J-S50009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

ALPHONSO SANDERS

                           Appellant                  No. 2200 MDA 2015


               Appeal from the PCRA Order November 18, 2015
      in the Court of Common Pleas of Lancaster County Criminal Division
                       at No(s): CP-36-CR-0003826-1999

BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JULY 21, 2016

        Appellant, Alphonso Sanders, appeals from the order dismissing his

second Post Conviction Relief Act1 (“PCRA”) petition.          Appellant contends

that the PCRA court erred by holding that the exclusion of the testimony and

evidence regarding the victim’s hair would not have changed the verdict.

We affirm.

        We adopt the facts and procedural history set forth in the PCRA court’s

opinion. See PCRA Ct. Op., 11/18/15, at 1-2. We also reproduce the facts,

as set forth by this Court’s prior opinion:

              Appellant, a resident of Columbus, New Jersey, was
           employed by Williams Telecommunications (Williams), a
           subcontractor for PECO. For several months prior to the
           victim’s death, Appellant was engaged in an extramarital

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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       affair with the victim.      Appellant was often observed
       providing transportation to the victim in the van provided
       to him by Williams, and the victim introduced Appellant to
       others as her boyfriend. Appellant and the victim engaged
       in sexual intercourse on a number of occasions throughout
       their relationship.    Also, Appellant provided monetary
       support to the victim, including payments for hotel rooms
       for the victim and a trip to Florida.

          On April 28, 1999, four days after the discovery of the
       victim’s body, Pennsylvania State Police established a time
       to interview Appellant regarding the victim’s death at the
       PECO headquarters in Philadelphia. When Appellant did
       not appear at the scheduled time, the troopers proceeded
       to his home in New Jersey and waited for him to arrive.
       The troopers observed Appellant, in his Williams van, slow
       down as he approached his driveway, but then pass
       directly by it. Accordingly, the troopers followed Appellant
       to an intersection where he failed to obey a stop sign.
       Thereafter, the troopers activated their vehicle’s
       alternating headlights to alert Appellant to pull over.
       Instead of heeding to the implicit directive of the police,
       Appellant initiated a chase in which his vehicle at times
       exceeded 70 miles per hour. Nearly five miles from his
       residence, police finally apprehended Appellant. In the
       midst of the pursuit, Appellant discarded a black leather
       gun holster in a sewer drain; however, the holster was
       recovered by police.

          After being apprehended, Appellant stated to police that
       he had been at home on April 23, 1999, from 9:00 PM until
       the next morning, and Appellant’s wife testified at trial that
       he had arrived at home at 8:45 PM. However, evidence of
       Appellant’s pager being called from his home phone
       number at 11:05 PM that evening belied the alibi
       statements.     Appellant’s alibi was also discredited by
       Detective Sergeant Edward Verbeke, who testified that he
       had overheard Appellant, while in custody, tell his wife that
       she had to tell “them” that he was at home on the night of
       April 23, 1999. Moreover, a dispatcher from Williams
       paged Appellant four times between 7:45 PM and 9:00 PM
       that evening, to which Appellant did not respond.
       According to the dispatcher, Appellant had never failed to
       respond to a page prior to April 23, 1999. The last known


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        location of Appellant on April 23, 1999 was the PECO
        Plymouth facility at 6:45 PM.

           As of July 24, 1999, a Sig Sauer P226 handgun was
        registered to Appellant. Appellant stated to police that he
        purchased the handgun in 1990, but then sold it at a bar
        to an unknown person during the summer of 1998. The
        bullet fragments found in the victims body were consistent
        with a number of handguns, including a Sig Sauer P226.
        Also, the holster discarded by Appellant on April 28, 1999
        was a type which could be used with the handgun.

           Appellant stated to police that he was familiar with the
        Peach Bottom Nuclear Power Plant (Peach Bottom)
        because he visited it monthly in the scope of his
        employment with Williams.        Peach Bottom is located
        directly across the Susquehanna River from Muddy Run
        Park and owned by PECO. Appellant worked at Peach
        Bottom on the morning of April 20, 1999, four days before
        the victim’s body was found.

           A search of the Williams van operated by Appellant
        yielded a pamphlet from Muddy Run Park, a cooler, a nylon
        bag, a wallet in the nylon bag, and a blanket. The victim’s
        family members identified the cooler, the nylon bag, and
        the wallet as possessions of the victim. The wallet was
        further identified as one which the victim was using
        immediately prior to her death.       The victim’s mother
        testified that she owned the blanket which was found.
        Additionally, traces of [the] victim’s blood and hair,
        established through a DNA analysis,[2] were found in the
        cargo area of the van.

