Commonwealth v. Hardy, W., Aplt

[J-38-2023] [MO: Wecht, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 42 WAP 2022

:

Appellee : Appeal from the Order of the

: Superior Court entered March 30,

: 2022, at No. 430 WDA 2021,

v. : affirming the order of the Court of

: Common Pleas of Erie County

: entered March 9, 2021, at No. CP-

WILLIE JAMES HARDY, : 25-CR-0001647-1993.

:

Appellant : SUBMITTED: June 21, 2023

CONCURRING AND DISSENTING OPINION

JUSTICE MUNDY DECIDED: JUNE 17, 2025

I agree with some of the majority’s conclusions, including the following: previously-

untested evidence may be eligible for DNA testing at the present juncture where newer

technology has emerged since the time of trial; previously-tested evidence may be eligible

for retesting on the same basis; the statutory “actual innocence” standard is satisfied

when the applicant has set forth a prima facie case that it is more likely than not no

reasonable jury would convict at a new trial where the record is supplemented with

hypothetical exculpatory results from the proposed new testing; a prima facie case in this

context means the applicant has identified the exculpatory results that could, within

reason, be obtained from the testing sought, such that every rational, properly-instructed

jury presented with those results, together with all of the other trial evidence, would acquit;

the DNA court’s evaluation of the evidence for this purpose is distinct from a review for

evidentiary sufficiency to sustain a guilty verdict; the lower courts erred in disregarding

Appellant’s redundancy theory as a basis for testing; and the matter should be remanded

to the DNA court for further proceedings. With that said, I respectfully disagree with other

holdings reached by the majority, including that the DNA testing statute as amended in

2018 does not include a timeliness requirement, and that there is no need for the DNA

court to receive any evidence on the current state of the art in DNA testing technology.

My reasoning follows.

I. Background

Appellant Willie James Hardy was convicted of first-degree murder in 1996 and

sentenced to life in prison. 1 Since that time, the General Assembly has enacted

legislation giving individuals convicted of an offense in Pennsylvania an avenue to obtain

DNA testing in an effort to prove their innocence. See 42 Pa.C.S. § 9543.1. Twenty-four

years after his conviction, Appellant applied for DNA testing under that provision in 2020.

The questions presented in this appeal by allowance relate to the timeliness of Appellant’s

request for DNA testing, which items of evidence are eligible for testing at this time, and

whether Appellant satisfied the statute’s substantive prerequisites for such testing.

Appellant and the victim, Deborah Will (hereinafter, “Deborah”), both worked at

Erisco Industries in Erie, Pennsylvania, located on Raspberry Street near the corner of

West 18th Street. Erisco was a factory that made steel wire products. At some point the

two began a romantic relationship and Deborah began living with Appellant. The

relationship ended in January or February of 1993, and Deborah, with her twelve-year-

old daughter, moved in with Deborah’s brother and his wife. Appellant sought to rekindle

the romance, but his efforts were unsuccessful and Deborah ultimately began dating

Kenneth Logan, a development Appellant learned about a few days before Deborah’s

body was found on the morning of June 22, 1993.

1 Appellant was convicted of first-degree murder in this matter in 1993.

His judgment of

sentence was vacated on appeal due to the erroneous admission of hearsay evidence,

see Commonwealth v. Hardy, 663 A.2d 248 (Pa. Super. 1995) (table), and he was retried

by jury in 1996. Unless otherwise specified, the references herein to Appellant’s trial

relate to his 1996 trial.

[J-38-2023] [MO: Wecht, J.] - 2

The previous day, June 21, 1993, Deborah, Appellant, and several co-workers

worked their regular shift at Erisco, namely, the second shift which lasted from 3:30 to

11:30 p.m. As crew leader, Appellant was in charge of collecting timecards, closing the

factory, and setting the burglar alarm at the end of the shift. When Deborah arrived for

work that day, she parked her 1975 Chevy Blazer truck in Loading Dock 3, which opened

onto Raspberry Street. That loading dock was not used for factory work during the second

shift. Parking there was unusual for Deborah as she ordinarily parked in the parking lot.

Appellant also parked his motorcycle in Loading Dock 3 that day. Additionally, he asked

his supervisor for permission to take the following day off. During the course of the shift,

one of Deborah’s co-workers noticed Appellant holding a surgical-type glove, something

the co-worker had never seen him in possession of before. 2

At 11:30 p.m., the workers clocked out for the night and most of them left.

Deborah, however, stayed in the factory, remaining there with Appellant because he

asked her to stay. Deborah was never seen alive again. Appellant, whose timecard

showed he punched out at 11:31 p.m., did not set the alarm until 11:52 p.m. 3

The following morning, Logan arrived at the factory inquiring if anyone had seen

Deborah. Randy Luce, the first-shift supervisor, told Logan someone at the factory

mentioned seeing a truck like Deborah’s about one block from the factory along 19th

Street. Luce and Logan went outside and found the truck with Deborah’s body inside.

They both touched the outside of the truck, and Logan entered through one of the front

doors while Luce went back to the factory to call the police.

2 See N.T., April 22, 1996, at 89-90, reprinted in RR. 1866a-1867a (testimony of Kaye

Irwin).

3 The Erisco general manager testified that on the night in question, Appellant was the

only employee who had access to the four-digit code used to activate the alarm. See

N.T., April 24, 1996, at 81, reprinted in RR. 2384a (testimony of Phillip Zachs).

[J-38-2023] [MO: Wecht, J.] - 3

The truck was found on the north side of 19th Street pointing east, and it was

situated next to railroad tracks in a trash-strewn area used for parking by tenants of a

nearby building and frequented by prostitutes. There was eyewitness testimony from a

neighborhood resident indicating the truck was placed at that spot between 11:30 and

11:50 p.m. 4 Deborah’s body was in the truck bed in the back with the tailgate door locked.

Her body was covered in dirt and bruises, and a twine cord was wrapped around her

neck. Her clothing was noticeably more soiled than it had been at the end of her shift the

previous night. However, it was not ripped, torn, pulled up, or pulled off, and it was fully

buttoned – all of which suggested sexual assault was not a motive. 5 As well, cash, credit

cards, and a watch were found on the vehicle’s front seat, thus also appearing to exclude

robbery as a motive.

The autopsy results indicated Deborah suffered a blunt force injury to the head.

The cause of death was asphyxia due to strangulation. The bruises on her neck and

other factors indicated manual strangulation followed by ligature strangulation. The

Commonwealth’s pathologist estimated that the time of death was between 11:00 p.m.

on June 21 and 2:00 a.m. on June 22, 1993. The Commonwealth’s pathologist, who had

herself performed approximately a thousand autopsies, did not perform the autopsy in

this case. She reached her time-of-death conclusion based on photographs of the

victim’s body, the autopsy report, and a video of the autopsy.

During the afternoon and evening of June 22, 1993, Erie police questioned

Appellant about his relationship with Deborah and about the events of the previous day.

Appellant admitted the two had been romantically involved and that she had rejected his

4 See N.T., April 24, 1996, at 43, 52, reprinted in RR. 2346a, 2355a (testimony of Angela

Stone). Ms. Stone walked to a corner store at 11:30 and did not see the truck. When

she walked home at around 11:50, she saw it parked where it was found the next morning.

5 No evidence of sexual assault was ever found.

[J-38-2023] [MO: Wecht, J.] - 4

pleas for reconciliation. He initially cooperated with the investigation, allowing the police

to search his residence and seize some of his clothing. He accompanied the police back

to the factory, where he demonstrated several times how he had closed down the factory

the previous night. The police timed these demonstrations and concluded he could not

account for 14 minutes of his time. 6 After further questioning, Appellant invoked his right

to counsel. He was eventually charged with, inter alia, one count of murder. See 18

Pa.C.S. § 2502.

As the investigation unfolded, the physical evidence did not directly link Appellant

to the killing, but it did suggest a connection between the killing and the factory. A

Pennsylvania State Police forensic scientist testified the cord used to strangle Deborah

was made of twine that matched the twine located in the factory in terms of its length,

composition, and the specific type of knot that was used. 7 The same scientist stated the

dirt on the factory floor contained a unique mixture of components that matched the

samples taken from Deborah’s soiled clothing. Scrapings from Deborah’s fingernails

included that same type of dirt, and none of Deborah’s clothes had any grass, weed, or

6 The police made a videotape of Appellant reenacting his movements, which was played

for the jury. From the reenactment it appeared Appellant would have set the alarm at

approximately 11:38 p.m. the previous night. The detective concluded from this that there

was a 14-minute gap that was unaccounted for.

Other testimony indicated there would have been a 90-second delay from when the code

was punched into the alarm, to when the alarm system reflected it was fully armed. See

N.T., April 30, 1996, at 67, reprinted in RR. 3291a (testimony of Timothy Furman). Thus,

it is possible the gap was closer to 12 minutes than 14 minutes. In any event, these time

periods are estimates as there is no evidence the clock at the factory was synchronized

with the clock at the alarm company that provided the 11:52 time stamp. See id. at 67-

68, reprinted in RR. 3291a-3292a.

7 The twine was cut from stacks of cardboard shipping cartons that Erisco received from

a supplier. The lead detective’s investigation determined that the supplier did not deliver

stacks of boxes to any other factory in the area. See N.T., April 29, 1996, at 56, reprinted

in RR. 3043a (testimony of Detective David Bagnoni).

[J-38-2023] [MO: Wecht, J.] - 5

soil particles. Additionally, next to Deborah’s body in the back of her vehicle, investigators

found an octagonal bolt that was missing from the accordion gate just outside Loading

Dock 3. 8 Furthermore, Erisco’s maintenance foreman found a pair of sunglasses

matching those worn by both Deborah and Appellant on the ground in Loading Dock 3,

just behind where Deborah’s truck had been parked the previous night. See N.T., April

23, 1996, at 41-42, reprinted in RR. 2076a-2077a.

Two eyewitnesses supplied testimony concerning the interval from when the shift

ended at 11:30 to 11:52 p.m. when the alarm was set. At about 11:49 p.m., Erie Police

Officer Stephen Franklin was driving slowly along Raspberry Street when he looked

toward Loading Dock 3 and saw a motorcycle coming out of the loading dock entrance.

The motorcycle matched the one driven by Appellant based on the size and placement

of the running lights beneath the windshield. The officer could see that the accordion

gate was open, the overhead door was partially open and in the process of opening, and

some of the interior lights of the factory were still on behind the motorcycle.

Separately, Dale Teribery, a second-shift worker, left the factory at 11:31 p.m. but

stayed in his car waiting for Deborah to leave the building. 9 At Deborah’s request he

waited in his car for her in an alleyway next to the factory. However, he never saw her

come out of the factory. At some point he noticed the lights go on in Loading Dock 3, and

he waited in his car an additional eight or ten minutes. After seeing what he thought was

Deborah’s truck on Raspberry Street, he drove out of the alley and discovered it was not

her truck. He then drove past Loading Dock 3 and noticed that the lights were still on in

8 Loading Dock 3 also had an overhead door that, if it was open due to the warm weather

(which it was on the night in question), was closed at the end of the second shift. The

accordion gate was an additional security structure just outside the overhead door.

9 Teribery’s claim to have left the factory and waited in his car was corroborated by

another second-shift worker. See N.T., April 24, 1996, at 167, reprinted in RR. 2470a

(testimony of Kevin VanTassel).

[J-38-2023] [MO: Wecht, J.] - 6

the dock area and the overhead door and accordion gate were closed. When he drove

an extra block, turned his car around, and drove past the loading dock a second time, he

noticed the lights were off and the door and gate were still shut. Thinking Deborah had

left, he drove home. Based on his experience operating those doors, he concluded that

in the short time it took him to turn around and drive by the loading dock a second time,

it would have been impossible for someone to have opened the door and gate, exited the

loading dock, and closed them again. The police timed Teribery as he re-enacted his

drive past Erisco. From the reenactment, they determined Teribery left the factory at

about 11:45 p.m. 10

The investigating detective referred to Teribery’s description when questioning

Appellant about the 14-minute gap on June 22, 1993, less than 24 hours after these

events. At first Appellant could not explain this gap, but after repeated questioning he

suggested he might have sat outside on his motorcycle during the interval. When the

detective mentioned that that would be inconsistent with Teribery’s account, Appellant

changed his mind again and said he might have asked Deborah to stay inside the factory

and talk to him. This, in turn, led to a more in-depth discussion concerning Appellant’s

relationship with Deborah. According to the detective, Appellant explained he had been

repeatedly trying to convince Deborah to reinstitute their romance and he thought about

her all the time. His requests became so persistent that Deborah had told him to “quit

begging.” N.T., April 29, 1996, at 49, reprinted in RR. 3036a (testimony of Detective

10 Teribery testified he did not work the following day, June 22, 1993, because he was

“too upset” about Deborah’s death. Although he did not expressly state how he learned

of the killing, he did refer to a television news broadcast he had seen. N.T., April 22,

1996, at 40, reprinted in RR. 1817a.

[J-38-2023] [MO: Wecht, J.] - 7

David Bagnoni). Appellant noted he did not react negatively to that remark because of

the mental disciplines he had learned through his martial-arts training. 11

Four items of evidence underwent DNA testing prior to trial: (1) small pieces of

flesh found under Deborah’s nails; (2) semen and vaginal fluid from a used condom found

near Deborah’s car; (3) semen retrieved from Deborah’s underwear and vaginal swab;

and (4) blood from her shirt. 12 The testing excluded Appellant as a contributor to the DNA

for each of these items. The semen found in and around Deborah’s vagina was identified

as belonging to her paramour, Kenneth Logan, who testified he had had intercourse with

Deborah sometime before she started work on June 21, 1993. 13 The semen from the

condom excluded both Logan and Appellant. The vaginal fluid from the condom did not

11 Appellant had a black belt in karate and was a karate and weightlifting instructor.

12 In addition to the condom, a business card from a men’s health club and a used tissue

were found not far from Deborah’s truck, but they were not tested for DNA.

13 Appellant presently implies that Logan acted suspiciously by intentionally omitting that

detail when he first talked to the police. See Motion at ¶34, reprinted in RR. 23a (asserting

that Logan “withheld critical information from the police,” which became clear during

Appellant’s first trial when a police detective “testified that upon arriving at the scene, he

spoke with Mr. Logan who indicated that he had only spoken with Ms. Will that afternoon”)

(citing N.T., Dec. 8, 1993, at 146) (emphasis in original). The 1993 trial transcript does

not support Appellant’s description. It reflects, rather, that the detective who spoke with

Logan shortly after Logan discovered Deborah’s vehicle answered a question at trial

within the scope of what was asked. The prosecutor asked, “Did [Logan] indicate to you

when the last time was that he spoke to the victim?” The detective answered, “He had

stated that he spoke to her, I believe it was like 2:30 or 2:45 the prior afternoon.” N.T.,

Dec. 8, 1993, at 146 (testimony of Detective Steven Goozdich).

