J-E02007-15

                              2015 PA Super 272


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: GANTMAN, P.J., BENDER, P.J.E., PANELLA, J., DONOHUE, J.,
        SHOGAN, J., ALLEN, J., LAZARUS, J., MUNDY, J., and STABILE, J.


DISSENTING OPINION BY GANTMAN, P.J.:             FILED DECEMBER 29, 2015


      I agree with the dissenting opinion which holds that Mr. Payne failed to

set forth a prima facie case of actual innocence under the facts of this case.

I write separately to highlight that Mr. Payne also failed to establish the

statutory timeliness of his petition as mandated by the DNA statute at 42

Pa.C.S.A.   §   9543.1(d)(1)(iii)   and   our   Supreme   Court’s   decision   in

Commonwealth v. Edmiston, 619 Pa. 549, 65 A.3d 339 (2013), cert.

denied, ___ U.S. ___, 134 S.Ct. 639, 187 L.Ed.2d 423 (2013). Therefore, I

respectfully dissent on this ground as well.

      The relevant facts and procedural history of this case are as follows.

Around 9:00 p.m. on December 17, 1981, family members of Victim found

Victim dead in her bed. Victim was ninety years’ old at that time. Victim’s

family members discovered Victim with the covers pulled up over her body
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and a pillow over her head. When family members removed the covers and

pillow, they saw Victim’s head and face were covered with blood.        Family

members noticed several objects in Victim’s bedroom had been moved,

closet doors and drawers were pulled open and appeared to have been

rummaged through, and Victim’s jewelry was strewn around the room.

Victim usually slept with the telephone on her bed so she could quickly call

her family in case of an emergency.         When family members discovered

Victim, the telephone was not in its usual place on the bed but on the

nightstand next to Victim’s bed. Victim’s glasses were also not in their usual

spot.    Additionally, family members saw a broken window downstairs.

According to Dr. Joan W. Gibble (pathologist), Victim suffered multiple blows

to her head with a firm instrument; the blow to the right side of Victim’s

head caused her death. Dr. Gibble opined Victim’s injuries were consistent

with being stuck with a telephone.

        Officer Kenneth Miller and Detective Robert Harman (among others)

responded to the crime scene.        Officer Miller also noticed the drawers in

Victim’s bedroom appeared to have been ransacked, closet doors were open,

paper was strewn about, and a window downstairs had been broken. Officer

Miller and another sergeant processed the items they thought might contain

fingerprints.   Officer Miller used a special evidence vacuum cleaner; police

retain as evidence anything collected in the vacuum cleaner and process the

evidence for fingerprints.    Importantly, police sent all physical evidence


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collected from the crime scene to the Federal Bureau of Investigation (“FBI”)

for testing and examination. No physical evidence found at the crime scene

produced a suspect.

     In March 1983, Officer Daniel Garber was investigating an unrelated

case. Mr. Payne was assisting Officer Garber with his investigation. During

a meeting on March 25, 1983, Mr. Payne mentioned that a state trooper was

accusing him of beating a 90-year-old woman to death with a telephone.

Officer Garber related Mr. Payne’s comment to Detective Harman. Notably,

prior to 1983, police had not disclosed the suspicion that a telephone was

the potential murder weapon in Victim’s case.

     In August 1983, police received further information from Deborah

Wallick about Victim’s murder. Ms. Wallick informed police Mr. Payne had

told her that he and two others went to rob Victim’s house on the night in

question. Mr. Payne heard a noise from the bedroom and, when he went to

the bedroom, he saw Victim being beaten with a telephone. Mr. Payne told

Ms. Wallick he ran from the crime scene and thought Victim was dead. Ms.

Wallick said Danny Everett was also involved in the crimes.

     Sonny Olgesby, an inmate in York County prison, supplied police with

more information about Victim’s case.      Mr. Olgesby informed Detective

Harman that on December 24, 1985, Mr. Payne had told Mr. Olgesby about a

lady who was murdered and asked Mr. Olgesby what Mr. Payne could do to

avoid conviction.   Mr. Payne then admitted his involvement in the crimes.


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Mr. Payne said he needed money, so he, his girlfriend Melody, and a friend

Danny (last name Edwards or Everett, nicknamed “Dago”) decided to rob

Victim. Mr. Payne admitted he beat Victim to death.

        The Commonwealth subsequently charged Mr. Payne with murder and

related offenses.    Several days before Mr. Payne’s jury trial was to begin,

Christopher Gibson, an inmate in York County prison, told police he had

additional information about Victim’s case.       Mr. Gibson related that on

August 15, 1986, at approximately 7:30 p.m., Mr. Gibson was in the prison

law library when Mr. Payne approached him and asked what Mr. Gibson

thought about his case and about making it look like Victim’s grandson had

committed the murder. During this conversation, Mr. Payne disclosed that

he and two others (one person named Danny and the other possibly named

Rick)    committed    the   murder,   but   Mr.   Payne   was   confident   the

Commonwealth lacked sufficient evidence to prove his guilt.         Mr. Payne

stated he did not plan to kill Victim, as he believed no one was home on the

night of the robbery. Mr. Payne admitted he struck Victim with a telephone,

but he just thought she was “knocked out.”        Mr. Payne also disclosed he

broke a window in Victim’s house to gain entry.       Additionally, Mr. Gibson

revealed that Mr. Payne previously asked Mr. Gibson if he knew anyone who

would be willing to say Mr. Payne had worked for him in December 1981 or

January 1982, so Mr. Payne could prove he was working at that time and

had a source of income.


