testing under Section 9543.1.
       Commonwealth v. Conway, 14 A.3d 101, 108 n.2 (Pa. Super.
       2011), appeal denied, … 29 A.3d 795 ([Pa.] 2011); Perry,
       supra at 938; [Commonwealth v.] Brooks, [875 A.2d 1141,
       1146 (Pa. Super. 2005)]. Another distinction of motions for DNA
       testing is that Section 9543.1 does not confer a right to counsel.
       Brooks, supra at 1147.

Williams, 35 A.3d at 50. Furthermore, Section 9543.1(f)(1) states:

       After the DNA testing conducted under this section has been
       completed, the applicant may, pursuant to section 9545(b)(2)
       (relating to jurisdiction and proceedings), during the 60-day
       period beginning on the date on which the applicant is notified of
(Footnote Continued Next Page)


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PCRA court's determination is supported by the evidence of record and

whether it is free from legal error.’” Conway, 14 A.3d at 108 (quoting

Brooks, 875 A.2d at 1144).              Additionally, where “the resolution of this

appeal involves statutory construction, which involves a pure question of

law, we review that aspect of the trial court's decision de novo and our scope

of review is plenary.” Id. Moreover, “the DNA testing statute, which was

passed unanimously by the Pennsylvania General Assembly, should be

regarded as a remedial statute and interpreted liberally in favor of the class

of citizens who were intended to directly benefit therefrom, namely, those

wrongly convicted of a crime.” Id. at 113.

      The pertinent statutory language at issue is as follows:

      (a) Motion.--

          (1) An individual convicted of a criminal offense in a court
          of this Commonwealth and serving a term of imprisonment
          or awaiting execution because of a sentence of death may
          apply by making a written motion to the sentencing court
          for the performance of forensic DNA testing on specific
          evidence that is related to the investigation or prosecution
          that resulted in the judgment of conviction.

          (2) The evidence may have been discovered either prior to
          or after the applicant's conviction. The evidence shall be
          available for testing as of the date of the motion. If the
          evidence was discovered prior to the applicant's conviction,
          the evidence shall not have been subject to the DNA
          testing requested because the technology for testing was
                       _______________________
(Footnote Continued)

      the test results, petition to the court for postconviction relief
      pursuant to section 9543(a)(2)(vi) (relating to eligibility for
      relief).




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       not in existence at the time of the trial or the applicant's
       counsel did not seek testing at the time of the trial in a
       case where a verdict was rendered on or before January 1,
       1995, or the applicant's counsel sought funds from the
       court to pay for the testing because his client was indigent
       and the court refused the request despite the client's
       indigency.
                                     …
     (c) Requirements.--In any motion under subsection (a), under
     penalty of perjury, the applicant shall:

       (1) (i) specify the evidence to be tested;

          (ii) state that the applicant consents to provide samples
       of bodily fluid for use in the DNA testing; and

          (iii) acknowledge that the applicant understands that, if
       the motion is granted, any data obtained from any DNA
       samples or test results may be entered into law
       enforcement databases, may be used in the investigation
       of other crimes and may be used as evidence against the
       applicant in other cases.

       (2) (i) assert the applicant's actual innocence of the
       offense for which the applicant was convicted;
                                    …
     (d) Order.--

       (1) Except as provided in paragraph (2), the court shall
       order the testing requested in a motion under subsection
       (a) under reasonable conditions designed to preserve the
       integrity of the evidence and the testing process 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.


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          (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 (“DNA Statute”).

       The sole issue presented for our review concerns the application of the

standard set forth in Section 9543.1(d)(2) and 9543.1(d)(2)(i). 12       Stated


____________________________________________


12
   President Judge Gantman, writing in dissent, believes that we cannot
reach this question because Payne “failed to establish the statutory
timeliness of his petition as mandated by the DNA statute at 42 Pa.C.S.A. §
9543.1(d)(1)(iii) and our Supreme Court’s decision in Commonwealth v.
Edmiston, 619 Pa. 549, 65 A.3d 339 (2013)….”               Dissenting Opinion
(Gantman, P.J.), at 1. Notably, the Commonwealth has never asserted the
untimeliness of Appellee’s DNA testing petition based on Section
9543.1(d)(1)(iii) or Edmiston. It is certainly true that, with respect to the
general timeliness provisions set forth in Section 9545(b) of the PCRA, this
Court may raise, sua sponte, issues concerning the timeliness of a PCRA
petition because “[t]he time requirements established by the PCRA are
jurisdictional in nature; consequently, Pennsylvania courts may not entertain
untimely PCRA petitions[,]” and “[w]hether [a petitioner] has carried his
burden is a threshold inquiry prior to considering the merits of any claim.”
Edmiston, 65 A.3d at 346. However, neither the Edmiston decision, nor
any other decision by a Pennsylvania Court to our knowledge, has ever
referred to the timeliness requirements of Section 9543.1(d)(1)(iii) as being
jurisdictional in nature, including the Edmiston decision itself. Simply put,
the notion that the PCRA’s timeliness requirements are jurisdictional in
nature refers exclusively to the timeliness provisions of Section 9545(b), and
not to the separate matter of timeliness as set forth in Section
9543.1(d)(1)(iii).

