Com. v. Martin, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DESMOND MARTIN :
:
Appellant : No. 1728 EDA 2019
Appeal from the Order Entered May 30, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009280-2007
BEFORE: SHOGAN, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SHOGAN, J.: Filed: November 19, 2020
Appellant, Desmond Martin, appeals pro se from the order denying his
motion for post-conviction DNA testing filed pursuant to Section 9543.11 of
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.2 We affirm.
In addressing a prior PCRA petition, this Court summarized the history
of this case as follows:
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1 Section 9543.1 of the PCRA provides that convicted defendants serving a
term of imprisonment may move 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.” 42 Pa.C.S. § 9543.1(a)(1).
2 We observe that “petitions for post-conviction DNA testing are unique in
that the petition does not carry with it the right to counsel.” Commonwealth
v. Perry, 959 A.2d 932, 938 (Pa. Super. 2008) (citing Commonwealth v.
Brooks, 875 A.2d 1141, 1147 (Pa. Super. 2005)).
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On June 7, 2007, at approximately 10:00 p.m., the victim awoke
to find Appellant, who was holding a weapon, standing in her
bedroom. After binding the victim’s hands and feet, Appellant
raped the victim.[3] He then located the victim’s pocketbook, took
her ATM card, and coerced her into telling him the PIN number.
Appellant threatened to return if the PIN number was incorrect,
and after he left, the victim jumped out of her bedroom window
and ran to a neighbor’s house.
The victim gave a recorded statement to police wherein she
unambiguously identified Appellant, with whom she had once
resided, as her rapist. The victim’s sexual assault kit was positive
for the presence of spermatozoa. Laboratory tests revealed that
swabs from the victim’s vulva were positive for the presence of
Appellant’s DNA. The victim later discovered that, on June 8,
2007, two unauthorized ATM withdrawals were made from her
account.
On April 4, 2008, a jury convicted Appellant of numerous
offenses, including rape, burglary, and robbery,1 and on July 15,
2008, the trial court sentenced him to an aggregate of twenty
years to forty years in prison, to be followed by a ten-year term
of probation. Appellant filed a timely direct appeal, and this Court
affirmed his judgment of sentence. Commonwealth v. Martin,
2549 EDA 2008 (Pa.Super. filed 10/20/09) (unpublished
memorandum). On April 27, 2010, our Supreme Court denied
Appellant’s petition for allowance of appeal. Commonwealth v.
Martin, 693 EAL 2009 Pa. filed. 4/27/10) (per curiam order).
Appellant did not file a petition for a writ of certiorari with the
United States Supreme Court.
1 18 Pa.C.S.A. §§ 3121(a)(1), 3502(a), and
3701(a)(1), respectively.
Meanwhile, on or about December 11, 2009, while his
petition for allowance of appeal was pending, Appellant filed a pro
se PCRA petition. The PCRA court appointed counsel and the
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3 The victim indicated that Appellant drank from a Powerade bottle located on
her bedside table. Police detectives swabbed the interior and exterior mouth
area and lid of the bottle for DNA evidence. N.T., 4/1/08, at 37. However,
the laboratory did not test the swab, but “dried them out and saved them for
possible DNA analysis.” Id. at 92.
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petition was held in abeyance until after the Supreme Court denied
Appellant’s petition for allowance of appeal. Thereafter, on
December 6, 2011, PCRA counsel filed a petition seeking to
withdraw his representation. After giving notice of its intent to
dismiss, the PCRA court denied Appellant’s PCRA petition and
granted counsel permission to withdraw. On appeal, this Court
affirmed the PCRA court’s order denying relief. Commonwealth
v. Martin, 2220 EDA 2012 (Pa.Super. filed 9/26/14) (unpublished
memorandum).
On January 15, 2015, Appellant filed a second pro se PCRA
petition, which he amended on June 26, 2015, and July 7, 2015.
By order entered on August 24, 2015, the PCRA court provided
Appellant with notice of its intent to dismiss the petition, and
Appellant filed a pro se response. By order entered on September
22, 2015, the PCRA court dismissed Appellant’s second PCRA
petition.
Commonwealth v. Martin, 154 A.3d 840, 3031 EDA 2015 at *1-*3 (Pa.
