J-S06036-23

2023 PA SUPER 69

COMMONWEALTH OF PENNSYLVANIA

v.

RAYMOND CHARLES ROWE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 649 MDA 2022

Appeal from the PCRA Order Entered April 21, 2022

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

No(s): CP-36-CR-0004108-2018

BEFORE: STABILE, J., NICHOLS, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED: APRIL 18, 2023

Raymond C. Rowe (“Appellant”) appeals from the order entered in the 

Court of Common Pleas of Lancaster County denying his motion for postconviction DNA testing, filed pursuant to 42 Pa.C.S.A. § 9543.1 of the Post 

Conviction Relief Act (“PCRA”), in which he requested DNA collection and 

testing of potential Touch DNA samples from various items recovered from 

the murder scene of his victim. After careful consideration, we affirm. 

The present matter stems from the December 21, 1992, rape and 

murder of Christi Mirack in her Lancaster County home. During her autopsy, 

swabs were taken from her body and sent to the Pennsylvania State Police for 

testing. Although a DNA profile was obtained and uploaded into a nationwide 

database of offenders and unknown subjects, nearly 26 years would pass until 

a match was found.

____________________________________________

* Former Justice specially assigned to the Superior Court.
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Specifically, on May 19, 2018, Appellant was identified as a strong viable 

suspect after a genetic analysis of the DNA profile collected from the carpet 

sample provided a significant match to a national database sample belonging 

to him. Affidavit of Probable Cause at ¶ 24. The Pennsylvania State Police 

initiated an undercover investigation of Appellant that included a surreptitious 

acquisition and DNA testing of a water bottle and chewing gum he had used 

and discarded. The DNA results matched those obtained from the sperm 

fraction found on the carpet. Subsequent testing of swab samples of semen 

and sperm taken from Ms. Mirack’s body showed all samples came from one 

contributor and matched the DNA profile taken from the water bottle and 

chewing gum. Id. at ¶¶ 26-29. A final, post-arrest DNA profile obtained from 

a buccal swab of Appellant also matched DNA taken from the carpet and swabs 

from Ms. Mirack’s body.

The PCRA court sets forth the pertinent post-arrest facts and procedural 

history, as follows, with this Court’s supplementation provided in brackets:

On January 8, 2019, the Petitioner-Appellant tendered a guilty 

plea [pursuant] to a negotiated plea agreement. The Petitioner 

pleaded guilty to Criminal Homicide, three (3) counts of Rape by 

Forcible Compulsion, two (2) counts of Involuntary Deviate Sexual 

Intercourse—Forcible Compulsion, and Burglary. 18 Pa.C.S.A. §§ 

2501(a); 3121(1); 3123(A-1); and 3502(A), respectively. The 

Court accepted the negotiated plea agreement and the 

[Petitioner-Appellant] received life in prison without the possibility 

of parole with a consecutive period of incarceration of sixty (60) 

to one hundred and twenty (120) years pursuant to the terms 

negotiated in the plea agreement. . . . No direct appeal to the 

Superior Court was filed. The Petitioner’s sentence became final 

on February 8, 2019.
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On November 21, 2020, the [Petitioner-Appellant], through his 

attorney, filed an untimely Motion for Post-Conviction Relief 

(“PCRA”) and a Post-Conviction DNA Testing Petition. Although 

the PCRA Petition was filed nine (9) months beyond the PCRA time 

requirement pursuant to 42 Pa.C.S.A. § 9545(b), the one-year 

time bar does not apply to motions for the performance of forensic 

DNA testing. 42 Pa.C.S.A. § 9543.1. [1]

. . .

[Specifically, [Petitioner-Appellant]’s motion for DNA testing 

sought Touch DNA testing on several items recovered from the 

murder scene in Ms. Mirack’s home. These items included a 

wooden cutting board believed to have been used to batter the 

victim, a toaster that was typically placed atop the cutting board 

and presumably moved by the assailant, and items of Ms. Mirack’s 

clothing that were forcibly removed from her body during the 

apparent rape and/or used to asphyxiate her.]

