Opinion
J-S48010-19 No. 1402 EDA 2019
10-29-2019
COMMONWEALTH OF PENNSYLVANIA v. HARRY M. RODRIQUEZ
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered April 9, 2019
In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0002904-1977 BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER, J. MEMORANDUM BY BOWES, J.:
Retired Senior Judge assigned to the Superior Court.
Harry M. Rodriquez appeals pro se from the April 9, 2019 order denying his request for post-conviction DNA testing. We affirm.
The pertinent facts were summarized by the PCRA court as follows:
The Commonwealth's principal witness, Pablo Gonzalez, testified that in February, 1977, Appellant shot Jean Rivera three times in the head and neck while she was asleep. According to Gonzalez, Appellant conducted a large drug trafficking operation and Gonzalez was his assistant. Some weeks before the shooting, they had discovered that substantial quantities of drugs, guns, and money had been stolen from Appellant's apartment. After making an investigation, Appellant concluded that Jean Rivera, an 18-year-old heroin addict, was the thief and decided to kill her. He shot her while they were in his car, which was stopped on Route I-95 in Bucks County; Gonzalez was sitting in the back seat. Hours later, her body was located off the highway where Appellant had thrown it. Subsequently, he and Gonzalez shipped the car to Puerto Rico, Appellant returned there and, several months thereafter, was arrested.
Items discovered along with the victim's body included a white hand towel with blood stains, the victim's red underpants with semen stains, a yellow tissue folded up and inserted in the victim's crotch, and a bloodstained sweater that the victim was wearing at the time of her murder. Gonzalez testified that he covered the victim's head with the white hand towel after Appellant shot her the first time. Appellant subsequently threw the victim's body over a guardrail on I-95 and shot her again in the head and chest to make sure she was dead.
In addition to Gonzalez's testimony, the Commonwealth presented testimony from Robert Oldham, who admitted to paying the victim to have sexual relations with him at the Red Dog Saloon the night of the homicide. According to Oldham, Appellant interrupted the liaison between the victim and Oldham to start an argument with the victim. Moses Cintron, a bartender at the Red Dog Saloon, testified that he also witnessed Appellant and the victim arguing outside the bar mere hours before the murder.
Approximately eight months after the homicide, on October 13, 1977, Officer Jose Marrero stopped Appellant while he was driving a 1973 Ford Thunderbird in Puerto Rico. Leida Rodriguez-Valez, a medical criminologist who worked for the Police Department of Puerto Rico, later examined blood stains in the car and determined that they were human blood stains. During the investigation, Rodriguez-Valez also discovered hair under the passenger's seat of the vehicle. Robert Kopec, the chief of the microscopic analysis section of the Sanford Regional Crime Laboratory in Sanford, Florida, testified that the hair samples taken from the 1973 Ford Thunderbird were indistinguishable from hair samples taken from the victim's hairbrush. Furthermore, Charles Andrews had observed Appellant driving the 1973 Ford Thunderbird at various times between September, 1976, and December, 1976.
Notably, the Commonwealth did not use the hair and blood samples collected from the car, the white hand towel, the victim's red underpants, the yellow tissue, or the victim's sweater to inculpate Appellant as the murderer. Rather, it introduced physical evidence in combination with testimony from Pablo Gonzalez, an eyewitness to the homicide, testimony from approximately twenty other witnesses, only some of whom are mentioned supra, and statements made by Appellant to the police that demonstrated Appellant's knowledge of the murder weapon.
Specifically, during an interview with police, Appellant denied knowing the victim, killing the victim, or knowing that the victim had been killed. Appellant then asked if the police had found the gun and whether there were any fingerprints on it even though the police had not provided him with details regarding the circumstances of the murder or the weapon used.Trial Court Opinion, 5/22/19, 1-3 (cleaned up and citations omitted).
On June 25, 1978, a jury convicted Appellant of first-degree murder. On March 7, 1980, the trial court sentenced Appellant to life imprisonment without the possibility of parole. On direct appeal, our Supreme Court affirmed Appellant's judgment of sentence. Commonwealth v. Rodriguez , 452 A.2d 1013 (Pa. 1982).