While it may be true that Logan did not, for whatever reason, immediately reveal to the

detective that he had had intercourse with Deborah on June 21, 1993, there is no basis

in the record to believe he intentionally “withheld critical information.” In fact, Logan did

divulge that information once he realized it was relevant to the investigation. See N.T.,

April 23, 1996, at 125, reprinted in RR. 2160a (“Q: When did you tell the police that you

had made love to her on that afternoon? A: It was – came back to me that they checked

her panties out, and I admitted that I made love to her that day.”).

[J-38-2023] [MO: Wecht, J.] - 8

match Deborah. The blood on Deborah’s shirt was her own, as was the flesh retrieved

from under her nails.

The police did not focus their investigation on Logan because he was able to

establish that he was at his own place of employment during the relevant timeframe. He

was employed by Lord Corporation, where he worked the 11:00 p.m. to 7:00 a.m. shift.

Lord manufactured helicopter parts for military and civilian use, and for security reasons

the Lord factory was surrounded by a barbed-wire fence and had a security gate with a

guard’s station, which was the only point of entry or egress for employees. The gate was

locked 30 minutes after the shift started and employees were not allowed to leave in the

middle of the shift. Logan’s account that he was working at Lord throughout the night of

the murder was corroborated by a fellow employee, Walter Tiebolt, who worked the same

shift as Logan. At trial, Tiebolt described how, due to the open layout of the department

where he and Logan worked, they would only lose sight of each other for brief periods

when one of them used the restroom. Tiebolt testified that on June 21, 1993, Logan

worked his entire shift. Tiebolt and Logan left the factory together at 7:00 the next

morning. 14 Tiebolt also recounted that Logan became upset when he did not receive a

call from Deborah at midnight that night, as she would customarily call him from her home

at that time to chat after she completed her Erisco shift.

Based on all of this evidence, the Commonwealth’s theory of the case was that

after the Erisco shift ended and all other workers had left the building, Appellant killed

Deborah inside the factory and placed her body in the back of her truck. According to the

Commonwealth, Appellant then drove Deborah’s truck out of the loading dock; went back

in and closed the overhead door; drove Deborah’s truck to the place it was found one

14 Logan’s timecard, which was signed by his foreman at the end of the week, also

reflected that he was present at work during those hours for his June 21-22, 1993, shift.

See N.T., April 23, 1996, at 99, reprinted in RR. 2134a.

[J-38-2023] [MO: Wecht, J.] - 9

block away; sprinted back to the factory and entered through a man door that was

propped open; 15 reopened the overhead door; drove his motorcycle out as it was opening

up (just as Officer Franklin was passing by on Raspberry Street); went back in, closed up,

activated the alarm, and left.

The defense called several character witnesses who testified to Appellant’s

peaceful reputation in the community, including the martial-arts community. It additionally

presented the testimony of an expert in analytical chemistry who opined that it could not

be established to a reasonable degree of scientific certainty that the dirt from Deborah’s

clothing matched the dirt from the factory floor. There was also conflicting evidence as

to the approximate time of death. Whereas the Commonwealth’s evidence suggested a

timeframe that included the crucial interval from 11:30 to 11:52 p.m. on June 21, 1993,

the doctor who performed the autopsy opined it was later than that – between

approximately 5:30 and 7:30 a.m. on the morning of June 22, 1993. Finally, the defense

called witnesses whose testimony was designed to cast doubt on the idea that Appellant

was fixated on getting back together with Deborah. One woman testified she had been

carrying on an extramarital affair with Appellant and planned to leave her husband and

move in with him on June 22, 1993. Another woman stated that at the time of the killing,

she was in a romantic relationship with Appellant which began in early June 1993 when

the two were filming a movie together.

The jury found Appellant guilty of first-degree murder, and the court sentenced him

to life without parole. See 18 Pa.C.S. § 1102. On direct review, the Superior Court

affirmed Appellant’s judgment of sentence and this Court denied further review.

15 In commercial and industrial settings, a man door is a pedestrian-sized doorway

designed for human traffic. There was evidence that the man door used by second-shift

workers at Erisco could easily be propped open. See N.T., April 19, 1996, at 95, reprinted

in RR. 1654a (testimony of Dale Teribery).

[J-38-2023] [MO: Wecht, J.] - 10

Commonwealth v. Hardy, 714 A.2d 1084 (Pa. Super.) (table), appeal denied, 727 A.2d

128 (Pa. 1998). Appellant timely sought relief under the Post Conviction Relief Act

(PCRA), 16 but his efforts were unsuccessful. See Commonwealth v. Hardy, 777 A.2d 502

(Pa. Super.) (table), appeal denied, 782 A.2d 542 (Pa. 2001). The present litigation stems

from Appellant’s renewed attempt to obtain post-conviction relief, this time through a new

round of DNA testing.

II. Further DNA testing

A. Legislation

In 2002, the General Assembly enacted legislation adding Section 9543.1 to

Subchapter 95(B) of the Judicial Code, which relates to post-conviction relief. Although

Subchapter 95(B) also contains the PCRA, Section 9543.1 is not part of the PCRA proper.

See Commonwealth v. Scarborough, 64 A.3d 602, 609-10 (Pa. 2013). It thus does not

encompass the one-year time bar for PCRA petitions.

Section 9543.1 gives incarcerated individuals the ability to apply by written motion

for DNA testing on specific items of evidence involved in the investigation or prosecution

that led to their conviction. See 42 Pa.C.S. § 9543.1(a). The provision gives the

Commonwealth the ability to respond to the motion and obligates it and the court to

preserve the evidence pending completion of the proceedings. See id. § 9543.1(b). It

also mandates that the applicant take certain procedural steps such as identifying the

evidence; consenting to provide bodily fluid samples for DNA comparison; asserting

actual innocence of the offense in question; asserting that demonstrating such innocence

is the reason for the motion; and presenting a prima facie case that the perpetrator’s

identity was at issue in the case and that the DNA testing sought, assuming exculpatory

results, would establish the applicant’s actual innocence. See id. § 9543.1(c).

16 Act of May 13, 1982, P.L. 417, No. 122 (as amended 42 Pa.C.S. §§ 9541-9546).

[J-38-2023] [MO: Wecht, J.] - 11

Section 9543.1 directs the court to review the trial record and require the testing if

the above prerequisites are met, the evidence in question has been subject to a chain of

custody ensuring it was never materially altered, and the 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. § 9543.1(d)(1)(iii). 17 On

the other hand, it states the court may not order DNA testing if there is no reasonable

possibility it will produce exculpatory evidence that would establish actual innocence. See

id. § 9543.1(d)(2).

The results of DNA tested pursuant to Section 9543.1 are intended to form the

basis for a new PCRA petition implicating the newly-discovered-facts predicate for relief,

see 42 Pa.C.S. § 9543(a)(2)(vi), which comprises an exception to the PCRA’s one-year

time bar. See id. § 9545(b)(1) (providing that absent such an exception, a PCRA petition

must be filed within one year of the date the judgment becomes final). As enacted in

2002, Section 9543.1 expressly tracked the then-applicable 60-day period for the filing of

a PCRA petition based on newly-discovered facts, see id. §§ 9543.1(f)(1) (2002),

9545(b)(2) (1995), with the clock starting to run at the time the applicant was notified of

the DNA test results. That time limitation was expanded to one year via a 2018 legislative

change, known as Act 147, 18 which is in keeping with the PCRA’s own similar time-limit

expansion under Section 9545(b)(2) enacted the same day under Act 146. 19

17 The specific meaning of this phrase is presently in dispute. It is analyzed below.

18 Act of Oct. 24, 2018, P.L. 896, No. 147, § 1 (amending, inter alia, 42 Pa.C.S. § 9543.1).

The changes made by Act 147 to Section 9543.1 are shown in the Appendix to this

Opinion.

19 See 42 Pa.C.S. § 9545(b)(2), as amended by Act of Oct. 24, 2018, P.L. 894, No. 146.

If the subsequent PCRA petition is timely filed, relief is potentially available under Section

9543(a)(2)(vi). See 42 Pa.C.S. § 9543.1(f)(1), (3). While PCRA litigation is generally

limited to persons still serving a criminal sentence, see Commonwealth v. O’Berg, 880

A.2d 597, 599 (Pa. 2005), Act 146 added a provision whereby wrongfully-convicted

(continued…)

[J-38-2023] [MO: Wecht, J.] - 12

Act 147 made other changes that more directly impact the present case. Section

9543.1 previously authorized only incarcerated persons (including those on death row) to

apply for DNA testing; Act 147 deleted that requirement and specified that any individual

convicted of an offense in Pennsylvania may file such a motion “at any time.” 42 Pa.C.S.

§ 9543.1(a)(1). While the extension of such authorization to non-incarcerated persons

does not affect Appellant, the “at any time” language chosen by the General Assembly

raises the question: is paragraph (a)(1)’s use of that particular phrase intended solely to

effectuate such extension, or was it intended to negate the “timely manner” prerequisite

reflected in paragraph (d)(1)(iii) as developed above, which survived the changes made

by Act 147? To compound the confusion, Act 147 added a new paragraph to subsection

(a) that juxtaposes the two phrases, providing that “DNA testing may be sought at any

time if the motion is made in a timely manner . . ..” Id. § 9543.1(a)(4) (emphasis added). 20

These revisions are analyzed below.

There are two other prerequisites to DNA testing under Section 9543.1 that are

presently in issue. First, and as noted, the person seeking testing must present a prima

facie case demonstrating that DNA testing of the specific evidence would establish his

actual innocence, assuming exculpatory results. See 42 Pa.C.S. §§ 9543.1(c)(3),

9543.1(a)(6). Additionally, and this is an innovation contained in the 2018 legislation, for

evidence that was already DNA-tested at the time of trial, re-testing may be ordered if

“newer technology could provide substantially more accurate and substantially probative

results[.]” Id. § 9543.1(a)(2). These facets of the statute are also discussed below.

individuals who have completed their sentence may file a petition seeking relief based on

new DNA evidence obtained per Section 9543.1. See 42 Pa.C.S. § 9543(a)(1)(iv).

20 The phrase recalls an observation attributed to Henry Ford concerning the Model T –

that the customer could have the vehicle in any color as long as it was black. See

Sanchez v. State of Colo., 97 F.3d 1303, 1317 n.24 (10th Cir. 1996).

[J-38-2023] [MO: Wecht, J.] - 13

B. Procedural history

1. Pleadings

In 2020, 24 years after his trial, Appellant filed a motion for post-conviction DNA

testing pursuant to Section 9543.1. That motion is the subject of this appeal. In it,

Appellant emphasized that DNA testing technology was rudimentary at the time of his

trial. Among other deficiencies, the testing at the time required comparatively large

amounts of biological material. Therefore, testing was not done for items that were

touched by the perpetrator but lacked sufficient testable biology, such as the twine cord

found around Deborah’s neck. At the present juncture, DNA testing technology has

improved to the point where even trace amounts of DNA left on such items can be

recovered and tested. Appellant therefore requested post-conviction DNA testing of

various pieces of evidence obtained from the crime scene, including the twine cord; the

clothing worn by Deborah during the attack; the scrapings from under her fingernails; the

finger and palm prints lifted from the interior and exterior of Deborah’s car; her car keys;

her purse; various items from inside her purse; the octagonal bolt found next to her body

evidently from the Erisco accordion gate; the condom found outside Deborah’s car; a

tissue with seminal fluid found near her car; vaginal smears from the rape kit; and a men’s

health club business card found near her car. 21

In his motion, Appellant relied on Section 9543.1, as amended in 2018, which now

allows post-conviction DNA testing for evidence that was previously tested, “but newer

technology could provide substantially more accurate and substantially probative results.”

21 Appellant also requested that the DNA profile previously obtained from the condom be

uploaded to state and federal DNA databases. He asserted that pretrial testing of the

condom DNA excluded him, an unsolved rape occurred in the same area three days

before Deborah’s murder, and a hit from the condom DNA could potentially determine

who killed Deborah and committed the rape.

[J-38-2023] [MO: Wecht, J.] - 14

42 Pa.C.S. § 9543.1(a)(2). 22 He also requested a new round of testing based on statutory

language permitting post-conviction DNA testing where evidence was not previously

tested because “the technology for testing was not in existence at the time of the trial[.]”

Id. Appellant continued that post-conviction DNA testing is warranted because none of

the evidence, even the previously-tested items, was subject to the advanced DNA testing

technologies available today. In this latter regard, Appellant requested Short Tandem

Repeat (“STR”) DNA testing, including STR’s derivatives and related offshoots: Y-STR

(which “sees” only male DNA), miniFiler, and mitochondrial DNA testing. 23 He alleged

that the Pennsylvania State Police did not employ STR testing until 2000, seven years

after testing occurred in this case and four years after his trial.

Appellant’s motion included a variety of articles explaining the technological

advancements provided by STR testing, such as its substantially increased reliability and

its ability to generate DNA profiles from tiny amounts of biological material left on surfaces

(such as traces of blood, semen, skin cells, sweat, or mucus) even when those samples

were degraded or mixed from multiple donors; and he averred that these techniques can

now be used to analyze “touch DNA” or “contact trace DNA,” which is DNA extracted from

skin cells left behind when a person touches an object. Overall, Appellant maintained

that STR testing has revolutionized the capacity of DNA testing and can provide results

22 In this regard, Appellant asserted that although testing was done in 1993 on the blood

on Deborah’s shirt, the condom, Deborah’s undergarments, and her fingernail scrapings,

such testing was polymerase chain reaction (“PCR”) and DQ-Alpha based testing. These

methods are considered primitive by today’s standards.

23 Mitochondrial DNA (mtDNA) comes from a cell’s mitochondria rather than its nucleus.

Whereas nuclear DNA is inherited from the father and mother and is thus unique for each

individual (except identical twins), mtDNA is only inherited from the mother, so that all

persons having a common maternal ancestor will have common mtDNA. See

Commonwealth v. Chmiel, 30 A.3d 1111, 1124 n.3, 1155 (Pa. 2011). mtDNA can be

useful when biological samples are too degraded for nuclear DNA testing. See State v.

Council, 515 S.E.2d 508, 516 n.12 (S.C. 1999).

[J-38-2023] [MO: Wecht, J.] - 15

that were impossible to obtain during his trial – and that as such it has been used to

exonerate some wrongly-convicted defendants and confirm the convictions of others. He

added that with the new STR testing, it is feasible to find a match by uploading the

obtained profiles into the Combined DNA Index System (CODIS) run by the FBI. 24 This,

according to Appellant, could in turn identify persons who are “included” as a possible

source – a capability that was unavailable at the time of the 1993 investigation.

