J-S27006-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT WILLIAM BLAKE :
:
Appellant : No. 786 WDA 2018
Appeal from the PCRA Order April 26, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0008910-1987,
CP-02-CR-0009390-1987
BEFORE: OLSON, J., OTT, J., and COLINS*, J.
MEMORANDUM BY OLSON, J.: FILED JUNE 11, 2019
Appellant, Robert William Blake, appeals from the order entered on April
26, 2018, denying his claim for deoxyribonucleic acid (DNA) testing pursuant
to 42 Pa.C.S.A. § 9543.1 under the Post-Conviction Relief Act1 (PCRA). We
affirm.
We briefly summarize the facts and procedural history of this case as
follows. On March 31, 1988, a jury found Appellant guilty of second-degree
murder, robbery, theft, and criminal conspiracy. The trial court sentenced
Appellant to life imprisonment. We affirmed Appellant’s judgment of sentence
on August 2, 1991. See Commonwealth v. Blake, 598 A.2d 1326 (Pa.
Super. 1991) (unpublished memorandum). Our Supreme Court denied
further review. See Commonwealth v. Blake, 600 A.2d 533 (Pa. 1991).
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1 42 Pa.C.S.A. §§ 9542-9546.
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* Retired Senior Judge assigned to the Superior Court.
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On January 20, 2016, Appellant filed a pro se request for DNA testing under
Section 9543.1 2 The trial court appointed counsel to represent Appellant. In
November 2017, Appellant filed a motion to hire a private investigator, which
the trial court granted. Through the investigator, appointed counsel
discovered that police recovered an empty package of Marlboro cigarettes
from the victim’s car found in North Carolina three months after the killing. 3
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2 This Court previously determined:
An application for DNA testing should be made in a motion, not in
a PCRA petition. Though brought under the general rubric of the
PCRA, motions for post-conviction DNA testing are clearly
separate and distinct from claims brought pursuant to other
sections of the PCRA. This Court has consistently held the
one-year jurisdictional time bar of the PCRA does not apply to
motions for DNA testing under Section 9543.1.
* * *
Importantly, a motion for post-conviction DNA testing does not
constitute a direct exception to the one-year time limit for filing a
PCRA petition. Instead, it gives a convicted person a vehicle 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).
Commonwealth v. Williams, 35 A.3d 44, 50 (Pa. Super. 2011) (internal
citations and quotations omitted). Here, Appellant filed the requisite motion
for DNA testing. Because the request for DNA testing precedes a formal PCRA
petition, we will refer to the lower court as the “trial” court rather than the
“PCRA” court.
3 Relevant to this appeal, two co-workers discovered the victim’s body in his
apartment in the Dormont area of Allegheny County near Pittsburgh,
Pennsylvania. Police apprehended Appellant in Florida and discovered the
victim’s car in North Carolina, three months after the killing. The physical
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The cigarette package, wrapped in a paper bag and discovered in a box of
evidence unrelated to this case, was marked as Exhibit #41 and indicated that
the crime laboratory examined and repackaged it on August 25, 1987.
Appellant requested that the trial court enter an order for DNA testing of the
empty cigarette package. On April 26, 2018, the trial court denied relief by
order and opinion. This timely appeal resulted.4
On appeal, Appellant presents the following issue for our review:
I. Whether there [is] a reasonable probability that DNA testing
on a discovered cigarette pack would produce exculpatory
evidence that would establish Appellant’s actual innocence
of the crime[s] he was convicted of?
Appellant’s Brief at 4.
In summary, Appellant argues:
The sole piece of remaining evidence discovered from
[Appellant’s] case, which [Appellant] sought to test for DNA, was
an empty pack of Marlboro cigarettes that were discovered in
____________________________________________
evidence presented at trial showed that the victim was killed inside his
apartment, not inside his vehicle. See Commonwealth v. Blake, 598 A.2d
1326, at *1-4 (Pa. Super. 1991) (unpublished memorandum).
4 An order denying a motion for DNA testing is a final order. See
Commonwealth v. Scarborough, 9 A.3d 206 (Pa. Super. 2010), reversed
on other grounds, 64 A.3d 602 (Pa. 2013); see also 42 Pa.C.S.A.
