Com. v. Duncan, J. ( 2018 )


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  • J-S78017-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                              :
    :
    :
    JAMES DUNCAN,                              :
    :
    Appellant           :   No. 585 WDA 2017
    Appeal from the PCRA Order March 16, 2017
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
    CP-25-CR-0000909-2012
    BEFORE:      OLSON, J., DUBOW, J., and STRASSBURGER, J.*
    MEMORANDUM BY DUBOW, J.:                                   FILED MAY 09, 2018
    Appellant James Duncan seeks review of the Order dismissing his
    Petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-
    46, and denying his Motion for Post-Conviction DNA Testing. We affirm on
    the basis of the PCRA court’s Pa.R.Crim.P. 907 Opinion, dated February 22,
    2017, and its Opinion denying the Motion for DNA testing, dated February
    27, 2017.
    On September 10, 2013, the court sentenced Appellant to an
    aggregate term of 21 to 42 years’ incarceration after a jury convicted him of
    Third-Degree Murder, Possession of an Instrument of Crime (“PIC”), and
    Abuse of Corpse in connection with the stabbing death of Nikkia Sawyer.1
    ____________________________________________
    1We summarized the underlying facts in our disposition of Appellant’s direct
    appeal as follows:
    (Footnote Continued Next Page)
    ____________________________________
    * Retired Senior Judge assigned to the Superior Court.
    J-S78017-17
    This Court affirmed the Judgment of Sentence and on June 20, 2015, the
    Supreme Court denied allocatur.           See Commonwealth v. Duncan, No.
    1548 WDA 2013 (Pa. Super. filed 12/23/14) (unpublished memorandum),
    appeal denied, 
    117 A.3d 295
    (Pa. 2015).
    Appellant filed a timely, counseled PCRA Petition on June 9, 2016.
    Simultaneously, he filed a Post-Conviction Motion for the Performance of
    (Footnote Continued) _______________________
    On June 21, 2011, the naked and mutilated body of 27-year-old
    Nikkia Sawyer was discovered by her mother at Sawyer’s
    apartment at the Highpoint Towers in the City of Erie. Sawyer’s
    body was lying partially covered with blankets and towels on her
    bed, with numerous stab wounds, her feet were bound with a
    garment, her hands were tied behind her, and there was a shirt
    or cloth covering her face. When Sawyer’s face was uncovered,
    a pair of Victoria’s Secret panties was found stuffed in her
    mouth. From the large number of stab wounds to Sawyer’s body
    and the absence of a significant volume of blood in the
    apartment, the police determined that the scene had been
    cleaned up before the body was discovered.
    An autopsy revealed the Sawyer had been stabbed
    approximately 60 times, including in the face, neck, chin, chest,
    and torso. Dried semen was found on Sawyer’s breasts and
    navel area, as well as on a fleece blanket on Sawyer’s bed, and
    was sent for DNA analysis.
    Appellant, at the time also a resident of Highpoint Towers, was
    acquainted with Sawyer through his girlfriend, Shekirah Curry,
    who had known Sawyer since they were both eight years old.
    Duncan’s DNA was found in the samples taken from Sawyer’s
    body and the blanket. His hand print was also found on a
    Victoria’s Secret bag hanging on Sawyer’s bedroom door.
    Commonwealth v. Duncan, 1548 WDA 2013 at 1-2 (Pa. Super. filed
    12/23/14) (unpublished memorandum).
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    J-S78017-17
    forensic DNA Testing on Crime Scene Evidence.           In his Motion for DNA
    Testing, Appellant sought testing on 36 pieces of evidence found at the
    crime scene that had not undergone DNA testing by Commonwealth experts.
    In his PCRA Petition, Appellant averred that counsel was ineffective in failing
    to hire a DNA expert to analyze those same 36 items.
    On February 22, 2017, the court filed a Notice of Intent to Dismiss
    pursuant to Pa.R.Crim.P. 907.      On February 27, 2017, the court denied
    Appellant’s Motion for DNA testing. Appellant filed a response to the Rule
    907 Notice. On March 16, 2017, the court dismissed the PCRA Petition.
    Appellant timely appealed. Both Appellant and the trial court complied
    with Pa.R.A.P. 1925.
    In his Brief, Appellant raises the following issue:
    The PCRA Court erred in denying (A) Appellant’s Motion for DNA
    Testing, and [B] Appellant’s PCRA Petition based on ineffective
    assistance of counsel for failing to conduct DNA testing.
    Appellant’s Brief at 1 (some capitalization omitted).
    MOTION FOR DNA TESTING
    Because post-conviction DNA testing is provided for under the PCRA,
    “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) (citation omitted).
    We review an order denying a motion for post-conviction DNA testing
    as follows.
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    J-S78017-17
    [T]he trial court’s application of a statute is a question of law
    that compels plenary review to determine whether the court
    committed an error of law. When reviewing an order denying a
    motion for post-conviction DNA testing, this Court determines
    whether the movant satisfied the statutory requirements listed in
    Section 9543.1. We can affirm the court’s decision if there is any
    basis to support it, even if we rely on different grounds to affirm.
    Commonwealth v. Williams, 
    35 A.3d 44
    , 47 (Pa. Super. 2011) (internal
    citations omitted).
    Regarding the post-conviction DNA statute, we observe that
    [t]he statute sets forth several threshold requirements to obtain
    DNA testing: (1) the evidence specified must be available for
    testing on the date of the motion; (2) if the evidence was
    discovered prior to the applicant’s conviction, it was not already
    DNA tested because (a) technology for testing did not exist at
    the time of the applicant’s trial; (b) the applicant’s counsel did
    not request testing in a case that went to verdict before January
    1, 1995; or (c) counsel sought funds from the court to pay for
    the testing because his client was indigent, and the court refused
    the request despite the client’s indigency. Additionally, … [u]nder
    section 9543.1(c)(3), the petitioner is required to present a
    prima facie case that the requested DNA testing, assuming it
    gives exculpatory results, would establish the petitioner’s actual
    innocence of the crime. Under section 9543.1(d)(2), the court is
    directed not to order the testing if it determines, after review of
    the trial record, that there is no reasonable possibility that the
    testing would produce exculpatory evidence to establish
    petitioner’s actual innocence. From the clear words and plain
    meaning of these provisions, there can be no mistake that the
    burden lies with the petitioner to make a prima facie case that
    favorable results from the requested DNA testing would establish
    his innocence. We note that the statute does not require
    petitioner to show that the DNA testing results would be
    favorable. However, the court is required to review not only the
    motion for DNA testing, but also the trial record, and then make
    a determination as to whether there is a reasonable possibility
    that DNA testing would produce exculpatory evidence that
    would establish petitioner’s actual innocence. We find no
    ambiguity in the standard established by the legislature with the
    words of this statute.