Super. 2016) (unpublished memorandum). On July 1, 2016, this Court
affirmed the dismissal of the second PCRA petition. Id.-3-
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On July 19, 2018, Appellant filed a motion seeking DNA testing of the
Powerade bottle.4 The PCRA court denied DNA testing on May 31, 2019. This
timely appeal followed.5
Appellant presents the following issues for our review:
1. Did PCRA court err in treating petitioners motion for DNA
testing like a PCRA, holding it to those same standards?
2. Did trial counsel fail to seek discovery, when she failed to
obtain DNA results for that Powerade container?
Appellant’s Brief at unnumbered 3 (verbatim) (renumbered for disposition).
As a preliminary matter, we address Appellant’s second issue, which is
an attempt to challenge the effective assistance of trial counsel. Appellant’s
Brief at 7-8. Appellant claims that counsel should have ordered the DNA
testing of the Powerade bottle. Id.____________________________________________
4 We also observe that “[t]he one year jurisdictional time bar that exists under
the [PCRA] does not apply to motions for the performance of forensic DNA
testing under Section 9543.1.” Commonwealth v. Conway, 14 A.3d 101,
108 n.2 (Pa. Super. 2011) (citing Commonwealth v. Brooks, 875 A.2d
1141, 1146 (Pa. Super. 2005)). This Court has explained that a petition for
post-conviction DNA testing does not directly create an exception to the one-
year time bar under 42 Pa.C.S. § 9545; however, if granted, it “allows for a
convicted individual to first obtain DNA testing which could then be used within
a PCRA petition to establish new facts in order to satisfy the requirements of
an exception under 42 Pa.C.S.A. § 9545(b)(2).” Commonwealth v. Weeks,
831 A.2d 1194, 1196 (Pa. Super. 2003) (citing 42 Pa.C.S. § 9543.1(f)(1)).
5 An order granting or denying a motion for DNA testing disposes of all claims
raised by all parties to the litigation and, therefore, is a final order.
Commonwealth v. Scarborough, 64 A.3d 602, 609 (Pa. 2013).
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We find the following language from Commonwealth v. Walsh, 125
A.3d 1248 (Pa. Super. 2015) to be pertinent of Appellant’s claim:
Instantly, the order on appeal implicates only the court’s
denial of Appellant’s post-conviction request for DNA testing
pursuant to Section 9543.1. Nevertheless, Appellant attempts to
advance on appeal new issues outside his request for DNA testing.
These issues, including Appellant’s claims that trial counsel was
ineffective for failing to request DNA testing sooner, are
unreviewable at this juncture. See [Commonwealth v. Gandy,
38 A.3d 899 (Pa. Super. 2012)]; [Commonwealth v. Brooks,
875 A.2d 1141 (Pa. Super. 2005)]. See also Commonwealth
v. B. Williams, 35 A.3d 44, 50-51 (Pa. Super. 2011) (stating
petitioner who is unable to obtain DNA testing under Section
9543.1 can still pursue ineffective assistance of counsel claim
based on failure to request DNA testing of evidence at trial, but
only if PCRA petition is timely filed or otherwise meets statutory
exception to timeliness requirements). Thus, we will review only
Appellant’s challenge to the court’s denial of his request for DNA
testing, which is the sole issue properly before us for review.
Walsh, 125 A.3d at 1252 (footnote omitted). Therefore, as did the Court in
Walsh, we will limit our review to Appellant’s challenge to the denial of his
request for DNA testing and decline to address Appellant’s challenge to trial
counsel’s failure to request DNA testing.
With regard to his first issue, Appellant argues that the “PCRA court
misinterpreted the facts in this case by stating [Appellant] was identified by
his voice when this is no where in the record and basically dismissing his
motion for DNA [testing] on false grounds.” Appellant’s Brief at unnumbered
8. Appellant contends that he should be granted the opportunity to prove his
innocence because he was not the man responsible for the saliva that was
inside of the Powerade container. Id. at 9. In essence, Appellant infers that
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DNA testing of the saliva found in the Powerade bottle would establish his
innocence.
Initially, we observe that in 1992, this Court recognized the viability of
DNA testing as an evidentiary tool for the first time. Commonwealth v.
Brison, 618 A.2d 420, 425 (Pa. Super. 1992); Commonwealth v. Rodgers,
605 A.2d 1228, 1234-1235 (Pa. Super. 1992). This Court has set forth the
following standard of review of orders for post-conviction DNA testing:6
Post-conviction DNA testing falls under the aegis of the
Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§
9541–9546, and thus, “[o]ur standard of review permits us to
consider only whether the PCRA court’s determination is
supported by the evidence of record and whether it is free from
legal error.”
