J-S92021-16
2017 PA Super 288
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RAYMOND DALE PAYNE, :
:
Appellant : No. 604 WDA 2016
Appeal from the PCRA Order April 13, 2016
in the Court of Common Pleas of Erie County
Criminal Division at No(s): No. 2562 of 1976
BEFORE: SHOGAN, MOULTON, and STRASSBURGER,* JJ.
OPINION BY STRASSBURGER, J.: FILED SEPTEMBER 7, 2017
Raymond Dale Payne (Appellant) appeals from the April 13, 2016
order which denied his petition for relief filed pursuant to the Post-Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant argues that he is
entitled to a new degree-of-guilt hearing or other lower court proceedings
based upon results of DNA testing that excluded him as a contributor to the
semen found in the victim’s body. We affirm.
Due to the procedural posture and facts of this case, we set forth the
non-jury verdict of the trial court in its entirety from the 1977 degree-of-
guilt hearing.
[Appellant] was arrested on September 23, 1976 and
charged with the slaying of Debra Lynn [Gama].
The sixteen[-]year[-]old victim, a student at Strong
Vincent High School in Erie, had left her West 10th Street home
the morning of August 7th, 1975 apparently headed for the
beach. She never returned, and on August 12th her body was
* Retired Senior Judge assigned to the Superior Court.
J-S92021-16
found floating in Cuss[e]wago Creek off Route 98 about 12 miles
north of Meadville, in Crawford County.
When found the victim’s hands and feet were bound by
copper wire. Wire also encircled and was imbedded in her neck.
Crawford County Coroner Wilbur C. Thomas ruled that the young
girl had been strangled listing the cause of death as “acute
asphyxiation due to ligature.”
The original charge against [Appellant], a teacher at the
school attended by Miss [Gama,] was originally instituted in
Crawford County, the body having been found there. However,
on Friday, October 8th, 1976, [Appellant,] with the consent of his
attorney and in the attorney’s presence, gave a statement to
Assistant District Attorney Donald E. Lewis. In the statement in
which [Appellant] categorized Miss [Gama’s] death as accidental,
he revealed that her death had occurred in Erie County. As the
result thereof the murder charge was then filed in Erie County on
December 8, 1976.
Following several continuances requested by [Appellant]
and his counsel, trial was scheduled for Monday, April 11, 1977.
On that date [Appellant] entered a plea of guilty to murder
generally and a degree of guilt hearing was held before the [trial
court en banc] on June 7th, 1977. The merits have been argued
and the matter is now ripe for decision.
It is the contention of the Commonwealth that the facts
require a finding of murder in the first degree. The defense
argues that the crime should rise no higher than third degree
murder.
Under the plea, voluntary manslaughter could be a
possible determination. However, we are of the opinion that
there are no facts before the court that would justify that result
or require its further consideration.
Section 2501 of the Crimes Code describes criminal
homicide as “where a person intentionally, recklessly or
negligently causes the death of another person.”
Under the amendment to section 2502 of the Crimes Code,
effective March 26, 1974, murder is divided into three degrees.
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“A criminal homicide constitutes murder in the first degree when
it is committed by an intentional killing. Murder in the second
degree is where the death of the victim occurred while the
defendant was engaged as a principal or accomplice in the
preparation [sic] of a felony. All other kinds of murder shall be
murder in the third degree.[”]
Under sub-section (d) intentional killing “is a killing by
means of poison, or by lying in wait, or by any other kind of
willful, deliberate and premeditated killing.[”]
The evidence before the court consists principally of the
physical evidence, the condition of the victim’s body, the
testimony of the pathologist, the defendant’s statement of
October 8, 1976, and his admissions to his former cellmate,
Anthony Lee Evans.
While the defense called two former inmates of the Erie
County prison to attack the credibility of Evan[s’s] testimony,
they relied principally on [Appellant’s] version of the victim’s
death as contained in his statement to the authorities in
Crawford County in October of 1976.