    -4-
    J-S78017-17
    
    Id. at 49-50
    (citation omitted; emphasis in original).
    Instantly, Appellant has failed to meet the threshold requirements for
    DNA testing under Section 9543.1(a)(2).           The items at issue were
    discovered before Appellant’s trial, the DNA testing technology was available
    at the time of Appellant’s trial, the verdict was rendered after January 1,
    1995, and, contrary to Appellant’s contention, there is no evidence that the
    trial court refused funds for DNA testing.   See 42 Pa.C.S. § 9543.1(a)(2).
    See Trial Ct. Op., dated 2/22/17, at 5 (detailing four approved applications
    for funds totaling nearly $9,000 filed by Appellant for expert funding
    concerning DNA evidence).
    We further note that the PCRA court assessed Appellant’s request for
    DNA testing in light of the trial record to see if there were a reasonable
    possibility that the testing would produce exculpatory evidence to establish
    Appellant’s actual innocence.   See 42 Pa.C.S. § 9543.1(c)(3) and (d)(2).
    The PCRA court ultimately concluded that Appellant failed to set forth a
    prima facie case that the requested DNA testing would establish his actual
    innocence. See PCRA Court Opinion, 2/27/17. After reviewing the briefs of
    the parties, the certified record and the applicable law, we agree.
    Having concluded that the PCRA court’s February 27, 2017 Opinion
    ably and comprehensively disposes of Appellant’s issues raised on appeal,
    with appropriate reference to the record and without legal error, we will
    affirm on the basis of that opinion. See id.at 7 (concluding that Appellant’s
    “bald assertion” that DNA testing of additional items would establish his
    -5-
    J-S78017-17
    “actual innocence” of the offenses is premised upon speculation; and finding
    that (1) “a plethora of DNA evidence established [Appellant’s] culpability[;]”
    (2)   “numerous     additional   items    of   evidence   concerning   [Appellant]
    supported the convictions[;]” (3) “the DNA evidence of third persons other
    than [Appellant] . . . was submitted to the jury[;]” and (4) “[e]ven though
    the jury was presented with evidence [that] third persons were present in
    the victim’s apartment, the jury found the evidence implicating [Appellant]
    was sufficient to convict.”).
    PCRA PETITION – Ineffective Assistance of Counsel
    Our scope and standard of review of the denial of a PCRA Petition is
    well-established.
    In PCRA appeals, our scope of review is limited to the findings of
    the PCRA court and the evidence on the record of the PCRA
    court's hearing, viewed in the light most favorable to the
    prevailing party. Because most PCRA appeals involve questions
    of fact and law, we employ a mixed standard of review. We defer
    to the PCRA court's factual findings and credibility
    determinations supported by the record. In contrast, we review
    the PCRA court's legal conclusions de novo.
    Commonwealth v. Reyes–Rodriguez, 
    111 A.3d 775
    , 779 (Pa. Super.
    2015) (internal citations and quotations omitted).
    Appellant asserts that his trial counsel provided ineffective assistance
    for failing “to conduct any forensic investigation, or DNA testing, on evidence
    found at [the] crime scene that contained DNA material.” Appellant’s Brief
    at 10. We review ineffectiveness claims with the following precepts in mind.
    -6-
    J-S78017-17
    The   law   presumes    counsel   has   rendered    effective   assistance.
    Commonwealth v. Rivera, 
    10 A.3d 1276
    , 1279 (Pa. Super. 2010). “The
    burden of demonstrating ineffectiveness rests on [A]ppellant.”           
    Id. To satisfy
    this burden, Appellant must plead and prove by a preponderance of
    the evidence that: “(1) his underlying claim is of arguable merit; (2) the
    particular course of conduct pursued by counsel did not have some
    reasonable basis designed to effectuate his interests; and, (3) but for
    counsel’s ineffectiveness, there is a reasonable probability that the outcome
    of the challenged proceeding would have been different.” Commonwealth
    v. Fulton, 
    830 A.2d 567
    , 572 (Pa. 2003). Failure to satisfy any prong of the
    test will result in rejection of the appellant’s ineffective assistance of counsel
    claim. Commonwealth v. Jones, 
    811 A.2d 994
    , 1002 (Pa. 2002).
    Appellant is unable to meet his burden.       Specifically, as the above
    discussion indicates, Appellant is unable to prove that his underlying claim—
    that further testing would prove his innocence—has merit. Likewise, he is
    unable to prove that but for counsel’s alleged ineffectiveness, “there is a
    reasonable probability that the outcome of the challenged proceeding would
    have    been   different.”     
    Fulton, supra
    .      Accordingly,     Appellant’s
    ineffectiveness claim fails.
    The PCRA court’s February 22, 2017 Opinion comprehensively reviews
    and disposes of Appellant’s issues raised on appeal, with appropriate
    reference to the record, citation to relevant case law, and without legal
    -7-
    J-S78017-17
    error. See 
    id. at 6-9
    (noting claim lacks arguable merit because Appellant
    “failed to establish how any such evidence would have been exculpatory, or
    how any amount of additional DNA testing would have changed the outcome
    of the tria[l]”; finding speculative and without merit Appellant’s bald
    assertion that “had such DNA testing been conducted, the results could have
    incriminated other individuals and proved [his] innocence[;]” noting that
    although “a plethora of DNA evidence established [Appellant’s] culpability,”
    his convictions were not based solely on DNA evidence). Accordingly, we
    affirm on the basis of the February 22, 2017 Opinion.
