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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                   v.                   :
                                        :
SCOTT DOUGLAS OLIVER,                   :         No. 3092 EDA 2013
                                        :
                        Appellant       :


              Appeal from the Order Entered October 14, 2013,
           in the Court of Common Pleas of Northampton County
              Criminal Division at No. CP-48-CR-0002354-1989


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND STABILE, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED FEBRUARY 26, 2015

      Appellant appeals the order denying appellant’s petition filed pursuant

to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§9541 to 9546.

Finding no error, we affirm.

      We adopt the factual summary employed by this court when we

affirmed appellant’s judgment of sentence and first PCRA petition:1

                  [Appellant] supplied beer to a group of minors
            which included the victim, 11 year old Melissa
            Jaroschak, for a party on the afternoon of August 20,
            1989.     During the day, [appellant] was seen
            spending time alone with the victim and occasionally
            walking with his arm around her. They left the party
            together at about 8:30 p.m. that evening.



1
 Appellant filed a PCRA petition while his direct appeal was pending. It was
denied and appealed, and this court resolved both appeals by the same
panel and memorandum.
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                Melissa never arrived home. The following
          day, family and friends began a search for her. In
          the     ensuing    investigation    into    Melissa’s
          disappearance, the Easton Police learned that
          [appellant] had left the party with Melissa. When
          the police contacted [appellant], he told them that
          he had walked Melissa home after the party, but
          denied any knowledge of her current whereabouts.
          Later that afternoon, the police were unsuccessful in
          attempting to contact [appellant] a second time.
          The police told [appellant’s] mother to make him
          available the next day for questioning regarding the
          victim’s disappearance.

               Late that evening, the victim’s body was found
          near abandoned railroad property on the south side
          of Easton. The subsequent autopsy revealed that
          she had been beaten about the face and head,
          choked, raped, sodomized, and strangled with her
          own sweatshirt the previous evening.

                Following the discovery of Melissa’s body, the
          police contacted the six juveniles who had been at
          the beer party on August 20th. All of the juveniles
          essentially told the same story: [Appellant] had
          purchased the beer for the party, and [appellant]
          and the victim had left the party together.          In
          addition, one juvenile told the police that [appellant]
          had offered him marijuana.          Based upon this
          information, the police obtained an arrest warrant for
          [appellant], charging him with furnishing liquor to
          minors and corruption of minors.

                Pursuant to the arrest warrant, [appellant] was
          arrested at 6:45 a.m. on August 22, 1989. Shortly
          before the police arrived, [appellant’s] mother had
          awakened him so that he would be ready to meet
          with the police that morning to answer questions
          regarding Melissa’s disappearance. [Appellant] was
          informed of the arrest warrant and the charges
          against    him,    and    was    then     transported
          approximately two blocks to the police station.




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                   After [appellant] was read his Miranda rights,
           he signed a “rights arid waiver form” acknowledging
           that he understood his rights and voluntarily waived
           them.        During the subsequent interrogation,
           [appellant] confessed to the crimes regarding
           Melissa.         [Appellant]    signed,   dated,    and
           initialled [sic] a four page confession, handwritten by
           the interrogating officer, which detailed the beating,
           strangulation, and rape of Melissa. He also admitted
           furnishing beer to the juveniles. [Appellant] was
           immediately arrested for criminal homicide, rape,
           involuntary deviate sexual intercourse, and indecent
           assault.

Commonwealth v. Oliver, 635 A.2d 206 (Pa.Super. 1993) (unpublished

memorandum), August 20, 1993, slip memorandum at 2-3.

      On February 9, 1991, a jury found appellant guilty of first degree

murder, rape, involuntary deviate sexual intercourse, and indecent assault.

Appellant was sentenced to life imprisonment for murder that same day. On

October 16, 1992, additional consecutive sentences were imposed on the

other charges.

      On August 20, 1993, this court affirmed the judgment of sentence,

and   on   February   9,   1994,   our     supreme   court   denied   appeal.

Commonwealth v. Oliver, 635 A.2d 206 (Pa.Super. 1993) (unpublished

memorandum), appeal denied, 639 A.2d 30 (Pa. 1994).            As noted, the

denial of appellant’s first PCRA petition was affirmed at the time his

judgment of sentence was affirmed.       The record shows that a subsequent

PCRA petition was denied on July 1, 2002, as untimely.




