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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: JOHN MARSHALL PAYNE, III                IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

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: BENDER, P.J.E., BOWES, AND PANELLA, JJ.

DISSENTING MEMORANDUM BY BOWES, J.:              FILED OCTOBER 03, 2014



application for DNA testing pursuant to 42 Pa.C.S § 9543.1, I respectfully

dissent.

      The majority sufficiently stated the facts, procedural history, and the

applicable standard of review.    Accordingly, I do not revisit those items

herein.    I would note, however, that a jury convicted Appellee based

primarily upon the testimony of three witnesses who stated that Appellee

informed them that he was present during the murder of ninety-year-old

Elsie Rishel. Deborah Wallick testified that Appellee told her that he watched

two male accomplices beat Ms. Rishel with a telephone. N.T., 8/18/86 (Vol

II), at 481, 488. However, Sonny Olgesby and Chris Gibson both testified
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that Appellee confessed to them separately that he killed Ms. Rishel. Id. at

525, 546-48. The Commonwealth also elicited evidence from Appellee that

he contacted Ms. Wallick four days before the trial and attempted to

influence her testimony in his favor. Id. at 631-33.



murder that Appellee allegedly provided to the three witnesses varied, and

                                                         edibility. For example,

Ms. Wallick had a prior conviction for hindering prosecution in an unrelated

case, and Olgesby and Gibson both received plea deals in unrelated cases in

return for their testimony against Appellee. Id. at 489-90, 520-21, 550-51.1

Based upon this evidence, the jury convicted Appellee of felony murder,

aggravated assault, burglary, and criminal conspiracy.

        Appellee filed a petition to test the telephone that is believed to be the

murder weapon for exculpatory DNA evidence. In relevant part, the statute




____________________________________________


1
   The trial court found that Appellee presented evidence to imply that
Olgesby and Gibson discussed the specifics of his case before Gibson

at 7.     The extent of that testimony was that Mr. Gibson could have

the Friday prior to the start of trial and that the next day, Gibson and
Olgesby had a secretive conversation about an unknown topic while walking
a

confession as early as January 1986. Id. at 540-541.



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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

             (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.



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     Thus, in order to prevail on an application for DNA testing, as a

threshold matter, Appellee 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 Commonwealth v. Conway, 14

A.3d 101, 109 (Pa.Super. 2011) (quoting Schlup v. Delo, 513 U.S. 298,

327 (1995)), we explained that actual innocence in this context and in the



not that no reasonable juror would have found him guilty beyond a




                                                                        Id.

(quoting Schlup, supra at 329).

     Unlike the trial court and by implication the majority, who affirms on



evidence was so fragile that it could not withstand new exculpatory evidence

that confirmed that DNA from someone else was discovered on the



against Appellee was based entirely on circumstantial evidence, three

witness testified that Appellee confessed about his role in the criminal

conspiracy. Moreover, as a further demonstration of guilt, Appellee admitted

that he contacted one Commonwealth witness and attempted to influence

her testimony in his favor.   Thus, in contrast to the trial court, I do not


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believ

requirement of producing a prima facie case that, assuming the exculpatory

results of the DNA testing, i.e., the absence of his DNA or the presence of

someone else, the evidence would demonstrate his actual innocence of

felony murder.      Accordingly, I would reverse the order granting the

requested relief.



                                                                           was

legal error. In the concomitant opinion supporting the May 22, 2013 order

granting relief, after discussing the appropriate legal standards and the

circumstances militating for and against granting DNA testing, the trial court



determine the identity of the other assailants. Trial Court Opinion, 5/22/13

at 12.   The trial court conceded that this unintended use of DNA testing



nevertheless admonished the Commonwealth for opposing an application of

the statute that would bring the additional conspirators to justice. Id. at 13.



ruling in favor of testing it might be inadvertently aiding other perpetrators

                       Id. at 13.




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trial court authored a Rule 1925(a) opinion, which indicated, in pertinent

part, that its prior comment was merely hyperbole.              The trial court

explained,



      too carless with language. At the time of drafting, the Court
      believed it was obvious that the best reason for taking action is
      not synonymous with the legally correct reason for that same
      action.

Rule 1925(a) Opinion, 8/15/13, at 14-15. Thus, the trial court maintained

that the error was harmless.

      While   the   majority   declines   to   address   this   aspect   of   the



                               ex post facto explanation of its positon as

semantic flair rendered the error harmless. Although it is beyond argument

that the trial court set forth the statutory framework outlined in § 9543.1(c)

and (d), and endeavored to apply relevant provisions appropriately, it is

apparent to me that the court

DNA testing in this case infiltrated its legal analysis and affected its

decisions. Indeed, immediately prior to ascribing its statement to hyperbole

in the Rule 1925(a) opinion, the court repeated the statement regarding the

suggested misapplication of the DNA testing provisions verbatim in the

portion of the Rule 1925(a) opinion that addressed the merits

petition. Moreover, the trial court was either unable or unwilling to explain



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its admonition of the Commonwealth for exercising its right to appeal the



apparent that the trial court failed to disentangle the two distinct objectives

that it proposed for the DNA testing. As the trial court was occupied with

the tangential benefit that DNA testing would have in this case, no matter

how well-

improper, and I believe that the consideration tainted its decision to grant

relief.




misinterpretation of the



however, the majority and the Commonwealth invoke the identical definition

of actual innocence and cite the same legal authority for their shared

positon, i.e., Conway, supra

discovered evidence must make it more likely than not that no reasonable




definition of actual innocence is unpersuasive.



argument, that assuming the DNA test produces exculpatory evidence, such


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as the identification of a perpetrator other than Appellee, simply echoes the

well-ensconced maxim that the absence of evidence is not evidence of

absence. Thus, as the Commonwealth cogently explained, where, as here, a

person is convicted of felony murder for his role in a criminal conspiracy

without the aid of any physical evidence linking him to the crime, it is

obvious that the jury was not swayed by the absence of physical evidence in



augments the dearth of incriminating physical evidence or, at best,

implicates a co-conspirator, is not ipso facto grounds to find that it is more

likely than not that no reasonable juror with knowledge of the new evidence

would convict the defendant.

     Finally, I am not convince



witnesses actually participated in the burglary and murder.     The majority



credibility above and beyond their preexisting credibility problems. It would

also explain their familiarity with the likely murder weapon and demonstrate



theory is unpersuasive for at least two reasons. First, the proposed scenario

is unmitigated speculation, and exactly nothing in the certified record

supports the suggestion, much less the possibility, that any of the

                                                                    extended


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that the potential identification and implication of one of the three

incriminating witnesses under this imaginative setup leaves two remaining

witnesses whose incriminating testimony is unaffected. Ultimately, I believe

that even under this best-case scenario advanced by the majority, the trial

court still could not reasonably find that properly-instructed jurors would

acquit Appellee if presented with the new evidence. Accordingly, for all of

the foregoing reasons, I respectfully dissent.




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