     This Court has previously discussed the relationship between the
PCRA’s jurisdictional time-bar and the DNA-testing provisions as follows:

(Footnote Continued Next Page)


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J-E02007-15


                       _______________________
(Footnote Continued)

      As we noted in Commonwealth v. Weeks, 831 A.2d 1194,
      1196 (Pa. Super. 2003), “Post conviction DNA testing does not
      directly create an exception to § 9545's one-year time bar. See
      42 Pa.C.S.A. § 9543.1.           Rather it allows for a convicted
      individual to first obtain DNA testing which could then be used
      within a PCRA petition to establish new facts in order to satisfy
      the requirements of an exception under 42 Pa.C.S.A. §
      9545(b)(2).      See 42 Pa.C.S.A. § 9543.1(f)(1).”         Accord
      Commonwealth v. Scarborough, [619] Pa. [353], 64 A.3d
      602, 609 (2013) (“the litigation of a motion for DNA testing
      under Section 9543.1 is, in substance, a wholly separate
      proceeding     from     litigation   of    a   PCRA   petition[]”);
      Commonwealth v. Williams, 35 A.3d 44, 50 (Pa. Super. 2011)
      (“This Court has consistently held the one-year jurisdictional
      time bar of the PCRA does not apply to motions for DNA testing
      under Section 9543.1.”).

Commonwealth v. Gacobano, 65 A.3d 416, 419 (Pa. Super. 2013)
(footnote omitted).

       In Edmiston, our Supreme Court conducted a thorough jurisdictional-
timeliness analysis of Edmiston’s multiple PCRA petitions, but did not include
in that discussion any reference to Section 9543.1(d)(1)(iii).              See
Edmiston, 65 A.3d at 345-353. After completing their analysis of Section
9545(b) issues, the Court then separately considered “[the a]ppellant's
motion for post-conviction DNA testing pursuant to 42 Pa.C.S. § 9543.1.”
Id. at 353. The Court noted that “the PCRA court first rejected the
Commonwealth's argument that [the a]ppellant's petition was untimely
under Section 9543.1(d)(1)(iii)….” Id. at 355. Thus, clearly the issue of
timeliness with respect to Section 9543.1(d)(1)(iii) had been preserved in
the PCRA court by the Commonwealth. Later, the Court referenced that
Section 9543.1(d)(1)(iii) was “implicated by the Commonwealth's argument
in this case[,]” strongly suggesting that the timeliness of the appellant’s DNA
petition pursuant to Section 9543.1(d)(1)(iii) was raised by the
Commonwealth on appeal.

      The Edmiston Court went on to hold that:

      Although the PCRA court did not make the requisite finding of
      timeliness, we see no need to remand for the court to do so
      because, as explained below, our own review of the record and
(Footnote Continued Next Page)


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briefly, the interplay between these provisions requires that DNA testing

“shall not” be ordered by the PCRA court if there is “no reasonable possibility
                       _______________________
(Footnote Continued)

      circumstances surrounding Appellant's post-conviction DNA
      testing request leads to the conclusion that this motion was
      untimely as a matter of law and was forwarded only to delay
      further the execution of the sentence.

Id. at 357.

      The above passage does not indicate that the Supreme Court
addressed the timeliness of Edmiston’s DNA-testing petition sua sponte, nor
does it suggest that review of timeliness under Section 9543.1(d)(1)(iii) is a
threshold, jurisdictional matter akin to the provisions of Section 9545(b).
Instead, it is clear from the context of the decision that the Edmiston Court
was responding to a specific argument raised by the Commonwealth on
appeal that had been preserved before the PCRA court. The PCRA court had
not addressed the timeliness of Edmiston’s DNA-testing petition under
Section 9543.1(d)(1)(iii), despite the Commonwealth’s arguments
specifically addressing that provision. Instead, the court denied Edmiston’s
DNA-testing petition on unrelated, “then-governing Superior Court
precedent[,]” which was reversed by the Supreme Court after the PCRA
court issued its order. Id. at 355.

      In the present case, however, the PCRA court never addressed
timeliness under Section 9543.1(d)(1)(iii) because the Commonwealth never
raised the matter below. In any event, the Commonwealth, before us now
as Appellant in this case, does not even present such a claim in their appeal.
Consequently, the matter has clearly been waived. See Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal.”). Indeed, even if the Commonwealth had no
affirmative burden to directly raise this matter before the PCRA court in
objection to Payne’s Petition for DNA Testing, it certainly bore the burden of
raising the Section 9543.1(d)(1)(iii) issue in its Rule 1925(b) statement,
which it did not do. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa.
1998) (“Any issues not raised in a 1925(b) statement will be deemed
waived.”).    Given that we have no precedential authority that the
requirements of Section 9543.1(d)(1)(iii) are jurisdictional in nature, or
otherwise involve the illegality of a sentence, we may not raise such matters
sua sponte, as President Judge Gantman suggests in her Dissenting Opinion.



                                           - 17 -
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that the testing would produce exculpatory evidence” that “would establish

… actual innocence of the offense for which the applicant was convicted.”

      Section 9543.1 frequently incorporates, yet fails to define, the term

“actual innocence.”      In Conway, 14 A.3d at 109, this Court applied a

definition of ‘actual innocence’ taken from “the United States Supreme Court

in its Opinion in Schlup v. Delo, 513 U.S. 298, 327 [] (1995), namely, that

the newly discovered [DNA] evidence must make it ‘more likely than not

that no reasonable juror would have found him guilty beyond a reasonable

doubt.’”