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         Mr. Payne proceeded to a jury trial on August 20, 1986.                 The

Commonwealth presented testimony/evidence from, inter alia, Victim’s

family members, Dr. Gibble, the investigating police officers/detectives, Ms.

Wallick, Mr. Olgesby, and Mr. Gibson. Officer Miller and Detective Harman

testified about their roles and actions in the investigation of Victim’s case.

Both officers testified that all physical evidence collected at the crime scene

was submitted to the FBI for testing and examination; and no physical

evidence connected Mr. Payne to the crimes.1 Ms. Wallick, Mr. Olgesby,

and Mr. Gibson each testified as to Mr. Payne’s respective admissions of

guilt.    Defense counsel thoroughly and vigorously cross-examined these

three witnesses.      During his cross-examination of Ms. Wallick, defense

counsel established Ms. Wallick was a heavy LSD drug user at the time she

approached police with Mr. Payne’s confession, which sometimes interfered

with her perception.       Defense counsel also elicited testimony from Ms.

Wallick about her previous conviction for hindering apprehension or

prosecution.

         During cross-examination of Mr. Olgesby, defense counsel elicited

testimony that Mr. Olgesby was facing the death penalty in an unrelated

homicide     case;   Mr.   Olgesby   had   negotiated   a   plea   deal   with   the

Commonwealth in which he could plead guilty to third-degree murder (and

avoid the death penalty), in exchange for his testimony against two

1
 Detective Harman also testified that no physical evidence connected Daniel
Everett to the crimes.
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individuals involved in his own case and for his testimony against Mr. Payne.

During cross-examination of Mr. Gibson, defense counsel attacked the

witness’ credibility by establishing Mr. Gibson had prior convictions for theft

and burglary. Mr. Gibson also conceded he had negotiated a plea deal with

the Commonwealth in which Mr. Gibson could plead guilty to theft (reduced

from a robbery charge) and receive a county sentence in exchange for his

testimony against Mr. Payne.         Following Mr. Gibson’s testimony, the

Commonwealth rested its case.

        In his defense, Mr. Payne presented testimony from several witnesses

to refute the testimony of Ms. Wallick, Mr. Olgesby, and Mr. Gibson.         Mr.

Payne also presented testimony from Melody Codora (Mr. Payne’s girlfriend

at the time of the crimes) and Daniel Everett, whom the Commonwealth

witnesses had mentioned as Mr. Payne’s possible cohorts.          Both witnesses

denied their participation in the crimes. Mr. Payne also testified in his own

defense.     Mr. Payne maintained he had no involvement in the crimes

charged and was not present at the crime scene.            Mr. Payne also denied

having made any admissions/confessions to Ms. Wallick, Mr. Olgesby, or Mr.

Gibson.

        On August 22, 1986, the jury convicted Mr. Payne of second-degree

murder, burglary, aggravated assault, and criminal conspiracy.2 On March

23, 1987, the court sentenced Mr. Payne to life imprisonment for the felony


2
    The jury acquitted Mr. Payne of first-degree murder.
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murder conviction; the court imposed consecutive sentences of two to four

years’ imprisonment each for the burglary and conspiracy convictions.3

Additionally, the court sentenced Mr. Payne on an unrelated robbery

conviction to two to four years’ imprisonment, consecutive to his sentence

for second-degree murder but concurrent to his sentences for burglary and

conspiracy.      This Court affirmed Mr. Payne’s judgment of sentence on

February 29, 1988, and our Supreme Court denied allowance of appeal on

January 23, 1991.         See Commonwealth v. Payne, 541 A.2d 1153

(Pa.Super. 1988).

        On June 7, 1991, Mr. Payne filed his first petition under the Post

Conviction Relief Act (“PCRA”);4 Mr. Payne expressly established his intent to

proceed pro se. In his PCRA petition, Mr. Payne asserted, inter alia, prior

counsel    was    ineffective,   Mr.   Payne’s   sentence   was   illegal,   and   the

Commonwealth committed gross prosecutorial misconduct by withholding

exculpatory evidence. As to this last claim, Mr. Payne specifically alleged the

Commonwealth had submitted for testing certain physical evidence found at

the crime scene, but the Commonwealth withheld this evidence from Mr.

Payne and trial counsel. On June 25, 1991, Mr. Payne filed a pro se motion

for production of documents requesting, inter alia, a copy of the FBI

report(s) used during the investigation of his crimes. On July 30, 1991, Mr.


