J-S19024-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BENJAMIN CHAPMAN

Appellant No. 2286 EDA 2014

Appeal from the Order Dated May 29, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0804241-1993

BEFORE: STABILE, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.: FILED APRIL 14, 2015

The Commonwealth appeals from the order of the Philadelphia County 

Court of Common Pleas granting Benjamin Chapman’s motion for postconviction DNA testing. We affirm.

This Court summarized the facts as follows:

[T]he evidence adduced at this trial was that on May 26, 

1993, Eunice Bell, a neighbor of the decedent, Carol Davis 

[the “victim”], saw the [victim] and [Chapman], whom 

she knew to have a steady relationship with the [victim], 

walking together toward the area where the [victim’s] 

body was discovered shortly thereafter. Celeste Brown, Ms. 

Bell’s daughter, heard a hostile conversation between the 

[victim] and [Chapman] shortly before she heard the shot 

and found [victim’s] body in the alleyway. Finally, Enika 

Davis, the decedent’s 16-year-old sister, testified that on 

the night of the killing, [Chapman] came to their house, 

that he was angry and spoke of killing someone, that he 

took a gun out of his pants and threatened the [victim] 

with it, that the [victim] said she was going to the store 

and coming right back, that the [victim] and [Chapman] 

left the house together going toward the area from where 
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Enika Davis heard a gunshot and where [the victim] was 

found dead shortly thereafter.

These three witnesses testified that they did not see 

[Chapman] again after the shooting. Furthermore, the 

[victim’s] father testified that although [Chapman] worked 

for him, he also did not see [Chapman] again until after his

arrest some two months later.[1]

Commonwealth v. Chapman, 3981 Phila. 1994 (Pa.Super. filed Dec. 20, 

1995) (quoting trial court opinion). In addition to the above-referenced 

evidence, the victim’s neighbor, Oliver Turner, testified he saw Chapman and 

the victim on the night of her murder at approximately 11:30 or 12:30. 

N.T., 10/31/1994, at 106. However, he later saw the victim speaking with 

another female neighbor; he did not see Chapman. Id. at 107. Further, 

there was a sample of “fresh” type O blood collected from the crime scene. 

Motion for Post-Conviction Collateral Relief, dated May 14, 2003, at Exh. 1-

B.2

____________________________________________

1 The victim’s father also testified that he spoke with Chapman on the 

morning following the murder and asked: “Man, what’s up? Why did you 

kill my daughter?” N.T., 10/31/1994, at 43.

2 Chapman maintains the type O blood sample did not match the victim’s 

blood or his blood. Appellee’s Brief at 11, 14; Exh. G, H, I. His blood type is 

type B. Appellant’s Brief at Exh. I. The Commonwealth merely states that 

Chapman did not provide the victim’s blood type. Appellant’s Brief at 8.
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In 2013, this Court summarized the case’s procedural history on 

appeal from the denial of Chapman’s fourth request for relief pursuant to the 

Post Conviction Relief Act (“PCRA”)3:

On November 2, 1994, a jury found [Chapman] guilty of 

murder of the first degree and possessing an instrument of 

crime for the 1993 shooting death of his former girlfriend. 

On the following day, the trial court sentenced him to a 

term of life imprisonment and a consecutive two and one 

half to five years’ imprisonment. This Court affirmed the 

judgment of sentence on December 20, 1995. 

Commonwealth v. Chapman, 3981 PHL 1994 

(unpublished memorandum) (Pa. Super. Dec. 20, 1995). 

[Chapman] did not file a petition for allowance of appeal in 

the Pennsylvania Supreme Court.

[Chapman], on January 17, 1996, filed a pro se PCRA 

petition, his first. The PCRA court appointed counsel, who 

filed an amended petition. The PCRA court denied the 

petition on June 3, 1997, without an evidentiary hearing. 

