Com. v. Markijohn, J. ( 2023 )

J-S17036-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOSEPH ANTHONY MARKIJOHN, II :
:
Appellant : No. 489 WDA 2022
Appeal from the PCRA Order Entered April 22, 2022
In the Court of Common Pleas of Lawrence County
Criminal Division at No(s): CP-37-CR-0000445-2015
BEFORE: LAZARUS, J., OLSON, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: OCTOBER 3, 2023
Appellant, Joseph Anthony Markijohn, II, appeals from the order entered
in the Lawrence County Court of Common Pleas, which dismissed his first
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), at 42
Pa.C.S.A. §§ 9541-9546. We affirm.
A prior panel of this Court set forth the relevant facts of this case as
follows:
On December 28, 2014, Kaitlyn Kerezsi and Appellant, her
boyfriend at the time, had planned to visit his friend, Joseph
Pagley (the “Decedent”), in New Castle. The Decedent
supplied Appellant with marijuana. However, when Ms.
Kerezsi woke that morning, Appellant informed her that only
he would be traveling to New Castle. He packed a bag with
a change of clothes and left in his green Jeep Cherokee
around 1 p.m.
Between 5:30 and 6:00 p.m., wearing a new sweatshirt,
Appellant returned from New Castle with five pounds of
marijuana and a large amount of cash. The pair went to a
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local Walmart, purchased a safe and glass jars, returned
home, and proceeded to repackage the marijuana.
Appellant began selling this marijuana to friends the
following day.
This was more marijuana than Ms. Kerezsi had seen
previously in Appellant’s possession. When asked about the
large quantity, Appellant suggested to Ms. Kerezsi that he
and the Decedent had robbed a rival marijuana growing
operation. According to Appellant, he had used a small
pistol to shoot a lock on the shed containing the marijuana.
Appellant told Ms. Kerezsi that he disposed of the gun and
that she should deny he had possessed one.
Earlier that day, the Decedent informed his girlfriend,
Shayna Magno, that he had plans to meet someone from
out of town at his house and that, therefore, she had to
leave. Ms. Magno left, met a friend, and began using heroin.
Apparently, the Decedent concluded that Ms. Magno was
using heroin, which precipitated an argument between the
two via text messaging and cellphone calls. However, at
3:32 p.m., the Decedent’s phone was turned off, and Ms.
Magno had no further contact with him.
Sometime between 3:00 and 4:00 p.m., Appellant met the
Decedent at the Roupp residence. Surveillance video later
recovered from a local business showed Appellant’s Jeep
Cherokee following the Decedent’s vehicle in the direction
of the Decedent’s house at 3:44 p.m.
Over the next several hours, Ms. Magno tried repeatedly but
unsuccessfully to contact the Decedent. Eventually, at
10:40 p.m., Ms. Magno was able to reach a mutual friend,
David Roupp. She inquired as to the Decedent’s
whereabouts, but Mr. Roupp had not seen or heard from
him.
Ms. Magno returned to the Decedent’s house. His vehicle
was parked outside; the front door was unlocked; however,
the home was unlit, and he did not appear to be there.
Unnerved by this, Ms. Magno again called Mr. Roupp, who
came to the house. Upon searching the basement, Mr.
Roupp discovered the Decedent’s dead body.
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An investigation ensued. Police recovered three .25 caliber
shell casings in the basement surrounding the Decedent’s
body. In addition, an autopsy determined that the cause of
his death was three gunshot wounds to the head, and the
manner of death was homicide. Each of the three .25 caliber
slugs recovered from his head had been fired from the same
weapon.
Although he would later deny it, Appellant possessed a .25
caliber pistol. Appellant’s mother gave him such a pistol for
protection sometime in 2014. Ms. Kerezsi observed a small
pistol hidden underneath Appellant’s mattress. In addition,
Mr. Roupp had witnessed Appellant threaten another friend
with a small, black pistol during an argument. Finally,
Appellant had posted pictures of a .25 caliber pistol on social
media. Following his arrest, Appellant directed Ms. Kerezsi
to shut down his social media accounts, and she complied.
