J-S60025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHAYNE PATRICK FLOOD                       :
                                               :
                       Appellant               :   No. 1963 MDA 2017

               Appeal from the Order Entered November 29, 2017
      In the Court of Common Pleas of Bradford County Criminal Division at
                        No(s): CP-08-CR-0001997-1983


BEFORE: SHOGAN, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                          FILED NOVEMBER 14, 2018

        Appellant Shayne Patrick Flood appeals pro se from the order denying

his motion for DNA testing pursuant to Section 9543.1 of the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant argues that the court

abused its discretion in denying his motion because the results of the

requested DNA test would purportedly establish his absence from the crime

scene and, in turn, his innocence. We affirm.

        On September 7, 1983, a jury convicted Appellant of second-degree

murder, robbery, and several related felonies in connection with the 1979

killing of Leslie Parker, Sr. (Victim). Appellant was subsequently sentenced to

a term of life imprisonment.



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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      Thirty-four years later, Appellant filed a motion for DNA testing of the

murder scene, which was docketed by the court on September 6, 2017. See

Appellant’s Mot. for DNA Testing, 9/6/17. Appellant argued that a DNA test

would establish that an unknown assailant was present at the scene of the

murder.    Id. at 2.   Additionally, Appellant claimed that the test would

exonerate him from the murder, as it would prove that he was not at the scene

and “was not one of the assailants that . . . confront[ed], assault[ed], and

struggle[d] with [Victim].” Id. at 6.

      On November 29, 2017, the PCRA court denied Appellant’s motion,

stating:

      1. While DNA theoretically could establish that one or more
         individuals other than [Appellant] and his co-defendant were
         present at the scene of the murder, such evidence would not
         also establish that [Appellant] was not there.

      2. A motion for post-conviction DNA testing must plead a prima
         facie case that DNA testing would establish the “actual
         innocence” of the applicant.       42 Pa.C.S.A. § 9543
         1(c)(3)(ii)(A).

      3. The absence of DNA proves nothing.

PCRA Ct. Order, 11/29/17.

      The PCRA court docketed Appellant’s timely notice of appeal on

December 19, 2017. On January 10, 2018, the PCRA court ordered Appellant

to file a concise statement pursuant to Pa.R.A.P. 1925. Appellant’s statement

was docketed on January 25, 2018. On June 28, 2018, the PCRA court entered

its 1925(a) opinion.



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       Appellant’s sole question on appeal is, “[d]id the [PCRA] court abuse its

discretion when it denied [Appellant’s] motion for DNA testing?” Appellant’s

Brief at 7 (full capitalization omitted). In support, he argues that DNA testing

would establish that he was “not one of the individuals who struggled with the

victim during the robbery and eventual[ly] murder[ed] the victim.” Id. at 13.

He claims that “[t]he DNA tests would have proved negative regarding the

Appellant, but would have produced the DNA of a previously unknown

assailant.” Id.

       We note that post-conviction DNA testing falls under the PCRA,1 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.” Commonwealth v. Conway, 14 A.3d 101, 108 (Pa.

Super. 2011) (internal quotation marks, brackets, and citation omitted).

       To obtain post-conviction DNA testing under the PCRA, a petitioner must

prove the following:

       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.

____________________________________________


1It is well settled that a request for DNA testing under Section 9543.1 is not
subject to the PCRA time bar. See Commonwealth v. Williams, 35 A.3d
44, 50 (Pa. Super. 2011).

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42 Pa.C.S. § 9543.1(a)(2) (emphasis added).

      Additionally, an individual seeking relief under this statute must 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 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[.]

42 Pa.C.S. § 9543.1(c)(3)(i)-(ii)(A).

      Moreover, we note that

      [s]ignificantly, 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.
      Williams, 35 A.3d 44 (Pa. Super. 2011)] (affirming trial court’s
      denial of DNA testing where appellant failed to meet threshold
      requirements for DNA testing, under Section 9543.1(a)(2), and
      did not demonstrate prima facie case of “actual innocence”; even
      if appellant’s DNA were not found on hat/wig, record contained
      overwhelming evidence of appellant’s guilt including three
      unshakable eyewitnesses, appellant’s confession, and appellant’s
      access to weapon used in crimes); 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; nothing in record supported appellant’s claim that victim
      would have scratched her assailant leaving DNA evidence under
      her fingernails).

Commonwealth v. Walsh, 125 A.3d 1248, 1255 (Pa. Super. 2015).




