Com. v. Murchison, D.

J-E02004-22

2023 PA Super 80

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DEREK MURCHISON :
:
Appellant : No. 3585 EDA 2019

Appeal from the PCRA Order Entered November 27, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0913011-2002

BEFORE: PANELLA, P.J., OLSON, J., DUBOW, J., KUNSELMAN, J., NICHOLS,
J., MURRAY, J., McLAUGHLIN, J., McCAFFERY, J., and SULLIVAN,
J.

OPINION BY McCAFFERY, J.: FILED MAY 10, 2023

Derek Murchison (Appellant) appeals from an order entered in the

Philadelphia County Court of Common Pleas that dismissed, without a hearing,

his third petition filed pursuant to the Post-Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. As will be discussed below, a jury convicted Appellant

of first-degree murder and related charges in connection to the death of Linda

Willis (the victim). Appellant contends the PCRA court erred in finding he was

not entitled to relief when new DNA1 evidence revealed that (1) someone, not

____________________________________________

1 The term “DNA” refers to deoxyribonucleic acid, a molecule that carries and
encodes the human genome. The extraction and identification of unique
features of an individual’s DNA is used as an identification technique for
forensic purposes in criminal investigations. See Merriam-Webster’s
Collegiate Dictionary, 11th Ed., 2003.
J-E02004-22

Appellant, left blood at the crime scene, and (2) someone, again not him,

touched the weapon used in the commission of the murder, which contradicts

the prosecution’s theory of the case. Appellant suggests that if this new

evidence had been presented to the jury, it would have reached a different

outcome; and therefore, the court erred in dismissing his petition. For the

reasons below, we decline Appellant’s proffer to disturb the court’s

determination and affirm its order.

I. Facts and Procedural History

We begin by summarizing the evidence and testimony introduced at

Appellant’s trial and then will turn to a review of relevant post-conviction

proceedings, including Appellant’s acquisition of new DNA test results and his

related request for a new trial based upon this after-acquired evidence.2

A. Murder Investigation, Pretrial DNA Testing, & Trial

On October 5, 2001, the victim was found lying dead in her Philadelphia

home. At that time, Michael Cannon was a tenant in the victim’s home and

served as a key Commonwealth witness at Appellant’s trial. He testified about

events that occurred at the victim’s residence, her personal relationships, and

his discovery of her body on October 5th. Cannon described how the victim,

an addict, permitted people to smoke crack cocaine in her living room in

____________________________________________

2 The facts have been summarized from the PCRA court’s June 25, 2020,
Pa.R.A.P. 1925(a) opinion and the certified record.

-2-
J-E02004-22

exchange for drugs. In addition, she provided sexual services to Cannon and

other men to obtain funds to support her drug habit. The victim also

maintained a romantic relationship with an individual named Cornell Mayrant.

According to Cannon, Appellant was a close acquaintance of the victim

and a frequent visitor in her home around the time of the murder. Appellant

shared a crack cocaine habit with the victim and, according to Cannon, the

two collaborated in a scheme to purchase the drug. As part of this

arrangement, Appellant stole items of clothing from his employer and gave

them to the victim who, in turn, exchanged them on the street for money

and/or drugs.

On October 4, 2001, at about 11:00 p.m., Cannon was lying down in his

upstairs bedroom in the victim’s home when he heard her call for him from

the living room. Cannon, however, did not respond as he assumed the victim

intended to ask for money to buy crack, as she frequently did. Cannon claimed

he did not hear sounds of a struggle on October 4th. The next day, Cannon

twice walked by the victim’s body as it lay on the couch, thinking she was

merely sleeping. He later telephoned the police after discovering, around 7:30

p.m., that the victim was dead.

When police investigators arrived at the victim’s home, they discovered

a five-foot wooden bed slat or board in her living room next to her sofa. Blood

on the board suggested it was used in an attack on the victim. A toy fire truck

was recovered on top of the board and a bloody, trampled newspaper

-3-
J-E02004-22

confirmed that a struggle occurred in the victim’s residence. Investigators

noted that she was naked below the waist and that her underwear was located

on the floor near the sofa.

Investigators collected several items for forensic testing in addition to

the board, the toy truck, and the newspaper. These items included a white

towel and a gray blanket recovered from the victim’s sofa. Because Cannon

got the victim’s blood on his clothing when he found her, police officials

collected his boxer shorts, jacket, t-shirt, jeans, socks, and sneakers.

Subsequently, investigators submitted blood stains found on Cannon’s boxers,

jeans, and a single sock for DNA testing.

No fingerprint evidence linked Appellant to the victim’s murder. At the

time of Appellant’s 2004 trial, police investigators were unable to recover

fingerprint evidence from the wooden board believed to have been used in the

assault on the victim. Moreover, a partial fingerprint lifted from the toy fire

truck found at the crime scene offered insufficient points for identification.

Testimony elicited from the medical examiner (ME) revealed that the

victim died from asphyxiation caused by strangulation inflicted over the

course of several minutes.3 Her face, head, neck, and ribs also bore scratches,

____________________________________________

3 The victim’s time of death was not clearly established by the evidence
introduced at trial. The ME estimated that the victim died between midnight
and noon on October 5, 2001, or possibly earlier. This timeline, however,
conflicted with the testimony of two witnesses, Faithlyn Gordon (Gordon) and
Mayrant, who claimed they saw the victim on her porch around 4:00 p.m. on
(Footnote Continued Next Page)

-4-
J-E02004-22

abrasions, bruises, and other indicia of blunt force trauma consistent with

strikes from a blunt object. Toxicology tests showed that the victim ingested

cocaine up to an hour before her death.