The PCRA Court held an evidentiary hearing [on [PetitionerAppellant]’s motion for Post-Conviction DNA testing] that spanned 

three days: August 26, 2021, September 2, 2021, and September 

8, 2021. 

. . .

[At the DNA hearing, the following relevant facts regarding the 

1992 murder were recounted:]

On . . . December 21, 1992, [the victim, Ms. Christy 

Mirack, was found dead in her home.] Ms. Mirack’s 

roommate [had] left the residence [earlier that 

morning] at 7:00 a.m. for work[, after observing Ms. 

Mirack getting ready to head to work and preparing 

Christmas presents for her co-workers and students. 

N.T. 1/8/9, at 6;] Affidavit of Probable Cause at ¶ 14. 

____________________________________________

1

In Commonwealth v. McLaughlin, 835 A.2d 747 (Pa. Super. 2003), we 

explained that a motion for DNA testing under section 9543.1 was not a PCRA 

petition but, instead, a separate instrument that “allows for a convicted 

individual to first obtain DNA testing which could then be used within a PCRA 

petition[.]” Id. at 750, quoting Commonwealth v. Weeks, 831 A.2d 1194, 

1196 (Pa. Super. 2003). Accordingly, such a motion is not subject to the 

PCRA's one-year time bar for petitions under Section 9545. Accord

Commonwealth v. Tyler, 234 A.3d 750, 753 (Pa. Super. 2020).
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Neighbors heard “a high pitched, unexpected scream” 

coming from Ms. Mirack’s apartment between 7:10 

and 7:20 am. Id. at ¶ 15. At around 9:20 a.m., 

Lancaster County-Wide Communications received a 

phone call from [the Principal of Ms. Mirack’s school] 

who arrived at her home to perform a wellness check 

due to her absence from work and found her 

unconscious on the living room floor. Id., at ¶ 5-7. 

Within minutes, first responders arrived at the 

residence and observed Ms. Mirack lying on her back 

with facial injuries, clearly deceased with a wooden 

cutting board located next to her head. Id. at ¶ 10. 

Packages were strewn about the foyer and living room 

area which is consistent with a struggle taking place 

just in front of the front door of the residence. Id. at 

¶ 13.

Upon further observation, the clothes on [Ms. 

Mirack’s] torso were pushed upwards on her body and 

the only piece of clothing [she] was wearing from the 

waist down was socks. Id. at ¶ 10. Ms. Mirack’s pants 

had likely been forcibly removed as evidenced by the 

inside button laying on the floor near her body. Id.

at ¶ 12. Notably, among the limited amount of 

clothing that she was still wearing was a brown leather 

jacket and burgundy gloves; a factor that led 

investigators to opine that she was attacked as she 

was preparing to leave her home. Id. at ¶ 13. 

An autopsy was then conducted the following day on 

December 22, 1992, by Dr. Wayne Ross, Forensic 

Pathologist of Lancaster County. Id. Dr. Ross 

determined that the abrasions and bruising on Ms. 

Mirack’s lower body were consistent with being a 

victim of sexual assault. Id. at ¶ 16. Sperm and 

semen were also found on and in her body. Id. 

Several swabs collected from Ms. Mirack’s body during 

the autopsy, including but not limited to vaginal, anal, 

oral, back, and leg swabs, as well as [section of carpet 

appearing stained with bodily fluids directly below Ms. 

Mirack’s body] were packaged and sent to the 

Pennsylvania State Police DNA Laboratory for DNA 

analysis. Id. at ¶ 17. Dr. Ross ruled Ms. Mirack’s 

cause of death as strangulation and the manner of 

death as a homicide. Id. at ¶ 16. 
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Upon review of discovery and the autopsy report, trial counsel also 

opined [at the DNA hearing] that [the defense team had 

concluded] that a sexual assault had occurred. Specifically, when 

asked on direct examination if the [defense team determined that] 

discovery supported the theory of consensual sex between Ms. 

