1Amending Titles 18 (Crimes and Offenses), 42 (Judiciary and
2Judicial Procedure) and 44 (Law and Justice) of the
3Pennsylvania Consolidated Statutes, providing for tampering
4with biological evidence; further providing for controlled
5substance forfeiture and for preservation of biological
6evidence; repealing provisions relating to postconviction DNA
7testing; further providing for jurisdiction and proceedings;
8providing for postconviction DNA testing; and providing for
9forensic laboratories and for powers and duties of the board.

10The General Assembly of the Commonwealth of Pennsylvania
11hereby enacts as follows:

12Section 1. Title 18 of the Pennsylvania Consolidated
13Statutes is amended by adding a section to read:

14§ 5113. Tampering with biological evidence.

15A person commits a misdemeanor of the first degree if he
16knowingly and intentionally destroys, alters or tampers with
17biological evidence that is required to be preserved under 42
18Pa.C.S § 9502 (relating to preservation of biological evidence)
19with the intent to prevent that evidence from being subjected to
20DNA testing or prevent the production or use of that evidence in
21an official proceeding.

1Section 2. Section 6801(f) and (h) of Title 42 are amended
2to read:

3§ 6801. Controlled substances forfeiture.

4* * *

5(f) Use of cash or proceeds of property.--Cash or proceeds
6of forfeited property transferred to the custody of the district
7attorney pursuant to subsection (e) shall be placed in the
8operating fund of the county in which the district attorney is
9elected. The appropriate county authority shall immediately
10release from the operating fund, without restriction, a [like
11amount] portion for the use of the district attorney enforcing
12the provisions of The Controlled Substance, Drug, Device and
13Cosmetic Act while retaining an adequate balance to preserve 
14biological evidence as required under section 9502 (relating to 
15preservation of biological evidence). The entity having
16budgetary control shall not anticipate future forfeitures or
17proceeds therefrom in adoption and approval of the budget for
18the district attorney.

19* * *

20(h) Authorization to utilize property.--The district
21attorney and the Attorney General shall utilize forfeited
22property or proceeds thereof for the purpose of enforcing the
23provisions of The Controlled Substance, Drug, Device and
24Cosmetic Act, 18 Pa.C.S. (relating to crimes and offenses) and 
2575 Pa.C.S. (relating to vehicles). In appropriate cases, the
26district attorney and the Attorney General may designate
27proceeds from forfeited property to be utilized by community-
28based drug and crime-fighting programs and for relocation and
29protection of witnesses in criminal cases.

30* * *

1Section 3. Title 42 is amended by adding a section to read:

2§ 9502. Preservation of biological evidence.

3(a) General rule.--Notwithstanding any other provision of
4law, the prosecuting jurisdiction or its designee shall preserve
5biological evidence that was secured in the investigation or
6prosecution of a criminal offense, if criminal proceedings are
7pending or if a defendant is under a sentence of imprisonment
8for that offense. Prosecuting jurisdictions may act jointly to
9comply with this section.

10(b) Applicability.--Subsection (a) shall not apply if:

11(1) a court has denied a request or motion for DNA
12testing of the biological evidence by the defendant under Ch.
1395, Subch. E (relating to postconviction DNA testing), and no
14appeal is pending;

15(2) after a conviction becomes final and the defendant
16has exhausted all opportunities for direct review of the
17conviction, the defendant, his counsel of record and the
18public defender is notified that the biological evidence may
19be destroyed and the defendant does not file a motion under
20Ch. 95 Subch. E, within one year of receipt of the notice; or

21(3) the evidence must be returned to its rightful owner,
22or is of such a size, bulk or physical character as to render
23retention impractical and:

24(i) the prosecuting jurisdiction or its designee
25takes reasonable measures to remove and preserve portions
26of the material evidence sufficient to permit future DNA
27testing; or

28(ii) the biological evidence has already been
29subjected to DNA testing under Ch. 95 Subch. E and the
30results included the defendant as the source of the

1evidence.

2(c) Other preservation requirement.--Biological evidence
3required to be preserved under this section shall be preserved
4under reasonable conditions designed to preserve the integrity
5of the evidence and the testing process, which must be
6consistent with applicable standards promulgated by a nationally
7recognized accrediting board and approved by the Forensic
8Advisory Board. Nothing in this section preempts or supersedes
9any statute, regulation, court order or other provision of law
10that may require evidence, including biological evidence, to be
11preserved.

12(d) Regulations.--Not later than 180 days after the date of
13this section's enactment, the prosecuting jurisdiction shall
14promulgate rules or regulations to implement and enforce this
15section, including appropriate disciplinary sanctions to ensure
16compliance.

17(e) Fee.--Unless the court finds that undue hardship would
18result, a fee of $125 shall automatically be assessed on a
19person convicted or adjudicated delinquent for a criminal
20offense requiring preservation of biological evidence under this
21section. All proceeds derived from this fee shall be transmitted
22to the prosecuting jurisdiction. This fee is in addition to any
23other fees imposed by statutory authority and the fee shall be
24assessed per capita rather than per criminal offense or amount
25of biological evidence. This fee shall be collected in
26accordance with section 9728 (relating to collection of
27restitution, reparation, fees, costs, fines and penalties).
28Subsection (a) applies regardless whether a fee under this
29subsection is assessed and collected. If the conviction or
30adjudication of delinquency is reversed or vacated or if the

1sentence is vacated, the prosecuting jurisdiction shall promptly
2refund the fee.

