The opinion
J-S06036-23 2026 PA Super 13
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAYMOND CHARLES ROWE :
:
Appellant : No. 649 MDA 2022
Appeal from the PCRA Order Entered April 21, 2022
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0004108-2018
BEFORE: STABILE, J., NICHOLS, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED: JANUARY 22, 2026
This matter returns to us by the Pennsylvania Supreme Court’s order of
remand directing this Court to continue review pursuant to its decision in
Commonwealth v. Hardy, 337 A.3d 385 (Pa. filed June 17, 2025).
Specifically, our high court applied its rationale in Hardy to reject this panel’s
determination that applicant Raymond Charles Rowe’s application for DNA
Testing under 42 Pa.C.S.A. § 9543.1, see infra, was untimely. Pursuant to
that decision and remand order, we address Applicant Rowe’s remaining
question asking whether the trial court improperly denied his request for DNA
testing based on an erroneous determination that he failed to make the
requisite prima facie case of his “actual innocence” of the crime for which he
was convicted. After careful review, we affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S06036-23
This Court previously has set forth the pertinent facts and procedural
history, as follows:
The present matter stems from the December 21, 1992,
rape and murder of [Christy] Mirack in her Lancaster County
home. During her autopsy, swabs were taken from her body and
sent to the Pennsylvania State Police for testing. Although a DNA
profile was obtained and uploaded into a nationwide database of
offenders and unknown subjects, nearly 26 years would pass until
a match was found.
Specifically, on May 19, 2018, Appellant [Rowe] was
identified as a strong viable suspect after a genetic analysis of the
DNA profile collected from a carpet sample provided a significant
match to a national database sample belonging to him. Affidavit
of Probable Cause at ¶ 24. The Pennsylvania State Police initiated
an undercover investigation of Appellant that included a
surreptitious acquisition and DNA testing of a water bottle and
chewing gum he had used and discarded. The DNA results
matched those obtained from the sperm fraction found on the
carpet. Subsequent testing of swab samples of semen and sperm
taken from Ms. Mirack’s body showed all samples came from one
contributor and matched the DNA profile taken from the water
bottle and chewing gum. Id. at ¶¶ 26-29. A final, post-arrest
DNA profile obtained from a buccal swab of Appellant also
matched DNA taken from both the carpet and swabs from Ms.
Mirack’s body.
The [trial] court sets forth additional post-arrest facts and
procedural history, as follows, with this Court’s supplementation
provided in brackets:
On January 8, 2019, [Appellant] tendered a guilty plea
[pursuant] to a negotiated plea agreement.
[Appellant] pleaded guilty to Criminal Homicide, three
(3) counts of Rape by Forcible Compulsion, two (2)
counts of Involuntary Deviate Sexual Intercourse—
Forcible Compulsion, and Burglary. 18 Pa.C.S.A. §§
2501(a); 3121(1); 3123(A-1); and 3502(A),
respectively. The [trial court] accepted the negotiated
plea agreement and [Appellant] received life in prison
without the possibility of parole with a consecutive
period of incarceration of sixty (60) to one hundred
and twenty (120) years pursuant to the terms
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negotiated in the plea agreement. . . . No direct
appeal to the Superior Court was filed. [Appellant’s]
sentence became final on February 8, 2019.
On November 21, 2020, [Appellant], through his
attorney, filed an untimely Motion for Post-Conviction
Relief (“PCRA”) and a [Motion for] Post-Conviction
DNA Testing []. Although the PCRA Petition was filed
nine (9) months beyond the PCRA time requirement
pursuant to 42 Pa.C.S.A. § 9545(b), the one-year
time bar does not apply to motions for the
performance of forensic DNA testing. 42 Pa.C.S.A. §
9543.1. [1]
...
[Specifically, Appellant]’s motion for DNA testing
sought Touch DNA testing on several items recovered
from the murder scene in Ms. Mirack’s home. These
items included a [wooden cutting board believed to
have been used to batter the victim, a toaster that
was typically placed atop the cutting board and
presumably moved by the assailant, and items of Ms.
Mirack’s clothing that were forcibly removed from her
body during the apparent rape and/or used to
asphyxiate her].
The [trial] court held an evidentiary hearing [on
Appellant’s] motion for Post-Conviction DNA testing]
that spanned three days: August 26, 2021,
September 2, 2021, and September 8, 2021.
...
____________________________________________
1 In Commonwealth v. McLaughlin, 835 A.2d 747 (Pa. Super. 2003), we
explained that a motion for DNA testing under section 9543.1 was not a PCRA
petition but, instead, a separate instrument that “allows for a convicted
individual to first obtain DNA testing which could then be used within a PCRA
petition[.]” Id. at 750, quoting Commonwealth v. Weeks, 831 A.2d 1194,
1196 (Pa. Super. 2003). Accordingly, such a motion is not subject to the
PCRA's one-year time bar for petitions under Section 9545. Accord
Commonwealth v. Tyler, 234 A.3d 750, 753 (Pa. Super. 2020).
