Com. v. Robinson, E. ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ERIC ROBINSON, : No. 25 EDA 2019
:
Appellant :
Appeal from the Order Dated November 27, 2018,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-1206701-1981
BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: Filed: March 16, 2020
Eric Robinson appeals pro se from the November 27, 2018 order
dismissing his untimely serial petition filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, and his motion for
post-conviction DNA testing. After careful review, we affirm.
The relevant facts of this case were set forth in the PCRA court’s opinion
and need not be reiterated here. (See PCRA court opinion, 6/4/19 at 1-3.)
The pertinent procedural history of this case, as gleaned from the certified
record, is as follows: On February 8, 1982, appellant was found guilty
following a bench trial of first-degree murder1 and related offenses in
connection with the shooting death of Yefim Zaks in West Philadelphia. The
1 18 Pa.C.S.A. 2501(a).
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trial court sentenced appellant to a mandatory term of life imprisonment. On
August 31, 1984, a panel of this court affirmed appellant’s judgment of
sentence in part and vacated it in part, and our supreme court denied
allowance of appeal on January 7, 1985. See Commonwealth v. Robinson,
481 A.2d 1376 (Pa.Super. 1984) (unpublished memorandum), appeal
denied, A.2d (Pa. 1985).2 Appellant did not file a petition for writ of
certiorari with the Supreme Court of the United States. From 1986 to 2012,
appellant filed five unsuccessful PCRA petitions.
Appellant filed the instant pro se PCRA petition, his sixth, on March 8,
2016. Contemporaneously with this petition, appellant filed a pro se motion
for post-conviction DNA testing, pursuant to 42 Pa.C.S.A. § 9543.1. On
July 31, 2018, the PCRA court appointed counsel,3 who subsequently filed a
“no merit” letter and petition to withdraw in accordance with Commonwealth
v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550
A.2d 213 (Pa.Super. 1988) (en banc). On October 22, 2018, the PCRA court
provided appellant with notice of its intention to dismiss his petition without a
hearing, pursuant to Pa.R.Crim.P. 907(1). Appellant filed a pro se response
to the PCRA court’s Rule 907 notice on November 15, 2018. On November 27,
2018, the PCRA court granted counsel permission to withdraw. That same
2We were unable to locate our supreme court’s denial of appellant’s allocator
petition in our search of the Atlantic Reporter.
3 George S. Yacoubian, Esq.
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day, the PCRA court dismissed both appellant’s untimely serial PCRA petition
and his motion for post-conviction DNA testing. This timely appeal followed.4
Appellant’s argument on appeal is two-fold. Appellant first contends
that he is entitled to collateral relief because of an unspecified constitutional
violation, the ineffectiveness of his counsel, and the unavailability of
exculpatory DNA evidence. (See pro se PCRA petition, 3/8/16 at ¶¶ 4-5.)
Appellant also contends that “the [PCRA court] erred as a matter of law in
determining that DNA testing would not produce exculpatory evidence that
would establish appellant’s actual innocence.” (Appellant’s brief at 14
(extraneous capitalization omitted)).
I. Dismissal of PCRA petition
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “This Court grants
great deference to the findings of the PCRA court, and we will not disturb those
findings merely because the record could support a contrary holding.”
Commonwealth v. Hickman, 799 A.2d 136, 140 (Pa.Super. 2002) (citation
omitted). Additionally, we note that, “[a]lthough this Court is willing to
4The PCRA court did not order appellant to file a concise statement of errors
complained of on appeal, in accordance with Pa.R.A.P. 1925(b). The PCRA
court filed its Rule 1925(a) opinion on June 4, 2019.
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liberally construe materials filed by a pro se litigant, pro se status confers no
special benefit upon the appellant[.]” Commonwealth v. Adams, 882 A.2d
496, 498 (Pa.Super. 2005) (citation omitted).
Preliminarily, we must consider the timeliness of appellant’s PCRA
petition because it implicates the jurisdiction of this court and the PCRA court.
Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014) (citation
omitted). All PCRA petitions, including second and subsequent petitions, must
be filed within one year of when a defendant’s judgment of sentence becomes
final. 42 Pa.C.S.A. § 9545(b)(1). “A judgment becomes final at the conclusion
of direct review, including discretionary review in the Supreme Court of the
United States and the Supreme Court of Pennsylvania, or at the expiration of
the time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). If a PCRA
petition is untimely, a court lacks jurisdiction over the petition.
Commonwealth v. Callahan, 101 A.3d 118, 120-121 (Pa.Super. 2014).