3(f) Definitions.--As used in this section, the following
4words and phrases shall have the meanings given to them in this
5subsection:

6"Biological evidence." The contents of a sexual assault
7examination kit, and any item that contains blood, semen, hair,
8saliva, skin tissue, fingernail scrapings, bone, bodily fluids
9or other biological material that was collected as part of the
10criminal investigation that may be probative of the
11perpetrator's identity or may reasonably be used to incriminate
12or exculpate any person for the offense. This definition applies
13whether that material is cataloged separately, e.g., on a slide
14or swab or in a test tube, or is present on other evidence,
15including clothing, ligatures, bedding or other household
16material, drinking cups or cigarettes.

17"Criminal offense." An act that can be prosecuted under any
18of the following provisions of 18 Pa.C.S. (relating to crimes
19and offenses):

20Chapter 25 (relating to criminal homicide).

21Chapter 27 (relating to assault).

22Chapter 29 (relating to kidnapping).

23Chapter 31 (relating to sexual offenses).

24Chapter 37 (relating to robbery).

25"Prosecuting jurisdiction." The county where the criminal
26offense occurred.

27Section 4. Section 9543.1 of Title 42 is repealed:

28[§ 9543.1. Postconviction DNA testing.

29(a) Motion.--

30(1) An individual convicted of a criminal offense in a

1court of this Commonwealth and serving a term of imprisonment
2or awaiting execution because of a sentence of death may
3apply by making a written motion to the sentencing court for
4the performance of forensic DNA testing on specific evidence
5that is related to the investigation or prosecution that
6resulted in the judgment of conviction.

7(2) The evidence may have been discovered either prior
8to or after the applicant's conviction. The evidence shall be
9available for testing as of the date of the motion. If the
10evidence was discovered prior to the applicant's conviction,
11the evidence shall not have been subject to the DNA testing
12requested because the technology for testing was not in
13existence at the time of the trial or the applicant's counsel
14did not seek testing at the time of the trial in a case where
15a verdict was rendered on or before January 1, 1995, or the
16applicant's counsel sought funds from the court to pay for
17the testing because his client was indigent and the court
18refused the request despite the client's indigency.

19(b) Notice to the Commonwealth.--

20(1) Upon receipt of a motion under subsection (a), the
21court shall notify the Commonwealth and shall afford the
22Commonwealth an opportunity to respond to the motion.

23(2) Upon receipt of a motion under subsection (a) or
24notice of the motion, as applicable, the Commonwealth and the
25court shall take the steps reasonably necessary to ensure
26that any remaining biological material in the possession of
27the Commonwealth or the court is preserved pending the
28completion of the proceedings under this section.

29(c) Requirements.--In any motion under subsection (a), under
30penalty of perjury, the applicant shall:

1(1) (i) specify the evidence to be tested;

2(ii) state that the applicant consents to provide
3samples of bodily fluid for use in the DNA testing; and

4(iii) acknowledge that the applicant understands
5that, if the motion is granted, any data obtained from
6any DNA samples or test results may be entered into law
7enforcement databases, may be used in the investigation
8of other crimes and may be used as evidence against the
9applicant in other cases.

10(2) (i) assert the applicant's actual innocence of the
11offense for which the applicant was convicted; and

12(ii) in a capital case:

13(A) assert the applicant's actual innocence of
14the charged or uncharged conduct constituting an
15aggravating circumstance under section 9711(d)
16(relating to sentencing procedure for murder of the
17first degree) if the applicant's exoneration of the
18conduct would result in vacating a sentence of death;
19or

20(B) assert that the outcome of the DNA testing
21would establish a mitigating circumstance under
22section 9711(e)(7) if that mitigating circumstance
23was presented to the sentencing judge or jury and
24facts as to that issue were in dispute at the
25sentencing hearing.

26(3) present a prima facie case demonstrating that the:

27(i) identity of or the participation in the crime by
28the perpetrator was at issue in the proceedings that
29resulted in the applicant's conviction and sentencing;
30and

1(ii) DNA testing of the specific evidence, assuming
2exculpatory results, would establish:

3(A) the applicant's actual innocence of the
4offense for which the applicant was convicted;

5(B) in a capital case, the applicant's actual
6innocence of the charged or uncharged conduct
7constituting an aggravating circumstance under
8section 9711(d) if the applicant's exoneration of the
9conduct would result in vacating a sentence of death;
10or

11(C) in a capital case, a mitigating circumstance
12under section 9711(e)(7) under the circumstances set
13forth in subsection (c)(1)(iv).

14(d) Order.--

15(1) Except as provided in paragraph (2), the court shall
16order the testing requested in a motion under subsection (a)
17under reasonable conditions designed to preserve the
18integrity of the evidence and the testing process upon a
19determination, after review of the record of the applicant's
20trial, that the:

21(i) requirements of subsection (c) have been met;

22(ii) evidence to be tested has been subject to a
23chain of custody sufficient to establish that it has not
24been altered in any material respect; and

25(iii) motion is made in a timely manner and for the
26purpose of demonstrating the applicant's actual innocence
27and not to delay the execution of sentence or
28administration of justice.