In his motion, Appellant explained that the perpetrator’s identity was at issue during

his trial. He also emphasized that Section 9543.1 only requires him to present a prima

facie case that the DNA testing, assuming exculpatory results, would establish his “actual

innocence” – a term, Appellant proffered, meaning it is more likely than not that any

reasonable juror reviewing the newly-supplemented record would harbor a reasonable

doubt about his guilt. Appellant recognized he has already been excluded as a source of

DNA from all evidence that was previously tested. Nevertheless, he argued the absence

of his DNA coupled with the presence of someone else’s DNA on the untested items,

most notably the twine used to strangle Deborah, would be persuasive proof of

innocence. He developed that this would suggest his innocence if that other person’s

DNA were to be found on multiple pieces of evidence. Conversely, if located only on a

24 CODIS is the “generic term used to describe the FBI’s program of support for criminal

justice DNA databases as well as the software used to run these databases. The National

DNA Index System or NDIS is considered one part of CODIS, the national level,

containing the DNA profiles contributed by federal, state, and local participating forensic

laboratories.” https://www.fbi.gov/how-we-can-help-you/dna-fingerprint-act-of-2005-

expungement-policy/codis-and-ndis-fact-sheet (accessed May ___, 2025); see also

Maryland v. King, 569 U.S. 435, 444-45 (2013); id. at 472-73 (Scalia, J., dissenting).

Stated in a simplified form, CODIS maintains an index of DNA profiles of convicted

offenders (offender index), as well as a separate index of DNA profiles of unknown

persons derived from biological samples left at crime scenes (forensic index). See Allen

v. State, 103 A.3d 700, 710 (Md. 2014). See generally Suzanne Bell & John M. Butler,

UNDERSTANDING FORENSIC DNA 80-84 (Cambridge Univ. Press 2022) (BELL & BUTLER).

[J-38-2023] [MO: Wecht, J.] - 16

single piece of evidence, that DNA could still be checked against a databank to produce

a possible “hit,” which could then be used by the police to confront the person and

potentially obtain a confession to the underlying crime. 25 Thus, Appellant claimed he

satisfied all statutory requirements under Section 9543.1 and was entitled to post-

conviction DNA testing.

The Commonwealth responded, see 42 Pa.C.S. § 9543.1(b)(1) (affording the

Commonwealth an opportunity to respond to the motion), arguing Appellant’s motion

should be denied as untimely and for failing to meet the statutory requirements for DNA

testing. As for timeliness, the Commonwealth cited Commonwealth v. Edmiston, 65 A.3d

339 (Pa. 2013), overruled on other grounds by Commonwealth v. Small, 238 A.3d 1267

(Pa. 2020), in which this Court assessed timeliness in the context of a Section 9543.1

motion for post-conviction DNA testing. 26 The Commonwealth argued all of the evidence

for which Appellant seeks post-conviction DNA testing has been available since the time

of trial, and some has already been tested. The Commonwealth continued that although

Section 9543.1 was enacted in 2002, Appellant waited over 18 years to file the present

motion. Thus, the Commonwealth suggested there are no circumstances under which

Appellant’s 2020 motion can be considered timely.

The Commonwealth also asserted Appellant failed to make out a prima facie

showing of actual innocence. According to the Commonwealth, the absence of

25 Appellant referred to these possibilities as the redundancy theory, the databank theory,

and the confession theory. See generally Commonwealth v. Conway, 14 A.3d 101, 110

(Pa. Super. 2011) (involving these theories). The confession theory depends on the fruits

of the data bank theory to identify the individual for the police to confront.

26 As discussed more fully infra, this Court concluded that Edmiston’s decision not to seek

testing during trial or during his prolonged PCRA proceedings, despite having access to

the evidence and the means to test it, established that his motion for DNA testing was not

made “in a timely manner and for the purpose of demonstrating [his] actual innocence

and not to delay the execution of sentence or administration of justice.” Edmiston, 65

A.3d at 358-59.

[J-38-2023] [MO: Wecht, J.] - 17

Appellant’s DNA and the presence of another person’s DNA on the evidence would not

establish innocence because “absence of evidence is not evidence of absence.”

Commonwealth v. Heilman, 867 A.2d 542, 547 (Pa. Super. 2005). Moreover, the

Commonwealth emphasized that all of the items at issue were likely touched by multiple

people, including the twine that presumably came from the Erisco plant and was

previously used for shipping, Deborah’s vehicle to which her boyfriend had access, and

the accordion gate bolt. The Commonwealth additionally summarized the inculpatory trial

evidence, concluding that although it was circumstantial, it compellingly demonstrated

Appellant’s guilt. See generally Commonwealth v. Johnson, 107 A.3d 52, 66 (Pa. 2014)

(noting guilt beyond a reasonable doubt can be proved through wholly circumstantial

evidence). The Commonwealth thus suggested the present motion is a “Hail Mary”

attempt to distract from that evidence.

Appellant filed a reply to which it attached an affidavit of Alan Keel, describing the

changes in DNA testing technology that have taken place since the 1990s. The Keel

affidavit is discussed below.

2. Lower court rulings and this Court’s further review

The DNA court denied Appellant’s motion for post-conviction DNA testing. 27 The

court expressed that a motion for DNA testing may only be granted if it is timely and it

establishes a prima facie case that favorable results would establish actual innocence.

See Commonwealth v. Hardy, No. 1647 of 1993, slip op. at 12 (C.P. Erie Mar. 9, 2021).

Addressing this latter topic first, the court held that testing of the previously-tested items,

such as the blood on Deborah’s shirt, her fingernail scrapings, and the condom found

27 The term “DNA court” is used herein to refer to the common pleas court in which the

motion for DNA testing was made – which, under the statute, is the sentencing court. I

do not use the term “PCRA court” because, as mentioned, Section 9543.1 is not part of

the PCRA.

[J-38-2023] [MO: Wecht, J.] - 18

nearby, could not establish actual innocence even if exculpatory results were obtained.

The court reasoned that the pretrial DNA testing of such items already excluded Appellant

as a contributor, and Deborah had no apparent connection to the condom found near her

car. Thus, further testing in an effort to prove innocence would be futile. See id. at 13-

14 (“This is not a case where prior DNA results were inconclusive or could not exclude

Petitioner as a possible contributor of DNA.”). In relation to things that were not tested

pretrial, the court faulted Appellant for not utilizing the then-extant DNA testing

technology. The court indicated that merely because touch DNA testing was at that time

a “long shot,” that did not negate an “implicit requirement” the court gleaned from Section

9543.1(a)(2) as to verdicts rendered after January 1, 1995, that DNA testing must have

been sought at that time. Id. at 14.

In terms of the motion’s timeliness, the court primarily compared the present

situation to the one that arose in Edmiston, where we disallowed DNA testing under an

untimeliness rationale. For example, whereas the defendant in that matter waited until

six years after the statute was enacted in 2002 to file his motion, see Edmiston, 65 A.3d

at 356, Appellant waited 18 years. Also, the court rejected Appellant’s reliance on

paragraph (a)(4)’s indication that a motion for DNA testing may be filed “at any time,”

because the statute also expressly requires the motion be made “in a timely manner.”

Hardy, No. 1647 of 1993, slip op. at 16-17 (quoting 42 Pa.C.S. § 9543.1(a)(4)).

After the intermediate court affirmed, see Commonwealth v. Hardy, 274 A.3d 1240

(Pa. Super. 2022), Appellant petitioned this Court for discretionary review. We granted

the petition to address whether Appellant’s motion for DNA testing was timely, whether

he satisfied the requirements of Section 9543.1(a)(2) in relation to evidence that was

previously tested and evidence that was not previously tested, and whether he presented

a prima facie case demonstrating that the DNA testing sought, assuming exculpatory

[J-38-2023] [MO: Wecht, J.] - 19

results, would establish his actual innocence. See Commonwealth v. Hardy, 289 A.3d

889 (Pa. 2022) (per curiam). 28

The threshold issue is timeliness. A DNA court need only consider whether a

motion for DNA testing satisfies the substantive requirements of Section 9543.1 if it is

timely. 29 If it is, then the question of whether the applicant set forth a prima facie case

that the results of such testing, if exculpatory, would establish his actual innocence,

becomes salient. Before that judgment can be made in the present case, however, the

question of what evidence is eligible for testing must be determined. That is why the

second question pertains to whether the previously-tested evidence and the previously-

untested evidence identified by Appellant are eligible to be tested at this juncture. 30

III. Threshold considerations: timeliness and purpose

A. Interpretation

Although timeliness is nominally the only threshold issue before this Court, Section

9543.1 groups other factors together with timeliness – in particular, the requirement that

28 The specific questions encompassed by our order granting review are: “(1) Was

Appellant’s Petition for Post-Conviction DNA Testing Pursuant to 42 Pa.C.S. § 9543.1

timely? (2) Did Appellant satisfy the requirements of 42 Pa.C.S. § 9543.1(a)(2), with

regard to evidence previously tested for DNA and evidence not previously tested for

DNA? (3) Did Appellant present a prima facie case demonstrating that the DNA testing

sought, assuming exculpatory results, would establish his actual innocence of the offense

for which he was convicted?” Id.

29 This is not necessarily to say that timeliness is jurisdictional, and thus non-waivable, in

the present setting. While the Superior Court has held it is not jurisdictional, see In re

Payne, 129 A.3d 456, 555 n.12 (Pa. Super. 2015) (en banc), this Court need not presently

express any opinion on the matter as the question is not before us.

30 Reviewing courts assess whether the DNA court’s ruling is supported by record

evidence and free from legal error. See Commonwealth v. Wright, 14 A.3d 798, 814 (Pa.

2011). As to questions of law, including statutory interpretation or construction, this

Court’s review is de novo and plenary. See Shrom v. Pa. Underground Storage Tank

Indem. Bd., 292 A.3d 894, 907 (Pa. 2023).

[J-38-2023] [MO: Wecht, J.] - 20

the motion be made for the purpose of demonstrating actual innocence and not for

reasons of delay. The statute states, in relevant part:

DNA testing may be sought at any time if the 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.

42 Pa.C.S. § 9543.1(a)(4) (2018). Although the above was added to the statute in 2018,

the same phraseology was used in 2002, and retained in 2018, in subsection (d), which

relates to whether the court should order the testing sought in the motion. See id.

§ 9543.1(d)(1)(iii) (2002) (directing the court to order testing upon a determination, inter

alia, that the “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”). A significant question is raised concerning how the phrase, “in

a timely manner,” relates to the second and third prerequisites, that the motion is made

to demonstrate actual innocence, and is not made for reasons of delay – and how those

latter preconditions relate to each other. I now turn to that question.

1. Introduction – places Section 9543.1 refers to timing

There are three places where the timing of the motion is mentioned in the

governing statute. First, paragraph (a)(1) indicates a person convicted of a criminal

offense in Pennsylvania “may apply by making a written motion to the sentencing court

at any time 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.” 42 Pa.C.S.

§ 9543.1(a)(1). As quoted above, subsection (a), which relates to the motion, also states

in paragraph (a)(4) that DNA testing “may be sought at any time if the 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.” Id. § 9543.1(a)(4).

[J-38-2023] [MO: Wecht, J.] - 21

Thereafter, subsection (d), which governs the DNA court’s response to the motion, directs

the court to order the testing requested in the motion, but only upon a determination by

the court that the 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. § 9543.1(d)(1)(iii).

2. Whether timeliness really is required

These provisions raise interpretive difficulties. If the motion may be made at any

time, that would appear to imply the DNA court should never deem a motion untimely.

Yet if that were true, it is hard to see why the General Assembly would separately specify

that the court may only order testing if the motion is made in a timely manner.

One way to read this language is to view the 2018 addition to subsection (a)(1) of

the phrase “at any time,” and the simultaneous deletion, from the same sentence, of text

that had indicated a motion for DNA testing could only be made by incarcerated persons,

as directed to a single objective. Specifically, the 2018 deletion and insertion are as

follows:

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 at any time 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.

42 Pa.C.S. § 9543.1(a)(1) (2018). Viewing these two changes as accomplishing a single

goal – to expand the class of persons who may apply for forensic DNA testing to include

non-incarcerated individuals – would leave intact the concept, reflected elsewhere in

Section 9543.1, that a motion is only viable if made in a timely manner, because the “at

any time” language would be understood as not relating so much to timeliness as to the

incarceration status of the individual. And indeed, that is how the Commonwealth

[J-38-2023] [MO: Wecht, J.] - 22

suggests we read it. See Brief for Commonwealth at 31 n.2 (citing Commonwealth v.

Luckett, 2021 WL 3088758, at *5 n.9 (Pa. Super. July 22, 2021) (unpublished

memorandum)).

This reading has the advantage that it avoids any internal tension whereby a

motion may be made “at any time,” 42 Pa.C.S. § 9543.1(a)(1), but testing should only be

ordered if the motion was made “in a timely manner,” id. § 9543(d)(1)(iii). It is also

consistent with the co-sponsorship memoranda issued by Senator Stewart Greenleaf and

Representative Tedd Nesbit when they introduced the 2018 legislation. Those memos

reflect that the changes were intended to, inter alia, open up DNA testing to convicted

individuals who are no longer incarcerated. The memos do not say anything about

eliminating the timeliness prerequisite for relief. See General Assembly Regular Session

2015-2016, Senate Bill 1134, Memo. 31

That is not the only way to understand the language. In both instances where

Section 9543.1 uses the phrase, “in a timely manner,” which the statute does not define,

those four words are followed by: “and for the purpose of demonstrating the applicant’s

actual innocence and not to delay the execution of sentence or administration of justice.”

This longer formulation controls both when an applicant may seek DNA testing, see id.

§ 9543.1(a)(4), and when the court may order it, see id. § 9543.1(d)(1)(iii). It is thus

possible to view the phrase “in a timely manner” as being fleshed out and given specific

meaning by requiring that the purpose for which testing is sought must be legitimate,

namely, to demonstrate the applicant’s actual innocence and not for delay. This reading

would be the same as, “in a timely manner, in other words, for the purpose of

31 The Greenleaf memo is available at:

https://www.legis.state.pa.us/cfdocs/Legis/CSM/showMemoPublic.cfm (accessed May

___ 2025). The Nesbitt memo is at:

https://www.legis.state.pa.us/cfdocs/Legis/CSM/showMemoPublic.cfm (accessed May

___ 2025).

[J-38-2023] [MO: Wecht, J.] - 23

demonstrating the applicant’s actual innocence and not to delay the execution of

sentence or administration of justice.”

Under the first option, the phrase “at any time,” which facially relates to timing,

instead addresses the class of individuals to whom the benefits of the statute extend. It

expands that class to include individuals who are not incarcerated. It also leaves

unresolved the tension within paragraph (a)(4), whereby testing may be sought “at any

time if the motion is made in a timely manner[.]” In the second reading, the word “and,”

a conjunction indicating two things must be true at the same time, is converted to mean

“in other words.” On top of this, “timely manner,” which facially refers to the timing of the

motion, is converted to relate solely to the applicant’s purpose for filing the motion.

