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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CHARLES M. ADAMS,
Appellant No. 809 WDA 2015
Appeal from the Order Entered May 11, 2015
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000048-1982
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 15, 2016
Appellant, Charles M. Adams, appeals from the order of the Court of
Common Pleas of Fayette County denying his motion for post-conviction DNA
testing filed pursuant to section 9543.1 of the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
On direct appeal, this Court summarized the underlying facts of the
case as follows:
On January 6, 1982, [Appellant] went to a hardware store in
Hopwood to purchase an O-ring which he needed to fix a leaky
spigot in his home. He purchased the O-ring, drove home and
attempted to fix the faucet. When his wife complained that the
faucet still leaked, [Appellant] removed the spigot and drove
back to the hardware store. There he proceeded to stab Harry
Frankhouser 29 times, causing his death. [Appellant] then
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*
Former Justice specially assigned to the Superior Court.
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dragged the body of the deceased man to the back room. As he
returned to the front of the store, Joseph Keffer entered the
front door. Keffer and [Appellant] remained in the store until
the police arrived.
Commonwealth v. Adams, 1632 Pgh 1984, 503 A.2d 453 (Pa. Super. filed
September 13, 1985) (unpublished memorandum at 3).
Appellant was charged with criminal homicide and criminal attempt-
robbery. On October 19, 1983, a jury convicted Appellant of first-degree
murder and attempted robbery. On November 26, 1984, the trial court
sentenced Appellant to serve a mandatory term of life imprisonment on the
first-degree murder conviction and a consecutive term of incarceration of
five to ten years on the attempted-robbery conviction. This Court affirmed
Appellant’s judgment of sentence on September 13, 1985, and the
Pennsylvania Supreme Court denied Appellant’s petition for allowance of
appeal on May 4, 1987. Commonwealth v. Adams, 503 A.2d 453 (Pa.
Super. 1985), appeal denied, 527 A.2d 534 (Pa. 1987).
The PCRA court summarized the subsequent procedural history as
follows:
[Appellant] filed his first [petition for post-conviction relief]
on February 21, 1985 which was dismissed [because of] the fact
it was premature due to his pending appeal. On April 18, 2005,
[Appellant] filed a pro se Motion for DNA testing under 42
Pa.C.S.A. [§ 9543.1(a)]. On August 9, 2005 the motion was
granted. On July 28, 2006, [counsel] was appointed to
represent [Appellant] in his Petition for DNA testing and all
subsequent matters stemming from it. On August 3, 2006 this
[c]ourt ordered the Commonwealth to send all clothing items to
the Pennsylvania State Police Crime Laboratory for DNA
evaluation and testing. On January 4, 2007, [Appellant] was
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required to submit to blood samples and testing for DNA
analysis. The State Police lab report [received in May of 2007]
indicated that additional “alleles” not consistent with the DNA
profiles of [Appellant] or the victim were present on the victim’s
navy blue sock.
PCRA Court Opinion, 4/12/10, at 2.
On July 2, 2007, Appellant filed a PCRA petition seeking relief on the
basis of newly discovered evidence. Subsequently, Appellant filed two
amended PCRA petitions. After multiple delays, the PCRA court held an
extensive evidentiary hearing on December 18, 2009, at which both
Appellant and the Commonwealth presented expert testimony. On April 12,
2010, the PCRA court entered an order denying relief.
Appellant brought an appeal to this Court, which affirmed the decision
of the PCRA court on December 17, 2010. L.C. v. Adams, 23 A.3d 586 (Pa.
Super. 2010). Subsequently, the Pennsylvania Supreme Court denied
Appellant’s petition for allowance of appeal on May 12, 2011.
Commonwealth v. Adams, 22 A.3d 1033 (PA. 2011).
On March 19, 2015, Appellant filed with the PCRA court the instant
“motion for post conviction DNA testing.” In an order dated March 30, 2015,
the PCRA court directed the Commonwealth to file a response to Appellant’s
motion within thirty days. The Commonwealth failed to file a response as
directed. Thereafter, on May 11, 2015, the PCRA court entered an order
denying Appellant’s request for post-conviction DNA testing. This timely
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appeal followed.1 Both Appellant and the trial court have complied with
Pa.R.A.P. 1925.2
I. THE PCRA COURT ERRED WHEN IT FAILED TO ISSUE AN ORDER
TO HAVE THE VICTIMS BI-FOCALS, A CHROME PIPE, A BLOOD
STAINED CARDBOARD BOX, A YELLOW 15 QUART DISH PAN, A
BROWN LEATHER BELT SHEATH THAT WERE SOAKED WITH
BLOOD, THAT WERE NEVER TESTED FOR DNA, BUT WERE
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1
An order granting or denying a motion for DNA testing disposes of all
claims raised by all parties to the litigation and, therefore, is a final order.