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[At the DNA hearing, the following relevant facts
regarding the 1992 murder were recounted:]
On . . . December 21, 1992, [the victim,
Ms. Christy Mirack, was found dead in her
home.] Ms. Mirack’s roommate [had] left
the residence [earlier that morning] at
7:00 a.m. for work[, after observing Ms.
Mirack make final preparations of
Christmas presents for her co-workers
and students before she planned to leave
for school. N.T. 1/8/9, at 6;] Affidavit of
Probable Cause at ¶ 14. Neighbors heard
“a high pitched, unexpected scream”
coming from Ms. Mirack’s apartment
between 7:10 and 7:20 am. Id. at ¶ 15.
At around 9:20 a.m., Lancaster County-
Wide Communications received a phone
call from [the Principal of Ms. Mirack’s
school] who arrived at her home to
perform a wellness check due to her
absence from work and found her
unconscious on the living room floor. Id.,
at ¶ 5-7. Within minutes, first responders
arrived at the residence and observed Ms.
Mirack lying on her back with facial
injuries, clearly deceased with a wooden
cutting board located next to her head.
Id. at ¶ 10. Packages were strewn about
the foyer and living room area which is
consistent with a struggle taking place
just in front of the front door of the
residence. Id. at ¶ 13.
Upon further observation, the clothes on
[Ms. Mirack’s] torso were pushed upwards
on her body and the only piece of clothing
[she] was wearing from the waist down
was socks. Id. at ¶ 10. Ms. Mirack’s
pants had likely been forcibly removed as
evidenced by the inside button laying on
the floor near her body. Id. at ¶ 12.
Notably, among the limited amount of
clothing that she was still wearing was a
brown leather jacket and burgundy
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gloves; a factor that led investigators to
opine that she was attacked as she was
preparing to leave her home. Id. at ¶ 13.
An autopsy was then conducted the
following day on December 22, 1992, by
Dr. Wayne Ross, Forensic Pathologist of
Lancaster County. Id. Dr. Ross
determined that the abrasions and
bruising on Ms. Mirack’s lower body were
consistent with being a victim of sexual
assault. Id. at ¶ 16. Sperm and semen
were also found on and in her body. Id.
Several swabs collected from Ms. Mirack’s
body during the autopsy, including but not
limited to vaginal, anal, oral, back, and
leg swabs, as well as [section of carpet
appearing stained with bodily fluids
directly below Ms. Mirack’s body] were
packaged and sent to the Pennsylvania
State Police DNA Laboratory for DNA
analysis. Id. at ¶ 17. Dr. Ross ruled Ms.
Mirack’s cause of death as strangulation
and the manner of death as a homicide.
Id. at ¶ 16.
Upon review of discovery and the autopsy report, trial
counsel also opined [at the DNA hearing] that [the
defense team had concluded] that a sexual assault
had occurred. Specifically, when asked on direct
examination if the [defense team determined that]
discovery supported the theory of consensual sex
between Ms. Mirack and [Appellant], trial counsel
answered, “no, not that we determined.” N.T., DNA
Hearing, 9/2/21, at 151. On cross-examination, when
asked about Defense theories and the discovery in this
case, trial counsel again stated that “consensual
doesn’t seem really compatible with the absolute
beating and trauma that [Ms. Mirack] suffered.” N.T.
at 170-71.
...
[Regarding Appellant’s alleged confession, the record
reflects that the] day after [Appellant]’s arrest on June
26, 2018, a capital case team assembled by the
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Defender Association that consisted of three
attorneys, a paralegal, and an investigator went to the
prison to meet with [Appellant]. N.T. at 140, 142.
While discussing the circumstances of his arrest in a
private room within the prison, [Appellant] [indicated
to the Defender Association investigator that he was
in a relationship with Ms. Mirack and that one morning
before work he went to her apartment where they
began having sex. (Def. DNA Exhibit 13, at 4). At
some point, however, Ms. Mirack wanted the sexual
encounter to stop. (Def. DNA Exhibit 13, at 4).
According to the investigator, when Appellant reached
that point in describing his encounter with Ms. Mirack,
he simply stated,] “I snapped. I just snapped.” N.T.
at 123-124, 126. This confession was then disclosed
to trial counsel immediately after the interview and
memorialized in the investigator’s report written the
following day. N.T. at 133-34, 138.
[Appellant] himself at the DNA hearing explained that
the reason why he was going to see Ms. Mirack on the
morning of her murder was to not only have sex but
also break things off. N.T., DNA Hearing, 8/26/21, at
55. [the Defender Association investigator’s] report
also indicates the [Appellant] told him that on the day
of Ms. Mirack’s murder, his intention was to speak
with her in hopes of breaking it off between them.
N.T., DNA Hearing, 9/2/21, at 132. Specifically,
[Appellant] informed [the Defender Association
investigator] that he was upset that Ms. Mirack was
going to tell his wife about the affair and he went to
her home to break things off. N.T. at 133.