3
    The aggravated assault conviction merged with felony murder.
4
    42 Pa.C.S.A. §§ 9541-9546.
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Payne filed a consolidated motion for discovery and a request for an

evidentiary hearing again asserting his previous request for the production

of documents.    On September 9, 1991, the court entered an order, inter

alia, scheduling an evidentiary hearing for October 1, 1991, and directing

the Commonwealth to produce to Mr. Payne the results of the processing

and tests done by the police or FBI.     The court also granted Mr. Payne’s

request to proceed pro se.

      The court held a PCRA hearing on October 1, 1991. Importantly, at

the very beginning of the hearing, the Commonwealth stated on the record it

had fully complied with the court’s September 9, 1991 order and supplied

Mr. Payne with the FBI reports at issue.      Mr. Payne did not dispute the

Commonwealth’s representation.     During the hearing, Mr. Payne advanced

his challenges pertaining to the ineffective assistance of trial counsel.   Mr.

Payne did not offer any argument at the hearing regarding his prior claim

that the Commonwealth withheld exculpatory evidence.         Similarly, in his

post-hearing brief, Mr. Payne argued all issues presented in his PCRA

petition, except for his earlier claim that the Commonwealth withheld

exculpatory evidence, which Mr. Payne abandoned.

      On June 26, 1992, the PCRA court denied relief.       In its supporting

opinion, the court expressly stated:

         [Mr. Payne’s] allegation that exculpatory evidence was
         withheld from him in the form of FBI reports is…without
         merit. Testimony at the PCRA hearing indicated that all
         FBI information was in the possession of [Mr. Payne]. No

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         further mention of this information was made in [Mr.
         Payne’s] brief, leading this [c]ourt to the conclusion that
         the allegation of withholding exculpatory evidence is
         without merit.

(PCRA Court Opinion, filed June 26, 1992, at 29) (internal citation omitted).

      On July 7, 1992, Mr. Payne timely filed a notice of appeal. Mr. Payne

did not mention on appeal any claim that the Commonwealth withheld

exculpatory evidence.   On April 30, 1993, this Court affirmed Mr. Payne’s

conviction for second-degree murder but reversed the conspiracy conviction

because the relevant statute of limitations had already run when the

Commonwealth charged Mr. Payne with that crime. Additionally, this Court

vacated Mr. Payne’s burglary sentence, where burglary was the predicate

offense for the second-degree murder conviction, and remanded the case for

the court to modify Mr. Payne’s sentence accordingly. On July 5, 1994, the

trial court vacated Mr. Payne’s sentences for conspiracy and burglary.

      Over twenty years after Mr. Payne first received the FBI documents,

on June 14, 2012, Mr. Payne filed his current petition for DNA testing. 5 In

his petition, Mr. Payne sought DNA testing of the following items recovered

from the crime scene: (1) brown head hairs found on Victim’s nightgown and

bedsheet (designated Q8 and Q11); (2) human blood (designated Q1, Q7-

Q11, Q13-Q15, Q17-Q19); and (3) a brown pubic hair (designated Q16).


5
  Mr. Payne alleges he originally filed his request for DNA testing on
February 9, 2012, but the court misplaced it or failed to file it. The
approximate four-month difference in the filing date is immaterial to my
analysis.
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Mr. Payne maintained DNA testing was not available at the time of his trial

and current DNA testing will reveal the absence of Mr. Payne’s DNA on the

evidence sought to be tested.    Mr. Payne claimed the absence of his DNA

would prove his actual innocence of the crimes charged.

      Notably, Mr. Payne alleged in his petition he had no idea such potential

“exculpatory evidence” existed. Mr. Payne stated: “For the first time (ever)

[Mr. Payne] was made aware that this important new evidence does exist

and is preserved and is available for DNA testing.” (Petition for DNA testing,

filed June 14, 2012, at 12, ¶ 19). Mr. Payne further claimed he “was just

(for the very first time)—provided the proof that these exhibits/specimens

Q8, Q11, and Q16, ever existed.” (Id.) Mr. Payne alleged he received this

information from the FBI (mailed to his attorney) on January 8, 2012. Mr.

Payne continued: “I want to emphasize that (at no time previous to this)

was I aware that the evidence/specimens Q8, Q11, Q16, ever existed. Only

when the FEDERAL BUREAU OF INVESTIGATION, provided this information

was [Mr. Payne] alerted to these specimens that existed.” (Id. at 13, ¶ 19)

(emphasis in original). Mr. Payne attached to his petition a letter from the

FBI dated December 30, 2011, addressed to Mr. Payne (c/o Attorney Enid

Harris) informing Mr. Payne the FBI was providing him with 110 pages from

the FBI file regarding Victim’s murder, pursuant to the Freedom of

Information/Privacy Act.   The attached FBI file contains letters from the

police dated December 20, 1981, and December 24, 1981, requesting


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testing and examination of physical evidence recovered from the crime

scene. The attached FBI file also contains the FBI’s analyses of the physical

evidence by documents dated December 21, 1981, December 30, 1981,

February 18, 1982, and January 24, 1983.

