J-S79004-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                  Appellant                :
                                           :
                     v.                    :
                                           :
SALVATOR SCUDERI,                          :
                                           :
                  Appellee                 :   No. 1285 EDA 2014

              Appeal from the PCRA Order Entered March 19, 2014,
              in the Court of Common Pleas of Philadelphia County,
              Criminal Division, at No(s): CP-51-CR-1010101-1994

BEFORE:       ALLEN, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                     FILED MARCH 05, 2015

        The Commonwealth of Pennsylvania (the Commonwealth) appeals

from the order entered on March 19, 2014, which granted the motion of

Salvator Scuderi (Scuderi) for post-conviction DNA testing under Section

9543.1 of the Post Conviction Relief Act (PCRA).1 Upon review, we reverse.

        The PCRA court summarized the underlying background of this matter

as follows:

              In the afternoon of August 27, 1994, Ms. L.C., a thirty-
        seven year old African American woman suffering from epilepsy
        and schizophrenia was hitchhiking on I-95 in the Philadelphia
        area. The previous night she checked herself into Presbyterian
        Hospital, and then checked herself out again at approximately
        2:00 a.m. As she hitchhiked, she was still wearing her hospital
        gown underneath her clothing.


1
    42 Pa.C.S. §§ 9541-9546.




*Retired Senior Judge assigned to the Superior Court.
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           At some point that afternoon, [Scuderi] pulled over and
     offered L.C. a ride. She accepted, and they drove together for
     approximately one hour, making small talk, until [Scuderi] left
     the highway and parked near a secluded, wooded area of a
     dead-end street at the 2700 block of East Norris Street in
     Philadelphia. He removed the victim’s clothes and raped her,
     and then pushed her from his car, retaining all of her clothing in
     the vehicle. He then stepped out of the car and assaulted her
     with a wooden stick, penetrating her rectum and vagina, and
     kicked her. He then drove away.

            A warehouse worker saw the incident and called the police
     at 2:38 p.m., and Officer Michael Musial responded. He found
     the victim naked, confused, and bleeding. Shortly thereafter, a
     car drove by and the warehouse worker identified it to Officer
     Musial as being the one involved in the crime. Officer Musial
     pursued the car, but soon lost sight of it. Seconds later, another
     officer saw the car parked on the 800 block of Mercer Street, a
     few blocks from where the victim was ejected from the car.
     Police towed the car and traced its plate, which indicated that it
     was registered to [Scuderi]. The victim’s clothes were found in
     the car.

           Initially, [Scuderi] told police that he had attempted to
     report that his car was stolen earlier in the day, and denied any
     involvement in the crime. He said that he was at a doctor’s
     appointment on South Street, miles from the crime scene, but
     when he came out of the doctor’s office at 1:45 p.m., his car
     was gone. Several days later, police lured [Scuderi] by telling
     him that he could come to a police unit and pick up his car,
     which they had towed from the crime scene. When he arrived,
     police arrested and interrogated him, and within two hours he
     signed a statement drafted by Officer Nancy Radaszkiewicz in
     which he acknowledged having accepted oral sex from the victim
     and ejecting her from his car when she attempted to rob him.

            The victim identified an old mug shot of [Scuderi] from a
     photo array while she was in the hospital, seriously injured,
     sedated, and, in her own words, “messed up in the head.” She
     also identified him at trial.




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PCRA Court Opinion, 5/16/2014, at 2-4 (citations and footnote omitted).

      On May 15, 1995, a jury convicted Scuderi on one count of involuntary

deviate sexual intercourse and one count of aggravated assault.       Scuderi

was sentenced to two terms of 10 to 20 years’ imprisonment, to be served

concurrently. Scuderi did not file a direct appeal.

      Following several unsuccessful attempts at obtaining post-conviction

relief, Scuderi filed the instant motion for post-conviction DNA testing under

Section 9543.1 on May 7, 2013. Specifically, Scuderi sought DNA testing of

the rape kit collected by the Commonwealth immediately after the crime.

On November 15, 2013, the Commonwealth filed a motion to dismiss, to

which Scuderi filed a response on January 6, 2014.      On March 19, 2014,

after oral argument, the PCRA court granted Scuderi’s motion. On April 17,

2014, the Commonwealth timely filed a notice of appeal.

      The Commonwealth presents the following issue for our consideration:

“Did the [PCRA] court err in granting [Scuderi’s] motion for post-conviction

DNA testing where he did not make his motion in a timely manner, and, in

any event, there is no reasonable possibility that testing would produce

exculpatory evidence establishing his actual innocence?”    Commonwealth’s

Brief at 2.