On October 10, 1983, Appellant filed his first petition for collateral relief. The court denied the petition, and was affirmed on appeal. Commonwealth v. Rodriguez , 515 A.2d 619 (Pa.Super. 1986) (unpublished memorandum). Our Supreme Court denied further review. Commonwealth v. Rodriguez , 524 A.2d 493 (Pa. 1987). Appellant filed a second petition seeking collateral relief, which was denied on November 9, 1992. Again, denial was affirmed on appeal. Commonwealth v. Rodriguez , 636 A.2d 1215 (Pa.Super. 1993) (unpublished memorandum).
On April 10, 2000, Appellant filed a petition seeking habeas corpus relief, which was properly construed as Appellant's third collateral petition and denied as untimely. We affirmed denial of that order. Commonwealth v. Rodriguez , 788 A.2d 1033 (Pa.Super. 2001) (unpublished memorandum). On February 29, 2016, Appellant filed his fourth PCRA petition, alleging he was entitled to relief under Miller v. Alabama , 567 U.S. 460 (2012), and Montgomery v. Louisiana , 136 S.Ct. 718 (2016). This petition was denied on March 31, 2017. Appellant appealed, but was granted leave to withdraw his appeal on October 31, 2017.
On May 23, 2018, Appellant filed a petition seeking to have certain evidence submitted for DNA testing pursuant to 42 Pa.C.S. § 9543.1, which governs requests for post-conviction DNA testing. On August 15, 2018, the Commonwealth filed a response, arguing that Appellant's petition was untimely and that Appellant had failed to make out a prima facie case that exculpatory results from the testimony would demonstrate his actual innocence. On October 24, 2018, Appellant filed a motion seeking a stay of the proceedings until a recently enacted amendment to § 9543.1 went into effect. The amendments went into effect on December 24, 2018. On October 25, 2018, the PCRA court issued a Pa.R.Crim.P. 907 notice indicating its intent to dismiss Appellant's petition. Appellant filed a response to the Rule 907 notice and the court entered an order granting Appellant's motion to stay the proceedings.
On December 19, 2018, Appellant filed an amended petition for DNA testing arguing that the amended statute provided him a basis for relief. The Commonwealth filed a motion to dismiss Appellant's petition without a hearing, repeating its earlier argument that the petition was untimely and asserting that Appellant still fell short of his burden under the newly amended statute. The PCRA court filed a second Rule 907 notice and Appellant filed another response. On April 11, 2019, the court dismissed the petition. This appeal followed. Appellant and the court both complied with Pa.R.A.P. 1925.
On appeal, Appellant raises the following issues for our review, which we have reorganized for ease of disposition:
I. Whether the lower court erred in dismissing the Appellant's motion for DNA testing as untimely under the "amended version of 42 Pa.C.S. § 9543.1(a)(1)" the legislature held a motion for DNA testing can be filed at any time?Appellant's brief at 2.
II. Whether the lower court erred in dismissing the Appellant's motion for DNA testing on the basis there is no reasonable possibility that DNA testing would establish Appellant's innocence for the murder he stands convicted and on the basis Appellant failed to establish a prima facie case that would warrant testing where there was no "DNA evidence" or "physical evidence" linking Appellant to the murder, where there were "hairs & blood" and other evidence that was never tested, that if tested could have established Mr. Gonzalez or someone else committed the murder?
III. Whether the lower court erred in dismissing the Appellant's motion for DNA testing without an evidentiary hearing on the Commonwealth's motion to dismiss the motion as untimely and so the Commonwealth could produce proof that the requested evidence to be tested was in fact destroyed instead of speculating the evidence was destroyed?
IV. Whether this case should be remanded to the lower court for an evidentiary hearing on the Commonwealth's motion to dismiss, at which time the Commonwealth can produce proof that the evidence was in fact destroyed, and to establish a chain of custody?
All of Appellant's claims surround the PCRA court's denial of Appellant's petition for DNA testing. Appellant sought DNA testing of five pieces of evidence: (1) all of the hair and blood samples collected from the 1973 Ford Thunderbird, (2) the white hand towel with blood stains, (3) the victim's red underpants with semen stains, (4) the yellow tissue that was folded up and inserted in the victim's crotch, and (5) the victim's sweater that contained human blood consistent with group O and that had a bullet hole in the front. Trial Court Opinion, 5/22/19, at 10-11.