This Court affirmed the dismissal of [Chapman’s] first 

PCRA petition on December 7, 1998, and the Pennsylvania 

Supreme Court denied allowance of appeal on April 7, 

1999. Commonwealth v. Chapman, 2764 PHL 1997 

(unpublished memorandum) (Pa. Super. Dec. 7, 1998), 

appeal denied, 737 A.2d. 1223 (Pa. 1999). Thereafter, 

[Chapman] filed a second pro se PCRA petition on March 

29, 2000, which the PCRA court dismissed as untimely 

filed. This Court affirmed, and the Pennsylvania Supreme 

Court denied allowance of appeal. Commonwealth v. 

Chapman, 1529 EDA 2001 (unpublished memorandum) 

(Pa. Super. June 19, 2002), appeal denied, 814 A.2d 675 

(Pa. 2002). [Chapman’s] third PCRA petition was filed pro 

se on April 28, 2003, and dismissed by the court as 

untimely on June 8, 2004. This Court affirmed, and the 

Pennsylvania Supreme Court denied allowance of appeal. 

Commonwealth v. Chapman, 1904 EDA 2004 

____________________________________________

3

 42 Pa.C.S. §§ 9541-9546, et. al.
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(unpublished memorandum) (Pa. Super. Feb. 11, 2005), 

appeal denied 882 A.2d 1004 (Pa. 2005).

[Chapman], on May 3, 2010, filed the instant PCRA 

petition pro se, his fourth, averring that he came into 

possession of newly discovered, exculpatory evidence. The 

PCRA court appointed counsel, who, on March 14, 2011, 

filed an amended petition. The counseled petition 

asserted, in relevant part, that: (1) [Chapman’s] newly 

discovered evidence claim was not time barred; and (2) he 

was entitled to DNA testing under 42 Pa.C.S. § 9543.1. 

Following the filing of a motion to dismiss by the 

Commonwealth, the court issued a Pa.R.Crim.P. 907(1) 

notice of intent to dismiss on May 23, 2012, suggesting 

that [Chapman’s] petition was untimely filed and that his 

issues were previously litigated. Appellant filed a response 

to the notice. The court, on July 2, 2012, dismissed the 

petition. This timely appeal followed. 

Commonwealth v. Chapman, 2103 EDA 2012, at 1-3 (Pa.Super. filed Nov. 

8, 2013) (unpublished memorandum).

This Court affirmed the PCRA court’s denial of Chapman’s newlydiscovered evidence claim, but found the PCRA court erred in finding 

Chapman’s request for DNA testing was previously litigated. Chapman, 

2103 EDA 2012, at 4-10. We, therefore, remanded to the PCRA court for 

consideration of Chapman’s request for post-conviction DNA testing.

On May 29, 2014, the PCRA court conducted a hearing and granted 

Chapman’s request for DNA testing. The Commonwealth filed a timely 

notice of appeal. Both the Commonwealth and the PCRA court complied with 

Pennsylvania Rule of Appellate Procedure 1925.

The Commonwealth raises the following issue on appeal:

Did the lower court err in granting defendant’s motion for 

post-conviction DNA testing where he failed to establish a 
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reasonable possibility that such testing would produce 

exculpatory evidence establishing his actual innocence?

Appellant’s Brief at 2.

This Court has set forth the following standard of review of orders for

post-conviction DNA testing:

Post-conviction DNA testing falls under the aegis of the 

Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa.C.S. 

§§ 9541–9546, and thus, “[o]ur 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.” Moreover, because the 

resolution of this appeal involves statutory construction, 

which involves a pure question of law, we review that 

aspect of the trial court’s decision de novo and our scope 

of review is plenary.

Commonwealth v. Conway, 14 A.3d 101, 108 (Pa. Super. 2011) (citations

omitted).

Pennsylvania’s post-conviction DNA testing statute states, in relevant

part:

(c) Requirements.--In any motion under subsection (a), 

under penalty of perjury, the applicant shall:

. . .

(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.--
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. . .

(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. § 9543.1.

The Commonwealth maintains the PCRA court erred because Chapman 

failed to establish that DNA testing would produce exculpatory evidence 

establishing actual innocence. Appellant’s Brief at 10-17. We disagree.

