In re Payne

• Decision Date: 29 December 2015
• Docket Number: No. 1113 MDA 2013,1113 MDA 2013
• Citation: 129 A.3d 546
• Parties: In re John Marshall PAYNE, III. Appeal of Commonwealth of Pennsylvania.
• Court: Pennsylvania Superior Court

129 A.3d 546

In re John Marshall PAYNE, III.

Appeal of Commonwealth of Pennsylvania.

No. 1113 MDA 2013

Superior Court of Pennsylvania.

Argued June 30, 2015.

Filed Dec. 29, 2015.

Stephanie E. Lombardo, Assistant District Attorney, York, for Commonwealth, appellant.

Scott A. McCabe, York, for appellee.

BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, J., DONOHUE, J., SHOGAN, J., ALLEN, J., LAZARUS, J., MUNDY, J., and STABILE, J.

OPINION BY BENDER, P.J.E.:

Herein, the Commonwealth appeals from the trial court's order granting John Marshall Payne III's request for DNA testing of physical evidence taken from the crime scene of the homicide for which Payne was convicted of second-degree (felony) murder and related offenses. The Commonwealth contends the trial court erred when it found that there was a reasonable probability that the results of the testing could demonstrate Payne's "actual innocence," as is necessary to assert a successful claim under the DNA testing statute, 42 Pa.C.S. § 9543.1. Specifically, the Commonwealth argues that the legal framework of Payne's felony murder conviction precludes such a finding because, in order to convict him, the jury was not required to determine whether Payne was the principal actor. After careful consideration, we affirm the trial court's order granting testing.

The instant appeal concerns Payne's pro se motion/petition titled "Post Conviction Relief Act petition seeking DNA testing pursuant to 42 Pa.C.S. § 9543.1," which he filed on June 14, 2012. However, the procedural history of this case began decades ago. In 1986, Payne was found guilty of second-degree murder, aggravated assault, burglary, and conspiracy, after a trial adjudicating the following facts:

On December 17, 1981, the body of a 90 year-old woman, Elsie Rishel, was discovered in her home by members of her family. N.T., 8/18/86–8/22/86 (vol. II), at 406. The victim died as a result of blunt force trauma to the head

from an unknown instrument, possibly a telephone found near her body. Id. at 417.¹ Rishel's body was found in her blood-soaked bed, with a pillow on top of her head. Id. at 427. A trail of blood ran down from her body to a pool of blood on the floor. Id. Rishel's dentures and eyeglass were left in the bathroom. Id.²

Evidence found at the scene was consistent with the theory that the murder had occurred during the commission of a burglary. Rishel's residence appeared "ransacked," with numerous drawers and trunks left open and their contents strewn about "haphazardly." Id. at 427.³ A single set of footprints left in the snow around Rishel's home led from the street, around the home, and ultimately to a broken window. Id. at 462–63. The window's glass was broken inwards from the outside. Id. at 446. A single set of footprints also led from the front door on a diagonal trajectory back to the street. Id. at 463. The lead investigator, Officer Robert Harman of the Springettsbury Township Police Department, indicated that there was nothing identifiable obtained from the footprints that could be used for comparison to any suspects. Id.

Ultimately, no physical evidence tied Payne to the Rishel burglary/murder; however, numerous pieces of physical evidence were collected from the scene of the crime. For instance, several fingerprints were recovered, although none of the recovered fingerprints matched Payne or his alleged co-conspirators. Id. at 441–42. Many of the fingerprints either belonged to the victim or her family members. Id. at 445. However, at least one unidentifiable partial fingerprint was found on the glass from the broken window. Id. at 448–449. This evidence, as well as other items collected from the scene, were sent to the F.B.I. for testing.⁴

In the absence of any physical evidence demonstrating his guilt, Payne's conviction was premised primarily on the testimony of three Commonwealth witnesses: Deborah Wallick, Sonny Oglesby, and Christopher Gibson. Wallick, Oglesby, and Gibson each purportedly heard Payne make inculpatory statements to them, individually, concerning the Rishel burglary/murder. Although their accounts of Payne's inculpatory remarks were consistent in broad strokes, there were some significant details that varied between them. All three testified that Payne had told them that he was accompanied by two cohorts during the home invasion, and that a telephone had been used as the murder weapon.⁵ However, their stories differed considerably with regard to other matters, such as whether Payne had killed Rishel himself, as well as the identity of his co-conspirators.

