CORRECTIVE REPRINT
PRIOR PRINTER'S NOS. 627, 1041 PRINTER'S NO. 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 GREENLEAF, JUDICIARY, AS AMENDED, MAY 22, 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) assert the applicant's actual innocence of the <--
26 offense for which the applicant was convicted;
27 (ii)
28 (1) (I) SPECIFY THE EVIDENCE TO BE TESTED; <--
29 (II) ASSERT THE APPLICANT'S ACTUAL INNOCENCE OF THE
30 OFFENSE FOR WHICH THE APPLICANT WAS CONVICTED;
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1 (III) in a capital case, assert the applicant's
2 actual innocence of the charged or uncharged conduct
3 constituting an aggravating circumstance under section
4 9711(d) (relating to sentencing procedure for murder of
5 the first degree), if the applicant's exoneration of the
6 conduct would result in vacating a sentence of death; or
7 (iii) (IV) in a capital case, assert that the outcome <--
8 of the DNA testing would establish a mitigating
9 circumstance under section 9711(e) 9711(E)(7) WHEN THAT <--
10 MITIGATING CIRCUMSTANCE WAS PRESENTED TO THE SENTENCING
11 JUDGE OR JURY AND FACTS AS TO THAT ISSUE WERE IN DISPUTE
12 AT THE SENTENCING HEARING.
13 (2) Present a prima facie case demonstrating that the:
14 (i) identity of or the participation in the crime by
15 the perpetrator was at issue in the proceedings that
16 resulted in the applicant's conviction and sentencing;
17 and
18 (ii) DNA testing of the specific evidence, assuming
19 exculpatory results, would establish:
20 (A) the applicant's actual innocence of the
21 offense for which the applicant was convicted;
22 (B) in a capital case, the applicant's actual
23 innocence of the charged or uncharged conduct
24 constituting an aggravating circumstance under
25 section 9711(d), if the applicant's exoneration of
26 the conduct would result in vacating a sentence of
27 death; or
28 (C) in a capital case, a mitigating circumstance
29 under section 9711(e) 9711(E)(7) UNDER THE <--
30 CIRCUMSTANCES SET FORTH IN SUBSECTION (C)(1)(IV).
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1 (d) Order.--
2 (1) Except as provided in paragraph (2), the court shall
3 order the testing requested in a motion under subsection (a)
4 under reasonable conditions designed to preserve the
5 integrity of the evidence and the testing process, upon a
6 determination, after review of the record of the applicant's
7 trial, that the:
8 (i) requirements of subsection (c) have been met;
9 (ii) evidence to be tested has been subject to a
10 chain of custody sufficient to establish that it has not
11 been altered in any material respect; and
12 (iii) motion is made in a timely manner and for the
13 purpose of demonstrating the applicant's actual innocence
14 and not to delay the execution of sentence or
15 administration of justice.
16 (2) The court shall not order the testing requested in a
17 motion under subsection (a), if after review of the record of
18 the applicant's trial, the court determines that there is no
19 reasonable possibility that the testing would produce
20 exculpatory evidence that:
21 (i) would establish the applicant's actual innocence
22 of the offense for which the applicant was convicted;
23 (ii) in a capital case, would establish the
24 applicant's actual innocence of the charged or uncharged
25 conduct constituting an aggravating circumstance under
26 section 9711(d), if the applicant's exoneration of the
27 conduct would result in vacating a sentence of death; or
28 (iii) in a capital case, would establish a
29 mitigating circumstance under section 9711(e) SECTION <--
30 9711(E)(7) UNDER THE CIRCUMSTANCES SET FORTH IN
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1 SUBSECTION (C)(1)(IV).
2 (e) Testing procedures.--
3 (1) Any DNA testing ordered under this section shall be
4 conducted by:
5 (i) a laboratory mutually selected by the
6 Commonwealth and the applicant; or
7 (ii) if the Commonwealth and the applicant are
8 unable to agree on a laboratory, a laboratory selected by
9 the court that ordered the testing.
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) Based on the results of AFTER the DNA testing <--
18 conducted under this section, the court shall make a written <--
19 finding that:
20 (i) the testing produced inconclusive evidence or
21 evidence implicating the applicant in the criminal
22 offense; or
23 (ii) that the DNA testing provided exculpatory
24 evidence.
25 (2) The applicant may appeal the finding of the court
26 under paragraph (1).
27 (3) If the court makes a finding that the DNA testing
28 provided exculpatory evidence:
29 (i) HAS BEEN COMPLETED the applicant may, pursuant to <--
30 section 9545(b)(2) (relating to jurisdiction and
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1 proceedings), during the 60-day period beginning on the
2 date on which the court makes its finding APPLICANT IS <--
3 NOTIFIED OF THE TEST RESULTS, petition to the court that <--
4 ordered the testing for postconviction relief pursuant to
5 section 9543(a)(2)(vi) (relating to eligibility for
6 relief); and <--
7 (ii) upon receipt of a motion under subparagraph
8 (i), the court that ordered the testing shall consider
9 the motion, along with any answer filed by the RELIEF). <--
10 (2) UPON RECEIPT OF A PETITION FILED UNDER PARAGRAPH
11 (1), THE COURT SHALL CONSIDER THE PETITION, ALONG WITH ANY
12 ANSWER FILED BY THE Commonwealth, and shall conduct a hearing
13 thereon.
14 (4) (3) In any hearing on a motion PETITION for <--
15 postconviction relief filed pursuant to paragraph (3) UNDER <--
16 PARAGRAPH (1), the court shall determine whether the
17 exculpatory evidence resulting from the DNA testing conducted
18 under this section would have changed the outcome of the
19 trial as required by section 9543(a)(2)(vi).
20 (g) Definitions.--As used in this section, the following
21 words and phrases shall have the meanings given to them in this
22 subsection:
23 "Applicant." The individual who files a motion under
24 subsection (a).
25 "DNA." Deoxyribonucleic acid.
26 Section 2. This act shall take effect in 60 days.
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