      Payne filed a pro se petition pursuant to Section 9543.1(a)(1) seeking

DNA testing of several items collected from the scene of the December 1981

killing of Rishel. Specifically, Appellant sought testing of the following items,

which have been retained and preserved by the F.B.I.:

              Brown head hairs exhibiting Caucasian characteristics
               found on Rishel’s bedsheet and nightgown, which the F.B.I.
               determined did not match the victim.

              Numerous blood samples taken from various locations in
               Rishel’s bed and bedroom.

              One brown pubic hair, exhibiting Caucasian characteristics,
               found on a blanket on the victim’s bed.

Payne’s Petition for DNA Testing, at 10 ¶ 10.

      The trial court ultimately granted Payne’s “request to perform DNA

testing on the evidence listed” in the Petition.    Trial Court Opinion (TCO),

5/22/13, at 2.      In reaching that conclusion, the trial court dismissed the

notion that the failure to match Payne’s DNA to the tested materials would


                                      - 18 -
J-E02007-15



demonstrate his innocence. Id. at 9 (“It is entirely possible, through luck or

concealment, that [Payne] left no DNA behind.”).          However, the court

recognized that Payne’s Petition for DNA Testing was not limited to that

theory. Payne also presented a “data bank” theory as a basis for testing, as

discussed in Conway. This theory “postulates that any DNA results that are

obtained from DNA testing that prove the presence of an unknown person

could be run through state and federal data banks for a match, which, if

successful, would lead to the identification of a separate assailant[.]”

Conway, 14 A.3d at 110.

      Assuming exculpatory results under this “data bank” theory, i.e., the

discovery of a heretofore unknown assailant, the trial court next considered

whether such results might demonstrate Payne’s actual innocence. The trial

court found that such a determination “turns upon the nature of the

evidence offered at trial.” TCO, at 10. After analyzing the weight of the trial

evidence demonstrating guilt, the trial court concluded that “[a] jury might

indeed   have   placed   more   emphasis     on   the   weaknesses   of    [the]

Commonwealth’s case if there were DNA evidence introduced and it did not

directly tie [Payne] to the murder scene.” Id. at 12.

      The trial court then went on to offer a secondary, policy-based reason

to conduct DNA testing in this case:

      Considering all of the above that is both for and against testing,
      the very best reason to test the evidence is the fact that the
      witnesses who testified regarding confessions all agreed on one
      salient point, namely, that there were three individuals who
      perpetrated the robbery that night. As such, DNA testing, in this

                                    - 19 -
J-E02007-15


     case, may result in additional charges and bringing to justice all
     guilty parties. Perhaps it would be a perversion of the PCRA
     statute, as it relates to DNA, if [Payne]'s request were to be
     granted, under the auspices of a statute designed to aid the
     wrongly convicted, in order to further [the] Commonwealth's
     own interests.      However, it is curious indeed that [the]
     Commonwealth's position at [Payne]'s trial was that there were
     three intruders into the victim's home, but that no testing should
     be done on available evidence when two of those intruders
     remain unknown and potentially on the loose. In point of fact,
     were the Commonwealth to appeal a ruling in favor of testing it
     might be inadvertently aiding other perpetrators to escape
     culpability.

TCO, at 12-13.

     Presently, the Commonwealth argues that the trial court erred in

granting Payne’s Petition for DNA Testing:

     In the instant case, [Payne] advanced two arguments in the
     court below for establishing his actual innocence: (1) there will
     be a lack of DNA evidence tying [him] to the murder, and such
     absence of evidence will prove that he was not present at the
     crime scene; and (2) DNA testing will establish the identity of
     the actual assailant thereby eliminating [Payne] as the assailant.
     The Commonwealth maintains that both arguments are flawed
     and do not mandate the granting of DNA testing.

Commonwealth’s Brief, at 19.

     The first scenario addressed by the Commonwealth concerns a

potential result of DNA testing that merely demonstrates the absence of

Payne’s DNA in the tested materials. The Commonwealth argues that such a

result—the mere absence of the accused’s DNA—would never justify DNA

testing under Section 9543.1. We agree with the Commonwealth that this

Court has routinely held that the absence of the accused’s DNA, by itself,

cannot satisfy Section 9543.1(d)(2)(i)’s “actual innocence” standard.



                                   - 20 -
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      For instance, in Commonwealth v. Heilman, 867 A.2d 542, 547 (Pa.

Super. 2005), the victim, Tamara Scott, died in 1987 from three gunshot

wounds to her head.     Id. at 543.    Initially, Heilman and Jerry Dixon told

police that Alex Dean had killed her.          Id.   Later, Dixon recanted his

statement, and revealed that he and [Heilman] concocted the story blaming

Mr. Dean while Heilman and Dixon were incarcerated together in the

Allegheny County Jail[.]”   Id.   The “true” story, Dixon testified, was that

while “acting as [a] jitney driver, [Dixon] took [Heilman] and Ms. Scott, who

was a prostitute picked up by [Heilman] in the downtown section of the city,

to a parking lot on the northside of the city. [Heilman] and Ms. Scott exited

the vehicle and went behind a building. A short time later, Mr. Dixon heard

gun shots and [Heilman] returned to the vehicle alone.”            Id. at 544.

[Heilman] was convicted of criminal homicide and gun charges. For those

offenses, Heilman was sentenced in 1990.

      In 2003, Heilman appealed from the trial court’s denial of his motion

for DNA testing filed pursuant to Section 9543.1.        On appeal, this Court

noted that Heilman’s “entire argument depend[ed] on th[e] premise” that

“an absence of DNA evidence would conclusively absolve him of culpability.”