     The court appointed counsel to represent Mr. Payne on January 3,

2013. On April 19, 2013, the court held a hearing on Mr. Payne’s request

for DNA testing. Mr. Payne testified at the hearing that he did not receive

the FBI file until December 2011.    Mr. Payne claimed the results of DNA

testing would establish his actual innocence. Mr. Payne also asserted that

performance of DNA testing will give the Commonwealth an opportunity to

discover the “true” killer by comparing the DNA tested to national databases.

     The Commonwealth argued DNA testing would not establish Mr.

Payne’s actual innocence because police officers conceded at Mr. Payne’s

jury trial that no physical evidence connected him to the crimes; and the

jury convicted Mr. Payne in the absence of physical evidence.

     On May 23, 2013, the PCRA court granted Mr. Payne’s request for DNA

testing, deciding Mr. Payne had presented a prima facie case of actual

innocence.   Significantly, the PCRA court did not address the timeliness of

Mr. Payne’s petition. The Commonwealth timely filed a notice of appeal on

June 18, 2013. On June 19, 2013, the court ordered the Commonwealth to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b), which the Commonwealth timely filed on July 8, 2013.


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On October 3, 2014, a panel of this Court affirmed the PCRA court’s order

granting Mr. Payne’s request for DNA testing, with one dissent. On October

17, 2014, the Commonwealth filed a petition for en banc review, which this

Court granted.

     To begin, our standard of review in this case is as follows:

        Generally, the trial court’s application of a statute is a
        question of law that compels plenary review to determine
        whether the court committed an error of law. When
        reviewing an order [granting or] denying a motion for
        post-conviction DNA testing, this Court determines
        whether the movant satisfied the statutory requirements
        listed in Section 9543.1.       We can affirm the court’s
        decision if there is any basis to support it, even if we rely
        on different grounds to affirm.

Commonwealth v. Williams, 35 A.3d 44, 47 (Pa.Super. 2011), appeal

denied, 616 Pa. 467, 50 A.3d 121 (2012) (internal citations omitted).

     Requests for post-conviction DNA testing are governed by statute at

42 Pa.C.S.A. § 9543.1, which provides in pertinent part:

        § 9543.1. Postconviction DNA testing

        (a) Motion.−

           (1) An individual convicted of a criminal offense in a
           court of this Commonwealth and serving a term of
           imprisonment or awaiting execution because of a
           sentence of death may apply by making a written
           motion to the sentencing court for the performance of
           forensic DNA testing on specific evidence that is related
           to the investigation or prosecution that resulted in the
           judgment of conviction.

           (2) The evidence may have been discovered either
           prior to or after the applicant’s conviction.        The
           evidence shall be available for testing as of the date of

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          the motion. If the evidence was discovered prior to the
          applicant’s conviction, the evidence shall not have been
          subject to the DNA testing requested because the
          technology for testing was not in existence at the time
          of the trial or the applicant’s counsel did not seek
          testing at the time of the trial in a case where a verdict
          was rendered on or before January 1, 1995, or the
          applicant’s counsel sought funds from the court to pay
          for the testing because his client was indigent and the
          court refused the request despite the client’s indigency.

       (b) Notice to the Commonwealth.—

          (1) Upon receipt of a motion under subsection (a),
          the court shall notify the Commonwealth and shall
          afford the Commonwealth an opportunity to respond to
          the motion.

          (2) Upon receipt of a motion under subsection (a) or
          notice of the motion, as applicable, the Commonwealth
          and the court shall take the steps reasonably necessary
          to ensure that any remaining biological material in the
          possession of the Commonwealth or the court is
          preserved pending the completion of the proceedings
          under this section.

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

          (1)(i) specify the evidence to be tested;

              (ii) state that the applicant consents to provide
              samples of bodily fluid for use in the DNA testing;
              and

              (iii) acknowledge that the applicant understands that,
              if the motion is granted, any data obtained from any
              DNA samples or test results may be entered into law
              enforcement databases, may be used in the
              investigation of other crimes and may be used as
              evidence against the applicant in other cases.

          (2)(i) assert the applicant’s actual innocence of the
          offense for which the applicant was convicted; and

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                                 *     *      *

          (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.−

          (1) Except as provided in paragraph (2), the court
          shall order the testing requested in a motion under
          subsection (a) under reasonable conditions designed to
          preserve the integrity of the evidence and the testing
          process upon a determination, after review of the
          record of the applicant’s trial, that the:

              (i) requirements of subsection (c) have been met;

              (ii) evidence to be tested has been subject to a chain
              of custody sufficient to establish that it has not been
              altered in any material respect; and

              (iii) motion is made in a timely manner and for
              the purpose of demonstrating the applicant’s
              actual innocence and not to delay the execution
              of sentence or administration of justice.

          (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:

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              (i) would establish the applicant’s actual innocence of
              the offense for which the applicant was convicted;

                                     *       *       *

        (f) Posttesting procedures.−

           (1) After the DNA testing conducted under this
           section has been completed, the applicant may,
           pursuant to section 9545(b)(2) (relating to jurisdiction
           and proceedings), during the 60-day period beginning
           on the date on which the applicant is notified of the test
           results, petition to the court for postconviction relief
           pursuant to section 9543(a)(2)(vi) (relating to eligibility
           for relief).

