J-E01007-18
                             2019 PA Super 136



COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                        Appellee          :
                                          :
                  v.                      :
                                          :
RAYMOND DALE PAYNE,                       :
                                          :
                        Appellant         :     No. 604 WDA 2016

                 Appeal from the PCRA Order April 13, 2016
                In the Court of Common Pleas of Erie County
                    Criminal Division at No.: 2562 of 1976

BEFORE: BENDER, P.J.E., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON,
        J., STABILE, J., DUBOW, J., KUNSELMAN, J., and MURRAY, J.

OPINION BY DUBOW, J.:                                FILED APRIL 29, 2019

      Appellant, Raymond Dale Payne, appeals from the April 13, 2016 Order

denying his Petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. After careful review, we reverse the decision of the

PCRA court and grant Appellant a new degree-of-guilt hearing.

      In 1977, Appellant pled guilty to murder generally, and three judges

were empaneled to decide Appellant’s degree of guilt (“Degree of Guilt

Panel”). The Commonwealth presented evidence to support its position that

Appellant committed a First-Degree Murder while Appellant presented

evidence to support his claim of Third-Degree murder. The Degree of Guilt

Panel convicted Appellant of First-Degree Murder. On August 5, 1977, the

lower court sentenced Appellant to a term of life in prison without parole.

Appellant filed a Notice of Appeal, and our Supreme Court affirmed Appellant’s
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Judgment of Sentence on January 24, 1979. Commonwealth v. Payne, 396

A.2d 630 (Pa. 1979).

      After several unsuccessful attempts at post-conviction relief, on January

8, 1997, Appellant filed a PCRA Petition, which, inter alia, requested DNA

testing on the seminal fluid recovered from the victim’s body. The PCRA court

denied Appellant’s Petition, a panel of this Court affirmed that order, and our

Supreme    Court   denied   Appellant’s   petition   for   allowance   of   appeal.

Commonwealth v. Payne, 704 A.2d 1120 (Pa. Super. 1997) (unpublished

memorandum), appeal denied, 717 A.2d 533 (Pa. 1998).

      On February 6, 2003, Appellant filed a Motion for DNA testing pursuant

to the then-newly passed provision of the PCRA permitting DNA testing under

certain circumstances. See 42 Pa.C.S. § 9543.1. The PCRA court denied the

Motion, and Appellant filed a Notice of Appeal to this Court. On November 18,

2003, a panel of this Court affirmed the Order of the PCRA court, and on May

11, 2004, our Supreme Court denied Appellant’s Petition for Allowance of

Appeal.   Commonwealth v. Payne, 841 A.2d 577 (Pa. Super. 2003)

(unpublished memorandum), appeal denied, 626 WAL 2003 (Pa. filed May 11,

2004).

      On May 16, 2011, Appellant filed a complaint in the United States

District Court for the Western District of Pennsylvania against the Erie County

District Attorney’s Office alleging violations of 42 U.S.C. § 1983 for its refusal

to permit DNA testing.


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      On September 9, 2011, during the pendency of the federal action,

Appellant filed a second motion for DNA testing pursuant to Section 9543.1.

On October 4, 2011, the PCRA court again denied relief. Appellant filed a

Notice of Appeal to this Court, and on July 31, 2012, this Court affirmed the

Order denying Appellant relief. On July 12, 2013, our Supreme Court denied

Appellant’s Petition for Allowance of Appeal. Commonwealth v. Payne, 55

A.3d 152 (Pa. Super. filed July 31, 2012) (unpublished memorandum), appeal

denied, 69 A.3d 601 (Pa. 2013).

      On December 16, 2014, the United States District Court signed a

stipulated Order permitting post-conviction DNA testing. The DNA test results

established conclusively that Appellant was excluded as a contributor to the

seminal fluid found on the victim’s body.

      On August 21, 2015, Appellant, through counsel, filed a PCRA Petition

asserting that he is entitled to a new trial or degree-of-guilt hearing based on

this after-discovered evidence. On April 13, 2016, the PCRA court entered a

final Order and Opinion denying Appellant relief.

