J-S19024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

BENJAMIN CHAPMAN

                        Appellant                  No. 2286 EDA 2014


                Appeal from the Order Dated May 29, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0804241-1993


BEFORE: STABILE, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                         FILED APRIL 14, 2015

     The Commonwealth appeals from the order of the Philadelphia County

Court of Common Pleas granting Benjamin Chapman’s motion for post-

conviction DNA testing. We affirm.

     This Court summarized the facts as follows:

        [T]he evidence adduced at this trial was that on May 26,
        1993, Eunice Bell, a neighbor of the decedent, Carol Davis
        [the “victim”], saw the [victim] and [Chapman], whom
        she knew to have a steady relationship with the [victim],
        walking together toward the area where the [victim’s]
        body was discovered shortly thereafter. Celeste Brown, Ms.
        Bell’s daughter, heard a hostile conversation between the
        [victim] and [Chapman] shortly before she heard the shot
        and found [victim’s] body in the alleyway. Finally, Enika
        Davis, the decedent’s 16-year-old sister, testified that on
        the night of the killing, [Chapman] came to their house,
        that he was angry and spoke of killing someone, that he
        took a gun out of his pants and threatened the [victim]
        with it, that the [victim] said she was going to the store
        and coming right back, that the [victim] and [Chapman]
        left the house together going toward the area from where
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          Enika Davis heard a gunshot and where [the victim] was
          found dead shortly thereafter.

          These three witnesses testified that they did not see
          [Chapman] again after the shooting. Furthermore, the
          [victim’s] father testified that although [Chapman] worked
          for him, he also did not see [Chapman] again until after his
          arrest some two months later.[1]

Commonwealth v. Chapman, 3981 Phila. 1994 (Pa.Super. filed Dec. 20,

1995) (quoting trial court opinion).           In addition to the above-referenced

evidence, the victim’s neighbor, Oliver Turner, testified he saw Chapman and

the victim on the night of her murder at approximately 11:30 or 12:30.

N.T., 10/31/1994, at 106. However, he later saw the victim speaking with

another female neighbor; he did not see Chapman.             Id. at 107.   Further,

there was a sample of “fresh” type O blood collected from the crime scene.

Motion for Post-Conviction Collateral Relief, dated May 14, 2003, at Exh. 1-

B.2




____________________________________________


1
   The victim’s father also testified that he spoke with Chapman on the
morning following the murder and asked: “Man, what’s up? Why did you
kill my daughter?” N.T., 10/31/1994, at 43.
2
  Chapman maintains the type O blood sample did not match the victim’s
blood or his blood. Appellee’s Brief at 11, 14; Exh. G, H, I. His blood type is
type B. Appellant’s Brief at Exh. I. The Commonwealth merely states that
Chapman did not provide the victim’s blood type. Appellant’s Brief at 8.




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       In 2013, this Court summarized the case’s procedural history on

appeal from the denial of Chapman’s fourth request for relief pursuant to the

Post Conviction Relief Act (“PCRA”)3:

          On November 2, 1994, a jury found [Chapman] guilty of
          murder of the first degree and possessing an instrument of
          crime for the 1993 shooting death of his former girlfriend.
          On the following day, the trial court sentenced him to a
          term of life imprisonment and a consecutive two and one
          half to five years’ imprisonment. This Court affirmed the
          judgment of sentence on December 20, 1995.
          Commonwealth         v.   Chapman,       3981   PHL   1994
          (unpublished memorandum) (Pa. Super. Dec. 20, 1995).
          [Chapman] did not file a petition for allowance of appeal in
          the Pennsylvania Supreme Court.

          [Chapman], on January 17, 1996, filed a pro se PCRA
          petition, his first. The PCRA court appointed counsel, who
          filed an amended petition. The PCRA court denied the
          petition on June 3, 1997, without an evidentiary hearing.
          This Court affirmed the dismissal of [Chapman’s] first
          PCRA petition on December 7, 1998, and the Pennsylvania
          Supreme Court denied allowance of appeal on April 7,
          1999. Commonwealth v. Chapman, 2764 PHL 1997
          (unpublished memorandum) (Pa. Super. Dec. 7, 1998),
          appeal denied, 737 A.2d. 1223 (Pa. 1999). Thereafter,
          [Chapman] filed a second pro se PCRA petition on March
          29, 2000, which the PCRA court dismissed as untimely
          filed. This Court affirmed, and the Pennsylvania Supreme
          Court denied allowance of appeal. Commonwealth v.
          Chapman, 1529 EDA 2001 (unpublished memorandum)
          (Pa. Super. June 19, 2002), appeal denied, 814 A.2d 675
          (Pa. 2002). [Chapman’s] third PCRA petition was filed pro
          se on April 28, 2003, and dismissed by the court as
          untimely on June 8, 2004. This Court affirmed, and the
          Pennsylvania Supreme Court denied allowance of appeal.
          Commonwealth v. Chapman, 1904                  EDA 2004
____________________________________________


3
    42 Pa.C.S. §§ 9541-9546, et. al.



