Com. v. Slowe, T. ( 2023 )

J-S25040-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYRONE SLOWE :
:
Appellant : No. 116 EDA 2023
Appeal from the Order Entered November 3, 2022
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0002955-2008
BEFORE: NICHOLS, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED OCTOBER 25, 2023
Tyrone Slowe (Appellant) appeals pro se from the order entered in the
Delaware County Court of Common Pleas denying his request for
postconviction DNA testing pursuant to Section 9543.1 of the Post Conviction
Relief Act (PCRA).1 See 42 Pa.C.S. § 9543.1. On appeal, Appellant argues
the PCRA court erred or abused its discretion when it denied his request for
DNA testing due to the court’s determination that: (1) Appellant failed to
establish a prima facie case of actual innocence; (2) the PCRA court had
previously denied a request for DNA testing, which was affirmed on appeal;
(3) Appellant failed to demonstrate that the identity or participation of the
perpetrator was at issue in his case; and (4) Appellant was ineligible for relief
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1 42 Pa.C.S. §§ 9541-9546.
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based on new technology and more accurate testing. For the reasons below,
we affirm.
On February 18, 2009, Appellant entered a plea of nolo contendre to
two counts of third-degree murder2 for the shooting deaths of Tyrone Nelson
and Jimmy Armstrong in Upper Darby, Pennsylvania, on the evening of April
16, 2008. The facts supporting Appellant’s plea were summarized in a prior
decision of this Court as follows:
The affidavit of probable cause attached to the criminal complaint
alleged as follows: numerous witnesses observed three black
males fleeing the crime scene on foot and heard 4-5 gun shots
before the males fled.
Eulicious Johnson, [Appellant’s] mother’s boyfriend,
reported seeing [Appellant] with Marquis Johnson and an
unidentified man on the night of the shooting and also saw
[Appellant] carrying a semi-automatic handgun within the past
month. Johnson stated that [Appellant] had recently been
arrested in Pottstown for narcotics violations and was committing
robberies to pay for an attorney. Upper Darby police confirmed
that Pottstown police had in fact arrested [Appellant] for drug-
related offenses.
On May 3, 2008, [Appellant] admitted to his mother that he
“killed them [2other***ers].” On May 4, 2008, while in custody
for unrelated charges, [Appellant] identified Maurice Smith as the
unidentified male to which Eulicious Johnson referred. The police
interviewed Smith, who admitted that he was driving around
Philadelphia with [Appellant] for six hours on the evening of April
16th.
On May 6, 2008, [Appellant] claimed in a custodial
statement that he remained in the car while Smith and two
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2 See 18 Pa.C.S. § 2502(c).
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unidentified men left the car and engaged in a gunfight. Smith
and the other men returned to the car and drove downtown.
Two days later, [Appellant] claimed in another custodial
statement that he walked with Smith and Marquis Johnson down
the street until Smith told him to wait at an intersection.[3] Smith
and Johnson continued to walk down the street, and [Appellant]
heard Smith yell “yo, what’s up” followed by four gun shots.
[Appellant] then fled from the scene with Smith and Johnson.
Commonwealth v. Slowe, 1451 EDA 2009 (unpub. memo. at 1-2) (Pa.
Super. Mar. 3, 2010) (paragraph breaks added), appeal denied, 240 MAL 2010
(Pa. Sep. 16, 2010). Additionally, a witness informed police that, near the
scene of the murder, he observed a black male throw an object into the sewer
and other objects onto a lawn. See Investigative Interview Record, Manbir
Singh, 4/17/08, at 1; Upper Darby Police Incident Report, 5/10/08, at 6. The
police recovered the murder weapon, a silver revolver, from the sewer, and a
silver roll of duct tape, with one hair on it, and two receipts from a nearby
lawn. See Upper Darby Police Incident Report, 5/10/08, at 6; Upper Darby
Township Police Evidence Log, 4/17/08.
Appellant was subsequently charged with numerous offenses including
two counts of first-degree murder. Appellant filed an omnibus pretrial motion
seeking suppression of the statements he provided to police. The trial court
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3 In his statement, Appellant elaborated that the two men came to his house
and Smith told him to “come down the street with him and [Johnson] because
he ha[d] a quick come up.” Appellant’s Police Statement, 5/8/08, at 1.
Appellant further explained that when Smith said they had a “quick come up,”
he “thought [Smith] was going to get money.” Id. at 2.
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conducted a suppression hearing on October 15, 2008, and later denied the
motion on January 22, 2009.
