from the Order Entered February 21, 2017 In the Court of
Common Pleas of Westmoreland County Criminal Division at
BEFORE: STABILE, SOLANO, and FITZGERALD, [*] JJ.
Commonwealth appeals from an order granting the motion of
Appellee, John Kunco, for post-conviction DNA testing in this
sexual assault case pursuant to 42 Pa.C.S. § 9543.1. The
Commonwealth argues that the evidence in support of
Appellee's motion does not present a prima facie
case of actual innocence. We affirm.
evidence presented during Appellee's trial was as
follows. On December 16, 1990, at approximately 5:00 a.m.,
Donna Seaman-who was blind in her right eye, farsighted in
her left eye, and not wearing glasses- awoke to find a man,
whose face she could not see, standing in her bedroom. R.R.
431a, 459a-460a. The assailant ripped Seaman's
nightgown off, slapped her to induce her silence, and
threatened that he had a knife. He took one of her girdles
and placed it over her head as a blindfold. R.R. 432a, 461a,
465a-466a. Seaman remained blindfolded throughout the attack.
R.R. 444a, 460a-461a.
next few hours, the assailant attacked Seaman by dragging her
by the hair, orally sodomizing her, punching her in the
stomach, forcing cucumbers into her rectum, and vaginally
raping her. R.R. 436a-442a. He further tortured her by
cutting the electric cord of a lamp, manually inserting it
into her vagina, and electrocuting her genitals. R.R.
442a-444a, 697a-699a. He then lay down next to her on her bed
for approximately forty-five minutes before once again
forcing her to fellate him. R.R. 442a. At some point, he
allegedly bit her on the back of her shoulder. R.R. 443a.
After he finally left, she freed herself, ran into the hall,
called for help, and was found by her neighbor, who called
911. R.R. 444a-445a.
Pennsylvania State Police ("PSP") processed the
crime scene for fingerprints but did not find prints that
could be used for comparison purposes. R.R. 661a, 666a, 702a.
The PSP gathered physical evidence from the scene and from
Seaman's person, including a knife, the bedding upon
which the rape and torture occurred, red hairs gathered from
the bedding, Seaman's clothing and her rape kit. R.R.
664a, 715-719a; Petition for Post Conviction Relief and for
DNA Testing ("Petition"), Ex. C, at 1-4. Seaman had
not had sexual intercourse in the week prior to the assault.
R.R. 713a-715a; Petition, Ex. C, at 2. The PSP turned over
the rape kit evidence to the New Kensington Police Department
("NKPD"), which submitted the evidence to the PSP
Greensburg Regional Laboratory on January 3, 1991. Petition,
Ex. C. at 2. While in the hospital, NKPD police photographed
what they described as a bite mark on Seaman's shoulder.
The police neither used a scale to measure the size of the
bite mark nor swabbed it to test for amylase, the main enzyme
in saliva. R.R. 514a, 517a.
an interview at the hospital on the day of the rape, Seaman
told Sergeant Charles Korman that she recognized her
assailant's voice as "a John that had previously
worked [in her apartment building] as a maintenance
man." R.R. 448a, 451a, 484a. Seaman also noted the
assailant was tall, had a beard, and wore a cap. R.R. 431a.
That same day, Detective Frank Link interviewed Seaman about
the perpetrator, but she did not identify Appellee as the
assailant. R.R. 655a-656a. On December 18, 1990, Detective
William Dlubak-who had never met or spoken to Appellee-
visited Seaman in the hospital and performed a lisp for
Seaman in an "imitation" of her attacker. During
trial, Seaman rated the performance as a ten, but she only
rated it as an eight during Appellee's preliminary
hearing. R.R. 468a-470a. Seaman later stated that she only
began to believe the perpetrator was Appellee two days after
the attack and after hearing the imitation of this lisp. R.R.
467a-468a, 471a; see also Brief in Support of
Petition for Relief ("Post Hr'g Brief"), Exh.
D, at 1. She also admitted that as far as she knew, Detective
Dlubak was not known to make a living imitating people. R.R.
470a. She also stated that she had only spoken to Appellee
"on one occasion" during which time "they
[only] exchanged pleasantries." Post Hr'g Br., Exh.
addition to Seaman's alleged voice identification of
Appellee, Katheryn Jeffries, a neighbor of Appellee's,
told police during questioning that she overheard Appellee
make a sexually charged statement that he "was into
fruits and vegetables" at a Christmas party with
neighbors weeks after the attack. R.R. 740a-741a, 745a-746a.
Other individuals at the party denied this account. R.R.
778a-780a. This remark, the Commonwealth contended, supported
its claim that Appellee sodomized Seaman with a cucumber.
physical evidence other than the alleged bite mark on
Seaman's shoulder, described below, tied Appellee to the
scene. Although serological tests performed by the
Commonwealth did not detect sperm on any rape kit items, they
detected blood consistent with Seaman's blood in her
fingernail scrapings, and determined that hairs collected
from the pubic and head hair combings were consistent with
Seaman. Petition, Ex. C, at 3-4. The reddish hairs found on
Seaman's white blanket and fitted sheet did not match
either Seaman's or Appellee's hair color; based on
this information, Appellee was excluded as a contributor to
these foreign hairs. R.R. 817a-818a; Petition, Ex. C at 3-4.
No DNA testing was ever performed on any of these items.
