The opinion
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2015 PA Super 272
IN RE: JOHN MARSHALL PAYNE III IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
APPEAL OF: COMMONWEALTH OF
PENNSYLVANIA
Appellant No. 1113 MDA 2013
Appeal from the Order entered May 22, 2013
In the Court of Common Pleas of York County
Criminal Division at No: CP-67-MD-1000291-1986
BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, DONOHUE, SHOGAN,
ALLEN, LAZARUS, MUNDY, and STABILE, JJ.
DISSENTING OPINION BY STABILE, J.: FILED DECEMBER 29, 2015
I respectfully dissent. I believe the Majority fails to apply the correct
statutory standard when evaluating whether the trial court erred in granting
John Marshall Payne III’s (Payne) application for DNA testing under
§ 9543.1. When the proper standard is applied, Payne is not entitled to DNA
testing because no DNA test results, even assuming exculpatory results, can
establish Payne’s “actual innocence of the offense for which [he] was
convicted.” 42 Pa.C.S.A. § 9543.1(c)(ii)(A). Therefore, I would reverse the
order granting Payne’s request for DNA testing.
In my opinion, the Majority commits several errors in defining the
standard for DNA testing under § 9543.1. Foremost, the Majority ignores
entirely, and in fact does not quote or even cite, the statutory prima facie
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burden imposed upon an applicant under § 9543.1(c)(3) that must be
satisfied before testing can be ordered; i.e., the presentation of a prima
facie case that testing, assuming exculpatory results, would establish “actual
innocence.” Instead, the Majority ignores this initial burden and focuses
exclusively upon the subsequent record review to be conducted by a trial
court under § 9543.1(d)(2), which is to be considered only if a prima facie
showing of actual innocence is first made in the motion for testing. The
Majority is certain to diminish and dismiss the importance of a prima facie
showing by stating that “[t]he sole issue for our review concerns the
application of the standard set forth in Section 9543.1(d)(2) and
9543.1(d)(2)(i),” thereby placing sole controlling emphasis for testing on a
trial court’s record review. Majority Opinion at 15. Compounding this error
further, the Majority, ignoring well-established rules of statutory
construction, proceeds to define the unambiguous term “actual innocence”
by reference to Commonwealth v. Conway, 14 A.3d 101 (Pa. Super.
2011), which relies upon inapplicable federal habeas corpus jurisprudence.
No attempt is made to distinguish Conway from other of this Court’s
precedent in conflict with the standard articulated in that decision. The
Majority rewrites the statutory “actual innocence” standard under § 9543.1
to require DNA testing if testing would simply “make it more likely than not”
that no reasonable juror would find the defendant guilty beyond a
reasonable doubt. Majority Opinion at 15. This court-created standard is far
afield from the statutory standard of “actual innocence” provided by our
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Legislature. The Majority converts the clear and unambiguous standard of
“actual innocence” for DNA collateral relief to one of a preponderance of
proposed evidence that allows testing if a mere possibility exists that a jury’s
verdict might have changed. I do not believe this interpretation was ever
intended by our Legislature when it provided for collateral relief based upon
a standard that must demonstrate “actual innocence.”
The parameters for DNA testing are exclusively set forth under the
statutory provisions of § 9543.1.1 By necessity, our analysis must begin and
end with the statutory language provided by our Legislature under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. “When reviewing an
order denying a motion for post-conviction DNA testing, this Court
determines whether the movant satisfied the statutory requirements
listed in [42 Pa.C.S.A. §] 9543.1.” Commonwealth v. Williams, 35 A.3d
44, 47 (Pa. Super. 2011) (emphasis added).
In relevant part, § 9543.1, relating to post-conviction DNA testing,
provides:
(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 for the performance of
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1
I note there is no federal constitutional right to post-conviction DNA
testing. District Attorney’s Office for the Third Jud. Dist. v. Osborne,
557 U.S. 52, 55-56 (2009).
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forensic DNA testing on specific evidence that is related to the
investigation or prosecution that resulted in the judgment of
conviction.
***
(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) assert the applicant’s actual innocence of the
offense for which the applicant was convicted[.]