Trial counsel also testified that on several occasions
[Appellant] indicated to him personally as well as co-
counsel that he was guilty of this offense. N.T. at 145.
[Appellant] indicated his guilt with counsel during case
discussions when he explained he and Ms. Mirack had
a consensual, ongoing relationship, and “he did it and
he snapped.” Id. Although [Appellant] now denies
the confession, the description provided by trial
counsel at the DNA hearing as well as in reports
conducted the day after his arrest mirror some of the
same details provided by [Appellant] himself.
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...
[At the DNA hearing, testimony indicated that] [i]n
the days leading up to [Appellant]’s guilty plea, trial
counsel informed [Appellant] of what was going to be
said at the hearing and provided guidance on what he
should expect from the process. N.T. at 158. Trial
counsel described [Appellant] as a person who is “very
bright” and “engaging” and a person who is “very
calculating and weighs options.” N.T. at 146. Counsel
also stated that [Appellant] was frightened by the
possibility and certainty of a death notice being filed
and was concerned about the living conditions of
death row. Id.
[In considering Appellant’s petition for DNA testing,
the [trial] court also factored statements made at]
Appellant’s guilty plea hearing. Prior to the plea
acceptance, [Appellant] acknowledged that he
understood all of the charges he was pleading guilty
to and he understood that the Commonwealth would
have to prove he committed each charge beyond a
reasonable doubt. N.T., 1/8/19, at 4-6. [Appellant]
also acknowledged that he signed the last page of the
guilty plea colloquy form. N.T. at 14.
The Commonwealth then read aloud a comprehensive
recitation of the facts of the case that included the
following: “and [Ms. Mirack] never showed up for
work because shortly after [her roommate] left the
apartment the defendant forced his way into her
home, attacked her, physically attacked her, sexually
assaulted her both anally, vaginally, and orally with
his penis and then strangled her causing her death.”
N.T. at 7. The Commonwealth further informed the
trial court that at the time of the offense, the
[Appellant] was living four (4) miles away from Ms.
Mirack and was working at a company located down
the road from her residence. N.T. at 10-11. Finally,
the Commonwealth stated that multiple witnesses
saw a car that matched the description of
[Appellant’s] vehicle the morning of the murder. N.T.
at 11.
...
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When given the opportunity to address the [trial]
court [at the guilty plea hearing], trial counsel stated,
“He is here. He has admitted that he did it. He’s told
us, he has told other people since his arrest that he,
in fact, is guilty of this charge.” N.T. at 18. Counsel
further commented, “he is here today saying, I am the
one who did this. Back then I was not the same
person that I am now.” Id. Following statements
made by counsel, [Appellant] voluntarily addressed
the court and stated, “I’d like to apologize to the
Mirack family. . . . And to the family, I can’t imagine
what you’re going through. I apologize.” N.T. at 22.
...
At the conclusion of the hearing [on Appellant’s
motion for post-conviction DNA testing], the PCRA
Court ordered both parties to file briefs[, and both
parties complied].
[Trial] Court Opinion, 4/21/22, at 1-2, 10-11, 12, 13.
Commonwealth v. Rowe, 293 A.3d 733 (Pa. Super. 2023) (brackets in
original), vacated and remanded by Commonwealth v. Rowe, 344 A.3d
359 (Pa. 2025).
As noted at the outset of this memorandum decision, Appellant,
hereinafter Rowe or Applicant Rowe, seeks post-conviction DNA testing
pursuant to Section 9543.1. The statute provides in relevant part:
(a) Motion.--
(1) An individual convicted of a criminal offense in a
court of this Commonwealth 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.
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(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.
...
(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 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:
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(i) the applicant's actual innocence of the
offense for which the applicant was convicted;
...
(c) Requirements.--In any motion under subsection (a), under
penalty of perjury, the applicant shall:
...
(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;
42 Pa.C.S.A. § 9543.1(a)(1), (2), (4), (5), (6), and (c)(3)(i) and (ii)(A)
(emphasis added).
Furthermore, under Act 147, Section 9543.1(d)(2) provides:
(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:
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(i) would establish the applicant's actual innocence of
the offense for which the applicant was
convicted[.]
42 Pa.C.S.A. § 9543.1(d)(2)(i) (emphasis added).
Hardy expounds on Section 9543.1(d)(2)(i), in pertinent part:
For an applicant not under state supervision or who entered a
guilty plea, the statute elevates the applicant's burden to a
“reasonable probability.” If the applicant fails to meet his
burden, and if the court finds that there is “no reasonable
possibility” (or “probability,” as the case may be) that the
requested DNA testing would produce results meeting the actual
innocence standard, then the court is directed to deny the request
under subsection(d)(2)(i).
Hardy at 424-25 (emphasis added).
