Com. v. Parker, R.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ROBERT PARKER, : No. 2975 EDA 2012
:
Appellant :
Appeal from the Judgment of Sentence, September 27, 2012,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0002366-2010
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND SHOGAN, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED DECEMBER 23, 2014
Following a jury trial, Robert Parker was convicted of burglary, sexual
assault, and rape. Herein, he appeals from the judgment of sentence
entered on September 27, 2012, in the Court of Common Pleas of
Philadelphia County. We affirm.
The victim,1 was living on the 2500 block of West Oxford Street in
Philadelphia. The victim suffered from scleroderma and rarely left the
house; her daughters lived with her and were her caretakers. (Notes of
testimony, 9/13/11 at 46-49.) On January 27, 1997, her oldest daughter,
T.U., came home and locked up the house for the night, propping a stick
under the front door’s handle for extra measure. (Id. at 54.) T.U. went to
1
The victim died from cancer on January 31, 2010. (Id. at 46-47.)
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her mother’s third floor bedroom, and they watched television together until
approximately 2:00 a.m. (Id. at 52.) The victim then instructed T.U. to
retire to the second floor for the night, as T.U. was talking on the telephone.
(Id. at 53.) T.U. went to her bedroom and continued to talk on the phone
and watch television.
At approximately 5:00 a.m., T.U. heard her mother’s footsteps on the
stairs and then heard knocking on her locked bedroom door. When T.U.
opened the door, she found her mother shaking and crying. (Id. at 56.)
The victim told her daughter that someone had broken into the house and
raped her.
T.U. went to check the house, and when she got downstairs, she saw
that the stick was missing from the door. A window in the rear first floor
bedroom had been broken and the screen was split. (Id. at 61.) The victim
called the police, and Officer Robert Billips arrived. Officer Billips testified
that he spoke with the victim, who was frantic, nervous, and very emotional.
The victim told the officer that an unknown man had entered her bedroom
and placed his hand over her mouth. Without a condom, he vaginally raped
her, and attempted to anally rape her at gunpoint.
The victim was admitted to the hospital, and the staff took “vaginal,
cervical, vulva, and anal swabs from [the victim] for a rape kit.” (Id. at
189.) No identification was made and no other leads produced results. As
part of a task force to review rape cases where no identification had been
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made, the Philadelphia Police Department DNA laboratory
(“DNA laboratory”) prepared a profile. The rape kit was stored and was
identified by the property receipt numbers.
In 2002, the DNA laboratory performed a DNA analysis of the rectal
swab. Brian Phleegor (“Phleegor”), a scientist in the lab, testified as an
expert witness for the Commonwealth. (Id. at 23.) Phleegor prepared the
DNA laboratory report on the victim’s case, number 97-70139. (Id. at 24.)
Phleegor did not personally analyze the swab, but he did serve as the
technical reviewer of the analyst’s report. (Id. at 25.)2 He testified that two
items were tested -- the victim’s blood and rectal swab. (Id. at 28.)
Phleegor stated that the resulting DNA profile from the rectal swab was
loaded into a local database but it did not lead to a “hit”; that is, a match
with another profile in the database. (Id. at 27, 34.)
The case was reassigned to Detective Linda Pace in the special
investigations squad in 2002. The originally assigned detective had retired,
the file had gone “missing,” and the case had been deemed “cold.” (Id. at
95-98.) In her attempt to re-create the case file, Detective Pace interviewed
the victim on January 24, 2002. She prepared a “John Doe” arrest warrant
2
Chad Summerfield, a forensic scientist, performed the analysis but is no
longer working for the lab. (Id. at 26.)
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indicating the assailant’s DNA profile based on the rectal swab. 3 (Id. at 97-
102.)
Phleegor testified that on March 26, 2007, the DNA laboratory was
notified of a completely different “hit” -- a match between appellant’s DNA
profile on the national Combined DNA Index System (“CODIS”)4 and the
DNA profile from the vaginal swab of the victim. (Id. at 37.) Again,
Phleegor did not testify that he had any involvement with the DNA analysis
of the vaginal swab, which was performed in 2004 in Bodi Scientific
Laboratory (“Bodi”); Bodi is a private lab that the DNA laboratory used for
subcontract work at that time. (Id. at 149.) Before the name was provided,
the Pennsylvania State Police had to re-analyze their sample to confirm that
the DNA report was correct. Philadelphia police protocol also required that
the victim be interviewed again to ensure the identified match could not be
excluded. (Id. at 37-38, 64-68.) Phleegor did not testify to the results of
the re-analysis. (Id. at 64-67.)