29(2) The court shall not order the testing requested in a
30motion under subsection (a) if, after review of the record of

1the applicant's trial, the court determines that there is no
2reasonable possibility that the testing would produce
3exculpatory evidence that:

4(i) would establish the applicant's actual innocence
5of the offense for which the applicant was convicted;

6(ii) in a capital case, would establish the
7applicant's actual innocence of the charged or uncharged
8conduct constituting an aggravating circumstance under
9section 9711(d) if the applicant's exoneration of the
10conduct would result in vacating a sentence of death; or

11(iii) in a capital case, would establish a
12mitigating circumstance under section 9711(e)(7) under
13the circumstances set forth in subsection (c)(1)(iv).

14(e) Testing procedures.--

15(1) Any DNA testing ordered under this section shall be
16conducted by:

17(i) a laboratory mutually selected by the
18Commonwealth and the applicant;

19(ii) if the Commonwealth and the applicant are
20unable to agree on a laboratory, a laboratory selected by
21the court that ordered the testing; or

22(iii) if the applicant is indigent, the testing
23shall be conducted by the Pennsylvania State Police or,
24at the Pennsylvania State Police's sole discretion, by a
25laboratory designated by the Pennsylvania State Police.

26(2) The costs of any testing ordered under this section
27shall be paid:

28(i) by the applicant; or

29(ii) in the case of an applicant who is indigent, by
30the Commonwealth of Pennsylvania.

1(3) Testing conducted by the Pennsylvania State Police
2shall be carried out in accordance with the protocols and
3procedures established by the Pennsylvania State Police.

4(f) Posttesting procedures.--

5(1) After the DNA testing conducted under this section
6has been completed, the applicant may, pursuant to section
79545(b)(2) (relating to jurisdiction and proceedings), during
8the 60-day period beginning on the date on which the
9applicant is notified of the test results, petition to the
10court for postconviction relief pursuant to section 9543(a)
11(2)(vi) (relating to eligibility for relief).

12(2) Upon receipt of a petition filed under paragraph
13(1), the court shall consider the petition along with any
14answer filed by the Commonwealth and shall conduct a hearing
15thereon.

16(3) In any hearing on a petition for postconviction
17relief filed under paragraph (1), the court shall determine
18whether the exculpatory evidence resulting from the DNA
19testing conducted under this section would have changed the
20outcome of the trial as required by section 9543(a)(2)(vi).

21(g) Effect of motion.--The filing of a motion for forensic
22DNA testing pursuant to subsection (a) shall have the following
23effect:

24(1) The filing of the motion shall constitute the
25applicant's consent to provide samples of bodily fluid for
26use in the DNA testing.

27(2) The data from any DNA samples or test results
28obtained as a result of the motion may be entered into law
29enforcement databases, may be used in the investigation of
30other crimes and may be used as evidence against the

1applicant in other cases.

2(h) Definitions.--As used in this section, the following
3words and phrases shall have the meanings given to them in this
4subsection:

5"Applicant." The individual who files a motion under
6subsection (a).

7"DNA." Deoxyribonucleic acid.]

8Section 5. Section 9545(b) of Title 42 is amended to read:

9§ 9545. Jurisdiction and proceedings.

10* * *

11(b) Time for filing petition.--

12(1) Any petition under this subchapter, including a
13second or subsequent petition, shall be filed within one year
14of the date the judgment becomes final, unless the petition
15alleges and the petitioner proves that:

16(i) the failure to raise the claim previously was
17the result of interference by government officials with
18the presentation of the claim in violation of the
19Constitution or laws of this Commonwealth or the
20Constitution or laws of the United States;

21(ii) the facts upon which the claim is predicated
22were unknown to the petitioner and could not have been
23ascertained by the exercise of due diligence; or

24(iii) the right asserted is a constitutional right
25that was recognized by the Supreme Court of the United
26States or the Supreme Court of Pennsylvania after the
27time period provided in this section and has been held by
28that court to apply retroactively.

29(2) Any petition invoking an exception provided in
30paragraph (1) shall be filed within [60 days] one year of the

1date the claim could have been presented.

2(3) For purposes of this subchapter, a judgment becomes
3final at the conclusion of direct review, including
4discretionary review in the Supreme Court of the United
5States and the Supreme Court of Pennsylvania, or at the
6expiration of time for seeking the review.

7(4) For purposes of this subchapter, "government
8officials" shall not include defense counsel, whether
9appointed or retained.

10(5) This subsection does not apply to a petition filed
11under Subchapter E (relating to postconviction DNA testing).

12* * *

13Section 6. Chapter 95 of Title 42 is amended by adding a
14subchapter to read:

15SUBCHAPTER E

16POSTCONVICTION DNA TESTING

17Sec.

