Com. v. Jones

Decision Date22 November 2002
Citation811 A.2d 1057
PartiesCOMMONWEALTH of Pennsylvania v. Jonathan Paul JONES, Appellant.
CourtPennsylvania Superior Court

M. Susan Ruffner, Public Defender, Pittsburgh, for appellant.

Michael W. Streily, Deputy District Attorney and Karen Edwards, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Before: FORD ELLIOTT, KLEIN, and MONTEMURO,1 JJ.

FORD ELLIOTT, J.

¶ 1 In this appeal we are asked to determine whether trial counsel was ineffective for failing to object to certain portions of the Commonwealth's expert's testimony and to the prosecutor's allegedly improper closing argument. For the reasons that follow, we affirm.

¶ 2 Appellant was charged with three counts of burglary, three counts of rape, two counts of aggravated indecent assault, two counts of robbery, and one count of simple assault in connection with the nighttime attacks on three elderly women in their homes.2 Following a six-day jury trial, appellant, who was represented by court-appointed counsel Suzanne Filliaggi, Esq., was found not guilty of one count of rape but guilty of all remaining counts. On February 13, 2001, the trial court sentenced appellant to 10 to 20 years' incarceration on each of the 3 counts of burglary; 10 to 20 years' incarceration on each of the 2 counts of rape; 10 to 20 years' incarceration on each of the 2 counts of robbery; 5 to 10 years' incarceration on each of the 2 counts of aggravated indecent assault; and no further penalty for simple assault. All sentences were imposed consecutively, for an aggregate sentence of 80 to 160 years' incarceration.

¶ 3 For reasons that are not clear from the record, appellant proceeded pro se, filing an untimely petition for reconsideration of sentence on February 26, 2001 and a timely notice of appeal on March 7, 2001.3 Appellant also filed a motion for recusal of the trial court, the Honorable Jeffrey A. Manning, on March 14, 2001. New counsel, James. R. Wilson, Esq., was eventually appointed and filed an amended notice of appeal and a statement of matters complained of on appeal. Appellant raises the following issues on appeal:

I. DID TRIAL COUNSEL RENDER INEFFECTIVE ASSISTANCE IN FAILING TO OBJECT TO TESTIMONY BY A DNA EXPERT THAT THE DEFENDANT'S DNA PROFILE WAS UNIQUE AND THAT HE WAS THE SOURCE OF THE DNA FOUND AT THE CRIME SCENE?

II. WAS THE DEFENDANT DENIED [A] FAIR TRIAL BY THE IMPROPER CLOSING ARGUMENT [OF THE] PROSECUTING ATTORNEY, WHICH ARGUED FACTS NOT IN EVIDENCE?

III. DID TRIAL COUNSEL RENDER INEFFECTIVE ASSISTANCE IN FAILING TO OBJECT TO THE IMPROPER CLOSING REMARKS OF THE PROSECUTING ATTORNEY THAT THE TESTIMONY OF

THE DNA EXPERT ESTABLISHED THE DEFENDANT'S GUILT TO A MATHEMATICAL CERTAINTY?

Appellant's brief at 9.

¶ 4 "To prevail on a claim alleging counsel's ineffectiveness, Appellant must demonstrate (1) that the underlying claim is of arguable merit; (2) that counsel's course of conduct was without a reasonable basis designed to effectuate his client's interest; and (3) that he was prejudiced by counsel's ineffectiveness." Commonwealth v. Wallace, 555 Pa. 397, 407, 724 A.2d 916, 921 (1999), citing Commonwealth v. Howard, 538 Pa. 86, 93, 645 A.2d 1300, 1304 (1994) (other citation omitted). In order to meet the prejudice prong of the ineffectiveness standard, a defendant must show that there is a "`reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Commonwealth v. Kimball, 555 Pa. 299, 308, 724 A.2d 326, 331 (1999), quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A "`[r]easonable probability' is defined as `a probability sufficient to undermine confidence in the outcome.'" Id. at 309, 724 A.2d at 331, quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

¶ 5 In this case, appellant claims counsel was ineffective for failing to object to the testimony of the Commonwealth's DNA expert, Katherine Colombo, who testified to a reasonable degree of scientific certainty that appellant was the source of the DNA in the samples she studied. (Notes of testimony, 10/13-18/00 at 400-401.) According to appellant, Colombo's testimony did not merely assist the jury in understanding the evidence; it invited the jury to substitute her judgment for their own. (Appellant's brief at 19.) Appellant also claims that "it is not clear that it is generally accepted in the scientific community that a genetic profile, even using 13 locations, can specifically identify an individual." (Id. at 20.) As appellant opines, "[N]o Frye4 hearing was held in this case to make that determination. And there is evidence that such a finding has not achieved general acceptance in the scientific community." (Id.)

