J-S42026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GARY CLAY,                                 :
                                               :
                       Appellant               :   No. 1359 EDA 2018


                 Appeal from the Order Entered April 27, 2018,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0118521-1980.


BEFORE:      OTT, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.:                          FILED OCTOBER 18, 2019

        Gary Clay appeals, pro se, from the order denying his motion for DNA

testing filed pursuant to Section 9543.1 of the Post Conviction Relief Act

(“PCRA”). 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        The PCRA court summarized the relevant facts as follows:

              At trial, the Commonwealth presented the testimony of
           Philadelphia police detectives Francis Selgrath and Anthony
           Bonsera, Philadelphia police officer Kevin Corr, and [the
           victim]. [Clay] presented the testimony of Mary McNeill
           Greenwell and Carole Wardlaw. Viewed in the light most
           favorable to the Commonwealth as verdict winner, the
           evidence established the following.

              The victim . . . was sleeping in her home located at 102
           West Johnson Street in Philadelphia, during the early
           morning hours of September 3, 1979. No one else was in
           the home with her at the time. Around 6:00 A.M., [the
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S42026-19


        victim] was awakened by a squeaking noise from the floor.
        She then heard another noise, and saw [Clay] standing in
        her bedroom doorway. [The victim] recognized [Clay] as an
        employee of a thrift store that she had visited earlier that
        week. After [the victim] had purchased some fire place
        tools at the store, [Clay] had dropped the purchases off at
        [the victim’s] home.

            When [the victim] saw [Clay] in the doorway, she
        immediately screamed. [Clay] then jumped on top of her
        and began to punch her in the face and head. In order to
        silence [the victim], [Clay] stuck his fingers down her
        throat, and later gagged her. [Clay] also tied [the victim’s]
        hands behind her back, tied her feet, and placed a pillow
        case over her head. He then vaginally penetrated her with
        his penis. After approximately twenty seconds, [Clay] got
        up and rummaged around [the victim’s] room and then left.
        Following the incident, [the victim] was interviewed by
        detectives and identified [Clay] as her attacker [from] a
        photo array.

PCRA Court Opinion, 7/31/18, at 3-4 (citations omitted).

     The PCRA court further summarized the procedural history as follows:

           On June 26, 1981, following a jury trial before the
        Honorable Lynne Abraham, [Clay] was convicted of rape,
        burglary, aggravated assault, and robbery. On May 13,
        1982, the Court imposed an aggregate sentence of twenty-
        five to fifty years of incarceration. On May 25, 1984, the
        Superior Court affirmed [Clay’s] judgment of sentence, and
        on October 12, 1984, [our] Supreme Court denied allocatur.

           On August 4, 2009 [Clay] filed a pro se [PCRA petition],
        in which he claimed that the Court’s sentence was illegal and
        an abuse of discretion. As Judge Abraham had retired from
        the bench, the PCRA matter was reassigned to the
        undersigned[.]       On May 27, 2011, pursuant to
        Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
        1988), PCRA counsel filed a motion to withdraw as counsel
        and a letter stating that there was no merit to [Clay’s]
        claims for collateral relief. On July 28, 2011, the Court
        dismissed [Clay’s] petition. The Superior Court affirmed the
        dismissal of [Clay’s] PCRA petition on August 7, 2012.


                                    -2-
J-S42026-19


            On November 15, 2016, [Clay] filed a pro se motion for
         post-conviction DNA testing pursuant to 42 Pa.C.S. § 9543.1
         of the PCRA. In particular, [Clay] requested DNA testing of
         the victim’s clothing, rape kit, and other items. On March
         2, 2017, the Commonwealth responded to [Clay’s] motion,
         claiming that the requested DNA evidence was unavailable
         because it has been discarded pursuant to established
         protocol. However, the Commonwealth also stated in its
         response that the Philadelphia Police Department’s Evidence
         Custodian, Lieutenant Thomas Macartney, was continuing to
         search for physical evidence in the case.