Id. at 545. Specifically, Heilman argued that “‘[t]he killer obviously beat the

victim about her face and then shot her at close range’ and ‘obviously had

sex with her ... before he killed her,’” and thus Heilman “insist[ed] that if he

had murdered the victim, ‘his DNA would have been all over that crime

scene (including the victim's body and her clothing).’” Id. at 546. However,

                                      - 21 -
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the trial court rejected his argument, noting that even if semen not

belonging to Heilman were found in any of the evidence collected from the

victim or her clothing, the fact that the victim was a prostitute precluded

such evidence from effectively demonstrating Heilman’s “actual innocence.”

Id.

      This Court agreed and affirmed the trial court’s denial of Heilman’s

request for DNA testing, reasoning:

      Although we have already acknowledged … the paucity of
      precedent on the question presented, that does not free Heilman
      from the obligation to provide more than a bald assertion based
      on an unintuitive scientific premise. On its face, the prima facie
      requirement set forth in § 9543.1(c)(3) and reinforced in §
      9543.1(d)(2) requires an appellant to demonstrate that
      favorable results of the requested DNA testing “would establish”
      the appellant's actual innocence of the crime of conviction.
      Heilman has failed to make such a demonstration, nor could he.
      In DNA as in other areas, an absence of evidence is not evidence
      of absence. Furthermore, a murder suspect may be convicted
      on wholly circumstantial evidence, of which there was plenty in
      this case.

Id. at 546-47.    There was no evidence that Scott’s killer had intercourse

with her prior to shooting her three times in the head, nor was there

evidence that Scott struggled with her assailant before she was killed. Thus,

the absence of Heilman’s DNA in, on, or about the victim’s body and/or the

crime scene was inconsequential in the context of the facts supporting his

conviction in that case.

      Similarly, in Commonwealth v. Smith, 889 A.2d 582, 586 (Pa.

Super. 2005), we stated that “the absence of [the] appellant's DNA [in or on



                                      - 22 -
J-E02007-15



the evidence to be subjected to testing] cannot be meaningful and cannot

establish his actual innocence of the murder.” Smith sought Section 9543.1

DNA testing of his victim’s fingernails, hoping to demonstrate the absence of

his own DNA or the presence of another’s.          However, there was “no

evidentiary basis on which to infer that any DNA detected on the victim's

fingernails was deposited there by her assailant during the fatal attack.” Id.

at 585. Thus, the absence of Smith’s DNA could not be meaningful where he

could not establish any evidentiary basis upon which to believe that the

victim’s assailant’s DNA should be in, on, or about the evidence available for

testing.

      In Brooks, the appellant was convicted of killing the victim, Ethel

Mumma, who was shot in the head and stomach.           Brooks, 875 A.2d at

1146. In his Section 9543.1 petition, Brooks sought testing of “blood found

on any of the blood stained material, including hair fibers or skin tissue

which may have been found or [were] found on the victim or victim's

clothing.”   Id.   However, no evidence of record supported the contention

that the perpetrator had left behind biological material.       Id. at 1147.

Relying on Heilman, the Brooks Court concluded that “even if [the]

appellant's DNA was not at the crime scene, it would prove nothing.” Id.

      Thus, as Heilman, Smith, and Brooks demonstrate, this Court has

consistently held that the absence of a petitioner’s DNA, by itself, cannot

demonstrate “actual innocence” for purposes of Section 9543.1(d)(2)(i).

Yet, the quantum of evidence necessary to satisfy Section 9543.1(d)(2)(i)

                                    - 23 -
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above and beyond the absence of the petitioner’s DNA has never been

explicitly defined.13 In this regard, we are not aware of any authority that

holds or suggests that demonstration of “actual innocence” under Section

9543.1(d)(2)(i) requires a discovery of DNA from someone other than the

petitioner.   Instead, the quantum of evidence necessary to satisfy Section

9543.1(d)(2)(i) above and beyond the absence of the petitioner’s DNA has

been, and should continue to be, determined on a case-by-case basis, as

circumstances dictate.       Such circumstances might include the presence of

another person’s DNA, but not necessarily so. It is at least conceivable that

certain circumstances or facts, in addition to or in conjunction with the

absence of the petitioner’s DNA in a particular location, may satisfy Section

9543.1(d)(2)(i).14 However, to the extent that the Commonwealth asserts

that the absence of Payne’s DNA on the items to be tested would not, by
____________________________________________


13
   In most circumstances, the presence of a petitioner’s DNA in the tested
evidence will have an inculpatory effect. However, it would be improper to
state any absolute rule, as it is plausible that the presence of a petitioner’s
DNA in, on, or about specific evidence could serve an exculpatory purpose in
rare circumstances, such as where the presence of the petitioner’s DNA in
one location (and deposited at a certain time) would make it impossible for
the petitioner to be present to commit a crime at a different location.
14
   We alluded to such circumstances in Brooks, noting: “This is not a rape-
murder case where the absence of the defendant's semen could prove his
innocence; or a case where there were signs of a struggle and the
perpetrator left behind skin, hair, or blood samples.” Brooks, 875 A.2d at
1147. The absence of DNA evidence in a location where it is reasonably
expected to be found has profoundly different implications than does the
failure to discover DNA evidence in a location where no such reasonable
expectation can be articulated.



                                          - 24 -
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itself, establish a prima facie case that he is actually innocent, we agree.