           (2) Upon receipt of a petition filed under paragraph
           (1), the court shall consider the petition along with any
           answer filed by the Commonwealth and shall conduct a
           hearing thereon.

           (3) In any hearing on a petition for postconviction
           relief filed under paragraph (1), the court shall
           determine whether the exculpatory evidence resulting
           from the DNA testing conducted under this section
           would have changed the outcome of the trial as
           required by section 9543(a)(2)(vi).

                                 *       *       *

42 Pa.C.S.A. § 9543.1 (emphasis added).

     Thus, under Section 9543.1(a):

        The statute sets forth several threshold requirements to
        obtain DNA testing: (1) the evidence specified must be
        available for testing on the date of the motion; (2) if the
        evidence was discovered prior to the applicant’s conviction,
        it was not already DNA tested because (a) technology for
        testing did not exist at the time of the applicant’s trial; (b)
        the applicant’s counsel did not request testing in a case
        that went to verdict before January 1, 1995; or (c) counsel
        sought funds from the court to pay for the testing because

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         his client was indigent, and the court refused the request
         despite the client’s indigency.

Williams, supra at 49 (citing 42 Pa.C.S.A. § 9543.1(a)(2)).

      Additionally:

         The text of the statute set forth in Section 9543.1(c)(3)
         and reinforced in Section 9543.1(d)(2) requires the
         applicant to demonstrate that favorable results of the
         requested DNA testing would establish the applicant’s
         actual innocence of the crime of conviction. The statutory
         standard to obtain testing requires more than conjecture
         or speculation; it demands a prima facie case that the
         DNA results, if exculpatory, would establish actual
         innocence.

Id. (emphasis added). In DNA testing cases, “an absence of evidence is not

evidence of absence.”    Commonwealth v. Heilman, 867 A.2d 542, 547

(Pa.Super. 2005).     See also Commonwealth v. Smith, 889 A.2d 582

(Pa.Super. 2005), appeal denied, 588 Pa. 769, 905 A.2d 500 (2006)

(affirming denial of request for post-conviction DNA testing where absence

of appellant’s DNA from victim’s fingernails would not establish appellant’s

innocence of victim’s murder).

      In addition to a showing of actual innocence, an equally important

eligibility requirement under the DNA statute is Section 9543.1(d), which

commands the petitioner to make a timely request for DNA testing.6 See



6
  The timeliness requirement under Section 9543.1(d) is unique to the DNA
statute; it is distinct from the jurisdictional timeliness provisions under the
PCRA, which do not apply to DNA petitions.              See Williams, supra
(explaining motions for post-conviction DNA testing are separate and distinct
from claims brought pursuant to other general provisions of PCRA; thus,
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42 Pa.C.S.A. § 9543.1(d)(1)(iii). The PCRA court is required to analyze the

timeliness of the DNA petition under Section 9543.1(d)(1)(iii) and decide if

the purpose of the applicant’s request for post-conviction DNA testing is to

delay the execution of sentence or administration of justice.    Edmiston,

supra at 578, 65 A.3d at 357.

     In Edmiston, the defendant was convicted of first-degree murder,

rape, statutory rape and involuntary deviate sexual intercourse, stemming

from events that occurred on October 5, 1988, when the defendant

kidnapped the two-year-old victim, inflicted gruesome injuries on her,

murdered her and left her body in a wooded area. On October 5, 1989, a

jury decided in favor of a sentence of death for the defendant’s crimes.

Twenty years later, on September 30, 2009, the defendant filed a motion for

post-conviction DNA testing.

     In reviewing the PCRA court’s denial of the defendant’s DNA petition,

the Supreme Court confronted the timeliness requirement of a motion for

post-conviction DNA testing as an issue of first impression. See id. at 578,

65 A.3d at 356.   The Court recited the statutory language under Section

9543.1(d), which governs the PCRA court’s review of the DNA petition. See

42 Pa.C.S.A. § 9543.1(d). The Court continued:

        The applicant, as the moving party, bears the burden
        of showing that the test is requested for the purpose
        of demonstrating actual innocence and not for delay.

one-year jurisdictional time bar related to general PCRA provisions does not
apply to motions for DNA testing under Section 9543.1).
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       Here, although the trial court purported to find that the
       motion was timely, it observed that it could not know with
       certainty whether the motion was filed merely for the
       purpose of delay. The PCRA court identified other factors
       to support its finding of timeliness, specifically referring to
       advances in technology, the nature of the issues raised in
       the serial PCRA petition, no claim of prejudice by the
       Commonwealth, and the sentence of death, but did not
       explain how these factors are relevant to an assessment
       of timeliness under Section 9543.1(d)(1)(iii).

       Respectfully, we agree with the Commonwealth that the
       PCRA court’s declaration that it could not know for
       sure what Appellant’s incentive was for filing the
       petition    for    DNA       testing   demonstrates         a
       misperception of the court’s obligation to render a
       specific determination in this respect.                Timing
       determinations requiring examination of case-specific
       factors are not particularly unusual or difficult and, in any
       event, …, any difficulty in the applicant’s proof does
       not relieve the defense of its burden or the PCRA
       court of its duty. … As difficult as it may be, PCRA
       courts are specifically charged with making this
       determination.