Mirack and the [Petitioner-Appellant], trial counsel answered, “no, 

not that we determined.” N.T., DNA Hearing, 9/2/21, at 151. On 

cross-examination, when asked about Defense theories and the 

discovery in this case, trial counsel again stated that “consensual 

doesn’t seem really compatible with the absolute beating and 

trauma that [Ms. Mirack] suffered.” N.T. at 170-71.

. . .

[Regarding Appellant’s alleged confession, the record reflects that 

the] day after the [Petitioner-Appellant]’s arrest on June 26, 2018, 

a capital case team assembled by the Defender Association that 

consisted of three attorneys, a paralegal, and an investigator went 

to the prison to meet with the [Petitioner-Appellant]. N.T. at 140, 

142. While discussing the circumstances of his arrest in a private 

room within the prison, the [Petitioner-Appellant] [indicated to the 

Defender Association investigator that he was in a relationship 

with Ms. Mirack and that one morning before work he went to her 

apartment where they began having sex. (Def. DNA Exhibit 13, 

at 4). At some point, however, Ms. Mirack wanted the sexual 

encounter to stop. (Def. DNA Exhibit 13, at 4). According to the 

investigator, when Appellant reached that point in describing his 

encounter with Ms. Mirack, he simply stated,] “I snapped. I just 

snapped.” N.T. at 123-124, 126. This confession was then 

disclosed to trial counsel immediately after the interview and then 

memorialized in the investigator’s report written the following day. 

N.T. at 133-34, 138.

[Petitioner-Appellant] himself at the DNA hearing explained that 

the reason why he was going to see Ms. Mirack on the morning of 

her murder was to not only have sex but also break things off. 

N.T., DNA Hearing, 8/26/21, at 55. [the Defender Association 

investigator’s] report also indicates the [Petitioner-Appellant] told 

him that on the day of Ms. Mirack’s murder, his intention was to 

speak with her in hopes of breaking it off between them. N.T., 

DNA Hearing, 9/2/21, at 132. Specifically, the [PetitionerAppellant] informed [the Defender Association investigator] that 

he was upset that Ms. Mirack was going to tell his wife about the 

affair and he went to her home to break things off. N.T. at 133.
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Trial counsel also testified that on several occasions the 

[Petitioner-Appellant] indicated to him personally as well as cocounsel that he was guilty of this offense. N.T. at 145. The 

[Petitioner-Appellant] indicated his guilt with counsel during case 

discussions when he explained he and Ms. Mirack had a 

consensual, ongoing relationship, and “he did it and he snapped.” 

Id. Although the [Petitioner-Appellant] now denies the 

confession, the description provided by trial counsel at the DNA 

hearing as well as in reports conducted the day after his arrest 

mirror some of the same details provided by the [PetitionerAppellant] himself.

. . .

[At the DNA hearing, testimony indicated that] [i]n the days 

leading up to [Petitioner-Appellant]’s guilty plea, trial counsel 

informed the [Petitioner-Appellant] of what was going to be said 

at the hearing and provided guidance on what he should expect 

from the process. N.T. at 158. Trial counsel described the 

[Petitioner-Appellant] as a person who is “very bright” and 

“engaging” and a person who is “very calculating and weighs 

options.” N.T. at 146. Counsel also stated that the [PetitionerAppellant] was frightened by the possibility and certainty of a 

death notice being filed and was concerned about the living 

conditions of death row. Id.

[In considering Petitioner’s petition for DNA testing, the PCRA 

court also factored statements made at] Appellant’s guilty plea 

hearing. Prior to the plea acceptance, the Petitioner 

acknowledged that he understood all of the charges he was 

pleading guilty to and he understood that the Commonwealth 

would have to prove he committed each charge beyond a 

reasonable doubt. N.T., 1/8/19, at 4-6. Petitioner also 

acknowledged that he signed the last page of the guilty plea 

colloquy form. N.T. at 14. 

The Commonwealth then read aloud a comprehensive recitation 

of the facts of the case that included the following: “and [Ms. 

Mirack] never showed up for work because shortly after [her 

roommate] left the apartment the defendant forced his way into 

her home, attacked her, physically attacked her, sexually 

assaulted her both anally, vaginally, and orally with his penis and 

then strangled her causing her death.” N.T. at 7. The 

Commonwealth further informed the trial court that at the time of 

the offense, the Petitioner was living four (4) miles away from Ms. 

