R. DuBoise v. Comm. R. Evanchick & R. Gallagher ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ryan DuBoise, :
Petitioner :
:
v. :
:
Commissioner Robert Evanchick and :
Ryan Gallagher, : No. 73 M.D. 2022
Respondents : Submitted: December 2, 2022
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: March 9, 2023
Before this Court are Pennsylvania State Police Commissioner Robert
Evanchick’s (Evanchick) Preliminary Objections to Ryan DuBoise’s (DuBoise)
Petition for Review in the Nature of Mandamus (Petition), and the Philadelphia
Police Department’s Forensic Services Office’s Forensic Laboratory Manager Ryan
Gallagher’s (Gallagher) Preliminary Objections to the Petition. After review, this
Court sustains the Preliminary Objections and dismisses the Petition.
Facts1
On April 12, 2016, DuBoise was convicted of the third-degree murder
of his girlfriend Monet Hall (Hall), and sentenced to 20 to 40 years of incarceration.
In July 2021, DuBoise discovered new evidence that revealed he was not the last
person to see Hall alive. This information consisted of Brick Patterson’s (Patterson)
1
The facts are derived from the Petition and the attachments thereto.
statement that he was present with Hall before she was murdered, and Patterson saw
a man named Rasheem2 with Hall. Patterson further admitted that he was having a
sexual relationship with Hall at that time.
In October 2021, based upon the information contained in Patterson’s
declaration, DuBoise requested a CODIS comparison of the DNA discovered in
Hall’s saliva and an unknown male’s DNA discovered under Hall’s fingernails.3
DuBoise hoped that a manual keyboard CODIS search would yield a match with the
unknown profiles recovered from Hall. DuBoise believed that such a match would
be persuasive evidence that he was not Hall’s murderer and would reveal the guilty
party. On November 5, 2021, the Philadelphia District Attorney’s (DA) Office
stated that it did not object to the request. By January 4, 2022 email, Gallagher
notified the DA that the DNA samples in DuBoise’s case were not sufficient to meet
the criteria for entry into CODIS.
On February 22, 2022, DuBoise filed the Petition in this Court’s
original jurisdiction, seeking that this Court “[e]nter judgment against [Evanchick
and Gallagher (collectively, Respondents)] commanding them to act upon
[DuBoise’s request for a manual keyboard search of [] CODIS[,]” and “enter
judg[]ment against [R]espondents[’] for damages for [R]espondents failure to
perform a duty required by law, which damages may be claimed pursuant to [Section
8303 of the Judicial Code,] 42 Pa.C.S. § 8303.”4 Petition Ad Damnum Clause.
2
The Petition does not include Rasheem’s last name.
3
CODIS is defined as: “The Combined DNA Index System administered by the Federal
Bureau of Investigation that allows for the storage and exchange of DNA records submitted by
[f]ederal, [s]tate and local forensic DNA laboratories.” Section 9543.1(h) of the Post Conviction
Relief Act, 42 Pa.C.S. § 9543.1(h). DNA is defined as: “Deoxyribonucleic acid.” Id.
4
Section 8303 of the Judicial Code provides: “A person who is adjudged in an action in
the nature of mandamus to have failed or refused without lawful justification to perform a duty
required by law shall be liable in damages to the person aggrieved by such failure or refusal.” 42
Pa.C.S. § 8303.
2
Evanchick and Gallagher each filed Preliminary Objections, on April
11, 2022 and April 27, 2022, respectively, wherein they both alleged: (1) lack of
subject matter jurisdiction; (2) failure to exhaust statutory remedy; and (3) failure to
state a valid claim for relief. On April 27, 2022, DuBoise filed an Answer opposing
Evanchick’s Preliminary Objections.5
Discussion
Initially,
[i]n ruling on preliminary objections, we must accept as
true all well-pleaded material allegations in the petition for
review, as well as all inferences reasonably deduced
therefrom. The Court need not accept as true conclusions
of law, unwarranted inferences from facts, argumentative
allegations, or expressions of opinion. In order to sustain
preliminary objections, it must appear with certainty that
the law will not permit recovery, and any doubt should be
resolved by a refusal to sustain them.