***
(3) present a prima facie case demonstrating that
the:
(i) identity of or the participation in the crime by the
perpetrator was at issue in the proceedings that
resulted in the applicant's conviction and sentencing;
and
(ii) DNA testing of the specific evidence, assuming
exculpatory results, would establish:
(A) the applicant’s actual innocence of the
offense for which the applicant was
convicted[.]
(d) Order.--
(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
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determination, after review of the record of the applicant’s
trial, that the:
(i) requirements of subsection (c) have been met;
(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 that the
testing would produce exculpatory evidence that:
(i) would establish the applicant’s actual
innocence of the offense for which the applicant
was convicted[.]
42 Pa.C.S.A. § 9543.1(c)-(d) (emphasis added) (provisions concerning
capital cases omitted).
The above provisions set forth clear procedures to be followed in order
for post-conviction DNA testing to be ordered by a court. First, the motion
for DNA testing must relate to the judgment of conviction. 42 Pa.C.S.A. §
9543.1(a). This prerequisite defines the relevant parameters against which
the proposed testing is to be measured. Here, Payne was convicted of
second-degree (or felony) murder, aggravated assault, burglary, and
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conspiracy.2 Second, the applicant must state, under penalty of perjury, the
specific evidence to be tested, must consent to samples of bodily fluid for
DNA testing, and must acknowledge that any data obtained from testing
may be entered into databases and may be used against him or her in any
other cases. 42 Pa.C.S.A. § 9543.1(c)(2). The applicant also must assert
“actual innocence” of the offense that resulted in the conviction. Id. The
required averment is one of actual innocence, not one of merely asserting
not guilty beyond a reasonable doubt. Third, and perhaps most important,
the motion must set forth on its face a prima facie case demonstrating that
the identity of, or participation in the crime by, the applicant is at issue, and
that DNA testing, assuming exculpatory results, would establish the
applicant’s actual innocence of the offense for which he or she was
convicted. 42 Pa.C.S.A. § 9543.1(c)(3). Only after an applicant has
satisfactorily presented a motion demonstrating a prima facie case that DNA
testing, assuming exculpatory results, would establish actual innocence, is a
court then obligated to review the record of the case independently to
determine if there is a reasonable possibility the DNA exculpatory evidence
would establish actual innocence. 42 Pa.C.S.A. § 9543.1(d)(2). If the
motion does not satisfy the prima facie threshold then the motion should be
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2
I recognize Payne’s conviction for conspiracy was reversed on a statute of
limitation determination. I have included it here only for purposes of factual
completeness.
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denied without a record review. If the motion passes muster, the record
review requires that the court essentially scrutinize the applicant’s theory of
DNA testing against the trial record. Assuming the applicant’s motion has
demonstrated a prima facie showing of actual innocence based upon the
proposed DNA testing, a court may only then refuse testing if it determines
that the applicant’s theory cannot be reasonably supported by the trial
record. This record review, however, does not diminish the prima facie
showing of “actual innocence” based upon exculpatory DNA testing that first
must be satisfied by an applicant before testing can be ordered. This
procedure is entirely consistent with this Court’s prior precedent in Williams
wherein we said:
The text of the statute set forth in Section 9543.1(c)(3) and
reinforced in Section 9543.1(d)(2) requires the applicant to
demonstrate that favorable results of the requested DNA testing
would establish the applicant's actual innocence of the crime of
conviction. The statutory standard to obtain testing requires
more than conjecture or speculation; it demands a prima facie
case that the DNA results, if exculpatory, would establish actual
innocence.
Williams, 35 A.3d at 50 (citing Commonwealth v. Smith, 889 A.2d 582,
585-86 (Pa. Super. 2005), appeal denied, 905 A.2d 500 (Pa. 2006)). For
reasons unclear to this author, the Majority did not recite or discuss the
mandatory language of § 9543.1(c)(3)(ii)(A) in the “pertinent statutory
language at issue” in this case. See Majority Opinion at 13-15. The
Majority, as mentioned above, focused instead only upon § 9543.1(d)(2),
i.e., the court’s later independent record review after a prima facie case has
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been demonstrated. Rather than consider the statutory mandate of
§9543.1(c)(3)(ii), the Majority instead looked to Conway for a definition of
“actual innocence,” stating:
In Conway, 14 A.3d at 109, this Court applied a definition of
“actual innocence” taken from “the United States Supreme Court
in its Opinion in Schlup v. Delo, 513 U.S. 298, 327 [] (1995),
namely, that the newly discovered [DNA] evidence must make it
‘more likely than not that no reasonable juror would have found
him guilty beyond a reasonable doubt.’”
