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HomeMy WebLinkAbout94-1499 CriminalCOMMONWEALTH VS. SEIFULLAH ABDUL-SALAAM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 94-1499 CRIMINAL TERM : CHARGE: (A) CRIMINAL HOMICIDE (1ST DEGREE) (B) ROBBERY (C) CRIMINAL CONSPIRACY (ROBBERY) AFFIANT: PTL. ROBERT SMEE IN RE: POST-CONVICTION RELIEF HEARING BEFORE HESS, J. ORDER AND NOW, this t 2 ~' day of November, 1998, following hearing, the filing of briefs, and argument thereon, and after careful consideration, the petition of Seifullah Abdul- Salaam for post-conviction relief is DENIED. BY THE COURT, Jaime Keating, Esquire Chief Deputy District Attorney Michael Wiseman, Esquire For the Defendant ess, J. :rim COMMONWEALTH VS. SEIFULLAH ABDUL-SALAAM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 94-1499 CRIMINAL TERM CHARGE: (A) CRIMINAL HOMICIDE (1 ST DEGREE) (B) ROBBERY (C) CRIMINAL CONSPIRACY (ROBBERY) AFFIANT: PTL. ROBERT SMEE IN RE: POST-CONVICTION RELIEF HEARING BEFORE HESS, J. OPINION AND ORDER This petition for post.conviction relief under 42 Pa.C.S.A. Section 9541 arises from the petitioner's conviction for murder in the first degree on March 15, 1995. On March 16, 1995, the jury returned a sentence of death following a penalty hearing. On June 18, 1996, petitioner's conviction and sentence of death were affirmed by the Pennsylvania Supreme Court following a direct appeal by petitioner. Commonwealth v. Abdul-Salaam, 544 Pa. 514, 678 A.2d 342 (1996). On October 7, 1996, Governor Tom Ridge signed a warrant authorizing the petitioner's execution during the week of October 27, 1996. This death sentence was then stayed by the Supreme Court pending petitioner's attempt to appeal to the United States Supreme Court. Commonwealth v. Abdul-Salaam, 546 Pa. 240, 684 A.2d 539 (1996). Petitioner then filed a writ of certiorari, which the Supreme Court denied on March 31, 1997. Abdul-Salaam v. Pennsylvania, 117 S.Ct. 1337 (1997). Governor Ridge then signed a second death warrant, 94-1499 CRIMINAL setting the date of execution for the week of May 25, 1997. Two weeks prior to his execution date, petitioner then filed a pro se petition for relief under the Post Conviction Relief Act. 42 Pa.C.S.A. Sec. 9541. On May 22, 1997, petitioner's execution was stayed a third time, in this instance to allow the petitioner to amend his petition for relief under the Post Conviction Relief Act, this time with the advice of counsel. Following lengthy hearing, this petition is now ready for determination, t The petitioner raises four grounds for relief under the Post Conviction Relief Act: (1) that the prosecution denied petitioner access to exculpatory evidence in violation of Brady v. Maryland; (2) that petitioner's trial counsel rendered ineffective assistance at the penalty phase by failing to present evidence of the petitioner's alleged mental illness; (3) that the prosecution failed to provide petitioner with copies of petitioner's juvenile records in violation of Brady v. Maryland; and (4) that petitioner's right to due process was violated by the Commonwealth by consuming petitioner's blood sample. At the heart of the Post Conviction Relief Act is, of course, the question of whether or not there has been a reliable adjudication of guilt. We feel compelled to note at the outset of our discussion that, in our opinion, the petitioner is without question the perpetrator of the crime with which he was charged. In this regard, a brief reprise of the facts is helpful. On the morning of August 19, 1994, the defendant, Seifullah Abdul-Salaam, and his co- tThis process has been more than protracted because of the necessity to accommodate counsels' schedules, provide for reciprocal discovery'throughout and because of requests to transcribe the testimony. This opinion is being filed, however, less than thirty-five (35) days from the date of oral argument. These observations are made in light of the provisions of Pa.R.Crim.P. 1509(d). 94-1499 CRIMINAL defendant, Scott Anderson, drove to Camp Hill in a borrowed Suzuki Sidekick. Once at the Camp Hill Shopping Center they encountered a man by the name of David Grosz in the parking lot. Anderson asked David Grosz for directions to New Cumberland. Grosz told him to take Route 581 to Interstate 83 South, and get off at the New Cumberland exit. Grosz watched Anderson drive away on that path. Shortly after 10:30 a.m., the Suzuki pulled into the McDonald's at that exit, parking beside the car of Holly Peters. Peters saw a second black male in the passenger's seat, as Anderson asked for directions to "4th Street." Because she knew of more thin one 4th Street in the area, she asked Anderson to get directions inside. On the south side of 4th Street in New Cumberland is D & S Coin Shop, a one-room building with storefront windows, run by Dale Rishel. Fourth