Commonwealth v. WilliamsCommonwealth v. Williams
Lead Opinion
On December 20, 1995, appellant entered the apartment of the victim, a friend of his girlfriend. Appellant strapped the victim to the bed, twice raped her, and forced his penis into her mouth. Appellant raped the victim a third time and placed her in a bathtub of cold water. He tied her to the bed again while he wiped his fingerprints from various areas of the apartment. Appellant returned to the bedroom and raped the victim a fourth time.
Appellant then placed his gun to the victim’s head and pulled the trigger several times; mercifully, the gun would not fire. Frustrated, appellant slashed the victim’s neck three times. She feigned death until she heard appellant leave, then freed herself and ran down the street, still bleeding. She obtained help from a bystander, and identified appellant as her attacker. The victim later repeated this identification to the police and remained steadfast in her identification of appellant throughout the trial.
At trial, the Commonwealth presented the above facts, including testimony from the victim and the bystander. Investigating officers and forensic specialists testified about their investigation, as well as to the evidence from the victim’s person and her apartment. No fingerprints were recovered, no other physical evidence directly implicated appellant, and appellant testified that on the morning of the attack he was in another area looking for work shoveling snow. His former girlfriend placed him at a different location 15 minutes after the attack. Appellant also offered evidence that the victim had previously been threatened with a razor by her boyfriend, but refused to report the incident.
The jury convicted appellant of rape, involuntary deviate sexual intercourse, criminal attempt homicide, indecent assault, and unlawful restraint. Appellant was sentenced to an aggregate 35 to 85 years imprisonment. The Superior Court affirmed the judgment of sentence, Commonwealth v. Williams, No. 596 HBG 1997, unpublished memorandum (Pa.Super. filed May 21, 1998), and this Court denied review. Commonwealth v. Williams, No. 488 M.D. Alloc. Dkt.1998 (Pa. filed December 1, 1998).
On March 5, 1999, appellant filed a pro se petition, amended by counsel, pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, alleging trial counsel’s ineffectiveness
On July 10, 2002, the PCRA was amended to allow requests for post-conviction forensic DNA testing:
An individual convicted of a criminal offense in a court of this Commonwealth and serving a term of imprisonment ... 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 investigationor prosecution that resulted in the judgment of conviction.
42 Pa.C.S § 9543.1(a)(1). To obtain post-conviction DNA testing, an applicant must prove:
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.
Id., § 9543.1(a)(2). The Commonwealth contends appellant’s ineffectiveness claim is moot because he can obtain relief under § 9543.1(a)(1). The Commonwealth maintains that if appellant files such an application and the evidence is available for testing, the. Commonwealth will not oppose it. Appellant, however, does not meet the requirements of § 9543.1(a)(2): the technology existed at the time of his trial, the verdict was rendered after January 1, 1995, and the court never refused funds for the testing.
The PCRA court dismissed the petition without a hearing, finding “[tjhere was no evidentiary merit to conducting a costly DNA test in order to further prove the identity of [appellant] as [the] attacker.” PCRA Court Opinion, 7/21/99, at 4. Affirming in a memorandum decision, the Superior Court noted that while certain cases may warrant a new trial because of the failure to obtain DNA evidence, it is because DNA involves challenging the issue of identification. See, e.g., Commonwealth v. Robinson,
We cannot agree with this analysis; appellant presented an alibi defense, which by its nature challenges identification. Evidence appellant was not present at the scene of the crime inherently signifies the identification of him as present at the scene must be wrong, whether he attacks the victim’s testimony directly or not. The jury’s acceptance of credible evidence contrary to his alibi does not mean he did not challenge the identification. His ineffectiveness claim must be addressed on its merits.
To prove counsel’s ineffectiveness, appellant must demonstrate: (1) the underlying claim is of arguable merit; (2) counsel’s performance lacked a reasonable basis; and (3) the ineffectiveness of counsel caused him prejudice. Commonwealth v. Pierce,
In determining whether counsel’s performance lacked a reasonable basis, “a
Appellant asserts his claim is meritorious in light of the Superior Court’s decision in Commonwealth v. Brison,
As noted above, identification was at issue at trial; therefore, counsel’s failure to pursue evidence which may have challenged the victim’s identification of appellant presents an issue of arguable merit. Thus, the first prong of the ineffectiveness test has been met, and we turn to the reasonable basis inquiry.
A chosen strategy will not be found to have lacked a reasonable basis unless it is proven “that an alternative not chosen offered a potential for success substantially greater than the course actually pursued.” Commonwealth v. Howard,
It is easy to say that faffing to pursue exculpatory evidence is ineffectiveness, but this presumes the evidence will indeed be exculpatory. If counsel were ■ sure the accused’s DNA would not be revealed in any relevant samples from the victim or scene, certainly testing would give exculpatory results and should be sought. However, the client’s mere claim of innocence or alibi does not always settle the question; effectiveness of counsel is not dependent on accepting the candor of the client. Testing that shows the DNA matches suddenly makes a conviction — one that might have been avoided or less than certain — a sure thing.
