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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: JOHN MARSHALL PAYNE, III IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
APPEAL OF: COMMONWEALTH OF
PENNSYLVANIA
No. 1113 MDA 2013
Appeal from the Order Entered May 22, 2013
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-MD-1000291-1986
BEFORE: BENDER, P.J.E., BOWES, AND PANELLA, JJ.
DISSENTING MEMORANDUM BY BOWES, J.: FILED OCTOBER 03, 2014
application for DNA testing pursuant to 42 Pa.C.S § 9543.1, I respectfully
dissent.
The majority sufficiently stated the facts, procedural history, and the
applicable standard of review. Accordingly, I do not revisit those items
herein. I would note, however, that a jury convicted Appellee based
primarily upon the testimony of three witnesses who stated that Appellee
informed them that he was present during the murder of ninety-year-old
Elsie Rishel. Deborah Wallick testified that Appellee told her that he watched
two male accomplices beat Ms. Rishel with a telephone. N.T., 8/18/86 (Vol
II), at 481, 488. However, Sonny Olgesby and Chris Gibson both testified
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that Appellee confessed to them separately that he killed Ms. Rishel. Id. at
525, 546-48. The Commonwealth also elicited evidence from Appellee that
he contacted Ms. Wallick four days before the trial and attempted to
influence her testimony in his favor. Id. at 631-33.
murder that Appellee allegedly provided to the three witnesses varied, and
edibility. For example,
Ms. Wallick had a prior conviction for hindering prosecution in an unrelated
case, and Olgesby and Gibson both received plea deals in unrelated cases in
return for their testimony against Appellee. Id. at 489-90, 520-21, 550-51.1
Based upon this evidence, the jury convicted Appellee of felony murder,
aggravated assault, burglary, and criminal conspiracy.
Appellee filed a petition to test the telephone that is believed to be the
murder weapon for exculpatory DNA evidence. In relevant part, the statute
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1
The trial court found that Appellee presented evidence to imply that
Olgesby and Gibson discussed the specifics of his case before Gibson
at 7. The extent of that testimony was that Mr. Gibson could have
the Friday prior to the start of trial and that the next day, Gibson and
Olgesby had a secretive conversation about an unknown topic while walking
a
confession as early as January 1986. Id. at 540-541.
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governing post-conviction DNA testing of specific evidence provides as
follows:
(c) Requirements. In any motion under subsection (a)
[regarding forensic DNA testing], under penalty of perjury, the
applicant shall:
(1) (i) specify the evidence to be tested;
....
(2) (i) assert the applicant's actual innocence of the offense
for which the applicant was convicted; and
(3) present a prima facie case demonstrating that the:
(i) identity of or the participation in the crime by the
perpetrator was at issue in the proceedings that resulted in
the applicant's conviction and sentencing; and
(ii) DNA testing of the specific evidence, assuming
exculpatory results, would establish:
(A) the applicant's actual innocence of the offense for
which the applicant was convicted;
....
(d) Order.
....
(2) The court shall not order the testing requested . . . if,
after review of the record of the applicant's trial, the court
determines that there is no reasonable possibility that the
testing would produce exculpatory evidence that:
(i) would establish the applicant's actual innocence of the
offense for which the applicant was convicted[.]
42 Pa.C.S. § 9543.1.
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Thus, in order to prevail on an application for DNA testing, as a
threshold matter, Appellee must adduce prima facie evidence that, assuming
exculpatory results, the evidence would demonstrate his actual innocence of
the offense for which he was convicted. In Commonwealth v. Conway, 14
A.3d 101, 109 (Pa.Super. 2011) (quoting Schlup v. Delo, 513 U.S. 298,
327 (1995)), we explained that actual innocence in this context and in the
not that no reasonable juror would have found him guilty beyond a
Id.
(quoting Schlup, supra at 329).
