J-S10013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
GARY L. BROWN                           :
                                        :
                   Appellant            :   No. 2843 EDA 2017

               Appeal from the PCRA Order August 21, 2017
    In the Court of Common Pleas of Chester County Criminal Division at
                      No(s): CP-15-CR-0002541-1997,
                          CP-15-CR-0003278-1997


BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY BOWES, J.:                        FILED OCTOBER 16, 2018

      Gary L. Brown appeals pro se from the August 21, 2017 order denying

his request for post-conviction DNA testing. We affirm.

      On September 30, 1998, a jury convicted Appellant of two counts of

first degree murder and related offenses in connection with the shooting

deaths of Saysana Laomoi and Ty Sacksith.         In affirming the ensuing

judgment of sentence, this Court adopted the trial court’s statement of facts

as follows:

      On the evening of May 31, 1997[,] [Appellant] and Daryl Glasco
      paged . . . Laomoi to inquire about purchasing marijuana from
      him. Laomoi was again paged on the morning of June 1, 1997
      for the same purpose. [Appellant] and Glasco arranged to meet
      Laomoi later that day.

      At approximately 11:00 am, [Appellant] . . . and Glasco . . .
      went to [an] apartment complex parking lot, and entered a
      green Toyota driven by . . . Sacksith. Laomoi was sitting in the
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       front passenger seat. [Appellant] sat behind the driver’s seat,
       and Glasco sat behind the front passenger seat. The Toyota was
       driven from the parking lot and proceeded west on Union Street.
       Laomoi was shot in the neck once and twice in the head.
       Sacksith was shot once in the back of the head. Both victims
       were shot with the same 38-caliber revolver.

Commonwealth v. Brown, 742 A.2d 1140 (Pa.Super. 1999) (unpublished

memorandum at 2).

       The trial court imposed two consecutive life sentences for the murders,

and an aggregate term of thirty-two-and-one-half to sixty-five years

incarceration for the remaining offenses. This Court affirmed the judgment

of sentence, and on November 23, 1999, our Supreme Court denied

allowance of appeal. Commonwealth v. Brown, 747 A.2d 364 (Pa. 1999).

       The trial court outlined the subsequent procedural history as follows:

             Failing to obtain relief through [five PCRA] petitions,
       Appellant turned to 42 Pa.C.S.A. § 9543.1 “Postconviction DNA
       Testing,” and on June 27, 2017, filed a motion requesting that
       DNA testing be performed on the “lift tape” used to lift
       fingerprints from the car in which the victims were killed, and
       DNA testing on blood located on the trigger guard of the murder
       weapon.

              The Commonwealth filed an answer to Appellant’s motion
       on July 21, 2017, and on August 3, 2017[,] Appellant filed his
       rebuttal to the Commonwealth’s answer. On August 21, 2017,
       after finding that Appellant had failed to establish entitlement to
       DNA testing, [the trial court] denied his request.[1] This appeal
       followed.
____________________________________________


1 The PCRA’s one-year time bar does not apply to a petition for DNA testing.
As we explained in In re Payne, 129 A.3d 546, 555-556 n.12 (Pa.Super.
2015), “post-conviction DNA testing does not directly create an exception to
§ 9545’s one-year time ban. Rather it allows for a convicted individual to
(Footnote Continued Next Page)


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Trial Court Opinion, 9/28/17, at 1-2.

      The trial court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied,

and the trial court issued a Rule 1925(a) opinion.      Appellant presents one

question for our review: Whether “the lower court abused its discretion when

it dismissed the [DNA] petition filed by . . . Appellant . . . pertaining to this

instant case.” Appellant’s brief at 3.

      We review the trial court’s decision to grant or deny a post-conviction

petition for DNA testing for whether the findings of the trial court are

supported by the record and free of legal error.           Commonwealth v.

Conway, 14 A.3d 101, 108 (Pa.Super. 2011) (footnote and citation omitted)

(“Post conviction DNA testing falls under the aegis of the Pennsylvania Post

Conviction Relief Act . . ., and thus, “our standard of review permits us to

consider only whether the PCRA court’s determination is supported by the

evidence of record and whether it is free from legal error.”).

      Appellant’s request for DNA testing is two-fold. First, he sought to test

the “lift tape” that the crime scene investigators used to lift his fingerprints

(Footnote Continued) _______________________

first obtain DNA testing which could then be used within a PCRA petition to
establish new facts in order to satisfy the requirements of an exception
under 42 Pa.C.S.A. § 9545 (b)(2).” Additionally, there is no statutory right
to the assistance of counsel in requesting DNA testing. Commonwealth v.
Brooks, 875 A.2d 1141, 1147 (Pa.Super. 2005).




