Com. v. Payne, R. ( 2017 )

J-S92021-16
2017 Pa. Super. 288
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RAYMOND DALE PAYNE
Appellant No. 604 WDA 2016
Appeal from the PCRA Order April 13, 2016
In the Court of Common Pleas of Erie County
Civil Division at No(s): 2562 of 1976
BEFORE: SHOGAN, J., MOULTON, J., and STRASSBURGER, J.*
DISSENTING OPINION BY MOULTON, J.: FILED SEPTEMBER 7, 2017
I respectfully dissent. Because I believe Appellant has sufficiently
established that the outcome of his degree-of-guilt hearing would likely have
been different based on the new DNA evidence, I would reverse and remand
for a new degree-of-guilt hearing.
This is a difficult case that requires us to address the burden of a
petitioner seeking PCRA relief based on exculpatory evidence not available at
the time of trial. While I agree with much of the majority’s analysis,
particularly that the evidence was sufficient to convict Appellant of first-
degree murder, I do not share the majority’s confidence that the new DNA
evidence would not change the outcome of the proceedings. Because I
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*
Retired Senior Judge assigned to the Superior Court.
J-S92021-16
believe the DNA evidence seriously undermines the theory of the case
advanced by the prosecution at the degree-of-guilt hearing, and because
that theory was fully embraced by the factfinder, I believe Appellant is
entitled to a new degree-of-guilt hearing.
There is no doubt that Appellant was responsible for the victim’s
death. Appellant confessed to much of the conduct alleged by the
prosecution and pled guilty to the general charge of murder. While
Appellant admitted some culpability, however, he did not admit to
intentionally killing the victim. His contention at the degree-of-guilt hearing,
therefore, was that he was not guilty of first-degree murder but only of
third-degree murder.
In contrast, the prosecution’s theory at the degree-of-guilt hearing
was that Appellant was guilty of first-degree murder because, with
premeditation and deliberation, he intentionally killed the victim while she
resisted his sexual assault. This theory was premised on two key pieces of
evidence: (1) forensic evidence of seminal fluid found in the victim’s vaginal
and rectal areas; and (2) the testimony of Commonwealth witness Anthony
Lee Evans, to whom Appellant allegedly confessed to strangling the victim in
the course of sexually assaulting her.
The trial court, sitting as factfinder at the degree-of-guilt hearing,
relied on both pieces of evidence in finding that Appellant intentionally killed
the victim:
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[T]here is verification for Evans’ testimony that [the
victim] died protesting a sexual attack upon her.
Paul R. Daube, a chemist employed by the Pennsylvania
State Police[,] testified that he conducted tests on
[h]emorrhogic fluids extracted from the victim’s vaginal
and anal areas. He stated that he found the presence of
seminal acid phosphatase in both areas and that seminal
acid phosphatase is found only in semen.
In the opinion of the court the accidental theory
advanced by the defense lacks credibility. It is our belief
that the testimony of Evans is more consistent with
the established facts than the self[-]serving
statement of [Appellant].
The specific intent to kill which is necessary to
constitute murder in the first degree may be found from
the circumstances surrounding the slaying together with all
reasonable inferences therefrom.
In this case not only do the circumstances point to the
conclusion that the slaying of [the victim] was wil[l]ful,
deliberate and premeditated, but [Appellant’s]
admission to [Evans] verifies that conclusion and
removes all doubt.
The testimony before the court is also consistent
with a slaying in the perpetration of a forceful rape
which would constitute murder in the second degree.
However, having concluded that [Appellant] is guilty of an
intentional killing, we need not further pursue the theory
of felony murder.
Trial Ct. Op., 7/18/77, at 6-7 (emphases added; internal citation omitted).
Thirty-eight years later, however, DNA testing conclusively established
that Appellant was not the contributor of the seminal fluid recovered from
the victim’s body. As a result, Appellant sought PCRA relief based on this
after-discovered evidence.
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The issue before this Court is whether the DNA evidence excluding
Appellant as the contributor of the seminal fluid requires a new degree-of-
guilt hearing under 9543(a)(2)(vi) of the PCRA, which provides:
(a) To be eligible for relief under this subchapter, the
petitioner must plead and prove by a preponderance of the
evidence . . . :
(2) That the conviction or sentence resulted from . . . :
...
(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); see id. § 9543.1(f)(3). To succeed on an
after-discovered evidence claim, the “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) (internal quotation omitted).
Thus, to determine whether Appellant is entitled to a new degree-of-
guilt hearing under section 9543(a)(2)(vi), we must decide whether
Appellant has established by a preponderance of the evidence: (1) that the
DNA evidence is exculpatory; and (2) if so, that the DNA evidence would
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likely have changed the outcome of his degree-of-guilt hearing.1 I believe
Appellant has met his burden with respect to both elements.
