Com. v. Mercaldo, R. ( 2017 )

J-S93038-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICHARD MERCALDO, JR.,
Appellant No. 1054 EDA 2016
Appeal from the PCRA Order March 4, 2016
in the Court of Common Pleas of Delaware County
Criminal Division at No.: CP-23-CR-0001689-1999
BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED FEBRUARY 06, 2017
Appellant, Richard Mercaldo, Jr., appeals from the order denying his
motion for DNA testing pursuant to Section 9543.1 of the Post-Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.1 We affirm.
The PCRA court aptly set forth the relevant facts and procedural
history of this case as follows:
Appellant’s mother financially supported
Appellant until she died in November of 1994. After
Appellant’s mother’s death, Appellant’s father
refused to give Appellant any additional money and
told Appellant that he ([F]ather) was dating again.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Although Appellant titled his filing a petition rather than a motion, we will
refer to the filing as a motion throughout this memorandum, for consistency
with the applicable statutory provision. See 42 Pa.C.S.A. § 9543.1(a)(1).
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On December 28, 1995, at approximately 11:00
p.m., Appellant and his friend, Michael Kent, went to
Father’s house, and Appellant told Father that he
was going to move in with Father. Father indicated
that he would not permit the move, and following a
heated argument, Appellant stabbed Father.
Appellant then took forty dollars ($40.00) from
Father and, with Kent in the car, put the knife in a
dumpster behind the local YMCA.
On December 29, 1995, Appellant returned to
Father’s house and notified the police that Father
was dead. Subsequently, Kent told the police that
Appellant murdered his father, Appellant was
arrested, and Appellant was charged with [the
murder and] various other crimes.
Following a jury trial, Appellant was convicted of first
degree murder and possession of an instrument of a crime. On
January 21, 2000, Appellant was sentenced to life imprisonment.
After filing a direct appeal, his judgment of sentence was
affirmed on June 14, 2001. Appellant did not seek review of that
decision with the Pennsylvania Supreme Court.
According to the record, Appellant filed his first [PCRA]
petition on or about July 18, 2001. The petition was denied on
December 30, 2004. On March 12, 2014, the Appellant filed a
pro se “[Motion] for Post Conviction DNA Testing.” This court
appointed counsel who filed an “Amended Post Conviction Relief
Act Petition” on January 29, 2015 and on November 2, 2015
counsel filed a “Motion [Requesting] DNA Testing.” Following a
hearing on these motions, this court ultimately concluded that
the Appellant was not entitled to relief and denied his motions on
March 4, 2016. It is from that order that he now [timely]
appeals. While the court did not request a concise statement
pursuant to Pa.R.A.P., Rule 1925, Appellant filed one on June 7,
2016. . . .
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(PCRA Court Opinion, 7/12/16, at 1-2) (footnote and record citation
omitted).2
Appellant raises the following question for our review: “Did the [PCRA]
court err in denying [his motion] requesting STR DNA testing pursuant to 42
Pa.C.S.A. § 9543.1 as to certain items of evidence still in possession of the
Delaware County District Attorney’s Office?” (Appellant’s Brief, at 4)
(unnecessary capitalization omitted; citation formatting provided). 3 This
issue does not merit relief.
Initially, we note that, when examining the propriety of an
order resolving a request for DNA testing, we employ the PCRA
standard of review. On appeal from the denial of PCRA relief,
our standard of review calls for us to determine whether the
ruling of the PCRA court is supported by the record and free of
legal error. In the present matter, we are considering the PCRA
court’s denial of a request for DNA testing. In this context, the
[timeliness] filing requirements of 42 Pa.C.S.[A.] § 9545 have
not yet been implicated.
Commonwealth v. Gacobano, 65 A.3d 416, 419 (Pa. Super. 2013)
(citations omitted).
Generally, the trial court’s application of a statute is a
question of law that compels plenary review to determine
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2
The PCRA court entered an opinion on July 12, 2016. See Pa.R.A.P.
1925(a).
3
“‘STR’ stands for short tandem repeat, and involves viewing a sequence of
DNA that is repeated exactly one repeat sequence after another in tandem,
like the cars of a train.” Commonwealth v. Jones, 811 A.2d 1057, 1061
n.4 (Pa. Super. 2002), appeal denied, 832 A.2d 435 (Pa. 2003) (record
citation omitted).