Majority Opinion at 15 (quoting Conway, 14 A.3d at 109) (brackets and
language inserted in brackets in original). Conway not only ignored
established principles of statutory construction by looking to federal law to
define “actual innocence,” but also wrongly relied upon inapplicable federal
habeas corpus jurisprudence that predated the passage of our DNA testing
statute.3
In further justification to rewrite § 9543.1, the Majority holds that
§ 9543.1 is a remedial statute and therefore must be interpreted liberally.
Majority Opinion at 13; see also Conway, 14 A.3d at 113-14 (quoting the
legislative history of § 9543.1). However, this Court cannot disregard the
letter of the law in favor of pursuing its spirit. As we have stated:
Pennsylvania's Statutory Construction Act, 1 Pa.C.S. § 1921,
focuses our review and negates any consideration of matters
extraneous to the statutory language except in instances where
such language is ambiguous. See 1 Pa.C.S. § 1921(b) (“When
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3
Schlup was decided in 1995. Our DNA testing statute was added to the
PCRA in 2002.
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the words of a statute are clear and free from all ambiguity, the
letter of it is not to be disregarded under the pretext of pursuing
its spirit.”).
Commonwealth v. Moran, 5 A.3d 273, 279-80 (Pa. Super. 2010). “A
statute’s plain language generally provides the best indication of legislative
intent.” Commonwealth v. McCoy, 962 A.2d 1160, 1166 (Pa. 2009).
Here, there is no need to resort to federal case law to define the statutory
term “actual innocence,” as the term is clear and unambiguous on its face.
The term is capable of being construed according to its plain meaning.
“Actual innocence” plainly means that the defendant did not commit the
crime for which he or she was convicted. The plain meaning of the term
does not admit standards of reasonableness, probability, or reasonable
doubt into its connotation. Therefore, when § 9543.1(c)(3) states that an
applicant shall plead and demonstrate a prima facie case that exculpatory
DNA evidence would establish “actual innocence,” the statute plainly
requires that the applicant demonstrate in a motion that the exculpatory
DNA evidence would establish that he or she did not commit the crime of
which they were convicted. As discussed herein, I find Payne’s motion did
not demonstrate a prima facie case of actual innocence and, therefore, a
record review by the trial court was unnecessary. The motion should have
been denied.
My disagreement with the Majority’s reliance upon Conway goes
beyond mere disagreement on how or when to define a term. Simply
stated, the court-created standard enunciated in Schlup, upon which
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Conway relies, has no bearing on Pennsylvania’s statutory standard under
§ 9543.1. Schlup clarified the federal standard that must be met when
innocence is claimed and a conviction is alleged to be the result of a
constitutional error. Schlup concerned a federal habeas corpus proceeding
wherein the United States Supreme Court addressed the appropriate
standard to be applied when a petitioner alleges actual innocence and a
conviction based on a constitutional violation, where the violation would
ordinarily be barred from being considered on its merits. As explained in
House v. Bell, 547 U.S. 518 (2006), as a general rule, claims forfeited
under state law may support federal habeas corpus relief only if a prisoner
demonstrates cause for default and prejudice from the asserted error. Id.
at 536. This bar, however, is not unqualified, such as when there is a
miscarriage of justice. Id. In Schlup, adhering to this general principle,
the Court held that prisoners asserting innocence as a gateway to defaulted
state claims must establish that, in light of new evidence, “it is more likely
than not that no reasonable juror would have found petitioner guilty beyond
a reasonable doubt.” House at 537 (quoting Schlup, 513 U.S. at 327).
This stands in contrast to review of a federal freestanding innocence claim
where no constitutional error is alleged and the burden then is one of clear
and convincing evidence of innocence. See Herrera v. Collins, 506 U.S.