The “actual innocence” requirement of section 9543.1 “requires that an 

appellant demonstrate that there is a ‘reasonable possibility,’ that ‘favorable 

results of the requested DNA testing would establish the appellant’s actual 

innocence of the crime of conviction.” Commonwealth v. Conway, 14 

A.3d 101, 109 (Pa.Super.2011) (quoting Commonwealth v. Brooks, 875 

A.2d 1141, 1147 (Pa.Super.2005)) (internal footnotes and emphasis 

omitted). “[T]he newly discovered evidence must make it ‘more likely than 

not that no reasonable juror would have found him guilty beyond a 

reasonable doubt.’” Id. (quoting Schlup v. Delo, 513 U.S. 298, 327, 115 

S.Ct. 851, 867, 130 L.Ed.2d 808, 836 (1995)). Therefore, we, as the 

reviewing court, must “make a probabilistic determination about what 

reasonable, properly instructed jurors would do” if presented with the new 

evidence. Id. (quoting Schlup, 513 U.S. at 327). Further, courts must 
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review the “actual innocence of the offense” element by “assuming 

exculpatory results will be obtained from the proposed testing.” Conway, 

14 A.3d at 110.

Relying on Commonwealth v. Smith, 889 A.2d 582 (Pa.Super.2005), 

the Commonwealth maintains the lack of Chapman’s DNA at the crime scene 

is too speculative to warrant DNA testing. Appellant’s Brief at 12-17. In 

Smith, this Court found the trial court properly denied the defendant’s 

request for DNA testing of the victim’s fingernails where the defendant 

claimed the absence of his DNA from underneath the victim’s fingernails 

would prove his innocence. The Court noted there was no evidence to 

establish the victim scratched her assailant. It further noted that “[m]erely 

detecting DNA from another individual on the victim’s fingernails, in the 

absence of any evidence as to how and when that DNA was deposited, would 

not exculpate appellant by pointing to a different assailant.” The Court 

found: “The statute does not contemplate the speculative type of argument 

advanced by appellant; rather it requires a prima facie case that the DNA 

results, if exculpatory, would establish appellant’s actual innocence.” 

In Conway, this Court discussed the holding in Smith, noting:

[T]he defendant [in Smith] had been convicted of killing 

his paramour, and the Commonwealth, during the trial, 

had produced evidence that established (1) that the 

defendant had been apprehended a few hours after the 

victim’s body was found, and his clothes and the knife he 

was carrying “were stained with blood of the same type as 

the victim,” (2) that the defendant and the victim had 

been “involved in an abusive relationship,” (3) that the 

defendant had made prior threats “to kill the victim,” and 
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(4) that “[s]emen found on the victim’s leg matched that 

of [the defendant],” even though he had denied having 

sexual intercourse with the victim on the last night he said 

he saw her. In light of this overwhelming evidence, this 

Court held that the defendant’s post conviction request to 

perform DNA testing of the victim’s fingernail clippings was 

“entirely speculative” and did not constitute a “prima facie”

case warranting court-ordered DNA testing. 

Conway, 14 A.3d at 110-11 (internal footnotes and citations omitted). 

The Commonwealth also relies on the following footnote from Smith, 

maintaining it defeats Appellant’s argument that the DNA results could be 

compared with the national DNA databank:

Appellant attempts to distinguish [Commonwealth v. 

Heilman, 867 A.2d 542 (Pa.Super.2005)][4] by arguing 

that he seeks to compare the DNA profile that may be 

detected on the victim’s fingernails with state and national 

DNA databases to identify the victim’s killer. Far from 

distinguishing Heilman, this argument only adds yet 

another layer of speculation to appellant’s already 

speculative rationale for DNA testing.

Smith, 889 A.2d at 586 n. 6. 

