Com. v. Harris, L. ( 2022 )

J-A02029-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LORENZO HARRIS :
:
Appellant : No. 736 WDA 2020
Appeal from the PCRA Order Entered July 14, 2020
In the Court of Common Pleas of Allegheny County
Criminal Division at CP-02-CR-0009422-1998
BEFORE: OLSON, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED: FEBRUARY 9, 2022
Lorenzo Harris (Appellant) appeals pro se from the order denying, after
a hearing, his fourth petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
This case is before us following remand. In a prior decision, we
recounted the procedural history at length as follows:
On February 16, 2000, a jury convicted Appellant of rape, 18
Pa.C.S.A. § 3121; terroristic threats, 18 Pa.C.S.A. § 2706;
unlawful restraint, 18 Pa.C.S.A. § 2902; and possessing an
instrument of crime, 18 Pa.C.S.A. § 907. The trial court also
convicted Appellant of persons not to possess a firearm, 18
Pa.C.S.A. § 6105. Appellant’s convictions stemmed from his
sexual assault of a female guest at his residence in Pittsburgh on
May 4, 1998. The victim testified at trial that Appellant, whom
she had met one time before this incident, pointed a gun at her
and forced her to engage in sexual intercourse with him. The
Commonwealth also presented the testimony of Walter Lorenz, a
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* Retired Senior Judge assigned to the Superior Court.
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criminalist for the Allegheny County Coroner’s Office. Lorenz
testified that he compared semen samples taken from the victim’s
clothing to DNA from a blood sample provided by Appellant.
Lorenz opined “that the DNA profile found in [the semen] stains
matches the DNA profile of [Appellant] and that because of that,
he cannot be excluded as a potential donor of that DNA.” Lorenz
further explained:
[Lorenz:] [I]n this case we found a match of DNA
between [Appellant] and the sperm fractions of the
stains. This means that either it could be from
[Appellant] or it could be from an individual with the
same DNA profile. We cannot exclude that particular
possibility.
Now, I can give you about how many people might be
expected to have that same kind of DNA profile from
our analysis of the populations and from what we’ve
seen in Allegheny County.
...
In Caucasians in the white population, you would
expect to see that DNA profile in one in about three
million individuals; and in the African-American
population, you would expect to see this in about 1 in
1,690 individuals. It’s [a] relatively common DNA
profile.
[The Commonwealth:] However, [Appellant] cannot
be excluded in the DNA analysis of his DNA?
[Lorenz:] That is correct.
Based on this evidence, the jury and the court convicted Appellant
of the above-stated crimes. On August 7, 2000, the court
sentenced Appellant to 18½ to 37 years’ imprisonment. This
Court affirmed his judgment of sentence on February 17, 2004.
Appellant did not appeal to our Supreme Court.
[Between March 2004 and December 2007, Appellant filed three
unsuccessful PCRA petitions.]
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On September 13, 2016, Appellant filed the pro se PCRA petition
underlying the present appeal. Therein, he alleged that in August
of 2016, he had blood work done, which revealed he has sickle
cell disease. Appellant claimed that this new fact of his disease
demonstrates that it was not his DNA on the victim’s clothing. He
further alleged that the Commonwealth’s DNA expert, Walter
Lorenz, must have known about Appellant’s disease and that the
Commonwealth committed a [violation of Brady v. Maryland,
373 U.S. 83 (1963)] by withholding this evidence from Appellant.
On March 8, 2017, the PCRA court issued a Pa.R.Crim.P. 907
notice of its intent to dismiss that petition, stating (without any
elaboration) that it “lacks jurisdiction in regard to the above-
captioned case[ ].” Rule 907 Notice, 3/8/17 (single page).
Appellant did not respond. On April 27, 2017, the PCRA court
issued an order denying Appellant’s petition without any
explanation of the basis for that decision. The order informed
Appellant that he had 30 days to file a notice of appeal. Because
30 days from April 27, 2017, was Saturday, May 27, 2017, and
Memorial Day was Monday, May 29, 2017, Appellant’s notice of
appeal was due on Tuesday, May 30, 2017. See 1 Pa.C.S.A. §
1908; see also Pa.R.A.P. 903(a) (stating that a notice of appeal
must be filed within thirty days after the order appealed from is
entered). Appellant’s notice of appeal was time-stamped and
docketed on June 1, 2017.
On June 6, 2017, the PCRA court issued an order directing
Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal by June 30, 2017. Appellant’s Rule
1925(b) statement was time-stamped and docketed on July 10,
2017. On November 21, 2017, the PCRA court issued a Rule
1925(a) opinion concluding that Appellant’s notice of appeal was
untimely and his appeal should be quashed. The PCRA court
offered no discussion as to why it denied Appellant’s petition.