We review the trial court's decision to grant or deny a post-conviction petition for DNA testing to determine whether the findings of the trial court are supported by the record and free of legal error. Commonwealth v. Conway , 14 A.3d 101, 108 (Pa.Super. 2011) (footnote and citation omitted) ("Post conviction DNA testing falls under the aegis of the Pennsylvania Post Conviction Relief Act . . . ., and thus, 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.").
In his first claim, Appellant attacks the lower court's finding that his petition was untimely filed. Appellant's brief at 12. He cites to 42 Pa.C.S. § 9543.1(a)(1) in order to support his argument that he can file his petition "at any time." Id. at 15. The Commonwealth responds that Appellant is improperly viewing one section of the statute in isolation in order to advance his inaccurate argument. Commonwealth's brief at 8-9. Instead, the Commonwealth argues, the petition was not filed "in a timely matter" as required by § 9543.1(a)(4), since the DNA statute was passed in 2002, yet Appellant waited to file his petition until 2018 seeking to test evidence he had known about for decades. Id. at 10-11. We agree.
Our legislature enacted 42 Pa.C.S. § 9543.1 in 2002, in order to provide previously-convicted individuals with an avenue to utilize advances in forensic DNA testing that were not available to them at the time of their trial. While the PCRA's one-year time bar does not apply to petitions seeking the performance of forensic DNA testing under § 9543.1, such petitions are not wholly without time constraints. Section 9543.1(a) provides in relevant part:
(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.42 Pa.C.S. § 9543.1(a) (emphasis added).
. . . .
(4) 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.
Our Supreme Court has analyzed timeliness under § 9543.1 and found that when determining timeliness, the court must consider the facts of each case and decide whether the purpose of a petitioner's request is to demonstrate his actual innocence or to delay the execution of his sentence or administration of justice. Commonwealth v. Edmiston , 65 A.3d 339, 357 (Pa. 2013). In Edmiston , the defendant was convicted in 1989 for a murder that he committed in 1988. In 2002, when § 9543.1 was enacted, the defendant did not seek DNA testing as part of a pending PCRA petition. Instead, he waited until 2009 to request DNA testing. Ultimately, our Supreme Court concluded the petition was untimely, since the defendant had known of the existence of the physical evidence he was seeking to test for over twenty years and had not sought DNA testing within a reasonable amount of time after the statute was passed, despite filing a PCRA petition during that time frame. Id. at 357-59, See also Commonwealth v. Walsh , 125 A.3d 1248, 1257 (Pa.Super. 2015) (finding petition for DNA testing untimely where the defendant waited almost ten years after conviction and litigated three other PCRA claims, none of which sought DNA testing).
Appellant argues that Edmiston should not apply to his case because 42 Pa.C.S. § 9543.1 was amended to add the language "at any time" after that decision was issued. See 42 Pa.C.S. § 9543.1(a)(1) (amended 12/24/18); Appellant's brief at 15. We disagree. Additional qualifying language that the legislature simultaneously added requiring the motion to be "made in a timely manner," supports our continud application of the analysis put forth in Edmiston. See 42 Pa.C.S. § 9543.1(a)(4). Comparing the two versions of the statute, it is clear that the legislature intended to expand the number of individuals eligible to apply for DNA testing, i.e. removing the language making only those actively serving sentences eligible for relief, while expanding the "timeliness" language in order to continue guarding against exploitation of the statute by those who could have filed their petitions sooner. See 42 Pa.C.S. § 9543.1(a)(1). --------
Here, the record supports the lower court's finding that the petition was untimely filed. Appellant, despite being aware of the existence of all of the physical evidence for over forty years, and unsuccessfully litigating four PCRA petitions between 1983 and 2017, did not request DNA testing until 2018, approximately sixteen years after the passage of § 9543.1. Trial Court Opinion, 5/22/19, at 14. Accordingly, we find that the lower court did not err when it found that Appellant failed to put forth his request for DNA testing in a timely manner.
Even assuming, arguendo, that Appellant's request was timely, we agree with the lower court's finding that he did not establish a prima facie case that DNA testing would establish his innocence. Appellant's brief at 21. In relevant part, the statute governing post-conviction DNA testing of specific evidence provides as follows:
(c) Requirements.—In any motion under subsection (a) [regarding forensic DNA testing], under penalty of perjury, the applicant shall:
. . . .
