J-S42026-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GARY CLAY, :
:
Appellant : No. 1359 EDA 2018
Appeal from the Order Entered April 27, 2018,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0118521-1980.
BEFORE: OTT, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 18, 2019
Gary Clay appeals, pro se, from the order denying his motion for DNA
testing filed pursuant to Section 9543.1 of the Post Conviction Relief Act
(“PCRA”). 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court summarized the relevant facts as follows:
At trial, the Commonwealth presented the testimony of
Philadelphia police detectives Francis Selgrath and Anthony
Bonsera, Philadelphia police officer Kevin Corr, and [the
victim]. [Clay] presented the testimony of Mary McNeill
Greenwell and Carole Wardlaw. Viewed in the light most
favorable to the Commonwealth as verdict winner, the
evidence established the following.
The victim . . . was sleeping in her home located at 102
West Johnson Street in Philadelphia, during the early
morning hours of September 3, 1979. No one else was in
the home with her at the time. Around 6:00 A.M., [the
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S42026-19
victim] was awakened by a squeaking noise from the floor.
She then heard another noise, and saw [Clay] standing in
her bedroom doorway. [The victim] recognized [Clay] as an
employee of a thrift store that she had visited earlier that
week. After [the victim] had purchased some fire place
tools at the store, [Clay] had dropped the purchases off at
[the victim’s] home.
When [the victim] saw [Clay] in the doorway, she
immediately screamed. [Clay] then jumped on top of her
and began to punch her in the face and head. In order to
silence [the victim], [Clay] stuck his fingers down her
throat, and later gagged her. [Clay] also tied [the victim’s]
hands behind her back, tied her feet, and placed a pillow
case over her head. He then vaginally penetrated her with
his penis. After approximately twenty seconds, [Clay] got
up and rummaged around [the victim’s] room and then left.
Following the incident, [the victim] was interviewed by
detectives and identified [Clay] as her attacker [from] a
photo array.
PCRA Court Opinion, 7/31/18, at 3-4 (citations omitted).
The PCRA court further summarized the procedural history as follows:
On June 26, 1981, following a jury trial before the
Honorable Lynne Abraham, [Clay] was convicted of rape,
burglary, aggravated assault, and robbery. On May 13,
1982, the Court imposed an aggregate sentence of twenty-
five to fifty years of incarceration. On May 25, 1984, the
Superior Court affirmed [Clay’s] judgment of sentence, and
on October 12, 1984, [our] Supreme Court denied allocatur.
On August 4, 2009 [Clay] filed a pro se [PCRA petition],
in which he claimed that the Court’s sentence was illegal and
an abuse of discretion. As Judge Abraham had retired from
the bench, the PCRA matter was reassigned to the
undersigned[.] On May 27, 2011, pursuant to
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988), PCRA counsel filed a motion to withdraw as counsel
and a letter stating that there was no merit to [Clay’s]
claims for collateral relief. On July 28, 2011, the Court
dismissed [Clay’s] petition. The Superior Court affirmed the
dismissal of [Clay’s] PCRA petition on August 7, 2012.
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On November 15, 2016, [Clay] filed a pro se motion for
post-conviction DNA testing pursuant to 42 Pa.C.S. § 9543.1
of the PCRA. In particular, [Clay] requested DNA testing of
the victim’s clothing, rape kit, and other items. On March
2, 2017, the Commonwealth responded to [Clay’s] motion,
claiming that the requested DNA evidence was unavailable
because it has been discarded pursuant to established
protocol. However, the Commonwealth also stated in its
response that the Philadelphia Police Department’s Evidence
Custodian, Lieutenant Thomas Macartney, was continuing to
search for physical evidence in the case.
On March 21, 2017, [Clay] filed a motion for appointment
of counsel, which the Court granted on April 25, 2017[.] The
Court ordered an evidentiary hearing regarding the
availability of DNA evidence, which was conducted on
September 15, 2017. At the conclusion of that hearing,
[Clay’s] counsel requested an opportunity to conduct further
investigation, which the Court granted. The hearing was
resumed on April 27, 2018. Because counsel’s investigation
failed to uncover any new material, the hearing concluded
without the submission of any additional evidence. The
Court found that no DNA evidence was available for testing,
and therefore denied [Clay’s] motion. In addition, after
conducting a hearing pursuant to Commonwealth v.
