Opinion
J-S42026-19 No. 1359 EDA 2018
10-18-2019
COMMONWEALTH OF PENNSYLVANIA v. GARY CLAY, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered April 27, 2018, in the Court of Common Pleas of Philadelphia County, Criminal Division at No(s): CP-51-CR-0118521-1980. BEFORE: OTT, J., KUNSELMAN, J., and COLINS, J. MEMORANDUM BY KUNSELMAN, J.:
Retired Senior Judge assigned to the Superior Court.
Gary Clay appeals, pro se, from the order denying his motion for DNA testing filed pursuant to Section 9543.1 of the Post Conviction Relief Act ("PCRA"). 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court summarized the relevant facts as follows:
At trial, the Commonwealth presented the testimony of Philadelphia police detectives Francis Selgrath and Anthony Bonsera, Philadelphia police officer Kevin Corr, and [the victim]. [Clay] presented the testimony of Mary McNeill Greenwell and Carole Wardlaw. Viewed in the light most favorable to the Commonwealth as verdict winner, the evidence established the following.
The victim . . . was sleeping in her home located at 102 West Johnson Street in Philadelphia, during the early morning hours of September 3, 1979. No one else was in the home with her at the time. Around 6:00 A.M., [the
victim] was awakened by a squeaking noise from the floor. She then heard another noise, and saw [Clay] standing in her bedroom doorway. [The victim] recognized [Clay] as an employee of a thrift store that she had visited earlier that week. After [the victim] had purchased some fire place tools at the store, [Clay] had dropped the purchases off at [the victim's] home.PCRA Court Opinion, 7/31/18, at 3-4 (citations omitted).
When [the victim] saw [Clay] in the doorway, she immediately screamed. [Clay] then jumped on top of her and began to punch her in the face and head. In order to silence [the victim], [Clay] stuck his fingers down her throat, and later gagged her. [Clay] also tied [the victim's] hands behind her back, tied her feet, and placed a pillow case over her head. He then vaginally penetrated her with his penis. After approximately twenty seconds, [Clay] got up and rummaged around [the victim's] room and then left. Following the incident, [the victim] was interviewed by detectives and identified [Clay] as her attacker [from] a photo array.
The PCRA court further summarized the procedural history as follows:
On June 26, 1981, following a jury trial before the Honorable Lynne Abraham, [Clay] was convicted of rape, burglary, aggravated assault, and robbery. On May 13, 1982, the Court imposed an aggregate sentence of twenty-five to fifty years of incarceration. On May 25, 1984, the Superior Court affirmed [Clay's] judgment of sentence, and on October 12, 1984, [our] Supreme Court denied allocatur.
On August 4, 2009 [Clay] filed a pro se [PCRA petition], in which he claimed that the Court's sentence was illegal and an abuse of discretion. As Judge Abraham had retired from the bench, the PCRA matter was reassigned to the undersigned[.] On May 27, 2011, pursuant to Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988), PCRA counsel filed a motion to withdraw as counsel and a letter stating that there was no merit to [Clay's] claims for collateral relief. On July 28, 2011, the Court dismissed [Clay's] petition. The Superior Court affirmed the dismissal of [Clay's] PCRA petition on August 7, 2012.
On November 15, 2016, [Clay] filed a pro se motion for post-conviction DNA testing pursuant to 42 Pa.C.S. § 9543.1 of the PCRA. In particular, [Clay] requested DNA testing of the victim's clothing, rape kit, and other items. On March 2, 2017, the Commonwealth responded to [Clay's] motion, claiming that the requested DNA evidence was unavailable because it has been discarded pursuant to established protocol. However, the Commonwealth also stated in its response that the Philadelphia Police Department's Evidence Custodian, Lieutenant Thomas Macartney, was continuing to search for physical evidence in the case.PCRA Court Opinion, 7/31/18, at 1-2 (citations omitted). This appeal followed. Both Clay and the PCRA court have complied with Pa.R.A.P. 1925.
On March 21, 2017, [Clay] filed a motion for appointment of counsel, which the Court granted on April 25, 2017[.] The Court ordered an evidentiary hearing regarding the availability of DNA evidence, which was conducted on September 15, 2017. At the conclusion of that hearing, [Clay's] counsel requested an opportunity to conduct further investigation, which the Court granted. The hearing was resumed on April 27, 2018. Because counsel's investigation failed to uncover any new material, the hearing concluded without the submission of any additional evidence. The Court found that no DNA evidence was available for testing, and therefore denied [Clay's] motion. In addition, after conducting a hearing pursuant to Commonwealth v. Grazier , 713 A.2d 81, 82 (Pa. 1998), the Court granted [Clay's] motion to proceed pro se on appeal.
Clay now raises the following issues on appeal, which we reproduce verbatim:
A. PCRA Court Has "Err" For failure To grant [Clay's] Application To Withdraw PCRA Counsel and Be Allowed To Proceed Pro -Se Timely At The Evidentiary Hearing To [Cross] Examine Lieutenant Thomas Macartney?