(3) present a prima facie case demonstrating that the:
(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 . . . if, after review of the record of the applicant's trial, the court
determines that there is no reasonable possibility that the testing would produce exculpatory evidence that:
42 Pa.C.S. § 9543.1.(i) would establish the applicant's actual innocence of the offense for which the applicant was convicted[.]
Therefore, Appellant must adduce prima facie evidence that, assuming exculpatory results, the evidence would demonstrate his actual innocence of the offense for which he was convicted. In Conway , supra at 109 (quoting Schlup v. Delo , 513 U.S. 298, 327 (1995)), we explained that actual innocence in this context and in the context of § 9543.1(d)(2)(i), is demonstrated by evidence that "makes it 'more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt."' See also In re Payne , 129 A.3d 546, 556 (Pa.Super. 2015). We concluded, "this standard requires a reviewing court 'to make a probabilistic determination about what reasonable, properly instructed jurors would do,' if presented with the new evidence." Conway , supra at 109 (quoting Schlup , supra at 329).
At trial, overwhelming evidence established Appellant's guilt. The presence of someone else's DNA on the items requested would not diminish the strength of the Commonwealth's case. The lower court engaged in a thorough and well-reasoned analysis explaining why Appellant cannot make out a prima facie case that DNA would establish his actual innocence. Specifically, the PCRA court addressed Appellant's contentions as follows:
Here, Appellant seeks DNA testing of five pieces, or categories, of evidence: (1) all of the hair and blood samples collected from the 1973 Ford Thunderbird, (2) the white hand towel with blood stains, (3) the victim's red underpants with semen stains, (4) the yellow tissue that was folded up and inserted in the victim's crotch, and (5) the victim's sweater that contained human blood consistent with group O and that had a bullet hole in the front. Appellant contends that DNA testing of these items "would identify the 'real killer' and could identify Mr. Gonzalez was the 'killer' of the victim," which was his defense at trial. However, Pablo Gonzalez admitted that he was in the 1973 Ford Thunderbird with Appellant at the time of the homicide and that he himself covered the victim's head with the white hand towel. Therefore, the potential discovery of Gonzalez's DNA on the hair and blood samples collected from the car and/or the white hand towel would only corroborate Gonzalez's testimony that he was present at the time of the killing. Similarly, testing the seminal stains on the victim's red underpants and the yellow tissue would not implicate Gonzalez as the "real killer" because Robert Oldham admitted to having sex with the victim hours before her death and it was never alleged that the victim's killer raped or otherwise sexually assaulted her. DNA testing of the victim's sweater likewise would not prove Pablo Gonzalez's guilt because there is no evidence of record which indicates that the killer's blood would be present on the sweater or any other piece of evidence, and Appellant does not advance a theory in which the shooter's blood would be present on the victim's clothing. Since Appellant has not provided any evidentiary basis upon which the Court could infer that any of the DNA detected on the hair, blood, white hand towel, red underpants, yellow tissue, or sweater was left there by "the real killer," he is unable to satisfy the threshold requirements necessary to obtain post-conviction DNA testing.Trial Court Opinion, 5/22/19, at 10-11. Upon review of the record and the PCRA court's explanation, we cannot conclude that the trial court's decision was an abuse of discretion. Thus, no relief is due. See Walsh , supra at 1245-55 ("The statutory standard to obtain testing requires more than conjecture or speculation; it demands a prima facie case that the DNA results, if exculpatory, would establish actual innocence").
Appellant's last two claims challenge the lower court's decision to deny Appellant's request for an evidentiary hearing. Appellant's brief at 18-20, 25-27. Specifically, Appellant argues that an evidentiary hearing was necessary in order to determine whether the evidence was available for testing. As discussed above, the lower court concluded that Appellant did not meet his burden of establishing a prima facie case. As such, the lower court explained that a hearing was not necessary because "DNA testing was not required under the law or facts of the case." Trial Court Opinion, 5/22/19, at 15. We agree. Appellant has not met his burden to show that he is entitled to DNA testing. Therefore, the availability or unavailability of the items to test is not relevant and no hearing was needed.
Under the facts and circumstances of the present case, we have no reason to disturb the court's decision to deny Appellant's request for DNA testing. Accordingly, we affirm.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/29/19