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from the back of the driver’s seat in Sacksith’s car.    He asserts that the

results of DNA testing on the organic matter that constitutes the fingerprint

would prove his actual innocence of the offenses by confirming that the

fingerprints that were originally identified as his were actually left by

someone else. Next, Appellant requested DNA testing on the blood swabbed

from the trigger guard of the handgun used to murder both victims.

Although the swab that was tested at the time of trial identified the blood of

one of the victims, Appellant contends that additional swabs exist that would

reveal DNA that belongs to George Cornell, who Appellant claims is the prior

owner of the firearm. For the following reasons, we find that the trial court

did not err in denying relief.

      In relevant part, the statute governing post-conviction DNA testing of

specific evidence provides as follows:

      (c) Requirements.—In any motion under subsection (a)
      [regarding forensic DNA testing], under penalty of perjury, the
      applicant shall:

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

            ....

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

          (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




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           (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.—

           ....

         (2) The court shall not order the testing requested . . . if,
         after review of the record of the applicant's trial, the court
         determines that there is no reasonable possibility that the
         testing would produce exculpatory evidence that:

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

           ....

42 Pa.C.S. § 9543.1(c), (d). Significantly, however, there is a preliminary

requirement that compels a petitioner to demonstrate:

     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.

42 Pa.C.S. § 9543.1(a)(2). Thus, in order to prevail on an application for

DNA testing, as a threshold matter, Appellant must prove either that (1)

technology did not permit testing when he was tried; (2) the verdict

preceded January 1, 1995, and counsel neglected to request testing during


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trial; or (3) the trial court denied Appellant’s request for funds to pay for the

testing despite his indigence. Id.

      Thereafter,    presuming       Appellant   satisfies   these   preliminary

requirements, Appellant must adduce prima facie evidence that, assuming

exculpatory results, the evidence would demonstrate his actual innocence of

the offense for which he was convicted. In Conway, supra at 109 (quoting

Schlup v. Delo, 513 U.S. 298, 327 (1995)), we explained that actual

innocence in this context and in the context of § 9543.1(d)(2)(i), is

demonstrated by evidence that “makes it ‘more likely than not that no

reasonable juror would have found him guilty beyond a reasonable doubt.”’

See also In re Payne, supra at 556.              We concluded, “this standard

requires a reviewing court ‘to make a probabilistic determination about what

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

evidence.” Conway, supra at 109 (quoting Schlup, supra at 329).

      Appellant’s request for DNA testing fails for two reasons.      First, it is

stale insofar as the samples that he is currently requesting to test were

available for testing during his 1998 trial.       Indeed, the Commonwealth

introduced evidence outlining the results of the DNA tests that the State

Police Crime Laboratory performed on several pieces of evidence that

investigators removed from inside the vehicle, including the trigger guard

that Appellant seeks to test herein. The crime lab performed DNA tests in

anticipation of trial and submitted those results as evidence; however,


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Appellant did not request that the laboratory test the fingerprint lift tape or

demand that the unit test any of the swabs from the interior of the vehicle

that he currently contends avoided testing.       Moreover, as it relates to

Appellant’s statutory obligations, Appellant does not assert, much less

demonstrate that: 1) advances in technology would facilitate testing that

was previously hindered; 2) he was convicted prior to 1995 and counsel

failed to request testing; or 3) he was indigent and the trial court denied his

request for funds to pay for DNA testing prior to trial.    See 42 Pa.C.S. §

9543.1(a)(2). Appellant simply ignores these threshold components of the

post-conviction DNA statute.     Accordingly, the trial court did not err in

denying his petition for DNA testing. See Commonwealth v. Perry, 959

A.2d 932, 939 (Pa.Super. 2008) (no relief due when petitioner failed to

satisfy the conditions outlined in § 9543.1(a)(2)); Commonwealth v.

Walsh, 125 A.3d 1248, 1257(Pa.Super. 2015) (same).

      Moreover, even if Appellant had satisfied one of the preliminary

components of § 9543.a(a)(2), which he did not, the present claim would

fail. Stated plainly, assuming the DNA testing produced exculpatory results,

Appellant cannot establish a prima facie case of actual innocence.         The

Commonwealth presented substantial evidence of Appellant’s guilt.

      On a prior appeal, we reiterated the trial court’s summation of the

evidence as follows:

      Bonnie Weston, Laomoi’s girlfriend, was interviewed by police
      and stated that Laomoi was supposed to help Sacksith sell

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      marijuana to an individual named “Gary.”           Jessica Smith,
      [Appellant’s] girlfriend, told police that [Appellant] and Glasco
      paged Laomoi [for that purpose] from her apartment on the
      night of May 31, 1997. Smith saw Laomoi arrive in the parking
      lot to [Appellant’s] apartment on the morning of June 1, 1997,
      get out, and walk towards [Appellant’s] apartment building.
      Smith later went to [Appellant’s] apartment and found a “large
      package of marijuana.”

