J-S40005-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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: BENDER, P.J.E., BOWES, J. and PANELLA, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED OCTOBER 03, 2014

        This case involves a Commonwealth appeal from the PCRA1

order granting a request filed by Appellee, John Marshall Payne, III, for DNA

testing pursuant to 42 Pa.C.S. § 9543.1. The Commonwealth contends that

the court erred, as a matter of law, in determining that such testing would



innocence. After careful review, we affirm on the basis set forth in the PCRA



        On August 22, 1986, Appellee was found guilty of second-degree

murder, aggravated assault, burglary, and conspiracy. A brief summary of

the facts are in order: On December 17, 1981, the 90 year-old victim in this

case, Elsie Rishel, was found dead by family members. The victim had died

in her bed as a result of blunt force trauma to the head. There was evidence

____________________________________________


1
    Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541 9546.
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found at the scene that was consistent with a break-in and robbery.

However, no physical evidence directly tied Appellee to the crime.

Fingerprints were recovered from the scene, but none matched Appellee or

those alleged to be his co-

was premised on the testimony of several Commonwealth witnesses that

Appellee made inculpatory statements to them concerning the murder.



was consistent in broad strokes,2 there were significant details that varied

among the witnesses.3         There were also credibility problems with each of

these    key   Commonwealth         witnesses.   Nevertheless,   based   on their

testimony, a jury convicted Appellee of the above-mentioned offenses. On

March 23, 1987, the trial court sentenced Appellee to a mandatory term of

life in prison.

        On June 14, 2012, Appellee filed a pro se PCRA petition seeking DNA

testing pursuant to 42 Pa.C.S. § 9543.1. The PCRA court appointed counsel

to represent him, and a hearing was held on the matter on February 19,




____________________________________________


2
  Their testimony was consistent in that they claimed that Appellee had
stated that he was accompanied by two others during the home invasion,
and that the victi
3

culpability in the murder itself and with respect to the identity of his co-
conspirators.



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testing.   The Commonwealth filed a timely notice of appeal and complied



complained of on appeal.       The PCRA court then issued its Rule 1925(a)

opinion on August 15, 2013. 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


                                                       ion omitted).




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

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




applicable statutes and relevant case law, we concl



                                                     Id. Accordingly, we adopt

                       -reasoned Rule 1925(a) opinion as our own and affirm

on that basis. Nevertheless, a bit of clarification is in order.




factors that weighed against granting that request.        The circumstances of

the crime at issue suggest that if testing of physical evidence collected from

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C
                                                                4
                                                                    The appropriate



likely than not that no reasonable juror would have found him guilty beyond

                            Conway, 14 A.3d at 109 (quoting Schlup v. Delo,

513 U.S. 298, 327 (1995)). Furthermore, the governing statute directs our

courts to assume that the results from the proposed DNA testing are

exculpatory when considering the impact of such results on a reasonable

juror. 42 Pa.C.S. § 9543.1(c)(3)(ii).          In other words, a court must consider

the best case scenario for the petitioner from the proposed DNA testing and
____________________________________________


4
    Indeed, it is unlikely that DNA evidence could ever

the case of an alleged rape, discovering DNA other than that of the accused

innocen

affirmatively prove innocence.     This is because the presence of someone
                                             nces unrelated to the rape itself.
Ultimately, DNA evidence serves only to support or undermine the theories
of the prosecution, or the defense, and the credibility of evidence, physical,
testimonial, or circumstantial, supporting those theories.

      Nevertheless, no one can seriously doubt the applicability of the DNA
statute where the petitioner was convicted of committing a forcible rape
after asserting a wrongful identification defense, even if the foreign DNA
discovered in a rape kit could not literally prove his innocence. It is enough
that such evidence would likely change the mind of a reasonable juror who
would otherwise have found him guilty.



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consider whether that result, if available to a jury, would make it more likely

than not that no reasonable juror would have found him guilty.

      In this case, the PCRA court determined that such a result was

possible and, therefore, that it was appropriate to order DNA testing. The

crux of

the end of the day, were rejected by the PCRA court.                First, the

Commonwealth appears to contend that exculpatory evidence is not

attainable in this case.      That argument, however, is dependent on a




likely than not that no reasonable juror would have found him guilty beyond

                      Conway, supra.




that it convinced them of [Appelle



and foremost, it is illogical bootstrapping.   Every petitioner seeking relief

under the DNA statute had a jury (or judge) determine that they were guilty

beyond a reasonable doubt.      That fact has absolutely no bearing on the

question of whether, presented with new evidence, a reasonable juror would

have concluded differently.




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                                                                              ilt



conviction was based upon the testimony of witnesses who did not observe

the crime in question. Instead, these witnesses purportedly heard Appellee

make inculpatory statements.        While such evidence is sufficient to support



evidence of his guilt. Although there was physical evidence collected at the

scene of the crime, none of that evidence served to link Appellee to the



witnesses, but for the following.

      The   Commonwealth        suggests   that   what   makes   the   witnesses

testimony particularly compelling is the fact that Appellee purportedly

acknowledged the use of the phone as the murder weapon in the



had not been made public at the time Appellee purportedly made his

inculpatory statements.   However, the trial court notes that evidence was

presented to support the theory that the witnesses learned of that detail

from an investigating officer prior to giving their statements, rather than

from conversations with Appellee.           Furthermore, although there was

                            wounds were consistent with having been beaten

with the phone, there was no testimony or evidence demonstrating that the



blood or tissue on the phone.

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      Given the fact that the Com

testimony of witnesses who were not even witnesses to the crime itself,

there is a reasonable probability that certain DNA evidence, unavailable at

the time of trial, could have altered the credibility assessment made by a

reasonable juror. Although the PCRA court does not elaborate on what such

a result would look like, we have no trouble imagining such a scenario. For



discovered among the physical evidence to be tested, such a result would



preexisting credibly problems. It would also explain their familiarity with the

likely murder weapon and demonstrate a motive to inculpate Appellee. In a

case where the evidence was not overwhelming, such a result could have

had a significant effect in changing the mind of a reasonable juror with

regard to whether the Commonwealth met its burden in demonstrating

              t beyond a reasonable doubt.

      The question for the PCRA court was not whether attaining favorable

DNA results for Appellee is a likely result of testing.     The question was



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

         Conway, supra.       The PCRA court determined that Appellee met

this burden, and we ascertain that its conclusion is both supported by the

evidence of record and free of legal error.

      Order affirmed.

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     Judge Panella joins the memorandum.

     Judge Bowes files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/3/2014




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