             On March 21, 2017, [Clay] filed a motion for appointment
         of counsel, which the Court granted on April 25, 2017[.] The
         Court ordered an evidentiary hearing regarding the
         availability of DNA evidence, which was conducted on
         September 15, 2017. At the conclusion of that hearing,
         [Clay’s] counsel requested an opportunity to conduct further
         investigation, which the Court granted. The hearing was
         resumed on April 27, 2018. Because counsel’s investigation
         failed to uncover any new material, the hearing concluded
         without the submission of any additional evidence. The
         Court found that no DNA evidence was available for testing,
         and therefore denied [Clay’s] motion. In addition, after
         conducting a hearing pursuant to Commonwealth v.
         Grazier, 713 A.2d 81, 82 (Pa. 1998), the Court granted
         [Clay’s] motion to proceed pro se on appeal.

PCRA Court Opinion, 7/31/18, at 1-2 (citations omitted). This appeal followed.

Both Clay and the PCRA court have complied with Pa.R.A.P. 1925.

      Clay now raises the following issues on appeal, which we reproduce

verbatim:

         A. PCRA Court Has “Err” For failure To grant [Clay’s]
            Application To Withdraw PCRA Counsel and Be Allowed
            To Proceed Pro –Se Timely At The Evidentiary Hearing To
            [Cross] Examine Lieutenant Thomas Macartney?

         B. PCRA Court Has “Err” For failure To Allow [Clay] To
            Testify Once PCRA Court Was Placed On Notice That



                                    -3-
J-S42026-19


              [Clay] wishes To Testify Which Can Be supported By The
              Record?

          C. PCRA Court Has “Err” For [failure] To allow [Clay] To Call
             Relevant Witnesses That Had Pertinent Information
             Regarding Samples And Other Items identified Within His
             Motion For forensic DNA Testing That Were Destroyed?

          D. PCRA Counsel Has “Err[”] For Failure To rule on
             application For a Bail After Finding of Guilt Knowing That
             The Commonwealth Destroyed His DNA Evidence?

          E. Ineffective Assistance Of PCRA Counsel For Failure To
             Produce Evidence That Were In PCRA Counsel Possession
             Of Documents At The Evidentiary Hearing Relating To
             Ronald Castille, a Former District Attorney Approved To
             have Samples and Other Items Identified Within [Clay’s]
             Motion For Forensic DNA Testing Be Destroyed, Without
             [Clay’s] Consent. The Former District Attorney Ronald
             Castille and Police Department Held Ex Parte Proceedings
             With Judge Hirst That Granted their Motion For
             Destruction Of Property Without Defense Logging Any
             Objection?

Clay’s Brief at 2.1

       We review an order denying a motion for post-conviction DNA testing

as follows:

              Generally, the [PCRA] court’s application of a statute is a
          question of law that compels plenary review to determine
          whether the court committed an error of law. When
          reviewing an order denying a motion for post-conviction
          DNA testing, this Court determines whether the movant
          satisfied the statutory requirements listed in Section
          9543.1. We can affirm the court’s decision if there is any
          basis to support it, even if we rely on different grounds to
          affirm.

____________________________________________


1 Despite our granting two extensions of time, the Commonwealth has failed
to file a brief in this appeal.


                                           -4-
J-S42026-19



Commonwealth v. Williams, 35 A.3d 44, 47 (Pa. Super. 2011) (citations

omitted).

     Section 9543.1, in pertinent part, reads as follows:

        § 9543.1. Postconviction DNA testing

        (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 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


                                    -5-
J-S42026-19


       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[.]

                                   ***

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

       (i) identity of or the participation in the crime by the
       perpetrator was at issue in the proceedings that resulted in
       the applicant's conviction and sentencing; and

       (ii) DNA testing of the specific evidence,          assuming
       exculpatory results, would establish:

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

                                   ***

       (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.

       (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:



                                    -6-
J-S42026-19


           (i) would establish the applicant's actual innocence of the
          offense for which the applicant was convicted[.]

42 Pa.C.S.A. § 9543.1.2

       In addition to the above requirements, the PCRA petitioner may request

forensic DNA testing so long as that evidence is available for testing as of the

date of the motion. See, e.g., Commonwealth v. McLaughlin, 835 A2d

747, 750-51 (Pa. Super. 2003); Commonwealth v. Robinson, 682 A.2d 831

(Pa. Super. 1996).3 The PCRA court’s denial of Clay’s motion for DNA testing

was based upon its determination, after two hearings, that no evidence was

available for DNA testing. See PCRA Court Opinion, 7/31/18, at 6.

