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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BENJAMIN CHAPMAN
Appellant No. 2286 EDA 2014
Appeal from the Order Dated May 29, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0804241-1993
BEFORE: STABILE, J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED APRIL 14, 2015
The Commonwealth appeals from the order of the Philadelphia County
Court of Common Pleas granting Benjamin Chapman’s motion for post-
conviction DNA testing. We affirm.
This Court summarized the facts as follows:
[T]he evidence adduced at this trial was that on May 26,
1993, Eunice Bell, a neighbor of the decedent, Carol Davis
[the “victim”], saw the [victim] and [Chapman], whom
she knew to have a steady relationship with the [victim],
walking together toward the area where the [victim’s]
body was discovered shortly thereafter. Celeste Brown, Ms.
Bell’s daughter, heard a hostile conversation between the
[victim] and [Chapman] shortly before she heard the shot
and found [victim’s] body in the alleyway. Finally, Enika
Davis, the decedent’s 16-year-old sister, testified that on
the night of the killing, [Chapman] came to their house,
that he was angry and spoke of killing someone, that he
took a gun out of his pants and threatened the [victim]
with it, that the [victim] said she was going to the store
and coming right back, that the [victim] and [Chapman]
left the house together going toward the area from where
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Enika Davis heard a gunshot and where [the victim] was
found dead shortly thereafter.
These three witnesses testified that they did not see
[Chapman] again after the shooting. Furthermore, the
[victim’s] father testified that although [Chapman] worked
for him, he also did not see [Chapman] again until after his
arrest some two months later.[1]
Commonwealth v. Chapman, 3981 Phila. 1994 (Pa.Super. filed Dec. 20,
1995) (quoting trial court opinion). In addition to the above-referenced
evidence, the victim’s neighbor, Oliver Turner, testified he saw Chapman and
the victim on the night of her murder at approximately 11:30 or 12:30.
N.T., 10/31/1994, at 106. However, he later saw the victim speaking with
another female neighbor; he did not see Chapman. Id. at 107. Further,
there was a sample of “fresh” type O blood collected from the crime scene.
Motion for Post-Conviction Collateral Relief, dated May 14, 2003, at Exh. 1-
B.2
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1
The victim’s father also testified that he spoke with Chapman on the
morning following the murder and asked: “Man, what’s up? Why did you
kill my daughter?” N.T., 10/31/1994, at 43.
2
Chapman maintains the type O blood sample did not match the victim’s
blood or his blood. Appellee’s Brief at 11, 14; Exh. G, H, I. His blood type is
type B. Appellant’s Brief at Exh. I. The Commonwealth merely states that
Chapman did not provide the victim’s blood type. Appellant’s Brief at 8.
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In 2013, this Court summarized the case’s procedural history on
appeal from the denial of Chapman’s fourth request for relief pursuant to the
Post Conviction Relief Act (“PCRA”)3:
On November 2, 1994, a jury found [Chapman] guilty of
murder of the first degree and possessing an instrument of
crime for the 1993 shooting death of his former girlfriend.
On the following day, the trial court sentenced him to a
term of life imprisonment and a consecutive two and one
half to five years’ imprisonment. This Court affirmed the
judgment of sentence on December 20, 1995.
Commonwealth v. Chapman, 3981 PHL 1994
(unpublished memorandum) (Pa. Super. Dec. 20, 1995).
[Chapman] did not file a petition for allowance of appeal in
the Pennsylvania Supreme Court.
[Chapman], on January 17, 1996, filed a pro se PCRA
petition, his first. The PCRA court appointed counsel, who
filed an amended petition. The PCRA court denied the
petition on June 3, 1997, without an evidentiary hearing.
This Court affirmed the dismissal of [Chapman’s] first
PCRA petition on December 7, 1998, and the Pennsylvania
Supreme Court denied allowance of appeal on April 7,
1999. Commonwealth v. Chapman, 2764 PHL 1997
(unpublished memorandum) (Pa. Super. Dec. 7, 1998),
appeal denied, 737 A.2d. 1223 (Pa. 1999). Thereafter,
[Chapman] filed a second pro se PCRA petition on March
29, 2000, which the PCRA court dismissed as untimely
filed. This Court affirmed, and the Pennsylvania Supreme
Court denied allowance of appeal. Commonwealth v.
Chapman, 1529 EDA 2001 (unpublished memorandum)
(Pa. Super. June 19, 2002), appeal denied, 814 A.2d 675
(Pa. 2002). [Chapman’s] third PCRA petition was filed pro
se on April 28, 2003, and dismissed by the court as
untimely on June 8, 2004. This Court affirmed, and the
Pennsylvania Supreme Court denied allowance of appeal.
Commonwealth v. Chapman, 1904 EDA 2004
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3
42 Pa.C.S. §§ 9541-9546, et. al.
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(unpublished memorandum) (Pa. Super. Feb. 11, 2005),
appeal denied 882 A.2d 1004 (Pa. 2005).