On February 18, 2009, Appellant appeared for a plea hearing. The
negotiated plea agreement called for Appellant to plead nolo contendre to two
counts of third-degree murder at the present docket, in exchange for which
he would receive two concurrent sentences of 15 to 30 years’ imprisonment,
and the Commonwealth would nolle pros the remaining charges. The
agreement also included a guilty plea to an unrelated firearms charge at
another docket, for which Appellant would receive a consecutive sentence of
two to four years’ imprisonment. N.T., 2/18/0 (A),4 at 4. As the factual basis
for the nolo contendre pleas, the Commonwealth relied upon the affidavit of
probable cause, the autopsy reports, and Appellant’s May 6th and May 8th
statements to police. Id. at 4-5.
Appellant asked the trial court if he could plead guilty to only the
firearms charge. N.T., 2/18/09(A), at 7. The court explained he could not do
so because the plea offer was a “package [for] both cases.” Id. Appellant
then stated he wanted “to plead not guilty.” Id. When the court explained
that his jury trial would commence the next week, Appellant requested a new
attorney because he did not “feel as though [Plea Counsel was] representing
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4 There are two transcripts for the February 18, 2009, plea hearing because
the trial court recessed to allow Appellant time to speak with his attorney. We
will differentiate between the transcripts by denoting the earlier transcript as
(A), and the latter as (B).
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[him] to the best of [her] abilities.” Id. at 7-8. The trial court asked for
specific examples, Appellant stated that he had been trying “to get . . . DNA
tests . . . for the one weapon . . . involved in this case . . . regardless of
whether it was used[,]” which he believed would prove his police statements
were “false.” Id. at 9. He also complained that while he received funding for
a private investigator, the investigator “just started investigating [the] case
about a week ago.” Id.
Plea Counsel informed the court that the recovered weapon was tested
“and it came back that it was not [Appellant’s] DNA.” N.T., 2/18/09(A), at
11 (emphasis added). She acknowledged, however, that Appellant wanted
her to test the DNA of other people, but she did not have the authority to do
so. See id. at 11-12. Appellant again claimed he was “forced” to make
statements to police which were “not true.” Id. at 12. He believed if the DNA
of the “other two people” mentioned in his statement ─ Smith and Johnson ─
was tested and also found not to be on the weapon, that would corroborate
his claim that his police statements were coerced. See id. The court
reiterated, however, that Plea Counsel had no authority to compel the DNA
testing of other suspects. Id. at 13-14. Appellant also averred that Plea
Counsel did not follow-up with witnesses he identified. See id. at 15.
However, Plea Counsel responded that when she contacted the potential
witnesses, they either did not respond or the phone number Appellant
provided was no longer in service. See id. at 15-17. The Commonwealth
repeated the terms of the plea and emphasized that if Appellant was convicted
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of either first- or second-degree murder, he would be subject a mandatory
term of life imprisonment. Id. at 28. Plea Counsel asked for additional time
to talk with Appellant, which the trial court granted. See id. at 29-30.
When court reconvened, the parties informed the trial court that
Appellant had the opportunity to speak with his mother who recommended he
accept the plea offer. See N.T., 2/18/09(B), at 3-4. Appellant then indicated
to the court that he intended to accept the plea agreement. See id. at 5.
Plea Counsel conducted a plea colloquy before the court accepted the plea as
knowing, voluntary and intelligent. See id. at 4-21. Both prior to and after
the imposition of the negotiated sentence, Appellant again asserted his
innocence. See id. at 22, 29.
Appellant filed a timely motion to withdraw his plea, which the trial court
denied, followed by a timely direct appeal. New counsel was appointed, and
on March 3, 2010, a panel of this Court affirmed the judgment of sentence,
and the Pennsylvania Supreme Court subsequently denied allocatur review.5
See Slowe, 1451 EDA 2009, appeal denied, 240 MAL 2010.
On December 22, 2010, Appellant filed a timely, pro se PCRA petition,
asserting Plea Counsel’s ineffectiveness. PCRA counsel was appointed, but
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5 On direct appeal, Appellant challenged the voluntariness of his nolo
contendre plea, asserting that he maintained his innocence at the plea
hearing. See Slowe, 1451 EDA 2009 (unpub. memo. at 4). In rejecting his
claim, this Court noted: “[F]aced with the possibility of a life sentence, even
if Appellant believed he was innocent, it was his decision to enter nolo
contendre pleas in order to receive a lesser sentence.” Id. at 9.
