from the PCRA Order April 13, 2016 in the Court of Common
Pleas of Erie County Criminal Division at No(s): No. 2562 of
BEFORE: SHOGAN, MOULTON, and STRASSBURGER, [*] JJ.
Dale Payne (Appellant) appeals from the April 13, 2016 order
which denied his petition for relief filed pursuant to the
Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§
9541-9546. Appellant argues that he is entitled to a new
degree-of-guilt hearing or other lower court proceedings
based upon results of DNA testing that excluded him as a
contributor to the semen found in the victim's body. We
the procedural posture and facts of this case, we set forth
the non-jury verdict of the trial court in its entirety from
the 1977 degree-of-guilt hearing.
[Appellant] was arrested on September 23, 1976 and charged
with the slaying of Debra Lynn [Gama].
The sixteen[-]year[-]old victim, a student at Strong Vincent
High School in Erie, had left her West 10th Street home the
morning of August 7th, 1975 apparently headed for the beach.
She never returned, and on August 12th her body was found
floating in Cuss[e]wago Creek off Route 98 about 12 miles
north of Meadville, in Crawford County.
When found the victim's hands and feet were bound by
copper wire. Wire also encircled and was imbedded in her
neck. Crawford County Coroner Wilbur C. Thomas ruled that the
young girl had been strangled listing the cause of death as
"acute asphyxiation due to ligature."
The original charge against [Appellant], a teacher at the
school attended by Miss [Gama, ] was originally instituted in
Crawford County, the body having been found there. However,
on Friday, October 8th, 1976, [Appellant, ] with the consent
of his attorney and in the attorney's presence, gave a
statement to Assistant District Attorney Donald E. Lewis. In
the statement in which [Appellant] categorized Miss
[Gama's] death as accidental, he revealed that her death
had occurred in Erie County. As the result thereof the murder
charge was then filed in Erie County on December 8, 1976.
Following several continuances requested by [Appellant] and
his counsel, trial was scheduled for Monday, April 11, 1977.
On that date [Appellant] entered a plea of guilty to murder
generally and a degree of guilt hearing was held before the
[trial court en banc] on June 7th, 1977. The merits
have been argued and the matter is now ripe for decision.
It is the contention of the Commonwealth that the facts
require a finding of murder in the first degree. The defense
argues that the crime should rise no higher than third degree
Under the plea, voluntary manslaughter could be a possible
determination. However, we are of the opinion that there are
no facts before the court that would justify that result or
require its further consideration.
Section 2501 of the Crimes Code describes criminal homicide
as "where a person intentionally, recklessly or
negligently causes the death of another person."
Under the amendment to section 2502 of the Crimes Code,
effective March 26, 1974, murder is divided into three
"A criminal homicide constitutes murder in the first
degree when it is committed by an intentional killing. Murder
in the second degree is where the death of the victim
occurred while the defendant was engaged as a principal or
accomplice in the preparation [sic] of a felony. All
other kinds of murder shall be murder in the third
Under sub-section (d) intentional killing "is a killing
by means of poison, or by lying in wait, or by any other kind
of willful, deliberate and premeditated killing.["]
The evidence before the court consists principally of the
physical evidence, the condition of the victim's body,
the testimony of the pathologist, the defendant's
statement of October 8, 1976, and his admissions to his
former cellmate, Anthony Lee Evans.
While the defense called two former inmates of the Erie
County prison to attack the credibility of Evan[s's]
testimony, they relied principally on [Appellant's]
version of the victim's death as contained in his
statement to the authorities in Crawford County in October of
In that statement [Appellant] told of meeting Miss [Gama] as
she was standing on the corner of Tenth and Raspberry Streets
and taking her for a ride. He stated he had been smoking
marijuana and had taken two "downs" (meprobamate)
prior to meeting the victim; that after voluntarily consuming
a number of the pills Miss [Gama] agreed to pose for
[Appellant], when he asked her if he could take some
"bondage pictures" of her.
He stated that he continued to smoke marijuana as they headed
for the Everett C. Hall Community Park, a secluded wooded
area in Waterford Township in Erie County.