In light of the above, the statute does not lend itself to a plain-text analysis. This

in turn suggests we should look to the rules of statutory construction for guidance. 32

Those rules state our primary object is to ascertain and effectuate the intention of the

General Assembly, bearing in mind that effect should be given, if possible, to all of the

statute’s provisions, i.e., no part of it should be considered surplusage. See 1 Pa.C.S.

§ 1921(a); see also id. § 1922(2) (reflecting that the Legislature “intends the entire statute

to be effective and certain”). When resolving any lack of clarity we may consider, among

other things, the occasion and necessity for the statute, the mischief to be remedied, the

object to be attained, the former law on the same subject, the contemporaneous

legislative history, and the consequences of a particular interpretation. See id. § 1921(c).

Because Section 9543.1 is remedial legislation, it should be liberally construed to effect

32 Statutory construction is appropriate here regardless of whether these interpretations

may be described as “reasonable” so as to give rise to an ambiguity. See 1 Pa.C.S.

§1921(c) (authorizing consideration of various factors when the words of the statute are

“not explicit”). The non-explicit predicate for statutory construction, while ordinarily

invoked for ambiguous language, also applies where any reading of the legislative text

“raises non-trivial interpretive difficulties.” McGrath v. Bureau of Prof’l & Occupational

Affairs, 173 A.3d 656, 662 n.8 (Pa. 2017).

[J-38-2023] [MO: Wecht, J.] - 24

its objects and promote justice. See 1 Pa.C.S. § 1928(c); accord In re Payne, 129 A.3d

546, 554 (Pa. Super. 2015) (en banc). This does not mean, however, that it is subject to

the most liberal construction conceivable. Nothing in our principles of statutory

construction suggests as much, or that we must ignore the “societal interests in finality . .

. and conservation of scarce judicial resources” when interpreting remedial statutory

avenues for post-conviction relief. McQuiggin v. Perkins, 569 U.S. 383, 393 (2013).

The longer phrase – “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” – contains three requirements: (1) the motion must be made in a timely manner

(not otherwise defined), and (2) it must have been made for the purpose of demonstrating

the applicant’s actual innocence, and (3) it must not have been made to delay the

execution of sentence or administration of justice. 33 If this mandate were read as doing

nothing more than giving meaning to the requirement that the motion must be filed “in a

timely manner,” it is unclear why the “timely manner” phraseology was included in the

statutory text. The Legislature could simply have said that DNA testing may be sought,

and testing should be ordered, so long as the motion is made to demonstrate actual

innocence and not for delay. There would be no need to use the phrase, “in a timely

manner,” in paragraphs (a)(4) and (d)(1)(iii). As a consequence, that interpretation would

render the phrase “in a timely manner” surplusage. But the first option gives rise to a

33 While (2) and (3) may in some cases be two sides of the same coin, they are listed as

distinct requirements. The latter states testing may not be sought for delay purposes,

while the former implies the applicant must not have any ulterior motive other than to

prove innocence. While one such ulterior motive could be delay, the Legislature evidently

sought to preclude others as well. For example, a convicted person might seek testing

primarily to gain attention, to force others to spend time and money on his behalf, or to

prove he is not the only guilty party, e.g., if he had a confederate who remains at large.

These are just examples that come to mind, and others are possible. The point is the

Legislature evidently sought to exclude any motives other than to prove actual innocence.

[J-38-2023] [MO: Wecht, J.] - 25

similar problem. If “timely manner” means what it says, the appearance of “at any time”

in paragraphs (a)(1) and (a)(4) has no effect.

We should therefore consider the former statute, the mischief to be remedied, and

the object to be attained, which in the present context are all interrelated since we are

primarily considering the inclusion of “at any time” in paragraph (a)(1) as effectuated by

the 2018 amendments. As previously discussed, the phrase “at any time” was inserted

simultaneously with the deletion of a limitation whereby only incarcerated individuals were

permitted to apply for DNA testing, and the sponsoring Senator’s explanatory

memorandum highlighted this expansion without saying anything about timeliness. It

seems reasonable, then, to view these two changes to (a)(1) as a single unit, where the

intent was to give persons whose prison sentence has expired an avenue to clear their

names. 34 If that classification-expanding meaning for “at any time” in paragraph (a)(1) is

adopted, it is reasonable to impute the same meaning to the same phrase as it appears

in paragraph (a)(4) – a paragraph added at the same time as the changes were made to

(a)(1).

I acknowledge this reading does not fit perfectly with the temporal-sense meaning

of the phrase “at any time,” when that phrase is considered in a vacuum. It nonetheless

has a logical connection to the classification-expanding purpose of the amendments. A

person who wishes to benefit from post-conviction DNA testing, and who is not

incarcerated, may have spent some time in prison, and now at a later time is living in the

community. It is not illogical therefore to refer to these two circumstances (life in prison

34 Clearing one’s name can have multiple practical benefits to the individual, such as

being removed from a sex-offender registry, no longer forfeiting a pension, or expanding

employment opportunities, to name a few. The removal of the imprisonment prerequisite

also appears to give innocent persons serving intermediate punishment or those on

parole or probation the ability to free themselves from supervision. It could lead, as well,

to the negation of monetary consequences such as fines, restitution, and fees.

[J-38-2023] [MO: Wecht, J.] - 26

and life in the community) as occurring at different times and to specify that the individual

may apply for testing “at any time,” even if more precise wording could have been chosen

by the legislative body.

By contrast, I see no way around the fact that reading “in a timely manner” to mean

“for the purpose of demonstrating the applicant’s actual innocence and not to delay the

execution of sentence or administration of justice,” not only renders the phrase “in a timely

manner” superfluous, it also converts the word “and” into “in other words.” And this latter

reading suffers from the same alteration in meaning of an otherwise temporal phrase

because, as noted, it converts the term “in a timely manner” into an expression addressing

the purpose of the motion, not its timing. Additionally, if “in a timely manner” really means,

essentially, “for a legitimate purpose,” then it always meant that, including in 2002 when

the Legislature first used the phrase in delimiting when relief could be provided. See 42

Pa.C.S. § 9543(d)(1)(iii) (2002). That, in turn, would mean there was never a timeliness

requirement, and so the 2018 enactment’s insertion of the phrase “at any time” into (a)(1)

had no substantive effect – contrary to what this Court is required to presume. See 1

Pa.C.S. §§ 1921(a), 1922(2) (both directing a presumption the General Assembly does

not purposely include superfluous language in its enactments).

Finally, even if “at any time” is construed in the most literal way possible, that

phrase only appears in subsection (a) – which governs when the motion may be made.

See 42 Pa.C.S. § 9543.1(a)(1), (4). It does not appear in any aspect of Section 9543.1

that relates to when relief on the motion is available. The response of the DNA court is

addressed in subsection (d), which allows for relief only if the motion is made “in a timely

manner.” Id. § 9543.1(d)(1)(iii). As explained, that timely-manner prerequisite was in the

2002 act and was not removed by the 2018 amendments. Indeed, the General Assembly

elected to retain it after it had been interpreted by the Superior Court, and by this Court,

[J-38-2023] [MO: Wecht, J.] - 27

to preclude relief where the motion was not timely. See Edmiston, 65 A.3d at 357

(expressing that Edmiston’s motion was “untimely as a matter of law and was forwarded

only to delay further the execution of the sentence” (emphasis added)); Commonwealth

v. Walsh, 125 A.3d 1248, 1258 (Pa. Super. 2015) (holding that relief was unavailable on

a DNA testing motion because it was untimely). This, in turn, is powerful evidence that

the General Assembly did not intend to either do away with a timeliness requirement or

clarify that the statute never included one. See Verizon Pa., Inc. v. Commonwealth, 127

A.3d 745, 757 (Pa. 2015) (“One of the most venerable and fundamental tenets of statutory

interpretation is that, whenever our Court has interpreted the language of a statute, and

the General Assembly subsequently amends or reenacts that statute without changing

that language, it must be presumed that the General Assembly intends that our Court's

interpretation become part of the subsequent legislative enactment”). See generally 1

Pa.C.S. § 1922(4) (directing a presumption that when a court of last resort has construed

the language used in a statute, the General Assembly in subsequent statutes on the same

subject intends the same construction to be placed upon such language).

As for the consequences of a particular interpretation, under my reading timeliness

is an independent predicate that subsists alongside the requirement that the motion be

made to prove innocence and not for delay. As a result, relief would be unavailable to

someone who unduly delays filing a motion even though the motion is filed for all the right

reasons. This has some drawbacks. The downside is reflected in the commonsense

notion that if the applicant really is innocent, it should not matter when he seeks to prove

it: if he succeeds, he will be freed from the consequences of an erroneous guilty verdict,

and the taxpayers will no longer have to pay for his continued incarceration or supervision.

With that said, it is not unreasonable for the Legislature to seek to prevent undue

delay in this context. If a new trial is necessitated, an unreasonable delay could mean

[J-38-2023] [MO: Wecht, J.] - 28

memories have faded, witnesses have died or disappeared, and evidence has been

lost. 35 These considerations are well known in relation to laws that likewise seek to avoid

undue delay, such as statutes of limitation. See Chase Sec. Corp. v. Donaldson, 325

U.S. 304, 314 (1945). Such factors could, in turn, prejudice the Commonwealth’s ability

to obtain a reliable determination of guilt or innocence at a new trial. Cf. 42 Pa.C.S.

§ 9543(b) (directing that a PCRA petition should be dismissed even if all requirements

are met, including timing requirements, if it appears that the petitioner’s delay in filing it

has prejudiced the Commonwealth in its ability to respond or to re-try the petitioner). See

generally Herrera v. Collins, 506 U.S. 390, 417 (1993) (highlighting the “enormous burden

that having to retry cases based on often stale evidence would place on the States”). 36

In all events, even if some would consider it wiser policy not to require timeliness,

the inclusion of a timeliness prerequisite is not the type of result that weighs heavily

against my interpretation, as it would if the outcome were absurd, impossible of execution,

or unreasonable, which it is not. See 1 Pa.C.S. § 1922(1) (reflecting a presumption the

General Assembly does not intend such a result). Nor can it outweigh the serious

interpretive problems attendant to a construction that reads “in a timely manner” out of

35 A DNA-testing applicant is only entitled to testing if he sets forth a prima facie case that

the testing, assuming exculpatory results, would establish his actual innocence. See 42

Pa.C.S. § 9543.1(C)(3). The actual results obtained may be insufficient to justify

discharge. If those results become the after-discovered facts for a new PCRA petition,

the PCRA court may instead determine retrial is the appropriate relief. See id. § 9546(a)

(authorizing the PCRA court to order “appropriate relief” including retrial); Commonwealth

v. Scarborough, 64 A.3d 602, 610 (Pa. 2013). When drafting Section 9543.1’s timeliness

prerequisite, the Legislature is assumed to have been aware of the content of Section

9546(a), and thus to have considered the possibility of retrial.

36 Although any subsequent PCRA petition could potentially be dismissed due to prejudice

from delay, see id.; Commonwealth v. Markowitz, 32 A.3d 706 (Pa. Super. 2011);

Commonwealth v. Weatherill, 24 A.3d 435 (Pa. Super. 2011), that can only happen if the

prejudice results from the delay in filing the PCRA petition itself. It is not evident that an

unwarranted delay in seeking DNA testing so as to generate after-discovered facts would

likewise allow the Commonwealth to seek dismissal on those grounds.

[J-38-2023] [MO: Wecht, J.] - 29

the statute entirely or converts it into a requirement concerning the appropriate motivation

for the DNA applicant. Finally, none of this speaks to what actually constitutes timeliness

under the statute, a topic discussed below. My only conclusion thus far is that Section

9543.1 indicates the motion’s timeliness is a requirement that must be satisfied as a

predicate to relief.

3. The meaning of “timely manner” in this context

When the General Assembly tells the judicial branch what timely means, such as

with the one-year rule for PCRA petitions, see 42 Pa.C.S. § 9545(b)(1), there is no need

to assess any of the practical circumstances impacting upon the timing of the litigant’s

filing: either it was within the deadline or it was not. See Commonwealth v. Bradley, 261

A.3d 381, 390 (Pa. 2021) (noting this Court has interpreted the one-year filing requirement

as a jurisdictional limitation). But here, the Legislature has not given a hard deadline of

so many months or years, nor has it otherwise clarified what “timely manner” means. This

suggests a reviewing court’s evaluation of timeliness must look at practicalities.

Timeliness relates to when, practically speaking, a motion for the presently-sought DNA

testing could realistically have been made, and it suggests the motion must be made

within a reasonable period thereafter.

Such an assessment will depend in each case on multiple factors. What type of

DNA testing is being requested, and how long prior to the motion was that kind of testing

reasonably available? Is the DNA testing now being requested materially better than

previous methods, in the sense that prior methods could not have revealed some of the

relevant information the current request seeks to discover? Even if the methodology

previously existed and was widely used, has there been a substantial change in the

information contained in DNA databases that might reasonably produce relevant “hits”

now which would not have been produced before? Did the statute previously allow that

[J-38-2023] [MO: Wecht, J.] - 30

kind of DNA testing to be sought, and if not, when was the effective date of the legislative

amendment that allowed it? Is it true that the applicant could not realistically have known

of the advances in the science presently relied upon because he was in prison and

unrepresented during the delay period? 37

This is not meant to be an exhaustive list. DNA courts could consider any change

in circumstances that supports the concept the petitioner did not unduly delay making the

motion after the point in time that he could realistically have made it. 38 Undertaking this

type of assessment would advance the remedial objectives of the legislation while also

giving meaning to its timeliness prerequisite. If the applicant was represented, had

knowledge of the DNA testing currently sought, and did not file a motion for many years

37 I note in this regard that the public record presumption no longer applies to PCRA

petitions filed pursuant to the newly-discovered-facts exception to the PCRA’s one-year

time bar. See Commonwealth v. Small, 238 A.3d 1267, 1286 (Pa. 2020). Small

disapproved the judicial insertion of words into the timeliness prerequisite for PCRA

petitions, particularly where doing so was in tension with the PCRA’s plain language. See

id. at 1285.

Even before that, we abolished the presumption as to pro se PCRA litigants, recognizing

such persons have a limited capability to keep abreast of developments in the law and

the outside world while incarcerated. See Commonwealth v. Burton, 158 A.3d 618, 636-

37 (Pa. 2017). The same reasoning applies here, as there is no indication in the statutory

text that courts should impute to incarcerated DNA applicants knowledge of facts in the

outside world on the date those facts enter the public domain.