Commonwealth v. Conway, 14 A.3d 101, 108 (Pa. Super. 2011) (citations
omitted).
Great deference is granted to the findings of the PCRA court, and these
findings will not be disturbed unless they have no support in the certified
record. Commonwealth v. Watson, 927 A.2d 274, 277 (Pa. Super. 2007).
Moreover, when reviewing an order denying a motion for post-conviction DNA
testing, this Court determines whether the movant satisfied the statutory
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6We note that motions for post-conviction DNA testing, while considered post-
conviction petitions under the PCRA, are “separate and distinct” from claims
pursuant to other sections of the PCRA. Perry, 959 A.2d at 938. See also
In re Payne, 129 A.3d 546, 553 n.11 (Pa. Super. 2015) (“Though brought
under the general rubric of the PCRA, motions for post-conviction DNA testing
are ‘clearly separate and distinct from claims brought pursuant to other
sections of the PCRA.’”).
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requirements of Section 9543.1. Commonwealth v. Brooks, 875 A.2d
1141, 1147-1148 (Pa. Super. 2005). It is an appellant’s burden to persuade
us that the PCRA court erred and relief is due. Commonwealth v. Wrecks,
931 A.2d 717, 722 (Pa. Super. 2007). We may affirm the PCRA court’s
decision “if there is any basis to support it, even if this Court relies on different
grounds to affirm.” Commonwealth v. Kunco, 173 A.3d 817, 823 (Pa.
Super. 2017).
We further observe the following. A movant should make a request for
post-conviction DNA testing in a motion, not in a PCRA petition.
Commonwealth v. Young, 873 A.2d 720, 724 n.2 (Pa. Super. 2005). Such
a request allows a convicted person “to first obtain DNA testing which could
then be used within a PCRA petition to establish new facts in order to satisfy
the requirements of an exception under 42 Pa.C.S.A. § 9545(b)(2).” Id.
(citations omitted).
Subsection (a)(2) of Section 9543.1 of the PCRA “sets forth several
threshold requirements to obtain DNA testing.” Commonwealth v. Walsh,
125 A.3d 1248, 1254 (Pa. Super. 2015) (quoting Commonwealth v.
Williams, 35 A.3d 44, 49 (Pa. Super. 2011)). The subsection requires that
the evidence be available for testing as of the date of the motion, and that the
petitioner must prove the following:
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
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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.
42 Pa.C.S. § 9543.1(a)(2).
Therefore,
[t]he 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. 42 Pa.C.S.A.
§ 9543.1(a)(2).
Williams, 35 A.3d at 49.
Our review of the record reflects that Appellant requested DNA testing
of saliva swabs recovered from a Powerade bottle located at the crime scene.
Motion, 7/19/18, at 1-6. Thus, Appellant has asserted that the evidence is
available for testing, and the Commonwealth has not challenged this point.
Accordingly, Appellant has met the first requirement.
Regarding the next requirement, Appellant has failed to allege that this
evidence was first discovered after his trial in 2008. Moreover, because the
swabs were collected from the scene of the rape that occurred on June 7,
2007, and Appellant’s trial was held in March and April of 2008, we conclude
that this evidence was discovered prior to Appellant’s conviction. Therefore,
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Appellant is required to prove that the evidence was not already subjected to
DNA testing due to one of the three enumerated reasons set forth in
Subsection 9543.1(a)(2).
As it relates to Appellant’s statutory obligations, Appellant does not
assert, much less demonstrate, that: 1) DNA testing technology was not
available at the time of his trial in 2008; 2) he was convicted prior to 1995
and counsel failed to request testing; or 3) he was indigent and the trial court
denied his request for funds to pay for DNA testing prior to trial. 42 Pa.C.S.
§ 9543.1(a)(2). Appellant simply ignores these threshold components of the
post-conviction DNA statute. Accordingly, Appellant’s motion does not meet
the necessary requirements for DNA testing under the PCRA. Hence, the PCRA
court did not err in denying Appellant’s petition for DNA testing. See
Commonwealth v. Perry, 959 A.2d 932, 939 (Pa. Super. 2008) (no relief
when petitioner failed to satisfy the conditions outlined in § 9543.1(a)(2));
Walsh, 125 A.3d at 1257 (same).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/20
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