A preliminary objection in the nature of a demurrer admits
every well-pleaded fact in the [petition for review] and all
inferences reasonably deducible therefrom. It tests the
legal sufficiency of the challenged pleadings and will be
sustained only in cases where the pleader has clearly failed
to state a claim for which relief can be granted. When
ruling on a demurrer, a court must confine its analysis to
the [petition for review].
Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (emphasis added;
citations omitted). “‘[C]ourts reviewing preliminary objections may not only
consider the facts pled in the [petition for review], but also any documents or exhibits
attached to it.’ Allen v. Dep’t of Corr., 103 A.3d 365, 369 (Pa. Cmwlth. 2014).”
Foxe v. Pa. Dep’t of Corr., 214 A.3d 308, 311 n.1 (Pa. Cmwlth. 2019).
5
DuBoise did not file an Answer to Gallagher’s Preliminary Objections.
3
Respondents first argue that this Court should sustain Respondents’
Preliminary Objections under Pennsylvania Rule of Civil Procedure (Rule)
1028(a)(1) (lack of jurisdiction) because the Post Conviction Relief Act (PCRA)6
provides a statutory remedy to obtain DNA testing. See Pa.R.Civ.P. 1028(a)(1).
“An objection which alleges the failure to pursue an adequate alternative remedy,
therefore, raises a question of jurisdiction and is properly pleaded as a preliminary
objection.” Merritt v. W. Mifflin Area Sch. Dist., 424 A.2d 572, 573 (Pa. Cmwlth.
1981).
DuBoise rejoins that he is not seeking DNA testing, but rather a CODIS
search to see if there is a DNA match between two samples that already exist in the
database. While DuBoise insists that Respondents misconstrued his request, it
appears that DuBoise misconstrued Gallagher’s January 4, 2022 email. Gallagher
did not refuse to run such a search but, rather, he stated that the unknown male’s
DNA samples were too small to upload into CODIS in the first instance. See Petition
Ex. B. Thus, the samples do not currently exist in CODIS.
Section 9543.1(a)(1) of the PCRA provides:
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.
42 Pa.C.S. § 9543.1(a)(1). Section 9542 of the PCRA further mandates, in pertinent
part:
This subchapter provides for an action by which persons
convicted of crimes they did not commit and persons
serving illegal sentences may obtain collateral relief. The
action established in this subchapter shall be the sole
means of obtaining collateral relief and encompasses all
6
42 Pa.C.S. §§ 9541-9546.
4
other common law and statutory remedies for the same
purpose that exist when this subchapter takes effect,
including habeas corpus and coram nobis.
42 Pa.C.S. § 9542 (emphasis added).
Here, DuBoise filed a motion with the sentencing court requesting a
CODIS comparison of the DNA discovered in Hall’s saliva with the unknown male’s
DNA discovered under Hall’s fingernails.7 See Petition ¶ 8. The DA’s November
5, 2021 response stated:
[DuBoise] filed a pro se Motion for Post-Conviction DNA
Testing of the saliva found inside the victim’s anus during
the prior testing. He also asks that the results of the prior
DNA testing of the other physical evidence -- tested by
both the Commonwealth and by [DuBoise’s] own lab prior
to trial -- be entered into the [CODIS]. . . .
The Commonwealth has no objection to the requested
DNA testing or entry of the DNA test results into CODIS.
Petition Ex. A.
Prior to the hearing on DuBoise’s motion, the DA emailed Gallagher,
stating: “This case is before [the sentencing court] on [January 10, 2022]. [The
sentencing court] will demand your presence unless I can tell [it] whether the rape
kit results were entered into CODIS and whether there is any evidence remaining to
be tested and/or submitted.” Petition Ex. B. Gallagher responded: “[A]ll of the
DNA in the first report was attributable to either the victim or suspect. Without
unknown DNA present, there is nothing to upload. For the second report, there is a
small amount of unknown DNA, but not enough unknown DNA to qualify for an
upload.” Id. Based only on this information, DuBoise alleges in the Petition:
“Respondents nevertheless refused to proceed with the keyboard search.” Petition ¶
7
DuBoise did not attach the motion to his Petition.
5
10. DuBoise does not allege any facts as to what happened at the hearing or if the
hearing even took place.