      Appellant timely filed a Notice of Appeal, and both Appellant and the

PCRA court complied with Pa.R.A.P. 1925. On November 15, 2017, this Court

certified this case for en banc review.

      On appeal, Appellant presents three questions for our review.

      [1.] Did the PCRA court err in finding that the [after-]discovered
      DNA evidence was not likely to change the outcome of
      [Appellant’s] criminal proceeding notwithstanding that the [after-
      discovered] evidence rebuts the Commonwealth’s overall theory

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      of the case and disproves a key inference that the prosecution and
      finder of fact relied on to establish the intent necessary for
      conviction?

      [2.] Did the PCRA court err to the extent that it held the [after-]
      discovered evidence was immaterial or not exculpatory?

      [3.] Did the PCRA court err by not considering [Appellant’s] claims
      under the United States and Pennsylvania constitutions?

Appellant’s Brief at 4.

      For the reasons discussed below, we find that the PCRA court erred when

it concluded that the DNA evidence was not likely to change the result of the

Degree of Guilt Panel. The PCRA court erroneously focused on other evidence

in the record to conclude that the DNA evidence would not likely change the

result of the Degree of Guilt Panel; this is not the proper analysis. The proper

focus is whether the after-discovered evidence significantly refutes an

assertion on which the Degree of Guilt Panel and the Commonwealth placed

significant weight. Because the Commonwealth argued and the Degree of Guilt

Panel accepted the theory that Appellant murdered the victim while he raped

her and the DNA evidence refutes the assertion that Appellant raped the

victim, we find that Appellant proved by a preponderance of the evidence that

the DNA evidence would likely result in a different verdict. We, thus, reverse

the decision of the PCRA court.

       This Court reviews the denial of a PCRA petition to determine whether

the record supports the PCRA court’s findings and whether its order is




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otherwise free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803

(Pa. 2014).

      The relevant provision of the PCRA requires a petitioner to plead and

prove by a preponderance of the evidence that his conviction resulted from

“[t]he 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). In order to

successfully   prove   an   after-discovered   evidence   claim   under   Section

9543(a)(2)(vi), the petitioner must show 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. Cox, 146 A.3d 221, 228 (Pa. 2016)

(citation omitted).

      In this case, there is no dispute that Appellant met the first three

requirements. The issue is whether Appellant has established by a

preponderance of the evidence that the DNA evidence “would have changed

the outcome of the trial if it had been introduced.”1




1There is no dispute that a change in the outcome of a degree-of-guilt hearing
qualifies under these PCRA provisions as a change in the outcome of the trial.
See Commonwealth v. Bonaccurso, 625 A.2d 1197, 1201 (Pa. Super.
1993).
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      When    evaluating   whether    a   petitioner   has   established   by   a

preponderance of the evidence that the after-discovered evidence would likely

produce a different verdict, a court must examine the persuasiveness of the

new evidence assuming the fact-finder believes it. Commonwealth v. Fiore,

780 A.2d 704, 713-14 (Pa. Super. 2001). This inquiry includes evaluations of

(1) the nature of the new evidence; (2) whether, and to what extent, the new

evidence is consistent or inconsistent with other trial testimony; and (3)

whether, and to what extent, the new evidence is consistent or inconsistent

with documentary evidence. Id.

      Our Supreme Court has examined several case-specific factors,

including: (1) the prosecution’s theory at the original trial, and the difficulty

of making this argument in light of the new evidence; and (2) the prosecutor’s

closing remarks, which may demonstrate the importance of the new evidence.

See Commonwealth v. Bulted, 279 A.2d 158, 161-62 (Pa. 1971);

      Applying these principles, the Supreme Court in Commonwealth v.

Mount, 257 A.2d 578 (Pa. 1969), ordered that the trial court resentence the

appellant as a result of after-discovered evidence. In Mount, a three-judge

panel had held a degree-of-guilt hearing and concluded that the appellant

committed First-Degree Murder because the appellant raped the victim and

then killed her. At the sentencing hearing, the appellant argued that he only

stabbed the victim and did not rape her.        The Commonwealth, however,

presented evidence from a laboratory technician specializing in blood and


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other body fluid stains who testified that she analyzed a pair of underpants

located among the appellant’s belongings, found seminal fluids and

bloodstains, and concluded that the bloodstains matched the deceased’s blood

type. The panel imposed a sentence of “death in the electric chair.” Id. at

579.    After the imposition of sentence, appellant discovered that the

laboratory technician had lied in other proceedings about her professional

qualifications and she had not fulfilled her educational requirements for a

laboratory technician.