On December 30, 2014, Terrance Albright, a random
passer-by, found an iPhone under a guardrail close to the
Smolen-Gulf Bridge in Ashtabula, Ohio, where Appellant
resided. Guessing the manufacturer’s default password and
unlocking the phone, Mr. Albright learned that it belonged
to the Decedent. He contacted the Decedent’s father, who
in turn contacted the police. The bridge is approximately
3.5 miles from Appellant’s home and 85 miles from the
Decedent’s house.
On December 31, 2014, executing a search warrant on
Appellant’s home, police discovered and seized several
pounds of marijuana. The marijuana was stored in jars
labelled “Blue Dream” and “Fu Dawg.” Text messages
exchanged between Appellant and the Decedent, prior to
their meeting, referenced these particular brands. Further,
notwithstanding his story of the rival robbery, Appellant
acknowledged that he had been present in the Decedent’s
house as late as 4 p.m. on the date of the murder and that
the marijuana seized from his home had come from the
Decedent’s house.
Police arrested Appellant and charged him with murder and
robbery. …
Commonwealth v. Markijohn, No. 827 WDA 2019, unpublished
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memorandum at 1-5 (Pa.Super. filed January 22, 2020) (internal citations and
footnotes omitted), appeal denied, 661 Pa. 484, 236 A.3d 1052 (2020).
A jury convicted Appellant of first-degree murder and robbery. On
December 5, 2018, the trial court sentenced Appellant to life imprisonment.
This Court affirmed Appellant’s judgment of sentence on January 22, 2020,
and our Supreme Court denied Appellant’s petition for allowance of appeal on
June 29, 2020. See id.Appellant filed a timely PCRA petition on December 18, 2020. The court
conducted hearings on May 25, 2021, September 9, 2021, and November 1,
2021. The PCRA court summarized the testimony from the PCRA hearings as
follows:
[On May 25, 2021, Appellant] presented the testimony of
his trial counsel, Steven Valsamidis, Esquire, concerning
numerous aspects of his representation of [Appellant].
Attorney Valsamidis recalled having conversations about
retaining a private investigator. However, it was unlikely a
private investigator would have been able to locate the grow
shed robbed by [Appellant] and Decedent as [Appellant]
could not recall the route they traveled to get to that
location. Attorney Valsamidis believed that could be used
by the Commonwealth to damage [Appellant’s] credibility if
he hired a private investigator and they were unable to
locate the shed. At the conclusion of that conversation with
[Appellant], Attorney Valsamidis asked [Appellant] if the
private investigator would find the grow shed and if he
wanted to hire a private investigator. [Appellant] remained
silent and Attorney Valsamidis understood that to mean he
did not wish to hire a private investigator at that time.
Attorney Valsamidis also did not believe hiring a private
investigator to investigate Ms. Magno would have been
productive as the defense was based upon someone
associated with the grow shed being the perpetrator and Ms.
Magno was not involved with that operation. Although,
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Attorney Valsamidis acknowledged Ms. Magno was a person
of interest in the homicide based upon the testimony of one
of the Pennsylvania State Troopers.
Attorney Valsamidis also explained he did not feel it was
necessary to file a notice of alibi defense as Defendant’s
version of events left the possibility he was in New Castle at
the time of the homicide. Under those circumstances,
Attorney Valsamidis did not believe an alibi defense or
instruction to the jury was necessary.
[Appellant’s] counsel inquired as to why Attorney Valsamidis
did not file a motion in limine as it pertained to [Appellant’s]
lip tattoo of the word “Kill.” It was his opinion that tattoo is
easily explainable because [Appellant] was a Marine years
earlier and he believed it demonstrated desperation on
behalf of the Commonwealth to emphasize the tattoo. In
relation to a prior incident in which another individual
became upset at [Appellant’s] mother’s residence and
began destroying her bedroom causing [Appellant] to
brandish a .25 caliber pistol, Attorney Valsamidis did not file
an objection as there was no basis to do so because the
Commonwealth was introducing it for the legitimate purpose
of demonstrating [Appellant] possessed a firearm to
impeach his prior statement to the Troopers denying
possession of a firearm. At the time that was presented to
the jury, the Commonwealth did not know whether
[Appellant] was going to testify.