Street runs east and west between Bridge Street (the borough's primary artery) and Market Street. Bisecting this block of 4th Street and paralleling Bridge and Market, is Maple Alley. The coin shop does some walk-in trade, but specializes in trade shows rather than retail sales. Inside, a Counter runs along the west and south walls; behind it are Mr. Rishel's stock, a desk and a chair. Around 11:00 a.m., Mr. Rishei was sitting at his desk in his coin shop. A Mr. Tran sat on an outside step, while David Michaels prepared to open his barbershop for business. Steve Vaughn neared the area to deliver some wood chips. Kathy Noll was walking children from a nearby school. Defendant Seifullah Abdul-Salaam walked out of Maple Alley from the north. His hands were empty. Mr. Tran watched Abdul-Salaam knock on the shop's door and enter. Tran noticed this because few people knocked before entering. Once inside, Abdul-Salaam asked questions about certain gold coins, and appeared very nervous. Mr. Rishel told him that he had no such inventory and suggested another dealer. Mr. Tran then saw Anderson come from the alley, noting he was dressed in heavy 94-1499 CRIMINAL clothes on a hot August morning. Carrying gloves and a bag, he followed into the shop. Suspicious, Mr. Tran alerted his landlord, James Howie, who called 911. Officer Willis Cole responded, parked in front of Michaels' store and walked toward the coin shop. Inside, Abdul-Salaam pulled a chrome revolver and leveled it at Mr. Rishel. Abdul-Salaam and Anderson came across the counter onto Mr. Rishel, subduing him but breaking the front window in the process. Mr. Rishel was taped across his face and from knees to, ankles; the cord tied his hands behind his back. Neither tape nor cord had been in the shop before the defendants arrived. AbduI-Salaam held Mr. Rishel, pulling the cord and raising him offthe floor, while Anderson rummaged through Rishel's goods. The defendants stopped when they became aware of the presence of the police. Abdul-Salaam asked about a rear door. Since there was none, the defendants exited the front door. Anderson had a gun in his hand as he exited. Officer Cole ordered Anderson to the ground, whereupon the defendant complied. Officer Larry Zeigler drove after Abdul-Salaam, turning north on Bridge Street. Officer Cole had Anderson lie face down and prepared to handcuff him. At this point, Abdul-Salaam reappeared at the end of Maple Alley, as if he had circled part of the block. He stood against a building, gun in hand, looked over his shoulder toward Officer Cole and Anderson, then sprinted toward the two, shooting at Officer Cole as he ran. Officer Cole was able to return fire, apparently hitting Abdul-Salaam in the leg. Both defendants then ran back to the alley, dropping the murder weapon in the process. They entered the Suzuki and sped past witness Vaughn. The two turned left onto 5th to Reno Street past Kathy Noll, then north on Brandt Avenue, toward the expressway to Harrisburg. The description of the men and vehicle was immediately broadcast on police channels. Officer 4 94-1499 CRIMINAL Rodney Smith of Middlesex Township Police Department heard the description as he neared the South Bridge into Harrisburg, a likely route from New Cumberland to HarrisbUrg. Almost immediately, Officer Smith saw the Suzuki on the bridge and pulled in behind it. Anderson accelerated and changed lanes abruptly in and out of heavy traffic. The officer gave chase, changing lanes as Anderson did; by the 13th Street exit, they had reached eighty miles per hour. The Suzuki.swerved across three lanes of traffic onto the exit ramp, Officer Smith in pursuit with siren on and lights flashing. Eventually, the vehicles turned onto a side street. The Suzuki was unable to negotiate a sharp turn, jumped the curb and stopped. The defendants abandoned the vehicle and fled. Officer Smith stopped behind the Suzuki. Abdul-Salaam looked at Officer Smith as he left the car. Arming himself with a weapon from his trunk, Officer Smith tried to find the two without success. The Suzuki was later taken to Swatara police station, where it was inventoried pursuant to policy. Police later obtained a search warrant for it and processed it for fingerprints, blood, hairs and fibers. Police found Anderson several blocks away and arrested him around 11:40 a.m. Abdul-Salaam went to the home of Christina Darden and was arrested shortly before noon. Darden gave police a consent to search her house, signing a consent form reflecting that the police were looking for clothing and a weapon. In Darden's bedroom Officer Holland found and searched a briefcase. The briefcase contained ammunition and correspondence addressed to Salaam. Once in custody, Anderson waived his Miranda rights, and gave a statement to Harrisburg police. He was arraigned by District Justice