In that statement [Appellant] told of meeting Miss [Gama]
as she was standing on the corner of Tenth and Raspberry
Streets and taking her for a ride. He stated he had been
smoking marijuana and had taken two “downs” (meprobamate)
prior to meeting the victim; that after voluntarily consuming a
number of the pills Miss [Gama] agreed to pose for [Appellant],
when he asked her if he could take some “bondage pictures”
of her.
He stated that he continued to smoke marijuana as they
headed for the Everett C. Hall Community Park, a secluded
wooded area in Waterford Township in Erie County.
After arriving there he said that she allowed him to tie her
hands and ankles together with some clothesline which he had
purchased at the K-Mart. He had the victim get down on her
knees. He then tied one end of the rope to a tree, then wound it
around her neck and tied the other end to another tree.
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At that time he discovered that he had left his camera in
his truck; that despite the fact that the girl appeared to be
affected by the pills she had consumed, he left her in the trussed
up position and returned to this truck.
While there he smoked some more marijuana and loaded
his camera. When he returned he discovered that the victim had
fallen forward and had expired.
He said he panicked, that he cut the bonds, placed her in
his truck and drove her back to his farm; that he then attached
cement blocks to her body with some copper wire and placed her
in a pond located at the property. Two days later he discovered
that the body had surfaced. He then transported the body to the
Cussewago Creek where it was found on August 12th.
[Appellant] denied that he had had sexual relations with
the victim or that he had in any way molested her.
Counsel for [Appellant] rely on this statement for their
defense, contending that Miss [Gama’s] death was accidental;
that [Appellant] was at most negligent and that his degree of
guilt should rise no higher than 3rd degree.
We, however, are not impressed with either the accuracy
or credibility of [Appellant’s] statement. Yet it does have an
important bearing on our determination. Not only does it place
[Appellant] alone with the victim when she died, admittedly
under circumstances caused by him, but it does in many
respects corroborate other evidence introduced by the
Commonwealth.
The most damaging Commonwealth testimony was given
by Anthony Lee Evans who was incarcerated along with
[Appellant] in the Erie County prison in January and February of
1977. Mr. Evans testified that [Appellant] confided in him and
eventually described in detail what had occurred. He said that
[Appellant] told him that while he and Miss [Gama] were riding
in his truck he had put some “downs” (pills) in the victim’s beer;
that while she was under the influence of the drug he took her to
the woods where he tied her up in the manner above described
and began having sexual intercourse with her; that she begged
him to stop, crying and screaming; that she “made him mad”
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and he grasped the rope “on each side of her and pulled it tight
until she was dead.”
At this point Mr. Evans’[s] testimony varies from
[Appellant’s] statement in that he testified that rather than
taking the body back to the farm and placing it in the pond, that
[Appellant] said he covered the body with leaves and left it there
for several days until he decided where to dispose of it.
Evans further testified that [Appellant] told him Miss
Gamma’s death was a culmination of a sexual fantasy that he
had been living with for a long time; that “he likes to tie women
up and do crazy things to ‘em.”
Evans’[s] testimony corroborates in many respects the
statement given by [Appellant] to the Assistant District Attorney
of Crawford County.
In both statements he admits that the victim was under
the influence of pills ingested either voluntarily or administered
by subterfuge.
The reference to a “sexual fantasy” and [Appellant’s]
penchant for bondage is important, for in [Appellant’s] own
statement he admits that it was he who suggested the taking of
“bondage pictures.”
The manner in which Miss [Gama] was tied is exactly the
same in both statements.
The only real variation is in the manner in which death was
caused. Even here there is verification for Evans’[s] testimony
that she died protesting a sexual attack upon her. Paul R.
Daube, a chemist employed by the Pennsylvania State Police
testified that he conducted tests on Hemorrhogic fluids extracted
from the victim’s vaginal and anal areas. He stated that he
found the presence of seminal acid phosphatase in both areas
and that seminal acid phosphatase is found only in semen.
It is the opinion of the court the accidental theory
advanced by the defense lacks credibility. It is our belief that
the testimony of Evans is more consistent with the established
facts than the self serving statement of [Appellant].