Our Supreme Court has explained the above statutory requirements to
post-conviction DNA testing, as follows:
The applicant is required to take certain threshold steps, such as
identifying the specific evidence at issue, consenting to provide
samples of bodily fluids to be used in the DNA testing, and
acknowledging that his own DNA will be uploaded to law
enforcement databases and could be used as evidence in other
prosecutions. The applicant further must provide a sworn
statement asserting his actual innocence of the crime in question
and swearing that the DNA testing is sought for the purpose of
demonstrating the applicant's actual innocence.
Actual innocence of the crime is what the statute primarily
aims to uncover. To that end, ... the applicant is required
to present a prima facie case demonstrating that the
identity of or the participation in the crime by the
perpetrator was at issue in the proceedings that resulted
in the conviction, and that DNA testing of the specific
evidence, assuming exculpatory results, would establish
the applicant's actual innocence of the offense for which
the applicant was convicted. If the applicant fails to make that
showing, another provision of Section 9543.1 directs the court to
deny the request: The court shall not order the testing if it
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determines that there is no reasonable possibility that the testing
would produce exculpatory evidence that ... would establish the
applicant's actual innocence of the offense for which the applicant
was convicted.
Hardy, 337 A.3d at 390 (emphasis added; quotation marks and footnotes
omitted). See also Commonwealth v. Carter, (unpublished memorandum)
2025 WL 3215365 at *4 (Pa. Super. filed 11/18/2025) (quoting Hardy).
As this Court has observed,
the quantum of evidence necessary to satisfy Section
9543.1(d)(2)(i) above and beyond the absence of the petitioner's
DNA has never been explicitly defined. In this regard, [the Court
is] not aware of any authority that holds or suggests that
demonstration of “actual innocence” under Section
9543.1(d)(2)(i) requires a discovery of DNA from someone other
than the petitioner. Instead, the quantum of evidence
necessary to satisfy Section 9543.1(d)(2)(i) above and
beyond the absence of the petitioner's DNA has been, and
should continue to be, determined on a case-by-case basis,
as circumstances dictate. Such circumstances might include
the presence of another person's DNA, but not necessarily so. It
is at least conceivable that certain circumstances or facts, in
addition to or in conjunction with the absence of the petitioner's
DNA in a particular location, may satisfy Section 9543.1(d)(2)(i)
...
In re Payne, 129 A.3d 546, 559-60 (Pa. Super. 2015) (en banc) (emphasis
added; footnotes omitted); accord Hardy, 337 A.3d at 421-22.
The discrete issue before us is whether Applicant Rowe presented a
“prima facie case” demonstrating that the identity of Ms. Mirack’s rapist and
murderer was at issue at the time of his guilty plea and that “DNA testing of
the specific evidence, assuming exculpatory results, would establish” his
“actual innocence.” See Hardy, 337 A.3d. at 390. Under the current iteration
of Section 9543.1, reproduced supra, a DNA applicant who has pleaded guilty
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to the crime at issue makes a prima facie case of their “actual innocence” by
presenting to the DNA court a petition making a case-specific and fact-specific
showing that produces a reasonable probability that testing, assuming
exculpatory results, would make it more likely than not that a reasonable juror
would not find the applicant/defendant guilty. Id. Therefore, it was the DNA
court’s task below to apply this rubric to determine whether Applicant Rowe
presented a theory of actual innocence that “might, in fact, be correct.” See
Hardy, 337 A.3d at 425.
In Hardy, the prosecution had relied solely on circumstantial evidence,
including the defendant Hardy’s incontrovertible motive, to convict Hardy for
the worksite homicide of a co-worker committed in a multi-level warehouse
during the night shift. Previous DNA tests failed to implicate Hardy or anyone
else among those considered suspects, but Hardy petitioned for post-
conviction retesting and new testing with next generation DNA testing. The
lower courts denied his request, but the Supreme Court reversed.
The Hardy majority determined that under the language and purpose
of the DNA statute, the facts of applicant Hardy’s case compelled reversal and
remand. Specifically, Hardy persistently had asserted his innocence,2 the case
against him was purely circumstantial, previous DNA testing had not
implicated him or any other known suspect, and the presence of other people
____________________________________________
2 In Hardy, there was no question that identity was a disputed issue at trial,
for he asserted his innocence and contended that the victim was murdered by
another.
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in the warehouse at the time made his case for additional, potentially more
effective testing persuasive. Id. at 426.
Here, in contrast, direct evidence in the form of irrefutable DNA test
results of semen found inside, on, and under Ms. Mirack’s body unequivocally
implicated Rowe as the source and thus placed him in Ms. Mirack’s residence
within the narrow timeframe3 in which her rape and murder occurred.
Furthermore, although Applicant Rowe momentarily denied responsibility for
Christy Mirack’s rape and homicide when confronted by investigators, he
wavered from this position the following day and confessed to his defense
team investigator that he “just snapped” once inside Ms. Mirack’s residence
and murdered her. At his guilty plea hearing, with his defense team present,
he pleaded guilty and, at the conclusion of the guilty plea colloquy, turned to
address Ms. Mirack’s family and issued a specific apology to them, as
reproduced supra.
