Com. v. Oliver, S.

J. S69017/14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SCOTT DOUGLAS OLIVER, : No. 3092 EDA 2013
:
Appellant :
Appeal from the Order Entered October 14, 2013,
in the Court of Common Pleas of Northampton County
Criminal Division at No. CP-48-CR-0002354-1989
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND STABILE, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 26, 2015
Appellant appeals the order denying appellant’s petition filed pursuant
to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§9541 to 9546.
Finding no error, we affirm.
We adopt the factual summary employed by this court when we
affirmed appellant’s judgment of sentence and first PCRA petition:1
[Appellant] supplied beer to a group of minors
which included the victim, 11 year old Melissa
Jaroschak, for a party on the afternoon of August 20,
1989. During the day, [appellant] was seen
spending time alone with the victim and occasionally
walking with his arm around her. They left the party
together at about 8:30 p.m. that evening.
1
Appellant filed a PCRA petition while his direct appeal was pending. It was
denied and appealed, and this court resolved both appeals by the same
panel and memorandum.
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Melissa never arrived home. The following
day, family and friends began a search for her. In
the ensuing investigation into Melissa’s
disappearance, the Easton Police learned that
[appellant] had left the party with Melissa. When
the police contacted [appellant], he told them that
he had walked Melissa home after the party, but
denied any knowledge of her current whereabouts.
Later that afternoon, the police were unsuccessful in
attempting to contact [appellant] a second time.
The police told [appellant’s] mother to make him
available the next day for questioning regarding the
victim’s disappearance.
Late that evening, the victim’s body was found
near abandoned railroad property on the south side
of Easton. The subsequent autopsy revealed that
she had been beaten about the face and head,
choked, raped, sodomized, and strangled with her
own sweatshirt the previous evening.
Following the discovery of Melissa’s body, the
police contacted the six juveniles who had been at
the beer party on August 20th. All of the juveniles
essentially told the same story: [Appellant] had
purchased the beer for the party, and [appellant]
and the victim had left the party together. In
addition, one juvenile told the police that [appellant]
had offered him marijuana. Based upon this
information, the police obtained an arrest warrant for
[appellant], charging him with furnishing liquor to
minors and corruption of minors.
Pursuant to the arrest warrant, [appellant] was
arrested at 6:45 a.m. on August 22, 1989. Shortly
before the police arrived, [appellant’s] mother had
awakened him so that he would be ready to meet
with the police that morning to answer questions
regarding Melissa’s disappearance. [Appellant] was
informed of the arrest warrant and the charges
against him, and was then transported
approximately two blocks to the police station.
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After [appellant] was read his Miranda rights,
he signed a “rights arid waiver form” acknowledging
that he understood his rights and voluntarily waived
them. During the subsequent interrogation,
[appellant] confessed to the crimes regarding
Melissa. [Appellant] signed, dated, and
initialled [sic] a four page confession, handwritten by
the interrogating officer, which detailed the beating,
strangulation, and rape of Melissa. He also admitted
furnishing beer to the juveniles. [Appellant] was
immediately arrested for criminal homicide, rape,
involuntary deviate sexual intercourse, and indecent
assault.
Commonwealth v. Oliver, 635 A.2d 206 (Pa.Super. 1993) (unpublished
memorandum), August 20, 1993, slip memorandum at 2-3.
On February 9, 1991, a jury found appellant guilty of first degree
murder, rape, involuntary deviate sexual intercourse, and indecent assault.
Appellant was sentenced to life imprisonment for murder that same day. On
October 16, 1992, additional consecutive sentences were imposed on the
other charges.
On August 20, 1993, this court affirmed the judgment of sentence,
and on February 9, 1994, our supreme court denied appeal.
Commonwealth v. Oliver, 635 A.2d 206 (Pa.Super. 1993) (unpublished
memorandum), appeal denied, 639 A.2d 30 (Pa. 1994). As noted, the
denial of appellant’s first PCRA petition was affirmed at the time his
judgment of sentence was affirmed. The record shows that a subsequent
PCRA petition was denied on July 1, 2002, as untimely.
