Com. v. Walker, M.

J. S37033/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MICHAEL WALKER, : No. 2866 EDA 2018
:
Appellant :
Appeal from the PCRA Order Entered August 24, 2018,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0004505-2012
BEFORE: BOWES, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 16, 2019
Michael Walker appeals pro se from the August 24, 2018 order entered
in the Court of Common Pleas of Philadelphia County dismissing his second
PCRA petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court set forth the procedural history as follows:
On March 22, 2012, [appellant] was arrested and
charged with Aggravated Assault, Robbery, Indecent
Assault and related charges. On July 17, 2013,
testimony began in [appellant’s] jury trial. On
July 18, 2013, [appellant] pled guilty to Robbery
(18 Pa.C.S.[A.] § 3701(a)(1)(i)), a felony of the first
degree, and Aggravated Assault (18 Pa.C.S.[A.]
§ 2702(a)(1)), a felony of the first degree, under the
terms of a negotiated plea. [Appellant] also pled
nolo contendere to Indecent Assault (18 Pa.C.S.[A.]
§ 3126(a)(1)), a misdemeanor of the second degree.
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On July 18, 2013, [appellant] was sentenced to two
terms of 8-16 years[’ incarceration] each on the
Robbery and Aggravated Assault charges, sentences
to run concurrently. Sentencing was deferred on the
Indecent Assault; a Pre-Sentence Investigation
Report, Me[n]tal Health Evaluation and Psychiatric
Evaluation were ordered. On September 12, 2013,
[appellant] was sentenced to two years of probation
for Indecent Assault to run consecutive to the Robbery
and Aggravated Assault sentences. [Appellant] did
not file a direct appeal.
On April 9, 2014, [appellant] filed a PCRA Petition. On
March 11, 2015, Attorney Henry McGregor Sias
(“Attorney Sias”) entered his appearance on behalf of
[appellant]. On June 30, 2015, Attorney Sias filed a
Finley Letter pursuant to Finley v. Pennsylvania,
481 U.S. 551, 107 S. Ct. 1990, 95 L. Ed. 2d 539
(1987), Commonwealth v. Turner, 544 A.2d 927
(Pa. 1988), and Commonwealth v. Friend, 896 A.2d
607 (Pa.Super. 2006). The Finley letter concluded
that (1) [appellant’s] claims were waived, and
(2) [appellant’s] claims were meritless. On the same
date Attorney Sias also filed a Motion to Withdraw as
Counsel. On August 12, 2015, the [PCRA c]ourt filed
a Notice of Intent to Dismiss pursuant to Rule 907.
On October 26, 2015, the [PCRA c]ourt formally
dismissed [appellant’s] PCRA Petition.
On November 23, 2015, [appellant] file[d] a Notice of
Appeal. On December 2, 2015, the [PCRA c]ourt
ordered [appellant] to provide a Concise Statement of
Errors Complained of on Appeal pursuant to
Pa.R.A.P. 1925(b). On December 7, 2015, [appellant]
filed a Statement of Errors Complained of on Appeal
(“Statement I”) . . . .
....
. . . . On April 25, 2016 the PCRA [c]ourt issued an
opinion. On January 24, 2017[,] the Superior Court
affirmed, holding that [appellant] had waived the
issue presented in his appellate brief.
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PCRA court opinion, 11/15/18 at 1-3.
On February 20, 2018, appellant filed pro se a PCRA petition, his
second, seeking relief on the grounds that his plea was allegedly unlawfully
induced. The PCRA petition also included a request for “new DNA testing to
prove my innocen[ce.]” (Appellant’s motion for PCRA relief, 2/20/18 at 4.)
On June 8, 2018, the PCRA court notified appellant, pursuant to
Pa.R.Crim.P. 907, of its intent to dismiss the PCRA petition as untimely filed
and failing to invoke an exception to the PCRA jurisdictional time-bar.
Appellant did not file a response. The PCRA court subsequently dismissed
appellant’s PCRA petition.
Appellant filed pro se a timely notice of appeal. The PCRA court ordered
appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. The PCRA court
subsequently issued its Rule 1925(a) opinion.
Appellant raises the following issue for our review:
Did the [PCRA] court err by treating the pro se
appellant’s inartful but fairly obvious attempt to seek
post-conviction DNA testing using a standard,
preprinted Department of Corrections form as a
time-barred, serial “PCRA Petition” which it promptly
dismissed without providing appellant with notice or
the opportunity to respond and address the
deficiencies in his pleading as contemplated by
Pa.R.Crim.P. 905?
Appellant’s brief at 4 (emphasis added, full capitalization omitted).
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Appellant claims the PCRA court erred in dismissing his request for DNA
testing which was made using a standard, pre-printed PCRA petition form and
argues he should have been permitted to amend his request for any
deficiencies. (Id. at 13-15.)
When examining the propriety of an order resolving a request for
DNA testing, this court must apply the PCRA standard of review. See
Commonwealth v. Gacobano, 65 A.3d 416, 419 (Pa.Super. 2013) (citation
omitted). “On appeal from the denial of PCRA relief, our standard of review
calls for us to determine whether the ruling of the PCRA court is supported by
the record and free of legal error.” Id. (citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)
(citations 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).
This court has previously held that:
the one-year jurisdictional time bar of the PCRA does
not apply to motions for DNA testing under Section
9543.1. . . .