189581. Short title of subchapter.

199582. Definitions.

209583. Right to file petition for DNA testing.

219584. Form of petition.

229585. Filing, docketing and effect of petition.

239586. Counsel for indigent petitioners.

249587. Dismissal or acceptance for adjudication.

259588. Proceedings on petition.

269589. Comparisons with CODIS data.

279590. Discovery.

289591. Testing procedures.

299592. Appeal.

309593. Procedure after test results.

1§ 9581. Short title of subchapter.

2This subchapter shall be known and may be cited as the
3Pennsylvania Postconviction DNA Testing Act.

4§ 9582. Definitions.

5The following words and phrases when used in this subchapter
6shall have the meanings given in this section unless the context
7clearly indicates otherwise:

8"Biological evidence." The contents of a sexual assault
9examination kit and any item that contains blood, semen, hair,
10saliva, skin tissue, fingernail scrapings, bone, bodily fluids
11or other biological material that was collected as part of the
12criminal investigation that may be probative of the
13perpetrator's identity or may reasonably be used to incriminate
14or exculpate any person for the offense. This definition applies
15whether that material is cataloged separately, e.g., on a slide
16or swab or in a test tube, or is present on other evidence,
17including clothing, ligatures, bedding or other household
18material, drinking cups or cigarettes.

19"CODIS." The Federal Combined DNA Index System.

20"DNA testing." Postconviction forensic DNA testing under
21this subchapter.

22"State DNA Data Base." The State DNA Data Base established
23under 44 Pa.C.S. § 2312 (relating to State DNA Data Base).

24"Successive petition." A petition for DNA testing filed by a
25petitioner who has previously filed a petition for DNA testing.

26§ 9583. Right to file petition for DNA testing.

27Notwithstanding any other provision of law governing
28postconviction relief, an individual convicted of a crime may
29file a petition for DNA testing under this subchapter. A waiver
30of the right to file a petition for DNA testing is not

1effective, whether the purported waiver is made by itself, as
2part of an agreement resulting in a plea of guilty or nolo
3contendere, or in any other manner.

4§ 9584. Form of petition.

5(a) Contents of petition.--The petition for DNA testing must
6be made under oath by the petitioner and must include the
7following:

8(1) A statement of the facts relied on in support of the
9petition, including a description of the physical evidence
10containing DNA to be tested and, if known, the present
11location or the last known location of the evidence and how
12it was originally obtained.

13(2) A statement that the evidence was not previously
14tested for DNA or a statement that subsequent scientific
15developments in DNA testing techniques would likely produce a
16definitive result establishing that the petitioner is not the
17person who committed the crime.

18(3) A statement that the petitioner is innocent of a
19crime for which the petitioner was sentenced.

20(4) In a successive petition, the person's certification
21that he has not filed a previous petition on similar grounds,
22and a statement of the reason for the petitioner's failure to
23raise the current grounds in the previous petition.

24(5) A statement describing how the requested DNA testing
25will exonerate the defendant of the crime or will mitigate
26the sentence received by the petitioner for the crime.

27(6) The petitioner's consent to provide samples of
28bodily fluid for use in the DNA testing.

29(7) The petitioner's consent that the data from any DNA
30samples or test results obtained as a result of the petition

1may be entered into law enforcement databases, used in the
2investigation of other crimes or used as evidence against the
3petitioner in other cases.

4(b) Form.--If the Supreme Court promulgates an official form
5for a petition for DNA testing, the Department of Corrections
6shall make the form available to prisoners.

7§ 9585. Filing, docketing and effect of petition.

8(a) Filing.--A request for DNA testing may be filed at any
9time following sentencing, and shall be by written petition and
10be filed with the clerk of courts of the judicial district in
11which the sentence was imposed.

12(b) Notice to the Commonwealth.--A copy of the petition
13shall be served on the attorney for the Commonwealth. The
14Commonwealth may respond in accordance with the Pennsylvania
15Rules of Criminal Procedure.

16(c) Court rules.--Except as otherwise provided in this
17subchapter, the Pennsylvania Rules of Criminal Procedure apply
18to a petition for DNA testing, and the petition shall be
19considered a petition for postconviction collateral relief under
20those rules.

21(d) Effect of filing petition.--

22(1) The filing of a petition for forensic DNA testing
23constitutes the petitioner's consent to provide samples of
24bodily fluid for use in the DNA testing.

25(2) The filing of the petition also constitutes the
26consent of the petitioner that the data from any DNA samples
27or test results obtained as a result of the petition may be
28entered into law enforcement databases, used in the
29investigation of other crimes or used as evidence against the
30petitioner in other cases.

1(3) The court shall ensure that the petitioner has filed
2the petition with knowledge of paragraphs (1) and (2) and has
3knowingly and intelligently consented to their provisions.
4Averments in the petition as provided under section 9584(a)
5(6) and (7) (relating to form of petition), or a written
6representation that the petitioner has filed the petition
7with knowledge of paragraphs (1) and (2) and has knowingly
8and intelligently consented to their provisions, filed of
9record and signed by petitioner or counsel for the
10petitioner, is sufficient to establish consent under this
11paragraph.

12(e) Inventory.--Upon receipt of a petition for DNA testing,
13the Commonwealth shall promptly prepare an inventory of the
14evidence related to the case and serve a copy of the inventory
15to the prosecution, the petitioner, the petitioner's attorney
16and the court.