The victim’s state of undress caused investigators to suspect sexual

assault. Notwithstanding these suspicions, tests performed on oral, rectal,

and vaginal swabs obtained during the victim’s autopsy did not reveal the

presence of spermatozoa. Despite extensive pretrial forensic testing, no DNA

analysis linked Appellant to the crime scene.

A post-mortem examination showed the presence of human tissue

under the victim’s fingernails and DNA testing of this tissue revealed

contributions from two unknown males. The contributors’ DNA did not match

the DNA profiles of Appellant, Cannon, or Mayrant. Forensic testing also

showed that the DNA profile of the tissue recovered from the fingernails of the

victim’s left hand differed from the DNA profile of the tissue recovered from

the fingernails of her right hand.

Laboratory technicians conducted pretrial DNA testing on the wooden

board, the toy fire truck, the gray blanket, and the white towel recovered on

or near the living room sofa where Cannon discovered the victim’s body. DNA

material recovered from blood stains on the wooden board and the toy fire

____________________________________________

October 5th, only a few hours before Cannon claimed to have discovered the
victim’s corpse and telephoned authorities. See N.T., 6/14/04, at 107-125.

-5-
J-E02004-22

truck was consistent with the victim’s genetic profile. However, forensic tests

available at the time of Appellant’s trial were unable to detect DNA deposits

on the wooden board and the toy fire truck from any other contributor.

Investigators also analyzed blood and semen deposits recovered from

the gray blanket collected at the crime scene. DNA testing of the blood stains

found on the blanket identified the victim as a contributor. These laboratory

tests excluded Appellant, Cannon, and Mayrant as contributors. Analysis of

semen stains on the blanket also excluded Appellant, Cannon, and Mayrant.

However, partial DNA profiles from at least three unknown men were

recovered from the semen deposits on the blanket.

Two suspected semen stains on the white towel were also subjected to

forensic analysis. Appellant and Mayrant were excluded as contributors of

genetic material recovered from both areas. Cannon could not be excluded

as a minor contributor of genetic material recovered from one of the stains

found on the towel. Partial DNA profiles from no fewer than two unknown

males were developed from tests performed on the semen stains found on the

towel.

Forensic analysts also subjected Cannon’s boxer shorts, jeans, and a

single sock to DNA testing. The victim was included as a contributor to a blood

stain found on the heel of Cannon’s sock. DNA testing techniques available

prior to Appellant’s trial could not definitively identify contributors to the blood

-6-
J-E02004-22

stains found on Cannon’s boxer shorts and jeans. The victim, however, could

not be excluded as the source of blood4 found on Cannon’s underwear.

Without forensic evidence that connected Appellant to the crime scene,

the Commonwealth’s case relied heavily upon the testimony of three

witnesses who relayed what Appellant said to them in the days, weeks, and

months following the victim’s murder. None of these individuals, however,

witnessed the killing.

The first witness, Karen Thomas,5 met Appellant when she lived in the

victim’s home for approximately one month in 2001. Sometime between 2:00

a.m. and 3:00 a.m. on October 5, 2001, Thomas observed Appellant two

blocks from the victim’s residence carrying a tote bag that contained clothing

he was attempting to sell. According to Thomas, Appellant complained that

he just left the victim’s home because “that bitch put [him] out.” PCRA Ct.

Op., 6/25/20, at 3. Appellant then asked Thomas if she knew where or to

whom the victim sold clothing. Thomas declined to answer and walked away

from Appellant.

____________________________________________

4 We note the blood on Cannon’s underwear was described as “a small and
rather light blood stain.” N.T., 6/11/04, at 60.

5 Thomas testified that the Commonwealth agreed to assist her in enrolling
in a drug rehabilitation program in exchange for her testimony at Appellant’s
2004 trial.

-7-
J-E02004-22

The second witness, Dasheika Bowie, the mother of four of Appellant’s

children, testified that she and Appellant shared a residence in October 2001,

but they were no longer were in a romantic relationship at the time of

Appellant’s 2004 trial. According to Bowie, Appellant returned to their shared

residence one evening in October 2001 and told her he had been in a fight

with a young guy and his girlfriend. Appellant presented with a black eye,

scratches on his neck, and an injured lip. Bowie testified that Appellant said

he hit the woman with “a stick” and left the area without knowing whether

she was dead or alive. PCRA Ct. Op. at 3. Appellant also told Bowie that he

refused a request by the young man to “finish [the woman] off” after striking

her. Id.

The final witness, Carolyn Hunt, is the mother of two of Appellant’s

children. Hunt testified that she introduced Appellant to the victim sometime

between 1998 and 1999 when she resided in the victim’s home. According to

Hunt, Appellant came to her residence in January 2002 and confessed to killing

the victim. Specifically, Appellant admitted that he knocked the victim

unconscious with a punch to the face because she could not account for a

shortage in either crack cocaine or money from one of their clothing

transactions. When the victim regained consciousness, Appellant strangled

her and struck her in the head with a stick before leaving the house covered

-8-
J-E02004-22

in blood. Appellant also told Hunt that he believed he heard someone upstairs

in the victim’s house when he and the victim began to argue.6

To support its case at trial, the Commonwealth introduced evidence

intended to demonstrate Appellant’s consciousness of guilt. This evidence

consisted of police testimony concerning two events. In the first episode,

Appellant, on August 3, 2002, attempted to escape custody by climbing

through the ceiling of a police interview room while awaiting interrogation.