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On January 14, 2010, the Innocence Project filed the instant PCRA
petition on appellant’s behalf after receiving a December DNA test of one of
the victim’s vaginal swabs. The test excluded appellant from male genetic
material found on the swab.2 We note that the lab report from
Orchid Cellmark, the company that performed the DNA test, bears the
following disclaimer:
Orchid Cellmark expressly disclaims any and all
responsibility regarding the identity of the items
received on September 9, 2009 listed above [the
swabs and DNA extract from the victim and
appellant]. These items were not collected in
accordance with standard chain of custody
procedures and, therefore, the DNA results may not
be admissible in a court of law or any other judicial,
administrative or quasi-legal hearing. The results in
this report are intended for informational purposes
only.
Report of Laboratory Examination, 11/12/09 at 1.
Subsequent DNA tests proved either inconclusive or failed to exclude
appellant. At this point, the Innocence Project sought and received
permission to withdraw from appellant’s case. On March 9, 2012, a hearing
was held on appellant’s PCRA petition, and on November 13, 2012, the PCRA
court denied appellant’s petition. In its subsequent opinion, the court based
its decision on the fact that the post-conviction DNA evidence “falls short of
2
It is unclear what this genetic material was. A forensic pathologist testified
at appellant’s trial that there was no sperm or other evidence found that the
perpetrator had ejaculated. (Notes of testimony, 1/31/91 at 3096, 3150.)
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the convincing scientific demonstration of actual innocence.” (PCRA court
opinion, 11/13/12 at 15.)
On appeal, this court vacated the PCRA court’s order because the
PCRA court failed to use the proper standard for granting relief on the basis
of after-discovered exculpatory evidence; the petitioner need not establish
actual innocence, but only that the new evidence likely would have changed
the outcome of the trial. Commonwealth v. Oliver, 82 A.3d 466
(Pa.Super. 2013) (unpublished memorandum), June 21, 2013, slip
memorandum at 4. This court also ruled that the PCRA court considered
other improper evidence in reaching its decision. On October 14, 2013, the
PCRA court again denied appellant’s petition. In an opinion issued that same
day, the PCRA court employed the correct standard and otherwise cured the
errors this court had previously noted. This timely appeal followed.
Appellant raises the following issues on appeal:
1. IS THE PCRA COURT’S OPINION DATED
OCTOBER 14, 2013, UNREASONABLE IN VIEW
OF THE FACTS, AND CONTRARY TO THE LAW
OR ORDER ISSUED BY THE SUPERIOR COURT
OF PENNSYLVANIA ON JUNE 21, 2013?
2. IS THE PCRA COURT’S DECISION
UNREASONABLE IN VIEW OF THE FACTS, AND
CONTRARY TO THE LAW, BY HOLDING THE
NEWLY DISCOVERED EXCULPATORY DNA
EVIDENCE WOULD NOT HAVE RESULTED IN A
DIFFERENT OUTCOME WHEN BALANCED
AGAINST THE COMMONWEALTH’S PURELY
CIRCUMSTANTIAL EVIDENCE?
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3. WAS THE COURT’S DENIAL OF THE
PETITIONER’S PCRA UNREASONABLE AND
ERRONEOUS UNDER THE LAW IN VIEW OF THE
AFTER-DISCOVERED EXCULPATORY DNA
EVIDENCE?
Appellant’s brief at 3. Although appellant purports to set out his argument
as three issues, he is essentially arguing only one issue: that the PCRA
court erred in determining that his after-discovered DNA evidence would not
have changed the outcome of his trial.
Our standard of review for an order denying post-conviction relief is
whether the record supports the PCRA court’s determination, and whether
the PCRA court’s determination is free of legal error. Commonwealth v.
Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings
will not be disturbed unless there is no support for the findings in the
certified record. Id.
A PCRA petition must be filed within one year of the date that the
judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). This time
requirement is mandatory and jurisdictional in nature, and the court may not
ignore it in order to reach the merits of the petition. Commonwealth v.