Mirack and was working at a company located down the road from 
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her residence. N.T. at 10-11. Finally, the Commonwealth stated 

that multiple witnesses saw a car that matched the description of 

the Petitioner’s vehicle the morning of the murder. N.T. at 11.

. . .

When given the opportunity to address the court [at the guilty 

plea], trial counsel stated, “He is here. He has admitted that he 

did it. He’s told us, he has told other people since his arrest that 

he, in fact, is guilty of this charge.” N.T. at 18. Counsel further 

commented, “he is here today saying, I am the one who did this. 

Back then I was not the same person that I am now.” Id. 

Following statements made by counsel, the Petitioner voluntarily 

addressed the court and stated, “I’d like to apologize to the Mirack 

family. . . . And to the family, I can’t imagine what you’re going 

through. I apologize.” N.T. at 22.

. . . 

At the conclusion of the [Post-Conviction DNA Testing] hearing, 

the PCRA Court ordered both parties to file briefs[, and both 

parties complied].

PCRA Court Opinion, 4/21/22, at 1-2, 10-11, 12, 13.

By the PCRA Court’s Order of April 12, 2022, it denied Appellant’s motion 

for Post-Conviction DNA Testing. First, it determined that Appellant failed to 

meet the statutory threshold requirements of Section 9543.1(a)(2), see infra, 

because he had never attempted to test the items prior to his guilty plea 

despite the availability of effective Touch DNA collection methods and analysis. 

The PCRA court reasoned that even assuming the requested Next Generation 

Sequencing (“NGS”) test that Appellant seeks is better able to distinguish 

between multiple contributors in a DNA sample than is the standard STR test, 

neither his expert witness nor the Commonwealth’s could assert definitively

that NGS would represent a more reliable or advantageous test compared to 

STR under the circumstances of this case because the items had never been 
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tested in the first place. As such, the PCRA court concluded that Appellant 

failed to establish that effective Touch DNA collection and analysis of the items 

in question was unavailable at the time of his guilty plea. 

In the alternative, the PCRA court concluded that Appellant had failed 

to carry his burden under Section 9543.1(c)(3)(ii)(A) of presenting a prima 

facie case that the requested DNA testing of the specific evidence, assuming 

exculpatory results, would establish his actual innocence.2 In this regard, the 

PCRA court explained:

The Petitioner baldly asserts his actual innocence, however, the 

foundation of this claim rests on baseless excuses and denials that 

have been conjured up, years later, for his benefit. Petitioner 

alleges that he is not on a fishing expedition and “the items to be 

tested in this case could conclusively establish who the real 

perpetrator of these crimes is.” Petitioner’s Motion in Support of 

DNA Testing, November 30, 2021, p. 26. At least five (5) other 

suspects, however, were investigated and all were cleared via 

DNA through testing of the blood and semen in the living room 

area. Id. at 169-70.

A murder suspect may be convicted on wholly circumstantial 

evidence. Commonwealth v. Heilman, 867 A.2d 542, 547 (Pa. 

Super. 2005). The trial court in the instant matter is satisfied that 

____________________________________________

2 The PCRA court properly observed that Section 9543.1(c)(3)(ii)(A) is 

reinforced by Section 9543.1(d)(2)(i), which provides in relevant part:

(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 guilty 

plea, the court determines that there is no reasonable probability[] 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.A. § 9543.1(d)(2)(i). 
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there is no reasonable probability that DNA testing would produce 

the exculpatory evidence needed to establish the Petitioner’s claim 

of actual innocence. Upon review of the record and consideration 

of the circumstantial evidence of the crime scene, the Petitioner’s 

multiple confessions, and the non-disputed facts and apology at 

the guilty plea, the trial court finds that the Petitioner’s claim of 

actual innocence is not satisfied.

PCRA Court Opinion, at 9

In this timely appeal, Appellant raises two questions for this Court’s 

consideration:

1. Did the PCRA Court err by concluding that Appellant had not made a 

showing that his actual innocence could be established by DNA 

testing of specific items pursuant to 42 Pa.C.S. § 9543.1?