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whether the court committed an error of law. When reviewing
an order denying a motion for post-conviction DNA testing, this
Court determines whether the movant satisfied the statutory
requirements listed in Section 9543.1. We can affirm the court’s
decision if there is any basis to support it, even if we rely on
different grounds to affirm.
Commonwealth v. Walsh, 125 A.3d 1248, 1252–53 (Pa. Super. 2015)
(citation omitted).
Instantly, Appellant petitioned the PCRA court for DNA testing after he
watched a television program about DNA evidence on CSPAN. (See PCRA
Motion, 3/12/14, at unnumbered page 1 ¶ 3). He requested testing of “the
victim’s coat, hat, shirt, undershirt, hat [sic], tie, fingernail clippings, or
other biological evidence,” and averred that his Father’s assailant may have
left DNA evidence during the “obvious attack . . . and scuffle[.]” (Id. at ¶¶
5-6). Counsel then requested STR DNA testing of additional items, including
the victim’s glasses and keys, and a bloodstained piece of rug and
handkerchief. (See Amended PCRA Motion, 1/29/15, at unnumbered pages
1-2; Motion Requesting DNA Testing, 11/02/15, at unnumbered pages 2-3).
In his appellate brief, Appellant acknowledges that DNA testing was available
at the time of his trial, but argues that the specific form of testing that he
seeks (STR) was not available at that time. (See Appellant’s Brief, at 8).
The applicable statutory provisions state, in relevant part, as follows:
(a) Motion.—
(1) An individual convicted of a criminal offense in a
court of this Commonwealth and serving a term of
imprisonment or awaiting execution because of a
sentence of death may apply by making a written
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motion to the sentencing court for the performance
of forensic DNA testing on specific evidence that is
related to the investigation or prosecution that
resulted in the judgment of conviction.
(2) The evidence may have been discovered either
prior to or after the applicant’s conviction. The
evidence shall be available for testing as of the date
of the motion. If the evidence was discovered prior
to the applicant’s conviction, the evidence shall not
have been subject to the DNA testing requested
because the technology for testing was not in
existence at the time of the trial or the applicant’s
counsel did not seek testing at the time of the trial in
a case where a verdict was rendered on or before
January 1, 1995, or the applicant’s counsel sought
funds from the court to pay for the testing because
his client was indigent and the court refused the
request despite the client’s indigency.
* * *
(c) Requirements.—In any motion under subsection (a), under
penalty of perjury, the applicant shall:
(1) (i) specify the evidence to be tested;
(ii) state that the applicant consents to provide
samples of bodily fluid for use in the DNA testing;
and
(iii) acknowledge that the applicant
understands that, if the motion is granted, any data
obtained from any DNA samples or test results may
be entered into law enforcement databases, may be
used in the investigation of other crimes and may be
used as evidence against the applicant in other
cases.
(2) (i) assert the applicant’s actual innocence of the
offense for which the applicant was convicted; and . .
.
* * *
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(3) present a prima facie case demonstrating that
the:
(i) identity of or the participation in the crime
by the perpetrator was at issue in the proceedings
that resulted in the applicant’s conviction and
sentencing; and
(ii) DNA testing of the specific evidence,
assuming exculpatory results, would establish:
(A) the applicant’s actual innocence of the offense
for which the applicant was convicted; . . .
(d) Order.—
(1) Except as provided in paragraph (2), the court
shall order the testing requested in a motion under
subsection (a) under reasonable conditions designed
to preserve the integrity of the evidence and the
testing process upon a determination, after review of
the record of the applicant’s trial, that the:
(i) requirements of subsection (c) have been
met;
(ii) evidence to be tested has been subject to a
chain of custody sufficient to establish that it
has not been altered in any material respect;
and
(iii) motion is made in a timely manner and for
the purpose of demonstrating the applicant’s
actual innocence and not to delay the
execution of sentence or administration of
justice.
(2) The court shall not order the testing requested in
a motion under subsection (a) if, after review of the
record of the applicant’s trial, the court determines
that there is no reasonable possibility that the
testing would produce exculpatory evidence that:
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(i) would establish the applicant’s actual
innocence of the offense for which the
applicant was convicted; . . .