Grazier, 713 A.2d 81, 82 (Pa. 1998), the Court granted
[Clay’s] motion to proceed pro se on appeal.
PCRA Court Opinion, 7/31/18, at 1-2 (citations omitted). This appeal followed.
Both Clay and the PCRA court have complied with Pa.R.A.P. 1925.
Clay now raises the following issues on appeal, which we reproduce
verbatim:
A. PCRA Court Has “Err” For failure To grant [Clay’s]
Application To Withdraw PCRA Counsel and Be Allowed
To Proceed Pro –Se Timely At The Evidentiary Hearing To
[Cross] Examine Lieutenant Thomas Macartney?
B. PCRA Court Has “Err” For failure To Allow [Clay] To
Testify Once PCRA Court Was Placed On Notice That
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[Clay] wishes To Testify Which Can Be supported By The
Record?
C. PCRA Court Has “Err” For [failure] To allow [Clay] To Call
Relevant Witnesses That Had Pertinent Information
Regarding Samples And Other Items identified Within His
Motion For forensic DNA Testing That Were Destroyed?
D. PCRA Counsel Has “Err[”] For Failure To rule on
application For a Bail After Finding of Guilt Knowing That
The Commonwealth Destroyed His DNA Evidence?
E. Ineffective Assistance Of PCRA Counsel For Failure To
Produce Evidence That Were In PCRA Counsel Possession
Of Documents At The Evidentiary Hearing Relating To
Ronald Castille, a Former District Attorney Approved To
have Samples and Other Items Identified Within [Clay’s]
Motion For Forensic DNA Testing Be Destroyed, Without
[Clay’s] Consent. The Former District Attorney Ronald
Castille and Police Department Held Ex Parte Proceedings
With Judge Hirst That Granted their Motion For
Destruction Of Property Without Defense Logging Any
Objection?
Clay’s Brief at 2.1
We review an order denying a motion for post-conviction DNA testing
as follows:
Generally, the [PCRA] 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.
____________________________________________
1 Despite our granting two extensions of time, the Commonwealth has failed
to file a brief in this appeal.
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J-S42026-19
Commonwealth v. Williams, 35 A.3d 44, 47 (Pa. Super. 2011) (citations
omitted).
Section 9543.1, in pertinent part, reads as follows:
§ 9543.1. Postconviction DNA testing
(a) Motion.—
(1) An individual convicted of a criminal offense in a court
of this Commonwealth and serving a term of 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:
(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
(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
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J-S42026-19
and may be used as evidence against the applicant in other
cases.
(2)(i) assert the applicant's actual innocence of the offense
for which the applicant was convicted[.]
***
(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;
(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:
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J-S42026-19
(i) would establish the applicant's actual innocence of the
offense for which the applicant was convicted[.]
42 Pa.C.S.A. § 9543.1.2
In addition to the above requirements, the PCRA petitioner may request
forensic DNA testing so long as that evidence is available for testing as of the
date of the motion. See, e.g., Commonwealth v. McLaughlin, 835 A2d
747, 750-51 (Pa. Super. 2003); Commonwealth v. Robinson, 682 A.2d 831
(Pa. Super. 1996).3 The PCRA court’s denial of Clay’s motion for DNA testing
was based upon its determination, after two hearings, that no evidence was
available for DNA testing. See PCRA Court Opinion, 7/31/18, at 6.
In his issues raised on appeal, Clay essentially challenges this
determination. After careful review, we conclude that the Honorable Glenn B.
Bronson has prepared a thorough and well-reasoned opinion that correctly
disposes of each of Clay’s claims either because the claim is refuted by the
record or otherwise without merit. We therefore adopt Judge Bronson’s July
31, 2018 opinion as our own in disposing of the present appeal. See id. at 6-
11 (concluding: a) Clay never requested to proceed pro se during Lieutenant
Macartney’s testimony at the September 15, 2017 hearing; b) the PCRA court
____________________________________________
2We note that the Pennsylvania legislature rewrote this section, effective
December 24, 2018. See Act-2018-147, § 1.
3 The current version of Section 9543.1 now expressly requires that the DNA
evidence exist at the time the motion is filed. See 42 Pa.C.S.A. § 9543.1(a)
(2) (providing “[t]he evidence shall be available for testing as of the date of
the motion”).