       Although the PCRA court did not make the requisite
       finding of timeliness, we see no need to remand for
       the court to do so because, …, our own review of the
       record     and     circumstances      surrounding [the
       defendant’s] post-conviction DNA testing request
       leads to the conclusion that this motion was
       untimely as a matter of law and was forwarded only to
       delay further the execution of the sentence. …

       [The defendant] has known of the existence of
       physical evidence he now seeks to test since his trial
       over twenty years ago. From that time to the present
       he has been represented by counsel, who knew of the
       statute, the technology, and the evidence, and who were
       vigorously pursuing post-conviction relief on his behalf.
       Under such circumstances, courts should exercise a
       healthy skepticism when faced with requests for DNA
       testing.


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        This is especially true when, as here, careful examination
        of the record reveals that [the defendant] is not a likely
        candidate to be exonerated by DNA testing.

                                *     *      *

        The PCRA court also spoke of “advances in technology,”
        but as the Commonwealth notes, the statute does not
        make advances in technology an excuse for failing
        timely to request DNA testing.          The statute
        recognized that the testing available at the time of
        its enactment was of sufficient reliability that
        defendants could seek DNA testing, in cases where
        good faith claims of innocence were timely raised.
        [The defendant’s] guilty status has not changed
        since his 1989 conviction; advances in technology
        allegedly occurring after that date do not explain
        why he, if truly innocent, did not seek immediate
        testing, or, at the very least, testing available as
        technology improved during the intervening years,
        rather than languishing on death row, all the while
        being supposedly innocent.

                                *     *      *

        Taking into consideration the strength of the evidence
        proffered against [the defendant] at trial, as the DNA
        testing provision explicitly requires, [the defendant’s]
        deliberate decision at the time of trial not to seek further
        scientific testing, his counsel’s apparent decision not to
        seek DNA testing throughout these lengthy post-conviction
        proceedings, and the belated timing of the current claim, it
        cannot reasonably be concluded that his DNA testing
        motion was made in a timely manner and for the
        purpose of demonstrating the applicant’s actual
        innocence and not to delay the execution of sentence
        or administration of justice.

Id. at 578-81, 65 A.3d at 356-59 (internal citations and quotation marks

omitted) (emphasis added).    Thus, our Supreme Court affirmed the order

denying post-conviction DNA testing, albeit on other grounds. Id. at 581-


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82, 65 A.3d at 359. See also Commonwealth v. Walsh, ___ A.3d ___,

2015 PA Super 222 (filed October 23, 2015) (holding appellant failed to

request DNA testing in timely manner, where appellant knew of existence of

hammer at time of his trial in 2004 and did not seek DNA testing of hammer

until 2014).

      The take-away from Edmiston and Walsh is first that petitioners

seeking DNA testing must exercise due diligence in pursuing requests for

relief under Section 9543.1, or they will be ineligible for relief under the DNA

statute.   See 42 Pa.C.S.A. § 9543.1(d)(1)(iii); Edmiston, supra; Walsh,

supra. Next, our Supreme Court made clear that Section 9543.1(d)(1)(iii)

specifically charges the PCRA court to assess whether the petition is timely

filed. See Edmiston, supra. See also Commonwealth v. Scarborough,

619 Pa. 353, 364, 64 A.3d 602, 609 (2013) (stating: “If the movant is

successful in making this showing [of actual innocence] and the court

additionally    determines     the   requirements      of   42   Pa.C.S.A.    §

9543.1(d)(1) have been met, as well as determines the testing is not

barred by the provisions of 42 Pa.C.S.A. § 9543.1(d)(2), the relief the

movant receives is the trial court’s ordering of the requested DNA testing on

the particular evidence specified in the motion…”) (emphasis added). This

timeliness assessment is mandatory under the DNA statute, and stands as

a threshold eligibility inquiry, regardless of whether the Commonwealth

complains. See id.


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       Instantly, I am convinced Mr. Payne’s current DNA request is untimely

as a matter of law.    At Mr. Payne’s jury trial in 1986, Officer Miller and

Detective Harman testified they collected physical evidence from the crime

scene and submitted it to the FBI for testing and examination. Neither Mr.

Payne nor his trial counsel made any claim at trial that the Commonwealth

had failed to disclose the FBI’s findings or that they were not made available

to the defense during pre-trial discovery.   In his direct appeal, Mr. Payne

similarly made no claim that he was not privy to the FBI’s findings discussed

at trial.

       On June 7, 1991, Mr. Payne alleged for the first time that the

Commonwealth submitted for testing physical evidence found at the crime

scene and withheld this evidence from Mr. Payne and trial counsel. On June

25, 1991, Mr. Payne filed a pro se motion for production of documents

requesting, inter alia, a copy of the FBI report(s) used during the

investigation of his crimes. On July 30, 1991, Mr. Payne filed a consolidated

motion for discovery and a request for an evidentiary hearing renewing his

request for the production of documents. On September 9, 1991, the court

directed the Commonwealth to produce to Mr. Payne the results of the

processing and tests done by the police or FBI.