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later filed a petition to withdraw and Turner/Finley6 “no merit” letter. The
PCRA court subsequently granted counsel’s petition to withdraw and denied
Appellant’s petition without conducting a hearing. See Order, 5/18/11. On
appeal, this Court affirmed the denial of PCRA relief, and the Supreme Court
later denied allocatur review. See Commonwealth v. Slowe, 1529 EDA
2011 (Pa. Super. Jun. 24, 2014) (unpub. memo.), appeal denied, 506 MAL
2014 (Pa. Nov. 18, 2014).
On July 18, 2014, while Appellant’s petition for allowance of appeal was
still pending in the Supreme Court, Appellant filed a second pro se PCRA
petition, which the PCRA court held in abeyance. Thereafter, on May 26, 2015,
Appellant filed a motion for DNA testing pursuant to Section 9543.1. He
sought testing of the following pieces of evidence: a cigarette butt, a bullet
recovered from the interior wall of a residence on Hampden Road, the .357
revolver, five revolver rounds, two receipts, and one roll of duct tape. See
Appellant’s Motion for DNA Testing, 5/26/15, at 1. Appellant acknowledged
that his DNA did not match samples already tested from the revolver or
cigarette butt. See id. at 3. However, he asked the court for DNA testing of
the other items, as well as comparison of all the samples to the DNA of his
purported co-conspirators. See id. at 5. He explained that both Johnson and
Smith “currently have, or should have, DNA samples available in the State
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6 See Commonwealth v. Turner, 544 A.2d 927 (Pa. Super. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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[database] that could easily be compared” to the evidence. Id. Appellant
also “hope[d] that by running the sample through the [criminal databases,]
the real killers” could be found. Id. at 7 (some capitalization omitted).
Appellant subsequently filed an amended PCRA petition on December 27,
2016.
The PCRA court considered and denied all three petitions by order
entered November 30, 2018.7 The court found that Appellant’s second PCRA
petition was untimely, and that Appellant failed to meet the threshold
requirements for DNA testing pursuant to Section 9543.1. See Order,
11/30/18, at 2-5, 12. On appeal, a panel of this Court affirmed. See
Commonwealth v. Slowe, 3 EDA 2019 (unpub. memo. at 1) (Pa. Super.
Aug. 19, 2019). Specifically, with regard to Appellant’s request for DNA
testimony, the panel concluded:
The DNA testing that Appellant requests in the instant motion was
available to Appellant when he entered his plea agreement on
February 18, 2009 and the court did not refuse funds for testing.
See 42 Pa.C.S.A. § 9543.1(a)(2). As such, the PCRA court
properly concluded that Appellant had not met the threshold
requirements for DNA testing under Section 9543.1(a)(2).
Moreover, Appellant does not provide argument or analysis
to challenge the PCRA court’s finding that he failed to plead a
prima facie case that exculpatory evidence would establish his
actual innocence as required by Section 9543.1(c)(3). Even if we
assume that Appellant’s DNA was absent from pieces of evidence
obtained from the crime scene, Appellant has made no attempt to
show how DNA testing would establish his actual innocence. In
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7 The court also disposed of a pro se motion for discovery. See Order,
11/30/18, at 1 n.1.
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addition to the fact that a witness came forward to testify that
Appellant admitted to the murders, Appellant confessed to his
investigator in a recorded phone call from prison that he was
present at the scene of the murders; Appellant was repeatedly
cautioned that this conversation was being recorded. As a result,
we conclude that the PCRA court did not err in denying Appellant’s
request for post-conviction DNA testing under Section 9543.1.
Id. at 10-11 (some citations omitted).
On February 17, 2021, Appellant filed the present petition for post-
conviction DNA testing. He sought testing of the same items listed in his prior
petition, in addition to a human hair recovered from the duct tape, which he
claimed was “never tested due to the lack of a root.” See Appellant’s Petition
for DNA Testing Pursuant to 42 Pa.C.S.A. § 9543.1 et seq., 2/17/21, at 4-5
(unpaginated). In support of his request, Appellant discussed the
inconsistencies between his police statement and the statements of the
eyewitnesses, contradictions in Eulicious Johnson’s statement, a purported
suggestive photo identification, alleged police misconduct, and the fact that
the purported co-conspirators, Smith and Johnson, were determined to have
legitimate alibis. See id. at 6-17. Appellant also emphasized that the reason
for the denial of his prior motion for DNA testing ─ that he entered a plea and
confessed to the crime ─ “is no longer applicable” pursuant to a December
2018 amendment to the PCRA. See id. at 18. Lastly, Appellant maintained
there have been “several technological advances” in DNA testing since his
2009 conviction ─ including genealogy testing, “Snapshot DNA Phenotyping,”
and “Mitochondrial testing” ─ and several items of evidence were never tested,
nor compared to the DNA of Smith and Johnson. See id. at 20-23.