2. Did the PCRA Court err by concluding that the newly formulated 

methods for conducting “touch DNA” analysis and “Next Generation” 

testing do not satisfy the requirements of 42 Pa.C.S. § 9543.1?

Brief of Appellant, at 4.

Our standard of review in this case is as follows:

Generally, the trial court's application of a statute is a question of 

law that compels plenary review to determine whether the court 

committed an error of law. When reviewing an order denying a 

motion for post-conviction DNA testing, this Court determines 

whether the movant satisfied the statutory requirements listed in 

Section 9543.1. We can affirm the court's decision if there is any 

basis to support it, even if we rely on different grounds to affirm.

Commonwealth v. Walsh, 125 A.3d 1248, 1252–53 (Pa. Super. 2015) 

(citation omitted).

We begin by addressing Appellant’s second issue, as it is dispositive of 

the present appeal. Requests for post-conviction DNA testing are governed 

by statute at 42 Pa.C.S.A. § 9543.1(a) which sets forth, inter alia, three 
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alternative threshold requirements that an applicant must establish to obtain 

requested DNA testing:

§ 9543.1. Postconviction DNA testing

(a) Motion.—

(1) An individual convicted of a criminal offense in a court of this 

Commonwealth and serving a term of imprisonment or awaiting 

execution because of a sentence of death 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 

investigation or prosecution that resulted in the judgment of 

conviction.

(2) The evidence may have been discovered either prior to or after 

the applicant's conviction. The evidence shall be available for 

testing as of the date of the motion. 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 evidence was subject to the testing, but newer 

technology could provide substantially more accurate and 

substantially probative results, 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.

42 Pa.C.S.A. § 9543.1(a).

Our jurisprudence interpreting subsection 9543.1(a)(2) has recognized 

that an applicant’s motion for DNA testing of evidence discovered prior to the 

applicant’s conviction meets the threshold requirement with respect to 

untested evidence only if “it was not already DNA tested because (a) 

technology for testing did not exist at the time of the applicant's trial; (b) the 

applicant's counsel did not request testing in a case that went to verdict before 
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January 1, 1995; or (c) 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. Commonwealth v. Williams, 35 A.3d 44, 49 

(Pa. Super. 2011). See also Walsh, 125 A.3d at 1254 (quoting 

Commonwealth v. Perry, 959 A.2d 932 (Pa. Super. 2008) (holding PCRA 

counsel was not ineffective for declining to pursue post-conviction DNA testing 

where technology for testing existed at time of trial, verdict came after 

January 1, 1995, and court had not refused request for funds for testing; 

consequently, appellant could not have met his threshold burden under 

Section 9543.1(a)(2)). 

Herein, Appellant posits that the requested Touch DNA collection and 

testing methods are presently accepted as sound science in criminal forensics 

but were not available at the time of his 2019 guilty plea. At the PCRA hearing, 

Appellant advanced this position through the expert testimony of Ms. 

Katherine Cross, a forensic biologist and the technical DNA leader at Guardian 

Forensic Sciences in Abington, PA.

According to Ms. Cross, the requested Touch DNA collection method, 

called “combination method”, relates to how skin cells are gathered for 

traditional Short Tandem Repeat, or “STR”, analysis. The “combination 

method” of collecting skin cells simply takes collection methods such as 

scraping, vacuuming, or swabbing that traditionally have been used in 
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isolation and now employs them together at the outset to gather a larger 

sample of cells for testing. N.T., 8/26//21, at 17-20.

On cross-examination, however, Ms. Cross clarified that “the 

combination method” really does not constitute a new method but simply 

applies multiple existing methods together at the beginning of a collection. 

N.T. at 46. Whereas the traditional process consists of employing each 

traditional collection method separately and then combining the samples at 

the end, the combination method applies all traditional methods at the 

beginning of the process to minimize interpretational issues when conducting 

analysis. N.T. at 46-47.

