J-S60025-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SHAYNE PATRICK FLOOD 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1963 MDA 2017

Appeal from the Order Entered November 29, 2017

In the Court of Common Pleas of Bradford County Criminal Division at 

No(s): CP-08-CR-0001997-1983

BEFORE: SHOGAN, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 14, 2018

Appellant Shayne Patrick Flood appeals pro se from the order denying 

his motion for DNA testing pursuant to Section 9543.1 of the Post Conviction 

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant argues that the court 

abused its discretion in denying his motion because the results of the 

requested DNA test would purportedly establish his absence from the crime 

scene and, in turn, his innocence. We affirm.

On September 7, 1983, a jury convicted Appellant of second-degree

murder, robbery, and several related felonies in connection with the 1979 

killing of Leslie Parker, Sr. (Victim). Appellant was subsequently sentenced to 

a term of life imprisonment.

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* Retired Senior Judge assigned to the Superior Court.
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Thirty-four years later, Appellant filed a motion for DNA testing of the 

murder scene, which was docketed by the court on September 6, 2017. See

Appellant’s Mot. for DNA Testing, 9/6/17. Appellant argued that a DNA test 

would establish that an unknown assailant was present at the scene of the 

murder. Id. at 2. Additionally, Appellant claimed that the test would 

exonerate him from the murder, as it would prove that he was not at the scene

and “was not one of the assailants that . . . confront[ed], assault[ed], and 

struggle[d] with [Victim].” Id. at 6.

On November 29, 2017, the PCRA court denied Appellant’s motion, 

stating:

1. While DNA theoretically could establish that one or more 

individuals other than [Appellant] and his co-defendant were 

present at the scene of the murder, such evidence would not

also establish that [Appellant] was not there.

2. A motion for post-conviction DNA testing must plead a prima 

facie case that DNA testing would establish the “actual 

innocence” of the applicant. 42 Pa.C.S.A. § 9543 

1(c)(3)(ii)(A).

3. The absence of DNA proves nothing.

PCRA Ct. Order, 11/29/17.

The PCRA court docketed Appellant’s timely notice of appeal on 

December 19, 2017. On January 10, 2018, the PCRA court ordered Appellant 

to file a concise statement pursuant to Pa.R.A.P. 1925. Appellant’s statement 

was docketed on January 25, 2018. On June 28, 2018, the PCRA court entered 

its 1925(a) opinion.
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Appellant’s sole question on appeal is, “[d]id the [PCRA] court abuse its 

discretion when it denied [Appellant’s] motion for DNA testing?” Appellant’s 

Brief at 7 (full capitalization omitted). In support, he argues that DNA testing 

would establish that he was “not one of the individuals who struggled with the 

victim during the robbery and eventual[ly] murder[ed] the victim.” Id. at 13. 

He claims that “[t]he DNA tests would have proved negative regarding the 

Appellant, but would have produced the DNA of a previously unknown 

assailant.” Id.

We note that post-conviction DNA testing falls under the PCRA,1 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.” Commonwealth v. Conway, 14 A.3d 101, 108 (Pa. 

Super. 2011) (internal quotation marks, brackets, and citation omitted).

To obtain post-conviction DNA testing under the PCRA, a petitioner must 

prove the following:

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.

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1

It is well settled that a request for DNA testing under Section 9543.1 is not 

subject to the PCRA time bar. See Commonwealth v. Williams, 35 A.3d 

44, 50 (Pa. Super. 2011).
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42 Pa.C.S. § 9543.1(a)(2) (emphasis added).

Additionally, an individual seeking relief under this statute must 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 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[.]

42 Pa.C.S. § 9543.1(c)(3)(i)-(ii)(A).

Moreover, we note that

[s]ignificantly, in DNA testing cases, “an absence of evidence is 

not evidence of absence.” Commonwealth v. Heilman, 867 

A.2d 542, 547 (Pa. Super. 2005). See also [Commonwealth v. 

Williams, 35 A.3d 44 (Pa. Super. 2011)] (affirming trial court’s 

denial of DNA testing where appellant failed to meet threshold 

requirements for DNA testing, under Section 9543.1(a)(2), and 

did not demonstrate prima facie case of “actual innocence”; even 

if appellant’s DNA were not found on hat/wig, record contained 

overwhelming evidence of appellant’s guilt including three 

unshakable eyewitnesses, appellant’s confession, and appellant’s 

access to weapon used in crimes); Commonwealth v. Smith, 

889 A.2d 582 (Pa. Super. 2005), appeal denied, 588 Pa. 769, 905 

A.2d 500 (2006) (affirming denial of request for post-conviction 

DNA testing where absence of appellant’s DNA from victim’s 

fingernails would not establish appellant’s innocence of victim’s 

murder; nothing in record supported appellant’s claim that victim 

would have scratched her assailant leaving DNA evidence under 

her fingernails).