17§ 9586. Counsel for indigent petitioners.

18(a) Request for counsel.--An indigent, convicted individual
19may request appointment of counsel to prepare a petition for DNA
20testing by sending a written request to the court. The request
21shall include the individual's statement that he was not the
22perpetrator of the crime and that DNA testing is relevant to his
23assertion of innocence. The request also shall include the
24individual's statement as to whether he previously has had
25counsel appointed under this section. If any of the information
26required by this subsection is missing from the request, the
27court shall return the request to the convicted individual and
28advise him that the matter cannot be considered without the
29missing information or, if the Supreme Court has promulgated a
30form for a request for appointment of counsel to prepare a

1petition for DNA testing, the court may send him that form.

2(b) Appointment of counsel.--Upon a finding that the
3individual is indigent:

4(1) If counsel has not previously been appointed under
5this subsection, the court shall appoint counsel to
6investigate and, if appropriate, to file a petition for DNA
7testing and to represent the individual solely for the
8purpose of obtaining the testing.

9(2) If counsel has been previously appointed under this
10section, the court may appoint counsel to perform the duties
11described in paragraph (1).

12§ 9587. Dismissal or acceptance for adjudication.

13(a) General rule.--Unless subsection (c) applies, the court
14shall dismiss a petition on its own motion without requiring the
15Commonwealth to respond to the petition if either of the
16following apply:

17(1) The petition is frivolous.

18(2) In the case of a successive petition, the petition
19fails to meet the requirements of subsection (b).

20(b) Successive petitions.--The court shall hear a successive
21petition if the petition alleges substantially new or different
22grounds for relief, including factual, scientific or legal
23arguments not previously presented, or the availability of more
24advanced DNA technology that provides a reasonable probability
25of more probative results.

26(c) Interests of justice.--The court may adjudicate any
27petition under this subchapter if the interests of justice so
28require.

29§ 9588. Proceedings on petition.

30(a) Criteria for relief.--Unless the court dismisses a

1petition under section 9587 (relating to dismissal or acceptance
2for adjudication), the court shall promptly conduct a hearing on
3the petition. The court shall grant the DNA testing requested by
4the petition if it finds all of the following:

5(1) The petitioner has demonstrated a reasonable
6probability that the petitioner would not have been convicted
7or would have received a lesser sentence if favorable results
8had been obtained through DNA testing, under this subchapter
9or under previously applicable law, at the time of the
10original prosecution.

11(2) The evidence to be tested was secured in relation to
12the offense underlying the challenged conviction and one of
13the following applies:

14(i) The evidence was not previously subjected to DNA
15testing under this subchapter or under previously
16applicable law.

17(ii) Although previously subjected to DNA testing
18under this subchapter or under previously applicable law,
19the evidence can be subjected to additional DNA testing
20that provides a reasonable likelihood of more probative
21results.

22(3) At least one item of evidence that the petitioner
23seeks to have tested is in existence.

24(4) The chain of custody of the evidence to be tested
25establishes that the evidence has not been tampered with,
26replaced or altered in any material respect or, if the chain
27of custody does not establish the integrity of the evidence,
28the results of the DNA testing can establish the integrity of
29the evidence. Evidence that has been in the custody of law
30enforcement, other government officials or a public or

1private hospital shall be presumed to satisfy this paragraph,
2absent specific evidence of material tampering, replacement
3or alteration.

4(5) The petition is made to demonstrate factual
5innocence or the appropriateness of a lesser sentence and not
6solely to unreasonably delay the execution of sentence or the
7administration of justice.

8(b) Other orders.--The court may make such other orders as
9may be appropriate in connection with proceedings under this
10subchapter, either on its own initiative or on motion of any
11party to the proceedings.

12§ 9589. Comparisons with CODIS data.

13For purposes of supporting a petition under this subchapter,
14a petitioner may request and the court may order a law
15enforcement entity that has access to CODIS or the State DNA
16Data Base to submit the DNA profile obtained from probative
17biological material from crime scene evidence to those databases
18to determine whether that profile matches a profile of a known
19individual or a profile from an unsolved crime. The DNA profile
20submitted to the databases must comply with the Federal Bureau
21of Investigation's requirements for the uploading of crime scene
22profiles to CODIS.

23§ 9590. Discovery.

24(a) Court orders.--At any time after a petition has been
25filed under this subchapter, the court may order the
26Commonwealth to do any or all of the following:

27(1) Locate and provide the petitioner with any reports,
28notes, logs or other documents relating to items of physical
29evidence collected in connection with the case, or otherwise
30assist the petitioner in locating items of biological

1evidence that the Commonwealth contends have been lost or
2destroyed.

3(2) Take reasonable measures to locate biological
4evidence that may be in the custody of the Commonwealth.

5(3) Assist the petitioner in locating evidence that may
6be in the custody of a public or private hospital, public or
7private laboratory or other facility.

8(4) Produce laboratory reports prepared in connection
9with the DNA testing, as well as the underlying data and the
10laboratory notes, if evidence had previously been subjected
11to DNA testing under this subchapter or previously applicable
12law.