       In his issues raised on appeal, Clay essentially challenges this

determination. After careful review, we conclude that the Honorable Glenn B.

Bronson has prepared a thorough and well-reasoned opinion that correctly

disposes of each of Clay’s claims either because the claim is refuted by the

record or otherwise without merit. We therefore adopt Judge Bronson’s July

31, 2018 opinion as our own in disposing of the present appeal. See id. at 6-

11 (concluding: a) Clay never requested to proceed pro se during Lieutenant

Macartney’s testimony at the September 15, 2017 hearing; b) the PCRA court
____________________________________________


2We note that the Pennsylvania legislature rewrote this section, effective
December 24, 2018. See Act-2018-147, § 1.


3 The current version of Section 9543.1 now expressly requires that the DNA
evidence exist at the time the motion is filed. See 42 Pa.C.S.A. § 9543.1(a)
(2) (providing “[t]he evidence shall be available for testing as of the date of
the motion”).


                                           -7-
J-S42026-19



never denied Clay the opportunity to testify; c) Clay did submit a letter to the

court in which he asked to call twelve witnesses, but counsel represented him

at the time and was free to determine that these witnesses were irrelevant to

Clay’s motion for DNA testing; d) the PCRA court in fact denied Clay’s motion

for bail; and e) Clay’s claim of PCRA counsel’s ineffectiveness lacks arguable

merit since the documents to which Clay referred to were cumulative of

evidence introduced at the evidentiary hearing that established that property

was destroyed “pursuant to ex parte applications from government officials to

a judge, which resulted in a court order approving the destruction”).4

       Order affirmed.

    Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/19




____________________________________________


4The parties are directed to attach a copy of the trial court opinion to this
memorandum in the event of further proceedings.


                                           -8-
                                                                                                         Circulated 09/30/2019 01:08 PM

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..
,I
I
!•                                    IN THE COURT OF COMMON PLEAS                                   FILED
l
!                               FIRST JUDICIAL DISTRICTOF PENNSYLVANIA
                                . .   . . . CRIMINAL TRIALDIVISION                         2018JUL 31 PH 2: 51

             COMMONWEALTH OF
             PENNSYLVANIA
                                                       .I"'--.
                                                                      10;2,,",!I�� ·��m;
                                                        CP-51-CR�Dl                        v. �ray.��� ·
                                                                          ·Opm1911.              '   ·


             GARY CLAY
                                                            1111/H
                                                            "-
                                                                   fl 111/1/IIIIIII
                                                                 814350�811 .
                                                                                               -.·-.�
                                                    OPINION
             BRONSON.J
                  . . ' ·�                                                            JulyJI, 201�


                                        I. PROCEDURAL HISTORY

             On June 26� 1981, following a jury trial before the Honorable Lynne Abraham, defendant

     Gary Clay was convicted of'rape (18 Pa.C;S. § 3121), burglary (18 Pa.C.S. § 3502), aggravated

     assaultfl S Pa,C.S. § 2702), and robbery (18 Pa.C.S. § 3121). On May 13� 1982, theCourt

     imposed art aggr(;gate sentence oftwenty-fiveto fifty years incarceration. On May 25, 1984, the

     Superior Court affirmed defendant's judgment ofsentence, andon October 12, 1984, the

     Supreme Court denied allocatur.

            On August 4, 2009, defendant filed a pro se petition under the Post Conviction Relief Act

     ("PCRA'\ in which he claimed that the Court's sentence was illegal and an abuse.ofdiscretion.

     As Judge Abraham had retired from the bench, the PCRAmatter was reassigned to the

     undersigned trial judge. On May 27, 2011, pursuant to Commonwealth v. Pinley; 550 A.2d .213

     (Pa. Super. 1988), PCRA counsel filed a motion to withdraw as counsel and a letter stating that

     there was no merit to defendant's claims for collateral relief. On July 28, 2011, theCourt

     dismissed defendant's petition. The Superior Court affirmed the dismissal of defendant's .PCRA

     petition <>ll August 7, 2012;
        OnNovember 15� 2016; qefendant filed a pro se motion for post-conviction DNAtesting

 pursuant to 42 Pa.¢.S. § 9543.l of the PCRA. In particular, defendant requested DNA testing of

 the victim's clothing, rape kit, and other items. See Motion for DNA.Ballistic Forensic Testing