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      On January 14, 2010, the Innocence Project filed the instant PCRA

petition on appellant’s behalf after receiving a December DNA test of one of

the victim’s vaginal swabs. The test excluded appellant from male genetic

material found on the swab.2          We note that the lab report from

Orchid Cellmark, the company that performed the DNA test, bears the

following disclaimer:

             Orchid Cellmark expressly disclaims any and all
             responsibility regarding the identity of the items
             received on September 9, 2009 listed above [the
             swabs and DNA extract from the victim and
             appellant].    These items were not collected in
             accordance with standard chain of custody
             procedures and, therefore, the DNA results may not
             be admissible in a court of law or any other judicial,
             administrative or quasi-legal hearing. The results in
             this report are intended for informational purposes
             only.

Report of Laboratory Examination, 11/12/09 at 1.

      Subsequent DNA tests proved either inconclusive or failed to exclude

appellant.    At this point, the Innocence Project sought and received

permission to withdraw from appellant’s case. On March 9, 2012, a hearing

was held on appellant’s PCRA petition, and on November 13, 2012, the PCRA

court denied appellant’s petition. In its subsequent opinion, the court based

its decision on the fact that the post-conviction DNA evidence “falls short of




2
  It is unclear what this genetic material was. A forensic pathologist testified
at appellant’s trial that there was no sperm or other evidence found that the
perpetrator had ejaculated. (Notes of testimony, 1/31/91 at 3096, 3150.)


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the convincing scientific demonstration of actual innocence.”        (PCRA court

opinion, 11/13/12 at 15.)

     On appeal, this court vacated the PCRA court’s order because the

PCRA court failed to use the proper standard for granting relief on the basis

of after-discovered exculpatory evidence; the petitioner need not establish

actual innocence, but only that the new evidence likely would have changed

the outcome of the trial.      Commonwealth v. Oliver, 82 A.3d 466

(Pa.Super.   2013)   (unpublished   memorandum),        June   21,   2013,   slip

memorandum at 4.      This court also ruled that the PCRA court considered

other improper evidence in reaching its decision. On October 14, 2013, the

PCRA court again denied appellant’s petition. In an opinion issued that same

day, the PCRA court employed the correct standard and otherwise cured the

errors this court had previously noted. This timely appeal followed.

     Appellant raises the following issues on appeal:

             1.   IS THE PCRA COURT’S OPINION DATED
                  OCTOBER 14, 2013, UNREASONABLE IN VIEW
                  OF THE FACTS, AND CONTRARY TO THE LAW
                  OR ORDER ISSUED BY THE SUPERIOR COURT
                  OF PENNSYLVANIA ON JUNE 21, 2013?

             2.   IS   THE   PCRA    COURT’S    DECISION
                  UNREASONABLE IN VIEW OF THE FACTS, AND
                  CONTRARY TO THE LAW, BY HOLDING THE
                  NEWLY DISCOVERED EXCULPATORY DNA
                  EVIDENCE WOULD NOT HAVE RESULTED IN A
                  DIFFERENT  OUTCOME    WHEN   BALANCED
                  AGAINST THE COMMONWEALTH’S PURELY
                  CIRCUMSTANTIAL EVIDENCE?




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            3.     WAS    THE  COURT’S   DENIAL  OF   THE
                   PETITIONER’S PCRA UNREASONABLE AND
                   ERRONEOUS UNDER THE LAW IN VIEW OF THE
                   AFTER-DISCOVERED    EXCULPATORY   DNA
                   EVIDENCE?

Appellant’s brief at 3. Although appellant purports to set out his argument

as three issues, he is essentially arguing only one issue:    that the PCRA

court erred in determining that his after-discovered DNA evidence would not

have changed the outcome of his trial.

      Our standard of review for an order denying post-conviction relief is

whether the record supports the PCRA court’s determination, and whether

the PCRA court’s determination is free of legal error.    Commonwealth v.

Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

certified record. Id.

      A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.   Commonwealth v.

