Appeal from the Order entered May 5, 2009, in the Court of Common Pleas, Montgomery County, Criminal, No. CP-46-CR-0002925-1987
The opinion of the court was delivered by: McEWEN, P.J.E.
BEFORE: DONOHUE, OTT, JJ., and McEWEN, P.J.E
OPINION BY McEWEN, P.J.E.
Appellant, Robert Conway, appeals from the order of the trial court denying his request to order DNA testing of certain items within the control of the Commonwealth that were obtained in the course of its 1987 investigation and prosecution of appellant on charges of murder and related offenses. We are compelled to reverse. The germane facts of this case were ably summarized by the learned Judge S. Gerald Corso in the Opinion he filed in response to appellant's appeal:
The defendant was arrested on December 12, 1986, in connection with the stabbing death of Michele Capitano on September 25, 1986, at Wooley's Surgical Supply Store in Norristown, Montgomery County. At the conclusion of a four-day trial, a jury found the defendant guilty on September 24, 1987, of Murder of the Third Decree, Unlawful Restraint and Possession of an Instrument of Crime.1
1 The jury found the defendant not guilty of Murder of the First Degree, Murder of the Second Degree, Criminal Attempt at Rape, Indecent Assault, Robbery and Theft. After denying post-verdict motions, the court sentenced the defendant on May 1, 1989, to an aggregate term of imprisonment of 15 to 30 years. The Superior Court affirmed the judgment of sentence, and the Supreme Court of Pennsylvania denied allocatur in 1991. The defendant filed a motion for post conviction DNA testing, with a supporting memorandum of law, on June 12, 2008. The Commonwealth opposed the motion in an answer filed on November 10, 2008. The defendant filed a response to the Commonwealth's answer on December 30, 2008. The court held a hearing on March 5, 2009, at which the parties presented oral argument. Thereafter, upon consideration of the motion, the parties' memoranda of law, the arguments of counsel and the record at trial, the court issued an order on May 5, 2009, denying the motion on the basis that the defendant had failed to present a prima facie case demonstrating that DNA testing of the specific evidence would establish his actual innocence.2 From that order, the defendant filed a timely appeal.
2 As noted in the order, having concluded that the defendant failed to make a prima facie case, the court did not consider the Commonwealth's argument that the request for DNA testing is untimely. Commonwealth v. Brooks, 875 A.2d 1141, 1146 (Pa.Super. 2005).
On September 25, 1986, at approximately 9:30 a.m., the then 29-year-old defendant left the apartment he shared with his wife, Ann Dawn Conway, at 660 Noble Street in Norristown. He planned to go for a walk, look for a cane and hot packs for his wife and pick up prescriptions for his wife and himself.
At approximately 10:30 a.m. that same day, Capitano arrived at her place of business, Wooley's Surgical Supply Store, then-located at 532 DeKalb Street in Norristown, and received a telephone call from her friend and business associate, Anita Ferris.3 Around that same time, Eneida Piccarreta, an employee of La Roma's Pizzeria, which was located a few doors away from Wooley's saw the defendant walking down DeKalb Street in the direction of Wooley's. 3 Ferris testified that she first called Wooley's at approximately 10:10 a.m., but hung up when she got the answering machine. She then called back at approximately 10:30 a.m., at which time Capitano answered and indicated that she had just arrived at the store.
The telephone conversation between Capitano and Ferris was interrupted briefly at one point when Capitano told Ferris to hold on while she went to let a neighborhood dog into the store. The telephone call then resumed until momentarily interrupted again at approximately 10:41 a.m. when a mailman, Anthony Jan Francisco, entered Wooley's to deliver mail.4 With the mailman's departure, the telephone conversation resumed for a few more minutes until interrupted a third time by the sound of a male voice in the store.5 At that time, Ferris asked Capitano if she had a patient, to which Capitano responded, "Oh, I don't know. I'll call you right back." The telephone call ended at approximately 10:45 a.m. 4 Jan Francisco testified that he entered the store on the day in question through the unlocked front door. He found this unusual because the door typically was locked and he would have to knock for Capitano to open it in order to deliver mail. 5 Ferris testified that the voice sounded different from that of the mailman. At approximately 10:55 a.m., Piccarreta observed the defendant banging on the door to La Roma's Pizzeria, which normally did not open until 11:00 a.m. Her stepson, Peter Piccarreta, opened the door and observed that the defendant was wearing a brown t-shirt that was wet in the front, but not in the back. The defendant, who did not speak to anyone in the pizzeria, purchased something from a vending machine and left. Around this same time, Michael Clerico, Michael Burke and Rita McColgan began walking toward Wooley's from the title search office operated a few doors away by Clerico and Burke. The three planned to get a key from Capitano in connection with a potential purchase of the building that housed Wooley's. Upon arriving at the store, Clerico, Burke and McColgan observed the front door to be wide open. The three peered inside and called for Capitano before returning outside to see if she had momentarily left the building. Failing to see her, they returned to the store, at which time they observed a receipt book and watch on the floor, as well as a purse with its contents spilled out. Proceeding farther into the store, and following the path of the items strewn on the floor, Clerico opened the bathroom door slightly and observed Capitano's feet. Clerico immediately told Burke to contact the police. Burke and McColgan left the store, and Burke telephoned the police from the title insurance office.
Norristown Police records indicate receipt of Burke's call at 11:07 a.m. The first-responder to the scene, Norristown Police Officer Leonardo Liberatascioli, arrived between 11:09 and 11:11 a.m. After briefly speaking with Clerico, Burke and McColgan, Officer Liberatascioli peered into the bathroom through the slightly opened door and saw Capitano's feet.
Officer Liberatascioli then pushed the door open far enough to partially enter the bathroom, at which time he observed Capitano lying face up on the floor with her head under the sink and her eyes and mouth open. He observed that Capitano had sustained numerous puncture wounds, that her dress had been opened in the chest area and pulled up around the waist, and that her pantyhose had been split open exposing the vaginal area. At approximately 11:00 a.m., the defendant returned to his apartment, which was located approximately three- quarters of a mile from Wooley's. Ann Conway, who was in the apartment at the time, testified that her husband, appearing nervous ...