 Finger Prints Testing of Clothing and Swab Testing atp .. l. On March 2, 2017, the

 Commonwealth responded to defendant's motion, claiming that the requested DNAe�idence

 was unavailable because it has been discarded pursuant to established· protocol. However; the

 Commonwealth also stated in its.response
                                     .    that the Philadelphia
                                                             .  Police Department's Evidence

 Custodian, Lieutenant Thomas Macartney, was continuing to search for physical.evidence in the

case .. See Commonwealth's Motion to Dismiss Defendant's Petition for Post-Conviction DNA

Testing atp.5 n.3.

        On March 21, 2017, defendant filed amotion for appointment ofcounsel, whichtbe

Court granted on April 2?., 2017� appointing GaryS .. Server, Esquire to represent defendant. The

Court ordered an evidentiary hearing regarding the availability of" DNA evidence, which was

conducted on September 15, 2017 .. At the conclusion of that hearing, defense counsel requested

art opportunity to conduct further investigation, which the Court granted. N.T. 9/15/i 7 at40-42.
    !


The hearing was resumed on April 27, 20.18. Because counsel's investigation failedto uncover

arty new material, the hearing concluded without submission ofany additional evidence. The

Court found that no DNA evidence was available. for testing, and therefore denied defendant's

motion. N�T 4/27/18 at 6-7. In addition, after conducting a.hearing pursuant to Commonwealth

v. Grazier, 713 f\;2d 81, 82 (Pa. 1998), the Court granted defendant's motion to proceed prose

-on appeal. N.T. 4/27/J8 at Ll-15,




                                                2
         Defendanthas now appealed from the Court's order denying his motion for DNA testing,
raising five issues. See. Statement of Matters on Appear C'Statement of Matters"). i The issues

·set forth in the Statement of Matters are listed verbatim below in their entirety, without

corrections:

         a.       PCRA Court has "err» for failure to grant defendant's Application.to Withdraw
                  PCRA. Counsel and be allowed to Proceed Pro-Se timely at the evidentiary
                  hearing to cross examine Lieutenant Thomas Macartney;

         b.       PCRA Court has 'err' for failure. to allow defendant to testify once PCRA Court
                  was placed on notice that defendant Wishes to testify which can be supported by
                  the record;

         c.       PCRA Court has 'err' for failure to allow defendant to call relevant witnesses that
                  had pertinent information regarding samples and other items .identi.fied within his
                  Motion for Forensic DNA testing that were destroyed;                   ·

         d.       PCRA Counsel has 'err' for failure to rule on Application for a.Bail After Finding
                  of Guilt knowing that the Commonwealth destroyed his DNA evidence;

         e.       Ineffective Assistan of PCRA Counsel for failure to produce evidence that were in
                  PCRA Counsel. possession ofdocuments al the evidentiary hearing relating to
                  Ronald Castilleafcrmer Distinct Attorney approved to have samples and other
                  items idenitified within defendant's Motion for Forensic DNA testing be
                  destroyed within defendant's consent. The former District Attorney Ronald
                  Castille and Police Department held ex-parte proceedings with Judge Hirstthat
                  granted this motions for destruction ofprc;,perty without defense Iogging any
                 'objection.                                                            ·

Statement ofMatters at 11 a-e. For the reasons set forth below, defendant's claims are
                              .                                          .
withoutmerit, and the Court's order denying.defendant's motion for post-conviction DNA

testing should be affirmed:
                                           II. FACTUAL HISTORY

        At trial, the Commonwealth presented the testimony of Philadelphia police detectives

Francis. Selgrath and. Anthony Bonsera, Philadelphia police officer Kevin Corr, and Sandra



IAlthough.defendant labels his first claim as" 1/' he proceeds to label his followirig fout claims as "b"-"e'." for
consistency, defendant's first claim w.m be referred to as "a."                     ..

                                                          .3
Speight. Defendant presented the testimony of Mary McNeill Greenwell and Carole Wardlaw.

Viewed inthe light most· favorable to the Commonwealth as the verdict winner, the evidence

established the following.

