John Joseph Kunco v. Attorney General of the Commonwealth of Pennsylvania

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-1101
JOHN JOSEPH KUNCO,
Appellant
v.
ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA;
WARDEN JOHNSON; D.A. WAYNE GONEAWARE
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF PENNSYLVANIA
(Dist. Court No. 00-cv-00054)
District Court Judge: Honorable Alan N. Bloch
Argued on October 21, 2003
Before: ALITO, FUENTES, and ROSENN, Circuit Judges.
(Opinion Filed: December 29, 2003)
MARK DIAMOND (Argued)
Box 1805 Murray Hill Station
New York, New York 10016
Counsel for Appellant
JAMES R. HOPSON (Argued)

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1We have not been asked to assess, nor do we express an opinion regarding the
fundamental fairness of the general use of bite mark evidence for identification purposes.
We also note that the government has conceded in its brief that “the issue of the bite mark
has been raised before all State courts and is not barred by exhaustion or procedural
default.” Appellee Br. at 9. Since exhaustion is not a jurisdictional requirement, see
Evans v. Court of Common Pleas, 959 F.2d 1227, 1231 (3rd Cir. 1992), we may affirm on
the merits without deciding the issue. 28 U.S.C. § 2254(b)(2).
2
Assistant District Attorney
Office of the District Attorney
Westmoreland County, Pennsylvania
2 North Main Street
Greensburg, PA 15601
Counsel for Appellee
OPINION OF THE COURT
PER CURIAM:
John Joseph Kunco appeals an order of the U.S. District Court for the Western
District of Pennsylvania denying his petition for writ of habeas corpus. For the reasons
given below, we affirm the order of the District Court.
A certificate of appealability was granted for the limited purpose of addressing
Kunco’s argument that after-discovered evidence proves that his due process rights were
violated when the trial court admitted expert testimony regarding an inculpatory bite mark
photograph obtained by way of a “controversial” photographic technique employing
ultraviolet (UV) light.1 The pertinent after-discovered evidence essentially consists of

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3
testimony by forensic dental expert Dr. Gregory Golden that the UV technique was
unreliable, as well as a series of articles suggesting that Dr. Michael West (a forensic
odontologist who has made frequent use of the UV photographic technique and has some
associations with the expert witnesses tendered by the prosecution at trial) has been
denounced as unethical and incredible, that he has on occasion misrepresented evidence
and data, and that his UV technology is not “founded on scientific principles.” App. 40-
41.
The parties’ arguments regarding the propriety of the admission of the bite mark
evidence in light of the alleged “debunking” of the UV photographic technique center
around the application of standards of admissibility for scientific evidence in state court,
such as the “general acceptance in the scientific community” test set forth in Frye v.
United States, 293 F. 1013 (D.C. Cir. 1923). However, to succeed on his due process
claim, Kunco must do much more than simply show that the UV photograph evidence
was inadmissible under state law. The Supreme Court has long made clear that the
federal courts are not to “treat a mere error of state law, if one occurred, as a denial of due
process.” Gryger v. Burke, 334 U.S. 728, 731 (1948). Otherwise, the Court notes, “every
erroneous decision by a state court on state law would come here as a federal
constitutional question.” Id.
In order to make out a due process claim in the context of the present case, Kunco
must show that admission of the UV photograph evidence “undermine[d] the fundamental

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2Kunco presents no evidence that West himself was involved in the procuring of
the UV evidence presented by the prosecution. Nor does he argue that West has any other
connection with this case.
4
fairness of the entire trial.” Keller v. Larkins, 251 F.3d 408, 413 (3rd Cir. 2001). A claim
under the “fundamental fairness” standard may arise when “the probative value of . . .
evidence, though relevant, is greatly outweighed by the prejudice to the accused from its
admission.” Bisaccia v. Attorney Gen., 623 F.2d 307, 313 (3rd Cir. 1980). The most
compelling argument Kunco puts forth along these lines is that the “probative value of the
state’s bite mark evidence was . . . greatly outweighed by its prejudice to the appellant,
because of its unreliability.” Appellant Br. at 40 (emphasis added). Kunco appears to be
suggesting that Golden’s testimony and the after-discovered evidence regarding West
proves that the UV evidence admitted at trial was so unreliable that he was deprived of
his right to a fundamentally fair trial.
Kunco’s argument fails. Golden’s testimony was adequately rebutted by testimony
of forensic dentist Dr. Robert Barsley, whose qualifications and credibility were never
seriously challenged by Kunco, and who persuasively supported the reliability of the UV
technique. Furthermore, whatever ethical troubles West may have had in connection with
other research projects or unrelated court cases,2 there is no question that in this case, the
bite mark revealed by the UV photograph closely matched with the bite mark recorded by
the earlier photograph. As one expert witness testified: “[T]here was complete
consistency between the two sets of marks.” Reproduced Record at 902. The fact that

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3It does not matter if, as Kunco claims, the experts for the prosecution disagreed in
their explanations of how the UV technique works. A difference in opinion regarding the
precise mechanics or operation of the technique no more affects our assessment of its
reliability than would a scientific dispute over whether the UV light rays used in the
technique more closely resembled waves or particles.
4Kunco points to a article published by the experts for the prosecution in which
they claimed that without the UV evidence, “it is unlikely that there would have been
5
the UV technique could reproduce the marks visible in the earlier bite mark photograph
suggests that, in contrast with Kunco’s assertions, the technique was reliable.
Indeed, at oral argument, counsel for Kunco all but admitted that the image
rendered through the use of the UV technique actually revealed a bite mark. Surely if the
UV technique were as unreliable as Kunco claims, one would expect that technique to
turn up gibberish, or nothing at all – but not another bite mark. Kunco offers no alternate
explanation for the presence in the UV photograph of what appears to be a bite mark in
the same location as the mark depicted in the original photograph. Accordingly, we
conclude that Kunco has failed to offer any evidence that would lead this court to believe
that the UV photography was so unreliable that it undermined the fundamental fairness of
his trial.3
Finally, even assuming, for the sake of argument, that the after-discovered
evidence called into question the reliability of the UV technique, the fact remains that the
use of the hem measurement in the original photograph yielded an independent proof of
Kunco’s connection to the bite mark found on the victim’s shoulder. In that sense, the
UV photograph evidence was almost duplicative, and was of little significance.4 See

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sufficient evidence to support a conviction” in Kunco’s case. See Appellant Br. at 39.
This self-congratulatory comment published in a scientific journal is scant proof that the
existence of the UV evidence was actually outcome-determinative in this case. The other
material Kunco cites in an effort to demonstrate the significance of the UV photograph
evidence at trial, see id. at 38-40, merely shows the weight given to bite mark evidence
generally. Again, it is undisputed that the government would have had some persuasive
bite mark evidence here even in the absence of the UV photograph.
Williamson v. Ward, 110 F.3d 1508, 1522-23 (10th Cir. 1997) (“fundamental fairness”
assessment requires “examining both the reliability of the evidence and the significance it
had at trial”).
Kunco presents no other arguments explaining how the after-discovered evidence
proves that his trial was fundamentally unfair. Because that evidence does not
demonstrate that the admission in this case of the UV photograph or the related expert
testimony violated Kunco’s due process rights, we affirm the judgment of the District
Court.

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