PRINTER'S NO. 3969
No. 2772 Session of 2000
INTRODUCED BY McILHINNEY, BELFANTI, M. COHEN, MARSICO,
R. MILLER, RUBLEY, B. SMITH, TIGUE, FREEMAN, BROWNE, BASTIAN,
FRANKEL, BARRAR AND STERN, SEPTEMBER 27, 2000
REFERRED TO COMMITTEE ON JUDICIARY, SEPTEMBER 27, 2000
AN ACT
1 Amending Title 42 (Judiciary and Judicial Procedure) of the
2 Pennsylvania Consolidated Statutes, providing for motion for
3 DNA testing in postconviction relief.
4 The General Assembly of the Commonwealth of Pennsylvania
5 hereby enacts as follows:
6 Section 1. Title 42 of the Pennsylvania Consolidated
7 Statutes is amended by adding a section to read:
8 § 9552. Motion for DNA testing.
9 (a) Motion.--An individual serving a term of imprisonment or
10 awaiting execution of a sentence of death for conviction in a
11 court of this Commonwealth of a criminal offense may apply
12 through written motion to the court that entered the judgment of
13 sentence for the performance of forensic DNA testing on specific
14 evidence, if that evidence:
15 (1) Was secured in relation to the investigation or
16 prosecution that resulted in the conviction of the applicant.
17 (2) Is still available for testing as of the date of the
18 motion.
1 (3) Was not subject to the DNA testing requested because
2 the technology for such testing was not in existence at the
3 time of trial.
4 (b) Notice to the Commonwealth.--
5 (1) Upon receipt of a motion under subsection (a), the
6 court shall notify the Commonwealth and shall afford the
7 Commonwealth an opportunity to respond to the motion.
8 (2) Upon receipt of a motion under subsection (a) or a
9 notice of such a motion, as applicable, the Commonwealth and
10 the court shall take such steps as are reasonably necessary
11 to ensure than any remaining biological material in the
12 possession of either is preserved pending the completion of
13 proceedings under this section.
14 (c) Requirements.--In any motion under subsection (a), the
15 applicant shall:
16 (1) Assert actual innocence of the offense for which the
17 applicant was convicted, under penalty of perjury.
18 (2) Identify the specific evidence that was secured in
19 relation to the investigation or prosecution that resulted in
20 the conviction of the applicant to be tested.
21 (3) Present a prima facie case demonstrating that:
22 (i) The identity of the perpetrator was at issue in
23 the trial that resulted in the conviction of the
24 applicant.
25 (ii) DNA testing of the specified evidence would,
26 assuming exculpatory results, exonerate the applicant of
27 the offense for which the applicant was convicted.
28 (d) Order.--
29 (1) Except as provided in paragraph (2), the court shall
30 order the testing requested in a motion under subsection (a)
20000H2772B3969 - 2 -
1 under reasonable conditions designed to protect the interests
2 of the Commonwealth in the integrity of the evidence and the
3 testing process, upon a determination, after review of the
4 record of the trial of the applicant, that:
5 (i) The requirements of subsection (c) have been
6 met.
7 (ii) The evidence to be tested is in the possession
8 of the Commonwealth or the court and has been subject to
9 a chain of custody sufficient to establish that it has
10 not been altered in any material respect.
11 (iii) The motion is made in a timely manner and for
12 the purpose of demonstrating the actual innocence of the
13 applicant and not to delay the execution of sentence or
14 administration of justice.
15 (2) The court may not order the testing requested in a
16 motion under subsection (a) if, after review of the record of
17 the trial of the applicant, the court determines that there
18 is no reasonable possibility that the testing will produce
19 exculpatory evidence that could exonerate the applicant of
20 the offense for which the applicant was convicted.
21 (e) Testing procedures.--
22 (1) Any DNA testing ordered under this section shall be
23 conducted by:
24 (i) a laboratory mutually selected by the
25 Commonwealth and the applicant; or
26 (ii) if the Commonwealth and the applicant are
27 unable to agree on a laboratory, a laboratory selected by
28 the court that ordered the testing.
29 (2) The costs of any testing ordered under this section
30 shall be paid:
20000H2772B3969 - 3 -
1 (i) by the applicant; or
2 (ii) in the case of an applicant who is indigent, by
3 the Commonwealth.
4 (f) Posttesting procedures.--
5 (1) If the DNA testing conducted under this section
6 produces inconclusive evidence or evidence that is
7 unfavorable to the applicant, the court shall dismiss the
8 application.
9 (2) If the DNA testing conducted under this section
10 produces exculpatory evidence:
11 (i) The applicant may, pursuant to section
12 9545(b)(2) (relating to jurisdiction and proceedings) and
13 during the 60-day period beginning on the date on which
14 the applicant is notified of the test results, make a
15 motion to the court that ordered the testing for
16 postconviction relief pursuant to section 9543(a)(2)(vi)
17 (relating to eligibility for relief).
18 (ii) Upon receipt of a motion under subparagraph
19 (i), the court that ordered the testing shall consider
20 the motion along with any answer filed by the
21 Commonwealth and shall conduct a hearing thereon.
22 (iii) In any hearing on a motion for postconviction
23 relief filed pursuant to section 9543(a)(2)(vi) under
24 subparagraph (i), the court shall determine whether the
25 exculpatory evidence resulting from DNA testing conducted
26 under this section would have changed the outcome of the
27 trial as required by section 9543(a)(2)(vi). In making
28 that determination the court may consider evidence
29 presented at the hearing from either the Commonwealth or
30 the applicant without regard to whether such evidence was
20000H2772B3969 - 4 -
1 presented at any previous proceeding in the case and
2 shall not be limited to consideration of only that
3 evidence presented at trial.
4 Section 2. This act shall take effect in 60 days.
I13L42DMS/20000H2772B3969 - 5 -