When questioned about calling character witnesses to testify
on [Appellant’s] behalf, Attorney Valsamidis indicated they
attempted to locate witnesses. He had conversations with
several of [Appellant’s] friends from his time in the military
about appearing at trial, but they had not been around
[Appellant] for an extended period of time. [Appellant]
identified several potential character witnesses and Attorney
Valsamidis recalled having conversations with at least two
of them. He then explained two of the witnesses he spoke
with had not been in [Appellant’s] company for a “significant
period of time”. In addition, Attorney Valsamidis recalled
one of those individuals, Hunter Bernard, left a message for
Attorney Valsamidis indicating he was unavailable for trial.
Attorney Valsamidis did not subpoena Mr. Bernard based
upon his belief subpoenaing a witness who is supposed to
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be favorable but is not cooperative often will not result in
favorable testimony.
Another hearing was scheduled for September 9, 2021, to
allow for further testimony to be presented. On that date,
[Appellant] testified concerning his statement to Troopers
Gustafson and Birckbichler on December 31, 2014.
[Appellant] admitted he lied to them about possessing the
firearm because he feared he would get into trouble for
providing it to Decedent. Following the interview,
[Appellant] was arrested and transported to Lawrence
County, Pennsylvania. Initially, [Appellant] was
represented by Lawrence J. Keith, Esquire, and Dennis A.
Eliseo, Esquire, of the Lawrence County Public Defender’s
Office; however, [Appellant] wanted a change of counsel
due to not receiving responses to his inquiries. The [c]ourt
then appointed John J. Bongivengo, Esquire, to represent
[Appellant], who [Appellant] never actually met because he
privately retained Attorney Valsamidis. They thoroughly
discussed the events of December 28, 2014, which included
[Appellant’s] reasoning for providing the firearm to
Decedent. [Appellant] indicated he lied about it to the
Troopers as Decedent had a felony conviction and it is illegal
to provide a firearm to a convicted felon. [Appellant] also
indicated Attorney Valsamidis was aware of his description
concerning the location of the shed he and Decedent broke
into and from which they stole marijuana.
According to [Appellant], he and Attorney Valsamidis never
discussed hiring a private investigator or about cell phone
technology. Conversely, they spoke about potential
character witnesses and, according to [Appellant], he
provided Attorney Valsamidis with the names Hunter
Bernard, Coralyn Thompson and Edward Crawford, II.
[Appellant] stated those individuals were willing to testify
on his behalf as character witnesses.
Another hearing was held on November 1, 2021, to permit
[Appellant] to present the testimony of two of his proposed
character witnesses, Edward Crawford, II, and Coralyn
Thompson. Mr. Crawford testified he has never been
convicted of a felony or any crime of dishonesty. He is
familiar with [Appellant] as they previously worked together
at Ringer Screen Print in approximately 2013. Their families
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were friends and [Appellant] used to “hang out” at his house
when they were younger. Mr. Crawford and [Appellant]
would often socialize after work until [Appellant] was
arrested for Decedent’s homicide. Eventually, [Appellant’s]
mother, Anna Dixon, contacted Mr. Crawford to ask him to
testify on [Appellant’s] behalf as a character witness, but he
did not recall receiving a telephone call from Attorney
Valsamidis. Mr. Crawford testified he was ready, willing and
able to testify to [Appellant’s] good character at trial.
However, Mr. Crawford was never subpoenaed by Attorney
Valsamidis to appear at trial. On cross-examination, Mr.
Crawford stated he probably would not have traveled here
to testify at trial as “this is all nervous to me, I guess, you
know, nerve wracking....” He also explained he would have
been upset if he were compelled to testify at trial. Mr.
Crawford indicated he was in [Appellant’s] presence when
he used and sold marijuana.
Ms. Thompson also testified at that hearing and explained
she has been a friend of [Appellant] since [Appellant] was
in the first grade. The last time she saw [Appellant] was in
2013 at her brother’s funeral, but they kept in touch through
regular communications via the telephone. They lost touch
briefly then [Appellant] began contacting her by telephone
during his incarceration. As trial was approaching,
[Appellant] and Ms. Dixon asked Ms. Thompson if she would
be willing to be a character witness for [Appellant].
Attorney Valsamidis did not contact Ms. Thompson
concerning her willingness to testify at trial. Ms. Thompson
indicated she has not been convicted of any felonies or
crimes of dishonesty. She stated she was ready, willing and
able to testify on [Appellant’s] behalf as a character witness.