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The specific intent to kill which is necessary to constitute
murder in the first degree may be found from the circumstances
surrounding the slaying together with all reasonable inferences
therefrom.…
In this case not only do the circumstances point to the
conclusion that the slaying of Debbie [Gama] was willful,
deliberate and premeditated, but [Appellant’s] admission to his
cellmate verifies that conclusion and removes all doubt.
The testimony before the court is also consistent with a
slaying in the perpetration of a forceful rape which would
constitute murder in the second degree. However, having
concluded that [Appellant] is guilty of an intentional killing, we
need not further pursue the theory of felony murder.
Trial Court Opinion, 7/18/1977, at 1-6.
Based on the foregoing, Appellant was convicted of first-degree
murder, and on August 5, 1977, Appellant was sentenced to life in prison.
Appellant filed a notice of appeal to our Supreme Court,1 and on
January 24, 1979, his judgment of sentence was affirmed. Commonwealth
v. Payne, 396 A.2d 630 (Pa. 1979). After several unsuccessful attempts at
post-conviction relief, on January 8, 1997, Appellant filed a PCRA petition,
which, inter alia, requested DNA testing on the seminal fluid recovered from
the victim’s body. The PCRA court denied Appellant’s petition, a panel of
this Court affirmed that order, and our Supreme Court denied Appellant’s
petition for allowance of appeal. Commonwealth v. Payne, 704 A.2d 1120,
(Pa. Super. 1997), appeal denied, 717 A.2d 533 (Pa. 1998). In affirming
1
Prior to 1980, all first-degree murder sentences, not just death penalty
sentences, were appealed to our Supreme Court.
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that PCRA order, this Court stated the following in response to Appellant’s
contention that he was entitled to DNA testing:
[Appellant’s] assertion that the court relied upon the fact
that the victim was raped in its decision to convict him of first-
degree murder is not supported by the facts. The court had
several pieces of evidence connecting [Appellant] to the crime,
not only his confession. Police traced the wire found on the
victim’s body to wire found on [Appellant’s] property. The court
also considered the testimony of [Appellant’s] cell mate, Anthony
Lee Evans. Evans corroborated much of the story given in
[Appellant’s] confession, differing only in connection with the
manner in which the victim died. Evans testified that [Appellant]
had told him about having intercourse with the victim while she
was bound to the tree, and that when she begged him to stop he
tightened the rope around her neck, strangling her. [Appellant]
told his cell mate that this had been a fantasy of his for some
time.
The court stated in its Opinion, dated July 18, 1977, that it
found [Appellant’s] claim that the victim’s death was accidental
lacked credibility. Rather, the court believed the account of the
incident given by Evans. Thus, the presence of semen and the
identity of the person from whom the semen originated, was not
a major consideration in the determination of first-degree
murder. [Trial Court Opinion, 7/18/1977, at 7]. Accordingly,
we will not find that a miscarriage of justice has occurred in this
case.
Payne, 704 A.2d 1120 (unpublished memorandum at 4-5).
On February 6, 2003, Appellant filed a motion for DNA testing
pursuant to newly-passed 42 Pa.C.S. § 9543.1, the PCRA provision
permitting DNA testing under certain circumstances. The PCRA court denied
that motion, and Appellant filed a notice of appeal to this Court. On
November 18, 2003, a panel of this Court affirmed the order of the PCRA
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court, and on May 11, 2004, our Supreme Court denied Appellant’s petition
for allowance of appeal. Specifically, this Court pointed out that
[e]ven if one credits [Appellant’s] contention that DNA evidence
would call into question the sexual assault, which [Appellant]
contends was used as an aggravating factor leading to his
conviction for first degree murder,2 there is no question in this
case concerning the “identity of the perpetrator.” Hence, there
is no basis for [Appellant] to obtain relief under this section.
_____
2
It bears mention that [Appellant] did not plead guilty, nor
was he convicted of any sexual offense.
Commonwealth v. Payne, 841 A.2d 577 (Pa. Super. 2003) (unpublished
memorandum at 3).
On September 9, 2011, Appellant filed a second motion for DNA
testing pursuant to section 9543.1. On October 4, 2011, the PCRA court
denied relief. Appellant filed a notice of appeal to this Court, and on July 31,
2012, this Court affirmed the order denying Appellant relief. On July 12,
2013, our Supreme Court denied Appellant’s petition for allowance of appeal.
