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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GARY L. BROWN :
:
Appellant : No. 2843 EDA 2017
Appeal from the PCRA Order August 21, 2017
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0002541-1997,
CP-15-CR-0003278-1997
BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 16, 2018
Gary L. Brown appeals pro se from the August 21, 2017 order denying
his request for post-conviction DNA testing. We affirm.
On September 30, 1998, a jury convicted Appellant of two counts of
first degree murder and related offenses in connection with the shooting
deaths of Saysana Laomoi and Ty Sacksith. In affirming the ensuing
judgment of sentence, this Court adopted the trial court’s statement of facts
as follows:
On the evening of May 31, 1997[,] [Appellant] and Daryl Glasco
paged . . . Laomoi to inquire about purchasing marijuana from
him. Laomoi was again paged on the morning of June 1, 1997
for the same purpose. [Appellant] and Glasco arranged to meet
Laomoi later that day.
At approximately 11:00 am, [Appellant] . . . and Glasco . . .
went to [an] apartment complex parking lot, and entered a
green Toyota driven by . . . Sacksith. Laomoi was sitting in the
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front passenger seat. [Appellant] sat behind the driver’s seat,
and Glasco sat behind the front passenger seat. The Toyota was
driven from the parking lot and proceeded west on Union Street.
Laomoi was shot in the neck once and twice in the head.
Sacksith was shot once in the back of the head. Both victims
were shot with the same 38-caliber revolver.
Commonwealth v. Brown, 742 A.2d 1140 (Pa.Super. 1999) (unpublished
memorandum at 2).
The trial court imposed two consecutive life sentences for the murders,
and an aggregate term of thirty-two-and-one-half to sixty-five years
incarceration for the remaining offenses. This Court affirmed the judgment
of sentence, and on November 23, 1999, our Supreme Court denied
allowance of appeal. Commonwealth v. Brown, 747 A.2d 364 (Pa. 1999).
The trial court outlined the subsequent procedural history as follows:
Failing to obtain relief through [five PCRA] petitions,
Appellant turned to 42 Pa.C.S.A. § 9543.1 “Postconviction DNA
Testing,” and on June 27, 2017, filed a motion requesting that
DNA testing be performed on the “lift tape” used to lift
fingerprints from the car in which the victims were killed, and
DNA testing on blood located on the trigger guard of the murder
weapon.
The Commonwealth filed an answer to Appellant’s motion
on July 21, 2017, and on August 3, 2017[,] Appellant filed his
rebuttal to the Commonwealth’s answer. On August 21, 2017,
after finding that Appellant had failed to establish entitlement to
DNA testing, [the trial court] denied his request.[1] This appeal
followed.
____________________________________________
1 The PCRA’s one-year time bar does not apply to a petition for DNA testing.
As we explained in In re Payne, 129 A.3d 546, 555-556 n.12 (Pa.Super.
2015), “post-conviction DNA testing does not directly create an exception to
§ 9545’s one-year time ban. Rather it allows for a convicted individual to
(Footnote Continued Next Page)
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Trial Court Opinion, 9/28/17, at 1-2.
The trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied,
and the trial court issued a Rule 1925(a) opinion. Appellant presents one
question for our review: Whether “the lower court abused its discretion when
it dismissed the [DNA] petition filed by . . . Appellant . . . pertaining to this
instant case.” Appellant’s brief at 3.
We review the trial court’s decision to grant or deny a post-conviction
petition for DNA testing for whether the findings of the trial court are
supported by the record and free of legal error. Commonwealth v.
Conway, 14 A.3d 101, 108 (Pa.Super. 2011) (footnote and citation omitted)
(“Post conviction DNA testing falls under the aegis of the Pennsylvania Post
Conviction Relief Act . . ., and thus, “our 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.”).
Appellant’s request for DNA testing is two-fold. First, he sought to test
the “lift tape” that the crime scene investigators used to lift his fingerprints
(Footnote Continued) _______________________
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).” Additionally, there is no statutory right
to the assistance of counsel in requesting DNA testing. Commonwealth v.
Brooks, 875 A.2d 1141, 1147 (Pa.Super. 2005).
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from the back of the driver’s seat in Sacksith’s car. He asserts that the
results of DNA testing on the organic matter that constitutes the fingerprint
would prove his actual innocence of the offenses by confirming that the
fingerprints that were originally identified as his were actually left by
someone else. Next, Appellant requested DNA testing on the blood swabbed
from the trigger guard of the handgun used to murder both victims.