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J-S42026-19
never denied Clay the opportunity to testify; c) Clay did submit a letter to the
court in which he asked to call twelve witnesses, but counsel represented him
at the time and was free to determine that these witnesses were irrelevant to
Clay’s motion for DNA testing; d) the PCRA court in fact denied Clay’s motion
for bail; and e) Clay’s claim of PCRA counsel’s ineffectiveness lacks arguable
merit since the documents to which Clay referred to were cumulative of
evidence introduced at the evidentiary hearing that established that property
was destroyed “pursuant to ex parte applications from government officials to
a judge, which resulted in a court order approving the destruction”).4
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/19
____________________________________________
4The parties are directed to attach a copy of the trial court opinion to this
memorandum in the event of further proceedings.
-8-
Circulated 09/30/2019 01:08 PM
)
..
,I
I
!• IN THE COURT OF COMMON PLEAS FILED
l
! FIRST JUDICIAL DISTRICTOF PENNSYLVANIA
. . . . . CRIMINAL TRIALDIVISION 2018JUL 31 PH 2: 51
COMMONWEALTH OF
PENNSYLVANIA
.I"'--.
10;2,,",!I�� ·��m;
CP-51-CR�Dl v. �ray.��� ·
·Opm1911. ' ·
GARY CLAY
1111/H
"-
fl 111/1/IIIIIII
814350�811 .
-.·-.�
OPINION
BRONSON.J
. . ' ·� JulyJI, 201�
I. PROCEDURAL HISTORY
On June 26� 1981, following a jury trial before the Honorable Lynne Abraham, defendant
Gary Clay was convicted of'rape (18 Pa.C;S. § 3121), burglary (18 Pa.C.S. § 3502), aggravated
assaultfl S Pa,C.S. § 2702), and robbery (18 Pa.C.S. § 3121). On May 13� 1982, theCourt
imposed art aggr(;gate sentence oftwenty-fiveto fifty years incarceration. On May 25, 1984, the
Superior Court affirmed defendant's judgment ofsentence, andon October 12, 1984, the
Supreme Court denied allocatur.
On August 4, 2009, defendant filed a pro se petition under the Post Conviction Relief Act
("PCRA'\ in which he claimed that the Court's sentence was illegal and an abuse.ofdiscretion.
As Judge Abraham had retired from the bench, the PCRAmatter was reassigned to the
undersigned trial judge. On May 27, 2011, pursuant to Commonwealth v. Pinley; 550 A.2d .213
(Pa. Super. 1988), PCRA counsel filed a motion to withdraw as counsel and a letter stating that
there was no merit to defendant's claims for collateral relief. On July 28, 2011, theCourt
dismissed defendant's petition. The Superior Court affirmed the dismissal of defendant's .PCRA
petition <>ll August 7, 2012;
OnNovember 15� 2016; qefendant filed a pro se motion for post-conviction DNAtesting
pursuant to 42 Pa.¢.S. § 9543.l of the PCRA. In particular, defendant requested DNA testing of
the victim's clothing, rape kit, and other items. See Motion for DNA.Ballistic Forensic Testing
Finger Prints Testing of Clothing and Swab Testing atp .. l. On March 2, 2017, the
Commonwealth responded to defendant's motion, claiming that the requested DNAe�idence
was unavailable because it has been discarded pursuant to established· protocol. However; the
Commonwealth also stated in its.response
. that the Philadelphia
. Police Department's Evidence
Custodian, Lieutenant Thomas Macartney, was continuing to search for physical.evidence in the
case .. See Commonwealth's Motion to Dismiss Defendant's Petition for Post-Conviction DNA
Testing atp.5 n.3.
On March 21, 2017, defendant filed amotion for appointment ofcounsel, whichtbe
Court granted on April 2?., 2017� appointing GaryS .. Server, Esquire to represent defendant. The
Court ordered an evidentiary hearing regarding the availability of" DNA evidence, which was
conducted on September 15, 2017 .. At the conclusion of that hearing, defense counsel requested
art opportunity to conduct further investigation, which the Court granted. N.T. 9/15/i 7 at40-42.
!