390 (1993). Moreover, unlike § 9543.1, these federal standards are not
limited to evaluating DNA evidence. As is apparent, the difference in federal
law between gateway claims of innocence alleging constitutional error and
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freestanding innocence claims without constitutional error do not involve or
implicate state-level collateral relief proceedings under our PCRA. Nor do
they interpret statutory provisions like § 9543.1. Quite simply they are
irrelevant to the issue before this Court. The Majority’s use of federal
habeas corpus standards to define “actual innocence” under § 9543.1 is
wholly without foundation and is inconsistent with our rules of statutory
construction. Nothing in the text of the PCRA statute indicates that the
General Assembly intended to import a federal habeas corpus standard into
the DNA testing provisions of our PCRA.
Turning now to the merits of Payne’s motion, we first must examine
the crimes of which Payne stands convicted to determine if Payne has met
the required prima facie showing of actual innocence under 9543.1(c)(3)(ii).
As stated, Payne was convicted of second-degree or felony murder,
aggravated assault,4 and burglary. The trial court charged the jury on the
elements of these crimes and, more importantly, instructed the jury that
Payne could be found guilty of any of them based upon his own acts, or as
an accomplice of others who committed the crimes. N.T. Trial (Jury
Charge), 8/18-8/22/86, at 713 (burglary), 715-16 (accomplice liability
generally), and 719 (homicide). Therefore, and in particular regard to the
victim’s murder, a jury could find Payne guilty of this murder (and in fact
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4
The conviction for aggravated assault was merged into the murder
conviction.
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did) even if he was not present in the victim’s bedroom at the time the
murder was committed, based upon his guilt as an accomplice. Any theory
of actual innocence pled by Payne in his motion for DNA testing, by
necessity, would have to establish that he was not present at all at the scene
of the crimes. Simply establishing that someone else may have committed
or did commit the actual crimes of which he was convicted, or that someone
else also may have been present during the commission of the crimes, would
not establish Payne’s actual innocence of guilt as an accomplice to these
crimes.
In his motion, Payne seeks DNA testing of a) brown head hairs, b) a
brown pubic hair, and c) specimens of human blood. Payne Petition,
6/14/12, at ¶ 10. Payne maintains these specimens were found on the
nightgown, bedsheet, and blanket of the victim and that DNA testing will
show these specimens came from a Caucasian, demonstrating this person
was in the victim’s bedroom. Id. at ¶¶ 11, 21. Finally, Payne contends
that since the assault upon the victim was extremely violent, the blood
samples will exclude Payne as the source of this blood and will result in the
identity of the victim’s killer. Id. at ¶¶ 23, 24. Upon these bases, Payne
asserts his actual innocence of the crimes committed. Even accepting as
true Payne’s assertion these specimens came from someone other than
Payne himself, this proof would not eliminate Payne from being present at
the crime scene, or eliminate him as an accomplice during the commission of
the crimes of which he was convicted. Under relevant law, Payne could be
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convicted of the underlying crimes without ever having entered the victim’s
bedroom.5 This is especially significant, as the Commonwealth’s theory of
the case was that Payne committed the crimes in concert with others. To
this end, the Commonwealth introduced into evidence the testimony of three
witnesses who testified that Payne confessed to his role in the criminal
enterprise. Further demonstrating his guilt, Payne admitted he contacted
one Commonwealth witness and attempted to influence her testimony in his
favor. It appears the jury returned a verdict of guilty based largely on this
circumstantial evidence. Therefore, I do not believe Payne’s motion for DNA
testing satisfied the threshold prima facie case that, assuming exculpatory
results, i.e., either the absence of Payne’s DNA or the presence of someone
else’s, the evidence would demonstrate Payne’s actual innocence of the
crimes of which he was convicted. Accordingly, Payne’s motion should have
been denied without further review. This determination would have made it
unnecessary for the court to proceed further and conduct its own review of
the record under 9543.1(d)(2).