    The parties are instructed to attach both the February 22, 2017
    Opinion and the February 27, 2017 Opinion to any future filings.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 5/9/2018
    -8-
    J-S78017-17
    -9-
    Circulated 04/26/2018 12:36 PM
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    COMMONWEALTH OF PENNSYLVANIA                               IN THE COURT OF COMMON PLEAS
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    JAMES DUNCAN, PETITIONER                                                                          . . .'-, c: c·:
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    NOTICE OF INTENT TO DISMISS PCRA
    PURSUANT TO PA.R.CRIM.P. 907
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    AND NOW, to-wit, this Qf()C-- day of February, 2017, after an independent review of
    the record, consideration of Petitioner's Petition for Post-Conviction Relief Under the Post
    Conviction Relief Act and the Commonwealth's Answer to and Motion to Dismiss Petition for
    Post-Conviction Relief and Motion for Performance of Forensic DNA Testing, Petitioner, James
    1
    Duncan, has failed to state a claim for relief.           Because the PCRA claims can be addressed based
    on the existing record, there is no need for an evidentiary hearing.
    FACTUAL/PROCEDURAL BACKGROUND
    On July 16, 2013, after six days of testimony, a jury convicted Petitioner of Criminal
    Homicide/Murder,         Aggravated       Assault;    Possessing      Instruments      of   Crime;                        Recklessly
    Endangering Another Person; and Abuse of Corpse.2 The convictions were for the brutal murder
    of a 27 year-old female, Nikkia Sawyer, whose mother found her dead, lying on her back in bed,
    nude and partially covered, with approximately 60 knife wounds over her body.                                                             Trial
    I
    Concurrent with the filing of the instant PCRA motion, Petitioner filed a Motion for the Performance of Forensic
    DNA Testing on Crime Scene Evidence. The Commonwealth responded to both the PCRA motion and the motion
    for DNA testing in a single filing. The Court will address Petitioner's motion for DNA testing in a separate Opinion
    and Order.
    218
    Pa.C.S.A. § 2502(c); 18 Pa.C.S.A. §2702(a)(]); 18 Pa.C.S.A. §907(a)(2); 18 Pa.C.S.A. §2705 and 18 Pa.C.S.A.
    §55 I 0, respectively.
    1
    1a
    Transcript, Day Three, July 12, 2013 ("TT. 3 "), p. 178; Trial Transcript, Day One, July 10,
    2013 ("TT. l "). pp. 32-33; Trial Transcript, Day Two, July 11, 2013 ("T.T 2''), pp. 72-117.
    An autopsy revealed Sawyer died from multiple deep stab injuries to the chest. TT. 2, pp. 117,
    122.
    On September 10, 2013, the Court sentenced Petitioner to a term of 20 to 40 years of
    incarceration on the third degree murder conviction, 6 to 12 months of incarceration for
    Possessing Instruments of Crime; and 6 to 12 months of incarceration for Abuse of Corpse.' All
    sentences were imposed consecutively, for an aggregate of21 to 42 years of incarceration.
    Petitioner filed post-sentence motions, which were denied by Order entered on September
    20, 2013. On September 25, 2013, Petitioner filed a Notice of Appeal. Petitioner raised for
    appellate review the following claims:             there was insufficient evidence to support the
    convictions; the Trial Court abused its discretion in refusing to grant some of the Petitioner's
    requests for continuances; the Trial Court abused its discretion in permitting the jury to view
    Petitioner in handcuffs and shackles in a video played for the jury during which Petitioner was
    interviewed by law enforcement; the Trial Court abused its discretion in permitting the jury to
    hear testimony from Petitioner's girlfriend that his teardrop tattoos meant he had killed someone,
    it was time to get another such tattoo, and he would kill his girlfriend; the Trial Court violated
    Petitioner's rights to due process and effective assistance of counsel during voir dire; and the
    evidence was insufficient to support the convictions.
    On December 23, 2014, the Superior Court affirmed the judgment of sentence.
    Commonwealth v. Duncan, 1548 WDA 2013 (Pa. Super. 2014)(unpublished memorandum).
    3
    The convictions for Aggravated Assault and Recklessly Endangering Another Person merged with the third degree
    murder conviction for sentencing purposes.                                           ·
    2
    2a
    Petitioner· filed a Petition for Allowance of Appeal with the Supreme Court of Pennsylvania
    which was denied on June 10, 2015.
    On June 9, 2016, Petitioner timely filed a counseled Petition for Post-Conviction Relief
    Under the Post Conviction Relief Act, 42 Pa.C.S.A. §9541 et seq. 4 Concurrently, Petitioner filed
    a Motion for the Performance of Forensic DNA Testing on Crime Scene Evidence.5
    In the PCRA, Petitioner asserts his convictions resulted from ineffective assistance of
    trial counsel which so undermined the truth-determining process that no reliable adjudication of
    guilt could have taken place. Petitioner asserts counsel was ineffective in failing to hire a DNA
    exnert to analvze �,; m1t of 50 items retrieved from the crime �ce:nP. that were not analvzed bv the
    Commonwealth's DNA expert. Petitioner claims that, "[h]ad such DNA testing been conducted,
    the results could have incriminated other individuals and proved Defendant's innocence." PCRA
    Motion, �9 (emphasis added). Petitioner further claims there was insufficient funding of expert
    services for Petitioner's defense to adequately challenge the Commonwealth's DNA evidence at
    trial, and the funding provided for defense experts "fell below constitutional standards" and
    entitles Petitioner to relief. PCRA Motion, �10.
    On July 12, 2016, the Commonwealth filed an Answer and Motion to Dismiss Petition
    for Post-Conviction Relief and Motion for Performance of Forensic DNA Testing.                                 The
    Commonwealth asserts Petitioner failed to prove any of the three prongs of the test for
    ineffectiveness of counsel. The Commonwealth asserts Petitioner's averment that DNA testing
    "could have ... proved Defendant's innocence" is insufficient.