13(b) Previous testing.--If the prosecution or the petitioner
14previously conducted DNA testing or other testing of biological
15evidence without knowledge of the other party, that testing
16shall be revealed in the petition for testing or the response.

17(c) Reports and data.--If the court orders new DNA testing,
18the court shall order the production of any laboratory reports
19prepared in connection with the DNA testing. The court may also
20order production of the underlying data or other laboratory
21documents.

22(d) Results.--The results of the DNA testing shall be
23disclosed to the prosecution, the petitioner and the court.

24§ 9591. Testing procedures.

25(a) Court supervision.--The court may order any or all of
26the following:

27(1) The preservation of some portion of the sample for
28replication of the test.

29(2) Additional DNA testing, if the results of the
30initial testing are inconclusive or additional scientific

1analysis of the results is otherwise required.

2(3) The collection and DNA testing of additional
3reference samples for comparison purposes.

4(b) Selection of laboratory.--DNA testing shall be conducted
5by a laboratory mutually selected by the Commonwealth and the
6petitioner. If the Commonwealth and the petitioner are unable to
7agree on a laboratory, the testing shall be conducted by a
8laboratory selected by the court. If the petitioner is indigent,
9the testing shall be conducted by the Pennsylvania State Police
10or, at the Pennsylvania State Police's sole discretion, by a
11laboratory designated by the Pennsylvania State Police. A
12laboratory selected under this subsection must be accredited.

13(c) Costs.--The costs of DNA testing shall be paid by the
14petitioner, or in the case of an indigent petitioner, by the
15Commonwealth.

16(d) Testing by the Pennsylvania State Police.--DNA testing
17conducted by the Pennsylvania State Police shall be carried out
18in accordance with the protocols and procedures established by
19the Pennsylvania State Police and approved by ASCLD/LAB.

20(e) Confidentiality.--DNA profile information from
21biological samples taken from any individual under this
22subchapter is exempt from any law requiring disclosure of
23information to the public.

24(f) Definitions.--As used in this section, the following
25words and phrases shall have the meanings given to them in this
26subsection:

27"Accredited." Accredited by ASCLD/LAB.

28"ASCLD/LAB." The Laboratory Accreditation Board of the
29American Society of Crime Laboratory Directors.

30§ 9592. Appeal.

1A petitioner may appeal a decision denying DNA testing under
2the Pennsylvania Rules of Appellate Procedure.

3§ 9593. Procedure after test results.

4(a) Results favorable to petitioner.--If the results of DNA
5testing are favorable to the petitioner, the court shall conduct
6a hearing to determine the appropriate relief to be granted.
7Based on the results of the testing and any evidence or other
8matter presented at the hearing, the court shall thereafter
9enter any order that serves the interests of justice. An order
10under this subsection may:

11(1) Set aside or vacate the petitioner's judgment of
12conviction, judgment of not guilty by reason of mental
13disease or defect or adjudication of delinquency.

14(2) Grant the petitioner a new trial or fact-finding
15hearing.

16(3) Grant the petitioner a new sentencing hearing,
17commitment hearing or dispositional hearing.

18(4) Discharge the petitioner from custody.

19(5) Specify the disposition of any evidence that remains
20after the completion of the testing.

21(6) Grant the petitioner additional discovery on matters
22related to DNA test results or the conviction or sentence
23under attack, including documents pertaining to the original
24criminal investigation or the identities of other suspects.

25(7) Direct the Commonwealth to place any unidentified
26DNA profile obtained from DNA testing into CODIS or the State
27DNA Data Base.

28(b) Results unfavorable to petitioner.--If the results of
29the tests are not favorable to the petitioner, the court shall
30dismiss the petition and may make any further orders that are

1appropriate. An order under this section may:

2(1) Direct that the Pennsylvania Board of Probation and
3Parole be notified of the test results.

4(2) Direct that the petitioner's DNA profile be added to
5the Commonwealth's convicted offender database.

6Section 7. Title 44 is amended by adding a section to read:

7§ 2319.1. Comparisons with CODIS data.

8For purposes of obtaining exculpatory evidence prior to trial
9or supporting an application for executive clemency, a court may
10order that a law enforcement entity that has access to CODIS or
11the State DNA Data Base to submit the DNA profile obtained from
12probative biological material from crime scene evidence to
13determine whether that profile matches a profile of a known
14individual or a profile from an unsolved crime. The DNA profile
15submitted to the data bases must comply with the Federal Bureau
16of Investigation's requirements for the uploading of crime scene
17profiles to CODIS.

18Section 8. Title 44 is amended by adding a part to read:

19PART V

20FORENSIC LABORATORIES

21Chapter

2291. Preliminary Provisions (Reserved)

2393. Accreditation

2495. Oversight

25CHAPTER 91

26PRELIMINARY PROVISIONS

27(RESERVED)

28CHAPTER 93

29ACCREDITATION

30Subchapter

1A. Public Laboratories

2B. (Reserved)

3SUBCHAPTER A

4PUBLIC LABORATORIES

5Sec.

69301. Definitions.

79302. Technical peer review system.

89303. Proficiency testing program.

99304. Accreditation.

109305. External investigation.

11§ 9301. Definitions.