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Although the PCRA court initially appointed counsel to assist Appellant
in litigating his motion, Appellant requested to proceed pro se, which the court
granted following a Grazier8 hearing.9 See Order, 3/17/22. On October 7,
2022, after considering Appellant’s petition and the Commonwealth’s
response, the PCRA court issued Pa.R.Crim.P. 907 notice of its intent to
dismiss the petition without conducting an evidentiary hearing. Appellant did
not file a response, and on November 3, 2022, the PCRA court entered an
order denying Appellant’s request for post-conviction DNA testing. See Order,
11/3/22. This timely pro se appeal follows.10
Appellant presents four issues for our review:
1. Did the [PCRA] court commit an abuse of dis[cretion] when it
determined that [A]ppellant was unable to establish a prima
facie case asserting actual innocence for DNA testing due to his
confession?
2. Did the [PCRA] court commit an abuse of discretion when it
relied upon [its] previous opinion (and Superior Court
affirming) when it denied relief [on Appellant’s] first motion for
DNA testing as a basis to deny relief for the . . . second motion
for DNA testing?
3. Did the [PCRA] court err when it determined that [Appellant]
failed to meet the minimum threshold requirements of
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8 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
9 We note, however, that a “petition[ ] for post-conviction DNA testing . . .
does not carry with it the right to counsel.” Commonwealth v. Perry, 959
A.2d 932, 938 (Pa. Super. 2008).
10 The PCRA court did not direct Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. Nevertheless, the court filed an
opinion in support of its order on January 17, 2023.
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presenting a prima facie case demonstrating that the identity
or participation of the perpetrator was at issue during the
proceedings?
4. Did the [PCRA] court err when it determined that [Appellant]
was ineligible for relief pursuant to [Section] 9543.1(a)(2)
concerning new technology and more accurate testimony and
prior testing requested by indigent defendants?
Appellant’s Brief at 4 (some capitalization omitted).
When considering an order denying post-conviction DNA testing,
[o]ur 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. Additionally, where the
resolution of this appeal involves statutory construction, which
involves a pure question of law, we review that aspect of the trial
court's decision de novo and our scope of review is plenary.
Moreover, the DNA testing statute, which was passed unanimously
by the Pennsylvania General Assembly, should be regarded as a
remedial statute and interpreted liberally in favor of the class of
citizens who were intended to directly benefit therefrom, namely,
those wrongly convicted of a crime.
In re Payne, 129 A.3d 546, 554 (Pa. Super. 2015) (en banc) (citations &
quotation marks omitted). Furthermore, we note that while a motion for post-
conviction DNA testing is considered under the rubric of the PCRA, it is “clearly
separate and distinct from claims pursuant to other sections of the PCRA[,]”
and not subject to the Section 9545 one-year time bar. Perry, 959 A.2d at
938 (citations & quotation marks omitted). See 42 Pa.C.S. § 9454(b).
Rather, “DNA testing may be sought at any time if the motion is made in a
timely manner and for the purpose of demonstrating the applicant’s actual
innocence and not to delay the execution of sentence or administration of
justice.” 42 Pa.C.S. § 9543.1(a)(4).
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The postconviction DNA testing statute provides, in pertinent part:
(a) Motion.--
(1) An individual convicted of a criminal offense in a court
of this Commonwealth may apply by making a written
motion to the sentencing court at any time for the
performance of forensic DNA testing on specific evidence
that is related to the investigation or prosecution that
resulted in the judgment of conviction.
(2) The evidence may have been discovered either prior to
or after the applicant’s conviction. The evidence shall be
available for testing as of the date of the motion. If the
evidence was discovered prior to the applicant’s
conviction, the evidence shall not have been subject
to the DNA testing requested because the technology
for testing was not in existence at the time of the trial
or the applicant’s counsel did not seek testing at the
time of the trial in a case where a verdict was
rendered on or before January 1, 1995, or the
evidence was subject to the testing, but newer
technology could provide substantially more accurate
and substantially probative results, or the applicant’s
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.
* * *
(5) Notwithstanding any other provision of law, a plea of
guilty to a crime of violence, as defined in section
9714(g) (relating to sentences for second and
subsequent offenses), or a confession given by an
applicant concerning the offense for which the applicant was
convicted, shall not prohibit the applicant from
asserting actual innocence under subsection (c)(2) or
the court from making a determination and ordering DNA
testing under subsection (d)(2).