    4
    Petitioner's judgment of sentence became final on September 8, 2015, ninety (90) days after the Supreme Court of
    Pennsylvania denied allocator on June IO, 2015. See, U.S. Sup. Ct. Rule 13(1), 1 Pa.C.S.A. §1908. As the instant
    PCRA filed on June 9, 2016 was filed within one year of the date the judgment of sentence became final, it is timely.
    See 42 Pa.CS.A. §9545(b)(I).
    5
    The motion for DNA testing shall be addressed in a separate Memorandum Opinion and Order.
    3
    3a
    LEGAL STANDARDS
    To be eligible for relief under [the PCRA ], the petitioner must plead and prove by a
    preponderance of the evidence, inter alia, the allegation of error has not been previously litigated
    or waived. 42 Pa.CS.A. §9543(a)(3). An issue is waived if a petitioner could have, but failed to
    raise an issue prior to the instant proceeding. 42 Pa.CS.A. §9544(b).
    To obtain relief under the PCRA premised upon a claim that counsel was ineffective, a
    petitioner must establish by a preponderance of the evidence, "[ijneffective assistance of counsel
    which, in the circumstances of the particular case, so undermined the truth-determining process
    that no reliable adjudication of guilt or innocence could have taken place."              42 Pa.CS.A.
    §9543(a)(2)(ii). "Generally, counsel's performance is presumed to be constitutionally adequate,
    and counsel will only be deemed ineffective upon a sufficient showing by the petitioner."
    Commonwealth v. Johnson, 
    966 A.2d 523
    , 532 (Pa. 2009).
    To establish ineffective assistance of counsel, the petitioner must "demonstrate that: (1)
    the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or
    her action or inaction; and (3) the petitioner was prejudiced by counsel's act or omission."
    Commonwealth v. G.Y., 
    63 A.3d 259
    , 265 (Pa. Super. 2013). A finding of "prejudice" requires
    petitioner to establish "there is a reasonable probability that, but for counsel's unprofessional
    errors, the result of the proceeding would have been different." 
    Id. Counsel cannot
    be deemed ineffective for failing to pursue a meritless claim.
    Counsel will not be deemed ineffective if any reasonable basis exists for counsel's
    actions. Even if counsel had no reasonable basis for the course of conduct
    pursued, [petitioner] is not entitled to relief if he fails to demonstrate the requisite
    prejudice which is necessary under Pennsylvania's ineffectiveness standard.
    When it is clear that [petitioner] has failed to meet the prejudice prong, the court
    may dispose of the claim on that basis alone, without a determination of whether
    the first two prongs have been met.
    
    Id. (internal citations
    omitted).
    4
    4a
    DISCUSSION
    1. Challenge to the Constitutionality of Funding for Expert Witnesses
    Petitioner's claim that funding for defense expert witnesses to challenge the
    Commonwealth's DNA evidence was inadequate/did not meet constitutional standards is
    waived, for failure to raise the issue on direct appeal.     Petitioner did not challenge on direct
    appeal whether adequate funds were provided for his defense. Therefore, the issue is waived.
    See 42 Pa.CS.A. §§9543(a)(3), 9544(b).
    Assuming arguendo the issue is not waived, the record demonstrates adequate defense
    funding was provided. The Trial Court approved the numerous requests by Petitioner for expert .
    funding concerning DNA evidence.
    On January 17, 2013, trial counsel filed an Application for Funds for Forensic/DNA
    Expert, Seil.aw Forensics, Ltd, requesting $1,500.00. Application for Funds for Forensic/DNA
    Expert filed January 17, 2013,   14.   On January 17, 2013, the Court approved the request.
    On January 25, 2013, trial counsel filed an Application for Funds for a Forensic
    Pathologist, Karl Williams, M.D., M.P.H, chief medical examiner, Allegheny County.             On
    February 13, 2013, the Court approved the request for $3,500.00.
    On March 18, 2013, Petitioner's trial counsel filed a Motion for Payment of Forensic
    Expert and Request for Additional Funding, concerning services of SciLawForensics, Ltd. On
    April 22, 2013, the Court granted the request for $700.00.
    On June 12, 2013, trial counsel requested additional funding in the sum of $3.,QOO.OO for
    SciLawForensics, Ltd. On June 12, 2013, the Court granted the request.
    There were no other motions filed by Petitioner which were refused by the Court. The
    claim must fail.
    5
    Sa
    2. Ineffective Assistance of Trial Counsel Claim
    Petitioner has failed to establish by a preponderance of the evidence the ineffective
    assistance of trial counsel which, in the circumstances of this case, so undermined the truth-
    determining process that no reliable adjudication of guilt or innocence could have taken place.
    Petitioner claims trial counsel failed to retain a DNA expert to analyze items which did
    not undergo DNA analysis by Commonwealth experts.
    Initially, Petitioner has failed to demonstrate by a preponderance of the evidence the first
    prong of the ineffectiveness test, i.e., that the underlying claim is of arguable merit.
    The ineffectiveness claim lacks arguable merit, because Petitioner failed to establish how
    any such evidence would have been exculpatory, or how any amount of additional DNA testing
    would have changed the outcome of the trial.
    The evidence Petitioner claims should have undergone DNA testing includes blood under
    the fingernails; a hair in the victim's left hand; the Victoria's Secret panties found stuffed in the
    victim's mouth; a tan washcloth in the sink; blood in the sink; a towel on the bed; vaginal, rectal
    and oral swabs and smears; a nasal mucus sample; underwear from the apartment; a teddy bear; a
    purse; another Victoria's Secret bag other than the one on which Petitioner's handprint was
    found; and a contact lens.
    Petitioner fails to assert any justification or basis for testing any of these additional items.
    Petitioner fails to allege any reason why more items should have undergone DNA analysis, and
    fails to assert any facts suggesting that further testing would have produced exculpatory
    evidence.   Instead, Petitioner merely and baldly asserts, "[h]ad such DNA testing been
    conducted, the results could have incriminated other individuals and proved Defendant's
    6
    6a
    innocence." See, PCRA Motion.                This bald assertion falls short m establishing a claim of
    arguable merit.