[A] motion for post-conviction DNA testing does not
constitute a direct exception to the one year time limit
for filing a PCRA petition. Instead, it gives a convicted
person a vehicle to first obtain DNA testing which
could then be used within a PCRA petition to establish
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new facts in order to satisfy the requirements of an
exception under 42 Pa.C.S.A. § 9545(b)(2).
. . . . When presented with a hybrid filing that
comingles PCRA claims and a request for DNA testing,
the standard set forth in Section 9543.1 requires the
court to address the DNA request first and foremost.
A petitioner who is unable to obtain DNA testing under
Section 9543.1 can still pursue [a] claim under the
PCRA . . . but only if the PCRA petition is timely filed
or otherwise meets one of the statutory exceptions to
the timeliness requirements.
Commonwealth v. Williams, 35 A.3d 44, 50-51 (Pa.Super. 2011) (citations
and quotation marks omitted), appeal denied, 50 A.3d 121 (Pa. 2012). This
court has observed, “[t]o consider a request for DNA testing as untimely based
solely on the nomenclature used would merely elevate form over substance.”
Commonwealth v. Young, 873 A.2d 720, 724 n.2 (Pa.Super. 2005), appeal
denied, 891 A.2d 733 (Pa. 2005), overruled on other grounds by
Commonwealth v. Wright, 14 A.3d 798 (Pa. 2011). In reviewing a denial
of a request for post-conviction DNA testing, this court must determine if the
requirements of Section 9543.1 are satisfied and may affirm the PCRA court’s
decision on any grounds provided there is a basis of support.
Commonwealth v. Walsh, 125 A.3d 1248, 1253 (Pa.Super. 2015). In
contrast, we review the PCRA court’s legal conclusions de novo.
Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).
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Section 9543.1, as enacted at the time appellant filed his instant PCRA
petition, stated, in pertinent part, as follows:1
§ 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
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.
1 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 petition on February 20, 2018, this amended
language does not apply.
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....
(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 . . . .
(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:
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(A) the applicant’s actual
innocence of the
offense for which the
applicant was
convicted; . . .
Former 42 Pa.C.S.A. § 9543.1
Here, a review of appellant’s PCRA petition demonstrates that appellant
made a request for DNA testing; a request that must be bifurcated from
appellant’s PCRA petition.2 Therefore, we shall address appellant’s claim for
post-conviction DNA testing pursuant to Section 9543.1 and need not apply
the provisions of Section 9545 herein.
The record demonstrates that in his request for DNA testing, appellant
failed to identify the specific evidence for which he seeks DNA testing as
required by Section 9543.1(a)(1) and (c)(1)(i). In addition, appellant failed
to state that he consented to provide samples of bodily fluid for use in the
DNA testing and acknowledge that 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. See 42 Pa.C.S.A. § 9543.1(c)(1)(ii) and (iii). While
he asserted his actual innocence in his PCRA petition, appellant failed to
2 We note that appellant does not challenge the PCRA court’s dismissal of his
PCRA petition, requesting relief for an unlawfully induced sentence, as
untimely and failing to invoke one of the three statutory exceptions to the
jurisdictional time-bar. Therefore, appellant has waived this claim. See
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (reiterating that any
issues not raised in a Rule 1925(b) statement are waived).
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present a prima facie case demonstrating that his identity or the participation
in the crime as the perpetrator was at issue or that DNA testing of specific
evidence, assuming exculpatory results, would establish actual innocence. Id.
at § 9543.1(c)(2) and (3)(i) and (ii)(A). Therefore, appellant’s request for
DNA testing failed to satisfy the requirements for such a request pursuant to
Section 9543.1.
Appellant argues the PCRA court should have permitted appellant to file
an amended pleading to address the deficiencies in his request for DNA testing
pursuant to Pennsylvania Rule of Criminal Procedure 905(B). (Appellant’s
brief at 14-15.) Rule 905(B) states, “[w]hen a petition for post-conviction
collateral relief is defective as originally filed, the [PCRA court] shall order
amendment of the petition.” Pa.R.Crim.P. 905(B) (emphasis added).
Here, appellant co-mingled his request for DNA testing with his petition
for PCRA relief. The request for DNA testing is a motion made pursuant to
Section 9543.1 and is not a PCRA petition. Rule 905 deals specifically with
PCRA petitions and is not intended to include motions for DNA testing filed
pursuant to Section 9543.1. Consequently, appellant’s argument is without
merit.
Moreover, to the extent appellant seeks to have a second DNA test
performed on the same evidence that was previously tested, Section 9543.1
was not intended to permit such a request. The language of Section 9543.1,
providing petitioners an opportunity for DNA testing of evidence discovered
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prior to conviction if “the technology for testing was not in existence at the
time of the trial” indicates that the purpose of Section 9543.1 was to provide
the first-time DNA testing of such evidence once testing was available. See
former 42 Pa.C.S.A. § 9543.1(a)(2). In the instant case, appellant had DNA
testing performed; and the PCRA court explained, “the DNA results in question
establish conclusively that [appellant’s] DNA was found in a sperm fraction
from a vaginal swab collected from the complainant.” (PCRA court opinion,
11/15/18 at 10-11.)
For all of these reasons, we find that the trial court’s denial of appellant’s
request for DNA testing pursuant to Section 9543.1 is supported by the record
and is free of legal error. Therefore, appellant’s claim fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/19
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