* * *
(c) Requirements.--In any motion under subsection (a), under
penalty of perjury, the applicant shall:
* * *
(3) present a prima facie case demonstrating that the:
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(i) identity of or the participation in the crime by
the perpetrator was at issue in the proceedings
that resulted in the applicant’s conviction and
sentencing; and
(ii) DNA testing of the specific evidence, assuming
exculpatory results, would establish:
(A) the applicant's actual innocence of the
offense for which the applicant was
convicted[.]
* * *
(d) Order.--
* * *
(2) The court shall not order the testing requested in a
motion under subsection (a) if, after review of the record of
the applicant’s trial, the court determines that there is no
reasonable possibility for an applicant under State
supervision, or there is no reasonable probability for an
applicant not under State supervision, or after review of the
record of the applicant’s guilty plea, the court determines
that there is no reasonable probability, that the
testing would produce exculpatory evidence that:
(i) would establish the applicant’s actual
innocence of the offense for which the applicant
was convicted[.]
42 Pa.C.S. § 9543.1(a)(1)-(2), (5), (c)(3)(i)-(ii)(A), (d)(2)(i) (emphases
added). In determining whether the new evidence would establish the
defendant’s “actual innocence,” this Court has explained that “the newly
discovered evidence must make it more likely than not that no reasonable
juror would have found him guilty beyond a reasonable doubt.”
Commonwealth v. Conway, 14 A.3d 101, 109 (Pa. Super. 2011) (citation &
quotation marks omitted).
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We note that the present statute includes language that was added in a
December 2018 amendment, which was not in effect at that time Appellant
filed his prior motion for postconviction DNA testing. This includes: (1) in
subsection (a)(2), permitting an applicant to show that while the evidence
may have been previously subject to testing, new technology could provide
substantially more accurate results; (2) in subsection (a)(5), permitting an
applicant who had confessed or pled guilty the opportunity to assert their
innocence and obtain DNA testing; and (3) in subsection (d)(2), permitting
the court to review the record of the applicant’s guilty plea and conclude there
is no reasonable probability that exculpatory results would establish the
applicant’s innocence. See 2018, Oct. 24, P.L. 896, No. 147, effective in 60
days [Dec. 24, 2018].
As Appellant’s four issues are all related to the PCRA court’s denial of
his motion for postconviction DNA testing, we address them together. First,
Appellant insists the PCRA court erred when it determined he could not
establish his actual innocence because he confessed to the crime and the
validity of his confession was fully litigated. See Appellant’s Brief at 11. He
emphasizes that the addition of subsection (a)(5), in the 2018 amendment,
renders the prior case law to the contrary obsolete. Id. Second, Appellant
contends the PCRA court abused its discretion when it relied on its prior
opinion, and this Court’s affirmance, as a basis to deny the present motion for
DNA testing. See id. at 14. He maintains the PCRA court’s prior decision
denying postconviction DNA testing “was based solely on the fact that
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[A]ppellant pled guilty and had a signed confession[,]” factors which are now
irrelevant following the 2018 amendment to the statute. See id. at 15.
Third, Appellant argues the PCRA court erred when it found he failed to
demonstrate that his identity or participation in the crime was at issue during
the criminal proceedings. See Appellant’s Brief at 16. He emphasizes that
the statement he purportedly provided to police contained details regarding
the clothing he wore the night of the murder and the direction he fled, which
contradicted statements provided by eyewitnesses. See id. at 16-17.
Appellant also points out inconsistencies in Eulicious Johnson’s statement and
preliminary hearing testimony, and highlights the fact that he repeatedly
asserted his innocence, despite his nolo contendre plea. Id. at 17-18.
Moreover, Appellant insists that he explained how DNA testing would
establish his innocence. Appellant’s Brief at 18. He states:
[A]ppellant has specifically requested testing pursuant to the
Databank, Redundancy, and Confession Theories which postulate
that a search of state and federal databanks will lead to the
absence of DNA from [A]ppellant and his alleged accomplices and
to the discovery of a separate assailant that will be linked to the
crime by multiple pieces of evidence and when confronted with
the evidence, the perpetrator will confess.
Id. at 18-19. Appellant maintains that courts of this Commonwealth have
found these theories sufficient to prove a prima facie case. Id. at 19, citing
Payne, supra, and Conway, supra.Lastly, Appellant contends the PCRA court failed to consider his claim
that new technology could provide more accurate results. See Appellant’s
Brief at 19. He notes that he “cited numerous methods that are newer and
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more accurate testing methods that could establish a match to the previously
unidentified DNA[.]” Id. at 20. Appellant also states that “he can make a
strong argument that . . . he was denied testing by the [PCRA c]ourt on a
prior occasion despite his indigency” because he “orally motioned” for further
DNA testing during his plea hearing. See id. at 21, citing N.T., 2/18/09(A),
at 9.