See PCRA Ct. Op. at 5 n.3. In the second episode, a sheriff’s detective

thwarted Appellant’s attempt to escape custody by climbing through a vent in

the ceiling of a holding room at the courthouse. See id.

The Commonwealth also introduced a letter Appellant wrote to Hunt

from prison four months after she testified at his preliminary hearing. In it,

Appellant appeared to concede his presence at the crime scene, stating he did

not kill the victim but merely found her dead. He also appeared to warn Hunt

against becoming involved in the case, telling her to “think about what [she

is] saying” and suggesting that she “made a very, very big mistake.” See

N.T., 6/10/04, at 138-144, 159, 172.

____________________________________________

6 The Commonwealth also called Nola Rutledge to rebut Appellant’s attacks
on Hunt’s credibility. Rutledge testified that Hunt contemporaneously
informed Rutledge about Appellant’s confession. Rutledge also testified that,
in January 2002, Hunt told Rutledge that Appellant admitted that he choked
the victim and struck her with something while the two argued. See N.T.,
6/11/04, at 6-21.

-9-
J-E02004-22

At the conclusion of trial on June 16, 2004, a jury found Appellant guilty

of first-degree murder in the victim’s death, as well as possession of an

instrument of crime (“PIC”) and escape.7 Thereafter, on August 10, 2004, the

trial court sentenced Appellant to serve life imprisonment without the

possibility for parole for his first-degree murder conviction. In addition, the

court imposed two to five years’ imprisonment for PIC and one to two years’

incarceration for escape, to run consecutively to one another, but concurrently

to Appellant’s sentence for first-degree murder.

B. Direct Appeal and Earlier PCRA proceeding

This Court considered this matter twice on direct appeal. In the first

direct appeal, a panel affirmed Appellant’s judgment of sentence after

determining that Appellant waived his appellate claims because counsel failed

to file a complete set of trial transcripts and failed to develop meaningful

arguments with specific references to the record. See Commonwealth v.

Murchinson, 899 A.2d 1159, 1162 (Pa. Super. 2006).8 This Court again

affirmed Appellant’s convictions and sentences after Appellant’s direct appeal

____________________________________________

7 See 18 Pa.C.S. §§ 2502, 907, and 5121(a), respectively. Appellant was
originally charged with criminal homicide, encompassing first-degree murder,
third-degree murder, and voluntary manslaughter. All three homicide
offenses were submitted to the jury for consideration.

8 Our prior decisions disposing of Appellant’s first and second direct appeals
were captioned as “Commonwealth v. Murchinson,” whereas Appellant’s name
in the instant appeal is spelled “Murchison.” We shall refer to the respective
cases according to the spelling which appears in each caption.

- 10 -
J-E02004-22

rights were reinstated pursuant to an order granting collateral relief. See

Commonwealth v. Murchinson, 708 EDA 2007 (unpub. memo.) (Pa. Super.

Apr. 28, 2008). The Pennsylvania Supreme Court denied Appellant’s

subsequent petition for allowance of appeal. See Commonwealth v.

Murchison, 286 EAL 2008 (Pa. Oct. 17, 2008).

Appellant filed a second PCRA petition (his first substantive petition) on

January 9, 2009, alleging ineffective assistance of both trial and appellate

counsel. After counsel was appointed, the PCRA court denied the petition

without a hearing on May 24, 2010. We affirmed the order denying collateral

relief on May 3, 2011. See Commonwealth v. Murchison, 1574 EDA 2010

(unpub. memo.) (Pa. Super. May 3, 2011).

C. Present PCRA Petition & New DNA Testing

In the years following Appellant’s trial, significant advancements in DNA

collection and profiling technology have occurred. Newly-emerged extraction

techniques and analytical methodologies, known as “Touch DNA” or “Contact

Trace DNA,”9 now enable the collection of DNA from traces of blood, skin cells,

sweat, semen, tears, or mucous that may remain on a surface. Availing

____________________________________________

9 Touch DNA, also known as Trace DNA “is a forensic method for analyzing
DNA left at the scene of a crime. It is called ‘touch DNA’ because it only
requires very small samples, for example from the skin cells left on an object
after it has been touched or casually handled, or from footprints.” See Touch
DNA, WIKIPEDIA, THE FREE ENCYCLOPEDIA,
https://en.wikipedia.org/wiki/Touch_DNA, (last visited January 25, 2022)
(footnotes omitted).

- 11 -
J-E02004-22

himself of this new technology, Appellant, on October 18, 2012, filed a petition

for DNA testing pursuant to 42 Pa.C.S. § 9543.1, followed by an amended

petition on June 13, 2013. On June 3, 2014, the court granted the petition

and ordered DNA testing of materials that remained within the

Commonwealth’s custody.

On September 4, 2015, Appellant filed a PCRA petition alleging that

newly-obtained, exculpatory DNA test results met the criteria for after-

acquired evidence that would entitle him to relief. See 42 Pa.C.S. §

9543(a)(2)(vi).10 Appellant’s petition relied upon several new DNA laboratory

reports issued between September 4, 2015, and July 6, 2016.11 Among other

things, the reports revealed the following new findings, which were compared

to the pretrial testing results.