12The following words and phrases when used in this subchapter
13shall have the meanings given to them in this section unless the
14context clearly indicates otherwise:

15"Forensic laboratory." A laboratory operated by the
16Commonwealth or a municipality whose experts perform forensic
17tests and provide opinion testimony in a court of law.

18"Forensic test." A medical, chemical, toxicological,
19ballistic or other expert examination or test performed on
20physical evidence, including DNA evidence, to determine the
21association of evidence to a crime.

22"Nationally recognized accreditation standards." Standards
23adopted by the American Society of Crime Laboratory Directors
24Laboratory Accreditation Board, the American Board of Forensic
25Toxicology or a similar board that covers a forensic test or
26examination done by a forensic investigator or scientist.

27"Physical evidence." A tangible object or substance relating
28to a crime.

29"Proficiency testing program." A program whereby the
30competency of analysis and the quality of performance of a

1laboratory is evaluated by external testing.

2"Technical peer review system." A system whereby the
3casework by an employee of a forensic laboratory is reviewed for
4administrative and technical correctness by a qualified
5administrator or peer or both.

6§ 9302. Technical peer review system.

7All forensic laboratories shall have a technical peer review
8system sufficient to meet or exceed nationally recognized
9accreditation standards.

10§ 9303. Proficiency testing program.

11All forensic laboratories shall have a proficiency testing
12program sufficient to meet or exceed nationally recognized
13accreditation standards.

14§ 9304. Accreditation.

15(a) General rule.--All forensic laboratories shall be
16accredited by a nationally recognized accrediting board for the
17forensic tests performed by the forensic laboratory.

18(b) Exception.--A forensic laboratory may be exempt from the
19accreditation required under subsection (a) if independent
20accreditation by a nationally recognized accrediting board is
21unavailable or inappropriate for the forensic laboratory or the
22applicable forensic test.

23§ 9305. External investigation.

24The Commonwealth and municipalities with forensic
25laboratories shall have a governmental entity with an
26appropriate process in place to independently, externally
27investigate allegations of serious negligence or misconduct
28committed by employees or contractors of the forensic laboratory
29that substantially affect the integrity of forensic results.

30SUBCHAPTER B

1(RESERVED)

2CHAPTER 95

3OVERSIGHT

4Subchapter

5A. Advisory Board

6B. (Reserved)

7SUBCHAPTER A

8ADVISORY BOARD

9Sec.

109501. Establishment.

119502. Powers and duties.

129503. Cooperation.

139504. Report.

149505. Investigations.

15§ 9501. Establishment.

16(a) Membership.--There is established a Forensic Advisory
17Board, which shall consist of:

18(1) The director of the Pennsylvania State Police's
19Bureau of Forensic Services, ex officio.

20(2) A forensic scientist employed by the Pennsylvania
21State Police's Bureau of Forensic Services.

22(3) Two forensic scientists employed by accredited,
23privately operated forensic laboratories.

24(4) A director of a forensic laboratory operated by a
25municipality.

26(5) The Attorney General, ex officio.

27(6) A full-time, sworn chief of police.

28(7) A district attorney.

29(8) A public defender.

30(9) A criminal defense attorney who is not a public

1defender.

2(10) A judge from a court of common pleas.

3(11) A criminal justice or forensic science faculty
4member from the Pennsylvania State System of Higher
5Education.

6(12) A board-certified forensic pathologist who is a
7coroner or medical examiner.

8(b) Terms.--The members under subsection (a)(1) and (5)
9shall serve ex officio. The member under subsection (a)(2) shall
10serve at the pleasure of the director of the Pennsylvania State
11Police's Bureau of Forensic Services. All other members shall
12serve a term of three years, except the members initially
13appointed under subsection (a)(7), (9) and (12), whose initial
14term shall be one year and the members initially appointed under
15subsection (a)(8) and (11) and one of those appointed under
16subsection (a)(3), whose initial term shall be two years.
17Vacancies shall be filled by the appointing authority for the
18remainder of the vacated term.

19(c) Appointments.--The member under subsection (a)(2) shall
20be appointed by the director of the Pennsylvania State Police's
21Bureau of Forensic Services. The ex officio members may
22designate a substitute to serve on the Forensic Advisory Board.
23The member appointed under subsection (a)(4) may designate a
24subordinate who is a forensic scientist to substitute for and
25serve on the Forensic Advisory Board. The chief justice shall
26appoint the member under subsection (a)(10). All other members
27shall be appointed by the Governor. Members may be reappointed.
28The board may annually select a chairman and vice chairman, who
29shall be selected from the members under subsection (a)(3),(10),
30(11) and (12).

1(d) Quorum.--Seven members of the Forensic Advisory Board
2constitute a quorum.

3§ 9502. Powers and duties.

4(a) Recommendations.--The Forensic Advisory Board shall
5review and make recommendations as to how best to configure,
6fund and improve the delivery of State and municipal forensic
7laboratory services. To the extent feasible, the review and
8recommendations shall include, but are not limited to,
9addressing the following issues:

10(1) If the existing mix of Commonwealth and municipal
11forensic laboratories is the most effective and efficient
12means to meet current and projected needs.