The PCRA court denied Appellant’s petition for DNA testing for several
reasons: (1) Appellant’s confession barred his claim of “actual innocence[;]”
(2) Appellant’s identity was not at issue in this matter; (3) the “law of the
case doctrine” precludes relitigation of this issue which was considered and
rejected in a prior motion, and affirmed on appeal; (4) DNA testing was
available when Appellant entered his plea and the trial court did not refuse
funds for testing; and (5) based upon Appellant’s inculpatory statements to
police and others, there was “no reasonable probability that DNA testing would
produce exculpatory evidence to show [his] actual innocence.” See Notice of
Intent to Dismiss Motion for Post Conviction DNA Testimony Without Hearing,
10/7/22, at 6-7; PCRA Ct. Op., 1/17/23, at 7-8, 10, 11-12.
Preliminarily, to the extent the PCRA court determined Appellant could
not establish a prima facie case of his actual innocence because he confessed
to the crime, we agree with Appellant that the court erred. As Appellant aptly
points out, Subsection (a)(5), included in the 2018 amendments to the
statute, explicitly states that neither a guilty plea, nor a confession, prohibits
an applicant “from asserting actual innocence[.]” See 42 Pa.C.S. §
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9543.1(a)(5). However, even prior to the enactment of the amendment, in
2011, the Supreme Court held “a confession, in and of itself, is not a per se
bar under Section 9543.1(c)(3) to a convicted individual establishing a prima
facie case that DNA testing would establish actual innocence of the crime for
which he or she was convicted, even if the voluntariness of that confession
has been fully and finally litigated.” Commonwealth v. Wright, 14 A.3d
798, 817 (Pa. 2011). The Court explained that “the question of the
voluntariness of a defendant’s confession and the question of the defendant’s
actual guilt and innocence are fundamentally different issues[.]” Id. Thus,
the PCRA court’s reliance on Appellant’s confession as the sole basis to deny
relief was in error.
Nevertheless, it is well-settled that “[w]e 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. Rowe, 293 A.3d 733, 739 (Pa. Super. 2023)
(citation omitted). Upon our review, we conclude that Appellant is unable to
demonstrate his eligibility for DNA testing under Section 9543.1.
First, Appellant cannot satisfy the prerequisites of Subsection (a)(2).
Here, the evidence was discovered prior to Appellant’s conviction, which
occurred after January 1, 1995; thus, DNA testing was available. See 42
Pa.C.S. § 9543.1(a)(2). In fact, DNA from the recovered handgun was
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submitted for testing and ─ significantly ─ Appellant’s DNA was not a match.11
See N.T., 2/18/09(A), at 11. Moreover, Appellant cannot establish that his
“counsel sought funds from the court to pay for testing because [he] was
indigent and the court refused the request[.]” See 42 Pa.C.S. § 9543(a)(2)
(emphasis added). Appellant’s own oral request for testing of the handgun
during the plea hearing does not satisfy these requirements, particularly since
the handgun had already been tested. See N.T., 2/18/09(A), at 9 (Appellant
stating, “I’ve been trying to get [Plea Counsel] to push to get these DNA tests
. . . for the one weapon that is involved in this case . . . regardless of whether
it was used[.] I’ve been trying to push to get those DNA tests to prove that
these statements against me are false.”).
However, Appellant maintains that he sufficiently demonstrated his
eligibility for relief pursuant to the language added in the 2018 amendment ─
namely, an applicant may seek DNA testing if “the evidence was subject to
testing, but newer technology could provide substantially more accurate and
substantially probative results[.]” See 42 Pa.C.S. § 9543.1(a)(2); Appellant’s
Brief at 14, 19-21. He insists that databank testing, genealogy testing and
DNA phenotyping are all “newer technology” which might identify the “real
killers.” See Appellant’s Brief at 20-21. Appellant misinterprets the
requirements of the statute.
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11 We note, too, that a DNA report in the record states the cigarette butt was
submitted for testing and revealed an “unidentified DNA profile, consistent
with a female[.]” Pennsylvania State Police DNA Lab Report, 8/14/08, at 3.