        The victim, Sandra Speight, was sleeping in her home located at I 02 WestJohnson.Street

in Philadelphiaduring the early morning hours of September 3, 1979 .. N.T. 6/24/81 �t5. No

one else was in the home with her at the time, Id Around 6:00 A.M., Ms. Speight was

awakened by a squeaking noise from the.floor. N;t. 6i24/81 at 6. She thenheard another noise;

and saw defendant standing in her bedroom doorway. Id Ms. Speight recognized defendant as

an employee of a thrift store that she had visited earlier that week. N.T .. 6/24/81 at 11. After Ms;

Speight had purchased. some fire place tools at the store, defendant had dropped the purchases off

at Ms. Speight's.horne. N.T. 6/24/81 at 11, 13-1.5.

       When Ms. Speight saw defendantin the doorway, she immediately screamed. N.T,.

6/24/8 l .at 7. Defendant then jumped on.tcp of her and began to punch her in the face and head.

Id lri order to silence Ms. Speight, .defendant.stuck his fingers down herthroat, and later gagged

her. N.T. 6/24/81 at 9� Defendant also tied Ms. Speighfs hands behind her back, tied her feet;
and placed a pillow case over her head, N.T. 6/24/81.:at 18. H'.e then vaginallypenetrated her

with his penis. N..T. 6/24/81 at 21. After apJ)roximately twenty.seconds, defendant got up and

. rummaged around Ms; Speight's room and then left. N .T.6/24/81 at 22.;23. Following the

incident; Ms; Speight was interviewed by detectives and identified defendant as her attackerin'a

photo array. N;T; 6/24/81 at34.,.36.

                                        Ill. DISCUSSION

       The Post Conviction Relief Act authorizesa defendant in custody to. filea motion for

DNA testing. Whether the defendant is entitled to such testing is.governed by criteria set forth in


                                                 4
the statute. See 42 Pa;C.S ..§ 9.543.1. Among the requirements is that the evidence sought to be

tested ' shall be available-for testing as of the date of the motion, '' 4.2 Pa. C.S;. § 95.43 .1 (a)(2).
        4




Where the evidence defendant wishes to test has been lost Qr destroyed, there is nothing to test

and the motion is.properly denied. See Commonwealth v, ,McLaughlin, 835 A.2d 74 7, 750,Sl

(Pa. Super.2003) (motion for DNA testing of victim's.rape kitproperly denied where rape kit.

was no longer in existence).

         Here, at the evidentiary hearing on defendant's motion, the Commonwealth presented the

testimony of Lieutenant Thomas.Macartney, evidence custodian for the Philadelphia Police

Department. Lieutenant Macartney testified that at the request of the Commonwealth> he.

conducted-a search for any paperwork or physical evidence related to defendant's case. N.T.

9/15117 at 12, 14. According to Lieutenant Macartney, the policedepartmenfs computerized log

books revealed that there were three property receipts associated with the case. 2 N :T. 9/15/17 at

13-14. However.jhelog books did not identify the property that was documented on each

receipt. N.T. 9/I 5/l7 .at 25. Therefore, Lieutenant Macartney also conducted a search for the

physical propertyreceipts, but wasunabletolocate them. N:T. 9/15/17af21,23.

         The computerized records did. show, however, that the evidence documented on two of

the three property receipts had been destroyed in 1987 and 1988, respectivefyrpursuant to court

orders. N.T. 9/15/17 at 14�21. Although there was no record that the evidence recorded on the

third. property receipt had been destroyed, there was also no record of that prnperty ever being

received by the evidence custodian unit N.T� .9/15/17 at 14. The lieutenant explained that it was

possible that the: third property receipt was created but never used because it was not needed or



2
 A police department property receipt i.s a record used to record all items of property obtained. by the police during
an iilvestigatipn, Each receipt is assigned a unique number, They are used f() keep trackof property and to establish
chain of custody,

                                                          s
was.voided after a mistake was made. N.T. 9/15/17 atJJ., Moreover; the, lieutenant, along with

· two police officers, searched allstorage facilities where the evidence might have been stored, but

could not locate the property receipt or any evidence.relatedto this case! N.T. 9/15/l7at 27, 29.