Additionally, there are no circumstances in this case that, in combination

with the absence of Payne’s DNA in a specific location, would demonstrate

his actual innocence.

      However, Payne did not merely suggest in the Petition that the

absence of his DNA on the items to be tested would, by itself, demonstrate

his actual innocence of the crime for which he was convicted. While he does

assert that the absence of his DNA would be exculpatory, he also asserts

that DNA testing might reveal the identity of the person who actually killed

the victim. Payne’s Petition for DNA Testing, at 4-5 ¶ 2 (“Here, Petitioner

John Payne asserts that the requested DNA evidence would show the

absence of his DNA but Petitioner Payne says more.         Petitioner avers that

comparison of the DNA profile to state and national databases would reveal

the identity of the likely killer.”) (emphasis omitted).

      The Commonwealth argues Payne’s “data bank” theory still fails to

meet his burden under the DNA Statute because he was convicted as a

member of a conspiracy to burglarize the victim’s home. In this regard, the

Commonwealth contends that “[a]ny evidence produce by DNA testing that

revealed the presence of a person other than [Payne] at the crime scene

would not establish [Payne]’s innocence because inherent in the juror’s

verdict was a finding that there were others besides [Payne] who were

involved in the killing of Elsie Rishel.” Resubmitted Appellate Brief for the




                                     - 25 -
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Commonwealth (hereinafter “Commonwealth’s Brief”), at 15.         Explaining

further, the Commonwealth states:

     [Payne]'s second argument rests on the "data bank" theory
     discussed in … Conway…. In Conway, this Court explained that
     the "data bank" theory rests on the assertion that "that any DNA
     results that are obtained from DNA testing that prove the
     presence of an unknown person could be run through state and
     federal databanks for a match, which, if successful, would lead
     to the identification of a separate assailant." [Conway], 14
     A.3d at 110. What [Payne]'s argument overlooks is the fact that
     [he] was convicted of criminal conspiracy, meaning jurors
     specifically found that [Payne] acted in concert with other
     individuals to commit the crime of felony murder.             The
     Commonwealth's theory, supported by three witnesses who
     testified that [Payne] confessed to committing the killing with
     two accomplices, was that there were three intruders into the
     victim's home. Thus, even if DNA testing identified one of
     [Payne]'s two accomplices, those test results would not establish
     [Payne]'s actual innocence, because [Payne]'s guilt was
     predicated on the possibility that evidence linking others to the
     scene might exist. The court below rejected that aspect of
     [Payne]'s argument, too….

Commonwealth’s Brief, at 20-21.

     We disagree.      The Commonwealth’s theory, despite significantly

narrowing the array of potentially exculpatory results from DNA testing, is

not completely dispositive of Payne’s request for DNA testing, as discussed

below. First, the applicability of the Commonwealth’s theory to the instant

case is questionable since this Court reversed Payne’s conviction for

conspiracy in 1993. See Commonwealth v. John M. Payne, No. 00581

Harrisburg 1992, unpublished memorandum at 9-10 (Pa. Super. filed April

30, 1993) (finding trial counsel ineffective for failing to seek to quash the

conspiracy charge due to the then-in-effect statute of limitations). As such,


                                    - 26 -
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it is simply disingenuous for the Commonwealth to rely upon the jury’s

specific findings regarding Payne’s participation in a conspiracy when Payne’s

conviction for that crime was overturned after that verdict was issued.

Furthermore, if the Commonwealth were to retry Payne in this case, it will

be precluded from charging him with conspiracy on double jeopardy

grounds.     Thus, the Commonwealth’s theory—that the identification of an

unexplainable DNA profile in the tested evidence would not serve to

demonstrate Payne’s actual innocence because of his conspiracy conviction—

appears to fail on its face in the context of this case.                 Moreover, the

Commonwealth has simply not offered any basis upon which to suggest that

this Court can simply ignore that Payne’s conspiracy conviction no longer

stands.

       Second,     even    if   Payne’s        conspiracy   conviction   survived,   the

Commonwealth’s claim must fail.15                The Commonwealth’s argument too

narrowly construes the nature of Payne’s claim of innocence, in effect

suggesting that Payne is only challenging his conviction for murder, but not

his culpability as an accomplice or a co-conspirator to burglary. However,

____________________________________________


15
   We provide an alternative analysis out of an abundance of caution.
Although the “actual innocence” standard is not to be taken literally, it is
apparent that Payne’s conviction for conspiracy was not reversed on its
merits, but instead due to the Commonwealth’s failure to try him within the
then-applicable statute of limitations. Furthermore, Payne might have been
convicted of second-degree murder as an accomplice to the underlying
burglary even in the absence of a conspiracy conviction.



                                          - 27 -
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Payne has asserted his actual innocence for all offenses for which he was

convicted in this case.   The Commonwealth argues that Payne can never

demonstrate actual innocence because of his conspiracy and/or accomplice-

to-burglary convictions, but fails to explain why or how those underlying

offenses are immune from scrutiny given certain exculpatory DNA results

(notwithstanding the fact that Payne’s conviction for conspiracy has already

been overturned). Payne has maintained consistently that, not only did he

not kill Rishel, but that he was not a participant in the burglary of her home.