***
We agree with Appellant that he has satisfied the newly-
discovered fact exception. Appellant asserted in his petition that
he had blood tests done on August 8, 2016, which first revealed
that he suffers from sickle cell disease. On September 13, 2016,
he filed the present, pro se petition premised on his discovery of
this new fact. Therein, Appellant averred that he acted with due
diligence in raising this claim as soon as he received this diagnosis,
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which arose from blood tests conducted after he exhibited physical
symptoms of muscle weakness, dizziness, and headaches. On
appeal, Appellant adds that he asked his trial counsel to seek
further testing of his blood sample, but counsel did not comply
with that request. In light of this record, we conclude that
Appellant has demonstrated that he exercised due diligence in
discovering a new fact that was previously unknown to him.
Therefore, we vacate the PCRA court’s order denying Appellant’s
petition as untimely. We remand for the court to appoint
Appellant counsel, and to conduct a hearing on the merits of his
after-discovered evidence claim, as well as his related allegation
that the Commonwealth committed a Brady violation. At that
proceeding, Appellant must present evidence regarding why the
presence of his sickle cell disease affected (or may have affected)
the DNA results that were admitted at his trial.
Commonwealth v. Harris, 2019 WL 1308164, at **1-2, 4 (Pa. Super. Mar.
21, 2019) (footnotes and citations omitted) (Remand Decision).
Following remand, the PCRA court appointed counsel. The PCRA court
conducted an evidentiary hearing on June 29, 2020. Appellant testified, as
did his expert witness, Sara Bitner, the quality manager and DNA technical
leader at the Allegheny County Office of the Medical Examiner’s Laboratory
(ME’s Lab). On July 14, 2020, the PCRA court issued a one-page order denying
relief. PCRA counsel filed a timely notice of appeal accompanied by a Rule
1925(b) statement.
On July 24, 2020, despite the pendency of this appeal and being
represented by counsel, Appellant filed pro se, without leave of court, a
purported amended PCRA petition. On August 4, 2020, Appellant filed a pro
se request for post-conviction DNA testing pursuant to 42 Pa.C.S.A. § 9543.1.
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On August 10, 2020, after this Court received numerous pro se filings
from Appellant, we remanded for a hearing pursuant to Commonwealth v.
Grazier, 713 A.2d 81 (Pa. 1998). On January 13, 2021, the PCRA court
granted Appellant’s request to proceed pro se and the case was returned to
the Superior Court.
On January 21, 2021, we remanded the case a second time for the PCRA
court to issue a Rule 1925(a) opinion, which the PCRA court filed on February
18, 2021. However, rather than addressing the merits of the counseled
petition it denied, the PCRA court discussed Appellant’s pro se amended PCRA
petition, which was a legal nullity. See Commonwealth v. Williams, 151
A.3d 621, 623 (Pa. Super. 2016) (citation omitted) (courts “will not accept a
pro se motion while an appellant is represented by counsel; indeed, pro se
motions have no legal effect and, therefore, are legal nullities.”); see also
Opinion, 2/18/21, at 2-6. In the interest of judicial economy, we examine
Appellant’s claims without the benefit of the PCRA court’s reasoning as to its
dismissal of the counseled petition.
Appellant raises the following questions for review:
1. Did the PCRA court err in denying [Appellant] Post Conviction
Relief upon reviewing the expert’s testimony that [Appellant] was
born with a genetic disease known as Sickle Cell Disease. And if
tested in a DNA test would be able to (EXONERATE) [Appellant].
In The Superior Court’s MEMORANDUM, Order On remand, the
Chief Justice directed the appellant to present evidence that his
Sickle Cell Disease would have effective [sic] the DNA, presented
at Trial by the Commonwealth. Pursuant to 42 Pa.C.S. §
9545(b)(1)(ii)? Granted by the Superior Court which gives the
appellant a Constitution Due process right under 42 Pa.C.S. §
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9543.1 which allows a petitioner to seek DNA testing for
exoneration purpose?
2. Did the PCRA Court err in not granting Post Conviction Relief,
Based upon Expert Witness’s Testimony, stating that if tested in a
DNA test, could EXONERATE [Appellant]. Such Sixth Amendment
right rest with the original fact finder’s [sic]. Let the record reflect
that [Appellant] was tried in a Jury Trial.
3. Is [Appellant] eligible for relief under 42 Pa.C.S. 9543(a)(2)(vi)
because of the unavailability at the time of trial of exculpatory
DNA, evidence that shows [Appellant] does have Sickle Cell
Disease genetically in his blood since birth if had been presented
to the Jury, there would have been a reasonable probability of a
different result?