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        (unpublished memorandum) (Pa. Super. Feb. 11, 2005),
        appeal denied 882 A.2d 1004 (Pa. 2005).

        [Chapman], on May 3, 2010, filed the instant PCRA
        petition pro se, his fourth, averring that he came into
        possession of newly discovered, exculpatory evidence. The
        PCRA court appointed counsel, who, on March 14, 2011,
        filed an amended petition.         The counseled petition
        asserted, in relevant part, that: (1) [Chapman’s] newly
        discovered evidence claim was not time barred; and (2) he
        was entitled to DNA testing under 42 Pa.C.S. § 9543.1.
        Following the filing of a motion to dismiss by the
        Commonwealth, the court issued a Pa.R.Crim.P. 907(1)
        notice of intent to dismiss on May 23, 2012, suggesting
        that [Chapman’s] petition was untimely filed and that his
        issues were previously litigated. Appellant filed a response
        to the notice. The court, on July 2, 2012, dismissed the
        petition. This timely appeal followed.

Commonwealth v. Chapman, 2103 EDA 2012, at 1-3 (Pa.Super. filed Nov.

8, 2013) (unpublished memorandum).

     This Court affirmed the PCRA court’s denial of Chapman’s newly-

discovered evidence claim, but found the PCRA court erred in finding

Chapman’s request for DNA testing was previously litigated.      Chapman,

2103 EDA 2012, at 4-10. We, therefore, remanded to the PCRA court for

consideration of Chapman’s request for post-conviction DNA testing.

     On May 29, 2014, the PCRA court conducted a hearing and granted

Chapman’s request for DNA testing.       The Commonwealth filed a timely

notice of appeal. Both the Commonwealth and the PCRA court complied with

Pennsylvania Rule of Appellate Procedure 1925.

     The Commonwealth raises the following issue on appeal:

        Did the lower court err in granting defendant’s motion for
        post-conviction DNA testing where he failed to establish a


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           reasonable possibility that such testing would produce
           exculpatory evidence establishing his actual innocence?

Appellant’s Brief at 2.

        This Court has set forth the following standard of review of orders for

post-conviction DNA testing:

           Post-conviction DNA testing falls under the aegis of the
           Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa.C.S.
           §§ 9541–9546, and thus, “[o]ur standard of review permits
           us to consider only whether the PCRA court’s
           determination is supported by the evidence of record and
           whether it is free from legal error.” Moreover, because 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.

Commonwealth v. Conway, 14 A.3d 101, 108 (Pa. Super. 2011) (citations

omitted).

        Pennsylvania’s post-conviction DNA testing statute states, in relevant

part:
           (c) Requirements.--In any motion under subsection (a),
           under penalty of perjury, the applicant shall:

                                       ...

           (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.--

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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.

      The Commonwealth maintains the PCRA court erred because Chapman

failed to establish that DNA testing would produce exculpatory evidence

establishing actual innocence. Appellant’s Brief at 10-17. We disagree.

      The “actual innocence” requirement of section 9543.1 “requires that an

appellant demonstrate that there is a ‘reasonable possibility,’ that ‘favorable

results of the requested DNA testing would establish the appellant’s actual

innocence of the crime of conviction.”     Commonwealth v. Conway, 14

A.3d 101, 109 (Pa.Super.2011) (quoting Commonwealth v. Brooks, 875

A.2d 1141, 1147 (Pa.Super.2005)) (internal footnotes and emphasis

omitted). “[T]he newly discovered evidence must make it ‘more likely than

not that no reasonable juror would have found him guilty beyond a

reasonable doubt.’” Id. (quoting Schlup v. Delo, 513 U.S. 298, 327, 115

S.Ct. 851, 867, 130 L.Ed.2d 808, 836 (1995)).          Therefore, we, as the

reviewing court, must “make a probabilistic determination about what

reasonable, properly instructed jurors would do” if presented with the new

evidence.   Id. (quoting Schlup, 513 U.S. at 327).       Further, courts must


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review the “actual innocence of the offense” element by “assuming

exculpatory results will be obtained from the proposed testing.”      Conway,

14 A.3d at 110.

      Relying on Commonwealth v. Smith, 889 A.2d 582 (Pa.Super.2005),

the Commonwealth maintains the lack of Chapman’s DNA at the crime scene

is too speculative to warrant DNA testing.     Appellant’s Brief at 12-17.   In

Smith, this Court found the trial court properly denied the defendant’s

request for DNA testing of the victim’s fingernails where the defendant

claimed the absence of his DNA from underneath the victim’s fingernails

would prove his innocence.       The Court noted there was no evidence to

establish the victim scratched her assailant. It further noted that “[m]erely

detecting DNA from another individual on the victim’s fingernails, in the

absence of any evidence as to how and when that DNA was deposited, would

not exculpate appellant by pointing to a different assailant.”       The Court

found: “The statute does not contemplate the speculative type of argument

advanced by appellant; rather it requires a prima facie case that the DNA

results, if exculpatory, would establish appellant’s actual innocence.”