    The claim also lacks arguable merit because the DNA evidence found at the scene was
    not limited to that of the victim and the Petitioner. Petitioner labors under the misapprehension
    that the presence of DNA of third persons will somehow serve to exonerate him. The DNA of
    other persons was found at the scene.6                The jury, in fact, heard about the DNA of other
    contributors, both known/identified and unknown/unidentified, whose DNA was found at the
    crime scene. Despite this, the jury found Petitioner guilty beyond a reasonable doubt of the
    crimes charged.
    Additionally, the claim lacks arguable merit because the Petitioner's convictions were not
    based solely on DNA evidence.
    A plethora of DNA evidence established Petitioner's culpability. Evidence introduced at
    trial established that Eric Vey, M.D., forensic pathologist, prepared a sexual assault kit which
    6
    Expert testimony concerning forensic DNA analysis of 23 items submitted by the Pennsylvania State Police crime
    lab included the following.
    Alex Glessner, Ph.D., forensic DNA scientist for the Pennsylvania State Police, testified on the second day of trial.
    T. T. 2, pp. 154-235. Dr. Glessner initially received 18 items for DNA analysis and comparison. T.T. 2, p. 168. Four
    of these items were from four known individuals to establish standard references, or controls, for analysis of the
    other items. T.T. 2, pp. 168-170. The four initial DNA control samples were taken from the following: the victim,
    Richard L. Green, Ryan Green, and Bernard J. Przybyszewski. T. T. 2, 7/11/13, pp. 168-170. Later, Glessner
    received DNA samples from Richard Young and Petitioner to compare with questioned samples. T. T. 2, p. 177-
    179.
    Petitioner's DNA, the victim's DNA and an unidentified individual's DNA was in a DNA mixture on a breast
    swabbing of the victim. T.T. 2, pp. 181-182; 185. Petitioner's DNA, the victim's DNA and an unidentified
    individual's DNA was in a DNA mixture on a swabbing of the victim's naval area. T. T. 2, pp. 182-185. Petitioner's
    DNA was the only DNA found on the knot binding the victim's ankles. T.T. 2, pp. 185-186.
    Thereafter, five additional samples from the victim's bed and bedding were submitted for DNA analysis. T.T. 2, pp.
    187-188. The DNA of the victim and one or more unknown third persons was found in a DNA mixture on the
    mattress top. T.T. 2, pp. 188. The victim's DNA and the DNA of an unidentified individual were found on the
    victim's comforter. T.T. 2, pp. 189-190. The victim's DNA and Richard Green's DNA was found on the victim's
    pillowcase. T.T. 2, pp. 190-191. The victim's DNA and Richard Green's DNA were found on two stains on the
    victim's fleece blanket. T. T. 2, pp. 191-192. The victim's DNA, Petitioner's DNA, and two other unknown
    contributors' DNA were found on another stain on the fleece blanket, T.T. 2, p. 193.
    7
    7a
    included oral and nasal swabs, and swabs of dried secretions found on Sawyer's breasts and her
    navel area for DNA analysis. T. T. 2, pp. 67-68, 70; T. T. 3, pp. 29-30. Of the DNA tested, only
    Petitioner's DNA was found on the victim's body. Petitioner's DNA was found on Sawyer's
    breasts and navel area. T.T. 2, pp. 181-185. Petitioner's DNA was found on semen stains on a
    fleece blanket from Sawyer's bed. T.T. 2, pp. 187-188, 193; T.T. 3, p. 40. Petitioner was a
    potential contributor to the DNA found on the knot of the binding around Sawyer's ankles. T.T.
    2, pp. 185-186.
    In addition to the DNA evidence, numerous additional items of evidence supported
    Petitioner's convictions. During autopsy, a bundled pair of Victoria's Secret panties was found
    stuffed in Sawyer's mouth.     T.T. 2, p. 61; T.T. 3, p. 32.    Petitioner's hand-print was on a
    Victoria's Secret bag found hanging on Sawyer's bedroom door. T.T. 2, pp. 17, 43, 92, 94, 97.
    The jury heard evidence that, following the murder, Petitioner told his girlfriend, Shekirah Curry,
    "I'll kill you like that retarded b---- Nikkia." T. T. 3, pp. 140-141. Also, Curry testified that
    Petitioner, who had teardrop tattoos underneath his eye, told Curry the significance of having a
    teardrop tattoo below the eye was, "To lose a loved one and if you kill somebody." T.T. 3, pp.
    141-142. Curry reported Petitioner told her he thought about getting another teardrop tattoo.
    T. T. 3, pp. 141-142. In addition, recordings of multiple interviews of Petitioner by the police
    were played for the jury. The jury was able to view Petitioner's demeanor and behavior as he
    spoke with the police, and the jury heard multiple inconsistencies in Petitioner's explanations
    about his familiarity and relations with the victim. The jury, and subsequently, the Superior
    Court, found the evidence, as a whole, was sufficient to sustain the convictions.
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    For the same reasons, Petitioner has failed to demonstrate by a preponderance of the
    evidence the third prong of the ineffectiveness test, i.e., that the Petitioner was prejudiced by not
    submitting additional items for DNA analysis.
    First, Petitioner's mere assertion that additional testing could have produced evidence of
    Petitioner's innocence, does not establish by a preponderance of the evidence prejudice from
    failure to submit additional items for DNA analysis.
    Second, Petitioner fails to sufficiently establish prejudice, where the DNA evidence
    found at the scene was not limited to that of the victim and the Petitioner. As set forth above, the
    DNA of other persons ·was found at the scene. The DNA of third persons was found at the scene
    and evidence of this was presented to the jury. Yet, the jury found this evidence unconvincing.
    Petitioner fails to establish how any further DNA analysis would have been exculpatory.
    Evidence of DNA of third persons was already submitted to the jury.