3
When the name of the individual is not known, a “John Doe” DNA
warrant/complaint may be filed. The DNA profile of the perpetrator,
provided by the evidence in the investigation, is used as the unique identifier
describing the defendant, instead of his or her name. Such a filing prevents
the running of the statute of limitations in serious violent crimes.
4
The DNA laboratory is an accredited laboratory; and beginning in 2004, it
was enabled to upload its forensic samples into CODIS. (Id. at 149-150.)
This national DNA database contains “many millions” of samples and is an
effective database. (Id. at 150.)
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Upon notification of this match, Detective Pace located the victim, who
now lived in Reading; the victim agreed to meet with Detective Pace.
However, on the appointed date, the victim did not appear, and the
detective subsequently lost contact with her. Detective Pace put the case
aside until October 16, 2008, when she tried to relocate the victim. (Notes
of testimony, 9/12/11 at 18-20; 9/14/11 at 106-109.) It was not until
February 15, 2009, that Detective Pace could locate and arrange to meet
with the victim. (Notes of testimony, 9/14/11 at 106-109.)
The victim was shown an array consisting of eight different
photographs, including a photograph of appellant from 1997. (Id. at 110.)
The victim did not recognize any of the men. (Id.) However, based on the
photo array, the interview with the victim, and the CODIS match,
Detective Pace obtained a warrant for a DNA sample from appellant to
confirm the CODIS match. (Id. at 111.) Pace was present when a swab
from inside appellant’s cheek was taken; it was then sent to the
DNA laboratory for analysis and was confirmed that appellant was a match.
(Id. at 113-116.) The statistical frequency of the DNA profile match was
one per 888 quadrillion in the African American population, one per
681 quadrillion in the Caucasian population, and one per 368 quadrillion in
the Hispanic community. Appellant was arrested on August 9, 2009. (Id. at
115-116.)
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Kevin Knox, a scientist at the DNA laboratory, also testified as an
expert witness for the Commonwealth. (Id. at 135, 140.) Knox provided
the jury with an explanation of DNA evidence, profile, and the analysis
performed. (Id. at 140-147.) He stated that in 2009, he performed a DNA
analysis of appellant’s buccal swab and compared it to the DNA profile
derived from the victim’s vaginal swab. (Id. at 149-156.) Knox explained
that these items were submitted on a property receipt as part of the chain of
custody and submitted to the laboratory. (Id. at 153.) He then provided a
detailed explanation as to the match which was established. (Id. at 155-
160.) Knox also explained that the passage of time from 1997 would not
affect the evidence, as the samples are preserved and all of the rape kit
swabs were frozen in minus 20 degree freezers. (Id. at 160.)
The victim became ill and was hospitalized. The scheduled preliminary
hearings were continued, as the victim was unavailable. A bedside
preliminary hearing was scheduled, as the victim was dying from cancer;
however, the victim died before the hearing occurred. Appellant was held
for trial after the Commonwealth located the victim’s daughter to testify as
to the victim’s excited utterance immediately after the rape.
Prior to trial, appellant moved for discharge under Rule 600 and for
pre-arrest delay; the motions were denied. At trial, the Commonwealth
presented the testimony of T.U., three police officers, and two expert
witnesses who had been involved in the 2002 and 2007 DNA analyses.
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Appellant presented his own expert, and his sister testified, claiming that
appellant did not live in the victim’s neighborhood at the time of the rape.
Appellant was convicted of rape, burglary, and sexual assault.
Thereafter, the court imposed an aggregate sentence of 8 to 16 years’
incarceration. On October 2, 2012, appellant filed post-sentence motions
seeking reconsideration of sentence. The trial court denied the motion
without a hearing. (Docket #15.) A timely notice of appeal was filed, and
appellant complied with the trial court’s order to file a concise statement of
errors complained of on appeal within 21 days pursuant to Pa.R.A.P.,
Rule 1925(b), 42 Pa.C.S.A.
Herein, the following issues have been presented for our review:
1. Did not the trial court err and abuse its
discretion by permitting Commonwealth
witnesses to testify in this rape trial to a DNA
profile purportedly obtained from a vaginal
sample of the complainant where the sample’s
chain of custody, spanning twelve years and
two states, was not properly established?
2. Did not the trial court err in denying
appellant’s motion to dismiss the prosecution
based on improper and prejudicial pre-arrest
delay in violation of his due process rights
under the Pennsylvania and United States
Constitutions?
3. Did not the trial court err in denying
appellant’s motion to dismiss the prosecution
based on a violation of his right to a prompt
trial under Pa.R.Cr.P. 600?