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In order to obtain testing, Appellant must establish that “newer
technology could provide substantially more accurate and substantially
probative results[.]” See 42 Pa.C.S. § 9543.1(a)(2) (emphases added). The
test that was conducted on the handgun prior to trial revealed a DNA profile,
just not Appellant’s profile. While Appellant requests additional DNA testing,
in actuality, he simply wants the lab to conduct further investigation and
comparisons to determine who the identified DNA matches. That is not the
purpose of the amendment. There is no indication that the identified DNA
profile is not accurate enough to match a suspect. Thus, Appellant cannot
satisfy the preliminary requirements of Section 9543.1(a)(2).
Second, even if Appellant were able to meet the statutory requirements
of Subsection (a)(2), we would still conclude he failed to present a prima facie
case demonstrating that “DNA testing of the specific evidence, assuming
exculpatory results, would establish [his] actual innocence of the offense for
which [he] was convicted[.]” See 42 Pa.C.S. § 9543.1(c)(3)(ii)(A). We arrive
at this conclusion for two reasons: (1) this Court has already rejected this
same argument in a prior appeal; and (2) the complete lack of Appellant’s
DNA on all tested items, and the identification of another suspect, would not
undermine his conviction.
As noted supra, Appellant filed a motion for postconviction DNA testing
in May of 2015. He sought testing of the same evidence as in the present
motion and requested that the samples be “run[ ] through the criminal
data[bases]” to determine the “real killers[.]” Appellant’s Motion for DNA
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Testing, 5/26/15, at 7 (some capitalization omitted). He specifically referred
to the redundancy, databank and confession theories described in Conway,
supra. The PCRA court determined Appellant could not meet the threshold
requirements under the Act, and this Court affirmed on appeal.
The “law of the case” doctrine provides that “when an appellate court
has considered and decided a question submitted to it upon appeal, it will not,
upon a subsequent appeal on another phase of the case, reverse its previous
ruling even though convinced it was erroneous.” Commonwealth v.
Gacobano, 65 A.3d 416, 420 (Pa. Super. 2013) (citation omitted). However,
this Court has acknowledged that “the law of the case doctrine might not apply
under exceptional circumstances, including: an intervening change in the law,
a substantial change in the facts, or if the prior ruling was clearly erroneous
and would create a manifest injustice if followed.” Commonwealth v.
McCandless, 880 A.2d 1262, 1268 (Pa. Super. 2005) (en banc) (citation &
quotation marks omitted).
Here, Appellant insists that the 2018 amendment to the statute
constitutes an intervening change in the law, such that the prior denial of DNA
testing is not controlling. See Appellant’s Brief at 14-16. Specifically, he
argues the PCRA court’s prior ruling “was based solely on the fact that [he]
pled guilty and had a signed confession.” Id. at 15, citing PCRA Ct. Op.,
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3/8/19.12 Regardless of the PCRA court’s ruling, however, this Court did not
rely solely on Appellant’s confession and nolo contendre plea when it affirmed
the PCRA court’s decision on appeal. See Slowe, 3 EDA 2019 (unpub. memo.
at 10-11). Instead, the Slowe panel concluded that Appellant did not meet
the threshold requirements under Subsection (a)(2) and, in any event,
assuming exculpatory results, Appellant could not establish his actual
innocence because, in addition to his statements to police, he admitted to
other witnesses that he participated in the murders and confessed to a private
investigator during a prison phone call that he was present at the scene.13
See id. Although the panel did not apply the 2018 amendments to the
statute, we reiterate that since 2011, the law has been clear that “a
confession, in and of itself, is not a per se bar” to DNA testing under Section
____________________________________________
12 We note that the PCRA court’s March 8, 2019, opinion is not included in the
certified record on appeal.
13 This “confession” is included in a detailed summary of the work performed
by Appellant’s private investigator, Don Fredericks, which was attached to the
trial court’s order approving the payment of funds. See Order, 3/4/09,
attachment Don Fredericks Investigations Services Rendered, 2/17/09.
Fredericks summarized that on February 15, 2008, he participated in a three-
way call with Appellant, who was in prison, and Appellant’s mother. See Don
Fredericks Investigations Services Rendered at 3-4. Fredericks stated that
Appellant “complain[ed] that he was being convicted or made to plead guilty
to something where he was a lookout” and stated “the gun that was thrown
into the sewer did not have his prints or DNA[,]” but if Johnson or Smith were
tested, it “would show that they, either one, held the weapon.” Id. at 4-5.
Fredericks noted that “on several occasions a recording would come on
advising all parties to this call that it was being recorded.” Id. at 4.
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9543.1(c)(3). See Wright, 14 A.3d at 817. Therefore, we conclude
Appellant’s present claim is barred by the law of the case.
