Opinion
J-S78017-17 No. 585 WDA 2017
05-09-2018
COMMONWEALTH OF PENNSYLVANIA v. JAMES DUNCAN, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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.:
Retired Senior Judge assigned to the Superior Court.
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. 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 filed 12/23/14) (unpublished memorandum), appeal denied , 117 A.3d 295 (Pa. 2015).
We summarized the underlying facts in our disposition of Appellant's direct appeal as follows:
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.Commonwealth v. Duncan , 1548 WDA 2013 at 1-2 (Pa. Super. filed 12/23/14) (unpublished memorandum).
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.
Appellant filed a timely, counseled PCRA Petition on June 9, 2016. Simultaneously, he filed a Post-Conviction Motion for the Performance of 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.
[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.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 "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.
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 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. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/9/2018
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