       In ordering a new sentencing hearing, the Supreme Court first analyzed

the impact that the after-discovered evidence had on the theory of the

Commonwealth and Degree of Guilt Panel. The Supreme Court found that the

after-discovered evidence was crucial because the technician’s testimony was

the only evidence that established that it was the appellant who raped the

victim and the Degree of Guilt Panel placed “considerable weight on [the

technician’s] testimony.” Id. at 582.

       The Supreme Court concluded that the degree-of-guilt panel “should

have the opportunity to evaluate the qualifications of the [laboratory

technician] in the light of her lack of theoretical background sufficient to credit

her as a laboratory technician and to evaluate her long experience working in

a laboratory to determine whether she is qualified to testify as to laboratory

tests and laboratory findings. Such inquiry is mandated in order that the court

below might determine the weight, if any, to be given to her testimony upon


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which the Commonwealth relied, in large measure, for proof of the occurrence

of rape.” Id.

      Similarly, in Commonwealth v. Cooney, 282 A.2d 29 (Pa. 1971), the

Supreme Court found that the after-discovered evidence of a bullet lodged in

the defendant’s head supported defendant’s claim of self-defense and “serves

to support and confirm the testimony given by appellant and makes his theory

of the crime much more believable.” Id. at 31. See also Bulted, 279 A.2d

at 162 (concluding that newly discovered evidence of a deposition transcript

of the decedent’s paramour refuted the Commonwealth’s theory that the

decedent did not have a paramour and corroborated the appellant’s testimony

that she did and “it would be monstrously unjust to deny [the] appellant a

second trial at which the jury will have an opportunity to weigh the [after

discovered evidence] before reaching their verdict.”).

      Most important to our analysis in this case is that the Supreme Court

has determined that a reviewing court, when considering whether the after-

discovered evidence is likely to change the outcome at trial, should not

consider evidence in the record not relied upon explicitly by the trial court in

rendering its degree of guilt decision. In Mount, supra, the Commonwealth

argued that even if the Supreme Court ignored the evidence of rape, there

was still sufficient evidence to convict the appellant of First-Degree Murder

because the evidence demonstrated that the appellant also committed a

Robbery. The Supreme Court, however, rejected this argument because “an


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examination of the opinion of the three-judge panel indicates that the judges

emphasized the heinous character of this particular rape and predicated their

sentence on the rape feature of the crime.” 257 A.2d at 582.

     Similarly, in Commonwealth v. Valderrama, 388 A.2d 1042 (Pa.

1978), the Supreme Court found that the after-discovered evidence was

significant enough to grant a new trial to the appellant even though other

evidence in the record was sufficient to sustain the convictions. Id. at 1045.

In Valderrama, the appellant was charged with murder and rape. At trial,

he presented an alibi defense that on the day of the crime, he was living and

working in Puerto Rico. The Commonwealth refuted the appellant’s evidence

that he was in Puerto Rico by presenting the testimony of an employee of the

Social Security Administration who stated that the appellant’s employment

records did not demonstrate that the appellant was working in Puerto Rico at

the time of the crime. The Commonwealth argued that this testimony

demonstrated that the appellant was not working in Puerto Rico at the time of

the crime. Id. at 1044.

     After the conviction, the appellant obtained new evidence from his

employer in Puerto Rico showing that when appellant’s employer reported the

appellant’s wages to the Social Security Administration, it did so without a

social security number. As a result, the appellant argued that records of the

Social Security Administration that were presented to the jury were

incomplete because his employer failed to provide appellant’s social security


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number and not because appellant was not working in Puerto Rico at the time

of the murder.

