Com. v. Brison

• Decision Date: 10 December 1992
• Citation: 421 Pa.Super. 442,618 A.2d 420
• Parties: , 61 USLW 2407 COMMONWEALTH of Pennsylvania v. Dale BRISON, Appellant.
• Court: Pennsylvania Superior Court

Page 420

618 A.2d 420

421 Pa.Super. 442, 61 USLW 2407

COMMONWEALTH of Pennsylvania v. Dale BRISON, Appellant.

Superior Court of Pennsylvania.

Submitted Oct. 13, 1992.

Filed Dec. 10, 1992.

Vincent P. DiFabio, Paoli, for appellant.

Terry Heyman, Asst. Dist. Atty., West Chester, for Com., appellee.

Before McEWEN, CIRILLO and BROSKY, JJ.

BROSKY, Judge.

This is an appeal from the judgment of sentence entered following appellant's convictions for one count of rape, ¹ kidnapping, ² aggravated assault ³ and carrying a prohibited offensive weapon, ⁴ and three counts of involuntary deviate sexual intercourse. ⁵ Appellant presents the following issues for our review: (1) whether the verdict was against the evidence and/or the weight of the evidence; (2) whether appellant's constitutional right to a fair trial was violated by the Commonwealth's failure to comply with appellant's request for DNA testing; and (3) whether appellant was denied his constitutional right to a fair trial and effective representation by the trial court's failure to grant appellant's request for DNA testing in light of appellant's indigent status. For the reasons set forth below, we vacate the judgment of sentence and remand for further proceedings consistent with the following discussion.

Before proceeding to address the questions raised by appellant, it is necessary to briefly recount the relevant facts of this case. Shortly after midnight on July 14, 1990, the victim ⁶ left her apartment and proceeded towards Penn Supreme, a late-night convenience store. As she approached the store, the victim observed an individual, whom she later identified as appellant, Dale Brison, standing near a pay telephone. The victim continued walking when appellant suddenly approached her and placed one hand about her throat and the other about her waist. The victim heard a clicking noise, similar to a switchblade knife being opened, and experienced a sharp pain in her left side. The victim then fainted for a brief period of time. When she regained consciousness, she found herself walking on another street with appellant's hands still about her throat and waist. The victim tried to escape from appellant by attempting to sit down near some stone pillars and by grabbing onto a sign. The victim also screamed. The victim's efforts to escape were thwarted by appellant who threatened the victim and instructed her not to scream. Appellant ultimately led the victim into briar bushes located outside of an apartment complex. Appellant removed the victim's raincoat, her left shoe and sock, and the left leg of her jeans. Appellant then forced the victim to perform and/or submit to multiple acts of fellatio and cunnilingus. Appellant also vaginally and anally raped the victim several times. After completing his brutal assault, appellant released the victim at approximately 2:45 a.m.

When the victim arrived at her home, she discovered that she was heavily bleeding from the stab wounds inflicted by appellant. The victim also had abrasions on her neck and hand which were sustained during the incident. The victim contacted the police who transported her to the hospital where she was treated for her injuries. A rape kit was also performed on the victim. ⁷

Although the victim had observed appellant in the neighborhood, she did not know his name. The victim accompanied the police on several outings in an attempt to identify her assailant. On the third outing, the victim noticed appellant and mentioned this to the officer after they had walked past a group of individuals with whom appellant was standing. However, appellant had disappeared by the time the victim and the police officer returned for a closer look. Several days later, the victim observed a group of individuals standing outside her apartment building and became visibly upset when she recognized appellant in the crowd. A friend of the victim's, who was driving past, noticed the victim's distraught state and escorted her to the police station. The victim described appellant to her friend, who had also seen appellant. The victim's friend, who knew appellant, informed the police of his identity. Appellant was thereafter arrested and charged with various offenses arising out of this incident.