§ 9543.1(d)(3) (“Any DNA testing order under [S]ection [9543.1] shall
constitute a final order. An applicant or the Commonwealth may appeal a
decision denying or granting a DNA testing order in accordance with the
Pennsylvania Rules of Appellate Procedure.”). Appellant filed a timely notice
of appeal on May 25, 2018. On May 31, 2018, the trial court directed Appellant
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b) before July 2, 2018. Appellant complied timely. On July 16,
2018, the trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) relying
entirely upon its prior April 26, 2018 opinion as rationale for denying relief.
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Carolina Beach, North Carolina, in the victim’s car. This evidence,
along with the car, were discovered three months after the
victim’s death.
Since the case against [Appellant] relied solely on (unreliable)
eyewitness accounts, and, more particularly, the whole case
would be decided on whether [Appellant] was spotted in the
victim’s car before his death – which the Commonwealth argued
– the discovered pack of Marlboros was material evidence that
afforded [Appellant] “the opportunity to establish the unlikely” –
the identity of unknown third party who could undermine the
[trial] witnesses’ identification of [Appellant].
The [trial] court should [have] afforded [Appellant] the right to
conduct DNA testing. And, provided it did not, the [trial] court
abused its discretion in light of this Court’s precedent construing
the post-conviction DNA statute.
Id. at 16.
More specifically, Appellant argues that “the victim’s car was seemingly
abandoned and untouched immediately following the victim’s death” and,
thus, “it [was] more likely than not that the Marlboro pack is linked to the
car’s last occupants of May 1987.” Id. at 21-22. As such, Appellant “contends
that testing the Marlboro cigarette pack, discovered from the victim’s car,
could establish the presence of some other third-party in that vehicle, who the
Commonwealth’s teenage witnesses mistook for [Appellant].” Id. at 20.
Moreover, Appellant maintains that the Commonwealth argued in 1988 that
Appellant was the third person seen riding with the victim and a co-defendant
in the victim’s car close in time to the murder and, therefore, the Marlboro
package is material evidence. Id. at 23. Appellant concedes that the
purported DNA evidence will not singlehandedly prove his innocence, but
claims that “if DNA [is] extracted from the Marlboro pack that identifies an
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unknown person – not the victim, [co-defendant], or [Appellant] – then surely
such evidence further undermines the unreliable identifications used to convict
[Appellant] in the first place.” Id. at 23-24.
Our standard of review is as follows:
Generally, the trial court's application of a statute is a question of
law that compels plenary review to determine whether the court
committed an error of law. When reviewing an order denying a
motion for post-conviction DNA testing, this Court determines
whether the movant satisfied the statutory requirements listed in
Section 9543.1. We can affirm the court's decision if there is any
basis to support it, even if we rely on different grounds to affirm.
Commonwealth v. Walsh, 125 A.3d 1248, 1252–1253 (Pa. Super. 2015)
(citation omitted).
Section 9543.1 provides, in pertinent part:
(a) Motion.--
(1) An individual convicted of a criminal offense in a court of
this Commonwealth may apply by making a written
motion to the sentencing court at any time 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 evidence was subject to the
testing, but newer technology could provide substantially
more accurate and substantially probative results, or the
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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.
(3) A request for DNA testing under this section shall be by
written petition and shall be filed with the clerk of courts
of the judicial district where the sentence is imposed.
(4) DNA testing may be sought at any time if the 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.
(5) Notwithstanding any other provision of law, a plea of
guilty to a crime of violence, as defined in section
9714(g) (relating to sentences for second and
subsequent offenses), or a confession given by an
applicant concerning the offense for which the applicant
was convicted, shall not prohibit the applicant from
asserting actual innocence under subsection (c)(2) or the
court from making a determination and ordering DNA
testing under subsection (d)(2).
(6) The motion shall explain how, after review of the record
of the applicant's trial, there is a reasonable possibility if
the applicant is under State supervision, or there is a
reasonable probability if the applicant is not under State
supervision, or after review of the record of the
applicant's guilty plea there is a reasonable probability,
that the testing would produce exculpatory evidence that
would establish:
(i) the applicant's actual innocence of the offense
for which the applicant was convicted;
* * *
(c) Requirements.--In any motion under subsection (a),
under penalty of perjury, the applicant shall:
(1) (i) specify the evidence to be tested;
(ii) state that the applicant consents to provide samples of
bodily fluid for use in the DNA testing; and
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(iii) acknowledge that the applicant understands that, if the
motion is granted, any data obtained from any DNA samples
or test results may be entered into law enforcement
databases, may be used in the investigation of other crimes
and may be used as evidence against the applicant in other
cases.
