173 A.3d 817
Pa. Super. Ct.2017Background
- In 1990 Donna Seaman was sexually assaulted and tortured in her apartment; she was blindfolded during the attack and later identified the attacker by voice as “a John” who had worked in her building. Physical evidence (bedding, rape kit, girdle, lamp cord, hairs, fingernail scrapings) was collected; no usable fingerprints were found.
- At trial (1991) two forensic odontologists testified to a degree of dental certainty that Kunco’s dentition matched a bite mark on Seaman’s shoulder; there was no DNA testing of most items at that time. Seaman also gave a voice identification and a neighbor reported Kunco made a comment about “fruits and vegetables.”
- Kunco presented alibi evidence (girlfriend and landlord corroboration). He was convicted of rape and other offenses and sentenced to 45–90 years; convictions were affirmed on direct appeal.
- Post-conviction developments: 2009 DNA testing excluded Kunco as source of DNA on the lamp cord. In 2016 Kunco sought DNA testing under 42 Pa.C.S. § 9543.1 on the blanket, rape kit, girdle, and underwear; the DA located the blanket in 2015. The odontologists who testified in 1991 submitted affidavits recanting or limiting their prior certainty based on revised ABFO guidelines.
- PCRA court ordered DNA testing of the blanket, rape kit, and underwear/girdle and deferred ruling on the unrelated PCRA petition. The Commonwealth appealed the DNA-order. The appellate court affirms the order granting DNA testing.
Issues
| Issue | Kunco’s Argument | Commonwealth’s Argument | Held |
|---|---|---|---|
| Whether Kunco presented a prima facie case of actual innocence entitling him to DNA testing under 42 Pa.C.S. § 9543.1 | Exculpatory DNA, if found on specified items, combined with recantation/weakening of bite-mark evidence and prior exclusion on lamp cord, creates a reasonable possibility that no reasonable juror would convict | Record evidence (voice ID, bite-mark testimony, circumstantial items) remains sufficient; new ABFO guidelines are a new opinion, not new evidence | Court: Kunco met prima facie standard; DNA testing ordered because exculpatory results could make it more likely than not no reasonable juror would convict (Schlup standard) |
| Whether the court applied the correct standard for “actual innocence” (Schlup reasonable-probability test) | Schlup standard applies: must show new evidence would make it more likely than not that no reasonable juror would convict | Argued Superior Court precedent (In re Payne) and statutory language require different reading; urged narrower standard | Court: Applied Schlup (reasonable probability) consistent with prior Pa. precedent (Conway) and found it appropriate here |
| Whether bite-mark evidence still supports conviction given new ABFO guidelines and recantation affidavits | Bite-mark testimony has been substantially undermined: original experts now limit or withdraw opinions and ABFO guidance and new experts disfavor comparison from the photographs | Bite-mark evidence at trial was strong; Commonwealth emphasized voice ID and other trial evidence | Court: Bite-mark evidence deemed highly problematic now; its weakening supports ordering DNA testing when combined with other frailties in Commonwealth’s case |
| Whether PCRA court erred reserving decision on unrelated PCRA relief until after DNA results | Kunco sought testing first; PCRA court’s deferral is procedurally proper to avoid adjudicating relief before results | Commonwealth contended it was error to condition unrelated relief on DNA results | Court: Declined to decide now as premature; remand for proceedings after DNA results |
Key Cases Cited
- Schlup v. Delo, 513 U.S. 298 (1995) (standard for actual innocence: newly discovered evidence must make it more likely than not that no reasonable juror would find guilt beyond a reasonable doubt)
- Commonwealth v. Conway, 14 A.3d 101 (Pa. Super. 2011) (standards of review for PCRA DNA motions and application of Schlup)
- Commonwealth v. Scarborough, 64 A.3d 602 (Pa. 2013) (order granting DNA testing under § 9543.1 is final and appealable)
- In re Payne, 129 A.3d 546 (Pa. Super. 2015) (addressed standards for post-conviction claims; discussed by parties)
- Commonwealth v. Walsh, 125 A.3d 1248 (Pa. Super. 2015) (appellate affirmation of PCRA court possible on alternative grounds)
- Commonwealth v. Heilman, 867 A.2d 542 (Pa. Super. 2005) (absence of DNA is not dispositive where other evidence is overwhelming)
- Commonwealth v. Williams, 35 A.3d 44 (Pa. Super. 2011) (denial of DNA testing where record contained overwhelming evidence of guilt)