PRIOR PRINTER'S NOS. 627, 1041, 1052, PRINTER'S NO. 2169
1183, 2107, 2138
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,
A. WILLIAMS, WOZNIAK AND BRIGHTBILL, MARCH 9, 2001
SENATE AMENDMENTS TO HOUSE AMENDMENTS, JUNE 27, 2002
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) state that the applicant consents to provide
27 samples of bodily fluid for use in the DNA testing; and
28 (iii) acknowledge that the applicant understands
29 that if the motion is granted any data obtained from any
30 DNA samples or test results may be entered into law
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1 enforcement databases, may be used in the investigation
2 of other crimes and may be used as evidence against the
3 applicant in other cases.
4 (2) (i) assert the applicant's actual innocence of the
5 offense for which the applicant was convicted; and
6 (ii) in a capital case:
7 (A) assert the applicant's actual innocence of
8 the charged or uncharged conduct constituting an
9 aggravating circumstance under section 9711(d)
10 (relating to sentencing procedure for murder of the
11 first degree), if the applicant's exoneration of the
12 conduct would result in vacating a sentence of death;
13 or
14 (B) assert that the outcome of the DNA testing
15 would establish a mitigating circumstance under
16 section 9711(e)(7) if that mitigating circumstance
17 was presented to the sentencing judge or jury and
18 facts as to that issue were in dispute at the
19 sentencing hearing.
20 (3) Present a prima facie case demonstrating that the:
21 (i) identity of or the participation in the crime by
22 the perpetrator was at issue in the proceedings that
23 resulted in the applicant's conviction and sentencing;
24 and
25 (ii) DNA testing of the specific evidence, assuming
26 exculpatory results, would establish:
27 (A) the applicant's actual innocence of the
28 offense for which the applicant was convicted;
29 (B) in a capital case, the applicant's actual
30 innocence of the charged or uncharged conduct
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1 constituting an aggravating circumstance under
2 section 9711(d), if the applicant's exoneration of
3 the conduct would result in vacating a sentence of
4 death; or
5 (C) in a capital case, a mitigating circumstance
6 under section 9711(e)(7) under the circumstances set
7 forth in subsection (c)(1)(iv).
8 (d) Order.--
9 (1) Except as provided in paragraph (2), the court shall
10 order the testing requested in a motion under subsection (a)
11 under reasonable conditions designed to preserve the
12 integrity of the evidence and the testing process, upon a
13 determination, after review of the record of the applicant's
14 trial, that the:
15 (i) requirements of subsection (c) have been met;
16 (ii) evidence to be tested has been subject to a
17 chain of custody sufficient to establish that it has not
18 been altered in any material respect; and
19 (iii) motion is made in a timely manner and for the
20 purpose of demonstrating the applicant's actual innocence
21 and not to delay the execution of sentence or
22 administration of justice.
23 (2) The court shall not order the testing requested in a
24 motion under subsection (a), if after review of the record of
25 the applicant's trial, the court determines that there is no
26 reasonable possibility that the testing would produce
27 exculpatory evidence that:
28 (i) would establish the applicant's actual innocence
29 of the offense for which the applicant was convicted;
30 (ii) in a capital case, would establish the
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1 applicant's actual innocence of the charged or uncharged
2 conduct constituting an aggravating circumstance under
3 section 9711(d), if the applicant's exoneration of the
4 conduct would result in vacating a sentence of death; or
5 (iii) in a capital case, would establish a
6 mitigating circumstance under section 9711(e)(7) under
7 the circumstances set forth in subsection (c)(1)(iv).
8 (e) Testing procedures.--
9 (1) Any DNA testing ordered under this section shall be
10 conducted by:
11 (i) a laboratory mutually selected by the
12 Commonwealth and the applicant;
13 (ii) if the Commonwealth and the applicant are
14 unable to agree on a laboratory, a laboratory selected by
15 the court that ordered the testing; or
16 (iii) if the applicant is indigent, the testing
17 shall be conducted by the Pennsylvania State Police or,
18 at the Pennsylvania State Police's sole discretion, by a
19 laboratory designated by the Pennsylvania State Police.
20 (2) The costs of any testing ordered under this section
21 shall be paid:
22 (i) by the applicant; or
23 (ii) in the case of an applicant who is indigent, by
24 the Commonwealth of Pennsylvania.
25 (3) TESTING CONDUCTED BY THE PENNSYLVANIA STATE POLICE <--
26 SHALL BE CARRIED OUT IN ACCORDANCE WITH THE PROTOCOLS AND
27 PROCEDURES ESTABLISHED BY THE PENNSYLVANIA STATE POLICE.
28 (f) Posttesting procedures.--
29 (1) After the DNA testing conducted under this section
30 has been completed the applicant may, pursuant to section
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1 9545(b)(2) (relating to jurisdiction and proceedings), during
2 the 60-day period beginning on the date on which the
3 applicant is notified of the test results, petition to the
4 court for postconviction relief pursuant to section
5 9543(a)(2)(vi) (relating to eligibility for relief).
6 (2) Upon receipt of a petition filed under paragraph
7 (1), the court shall consider the petition, along with any
8 answer filed by the Commonwealth, and shall conduct a hearing
9 thereon.
10 (3) In any hearing on a petition for postconviction
11 relief filed under paragraph (1), the court shall determine
12 whether the exculpatory evidence resulting from the DNA
13 testing conducted under this section would have changed the
14 outcome of the trial as required by section 9543(a)(2)(vi).
15 (g) Effect of motion.--The filing of a motion for forensic
16 DNA testing pursuant to subsection (a) shall have the following
17 effect:
18 (1) The filing of the motion shall constitute the
19 applicant's consent to provide samples of bodily fluid for
20 use in the DNA testing.
21 (2) The data from any DNA samples or test results
22 obtained as a result of the motion may be entered into law
23 enforcement databases, may be used in the investigation of
24 other crimes and may be used as evidence against the
25 applicant in other cases.
26 (h) Definitions.--As used in this section, the following
27 words and phrases shall have the meanings given to them in this
28 subsection:
29 "Applicant." The individual who files a motion under
30 subsection (a).
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1 "DNA." Deoxyribonucleic acid.
2 Section 2. This act shall take effect in 60 days.
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