Com. v. Rinick, W.

J-S32037-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
WILLIAM RINICK
Appellant No. 900 EDA 2016
Appeal from the PCRA Order March 8, 2016
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0606601-2002
BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JUNE 26, 2017
Appellant, William Rinick, appeals pro se from the order entered in the
Philadelphia County Court of Common Pleas dismissing his second Post
Conviction Relief Act1 (“PCRA”) petition. Appellant argues the PCRA court
erred in denying his petition for post-conviction DNA testing pursuant to 42
Pa.C.S. § 9543.1 and his “state habeas corpus petition” as untimely. We
affirm.
The relevant facts and procedural history of this case are as follows.2
In the early morning hours of October 31, 2001, Appellant shot and killed
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
2
For a more detailed description of the facts, please see this Court’s prior
memorandum affirming Appellant’s judgment of sentence. See
Commonwealth v. Rinick, 3614 EDA 2003 (unpublished memorandum)
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the decedent at close range in front of Michael Focoso. Following the
shooting, Appellant and Michael Focoso placed their clothing and shoes in a
single brown paper bag, which they set on fire on a dirt road near the
Philadelphia Airport. On October 31, 2003, a jury convicted Appellant of
first-degree murder3 and related charges following the shooting death of the
victim. The trial court sentenced Appellant to an aggregate term of life
without parole. This Court affirmed Appellant’s judgment of sentence, and
our Supreme Court denied allowance of appeal. See Rinick, 3614 EDA
2003. Thereafter, Appellant appealed to the United States Supreme Court,
which denied certiorari on November 14, 2005. See Rinick v.
Pennsylvania, 546 U.S. 1021 (2005).
Appellant timely filed his first PCRA petition pro se on June 9, 2006.
The PCRA court appointed counsel who filed several amended petitions. The
Commonwealth subsequently filed a motion to dismiss the petition, and the
PCRA court issued notice of its intent to dismiss Appellant’s petition without
a hearing pursuant to Pa.R.Crim.P. 907. However, on April 7, 2009,
Appellant filed a pro se request for a Grazier4 hearing. The PCRA court
conducted the hearing and permitted Appellant to proceed pro se. Appellant
(Pa. Super. filed Feb. 7, 2005), appeal denied, 100 EAL 2005 (Pa. filed July
7, 2005).
3
18 Pa.C.S. § 2502(a).
4
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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thus filed another amended PCRA petition pro se, and the Commonwealth
again responded with a motion to dismiss. The PCRA court subsequently
issued Rule 907 notice and dismissed Appellant’s petition on March 8, 2010.
This Court affirmed, and our Supreme Court denied allowance of appeal.
See Commonwealth v. Rinick, 774 EDA 2010 (unpublished memorandum)
(Pa. Super. filed March 10, 2011), appeal denied, 252 EAL 2011 (Pa. filed
Sept. 12, 2011).
On April 20, 2015, Appellant filed a pro se PCRA petition for “state
habeas corpus” relief, in which he alleged he was to be returned to federal
custody to begin serving his sentence on prior federal convictions, as his
state sentence was ordered to run consecutive to any other sentence.5
Thereafter, on December 31, 2015, Appellant filed a pro se PCRA petition for
Section 9543.1 post-conviction DNA testing. The PCRA court issued Rule
907 notice, to which Appellant responded pro se. On March 8, 2016, the
PCRA court dismissed both of Appellant’s petitions as untimely. Appellant
filed pro se a timely notice of appeal and a voluntary concise statement of
5
Appellant was convicted of federal charges relating to the possession and
distribution of cocaine. On May 7, 2003, the United States District Court for
the Eastern District of Pennsylvania sentenced Appellant to 360 months’
imprisonment and returned him to Pennsylvania state court for his pending
murder case. Thereafter, a detainer was lodged against Appellant on May
14, 2003, requesting that the Pennsylvania state custodian notify the U.S.
Marshals prior to Appellant’s state release, so the U.S. Department of Justice
could assume custody of Appellant for him to begin serving his federal
sentence.
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errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).6
When reviewing a PCRA court’s order denying a petitioner’s request for
post-conviction DNA testing, we employ the same standard of review as
when reviewing the denial of PCRA relief, that is, we must determine
whether the ruling of the trial court is supported by the record and free of
legal error. Commonwealth v. Gacobano, 65 A.3d 416, 419 (Pa. Super.
2013) (citations omitted). Moreover, this Court has held that “the PCRA’s
one-year time bar does not apply to motions for the performance of forensic
DNA testing under Section 9543.1.” Commonwealth v. Brooks, 875 A.2d
1141, 1146 (Pa. Super. 2005) (citation and footnote omitted).
Requests for post-conviction DNA testing are governed by statute at
Section 9543.1, which provides in relevant part:
§ 9543.1. Postconviction DNA testing
(a) Motion.―
(1) An individual convicted of a criminal offense in a
court of this Commonwealth and serving a term of
6
We note that Appellant’s voluntary Rule 1925(b) statement fails to raise
any claims pertaining to his state habeas corpus petition. To preserve the
requirements and purpose of Rule 1925(b), an appellant who files a
voluntary Rule 1925(b) statement is held to the same requirements as an
appellant who files a Rule 1925(b) statement pursuant to a court order. See
Commonwealth v. Snyder, 870 A.2d 336, 341 (Pa. Super. 2005) (stating
the appellant waived the issues not raised in his voluntary Rule 1925(b)
statement). Therefore, because Appellant did not raise the claim that he
was to begin serving his federal sentence prior to his state sentence in his
voluntary Rule 1925(b) statement, this claim is waived. See id. Thus, we
shall only address Appellant’s remaining claim on appeal regarding his
petition for post-conviction DNA testing.