On cross-examination, Ms. Thompson testified she did not
appear at trial because she was not compelled to do so but
would have attended if she received a subpoena. She also
indicated she knew [Appellant] was a marijuana user but did
not know he dealt marijuana.
(PCRA Court Opinion, filed 5/20/22, at 8-12).
On April 22, 2022, the PCRA court issued its order denying PCRA relief.
Appellant timely filed a notice of appeal on April 28, 2022. The PCRA court
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subsequently ordered Appellant to file a concise statement of errors
complained of on appeal, and Appellant complied on May 12, 2022.
Appellant raises the following nine issues on appeal:
1. Whether the PCRA court erred by denying Appellant a
new trial based on ineffective assistance of counsel because
trial counsel unreasonably failed to call character witnesses
on Appellant’s behalf at trial?
2. Whether the PCRA court erred by denying Appellant a
new trial on the basis of ineffective assistance of trial
counsel for failing to file a notice of alibi and pursue that
defense at trial by requesting an alibi jury instruction?
3. Whether the PCRA court erred in denying Appellant a new
trial based on ineffective assistance of trial counsel because
of trial counsel’s concessions (twice) during closing
argument establishing the window of time when death
occurred when the Commonwealth could not establish a
time of death and said concessions contradicted the defense
that Appellant was not the last person to see the decedent
alive?
4. Whether the PCRA court erred in denying Appellant a new
trial for trial counsel’s failure to hire a private investigator
to explore various issues crucial to preparing and presenting
a defense at trial?
5. Whether the PCRA court erred when it failed to grant
Appellant a new trial based on ineffective assistance of
counsel when trial counsel failed to file a motion in limine or
object on record at trial to prejudicial evidence introduced
by the Commonwealth?
6. Whether the PCRA court erred by denying Appellant relief
in the form of a new trial for its findings of facts are not
supported by the record and its conclusions a product of
legal error, on the issue of trial counsel’s testimony that
decedent’s killer(s) followed Appellant home and planted a
cell phone, when no such theory or evidence was ever
presented at trial?
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7. Whether PCRA counsel [was] ineffective for failing to
properly preserve issues related to DNA testing of physical
evidence in his concise statement of matters complained of
on appeal?
8. Whether the [PCRA] court erred in not appointing an
expert to conduct DNA testing on the cigarette butt found
at the crime scene?
9. Whether this Court should remand the case to the [PCRA]
court to allow DNA testing of a cigarette butt pursuant to 42
Pa.C.S.A. § 9543.1(d)(1)?
(Appellant’s Brief at 1-2).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error. Commonwealth v.
Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d
319 (2008). This Court grants great deference to the findings of the PCRA
court if the record contains any support for those findings. Commonwealth
v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932
A.2d 74 (2007). If the record supports a post-conviction court’s credibility
determination, it is binding on the appellate court. Commonwealth v.
Dennis, 609 Pa. 442, 17 A.3d 297 (2011).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Craig Cox, we
conclude Appellants first through sixth issues on appeal merit no relief. The
PCRA court opinion comprehensively discusses and properly disposes of those
claims. (See PCRA Court Opinion at 13-21, 23-24) (finding: (1) trial counsel
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had reasonable basis not to call character witness who was unwilling or
reluctant to testify, and counsel had reasonable basis not to call witness whom
he was unaware of at time of trial and who did not know Appellant well in any
event; (2) counsel was not ineffective for declining to file notice of alibi when
Appellant testified he was with Decedent on day of homicide; timeframe of
events set forth by Appellant did not render it impossible for him to have been
with Decedent at time Decedent was killed; thus, alibi instruction would not
have been appropriate; (3) counsel had reasonable basis for arguing that time
of Decedent’s death was between 3:30 p.m. and 6:30 p.m. because such
timeline aligned with defense theory of case that perpetrators followed
Appellant after murder to Ashtabula, Ohio, where they disposed of Decedent’s
cell phone; (4) counsel was not ineffective for failing to hire private
investigator to locate grow shed where Appellant was unable to provide
adequate explanation of location of grow shed, which could have called into
question Appellant’s version of events from day of murder; further, Appellant
did not establish how investigation into Ms. Magno and her associates would