4. Is [Appellant] eligible for relief under 42 Pa.C.S. §
9543(a)(2)(i). Because the Commonwealth withheld exculpatory
evidence, lab test showing the blood type of the appellant, and
the actual test that shows the comparison to the DNA, presented
at trial against the appellant. Such evidence could have been
explained better after a Frye [v. United States, 293 F. 1013(D.C. Cir. 1923)] Test that would show that the Commonwealth is
in violation of Brady and Giglio [v. U.S., 405 U.S. 150 (1972)].
Appellant’s Brief at 5-B-5 (issues reordered for disposition).
In reviewing an order denying a PCRA petition, we determine whether
the order is supported by the evidence and free of legal error.
Commonwealth v. Kretchmar, 971 A.2d 1249, 1251 (Pa. Super. 2009).
The PCRA court’s findings will not be disturbed unless there is no support for
the findings in the certified record. Commonwealth v. Treadwell, 911 A.2d
987, 989 (Pa. Super. 2006). Moreover, “[t]his court has determined that in
reviewing claims for relief in a second or subsequent collateral attack on a
conviction and judgment of sentence, the request will not be entertained
unless a strong prima facie showing is demonstrated that [ ] a miscarriage of
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justice occurred.” Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999)
(citing Commonwealth v. Lawson, 549 A.2d 107 (Pa. 1988)). “An appellant
makes such a prima facie case only if he demonstrates that either the
proceedings which resulted in his conviction were so unfair that a miscarriage
of justice occurred which no civilized society could tolerate, or that he was
innocent of the crimes charged.” Id. (quoting Commonwealth v. Morales,
701 A.2d 516, 520-21 (Pa. 1997)).
Initially, we note that Appellant’s brief violates several Rules of Appellate
Procedure. See Commonwealth v. Hakala, 900 A.2d 404, 406 (Pa. Super.
2006) (finding waiver where appellant violated multiple Rules of Appellate
Procedure). As reproduced above, Appellant presents four questions for
review. See Appellant’s Brief at 5-B-5. However, the 5-page argument
section of his brief is not divided into “as many parts as there are questions”;
does not have separate, distinctive headings for each question; is numbered
in an inconsistent manner; cites state and federal cases with little or no
explanation of their relevance; and is nearly devoid of citation to evidence of
record. See Appellant’s Brief at I-I-4 part-2; see also Commonwealth v.
Johnson, 889 A.2d 620, 623 (Pa. Super. 2005) (“[A] brief containing such
defective argument that appellate review is precluded has the same result as
filing no brief at all.”) (citation omitted); Commonwealth v. Franklin, 823
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A.2d 906, 910 (Pa. Super. 2003) (same). Most significantly, Appellant fails to
present a coherent legal argument.1
Despite the defects in Appellant’s brief, we interpret his argument to be
that the PCRA court erred in denying his motion for post-conviction DNA
testing pursuant to 42 Pa.C.S.A. § 9543.1. See Appellant’s Brief at I-I-2.
“Post-conviction DNA testing falls under the aegis of the PCRA, ... and
thus, our standard of review permits us to consider only whether the PCRA
court’s determination is supported by the evidence of record and whether it is
free from legal error.” Commonwealth v. Conway, 14 A.3d 101, 108 (Pa.
Super. 2011) (citations omitted). “When reviewing an order denying a motion
for post-conviction DNA testing, this Court determines whether the movant
satisfied the statutory requirements listed in [42 Pa.C.S.A. §] 9543.1.”2
Commonwealth v. Williams, 35 A.3d 44, 47 (Pa. Super. 2011) (citation
omitted).
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1 Although we may liberally construe materials filed by a pro se litigant, pro
se status confers no special benefit upon a litigant, and a court cannot be
expected to become a litigant’s counsel or find more in a written pro se
submission than is fairly conveyed in the pleading. Commonwealth v.
Blakeney, 108 A.3d 739, 766 (Pa. 2014). “When issues are not properly
raised and developed in briefs . . . a Court will not consider the merits thereof.”
Commonwealth v. Rivera, 685 A.2d 1011, 1013 (Pa. Super. 1996).
2 Section 9543.1 requires an applicant to explain how testing would produce
exculpatory evidence to establish “the applicant’s actual innocence of the
offense for which the applicant was convicted[.]” 42 Pa.C.S.A. § 9543.1(6)(i).