Yanick in Dauphin County (the county of arrest) before 5:00 p.m. He did not post bond and was taken to Cumberland County. The District Justice was not present on arrival here and, after being given his Miranda warnings and signing a waiver, Anderson gave a videotaped statement between 6:00 and 7:00 p.m. The District Justice then arrived, and Anderson was 94-1499 CRIMINAL arraigned in Cumberland County. The taping resumed around 7:30 p.m., and Anderson completed his statement shortly thereafter. Abdul-Salaam invoked his right to counsel immediately, and no interrogation was undertaken by police. He asked for medical treatment for his wounded leg, which police had not initially noticed. Detective Rivera accompanied Abdul-Salaam to the hospital. While there, Rivera was concerned about the mental state of the defendant, and made some small talk: "How are you feeling?" or "How's the leg?" Detective Rivera did not attempt to elicit incriminating responses. Abdul-Salaam asked Rivera, "What are my options?" Rivera responded that the defendant could discuss this with his counsel. Abdul- Salaam then stated he would tell his lawyer that "Scotty Love" did it all. "Scotty Love" is an alias of the co-defendant, Scott Anderson.. A preliminary hearing was held, at which Mr. Rishel and Mr. Michaels identified Abdul-Salaam. During their testimony at the December 28, 1994, hearing on the defendant's omnibus pretrial motions, Mr. Rishel, Mr. Tran, Mr. Michaels and Officer Smith all identified Abdul-Salaam. The defendant was again identified at trial. I. The petitioner's first assertion is that the Commonwealth improperly suppressed exculpatory evidence, violating Brady v. Maryland, by not turning over a police report regarding one Tony Clifton. Tony Clifton had made a statement to the police that six hours prior to the New Cumberland robbery, Clifton was a passenger in a car with Scott Anderson and another man. While Clifton was in the car, Anderson and the unidentified man discussed and planned the robbery of the coin shop in Clifton's presence. Clifton later stated that the man in the car with Anderson was not Seifullah Abdul-Salaam. The petitioner asserts that this revelation - that 6 94-1499 CRIMINAL Anderson discussed and planned the crime with a third person - casts doubt on the eyewitness testimony and forensic evidence presented at the trial which, otherwise, pointed overwhelmingly at Abdul-Salaam as the perpetrator. In essence, the petitioner asserts that we cannot rely on the verdict and sentence because, had the Clifton evidence been revealed, the outcome at trial might have been different. In Brady the Supreme Court held that the prosecution has a duty to make available to the defense any evidence which is both material and exculpatory. Brady v. Maryland, 373 U.S. 83 (1963). Furthermore, this duty to disclose has been codified in Pennsylvania Rule of Criminal Procedure 305(B)(1)(a), which requires prosecutors to reveal "[a]ny evidence favorable to the accused." Pa.R.Crim.P. 305(B)(1)(a). In the present case, petitioner asserts that the testimony of Tony Clifton was potentially favorable to the petitioner and as such it should have been turned over to the defense. Tony Clifton had made a statement to police that six hours prior to the crime itself Clifton was a passenger in a car with Scott Anderson and another man. While Clifton was in the car, Anderson and the unidentified man discussed and planned the robbery of the coin shop in Clifton's presence. Clifton later stated that the man in the car with Anderson was not the petitioner. The proffer concerning Clifton's testimony was, specifically, that on the night before the robbery, he was at a bar in Harrisburg. When he left, he was too drunk to drive. He arranged a ride with co-defendant Anderson. While lying in the back seat of the car, Clifton claims to have overheard Anderson discuss with another person a plan to rob a coin shop. He did not know the 94-1499 CRIMINAL other person. In fact, as he lay in the back seat, too drunk to drive, his head out of the window for air, he saw only the back of the other person's head. Courts have frequently observed'that Brady is not a rule of discovery but rather one of fairness. United States v. Beasley, 576 F.2d 626 (5th Cir. 1978), cert. denied, 440 U.S. 947, 99 S.Ct. 1426, 59 L.Ed.2d 639 (1979). A "prosecutor is not required to deliver his entire file to defense, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial." United States v. Bagley, 473 U.S. 667, 675, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481,489 (1985). A Brady violation is established where the defendant is able to show "(1) that the prosecution suppressed evidence, (2) that the evidence suppressed was favorable to the defendant or exculpatory, and (3) that the evidence suppressed was material to the issues at