First, the wooden board. Pretrial forensic testing of blood stains on

the wooden board established the presence of DNA consistent with the victim’s

genetic profile. Those forensic tests, however, were unable to detect DNA on

the wooden board from any other contributor. New tests conducted on

portions of the wooden board that were not stained with the victim’s blood

revealed the presence of trace DNA from an unknown contributor who could

____________________________________________

10 The petition was amended on July 6, 2016, to address additional DNA test
results.

11Specifically, there were three reports dated June 15, 2015, July 6, 2015,
and May 4, 2016.

- 12 -
J-E02004-22

not have been Appellant. See Petition for Post-Conviction Relief Pursuant to

42 Pa.C.S. § 9543, 9/4/15, Exhibit A, DNA Lab Report, 7/6/15, at ¶¶ 1 and 2

and Exhibit B, DNA Lab Report, at ¶ 6. Mayrant could not be excluded as a

contributor to the trace DNA deposit obtained from the area of the board that

was not bloodstained. See id. at ¶ 6.

Next is Cannon’s sock. Pretrial DNA analysis confirmed the victim as

a contributor to a blood stain found on the heel of Cannon’s sock. New tests,

however, showed the presence of DNA from a second, unknown contributor

(not Appellant) in the blood stain found on the heel of Cannon’s sock. See

Petition for Post-Conviction Relief Pursuant to 42 Pa.C.S. § 9543, Exhibit B,

DNA Lab Report, 6/15/15, at 1-2 (two contributors to blood stain); see also

DNA Lab Report, 7/6/15, at ¶ 2 (excluding Appellant as contributor).

Third is Cannon’s boxer shorts. Pretrial DNA testing techniques

could not definitively identify contributors to the blood stain found on Cannon’s

boxer shorts. The victim, however, could not be excluded as a source of this

deposit. New tests definitively identified the victim as the source of blood

detected on Cannon’s boxer shorts.12 See DNA Lab Report, 6/15/15, at ¶ 2.

____________________________________________

12The DNA sample was taken from the inside waistband of Cannon’s boxer
shorts. See DNA Lab Report, 6/15/15, at 1.

- 13 -
J-E02004-22

Lastly, a blanket and towel.13 Pretrial testing detected three

unknown contributors to the semen stains found on the blanket recovered

from the victim’s sofa. Cannon could not be excluded as a minor contributor

for the sperm found on the towel.14 New tests excluded Appellant as a

contributor of the sperm found on both items. The tests further established

four more unknown male contributors to the semen stains found on the

blanket, and the the towel revealed two unknown male DNA profiles. See

Amended Petition for Post-Conviction Relief Pursuant to 42 Pa.C.S. § 9543,

7/5/16, at ¶¶ 11 and 40; see also id. at Exhibit E, DNA Lab Report, 5/4/16,

at 1-2.

On July 9, 2019, the Commonwealth submitted a letter to the PCRA

court stating that “after thoroughly reviewing the DNA testing results and the

trial notes, the Commonwealth will agree to PCRA relief.” Commonwealth

Letter, 7/9/19. The Commonwealth’s letter further advised the PCRA court

that, in exchange for the Commonwealth’s agreement not to oppose

Appellant’s request for PCRA relief, Appellant agreed to “plead nolo

contendere to third-degree murder and PIC with a negotiated term of

incarceration of 20- to 40 years.” Id.

____________________________________________

13Police recovered the blanket and towel from the couch where the victim’s
body was found. See Petition for Post-Conviction DNA Testing Pursuant to 42
Pa.C.S. § 9543.1, 10/18/2012, at 6.

14 See N.T., 6/11/04, at 115.

- 14 -
J-E02004-22

However, on October 29, 2019, the PCRA court issued notice of its intent

to dismiss Appellant’s petition pursuant to Pa.R.Crim.P. 907. The court’s

notice declared that Appellant’s petition was untimely and lacked merit.

Appellant responded to the court’s notice on November 15, 2019.15

On November 27, 2019, the PCRA court entered its order dismissing

Appellant’s petition for untimeliness and lack of merit. Appellant filed a timely

notice of appeal on December 17, 2019. The PCRA court did not order

Appellant to file a concise statement of errors complained of on appeal but

issued an opinion pursuant to Pa.R.A.P. 1925(a) on June 25, 2020.

In its opinion, the PCRA court reversed its earlier determination, as

noted in its Rule 907 notice and order, that Appellant’s petition was untimely

and, instead, explained that Appellant’s timely petition was nonetheless

subject to dismissal because it lacked substantive merit. See PCRA Ct. Op.

at 2 n.2 (finding Appellant’s petition timely under 42 Pa.C.S. § 9543.1(f)(1)16).

____________________________________________

15 On November 26, 2019, the Commonwealth reiterated its position that
Appellant was entitled to relief in the form of a new trial, emphasizing its view
that the new DNA test results, if presented at Appellant’s 2004 trial, likely
would have produced a different outcome. See Commonwealth Letter,
11/26/19.

16Section 9543.1(f)(1) provides: “After the DNA testing conducted under this
section has been completed, the applicant may, pursuant to section
9545(b)(2) (relating to jurisdiction and proceedings), during the one-year
period beginning on the date on which the applicant is notified of the test
results, petition to the court for postconviction relief pursuant to section
9543(a)(2)(vi) (relating to eligibility for relief).”

