Com. v. Forrest, M.

J-S25033-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL FORREST, :
:
Appellant : No. 484 MDA 2018
Appeal from the Order Entered December 29, 2017
in the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0000446-2009
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JUNE 28, 2019
Michael Forrest (“Forrest”) appeals, pro se, from the Order denying his
Motion for DNA testing filed pursuant to Section 9543.1 of the Post Conviction
Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
Following a jury trial, Forrest was convicted of aggravated harassment
by prisoner,1 related to his intentional expulsion of saliva onto the face of the
chief psychologist at SCI-Rockview, while undergoing a psychological
evaluation. The trial court sentenced Forrest to a term of three to seven years
in prison. On October 18, 2010, this Court affirmed Forrest’s judgment of
sentence. See Commonwealth v. Forrest, 15 A.3d 532 (Pa. Super. 2010)
(unpublished memorandum). Forrest did not file a petition for allowance of
appeal with the Pennsylvania Supreme Court.
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1 See 18 Pa.C.S.A. § 2703.1.
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On June 17, 2017, Forrest filed a pro se Motion for DNA testing, alleging
that if the saliva collected from the victim’s face was tested for DNA, the
results would prove his innocence. The PCRA court denied Forrest’s Motion
without a hearing. Forrest filed a timely Notice of Appeal and a court-ordered
Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
Following a procedural history not relevant to this appeal, Forrest was
appointed counsel, who filed an amended Concise Statement. In response,
Forrest filed a Motion to proceed pro se. The PCRA court held a Grazier2
hearing, and determined that Forrest’s waiver of counsel was knowing,
intelligent and voluntary. The PCRA court subsequently permitted counsel to
withdraw from representation of Forrest.
On appeal, Forrest, pro se, presents the following questions for our
review:
1. Whether the lower court abused its discretion with manifest
miscarriage of justice that prejudiced [Forrest] by collaborating
with prosecutor to refuse and deny him full access and full
disclosure of discovery in a case [where] he pleads [sic] factual
innocence and wrongful conviction?
2. Whether the lower court’s continuity [sic] of abuse of discretion
miscarriaged justice [and] prejudiced [Forrest] by the denial of
[his] [M]otion to compel former attorneys Angela D. Giampolo, D.
Scott Perrine, Greg L. Zeff, standby [public defender] Sean
McGraw[,] and prosecutor Nathan Boob to return full file and
disclose full access to discovery that would invalidate conviction?
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2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).
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Brief for Appellant at i (capitalization omitted).3
We review an order denying a motion for post-conviction DNA testing
as follows:
[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).
As we explained in Williams, supra,[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; [] (c) [the evidence was subject to the testing,
but newer technology could provide substantially more accurate
and substantially more probative results]; or [(d)] counsel sought
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3 We note that Forrest’s brief fails to provide any intelligible discussion related
to the claims raised in his Concise Statement. Accordingly, we could find his
claims regarding DNA testing waived. See Pa.R.A.P. 2119(a) (stating that the
argument section of an appellate brief shall contain “such discussion and
citation of authorities as are deemed pertinent.”); see also Commonwealth
v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (stating that “where an appellate
brief fails to provide any discussion of a claim with citation to relevant
authority or fails to develop the issue in any other meaningful fashion capable
of review, that claim is waived. It is not the obligation of [an appellate court]
… to formulate [an a]ppellant’s arguments for him.”). Nevertheless, in light
of our holding, we decline to find Forrest’s claim waived.
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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 [the] 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 [the] 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.
Id. at 49-50 (citation and emphasis omitted; emphasis added).
Here, the victim testified that he washed his face with hand sanitizer,
soap and water immediately after the incident. See N.T., 12/16/09, at 42,
45-46. The victim’s treating nurse testified that the only care he provided was
to check the victim’s vital signs and visually inspect him for injuries. Id. at
92. Thus, no saliva was collected as evidence and available for testing at the
time of Forrest’s Motion. See Williams, supra. Accordingly, we discern no
error or abuse of discretion by the PCRA court, and conclude that it properly
dismissed Forrest’s Motion.
Finally, our review of the record discloses eight pro se Motions filed by
Forrest that were deferred for disposition by this panel. After consideration,
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we find the Motions to be frivolous and lacking any merit. Accordingly, we
deny all outstanding Motions filed by Forrest.
Order affirmed. All outstanding Motions filed by Forrest denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/28/2019
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