Here, appellant’s judgment of sentence became final on April 8, 1985,
90 days after our supreme court denied allowance of appeal and the deadline
for filing a petition for writ of certiorari with the Supreme Court of the United
States expired. See 42 Pa.C.S.A. § 9545(b)(3). Accordingly, appellant had
until April 8, 1986, to file a timely PCRA petition. See 42 Pa.C.S.A.
§ 9545(b)(1). Appellant’s instant petition was filed on March 8, 2016, almost
30 years past the deadline, and is patently untimely. As a result, the PCRA
court lacked jurisdiction to review appellant’s petition, unless he pleads and
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proves that one of the following three statutory exceptions to the one-year
jurisdictional time-bar applies.
The three statutory exceptions to the PCRA time-bar are as follows:
(i) the failure to raise the claim previously was the
result of interference by government officials
with the presentation of the claim in violation of
the Constitution or laws of this Commonwealth
or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated
were unknown to the petitioner and could not
have been ascertained by the exercise of due
diligence; or
(iii) the right asserted is a constitutional right that
was recognized by the Supreme Court of the
United States or the Supreme Court of
Pennsylvania after the time period provided in
this section and has been held by that court to
apply retroactively.
42 Pa.C.S.A. § 9545(b)(1).
Instantly, the record reveals that appellant has failed to invoke any of
the three statutory exceptions to the one-year jurisdictional time-bar. On the
contrary, appellant’s brief makes no argument whatsoever with respect to
timeliness of his petition and does not even cite Section 9545(b)(1).
Accordingly, we lack jurisdiction to review the merits of any of the claims
appellant raised in his untimely petition. See Callahan, 101 A.3d at 123
(holding, if a PCRA petition is untimely on its face, or fails to meet one of the
three statutory exceptions to the time-bar, we lack jurisdiction to review it on
the merits).
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II. Denial of motion for post-conviction DNA testing
We now turn to appellant’s claim that the PCRA court erred in denying
his pro se motion for post-conviction DNA testing. (Appellant’s brief at
14-27.)
Motions for post-conviction DNA tests, while
considered post-conviction petitions under the PCRA,
are clearly separate and distinct from claims pursuant
to other sections of the PCRA. It is well-recognized
that the one-year time bar proscribed under the PCRA
does not apply to petitions for post-conviction DNA
testing under Section 9543.1.
Commonwealth v. Perry, 959 A.2d 932, 938 (Pa.Super. 2008) (citations
and internal quotation marks omitted).
Our standard of review of an order denying a motion for post-conviction
DNA testing is well settled:
[T]he [PCRA] court’s application of a statute is a
question of law that compels plenary review to
determine 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 [of the PCRA].
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. Williams, 35 A.3d 44, 47 (Pa.Super. 2011) (internal
citations omitted), appeal denied, 50 A.3d 121 (Pa. 2012).
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The requirements for obtaining post-conviction DNA testing are set forth
in 42 Pa.C.S.A. § 9543.1(c).5 As a panel of this court explained in Williams,
[Section 9543.1] 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, . . . [u]nder [S]ection 9543.1(c)(3), the
petitioner is required to present a prima facie case
that the requested DNA testing, assuming it gives
exculpatory results, would establish the petitioner’s
actual innocence of the crime. Under
[S]ection 9543.1(d)(2), the court is directed not to
order the testing if it determines, after review of the
trial record, that there is no reasonable possibility that
the testing would produce exculpatory evidence to
establish petitioner’s actual innocence. From the clear
words and plain meaning of these provisions, there
can be no mistake that the burden lies with the
petitioner to make a prima facie case that favorable
results from the requested DNA testing would
establish his innocence. We note that the statute does
not require petitioner to show that the DNA testing
results would be favorable. However, the court is
required to review not only the motion [for DNA
testing], but also the trial record, and then make a
determination as to whether there is a reasonable
possibility that DNA testing would produce
5 We note that Section 9543.1 was amended and the new language became
effective December 24, 2018. See Act 2018, Oct. 24, P.L. 896, No. 147, § 1.
Because appellant filed his motion on March 8, 2016, this amended language
does not apply.
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exculpatory evidence that would establish
petitioner’s actual innocence.
Williams, 35 A.3d at 49-50 (citation omitted; emphasis in original); see also
42 Pa.C.S.A. § 9543.1(d)(2)(i) (stating, “[t]he court shall not order the testing
requested . . . 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 . . . would establish the applicant’s actual
innocence of the offense for which the applicant was convicted[.]”).
In In re Payne, 129 A.3d 546 (Pa.Super. 2015) (en banc), appeal
denied, 145 A.3d 167 (Pa. 2016), a panel of this court explained that actual
innocence in the context of Section 9543.1(d)(2)(i) is demonstrated by
evidence that “make[s] it more likely than not that no reasonable juror would
have found [the applicant] guilty beyond a reasonable doubt.” Payne, 129
A.3d at 556 (citation and internal quotation marks omitted). The Payne court
explained that, “[t]he threshold question is, therefore, not the likelihood of
proof of innocence, but whether it is within the realm of reason that some
result(s) could prove innocence.” Id. at 563.