Hardy also admonishes against reflexive reliance on the maxim that
“absence of evidence is not evidence of absence,” which the lower court in
that case had incorporated in its decision denying post-conviction DNA
applications as a response to prior DNA testing having excluded applicant
____________________________________________
3 Ms. Mirack’s roommate and fellow schoolteacher reported that she left their
residence for work at 7:00 a.m. while Ms. Mirack was just finishing her
wrapping of Christmas gifts that she was bringing to school. When Ms. Mirack
did not report to school or answer phone calls, the school’s principal checked
Ms. Mirack’s residence at 9:30 a.m. and found her deceased.
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Hardy.4 Hardy cautions against both discounting the potential importance of
more specific DNA testing that reinforces such prior results and dismissing
preemptively the possibility that more sensitive testing will detect third-party
DNA previously missed.
In this vein, the majority decision in Hardy reminds DNA trial courts
making the “actual innocence” inquiry that they must undertake a speculative
endeavor5 that requires, first, the court’s acknowledgement that absence of
evidence where evidence would be expected is often probative and, second,
acceptance of the possibility that new techniques will produce results that not
only reinforce prior test results but also reveal a new DNA source that may
call into question the applicant’s conviction. Hardy, 337 at 426.
Nevertheless, the speculative endeavor directive issued to DNA courts
does not relieve a post-conviction DNA test applicant of their burden to make
____________________________________________
4 Notably, the trial court in the present matter also invoked this maxim to
support the proposition that “a test that is favorable to the petitioner does not
guarantee an acquittal,” TCO at 15. Of course, a petitioner does not carry the
burden to demonstrate that the requested DNA testing would guarantee their
acquittal. Although both concerning and illustrative of the potential pitfalls
attendant to the actual innocence inquiry that Hardy discusses, this passage
within the trial court’s opinion is not reflective of an otherwise fair, fact-specific
assessment of the petition made in accordance with the statutory mandate.
5 A trial court’s speculative endeavor arises from the recognition that the DNA
test results that might establish the applicant's “actual innocence” under the
above-discussed standard do not actually exist yet, because the testing has
not yet been performed. The applicant necessarily must offer some
“speculation and conjecture” as to what the requested DNA testing might
reveal. Hardy, 337 A.3d at 426.
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a case-specific and fact-specific showing that, inter alia, they present a prima
facie case of their actual innocence.
As outlined supra, where an applicant, as here, pleaded guilty to the
charges in question, the applicant’s actual innocence is judged by asking
whether after a review of the entire record, including the guilty plea hearing,
there is a reasonable probability6 that the requested testing, assuming
exculpatory evidence, would establish the applicant’s actual innocence of the
offense for which he was convicted. Put another way, we ask if it is reasonably
probable that exculpatory DNA results would make it more likely than not that
no reasonable juror would find him guilty beyond a reasonable doubt of the
crimes charged. Section 9543.1(a).
This standard required the DNA court to make “a probabilistic
determination about what reasonable, properly instructed jurors would do”7
if, in the present case, they received evidence of exculpatory results of Touch
____________________________________________
6 The “reasonable probability” standard derives from Act 147 language
imposing a more stringent standard upon applicants who pleaded guilty. As
such, this standard must be construed as a heightened standard, more
exacting than its counterpart, the “reasonable possibility” standard, which
applies to the applicant who asserted their innocence throughout the
proceeding in which they were convicted. Thus, we understand the
“reasonable probability” standard as requiring the applicant to show that
exculpatory DNA test results would produce at least a 50% likelihood of their
actual innocence.
7 Hardy, 337 A.3d at 423 (citing Commonwealth v. Conway, 14 A.3d 101,
109 (Pa. Super. 2011) (quoting Schlup v. Delo, 513 U.S. 298, 329, 115 S.Ct.
851, 867 (1995)).
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DNA testing of the cutting board, teapot, and Ms. Mirack’s sweater.
Concurrently, a DNA court considers Section 9543.1(d) and shall deny a
request for DNA testing if the applicant cannot carry their burden to show a
reasonable probability that the testing would produce exculpatory evidence
demonstrating their actual innocence. Hardy, 337 A.3d at 423.
At the outset of addressing this issue, the trial court proclaims that Rowe
“cannot present a prima facie claim of actual innocence[,]” because his claim
is founded upon “baseless excuses and denials that have been conjured up,
years later, for his benefit” and “offers the incredulous explanation that
another person must have entered the home and committed the crime shortly
after he left.” TCO at 8, 9-10. “At least five (5) other suspects, however,
were investigated and all were cleared via DNA through testing of the blood
and semen in the living room area[,]” the trial court observes. Id. at 9.
Rowe’s theory admits that he had sex with Ms. Mirack in her residence
that morning and does not depend on another source of the blood and semen
collected on and underneath her body. His theory focuses, instead, on the
acts of deadly violence inflicted on Ms. Mirack and on the absence of DNA
testing of the cutting board and Ms. Mirack’s sweater believed to have been
used as weapons against her.