Wallick's, Oglesby's, and Gibson's credibility were also suspect. Wallick could only vaguely recall when and where Payne had incriminated himself. Id. at 480, 483, 494. Related, perhaps, was Wallick's admission that she had been a heavy user of LSD at that time when Payne allegedly confessed to his involvement in the burglary.Id. at 491. Additionally, Wallick had previously been convicted of hindering prosecution. Id. at 489.

Oglesby and Gibson were jailhouse informants who expected to receive leniency in exchange for their testimony against Payne. At the time of trial, Oglesby had pleaded guilty to third-degree murder in an unrelated case, and had yet to be sentenced for that crime. Id. at 520. Part of his plea bargain included his promise to testify against Payne regarding a conversation the two had in prison, in which Payne purportedly inculpated himself in Rishel's death. Id. at 528. As he had been charged with homicide generally, Oglesby could have been convicted of first-degree murder in the absence of his plea. Id. at 529. Indeed, during cross-examination, Oglesby admitted he knew that the District Attorney had intended to seek the death penalty against him if his case had proceeded to trial. Id.

Additionally, Oglesby testified that police did not approach him about obtaining information against Payne. Id. at 521. He claimed he volunteered the information to the District Attorney's Office. Id. However, Officer Harman remembered things differently. He testified that he "[r]eceived street information that there's a possibility that Sonny Olgesby had some information pertaining to the homicide." Id. at 459. Based on that information, Officer Harman "got in contact with Mr. Olgesby." Id. at 460.

Gibson was charged with robbery, criminal conspiracy, and firearm offenses before entering a plea bargain just prior to Payne's trial. Id. at 545. In exchange for his testimony against Payne, Gibson pled guilty to a single theft offense and received "county time." Id. at 550–51, 557. Gibson testified that he had a conversation with Payne in the prison library on August 15, 1986, just three days before the beginning of Payne's trial. Id. at 546. Gibson claimed that Payne approached him in the library and asked him what he thought of his legal strategy of deflecting blame for the murder of Rishel onto Rishel's grandson. Id. Gibson said he asked Payne "who really done it and he said himself and two other individuals...." Id. Gibson also claimed that Payne had asked him a month and a half prior to the August 15th conversation about finding someone to testify that Payne had been employed during the month when Rishel was murdered. Id. at 548.

None of these witnesses had any independent knowledge regarding the killing of Elsie Rishel apart from Payne's inculpatory statements, and Payne produced multiple witnesses to rebut Gibson's and Oglesby's testimony. The first of these defense witnesses was Wendell Murray. Murray testified that he assisted Payne in the prison law library on August 15, 1986, the same day Gibson purportedly had a conversation there with Payne. Id. at 578. Murray said that he and Payne were engaged in a discussion of Payne's case on that day. Id. Murray suggested that Gibson could have learned details of the case by overhearing Payne's conversation with Murray in the close quarters of the prison library. Id. Nevertheless, Murray said Payne maintained his innocence in their conversations and, on that specific day, Payne had not spoken directly to Gibson at all. Id. at 578–79. Murray also said that Gibson and Oglesby knew each other, and that he had observed them secretly conversing with one another in the prison courtyard the following day. Id. at 580–81.

William Jones, another defense witness, had been in the same pod as Oglesby, and said that he and Oglesby became "close" while in prison together.Id. at 589. He testified that Oglesby told him that Oglesby had learned many of the details concerning Payne's case from Officer Harman, and not from his conversation with Payne. Id. at 589–90. These details included a telephone being used as a murder weapon and the name of one of Payne's co-conspirators. Id. at 590. Jones also indicated that, in the week before Payne's trial, he had seen Oglesby and Gibson speaking together for two hours in the prison courtyard while secluded from the rest of the inmates. Id. at 590–91.

Payne testified in his own defense, and denied any level of participation in the burglary or killing of Rishel. Id. at 610–42. He said he did not learn that he was a suspect until 1983, and simply did not recall where he was when the crime was committed. He also denied making any inculpatory statements to Wallick, Oglesby, and Gibson. Nevertheless, based primarily on the testimony of those three witnesses, a jury convicted Payne of the above-mentioned offenses. On March 23, 1987, the trial court sentenced Payne to a mandatory term of life in prison.

Payne filed a timely direct appeal, and this Court affirmed his judgment of sentence in a memorandum decision filed on February 29, 1988. Commonwealth v. John M. Payne, III, No. 413 Harrisburg 1987, unpublished memorandum at 4, 377 Pa.Super. 655, 541 A.2d 1153 (filed February 29, 1988). It is unclear from the record whether Payne sought review of that decision with our Supreme Court.

Soon thereafter, Payne sought production of certain documents held by the Commonwealth for...