Commonwealth v. Hopkins, No. 941 WDA 2018

• Decision Date: 06 April 2020
• Docket Number: No. 941 WDA 2018
• Citation: 231 A.3d 855
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Gregory Scott HOPKINS, Appellant
• Court: Pennsylvania Superior Court

231 A.3d 855

COMMONWEALTH of Pennsylvania, Appellee

v.Gregory Scott HOPKINS, Appellant

No. 941 WDA 2018

Superior Court of Pennsylvania.

Argued April 3, 2019

Filed April 6, 2020

Reargument Denied June 3, 2020

Bruce A. Antkowiak, Latrobe, for appellant.

Brittany L. Smith, Assistant District Attorney, for Commonwealth, appellee.

BEFORE: PANELLA, P.J., STABILE, and McLAUGHLIN, JJ.

OPINION BY STABILE, J.:

Appellant, Gregory Scott Hopkins, who is serving a sentence of eight to sixteen years’ imprisonment for third degree murder,¹ appeals from an order denying his petition under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541 -46. The victim, Janet Walsh, was strangled to death in her apartment on September 1, 1979. The police interviewed Appellant, who admitted having a casual sexual relationship with Walsh that summer but insisted he was not with Walsh at the time of her death. In 2012, Appellant was charged with Walsh's murder following the discovery of his seminal DNA on several items recovered from the crime scene. The Commonwealth presented expert testimony from a forensic pathologist, Cyril Wecht, M.D., that the "topographical distribution" of Appellant's semen at the crime scene demonstrated he was with Walsh at the time of her death. In this appeal, Appellant argues that his trial counsel was ineffective for failing to file a Frye² motion to preclude Dr. Wecht's testimony on the ground that the methodology underlying his opinion was not generally accepted in the field of forensic pathology. We agree with Appellant. The record demonstrates that no scientific method exists for dating DNA deposits, and that Dr. Wecht's methodology is not generally accepted in the forensic pathology field. We conclude trial counsel had no reasonable basis for failing to seek preclusion of Dr. Wecht's testimony under Frye , and the admission of his testimony caused substantial prejudice to Appellant. Accordingly, we reverse and remand for a new trial.

I. Factual and Procedural History

On September 1, 1979, Walsh's father discovered her body in the bedroom of her apartment in Monaca, Pennsylvania. When police first observed her body that day, Walsh was lying face down, covered with a sheet. She was wearing a short nightgown, and her hands were bound behind her back with a cloth bathrobe belt. A bandana was wrapped around her neck, and there was a bathrobe at the foot of the bed. There was no sign of forced entry into the apartment, where she resided alone. She had recently separated from her husband, Scott Walsh, and was in the process of obtaining a divorce.

The pathologist who performed Walsh's autopsy concluded that she died from ligature strangulation between 5:00 a.m. and 7:00 a.m. on September 1, 1979. Neither the investigating officers nor the pathologist who performed the autopsy observed signs of recent sexual activity. They found no signs of semen or ejaculate on her body, on her nightgown, on the top sheet or the fitted sheet from the bed, on the tie that bound her hands, or on her ligature. A State Police criminalist conducted a close visual inspection and textile examination of the physical evidence, which included running his hands over the fabric, the clothing and ligature, and concluded there was no trace evidence of any sexual activity.

The police did not recover any foreign pubic hairs. Swab samples from Walsh's mouth and vagina revealed no evidence that she was engaged in sexual conduct. An inspection for material under her fingernails was also negative. The medical examiner concluded that Walsh had not been raped and was not having sexual intercourse at the time of her death.

On the evening before her death, Walsh went out dancing at a nightclub with friends. The last individuals with Walsh were Margie Farinacci, a friend, and Robert McGrail, a drifter who met Walsh that night and danced with her. McGrail accompanied Walsh and Farinacci to a restaurant at 2:30 a.m., where he remained until at least 3:30 a.m. McGrail's checkbook was found in a gutter in the vicinity of Walsh's apartment shortly after her murder.

At the beginning of the investigation, the police spoke to Appellant about his relationship with Walsh. Like Walsh, he was going through a divorce that summer. He admitted having casual sex with her several times in her apartment during the summer of 1979. They sometimes had sex more than once in an evening, and he sometimes ejaculated on her back. He stated that their last sexual encounter in the apartment occurred three to four weeks before her death. Appellant claimed he was not with Walsh on the morning of her death but instead he was at home several miles from her apartment, where he woke up around 5:30 a.m. with guests to prepare for a pig roast he was holding for employees in his construction business.