The trial court submits that it considered Rowe’s theory of actual
innocence—i.e., that the party responsible for Ms. Mirack’s death must have
entered her residence only minutes after Rowe left following his consensual
encounter with her—and deemed the theory wholly unsupportable after review
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of the entire record. While the trial court’s skepticism of Rowe’s actual
innocence theory may appear irreconcilable with the speculative endeavor that
Hardy directs such courts to undertake when reviewing a DNA testing
application, the trial court reaches such opinion only upon making a case-
specific and fact-specific assessment of the record. This assessment led it to
conclude that Rowe’s theory of an intruder who appeared minutes after his
departure, caused Ms. Mirack’s rape-related injuries, and slayed her at the
very spot on the living room floor where Rowe’s semen deposits were located
simply is incongruent not only with his confession and guilty plea and the
totality of the evidence but also with the reasonable probability standard he
was bound to meet.
Specifically, this evidence included crime scene investigators finding Ms.
Mirack’s pelvic area positioned directly over Rowe’s semen on the rug, and
forensic pathologists confirming both the presence of his semen on and inside
her and the complete absence of a third party’s DNA. Coupled with this direct
evidence were vaginal, anal, and oral trauma, and bruising to her upper
thighs, all of which was deemed consistent with sexual assault and, thus,
inconsistent with Rowe’s claim of consensual sex. Christmas packages strewn
about the foyer, and Ms. Mirack’s winter coat and gloves remaining on her
body when she was found dead further suggested she was overtaken as she
was leaving the residence prior to the sexual violence that occurred on or near
the spot on the living room carpet where her body was found.
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Therefore, in light of the totality of such evidence, we turn to the prima
facie case language of Section 9543.1(c)(3) and ask whether applicant Rowe
has shown there is a reasonable probability that DNA testing of the
presumptive murder weapons—Ms. Mirack’s sweater used in her strangulation
and a wooden cutting board used to strike her head—and other items, namely,
a toaster that was typically situated atop the cutting board, and articles of
clothing worn by Ms. Mirack at the time of her death, assuming exculpatory
DNA results, would establish his “actual innocence” of the rape and murder of
Ms. Mirack. Stated differently, we ask whether exculpatory DNA results
showing either the absence of Rowe’s DNA or the presence of another’s DNA,
or showing both, would demonstrate that Rowe’s theory of innocence—that
the actual assailant entered Ms. Mirack’s residence minutes after he left—
might, in fact, be correct. See Hardy 337 A.3d at 426 (instructing that the
court’s fact-sensitive inquiry is to be made after reviewing the whole record,
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including the record of a guilty plea hearing if the defendant pleaded guilty).
8, 9
Here, the nature of the Commonwealth’s evidence identifying Rowe as
the perpetrator of the offense included physical evidence consisting of DNA
test results extracted from semen collected from underneath, on, and inside
Ms. Mirack’s body at the crime scene, and direct evidence including Rowe’s
confession, made 26 years after the commission of the crime when police
investigators confronted him with newly acquired evidence of a match
between crime scene DNA evidence and his own DNA profile that he published
____________________________________________
8 In this context, “Actual innocence”
refer[s] to the proposition that the anticipated, newly discovered
DNA evidence would make it more likely than not that no
reasonable juror would have found the applicant guilty beyond a
reasonable doubt.[] This is a highly fact-sensitive inquiry that will
depend upon the nature of the Commonwealth's evidence
identifying the applicant as the perpetrator of the offense, as well
as the possibility that the defense's theory of innocence could
have been accepted as true by the fact-finder, if new and
favorable DNA evidence were obtained.
Hardy 337 A.3d at 426.
9 Rowe’s case challenging the identification evidence against him is
comparatively weaker than was the case mounted by the applicant in Hardy.
The Supreme Court set forth the facts supporting why Hardy’s identification
case provided a solid foundation for the defense request for DNA testing.
Rowe’s case must be viewed as inferior given the presence of his semen at
the scene, his confession to investigators and his defense team, and the highly
coincidental theory of actual innocence he offers—the intervening sex offender
appearing moments after he left following his alleged consensual sexual
episode and just as Ms. Mirack was preparing to leave.
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on the “23andMe” website. The defense disputed neither this forensic
identification evidence nor Rowe’s confession that he “just snapped” and
committed the crimes with which he was charged.
Furthermore, at Rowe’s guilty plea hearing, defense counsel reminded
the plea court that Rowe confessed to investigators, confessed to his own
defense team investigators, and continued to accept full responsibility leading
up to the guilty plea hearing.
Defense Counsel: He is here. He has admitted that he did
it. He’s told us, he has told other people since his arrest that he,
in fact, is guilty of this charge.
[H]e is here today saying, [“]I am the one who did this. Back then
I was not the same person that I am now.[”]
...