trial." United States v. Burroughs, 830 F.2d 1574, 1577 (1 lth cir. 1987), cert. denied 485 U.S. 969, 108 S.Ct. 1243, 99 L.Ed.2d 442 (1988). Petitioner relies very heavily on the Supreme Court's decision in Kyles v. Whitley, 514 U.S. 419 (1995) to support this claim for relief, but we find the correlation weak. In Kyles, the prosecution failed to turn over the following evidence: (1) the six contemporaneous eyewitness statements taken by police following the murder; (2) records of [a witness/suspect's] initial call to the police; (3) the tape recording of the Saturday conversation between [the same witness/suspect] and officers Eaton and Miller; (4) the typed and signed statement given by [the same witness/suspect] Sunday morning; (5) the computer print-out of license numbers of cars parked at Schwegmann's on the night of the murder, which did not list the number of Kyles's car; (6) the internal police memorandum calling for the seizure of the rubbish after [the same witness/suspect] had suggested that the purse might 94-1499 CRIMINAL be found there; and (7) evidence linking [the witness/suspect] to other crimes at Schwegmann's and to the unrelated murder of one Patricia Leidenheimer, committed in January before [this] murder. Kyles v. Whitley, 514 U.S. 419, 428 (1995). Curtis Kyles had been charged with murder. His first trial ended in a hung jury. He was tried again and convicted of first degree murder and sentenced to death. The Supreme Court of the United States concluded that the net effect of the evidence withheld by the state in his case raised a reasonable probability that Kyles would have been acquitted. In the Kyles case the Supreme Court held that the "touchstone of materiality is ... not whether the [petitioner] would more likely or not have received a different verdict with the suppressed evidence but whether in its absence he received a fair trial ....Kyles v. Whitley, 514 U.S. 419, 434 (1995). Using this standard, we are entirely satisfied that the Clifton evidence was not material for the purpose of ascertaining a Brady violation. Clifton's observations were made at a time when he was highly intoxicated. Clifton, himself, had he been called as a witness would have been confronted with his prior record for crimen falsi. The incident which he describes is separated from the actual robbery by many hours. It does not serve, in any way, to contradict the accounts of eyewitnesses to the crime and forensic evidence which point with certainty to the guilt of the petitioner. As noted above, there is no violation of principles enunciated in Brady v. Maryland unless the evidence involved is material and exculpatory. The testimony of Tony Clifton was neither. 94-1499 CRIMINAL II. The petitioner's second assertion is that trial counsel rendered ineffective assistance of counsel at the penalty phase of the trial. He contends that his trial counsel should have undertaken a full investigation into his mental history and presented this evidence at the penalty phase to mitigate the sentence of death. We do not find this claim compelling. When determining whether trial counsel was ineffective, there is a three-part test that we apply: (1) Does the petitioner's claim have arguable merit? (2) Was there a reasonable basis for trial counsel's action? and (3) If trial counsel's decision was not strategic, was his ineffectiveness prejudicial on the outcome? Commonwealth v. Johnson, 527 Pa. 118, 122, 588 A.2d 1303, 1305 (1991); Commonwealth v. Pierce, 515 Pa. 153, 159, 527 A.2d 973, 975 (1987); Commonwealth v. Lewis, 430 Pa. Super. 336, 342, 634 A.2d 633,636 (1993). The first prong is whether petitioner's claim has arguable merit. We are satisfied that it does. No authority is necessary for the rather obvious proposition that where one's criminal conduct results from a real and serious mental defect, even though it might not rise to the level of a defense, that criminal conduct becomes easier to understand and any penalty for it ought, arguably, to be mitigated. In this case, however, there is a more than a substantial question as to whether the defendant suffered a mental illness at all. Moreover, a detailed revelation of the defendant's past, necessary to mount any sort of mental health defense, posed the very real risk of doing more harm than good. This leads to the second question, which is whether trial counsel had a reasonable basis 10 94-1499 CRIMINAL for excluding such testimony. We agree with the Commonwealth that the testimony regarding defendant's alleged organic brain damage is deeply flawed. This we base on an assessment of the expert testimony as it was adduced in the post-conviction relief act hearing. In the meantime, attempts to explain the defendant's behavior, at the time of the murder, as a product of mental infirmity would have required review, at the time of trial, of