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

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




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court’s determination is supported by the evidence of record and whether it

is free from legal error.’” Commonwealth v. Conway, 14 A.3d 101, 108

(Pa. Super. 2011) (footnote and citation omitted) (quoting Commonwealth

v. Brooks, 875 A.2d 1141, 1144 (Pa. Super. 2005)).

     Section 9543.1 of the PCRA provides, in relevant part, 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 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:

                                     ***



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          (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




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                       the execution of sentence         or
                       administration of justice.

           (2)   The court shall not order the testing requested in a
                 motion under subsection (a) if, after review of the
                 record of the applicant’s trial, the court determines
                 that there is no reasonable possibility that the
                 testing would produce exculpatory evidence that:

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

42 Pa.C.S. § 9543.1.

     Here, the Commonwealth argues, inter alia, that the PCRA court erred

in granting Scuderi’s motion for post-conviction DNA testing because there is

no reasonable possibility that such testing would produce exculpatory results

establishing Scuderi’s actual innocence for the offenses for which he was

convicted. We agree.

     This Court has previously observed that,

           [u]nder section 9543.1(c)(3), the petitioner is
           required to present a prima facie case that the
           requested     DNA    testing,   assuming    it  gives
           exculpatory results, would establish the petitioner’s
           actual innocence of the crime.         Under section
           9543.1(d)(2), the court is directed not to order the
           testing if it determines, after review of the trial
           record, that there is no reasonable possibility that
           the testing would produce exculpatory evidence to
           establish [the] petitioner’s actual innocence. From
           the clear words and plain meaning of these
           provisions, there can be no mistake that the burden
           lies with the petitioner to make a prima facie case
           that favorable results from the requested DNA
           testing would establish his innocence. We note that



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           the statute does not require petitioner to show that
           the DNA testing results would be favorable.
           However, the court is required to review not only the
           motion [for DNA testing], but also the trial record,
           and then make a determination as to whether there
           is a reasonable possibility that DNA testing would
           produce exculpatory evidence that would establish
           petitioner’s actual innocence. We find no
           ambiguity in the standard established by the
           legislature with the words of this statute.

     The text of the statute set forth in Section 9543.1(c)(3) and
     reinforced in Section 9543.1(d)(2) requires the applicant to
     demonstrate that favorable results of the requested DNA testing
     would establish the applicant’s actual innocence of the crime of
     conviction. The statutory standard to obtain testing requires
     more than conjecture or speculation; it demands a prima facie
     case that the DNA results, if exculpatory, would establish actual
     innocence.

Commonwealth v. Williams, 35 A.3d 44, 49-50 (Pa. Super. 2011)

(emphasis in original) (citations omitted) (quoting Commonwealth v.

Smith, 889 A.2d 582, 584-86 (Pa. Super. 2005)).2

     Here, the evidence presented against Scuderi at trial included the

victim’s identification of Scuderi as her attacker at a pre-trial photo array

and at trial. Scuderi’s car was identified as the one involved in the crime,

and the victim’s clothes were recovered from that car. Moreover, after

2
   Moreover, the “actual innocence” standard mandates that “newly
discovered evidence … make it ‘more likely than not that no reasonable juror
would have found [an applicant] guilty beyond a reasonable doubt.’ Thus,
this standard requires a reviewing court ‘to make a probabilistic
determination about what reasonable, properly instructed jurors would do,’ if
presented with the new evidence.” Conway, 14 A.3d at 109 (quoting
Schlup v. Delo, 513 U.S. 298, 327, 329 (1995)).



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initially denying any involvement in the crime, Scuderi provided a statement

to police wherein he acknowledged having accepted oral sex from the victim

and ejecting her from his car when she attempted to rob him. In light of

this evidence, we conclude that, even assuming the DNA testing showed the

presence of another man’s DNA, those results would not establish Scuderi’s

actual innocence for the crimes of involuntary deviate sexual intercourse and

aggravated assault.3 Such results would, at best, merely cast doubt on the

Commonwealth’s case by suggesting it could have been someone else; they

would not exclude Scuderi as the perpetrator.

        Because there is no reasonable possibility that the requested DNA

testing would produce exculpatory evidence to establish petitioner’s actual

innocence, the PCRA court erred in granting Scuderi’s motion under Section

9543.1.4 Accordingly, we reverse the order of the PCRA court.

        Order reversed.




3
    Scuderi was acquitted of rape.
4
   As a result of our conclusion above, we need not address the
Commonwealth’s timeliness argument. See Brooks, 875 A.2d at 1146
(declining to address the issue of whether an appellant’s petitions for post-
conviction DNA testing were filed in a timely manner because the Court
could dispose of the case on other grounds).


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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 3/5/2015




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