And I think that he has always, always, since the first day we met
him, believed that the proper thing for him to do is to take this
plea. At that point we didn’t even know if it would be offered by
the Commonwealth, obviously, but he has always admitted this
guilt and he has always recognized that there will be punishment.
The only question was going to be what punishment. So we’re
thankful that this is resulting in a life sentence. We believe that’s
appropriate under the facts and circumstances . . . .
As I indicated, there are a lot of people that have known him for
a shorter period of time and have a great deal of difficulty
believing that a person who’s worked tirelessly for the community
could have been a horrible person.
I’m asking people to understand that he is admitting that he did
this and he has always admitted to us that he did this.
N.T., 1/8/19, at 18-21.
Rowe personally admitted his guilt under the evidence recounted during
the plea colloquy, which included a recitation of the specific criminal acts
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alleged. Afterward, when the plea court gave him the opportunity to make a
statement, he offered only an apology:
The Court: Mr. Rowe. Is there any comment you would like
to make.
Rowe: Yes, Your Honor. I’d like to apologize to the
Mirack family. I’m not sure where they are. . .
. I’m sorry, sir. And to the family, I can’t
imagine what you’re going through. I apologize.
N.T. at 22.
Therefore, the DNA court has not relied exclusively on the sufficiency of
the Commonwealth’s evidence to deny Rowe’s application for DNA testing.10
Rather, as may be gleaned from its opinion, it has complied with the statutory
regime’s directive to conduct a fact-specific review of all evidence in
considering applicant Rowe’s theory of actual innocence, which in this case
may fairly be repeated as follows: the claimed third-party assailant forcibly
entered Ms. Mirack’s residence immediately after Rowe left and just as Ms.
Mirack was leaving for school with holiday gifts in hand; the assailant drove
her back into her residence and down onto the very location of the floor where,
the presence of Rowe’s semen would indicate, Rowe had consensual sex with
her minutes earlier; and the assailant caused her vaginal and anal trauma and
____________________________________________
10 The trial court expresses its opinion that the Commonwealth’s evidence was
sufficient to prove Rowe’s guilt beyond a reasonable doubt. Nevertheless, it
also addresses appropriately the discrete question of whether Rowe, as an
applicant having pleaded guilty, met his burden of establishing by a
reasonable probability that his theory of “actual innocence” might be correct.
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bruising on her legs while raping her, strangled her with the sweater she was
wearing, and struck her face with the cutting board.
The trial court further acknowledges the investigatory history of this
matter in which police identified five other suspects, who were investigated
and cleared by police after full investigations that included, inter alia, DNA
testing to rule out each as the source of the semen samples collected in this
case. Rowe contends the DNA tests of these individuals were irrelevant, as
he admits he is the source of the semen, as he must, given the test results,
but he fails to indicate specifically how the remainder of the investigations into
each suspect left specific questions that could support his “actual innocence”
position.
Furthermore, the trial court aptly notes that the post-mortem
assessment of Ms. Mirack’s vaginal, anal, and upper thigh bruising and
abrasions were deemed inconsistent with consensual sex and consistent,
instead, with sexual assault, an expert opinion with which Rowe’s own defense
team agreed. Yet, despite evidence of such forcible and injurious sexual
contact between the assailant and victim, there was no recovery of physical
evidence—semen, blood, hair, or otherwise—attributable to an unknown third
person. Instead, the only physical evidence retrieved at the crime scene not
belonging to Ms. Mirack belonged to Applicant Rowe.
We discern, therefore, that the trial court conducted the requisite “highly
fact-specific” inquiry into all the evidence, as it considered the facts asserted
in Rowe’s theory of actual innocence, those asserted by the Commonwealth,
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and those admitted to by Rowe and his defense team at his guilty plea.
Assessing the totality of this evidence, the trial court concluded that Applicant
Rowe had not carried his burden to present a fact-specific, prima facie case of
his actual innocence, i.e., the reasonable probability that exculpatory Touch
DNA test results on the sweater and cutting board would make it more likely
than not that no reasonable juror would find him guilty beyond a reasonable
doubt.
The crux of the trial court’s opinion in this regard is that if Rowe’s
“intervening assailant” theory of actual innocence is not altogether beyond
belief, it is, at best, so highly improbable under a careful review of the facts
as to fail under the reasonable probability test that the statutory rubric puts
to all applicants who have pleaded guilty. Read fairly, the DNA court’s opinion
follows jurisprudence instructing that while the statute requires us to assume
exculpatory DNA results and then engage in a speculative endeavor to
consider the possibility of case-specific innocence stemming from such results,
it does not direct DNA courts merely to accept the applicant’s theory of actual
innocence without reference to the specific facts of the case and the burdens
of production placed on the applicant, mitigated as the latter is. Instead, in
the case of an applicant who has pleaded guilty, DNA courts must require the
applicant’s fact-based theory of actual innocence to clear the “reasonable
probability of actual innocence” bar described above.