    Further, Petitioner fails to sufficiently establish prejudice from failure to submit
    additional items for DNA testing, where Petitioner's convictions were not based solely on DNA
    evidence. As previously discussed, additional evidence supported Petitioner's convictions as
    found by the Superior Court. Evidence of the Victoria's Secret panties in the victim's mouth;
    Petitioner's handprint on the Victoria's Secret bag found hanging on the victim's bedroom door;
    Petitioner's statements to his girlfriend, threatening to kill her like the victim; and Petitioner's
    statements about the significance of having a teardrop tattoo below his eye and his thought about
    getting another such tattoo, was presented to the jury. As additional evidence beyond DNA
    evidence supported the convictions, Petitioner cannot establish the third prong of the
    ineffectiveness of counsel test.
    For the aforesaid reasons, Petitioner's ineffectiveness of counsel claim must fail.
    9
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    CONCLUSION
    For the reasons stated herein, Petitioner's Petition for Post-Conviction Relief Under the
    Post Conviction Relief Act shall be dismissed.
    Petitioner is hereby put on notice that his Petition for Post-Conviction Relief Under the
    Post Conviction Relief Act will be dismissed after twenty (20) days from the date of this Notice.
    Within this same time period, Petitioner shall have the right to file any Objections to this Notice.
    BY THE COURT:
    cc:    Michael E. Burns, Esq., Assistant District Attorney
    Chris Rand Eyster, Esq., 304 Ross Street, Suite 400, Pittsburgh, PA 15219
    James Duncan, ID No. LE-5688, P.O. Box 945, 286 Woodland Drive, Marienville, PA
    16239 LEGAL MAIL
    10
    1 Oa
    Circulated 04/26/2018 12:36 PM
    COMMONWEALTH OF PENNSYLVANIA                                    IN THE COURT OF COMMON. PLEAS
    OF ERIE COUNTY, PENNSYLVANIA
    v.                                   CRIMINAL DIVISION
    rr.r··
    �·--
    -- . .-i\ r .
    JAMES DUNCAN, PETITIONER                                        NO. 909 of 2012                :::� --: -            �
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    MEMORANDUM OPINION                                            r-:: : . - •,
    Ll
    This matter is before the Court on Petitioner's Motion for the Performance of Forensic
    DNA Testing on Crime Scene Evidence, and the Commonwealth's Answer to and Motion to
    Dismiss Petition For Post-Conviction Relief and Motion for Performance of Forensic DNA
    Testing.1 For the reasons set forth below, the Petitioner's Motion must be denied.
    PROCEDURAL BACKGROUND
    On July 16, 2013, after six days of testimony, a jury convicted Petitioner of Criminal
    Homicide/Murder,         Aggravated Assault;          Possessing Instruments of Crime; Recklessly
    Endangering Another Person; and Abuse of Corpse.                       On September 10, 2013, the Court
    sentenced Petitioner to an aggregate of 21 to 42 years of incarceration. Post-sentence motions
    were denied on September 20, 2013.                On September 25, 2013, Petitioner filed a Notice of
    Appeal.
    Petitioner raised for appellate review the following claims:                    there was insufficient
    evidence to support the convictions; the Trial Court abused its discretion in refusing to grant
    some of the Petitioner's requests for continuances; the Trial Court abused its discretion in
    permitting the jury to view Petitioner in handcuffs and shackles in a video played for the jury
    I
    Concurrent with the filing of the instant Motion for the Performance of Forensic DNA Testing on Crime Scene
    Evidence, Petitioner filed a counseled Petition for Post-Conviction Relief under the Post Conviction Relief Act, 42
    Pa.C.S.A. §9541 et seq. On February 22, 2016 the Court issued a Notice oflntent to Dismiss the PCRA motion.
    11 a
    during which Petitioner was interviewed by law enforcement; the Trial Court abused its
    discretion in permitting the jury to hear testimony from Petitioner's girlfriend that his teardrop
    tattoos meant he had killed someone, it was time to get another such tattoo, and he would kill his
    girlfriend; the Trial Court violated Petitioner's rights to due process and effective assistance of
    counsel during voir dire; and the evidence was insufficient to support the convictions.
    On December 23, 2014, the Superior Court affirmed the judgment of sentence.
    Commonwealth v. Duncan, 1548 WDA 2013 (Pa. Super. 2014)(unpublished memorandum).
    Petitioner filed a Petition for Allowance of Appeal with the Supreme Court of Pennsylvania
    which was denied on June 10, 2015.
    On June 9, 2016, Petitioner timely filed a counseled Petition for Post-Conviction Relief
    Under the Post Conviction Relief Act, 42 Pa.C.S.A. §9541 et seq. Concurrently, Petitioner filed
    a Motion for the Performance of Forensic DNA Testing on Crime Scene Evidence. On July 12,
    2016, the Commonwealth filed an Answer and Motion to Dismiss Petition for Post-Conviction
    Relief and Motion for Performance of Forensic DNA Testing. On February 22, 2016 the Court
    issued a Notice of Intent to Dismiss the PCRA motion.
    DISCUSSION
    In the instant Motion for the Performance of Forensic DNA Testing on Crime Scene
    Evidence, Petitioner incorporated by reference the averments of the PCRA motion. In the
    PCRA, Petitioner claimed trial counsel was ineffective in failing to hire a DNA expert to analyze
    36 out of 50 items retrieved from the crime scene that were not analyzed by the
    Commonwealth's DNA expert.           Petitioner claimed that, "[h]ad such DNA testing been
    conducted, the results could have incriminated other individuals and proved Defendant's
    2
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    innocence." Petition for Post-Conviction Relief Under the Post Conviction Relief Act, 42
    Pa. CS.A. §9541 et seq. (PCRA Motion),               19 (emphasis added).          Petitioner further claimed there
    was insufficient funding of expert services for Petitioner's defense to adequately challenge the
    Commonwealth's DNA evidence at trial, and the funding provided for defense experts "fell
    below constitutional standards" and entitles Petitioner to relief. PCRA Motion, �10.