38 The Commonwealth argues a motion should be deemed untimely where the presently-

sought DNA testing could have been accomplished at the time of trial. It reasons that

granting relief relative to items that could have been analyzed would open the door to

strategic decisions by trial counsel to forego testing in hopes of an acquittal and then seek

it only if the defendant is convicted. See Brief for Commonwealth at 31-32, 42 (citing

Commonwealth v. Williams, 899 A.2d 1060, 1065 n.4 (Pa. 2006)). While the

Commonwealth looks to engraft that concept onto the timeliness requirement, the statute

already precludes such gamesmanship by making the trial-time unavailability of the

presently-sought DNA testing an independent precondition to relief, subject to certain

exceptions not presently relevant. See 42 Pa.C.S. § 9543.1(a)(2); Williams, 899 A.2d at

1063 (concluding paragraph (a)(2) precludes relief as to evidence discovered prior to

conviction where the DNA technology existed at the time of trial, the verdict was reached

after January 1, 1995, and the court never refused funds for the testing).

[J-38-2023] [MO: Wecht, J.] - 31

after he reasonably could have, the motion would not have been made in a timely manner

so as to implicate a merits evaluation of the request.

B. Application to this case

The analysis above seeks to understand what the legislative body had in mind

when it set forth the threshold requirements for a DNA testing motion. I now address how

those prerequisites should apply to the present dispute.

1. The not-for-delay requirement

As explained, DNA testing may be sought and ordered only if the motion is made

in a timely manner, to prove actual innocence, and not for delay purposes, and these are

three separate requirements. With that said, the not-for-delay mandate does not apply

here. Appellant is serving a sentence of life without parole. Nobody in that situation could

gain anything from delay. We may presume Appellant would rather be released than

incarcerated; thus, there is nothing to delay except Appellant’s potential exoneration.

That being the case, I conclude as a matter of law that Appellant could not have filed his

motion for DNA testing for reasons of delay. The question becomes, then, whether

Appellant’s motion was made in a timely manner and to prove his actual innocence.

2. The to-prove-innocence requirement

Before considering whether the motion was made in a timely manner, I address

whether the mandate that testing is sought to prove innocence applies and, if so, whether

it is satisfied. I believe the requirement applies here because, unlike with the not-for-

delay requirement, it is possible for someone serving life without parole to have an ulterior

motive other than to demonstrate actual innocence. Generally speaking, the DNA

applicant has the burden to satisfy all of the threshold requirements for testing. However,

to show a motive other than to establish actual innocence is to prove a negative, which is

notoriously difficult when it requires demonstrating the absence of a disfavored mental

[J-38-2023] [MO: Wecht, J.] - 32

state. 39 Bearing in mind the remedial purpose of the statute, as a precondition to testing

the applicant must affirm in a sworn statement subject to the penalties of perjury that he

is proceeding “for the purpose of demonstrating the applicant’s actual innocence.” 42

Pa.C.S. § 9543.1(c)(2)(i). The record here reflects that on June 26, 2020, Appellant filed

a statement in compliance with paragraph (c)(2)(i), see RR. 57a, which satisfied his initial

obligation in that respect. This, in turn, shifted the burden to the Commonwealth to submit

any proofs it possessed tending to show Appellant was motivated by some other purpose

and not by a genuine effort to establish his actual innocence. See Vanormer v.

Hornberger, 21 A. 887, 888 (Pa. 1891) (observing that when a litigant is tasked with

proving a negative, “slight evidence will throw the onus upon” the opposing party). The

record in its current state does not contain any such evidence, a circumstance I discuss

infra.

3. The timeliness requirement

The more difficult question in applying the language of paragraphs (a)(4) and

(d)(1)(iii) to the present case is whether the motion was timely. Instantly, the DNA court

held that the motion was untimely, proceeding mainly by comparison with the situation in

Edmiston. Using several metrics, such as the delay between the 2002 passage of the

statute (or the underlying conviction) and the filing of the motion, and the number of years

Appellant had known about the evidence in question, the DNA court developed that the

present motion was even more tardy than the one in Edmiston. Because this Court

39 See, e.g., Beaver Gasoline Co. v. Zoning Hearing Bd. of Borough of Osborne, 285 A.2d

501, 504 (Pa. 1971); Murray v. Commonwealth, 79 Pa. 311, 315 (Pa. 1875); cf. Morrow

v. Waltz, 18 Pa. (6 Harris) 118, 120 (1851) (“It is a general rule of evidence that a party

is not to be called on to prove a negative[.]”).

Even accepting arguendo the Commonwealth’s description that the present motion

constitutes a “Hail Mary” pass in light of the inculpatory evidence adduced at trial, that

alone does not suggest a motive unrelated to proving actual innocence.

[J-38-2023] [MO: Wecht, J.] - 33

determined that the defendant in that matter failed to submit a timely motion, the DNA

court in the present dispute reasoned that, a fortiori, Appellant was also precluded from

relief on the same basis. See Hardy, No. 1647 of 1993, slip op. at 15-17.

The problem with this reasoning is that we rejected Edmiston’s application for DNA

testing based primarily on the realization that he was seeking only to delay execution of

his sentence, an incentive that does not exist here. Therefore, in that matter we did not

have to analyze and apply a timeliness requirement that was conceptually distinct from

any concerns over motivation. We did allude to the substantial amount of time that had

elapsed, for example, from Edmiston’s trial and his awareness of the evidence in question

to the date of his motion, as well as his failure to ask for testing within a reasonable period

after certain advances in DNA technology arose. See Edmiston, 65 A.3d at 357-58. But

in context, we adverted to such factors as suggesting that the real purpose for the belated

DNA request was to delay the inevitable.

The evidence in that case included Edmiston’s own confession, his having drawn

a map for the police to use in locating the body in a remote area, and the finding of the

body by the police exactly where Edmiston said it would be. As well, Edmiston indicated

at trial he was satisfied with the DNA testing that was done at that time, and he was

represented by counsel continuously from that juncture until many years later when he

submitted his DNA motion. Under those circumstances this Court concluded that, had

Edmiston requested testing pretrial it would only have confirmed his guilt, and hence, with

his current request Edmiston was only seeking to delay the execution of his sentence

rather than attempting in good faith to prove innocence. See id. at 358 (explaining that

pretrial DNA testing would likely have “sealed Appellant’s fate,” which in turn was

“probative of the delay and purpose of Appellant’s belated request for DNA testing”).

Thus, while the delayed filing of Edmiston’s motion, combined with the other factors

[J-38-2023] [MO: Wecht, J.] - 34

summarized above, convinced us his motion was not made “in a timely manner and for

the purpose of demonstrating [his] actual innocence,” id. at 358-59, the latter half of that

formulation was the primary substantive basis for our decision. See id. at 358

(concluding, based on the full record, that Edmiston was “not a likely candidate to be

exonerated by DNA testing”).

Edmiston’s rationale does not apply forcefully to this case because, as noted, it

was in substance directed to the defendant’s motivation for filing his motion for DNA

testing and not, centrally, to whether Edmiston waited too long under the statute. As a

consequence, this is the first appeal in which we have had to address the way in which

DNA courts should apply Section 9543.1’s timeliness prerequisite. That is because, as

explained, the not-for-delay mandate does not logically pertain where the defendant is

serving a life sentence. This leaves only the question of whether the motion in the present

litigation was made in a timely manner as set forth above.

In answering that question, I note first that the timeliness question pertains

differently to the evidentiary items that were not previously tested and those that were.

The statute did not allow retesting of previously-tested items until 2018. The text added

at that time is shown in bold below:

(2) . . . 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

evidence was subject to the testing, but newer technology could

provide substantially more accurate and substantially probative

results, 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) (2018). The above amendment, which went into effect in late

December 2018, for the first time allowed retesting of previously-tested evidence.

[J-38-2023] [MO: Wecht, J.] - 35

Appellant filed his motion 18 or 19 months thereafter. As such a delay is relatively small,

I would conclude the motion was timely as a matter of law concerning the evidence that

underwent DNA testing at the time of Appellant’s trial.

Evaluating the timeliness of the motion as it pertains to evidence that was not

previously tested is not as straightforward. The difficulty with trying to determine from an

appellate posture whether the circumstances in this matter support a finding of timeliness

as to those items is that there is no evidentiary record from which to draw the necessary

information. Appellant’s motion asserts the Pennsylvania State Police began use of STR

testing in 2000, a full two decades before he filed his motion. See Motion ¶96, reprinted

in RR. 39a. And where he seeks to draw support for the position that such testing is

qualitatively better than earlier technology, particularly with trace amounts of DNA and

degraded DNA samples, he references technical papers published in 1998 and 2012, a

federal Department of Justice publication from 2002, and a 2002 federal appellate

decision. 40 That Appellant filed his motion so many years later suggests he may have

waited an unreasonable amount of time. With that said, Appellant did attach to one of his

filings in the DNA court an affidavit from an expert, the contents of which discuss more

recent technological advances, such as the emergence of probabilistic genotyping

alleged to have occurred in 2014, and significant qualitative improvements made by the

FBI in 2017 to the CODIS database, see supra note 24 – all of which are alleged to have

enhanced the ability to ascertain the perpetrator’s identity from the biological samples left

40 See id. ¶101, reprinted in RR. 40a-41a (citing John M. Butler, The Use of Capillary

Electrophoresis in Genotyping STR Loci, 98 METHODS IN MOLECULAR BIOLOGY 317-19

(1998)); id. ¶103, reprinted in RR. 41a (citing Angela L. Williamson, Touch DNA: Forensic

Collection & Application to Investigations, J. ASSOC. CRIME SCENE RECONST. 2012:18, 1-

5); id. ¶104, reprinted in RR 41a (citing U.S. DEP’T OF JUSTICE, OFC. OF JUSTICE PROGRAMS,

NAT’L INST. JUSTICE, Using DNA to Solve Cold Cases, Pub. No. 194197 (July 2002)); id.

¶98, reprinted in RR. 39a-40a (citing Harvey v. Horan, 285 F.3d 298, 305 n.1 (4th Cir.

2002) (Luttig, J., concurring in denial of rehearing en banc)).

[J-38-2023] [MO: Wecht, J.] - 36

at the crime scene. This information suggests only three years may have elapsed

between when the relevant technology became available and the filing of the motion.

Additionally, on this record, factors that might suggest Appellant acted with due

diligence based on what he could reasonably have known while incarcerated should not

be ruled out. Appellant asserts he was unrepresented between 2001 when his PCRA

litigation concluded and 2020, see Brief for Appellant at 31, and the record does not

disclose what knowledge he acquired or what practical limitations might have prevented

him from becoming informed on the topic and filing a motion sooner. See id. at 44

(arguing such lack of representation hindered Appellant’s ability to “navigate the legal and

scientific complexities of deciding whether and when to seek post-conviction DNA

testing”). Nor does the record reflect whether the most recent technological

improvements mentioned in the filings – probabilistic genotyping and the 2017 CODIS

upgrades – are, in fact, needed for the information Appellant hopes to obtain.

These types of deficiencies would ordinarily inure to the detriment of the moving

party who seeks to upset the status quo, as that party bears the initial burden to fulfill the

prerequisites to relief and make an evidentiary record to support his request. See 500

James Hance Court v. Pa. Prevailing Wage Appeals Bd., 33 A.3d 555, 575-76 & n.28

(Pa. 2011) (quoting Henes v. McGovern, 176 A. 503, 506 (Pa. 1935)). In this case, that

is Appellant. However, before today neither party had the benefit of an explanation by

this Court of whether timeliness really is required, and if so, the standard by which DNA

courts are to assess it. The disposition I favor would be the equivalent of setting forth a

new standard – and in such situations we have determined a remand is the appropriate

course of action. See Phoenixville Hosp. v. WCAB (Shoap), 81 A.3d 830, 846 (Pa. 2013)

(“Remand is an appropriate remedy when a court announces a new standard to be

applied to the facts of a case.”) (citing Kaczkowski v. Bolubasz, 421 A.2d 1027, 1039 (Pa.

[J-38-2023] [MO: Wecht, J.] - 37

1980); Cuevas v. Platers & Coaters, Inc., 346 A.2d 6, 9 (Pa. 1975); Querry v. Pa. Glass

Sand Corp., 354 A.2d 600, 603-04 (Pa. Cmwlth. 1976)). Therefore, if Appellant was

otherwise entitled to relief, I would remand for further proceedings in view of the standard

set forth above. The remand would allow the parties to put forth any evidence impacting

upon timeliness, and it would also give the Commonwealth a chance to adduce proofs,

tending to show Appellant’s motivation for filing the present motion if it has any.

IV. Evidence eligible for DNA testing

A. Statutory requirements

Paragraph (a)(2) sets forth the categories of evidence for which post-conviction

DNA testing may be sought, including evidence discovered before the applicant’s

conviction and evidence discovered after it. See 42 Pa.C.S. § 9543.1(a)(2). There is no

dispute that all the evidence for which Appellant currently seeks testing was discovered

before his conviction. To be eligible for testing, such evidence

shall not have been subject to the DNA testing requested because [(i)] the

technology for testing was not in existence at the time of the trial or [(ii)] 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 [(iii)] the

evidence was subject to the testing, but newer technology could provide

substantially more accurate and substantially probative results, or [(iv)] 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.

Id. 41 This disjunctive list gives four ways evidence that was known about at trial may now

be eligible for “the DNA testing requested.” Here, the verdict was reached after January

1, 1995, and Appellant does not contend any evidence was untested at the time of trial

41 Taken at face value, one aspect of this paragraph appears self-contradictory: “the

evidence shall not have been subject to the DNA testing requested because . . . the

evidence was subject to the testing . . ..” While the drafting perhaps leaves something to

be desired, the intent seems clear: to set forth a newer-technology prerequisite for

evidence that was previously subject to the DNA testing requested in the motion.

[J-38-2023] [MO: Wecht, J.] - 38

due to a refusal of funds. This means eligibility options (ii) and (iv) are not applicable.

We are only concerned with eligibility options (i) and (iii). The former applies to evidence

that was not previously tested, while the latter applies to previously-tested items.

1. Eligibility option (i) – evidence that was not previously tested

Evidence qualifies under option (i) if “the technology for testing” did not exist at the

time of trial. That phrase signifies either that the technology for any DNA testing (however

rudimentary) did not exist at the time of trial, or that the technology for the currently-sought

DNA testing did not exist at that time. 42 Both meanings are plausible. The General

Assembly could have reasoned that if DNA testing, however primitive, was available and

the applicant chose not to have the evidence tested, he did so for strategic reasons and

cannot now second-guess his earlier choice. Or the legislature could have reasoned that

the DNA testing currently sought is precluded only where that same type of DNA testing

was available at trial and the applicant chose to forego it. This also would be aimed at

curtailing gamesmanship by the defense, but it would render fewer items of evidence

ineligible for testing at the present time. Hence, the statute is ambiguous. See generally

PIAA v. Campbell, 310 A.3d 271, 180 (Pa. 2024) (noting a statute is ambiguous when

there are two reasonable interpretations of its provisions) (citing JP Morgan Chase Bank

N.A. v. Taggart, 203 A.3d 187, 194 (Pa. 2019)).