Commonwealth retained Dr. Michael Sobel, a forensic
odontologist, to examine the photograph of the alleged bite
mark on Seaman's shoulder. R.R. 525a. With no scale in
the photo to measure Seaman's injury, Dr. Sobel could not
directly compare it to Appellee's teeth. R.R. 527a.
However, Dr. Sobel's colleague, Dr. Thomas David, claimed
the ability to use ultraviolet ("UV") light
techniques to "illuminate" bite mark injuries not
visible to the naked eye. R.R. 527a-528a, 585a.
19, 1991-five months after the attack-Drs. Sobel and David
examined Seaman's shoulder, which, by that time, had
healed completely. Prior to the examination, the
odontologists read the case file, including police reports
narrating the torture Seaman had endured and identifying
Appellee as the suspect. No visible injury existed at the
time of their examination. R.R. 606a. Undeterred, the
odontologists, through use of the UV light technique,
purported to see marks that evidenced a "patterned
injury that had two semicircular markings in it that showed
irregular interruption." R.R. 607a-608a. The
odontologists placed hand drawn outlines of Appellee's
teeth over the UV light photograph and concluded that
Appellee's teeth created the bite mark impression, to the
exclusion of all other potential sources. R.R. 562a, 611a,
637a-638a. At trial, both witnesses testified to a reasonable
degree of dental certainty that Appellee's teeth made the
bite mark on Seaman's shoulder. R.R. 560a, 610a-611a,
Appellee provided an alibi for his whereabouts during the
attack, testifying that he was home with his girlfriend with
their newborn baby. R.R. 756a-761a. Appellee's girlfriend
testified that each time she woke up to feed the baby during
the night, she saw Appellee sleeping. R.R. 773a-774a,
776a-778a. Matt Huet, Seaman's landlord and
Appellee's former boss, testified that he spoke to
Appellee by phone at the exact time of the attack. Huet
provided hand written notes documenting his contemporaneously
recorded observations of the content, date and time of the
call. Post Hr'g Brief, Exs. E-F.
was arrested in January 1991 and charged with rape and other
sexual offenses. During trial in July 1991, the parties
presented the evidence summarized above. The jury found
Appellee guilty of rape, involuntary deviate sexual intercourse,
aggravated assault and other misdemeanors, and he was
sentenced to forty-five to ninety years' imprisonment.
Appellee's judgment of sentence was affirmed on direct
appeal. Over the next decade, Appellee unsuccessfully
litigated a PCRA petition and a habeas corpus
2009, the PCRA court granted Appellee's motion for
post-conviction DNA testing on the lamp cord used to torture
Seaman. Cellmark Laboratories excluded Appellee as the
contributor to the DNA found on the cord. Appellee moved for
PCRA relief based on Cellmark's report, but the PCRA
court denied relief, noting that the other evidence against
Appellee, including the bite mark evidence, Seaman's
voice identification of Appellee, and Appellee's remark
about "fruits and vegetables, " was compelling.
13, 2016, Appellee filed the petition presently under review,
a petition for PCRA relief under 42 Pa.C.S. § 9543 and
for DNA testing under 42 Pa.C.S. § 9543.1 on various
items of collected evidence, including, inter alia,
a white blanket upon which the attack occurred that the
District Attorney's Office located on November 10, 2015,
a girdle used to cover Seaman's face, and Seaman's
rape kit. Appellee contended that testing the evidence with
advanced DNA technologies could, for the first time, detect
semen, saliva, and/or skin cells and analyze hairs left by
the assailant, potentially leading to the identification of a
heretofore unknown male as the source of the biological
materials. Appellee also requested a documented search of the
laboratory, police evidence storage facilities, and the
District Attorney's Office for Seaman's rape kit,
clothing, and all other probative evidence last documented as
being within the possession of the NKPD, PSP, and the
PSP's Greensburg Regional Laboratory.
to Appellee's petition were two affidavits by Drs. Sobel
and David, the two odontologists, who averred that they would
no longer testify as they had at trial, because "[t]he
scientific knowledge and understanding on which" their
conclusions that Appellee was the biter rested had
"changed significantly since they were given in
1991." Petition, Ex. J, at ¶¶ 14, 17, 18.
"Today, " they averred, they "would not
proffer such testimony, since it is inconsistent with the
current ABFO [American Board of Forensic Odontology]
Guidelines and with current scientific understanding of the
limitations of bite mark comparisons." Id. at
November 28, 2016, the PCRA court convened an evidentiary
hearing. Dr. David testified that in light of the change in
scientific understanding reflected in the ABFO Guidelines, he
"modified [his] linkage opinion of the bite mark to
[Appellee], to wit, changing it from the highest level of
certainty to cannot exclude." R.R. 178a. Dr. David also
testified that he could not opine how many people, in
addition to Appellee, could have made the mark, because
"[y]ou don't know how many people might be included
in an open population." R.R. 118a.
proffered additional expert testimony from Dr. Adam Freemen,
former ABFO President, and Dr. Cynthia Brzozowski, a member
of ABFO's board of directors. Both experts testified that
Seaman's injury could not be definitively categorized as
a bite mark in the first instance; in their expert judgment,
any further comparison, including stating that Appellee was
one of an unknown (and unknowable) number of people who could
have made the mark, would be scientifically unwarranted based
on this evidence. Dr. Freeman testified:
In the absence of being told by the victim that she was
bitten, this is probably a case where . . . [under] the old
guidelines I would've said this is suggestive of a bite
mark and surely would not have done a comparison. Or today, I
would just say there's not enough information for me to
move forward to a comparison . . . . I can see no ...