    In the instant Motion for the Performance of Forensic DNA Testing, Petitioner requests
    DNA testing on items obtained from the crime scene which did not undergo DNA testing by
    Commonwealth experts.i Petitioner asserts the identity of the perpetrator was at issue and
    "exculpatory DNA testing would establish the {Petitioner's] actual innocence of the offense."
    Motion for the Performance of Forensic DNA Testing on Crime Scene Evidence (Motion for
    DNA Testing),       114.   Petitioner claims his constitutional rights were violated because he was
    provided with inadequate funds and expert assistance concerning the DNA testing of crime scene
    materials. Motion for DNA Testing,           ,s.
    The convictions were for the brutal murder of a 27 year-old female, Nikkia Sawyer,
    whose mother found her dead, lying on her back in bed, nude and partially covered, with
    approximately 60 knife wounds over her body.                       Trial Transcript, Day Three, July 12, 2013
    ("T.T. 3'), p. 178;         Trial Transcript, Day One, July JO, 2013 ("T.T. l"), pp. 32-33; Trial
    Transcript, Day Two, July 11, 2013 (''T.T. 2"), pp. 72-117.                    ,;\11 autopsy revealed      Sawyer died
    from multiple deep stab injuries to the chest. T. T. 2, pp. 117, 12:2.
    A plethora of DNA evidence established Petitioner's ctilpability, Evidence introduced at
    trial �stablished that Eric Vey, M.D., forensic pathologist, prepared a: sexual assault kit which
    2
    The evidence for which Petitioner seeks DNA testing includes vaginal swabs; blt>od under the fingernails; a hair in
    the victim's left hand; the Victoria's Secret panties found stuffed in the victi�'s IJJ.Outh; a tan washcloth in the sink;
    blood in the sink; a towel on the bed; vaginal, rectal and oral swabs and smears; a nasal mucus sample; underwear
    from the apartment; a teddy bear; a purse; another Victoria's Secret bag; and a contact Jens. See Motion for the
    Performance of Forensic DNA Testing on Crime Scene Evidence, '113 .
    ....
    :>
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    i
    included oral and nasal swabs, and swabs of dried secretions    found on.Sawyer's
    ,
    breasts and her
    I
    navel area for DNA analysis. T. T 2, pp. 67-68, 70; T. T 3, pp, 29-30. ! Of the DNA tested, only
    Petitioner's DNA was found on the victim's body. Petitioner's DNA was found on Sawyer's
    '
    breasts and navel area. TT 2, pp. 181-185. Petitioner's DNt was fofnd on semen stains on a
    fleece blanket from Sawyer's bed. TT 2, pp. 187-188, 193[· T.T. 3,, p. 40. Petitione� was a
    '    . i                 i
    potential contributor to the DNA found on the knot of the binding arouhd Sawyer's ankles. TT.
    I           :           '                   ,
    •                   I
    l
    2, pp. 185-186.
    !
    l                       I                   j
    In addition to the DNA evidence, numerous additional items of evidence su�ported
    I
    !
    Petitioner's convictions. During autopsy, a bundled pair of Victoria's 'Secret panties was found
    stuffed in Sawyer's mouth.      TT 2, p. 61; TT. 3, p. 32.           Petitioner's hand-print was on a
    1           !           .                       I
    I           :                       I
    Victoria's Secret bag found hanging on Sawyer's bedroom dorr.                    p:          j2. pp. 17, 43, 92, '94, 97.
    The JUry heard evidence that, followmg the murder, Petitioner told �1s girlfriend, Shekirah Curry,
    I    I   •
    110-1�1.
    "I'll kill you like that retarded b---- Nikkia." TT 3, pp.             Also, Curry testified that
    I           i           :
    Petitioner, who had teardrop tattoos underneath his eye, told �urry th� significance of having a
    I      I
    I       '
    teardrop tattoo below the eye was, "To lose a loved one and if you kil] somebody." TT 3, pp.
    141-142.   Curry reported Petitioner told her he thought abo�t getting another teardrop tattoo.
    '           I
    TT 3, pp. 141-142. In addition, recordings of multiple interviews of Petitioner by the police
    .           !
    were played for the jury. The jury was able to view Petitioner's demeanor and behavior as he
    spoke with the police, and the jury heard multiple inconsistehcies
    I
    in l,Petitioner's explanations
    i               .
    about his familiarity and relations with the victim. The jury, and subsequently, the Superior
    i
    Court, found the evidence, as a whole, was sufficient to sustain the Jon'\{ictions.      I
    I
    The DNA of other persons was found at the scene, �deny-en� DNA analysis, and was
    �alJsis
    presented to the jury. Expert testimony concerning forensic D�A         of 23 items submitted
    !
    by the Pennsylvania State Police crime lab included the following.
    I
    Alex Glessner, Ph.D.,
    forensic DNA scientist for the Pennsylvania State Police, te,tified on the second day of trial.
    1r
    T. T. 2, pp. 154-235. Dr. Glessner initially received 18 items         DNA _analysis and comparison.
    TT 2, p. 168.     Four of these items were from four known! individuals to establish standard
    references, or controls, for analysis of the other items. TT 2,   Pf· 168-170.    The four initial DNA
    i
    control samples were taken from the following: the victim, Richard L. Green, Ryan Green, and
    '
    !
    Bernard J. Przybyszewski. TT. 2, 7111 /13, pp. 168-170. Latej, Glessner received DNA samples
    I
    !
    from Richard Young and Petitioner to compare with questi011ed samples. TT 2, p. 177-179.
    The record is devoid of evidence of any other potential suspe ts whose DNA should have been
    obtained to establish standard references, or controls, for analy is of the other items.
    I
    Petitioner's DNA. the victim's DNA and an unidentified .individual's DNA was in a
    DNA mixture on a breast swabbing of the victim. T.T. 2, pp. 181-182; 185. Petitioner's DNA,
    the victim's DNA and an unidentified individual's DNA was in a DNA mixture on a swabbing of ·
    the victim's naval area. T.T. 2, pp. 182-185. Petitioner's DNA was the only DNA found on the
    knot binding the victim's ankles. TT. 2, pp. 185-186.