After arriving there he said that she allowed him to tie her
hands and ankles together with some clothesline which he had
purchased at the K-Mart. He had the victim get down on her
knees. He then tied one end of the rope to a tree, then wound
it around her neck and tied the other end to another tree.
At that time he discovered that he had left his camera in his
truck; that despite the fact that the girl appeared to be
affected by the pills she had consumed, he left her in the
trussed up position and returned to this truck.
While there he smoked some more marijuana and loaded his
camera. When he returned he discovered that the victim had
fallen forward and had expired.
He said he panicked, that he cut the bonds, placed her in his
truck and drove her back to his farm; that he then attached
cement blocks to her body with some copper wire and placed
her in a pond located at the property. Two days later he
discovered that the body had surfaced. He then transported
the body to the Cussewago Creek where it was found on August
[Appellant] denied that he had had sexual relations with the
victim or that he had in any way molested her.
Counsel for [Appellant] rely on this statement for their
defense, contending that Miss [Gama's] death was
accidental; that [Appellant] was at most negligent and that
his degree of guilt should rise no higher than 3rd degree.
We, however, are not impressed with either the accuracy or
credibility of [Appellant's] statement. Yet it does have
an important bearing on our determination. Not only does it
place [Appellant] alone with the victim when she died,
admittedly under circumstances caused by him, but it does in
many respects corroborate other evidence introduced by the
The most damaging Commonwealth testimony was given by Anthony
Lee Evans who was incarcerated along with [Appellant] in the
Erie County prison in January and February of 1977. Mr. Evans
testified that [Appellant] confided in him and eventually
described in detail what had occurred. He said that
[Appellant] told him that while he and Miss [Gama] were
riding in his truck he had put some "downs" (pills)
in the victim's beer; that while she was under the
influence of the drug he took her to the woods where he tied
her up in the manner above described and began having sexual
intercourse with her; that she begged him to stop, crying and
screaming; that she "made him mad" and he grasped
the rope "on each side of her and pulled it tight until
she was dead."
At this point Mr. Evans'[s] testimony varies from
[Appellant's] statement in that he testified that rather
than taking the body back to the farm and placing it in the
pond, that [Appellant] said he covered the body with leaves
and left it there for several days until he decided where to
dispose of it.
Evans further testified that [Appellant] told him Miss
Gamma's death was a culmination of a sexual fantasy that
he had been living with for a long time; that "he likes
to tie women up and do crazy things to 'em."
Evans'[s] testimony corroborates in many respects the
statement given by [Appellant] to the Assistant District
Attorney of Crawford County.
In both statements he admits that the victim was under the
influence of pills ingested either voluntarily or
administered by subterfuge.
The reference to a "sexual fantasy" and
[Appellant's] penchant for bondage is important, for in
[Appellant's] own statement he admits that it was he who
suggested the taking of "bondage pictures."
The manner in which Miss [Gama] was tied is exactly the same
in both statements.
The only real variation is in the manner in which death was
caused. Even here there is verification for Evans'[s]
testimony that she died protesting a sexual attack upon her.
Paul R. Daube, a chemist employed by the Pennsylvania State
Police testified that he conducted tests on Hemorrhogic
fluids extracted from the victim's vaginal and anal
areas. He stated that he found the presence of seminal acid
phosphatase in both areas and that seminal acid phosphatase
is found only in semen.
It is the opinion of the court the accidental theory advanced
by the defense lacks credibility. It is our belief that the
testimony of Evans is more consistent with the established
facts than the self serving statement of [Appellant].
The specific intent to kill which is necessary to constitute
murder in the first degree may be found from the
circumstances surrounding the slaying together with all
reasonable inferences therefrom.…
In this case not only do the circumstances point to the
conclusion that the slaying of Debbie [Gama] was willful,
deliberate and premeditated, but [Appellant's] admission
to his cellmate verifies that conclusion and removes all
The testimony before the court is also consistent with a
slaying in the perpetration of a forceful rape which would
constitute murder in the second degree. However, having
concluded that [Appellant] is guilty of an intentional
killing, we need not further pursue the theory of felony
Trial Court Opinion, 7/18/1977, at 1-6.
on the foregoing, Appellant was convicted of first-degree
murder, and on August 5, 1977, Appellant ...