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Appellant’s brief at 4.5
Appellant first claims that the Commonwealth failed to establish a
proper chain of custody for the vaginal swab, which was analyzed in a Bodi
laboratory in Virginia that led to a “hit” in the national DNA database.
(Appellant’s brief at 12.) Prior to trial, defense counsel pointed to the
custodial gap as to the initial documentation and storage of the samples in
1997 and the gap regarding the vaginal sample’s transport to Virginia in
2004. (Notes of testimony, 9/14/11 at 4, 7-8; appellant’s brief at 13.)6 No
relief is due.
The admissibility of evidence is a matter addressed solely to the
discretion of the trial court and may not be reversed absent a showing that
the court abused its discretion. Commonwealth v. Begley, 780 A.2d 605,
620 (Pa. 2001). An abuse of discretion is “not merely an error of judgment;
rather, discretion is abused when the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable or the result of partiality,
prejudice, bias or ill-will, as shown by the evidence of record.”
5
Additional issues contained in his Rule 1925(b) statement have not been
presented to our court in his brief; hence, we deem them to have been
abandoned.
6
We disagree with the Commonwealth that this contention was not
preserved; we find defense counsel’s argument at trial sufficiently preserves
the chain of custody issue. Defense counsel repeatedly lodged objections
during the course of testimony related to the chain of custody.
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Commonwealth v. Busanet, 817 A.2d 1060, 1076 (Pa. 2002) (citation
omitted).
Appellant claims that the Commonwealth failed to adequately prove
the chain of custody since it did not set forth who placed the swabs on a
property receipt, who delivered them to the lab, who received them at the
lab, or how many people were even involved with the process. (Appellant’s
brief at 14.) Appellant maintains that no one that had involvement or direct
knowledge about the handling of the vaginal sample testified. (Id. at 19.)
Rather, the witnesses cited a property receipt number associated with the
same which “merely reflected what [was] gleaned from documents prepared
by others.” (Id.) Appellant repeatedly emphasizes, “no witnesses supplied
a link in the twelve-year, two[-]state custodial chain.” (Id. at 20.) Thus, he
maintains the absence of such testimony demonstrates the chain of custody
was not proven.
We agree with the Commonwealth that gaps in the chain of custody,
the underlying issue of appellant’s argument, go to the weight of the
evidence and not its admissibility. Commonwealth v. Copenhefer, 719
A.2d 242, 256 (Pa. 1998). Moreover, “[t]here is no requirement that the
Commonwealth establish the sanctity of its exhibits beyond all moral
certainty. It is sufficient that the evidence, direct and circumstantial,
establish a reasonable inference that the identity and condition of the
exhibits remain unimpaired until they were surrendered to the court.”
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Commonwealth v. Feliciano, 67 A.3d 19, 29 (Pa.Super. 2013) (en banc),
quoting Commonwealth v. Martin, 419 A.2d 795, 798 (Pa.Super. 1980).
“There is no rule requiring the prosecution to produce as witnesses all
persons who were in a position to come into contact with the article sought
to be introduced in evidence. Physical evidence may be properly admitted
despite gaps in testimony regarding custody.” Id., quoting
Commonwealth v. Jenkins, 332 A.2d 490, 492 (Pa.Super. 1974).
Appellant relies extensively on Commonwealth v. Pedano, 405 A.2d
525 (Pa.Super. 1979), and argues that the Commonwealth fell well short of
what is required to prove a chain of custody. In Pedano, this court
reversed a conviction after finding that the Commonwealth did not establish
a chain of custody for a rolled fingerprint impression card. Therein,
Detective Greco testified that he took the defendant’s fingerprints on a rolled
impression card. Another detective, Detective Dunlap, stated that he turned
over a rolled impression card to a Detective Olanin. Detective Olanin, who
was called as a fingerprinting expert, did not testify that the card he
examined was the one taken by Detective Greco. Detective Greco also failed
to state that he handed his impression card to Detective Dunlap. Based on
this evidence, the Pedano court ruled that there was a “yawning chasm” in
the chain of custody relative to the rolled impression card, and that the
Commonwealth failed to lay a proper foundation for its introduction. Id. at
528.