In addition; Lieutenant Macartney reviewed records that would have revealed if any evidence in
the case had been signed out by anyone, and it had not. Id

        Based on his thorough investigation, Lieutenant Macartney concluded that with a

reasonable degree of certainty, all of the evidence from· this case. had been destroyed. N�T.

9/ l 5/17 at 35. The Court found Lieutenant Macartney to be credible.and concluded, on that

basis, that there was no evidence available in this case for DNA testing. N: T. 4/27/1.8 at 6 .. For

that.reason, the. Court denied defendant's motion. Id. Defendant now contends that the Court's

ruling should be.overturned for five reasons, each of which is discussed below.

       A. Court's Denial of.Defendant's Motion to Proceed ProSe t:l.l Evidentiary Hearing

       Defendant first.claims that the Court erred for failing to grant defendant's "Application to

Withdraw PCRA Counsel," so that he could proceed pro se at the evidentiary hearing and cross-

.examine Lieutenant Macartney, Statement of Matters at 1 a. However, defendant never

requested to proceed pro se during Lieutenant Macartney' s testimony during the.September 15,.

2017evidehtiary hearing. Rather. the record reveals that following Mr. Server's cross-

examination of the lieutenant, defendant said 'to Mr. Server: '�I would like for you to ask the

witness [Macartney] thatwas juston the standa couple ofquestions," N.T. 9/15/17 at 36.
                                                            -'.


Defendant then specified two additional areas for questioning, which were- then covered by Mr;

Server. N;T. 9/15/l7 a.J 36-38.   After that, the hearing was. concluded, except for a continuance
to allow Mr, Server an opportunity to. obtain thenotes of testimony from the 1981 trial inorder
to see ifthey revealed any helpful material. When the hearing resumed on ApriJ 27, 2018, Mr,
Server reported that he had found no helpful material. As a result, the Court then madeflndlngs

and issued its ruling based.on the record from the September IS, 2017 hearing;

         While defendant did ask to represent himself, he-failedto do so until December 9,.2017,

when he filed an Application to Withdraw PCRA Counsel and Proceed Pro-Se. However, by

that time, the entire evidentiary hearing had been concluded exceptfor Mr. Server's opportunity

to check the notes of testimony. When the hearing resumed in April of 2018, the Court advised.
defendant that he could hot take overpro se once the matterwas nearly completed. N.T. 4/27/18

at7. Moreover, defendant's complaints about Mr. Server; i.ncfodi�g his failure to call Governor

Rendell and the trial judge, Lynne Abraham, as witnesses, were baseless and not grounds to

grant an untimely request to proceed prose. However,       the. Court explained to defendant that he
could proceed prose on appeal if he wished to do so, which defendant ultimately elected to do,

N. r, 4/271l8 at 7, ll -15.
        Accordingly, defendant's request to represent himself was. untimely and properly denied.

No. relief is due.

        B. Failure. a/Court to Permit Defendant to Testify <it Evidentiary Hearing

        Defendant next claims that the Court erred by. not allowing defendant to testify at the

evidentiai:y hearing. Statement of Matters at 1 b. · This claim is without.merit.

        It.istrue thatat the September 15, 2017 evidentiary.hearing, when asked by defense

counsel if he wished to testify, defendant stated the following: ''Yes, 1 would like to testify.

Also, I would like for you toask the witneas.jl.ieutenant Macartney] thatwas just on the.stand a

couple ofquestions," N.T. 9/15/17 at 36. What followed was some additional questioning of

Lieutenant Macartney, and a.rgumetlt regarding counsel's desire tobifurcate the hearing so

counsel could conduct additional investigation. After that, the. Court was required to endthe



                                                  7
hearing for the day since the time allotted for the video hookup. JO. the prison had expired, N. T.

9115/17 at 36-42;3 When the hearing resumed ori April 'l.7, 2018, defendant never again

requested to testify .

        . Accordingly.fhe Court never denied defendantthe opportunity to testify at the

evtdentiarybeering. No relief is due.

        C. Failure ofCourt to Permit Defendan: IQ Ca(l Relevant Witnesses

         Defendant next claims that the Court erred. by not allowing defendant to call witnesses

who hadpertinent information regarding the DNA evidence that was destroyed, Statement of

Matters .at le. This claim is without merit.