Taylor, 933 A.2d 1035, 1038 (Pa.Super. 2007), appeal denied, 951 A.2d

1163 (Pa. 2008).

      Appellant’s judgment of sentence became final on May 10, 1994,

90 days after our supreme court denied appeal, and the time for seeking

further review with the United States Supreme Court expired.            See



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42 Pa.C.S.A. § 9545(b)(3); Rules of the Supreme Court of the United States,

Rule 13.1.       The instant petition, filed January 14, 2010, is manifestly

untimely and cannot be reviewed unless appellant invokes a valid exception

to the time bar of the PCRA. See 42 Pa.C.S.A. § 9545(b)(1)(i-iii).

      In his PCRA petition, appellant asserted an exception under the

after-discovered facts exception, 42 Pa.C.S.A. § 9545(b)(1)(ii), that being

the newly received DNA test results.         We initially note that any petition

purporting to invoke one of the time of filing exceptions must be filed within

60 days of the date the claim could have been presented.           42 Pa.C.S.A.

§ 9545(b)(2). Appellant’s counsel received the test results on December 7,

2009. Consequently, appellant’s petition claiming this exception was timely

filed, and we may proceed to review it.

      We find that the PCRA court properly denied appellant’s request for a

new trial.     First, the results from appellant’s initially exculpatory DNA test

are unreliable because as Orchid Cellmark indicated in its report, proper

chain of custody procedures were not followed. Second, the evidence at trial

against appellant was substantial and was catalogued by the PCRA court in

its opinion:

               1. Detective William A. Wilkinson, Jr.
               Detective Wilkinson testified that he took a
               statement from the Petitioner on August 22, 1989,
               wherein the Petitioner admitted to killing and
               sexually assaulting the Victim. He had transcribed
               an exact account of this confession, which the
               Petitioner had then signed. The Petitioner had also
               initialed each of his Miranda rights.


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          According to the Commonwealth, this statement is
          consistent with the forensic pathologist’s opinion and
          includes details that only the killer would know.

          2. Jose Ocasio
          Jose Ocasio testified that the Petitioner had
          confessed the crime to him while they were together
          in Northampton County Prison. His account included
          graphic details of the sexual assault and the murder
          and was consistent with the Petitioner’s statement to
          Detective Wilkinson.

          3. Mindy Amato
          Mindy Amato was the Victim’s best friend. She
          testified that the Petitioner was with the Victim on
          the night of the murder. He kept asking her if she
          was ready to go home. At 8:30 p.m., the Petitioner
          stated that he would take the Victim home.
          The next morning, Ms. Amato confronted the
          Petitioner about the Victim’s disappearance. She
          noticed that his feet were very dirty and had dirt
          caked on them. He had scratches on his face and
          was angry that people kept coming to his house to
          ask where the Victim was. At various points, the
          Petitioner told her three different stories about the
          events of the prior evening. He had acted “very
          nervous” and mad.

          4. Joshua Braggs
          Joshua Braggs corroborated Ms. Amato’s testimony
          with regard to the dirt on the Petitioners legs and his
          presence with the Victim on the night of the murder.

          5. Lark Rose
          Lark Rose testified that she had observed scratches
          on the right side of the Petitioner’s neck the day
          after the murder. She described him as appearing
          scared.

          6. David Blanar
          David Blanar testified that he had observed the
          Petitioner with the Victim on the night of the murder.
          The Petitioner was putting his arm around the Victim


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          and rubbing her back. He saw the Petitioner and the
          Victim depart together, as she had to be home by
          9:00 p.m.

          7. William Shannon
          William Shannon testified that, on the night of the
          murder, he had observed the Petitioner and the
          Victim together with a group of friends. He saw the
          Petitioner leave with the Victim at about 9:00 p.m.
          The next morning, Mr. Shannon and others went to
          the Petitioner’s home to ask about the Victim. He
          remembered the Petitioner as having dirty toenails.

          8. Frank Rose
          Frank Rose testified that he was in the Petitioner’s
          presence the day after the murder and noticed that
          his lower legs were dirty.

          9. James Ciaramitaro
          James Ciaramitaro testified that he had observed the
          Victim leave the area with the Petitioner on the night
          of the murder.