- 15 -
J-E02004-22

As there is no dispute surrounding the timeliness of Appellant’s petition, we

shall not discuss this issue further.

II. Questions Presented

Appellant raises the following issues for our review:

Did the PCRA court err in finding that the new evidence
identifying “touch” DNA on the wooden board that belonged to
someone other than [Appellant] was “the same” as DNA evidence
presented at trial showing merely that blood from two stains on a
different part of the wooden board belonged to the victim?

Did the PCRA court compound that error by concluding,
[based upon] that erroneous finding, that all of the new DNA
evidence – including not only the new “touch” DNA on the board,
but also new DNA evidence showing blood from a second person
at the crime scene who was not [Appellant] – was “merely
cumulative” of evidence presented at trial?

Did the PCRA court err as a matter of law when it applied
the wrong legal standard and dismissed [Appellant’s] unopposed
PCRA petition on the basis that the new evidence did not by itself
“establish his actual innocence” and therefore would not have led
to a different outcome?

Appellant’s Brief at 3-4.

III. Argument

Appellant alleges in this appeal that the PCRA court made erroneous

findings of fact and conclusions of law in rejecting his claim that the results of

new DNA testing constitute after-discovered evidence which entitle him to

relief under 42 Pa.C.S.A. § 9543(a)(vi). As Appellant’s claims are closely

related, we address them in a single discussion.

Appellant first contends that the new DNA evidence is not the same as

the DNA evidence presented at his 2004 trial. See Appellant’s Brief at 26. He

- 16 -
J-E02004-22

specifically points to the wooden board and states, “the PCRA court repeatedly

relied on the proposition that the jury heard evidence at trial ‘that

[Appellant’s] DNA was not on the wooden slat,’ and that the new DNA evidence

regarding the wooden board is the same as the DNA testing presented at

trial[.]” Id. at 26-27 (reproduced record citations omitted). Appellant avers,

“This flawed factual premise is not supported by the record and led, in turn,

to a flawed legal analysis of the second prong of the test for whether new

evidence warrants PCRA relief – namely, whether the new evidence is merely

corroborative or cumulative.” Id. at 27. He further asserts the jury never

heard that his DNA was not on the board, but rather, “the Commonwealth

used the two pre-trial DNA test results from the board merely to show that

[the victim]’s blood was on the board, and to support the inference that

someone had beaten her with the board.” Id. at 28. He states, “The results

of the DNA evidence heard by the jury merely confirmed that obvious

inference.” Id.

Appellant then turns to the new DNA evidence and alleges “it was the

first time that any evidence was presented either connecting, or eliminating

any particular person, let alone [him], from touching that area of the board.”

Id. at 29-30. Therefore, Appellant argues the court erred in finding that the

new evidence was merely cumulative because the “systematic exclusion of

[himself] from the board used to beat [the victim] is evidence of a completely

different character than the identification of [the victim]’s blood on the board.”

- 17 -
J-E02004-22

Id. at 30. He also suggests that the presence of an unknown person’s DNA

on the board “tends to show that a person held the board before leaving it at

the crime scene, and that person was not” Appellant. See id. at 32 (emphasis

omitted). Additionally, Appellant highlights purported discrepancies with the

testing of Cannon’s sock, his boxer shorts, the blanket, and towel. See id. at

32-34. He contends that the new DNA evidence raises credibility questions

concerning Cannon’s testimony, and “provides far more persuasive support

for [his] innocence than was previously available[ as it is] far more than

merely corroborative or cumulative.” Id. at 34.

Appellant also contends the new DNA evidence would likely result in a

different outcome because the Commonwealth’s case centered on

circumstantial evidence, and thus, “the new evidence would have had a

substantial impact on the jury’s deliberation and would likely have changed

the outcome of the case.” Appellant’s Brief at 34. He asserts the PCRA court

relied upon the wrong standard when it stated that the new evidence could

not “establish his actual innocence.” See id. (citation omitted). Appellant

states that the PCRA requires only that the new evidence “would have changed

the outcome of the trial if it had been introduced.” See id. at 35, citing 42

Pa.C.S. § 9543(a)(2)(iv). He reiterates that the new DNA evidence shows

that someone touched the unstained end of the wooden board that was used

- 18 -
J-E02004-22

to beat the victim, and that he was not that person. Id. at 37.17 Lastly,

Appellant states the Commonwealth’s “concession” that the “new evidence

would likely change the result should be afforded significant persuasive value

by this Court.” Id. at 39.

IV. Argument

Our standard of review of an order denying PCRA relief is well-

established:

Our review of a PCRA court’s decision is limited to examining
whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error. We view the findings of the PCRA court and the evidence
of record in a light most favorable to the prevailing party. With
respect to the PCRA court’s decision to deny a request for an
evidentiary hearing, or to hold a limited evidentiary hearing, such
a decision is within the discretion of the PCRA court and will not
be overturned absent an abuse of discretion. The PCRA court’s
credibility determinations, when supported by the record, are
binding on this Court; however, we apply a de novo standard of
review to the PCRA court’s legal conclusions.

Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (citations and

quotation marks omitted).

To be entitled to PCRA relief, a petitioner must plead and prove by a

preponderance of the evidence, that his conviction or sentence resulted from

____________________________________________

17 Appellant also speculates that “the jury struggled to reach its verdict”
because it “deliberat[ed] over the course of two days and ask[ed] multiple
questions, including about lesser degrees of murder.” Appellant’s Brief at 38.