      The Supreme Court first found that the testimony of the appellant’s co-

conspirator was sufficient to sustain the convictions. However, the Supreme

Court concluded that the employment records are “of such a nature and

character that a different verdict will likely result if a new trial is granted.” Id.

at 1045. The Supreme Court reasoned that at trial, the Commonwealth had

argued that the appellant never worked in Puerto Rico and “the incomplete

employment records supported this assertion and cast doubt on [the]

appellant’s alibi defense.” Id. The completed records, however, provided

substantial support for appellant’s alibi defense and the Court concluded that

a different verdict would likely result. Id.

      Finally, we note that the Supreme Court does not require that a

petitioner establish that the after-discovered evidence proves his innocence

beyond a reasonable doubt. See Mount, supra, at 582 (after granting the

appellant a new sentencing hearing based on after-discovered evidence, the

Supreme Court noted that the Degree of Guilt Panel might find that the

laboratory technician’s “practical experience gained over a long period of years

in laboratory work did qualify her to make proper and sound laboratory

findings”); Cooney, supra at 31 (after granting the appellant a new trial

based on after-discovered evidence the Supreme Court noted that “it is

possible that a new trial would result in another conviction, but we believe


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that it is very likely that a different verdict would result”). Rather, a petitioner

must only establish by a preponderance of the evidence that the exculpatory

after-discovered evidence “would have changed the outcome of the trial if it

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

      Applying these principles to this case, we analyze the basis for the trial

court’s denial of the PCRA Petition. The trial court denied the PCRA petition

because “the evidence, including [Appellant’s] statement to Crawford County

District Attorney Donald Lewis and his concealment of [the victim’s] body,

clearly established [Appellant’s] guilt of First-Degree Murder; accordingly, the

DNA evidence would not have changed the outcome.” PCRA Court Opinion,

4/13/16, at 9. The PCRA court, however, failed to apply the correct legal

standard.   As noted in the above case law, the analysis is not based on

whether the record contains other evidence sufficient to convict the Appellant

of First-Degree Murder; rather, the focus is on whether Appellant has proven

by a preponderance of the evidence that the after-discovered evidence would

likely have changed the Commonwealth’s theory of the case and the decision

of the Degree of Guilt Panel. Mount, 257 A.2d at 582; Bulted, 279 A.2d at

161-62. As discussed below, both the Degree of Guilt Panel and the

Commonwealth placed significant weight on the theory that Appellant

murdered the victim while raping her. Because the DNA evidence refutes the

evidence of rape, the after-discovered would likely have changed the decision

of the Degree of Guilt Panel.


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      A review of the Degree of Guilt Panel’s Opinion demonstrates the

significant weight that the panel placed on the conclusion that Appellant raped

the victim in determining that Appellant committed Murder of the first degree.

The Degree of Guilt Panel placed significant, if not exclusive, weight on the

testimony of Anthony Lee Evans, who was incarcerated with Appellant in Erie

County prison. The Degree of Guilt Panel characterized Mr. Evans’ testimony

as an “admission” that Appellant made to his cellmate and “the most

damaging” to the Appellant. Trial Court Opinion, 7/18/77, at 5, 6. The Degree

of Guilt Panel summarized Mr. Evans’ testimony about Appellant killing the

victim during the commission of a rape as follows:

      Mr. Evans testified that [Appellant] confided in him and eventually
      described in detail what had occurred. He said that [Appellant]
      told him that while he and [the victim] were riding in his truck he
      had put some “DOWNS” (pills) in the victim’s beer; that while she
      was under the influence of the drug he took her to the woods
      where he tied her up in the manner above described and
      began having sexual intercourse with her; that she begged
      him to stop, crying and screaming; that she “MADE HIM
      MAD”” and he grasped the rope “ON EACH SIDE OF HER
      AND PULLED IT TIGHT UNTIL SHE WAS DEAD.”

Id. (emphasis in original).

      The Degree of Guilt Panel also relied heavily upon Mr. Evans’ testimony

that Appellant told him that the victim’s “death was a culmination of a sexual

fantasy that he had been living with for a long time; that HE LIKES TO TIE

WOMEN UP AND DO CRAZY THINGS TO ‘EM.” Id. (emphasis in original).