For more than thirty years after Walsh's death, there were no investigative leads. In 2010, using technology not available in 1979, the State Police found Appellant's seminal DNA on the top sheet that covered Walsh's body, the bathrobe belt tied around her hands, and her nightgown. In 2012, based on this DNA evidence, the Commonwealth charged Appellant with Walsh's murder and advanced the theory that Walsh died during a sexual encounter with Appellant. The trooper who testified at Appellant's preliminary hearing admitted he could not say whether semen deposits occurred on September 1, 1979 or some earlier date. The trooper did not know whether the clothing items were washed between Appellant's sexual encounter(s) with Walsh prior to September 1, 1979. Most of the DNA found on the evidence was too degraded to be tested. Appellant's DNA did not match swabs taken from Walsh's vagina and mouth on September 1, 1979, and no DNA was obtained from the bandana used to strangle Walsh.

The Commonwealth obtained an expert report from Dr. Wecht that addressed (1) how Appellant's semen was likely deposited, and (2) the probability that Appellant's seminal fluid was deposited during sex with the decedent earlier in the summer of 1979. Dr. Wecht wrote that the placement of Appellant's seminal fluid on the back of Walsh's nightgown, the cloth belt tied around her wrists, and the bed sheet "place him on the bed on top of the decedent's back at/around the time of her demise." Report, at 4. Dr. Wecht continued, "[I]t is extremely unlikely that [Appellant's] seminal fluid was deposited in those locations during the two or three previous sexual encounters [Appellant] admitted to have engaged in during the summer three weeks to a month prior to the victim's death." Id. He further opined that "the location of the seminal fluid in both areas where the fluid was identified is further consistent with the decedent's position when found." Id.

Dr. Wecht opined that the victim died due to strangulation during sexual activity hours before the discovery of her body, and that "the DNA of [Appellant's] seminal fluid would have been deposited around the time of her death based on the locations where it was identified." Id. He stated that, given the DNA analysis, there was no evidence a third person was present. "[T]he absence of any signs of struggle or forced entry into her apartment," he contended, "is a strong, logical argument that [ ] Walsh's assailant was someone she knew, and who would have been allowed entry into her apartment." Id.

Counsel for Appellant filed a pre-trial motion seeking preclusion of Dr. Wecht's expert testimony and report on two grounds. First, counsel wrote, "the proffered expert testimony does not distinctly relate to a science, skill, or occupation beyond the knowledge or experience of the average layman and is submitted only to buttress the Commonwealth's argument on its theory of the case." Appellant's Brief in Support of Motion to Preclude, 10/19/12, at 1-2. Second, counsel stated, Dr. Wecht failed to express his opinion with the requisite degree of certainty by stating the semen was "likely" deposited around the time of Walsh's death, and it was unlikely the semen was deposited on previous occasions. Id. at 5-6 (citing Commonwealth v. Davido , 582 Pa. 52, 868 A.2d 431, 441 (2003) ("[t]he expert has to testify ... that in his professional opinion the result in question came from the cause alleged. A less direct expression of opinion falls below the required standard of proof and does not constitute legally competent evidence")). Counsel, however, did not file a Frye motion to preclude the evidence on the ground that Dr. Wecht's methodology of ascertaining the date of the DNA deposits from their locations at the crime scene was not generally accepted in the forensic community. At oral argument on November 13, 2012, counsel repeated the arguments he made in the motion to preclude, N.T., 11/13/12, at 2-13, and criticized Dr. Wecht's report as "conjecture and speculation," id. at 3, 6, 9, but did not argue that Dr. Wecht's testimony was inadmissible under Frye .

In an opinion and order dated November 5, 2012, the trial court granted Appellant's motion to preclude, reasoning:

[Dr. Wecht's] report does not set forth any scientific manner upon which [he] bases his conclusion that [Appellant] was on top of the decedent's back around the time of her demise. Further, the report does not set forth the scientific method or means by which Dr. Wecht reaches the conclusion that because the DNA was found only on the bed sheet, the rope tie, and the nightgown, it is unlikely that [Appellant]’s seminal fluid was placed there during sexual relations that occurred three weeks to a month earlier. As such, Dr. Wecht does not state a precise scientific basis for his conclusions, and Dr. Wecht's assertions are not set forth or posited in a sufficiently specific manner. Furthermore, we conclude that Dr. Wecht's statement that "it is extremely unlikely" that the seminal fluid was placed in certain locations several weeks earlier, given the locations where the fluid was found, is too vague and imprecise to meet the standard for

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