B. PCRA Court Has "Err" For failure To Allow [Clay] To Testify Once PCRA Court Was Placed On Notice That
[Clay] wishes To Testify Which Can Be supported By The Record?Clay's Brief at 2.
C. PCRA Court Has "Err" For [failure] To allow [Clay] To Call Relevant Witnesses That Had Pertinent Information Regarding Samples And Other Items identified Within His Motion For forensic DNA Testing That Were Destroyed?
D. PCRA Counsel Has "Err["] For Failure To rule on application For a Bail After Finding of Guilt Knowing That The Commonwealth Destroyed His DNA Evidence?
E. Ineffective Assistance Of PCRA Counsel For Failure To Produce Evidence That Were In PCRA Counsel Possession Of Documents At The Evidentiary Hearing Relating To Ronald Castille, a Former District Attorney Approved To have Samples and Other Items Identified Within [Clay's] Motion For Forensic DNA Testing Be Destroyed, Without [Clay's] Consent. The Former District Attorney Ronald Castille and Police Department Held Ex Parte Proceedings With Judge Hirst That Granted their Motion For Destruction Of Property Without Defense Logging Any Objection?
Despite our granting two extensions of time, the Commonwealth has failed to file a brief in this appeal.
We review an order denying a motion for post-conviction DNA testing as follows:
Generally, the [PCRA] 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) (citations omitted).
Section 9543.1, in pertinent part, reads as follows:
§ 9543.1. Postconviction DNA testing
(a) Motion.—
(1) An individual convicted of a criminal offense in a court of this Commonwealth and serving a term of imprisonment or awaiting execution because of a sentence of death may apply by making a written motion to the sentencing court 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 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.
* * *
(c) Requirements.—In any motion under subsection (a), under penalty of perjury, the applicant shall:
(1)(i) specify the evidence to be tested;
(ii) state that the applicant consents to provide samples of bodily fluid for use in the DNA testing; and
(iii) acknowledge that the applicant understands that, if the motion is granted, any data obtained from any DNA samples or test results may be entered into law enforcement databases, may be used in the investigation of other crimes
and may be used as evidence against the applicant in other cases.
(2)(i) assert the applicant's actual innocence of the offense for which the applicant was convicted[.]
* * *
(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.—
(1) Except as provided in paragraph (2), the court shall order the testing requested in a motion under subsection (a) under reasonable conditions designed to preserve the integrity of the evidence and the testing process upon a determination, after review of the record of the applicant's trial, that the:
(1) requirements of subsection (c) have been met;
(ii) evidence to be tested has been subject to a chain of custody sufficient to establish that it has not been altered in any material respect; and
(iii) 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.
(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 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.A. § 9543.1.
We note that the Pennsylvania legislature rewrote this section, effective December 24, 2018. See Act-2018-147, § 1.
In addition to the above requirements, the PCRA petitioner may request forensic DNA testing so long as that evidence is available for testing as of the date of the motion. See , e.g., Commonwealth v. McLaughlin , 835 A2d 747, 750-51 (Pa. Super. 2003); Commonwealth v. Robinson , 682 A.2d 831 (Pa. Super. 1996). The PCRA court's denial of Clay's motion for DNA testing was based upon its determination, after two hearings, that no evidence was available for DNA testing. See PCRA Court Opinion, 7/31/18, at 6.
The current version of Section 9543.1 now expressly requires that the DNA evidence exist at the time the motion is filed. See 42 Pa.C.S.A. § 9543.1(a) (2) (providing "[t]he evidence shall be available for testing as of the date of the motion").
In his issues raised on appeal, Clay essentially challenges this determination. After careful review, we conclude that the Honorable Glenn B. Bronson has prepared a thorough and well-reasoned opinion that correctly disposes of each of Clay's claims either because the claim is refuted by the record or otherwise without merit. We therefore adopt Judge Bronson's July 31, 2018 opinion as our own in disposing of the present appeal. See id. at 6-11 (concluding: a) Clay never requested to proceed pro se during Lieutenant Macartney's testimony at the September 15, 2017 hearing; b) the PCRA court never denied Clay the opportunity to testify; c) Clay did submit a letter to the court in which he asked to call twelve witnesses, but counsel represented him at the time and was free to determine that these witnesses were irrelevant to Clay's motion for DNA testing; d) the PCRA court in fact denied Clay's motion for bail; and e) Clay's claim of PCRA counsel's ineffectiveness lacks arguable merit since the documents to which Clay referred to were cumulative of evidence introduced at the evidentiary hearing that established that property was destroyed "pursuant to ex parte applications from government officials to a judge, which resulted in a court order approving the destruction").
The parties are directed to attach a copy of the trial court opinion to this memorandum in the event of further proceedings. --------
Order affirmed.
Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/18/19
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