       The court held a PCRA hearing on October 1, 1991. Significantly, at

the very beginning of the hearing, the Commonwealth stated on the record it

had fully complied with the court’s September 9, 1991 order and supplied


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Mr. Payne with, inter alia, the FBI reports at issue.   At no time did Mr.

Payne dispute the Commonwealth’s representation.                  During the

hearing, Mr. Payne offered no argument that the Commonwealth had

withheld exculpatory evidence.     Similarly, in his post-hearing brief, Mr.

Payne   abandoned    any   claim   that   the   Commonwealth   had     withheld

exculpatory evidence. On June 26, 1992, the PCRA court denied relief. In

its supporting opinion, the court expressly stated:

         [Mr. Payne’s] allegation that exculpatory evidence was
         withheld from him in the form of FBI reports is…without
         merit. Testimony at the PCRA hearing indicated that all
         FBI information was in the possession of [Mr. Payne]. No
         further mention of this information was made in [Mr.
         Payne’s] brief, leading this [c]ourt to the conclusion that
         the allegation of withholding exculpatory evidence is
         without merit.

(PCRA Court Opinion, filed June 26, 1992, at 29) (internal citation omitted).

Mr. Payne did not challenge this determination on appeal.

      On July 10, 2002, the state legislature enacted the DNA statute at 42

Pa.C.S.A. § 9543.1 (effective 60 days later). Mr. Payne waited almost ten

years to file his petition on June 14, 2012, for DNA testing of the following

items recovered from the crime scene: (1) brown head hairs found on

Victim’s nightgown and bedsheet (designated Q8 and Q11); (2) human

blood (designated Q1, Q7-Q11, Q13-Q15, Q17-Q19); and (3) a brown pubic

hair (designated Q16). Astonishingly, Mr. Payne alleged he had no idea this

potential “exculpatory evidence” existed and “[f]or the first time (ever) [he]

was made aware that this important new evidence does exist and is

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preserved and is available for DNA testing.” (Petition for DNA testing, filed

June 14, 2012, at 12, ¶ 19). Mr. Payne further claimed he “was just (for the

very first time)—provided the proof that these exhibits/specimens Q8, Q11,

and Q16, ever existed.”         (Id.)       Mr. Payne alleged he received this

information from the FBI (mailed to his attorney) on January 8, 2012. Mr.

Payne represented: “I want to emphasize that (at no time previous to this)

was I aware that the evidence/specimens Q8, Q11, Q16, ever existed. Only

when the FEDERAL BUREAU OF INVESTIGATION, provided this information

was [Mr. Payne] alerted to these specimens that existed.” (Id. at 13, ¶ 19)

(emphasis in original). At the April 19, 2013 hearing on Mr. Payne’s petition

for DNA testing, he testified he did not receive the FBI file until December

2011.

        Without   addressing   if   the     petition   was   timely   under   Section

9543.1(d)(1)(iii), the PCRA court limited its review to whether Mr. Payne

presented a prima facie case of actual innocence and granted Mr. Payne’s

DNA request. In this regard, the court neglected its specifically charged

duty to make a determination of timeliness prior to granting relief. See 42

Pa.C.S.A. § 9543.1(d)(1)(iii); Edmiston, supra; Scarborough, supra. In

my opinion, the “timeliness” of the DNA petition is an unwaivable statutory

eligibility requirement. The Commonwealth did not have to raise a specific

objection to Mr. Payne’s DNA petition on timeliness grounds to avoid

relieving “the defense of its burden or the PCRA court of its duty.”             See


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Edmiston, supra.      Notably, the DNA statute dictates the petitioner’s

burden under the statute (see 42 Pa.C.S.A. § 9543.1(c)) and the court’s

required review of the petition (see 42 Pa.C.S.A. § 9543.1(d)), to obtain

DNA testing. The DNA statute affords the Commonwealth an opportunity

to respond to an applicant’s petition (see 42 Pa.C.S.A. § 9543.1(b)(1)), but

nowhere does the statute require the Commonwealth to object specifically to

the petitioner’s claims or to respond at all.    Even in the absence of any

response by the Commonwealth to a DNA petition, the petitioner still bears

the burden of complying with the requirements under Section 9543.1(c), and

the court still must conduct review of the petition under Section 9543.1(d).

See 42 Pa.C.S.A. § 9543.1(c); (d); Scarborough, supra. Just as the PCRA

court was obligated to decide whether Mr. Payne presented a case of actual

innocence to be eligible for relief under the DNA statute (see 42 Pa.C.S.A. §

9543.1(d)(2)(i)), the court was similarly required to assess the timeliness of

the petition under Section 9543.1(d)(1)(iii).