his past wrongdoing both as a child and as a young adult. At the penalty hearing, defense counsel chose to call members of the defendant's family in an attempt to explain the defendant's behavior as a product of his treatment at the hands of a tyrannical and arbitrary father. He did not, however, assert the existence of a mental defect. Clearly, counsel's actions were borne out of strategy. As the Pennsylvania Supreme Court recently stated, "[g]enerally where matters of strategy and tactics are concerned, counsel's assistance is deemed constitutionally effective if he chose a particular course that had some reasonable basis designed to effectuate his client's interests." Commonwealth v. Howard, 1998 WL 673131 (Pa. 1998). It is clear from his testimony that'trial counsel, Spero Lappas, Esquire, made an educated decision concerning the use of a mental health defense. This is not surprising given that he is one of the more seasoned and capable criminal defense attorneys in the central Pennsylvania area. The following is a sampling of his testimony on this issue: Well, for one thing, mental health defenses or mitigations either generally or always rely on expert testimony, and it's been my experience that the parties are frequently drawn into, for lack of a better term, battling experts, which creates, I think, a very bad impression on a jury. 11 94-1499 CRIMINAL When you begin to defend a person's actions or excuse them by the use of mental health expert testimony, you hold yourself open to the risk that you are essentially relitigating the crime. For example, I heard this today during your cross examination of Dr. Armstrong. You asked her if she could tell that there was a specific time on August 19th, 1994, when the organic brain disorder manifested itself in compelling the defendant's actions, and she said she could not and no one could. The risk of that is that it often provides the prosecutor with an opportunity to not just describe the defendant's acts in a factual context, but in almost a moral context. For example if a person -- taking this case as an example, if a person was afflicted by organic brain disorder or some psychiatric disease or some mental health problem, I've heard asked repeatedly in other cases, isn't this inconsistent with the type of planning that goes into the perpetration of this crime? Isn't this inconsistent with the fact that the person, according to the evidence and testimony, had the wherewithal to try to escape? Isn't this inconsistent with the fact that he returned to the scene of the crime for perhaps no reason other than to open fire? In a case like this, in this case in particular, the emotional impact of the testimony throughout the trial was such that I would have thought it unlikely that a jury would accept psychiatric mitigation as a factor, especially one that would outweigh the really very devastating emotional impact of the several days of testimony that they had just heard. (N.T. 179-180.) In addition, Mr. Lappas was concerned with the interaction between Seifullah Abdul- 12 94-1499 CRIMINAL Salaam and the defense expert, Dr. Crutchley. When trial counsel met with Dr. Crutchley, he requested that she not discuss the crime itself with the petitioner out of fear that Abdul-Salaam would not appear remorseful enough. When Dr. Crutchley could not comply with this request, trial counsel became concerned that her testimony would be potentially more harmful than helpful. Again, we do not mean to suggest, by discussing this issue, that we have come to believe that the defendant suffers from organic brain damage or any other mental illness, for that matter. To the contrary, we find the post-conviction relief act testimony on this issue to be completely unpersuasive. Our findings aside, we are satisfied that Attorney Lappas' decision not to inquire into the mental health of the petitioner during the death penalty phase was strategic in nature and that the decision had a reasonable basis. III. Petitioner's third claim is another Brady claim, this time based on the prosecution's failure to turn over the petitioner's juvenile records. These records, according to the movant, contained evidence of the defendant's mental illness. We will not delve into the complete Brady analysis here, as it is unwarranted. The petitioner's claim fails because of two reasons: (1) the records were not exculpatory; and (2) they were still available to the petitioner even though the prosecution had copies of them. The petitioner's claim that these records contained anything that was exculpatory is groundless. The records show that the petitioner was an unhappy child with violent tendencies. 