Taylor, 933 A.2d 1035, 1038 (Pa.Super. 2007), appeal denied, 951 A.2d
1163 (Pa. 2008).
Appellant’s judgment of sentence became final on May 10, 1994,
90 days after our supreme court denied appeal, and the time for seeking
further review with the United States Supreme Court expired. See
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42 Pa.C.S.A. § 9545(b)(3); Rules of the Supreme Court of the United States,
Rule 13.1. The instant petition, filed January 14, 2010, is manifestly
untimely and cannot be reviewed unless appellant invokes a valid exception
to the time bar of the PCRA. See 42 Pa.C.S.A. § 9545(b)(1)(i-iii).
In his PCRA petition, appellant asserted an exception under the
after-discovered facts exception, 42 Pa.C.S.A. § 9545(b)(1)(ii), that being
the newly received DNA test results. We initially note that any petition
purporting to invoke one of the time of filing exceptions must be filed within
60 days of the date the claim could have been presented. 42 Pa.C.S.A.
§ 9545(b)(2). Appellant’s counsel received the test results on December 7,
2009. Consequently, appellant’s petition claiming this exception was timely
filed, and we may proceed to review it.
We find that the PCRA court properly denied appellant’s request for a
new trial. First, the results from appellant’s initially exculpatory DNA test
are unreliable because as Orchid Cellmark indicated in its report, proper
chain of custody procedures were not followed. Second, the evidence at trial
against appellant was substantial and was catalogued by the PCRA court in
its opinion:
1. Detective William A. Wilkinson, Jr.
Detective Wilkinson testified that he took a
statement from the Petitioner on August 22, 1989,
wherein the Petitioner admitted to killing and
sexually assaulting the Victim. He had transcribed
an exact account of this confession, which the
Petitioner had then signed. The Petitioner had also
initialed each of his Miranda rights.
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According to the Commonwealth, this statement is
consistent with the forensic pathologist’s opinion and
includes details that only the killer would know.
2. Jose Ocasio
Jose Ocasio testified that the Petitioner had
confessed the crime to him while they were together
in Northampton County Prison. His account included
graphic details of the sexual assault and the murder
and was consistent with the Petitioner’s statement to
Detective Wilkinson.
3. Mindy Amato
Mindy Amato was the Victim’s best friend. She
testified that the Petitioner was with the Victim on
the night of the murder. He kept asking her if she
was ready to go home. At 8:30 p.m., the Petitioner
stated that he would take the Victim home.
The next morning, Ms. Amato confronted the
Petitioner about the Victim’s disappearance. She
noticed that his feet were very dirty and had dirt
caked on them. He had scratches on his face and
was angry that people kept coming to his house to
ask where the Victim was. At various points, the
Petitioner told her three different stories about the
events of the prior evening. He had acted “very
nervous” and mad.
4. Joshua Braggs
Joshua Braggs corroborated Ms. Amato’s testimony
with regard to the dirt on the Petitioners legs and his
presence with the Victim on the night of the murder.
5. Lark Rose
Lark Rose testified that she had observed scratches
on the right side of the Petitioner’s neck the day
after the murder. She described him as appearing
scared.
6. David Blanar
David Blanar testified that he had observed the
Petitioner with the Victim on the night of the murder.
The Petitioner was putting his arm around the Victim
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and rubbing her back. He saw the Petitioner and the
Victim depart together, as she had to be home by
9:00 p.m.
7. William Shannon
William Shannon testified that, on the night of the
murder, he had observed the Petitioner and the
Victim together with a group of friends. He saw the
Petitioner leave with the Victim at about 9:00 p.m.
The next morning, Mr. Shannon and others went to
the Petitioner’s home to ask about the Victim. He
remembered the Petitioner as having dirty toenails.
8. Frank Rose
Frank Rose testified that he was in the Petitioner’s
presence the day after the murder and noticed that
his lower legs were dirty.