The hearing was resumed on April 27, 20.18. Because counsel's investigation failedto uncover
arty new material, the hearing concluded without submission ofany additional evidence. The
Court found that no DNA evidence was available. for testing, and therefore denied defendant's
motion. N�T 4/27/18 at 6-7. In addition, after conducting a.hearing pursuant to Commonwealth
v. Grazier, 713 f\;2d 81, 82 (Pa. 1998), the Court granted defendant's motion to proceed prose
-on appeal. N.T. 4/27/J8 at Ll-15,
2
Defendanthas now appealed from the Court's order denying his motion for DNA testing,
raising five issues. See. Statement of Matters on Appear C'Statement of Matters"). i The issues
·set forth in the Statement of Matters are listed verbatim below in their entirety, without
corrections:
a. PCRA Court has "err» for failure to grant defendant's Application.to Withdraw
PCRA. Counsel and be allowed to Proceed Pro-Se timely at the evidentiary
hearing to cross examine Lieutenant Thomas Macartney;
b. PCRA Court has 'err' for failure. to allow defendant to testify once PCRA Court
was placed on notice that defendant Wishes to testify which can be supported by
the record;
c. PCRA Court has 'err' for failure to allow defendant to call relevant witnesses that
had pertinent information regarding samples and other items .identi.fied within his
Motion for Forensic DNA testing that were destroyed; ·
d. PCRA Counsel has 'err' for failure to rule on Application for a.Bail After Finding
of Guilt knowing that the Commonwealth destroyed his DNA evidence;
e. Ineffective Assistan of PCRA Counsel for failure to produce evidence that were in
PCRA Counsel. possession ofdocuments al the evidentiary hearing relating to
Ronald Castilleafcrmer Distinct Attorney approved to have samples and other
items idenitified within defendant's Motion for Forensic DNA testing be
destroyed within defendant's consent. The former District Attorney Ronald
Castille and Police Department held ex-parte proceedings with Judge Hirstthat
granted this motions for destruction ofprc;,perty without defense Iogging any
'objection. ·
Statement ofMatters at 11 a-e. For the reasons set forth below, defendant's claims are
. .
withoutmerit, and the Court's order denying.defendant's motion for post-conviction DNA
testing should be affirmed:
II. FACTUAL HISTORY
At trial, the Commonwealth presented the testimony of Philadelphia police detectives
Francis. Selgrath and. Anthony Bonsera, Philadelphia police officer Kevin Corr, and Sandra
IAlthough.defendant labels his first claim as" 1/' he proceeds to label his followirig fout claims as "b"-"e'." for
consistency, defendant's first claim w.m be referred to as "a." ..
.3
Speight. Defendant presented the testimony of Mary McNeill Greenwell and Carole Wardlaw.
Viewed inthe light most· favorable to the Commonwealth as the verdict winner, the evidence
established the following.
The victim, Sandra Speight, was sleeping in her home located at I 02 WestJohnson.Street
in Philadelphiaduring the early morning hours of September 3, 1979 .. N.T. 6/24/81 �t5. No
one else was in the home with her at the time, Id Around 6:00 A.M., Ms. Speight was
awakened by a squeaking noise from the.floor. N;t. 6i24/81 at 6. She thenheard another noise;
and saw defendant standing in her bedroom doorway. Id Ms. Speight recognized defendant as
an employee of a thrift store that she had visited earlier that week. N.T .. 6/24/81 at 11. After Ms;
Speight had purchased. some fire place tools at the store, defendant had dropped the purchases off
at Ms. Speight's.horne. N.T. 6/24/81 at 11, 13-1.5.
When Ms. Speight saw defendantin the doorway, she immediately screamed. N.T,.
6/24/8 l .at 7. Defendant then jumped on.tcp of her and began to punch her in the face and head.
Id lri order to silence Ms. Speight, .defendant.stuck his fingers down herthroat, and later gagged
her. N.T. 6/24/81 at 9� Defendant also tied Ms. Speighfs hands behind her back, tied her feet;
and placed a pillow case over her head, N.T. 6/24/81.:at 18. H'.e then vaginallypenetrated her
with his penis. N..T. 6/24/81 at 21. After apJ)roximately twenty.seconds, defendant got up and
. rummaged around Ms; Speight's room and then left. N .T.6/24/81 at 22.;23. Following the
incident; Ms; Speight was interviewed by detectives and identified defendant as her attackerin'a
photo array. N;T; 6/24/81 at34.,.36.
Ill. DISCUSSION
The Post Conviction Relief Act authorizesa defendant in custody to. filea motion for
DNA testing. Whether the defendant is entitled to such testing is.governed by criteria set forth in
4
the statute. See 42 Pa;C.S ..§ 9.543.1. Among the requirements is that the evidence sought to be
tested ' shall be available-for testing as of the date of the motion, '' 4.2 Pa. C.S;. § 95.43 .1 (a)(2).