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      Initially, we note that because (1) Appellant’s case went to verdict

before January 1, 1995, and (2) trial counsel did not seek DNA testing at the

time of trial, Appellant meets the threshold requirement set forth in Section

9543.1(a)(2). See 42 Pa.C.S. § 9543.1(a)(2). Therefore, we next determine

whether Appellant presented a prima facie case that the testing would produce

exculpatory evidence proving his actual innocence.       See 42 Pa.C.S. §

9543.1(c)(3)(ii)(A).

      By way of background, the trial court explained:

      At some point in time, it was decided by Dorothy Boettcher and
      Robert Wheeler that they would try to steal from [Victim], since
      he carried large amounts of money and had drugs in his home.
      However, a problem developed because [Victim] knew Wheeler
      and would be able to identify him. [Dorothy Boettcher]’s ex-
      husband, Barry Boettcher, [(co-defendant Boettcher)] was
      contacted in Wisconsin and he agreed to come to Pennsylvania to
      “rip-off” [Victim]. When [co-defendant Boettcher] arrived from
      Wisconsin in early October, 1979, [Appellant] was with him.
      [Appellant] and [co-defendant Boettcher] stayed at the home of
      Wheeler and Dorothy Boettcher. [Co-defendant Boettcher] and
      [Appellant] had one gun when they arrived from Wisconsin, a .38
      caliber pistol belonging to [Appellant].      Upon arriving in
      Pennsylvania, [co-defendant Boettcher] accompanied Dorothy
      Boettcher to a Sporting Goods Store to purchase another weapon,
      a shotgun. This purchase was made in contemplation of the crime
      against [Victim].

Trial Ct. Op., 5/21/84, at 3.

      At trial, Dorothy Boettcher testified that

      on the night before the body was found, [Appellant] and [co-
      defendant Boettcher] entered the residence of [Victim], after
      [Dorothy Boettcher] had arrived in Towanda following a drive from
      Williamsport, Pennsylvania, with [Appellant] and [co-defendant
      Boettcher]. She testified that, after [Appellant] and [the co-


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     defendant] left the car to enter [Victim’s] house, she remained in
     the car and heard what she described as a gun shot immediately
     followed by a gun blast. She testified further that approximately
     three to five minutes later [Appellant and co-defendant Boettcher]
     came sliding down an embankment and quickly got into the car.
     [She also] testified that [Appellant] was carrying a shotgun and
     that [co-defendant Boettcher] had a .38 caliber pistol in his
     possession[.]

     Mrs. Boettcher testified further that in response to a statement by
     [the co-defendant], [Appellant] asked [co-defendant Boettcher]
     what took him so long to fire and [co-defendant Boettcher], as a
     reply, asked [Appellant] what took him ([Appellant]) so long to
     react. [Appellant] replied that he reacted “as fast as he could,
     that he fired the gun as soon as he felt necessary that it was to
     do so.”

     Mrs. Boettcher testified that as she was driving the car back to
     Williamsport a short time later on the same evening, [Appellant]
     had a wallet with him. [Appellant] stated that the wallet was
     [Victim’s] and that it contained identification, a credit card and
     some cash. [Appellant] counted the cash and stated that there
     was approximately $1,400.00.

Id. at 4-6 (record citations omitted).    Therefore, the testimony at trial

established that Appellant and co-defendant Boettcher robbed Victim and

during the commission of that robbery, Victim was murdered. See id. at 5-

7.

     Instantly, as noted above, the jury found that Appellant and his co-

defendant robbed and murdered Victim. See id. We have carefully reviewed

the entire record and the parties’ briefs, and agree with the PCRA court’s

conclusion that “the presence of DNA from other, unidentified third parties,

even if coupled with the absence of Appellant’s DNA would not exculpate

Appellant,” and that “[t]he absence of DNA evidence would mean only that

the police did not find Appellant’s DNA at the scene.” PCRA Ct. Op., 6/28/18,

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at 1; see Walsh, 125 A.3d at 1255. Moreover, even if the results of the

requested DNA test positively identified another individual’s DNA, Appellant

did not explain how that would exonerate him from his crimes.2 See Walsh,

125 A.3d at 1252. We agree with the PCRA court that Appellant has failed to

meet his prima facie burden under Section 9543.1, and thus, the PCRA court

did not err in denying his motion for post-conviction DNA testing. Accordingly,

we affirm.

       Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2018




____________________________________________


2To the extent Appellant argues that if he were one of the assailants, then his
DNA would be at the crime scene because there was a “violent struggle”
between Victim and his assailants, we find no support in the record for this
contention. See Appellant’s Mot. for DNA Testing, 9/6/17, at 2; see Walsh,
125 A.3d at 1255. The record does not indicate that any type of struggle
occurred prior to Victim’s murder.

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