be helpful to his defense; (5) counsel was not ineffective for failing to object
to or file motion in limine concerning evidence of Appellant’s lip tattoo reading
“KILL” or his Twitter post about shooting guns, where evidence was introduced
to impeach Appellant’s testimony that he was peaceful and loving “hippie”;
counsel also acted reasonably in failing to object to testimony concerning
unrelated incident of Appellant brandishing firearm because Commonwealth
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introduced that testimony to show that Appellant had possessed firearm;
moreover, court gave curative instruction concerning this testimony (6) trial
counsel testified at PCRA hearing that defense presented at trial was
predicated upon involvement of owners of grow shed, and that Decedent’s
death was act of retribution for Appellant and Decedent robbing shed;
although Appellant now claims that trial counsel provided “false narrative”
about owners of shed occupying vehicle that followed Appellant to Ohio after
murder, Appellant was well aware of defense throughout trial and he testified
consistently with defense theory of case; PCRA court found trial counsel’s
testimony credible concerning defense strategy at trial based on testimony
and evidence of record). The record supports the PCRA court’s analysis of
Appellant’s first through sixth issues, and we affirm on the basis of the PCRA
court’s opinion concerning those claims of error. See Ford, supra. See also
Dennis, supra.In his seventh issue, Appellant raises a layered claim of ineffective
assistance of counsel. He argues that PCRA counsel was ineffective for failing
to include in the concise statement of errors complained of on appeal,
Appellant’s claim that trial counsel was ineffective for failing to pursue DNA
testing of a cigarette butt found near Decedent’s body. Appellant
acknowledges that PCRA counsel raised the issue of trial counsel’s
ineffectiveness on this ground in his PCRA petition, but Appellant insists PCRA
counsel was ineffective for failing to include this issue in his Rule 1925(b)
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statement, constituting waiver of the claim on appeal.1
As to the underlying claim of trial counsel’s ineffectiveness, Appellant
argues that he smoked a different brand of cigarette than the one found near
Decedent’s body and that testing of the cigarette butt would reveal
exculpatory evidence of the identity of the true killer. Appellant contends trial
counsel had no reasonable basis for failing to seek DNA testing and counsel’s
refusal to pursue such testing prevented Appellant from establishing a third-
party culpability defense. Appellant concludes trial counsel was ineffective on
this basis, and PCRA counsel was ineffective for failing to preserve this claim
of error on appeal. We disagree.
“Counsel is presumed to have rendered effective assistance.”
Commonwealth v. Hopkins, 231 A.3d 855, 871 (Pa.Super. 2020), appeal
denied, 663 Pa. 418, 242 A.3d 908 (2020).
[T]o establish a claim of ineffective assistance of counsel, a
defendant must show, by a preponderance of the evidence,
ineffective assistance of counsel which, in the circumstances
of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence
could have taken place. The burden is on the defendant to
prove all three of the following prongs: (1) the underlying
claim is of arguable merit; (2) that counsel had no
reasonable strategic basis for his or her action or inaction;
and (3) but for the errors and omissions of counsel, there is
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1 Appellant presented his claim of PCRA counsel’s ineffectiveness at the first
opportunity to do so. We will review this claim based on our Supreme Court’s
decision in Commonwealth v. Bradley, ___ Pa. ___, ___ 261 A.3d 381, 400
(2021) (holding “that a PCRA petitioner may, after a PCRA court denies relief,
and after obtaining new counsel or acting pro se, raise claims of PCRA
counsel’s ineffectiveness at the first opportunity to do so, even if on appeal”).
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a reasonable probability that the outcome of the
proceedings would have been different.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019),
appeal denied, 654 Pa. 568, 216 A.3d 1029 (2019) (internal citations and
quotation marks omitted). The failure to satisfy any prong of the test for
ineffectiveness will cause the claim to fail. Commonwealth v. Chmiel, 612
Pa. 333, 30 A.3d 1111 (2011).
The test for deciding whether counsel had a reasonable
basis for his action or inaction is whether no competent
counsel would have chosen that action or inaction, or, the
alternative, not chosen, offered a significantly greater
potential chance of success. Counsel’s decisions will be
considered reasonable if they effectuated his client’s
interests. We do not employ a hindsight analysis in
comparing trial counsel’s actions with other efforts he may
have taken.
Commonwealth v. King, 259 A.3d 511, 520 (Pa.Super. 2021) (quoting
Sandusky, supra at 1043-44).