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Appellant also cites Ellis v. Unemployment Comp. Bd. Of Review,
749 A.2d 1029, 1031 (Pa.Cmwlth. 2000). In Ellis, a case not binding on
this court, an employee was denied unemployment compensation after her
employer discharged her for failing a drug test. Id. at 1029. The employee
contended that evidence of her failed drug test was inadmissible because the
employer provided no chain of custody evidence for the urine sample prior to
its arrival at the testing center. Id. at 1031. The Commonwealth Court
agreed and concluded that the urine sample was inadmissible, stating the
following:
We have held that gaps in the chain of custody go to
the weight to be given to the testimony and not to
its admissibility. Here, however, there was not
simply a gap in the chain of custody evidence; there
was a complete absence of evidence regarding the
custody of [the employee’s] urine sample from the
time it was collected from [her] until it was received
by the Laboratory for testing.
Id.
In the case at bar, we find that the Commonwealth sufficiently
established a proper chain of custody with regard to the evidence procured
from the victim’s samples. As the trial court states, “the Commonwealth
established that the DNA evidence connecting [appellant] to the crime was
placed on [a] property receipt and that its integrity remained sacrosanct.”
(Trial court opinion 8/2/13 at 12, citing notes of testimony, 9/14/11 at 5.)
It was stipulated that a rape kit was prepared with swabs from the victim’s
rectum, vagina, vulva, and cervix when she was in Jefferson Hospital
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immediately after the incident. (Notes of testimony, 9/14/11 at 189-190.)
Property receipt numbers and laboratory numbers associated with the
samples were presented.
The Commonwealth’s experts described how evidence is typically
received and logged in by the forensic laboratory. Testimony was presented
as to the accreditation of the labs involved, including the requirements to
follow certain protocol and report errors made; none were reported here.
(Id. at 149-151, 164-174.) The Commonwealth’s expert explained the way
the evidence was stored to slow degradation of the samples. Knox testified
that Bodi sent a report back to the DNA laboratory, where Knox reviewed it
for accuracy.
There was also evidence about the taking of the buccal swab from
appellant, the property receipt and lab numbers it was given, and the
analysis of appellant’s DNA; this was done to confirm the match made by the
computer system. Expert testimony was presented concluding that the DNA
profile derived from appellant’s buccal swab was an exact match to the
profile from the male DNA on the vaginal swab taken from the victim. (Id.
at 156, 159-160.)
We cannot find that the trial court abused its discretion in concluding
the Commonwealth established a sufficient chain of custody. The defense
detailed the gaps in the chain of custody with each of the Commonwealth’s
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witnesses and the weight to be accorded the gaps was for the jury.
Copenhefer, supra.
The second issue presented is whether the trial court erred in denying
appellant’s motion to dismiss the prosecution based on improper and
prejudicial pre-arrest delay in violation of his due process rights under the
Pennsylvania and United States Constitutions.
In Commonwealth v. Scher, 803 A.2d 1204 (Pa. 2002),
cert. denied, 538 U.S. 908 (2003), our supreme court clarified that:
[I]n order to prevail on a due process claim based on
pre-arrest delay, the defendant must first show that
the delay caused him actual prejudice, that is,
substantially impaired his or her ability to defend
against the charges. The court must then examine
all of the circumstances to determine the validity of
the Commonwealth’s reasons for the delay. Only in
situations where the evidence shows that the delay
was the product of intentional, bad faith, or reckless
conduct by the prosecution, however, will we find a
violation of due process. Negligence in the conduct
of a criminal investigation, without more, will not be
sufficient to prevail on a due process claim based on
pre-arrest delay.
Id. at 1221–1222 (footnote omitted).
In the present case, appellant claims that he was prejudiced by the
delay in prosecution because it impaired his ability to formulate an alibi
defense and because “memories have faded the accuracy of [the victim’s]
recollection which could have deteriorated by the time of trial.” (Appellant’s
brief at 16.)
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Specifically, appellant claims that the 29-month period from March 26,
2007, when the match on the CODIS database was found, until his arrest on
August 20, 2009, constituted prejudicial delay. (Id. at 25.) Appellant
argues this delay caused actual prejudice to his ability to mount a defense as
he could no longer recall his whereabouts at the time of the crime or find
any witness from the neighborhood. The victim passed away six months
after he was arrested, and appellant did not have an opportunity to
cross-examine her at the preliminary hearing or trial. (Id. at 25-16.) No
relief is due.
The trial court found that appellant did not demonstrate the threshold
showing of actual prejudice. (Trial court opinion, 8/2/13 at 8.) We agree.
Appellant attempts to satisfy the actual prejudice threshold by alleging that
the Commonwealth deprived him of an alibi defense as he could not, at the
late trial date, recall his precise whereabouts and could not secure other
evidence. This assertion falls substantially short of a demonstration of
“actual prejudice.” In fact, the vagueness of appellant’s putative defense,
which is devoid of any suggestion of what alibis might have been available
during the period in question, renders his assertion of prejudice
unconvincing.