4
Where the evidence defendant wishes to test has been lost Qr destroyed, there is nothing to test
and the motion is.properly denied. See Commonwealth v, ,McLaughlin, 835 A.2d 74 7, 750,Sl
(Pa. Super.2003) (motion for DNA testing of victim's.rape kitproperly denied where rape kit.
was no longer in existence).
Here, at the evidentiary hearing on defendant's motion, the Commonwealth presented the
testimony of Lieutenant Thomas.Macartney, evidence custodian for the Philadelphia Police
Department. Lieutenant Macartney testified that at the request of the Commonwealth> he.
conducted-a search for any paperwork or physical evidence related to defendant's case. N.T.
9/15117 at 12, 14. According to Lieutenant Macartney, the policedepartmenfs computerized log
books revealed that there were three property receipts associated with the case. 2 N :T. 9/15/17 at
13-14. However.jhelog books did not identify the property that was documented on each
receipt. N.T. 9/I 5/l7 .at 25. Therefore, Lieutenant Macartney also conducted a search for the
physical propertyreceipts, but wasunabletolocate them. N:T. 9/15/17af21,23.
The computerized records did. show, however, that the evidence documented on two of
the three property receipts had been destroyed in 1987 and 1988, respectivefyrpursuant to court
orders. N.T. 9/15/17 at 14�21. Although there was no record that the evidence recorded on the
third. property receipt had been destroyed, there was also no record of that prnperty ever being
received by the evidence custodian unit N.T� .9/15/17 at 14. The lieutenant explained that it was
possible that the: third property receipt was created but never used because it was not needed or
2
A police department property receipt i.s a record used to record all items of property obtained. by the police during
an iilvestigatipn, Each receipt is assigned a unique number, They are used f() keep trackof property and to establish
chain of custody,
s
was.voided after a mistake was made. N.T. 9/15/17 atJJ., Moreover; the, lieutenant, along with
· two police officers, searched allstorage facilities where the evidence might have been stored, but
could not locate the property receipt or any evidence.relatedto this case! N.T. 9/15/l7at 27, 29.
In addition; Lieutenant Macartney reviewed records that would have revealed if any evidence in
the case had been signed out by anyone, and it had not. Id
Based on his thorough investigation, Lieutenant Macartney concluded that with a
reasonable degree of certainty, all of the evidence from· this case. had been destroyed. N�T.
9/ l 5/17 at 35. The Court found Lieutenant Macartney to be credible.and concluded, on that
basis, that there was no evidence available in this case for DNA testing. N: T. 4/27/1.8 at 6 .. For
that.reason, the. Court denied defendant's motion. Id. Defendant now contends that the Court's
ruling should be.overturned for five reasons, each of which is discussed below.
A. Court's Denial of.Defendant's Motion to Proceed ProSe t:l.l Evidentiary Hearing
Defendant first.claims that the Court erred for failing to grant defendant's "Application to
Withdraw PCRA Counsel," so that he could proceed pro se at the evidentiary hearing and cross-
.examine Lieutenant Macartney, Statement of Matters at 1 a. However, defendant never
requested to proceed pro se during Lieutenant Macartney' s testimony during the.September 15,.
2017evidehtiary hearing. Rather. the record reveals that following Mr. Server's cross-
examination of the lieutenant, defendant said 'to Mr. Server: '�I would like for you to ask the
witness [Macartney] thatwas juston the standa couple ofquestions," N.T. 9/15/17 at 36.
-'.
Defendant then specified two additional areas for questioning, which were- then covered by Mr;
Server. N;T. 9/15/l7 a.J 36-38. After that, the hearing was. concluded, except for a continuance
to allow Mr, Server an opportunity to. obtain thenotes of testimony from the 1981 trial inorder
to see ifthey revealed any helpful material. When the hearing resumed on ApriJ 27, 2018, Mr,
Server reported that he had found no helpful material. As a result, the Court then madeflndlngs
and issued its ruling based.on the record from the September IS, 2017 hearing;
While defendant did ask to represent himself, he-failedto do so until December 9,.2017,
when he filed an Application to Withdraw PCRA Counsel and Proceed Pro-Se. However, by
that time, the entire evidentiary hearing had been concluded exceptfor Mr. Server's opportunity
to check the notes of testimony. When the hearing resumed in April of 2018, the Court advised.