Commonwealth v. Walsh, 125 A.3d 1248, 1255 (Pa. Super. 2015).
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Initially, we note that because (1) Appellant’s case went to verdict 

before January 1, 1995, and (2) trial counsel did not seek DNA testing at the 

time of trial, Appellant meets the threshold requirement set forth in Section 

9543.1(a)(2). See 42 Pa.C.S. § 9543.1(a)(2). Therefore, we next determine 

whether Appellant presented a prima facie case that the testing would produce 

exculpatory evidence proving his actual innocence. See 42 Pa.C.S. § 

9543.1(c)(3)(ii)(A).

By way of background, the trial court explained:

At some point in time, it was decided by Dorothy Boettcher and 

Robert Wheeler that they would try to steal from [Victim], since 

he carried large amounts of money and had drugs in his home. 

However, a problem developed because [Victim] knew Wheeler 

and would be able to identify him. [Dorothy Boettcher]’s exhusband, Barry Boettcher, [(co-defendant Boettcher)] was 

contacted in Wisconsin and he agreed to come to Pennsylvania to 

“rip-off” [Victim]. When [co-defendant Boettcher] arrived from 

Wisconsin in early October, 1979, [Appellant] was with him. 

[Appellant] and [co-defendant Boettcher] stayed at the home of 

Wheeler and Dorothy Boettcher. [Co-defendant Boettcher] and 

[Appellant] had one gun when they arrived from Wisconsin, a .38 

caliber pistol belonging to [Appellant]. Upon arriving in 

Pennsylvania, [co-defendant Boettcher] accompanied Dorothy 

Boettcher to a Sporting Goods Store to purchase another weapon, 

a shotgun. This purchase was made in contemplation of the crime 

against [Victim].

Trial Ct. Op., 5/21/84, at 3.

At trial, Dorothy Boettcher testified that 

on the night before the body was found, [Appellant] and [codefendant Boettcher] entered the residence of [Victim], after 

[Dorothy Boettcher] had arrived in Towanda following a drive from 

Williamsport, Pennsylvania, with [Appellant] and [co-defendant

Boettcher]. She testified that, after [Appellant] and [the co-
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defendant] left the car to enter [Victim’s] house, she remained in 

the car and heard what she described as a gun shot immediately 

followed by a gun blast. She testified further that approximately 

three to five minutes later [Appellant and co-defendant Boettcher]

came sliding down an embankment and quickly got into the car. 

[She also] testified that [Appellant] was carrying a shotgun and 

that [co-defendant Boettcher] had a .38 caliber pistol in his 

possession[.]

Mrs. Boettcher testified further that in response to a statement by 

[the co-defendant], [Appellant] asked [co-defendant Boettcher] 

what took him so long to fire and [co-defendant Boettcher], as a 

reply, asked [Appellant] what took him ([Appellant]) so long to 

react. [Appellant] replied that he reacted “as fast as he could, 

that he fired the gun as soon as he felt necessary that it was to 

do so.”

Mrs. Boettcher testified that as she was driving the car back to 

Williamsport a short time later on the same evening, [Appellant]

had a wallet with him. [Appellant] stated that the wallet was

[Victim’s] and that it contained identification, a credit card and 

some cash. [Appellant] counted the cash and stated that there 

was approximately $1,400.00.

Id. at 4-6 (record citations omitted). Therefore, the testimony at trial 

established that Appellant and co-defendant Boettcher robbed Victim and 

during the commission of that robbery, Victim was murdered. See id. at 5-

7.

Instantly, as noted above, the jury found that Appellant and his codefendant robbed and murdered Victim. See id. We have carefully reviewed 

the entire record and the parties’ briefs, and agree with the PCRA court’s 

conclusion that “the presence of DNA from other, unidentified third parties, 

even if coupled with the absence of Appellant’s DNA would not exculpate 

Appellant,” and that “[t]he absence of DNA evidence would mean only that 

the police did not find Appellant’s DNA at the scene.” PCRA Ct. Op., 6/28/18, 
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at 1; see Walsh, 125 A.3d at 1255. Moreover, even if the results of the 

requested DNA test positively identified another individual’s DNA, Appellant 

did not explain how that would exonerate him from his crimes.

2

 See Walsh, 

125 A.3d at 1252. We agree with the PCRA court that Appellant has failed to 

meet his prima facie burden under Section 9543.1, and thus, the PCRA court 

did not err in denying his motion for post-conviction DNA testing. Accordingly, 

we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/14/2018

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2 To the extent Appellant argues that if he were one of the assailants, then his 

DNA would be at the crime scene because there was a “violent struggle” 

between Victim and his assailants, we find no support in the record for this 

contention. See Appellant’s Mot. for DNA Testing, 9/6/17, at 2; see Walsh, 

125 A.3d at 1255. The record does not indicate that any type of struggle 

occurred prior to Victim’s murder.