13 94-1499 CRIMINAL They show that petitioner's home life was unfortunate, maybe even tragic. However, there is not one report in those records that states petitioner was mentally ill, or that petitioner suffered from organic brain damage. Furthermore, the petitioner could have obtained these records despite the fact the Commonwealth had copies of them. In conclusion, petitioner's assertion that the withholding of these records satisfies a Brady violation is without merit, and as such we deny the petitioner's claim for relief. IV. Petitioner's final assertion is that the Commonwealth violated his due process rights when it consumed a complete blood sample for tests. Petitioner relies on Arizona v. Youngblood to support his assertion. In Youngblood, the court found that absent bad faith no due process violation exists. The relevant facts in .Youngblood are as follows: After being kidnapped and repeatedly sodomized the ten-year-old victim was taken to the hospital by his mother, where a physician obtained samples from the boy's mouth and rectum. Arizona v. Youngblood, 488 U.S. 51 (1988). The police took the samples .from the "sexual assault kit" and placed them in a secure refrigerator at the police station. Youngblood at 54. The police also collected the boy's T-shirt and under,year, which were not refrigerated or frozen. Id at 54. After the defendant was indicted, the police attempted to run tests on the semen samples in order to ascertain the boy's assailant's blood type, but the tests failed. Id__.~. at 54. At trial, expert testimony demonstrated that if the samples had been properly preserved, the tests would have been conclusive regarding blood type. Id at 54. The defendant argued successfully to the Arizona Court of Appeals that his due 14 94-1499 CRIMINAL process rights were violated when the sample was destroyed. Id at 55. The United States Supreme Court overruled, stating that absent police bad faith, there is no violation of a defendant's due process rights when a sample is destroyed. Id at 58. The Pennsylvania Superior Court also addressed this issue in Commonwealth v. Tillia. In that case the defendant argued that the destruction of his blood sample, that was used for blood alcohol level testing, violated his due process rights. Com. v. Tillia, 359 Pa. Super. 302, 309, 518 A.2d 1246, 1250 (1986). That court set up a three part test to determine whether the destruction of a sample violates a defendant's due process rights. In California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d.413 (1984), a unanimous Court established the standard whereby evidence is constitutionally required to be preserved for disclosure. Such evidence must "(1) (possess) an exculpatory value that was apparent before the evidence was destroyed, and (2) also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means." Trombetta, 467 U.S. at 489, 104 S.Ct. at 2534. Further, there must be no indication that the authorities destroyed the evidence in order to circumvent the disclosure requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Trombetta, 467 at 488, 104 S.Ct.. at 2534. Finding none of the requirements satisfied, the Court held that due process does not require the police to save a sample from a breathilyzer [sic] for independent testing and inspection. Trombetta, 467 U.S. at 491,104 S.Ct.. at 2535. When the same issue was presented before this Court, we concluded that the due process protections of the Pennsylvania Constitution required no more than those afforded 15 94-1499 CRIMINAL by the'federal constitution. Commonwealth v. Gamber, 352 Pa. Super. 36, 506 A.2d 1324, 1327 (1986). Id., at 309, 518 A.2d 1246, 1250 (1986) Petitioner here points to the bad faith element of Youngblood and Tillia; namely, that the petitioner's due process rights would on!y have been violated if the police had destroyed the blood sample in bad faith. Petitioner, however, offers no evidence that the blood sample, in this case, was consumed in bad faith. The evidence is, in fact, to the contrary. The sample involved was consumed while being tested and not as a result of any attempt on the part of the Commonwealth to destroy evidence. As the Supreme Court stated in Youngblood, "[t]he presence or absence of bad faith by the police must necessarily turn on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed." Arizona v. Youngblood, 488 U.S. 51 (1988). Furthermore, the petitioner must prove "official animus" or a "conscious effort to suppress exculpatory evidence." California v. Trombetta, 467 U.S. 479 (1984). In the present case, petitioner has not proven that there existed any official bad faith when the sample was tested. As such, petitioner's claim that his due process rights were violated must and does fail. ORDER AND NOW, this day of November, 1998, following hearing, the filing of briefs, and argument thereon, and after careful consideration, the petition of Seifullah Abdul- 16 94-1499 CRIMINAL Salaam for post-conviction relief is DENIED. BY THE COURT, Hess, J. 17