Lastly, even if Appellant could meet the preliminary prerequisites for
testing, and we determine the law of the case doctrine does not apply, we
would still conclude Appellant is entitled to no relief. Appellant’s primary
argument is as follows: (1) despite his plea, he has consistently maintained
his innocence; (2) no physical evidence links him to the murders; (3) his
“confession” was coerced and is inconsistent with the statements of
uninterested eyewitnesses; and (4) a search of DNA databases will lead to the
real culprits, who will then confess to the crime and exonerate him. While
Appellant recognizes that “the absence of evidence is not evidence,” he insists
that the databank, redundancy, and confession theories upon which he relies
were sufficient to demonstrate a prima facie case of actual innocence in
Conway and Payne, and, thus, should be sufficient in the present case. See
Appellant’s Brief at 19.
Appellant’s reliance on Conway and Payne is misplaced. First, both
defendants were convicted in the late 1980’s, and none of the relevant
evidence was subject to DNA testing at that time. See Conway, 14 A.3d at
102, 106-07; Payne, 129 A.3d at 549, 556-57. Second, neither defendant
provided a statement to police admitting to their involvement, and nor entered
a plea of guilty or nolo contendre; both defendants were convicted following
a jury trial. See Conway, 14 A.3d at 102; Payne, 129 A.3d at 551.
Moreover, in both cases, this Court concluded that the identification of a third
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party’s DNA at the murder scene could have established the defendant’s
innocence.
In Conway, the defendant admitted to finding the murdered victim’s
body, and touching items at the crime scene. See Conway, 14 A.3d at 106.
However, despite the fact that the victim was stabbed, no blood was recovered
from the knife he was carrying on the day of the murder, and “none of the
more than 30 fingerprints lifted from the scene came from the defendant.”
Id. at 107. Because it appeared that the culprit had extensive contact with
the victim’s clothes and skin, the Conway Court concluded that if another
person’s DNA was identified on the victim’s clothing or skin, the defendant
could establish a prima facie case of his innocence. See id. at 112.
In Payne, the victim was discovered murdered in her home, which
appeared to have been ransacked. See Payne, 129 A.3d at 549. The
defendant was identified as a suspect based upon inculpatory statements he
purportedly made to three individuals, all of whom were of questionable
credibility. See id. at 550. They all claimed the defendant told them he
committed the home invasion with two others, although only one set of
footprints was left in the snow surrounding the victim’s home. See id. at 549-
50. The defendant maintained his innocence and testified in his own defense
at trial. Id. at 551. The Payne Court noted that while the defendant allegedly
confessed to the three witnesses that he committed the crime with two
accomplices, there was “no independent physical or circumstantial evidence
of multiple burglars [to] corroborate[ ] their testimony.” Id. at 562.
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Moreover, if the DNA testing revealed the profiles of any of the three
witnesses, “such results would not only be exculpatory, but could serve to
completely undermine the Commonwealth’s case[.]” Id. Thus, the Payne
Court affirmed the PCRA court’s decision to permit DNA testing.
The facts presented in the case sub judice are simply not as compelling
as in Conway or Payne. Appellant never admitted to being the shooter. In
his statement to police, Appellant claimed that he waited at the corner while
Smith and Johnson shot the victims. See Appellant’s Police Statement,
5/8/08, at 1. Moreover, he described himself at the “lookout” on a recorded
phone call with his private investigator. See Don Fredericks Investigations
Services Rendered at 4. Thus, the fact that his DNA was not on the handgun
is simply not exculpatory as he could have been convicted as a co-conspirator
or accomplice. Further, since the other items for which he seeks testing were
discarded by the same person who discarded the handgun, there is no reason
to suspect his DNA would be on those items, and the absence of his DNA would
not establish his innocence.
To the extent Appellant contends that the absence of Smith and
Johnson’s DNA would also serve to establish his innocence, we disagree.
Despite Appellant’s identification of Smith and Johnson as his co-conspirators,
neither was arrested in connection with the murder. Even if a third party’s
DNA was identified on the handgun, that fact would not serve to undermine
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Appellant’s culpability as a “lookout.” Accordingly, Appellant is entitled to no
relief.14
For all the foregoing reasons, we conclude the PCRA court did not err
when it denied Appellant’s motion for postconviction DNA testing.
Order affirmed.
Date: October 25, 2023
____________________________________________
14 Because we conclude Appellant cannot satisfy the statutory prerequisites
for relief, and, in any event, he is unable to demonstrate that DNA testing
would establish his actual innocence, we need not address Appellant’s
assertion that the PCRA court erred when it found his identity or participation
in the crime was not at issue. See Appellant’s Brief at 16-18.
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