(2) (i) in a sworn statement subject to the penalties under
18 Pa.C.S. §§ 4902 (relating to perjury) and 4903 (relating
to false swearing), assert the applicant's actual innocence
of the offense for which the applicant was convicted and that
the applicant seeks DNA testing for the purpose of
demonstrating the applicant's actual innocence[.]
* * *
(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.—
(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;
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(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 for an applicant under State
supervision, or there is no reasonable probability for an
applicant not under State supervision, or after review of the
record of the applicant's guilty plea, the court determines
that there is no reasonable probability, 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.A. § 9543.1 (emphasis added).
In examining Section 9543.1, this Court previously determined:
The text of the statute set forth in Section
9543.1(c)(3) and reinforced in Section 9543.1(d)(2)
requires the applicant to demonstrate that favorable
results of the requested DNA testing would establish
the applicant's actual innocence of the crime of
conviction. 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.
[Commonwealth v.] B. Williams, [35 A.3d 44, 50-51 (Pa.
Super. 2011)] (emphasis added). See also Commonwealth v.
G. Williams, 909 A.2d 383 (Pa. Super. 2006) (affirming dismissal
of request for post-conviction DNA testing where appellant's
identity as perpetrator was not at issue in rape case; appellant's
theory of case at trial was that he had consensual sex with victim;
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because appellant's participation was confirmed, DNA testing
would not establish his innocence).
Significantly, in DNA testing cases, “an absence of evidence is not
evidence of absence.” Commonwealth v. Heilman, 867 A.2d
542, 547 (Pa. Super. 2005). See also B. Williams, supra
(affirming trial court's denial of DNA testing where appellant failed
to meet threshold requirements for DNA testing, under Section
9543.1(a)(2), and did not demonstrate prima facie case of “actual
innocence”; even if appellant's DNA were not found on hat/wig,
record contained overwhelming evidence of appellant's guilt
including three unshakable eyewitnesses, appellant's confession,
and appellant's access to weapon used in crimes);
Commonwealth v. Smith, 889 A.2d 582 (Pa. Super. 2005),
appeal denied, 905 A.2d 500 (Pa. 2006) (affirming denial of
request for post-conviction DNA testing where absence of
appellant's DNA from victim's fingernails would not establish
appellant's innocence of victim's murder; nothing in record
supported appellant's claim that victim would have scratched her
assailant leaving DNA evidence under her fingernails).
Walsh, 125 A.3d at 1254–1255 (Pa. Super. 2015) (emphasis in original).
In this case, the trial court concluded:
The victim of this stabbing was found in his own apartment. He
was not found in a car which is where the empty pack of
[cigarettes] was found.[5] Conspicuous by its absence is
[Appellant’s] failure to explain this analytical gap. Furthermore,
the [] cigarette pack [] was found in a car, in a different state and,
some three months AFTER the killing. These “facts” lead to one
question – when was the pack left there? [Appellant] simply
cannot answer that question. The inability of [Appellant] to
adequately address these factual holes in his claim prevents [the
trial c]ourt from concluding that DNA results would establish his
actual innocence.
Trial Court Opinion, 4/26/2018, at 2.
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5 Upon review of the record, we note that there was no evidence presented
at trial to suggest that the victim was stabbed inside his vehicle.
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Upon review, we agree with the trial court’s assessment. Appellant’s
petition did not establish a prima facie case that the DNA results, if
exculpatory, would establish Appellant’s actual innocence. As previously
stated, the absence of evidence is not evidence of absence. Thus, even if
Appellant could establish the absence of his own DNA or the presence of DNA
from a third-party, such evidence would not establish that Appellant was
innocent. Moreover, as the trial court astutely noted, there is no evidence to
suggest when someone discarded the cigarette package in the vehicle. It may
have been there well before the killing. Although less likely, someone may
have discarded the cigarette package after the vehicle was stolen and/or
abandoned. Thus, we reject Appellant’s suggestion that it was more likely
than not that the cigarette package was linked to the car’s last occupants of
May 1987. Finally, even if tests revealed another party’s DNA on the cigarette
package, such evidence would not directly implicate that other person as the
killer (or co-defendant) or somehow exculpate Appellant. Appellant’s claim is
mere conjecture, as there is no direct correlation between the cigarette
package and the crimes. Thus, DNA tests would not establish Appellant’s
actual innocence. Because Appellant failed to satisfy the statutory
requirements listed in Section 9543.1, we discern no trial court error in
denying Appellant relief for DNA testing.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/11/2019
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