- 19 -
J-E02004-22

one or more of the circumstances enumerated in 42 Pa.C.S. § 9543(a)(2),

which provides, in relevant part:

(2) That the conviction or sentence resulted from one or more of
the following:

* * *

(vi) The 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).

To establish such a claim, a petitioner must prove that (1) the
evidence has been discovered after trial and it could not have been
obtained at or prior to trial through reasonable diligence; (2) the
evidence is not cumulative; (3) it is not being used solely to
impeach credibility; and (4) it would likely compel a different
verdict.

Commonwealth v. Cox, 146 A.3d 221, 228 (Pa. 2016) (citations and

quotation marks omitted). See also Commonwealth v. Small, 238 A.3d

1267, 1273 n.1 (Pa. 2020); Commonwealth v. D'Amato, 856 A.2d 806, 823

(Pa. 2004).

IV. PCRA Court’s Findings

Here, the PCRA court found the following,

[Appellant] is unable to prove that the more recent DNA results
are not cumulative and would have likely compelled a different
verdict.

First, none of the claimed “new” DNA results are in fact new
and would be cumulative of the evidence already produced at trial.
[Appellant] makes much of the fact that he was excluded as a
contributor of DNA on the wooden slat. However, at trial, the jury
was, in fact, presented with evidence that [Appellant]’s DNA was

- 20 -
J-E02004-22

not on the wooden slat. Moreover, they also were informed that
he was not one of the contributors of the sperm on the towel and
blanket and that there were several unknown male contributors of
DNA on the towel and blanket.5 The only truly “new” piece of
information from the more recent DNA testing is that the DNA on
Cannon’s sock came from [the victim] and an unknown person.
Significantly, at trial, the jury learned that the DNA from Cannon’s
sock came from [the victim], but did not know about the unknown
person’s DNA. . . . Thus, the DNA results from the most recent
testing are cumulative of the DNA evidence that was produced
already at trial.

________________

5 [The victim] engaged in prostitution to support her drug
habit; therefore, it would not be strange for multiple men’s
semen to be on items in her home. Clearly, the jury did not
give this much weight.
________________

[Appellant] argues that the newer DNA testing results,
specifically the lack of [his] DNA on the wooden slat, are not
“merely” cumulative, but are “of a higher grade or character than
what was previously presented on a material issue,” and therefore
support relief. See . . . Small, [189 A.3d at 975]. However, to
the contrary, this evidence is not of a higher grade or character.
In fact, it produced the very same result, namely, that
[Appellant]’s DNA was not found on the wooden slat. Thus, the
jury already was presented with this evidence at trial and,
knowing that [Appellant]’s DNA was not on the wooden slat, chose
to find him guilty of [the victim’s] murder.

Last, none of this claimed “new” DNA evidence is
exculpatory in any way and would not have changed the outcome
at trial. Pennsylvania courts have repeatedly held that negative
DNA results, meaning cases where a person’s DNA material is not
found, do not establish actual innocence. Commonwealth v.
Brooks, 875 A.2d 1141, 1147 (Pa. Super. 2005). “In DNA as in
other areas, an absence of evidence is not evidence of absence.”
Id. (quoting Commonwealth v. Heilman, 867 A.2d 542, 544
(Pa. Super. 2005)). See also Commonwealth v. Smith, 889
A.2d 582, 586 (Pa. Super. 2005) (“The absence of [the]
appellant’s DNA [in or on the evidence to be subjected to testing]
cannot be meaningful and cannot establish his actual innocence of

- 21 -
J-E02004-22

the murder.”). The fact that [Appellant]’s DNA was not found on
these items, particularly the wooden slat, is meaningless and does
not establish his actual innocence of killing [the victim] by
strangulation. What renders it even more meaningless is that the
jury was presented with this same evidence at trial ─ that
[Appellant]’s DNA was not detected at the crime scene ─ and the
jury still chose to find [him] guilty of [the victim’s] murder.
Furthermore, the medical examiner determined that [the victim’s]
cause of death was manual strangulation, not trauma caused by
the wooden slat. (N.T. 6/10/04, p. 55). Thus, whether
[Appellant] was excluded as a source of DNA on the wooden slat
in no way establishes his actual innocence since the wooden slat
was not even the murder weapon. The record demonstrates that
the jury convicted [Appellant] not based upon DNA evidence, but
rather upon the medical examiner’s conclusion that [the victim]
was strangled, by witness Thomas’ testimony that placed
[Appellant] near [the victim’s] house with a bag of stolen clothes,
and by [Appellant]’s own confessions to witness[es] Hunt and
Bowie. Since there was overwhelming witness testimony at
[Appellant]’s trial, [he] is unable to show that his newer DNA
testing results would likely compel a different verdict. Thus, no
relief is due.

PCRA Ct. Op. at 8-10 (emphasis in original).

III. Analysis

We agree with the PCRA court’s determination that the new DNA testing

is merely cumulative and was not likely to compel a different result. As such,

we affirm on the basis of its opinion, but set forth the following additional

analysis.