Finally, in another regard I find the Majority’s legal analysis puzzling
and hard to follow. At one point, the Majority notes its agreement with the
Commonwealth and acknowledges this Court’s previous holdings to the
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5
The Majority acknowledges, Payne “might have been convicted of second-
degree murder as an accomplice to the underlying burglary even in the
absence of a conspiracy conviction.” Majority Opinion at 25. See
18 Pa.C.S.A. § 306(c) (defining accomplice liability).
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effect that the absence of an accused’s DNA evidence—by itself—cannot
satisfy § 9543.1(d)(2)(i)’s “actual innocence” standard. See Majority
Opinion at 18-21 (citing Commonwealth v. Heilman, 867 A.2d 542, 547
(Pa. Super. 2005); Smith, 889 A.2d at 586 (Pa. Super. 2005); and
Commonwealth v. Brooks, 875 A.2d 1141 (Pa. Super. 2005)). The
Majority announces, and I concur, that:
[T]o the extent that the Commonwealth asserts that the absence
of Payne’s DNA on the items to be tested would not, by itself,
establish a prima facie case that he is actually innocent, we
agree. Additionally, there are no circumstances in this case that,
in combination with the absence of Payne’s DNA in a specific
location, would demonstrate his actual innocence.
Majority Opinion at 22. However, despite acknowledging that the absence of
Payne’s DNA cannot demonstrate his actual innocence, the Majority
inexplicably forges ahead, accepting Payne’s “data bank theory” that
suggests the actual killer might be revealed by comparing DNA test results
with state and national databases. Id. I agree with the Commonwealth that
Payne’s data bank theory is insufficient for him to meet his burden.
Sections 9543.1(c)(3) and (d)(2) focus on the applicant’s actual
innocence—not some possible, speculative result that an unrelated third
party’s DNA, or even an accomplice’s DNA, might be found.
Ultimately, the Majority appears to rest its “someone-else’s-DNA-plus”
standard on the unsupported theory that DNA from one of the
Commonwealth’s witnesses could be identified by testing, thereby seriously
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undermining the Commonwealth’s case. See Majority Opinion at 27-28.
There is not a scintilla of evidence that supports the Majority’s speculation—
not even Payne’s petition. Instead, I would accept the Commonwealth’s
argument, which echoes the well-ensconced maxim that “the absence of
evidence is not evidence of absence.” See, e.g., Heilman, 867 A.2d at
546-47.6 As the Commonwealth aptly explained, where—as here—a person
is convicted of felony murder without the aid of any physical evidence linking
him to the crime, it is obvious the jury was not swayed by the absence of
physical evidence in the first instance. Commonwealth Resubmitted Brief at
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6
In Heilman, we explained:
On its face, the prima facie requirement set forth in
§ 9543.1(c)(3) and reinforced in § 9543.1(d)(2) requires an
appellant to demonstrate that favorable results of the requested
DNA testing “would establish” the appellant’s actual innocence of
the crime of conviction. Heilman has failed to make such a
demonstration, nor could he. In DNA as in other areas, an
absence of evidence is not evidence of absence. Furthermore, a
murder suspect may be convicted on wholly circumstantial
evidence, of which there was plenty in this case.
Id. (citation omitted) (emphasis in original). Even the PCRA court
recognized, “To put it plainly, if the jury had believed that there were three
intruders then the simple fact that none of the DNA matched [Payne] does
not preclude [Payne] from having been present. It is entirely possible,
through luck or concealment, that [Payne] left no DNA behind.” PCRA Court
Opinion in Support of Order, 5/22/13, at 9. Nevertheless, the PCRA court
later speculated, “A jury might indeed have placed more emphasis on the
weaknesses of [the] Commonwealth’s case if there were DNA evidence
introduced and it did not directly tie [Payne] to the murder scene.” PCRA
Court Rule 1925(a) Opinion, 8/14/13, at 12. This speculation clearly falls
short of the requirement in § 9543.1(c)(3) and § 9543.1(d)(2) that the
applicant demonstrate testing “would establish” his “actual innocence.”
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20. Therefore, it follows that “new” physical evidence augmenting the
dearth of incriminating physical evidence or, at best, implicating an
accomplice, is not ipso facto grounds to find prima facie evidence that Payne
is actually innocent of the crimes of which he was convicted.
In conclusion, I respectfully dissent from the Majority because I
believe Payne failed to set forth a prima facie case of actual innocence in his
motion for DNA testing. It also is my belief the Majority has ignored critical
provisions of the DNA testing statute and, further, has rewritten the
applicable standard of “actual innocence” under §9543.1 to a mere
preponderance of evidence based upon inapplicable federal habeas corpus
law and in disregard of our rules of statutory construction.
President Judge Gantman concurs in the result.
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