Commonwealth v. Scarborough, 64 A.3d 602, 609 (Pa. 2013).
2
In its Pa.R.A.P. 1925(a) filing, the trial court observed the following:
On [May 21, 2015], the [trial c]ourt issued a 1925(b) order,
directing [Appellant] to file a statement of errors complained of
on appeal within twenty-one (21) days.
On June 17, 2015, [Appellant] filed his Statement of
Matters Complained on Appeal. [Appellant’s] Certificate of
Service attests that he mailed the statement to all parties on
June 9, 2015. However, the envelope (attached) received by the
[trial c]ourt is postmarked June 15, 2015, appearing to be four
days past the June 11, 2015 deadline to file. Failure to file a
concise statement within the 21-day time limit set forth in Rule
1925(b)(2) will result in waiver of all issues not raised by that
date. Commonwealth v. Gravely, 970 A.2d 1137, 1145 (Pa.
2009).
We do recognize that under the prisoner mailbox rule, a
petition is considered “filed” by a prisoner on the date it is
deposited with prison authorities for mailing, not postmarked.
Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa. Super.
2000).
Statement in Lieu of Opinion, 6/19/15, at 1-2. Thus, it appears the PCRA
court accepted Appellant’s assertion that he filed his Pa.R.A.P. 1925(b)
statement on June 9, 2015, applied the prisoner mailbox rule, and
considered the filing to be timely. Therefore, because the trial court
accepted Appellant’s filing as being timely, we will do likewise.
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PRESENTED AT APPELLANT’S TRIAL IN 1983, WHICH WOULD
RESULT IN NEWLY DISCOVERED EVIDENCE PROVING
APPELLANT’S INNOCENCE.
II. THE PCRA COURT ERRED WHEN IT RULED THAT DEFENDANT
NOW ADVANCES THE EXACT SAME ARGUMENT HE DID AT HIS
PCRA HEARING IN 2009, THAT AN UNKNOWN THIRD PARTY DNA
PROFILE PROVES HIS INNOCENCE, WHEN IN FACT, DEFENDANT
REQUESTED THAT A NATIONWIDE CODIS SEARCH BE
CONDUCTED IN HIS CURRENT REQUEST FOR DNA TESTING,
SINCE THE COMMONWEALTH ONLY DID A CODIS SEARCH FOR
WESTERN PENNSYLVANIA.
Appellant’s Brief at 3.3
This Court has set forth the following standard of review of orders for
post-conviction DNA testing:4
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.”
Commonwealth v. Conway, 14 A.3d 101, 108 (Pa. Super. 2011) (citations
omitted). Great deference is granted to the findings of the PCRA court, and
these findings will not be disturbed unless they have no support in the
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3
We note with disapproval the fact that the Commonwealth has failed to file
an appellee’s brief in this matter in addition to failing to comply with the
PCRA court’s directive to file a response to Appellant’s most recent motion
for DNA testing.
4
We observe that motions for post-conviction DNA testing, while considered
post-conviction petitions under the PCRA, are “separate and distinct” from
claims pursuant to other sections of the PCRA; thus, the one-year time bar
does not apply to them. Commonwealth v. Perry, 959 A.2d 932, 938 (Pa.
Super. 2008).
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certified record. Commonwealth v. Watson, 927 A.2d 274, 277 (Pa.
Super. 2007). Moreover, when reviewing an order denying a motion for
post-conviction DNA testing, this Court determines whether the movant
satisfied the statutory requirements of Section 9543.1. Commonwealth v.
Brooks, 875 A.2d 1141, 1147-1148 (Pa. Super. 2005). It is an appellant’s
burden to persuade us that the PCRA court erred and relief is due.
Commonwealth v. Wrecks, 931 A.2d 717, 722 (Pa. Super. 2007).