In Conway, this Court clarified the Smith footnote. Conway, 14 

A.3d at 111 (citing Smith, 889 A.2d at 586 n. 6). We explained that this 

footnote did not establish a broad principle that a defendant could never 

seek a comparison to the DNA databank and we found the footnote’s impact 

was confined to the facts of Smith. Id. at 112. The court in Conway

noted:

____________________________________________

4

In Heilman, this Court found the defendant failed to establish a prima 

facie case of actual innocence where he argued the absence of his DNA at 

the crime scene would exonerate him of the homicide.
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The question that we must here confront is whether, in 

this situation, the Pennsylvania DNA testing statute should 

be interpreted in such a way as to prevent the comparison 

of easily obtainable test results with known data banks for 

the purpose of determining the person responsible for the 

crime in question. To pose the question is to provide the 

answer, for in this evolving world of increased DNA data 

collections, and the increased reliance thereon by law 

enforcement agencies, we should not summarily preclude 

defense counsel from using the data compiled in those 

“banks” to argue, in appropriate cases, that such evidence 

establishes the innocence of a person who has been 

charged or convicted of a crime. This is especially so since 

the Act specifically provides for the proactive use of this 

information by the Commonwealth in an effort to find and 

prosecute persons whose identities are revealed by this 

information. Moreover, the stated policy of the General 

Assembly, as provided in the statute that created the 

Pennsylvania DNA data bank, and authorized its

cooperative use with other law enforcement data banks, 

compels such a result. It provides, inter alia:

DNA banks are an important tool in criminal 

investigations, in the exclusion of individuals who are 

the subject of criminal investigations or 

prosecutions[.]

44 Pa.C.S. § 2302(1) (emphasis supplied). Thus, this 

proactive use of available information that is already within 

the control of the Commonwealth is encouraged and even 

mandated by the General Assembly.

To this end, the DNA testing statute, which was passed 

unanimously by the Pennsylvania General Assembly, 

should be regarded as a remedial statute and interpreted 

liberally in favor of the class of citizens who were intended 

to directly benefit therefrom, namely, those wrongly 

convicted of a crime. Such an interpretation is clearly 

supported by the legislative history of the Act, which 

contains the following explicit statement of intent as 

provided by one of the sponsors of the Act, the esteemed 

Senator Stewart J. Greenleaf:

This legislation would provide [DNA] testing and 

provide a payment process for it and a process in 
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which an individual could easily present their case, 

and a judge could then decide whether they would 

be allowed to have the testing or not, and they 

would be allowed to have it if the evidence would 

prove their innocence[.]

* * *

[T]here are occasions when DNA can convincingly 

establish the innocence of an individual. And so we 

will now join 13 other States in this nation that will 

provide for this process and to make sure that we do 

not have anyone in our prisons or on death row who 

is innocent.

Commonwealth of Pennsylvania Legislative Journal, June 

19, 2001, pp. 745–746 (emphasis supplied). Thus, while it 

is certainly true that the General Assembly, in enacting the 

DNA testing statute, did not intend to encourage “fishing 

expeditions” or the needless expenditure of 

Commonwealth funds to pursue frivolous claims of 

innocence, it did seek to ensure the most fundamental 

principle of American jurisprudence, namely, that an 

innocent man not be punished for the crimes of another.

Conway, 14 A.3d at 113-114 (emphasis deleted).

In Smith, it was unclear whether there was any DNA to test and there 

was direct evidence of the defendant’s guilt. Here, in contrast, there was no 

direct evidence linking Chapman to the crime. Additionally, there was 

“fresh” blood at the crime scene location that Chapman maintains did not 

belong to him or the victim. The Commonwealth does not dispute this.5 

However, it is unlikely that someone not involved in the altercation with the 

victim would have left “fresh” blood at the crime scene, and testing the type 

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5 Our review of the record does not reveal whether it is the victim’s blood.
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O blood stain to determine whether the blood was from the victim or 

whether it matches an individual in the DNA database could reveal evidence 

that could have a significant effect on the conclusion of a reasonable, 

properly instructed juror. See Conway, 14 A.3d at 109. Therefore, under 

our standard of review, we find the PCRA court did not err in ordering DNA 

testing. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/14/2015