That is, subjecting a client to DNA testing is very likely to settle whether there will be a conviction or not. It can demolish the prosecution’s case, but it can cast it in concrete as well. It can eliminate the potential of a “not guilty” verdict based on an alibi, or on reasonable doubt, and the less compelling the Commonwealth’s case, the less compelling is the desire for pre-trial DNA testing. Not seeking testing that has the potential to convict a client may be a very reasonable strategy; strategy is not measured through hindsight against alternatives not pursued, so long as trial counsel had a reasonable basis for the decision made. See id.
Because this question cannot readily be answered from the record, remand for an evidentiary hearing is appropriate, and indeed necessary, in order to address the reasonable basis prong. See, e.g.,Commonwealth v. McGill,
Furthermore, the prejudice inquiry of the ineffectiveness test presents problems in this situation. Notwithstanding appellant’s assertion regarding the merit of his claim, appellant admits he is unable to prove prejudice without the results of the DNA test. See Appellant’s Brief, at 10, 21. Thus, a conundrum exists: appellant cannot prove prejudice without the test, and without showing prejudice he cannot get the test.
Accordingly, the order of the PCRA court is reversed, and the case is remanded to the PCRA court for an evidentiary hearing to determine whether trial counsel had a reasonable basis for not seeking DNA testing.
Order reversed; case remanded. Jurisdiction relinquished.
Notes
. Appellant did not plead appellate counsel's ineffectiveness in his PCRA petition, because trial and appellate counsel were same person. See Commonwealth v. Frankhouser,
. Appellant asserted for the first time at oral argument that a colloquy should be required before a defendant can knowingly and intelligently waive DNA testing, but neither raises nor addresses this in his brief. Therefore, we will not address this suggestion.
. In Brison, the appellant challenged on direct appeal his conviction of rape and related charges, claiming he was denied a fair trial by the Commonwealth’s failure to comply with his request for DNA testing. The court noted the wide acceptance and admissibility of DNA test results and the ability of the test to accurately inculpate or exclude the appellant as the perpetrator. Id., at 423-25.
. The Defender Association of Philadelphia, as amicus curiae, asseits appellant is entitled to post-conviction DNA testing to establish prejudice because only if the test is performed, with exculpatory results, can prejudice be established. Amicus argues appellant is entitled to a “freestanding” request for post-conviction DNA testing. See Amicus' Brief, at 42. Appellant is not entitled to a “free-standing” post-conviction DNA test because he was not convicted of a crime prior to the existence of, or general availability of, DNA testing. In addition, this Court need not reach the issue of "free-standing” DNA requests because appellant's post-conviction DNA request was not “free-standing”; appellant's request was based on an ineffective assistance of counsel claim. Furthermore, the statute limits post-trial testing for very salient reasons: If post-trial testing were routinely available, few would seek pretrial testing; it would behoove counsel to go to trial without testing, then seek DNA testing if convicted, there being nothing but an up-side to a convicted client. DNA testing that is available cannot become after-discovered evidence, and cannot be treated as a second chance lottery ticket. Creating a rule that encourages such gamesmanship is not áppropriate.
. Appellant also argues trial counsel’s failure to obtain DNA testing violated his confrontation and discovery rights under Article 1, § 9 of the Pennsylvania Constitution. Appellant did not raise these issues in his PCRA petition, so they are waived. Commonwealth v. Wallace,
Concurrence Opinion
concurring.
I agree with the majority that a remand is necessary to ascertain whether counsel had a reasonable basis for not seeking DNA testing. However, I write separately to set forth a different paradigm for resolving the claim raised by Appellant.
The three-prong test for determining whether counsel rendered ineffective assistance is well settled. To establish a claim of ineffective assistance of counsel, Appellant must prove that: (1) the underlying claim (entitlement to DNA testing) has arguable merit; (2) there was no reasonable basis for the inaction of his trial counsel; and (3) he suffered prejudice as a result, which means that there is a reasonable probability that the outcome of the proceedings would have been different had counsel acted in the manner Appellant alleges he should have. Commonwealth v. Paddy,
Commonwealth v. Brison,
Appellant must next demonstrate that he has been prejudiced by counsel’s failure to request DNA testing. Where the above pre-requisites are met, a post-conviction petitioner has demonstrated a reasonable probability that the outcome of the proceeding
The analysis that I set forth today is consistent with this Court’s requirement that all three prongs of the test for establishing ineffective assistance of counsel be met before relief is granted. Commonwealth v. Malloy,
However, as previously stated, I agree with the majority that a remand is necessary to determine whether counsel had a reasonable basis for failing to request DNA testing.
Concurrence Opinion
concurring.
I support the majority’s decision to remand for an evidentiary hearing on Appellant’s claim that his trial counsel rendered deficient stewardship by failing to secure DNA testing as Appellant avers that he requested. I respectfully disagree, however, with the majority’s determination that the arguable merit of such claim is established on the present record, see Majority Opinion, slip op. at 6, since there has been no evidentiary hearing as of yet, and I believe that fact finding is implicated relative to the arguable-merit assessment, particularly in the context of Appellant’s allegation that he asked trial counsel to secure DNA testing. I have previously expressed my position that the courts should more affirmatively and consistently distinguish between situations in which the appeal proceeds from the dismissal of a claim without an evidentiary hearing (in which case the relevant inquiry generally should be whether the factual averments and supporting materials, if believed, would establish a cause for relief, see Pa.R.Crim.P. 908(A)(2)), and actual merits review of a fully-developed post-conviction record.