Without a doubt, results of DNA testing that merely show that Payne did not

leave his DNA at the crime scene, in the absence of any other evidence,

would not entitle him to a new trial. However, the question before the trial

court was whether to grant Payne’s Petition for DNA Testing, which demands

an inquiry into whether there is “no reasonable possibility that the testing

would   produce   exculpatory   evidence     to   establish   petitioner's   actual

innocence[,]” Smith, 889 A.2d at 584, not whether a particular result, or

category of results, would entitle him to a new trial. As discussed below, the

Commonwealth appears to consider only potential results of DNA testing that

are, in the context of the specific facts of this case, not exculpatory.

However, the statute itself dictates that the trial court assume exculpatory

results in evaluating a petition for DNA testing.     Conway, 14 A.3d at 110

(“[T]he statutory language requires reviewing courts to evaluate the ‘actual

innocence of the offense’ component by ‘assuming exculpatory results’ will

be obtained from the proposed testing.”); 42 Pa.C.S. § 9543.1(c)(3)(ii).

                                    - 28 -
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      Third, the Commonwealth does not adequately explain why DNA

testing that shows an unexplained DNA profile (or profiles) in the victim’s

bed would only serve to attack Payne’s identity as the actual killer, but not

his identity as a co-conspirator or accomplice to the crime of burglary. It is

not beyond the realm of imagination that certain results could also

undermine the Commonwealth’s theory that Payne acted as an accomplice.

Here, the most powerful evidence of Payne’s guilt of all offenses was his

purported confessions to Wallick, Oglesby, and Gibson.           Through the

testimony of those three individuals, it was established that Payne had acted

with the help of two accomplices or co-conspirators, but no independent

physical or circumstantial evidence of multiple burglars corroborates their

testimony.   Wallick was unaware of the accomplices’ names, but believed

that Payne had told her the accomplices were two men. Payne purportedly

told Oglesby that his accomplices were a man named Danny Edwards and

Payne’s ex-girlfriend, Melody.   Gibson’s testimony established that Payne

had two accomplices, one of which was named “Danny.”

      Thus, there are a limited number of potential DNA profiles that would

tend to outright support the Commonwealth’s case against Payne. First, and

most obviously, would be the discovery of Payne’s DNA profile in the

evidence to be tested.     Second, discovery of the DNA profile of Danny

Edwards and/or “Melody” would, in the context of the Commonwealth’s

evidence, not tend to prove Payne’s actual innocence.      Third, if testing of

the head and pubic hairs results in matches to the victim’s close relatives, or

                                    - 29 -
J-E02007-15



other persons with routine access to her home, such evidence would also be

difficult to construe as exculpatory.16

       However, these scenarios are not the only possible results of DNA

testing.   It is not difficult to imagine, however unlikely, results that could

deal a devastating blow to the soundness of the jury’s verdict in this case,

including whether or not there were multiple burglars—a fact entirely

dependent on the credibility of Wallick, Oglesby, and Gibson. If testing were

to reveal the DNA profiles of Wallick, Oglesby, and/or Gibson, such results

would not only be exculpatory, but could serve to completely undermine the

Commonwealth’s case against Payne. Similarly, if the DNA results were to

match some heretofore unknown culprit with a history of burglary-murders

which bear a striking resemblance to the killing of Rishel, and further

investigation reveals that person had the opportunity to commit this crime,

such results could easily allow Payne to demonstrate the unreliability of the

jury’s verdict in toto.17        The Commonwealth’s argument, while internally

____________________________________________


16
   The Commonwealth might find it more difficult to explain the presence of
a close relative’s DNA profile in the blood samples taken from Rishel’s bed.
17
   There were some facts in this case that tended to support a theory that
there was a single individual responsible for the murder of Rishel and the
burglary of her residence. For instance, there was only one set of footprints
in the snow leading to the broken window that was assumed to be the point
of the illegal entry into her home. There was only one set of footprints left
in the snow leading away from Rishel’s home. The only evidence of multiple
culprits derives from Payne’s purported confessions to Wallick, Oglesby, and
Gibson. Not only is there an absence of physical evidence connecting Payne
to these crimes, there is an absence of any evidence demonstrating that
(Footnote Continued Next Page)


                                          - 30 -
J-E02007-15



consistent given a relatively narrow scope of potential outcomes considered,

simply ignores other potential outcomes that could permit Payne to

demonstrate a prima facie case that he is actually innocent.

      We must emphatically state that, with respect to the burden on a

Section 9543.1 petitioner, “no reasonable probability” does not mean, “no

likely probability.” It should go without saying that the most likely result of

Section 9543.1 DNA testing will corroborate a petitioner’s guilt, confirm it

outright, or simply fail to cast significant doubt on the verdict. However, the

very purpose of Section 9543.1 must be to afford a petitioner the

opportunity to demonstrate the unlikely.18          The threshold question is,

therefore, not the likelihood of proof of innocence, but whether it is within
                       _______________________
(Footnote Continued)

these crimes were committed by more than one person apart from Payne’s
purported confessions to Wallick, Oglesby, and Gibson.
18
   The experiences of Amici Curiae, The Pennsylvania Innocence Project, and
The Innocence Project, emphasize this point. Since 1989, Amici Curiae
report that “at least 329 wrongfully convicted people have been exonerated
and released from prison on the strength of post-conviction DNA testing.”
Brief of Amici Curiae, at 8-9 (footnote omitted). “Many of the 329 DNA
exonerees were convicted on evidence far more “overwhelming” than that
used to convict Mr. Payne; yet through DNA testing those men and women
were able to show to a scientific certainty they were not guilty of the crimes
for which they were convicted.” Id. at 9. In nearly half of those cases, DNA
testing resulted in identification of the actual perpetrator. Id. As is
particularly pertinent to the present case, “in about 25% of DNA exoneration
cases, innocent defendants made incriminating statements, delivered
outright confessions, or pled guilty. Additionally, incentivized testimony—
including particular incentives that are not disclosed to the jury—were critical
evidence used to convict an innocent person in more than 15% of wrongful
conviction cases.” Id. at 10 (footnotes omitted).




