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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: JOHN MARSHALL PAYNE, III IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: COMMONWEALTH OF
PENNSYLVANIA
No. 1113 MDA 2013
Appeal from the Order Entered May 22, 2013
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-MD-1000291-1986
BEFORE: BENDER, P.J.E., BOWES, J. and PANELLA, J.
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 03, 2014
This case involves a Commonwealth appeal from the PCRA1
order granting a request filed by Appellee, John Marshall Payne, III, for DNA
testing pursuant to 42 Pa.C.S. § 9543.1. The Commonwealth contends that
the court erred, as a matter of law, in determining that such testing would
innocence. After careful review, we affirm on the basis set forth in the PCRA
On August 22, 1986, Appellee was found guilty of second-degree
murder, aggravated assault, burglary, and conspiracy. A brief summary of
the facts are in order: On December 17, 1981, the 90 year-old victim in this
case, Elsie Rishel, was found dead by family members. The victim had died
in her bed as a result of blunt force trauma to the head. There was evidence
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1
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541 9546.
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found at the scene that was consistent with a break-in and robbery.
However, no physical evidence directly tied Appellee to the crime.
Fingerprints were recovered from the scene, but none matched Appellee or
those alleged to be his co-
was premised on the testimony of several Commonwealth witnesses that
Appellee made inculpatory statements to them concerning the murder.
was consistent in broad strokes,2 there were significant details that varied
among the witnesses.3 There were also credibility problems with each of
these key Commonwealth witnesses. Nevertheless, based on their
testimony, a jury convicted Appellee of the above-mentioned offenses. On
March 23, 1987, the trial court sentenced Appellee to a mandatory term of
life in prison.
On June 14, 2012, Appellee filed a pro se PCRA petition seeking DNA
testing pursuant to 42 Pa.C.S. § 9543.1. The PCRA court appointed counsel
to represent him, and a hearing was held on the matter on February 19,
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2
Their testimony was consistent in that they claimed that Appellee had
stated that he was accompanied by two others during the home invasion,
and that the victi
3
culpability in the murder itself and with respect to the identity of his co-
conspirators.
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testing. The Commonwealth filed a timely notice of appeal and complied
complained of on appeal. The PCRA court then issued its Rule 1925(a)
opinion on August 15, 2013. The Commonwealth now presents the following
question for our review:
Whether the court below erred as a matter of law in determining
that DNA testing would produce exculpatory evidence that would
ion omitted).
court's determination is supported by the evidence of record and whether it
is free from legal Commonwealth v. Conway, 14 A.3d 101, 108
applicable statutes and relevant case law, we concl
Id. Accordingly, we adopt
-reasoned Rule 1925(a) opinion as our own and affirm
on that basis. Nevertheless, a bit of clarification is in order.
factors that weighed against granting that request. The circumstances of
the crime at issue suggest that if testing of physical evidence collected from
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C
4
The appropriate
likely than not that no reasonable juror would have found him guilty beyond
Conway, 14 A.3d at 109 (quoting Schlup v. Delo,
513 U.S. 298, 327 (1995)). Furthermore, the governing statute directs our
courts to assume that the results from the proposed DNA testing are
exculpatory when considering the impact of such results on a reasonable
juror. 42 Pa.C.S. § 9543.1(c)(3)(ii). In other words, a court must consider
the best case scenario for the petitioner from the proposed DNA testing and
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4
Indeed, it is unlikely that DNA evidence could ever
the case of an alleged rape, discovering DNA other than that of the accused
innocen
affirmatively prove innocence. This is because the presence of someone
nces unrelated to the rape itself.
Ultimately, DNA evidence serves only to support or undermine the theories
of the prosecution, or the defense, and the credibility of evidence, physical,
testimonial, or circumstantial, supporting those theories.
Nevertheless, no one can seriously doubt the applicability of the DNA
statute where the petitioner was convicted of committing a forcible rape
after asserting a wrongful identification defense, even if the foreign DNA
discovered in a rape kit could not literally prove his innocence. It is enough
that such evidence would likely change the mind of a reasonable juror who
would otherwise have found him guilty.
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consider whether that result, if available to a jury, would make it more likely
than not that no reasonable juror would have found him guilty.
In this case, the PCRA court determined that such a result was
possible and, therefore, that it was appropriate to order DNA testing. The
crux of
the end of the day, were rejected by the PCRA court. First, the
Commonwealth appears to contend that exculpatory evidence is not
attainable in this case. That argument, however, is dependent on a
likely than not that no reasonable juror would have found him guilty beyond
Conway, supra.
that it convinced them of [Appelle
and foremost, it is illogical bootstrapping. Every petitioner seeking relief
under the DNA statute had a jury (or judge) determine that they were guilty
beyond a reasonable doubt. That fact has absolutely no bearing on the
question of whether, presented with new evidence, a reasonable juror would
have concluded differently.
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ilt
conviction was based upon the testimony of witnesses who did not observe
the crime in question. Instead, these witnesses purportedly heard Appellee
make inculpatory statements. While such evidence is sufficient to support
evidence of his guilt. Although there was physical evidence collected at the
scene of the crime, none of that evidence served to link Appellee to the
witnesses, but for the following.
The Commonwealth suggests that what makes the witnesses
testimony particularly compelling is the fact that Appellee purportedly
acknowledged the use of the phone as the murder weapon in the
had not been made public at the time Appellee purportedly made his
inculpatory statements. However, the trial court notes that evidence was
presented to support the theory that the witnesses learned of that detail
from an investigating officer prior to giving their statements, rather than
from conversations with Appellee. Furthermore, although there was
wounds were consistent with having been beaten
with the phone, there was no testimony or evidence demonstrating that the
blood or tissue on the phone.
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Given the fact that the Com
testimony of witnesses who were not even witnesses to the crime itself,
there is a reasonable probability that certain DNA evidence, unavailable at
the time of trial, could have altered the credibility assessment made by a
reasonable juror. Although the PCRA court does not elaborate on what such
a result would look like, we have no trouble imagining such a scenario. For
discovered among the physical evidence to be tested, such a result would
preexisting credibly problems. It would also explain their familiarity with the
likely murder weapon and demonstrate a motive to inculpate Appellee. In a
case where the evidence was not overwhelming, such a result could have
had a significant effect in changing the mind of a reasonable juror with
regard to whether the Commonwealth met its burden in demonstrating
t beyond a reasonable doubt.
The question for the PCRA court was not whether attaining favorable
DNA results for Appellee is a likely result of testing. The question was
that no reasonable juror would have found him guilty beyond a reasonable
Conway, supra. The PCRA court determined that Appellee met
this burden, and we ascertain that its conclusion is both supported by the
evidence of record and free of legal error.
Order affirmed.
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Judge Panella joins the memorandum.
Judge Bowes files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/3/2014
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