Brown, supra (unpublished memorandum at 2) (quoting Trial Court

Opinion, 12/24/98, at 2).     The trial court further explained that, after

committing the murders,

      [Appellant and Glasco] took marijuana from [Sacksith’s] car and
      returned on foot to [Appellant’s address] with the revolver,
      bloody clothing, and a box of 38-caliber ammunition. [The pair]
      then repackaged the marijuana into smaller bags. [Appellant]
      instructed his brother[,] Eric[,] to take a gym bag and a plastic
      bag to their grandmother's home in West Chester.

Id.

      Thereafter,

      A search warrant was obtained for [Appellant’s] apartment
      where a 38-caliber revolver was recovered; ballistics indicated
      that it was the murder weapon. A search warrant for the home
      of [Appellant’s] grandmother, Elizabeth Brown, yielded one box
      of 38-caliber ammunition, clothing containing traces of blood,
      and marijuana.

      During the investigation of the crime scene . . . Glasco’s bloody
      fingerprint was found behind the passenger seat. . . . Glasco’s
      fingerprint was also found on the box of 38-caliber ammunition.
      A second print found behind the driver’s seat was matched to
      [Appellant].

      A fellow inmate testified at trial that Brown sent him to tell the
      District Attorney that Glasco had confessed to committing both
      murders, in an attempt to shift the blame away from [Appellant].
      Talking points in [Appellant’s] handwriting were admitted to
      corroborate that testimony.

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Id. at 2-3. Based on the foregoing testimony, the jury convicted Appellant

of, inter alia, two counts of murder.

      As it relates to the lifting tape used to obtain Appellant’s latent finger

prints from Sacksith’s vehicle, Appellant claims that a DNA test on the

organic material the tape lifted from the back of the driver’s seat would

reveal the presence of someone else’s DNA, presumably refuting the expert

testimony that confirmed that the latent fingerprint matched Appellant’s.

For the following reason, this assertion fails.

      Notwithstanding the fingerprint evidence that Appellant hopes to

undermine with his DNA request, the remaining evidence demonstrates

Appellant’s guilt beyond a reasonable doubt. Appellant coaxed the victims to

his apartment complex under the guise of purchasing marijuana.          Neither

victim was seen alive again.     Following the murders, Appellant and Glasco

took the marijuana, murder weapon, ammunition, and bloody clothes to

Appellant’s apartment.     Appellant divided the marijuana and directed his

brother to take the ammunition, clothing, and a portion of the marijuana to

their grandmother’s home, where the items were recovered by police.          In

addition, crime scene investigators discovered Glasco’s bloody fingerprint at

the crime scene and on the box of ammunition that was found within

Appellant’s control.   Similarly, police discovered Appellants’ firearm, which

ballistics confirmed as the murder weapon, in his apartment.       Later, while

Appellant was incarcerated pending trial, he enlisted a fellow inmate to make

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false statements to the district attorney that shifted responsibility for both

murders to Glasco.

      All of the foregoing non-fingerprint evidence establishing Appellant’s

guilt was presented to the jury during trial.   Thus, even presuming that a

test on the lift tape produced exculpatory evidence, it would not override the

remaining physical and testimonial evidence establishing Appellant’s guilt.

Thus, no relief is due.    See Walsh, supra at 1245-55 (“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 ”).

      The results of a new DNA test on the trigger guard would be equally

unavailing. Appellant’s justification for re-testing the trigger guard is not a

model of clarity.    He appears to assert that the blood found on his gun

belonged to the gun’s prior owner and not, as the DNA test performed prior

to trial confirmed, one of the victims.      However, Appellant neglects to

present any realistic scenario where a vestige of Mr. Cornell’s DNA on the

firearm that Cornell previously owned is exculpatory.       Ballistic evidence

established that Appellant’s gun was the murder weapon.        Presuming that

the blood taken from the trigger guard was re-tested and identified as

belonging to Mr. Cornell rather than a victim, that revelation does not

exonerate Appellant ipso facto. At most, the discovery of Mr. Cornell’s DNA

on the weapon casts a doubt on the accuracy of the DNA report generally.


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However, Appellant’s convictions did not rest upon any DNA evidence, and

his statutory burden of establishing a prima facie case of actual innocence is

significantly higher than questioning the accuracy of any single piece of

evidence.   Accordingly, Appellant’s claim fails for identical reasons that we

discussed in addressing his request to test the fingerprint tape, i.e.,

Appellant failed to make out a prima facie case that the testing would

produce exculpatory evidence proving his actual innocence.       See Walsh,

supra.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/18




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