First, it is imperative to compare the pretrial DNA evidence with the

“new” DNA evidence. The pretrial DNA evidence revealed the following: (1)

the two male contributors of DNA found under the victim’s fingernails did not

match the DNA profiles of Appellant, Cannon, or Mayrant; (2) forensic tests

were unable to detect DNA deposits on the wooden bed slat or toy fire truck

- 22 -
J-E02004-22

besides the victim; (3) blood and semen testing of the grey blanket excluded

Appellant, Cannon, and Mayrant as contributors; (4) semen testing of a towel

excluded Appellant and Mayrant, but Cannon could not be excluded as a minor

contributor; and (5) analysis of Cannon’s boxer shorts (upper left rear), jeans

(upper right leg), and a sock (heel) revealed the victim as a contributor on his

sock only, but contributors to the blood stains on his underwear and jeans

could not be definitively identified though the victim could not be excluded. 18

In comparison, the “new” DNA evidence now revealed that (1) testing

of the wooden slat presented the victim’s DNA, as well as the presence of

trace DNA from an unknown contributor who could not have been Appellant;

(2) there was the presence of a second, unknown contributor in the blood

stain found on Cannon’s sock and Appellant was excluded as a contributor;

(3) the victim was the source of blood detected on Cannon’s boxer shorts; and

(4) a fourth unknown contributor was found as to the semen stains on the

blanket.

Contrary to Appellant’s argument, when viewing the two kinds of

evidence together, the “new” testing provides no substantial change in the

evidence apart from (1) the victim’s blood officially being confirmed on

Cannon’s boxer shorts and (2) Appellant being excluded as the unknown

____________________________________________

18The locations of the blood stains were taken from Appellant’s amended PCRA
petition. See Petition for Post-Conviction DNA Testing Pursuant to 42 Pa.C.S.
§ 9543.1 at 6.

- 23 -
J-E02004-22

contributor on the wooden board. Nevertheless, with respect to that board,

no other person’s DNA was identified on the wooden slat beside the victim’s

at the time of Appellant’s trial or now. While the “new” DNA testing revealed

the presence of trace DNA from an unknown contributor who could not have

been Appellant, this cannot be viewed as consequential concerning the

outcome of the trial when looking at the other evidence.

We emphasize the fact the victim’s cause of death was manual

strangulation. See N.T., 6/10/04, at 55. When reviewing the totality of the

circumstances in connection with this crucial fact, the “new” DNA evidence is

neither inculpatory nor exculpatory. The PCRA court centered its analysis on

this fact. Indeed, the “new” DNA evidence neither implicates Appellant nor

exonerates him. At best, it introduces evidence of a third-party contributor

with respect to Cannon’s clothing, but the jury was presented with similar

evidence at the 2004 trial as to possibility of other contributors, including

Cannon, and it still chose to find Appellant guilty.

Moreover, the fact that the “new” DNA evidence confirming the victim’s

blood on Cannon’s boxer shorts is not as outcome determinative as Appellant

suggests. The jury was presented with testimony that Cannon was the first

person to discover the victim’s body. He testified that he saw her body on the

couch and tried to wake her up by shaking her head. See N.T., 6/9/04, at

89-90. There was also testimony that the victim’s nose was caked with blood,

there was blood coming out of her ear, and blood around her as well as on the

- 24 -
J-E02004-22

floor. See id. at 21, 23. Based on this testimony, the jury could have inferred

that when Cannon reached down to touch the victim, her blood would most

likely end up on his clothing. As such, the confirmation of the victim’s DNA

on Cannon’s boxer shorts is insignificant when looking at the testimony in

toto.

Likewise, the evidence of the unknown contributors on the blanket, the

towel, Cannon’s sock, and trace materials on the wooden board is also

insignificant in light of the fact that the jury was presented with the following

evidence: (1) the victim was a crack cocaine addict who allowed other addicts

to use drugs in her house in exchange for money; (2) she rented rooms to

boarders; and (3) she also engaged in prostitution in her house to support her

habit. See PCRA Ct. Op at 2. Therefore, the fact that there was evidence of

numerous unknown contributors at scene is not substantially indicative of

another perpetrator due to the transient nature of the home.

Furthermore, we call attention to the testimony of several eyewitnesses

whose cumulative testimony established that: (1) Appellant was in the vicinity

of the victim’s home around the time of the murder, (2) he was observed to

have significant scratches and injuries on his person; and (3) most

importantly, he confessed to killing the victim.19 We reiterate the following

____________________________________________

19 It also merit mentioning that Appellant attempted to escape custody on
two occasions. See Commonwealth v. Spotz, 84 A.3d 294, 316 (Pa. 2014)
(flight may constitute circumstantial evidence of consciousness of guilt).

- 25 -
J-E02004-22

testimony. Karen Thomas,20 the victim’s roommate, testified that on the night

of the murder, she saw Appellant two blocks from the victim’s home, and he

indicated that was where he was coming from but the victim had “put [him]

out.” See PCRA Ct. Op at 3. Dasheika Bowie, the mother of four of Appellant’s

children, testified that Appellant disappeared around the time of the murder

and after he returned, she saw that he had a black eye and a busted lip as

well as scratches on his neck. See id. He told Bowie that he had gotten into

a fight with a man and woman and that he hit them with a stick. See id.

Lastly, Carolyn Hunt, the mother of two of Appellant’s children, testified that

in January of 2002, Appellant confessed to her that he murdered the victim.

See id. at 4. Appellant explained that an argument concerning their illegal

joint business turned into a physical altercation, in which Appellant punched

and choked the victim and she passed out several times. See id. Appellant

said he then strangled her, struck her with a wooden stick, and left. See id.