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Here, Appellant’s PCRA petition did not contain a request for post-
conviction DNA testing. See PCRA Petition, 9/13/16, at 1-15. Appellant does
not dispute the omission; instead, he claims his counsel, “requested in a [sic]
Oral Motion for an [sic] DNA test, based on the expert testimony of Ms. Sara
Bitner, See — PCRA, Transcripts, page 26, and 27, of June 2[9], 2020.”
Appellant’s Brief at I. The record does not support this claim. PCRA Hearing,
6/29/20, at 26-27. Rather, the record demonstrates Appellant pro se filed a
motion for DNA testing while represented by counsel. Motion for Post-
Conviction DNA Testing, 8/04/20, at 1-2. We reiterate that the filing of pro
se pleadings while represented by counsel is prohibited. See
Commonwealth v. Staton, 184 A.3d 949, 958 (Pa. 2018) (no defendant has
a constitutional right to self-representation together with counseled
representation “either at trial or on appeal”); Commonwealth v. Ali, 10 A.3d
282, 293 (Pa. 2010) (characterizing as a “legal nullity” a pro se Pa.R.A.P.
1925(b) statement filed by an appellant who was represented by counsel);
see also Commonwealth v. Jette, 23 A.3d 1032, 1036 (Pa. 2011) (citing
Pennsylvania’s longstanding policy precluding hybrid representation). In this
case, the PCRA court properly declined to rule on the motion because it was a
legal nullity. Thus, the issue was never before the PCRA court and is waived.
See Pa.R.A.P. 302(a).
Appellant’s second and third issues are related. Appellant asserts the
PCRA court erred in denying him a new trial based on his claim of after-
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discovered evidence. Appellant asserts that Sara Bitner’s testimony at the
PCRA hearing constituted exculpatory evidence. Appellant’s Brief at I.
Appellant contends Ms. Bitner’s testimony proved,
[A]ppellant could be exonerated by DNA test with the fact he does
have Sickle Cell Disease in his Blood which is a genetic disease
which would show up in any Bodily fluids that comes out the
[A]ppellant’s Body such as [semen].”
Appellant’s Brief at I-4. We disagree.
Our Supreme Court has explained:
The four-prong test for awarding a new trial because of after-
discovered evidence is well settled. The evidence: (1) could not
have been obtained prior to trial by exercising reasonable
diligence; (2) is not merely corroborative or cumulative; (3) will
not be used solely to impeach a witness’s credibility; and (4)
would likely result in a different verdict. See Commonwealth v.
Pagan, [ ] 950 A.2d 270, 292 ([Pa.] 2008) (citations omitted).
Commonwealth v. Castro, 93 A.3d 818, 821 n.7 (Pa. 2014). In determining
“whether the alleged after-discovered evidence is of such nature and character
that it would likely compel a different verdict if a new trial is granted, ... a
court should consider the integrity of the alleged after-discovered evidence,
the motive of those offering the evidence, and the overall strength of the
evidence supporting the conviction.” Commonwealth v. Padillas, 997 A.2d
356, 365 (Pa. Super. 2010). Also, “the proposed new evidence must be
producible and admissible.” Castro, 93 A.3d at 825. It is the petitioner’s
burden to prove by a preponderance of the evidence that he met each of the
factors in order to warrant a new trial. Commonwealth v. Rivera, 939 A.2d
355, 359 (Pa. Super. 2007).
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It is unclear that the evidence is “after-discovered.” In our Remand
Decision, we determined Appellant did not know he had sickle cell disease until
2016. Remand Decision, at *2. This conclusion was based on Appellant’s
averments in his PCRA petition and his 2016 medical records. However, at
the hearing following remand, PCRA counsel introduced medical records from
1996 — five years prior to Appellant’s trial — showing that Appellant had been
diagnosed with sickle cell disease. N.T., 6/29/20, at 8-9. Appellant claimed
to be unaware of the 1996 diagnosis. Id. at 5-8. Although we are bound by
our prior determinations, see Commonwealth v. Reed, 971 A.2d 1216,
1220 n.2 (Pa. Super. 2009) (citation omitted), the evidence presented
following remand calls into question our prior determination.
Nonetheless, assuming arguendo that Appellant could not have
discovered evidence of his sickle cell disease prior to trial, with respect to the
second and third prongs of the after-discovered evidence test, the sickle cell
evidence is neither cumulative nor corroborative. Moreover, it would not be
used solely for impeachment purposes.
Regarding the fourth and final prong, to show the evidence was likely to
result in a different verdict, Appellant would have to demonstrate “the
presence of sickle cell disease affected (or may have affected) the DNA results
that were admitted at his trial.” Remand Decision, at * 4. Appellant failed to
do so.