Unlike the trial court and by implication the majority, who affirms on
evidence was so fragile that it could not withstand new exculpatory evidence
that confirmed that DNA from someone else was discovered on the
against Appellee was based entirely on circumstantial evidence, three
witness testified that Appellee confessed about his role in the criminal
conspiracy. Moreover, as a further demonstration of guilt, Appellee admitted
that he contacted one Commonwealth witness and attempted to influence
her testimony in his favor. Thus, in contrast to the trial court, I do not
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believ
requirement of producing a prima facie case that, assuming the exculpatory
results of the DNA testing, i.e., the absence of his DNA or the presence of
someone else, the evidence would demonstrate his actual innocence of
felony murder. Accordingly, I would reverse the order granting the
requested relief.
was
legal error. In the concomitant opinion supporting the May 22, 2013 order
granting relief, after discussing the appropriate legal standards and the
circumstances militating for and against granting DNA testing, the trial court
determine the identity of the other assailants. Trial Court Opinion, 5/22/13
at 12. The trial court conceded that this unintended use of DNA testing
nevertheless admonished the Commonwealth for opposing an application of
the statute that would bring the additional conspirators to justice. Id. at 13.
ruling in favor of testing it might be inadvertently aiding other perpetrators
Id. at 13.
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trial court authored a Rule 1925(a) opinion, which indicated, in pertinent
part, that its prior comment was merely hyperbole. The trial court
explained,
too carless with language. At the time of drafting, the Court
believed it was obvious that the best reason for taking action is
not synonymous with the legally correct reason for that same
action.
Rule 1925(a) Opinion, 8/15/13, at 14-15. Thus, the trial court maintained
that the error was harmless.
While the majority declines to address this aspect of the
ex post facto explanation of its positon as
semantic flair rendered the error harmless. Although it is beyond argument
that the trial court set forth the statutory framework outlined in § 9543.1(c)
and (d), and endeavored to apply relevant provisions appropriately, it is
apparent to me that the court
DNA testing in this case infiltrated its legal analysis and affected its
decisions. Indeed, immediately prior to ascribing its statement to hyperbole
in the Rule 1925(a) opinion, the court repeated the statement regarding the
suggested misapplication of the DNA testing provisions verbatim in the
portion of the Rule 1925(a) opinion that addressed the merits
petition. Moreover, the trial court was either unable or unwilling to explain
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its admonition of the Commonwealth for exercising its right to appeal the
apparent that the trial court failed to disentangle the two distinct objectives
that it proposed for the DNA testing. As the trial court was occupied with
the tangential benefit that DNA testing would have in this case, no matter
how well-
improper, and I believe that the consideration tainted its decision to grant
relief.
misinterpretation of the
however, the majority and the Commonwealth invoke the identical definition
of actual innocence and cite the same legal authority for their shared
positon, i.e., Conway, supra
discovered evidence must make it more likely than not that no reasonable
definition of actual innocence is unpersuasive.
argument, that assuming the DNA test produces exculpatory evidence, such
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as the identification of a perpetrator other than Appellee, simply echoes the
well-ensconced maxim that the absence of evidence is not evidence of
absence. Thus, as the Commonwealth cogently explained, where, as here, a
person is convicted of felony murder for his role in a criminal conspiracy
without the aid of any physical evidence linking him to the crime, it is
obvious that the jury was not swayed by the absence of physical evidence in
augments the dearth of incriminating physical evidence or, at best,
implicates a co-conspirator, is not ipso facto grounds to find that it is more
likely than not that no reasonable juror with knowledge of the new evidence
would convict the defendant.
Finally, I am not convince
witnesses actually participated in the burglary and murder. The majority
credibility above and beyond their preexisting credibility problems. It would
also explain their familiarity with the likely murder weapon and demonstrate
theory is unpersuasive for at least two reasons. First, the proposed scenario
is unmitigated speculation, and exactly nothing in the certified record
supports the suggestion, much less the possibility, that any of the
extended
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that the potential identification and implication of one of the three
incriminating witnesses under this imaginative setup leaves two remaining
witnesses whose incriminating testimony is unaffected. Ultimately, I believe
that even under this best-case scenario advanced by the majority, the trial
court still could not reasonably find that properly-instructed jurors would
acquit Appellee if presented with the new evidence. Accordingly, for all of
the foregoing reasons, I respectfully dissent.
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