As a prefatory matter, we observe the following. A movant should
make a request for post-conviction DNA testing in a motion, not in a PCRA
petition. Commonwealth v. Young, 873 A.2d 720, 724 n.2 (Pa. Super.
2005). A request for post-conviction DNA testing is not a direct exception to
the one-year time limit for filing a PCRA petition. Commonwealth v.
Weeks, 831 A.2d 1194, 1196 (Pa. Super. 2003). Such a request, however,
allows a convicted person “to first obtain DNA testing which could then be
used within a PCRA petition to establish new facts in order to satisfy the
requirements of an exception under 42 Pa.C.S.A. § 9545(b)(2).” Id.
(citations omitted). Moreover, Section 9543.1 does not grant movants a
right to counsel. Brooks, 875 A.2d at 1147.
Pennsylvania’s post-conviction DNA testing statute provides, in part,
as follows:
(a) Motion.--
(1) An individual convicted of a criminal offense in a
court of this Commonwealth and serving a term of
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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 forensic DNA
testing on specific evidence that is related to the
investigation or prosecution that resulted in the judgment of
conviction.
(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
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.
***
(c) Requirements.--In any motion under subsection (a), under
penalty of perjury, the applicant shall:
***
(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;
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***
(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
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. § 9543.1.
Before turning to Appellant’s argument, we note the following legal
principles. A motion for DNA testing must allege a prima facie case that the
requested testing, assuming favorable results, would establish the movant’s
actual innocence. Commonwealth v. Smith, 889 A.2d 582, 583 (Pa.
Super. 2005). If, after reviewing the record, the trial court determines there
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is no reasonable probability that the testing would produce exculpatory
results establishing the movant’s actual innocence, the court shall deny the
motion. Id.
In his first issue, Appellant asserts that various items from the crime
scene should either be retested or tested for the first time. Appellant’s Brief
at 6-9. Appellant assumedly believes that his DNA is missing from various
items present at the scene and that DNA from additional unknown persons
might be found on various items offered into evidence. Ignoring the fact
that previous DNA testing was damaging to his argument, Appellant expects
that new results will somehow prove that he is innocent of the crime.
Our review of the certified record reflects the following discussion
offered by the PCRA court in its order denying Appellant’s most recent
request for DNA testing of items presented into evidence at Appellant’s trial:
[Appellant] previously requested and obtained DNA-testing in
2005-2007. This [c]ourt then held a hearing on the findings and
denied [Appellant’s] PCRA in 2009-2010. In denying
[Appellant’s] PCRA, we explicitly addressed why an unidentified
DNA profile on the victim’s sock does not exonerate [Appellant].
(PCRA Ct. Op., April 12, 2010). . . .
[Appellant] again seeks testing of additional evidence, as
further specified in his Motion. As reasoning for more testing,
[Appellant] maintains that improvements in technology will
vindicate him and find the owner of the third DNA profile, “who
is actually the murderer.” (Def.’s Mot. ¶ 23-24). Notably,
[Appellant] now advances the exact same argument that he did
at his PCRA hearing in 2009, that an unknown third-party DNA
profile proves his innocence. The Court already ruled on this
issue in the 2010 PCRA Opinion and found that this argument in
no way proves [Appellant’s] prima facie case of innocence. . . .
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Order, 5/11/15, at 2.
Our further review of the record reflects the following thorough
analysis offered by the PCRA court in support of its decision to deny
Appellant’s previous PCRA petition based upon after-discovered evidence
once DNA testing had been conducted:
In this particular case, the new DNA technology[,] which was
unavailable at the time [Appellant] was convicted, allows this
petition to be filed over twenty years after the date of
[Appellant’s] judgment [of sentence]. DNA testing was not
widely accepted in Pennsylvania until 1994, when the
Pennsylvania Supreme Court first held that evidence of DNA
testing was admissible in a criminal trial, after finding that such
testing had become routine and fully accepted in the scientific
community. See Commonwealth v. Crews, 536 Pa. 508, 640
A.2d 395, 403 (Pa. 1994).
***
[The PCRA] statute requires the petitioner to present a prima
facie case that the DNA testing produced exculpatory results that
establishes the petitioner’s actual innocence.
***
The major issue in this case concerns a minor allele found
on [the victim’s] navy blue sock identified as Q16 in evidence
that is inconsistent with [Appellant’s] and [the victim’s] DNA.