As previously discussed, the legislation is remedial and therefore subject to a

liberal interpretation, which weighs in favor of the second meaning. We may also

presume the Legislature was aware it is in the nature of DNA technology to improve over

time, including in its ability to obtain testable DNA from degraded samples, as well as its

42 Although “testing” is not delimited by a modifier, statutory words are not interpreted in

isolation but with reference to the context in which they appear. See Roethlein v. Portnoff

Law Assocs., 81 A.3d 816, 822 (Pa. 2013). Because the context here is DNA testing, it

would make little sense to read the word “testing” as it appears in paragraph 9543.1(a)(2)

to encompass other types of testing.

[J-38-2023] [MO: Wecht, J.] - 39

ability to extract DNA from physical items from which DNA could not previously be

obtained. 43 It seems to us that the Legislature intended that if these types of advances

occurred after trial, previously-untested evidence can become eligible for testing. This

conclusion is consistent, as well, with the understanding of Senator Greenleaf, who

sponsored the 2002 bill and the 2018 bill. 44

Accordingly, I conclude that under eligibility option (i), previously-untested

evidence may be eligible for the currently-sought DNA testing where the technology for

such testing did not exist at the time of trial.

2. Eligibility option (iii) – previously-tested evidence

Alternatively, under option (iii), previously-tested evidence is eligible for another

round of testing only if newer technology could provide “substantially more accurate and

substantially probative results.” 42 Pa.C.S. § 9543.1(a)(2). Indeed, that is the primary

significance of the explanation contained in the co-sponsorship memos of Senator

Greenleaf and Representative Nesbit. See supra note 44.

43 For example, amicus The Innocence Project describes that porous materials such as

fabric or rubber tend to absorb DNA, making it unavailable for extraction from the surface,

but recently-developed techniques such as wet-vacuum technology are capable of

obtaining DNA samples even from these materials. See Brief at 19 (citing Jessica M.

McLamb et al., Comparison of the M-Vac Wet-Vacuum-Based Collection Method to a

Wet-Swabbing Method for DNA Recovery on Diluted Bloodstained Substrates, 65 J.

FORENSIC SCI. 1828, 1832 (2020)).

44 In his co-sponsorship memo in 2018, Senator Greenleaf explained that one of the act’s

objectives was to “[a]llow testing when new DNA testing technology becomes available.

Currently, DNA testing is only available when the testing technology being requested was

not available at the time of trial. . . . [M]any testing laboratories reach ‘inconclusive’

results when there are multiple persons’ DNA in a sample, but newer technologies exist

to separately identify the DNA of multiple persons.” Stewart Greenleaf co-sponsorship

memo at 1. The same sentiments were expressed by sponsoring House member,

Representative Nesbit, in his co-sponsorship memo. The emphasized sentence above

reflects the sponsors’ understanding that even prior to the 2018 amendments evidence

was eligible for DNA testing so long as the currently-requested testing technology was

unavailable at trial time.

[J-38-2023] [MO: Wecht, J.] - 40

With that said, the specification that the new testing must be able to produce

“substantially probative results” is not entirely clear. Do the results have to be

substantially probative in isolation, or in conjunction with the (as yet unknown) results

from other previously-tested items – or is it enough if they could be substantially probative

only when considered in conjunction with the results of the prospective testing on all other

evidence including previously-untested items? The present case brings that question to

the surface because Appellant’s redundancy theory depends on an alignment between

the DNA results from multiple pieces of evidence, including previously-tested items and

previously-untested items. See supra note 25.

My answer is informed by the enactment’s post-testing procedure. As developed

above, DNA testing under Section 9543.1 is designed as a predicate to a new PCRA

petition based on the after-discovered-facts exception to the one-year time bar. See

supra note 19 & related text. Section 9543.1 indicates that if the new evidence is indeed

exculpatory, the PCRA court must then “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. § 9543.1(f)(3). 45

Such an inquiry invokes a hypothetical jury that would have had all of the new evidence

before it, and it focuses on the outcome of the trial that would have taken place. This

necessarily entails a collective assessment of all of the new evidence because that would

be the foundation for the hypothetical jury’s ultimate verdict. See Commonwealth v.

D’Amato, 856 A.2d 806, 825 (Pa. 2004) (explaining the PCRA court must assess the

significance of after-discovered evidence in light of the trial record “as a whole”); accord

45 See id. § 9543(a)(2)(vi) (allowing relief under the PCRA based on after-discovered

exculpatory evidence that “would have changed the outcome of the trial if it had been

introduced”). By contrast, if the testing conclusively identifies the applicant’s DNA profile

on probative inculpatory evidence, the DNA court must dismiss the petition. See id.

§ 9543.1(d)(6).

[J-38-2023] [MO: Wecht, J.] - 41

In re Brown, 810 S.E.2d 444, 459 (Va. 2018). Hence, it seems unlikely the “substantially

probative” prerequisite to eligibility for the testing of previously-tested items was intended

by the Legislature to be determined in isolation for each individual piece of evidence

without considering all of the other evidence in the case – including the results of the new

DNA testing on all items that are eligible for such testing at the present time.

B. Application to this case

1. Introduction – prior unavailability of the DNA testing requested

One common feature of the standard for eligibility, as regards previously-untested

and previously-tested evidence, is that the currently-requested DNA testing must not have

existed at the time of trial. In his motion, Appellant asserted that this was true. He referred

to the “rudimentary state of DNA testing technology” in 1996, and he sought testing using

“modern DNA testing techniques” that, he maintained, could prove his actual innocence

when used on the biological evidence left at the crime scene and on the victim’s body.

Motion at ¶¶ 3-4, reprinted in RR. 17a; see also id. at ¶¶ 92-107, reprinted in RR. 37a-

42a (elaborating on these technological improvements). In its answer, the

Commonwealth did not deny these allegations.

Further, Appellant attached to his filings a detailed affidavit from DNA testing

expert Alan Keel, who attested that he is certified by the American Board of Criminalistics

in molecular biology and has been performing DNA-analysis casework since 1991. See

Keel Affidavit at ¶ 3, reprinted in RR. 324a. His affidavit outlined the substantial advances

in DNA testing that have occurred since the mid-1990s, and it emphasized his view that

the testing in use at that time consisted of techniques that required a large sample of DNA

and are now obsolete as they have been replaced by more sophisticated methods for

which smaller and degraded samples are adequate. See Keel Affidavit at ¶ 7 & n.1,

reprinted in RR. 326a. According to the affidavit, the testing used in 1993 involved RFLP

[J-38-2023] [MO: Wecht, J.] - 42

(restriction fragment length polymorphism) which needed 50 to 200 times as much DNA

as the modern methods that can make identifications from severely degraded DNA

samples predicated on short-tandem repeats (STR). See id. See generally BELL &

BUTLER, supra note 24, at Chapter 4 (relating to STR Methods and Loci). Keel alleged

that today’s STR technology is “exponentially more sensitive and discriminating than the

early-generation DNA analysis methods” available in 1996, and it became the foundation

for the FBI’s CODIS database in 2000. Id. at ¶ 8, reprinted in RR. 326a.

Mr. Keel additionally highlighted post-1996 advances such as: touch DNA

recoverable from clothing, wire, twine, and zip-ties used as opportunistic ligatures, as well

as random objects left at crime scenes by perpetrators, which can be sufficient to create

a profile; Y-STR testing which can pick out male DNA intermixed with female DNA such

as might be found under a female victim’s fingernails or on her clothing after being

attacked by a male assailant; mini-STR testing for small or severely degraded biological

samples, particularly from old cases; computer-assisted probabilistic genotyping that can

assign a probability that a particular suspect contributed to a multi-donor DNA mixture, as

might occur on a weapon handled by many individuals or clothing touched by several

persons; and two modifications to the CODIS system – its growth to include 20 core STR

genes, and the expansion of the types of profiles that can be searched against it – which

together have created the potential to produce leads from virtually any biological sample

recovered from physical evidence. See id. at ¶¶ 9-15, reprinted in RR. 326a-328a.

The Commonwealth did not dispute that significant DNA advances occurred in the

post-trial timeframe, but neither did it stipulate to the accuracy of the specific averments

contained in the Keel affidavit. The Keel affidavit, as explained, was not included with

Appellant’s motion, to which the Commonwealth had an opportunity under the statute to

respond. It was attached to Appellant’s reply to the Commonwealth’s statutory response.

[J-38-2023] [MO: Wecht, J.] - 43

It is not clear from the statute that such filing was permissible. The majority nonetheless

endorses Appellant’s extra-statutory filing, and it goes further, suggesting the

Commonwealth has elected not to dispute the allegations contained therein. See Majority

Op. at 56 (“The Commonwealth did not dispute Hardy’s identification of the relevant

testing techniques, nor did it challenge the averments of the Keel affidavit.”).

I respectfully find that to be a questionable conclusion. Any allegation in the

affidavit offered for its truth is hearsay, see Pa.R.E. 801; see also Pa.R.E. 802 (making

hearsay inadmissible except where a statute or this Court’s rules make it admissible), and

affidavits are known to be less reliable than live testimony because they are not subject

to cross-examination. See Commonwealth v. Hall, 302 A.2d 342, 345-46 (Pa. 1973).

Moreover, the parties did not have the benefit of an evidentiary hearing at which testimony

could be offered, proofs concerning modern DNA techniques could be presented, and

objections lodged and ruled upon. 46 Nobody doubts DNA technology has improved since

the 1990s. But the majority, while not expressly taking judicial notice of facts outside the

record, seems to short-circuit the traditional evidentiary process by relying on the absence

of a further extra-statutory pleading on the part of the Commonwealth to suggest it has

acquiesced to the specific averments contained in an affidavit.

The parties also did not have the benefit of this Court’s present interpretation of

the amended statute, under which the focus is on the testing currently being sought, and

the eligibility of specific items of evidence for a fresh round of testing depends largely on

the specific features of the new methodologies and how they compare to the technology

in use at the time of trial. That being the case, and for the reasons previously outlined, if

46 Although Section 9543.1 does not expressly direct the DNA court to hold a hearing

prior to deciding whether to order testing, clearly the court cannot rule while genuine

issues of fact material to its eventual ruling remain unresolved. Cf. Pa.R.Crim.P. 908

(requiring a hearing on a PCRA petition where there are material issues of fact).

[J-38-2023] [MO: Wecht, J.] - 44

Appellant is otherwise entitled to relief, I would remand for further proceedings in view of

the standard set forth above. This would give both parties a chance to develop the

evidentiary record through testimony concerning the allegations contained in Mr. Keel’s

affidavit, cf. Commonwealth v. D’Amato, 856 A.2d 806, 826 (Pa. 2004) (remanding for

live testimony concerning a recantation statement, the credibility of which was in doubt),

and to supplement the same with other evidence they deem probative, should they

choose to do so.

2. Previously-untested evidence in this case

Appellant seeks DNA testing of a variety of items that were not previously subject

to any DNA analysis. These include objects that Appellant posits may have been touched

or handled by the perpetrator, including: the twine from around Deborah’s neck;

Deborah’s clothing; finger and palm prints taken from her car; her car keys; her purse;

various items from the purse; the octagonal accordion gate bolt found near Deborah’s

car; and the business card found near the vehicle. Appellant also argues only two small

pieces of flesh from under Deborah’s fingernails were previously tested, and hence, the

overwhelming majority of her fingernail scrapings remain untested. He seeks testing of

those scrapings.

The Commonwealth maintains such evidence is not presently eligible for testing,

characterizing Appellant’s request as strategic in nature. The Commonwealth proffers

that these items were all known about at trial and Appellant could have asked that they

be tested at that time. It adds that even in his PCRA petition filed several years after his

trial, in which Appellant alleged counsel was ineffective in relation to his decision not to

testify in his own defense, Appellant did not raise any issue concerning counsel’s failure

to seek DNA testing. See Brief for Commonwealth at 41-46 (citing, inter alia,

Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006) (explaining counsel’s failure

[J-38-2023] [MO: Wecht, J.] - 45

to pursue DNA testing could have been motivated by a reasonable strategy because the

results might have been inculpatory)).

The Commonwealth’s position would have merit if Appellant were seeking to

employ the DNA technology that existed at the time of his trial. But this is in serious doubt

in light of Appellant’s averments concerning the existing state of DNA-testing technology

as compared to when his trial occurred in 1996. Even if the Commonwealth is correct in

suggesting Appellant had a strategic reason not to pursue DNA testing at the time of trial,

that alone is not a basis for ineligibility under option (i), which only negates eligibility if the

technology already existed at that time. See 42 Pa.C.S. § 9543.1(a)(2). It should be

remembered that Section 9543.1 is not primarily aimed at dissuading strategic behavior,

but at giving wrongly-convicted persons an avenue to prove their innocence. See

Commonwealth v. Conway, 14 A.3d 101, 113 (Pa. Super. 2011). Hence, its limitations

on eligibility should not be expanded beyond what the statutory text can support. 47

3. Previously-tested evidence in this case

Appellant also requests re-testing of the several pieces of evidence that were

subject to DNA testing before trial: semen from the victim’s vaginal swab and underwear,

semen and vaginal fluid from a condom found near her car, the blood found on her shirt,

and flesh scrapings from under her fingernails. As none of these items implicated

Appellant at trial, his theory is not that a new round of testing would merely confirm that

result. Rather, he contends it could potentially generate proof of his innocence by

implicating another person if that individual’s DNA is located on each piece of evidence.

47 Unlike with option (iii), eligibility under option (i) does not expressly depend on a

showing that the results of the new DNA testing might be “substantially probative.” That

requirement will be implicit when one considers whether Appellant has set forth a prima

facie case of actual innocence assuming exculpatory results.

[J-38-2023] [MO: Wecht, J.] - 46

Relative to these items, the newer technology must be capable of providing

“substantially more accurate and substantially probative results.” 42 Pa.C.S.

§ 9543.1(a)(2). This language includes an accuracy litmus and a probativeness litmus.

As to the former, whether the testing can provide “substantially more accurate” results is

a function of the possibilities opened up by the technology. With that said, whether such

results, even if substantially more accurate, are “substantially probative” is an assessment

that can be made now on the present record. I would conclude as to the bloodstain on

Deborah’s shirt and her fingernail scrapings that a fresh round of testing could yield

substantially probative results. If indeed the killer was someone other than Appellant, it

is certainly possible that his DNA could be located on these two items.