The requested Touch DNA testing method addressed by Ms. Cross is 

Next-Generation Sequencing, or NGS, which goes beyond the traditional STR 

testing of a DNA fragment. Whereas STR looks at DNA fragment repeats to 

determine identity, NGS testing looks at the building block base pairs within 

the repeats and sequences them. According to Ms. Cross, NGS enables the 

analyst to differentiate between contributors to a Touch DNA sample: “So 

what [NGS] allows us to do is potentially determine more accurately the 

number of contributors to a sample and if there are any differences in those 

contributors so that we don’t have this problem of overlapping like we have 

now [with STR].” N.T. at 21. 

Ms. Cross agreed, however, that in 2018 and 2019 Touch DNA STR 

testing “was being utilized in cases effectively” and was available to Appellant 
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and his defense team to use on all relevant crime scene items. N.T. at 35. 

She also conceded that NGS is not needed in a case where there are strong 

DNA links available, and she opined that traditional STR testing is reliable in 

testing samples involving two contributors and even three contributors where 

one contributor is prominent. N.T. at 36. When asked whether NGS is 

indicated in every case, she answered, “Oh, absolutely not.” N.T. at 36, 42. 

In further testimony, Ms. Cross stated that “the only technological 

improvement in Touch DNA testing was the approval and acceptance of the 

next-generation sequencing technology for samples that have low levels of 

DNA.” N.T., 9/8/21 at 271. She added that compared to a body fluid sample, 

there is significantly less DNA in a touch sample. N.T. at 272. Asked if NGS 

is something that could be useful in a case like the present one, Ms. Cross 

replied, “It could be. It’s – any testing, the best you could say is it could be[,] 

until you see what the results are. It is available and is another technology 

that can be used.” N.T. at 273. 

The Commonwealth’s cross-examination of Ms. Cross sought to develop 

further the discussion regarding when a NGS test is appropriate, asking Dr. 

Cross whether NGS testing “would have, again, only been implicated should 

they not have been able to get a good STR result?” N.T. at 275. Dr. Cross 

answered,

[NGS] is something that can either supplement STR results that 

were partial, or it is something that can be used for low level in 

place of STR. If you have a good solid STR result, then, no, you 

would not need to proceed to the next generation sequencing.
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. . .

With Touch DNA samples, I would expect it to be low-level and 

potentially partial profiles, not full independent profiles.

N.T. at 276.

The PCRA court followed up on this answer by asking questions that 

underscored how the lack of any STR testing on the items in question impaired 

her ability to opine whether NGS would have been needed in this case:

PCRA Court: . . . I understand what you’re saying is if these 

items had been submitted in 2018 and for whatever reason they 

were not able to obtain samples that readily resulted in a DNA 

profile being obtained, that there is [sic] scientific advances since 

then that might enable somebody to get a sequence from them 

today?

Ms. Cross: That’s correct.

PCRA Court: But we don’t know whether or not DNA could 

have been obtained from any of them because they’ve [the items] 

never been submitted for analysis?

Ms. Cross: That’s correct.

N.T. at 276-277.

The Commonwealth’s expert, Michael Biondi, the Quality Assurance 

Program manager for the Pennsylvania State Police Forensic DNA Division, 

also answered the PCRA court’s questions regarding the significance of the 

absence of prior Touch DNA testing of the items in question:

Mr. Biondi: I’m not entirely sure, because all of those items 

could have been tested with STR technology, the same technology 

we’re using that’s widely in use in the forensic community now.

N.T at 267. 
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In that respect, Mr. Biondi noted that Appellant’s lawyers could have 

submitted the items for reliable Touch DNA testing but elected not to do so. 

N.T. at 269. When the PCRA court asked him if there was anything newly 

available that would make Touch DNA testing any more productive in this case 

than it would have been back in 2018, Mr. Biondi answered, “Not to my 

knowledge, but it’s hard to say because you don’t know what the results of 

the testing would have been.” N.T. at 269.