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imprisonment or awaiting execution because of a
sentence of death may apply by making a written
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
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the record of the applicant’s trial, the court
determines that there is no reasonable possibility
that the testing would produce exculpatory evidence
that:
(i) would establish the applicant’s actual
innocence of the offense for which the
applicant was convicted;
* * *
(f) Posttesting procedures.—
(1) After the DNA testing conducted under this
section has been completed, the applicant may,
pursuant to section 9545(b)(2) (relating to
jurisdiction and proceedings), during the 60–day
period beginning on the date on which the applicant
is notified of the test results, petition to the court for
postconviction relief pursuant to section
9543(a)(2)(vi) (relating to eligibility for relief).
(2) Upon receipt of a petition filed under
paragraph (1), the court shall consider the petition
along with any answer filed by the Commonwealth
and shall conduct a hearing thereon.
(3) In any hearing on a petition for
postconviction relief filed under paragraph (1), the
court shall determine whether the exculpatory
evidence resulting from the DNA testing conducted
under this section would have changed the outcome
of the trial as required by section 9543(a)(2)(vi).
42 Pa.C.S. § 9543.1 (some subsections omitted).
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
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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). Additionally,
[T]he legislature delineated a clear standard—and in
fact delineated certain portions of the standard
twice. Under section 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 section
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 exculpatory evidence that would establish
petitioner’s actual innocence. We find no
ambiguity in the standard established by the
legislature with the words of this statute.
Commonwealth v. Smith, 889 A.2d 582, 584 (Pa. Super.
2005), appeal denied, 905 A.2d 500 (Pa. 2006) (emphasis
added). 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. Id.
at 585. 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. Id. at 586.
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Commonwealth v. Williams, 35 A.3d 44, 49-50 (Pa. Super. 2011).
Instantly, Appellant’s petition for post-conviction DNA testing alleges
that the charred sneaker used as physical evidence against Appellant did not
belong to him, but rather belonged to the Commonwealth’s witness, Michael
Focoso.7 Appellant claims DNA testing would prove that Appellant never
wore the sneaker and would, therefore, exculpate him. Nevertheless,
Appellant has neither proven that he was unable to obtain DNA testing of the
sneaker at the time trial, nor has he presented a prima facie case to
demonstrate that DNA testing of the sneaker would establish his actual
innocence. See 42 Pa.C.S. § 9543.1(a)(2), (c)(3); Williams, 35 A.3d at 50.
In his petition, Appellant baldly asserts that trial counsel refused
Appellant’s request to have the sneaker tested for DNA, and because
Appellant was indigent, he was unable to obtain private DNA testing himself.
Moreover, Appellant merely alleges that DNA testing will reveal that the
sneaker belonged to Focoso, which will automatically eliminate Appellant as
the shooter and prove his innocence. However, Appellant’s argument
ignores the additional evidence presented against him at trial, which this
Court held was sufficient for the jury to find Appellant guilty.
7
Appellant’s petition for DNA testing also alleges several claims regarding
the plea and sentencing agreements between the Commonwealth and
Michael Focoso in exchange for his testimony against Appellant. However,
Appellant has abandoned these claims in his pro se brief. Therefore, we
shall not address them.
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[Focoso] clearly testified that he observed Appellant shoot
the victim at point blank range after Appellant asked
Focoso to drive him to the victim’s home. Focoso’s
testimony regarding the burned clothes was corroborated
by the police. A witness who lived near the site of the
murder testified that she saw Appellant and Focoso
running down the street shortly after she heard gun shots.
The jury was aware that Focoso was an accomplice and
that the government offered him favorable treatment in
return for his testimony. The jury was entitled to
disbelieve the evidence Appellant introduced in an attempt
to implicate Focoso.
Rinick, 3614 EDA 2003 (unpublished memorandum at 9) (citation omitted).
Therefore, even if DNA testing proved the sneaker did not belong to
Appellant, it would not establish his actual innocence. See 42 Pa.C.S. §
9543.1 (c)(3); Williams, 35 A.3d at 50; see also Commonwealth v.
Heilman, 867 A.2d 542, 546-47 (Pa. Super. 2005) (“On its face, the prima
facie requirement set forth in § 9543.1(c)(3) and reinforced in §
9543.1(d)(2) requires an appellant to demonstrate that favorable results of
the requested DNA testing ‘would establish’ the appellant’s actual
innocence of the crime of conviction. Heilman has failed to make such a
demonstration, nor could he. In DNA as in other areas, an absence of
evidence is not evidence of absence.” (citation omitted)). Accordingly, we
affirm the PCRA court’s denial of Appellant’s petitions. See
Commonwealth v. Clouser, 998 A.2d 656, 661 n.3 (Pa. Super. 2010) (“It
is well-settled that this Court may affirm on any basis.” (citation omitted)).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/2017
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