[Appellant] avers that the minor allele[] found on [the victim’s]
sock reveals the presence of a third unidentified person’s DNA,
which is exculpatory evidence.
[Appellant] has the burden to show that this exculpatory
evidence establishes his “actual innocence.” . . . In fact, the
new DNA results may have done the opposite.
The Commonwealth agrees with [Appellant] that there is
an additional minor allele found on the victim’s sock which is
inconsistent with [Appellant’s] or [the victim’s] DNA. However,
the Commonwealth pointed out at the hearing that those minor
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alleles could be obtained in many ways and could be from
countless individuals that touched the sock at issue during the
course of investigation. Protocol back in the 1980’s when this
crime occurred did not require anyone at the crime scene to
wear gloves and as such both defense and prosecution expert
witnesses agreed that the source for the minor allele could not
be determined and might have been from anyone from a police
officer, detectives, the coroner, or even [the victim’s] wife.
However, at the [PCRA] hearing, both experts agreed that
[Appellant’s] DNA matched the major component of the stain
obtained from the victim’s sock. [Appellant’s] DNA was also
found in numerous blood patterns as testified to [at the PCRA
hearing] by [Commonwealth expert witness] Sarah Kinner
(hereinafter “Kinner”). Kinner explained the difference between
passive and transfer stains stating, “passive drops/bleeding are
bloodstains that are created by the force of gravity acting alone.
So if you are just standing there bleeding, it is just gravity acting
on it, they are just going down.” (PCRA t. p. 83). On the other
hand, a transfer bloodstain, “is when a bloody object comes in
contact with a clean object and blood is left behind. If you think
of it, it is kind of like if you had a stamp with ink on it and you
sat it down on the surface and removed it, the stamp would be
left behind, the image of whatever it was.” (Id.)
Kinner further testified that among other stains:
“A transfer/contact stain was identified on the front
lower left pant leg of [the victim] . . . The DNA
from the transfer contact stain on the front lower left
pant leg and the rounded stain on the back of the
pants reportedly matched [Appellant].” (Id. at 95.)
Moreover, the transfer stains on the shovel handle were
reportedly consistent with [Appellant’s] DNA as well as transfer
contact stains that were found on the handle and blade of the
knife and the cash register handle. [Appellant] testified at trial
he had never touched any of the enumerated objects on which
transfer stains with his DNA were found. That appears to be
demonstrably untrue due to the new DNA results. (Id. at 96).
Further, Kinner testified that:
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“A rounded drop of blood reportedly matching
[Appellant’s] on the back of [the victim’s] pants
cannot have been deposited while [the victim] lay in
his final resting position.”
When asked by counsel why it was significant that [Appellant’s]
DNA was found on that particular location, Kinner explained:
“The location of that stain on his pants, if he was
laying-from the picture that I have of him laying
there, that portion of his pants was not even
exposed if somebody had just been standing near
him and dripping down on him. He had to have been
manipulated in some way for that stain to be
deposited.” (Id. at 98).
While [Appellant] has continuously asserted his innocence,
this additional expert testimony is far more inculpatory of
[Appellant] than the single small minor allele is exculpatory.
Kinner stated that [the victim’s] “body would have had to have
been in a different position in order for that stain to be placed
there.” Id. at 106. While [Appellant] admits to walking around
the victim in the back room, he has never admitted to even
touching the victim’s body, much less turning him over.
Similar to the victim’s pant leg, Kinner testified that the
blood on the front of the shovel blade was consistent with
[Appellant’s] DNA. This stain however was found face down in
the photographs she saw of the crime scene. Kinner stated “so
if it is face down like this against the floor with these drips, i[f]
you are standing over the shovel, you can’t deposit those stains
in that position as it is photographed[.]” (Id. at 9[9]).
Therefore, the shovel must have been moved after [Appellant’s]
blood dropped onto it. [Appellant’s] trial testimony as to what
occurred that day is completely inconsistent with the new DNA
evidence.
While [Appellant] claims this new evidence is exculpatory,
the [court] finds that it supports [Appellant’s] conviction. The
DNA evidence substantiates [Appellant’s] blood was not simply
passive[ly] dripped as he moved around the scene. Rather,
[Appellant’s] DNA was the major component of the transfer
stains found on the victim’s sock as well as his pant leg and
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numerous other objects such as the knife, shovel and cash
register handle.