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Despite Appellant’s claim to the contrary, the testimony of Sara Bitner,
from the Allegheny County ME’s Lab, was not exculpatory. Ms. Bitner never
testified that new DNA testing would impact the prior results or exonerate
Appellant. Ms. Bitner testified that the lab lacks the capacity to conduct sickle
cell testing, and does not conduct disease testing as part of its DNA testing in
criminal cases. N.T., 6/29/20, at 19. She stated, “all of the locations of the
DNA that we focus on for identification are not tied to any disease state[.]”
Id. Ms. Bitner also clarified that the semen sample “could not have been
used” to diagnose sickle cell disease. Id. at 20. Further, Ms. Bitner testified
that, while blood can be tested for sickle cell disease, sickle cell disease is
“quite common,” and testing for sickle cell disease would “not be useful for
the purpose of identification where the statistics that we issue are in the
original quintillion, tens of thousands, and now as high as undecillion. It’s a
much higher degree of discrimination that we provide with the testing that we
perform.” Id. at 19.
Thereafter, the PCRA court concluded, “even though [the lab] didn’t test
for [sickle cell disease], it didn’t make a bit of difference. It’s not going to
change the DNA results.” N.T., 6/29/20, at 27. Upon review, we agree. Thus,
Appellant has not shown that the absence of sickle cell testing impacted the
DNA results admitted at trial, and ultimately, the verdict. Pagan, 950 A.2d
at 292.
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Moreover, the evidence included identification by the victim, who had
met Appellant previously, and the recovery from Appellant’s residence of a
firearm, which the victim identified as resembling the firearm used in the
assault. See Commonwealth v. Harris, 2098 WDA 2001, at 1-3 (Pa. Super.
Feb. 17, 2004) (unpublished memorandum). Accordingly, no relief is due.
In his fourth issue, Appellant states:
The Commonwealth support’s [sic] the charges after the fact that
they are content from supporting a DNA test, by not addressing
the facts, when knowing the DNA, test will prove a [BRADY
violation] which would constitute a miscarriage of justice, by
allowing this conviction to stand on false and misleading evidence,
in adding a clear violation of [GIGLIO].
This Superior Court, recognized Giglio v. United States, 405
U.S. 150 (1972), and in a way which undermines the truth-telling
process. And United States v. [Bagley], 473 U.S. 667 (1985):
Com v. Burk, 781 A.2d 1136 (Pa. 2001). The Pa.R.C.P. 573
states that the Prosecutor’s duty to disclose favorable evidence
before trial. Whether or not the appellant request’s [sic] it. See
United States v. Agurs, 427 U.S. 97, 107 [(1976)]; Bagley,
437 U.S. at 676. The PCRA Court, didn’t consider any of these
facts when denying Post-Conviction Relief.
Appellant’s Brief at I-4.
Appellant cites Giglio, in which the United States Supreme Court
extended Brady to certain impeachment evidence, holding that “[w]hen the
reliability of a given witness may well be determinative of guilt or innocence,
nondisclosure of evidence affecting credibility falls within this general rule [of
required Brady disclosure].” See Commonwealth v. Harris, 817 A.2d
1033, 1049 (Pa. 2002) (citation omitted).
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The Pennsylvania Supreme Court has explained:
To succeed on a Brady claim, the defendant must show: (1)
evidence was suppressed by the prosecution; (2) the evidence,
whether exculpatory or impeaching, was favorable to the
defendant; and (3) prejudice resulted. A Brady violation exists
only where the suppressed evidence is material to guilt or
punishment, i.e., where there is a reasonable probability that, had
the evidence been disclosed, the result of the proceeding would
have been different. In determining whether a reasonable
probability of a different outcome has been demonstrated, [t]he
question is not whether the defendant would more likely than not
have received a different verdict with the evidence, but whether
in its absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence. A reasonable
probability of a different result is shown when the government’s
suppression of evidence undermines confidence in the outcome of
the trial.
Commonwealth v. Cousar, 154 A.3d 287, 301 (Pa. 2017) (citations
omitted).
Here, the uncontradicted testimony of Ms. Bitner was: (1) the ME’s Lab
does not test for sickle cell disease; (2) it does not have the capability to test
for sickle cell disease; and (3) DNA tests were conducted on semen and semen
cannot be tested for sickle cell disease. N.T., 6/29/20, at 18-24.
Consequently, to the evidence does not support Appellant’s claim that the
Commonwealth committed a Brady/Giglio violation.
In sum, the record confirms the PCRA court’s determination that
Appellant is not entitled to relief. Accordingly, we affirm the order denying
Appellant’s fourth PCRA petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/09/2022
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