The testimony of these witnesses was significant. As the PCRA court properly

concluded, the record established that the jury convicted Appellant based on

the cause of death and the witness testimony, which placed Appellant near

____________________________________________

20 To the extent there is a question concerning Thomas’ credibility because
she testified that the Commonwealth agreed to assist her in enrolling in a drug
rehabilitation program in exchange for her testimony, we note the jury heard
that testimony and still found her to be credible based on the conviction. See
Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011) (stating “the
jury, which passes upon the weight and credibility of each witness’s testimony,
is free to believe all, part, or none of the evidence.”).

- 26 -
J-E02004-22

the victim’s house on the night of the murder, as well as his own confessions

to two witnesses ─ not the DNA evidence. See PCRA Ct. Op.at 10.

Lastly, to the extent that Appellant argues that the PCRA court applied

the incorrect standard, we disagree. We note the court properly opined that

Appellant was required to demonstrate that the “more recent DNA results

[we]re not cumulative and would have likely compelled a different verdict.”

PCRA Ct. Op. at 8; see also id. at 10 (stating Appellant was “unable to show

that his newer DNA testing results would likely compel a different verdict.”).

The court’s reference to “actual innocence” concerned prior case law which

held that “negative DNA results, meaning cases where a person’s DNA

material is not found, do not establish actual innocence.” Id. at 9 (emphasis

omitted), citing Brooks, 875 A.2d at 1147. The court’s statement did not

actually go to the standard but to inferences that can or cannot be made

regarding negative DNA tests. As such, Appellant’s argument has no merit.

At this juncture, we point out the Commonwealth’s inconsistent and

perplexing position regarding this matter. As mentioned above, the

Commonwealth submitted a letter to the PCRA court stating that reviewing

the DNA testing results and the trial notes, it would agree to PCRA relief.

Commonwealth Letter, 7/9/19. The Commonwealth also indicated that in

exchange for its promise, Appellant agreed to “plead nolo contendere to third-

degree murder and PIC with a negotiated term of incarceration of 20- to 40

years.” Id. However, when the Commonwealth first filed its appellee’s brief,

- 27 -
J-E02004-22

it changed course from its position at the PCRA proceeding level and stated

that the “PCRA court properly denied relief after reasonably determining that

the new DNA evidence would not have affected the verdict.” Commonwealth’s

Brief, 2/10/21, at 20. One day later, it filed application to withdraw its brief,

which was granted. See Order, 2/26/21. It then filed a new appellee’s brief,

wherein it returned to its original position that Appellant was entitled to PCRA

relief based on the new DNA testing. See Commonwealth’s Brief, 2/26/21, at

2-24.

We recognize the duty of the District Attorney is to seek justice and not

merely a conviction. However, a District Attorney also has a duty to be an

advocate for the citizens of the Commonwealth and not replace the findings

of the PCRA court which are consistent with the record. Under the facts of the

instant case involving first degree murder, it is clear from the record and the

PCRA court’s analysis, the conviction was based on the testimony of the

witnesses as well as on the cause of death and Appellant’s confession to two

witnesses. The DNA evidence was not the basis of the conviction.

As such, the Commonwealth had no logical basis to agree to PCRA relief

for Appellant and propose a plea agreement with a significant reduction in jail

time. The Commonwealth’s actions reflect an abdication in its responsibility

to advocate for the victim. We remind the Commonwealth that it represents

the victim-citizens of this Commonwealth in criminal matters. Though

unavailing, Appellant was provided with a fair process regarding the

- 28 -
J-E02004-22

examination of the contested DNA evidence. Thus, in light of the totality of

the circumstances that weighed in favor of denying relief, it is unacceptable

for the Commonwealth to ignore the legal standards set forth by statute and

case law for determining whether a defendant should be granted post-

conviction relief by offering a plea agreement that clearly was based on an

unfounded decision.21

In sum, we conclude the PCRA court properly found the “new” DNA

evidence was merely cumulative and not likely to compel a different result.

____________________________________________

21The analysis set forth in Justice Dougherty’s concurring opinion in the recent
decision, Commonwealth v. Wardlaw, 249 A.3d 937 (Pa. 2021), is
insightful:

In its brief and at oral argument, the district attorney in this
matter joined the appellant in asking us to reverse the Superior
Court on the discrete legal issue presented. Had we adopted this
shared position — rather than overwhelmingly rejected it — we
would have tied the hands of all other prosecutors across the
Commonwealth. It seems to me that, to ensure the
Commonwealth’s interests are adequately represented
when a legal issue in an appeal has statewide implications
and a county district attorney does not intend to advocate
in opposition to the defense position, the district attorney
should be required to communicate that decision to the
Attorney General. Such a process would afford the
Attorney General the opportunity to make a more timely
and reasoned assessment of whether his involvement in
the case is warranted, either by means of intervention or as an
amicus curiae.

Id. at 955 (emphasis added).

- 29 -
J-E02004-22

Accordingly, Appellant has not met the high burden of demonstrating that he

is entitled to PCRA relief.

Order affirmed.

President Judge Panella, Judges Murray, McLaughlin and Sullivan join

the opinion.

Judge Olson files a dissenting opinion in which Judges Dubow and

Kunselman join.

Judge Nichols files a dissenting opinion.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/10/2023

- 30 -