        Hybrid representation of defendants in post-conviction proceedings is not permitted.

Commonwealth v-Jette, 23 A.3d 1032, 1036 (Pa .. 2011). As stated above, defendant was

represented by counsel throughout these proceedings and failed to request to represent himself

until the matter was nearly completed. As a result, the Court denied his request to represent

himself as being untimely. See, pp. 6-7, supra. It is.true that-defendant submitted aletter to the

Court on January 2; 2018, asking to call twelve witnesses at the hearing, including former district

attorney.Ronald Castille, and. the trialjudge, Lynne Abraham. Mr. Server.as defense counsel,

was free to determine that.these witnesses were Irrelevant to the motion .here at issue, and to

refrain from calling them. In any event, defendant at no time proffered any evidence from these

witnesses that would have, any bearing· on his application for DNA testing .. No relief is due.




3Tile. hearing was conducted without defendant's presence in court by us ing an audio/video hookup with the prison.
where defendant was incarcerated. Defendant.had waived his right to be. physically present and agreed to proceed by
video on that day. N.T. 9iJSil7 at 7-8.

                                                        8.
           D. Failure of Court to Rule on Defendant's Application/or Bail
           Defendant next claims that the Court erred when did not rule on defendant's application

for bail.after finding that.the Commonwealth destroyed defendant's DNA evidence." Statement

of Matters at , d.    This claim is frivolous, since the Court did rule on defendant's bail

application, denying it by orderdated February 9; ..201.8. In any event, defendant was not entitled

to bail,

           On December 9, 2017, defendant submitted an Application for Bail After Finding of

Guilt Regarding Newly Discovered Information of Crucial Documents ("Application for Bail"),
    .                                    .
claiming that he was entitled to bail because theevidence adduced at the September 15,.20{ 7

evidentiary hearing showed that the Commonwealth destroyed the DNA evidence from

defendant's case. See Application for Bail, filed.December 9, 2017 at p. l., In support of'his

claim, defendant argued that during the same period that the .DNA evidence was destroyed, the

Philadelphia District Attorney's Office, who approvedthe.destruction, conducted training

·s.eminars on raciafly-discriminatory practices during jury selection. Id.

            "[Al Post Conviction Relief Act petitioner may be.admitted to bail pending disposition

of the petition when such an order would be necessary in the interest of justice in certain.

exceptional cases for compelling reasons." Commonwealth. v. McMaster; 130 A:2d 524, 527 n. l

(Pa. Super. l999) (citing Commonwealthv.. Bonaparte,530 A.2d 1351, 1354,.55 (Pa. Super.

1987) (perKelly, J., with twojudges.concurring in result)). For example, bail may be

appropriate when it is "so obvious to the •.• court thatthe petitioner will ultimately prevail on the

merits of his [PCRA petition] that it would be manifestly unjust for him to continue to serve one



4While in his Statement of Matters, defendarit states that "PCRA counsel" erred for failing to rule on defendant's
application for ban, the Court assumes 'that defendant intended to claim that the Court erred; since defendant
submitted his application to 1he Court for Its ruling ori the matter.

                                                             9
more day ofincarceration asthe result of a conviction which madea mockery ofjusfice."

Bonaparte, 530 A.2d aLIJ55 (internal quotation omitted).

        Here, there were no compelling reasons for admitting defendant to bail. At the time of

defendant's application, Lieutenant Macartney had already credibly testified that.there was no

evidence available. for testing and thai all destruction .of evidence took place pursuant to court

orders. There was certainly no reason to believe that defendant was likely to prevail on his

motion. No relief is due..

        E. PCRA Counsel's Failure to Produce Evidence at the Evideruiary Hearing

       Defendant's final claim is thatP.CRA counsel was ineffective for failing to produce

evidence at the evidentiary hearing regarding the destruction ofevidence. In particular,

defendant claims thathis counsel was in possession of documents showing that former district

attorney Ronald Castille and. members. of the Police Department held ex parte meetings with

Judge Hirst in order to have property destroyed without defendant's consent. Statement of.

'Matters at ,re.This claim is without merit.