As to the first element, the majority concludes that the DNA evidence
is not “exculpatory” because it does not prove Appellant’s innocence of first-
degree murder. Maj. Op. at 15. The majority finds that the DNA evidence
would exculpate Appellant only if he had been convicted of a sexual offense.
Id. I cannot agree.
This Court addressed what constitutes exculpatory evidence under
section 9543(a)(2)(vi) in Commonwealth v. Bonaccurso, 625 A.2d 1197
(Pa.Super. 1993). In that case, Bonaccurso, who had been convicted of
first-degree murder, sought PCRA relief based on after-discovered evidence,
in the form of eyewitness testimony, that Bonaccurso’s shooting of the
victim was accidental. Id. at 1198. We determined that the evidence was
exculpatory because, if believed, it would support a third-degree, rather
than a first-degree, murder conviction:
When we consider whether granting Bonaccurso a new
trial was an error of law we must decide whether the
evidence was unavailable, whether it is exculpatory, and
whether it would affect the outcome of the trial. The first
question is easily disposed of. [The witness] left the scene
and lied to the police about whether he had seen any of
that day’s events. He was unavailable. Whether the
evidence is exculpatory is also straightforward.
Bonaccurso’s and [the witness’s] version of the
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1
As the majority points out, it is undisputed that the DNA evidence
was not available at the time of trial and is neither cumulative nor being
used solely to impeach credibility. See Maj. Op. at 11 n.2.
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events, if believed, paints a picture of third-degree
murder, not first-degree. When a defendant is found
guilty of third-degree murder, that verdict implies a verdict
of not guilty on the charge of first-degree murder.
Therefore, testimony which would make more likely
than not a change in degree from first to third is
exculpatory.
Id. at 1200 (emphases added). We further concluded that the evidence
would likely affect the outcome of the trial because if the witnesses were to
“testify at trial as they did at the PCRA hearing, it would be difficult for the
Commonwealth to prove the premeditation and lack of provocation which a
conviction for first-degree murder would require.” Id. at 1201. Therefore,
we reversed the PCRA court’s order and remanded for a new trial.
Here, the majority ignores both the prosecution’s theory of the case,
which shaped the conduct of the 1977 degree-of-guilt hearing, and the
impact of the new DNA evidence on that theory. At the hearing, the
prosecution argued, and the trial court accepted, that the presence of
seminal fluid, presumed to be Appellant’s, was proof of the intent required
for a first-degree murder conviction. This theory was bolstered by Evans’
testimony that Appellant admitted killing the victim while perpetrating a
sexual assault. The trial court specifically credited Evans’ testimony, finding
it “[t]he most damaging” to Appellant and “more consistent with the
established facts” than Appellant’s “accidental theory,” which did not account
for the presence of seminal fluid in the victim’s body. Trial Ct. Op., 7/18/77,
at 5-6. According to the trial court, the seminal fluid “verifi[ed] . . . Evans’
testimony that [the victim] died protesting a sexual attack upon her” and
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“remove[d] all doubt” about the required premeditation for first-degree
murder. Id. at 6.
In my view, the new DNA evidence excluding Appellant as the
contributor of the seminal fluid is exculpatory because it creates the
possibility of reasonable doubt regarding his mens rea at the time of the
murder. The evidence directly contradicts, though it does not completely
disprove, the key inference on which the prosecution and the trial court
relied to convict Appellant of first-degree murder – that the victim died while
resisting Appellant’s sexual attack. The evidence also calls into question
Evans’ credibility and supports Appellant’s position that the killing was not
intentional. Cf. Bonaccurso, 625 A.2d at 1200.2
I also disagree with the majority’s conclusion that Appellant has not
met his burden of proving, by a preponderance of the evidence, that the
DNA evidence would likely have changed the outcome of his degree-of-guilt
hearing. Contrary to the Commonwealth’s assertion on appeal, the record
shows that the sexual assault evidence was central to the prosecution’s
case. Three of the four Commonwealth witnesses discussed the evidence,
and the prosecutor emphasized it during his closing argument. 3 See N.T.,
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2
Were the factfinder to conclude that the killing was not intentional,
Appellant could only be subject to liability for either second- or third-degree
murder.