defendant that he could hot take overpro se once the matterwas nearly completed. N.T. 4/27/18
at7. Moreover, defendant's complaints about Mr. Server; i.ncfodi�g his failure to call Governor
Rendell and the trial judge, Lynne Abraham, as witnesses, were baseless and not grounds to
grant an untimely request to proceed prose. However, the. Court explained to defendant that he
could proceed prose on appeal if he wished to do so, which defendant ultimately elected to do,
N. r, 4/271l8 at 7, ll -15.
Accordingly, defendant's request to represent himself was. untimely and properly denied.
No. relief is due.
B. Failure. a/Court to Permit Defendant to Testify U.S. 668, 694(1984). In
Pennsylvania, the Strickland standard. is interpreted as requiring proof that: (1) theclaim
underlying the ineffectiveness claim had arguable. merit; (2) counsel) s actions lacked any·
reasonable basis; and (3) the ineffectiveness of counsel. caused the petitioner prejudice.
10
Commonwealth v. lvJJ/ter, 987 A.2d 638, 648 (Pa. 2009); Commonwealth». Pierce,527 A.2d
973,. 975 (Pa. 1987). To satisfy thethirdprong of the test, the petitioner must prove that, but for
counsel's error, there is a reasonable probability that the outcome of the proceeding would have
been different. Commonwealth v. Sneed, 899 A.2d .1067, 1084 (Pa. 2006). (citing Strickland; 466
U.S. at 694).
Atrhe September' 15, 2017 evidentiary hearing, Lieutenant.Macartney explained that the,
destruction of property in this case was done pursuant to two court orders. According to
Lieutenant.Macartney, the police. commissioner requested the destruction of the property; along
with unrelated property from other cases. N:T. 9/15/17 at 16, 18, 20. The city solicitor's office
also requested the destruction. N.T. 9/15117 at 17-18, 2L In response, the Court ordered thatthe
evidence be destroyed. N. T. 9/15/17 at 19, 21. Atthe hearing, the Commonwealth presented the
actual court orders; which.stated that the DistrictAttorney's Office approved the-destruction.
See Commonwealth Exhibit.C-L
Accordingly, the .record at the hearing established that the property was destroyed
following the completion of defendant's direct appeals pursuant to ex parieapplic.atiohs from
government officials to ajudge, which resulted inacourt order approving the destruction.
Therefore; any documents in the possession of defense counsel which would have proven that
the District: Attorney and the police department applied to the judge for the destruction of
documents without giving notice to the defendant would have been cumulative .and irrelevant to
defendant's motioii. A& a result; defense counsel could net have been ineffective for failing to
introduce such documents at the hearing. Noreliefis.due,
11
IV. CONCLUSION
For all of the foregoing reasons, the Court's order denying defendant's motion for post-
conviction DNA testing should be affirmed.
BYTHECOURT:
,.(··J
·.··· .
.. ·..
. .
. . .
GLENN B. BRONSON,].
·-
l?
Commonwealth v, Gary Clay CP-51-CR-0118521-1980
Type of Order: l92�(a) Opinion
PROOF OF SERVICE
I hereby certifythat I am this day serving the foregoing Court Order upon the.persoms), and in
thernanner indicated below; which servicesatisfiesthe.requirements of Pa.R.Crim.P.J 14:
Defense Co.unsel/Party:
Gary Clay
AM-8402
SCI Forest
PO Box945
Marienville, PA 16239
Type ofService: ( ) Personalt) First Class Mail (X) Other, please specify: Certified Mail
District Attorney:
Lawrence Goode; Esquire
Interim Supervisor, Appeals Unit
Office.of'the District Attorney
Three South Penn Square
Philadelphia, PA 19107.;.3499
Type of Service () Personal O First Class Mail (X) Other, please specify:1nterofjice Mail
Additional CounseVParty:
Joseph D. .Seletyn, Esquire
Prothonotary
· Office ofthe Prothonotary - Superior Court
530 Walnut Street; Suite 315
Philadelphia, PA 19106
Type of'Service: () Personal (X) First Class Mail() Other, please specify:
Dated: July 31, 2018
Law Clerk to Hon. Glenn B.. Bronson