      In Conway, this Court discussed the holding in Smith, noting:

         [T]he defendant [in Smith] had been convicted of killing
         his paramour, and the Commonwealth, during the trial,
         had produced evidence that established (1) that the
         defendant had been apprehended a few hours after the
         victim’s body was found, and his clothes and the knife he
         was carrying “were stained with blood of the same type as
         the victim,” (2) that the defendant and the victim had
         been “involved in an abusive relationship,” (3) that the
         defendant had made prior threats “to kill the victim,” and

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          (4) that “[s]emen found on the victim’s leg matched that
          of [the defendant],” even though he had denied having
          sexual intercourse with the victim on the last night he said
          he saw her. In light of this overwhelming evidence, this
          Court held that the defendant’s post conviction request to
          perform DNA testing of the victim’s fingernail clippings was
          “entirely speculative” and did not constitute a “prima facie”
          case warranting court-ordered DNA testing.

Conway, 14 A.3d at 110-11 (internal footnotes and citations omitted).

       The Commonwealth also relies on the following footnote from Smith,

maintaining it defeats Appellant’s argument that the DNA results could be

compared with the national DNA databank:

          Appellant attempts to distinguish [Commonwealth v.
          Heilman, 867 A.2d 542 (Pa.Super.2005)][4] by arguing
          that he seeks to compare the DNA profile that may be
          detected on the victim’s fingernails with state and national
          DNA databases to identify the victim’s killer. Far from
          distinguishing Heilman, this argument only adds yet
          another layer of speculation to appellant’s already
          speculative rationale for DNA testing.

Smith, 889 A.2d at 586 n. 6.

       In Conway, this Court clarified the Smith footnote.          Conway, 14

A.3d at 111 (citing Smith, 889 A.2d at 586 n. 6). We explained that this

footnote did not establish a broad principle that a defendant could never

seek a comparison to the DNA databank and we found the footnote’s impact

was confined to the facts of Smith.            Id. at 112.   The court in Conway

noted:
____________________________________________


4
  In Heilman, this Court found the defendant failed to establish a prima
facie case of actual innocence where he argued the absence of his DNA at
the crime scene would exonerate him of the homicide.



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       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. Moreover, the stated policy of the General
       Assembly, as provided in the statute that created the
       Pennsylvania DNA data bank, and authorized its
       cooperative use with other law enforcement data banks,
       compels such a result. It provides, inter alia:

          DNA banks are an important tool in criminal
          investigations, in the exclusion of individuals who are
          the    subject     of   criminal    investigations   or
          prosecutions[.]

       44 Pa.C.S. § 2302(1) (emphasis supplied). Thus, this
       proactive use of available information that is already within
       the control of the Commonwealth is encouraged and even
       mandated by the General Assembly.

       To this end, 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. Such an interpretation is clearly
       supported by the legislative history of the Act, which
       contains the following explicit statement of intent as
       provided by one of the sponsors of the Act, the esteemed
       Senator Stewart J. Greenleaf:

          This legislation would provide [DNA] testing and
          provide a payment process for it and a process in


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              which an individual could easily present their case,
              and a judge could then decide whether they would
              be allowed to have the testing or not, and they
              would be allowed to have it if the evidence would
              prove their innocence[.]

                                          ***

              [T]here are occasions when DNA can convincingly
              establish the innocence of an individual. And so we
              will now join 13 other States in this nation that will
              provide for this process and to make sure that we do
              not have anyone in our prisons or on death row who
              is innocent.

           Commonwealth of Pennsylvania Legislative Journal, June
           19, 2001, pp. 745–746 (emphasis supplied). Thus, while it
           is certainly true that the General Assembly, in enacting the
           DNA testing statute, did not intend to encourage “fishing
           expeditions”      or    the   needless    expenditure     of
           Commonwealth funds to pursue frivolous claims of
           innocence, it did seek to ensure the most fundamental
           principle of American jurisprudence, namely, that an
           innocent man not be punished for the crimes of another.

Conway, 14 A.3d at 113-114 (emphasis deleted).

        In Smith, it was unclear whether there was any DNA to test and there

was direct evidence of the defendant’s guilt. Here, in contrast, there was no

direct evidence linking Chapman to the crime.           Additionally, there was

“fresh” blood at the crime scene location that Chapman maintains did not

belong to him or the victim.          The Commonwealth does not dispute this. 5

However, it is unlikely that someone not involved in the altercation with the

victim would have left “fresh” blood at the crime scene, and testing the type


____________________________________________


5
    Our review of the record does not reveal whether it is the victim’s blood.



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O blood stain to determine whether the blood was from the victim or

whether it matches an individual in the DNA database could reveal evidence

that could have a significant effect on the conclusion of a reasonable,

properly instructed juror. See Conway, 14 A.3d at 109. Therefore, under

our standard of review, we find the PCRA court did not err in ordering DNA

testing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/14/2015




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