13(2) Whether publicly operated forensic laboratories
14should be consolidated. If consolidation occurs, who should
15have oversight of forensic laboratories.

16(3) Whether all publicly operated forensic laboratories
17should provide similar services or if certain services should
18be centralized.

19(4) Consideration of how other states manage and oversee
20their forensic laboratories.

21(5) With respect to staff and training, consideration of
22the following:

23(i) How to address recruitment and retention of
24forensic laboratory staff.

25(ii) Whether educational and training opportunities
26are adequate to meet projected staffing requirements of
27publicly operated forensic laboratories.

28(iii) Whether continuing education is available to
29ensure that forensic science personnel are up-to-date in
30their fields of expertise.

1(iv) If forensic laboratory personnel should be
2certified and if so, the appropriate certifier.

3(v) Whether continuing education available to the
4bar and judiciary adequately serves the needs of the
5criminal justice system.

6(6) With respect to funding, consideration of the
7following:

8(i) Whether the current method of funding publicly
9operated forensic laboratories is predictable, stable and
10adequate to meet future growth demands and to provide
11accurate and timely testing results.

12(ii) The adequacy of salary structures at publicly
13operated forensic laboratories to attract and retain
14competent analysts and examiners.

15(iii) Whether publicly operated forensic
16laboratories are appropriately maximizing their
17opportunities to receive grants and other supplements.

18(7) With respect to performance standards and equipment,
19consideration of the following:

20(i) Whether workload demands at publicly operated
21forensic laboratories are being prioritized properly to
22deal with backlogs and whether there are important
23workload issues not being addressed.

24(ii) If existing publicly operated forensic
25laboratories have the necessary capabilities, staffing
26and equipment.

27(iii) Whether publicly operated forensic
28laboratories are compliant with Chapter 93 (relating to
29accreditation).

30(b) Reporting system.--The Forensic Advisory Board shall

1develop and implement a reporting system through which a
2publicly operated forensic laboratory reports professional
3negligence and misconduct.

4(c) Standards.--The Forensic Advisory Board shall promulgate
5standards it approves under 42 Pa.C.S. § 9502(c) (relating to
6preservation of biological evidence).

7(d) Training.--The Forensic Advisory Board may coordinate,
8offer and collect a fee to train or otherwise provide continuing
9education relating to forensic science and its applications to
10criminal investigators, crime scene investigators, prosecutors,
11defense attorneys, judges, forensic nurses, coroners, medical
12examiners, forensic scientists and others involved in criminal
13justice who would benefit from these educational opportunities.

14§ 9503. Cooperation.

15Forensic laboratories operated by the Commonwealth and
16municipalities shall cooperate with and assist the Forensic
17Advisory Board. Administrative support for the Forensic Advisory
18Board shall be provided by the Governor's Office.

19§ 9504. Report.

20The Forensic Advisory Board shall periodically report its
21recommendations and basis for its recommendations as well as the
22results of any investigations to the investigated entity or
23party, the Governor and the General Assembly. The
24recommendations shall be made publicly accessible.

25§ 9505. Investigations.

26(a) Professional negligence; misconduct.--For an
27investigation under section 9305 (relating to external
28investigation), the Forensic Advisory Board shall timely
29investigate any allegation reported under section 9502(b)
30(relating to powers and duties) and may investigate other

1allegations of professional negligence or misconduct that would
2substantially affect the integrity of the results of forensic
3analyses.

4(b) Costs.--Any costs incurred by the board shall be borne
5by the laboratory, facility or entity being investigated.

6(c) Assistance.--If necessary, the board may contract with a
7qualified person or ask any publicly employed forensic scientist
8to assist the board in fulfilling its duties under this section.
9In obtaining assistance under this subsection, the board may
10neither ask nor accept assistance from a forensic scientist
11employed by a publicly operated forensic laboratory that is the
12subject of the investigation.

13(d) Recusal.--Any member of the board associated with a
14publicly operated forensic laboratory that is the subject of an
15investigation under this section must recuse himself from any
16deliberation and action the board might take in the matter.

17(e) Duties.--The board shall:

18(1) Prepare a written report that identifies and
19describes all methods and procedures used to discover the
20alleged actions, whether the allegations are founded and any
21corrective actions taken or suggested.

22(2) Conduct retrospective examinations of other forensic
23analyses to determine if a pattern of negligence or
24misconduct exists and to perform follow-up examinations to
25make certain any and all corrective actions were properly
26implemented.

27(3) Ensure compliance with established retention and
28preservation of evidence regulations.

29SUBCHAPTER B

30(RESERVED)

1Section 9. This act shall take effect as follows:

2(1) The following provisions shall take effect
3immediately:

4(i) This section.

5(ii) The addition of 44 Pa.C.S. § 9301 and Ch. 95.

6(2) The addition of 44 Pa.C.S. § 9302 shall take effect
7in three years.

8(3) The addition of 44 Pa.C.S. § 9303 shall take effect
9in five years.

10(4) The addition of 44 Pa.C.S. § 9304 shall take effect
11in seven years.

12(5) The addition of 44 Pa.C.S. § 9305 shall take effect
13in two years.

14(6) The remainder of this act shall take effect in 120
15days.