A panel of Pennsylvania Superior Court judges ordered that convicted killer Robert Conway can have DNA testing conducted on evidence, including bloodstained paper towels and clothing, collected during the investigation of the brutal Sept. 25, 1986, stabbing death of a Norristown shopkeeper.
While state lawmakers who enacted DNA testing provisions several years ago “did not intend to encourage fishing expeditions or the needless expenditure of commonwealth funds to pursue frivolous claims of innocence, it did seek to ensure the most fundamental principle of American jurisprudence, namely, that an innocent man not be punished for the crimes of another,” the judges wrote in a Jan. 11 court order.
Specifically, the state court overturned the May 2009 decision of Montgomery County Judge S. Gerald Corso, who claimed Conway failed to present sufficient evidence that DNA testing “would establish his actual innocence” and therefore denied Conway’s request for testing.
The state judges added, “there is no question that the development of additional evidence — evidence that can be easily obtained by DNA testing — will add to the reliability of the reconstruction of the events of that tragic day.”
Steven F. Fairlie, the local lawyer representing Conway, was pleased about the state court’s decision.
“What’s the harm in testing? If he did it, this may confirm that he did it, and if he didn’t do it, let’s find out who did and let Robert Conway go. Who could argue with any of that?” said Fairlie, who assisted a lawyer for a national litigation organization with the request for DNA tests.
County Assistant District Attorney Robert Falin, who fought Conway’s request, could still appeal the latest decision to the state Supreme Court but court records do not indicate if that decision has been made.
During a previous hearing, lawyer Craig M. Cooley, a lawyer with the New York City-based The Innocence Project, argued there are questions about the murder case that DNA testing can resolve.
But Falin argued against DNA testing, claiming trial evidence of Conway’s guilt was substantial and that any testing would be “highly speculative.”
Conway, now 53, formerly of the 600 block of Kohn Street, was sentenced in 1989 to 15 to 30 years in state prison after he was convicted by a jury of charges of third-degree murder, unlawful restraint and possession of an instrument of crime in connection with the Sept. 25, 1986, death of 35-year-old Michele Capitano, a clerk at the former Wooley’s Surgical Supply Store, which was located in the 500 block of DeKalb Street.
Capitano, of Bensalem, who often worked alone in the store, was stabbed 78 times in the store’s bathroom, according to testimony. The jury acquitted Conway of first- and second-degree murder, attempted rape, indecent assault, robbery and theft.
Specifically, Cooley asked the judge to allow DNA testing of the following items: bloodied paper towels, presumably used by the killer to wash his hands; fingernail clippings from Capitano’s hands; a piece of blue cloth tied around Capitano’s wrists; and Capitano’s clothing.
Cooley argued the killer might have left his own DNA on the paper towels and left trace DNA evidence on the other items while touching them during a struggle with the victim.
Cooley argued that if testing uncovers a DNA profile inconsistent with Conway’s DNA it would prove his innocence. Finding a redundant DNA profile of someone else on the items would allow authorities to compare that profile with a national DNA database and possibly identify another perpetrator, Cooley argued.
But Falin argued the items Conway wants tested were handled by numerous people during the investigation and that simply finding evidence of someone else wouldn’t prove Conway’s innocence. There is a “wide universe of potential DNA depositors,” said Falin, implying testing would be unreliable and speculative.
Falin argued reliable evidence presented against Conway at trial included testimony about scratches on Conway’s arms, a jailhouse informant’s claim that Conway professed his guilt to him and Conway’s admitted knowledge about things connected to the crime that only the killer could have known.
But Cooley argued that despite a significant amount of blood found at the crime scene, prosecutors failed to identify a single droplet of Capitano’s blood on Conway’s person or clothing and failed to produce biological evidence to link Conway to the murder.
Conway, according to court papers filed by Cooley and Fairlie, has consistently maintained that he discovered Capitano’s body in the bathroom when he arrived at Wooley’s to buy a cane for his wife.
Court documents indicate Conway, who allegedly had “mental deficits” due to a previous head injury, told authorities he attempted to undo Capitano’s bound hands and checked to see if she was breathing, but then left when he realized she was already dead. Conway, then 29 years old, went home, told his wife about his grisly discovery and Conway’s wife called police, court papers indicate.
Conway is using a relatively new law that allows murderers and rapists to request DNA tests on evidence that resulted in their convictions in an attempt to be freed. The law, enacted in 2002, allows those convicted to seek DNA tests if the identity of the perpetrator was at issue at trial.
Cooley argued access to DNA testing wasn’t available during the 1986 investigation and that DNA testing didn’t become widely used until the 1990s. With no eyewitnesses to the murder, DNA testing is crucial, Cooley argued.
DNA, or deoxyribonucleic acid, is an organic substance found primarily in the nucleus of living cells. It carries the genetic information that determines individual characteristics such as body size and eye color. DNA is unique to a person and is the same in every cell, whether gathered from blood, saliva or skin samples.
The Innocence Project, founded in 1992, is a national litigation and public policy organization dedicated to exonerating wrongfully convicted people through DNA testing.
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