¶ 6 Appellant does not specifically claim counsel was ineffective for failing to request a Frye hearing. He does, however, argue that counsel was ineffective for failing to object to Colombo's testimony identifying appellant as the source of the DNA found at the crime scene because our supreme court has not yet held that the scientific community has generally accepted DNA testing as a means of identifying a particular individual. In his conclusion, appellant requests either a new trial or a Frye hearing. (Appellant's brief at 27.) Thus, while appellant has not precisely raised counsel's ineffectiveness for failing to request a Frye hearing, we will address the issue in the interest of finality and because it is suggested by his first issue and argued in both the summary of the argument and argument sections of his brief. See Pa.R.App.P. 2116(a), 42 Pa. C.S.A. ("ordinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby [ ]") (emphasis added).

¶ 7 We begin our analysis by focusing on Colombo's testimony leading up to her allegedly improper conclusion. Colombo, who is a senior DNA analyst with Cellmark Diagnostics, examined DNA samples from the three crimes using PCR and STR testing.5 These samples, which had previously been examined by two Allegheny County criminalists, had been taken from the victims' bodies, pajamas, underpants, and bed linens. (Notes of testimony, 10/13-18/00 at 389-390.)

¶ 8 Colombo testified at length, using charts to illustrate the findings of the testing done on the various samples. (Id. at 390-399.) As Colombo explained, samples will include both a sperm fraction (SF) and a non-sperm fraction (NSF) in an alleged sexual assault. (Id. at 393.) Various procedures are conducted to separate the different fractions, and the sperm fraction is then compared with the profile of the suspected perpetrator's DNA. In this case, Colombo had enough DNA to do both profiler plus testing, which looks at nine genetic regions, and co-filer testing, which looks at six genetic regions, two of which overlap with the nine genetic regions in the profiler-plus testing.

¶ 9 Based on the nine genetic regions Colombo was able to examine using profiler plus testing, she testified that the profile frequency for Caucasians is one in 9.6 billion individuals, and for African-Americans it is one in 10 billion individuals. (Id. at 400.) Looking at all 13 genetic locations (nine plus six minus two) examined in the co-filer testing, Colombo testified that the profile frequency for Caucasians is one in 1.3 times ten to the fifteenth power, and for African-Americans, one in two times ten to the fifteenth power. (Id. at 400-401.)6 As a result of her analysis, Colombo testified to a reasonable degree of scientific certainty and without objection:

Based on the facts that the profiles are matching at either all nine or all 13 locations and based on the profile frequency generated in this case, it is my opinion that [appellant] is the source of the DNA in the samples that I mentioned, the profiles were consistent with his types.

Id. at 401.

¶ 10 Defense counsel immediately began cross-examination, during which Colombo opined that while the numbers would be smaller when comparing two related individuals, "There is still a good degree of difference between those two people. The numbers could be lower. I think they would still indicate or identify a person." (Id. at 415.)

¶ 11 According to appellant, trial counsel was ineffective for failing to object to this testimony because the scientific community has not generally accepted DNA analysis as a means of identifying a specific individual. (Appellant's brief at 20.) Rather, according to appellant, the two Allegheny County Crime Lab technicians testified that DNA profiling is exclusionary and cannot be used to identify a particular individual as the source of the DNA. (Id.) As the Commonwealth notes, however, the Cellmark expert had available to her the technology to analyze a much larger number of genetic locations than did the County lab. Additionally, one of the technicians testified that, while the County is limited in its ability to use DNA testing as anything but an exclusionary tool, the FBI has found the use of DNA testing as an inclusionary tool to be definite. (Id. at 322-323.)

¶ 12 Based on the foregoing, we conclude that counsel was not ineffective for failing to object to Colombo's testimony or to request a Frye hearing because appellant suffered no prejudice. While appellant argues that the expert asked the jury to substitute her judgment for its, the incontrovertible fact is that the jury had before it evidence that left little if any room for a conclusion that the DNA samples belonged to someone other than appellant. Appellant argues, however, that "[i]t may well be that, the odds notwithstanding, a second individual exists in the population with this genetic profile. The statistics indicate that this profile will occur again at some point, why not today?" The jury was free to consider that argument and to reject Colombo's opinion; however, the likelihood that the jury would have ignored...

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