PRIOR PRINTER'S NOS. 627, 1041, PRINTER'S NO. 1183
1052
No. 589 Session of 2001
INTRODUCED BY GREENLEAF, HELFRICK, COSTA, LEMMOND, GERLACH,
M. WHITE, BOSCOLA, KUKOVICH, O'PAKE, JUBELIRER, MELLOW, FUMO,
HOLL, HUGHES, KITCHEN, LAVALLE, MADIGAN, MURPHY, MUSTO, PUNT,
SCHWARTZ, STACK, TARTAGLIONE, THOMPSON, TOMLINSON, WILLIAMS,
WOZNIAK AND BRIGHTBILL, MARCH 9, 2001
SENATOR TILGHMAN, APPROPRIATIONS, RE-REPORTED AS AMENDED,
JUNE 12, 2001
AN ACT
1 Amending Title 42 (Judiciary and Judicial Procedure) of the
2 Pennsylvania Consolidated Statutes, providing for
3 postconviction DNA testing.
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 § 9543.1. Postconviction DNA testing.
9 (a) Motion.--
10 (1) An individual convicted of a criminal offense in a
11 court of this Commonwealth and serving a term of imprisonment
12 or awaiting execution because of a sentence of death may
13 apply by making a written motion to the sentencing court for
14 the performance of forensic DNA testing on specific evidence
15 that is related to the investigation or prosecution that
16 resulted in the judgment of conviction.
1 (2) The evidence may have been discovered either prior
2 to or after the applicant's conviction. The evidence shall be
3 available for testing as of the date of the motion. If the
4 evidence was discovered prior to the applicant's conviction,
5 the evidence shall not have been subject to the DNA testing
6 requested because the technology for testing was not in
7 existence at the time of the trial, or the applicant's
8 counsel did not seek testing at the time of the trial in a
9 case where a verdict was rendered on or before January 1,
10 1995, or the applicant's counsel sought funds from the court
11 to pay for the testing because his client was indigent and
12 the court refused the request despite the client's indigency.
13 (b) Notice to the Commonwealth.--
14 (1) Upon receipt of a motion under subsection (a), the
15 court shall notify the Commonwealth and shall afford the
16 Commonwealth an opportunity to respond to the motion.
17 (2) Upon receipt of a motion under subsection (a) or
18 notice of the motion, as applicable, the Commonwealth and the
19 court shall take the steps reasonably necessary to ensure
20 that any remaining biological material in the possession of
21 the Commonwealth or the court is preserved pending the
22 completion of the proceedings under this section.
23 (c) Requirements.--In any motion under subsection (a), under
24 penalty of perjury, the applicant shall:
25 (1) (i) specify the evidence to be tested;
26 (ii) assert the applicant's actual innocence of the
27 offense for which the applicant was convicted;
28 (iii) in a capital case, assert the applicant's
29 actual innocence of the charged or uncharged conduct
30 constituting an aggravating circumstance under section
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1 9711(d) (relating to sentencing procedure for murder of
2 the first degree), if the applicant's exoneration of the
3 conduct would result in vacating a sentence of death; or
4 (iv) in a capital case, assert that the outcome of
5 the DNA testing would establish a mitigating circumstance
6 under section 9711(e)(7) when that mitigating
7 circumstance was presented to the sentencing judge or
8 jury and facts as to that issue were in dispute at the
9 sentencing hearing.
10 (2) Present a prima facie case demonstrating that the:
11 (i) identity of or the participation in the crime by
12 the perpetrator was at issue in the proceedings that
13 resulted in the applicant's conviction and sentencing;
14 and
15 (ii) DNA testing of the specific evidence, assuming
16 exculpatory results, would establish:
17 (A) the applicant's actual innocence of the
18 offense for which the applicant was convicted;
19 (B) in a capital case, the applicant's actual
20 innocence of the charged or uncharged conduct
21 constituting an aggravating circumstance under
22 section 9711(d), if the applicant's exoneration of
23 the conduct would result in vacating a sentence of
24 death; or
25 (C) in a capital case, a mitigating circumstance
26 under section 9711(e)(7) under the circumstances set
27 forth in subsection (c)(1)(iv).
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)
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1 under reasonable conditions designed to preserve the
2 integrity of the evidence and the testing process, upon a
3 determination, after review of the record of the applicant's
4 trial, that the:
5 (i) requirements of subsection (c) have been met;
6 (ii) evidence to be tested has been subject to a
7 chain of custody sufficient to establish that it has not
8 been altered in any material respect; and
9 (iii) motion is made in a timely manner and for the
10 purpose of demonstrating the applicant's actual innocence
11 and not to delay the execution of sentence or
12 administration of justice.
13 (2) The court shall not order the testing requested in a
14 motion under subsection (a), if after review of the record of
15 the applicant's trial, the court determines that there is no
16 reasonable possibility that the testing would produce
17 exculpatory evidence that:
18 (i) would establish the applicant's actual innocence
19 of the offense for which the applicant was convicted;
20 (ii) in a capital case, would establish the
21 applicant's actual innocence of the charged or uncharged
22 conduct constituting an aggravating circumstance under
23 section 9711(d), if the applicant's exoneration of the
24 conduct would result in vacating a sentence of death; or
25 (iii) in a capital case, would establish a
26 mitigating circumstance under section 9711(e)(7) under
27 the circumstances set forth in subsection (c)(1)(iv).
28 (e) Testing procedures.--
29 (1) Any DNA testing ordered under this section shall be
30 conducted by:
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1 (i) a laboratory mutually selected by the
2 Commonwealth and the applicant; or <--
3 (ii) if the Commonwealth and the applicant are
4 unable to agree on a laboratory, a laboratory selected by
5 the court that ordered the testing; OR <--
6 (III) IF THE APPLICANT IS INDIGENT, THE TESTING
7 SHALL BE CONDUCTED BY THE PENNSYLVANIA STATE POLICE OR,
8 AT THE PENNSYLVANIA STATE POLICE'S SOLE DISCRETION, BY A
9 LABORATORY DESIGNATED BY THE PENNSYLVANIA STATE POLICE.
10 (2) The costs of any testing ordered under this section
11 shall be paid:
12 (i) by the applicant; or
13 (ii) in the case of an applicant who is indigent, by
14 the Commonwealth of Pennsylvania with moneys appropriated <--
15 to the Pennsylvania State Police.
16 (f) Posttesting procedures.--
17 (1) After the DNA testing conducted under this section
18 has been completed the applicant may, pursuant to section
19 9545(b)(2) (relating to jurisdiction and proceedings), during
20 the 60-day period beginning on the date on which the
21 applicant is notified of the test results, petition to the
22 court for postconviction relief pursuant to section
23 9543(a)(2)(vi) (relating to eligibility for relief).
24 (2) Upon receipt of a petition filed under paragraph
25 (1), the court shall consider the petition, along with any
26 answer filed by the Commonwealth, and shall conduct a hearing
27 thereon.
28 (3) In any hearing on a petition for postconviction
29 relief filed under paragraph (1), the court shall determine
30 whether the exculpatory evidence resulting from the DNA
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1 testing conducted under this section would have changed the
2 outcome of the trial as required by section 9543(a)(2)(vi).
3 (g) Definitions.--As used in this section, the following
4 words and phrases shall have the meanings given to them in this
5 subsection:
6 "Applicant." The individual who files a motion under
7 subsection (a).
8 "DNA." Deoxyribonucleic acid.
9 Section 2. This act shall take effect in 60 days.
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