The semen samples from Deborah’s underwear and from the vaginal swab are

another matter. The DNA testing that was done in 1993 revealed that these samples

were contributed by Kenneth Logan. As mentioned, no evidence of sexual assault was

uncovered and the state of Deborah’s clothing did not suggest any such assault had

occurred. As a consequence, there is nothing in the record to support the position that

semen from another male besides Logan would be probative of the identity of Deborah’s

killer. The same conclusion applies with regard to the condom found near Deborah’s

truck in an area frequented by prostitutes. There was no connection between the condom

and Deborah’s killing, and Appellant has not articulated any credible basis to believe

further DNA testing of the condom might yield probative results. He does allege the

semen from the condom matched the male donor in an unsolved rape case nearby. He

therefore suggests new testing of the condom might link that case with this one because

a condom-wearing serial rapist might have revisited the scene of his crimes. See Brief

for Appellant at 50. But this is highly attenuated and it is based on a false premise

because it assumes, contrary to the record, that Deborah was the victim of a rape-murder.

[J-38-2023] [MO: Wecht, J.] - 47

Accordingly, while the fingernail scrapings and shirt may be eligible for retesting

under option (iii), I would clarify that the underwear, vaginal swab, and condom are not.

V. Actual innocence assuming exculpatory results

The final hurdle to new DNA testing subsumed in the issues we accepted for review

is the requirement that Appellant set forth a prima facie case demonstrating that the

perpetrator’s identity was at issue at trial, and demonstrating Appellant’s actual innocence

if exculpatory results are obtained. See 42 Pa.C.S. § 9543(c)(3). There is no dispute the

perpetrator’s identity was at issue, as it was clear Deborah was the victim of a homicide

and the primary question for the jury was who did it. Thus, I turn now to whether Appellant

has established a prima facie case of his “actual innocence” if “exculpatory results” are

assumed. Before making that determination, it is helpful to inquire into the meaning of

both of those phrases.

A. Interpretation

1. Prima facie case of actual innocence . . .

One of the few things the parties agree on in this appeal is the meaning of the term

“actual innocence” as used in Section 9543.1. They both propose it means, in essence,

that no reasonable jury would have convicted if it had known about the new DNA

evidence. See Brief for Appellant at 55-56; Brief for Commonwealth at 46-47. They note

the Superior Court in Conway applied this definition for Section 9543.1 purposes based

on the Supreme Court’s decision in Schlup v. Delo, 513 U.S. 298 (1995). See Conway,

14 A.3d at 109 (referring to a reviewing court’s “probabilistic determination about what

reasonable, properly instructed jurors would do” in the face of the new evidence) (quoting

Schlup, 513 U.S. at 329). Schlup involved federal habeas proceedings in which a state

prisoner who had been sentenced to death raised a procedurally-defaulted constitutional

claim, and he sought to satisfy the miscarriage-of-justice inquiry so as to overcome the

[J-38-2023] [MO: Wecht, J.] - 48

procedural default and obtain merits review of that claim. The Supreme Court held such

inquiry is satisfied when a constitutional violation “probably resulted in the conviction of

one who is actually innocent.” Id. at 327 (quoting Murray v. Carrier, 477 U.S. 478, 496

(1986)). Because that formulation used the phrase “probably . . . actually innocent,” the

Court explained that, to establish the requisite probability, the petitioner “must show that

it is more likely than not that no reasonable juror would have convicted him in the light of

the new evidence.” Id.

This is identical to the test proposed in Appellant’s motion which suggests the

standard is satisfied if any reasonable juror reviewing the newly-supplemented record

would have a reasonable doubt about his guilt. Concerning this test, the Supreme Court

subsequently indicated that

the Schlup standard is demanding and permits review only in the

extraordinary case. At the same time, though, the Schlup standard does

not require absolute certainty about the petitioner’s guilt or innocence. A

petitioner’s burden at the gateway stage is to demonstrate that more likely

than not, in light of the new evidence, no reasonable juror would find him

guilty beyond a reasonable doubt – or, to remove the double negative, that

more likely than not any reasonable juror would have reasonable doubt.

House v. Bell, 547 U.S. 518, 538 (2006). 48

One notable aspect of the standard, as it has been developed by the Supreme

Court, is that it shifts consideration from the reality, or actuality, of the petitioner’s guilt or

innocence, to an assessment of how reasonable jurors would view the evidence. On its

face, “actually innocent” does seem to refer to a factual reality rather than a probabilistic

determination of what a reasonable juror would believe. See WEBSTER’S NEW WORLD

48 The Court’s reference to the “gateway stage” derives from the fact the actual innocence

doctrine in federal habeas proceedings was developed as a “gateway” through which a

petitioner could obtain merits review of an otherwise-barred constitutional claim. Herrera

v. Collins, 506 U.S. 390, 404 (1993). See generally State ex rel. Smith v. McBride, 682

S.E.2d 81, 93 n.44 (W. Va. 2009).

[J-38-2023] [MO: Wecht, J.] - 49

COLLEGE DICTIONARY 14 (3d ed. 1999) (defining “actual” as “existing in reality or in fact;

not merely possible, but real”); Sawyer v. Whitley, 505 U.S. 333, 340 (1992) (observing

that “in a colloquial sense” actual innocence arises “where the State has convicted the

wrong person”); see also Brief for Amicus Pa. District Attorneys Ass’n, at 18 (suggesting

this Court focus solely on the factual reality of guilt or innocence). But in our system of

justice, the factual truth of past events can be nearly impossible to ascertain with absolute

certainty. As a consequence, we must necessarily resort to factual determinations made

within certain confidence levels based on the evidence presented at a trial or a hearing –

where the specific confidence level required by law depends on the perceived social costs

associated with an erroneous finding on the ultimate fact in issue. See Commonwealth

v. Maldonado, 838 A.2d 710, 714-15 (Pa. 2003).

The Supreme Court’s actual-innocence standard employed in habeas proceedings

to overcome a procedural default was thus phrased nearly 40 years ago in terms of a

“colorable showing” or “colorable claim” of factual innocence. Kuhlmann v. Wilson, 477

U.S. 436, 454 (1986). Kuhlmann drew from scholarship published by Judge Friendly:

As Judge Friendly explained, a prisoner does not make a colorable showing

of innocence “by showing that he might not, or even would not, have been

convicted in the absence of evidence claimed to have been

unconstitutionally obtained.” Rather, the prisoner must “show a fair

probability that, in light of all the evidence, including that alleged to have

been illegally admitted (but with due regard to any unreliability of it) and

evidence tenably claimed to have been wrongly excluded or to have

become available only after the trial, the trier of the facts would have

entertained a reasonable doubt of his guilt.”

Kuhlmann, 477 U.S. at 454 n.17 (quoting Henry J. Friendly, Is Innocence Irrelevant?,

Collateral Attack on Criminal Judgments, 38 U. CHI. L. REV. 142 (1970)).

Thus, even Kuhlmann’s “colorable showing” language derived from an evaluation

of what a trier of fact probably would have done – and after Kuhlmann the terminology

[J-38-2023] [MO: Wecht, J.] - 50

became more explicit in this regard. As a consequence, while any attempt to demonstrate

actual innocence utilizes newly-discovered evidence of factual innocence, many years

before Section 9543.1 was enacted “actual innocence” in the context of post-conviction

proceedings had become a term of art, at least to the extent it referred to the “likely

behavior of the trier of fact” rather than factual innocence. Schlup, 513 U.S. at 330. This

is demonstrated by Kuhlmann, Schlup, and other Supreme Court cases decided well

before 2002, see, e.g., Sawyer v. Whitley, 505 U.S. 333, 336 (1992) (characterizing

“actual innocence” in terms of whether reasonable jurors would have convicted), and the

status of “actual innocence” as a technical term with a specific legal definition has been

widely recognized. See, e.g., In re Allen, 366 S.W.3d 696, 706 (Tex. 2012) (“‘Actual

innocence’ is a legal term of art, which has acquired a technical meaning in the habeas

corpus context.”). It should therefore be construed according to that specialized meaning.

See 1 Pa.C.S. § 1903(a).

In light of the above, I agree with the parties to the extent they advance that “actual

innocence,” as used in Section 9543.1, refers to the idea that no properly-instructed

reasonable juror reviewing the newly-supplemented record would convict. With that said,

I have some hesitation about the “more likely than not” qualifier. Although some

jurisdictions have adopted it in the DNA context, 49 other jurisdictions construing their own

statutes have instead favored a clear-and-convincing-evidence standard. 50 In our

49 Rhoades v. State, 220 P.3d 1066, 1072 (Idaho 2009); People v. Edwards, 969 N.E.2d

829, 836 (Ill. 2012); Riley v. State, 819 N.W.2d 162, 170 (Minn. 2012); State ex rel. Nixon

v. Jaynes, 63 S.W.3d 210, 216 (Mo. 2001) (en banc), overruled on other grounds, State

ex rel. Zinna v. Steele, 301 S.W.3d 510, 517 (Mo. 2010) (en banc); Berry v. State, 363

P.3d 1148, 1154 (Nev. 2015); State v. Hobbs, 518 P.3d 489, 492 (N.M. 2022); see also

Beauclair v. State, 419 P.3d 1180, 1189 (Kan. 2018) (quoting KAN. STAT. § 60-1507).

50 E.g., In re Watford, 809 S.E.2d 651, 657 & n.12 (Va. 2018) (distinguishing Virginia’s

scheme from the “less demanding ‘more likely than not’ standard used by federal habeas

(continued…)

[J-38-2023] [MO: Wecht, J.] - 51

jurisdiction, the Legislature has specified that the applicant must make a prima facie case

demonstrating exculpatory results would establish actual innocence. See 42 Pa.C.S.

§ 9543.1(c)(3). Hence, the focus should be on the meaning of that term rather than “more

likely than not” or “clear and convincing evidence.”

In some settings, the prima facie terminology is used in burden-shifting schemes

to mean, essentially, enough substantive evidence to require rebuttal by the opposing

party. See, e.g., McNeil v. Jordan, 894 A.2d 1260, 1273 (Pa. 2006) (employment law);

500 James Hance Court, 33 A.3d at 573-74 (Prevailing Wage Act coverage of a

construction project); Office of Disciplinary Counsel v. Price, 732 A.2d 599, 604 (Pa.

1999) (knowingly false statements by an attorney). In criminal law, it most often applies

to a potential guilt, not innocence. See, e.g., In re Ajaj, 288 A.3d 94, 97 (Pa. 2023)

(explaining a person who files a private criminal complaint must initially set forth a prima

facie case of criminal conduct); Commonwealth v. Ludwig, 874 A.2d 623, 631 (Pa. 2005)

(recounting that under Rules of Criminal Procedure 542(D) and 543(A), to detain a

defendant charged with a crime the Commonwealth must establish a prima facie case of

guilt at a preliminary hearing). Presently, where proof of guilt and burden shifting are not

in view, the statutory meaning of a “prima facie case” should be evaluated based on its

courts); see also Brookings v. State, 922 A.2d 389, 391 (Del. 2007); In re Allen, 366

S.W.3d 696 (Tex. 2012).

In Allen, the Texas court explained that in habeas proceedings a “bare claim of actual

innocence,” known as a Herrera claim, id. at 704, requires clear and convincing evidence

that no rational juror would have convicted. By contrast, the more-likely-than-not standard

applies to innocence claims tied to a constitutional error at trial, such as the withholding

of evidence by the prosecution in violation of Brady v. Maryland, 373 U.S. 83 (1963).

These are known as Schlup claims, where the lower standard is justified “because the

conviction ‘may not be entitled to the same degree of respect of one . . . that is the product

of an error-free trial.’” Allen, 366 S.W.3d at 705 (quoting Schlup, 513 U.S. at 316); see

Ex Parte Henderson, 384 S.W.3d 833, 835 (Tex. Crim. App. 2012) (Price, J., concurring).

[J-38-2023] [MO: Wecht, J.] - 52

context. See Dep’t of Corr. v. Lynn, 306 A.3d 338, 355 (Pa. 2023) (recognizing that

statutory words and phrases should be considered within their context).

Our most important contextual clue is that a court entertaining a DNA testing

motion for which all other threshold requirements have been met must nonetheless refuse

such testing if it determines there is “no reasonable possibility” it would produce

exculpatory evidence establishing actual innocence. Id. § 9543.1(d)(2). Considering this,

the en banc intermediate court concluded the question is whether it is reasonable to

believe some results could prove innocence. See Payne, 129 A.3d at 563. I agree and

conclude, on that basis, that a DNA testing applicant presents a prima facie case in

compliance with Section 9543.1(c)(3) where the applicant identifies the exculpatory

results that could, within reason, be obtained from the testing sought, such that every

rational, properly-instructed jury presented with those results, together with all of the other

trial evidence, would acquit.

2. . . . assuming exculpatory results

The DNA court must make the determination of whether the petitioner has set forth

a prima facie case of actual innocence by assuming the DNA testing will yield exculpatory

results, see 42 Pa.C.S. § 9543.1(c)(3)(ii), unless it finds there is no reasonable possibility

of obtaining such results, see id. § 9543.1(d)(2). Exculpatory results are those that tend

to establish innocence or negate guilt. Accord State v. Hobbs, 518 P.3d 489, 497 (N.M.

2022); cf. Commonwealth v. Flor, 259 A.3d 891, 909 (Pa. 2021) (reaching the same

conclusion with regard to the term “exculpatory evidence” as used in the PCRA, namely,

in 42 Pa.C.S. § 9543(a)(2)(vi)). Exculpatory evidence tends to establish innocence

intrinsically, as differentiated from that which, although perhaps favorable, “is merely

collateral or impeaching.” Commonwealth v. Gee, 354 A.2d 875, 878 (Pa. 1976) (internal

quotation marks and citations omitted). Evidence does not establish innocence

[J-38-2023] [MO: Wecht, J.] - 53

intrinsically if its sole prospective exculpatory value depends on a third party reacting to

it by confessing to the underlying offense. And nothing in Section 9543.1 suggests that

“exculpatory results [that] would establish the applicant’s actual innocence” sweeps in

speculative responses by third parties. To the contrary, it is the DNA testing itself which,

assuming exculpatory results, must establish the applicant’s actual innocence. See 42

Pa.C.S. § 9543.1(c)(3)(ii). Where, as here, a victim is known to have been unlawfully

killed and the central question is the identity of the killer, exculpatory results are those

that tend to show the defendant did not kill the victim.

B. Application to this case

The evidence necessary to present a prima facie case demonstrating actual

innocence is necessarily fact-specific and as such it must be assessed according to the

trial record in each case. Accord Payne, 129 A.3d at 559 (explaining “the quantum of

evidence necessary . . . above and beyond the absence of the petitioner’s DNA has been,

and should continue to be, determined on a case-by-case basis”). In this particular matter

the circumstantial evidence implicating Appellant in Deborah’s death is substantial and

powerful, but there is no direct eyewitness testimony of his participation nor is there any

physical evidence linking him to the crime. Further, what forensic testing did occur at the

time of trial excluded Appellant as a DNA, fingerprint, or footprint donor. The question

becomes then, whether a fresh round of DNA testing on all of the evidence presently

eligible for retesting, if it produced exculpatory results, would result in any rational juror

having a reasonable doubt about Appellant’s guilt.