    Thereafter, five additional samples from the victim's bed and bedding were submitted for
    DNA analysis. T.T 2, pp. 187-188.        The DNA of the victim and one or more unknown third
    persons was found in a DNA mixture on the mattress top. T. T. 2, pp. 188. The victim's DNA
    i
    and the DNA of an unidentified individual were found on the vic{im's comforter. T.T 2, pp.
    '
    189-190. The victim's DNA and Richard Green's DNA was found on the victim's pillowcase.
    I
    TT. 2, pp. 190-191. The victim's DNA and Richard Green's DNA were found on two stains on
    the victim's fleece blanket. T. T. 2, pp. 191-192. The victim's DNA, Petitioner's DNA, and two
    other unknown contributors' DNA were found on another stain on the fleece blanket. T. T. 2, p.
    isa
    193. The jury concluded that the DNA evidence of known third persons and unidentified third
    persons at the scene was insufficient to create reasonable doubt of the Petitioner's guilt.
    The record establishes the Trial Court approved all requests by Petitioner for expert
    funding concerning DNA evidence.
    On January 17, 2013, trial counsel filed an Application for Funds for Forensic/DNA
    Expert, SciLaw Forensics, Ltd, requesting $1,500.00. Application for Funds for Forensic/DNA
    Expert filed January 17, 2013,       14.   On January 17, 2013, the Court approved the request.
    On January 25, 2013, trial counsel filed an Application for Funds for a Forensic
    Pathologist, Karl Williams, M.D., M.P.H, chief medical examiner, Allegheny County.                             On
    February 13, 2013, the Court approved the request for $3,500.00.
    On March 18, 2013, Petitioner's trial counsel filed a Motion for Payment of Forensic
    Expert and Request for Additional Funding, concerning services of SciLawForensics, Ltd. On
    April 22, 2013, the Court granted the request for $700.00.
    On June 12, 2013, trial counsel requested additional funding in the sum of $3,000.00 for
    Scil.awf'orensics, Ltd. On JW1e 12, 2013, the Court granted the request.
    There were no motions concerning DNA analysis filed by Petitioner which were refused
    by the Court. 3
    LEGAL STANDARDS AND CONCLUSIONS
    In any motion for postconviction DNA testing pursuant to 42 Pa.C.S.A. §9543.1, the
    Petitioner shall present a prima facie case demonstrating that the DNA testing of the specific
    evidence, assuming exculpatory results, would establish the Petitioner's actual innocence of the
    3
    Petitioner's claims concerning the adequacy of defense funding are addressed in the Notice oflntent to Dismiss the
    Petitioner's PCRA Motion. The Notice of Intent to Dismiss was filed February 22, 2017.
    6
    16a
    offenses for which the Petitioner was convicted. 42 Pa.CS.A. §9543.l(c)(J)(ii)(A). The Court
    shall order postconviction DNA testing "upon a determination, after review of the record of the
    [Petitioner's] trial", that, inter alia, the requirements of 42 Pa.C.S.A. §9543.l(c) have been met.
    42 Pa. CS.A. §9543.1 (d). The court shall not order postconviction DNA testing,
    if, after review of the record of the [Petitioner's] trial, the court determines that
    there is no reasonable possibility that the testing would produce exculpatory
    evidence that:
    (i)     would establish the [Petitioner's] actual innocence of the offense for
    which the [Petitioner] was convicted;
    42 Pa. CS.A. §9543.1 (d)(2)(i).
    Petitioner's unsupported claims that further DNA testing would prove his innocence must
    fail. First, as discussed above, a plethora of DNA evidence established Petitioner's culpability.
    Second, in addition to DNA evidence, numerous additional items of evidence concerning the
    Petitioner supported the convictions. Third, the DNA evidence of third persons other than the
    Petitioner and the victim was found at the scene of the crime, and this evidence was submitted to
    the jury. Even though the jury was presented with evidence third persons were present in the
    victim's apartment, the jury found the evidence implicating the Petitioner was sufficient to
    convict. The Superior Court agreed.
    Moreover, Petitioner's bald assertion that DNA testing of untested items would establish
    Petitioner's actual innocence of the offenses is premised upon speculation, and thus, must fail.
    Petitioner's unsupported claim that DNA testing of additional items will prove his innocence is
    based upon the premise that DNA testing of additional items would reveal the absence of
    Petitioner's DNA from the items. This premise is entirely speculative. Further, in the face of
    such speculation, the absence of Petitioner's DNA could not be meaningful and could not
    7
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    establish his actual innocence. See Commonwealth v. Smith, 
    889 A.2d 582
    , 586 (Pa. Super.
    2005). Merely detecting DNA from another individual on the items not tested for DNA, in the
    absence of evidence as to how and when the DNA was deposited, would not exculpate Petitioner
    by pointing to a different assailant. See Commonwealth v. 
    Smith, 889 A.2d at 586
    .
    The statute authorizing postconviction DNA testing does not contemplate this type of
    speculative argument; "rather it requires a prima facie case that   the. DNA results, if exculpatory,
    would establish [Petitioner's] actual innocence."    Commonwealth v. 
    Smith, 889 A.2d at 586
    .
    ( emphasis added).
    As set forth herein, after review of the record, and based upon the evidence adduced at
    trial, there is no reasonable probability that additional DNA testing would produce exculpatory
    evidence that would establish Petitioner's actual innocence of the offences for which he was
    convicted. Petitioner has not met his burden of proof.
    CONCLUSION
    For the above reasons, the Motion for the Performance of Forensic DNA Testing on
    Crime Scene Evidence shall be denied.
    BY THE COURT:
    cc:   Michael E. Bums, Esq., Assistant District Attorney
    Chris Rand Eyster, Esq., 304 Ross Street, Suite 400, Pittsburgh, PA 15219
    James Duncan, ID No. LE-5688, SCI Forest, P.O. Box ;945, 286 Woodland Drive,
    Marienville, PA 16239 LEGAL MAIL
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