42 Pa.C.S.A. § 9543.1(a), (c), (d).
Thus, under Section 9543.1(a):
The statute sets forth several threshold
requirements to obtain DNA testing: (1) the evidence
specified must be available for testing on the date of
the motion; (2) if the evidence was discovered
prior to the applicant’s conviction, it was not
already DNA tested because (a) technology for
testing did not exist at the time of the
applicant’s trial; (b) the applicant’s counsel did
not request testing in a case that went to
verdict before January 1, 1995; or (c) counsel
sought funds from the court to pay for the
testing because his client was indigent, and the
court refused the request despite the client’s
indigency.
Additionally:
The text of the statute set forth in Section
9543.1(c)(3) and reinforced in Section 9543.1(d)(2)
requires the applicant to demonstrate that favorable
results of the requested DNA testing would establish
the applicant’s actual innocence of the crime of
conviction. The statutory standard to obtain testing
requires more than conjecture or speculation; it
demands a prima facie case that the DNA results, if
exculpatory, would establish actual innocence.
Significantly, in DNA testing cases, an absence of evidence
is not evidence of absence. . . .
Further, Section 9543.1(d) requires the petitioner to make
a timely request for DNA testing. . . .
Walsh, supra at 1254–55 (case citations, quotation marks, and original
emphasis omitted; emphasis added).
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Here, the evidence Appellant seeks to have DNA tested was discovered
before his conviction. See 42 Pa.C.S.A. § 9543.1(a)(2). The PCRA court
determined that Appellant is not entitled to DNA testing of these items
because he failed to meet the threshold requirements set forth in Section
9543.1(a)(2). (See PCRA Ct. Op., at 5). Upon review, we agree.
Specifically, the technology for DNA testing existed at time of Appellant’s
trial; the jury reached its verdict on December 10, 1999 (nearly five years
after January 1, 1995); and the trial court had not refused a request for
funds for testing. See 42 Pa.C.S.A. § 9543.1(a)(2). Consequently,
Appellant has not met his threshold burden under Section 9543.1(a)(2).
See Walsh, supra at 1257 (concluding appellant unable to satisfy threshold
requirements necessary to obtain post-conviction DNA testing of evidence
discovered and available before trial where DNA testing technology was
available at time of trial, jury reached its verdict after January 1, 1995, and
court did not refuse request for funds for DNA testing).
With respect to Appellant’s assertion that he is entitled to DNA testing
because the specific form of testing that he requests (STR) was unavailable
at the time of trial, (see Appellant’s Brief, at 8), this claim is waived. In his
appellate brief, Appellant does not explain the difference between STR
testing and the DNA testing available at the time of his trial, or discuss why
this case requires this specific type of testing, nor does he cite any
controlling legal authority on this issue. (See id. at 8-9). Thus, Appellant’s
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argument is waived for his failure to develop it properly. See Pa.R.A.P.
2119(a)-(c).
Moreover, regarding advancements in DNA testing technology, our
Supreme Court has stated: “[t]he statute recognized that the testing
available at the time of its enactment was of sufficient reliability that
defendants could seek DNA testing, in cases where good faith claims of
innocence were timely raised.” Commonwealth v. Edmiston, 65 A.3d
339, 358 (Pa. 2013), cert. denied, 134 S. Ct. 639 (2013). Advancements in
technology do not explain why Appellant did not seek DNA testing at the
time of trial using the technology available to him, or, at the very least,
request testing in 2007, when he claims STR testing was adopted in
Pennsylvania. See id.; (see also Appellant’s Brief, at 8-9). Therefore,
Appellant’s argument would not alter our determination that he failed to
meet the threshold requirements of Section 9543.1(a)(2).4
In sum, we conclude the PCRA court properly denied Appellant’s
motion for post-conviction DNA testing. See Gacobano, supra at 419.
Accordingly, we affirm the order of the PCRA court.
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4
We also observe the PCRA court’s finding that, even if Appellant had
satisfied the threshold requirements, he failed to establish a prima facie case
of actual innocence, where the evidence included testimony from an
eyewitness to the murder and from a friend to whom Appellant had
confessed, and there was no evidence that the victim struggled with his
assailant. (See PCRA Ct. Op., at 5-6); see also 42 Pa.C.S.A. §
9543.1(c)(3)(ii)(A); see id. at (d)(2)(i).
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/2017
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