       Under Pennsylvania law, counsel is presumed to be effective and the burden to prove

otherwise lieswith thepetitioner. Commonwealth». Basemore, 744 A.2d 717,728 (Pa. .2000) •

. n. io (citing Commonwealth v.: Copenheifer, 719 A2d 242, 250 (Pa. 1998)). To obtain collateral

reliefbased on the ineffective assistance of counsel, a petitioner must show that-counsel's

representation fell below accepted standards of advocacy and that as a result thereof, the

petitioner was prejudiced. Strickland». Washingt<m, 46{> U.S. 668, 694(1984). In

Pennsylvania, the Strickland standard. is interpreted as requiring proof that: (1) theclaim

underlying the ineffectiveness claim had arguable. merit; (2) counsel) s actions lacked any·

reasonable basis; and (3) the ineffectiveness of counsel. caused the petitioner prejudice.


                                                 10
Commonwealth v. lvJJ/ter, 987 A.2d 638, 648 (Pa. 2009); Commonwealth». Pierce,527 A.2d

973,. 975 (Pa. 1987). To satisfy thethirdprong of the test, the petitioner must prove that, but for

counsel's error, there is a reasonable probability that the outcome of the proceeding would have

been different. Commonwealth v. Sneed, 899 A.2d .1067, 1084 (Pa. 2006). (citing Strickland; 466

U.S. at 694).

       Atrhe September' 15, 2017 evidentiary hearing, Lieutenant.Macartney explained that the,

destruction of property in this case was done pursuant to two court orders. According to

Lieutenant.Macartney, the police. commissioner requested the destruction of the property; along

with unrelated property from other cases. N:T. 9/15/17 at 16, 18, 20. The city solicitor's office

also requested the destruction. N.T. 9/15117 at 17-18, 2L In response, the Court ordered thatthe

evidence be destroyed. N. T. 9/15/17 at 19, 21. Atthe hearing, the Commonwealth presented the
actual court orders; which.stated that the DistrictAttorney's Office approved the-destruction.

See Commonwealth Exhibit.C-L

       Accordingly, the .record at the hearing established that the property was destroyed

following the completion of defendant's direct appeals pursuant to ex parieapplic.atiohs from

government officials to ajudge, which resulted inacourt order approving the destruction.

Therefore; any documents in the possession of defense counsel which would have proven that

the District: Attorney and the police department applied to the judge for the destruction of

documents without giving notice to the defendant would have been cumulative .and irrelevant to

defendant's motioii. A& a result; defense counsel could net have been ineffective for failing to

introduce such documents at the hearing. Noreliefis.due,




                                                 11
                                     IV. CONCLUSION
      For all of the foregoing reasons, the Court's order denying defendant's motion for post-

conviction DNA testing should be affirmed.

                                                    BYTHECOURT:

                                                                    ,.(··J
                                                                         ·.··· .
                                                                               .. ·..
                                                                .                .
                                                        .                     . .

                                                    GLENN B. BRONSON,].




                                               ·-
                                              l?
Commonwealth v, Gary Clay                                   CP-51-CR-0118521-1980
Type of Order: l92�(a) Opinion


                                    PROOF OF SERVICE


I hereby certifythat I am this day serving the foregoing Court Order upon the.persoms), and in
thernanner indicated below; which servicesatisfiesthe.requirements of Pa.R.Crim.P.J 14:


Defense Co.unsel/Party:
                             Gary Clay
                             AM-8402
                             SCI Forest
                             PO Box945
                             Marienville, PA 16239

Type ofService:       ( ) Personalt) First Class Mail (X) Other, please specify: Certified Mail


District Attorney:
                             Lawrence Goode; Esquire
                             Interim Supervisor, Appeals Unit
                             Office.of'the District Attorney
                             Three South Penn Square
                             Philadelphia, PA 19107.;.3499

Type of Service       () Personal O First Class Mail (X) Other, please specify:1nterofjice Mail


Additional CounseVParty:

                               Joseph D. .Seletyn, Esquire
                              Prothonotary
                             · Office ofthe Prothonotary - Superior Court
                               530 Walnut Street; Suite 315
                               Philadelphia, PA 19106

Type of'Service:      () Personal (X) First Class Mail() Other, please specify:


Dated: July 31, 2018




Law Clerk to Hon. Glenn B.. Bronson