            Appellant was subsequently charged with and tried for
        first degree murder. Following a 13 day trial, which

2
   We note that DNA analysis established that the blood belonged to the
victim. N.T. Trial, 7/20/00, at 1656. DNA analysis was not used on the
hair, as such testing was not routine at that time. Id. at 1735-36 (listing
items analyzed for DNA); R.R. at 1a (noting mitochondrial DNA testing of
hair became routine after December 31, 1999, which was after the date of
the forensic examinations in this case).




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        included the testimony of 67 witnesses, the jury found
        Appellant guilty.

Commonwealth v. Sanders, 1750 MDA 2000, at 1-6 (Pa. Super. May 22,

2001) (emphasis added and citations omitted).

     We add that at trial, a Federal Bureau of Investigation forensic

examiner testified and submitted a report comparing the victim’s hair to hair

recovered from the interior of Appellant’s van.        In pertinent part, the

examiner testified as follows on direct examination:

        You know, if I can compare that questioned hair to a
        known sample and compare all of those microscopic
        characteristics from root all the way to the tip, I can
        determine whether or not they exhibit the same
        microscopic characteristics. If that’s the case, I can
        conclude that the hair is consistent with coming
        from that person.

           Now, hairs are not a means of absolute personal
        identification. It’s not a fingerprint. But it’s rare for me
        to see two people’s hair samples that I cannot
        distinguish.

                                 *    *    *

        [District attorney:] Now, the opinions that you’ve given
        as far as the comparison and inclusion of [the victim’s]
        hairs that you’ve testified to this morning, are they to a
        reasonable degree of scientific certainty?

        A Yes.

N.T. Trial, 7/21/00, at 1848, 1854 (emphasis added).3



3
  As noted infra, the United States Department of Justice (“DOJ”) concluded
the emphasized testimony was erroneous. We acknowledge, however, that



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      Appellant was sentenced to life imprisonment.        On direct appeal,

Appellant challenged, inter alia, the sufficiency of the evidence. This Court

rejected Appellant’s claim, reasoning as follows:

         Appellant and the victim were engaged in an extramarital
         sexual relationship. Statements and evidence regarding
         Appellant’s whereabouts on the night of April 23, 1999 and
         Appellant’s contacts with the victim prior to that night were
         inconsistent, making the veracity of his alibi dubious. Due
         to Appellant’s employment, he was familiar with the
         remote area where the victim’s body was found. Traces of
         the victim’s blood were found in Appellant’s Williams van,
         along with personal items of the victim, including her
         wallet, and a brochure from Muddy Run Park. A handgun,
         consistent with the one used to kill the victim, was
         registered to Appellant, and he attempted to dispose of a
         holster, also consistent with the gun, when encountered by
         the police.

            Additionally, Appellant’s flight from police on April 28,
         1999 may be considered by the jury to show Appellant’s
         consciousness of guilt in the slaying. . . .

            In the case at bar, Appellant noticed the unmarked
         police vehicles near his home and, nevertheless, continued
         past. He then ran a stop sign and led police, who had
         activated their lights, on a chase for nearly five miles. In
         the midst of his flight from police, Appellant attempted to
         secret a gun holster, which connected him to the victim’s
         death.

Id. at 8-9.   This Court affirmed on direct appeal, and our Supreme Court

denied Appellant’s petition for allowance of appeal on September 21, 2001.

Commonwealth v. Sanders, 786 A.2d 987 (Pa. Sept. 21, 2001) (table).



a portion of the emphasized “testimony” was actually the district attorney’s
question. N.T., 7/21/00, at 1854.




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      Appellant filed a timely first PCRA petition, which the PCRA court

denied.   This Court affirmed on May 24, 2005, and our Supreme Court

denied Appellant’s petition for allowance of appeal on November 30, 2015.

See Commonwealth v. Sanders, 1106 MDA 2004 (Pa. Super. May 24,

2005), aff’d, 889 A.2d 1215 (Pa. Nov. 30, 2015) (table).

      On September 15, 2014, DOJ counsel sent a letter to the district

attorney for Lancaster County. The letter informed the Commonwealth that

the report and testimony of the FBI forensic examiner regarding the victim’s

hair was inaccurate. Attached to the letter was, inter alia, a July 18, 2013

report stating the examiner made inappropriate statements falling within two

categories of error:

          The examiner assigned to the positive association a
          statistical weight or probability or provided a likelihood
          that the questioned hair originated from a particular
          source, or an opinion as to the likelihood or rareness of the
          positive association that could lead the jury to believe that
          valid statistical weight can be assigned to a microscopic
          hair association. This type of testimony exceeds the limit
          of the science.