On this record, we discern no error with the PCRA court’s determination 

that Appellant failed to meet the threshold requirement of establishing the 

unavailability of effective DNA collection and testing capable of producing 

probative results under the circumstances at the time he pleaded guilty. STR 

technology for testing Touch DNA samples inarguably was in existence, 

effective, and known to Appellant and his team of defenders at the time of 

Appellant’s plea, see N.T., 9/2/21, at 120-21, but they elected to forego such 

testing.3 In addition, Appellant failed to establish that the STR technology 

____________________________________________

3

Indeed, one counsel on Appellant’s Defender team insinuated that 

incriminating circumstantial evidence militated against sending the items out 

for testing, suggesting by analogy that if an arrested client threw a gun on the 

ground and the prosecution did not send it out for testing, “I am not going to 

ask the DA’s Office to send that gun out to be tested because I don’t want my 

client’s DNA to be found on it. So that’s a strategic decision that I would make 

that I would say I’d be really careful about whether or not I was going to do 

that.” N.T., 9/2/21, at 195-96. This statement dovetailed with testimony 

from other counsel who acknowledged concern amongst themselves and 

Appellant about the accumulation of inculpatory evidence and its potential to 

prompt a Commonwealth decision to pursue a capital trial. N.T. 9/2/19 at 

146, 151, 170-171.
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available at the time of his plea would have produced inferior results compared 

to the requested NGS technology, as both experts conceded they could only 

speculate about the quantity and quality of the Touch DNA samples capable 

of collection from the items since no testing had been attempted.

This rationale aligns with relevant decisions of this Court. For instance, 

in Commonwealth v. Hardy, 2022 PA Super 54, 274 A.3d 1240, 1251 

(2022), reargument denied (June 7, 2022), appeal granted, No. 185 WAL 

2022, 2022 WL 17827949 (Pa. Dec. 21, 2022),4the applicant Hardy was tried 

by jury in 1998 and convicted of first-degree murder for the death-bystrangulation of his co-worker and former girlfriend (the “Victim”) at their 

worksite. Nearly 20 years after his judgment of sentence was affirmed and 

his collateral appeal denied on the merits, Hardy filed a 2020 motion for PostConviction DNA testing in which he sought to apply new and allegedly more 

probative DNA technology to re-test previously tested items and test neverbefore-tested items found in and around the Victim's car. Id. at 1245.

The PCRA court denied Hardy’s petition without a hearing. With respect 

to the untested items, and despite the applicant Hardy’s claim of newer 

technology that would render more probative results, the PCRA court opined 

____________________________________________

4 On December 21, 2022, the Pennsylvania Supreme Court issued a per curiam

order granting allowance of appeal on three issues, including the issue asking, 

“Did Appellant satisfy the requirements of 42 Pa.C.S. § 9543.1(a)(2), with 

regard to evidence previously tested for DNA and evidence not previously 

tested for DNA?”.
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that Appellant had not met the threshold requirements. It noted that the 

items were all known before trial, effective DNA testing was available at the 

time of trial, the verdict was rendered after January 1, 1995, and the court 

did not refuse funds for DNA testing. Id. at 14.

On appeal, Hardy asked, inter alia, whether the trial court erred with 

respect to never-before-tested evidence when it concluded that he did not 

meet the threshold requirement of 42 Pa.C.S.A. § 9543.1(a)(2). Hardy 

argued that using newer DNA technology to test the “never-before-tested 

evidence ... could yield the identity of the true perpetrator in this case.” Id.

at 1249. On this issue, we affirmed the trial court without further discussion, 

stating that we discerned no error with the trial court’s factual findings and 

legal conclusions after careful consideration and review.5

In Walsh, the applicant was tried and convicted in 2004 of aggravated 

assault and related offenses for attacking his wife with a claw hammer in the 

presence of witnesses, who testified Appellant had landed several hammer 

blows to his wife’s head. After several failed direct and collateral appeals, the 

applicant filed a 2014 PCRA petition seeking post-conviction DNA testing under 

Section 9543.1(a)(2). The crux of his petition was that testing would reveal 

an absence of his wife’s DNA on the hammer, which result, he maintained, 

____________________________________________

5 The Hardy decision went on to address and reject on the merits the 

applicant’s claim that he had established a prima facie case of actual innocence 

as set forth in Section 9543.1(c)(3) and reinforced in Section 9543.1(d)(2). 