We also agree with the Commonwealth that appellant’s assertion that
he was prejudiced by not having the opportunity to cross-examine the victim
before she died is speculative. Appellant, who was in possession of the
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statements the victim provided to the police, has not pointed to anything
that he hoped to elicit from her in his defense. It is only where the
defendant lost exculpatory evidence that prejudice is demonstrated.
Moreover, we agree with the court’s finding that there was no
intentional, bad faith, or reckless conduct by the prosecution relative to the
pre-arrest delay in this case. Rather, “the delay in arresting [appellant] was
caused by the necessary and proper investigatory steps.” (Trial court
opinion, 8/2/13 at 9.) We agree that the Commonwealth did not
intentionally or negligently cause an unreasonable delay in arresting
appellant.
Appellant’s final claim also concerns an alleged violation of his right to
a speedy trial. Appellant claims that the trial court erred by failing to
dismiss the case pursuant to Pa.R.Crim.P. 600.
In evaluating Rule 600 issues, our standard of review of a trial court’s
decision is whether the trial court abused its discretion. Commonwealth v.
Hunt, 858 A.2d 1234, 1238 (Pa.Super. 2004) (en banc). Furthermore:
The proper scope of review . . . is limited to the
evidence on the record of the Rule 600 evidentiary
hearing, and the findings of the trial court. An
appellate court must view the facts in the light most
favorable to the prevailing party. Additionally, when
considering the trial court’s ruling, this Court is not
permitted to ignore the dual purpose behind
Rule 600. Rule 600 serves two equally important
functions: (1) the protection of the accused’s
speedy trial rights, and (2) the protection of society.
In determining whether an accused’s right to a
speedy trial has been violated, consideration must be
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given to society’s right to effective prosecution of
criminal cases, both to restrain those guilty of crime
and to deter those contemplating it. However, the
administrative mandate of Rule 600 was not
designed to insulate the criminally accused from
good faith prosecution delayed through no fault of
the Commonwealth.
Id. at 1238-1239 (internal citations and quotation marks omitted).
In the context of Rule 600, there is a distinction between “excludable
time” and “excusable delay.” Unlike “excludable time,” “excusable delay” is
not expressly defined in Rule 600, but the “legal construct takes into account
delays which occur as a result of circumstances beyond the Commonwealth’s
control and despite its due diligence.” Hunt, 858 A.2d at 1241.
If the Commonwealth attempts to bring a defendant to trial beyond
the 365-day period prescribed by Rule 600, and the defendant files a
Rule 600 motion to dismiss, the court must assess whether there is
excludable time and/or excusable delay. Id. Even where a violation of
Rule 600 has occurred, we recognize:
The motion to dismiss the charges should be denied
if the Commonwealth exercised due diligence and
the circumstances occasioning the postponement
were beyond the control of the Commonwealth.
Due Diligence is a fact-specific concept that must be
determined on a case-by-case basis. Due diligence
does not require perfect vigilance and punctilious
care, but rather a showing by the Commonwealth
that a reasonable effort has been put forth.
Reasonable effort includes such actions as the
Commonwealth listing the case for trial prior to the
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run date to ensure that defendant was brought to
trial within the time prescribed by Rule 600.
Id. at 1241-1242 (internal citations and quotation marks omitted)
(emphasis omitted).
At the outset, we note our disagreement with appellant’s primary
contention; that is, that the Rule 600 run date commenced with the filing of
the John Doe criminal complaint on January 25, 2002. (Appellant’s brief at
33.) We agree with the Commonwealth that this argument is waived, as it
was not raised at trial. Pa.R.A.P. 302(a). Moreover, pursuant to
Pa.R.Crim.P. 600(C)(1), “the period of time between the filing of the written
complaint and the defendant’s arrest” is excluded where the Commonwealth
acts with due diligence in determining his whereabouts. Here, the
Commonwealth did not know appellant’s name, had no physical description
of the assailant, and did not received the CODIS hit information until March
26, 2007. The additional investigation needed to confirm appellant was an
actual match was not completed until early August of 2009.
We find no error with either the trial court’s decision or rationale.
Following careful review, we affirm this issue based upon the trial court’s
opinion. (Trial court opinion, 8/2/13 at 3-7.) We also note that the record
establishes that the victim’s hospitalization prevented the Commonwealth
from proceeding with the preliminary hearing; this circumstance was clearly
beyond the control of the Commonwealth and constitutes excusable delay.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2014
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