          The examiner cites the number of cases or hair analyses
          worked in the lab and the number of samples from
          different individuals that could not be distinguished from
          one another as a predictive value to bolster the conclusion
          that a hair belongs to a specific individual. This type of
          testimony exceeds the limits of the science.

R.R. at 5a.     The DOJ forwarded a copy of the letter and exhibits to

Appellant’s trial counsel, the National Association of Criminal Defense




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Attorneys, and the Innocence Project. R.R. at 3b. On November 11, 2014,

Appellant’s trial counsel forwarded the DOJ letter to Appellant. R.R. at 7a.

      On January 9, 2015,4 Appellant, pro se, filed a PCRA petition attaching

trial counsel’s November 11, 2014 letter.        The PCRA court appointed

counsel, who filed an amended PCRA petition that attached, inter alia, all of

the above-referenced DOJ correspondence. Appellant’s counsel’s brief also

cited testimony not referenced in the DOJ correspondence and contended

that testimony was similarly erroneous:

         1. Two hairs scraped from the blanket were consistent with
         head hairs removed from the victim [citing N.T. Trial at
         1852];

         2. A pubic hair originating from a Caucasian person was
         found on the blanket ([the victim] was a Caucasian) [citing
         N.T. Trial at 1862];

         3. A head hair scraped from the blanket [recovered from
         the interior rear of Appellant’s van] was observed to
         contain a red substance [citing N.T. Trial at 1853]. The
         hair was sent to [a different forensic examiner, whose
         testimony is not at issue,] who identified the substance as
         blood, although not necessarily human [citing N.T. Trial at
         1642].




4
  See generally Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa.
Super. 2006) (discussing prisoner mailbox rule). The PCRA court docketed
Appellant’s petition on January 14, 2015. The Commonwealth does not
challenge whether the PCRA court had jurisdiction over Appellant’s PCRA
petition. PCRA Ct. Op. at 5 n.5. Upon review, we agree. See generally 42
Pa.C.S. § 9545(b)(2) (stating petition should be filed within sixty days of
date claim could have been presented).




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Brief of Appellant Urging Post-Conviction Relief, 6/30/15, at 2.5 The parties

“agreed an evidentiary hearing was unnecessary.” PCRA Ct. Op. at 2. On

November 18, 2015, the PCRA court denied Appellant’s second PCRA

petition.     Appellant timely appealed and timely filed a court-ordered

Pa.R.A.P. 1925(b) statement.

      The PCRA court filed a Rule 1925(a) opinion citing the four-factor

after-discovered evidence test:

               To obtain relief based on a claim of after discovered
            exculpatory evidence, the defendant must prove that the
            evidence (1) could not have been obtained prior to the
            conclusion of trial by the exercise of due diligence, (2) is
            not merely corroborative or cumulative, (3) will not be
            used solely to impeach the credibility of a witness, and (4)
            would likely result in a different verdict if a new trial were
            granted. Commonwealth v. Foreman, 55 A.3d 532, 537
            (Pa. Super. 2012) (citing Commonwealth v. Pagan, 597
            Pa. 69, 106, 950 A.2d 270, 292 (2008)). The defendant
            must show by a preponderance of the evidence that each
            of these factors has been met in order for a new trial to be
            warranted. Foreman, 55 A.3d at 537 (citations omitted).

PCRA Ct. Op. at 4.

      Prior to extensively summarizing the evidence, the PCRA court opined

as follows:

               Moreover, [Appellant] in his brief exaggerates the
            significance of [the forensic examiner’s] testimony. Even if
            it were disregarded in its entirety, there is no reasonable
            basis to conclude that the absence of his testimony would
            result in a different verdict if a new trial were granted.

5
 Appellant’s brief also quoted other testimony not directly addressed by the
PCRA court in its opinion.




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           Excluding jury selection, [Appellant’s] trial lasted 13 days.
           The Commonwealth presented evidence from 60
           witnesses, excluding [the forensic examiner at issue], and
           introduced 212 exhibits. While largely circumstantial, this
           evidence was nonetheless more than sufficient to allow
           the jury to find Appellant guilty of murder in the first
           degree beyond a reasonable doubt.

Id. at 7 (emphasis added). After summarizing the evidence, the PCRA court

concluded, “Given all of the evidence presented, direct and circumstantial,

[Appellant] has not proven that the absence of the microscopic hair analysis

would have resulted in a different verdict.”                   Id. at 11 (emphasis

added).

        Appellant raises the following issue:

           Did the PCRA Court err and/or abuse its[] discretion in
           denying relief pursuant to § 9543(a)(2)(vi) by finding that
           the exclusion of Oien’s[, i.e., the forensic examiner,]
           testimony and all the inferences and arguments therefrom
           would not have changed the outcome of Appellant’s trial?