Herein, appellant argues that he complied with all requirements of
Section 9543.1(c) and baldly contends that the PCRA court failed to apply the
aforementioned standard set forth in Payne. (Appellant’s brief at 4, 17-20.)
The record belies these contentions.
Preliminarily, we note that appellant has failed to proffer any evidence
that the items he desired to be DNA tested still exist more than 30 years after
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his convictions, as he was required to do. See 42 Pa.C.S.A. § 9543.1(a)(2)
(stating, “[t]he evidence shall be available for testing as of the date of the
motion.”). While he asserted his actual innocence in his PCRA petition,
appellant also failed to present a prima facie case demonstrating that the
results of the DNA testing, even if favorable, would establish his actual
innocence. See id. at § 9543.1(c)(2), (3)(i), and (3)(ii)(A). To this point, we
agree with the sound reasoning of the PCRA court:
The evidence adduced at trial overwhelmingly
established that [appellant] was responsible for the
murder of Yefim Zaks and DNA testing would not have
changed the verdict.
....
First, the absence of [appellant’s] DNA on Zaks’ body
or on the seat cover used to wrap the deceased would
not exculpate him by proving that he never handled
the body, as he suggests. The lack of [appellant’s]
DNA material on the seat cover or corpse would
neither prove nor disprove that [appellant] killed
Zaks. . . .
Similarly, lack of gunshot residue on [appellant’s]
jacket would neither prove nor disprove he killed
Zaks. Although [appellant] was wearing the jacket at
the time of his arrest, there is no evidence that he was
wearing it when he shot Zaks. Once again, the
absence of evidence is not evidence of absence and
cannot prove actual innocence. Therefore, a lack of
gunshot residue on [appellant’s] jacket would not
serve to prove his actual innocence.
Third, [appellant] claims that Zaks’ blood type was
never tested and that there was no evidence that
Zaks’ blood type was B. [Appellant] cites Dr. Charles
Tumosa’s testimony at trial where he testified that he
never received a sample of the deceased’s blood.
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[Appellant] claims that if Zaks’ blood were analyzed
for blood type, it would not match the Type B blood
found on [appellant’s] jeans. This claim is easily
belied by the record. Earlier on the same day that
Dr. Tumosa testified at trial, the Deputy Medical
Examiner Dr. Robert L. Catherman testified that he
examined Zaks’ body, determined the cause and
approximate time of death, and performed an
autopsy. As part of the autopsy, Dr. Catherman
performed a blood[] typing test on Zaks’ blood and
determined that it was Type B. After Dr. Catherman
testified, Dr. Frank Thompson, Jr., a Histologist in the
Office of the Medical Examiner, testified that he also
performed blood[] typing analysis on a sample from
Zaks’ body and determined that it was Type B.
[Appellant] has provided no evidentiary basis to
suggest that the blood on the jeans, which indeed
matched Zaks’ blood type, belonged to anyone else
other than Zaks. Rather, his entire argument rests on
the false belief that Zaks’ blood type was never
determined, and he believes that performing a blood
typing test would show they do not match. Since
performing a blood type analysis at this time would
only duplicate analysis already performed and which
showed that Zaks’ blood type matched the blood on
[appellant’s] jeans, this would in no way prove actual
innocence.
Last, [appellant] claims that DNA testing will prove
that the two individuals he claims used Zaks’ credit
cards at a bank on the day of the murder are the true
perpetrators. This claim is wholly without merit. First,
there is nothing in the trial record regarding these two
individuals or the incident at the bank. Second, DNA
testing would neither prove nor disprove whether two
unknown individuals participated in some way in Zaks’
murder. There are no known samples of DNA material
from these two unnamed individuals and [appellant]
does not even specify which evidence in connection
with the alleged bank incident he believes should be
subjected to DNA evidence or how it would establish
his actual innocence. He simply baldly claims that
these two people are the true murderers. This is
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insufficient to establish the prima facie case that
[appellant] needs for relief.
PCRA court opinion, 6/4/19 at 8-11 (footnote and citations to notes of
testimony omitted).
Contrary to appellant’s contention, it is clear from the PCRA court’s
analysis that it applied the appropriate standard in this matter. Accordingly,
we discern no error on the part of the PCRA court and conclude the PCRA court
properly dismissed appellant’s untimely serial PCRA petition and his motion
for post-conviction DNA testing.
Order affirmed.
Lazarus, J. joins this Memorandum.
McLaughlin, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: March 16, 2020
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