Furthermore, while minor alleles were found on the sock,
there is no other indication of anybody else’s DNA on any of the
other evidentiary items. Without more than that solitary minor
allele, the DNA evidence does not establish his prima facie case
of “actual innocence.” On the contrary, it creates a stronger
case of his guilt. As such [Appellant’s] PCRA petition must be
DENIED.
PCRA Court Opinion, 4/12/10, at 3-7 (emphasis in original).
In his instant motion seeking DNA testing, Appellant has asserted his
innocence as required under the statute. However, Appellant has failed to
set forth a prima facie case demonstrating that further DNA testing of the
specific evidence, assuming exculpatory results, would establish Appellant’s
actual innocence. Indeed, Appellant’s assertion of innocence, while
necessary, is insufficient to establish a prima facie showing of “actual
innocence” under 42 Pa.C.S. § 9543.1. Appellant must offer more than a
bald assertion of innocence and must demonstrate that the DNA testing
“would establish” actual innocence. Commonwealth v. Heilman, 867 A.2d
542, 547 (Pa. Super. 2005).
Moreover, even if the results of the requested DNA testing definitively
excluded Appellant’s DNA from the scene, further confirmation of this
absence does not enable Appellant to meet his burden. See Heilman, 867
A.2d at 547 (“In DNA as in other areas, an absence of evidence is not
evidence of absence”). Likewise, even if the results of the requested DNA
testing positively identified someone else’s DNA at the scene, Appellant fails
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to explain how that necessarily points to a different assailant. Thus, it would
not exculpate Appellant. See Smith, 889 A.2d at 585 (“Merely 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.”).
Consequently, we are left to conclude that Appellant has failed to
establish a prima facie case demonstrating that the DNA test, if exculpatory,
would have established his actual innocence. Because we detect no error in
the PCRA court’s evaluation of this case, we conclude that Appellant fails to
qualify for relief.
In his second issue, Appellant argues that the PCRA court erred in
refusing to conduct a more extensive search of the Combined DNA Index
System (“CODIS”) of the previous DNA results.5 Appellant’s Brief at 9-12.
We need not reach the merits of this issue because we are constrained to
conclude that Appellant’s discussion in the argument section of his brief is
not properly developed for appellate review. It is well settled that the
argument portion of an appellate brief must be developed with pertinent
discussion of the issue, which includes citations to relevant authority.
Pa.R.A.P. 2119(a). See Commonwealth v. Genovese, 675 A.2d 331, 334
(Pa. Super. 1996) (stating that “[t]he argument portion of an appellate brief
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5
In addition, Appellant attempts to present, for the first time on appeal, a
claim that his PCRA counsel was ineffective. Appellant’s Brief at 10.
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must be developed with a pertinent discussion of the point which includes
citations to the relevant authority”).
In Commonwealth v. B.D.G., 959 A.2d 362 (Pa. Super. 2008), a
panel of this Court offered the following relevant observation regarding the
proper formation of the argument portion of an appellate brief:
In an appellate brief, parties must provide an argument as to
each question, which should include a discussion and citation of
pertinent authorities. Pa.R.A.P. 2119(a). This Court is neither
obliged, nor even particularly equipped, to develop an argument
for a party. Commonwealth v. Williams, 566 Pa. 553, 577,
782 A.2d 517, 532 (2001) (Castille, J., concurring). To do so
places the Court in the conflicting roles of advocate and neutral
arbiter. Id. When an appellant fails to develop his issue in an
argument and fails to cite any legal authority, the issue is
waived. Commonwealth v. Luktisch, 680 A.2d 877, 879 (Pa.
Super. 1996).
Id. at 371-372. Thus, failure to cite case law or other legal authority in
support of an argument results in waiver of the claim. Commonwealth v.
Owens, 750 A.2d 872, 877 (Pa. Super. 2000).
Here, Appellant’s argument pertaining to this issue contains no citation
to relevant legal authority beyond a cursory legal citation at the beginning of
his argument. Appellant’s Brief at 9-12. Because Appellant’s argument on
this issue consists of broad statements and allegations and no analysis with
relevant law, the argument is not properly developed for our review as it
fails to apply any law to the facts of the case. This failure to develop a legal
argument precludes appellate review. Thus, we conclude that this issue is
waived because the argument is not adequately developed.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/2016
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Com. v. Adams, C.
Combined Opinion