          10. Officer Michael Orchulli
          Officer Orchulli testified about finding the Victim’s
          body along the Lehigh River near the old railroad
          loading dock. The Victim was on her back, naked
          except for her bra and one sneaker. Her body was
          very dirty and had bruises and scratches on
          numerous parts of it.

          11. Barbara Reilly
          Barbara Reilly was a forensic scientist with the
          Pennsylvania State Police. She testified to finding
          two (2) hairs on the Victim’s pubic region that did
          not belong to her. She undertook a microscopic
          analysis of the Petitioner’s hairs and found that they
          were consistent with the unknown hairs found on the
          Victim. In addition, Ms. Reilly concluded that the
          hairs were consistent with having come from a black
          person. The Petitioner is black.

          12. Dr. Isadore Mihalakis



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            Dr. Mihalakis, a forensic pathologist, performed the
            Victim’s autopsy. He observed bruises and scratches
            in various places on her body. He also described a
            large bruise on the side of her face consistent with a
            punch or a slap. He found scratches and bruises on
            the Victim’s back, which suggested she had been
            held down while she struggled. His examination
            revealed that a human being had forcibly penetrated
            the Victim vaginally and anally. The Victim’s body
            and clothing had black dirt like deposits, and the
            body was soiled.

            Dr. Mihalakis had performed swabs, smears, and
            washes on the Victim’s mouth, genital organs,
            vagina and anus for an entity called acid phosphate-
            P30 protein, DNA and sperm. Wet preparations of
            the vulva, vagina, anus and mouth had not revealed
            the presence of sperm. There was no evidence that
            the assailant had ejaculated.

PCRA court opinion, 10/14/13 at 4-6.

      Third, appellant baldly claims that his confession was coerced. Even if

we were to accept that the police somehow induced appellant to confess, the

confession is nonetheless highly damning because appellant knew details

that only the killer would know.    For instance, appellant admitted in his

confession that he choked the victim with her sweatshirt and that he choked

her until she was quiet. (Notes of testimony, 1/30/91 at 2678, 2682.) The

victim did, in fact, die of strangulation.   (Note of testimony, 1/31/91 at

3122.)

      Fourth, appellant’s claim that the DNA results would bolster other

exculpatory trial evidence is not correct. Appellant cites the fact that white

skin was found under the victim’s fingernails (as noted by the PCRA court,



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appellant is African American).    That characterization does not accurately

reflect the actual trial testimony which occurred during cross-examination of

the forensic pathologist as to his autopsy report:

            Q.    O.K. There was another black hair fragment or
                  fiber under the fingernail clippings from the
                  right hand. Is that correct? That’s the next
                  sentence.

            A.    One had a minute black fragment on it.

            Q.    And black soil particles and white – parenthesis
                  – dried skin – question mark – parenthesis on
                  the clippings.

            A.    Yes.

            Q.    So there was a white substance found under
                  one of the fingernail clippings that you thought
                  might be dried skin. Is that correct?

            A.    Or it could have been when they cut fingernail
                  clippings, some of the inside of the nail lining
                  shreds off.

            Q.    You didn’t know?

            A.    Right. I could not know.

Notes of testimony, 1/31/91 at 2990-2991. Thus, the forensic pathologist

testified that he did not know what the substance was under the fingernail

clipping. Likewise, the autopsy report was also speculative because after it

suggested dried skin, a question mark was inserted.

      Appellant also cites to evidence that he had no scratches or bruises on

his body, that dirt taken from his feet did not match dirt found on the

victim’s body, and that certain hairs taken from the victim were not


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positively identified as coming from him. To this we respond with an adage

familiar to criminal law:   “[A]n absence of evidence is not evidence of

absence.”   Commonwealth v. Brooks, 875 A.2d 1141, 1147 (Pa.Super.

2005). In other words, the failure to find scratches, a soil sample match, or

a hair sample match do not indicate that appellant was absent from the

crime scene. That “evidence” is simply not exculpatory.

     In sum, we agree with the PCRA court that appellant’s new evidence

would unlikely result in a different outcome at trial. Consequently, we will

affirm the order below.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/26/2015




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