Although the swab that was tested at the time of trial identified the blood of
one of the victims, Appellant contends that additional swabs exist that would
reveal DNA that belongs to George Cornell, who Appellant claims is the prior
owner of the firearm. For the following reasons, we find that the trial court
did not err in denying relief.
In relevant part, the statute 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
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(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(c), (d). Significantly, however, there is a preliminary
requirement that compels a petitioner to demonstrate:
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.
42 Pa.C.S. § 9543.1(a)(2). Thus, in order to prevail on an application for
DNA testing, as a threshold matter, Appellant must prove either that (1)
technology did not permit testing when he was tried; (2) the verdict
preceded January 1, 1995, and counsel neglected to request testing during
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trial; or (3) the trial court denied Appellant’s request for funds to pay for the
testing despite his indigence. Id.
Thereafter, presuming Appellant satisfies these preliminary
requirements, Appellant 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 Conway, supra at 109 (quoting
Schlup v. Delo, 513 U.S. 298, 327 (1995)), we explained that actual
innocence in this context and in the context of § 9543.1(d)(2)(i), is
demonstrated by evidence that “makes it ‘more likely than not that no
reasonable juror would have found him guilty beyond a reasonable doubt.”’
See also In re Payne, supra at 556. We concluded, “this standard
requires a reviewing court ‘to make a probabilistic determination about what
reasonable, properly instructed jurors would do,’ if presented with the new
evidence.” Conway, supra at 109 (quoting Schlup, supra at 329).
Appellant’s request for DNA testing fails for two reasons. First, it is
stale insofar as the samples that he is currently requesting to test were
available for testing during his 1998 trial. Indeed, the Commonwealth
introduced evidence outlining the results of the DNA tests that the State
Police Crime Laboratory performed on several pieces of evidence that
investigators removed from inside the vehicle, including the trigger guard
that Appellant seeks to test herein. The crime lab performed DNA tests in
anticipation of trial and submitted those results as evidence; however,
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Appellant did not request that the laboratory test the fingerprint lift tape or
demand that the unit test any of the swabs from the interior of the vehicle
that he currently contends avoided testing. Moreover, as it relates to
Appellant’s statutory obligations, Appellant does not assert, much less
demonstrate that: 1) advances in technology would facilitate testing that
was previously hindered; 2) he was convicted prior to 1995 and counsel
failed to request testing; or 3) he was indigent and the trial court denied his
request for funds to pay for DNA testing prior to trial. See 42 Pa.C.S. §
9543.1(a)(2). Appellant simply ignores these threshold components of the
post-conviction DNA statute. Accordingly, the trial court did not err in
denying his petition for DNA testing. See Commonwealth v. Perry, 959
A.2d 932, 939 (Pa.Super. 2008) (no relief due when petitioner failed to
satisfy the conditions outlined in § 9543.1(a)(2)); Commonwealth v.
Walsh, 125 A.3d 1248, 1257(Pa.Super. 2015) (same).
Moreover, even if Appellant had satisfied one of the preliminary
components of § 9543.a(a)(2), which he did not, the present claim would
fail. Stated plainly, assuming the DNA testing produced exculpatory results,
Appellant cannot establish a prima facie case of actual innocence. The
Commonwealth presented substantial evidence of Appellant’s guilt.
On a prior appeal, we reiterated the trial court’s summation of the
evidence as follows:
Bonnie Weston, Laomoi’s girlfriend, was interviewed by police
and stated that Laomoi was supposed to help Sacksith sell
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marijuana to an individual named “Gary.” Jessica Smith,
[Appellant’s] girlfriend, told police that [Appellant] and Glasco
paged Laomoi [for that purpose] from her apartment on the
night of May 31, 1997. Smith saw Laomoi arrive in the parking
lot to [Appellant’s] apartment on the morning of June 1, 1997,
get out, and walk towards [Appellant’s] apartment building.
Smith later went to [Appellant’s] apartment and found a “large
package of marijuana.”