Commonwealth v. Payne, 55 A.3d 152 (Pa. Super. 2012), appeal denied,
69 A.3d 601 (Pa. 2013).
Meanwhile, on May 16, 2011, Appellant had filed a complaint in the
United States District Court for the Western District of Pennsylvania against
the Erie County District Attorney’s Office alleging violations of 42 U.S.C.
§ 1983 for its refusal to permit DNA testing. On December 16, 2014, the
trial court signed a stipulated order permitting post-conviction DNA testing.
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The DNA test results established conclusively that Appellant was excluded as
a contributor to the seminal fluid found in the victim’s body.
On August 21, 2015, Appellant, through counsel, filed a PCRA petition
asserting that he is entitled to a new trial or degree-of-guilt hearing based
upon this after-discovered evidence. Appellant’s eligibility for relief is
premised on the provision that these new test results satisfy the
requirement that Appellant’s conviction resulted from “[t]he unavailability at
the time of trial of exculpatory evidence that has subsequently become
available and would have changed the outcome of the trial if it had been
introduced.” 42 Pa.C.S. 9543(a)(2)(vi). See PCRA Petition, 8/21/2015, at 2.
The Commonwealth filed a response to the petition, and on April 13, 2016,
the PCRA court entered a final order and opinion denying Appellant relief,
which provided the following, relevant conclusions.
Here, [Appellant] has failed to show the DNA evidence was
exculpatory and would have changed the outcome of the
proceedings. As discussed supra, our appellate courts have
previously determined that presence of semen and the identity
of the donor of the semen were not determining factors in
finding [Appellant] guilty of first-degree murder. Furthermore,
[Appellant] was not convicted of any sexual offense….
The evidence, including [Appellant’s] statement to
Crawford County District Attorney Donald Lewis and his
concealment of Gama’s body, clearly established [Appellant’s]
guilt of first-degree murder; accordingly, the DNA evidence
would not have changed the outcome.
PCRA Court Opinion, 4/13/2016, at 8-9.
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Appellant timely filed a notice of appeal, and both Appellant and the
PCRA court complied with Pa.R.A.P. 1925.
On appeal, Appellant presents three questions for our review.
[1.] Did the PCRA court err in finding that the [after-]discovered
DNA evidence was not likely to change the outcome of the trial
notwithstanding that it disproved a key inference that the
prosecution relied on to prove intent?
[2.] Did the PCRA court err to the extent that it held the newly
discovered evidence was immaterial or not exculpatory?
[3.] Did the PCRA court err by not considering [Appellant’s]
claims under the United States and Pennsylvania constitutions?
Appellant’s Brief at 4 (answers omitted).
“On appeal from the denial of PCRA relief, our standard of review calls
for us to determine whether the ruling of the PCRA court is supported by the
record and free of legal error. The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record.”
Commonealth v. Lewis, 63 A.3d 1274, 1278 (Pa. Super. 2013). Relevant
to this claim, section 9543(a)(2)(vi)
provides for post-conviction relief where a petitioner could prove
a claim of newly discovered exculpatory evidence. In order to
succeed on such a claim, the petitioner must establish by a
preponderance of the evidence that:
(1) the evidence has been discovered after the trial and it
could not have been obtained at or prior to trial through
reasonable diligence;
(2) such evidence is not cumulative;
(3) it is not being used solely to impeach credibility; and
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(4) such evidence would likely compel a different verdict.
Commonwealth v. Fiore, 780 A.2d 704, 711 (Pa. Super. 2001).2
We first consider Appellant’s contention that the PCRA court erred in
concluding that this after-discovered evidence would not have changed the
outcome of Appellant’s degree-of-guilt hearing. See Appellant’s Brief at 21-
34. Specifically, Appellant argues that the
new evidence at issue directly undermines the inferences used
against [Appellant] to secure a conviction forty years ago. In
advancing the credibility of its jail-house informant and seeking
to undermine [Appellant’s] explanation, the Commonwealth
created a strong inference that seminal fluid found in the victim
was [Appellant’s], and that evidence and inference were critical
reasons why the [trial court] found the intent necessary to
render a verdict of first-degree murder.