3
The prosecutor stated: “[A]ll of the words from [Appellant] are
consistent with the fact that this was an intentional killing; that at least it
(Footnote Continued Next Page)
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6/7/77, at 15-16, 20-21, 44-45, 56-57; N.T., 6/28/77, at 17. More
critically, the trial court explicitly relied on the sexual assault evidence in
convicting Appellant of first-degree murder. See Trial Ct. Op., 7/18/77, at
6-7. Under these circumstances, I cannot conclude that DNA evidence
would not have resulted in a different verdict.
Two cases are instructive on this point. In Commonwealth v.
Bulted, 279 A.2d 158, 159 (Pa. 1971), a jury convicted Bulted of first-
degree murder for the shooting of his wife. At trial, Bulted testified that the
gun discharged accidentally during an altercation with his wife about her
sexual relationship with another man, Francisco Matos. Matos did not
appear at trial because the parties could not locate him. Id. at 160-61. The
prosecution relied heavily on Matos’s non-appearance, claiming that he was
a “phantom” witness. Id. at 161. After trial, however, Bulted located and
deposed Matos, and Matos’s testimony corroborated Bulted’s trial testimony
regarding Matos’s relationship with Bulted’s wife. Id.
On appeal, our Supreme Court held that this evidence warranted a
new trial because “[t]he emphasis which the district attorney placed on the
supposed ‘phantom’ nature of Francisco Matos in his closing remarks is
indicative of the crucial importance which Francisco Matos and his supposed
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(Footnote Continued)
was a rape, that the facts of the case show that there was intercourse
between the two.” N.T., 6/28/77, at 17.
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non[-]existence played in the case presented by the Commonwealth.” Id. at
161-62. The Supreme Court explained:
When we further consider the great discretion
given to a jury to choose between the various
degrees of homicide, we believe that a second trial
would be likely to produce a different result, even if
the jury refused to believe any part of [Bulted’s]
case other than that testified to by Francisco Matos.
The jury would only have to take heed of the court’s
charge in light of [Bulted’s] testimony, as now
corroborated by Francisco Matos, to arrive at a different
verdict, even if they found that [his] wife died because he
pulled the trigger rather than because the gun went off
accidentally, after she threatened to kill him. . . .
...
Under the circumstances, it would be monstrously
unjust to deny [Bulted] a second trial at which the jury will
have an opportunity to weigh the testimony of Matos
before reaching their verdict.
Id. at 162 (emphasis added).
In Commonwealth v. Fiore, 780 A.2d 704, 708 (Pa.Super. 2001), a
jury convicted Fiore of criminal conspiracy to commit murder and criminal
solicitation. Fiore subsequently sought PCRA relief based on the after-
discovered testimony of co-defendant Nikolai Zdrale, who was deposed 13
years after the alleged conspiracy. Id. at 712. At his deposition, Zdrale
testified that he and Fiore, while they disliked the victim, did not conspire to
murder him. Id.
On appeal, this Court found that despite minor inconsistencies in
Zdrale’s testimony, his testimony directly contradicted that of two
Commonwealth witnesses, one of whom was a convicted perjurer and the
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other of whom admitted lying to police. Id. at 713. In concluding that
Zdrale’s testimony would likely produce a different verdict, we examined the
impact of such testimony on the prosecution’s theory of the case at the time
of trial:
Mr. Zdrale’s testimony contradicts the Commonwealth’s
case-in-chief. At trial, the Commonwealth contended that
Mr. Zdrale was the middleman in the murder-for-hire
conspiracy. He was the link between Mr. Fiore, the person
who wanted [the victim] killed, and Mr. Smith and Mr.
Thomas, the men hired to kill [the victim]. Mr. Zdrale
professed that there was no conspiracy. We believe that a
jury should be presented with the testimony of Mr. Zdrale
to permit it to determine whether his version of the events
is more credible than that of Mr. Smith and Mr. Thomas.
Id. at 714. Therefore, we concluded that Fiore “proved by a preponderance
of the evidence that . . . [Zdrale’s] testimony[,] if believed by a jury[,]
would likely have changed the outcome of the trial.” Id.; see also
Bonaccurso, 625 A.2d at 1201 n.3 (“It is demonstrable that had the
defense known of the [newly-discovered] evidence . . . [,] the trial tactics
would have changed.”).
In this case, the prosecution’s theory of the case, and the conduct of
Appellant’s degree-of-guilt hearing, almost certainly would have been
different had the DNA evidence been available in 1977. A factfinder should
be given the opportunity to weigh the DNA evidence along with the other
available evidence before determining Appellant’s appropriate degree of
guilt.
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Accordingly, I would conclude that the DNA evidence excluding
Appellant as the contributor of the seminal fluid found in the victim’s body
requires a new degree-of-guilt hearing and, therefore, would reverse the
PCRA court’s order.
For these reasons, I respectfully dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/2017
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