A jury trial was held in June 1991, following which appellant was convicted of the above crimes. Post-trial motions were filed and denied. Appellant was subsequently sentenced on February 25, 1992 to an aggregate sentence of eighteen (18) to forty-two (42) years' imprisonment. ⁸ This timely appeal followed. ⁹

Appellant first challenges the weight of the evidence presented. ¹⁰ Our scope of review regarding claims of this type has been enunciated as follows:

Whether a new trial should be granted on grounds that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge and his decision will not be reversed on appeal unless there has been an abuse of discretion.... The test is not whether the court would have decided the case the same way but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail.

Commonwealth v. Murray, 408 Pa.Super. 435, 436-437, 597 A.2d 111, 112 (1991) (en banc), allocatur denied, 529 Pa. 668, 605 A.2d 333 (1992), quoting Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1230 (1984). We will evaluate the evidence and appellant's arguments relating thereto in accordance with these principles.

In support of his attacks on the sufficiency and weight of the evidence, appellant claims that the evidence was deficient in that the victim was unable to make a positive identification due to a variety of factors. Appellant further argues that the evidence was inadequate because the physical evidence did not link appellant to the crimes and/or suggested that the victim was attacked by someone else. Finally, appellant contends that the evidence was deficient because he presented an uncontradicted alibi. Notwithstanding appellant's arguments to the contrary, he is not entitled to relief on this basis.

The victim unequivocally and consistently testified that she was able to observe her assailant for a substantial period of time despite the darkened location, rain and diminished lighting conditions. N.T. 6/3/91 at 9, 10, 12, 16, 18, 21, 22 and 77. Moreover, the victim has consistently identified appellant as the perpetrator of the crime. Id. at 26-29. Although the victim did not describe appellant's facial features or distinguishing facial characteristics to the police, the victim's lack of specific details was a matter for the jury to consider in evaluating the victim's credibility and does not render her otherwise positive identification inherently unreliable. With regard to the physical evidence, i.e., appellant's clothing, jewelry and the footprints obtained from the site of the assault, there is no question that these items either were not recovered or failed to conclusively connect appellant to the crime. The absence of such evidence, however, is not fatal to the Commonwealth's case. Again, the absence of such evidence was a factor for the jury to consider in assessing the credibility of the victim.

The same analysis is applicable to appellant's alibi and misidentification defenses. Appellant's alibi was that he was at home watching television with his mother. Contrary to appellant's argument, appellant's alibi evidence was sufficiently rebutted by the victim's testimony and no other additional evidence was required. The jury evidently rejected appellant's alibi and mistaken identity theories and resolved the conflicting versions against appellant. In light of the evidence presented by the Commonwealth, we discern nothing shocking about the jury's verdict which makes the award of a new trial imperative. We likewise conclude that the Commonwealth's evidence was more than sufficient to establish all of the elements of the crimes for which appellant was convicted. Appellant thus is not entitled to either a new trial or an arrest of judgment on this basis.

Appellant next asserts in his second and third allegations of error that he was denied due process because both the Commonwealth and the lower court failed to have DNA testing performed on samples taken from the victim despite appellant's repeated requests and indigent status. As these matters are intertwined, they will be discussed together. Neither of the parties refers us to any relevant authority which is dispositive of appellant's claims. Our own research likewise has not disclosed any apposite Pennsylvania cases. We have nevertheless uncovered several decisions from our sister states which have had the opportunity to address questions similar to that now raised by appellant. These decisions are summarized as follows.

The New York courts first examined this question in the case of in tHE matter oF dabbs v. vergari, 149 misc.2d 844, 570 N.Y.S.2d 765 (Sup.Ct.Westchester Co.1990). In Dabbs, the defendant was tried and convicted, and his convictions were ultimately affirmed on appeal; DNA testimony was not available at the time of the defendant's trial. The defendant subsequently sought post-conviction discovery relating to DNA testing. In granting the defendant's request, the court reasoned:

it is well established that, notwithstanding the absence of a statutory right to post-conviction discovery, a defendant has a constitutional right to be informed of exculpatory information known to the State[.] [S]ee generally Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 216 (1963).... A corollary to the duty of disclosure is the duty to preserve exculpatory material[.] ... By a parity of reasoning, where evidence has been preserved which has high exculpatory potential, that evidence should be discoverable after conviction. Due process is not a technical conception with a fixed content...