“[I]t is axiomatic that [trial] counsel will not be considered ineffective
for failing to pursue meritless claims.” Commonwealth v. Rivera, 816 A.2d
282, 292 (Pa.Super. 2003), appeal denied, 573 Pa. 715, 828 A.2d 350 (2003)
(quoting Commonwealth v. Pursell, 555 Pa. 233, 724 A.2d 293, 304
(1999)). Consequently, “[p]ost-trial counsel will not be deemed ineffective
for failing to raise and preserve meritless challenges to the effectiveness of
trial counsel.” Id. (quoting Commonwealth v. Thuy, 623 A.2d 327, 335
(Pa.Super. 1993)).
Instantly, the PCRA court evaluated Appellant’s claim of trial counsel’s
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ineffectiveness for not pursuing DNA testing. In its opinion denying PCRA
relief, the court explained:
[Trial counsel,] Attorney Valsamidis[,] did not believe it was
prudent to test the Camel cigarette for DNA for fear it may
contain [Appellant’s] DNA. Moreover, Attorney Valsamidis
wanted to leave the door open to attack the lack of DNA
testing of the Camel cigarette butt as part of the overarching
narrative [that] the investigation conducted in this case was
done in a “sloppy” manner. The [c]ourt recognizes the risks
and benefits of testing the DNA on the Camel cigarette butt.
Attorney Valsamidis made a reasonable decision to forego
seeking a DNA expert concerning the cigarette butt in lieu
of continuing the narrative [that] the investigators did not
conduct a thorough investigation despite this being a
homicide case. Plus, [Appellant] testified he smoked a
different brand of cigarettes which supported his rendition
of events that someone else killed Decedent and left the
cigarette butt. The [c]ourt will not second guess Attorney
Valsamidis’s trial strategy when his decisions had
reasonable grounds contained within the record.
(PCRA Court Opinion, filed 4/22/22, at 23-24).
The record supports the PCRA court’s analysis that trial counsel had a
reasonable basis not to pursue DNA testing of the cigarette butt. See Boyd,
supra. See also Dennis, supra. Trial counsel did not overlook the cigarette
butt as evidence; rather, he incorporated it into the defense strategy.
Although Appellant’s current counsel insists that the strategy employed was
wrong, we do not judge the reasonableness of trial counsel’s approach in
hindsight. See King, supra. As PCRA counsel cannot be deemed ineffective
for failing to preserve a meritless claim, we conclude that Appellant is not
entitled to relief on this layered claim of ineffectiveness. See Rivera, supra.In his final two issues, Appellant argues the PCRA court erred when it
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denied his motion for DNA testing,2 which Appellant filed during the pendency
of this appeal, on August 4, 2022. Because the order on appeal concerns the
denial of PCRA relief and not a ruling on Appellant’s August 4, 2022 motion,
any claims concerning this motion are not properly before us at this time.3
Accordingly, we affirm the order denying PCRA relief.
Order affirmed.
DATE: 10/3/2023
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2 We note that although a motion for DNA testing “falls under the aegis” of
the PCRA, this Court has long differentiated between petitions for relief under
section 9534 of the PCRA and motions for DNA testing under section 9543.1
of the PCRA. Commonwealth v. Kunco, 173 A.3d 817, 823 (Pa.Super.
2017). A motion for DNA testing under section 9543.1 is not a PCRA petition,
“[r]ather, it allows for a convicted individual to first obtain DNA testing which
could then be used within a PCRA petition.” Commonwealth v. Tyler, 234
A.3d 750, 753 (Pa.Super. 2020) (citations and internal quotation marks
omitted). “[A]lthough the legislature placed section 9543.1 within the larger
statutory framework of the PCRA, the litigation of a motion for DNA testing is,
in substance, a wholly separate proceeding from litigation of a PCRA petition.”
Id. (citations and internal quotation marks omitted).
3 We note that, according to the docket entries, the PCRA court has not ruled
on Appellant’s August 4, 2022 motion. On August 12, 2022, Appellant filed a
motion in this Court to remand for DNA testing, which this Court denied on
August 29, 2022, without prejudice to Appellant’s right to argue any properly
preserved issues in his appellate brief. As the August 4, 2022 motion for DNA
testing is not properly before us and is still pending before the PCRA court, we
decline Appellant’s request for remand.
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