Id. at 25.
Essentially, Appellant is arguing that this after-discovered evidence
created reasonable doubt as to the specific-intent-to-kill element of first-
degree murder. “Specific intent and malice may be inferred through
circumstantial evidence, such as the use of a deadly weapon on a vital part
of the victim’s body.” Commonwealth v. Hicks, 156 A.3d 1114, 1124 (Pa.
2017). In Commonwealth v. Pruitt, 951 A.2d 307 (Pa. 2008), and
2
In this case, there is no dispute that the evidence was not available, nor
could it have been available, at the time of trial. Additionally, this evidence is
neither cumulative nor being used solely to impeach credibility. Moreover, it
is well-settled that a change in the outcome of a degree-of-guilt hearing is a
change in the verdict as contemplated by the PCRA. Commonwealth v.
Bonaccurso, 625 A.2d 1197, 1199 (Pa. Super. 1993).
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Commonwealth v. Keaton, 729 A.2d 529 (Pa. 1999), our Supreme Court
upheld first-degree murder convictions and found that the defendants
possessed a specific intent to kill under similar circumstances.
In Pruitt, Pruitt admitted to breaking into the home of a 69-year-old
woman, covering her mouth with a towel, tying it, removing her clothing,
tying her up, and leaving her there “while he went upstairs to look for
money.” 951 A.2d at 314. “When he came back downstairs with the victim’s
money, she was not moving.” Id. The forensic pathologist testified that the
victim’s death was caused by “strangulation, most likely with the towel that
was found around her neck.” Id. Our Supreme Court held that the
“evidence is sufficient to support the mens rea element of first-degree
murder, i.e., a specific intent to kill.” Id.
Similarly, in Keaton, police found a partially decomposed body of the
victim, a former girlfriend of Keaton’s, in a basement of a house known for
crack-cocaine activity. A “pair of tights was tied tightly around her neck as a
ligature.” 729 A.2d at 534. The autopsy revealed the victim had recently
used alcohol and cocaine. Keaton admitted to having tied up the victim,
“but claimed it was merely part of a ‘sex game.’” Id. at 535. He also
admitted to having left the victim unconscious and tied up in the basement
while he left the house to obtain more drugs. Keaton claimed that the
evidence was insufficient to sustain a first-degree murder conviction because
he did not intentionally kill the victim. Our Supreme Court pointed out that
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“the act of tightening a strap around a person’s neck, with enough force and
violence to kill the victim, [is] sufficient to permit a finding of specific intent
to kill.” Id. at 537. Additionally, this Court took into account the fact that
Keaton left the victim tied up “on the floor, unconscious in the pitch black of
the basement.” Id.
In this case, Appellant confessed to his role in the death of the victim.
According to Appellant’s own story, he provided drugs to the victim, tied her
up in a way that included suspending her between two ropes with a rope
bound around her neck and her hands tied behind her back, and left her in
that compromised position for a period of time. Similar to Pruitt, and
Keaton, these facts are sufficient to establish a specific intent to kill to
support a first-degree murder conviction.
Additionally, “[a]ctions of the accused that occur before, during, and
after are admissible as evidence to show malice.” Commonwealth v.
Gonzalez, 858 A.2d 1219, 1223 (Pa. Super. 2004) (emphasis in original).
“[E]vidence of acts to conceal a crime, such as disposing of the victim’s
body, are relevant to prove the accused’s intent or state of mind.”
Commonwealth v. Dollman, 541 A.2d 319, 322 (Pa. 1988).
By his own admission, Appellant went to great lengths to conceal the
victim’s body. Appellant admitted he used cement blocks and copper wire to
submerge the victim’s body in a pond on his property. After her body re-
surfaced, he transported her to another location and tried it again. Based on
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this evidence, all of which was presented at the degree-of-guilt hearing, we
hold that the outcome of that hearing would not have been different had the
results of the DNA testing been available. Accordingly, we affirm the order
of the PCRA court on that basis.