[Chapman], on May 3, 2010, filed the instant PCRA
petition pro se, his fourth, averring that he came into
possession of newly discovered, exculpatory evidence. The
PCRA court appointed counsel, who, on March 14, 2011,
filed an amended petition. The counseled petition
asserted, in relevant part, that: (1) [Chapman’s] newly
discovered evidence claim was not time barred; and (2) he
was entitled to DNA testing under 42 Pa.C.S. § 9543.1.
Following the filing of a motion to dismiss by the
Commonwealth, the court issued a Pa.R.Crim.P. 907(1)
notice of intent to dismiss on May 23, 2012, suggesting
that [Chapman’s] petition was untimely filed and that his
issues were previously litigated. Appellant filed a response
to the notice. The court, on July 2, 2012, dismissed the
petition. This timely appeal followed.
Commonwealth v. Chapman, 2103 EDA 2012, at 1-3 (Pa.Super. filed Nov.
8, 2013) (unpublished memorandum).
This Court affirmed the PCRA court’s denial of Chapman’s newly-
discovered evidence claim, but found the PCRA court erred in finding
Chapman’s request for DNA testing was previously litigated. Chapman,
2103 EDA 2012, at 4-10. We, therefore, remanded to the PCRA court for
consideration of Chapman’s request for post-conviction DNA testing.
On May 29, 2014, the PCRA court conducted a hearing and granted
Chapman’s request for DNA testing. The Commonwealth filed a timely
notice of appeal. Both the Commonwealth and the PCRA court complied with
Pennsylvania Rule of Appellate Procedure 1925.
The Commonwealth raises the following issue on appeal:
Did the lower court err in granting defendant’s motion for
post-conviction DNA testing where he failed to establish a
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reasonable possibility that such testing would produce
exculpatory evidence establishing his actual innocence?
Appellant’s Brief at 2.
This Court has set forth the following standard of review of orders for
post-conviction DNA testing:
Post-conviction DNA testing falls under the aegis of the
Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541–9546, and thus, “[o]ur standard of review permits
us to consider only whether the PCRA court’s
determination is supported by the evidence of record and
whether it is free from legal error.” Moreover, because the
resolution of this appeal involves statutory construction,
which involves a pure question of law, we review that
aspect of the trial court’s decision de novo and our scope
of review is plenary.
Commonwealth v. Conway, 14 A.3d 101, 108 (Pa. Super. 2011) (citations
omitted).
Pennsylvania’s post-conviction DNA testing statute states, in relevant
part:
(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;
...
(d) Order.--
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...
(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. § 9543.1.
The Commonwealth maintains the PCRA court erred because Chapman
failed to establish that DNA testing would produce exculpatory evidence
establishing actual innocence. Appellant’s Brief at 10-17. We disagree.
The “actual innocence” requirement of section 9543.1 “requires that an
appellant demonstrate that there is a ‘reasonable possibility,’ that ‘favorable
results of the requested DNA testing would establish the appellant’s actual
innocence of the crime of conviction.” Commonwealth v. Conway, 14
A.3d 101, 109 (Pa.Super.2011) (quoting Commonwealth v. Brooks, 875
A.2d 1141, 1147 (Pa.Super.2005)) (internal footnotes and emphasis
omitted). “[T]he newly discovered evidence must make it ‘more likely than
not that no reasonable juror would have found him guilty beyond a
reasonable doubt.’” Id. (quoting Schlup v. Delo, 513 U.S. 298, 327, 115
S.Ct. 851, 867, 130 L.Ed.2d 808, 836 (1995)). Therefore, we, as the
reviewing court, must “make a probabilistic determination about what
reasonable, properly instructed jurors would do” if presented with the new
evidence. Id. (quoting Schlup, 513 U.S. at 327). Further, courts must
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review the “actual innocence of the offense” element by “assuming
exculpatory results will be obtained from the proposed testing.” Conway,
14 A.3d at 110.
Relying on Commonwealth v. Smith, 889 A.2d 582 (Pa.Super.2005),
the Commonwealth maintains the lack of Chapman’s DNA at the crime scene
is too speculative to warrant DNA testing. Appellant’s Brief at 12-17. In
Smith, this Court found the trial court properly denied the defendant’s
request for DNA testing of the victim’s fingernails where the defendant
claimed the absence of his DNA from underneath the victim’s fingernails
would prove his innocence. The Court noted there was no evidence to
establish the victim scratched her assailant. It further noted that “[m]erely
detecting DNA from another individual on the victim’s fingernails, in the
absence of any evidence as to how and when that DNA was deposited, would
not exculpate appellant by pointing to a different assailant.” The Court
found: “The statute does not contemplate the speculative type of argument
advanced by appellant; rather it requires a prima facie case that the DNA
results, if exculpatory, would establish appellant’s actual innocence.”
In Conway, this Court discussed the holding in Smith, noting:
[T]he defendant [in Smith] had been convicted of killing
his paramour, and the Commonwealth, during the trial,
had produced evidence that established (1) that the
defendant had been apprehended a few hours after the
victim’s body was found, and his clothes and the knife he
was carrying “were stained with blood of the same type as
the victim,” (2) that the defendant and the victim had
been “involved in an abusive relationship,” (3) that the
defendant had made prior threats “to kill the victim,” and
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(4) that “[s]emen found on the victim’s leg matched that
of [the defendant],” even though he had denied having
sexual intercourse with the victim on the last night he said
he saw her. In light of this overwhelming evidence, this
Court held that the defendant’s post conviction request to
perform DNA testing of the victim’s fingernail clippings was
“entirely speculative” and did not constitute a “prima facie”
case warranting court-ordered DNA testing.
