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Commonwealth v. Kunco

Superior Court of Pennsylvania

November 3, 2017

COMMONWEALTH OF PENNSYLVANIA Appellant
v.
JOHN KUNCO

         Appeal from the Order Entered February 21, 2017 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0000482-1991

          BEFORE: STABILE, SOLANO, and FITZGERALD, [*] JJ.

          OPINION

          FITZGERALD, J.

         The 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.

         The 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.[1] 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.

         For the 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.

         The 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.

         During 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. D.

         In 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.

         No 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.

          The 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.

         On May 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, 637a-638a.

          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.

         Appellee 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, [2]involuntary deviate sexual intercourse, [3] aggravated assault[4] 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 petition.

         In 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.

         On May 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.

         Attached 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 ¶ 14.

         On 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.

         Appellee 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 ...

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