Brown, supra (unpublished memorandum at 2) (quoting Trial Court
Opinion, 12/24/98, at 2). The trial court further explained that, after
committing the murders,
[Appellant and Glasco] took marijuana from [Sacksith’s] car and
returned on foot to [Appellant’s address] with the revolver,
bloody clothing, and a box of 38-caliber ammunition. [The pair]
then repackaged the marijuana into smaller bags. [Appellant]
instructed his brother[,] Eric[,] to take a gym bag and a plastic
bag to their grandmother's home in West Chester.
Id.
Thereafter,
A search warrant was obtained for [Appellant’s] apartment
where a 38-caliber revolver was recovered; ballistics indicated
that it was the murder weapon. A search warrant for the home
of [Appellant’s] grandmother, Elizabeth Brown, yielded one box
of 38-caliber ammunition, clothing containing traces of blood,
and marijuana.
During the investigation of the crime scene . . . Glasco’s bloody
fingerprint was found behind the passenger seat. . . . Glasco’s
fingerprint was also found on the box of 38-caliber ammunition.
A second print found behind the driver’s seat was matched to
[Appellant].
A fellow inmate testified at trial that Brown sent him to tell the
District Attorney that Glasco had confessed to committing both
murders, in an attempt to shift the blame away from [Appellant].
Talking points in [Appellant’s] handwriting were admitted to
corroborate that testimony.
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Id. at 2-3. Based on the foregoing testimony, the jury convicted Appellant
of, inter alia, two counts of murder.
As it relates to the lifting tape used to obtain Appellant’s latent finger
prints from Sacksith’s vehicle, Appellant claims that a DNA test on the
organic material the tape lifted from the back of the driver’s seat would
reveal the presence of someone else’s DNA, presumably refuting the expert
testimony that confirmed that the latent fingerprint matched Appellant’s.
For the following reason, this assertion fails.
Notwithstanding the fingerprint evidence that Appellant hopes to
undermine with his DNA request, the remaining evidence demonstrates
Appellant’s guilt beyond a reasonable doubt. Appellant coaxed the victims to
his apartment complex under the guise of purchasing marijuana. Neither
victim was seen alive again. Following the murders, Appellant and Glasco
took the marijuana, murder weapon, ammunition, and bloody clothes to
Appellant’s apartment. Appellant divided the marijuana and directed his
brother to take the ammunition, clothing, and a portion of the marijuana to
their grandmother’s home, where the items were recovered by police. In
addition, crime scene investigators discovered Glasco’s bloody fingerprint at
the crime scene and on the box of ammunition that was found within
Appellant’s control. Similarly, police discovered Appellants’ firearm, which
ballistics confirmed as the murder weapon, in his apartment. Later, while
Appellant was incarcerated pending trial, he enlisted a fellow inmate to make
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false statements to the district attorney that shifted responsibility for both
murders to Glasco.
All of the foregoing non-fingerprint evidence establishing Appellant’s
guilt was presented to the jury during trial. Thus, even presuming that a
test on the lift tape produced exculpatory evidence, it would not override the
remaining physical and testimonial evidence establishing Appellant’s guilt.
Thus, no relief is due. See Walsh, supra at 1245-55 (“The statutory
standard to obtain testing requires more than conjecture or speculation; it
demands a prima facie case that the DNA results, if exculpatory, would
establish actual innocence ”).
The results of a new DNA test on the trigger guard would be equally
unavailing. Appellant’s justification for re-testing the trigger guard is not a
model of clarity. He appears to assert that the blood found on his gun
belonged to the gun’s prior owner and not, as the DNA test performed prior
to trial confirmed, one of the victims. However, Appellant neglects to
present any realistic scenario where a vestige of Mr. Cornell’s DNA on the
firearm that Cornell previously owned is exculpatory. Ballistic evidence
established that Appellant’s gun was the murder weapon. Presuming that
the blood taken from the trigger guard was re-tested and identified as
belonging to Mr. Cornell rather than a victim, that revelation does not
exonerate Appellant ipso facto. At most, the discovery of Mr. Cornell’s DNA
on the weapon casts a doubt on the accuracy of the DNA report generally.
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However, Appellant’s convictions did not rest upon any DNA evidence, and
his statutory burden of establishing a prima facie case of actual innocence is
significantly higher than questioning the accuracy of any single piece of
evidence. Accordingly, Appellant’s claim fails for identical reasons that we
discussed in addressing his request to test the fingerprint tape, i.e.,
Appellant failed to make out a prima facie case that the testing would
produce exculpatory evidence proving his actual innocence. See Walsh,
supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/16/18
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