Conway, 14 A.3d at 110-11 (internal footnotes and citations omitted).
The Commonwealth also relies on the following footnote from Smith,
maintaining it defeats Appellant’s argument that the DNA results could be
compared with the national DNA databank:
Appellant attempts to distinguish [Commonwealth v.
Heilman, 867 A.2d 542 (Pa.Super.2005)][4] by arguing
that he seeks to compare the DNA profile that may be
detected on the victim’s fingernails with state and national
DNA databases to identify the victim’s killer. Far from
distinguishing Heilman, this argument only adds yet
another layer of speculation to appellant’s already
speculative rationale for DNA testing.
Smith, 889 A.2d at 586 n. 6.
In Conway, this Court clarified the Smith footnote. Conway, 14
A.3d at 111 (citing Smith, 889 A.2d at 586 n. 6). We explained that this
footnote did not establish a broad principle that a defendant could never
seek a comparison to the DNA databank and we found the footnote’s impact
was confined to the facts of Smith. Id. at 112. The court in Conway
noted:
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4
In Heilman, this Court found the defendant failed to establish a prima
facie case of actual innocence where he argued the absence of his DNA at
the crime scene would exonerate him of the homicide.
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The question that we must here confront is whether, in
this situation, the Pennsylvania DNA testing statute should
be interpreted in such a way as to prevent the comparison
of easily obtainable test results with known data banks for
the purpose of determining the person responsible for the
crime in question. To pose the question is to provide the
answer, for in this evolving world of increased DNA data
collections, and the increased reliance thereon by law
enforcement agencies, we should not summarily preclude
defense counsel from using the data compiled in those
“banks” to argue, in appropriate cases, that such evidence
establishes the innocence of a person who has been
charged or convicted of a crime. This is especially so since
the Act specifically provides for the proactive use of this
information by the Commonwealth in an effort to find and
prosecute persons whose identities are revealed by this
information. Moreover, the stated policy of the General
Assembly, as provided in the statute that created the
Pennsylvania DNA data bank, and authorized its
cooperative use with other law enforcement data banks,
compels such a result. It provides, inter alia:
DNA banks are an important tool in criminal
investigations, in the exclusion of individuals who are
the subject of criminal investigations or
prosecutions[.]
44 Pa.C.S. § 2302(1) (emphasis supplied). Thus, this
proactive use of available information that is already within
the control of the Commonwealth is encouraged and even
mandated by the General Assembly.
To this end, the DNA testing statute, which was passed
unanimously by the Pennsylvania General Assembly,
should be regarded as a remedial statute and interpreted
liberally in favor of the class of citizens who were intended
to directly benefit therefrom, namely, those wrongly
convicted of a crime. Such an interpretation is clearly
supported by the legislative history of the Act, which
contains the following explicit statement of intent as
provided by one of the sponsors of the Act, the esteemed
Senator Stewart J. Greenleaf:
This legislation would provide [DNA] testing and
provide a payment process for it and a process in
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which an individual could easily present their case,
and a judge could then decide whether they would
be allowed to have the testing or not, and they
would be allowed to have it if the evidence would
prove their innocence[.]
***
[T]here are occasions when DNA can convincingly
establish the innocence of an individual. And so we
will now join 13 other States in this nation that will
provide for this process and to make sure that we do
not have anyone in our prisons or on death row who
is innocent.
Commonwealth of Pennsylvania Legislative Journal, June
19, 2001, pp. 745–746 (emphasis supplied). Thus, while it
is certainly true that the General Assembly, in enacting the
DNA testing statute, did not intend to encourage “fishing
expeditions” or the needless expenditure of
Commonwealth funds to pursue frivolous claims of
innocence, it did seek to ensure the most fundamental
principle of American jurisprudence, namely, that an
innocent man not be punished for the crimes of another.
Conway, 14 A.3d at 113-114 (emphasis deleted).
In Smith, it was unclear whether there was any DNA to test and there
was direct evidence of the defendant’s guilt. Here, in contrast, there was no
direct evidence linking Chapman to the crime. Additionally, there was
“fresh” blood at the crime scene location that Chapman maintains did not
belong to him or the victim. The Commonwealth does not dispute this. 5
However, it is unlikely that someone not involved in the altercation with the
victim would have left “fresh” blood at the crime scene, and testing the type
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5
Our review of the record does not reveal whether it is the victim’s blood.
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O blood stain to determine whether the blood was from the victim or
whether it matches an individual in the DNA database could reveal evidence
that could have a significant effect on the conclusion of a reasonable,
properly instructed juror. See Conway, 14 A.3d at 109. Therefore, under
our standard of review, we find the PCRA court did not err in ordering DNA
testing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/14/2015
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