      The PCRA contains analogous eligibility requirements, which the PCRA

court (and our Court) must decide are met, even in the absence of an

objection by the Commonwealth.        See, e.g., 42 Pa.C.S.A. § 9543(a)(1)

(explaining that to be eligible for relief under PCRA, petitioner must plead

and prove by preponderance of evidence that petitioner has been convicted

of crime under laws of Pennsylvania, and is at time relief is granted currently

serving sentence of imprisonment, probation or parole for crime; awaiting


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execution of sentence of death for crime; or serving sentence which must

expire before person may commence serving disputed sentence). See also

Commonwealth v. Ahlborn, 548 Pa. 544, 699 A.2d 718 (1997) (explaining

petitioner must be currently serving sentence of imprisonment, probation, or

parole to be eligible for PCRA relief; plain language of statute requires denial

of relief for petitioner who has finished serving his sentence; to grant relief

at time when appellant is not currently serving sentence ignores statutory

language).      Thus, a defendant must be serving the sentence he is

challenging in a PCRA petition as a preliminary statutory eligibility

requirement that needs no specific objection to preserve it. In other words,

the petitioner does not qualify for relief if he fails to meet the statutory

eligibility   requirements,    regardless      of       whether   the   Commonwealth

complains.     Likewise, if the petitioner maxes out on the sentence at issue

while his petition is pending, he no longer meets the statutory eligibility

requirements for relief, and again the Commonwealth does not risk waiver

by failing to raise the issue or to object. The timeliness requirement under

the DNA statute is akin to the eligibility-for-relief requirements under the

general provisions of the PCRA.          Whether Mr. Payne filed his petition in a

timely    manner    is   a   statutory    eligibility    requirement    under   Section

9543.1(d)(1)(iii), which the petitioner must plead and the court is bound to

address as a threshold matter that cannot be waived. The Commonwealth’s

“duty” for purposes of a DNA petition is limited to taking steps reasonably


                                         - 25 -
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necessary   to   ensure   that   any   remaining      biological   material   in   the

Commonwealth’s possession is preserved pending the completion of the

proceedings. See 42 Pa.C.S.A. § 9543.1(b)(2).

     The    PCRA   court’s   failure   to   conduct    the    necessary   timeliness

calculation does not require remand, however, because the record makes

clear Mr. Payne’s DNA request is untimely as a matter of law.                      See

Edmiston, supra.     Quite simply, the record belies Mr. Payne’s repeated

allegations that he just received the FBI file in this case. Giving Mr. Payne

the benefit of the doubt, at the very latest, Mr. Payne received the relevant

documents in 1991 during litigation of his first PCRA petition, more than

twenty years before filing his current request for DNA testing. (See

PCRA Court Opinion, filed June 26, 1992, at 29.)             Mr. Payne presents no

evidence whatsoever to support his bald assertions that he “just” received

the FBI documents. The fact that the FBI mailed his attorney a copy of the

relevant documents by letter dated December 30, 2011, certainly does not

prove Mr. Payne lacked possession of those documents earlier. Likewise, Mr.

Payne’s request for DNA testing fails to provide any evidence to support his

claims that he tried to obtain the relevant FBI documents over the years, to

no avail. Curiously, in his petition for DNA testing, Mr. Payne does not even

allege that he recently learned of the blood samples he wants tested—he

limits his claimed “new discovery” to the hair samples.




                                       - 26 -
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      Additionally, the FBI file attached to Mr. Payne’s DNA petition contains

letters from the police dated December 20, 1981, and December 24, 1981,

requesting testing and examination of physical evidence recovered from the

crime scene. The attached FBI file also contains the FBI’s analyses of the

physical evidence by documents dated December 21, 1981, December 30,

1981, February 18, 1982, and January 24, 1983.              Nowhere in his DNA

petition does Mr. Payne assert that the FBI file he “just” received contains

new documents, or anything other than the documents Mr. Payne had in his

possession in 1991.

      Moreover, Mr. Payne did not even need the FBI documents to request

DNA testing. Mr. Payne knew at the time of his trial that police had collected

and submitted for testing and examination physical evidence recovered from

the crime scene.      Mr. Payne could have requested DNA testing of the

physical evidence recovered in or around 1995, when DNA technology

became widely available.        Alternatively, once our legislature enacted the

DNA statute in 2002, Mr. Payne could have petitioned the court for DNA

testing of the physical evidence recovered from the crime scene. Nothing in

the record indicates that Mr. Payne exercised due diligence in pursuit of his

current request for DNA testing. Rather, the record makes clear Mr. Payne

had the relevant FBI documents in his possession in 1991, and failed to

request   DNA   testing   for    more    than    twenty   years.   Under   these

circumstances, Mr. Payne’s belated request for DNA testing is untimely as a


                                        - 27 -
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matter of law. See Edmiston, supra; Walsh, supra.

     In my opinion, the PCRA court erred when it granted Mr. Payne’s

petition for DNA testing, without examining the timeliness of the petition,

because the petition was untimely under Section 9543.1(d)(1)(iii) as a

matter of law. I also agree with the other dissenting opinion that Mr. Payne

failed to set forth a prima facie case of actual innocence under the facts of

this case. Accordingly, I dissent on both bases.

     Judge Stabile concurs in the result.




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