“Because [DuBoise] ha[s] failed to exhaust appropriate and adequate
[statutory] remedies which are available to [him], [this Court is] without subject
matter jurisdiction to entertain this action in mandamus.” Matesic v. Maleski, 624
A.2d 776, 780 (Pa. Cmwlth. 1993); see also Merritt, 424 A.2d at 574 (“Since
[DuBoise] failed to pursue [his] statutory remedy[,] which was appropriate and
adequate, the court [] was correct in finding that it lacked jurisdiction to consider the
action in mandamus.”). Accordingly, Respondents’ first Preliminary Objections are
sustained.
Respondents next argue that this Court should grant Respondents’
Preliminary Objections under Rule 1028(a)(7) because DuBoise has not exhausted
the statutory remedy available to obtain DNA testing. See Pa.R.Civ.P. 1028(a)(7).
“[T]he failure to exhaust available [statutory] remedies will bar an
action in mandamus.” Mueller v. Pa. State Police Headquarters, 532 A.2d 900, 905
(Pa. Cmwlth. 1987). Here, although DuBoise filed a motion with the sentencing
court requesting a CODIS comparison of the DNA discovered in Hall’s saliva with
the unknown male’s DNA discovered under Hall’s fingernails, see Petition ¶ 8, he
did not allege that the hearing took place. If the hearing did not occur at the time of
the filing of his mandamus action, DuBoise failed to exhaust his statutory remedies
by failing to wait for the sentencing court’s ruling. Similarly, if the hearing did occur
and his motion was denied, DuBoise failed to exhaust his statutory remedies by
failing to appeal from that ruling. In either scenario, DuBoise’s “failure to exhaust
available [statutory] remedies [] bar[s] [his] action in mandamus.” Mueller, 532
A.2d at 905. Accordingly, Respondents’ second Preliminary Objections are
sustained.
6
Lastly, Respondents argue that this Court should sustain Respondents’
Preliminary Objections pursuant to Rule 1028(a)(4) because the availability of an
alternative statutory remedy renders DuBoise’s mandamus action legally
insufficient. See Pa.R.Civ.P. 1028(a)(4) (demurrer).
To state a valid claim in mandamus, [DuBoise] is required
to show[:] (1) a ministerial act or mandatory duty on the
part of [] Respondents; (2) a clear legal right in him to the
relief he seeks; (3) a clear corresponding duty in []
Respondents to provide him that relief; and (4) the lack of
any other adequate and appropriate remedy. Mandamus is
an extraordinary writ that is only available to enforce
already established clear and specific rights, it cannot be
used to establish those rights.
Mueller, 532 A.2d at 903 (citations omitted).
Here as explained above, DuBoise has an “adequate and appropriate
remedy” under the PCRA. Mueller, 532 A.2d at 903. Moreover, while the PCRA
provides DuBoise with the right to apply for DNA testing, see 42 Pa.C.S. §
9543.1(a)(1), without a court order granting such request, there is no “clear legal
right . . . to the relief he seeks[,]” or “clear corresponding duty in [] Respondents to
provide him that relief.” Mueller, 532 A.2d at 903. Accordingly, Respondents’ third
Preliminary Objections are sustained.
Conclusion
Accepting as true all well-pleaded material allegations in the Petition,
as well as all inferences reasonably deduced therefrom, as this Court must, “it []
appear[s] with certainty that the law will not permit recovery[.]” Torres, 997 A.2d
at 1245. Because DuBoise “has clearly failed to state a claim for which relief can
7
be granted[,]” id., Respondents’ Preliminary Objections are sustained, and
DuBoise’s Petition is dismissed.
_________________________________
ANNE E. COVEY, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ryan DuBoise, :
Petitioner :
:
v. :
:
Commissioner Robert Evanchick and :
Ryan Gallagher, : No. 73 M.D. 2022
Respondents :
ORDER
AND NOW, this 9th day of March, 2023, Pennsylvania State Police
Commissioner Robert Evanchick’s Preliminary Objections to Ryan DuBoise’s
(DuBoise) Petition for Review in the Nature of Mandamus (Petition), and Ryan
Gallagher’s Preliminary Objections to the Petition are SUSTAINED. DuBoise’s
Petition is DISMISSED.
_________________________________
ANNE E. COVEY, Judge