173 A.3d 817
Pa. Super. Ct.2017Background
- In 1990 Donna Seaman was violently assaulted and tortured in her apartment; she was blindfolded during the attack and later described hearing the assailant’s voice and seeing a tall, bearded man with a cap.
- Physical evidence collected included a lamp cord, bedding (white blanket and fitted sheet), red hairs from the bedding, a girdle used as a blindfold, Seaman’s clothing, and a hospital rape kit; no usable fingerprints were recovered.
- At trial (1991) two forensic odontologists testified to a dental-certainty match of a bite mark on Seaman’s shoulder to Kunco; there was no measured scale on the photos and the injury had healed when examined months later.
- Kunco presented an alibi (girlfriend and newborn baby; landlord phone note corroboration). Jury convicted Kunco of rape and related offenses; sentence 45–90 years; convictions affirmed on direct appeal.
- Subsequent DNA testing (2009) excluded Kunco as the source of DNA on the lamp cord. In 2016 bite-mark experts recanted/modified their trial opinions based on updated ABFO guidance; new experts said the mark could not reliably be categorized or compared.
- Kunco sought post-conviction DNA testing under 42 Pa.C.S. § 9543.1 on the blanket, rape kit, underwear/girdle, and other items; the PCRA court ordered testing. Commonwealth appealed.
Issues
| Issue | Kunco's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Whether Kunco made a prima facie showing of actual innocence entitling him to DNA testing under § 9543.1 | DNA testing could produce exculpatory results that, together with recanted bite-mark evidence and prior exclusion on lamp cord, make it more likely than not no reasonable juror would convict | Trial evidence (bite mark, voice ID, conduct remark) sufficed; Kunco failed to show a reasonable possibility that exculpatory DNA would establish actual innocence | Affirmed: PCRA court did not err — DNA testing ordered because exculpatory results could make acquittal more likely than not |
| Proper legal standard for “actual innocence” under § 9543.1 | Apply Schlup standard: new evidence must make it more likely than not that no reasonable juror would convict | Argued for a different or narrower reading (relied on trial record; challenged reliance on changed scientific opinion) | Court applied Schlup (reasonable probability standard) and agreed it governs § 9543.1 prima facie showing |
| Whether bite-mark evidence remains reliable and whether experts’ recantation is new evidence | New ABFO guidelines and expert recantations materially undermine the bite-mark identification and render the trial odontological evidence unreliable | Contended that guideline changes are new opinion, not new fact, and trial evidence still probative | Court credited recantation/updated ABFO guidance as significantly weakening the bite-mark evidence, supporting the need for DNA testing |
| Whether the PCRA court erred by reserving ruling on unrelated PCRA petition until after DNA results | Kunco sought deferral so DNA results inform PCRA relief request | Commonwealth argued it was improper to decide unrelated PCRA claims based on DNA testing/results | Court declined to decide now as premature; remanded for testing and later resolution on related PCRA claims |
Key Cases Cited
- Commonwealth v. Conway, 14 A.3d 101 (Pa. Super. 2011) (standard of review for PCRA DNA testing orders and reference to prima facie requirement)
- Schlup v. Delo, 513 U.S. 298 (1995) (actual innocence standard: new evidence must make it more likely than not no reasonable juror would convict)
- Commonwealth v. Scarborough, 64 A.3d 602 (Pa. 2013) (order granting DNA testing under § 9543.1 is final and appealable)
- Commonwealth v. Walsh, 125 A.3d 1248 (Pa. Super. 2015) (appellate courts may affirm PCRA DNA orders on any supporting basis)
- 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 proper where record contains overwhelming evidence of guilt)