Appellant next argues that the PCRA court erred in concluding that the
DNA evidence was neither material nor exculpatory.3 See Appellant’s Brief at
34-43. Specifically, Appellant suggests that the PCRA court erred by
considering evidence not of record. First, Appellant criticizes the PCRA court
for creating a “newly-minted theory” regarding the perpetrator of this crime.
Appellant’s Brief at 36. Appellant takes issue with the following conclusion
set forth by the PCRA Court:
The presence of DNA material of another male does not help
[Appellant’s] case, it hurts it. In this court’s view, the DNA
evidence of another male is more inculpatory than ever, strongly
suggesting that [Appellant] had an undisclosed partner in this
depraved, murderous endeavor.
PCRA Court Opinion, 4/13/2016, at 12 (footnote omitted). Additionally,
Appellant disagrees with the PCRA court’s conclusion that “the primary use
of the DNA evidence is for impeachment: to quibble with the verdict and
Evans’ credibility.” Id.
3
Because we have already concluded that the outcome of Appellant’s trial
would not have been different, we are not required to address this argument
as Appellant has not met the criteria for a new trial based upon after-
discovered evidence. However, we address the remaining issues for
completeness.
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While we agree with Appellant that the PCRA court erred with respect
to these conclusions, we conclude nonetheless that Appellant is not entitled
to relief. In considering both the materiality and the exculpatory nature of
the DNA evidence, we point out that the presence of semen in the victim
from someone other than Appellant could implicate an accomplice as
suggested by the PCRA court. However, it is equally likely that this evidence
could lead to the conclusion that the victim had sexual intercourse,
consensual or otherwise, with someone else in the day or days leading up to
her death.
Moreover, the presence of semen from someone other than Appellant
is certainly not exculpatory as to first-degree murder. Had Appellant been
convicted of rape or another sexually-related offense, this DNA evidence
could be considered exculpatory. The same is not true for first-degree
murder, nor is it true for third-degree murder. Even if Appellant did not
rape the victim, the DNA evidence would not have required the trial court to
find Appellant not guilty of first-degree murder. Thus, despite the PCRA
court’s erroneous conclusions, we hold that Appellant is not entitled to PCRA
relief on this basis.
Finally, Appellant argues that the PCRA court erred by not addressing
Appellant’s “claim that his constitutional rights independently compel a new
trial.” Appellant’s Brief at 43. Appellant argues the following:
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[Appellant] has been imprisoned for almost forty years
under a theory based on evidence and inference that we now
know to be false. The newly discovered DNA evidence
dramatically undercuts the claim that he intentionally murdered
Ms. Gama in the course of a sexual assault. To now force
[Appellant] to remain in prison for the duration of a life sentence
imposed for a crime of which he is innocent violates [Appellant’s]
due process rights under the United States and Pennsylvania
Constitutions, shocks the conscience, and offends traditional
notions of justice. Because the PCRA court failed to address this
claim altogether, this Court should at the very least remand for
further proceedings.
Appellant’s Brief at 45.
Although he phrases this argument in terms of his rights under the
United States and Pennsylvania constitutions, Appellant’s argument is in
reality a catchall argument suggesting that we should remand for the PCRA
court to reconsider its decision. To be sure, the reviews of both this Court
and the PCRA court implicate the protections Appellant is afforded under the
constitutions. We recognize that Appellant may feel vindicated to some
degree by this DNA evidence. Nevertheless, it does not prove, as he
suggests, that he is innocent of first-degree murder. In fact, it does not
even prove that he did not sexually assault the victim. “In DNA as in other
areas, an absence of evidence is not evidence of absence.” In re (John
Marshall) Payne, 129 A.3d 546, 558 (Pa. Super. 2015). Thus, we
conclude that remand to the PCRA court to address some unspecified
constitutional claims is not warranted.
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Having concluded the PCRA court did not err in denying relief, we
affirm the order of the PCRA court.
Order affirmed.
Judge Shogan joins.
Judge Moulton files a dissenting opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/2017
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Com. v. Payne, R.
Combined Opinion