In this case, the trial court evaluated Mr. Rowe’s theory of actual
innocence and concluded this theory of actual innocence was so utterly
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improbable under the facts as to preclude Mr. Rowe from meeting his burden
to show a reasonable probability that exculpatory touch DNA results on the
cutting board, sweater, and toaster would more likely than not cause a
reasonable juror to refuse to find him guilty. We agree with this assessment
given the record before us.
The undisputed facts inform us of the approximate time that Ms.
Mirack’s roommate and fellow teacher left their residence for school as Ms.
Mirack was putting a finishing touch on school Christmas gifts and saying she,
too, would be leaving shortly to arrive at school on time. Very little time
remained, therefore, to accommodate Rowe’s now-alleged factual timeline,
which he says consists of Mirack admitting him into her home, quickly joining
him in consensual sex, seeing him out moments later, and then succumbing
in a most coincidental, intervening moment of a second man who escaped
Rowe’s detection and forcibly entered her home just as she was leaving with
gifts in hand. He dislodged the gifts, drove her backwards and down to the
floor, and caused her injuries by brutally raping her and thereafter murdered
her in the very spot where Rowe’s semen lay from his sexual encounter with
her just minutes earlier.11
Hardy calls upon courts to make a speculative endeavor to consider the
possibility of actual innocence flowing from exculpatory DNA results, and it
____________________________________________
11 Ms. Mirack’s roommate’s statement to police and the presence of gifts
strewn about the foyer supports the conclusion that Mirack was at her front
door attempting to leave for work at her school that morning.
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recognizes that the establishment of a prima facie case standard is a “low
burden in the law.” Id. at 425. Guided by this directive, we are nevertheless
constrained to conclude Applicant Rowe’s purported fact-based theory of
actual innocence has not met his evidentiary burden. In this regard we find
the operative facts are distinguishable from those in Hardy.
In Hardy, the applicant’s persistent assertion of innocence and the
purely circumstantial evidence against him coupled with other night-shift co-
workers having opportunities to have committed the crime enabled the
applicant Hardy to meet his burden of showing a reasonable possibility of his
actual innocence. Here, in contrast, a heightened burden to demonstrate a
reasonable probability of Rowe’s actual innocence applies because of his
confession of guilt and his subsequent guilty plea, and the presence of his
semen inside, on, and under Ms. Mirack’s body was direct evidence that he
engaged in sexual activities in her living room around the time Ms. Mirack was
raped and murdered.
Here, the lower court appropriately questioned whether Applicant Rowe,
having pleaded guilty to charges that he murdered and raped Ms. Mirack, has
demonstrated a reasonable probability that his requested DNA testing of the
presumptive murder weapon and other items, assuming exculpatory results,
would establish his actual innocence. See Hardy, at 426. To this question,
the trial court offered the following observations and conclusions:
The cutting board is assumed to be the murder weapon and the
other items are assumed to have been handled by the victim,
assailant, or both during the last moments of Ms. Mirack’s life. If
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the items were to be DNA tested and did not result in finding the
Petitioner’s DNA on such items, this evidence would still not be
sufficient to establish a prima facie case of actual innocence. . . .
Given the circumstances of the case and the questionable version
of events provided by the Petitioner, DNA testing would not
establish his actual innocence, even if his DNA were completely
absent from the requested items.
The Petitioner has failed to provide any evidentiary basis that
would lead the court to believe an alternative suspect’s DNA would
be found at the crime scene. [The] Commonwealth presented
evidence that during the investigation of this matter, the only DNA
found on and under Ms. Mirack was the Petitioner’s. [The] court
is unable to fathom that someone else entered the home between
the hours of 7:00 a.m. and between the time frame of 7:10 a.m.
– 7:20 a.m., found the victim without her clothes on, covered in
semen, and murdered her without leaving any additional DNA on
her body.
In sum, the evidence presented by the Commonwealth, the
Petitioner’s own words of placing himself with Ms. Mirack the
morning of the murder, and the DNA he left behind established
that the Petitioner has not established a prima facie case of actual
innocence and this failure would not be undermined by the
potential that DNA could be found on the items surrounding Ms.
Mirack at the murder scene.
Trial Court Opinion, 4/21/22, at 14-15.
The trial court determined that the totality of facts are such that
exculpatory DNA results on the cutting board and sweater still would not make
it more likely than not that no reasonable juror would find him guilty beyond
a reasonable doubt. The record supports this conclusion.
Given the totality of this record, the lower court concluded that Rowe
has not carried his burden of demonstrating a reasonable probability of his
actual innocence even assuming exculpatory results from DNA testing of the
presumptive murder weapons and the possible implications of such results.
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Upon our review of the record, and for the reasons discussed, we agree with
the trial court’s assessment. Consequently, we conclude that Applicant Rowe's
claim that the trial court erred in denying his motion for DNA testing, pursuant
to Section 9543.1(d)(2)(i) warrants no relief.
Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 01/22/2026
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