Id. at 1250-51.
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would establish he did not directly strike his wife and thus prove his “actual 

innocence” on the charge of aggravated assault.

Upon review of the record, this Court determined Appellant had failed 

to meet the threshold requirements as needed to obtain relief under Section 

9543.1, as he had not subjected the hammer to available DNA testing at the 

time of trial:

Instantly, [Walsh’s] trial took place on May 6–7, 2004. At trial, 

the Commonwealth introduced testimony concerning [Walsh’s] 

assault on Victim using a claw hammer and admitted into evidence 

the hammer used in the attack. Thus, the evidence [Walsh] seeks 

to have DNA tested was discovered and available before [Walsh’s] 

trial. Additionally, DNA testing technology was available at the 

time of [Walsh’s] trial in 2004, the jury reached its verdict after 

January 1, 1995, and the court did not refuse a request for funds 

for DNA testing. Consequently, [Walsh] is unable to satisfy the 

threshold requirements necessary to obtain post-conviction DNA 

testing. See 42 Pa.C.S.A. § 9543.1(a)(2); B. Williams, supra; 

Perry, supra.

Walsh, 125 A.3d 1248, 1257 (Pa. Super. 2015).

Most recently in Commonwealth v. Goyette, 287 A.3d 869 (Table), 

282 WDA 2022 (unpublished memorandum) (Pa. Super. filed October 17,

2022),6 a three-judge panel of this Court upheld a PCRA court’s order denying 

the applicant Goyette’s 2021 request for DNA testing of two previously 

untested blood-covered items—his steering wheel cover and a pair of sneakers 

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6 Under amended Pa.R.A.P. 126, non-precedential decisions are not binding 

but may be cited as “persuasive” authority. See Pa.R.A.P. 126(b)(2) (stating 

that unpublished non-precedential decisions of the Superior Court filed after 

May 1, 2019, may be cited for their persuasive value).
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found in his apartment house’s dumpster—recovered by investigators shortly 

after his 2005 brutal attack of an elderly victim. Goyette contended that 

testing would reveal the absence of his DNA from the items and, therefore, 

lend support to his claim of actual innocence. The Commonwealth filed a 

response arguing, inter alia, that Goyette was not entitled to further DNA 

testing because testing was available at the time of his trial and he chose to 

forego it.

In affirming the PCRA court’s order, our panel found that Goyette’s 

failure to establish any of the alternative threshold requirements of Section 

9543.1(a)(2), alone, provided grounds to deny his motion for DNA testing. Of 

particular note for our purposes was the observation that Goyette could not 

obtain requested testing with purportedly more reliable new methods of 

testing because he had not sought available DNA testing on such items 

previously:

Goyette has not established any of these requirements. 

Technology for DNA testing was undisputedly in existence by the 

time of his 2007 trial, as items of evidence were submitted for 

testing and introduced at his trial. His trial took place well after 

the January 1, 1995, cut-off date for testing items when trial 

counsel failed to previously request it. The inner portion of the 

sneakers and the steering wheel cover were not previously 

subjected to testing, so he may not seek additional testing on the 

basis that new methods are more reliable. Finally, the record 

reveals that he did not previously file a motion for DNA testing 

that was denied despite his indigency. As Goyette cannot meet 

any of Section 9543.1(a)(2)’s threshold requirements, the PCRA 

court was entitled to deny the petition on this basis alone.

Goyette, 287 A.3d 869 at **2 (emphasis added).
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Consistent with this jurisprudence, we conclude Appellant has failed to 

meet the threshold requirement under Section 9543.1(a)(2) that the items 

proposed for testing were not already DNA tested because technology for 

testing did not exist at the time of his guilty plea. The record established that 

Appellant was aware of the items, that they could have undergone the STR

method of Touch DNA testing that has proven effective, and that expert 

opinion refrained from positing that the STR method would have been 

inadequate so as to require recently available NGS Touch DNA analysis. For 

these reasons, we affirm the order of the PCRA court denying Appellant’s 

motion for Post-Conviction DNA testing.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/18/2023