Appellant’s Brief at 4.

        Appellant contends that after excluding the examiner’s testimony,

there was insufficient testimony to sustain his conviction.         He argues that

the PCRA court erred by conducting a sufficiency analysis and should have

instead viewed the record “from the perspective of [sic] juror in a new trial—

with the Commonwealth bearing the burden of overcoming the Appellant’s

presumption of innocence beyond a reasonable doubt.”6                Id. at 14-15.


6
    Appellant cites no legal authority for this proposition.




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Appellant then exhaustively sets forth testimony and evidence that in his

view establishes reasonable doubt.

      The   Commonwealth       counters    that   the   disputed   testimony   was

minimally inculpatory.     Commonwealth’s Brief at 19.        It denied that the

PCRA court viewed the record in the light most favorable to the

Commonwealth. Id. at 20-21. The Commonwealth asserts that the PCRA

court “viewed the evidence through the eyes of a hypothetical jury” and was

ideally suited for the role, as the court had the opportunity to weigh the

evidence presented.      Id. at 21.    Alternatively, the Commonwealth insists

that regardless of how the record is viewed, the evidence against Appellant

was overwhelming. Id. The Commonwealth contends it established motive

opportunity, and underscores Appellant’s behavior prior to and after the

victim’s death, including the police chase.        Id. at 21-22.     We conclude

Appellant is not entitled to relief.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v. Abu-

Jamal, 941 A.2d 1263, 1267 (Pa. 2008) (citation omitted).              The PCRA

provides that a petitioner is entitled to relief if the conviction resulted from

the “unavailability at the time of trial of exculpatory evidence that has

subsequently become available and would have changed the outcome of the

trial if it had been introduced.” 42 Pa.C.S. § 9543(a)(2)(vi).



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         To obtain relief based upon newly-discovered evidence
         under the PCRA, Appellant must establish that: (1) the
         evidence has been discovered after trial and it could not
         have been obtained at or prior to trial through reasonable
         diligence; (2) the evidence is not cumulative; (3) it is not
         being used solely to impeach credibility; and (4) it would
         likely compel a different verdict.

Commonwealth v. Washington, 927 A.2d 586, 595-96 (Pa. 2007) (citing

Commonwealth v. D’Amato, 856 A.2d 806, 823 (Pa. 2004), and

Commonwealth v. Abu–Jamal, 720 A.2d 79, 94 (Pa. 1998)).7

      Initially, we assume that the DOJ correspondence qualifies as

“exculpatory” evidence. See 42 Pa.C.S. § 9543(a)(2)(vi). We acknowledge

that the PCRA court, somewhat inartfully, suggested that the record was

“more than sufficient” to permit a jury to find Appellant guilty.   See PCRA

Ct. Op. at 7. Preceding that phrase, however, the PCRA court held “there is

no reasonable basis to conclude that the absence of [the examiner’s]

testimony would result in a different verdict if a new trial were granted.” Id.


7
  The language can be traced to Ludlow’s Heirs’ Lessee v. Park, 4 Ohio 5,
44 (1829) (“In considering the motion, the court will not inquire, whether,
taking the newly discovered evidence in connection with that exhibited on
the trial, a jury might be induced to give a different verdict, but whether the
legitimate effect of such evidence would be to require a different verdict.”),
which was first cited by our Supreme Court in Commonwealth v.
Flanagan, 7 Watts & Serg. 415, 424 (Pa. 1844) (stating, “And in Lewellen
v. Parker [sic], (4 Har. O. R. 5), it is ruled that in considering the motion,
the court will not inquire whether, taking the newly discovered testimony in
connection with that exhibited on the trial, a jury might be induced to give a
different verdict; but whether the legitimate effect of such evidence would
require a different verdict.”). See also Commonwealth v. Carter, 116 A.
409, 410 (Pa. 1922).




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The PCRA court reinforced that holding at the end of its decision by

concluding Appellant “had not proven that the absence of the microscopic

hair analysis would have resulted in a different verdict.” See id. at 11.

In conjunction with the PCRA court’s recitation of the four-factor after-

discovered evidence test, id. at 4, we conclude the PCRA court properly

applied the applicable test. See Washington, 927 A.2d at 595-96. If the

DOJ correspondence was introduced at trial, we question whether the

legitimate effect of such evidence—given the entire record—would require

or likely compel a different verdict. See id.; Flanagan, 7 Watts & Serg. at

424.   As the PCRA court essentially observed, Appellant had motive and

opportunity.   See PCRA Ct. Op. at 8-9.    Accordingly, having discerned no

legal error, we affirm. See Abu-Jamal, 941 A.2d at 1267.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/21/2016




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