Here, the concept of exculpatory results is colored by the fact that all of the forensic

testing done at the time of trial excluded Appellant. As such, he is not trying to establish

innocence by suggesting new testing will reveal he was implicated based on a false

[J-38-2023] [MO: Wecht, J.] - 54

positive. 51 Additionally, there are any number of ways an innocent person’s DNA could

have ended up on the twine, the truck, or Deborah’s clothing. The twine was from the

factory and it could have been touched by multiple factory workers, including those who

cut it from the stacked shipping containers, or those who moved it thereafter. As for the

victim’s clothing and fingernail scrapings, there is no dispute Logan was in an intimate

relationship with Deborah at the time, and that he had sexual relations with her on the

day in question; thus, it would not be surprising if his DNA ended up on her clothing and

underneath her fingernails, and this would be entirely compatible with his innocence. The

record also establishes Logan was one of the first persons to arrive at the truck, even

before the police. Once he saw his girlfriend’s body inside, he touched the truck in various

places, trying to get in the back and then climbing around on the inside once he had

entered through one of the front doors. Hence, the presence of Logan’s DNA on these

items would not exonerate Appellant. Separately, the lack of Appellant’s DNA on items

of evidence would not establish actual innocence. He was seen with a surgical glove on

the day in question, and the jury convicted him notwithstanding that the DNA evidence

performed at the time of trial excluded him as a donor from the bloodstain on Deborah’s

shirt and her fingernail scrapings.

Nevertheless, I believe that on this record there is at least one avenue for new

DNA testing to raise a reasonable doubt about Appellant’s guilt, particularly in light of the

conflicting evidence as to Deborah’s time of death and whether it could be stated to a

reasonable degree of scientific certainty that the soil on her clothing matched the samples

taken from the factory floor. Specifically, it is possible the killer, if not Appellant, left DNA

on items such as Deborah’s car keys, the octagonal bolt, the twine found around her neck,

51 False positives can result from mistakes at the testing lab, such as when samples are

contaminated, mixed, or mislabeled. See generally State v. Pierce, 597 N.E.2d 107, 113

(Ohio 1992).

[J-38-2023] [MO: Wecht, J.] - 55

her clothing (particularly the blood stain), and under her fingernails. If testing were to

reveal, consistent with Appellant’s redundancy theory, that the DNA of another person

was left on many of these items, then perhaps it could be said that any reasonable juror

considering those results, together with all of the other evidence adduced at trial, would

have a reasonable doubt about Appellant’s guilt. 52 Although the probability of such results

may appear remote, I cannot say that there is “no reasonable possibility” of such an

outcome. 42 Pa.C.S. § 9543.1(d)(2) (emphasis added), see generally Payne, 129 A.3d

at 563 (proffering that Section 9543.1 is designed to “afford a petitioner the opportunity to

demonstrate the unlikely” (emphasis omitted)), and even a small chance of exoneration

is enough to implicate testing in light of our “societal judgment that, given the severe loss

that occurs when an individual is erroneously convicted of a crime, the public should bear

virtually the entire risk of error.” Maldonado, 838 A.2d at 715. See generally Brief for

amicus The Innocence Network, at 4, 8-24 (asserting that DNA testing has led to 375

exonerations across the United States and describing several examples).

VI. Conclusion

For the reasons given above, I would vacate the order of the Superior Court and

remand the matter to the common pleas court for further proceedings on the issue of

Appellant’s motivation and the timeliness of the motion. I would direct that the factual

development by the DNA court also encompass testimony concerning the allegations in

the Keel affidavit. Additionally, I would direct that if that court ultimately were to conclude

that Appellant’s motion was timely and was filed in a genuine effort to establish innocence,

it should order DNA testing of the previously-untested items of evidence identified above,

52 However, Appellant’s confession theory as a basis for new DNA testing is not viable.

Section 9543.1 requires a prima facie case of actual innocence based on the trial record

supplemented by exculpatory testing results; the statute does not permit the DNA court

to assume a third party will confess the crime as the basis for determining whether the

applicant is entitled to testing.

[J-38-2023] [MO: Wecht, J.] - 56

as well as the previously-tested items that are eligible for additional testing if it were to

find as a predicate that “newer technology could provide substantially more accurate . . .

results” when applied to those items. 42 Pa.C.S. § 9543.1(a)(2). Finally, I would clarify

that any testing ordered should comply with the requirements of subsections 9543.1(d)

and (e) of the Judicial Code, see 42 Pa.C.S. § 9543.1(d), (e), which relate, respectively,

to the court’s order and to testing procedures.

Justices Dougherty and Brobson join this concurring and dissenting opinion.

[J-38-2023] [MO: Wecht, J.] - 57

APPENDIX

Act of Oct. 24, 2018, P.L. 896, No. 147

Session of 2018

No. 2018-147

* * * * *

Section 1. Section 9543.1 of Title 42 of the Pennsylvania

Consolidated Statutes is amended to read:

§ 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 at any time 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 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 evidence was subject to the testing, but newer

technology could provide substantially more accurate and

substantially probative results, 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.

(3) A request for DNA testing under this section shall

be by written petition and shall be filed with the clerk of

courts of the judicial district where the sentence is

imposed.

(4) DNA testing may be sought at any time if the 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.

(5) Notwithstanding any other provision of law, a plea

of guilty to a crime of violence, as defined in section

9714(g) (relating to sentences for second and subsequent

offenses), or a confession given by an applicant concerning

[J-38-2023] [MO: Wecht, J.] - 58

the offense for which the applicant was convicted, shall not

prohibit the applicant from asserting actual innocence under

subsection (c)(2) or the court from making a determination

and ordering DNA testing under subsection (d)(2).

(6) The motion shall explain how, after review of the

record of the applicant's trial, there is a reasonable

possibility if the applicant is under State supervision, or

there is a reasonable probability if the applicant is not

under State supervision, or after review of the record of the

applicant's guilty plea there is a reasonable probability,

that the testing would produce exculpatory evidence that

would establish:

(i) the applicant's actual innocence of the offense

for which the applicant was convicted;

(ii) in a capital case, the applicant's actual

innocence of the charged or uncharged conduct

constituting an aggravating circumstance under section

9711(d) (relating to sentencing procedure for murder of

the first degree) if the applicant's exoneration of the

conduct would result in vacating a sentence of death; or

(iii) in a capital case, a mitigating circumstance

under section 9711(e)(7) under the circumstances set

forth in section 9711(c)(1)(iv).

(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) in a sworn statement subject to the

penalties under 18 Pa.C.S. §§ 4902 (relating to perjury)

and 4903 (relating to false swearing), assert the

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applicant's actual innocence of the offense for which the

applicant was convicted and that the applicant seeks DNA

testing for the purpose of demonstrating the applicant's

actual innocence; and

(ii) in a capital case:

(A) assert the applicant's actual innocence of

the charged or uncharged conduct constituting an

aggravating circumstance under section 9711(d)

[(relating to sentencing procedure for murder of the

first degree)] if the applicant's exoneration of the

conduct would result in vacating a sentence of death;

or

(B) assert that the outcome of the DNA testing

would establish a mitigating circumstance under

section 9711(e)(7) if that mitigating circumstance

was presented to the sentencing judge or jury and

facts as to that issue were in dispute at the

sentencing hearing.

(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;

(B) in a capital case, the applicant's actual

innocence of the charged or uncharged conduct

constituting an aggravating circumstance under

section 9711(d) if the applicant's exoneration of the

conduct would result in vacating a sentence of death;

or

(C) in a capital case, a mitigating circumstance

under section 9711(e)(7) under the circumstances set

forth in [subsection (c)(1)(iv)] section

9711(c)(1)(iv).

(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;

[J-38-2023] [MO: Wecht, J.] - 60

(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 for an applicant under

State supervision, or there is no reasonable probability for

an applicant not under State supervision, or after review of

the record of the applicant's guilty plea, the court

determines that there is no reasonable probability, 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;

(ii) in a capital case, would establish the

applicant's actual innocence of the charged or uncharged

conduct constituting an aggravating circumstance under

section 9711(d) if the applicant's exoneration of the

conduct would result in vacating a sentence of death; or

(iii) in a capital case, would establish a

mitigating circumstance under section 9711(e)(7) under

the circumstances set forth in [subsection

(c)(1)(iv)] section 9711(c)(1)(iv).

(3) Any DNA testing order under this section shall

constitute a final order. An applicant or the Commonwealth

may appeal a decision denying or granting a DNA testing order

in accordance with the Pennsylvania Rules of Appellate

Procedure.

(4) Any decision granting or denying a DNA testing order

shall include an explanation by the court of how the testing

requested in a motion under subsection (a) has met or fails

to have met the requirements under paragraphs (1), (2) and

(3).

(5) Upon determining the petitioner has met the

applicable burden established in paragraph (1) or (2), the

court may require the Commonwealth to prepare an inventory of

evidence related to the case and serve a copy of the

inventory to the prosecution, the applicant, the applicant's

attorney, if applicable, and the court. The inventory may

include, but not be limited to, a list of evidence collected

and forensic testing previously done relating to the evidence

and the names of agencies that conducted the forensic

testing.

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(e) Testing procedures.--

(1) Any DNA testing ordered under this section shall be

conducted by:

(i) a laboratory mutually selected by the

Commonwealth and the applicant;

(ii) a laboratory selected by the court that

ordered the testing if the Commonwealth and the applicant

are unable to agree on a laboratory[, a laboratory

selected by the court that ordered the testing]; or

(iii) if the applicant is indigent, the testing

shall be conducted by the Pennsylvania State Police or,

at the Pennsylvania State Police's sole discretion, by a

laboratory designated by the Pennsylvania State Police.

(2) The costs of any testing ordered under this section

shall be paid:

(i) by the applicant; or

(ii) in the case of an applicant who is indigent, by

the Commonwealth of Pennsylvania.

(3) [Testing conducted by the Pennsylvania State Police

shall be carried out in accordance with the protocols and

procedures established by the Pennsylvania State

Police.] To the extent possible and not inconsistent with

best laboratory practices, the testing shall be conducted in

a manner that ensures that some portion of the sample is

preserved for replication of testing. If the laboratory

determines it may be necessary to consume the entirety of any

sample during testing, the laboratory shall inform the

prosecution, the applicant and the applicant's attorney, if

applicable, of its recommendation and obtain the prosecution

and the applicant's consent before proceeding. If the

prosecution and the applicant do not consent, the court may

issue any appropriate order before testing proceeds.

(4) If testing is performed by a private laboratory and

a DNA database search is anticipated, the applicant shall

ensure that the chosen laboratory is accredited by an

accreditation body that is a signatory to the International

Laboratory Accreditation Cooperation Mutual Recognition

Agreement that is designated by the Federal Bureau of

Investigation in accordance with 34 U.S.C. § 12591 (relating

to quality assurance and proficiency testing standards), that

requires conformance to forensic science requirements and

that the accreditation include DNA testing, and is compliant

with Federal Bureau of Investigation quality assurance

standards.

(5) When testing is performed by a private laboratory,

the public laboratory shall take all reasonable measures

before the testing is conducted to ensure that the results of

[J-38-2023] [MO: Wecht, J.] - 62

the testing may be entered into CODIS so that a comparison to

known offender or crime scene profiles may be made if the

laboratory and test results otherwise satisfy the criteria

for database entry.

(6) Testing conducted by the Pennsylvania State Police

shall be carried out in accordance with the protocols and

procedures established by the Pennsylvania State Police.

(7) To the extent possible, if communication with the

parties regarding the testing process and test results is

necessary, the testing laboratory shall communicate with

counsel for petitioner and the Commonwealth simultaneously.

(8) No direct communication involving the testing

laboratory without the inclusion of a representative of each

party shall occur.

(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] one-year 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).

(4) If testing complies with Federal Bureau of

Investigation requirements and the data meets NDIS criteria,

profiles obtained from the testing shall be searched or

uploaded to CODIS.

(5) When testing is conducted by a private laboratory, a

court may order a public laboratory with access to CODIS to

take the necessary measures to ensure the DNA profile

obtained from probative biological material from crime scene

evidence can be uploaded to CODIS by the public laboratory.

Necessary measures may include requiring the public

laboratory to conduct a review of the private laboratory's

facilities or records to ensure that the private laboratory

complies with Federal Bureau of Investigation requirements

regarding CODIS. If the private laboratory meets Federal

Bureau of Investigation and CODIS requirements, the court may

order the public laboratory to upload the DNA profile to

[J-38-2023] [MO: Wecht, J.] - 63

determine whether the profile matches a profile of a known

individual or a profile from an unsolved crime. The DNA

profile submitted to the databases must comply with the

Federal Bureau of Investigation requirements for the

uploading of DNA profiles to CODIS, and the Commonwealth

shall take all reasonable measures to ensure that the testing

complies with the requirements.

(6) If DNA testing conclusively identifies the DNA

profile of the applicant on probative and inculpatory

evidence, the court shall dismiss the petition and may make

any further orders that are appropriate. An order under this

paragraph may:

(i) direct that the Pennsylvania Board of Probation

and Parole 53 be notified of the test results; or

(ii) mandate that the applicant's DNA profile be

added to the Commonwealth's convicted offender database.

(g) Effect of motion.--The filing of a motion for forensic

DNA testing pursuant to subsection (a) shall have the following

effect:

(1) The filing of the motion shall constitute the

applicant's consent to provide samples of bodily fluid for

use in the DNA testing.

(2) The data from any DNA samples or test results

obtained as a result of the motion 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.

(h) Definitions.--As used in this section, the following

words and phrases shall have the meanings given to them in this

subsection:

"Applicant." The individual who files a motion under

subsection (a).

"CODIS." The Combined DNA Index System administered by

the Federal Bureau of Investigation that allows for the storage

and exchange of DNA records submitted by Federal, State and

local forensic DNA laboratories.

"DNA." Deoxyribonucleic acid.

"NDIS." The National DNA Index System which is the national

DNA database system of DNA records and meets Federal quality

assurance and privacy standards.

"Public laboratory." The Pennsylvania State Police Forensic

DNA Division, the Philadelphia Police Department Forensic

53 In 2021 the General Assembly changed “Board of Probation and Parole” to “Parole

Board.” See Act of June 30, 2021, P.L. 260, No. 59, § 2. That is the only change Act

2021-59 made to Section 9543.1.

[J-38-2023] [MO: Wecht, J.] - 64

Science Bureau, the Allegheny County Medical Examiner's Office

or any other laboratory maintained by the Commonwealth with

access to CODIS.

* * * * *

APPROVED--The 24th day of October, A.D. 2018.

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