9. James Ciaramitaro
James Ciaramitaro testified that he had observed the
Victim leave the area with the Petitioner on the night
of the murder.
10. Officer Michael Orchulli
Officer Orchulli testified about finding the Victim’s
body along the Lehigh River near the old railroad
loading dock. The Victim was on her back, naked
except for her bra and one sneaker. Her body was
very dirty and had bruises and scratches on
numerous parts of it.
11. Barbara Reilly
Barbara Reilly was a forensic scientist with the
Pennsylvania State Police. She testified to finding
two (2) hairs on the Victim’s pubic region that did
not belong to her. She undertook a microscopic
analysis of the Petitioner’s hairs and found that they
were consistent with the unknown hairs found on the
Victim. In addition, Ms. Reilly concluded that the
hairs were consistent with having come from a black
person. The Petitioner is black.
12. Dr. Isadore Mihalakis
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Dr. Mihalakis, a forensic pathologist, performed the
Victim’s autopsy. He observed bruises and scratches
in various places on her body. He also described a
large bruise on the side of her face consistent with a
punch or a slap. He found scratches and bruises on
the Victim’s back, which suggested she had been
held down while she struggled. His examination
revealed that a human being had forcibly penetrated
the Victim vaginally and anally. The Victim’s body
and clothing had black dirt like deposits, and the
body was soiled.
Dr. Mihalakis had performed swabs, smears, and
washes on the Victim’s mouth, genital organs,
vagina and anus for an entity called acid phosphate-
P30 protein, DNA and sperm. Wet preparations of
the vulva, vagina, anus and mouth had not revealed
the presence of sperm. There was no evidence that
the assailant had ejaculated.
PCRA court opinion, 10/14/13 at 4-6.
Third, appellant baldly claims that his confession was coerced. Even if
we were to accept that the police somehow induced appellant to confess, the
confession is nonetheless highly damning because appellant knew details
that only the killer would know. For instance, appellant admitted in his
confession that he choked the victim with her sweatshirt and that he choked
her until she was quiet. (Notes of testimony, 1/30/91 at 2678, 2682.) The
victim did, in fact, die of strangulation. (Note of testimony, 1/31/91 at
3122.)
Fourth, appellant’s claim that the DNA results would bolster other
exculpatory trial evidence is not correct. Appellant cites the fact that white
skin was found under the victim’s fingernails (as noted by the PCRA court,
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appellant is African American). That characterization does not accurately
reflect the actual trial testimony which occurred during cross-examination of
the forensic pathologist as to his autopsy report:
Q. O.K. There was another black hair fragment or
fiber under the fingernail clippings from the
right hand. Is that correct? That’s the next
sentence.
A. One had a minute black fragment on it.
Q. And black soil particles and white – parenthesis
– dried skin – question mark – parenthesis on
the clippings.
A. Yes.
Q. So there was a white substance found under
one of the fingernail clippings that you thought
might be dried skin. Is that correct?
A. Or it could have been when they cut fingernail
clippings, some of the inside of the nail lining
shreds off.
Q. You didn’t know?
A. Right. I could not know.
Notes of testimony, 1/31/91 at 2990-2991. Thus, the forensic pathologist
testified that he did not know what the substance was under the fingernail
clipping. Likewise, the autopsy report was also speculative because after it
suggested dried skin, a question mark was inserted.
Appellant also cites to evidence that he had no scratches or bruises on
his body, that dirt taken from his feet did not match dirt found on the
victim’s body, and that certain hairs taken from the victim were not
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positively identified as coming from him. To this we respond with an adage
familiar to criminal law: “[A]n absence of evidence is not evidence of
absence.” Commonwealth v. Brooks, 875 A.2d 1141, 1147 (Pa.Super.
2005). In other words, the failure to find scratches, a soil sample match, or
a hair sample match do not indicate that appellant was absent from the
crime scene. That “evidence” is simply not exculpatory.
In sum, we agree with the PCRA court that appellant’s new evidence
would unlikely result in a different outcome at trial. Consequently, we will
affirm the order below.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/26/2015
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