                                           - 31 -
J-E02007-15



the realm of reason that some result(s) could prove innocence. In Heilman,

Smith, and Brooks, this Court sensibly determined that it was simply not

reasonable to believe that any DNA test results, even those presumed to be

exculpatory, could demonstrate a prima facie case of actual innocence of

those Section 9543.1 petitioners.

        In Conway, by contrast, this Court reached a different result. Conway

was convicted of stabbing Michele Capitano to death in 1986. Stated briefly,

on the day of the murder, Conway left his home to run some errands for

himself and his wife. He returned home 90 minutes later and told his wife

he had discovered a body at a local surgical supply store. The victim had

been raped and murdered. Conway told her that he attempted to untie the

bound victim, but after failing in that attempt, he returned home before

notifying authorities of his gruesome discovery. Conway was charged and

ultimately convicted of killing Capitano based upon numerous suspicious

circumstances. Years later, Conway sought testing under Section 9543.1 of

several items preserved from the crime scene.19 The trial court denied his

request, but this Court reversed that decision on appeal.

____________________________________________


19
     Conway sought testing of:

        [B]lood-stained paper towels found near the victim, fingernail
        clippings from the victim's hands, a piece of blue cloth that had
        been tied around the victim's hands; rape kit samples; the
        victim's blood-stained lab coat, the victim's blood-stained dress,
        the victim's blood[-]stained half slip, the victim's blood-stained
(Footnote Continued Next Page)


                                          - 32 -
J-E02007-15



      With regard to its analysis under Section 9543.1, the Conway Court

pointed to the following “salient” facts:

             [Conway] was convicted solely on circumstantial evidence.

             [Conway] does not deny that he was present at the
              murder scene—in fact he claims to have discovered the
              body, and subsequently advised his wife to report the
              crime to the police.

             [Conway], on the day of the homicide, provided a
              statement to the police in which he admitted touching the
              body of the deceased victim for the purpose of determining
              whether she was alive.

             The Commonwealth did not introduce any DNA or other
              scientific evidence tying [Conway] to the body of the
              victim or the location—specifically the bathroom—where
              the body was discovered.
Conway, 14 A.3d at 109.

      Conway advanced three theories of why DNA testing was warranted

under Section 9543.1:

      (1) a “redundancy” theory, which postulates that if the individual
      DNA tests reveal evidence of a third person on multiple items
      connected with the crime, then those “redundant” results would
      give rise to an inference of a separate assailant; (2) a “data
      bank” theory, which postulates that any DNA results that are
      obtained from DNA testing that prove the presence of an
      unknown person could be run through state and federal data
      banks for a match, which, if successful, would lead to the
      identification of a separate assailant; and (3) a “confession”
      theory, which postulates that an assailant who is discovered by
                       _______________________
(Footnote Continued)

      brassiere, the victim's pantyhose, and the victim's purse and
      contents thereof.

Conway, 14 A.3d at 107-08.



                                           - 33 -
J-E02007-15


      using the data bank theory could, when confronted with the DNA
      evidence, confess to the crime.

Id. at 110.

      The Commonwealth countered that testing would be inappropriate

because 1) “any results produced by DNA testing would be too ‘speculative,’”

and 2) the “overwhelming” nature of the circumstantial evidence. Id. The

Conway Court quickly rejected the second aspect of the Commonwealth’s

argument, stating that the “relative weight of the Commonwealth[’s]

circumstantial evidence would obviously be outweighed by the discovery of

relevant DNA evidence constituting substantial direct evidence of the identity

of a separate assailant.” Id.

      Next, the Conway Court addressed the Commonwealth’s speculative-

results argument, which included the Commonwealth’s assertion that

Conway’s “data bank” theory had been held in Smith to be unavailable to

Section 9543.1 petitioners. The Conway Court rejected that interpretation

of Smith.     The Conway panel instead determined that the Smith Court’s

holding was “clearly grounded in the facts of that case” and was not a

precedential foreclosure on all future “data bank” theory claims.   Id. at 112

(“[T]his Court's perfunctory dismissal of the data bank argument in Smith,

was not the precedential holding of that case. Rather, it was a sui generis

rejection of an alternative argument offered by that defendant, and its

impact should be confined to the facts and circumstances of that case.”)




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      The Conway Court went on to examine the specific facts of that case,

as well as overarching policy considerations, in concluding that Conway was

entitled to DNA testing:

             Here, … the evidence produced at trial, with the
         exception of the testimony of the jailhouse informant, was
         wholly circumstantial, and there was no prior history
         between the parties that would have suggested the
         occurrence of the violent incident that resulted in the
         decedent's death. Moreover, the victim's hands were tied
         with a cloth that would have most likely been in contact
         with the assailant's hands, and her clothing was ripped in
         such a way that indicated extensive contact with the hands
         of her assailant. Additionally, the investigators at the
         scene collected a multitude of sample material from the
         victim under the belief that she may have had contact with
         the skin of her assailant. Thus, there is no question that
         the development of additional evidence—evidence that can
         be easily obtained by DNA testing—will add to the
         reliability of the reconstruction of the events of that tragic
         day.