      The Degree of Guilt Panel also relied heavily upon the testimony of Paul

Daube, a chemist employed by the Pennsylvania State Police, to corroborate

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Mr. Evans’ testimony that the victim died while “protesting a sexual attack

upon her” because Mr. Daube conducted tests and “found the presence of

seminal acid phosphatase in [the victim’s anal and vaginal area].” Id. at 6.

      The Degree of Guilt Panel then compared Mr. Evans’ testimony to the

statement that Appellant made to the police and concluded that since Mr.

Evans’ testimony is similar to Appellant’s statement, except for the manner in

which the victim died, that Appellant’s theory of the cause of death “lacks

credibility.” Id.

      Based on this analysis, the Degree of Guilt Panel then concludes that

the murder of the victim “was willful, deliberate and premeditated” and

Appellant’s “admission to his cellmate verifies that conclusion and removes all

doubt.” Id.2

      We note that the Degree of Guilt Panel summarized other evidence

presented at the hearing, but did not place any weight on that other evidence

in reaching its conclusion of First-Degree Murder. Rather, the Degree of Guilt

Panel relied exclusively upon the testimony of Mr. Evans and Mr. Daube.

      Similarly, the Commonwealth at the Degree of Guilt Hearing asserted

the theory that Appellant killed the victim while she resisted a sexual assault.

The prosecution repeatedly emphasized the evidence of seminal fluid during


2 The Degree of Guilt Panel also noted that the “testimony before the court is
also consistent with a slaying in the perpetration of a forceful rape which would
constitute murder in the second degree. However, having concluded that
[Appellant] is guilty of an intentional killing, we need not further pursue the
theory of felony murder.” Trial Court Opinion at 7.
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closing argument when urging the panel to convict Appellant of First-Degree

Murder.    During closing argument at the Degree of Guilt hearing, the

prosecution argued: “[A]ll of the words from [Appellant] are consistent with

the fact that this was an intentional killing; that at least it was a rape, that

the facts of the case show that there was intercourse between the

two[.]” N.T., 6/28/77, at 17 (emphasis added) (asserting also “that there

was sexual activity between these two people”).          Most significantly, the

prosecution also argued that the presence of seminal fluid, presumed to be

Appellant’s, was proof of the intent required for a First-Degree Murder

conviction. Id.

      With the basis for the Degree of Guilt Panel’s decision and the

Commonwealth’s theory in mind, we turn to the implications of the DNA

evidence. The new DNA evidence is uncontroverted3 physical evidence that

excluded Appellant as a possible contributor of the DNA samples that Mr.

Daube had analyzed and testified about at the Degree of Guilt Hearing.

Because the Degree of Guilt Panel relied upon Mr. Daube’s testimony to

corroborate Mr. Evan’s testimony about Appellant murdering the victim while

raping her, this corroboration evidence is no longer valid and the Degree of

Guilt Panel erred in placing significant weight on it.




3 Although the parties dispute the inferences arising from this new DNA
evidence, there is no factual dispute about the expert’s conclusions in these
PCRA proceedings. See R.R. at 365a-368a (“Stipulations”).
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         The DNA evidence also discredits Mr. Evans’ testimony that the victim’s

death was a culmination of a sexual fantasy and, thus, fundamentally alters

the Degree of Guilt Panel’s credibility decision in weighing Appellant’s version

of events against Evans’ testimony and the prosecution’s version of events.

Furthermore, the new DNA evidence makes it doubtful that the prosecution

would present this theory and the Degree of Guilt Panel would accept it.

         In light of the foregoing, Appellant has satisfied the PCRA’s stringent

requirements under these unique circumstances and has established by a

preponderance of the evidence that the DNA evidence would have likely

changed the decision of the Degree of Guilt Panel. We, thus, reverse the PCRA

court. In light of this ruling, we do not address Appellant’s other claims of

error.

         Order reversed.

         President Judge Emeritus Bender, and Judge Panella, Judge Lazarus,

         Judge Kunselman, and Judge Murray join the Opinion

         Judge Shogan files a dissenting opinion in which Judge Olson and Judge

         Stabile join.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/29/2019




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