            The question that we must here confront is whether, in
         this situation, the Pennsylvania DNA testing statute should
         be interpreted in such a way as to prevent the comparison
         of easily obtainable test results with known data banks for
         the purpose of determining the person responsible for the
         crime in question. To pose the question is to provide the
         answer, for in this evolving world of increased DNA data
         collections, and the increased reliance thereon by law
         enforcement agencies, we should not summarily preclude
         defense counsel from using the data compiled in those
         “banks” to argue, in appropriate cases, that such evidence
         establishes the innocence of a person who has been
         charged or convicted of a crime. This is especially so since
         the Act specifically provides for the proactive use of this
         information by the Commonwealth in an effort to find and
         prosecute persons whose identities are revealed by this
         information.

Id. at 112-13.


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       As was the case in Conway, there is a complete lack of physical

evidence tying Payne to the crime scene.           However, in comparison to

Conway, there is far less circumstantial evidence suggestive of Payne’s guilt

than there was circumstantial evidence suggestive of Conway’s guilt.      The

strength of the Commonwealth’s case in this matter rested on the credibility

of three witnesses to Payne’s confessions. Yet, in Conway, there was also a

jailhouse informant who purportedly overheard Conway admit to killing the

victim.   All in all, the weight of the evidence in Conway demonstrating

Conway’s guilt appears at least as great, if not greater, than the weight of

evidence of Payne’s guilt in this matter.20

____________________________________________


20
    We are not at all dissuaded by the fact that Payne’s inculpatory
statements included a fact—regarding the use of the telephone as a murder
weapon—that was not a fact made public by the investigators. While that
fact clearly bolstered the weight of Payne’s purported confessions to Wallick,
Oglesby, and Gibson, it is not above scrutiny, as this Court’s unfortunate
experience in Commonwealth v. Godschalk, 679 A.2d 1295 (Pa. Super.
1996), demonstrates.       In that rape and burglary case, we rejected
Godschalk’s request for DNA testing because his “conviction rest[ed] largely
on his own confession which contain[ed] details of the rapes which were not
available to the public.” Godschalk, 679 A.2d at 1297.

      Subsequent DNA testing granted by the federal courts demonstrated
the narrow-mindedness of that decision. As Amici Curiae explain:

       On appeal to federal court, Mr. Godschalk alleged that the
       Commonwealth violated his constitutional rights by denying him
       DNA testing. Godschalk v. Montgomery District Attorney’s
       Office, 177 F.Supp. 2d 366, 369 (E.D.Pa. 2001). The District
       Court granted Mr. Godschalk’s motion for summary judgment
       noting,

(Footnote Continued Next Page)


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      As in Conway, too, there is clearly some evidence available in this

case for testing that could point to the identity of Rishel’s assailant.

Particularly, the hairs discovered in Rishel’s bed are already known not to

belong to her. Thus, the facts of the present case appear to offer at least as

good an argument for testing as was presented in Conway. In this regard,

this case bears a far closer resemblance to the facts of Conway than it does

to Heilman, Smith, and Brooks.               Accordingly, we conclude that the trial


                       _______________________
(Footnote Continued)

             [I]f by some chance no matter how remote, DNA
             testing on the biological evidence excludes plaintiff
             as the source of the genetic material from the
             victims, a jury would have to weigh this result
             against plaintiff's uncoerced detailed confessions to
             the rapes. While plaintiff's detailed confessions to
             the rapes are powerful inculpatory evidence, so to
             any DNA testing that would exclude plaintiff as the
             source of the genetic material taken from the victims
             would be powerful exculpatory evidence. […] Such
             contradictive results could well raise reasonable
             doubts in the minds of jurors as to plaintiff's guilt.
             Given the well-known powerful exculpatory
             effect of DNA testing, confidence in the jury's
             finding of plaintiff's guilt at his past trial,
             where such evidence was not considered,
             would be undermined.

      Id. (emphasis added). When that testing took place, the results
      fully exonerated Mr. Godschalk. The DNA testing revealed that
      police suggested facts to Mr. Godschalk—whether intentionally or
      negligently—which bolstered the reliability of his “confession.”
      Mr. Godschalk’s exoneration occurred in 2002—the same year
      the Pennsylvania Legislature passed the DNA Statute.

Brief of Amici Curiae, at 8-9 (footnotes omitted).



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court’s decision to grant DNA testing pursuant to Section 9543.1 was

supported by the evidence of record.

        The essence of the Commonwealth’s claim in this matter is ultimately,

therefore, a legal question.     The Commonwealth’s argument/theory is that

based on conspiracy or accomplice-based liability, the presence of another

assailant in this case cannot demonstrate Payne’s actual innocence.          As

discussed above, the Commonwealth’s argument in this regard is simply

overstated.    While Appellant’s felony murder conviction certainly limits the

array of DNA testing results that could assist in proving his innocence, it

does not exclude them all.       Accordingly, we conclude that the trial court’s

decision was also free of legal error.

        Order affirmed.

        Judges Panella, Donohue, Shogan, Lazarus and Mundy join this

opinion.

        President Judge Gantman files a dissenting opinion in which Judge

Stabile concurs in the result.

        Judge Stabile files a dissenting opinion in which President Judge

Gantman concurs in the result.

        Judge Allen did not participate in the consideration or decision of this

case.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/2015




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