Com. v. Perry, A.

J-S70027-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ADMIRAL PERRY
Appellant No. 1160 EDA 2014
Appeal from the PCRA Order March 19, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001239-2001
BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.*
MEMORANDUM BY MUNDY, J.: FILED DECEMBER 02, 2014
Appellant, Admiral Perry, appeals from the March 19, 2014 order
denying his motion for DNA testing pursuant to Section 9543.1 of the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.1 After careful
review, we affirm.
In a prior published opinion, a panel of this Court summarized the
relevant factual and procedural background of this case as follows.
On June 26, 1980, Kay Aisenstein left her home in
the city of Philadelphia and did not return. At the
time and place of Aisenstein’s disappearance, a
witness, Richard Sussman, saw a young, light-
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*
Retired Senior Judge assigned to the Superior Court.
1
Our Supreme Court has held that an order disposing of a motion for DNA
testing under the PCRA is a final order that is immediately appealable.
Commonwealth v. Scarborough, 64 A.3d 602, 609 (Pa. 2013).
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skinned, black male speeding from an alleyway in a
1975 Chevrolet Malibu with its lights off. Richard
Sussman and his father, Charles Sussman, were
interviewed by police that night and a police sketch
artist produced a composite sketch based upon a
description of the driver. Richard Sussman was
shown mug books, but was unable to make an
identification at that time. The next morning,
Aisenstein’s body was found in Delaware County,
beaten, strangled and raped. On June 28, 1980, the
Chevrolet Malibu was located in Philadelphia.
Samples of what appeared to be blood were collected
from the car. These samples were analyzed by a
crime lab in June or July of 1980, and then
repackaged for storage. No further progress was
made in the investigation until 1992.
In 1992, Richard Sussman was shown a
photographic array, and he identified Appellant as
the man he saw driving from the alleyway in June of
1980. In 1994, police obtained a search warrant to
withdraw a blood sample from Appellant. In 1995,
forensic DNA technology unavailable in 1980 enabled
police to test the preserved blood evidence taken
from the Chevrolet Malibu. The testing determined
that the blood on the items taken from the vehicle
came from two different people: the first was
identified as Aisenstein, and the second was
identified as Appellant. N.T., 9/24/2003, at 75–76.
At trial, the Commonwealth built its case
largely on the 1992 photographic identification of
Appellant by Richard Sussman, similarities between
the composite sketch prepared by the police sketch
artist and a 1980 photograph of Appellant, and the
DNA evidence. On September 25, 2003, Appellant
was convicted of first-degree murder, kidnapping,
involuntary deviate sexual intercourse, and rape in
connection with the death of Aisenstein. On
September 30, 2003, Appellant was sentenced to life
in prison without parole on the murder charge, and
an aggregate sentence of thirty to sixty years’
imprisonment on the remaining convictions, to run
consecutive to the sentence Appellant was already
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serving. Appellant filed timely post-sentence
motions, which were denied. He filed a timely
appeal, and this Court affirmed the judgment of
sentence on June 23, 2005. On December 29, 2005,
our Supreme Court denied Appellant’s petition for
allowance of appeal.
On February 1, 2006, Appellant filed a timely,
pro se, PCRA petition and was appointed counsel.
PCRA counsel filed a [no-merit] letter [pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), Commonwealth v. Finley, 550 A.2d 213(Pa. Super. 1988) (en banc), and their progeny]
seeking to withdraw his appearance. Counsel was
permitted to withdraw and on July 19, 2007, the
PCRA court denied Appellant’s petition without a
hearing.
Commonwealth v. Perry, 959 A.2d 932, 934 (Pa. Super. 2008) (footnotes
omitted). On September 15, 2008, this Court affirmed the PCRA court’s
order dismissing Appellant’s first PCRA petition. Id. at 939. Relevant to the
instant appeal, this Court concluded that under our Supreme Court’s decision
in Commonwealth v. Williams, 899 A.2d 1060 (Pa. 2006), Appellant was
not eligible for DNA testing under the PCRA because “the technology existed
at the time of his trial, the verdict was rendered after January 1, 1995, and
the court never refused funds for the testing.” Perry, supra at 938-939,
quoting Williams, supra at 1063. Appellant did not file a petition for
allowance of appeal in our Supreme Court.
On March 25, 2013, Appellant filed a ”Petition for Post Conviction DNA
Testing Pursuant to 42 Pa. C.S.A. § 9543.1.” The PCRA court appointed
counsel. The Commonwealth filed its answer on December 5, 2013. On
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February 19, 2014, the PCRA court entered an order notifying Appellant of
its intent to dismiss Appellant’s DNA motion without a hearing pursuant to
Pennsylvania Rule of Criminal Procedure 907. Appellant filed a pro se
response on March 7, 2014, although he was still represented by counsel.
On March 19, 2014, the PCRA court entered its final order dismissing
Appellant’s DNA motion. On April 16, 2014, Appellant filed a timely notice of
appeal.2
On appeal, Appellant presents one issue for our review.
I. Was the [PCRA] court in error for dismissing
[Appellant]’s amended petition for [PCRA] relief
regarding after-discovered evidence and a request
that said evidence be made available for DNA
testing?
Appellant’s Brief at 4.
“Initially, we note that, when examining the propriety of an order
resolving a request for DNA testing, we employ the PCRA standard of
review.” Commonwealth v. Gacobano, 65 A.3d 416, 419 (Pa. Super.
2013) (citations omitted). “In reviewing the denial of PCRA relief, we
examine whether the PCRA court’s determination is supported by the record
and free of legal error.” Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
2014) (internal quotation marks and citation omitted). “The scope of review
is limited to the findings of the PCRA court and the evidence of record,
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2
Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
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viewed in the light most favorable to the prevailing party at the trial level.”
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).
“It is well-settled that a PCRA court’s credibility determinations are binding
upon an appellate court so long as they are supported by the record.”
Commonwealth v. Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation
omitted). However, this Court reviews the PCRA court’s legal conclusions de
novo. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014)
(citation omitted). We further note that “[m]otions for post-conviction DNA
tests [pursuant to Section 9543.1], while considered post-conviction
petitions under the PCRA, are clearly separate and distinct from claims
pursuant to other sections of the PCRA.” Perry, supra at 938.
In the case sub judice, Appellant avers that the PCRA erred in denying
his DNA motion because Appellant reviewed a letter from Genetic Consultant
Services (GCS) dated June 1, 2002 which “suggest[ed] … that several of the
samples as to the DNA evidence were inconclusive.” Appellant’s Brief at 11.
The Commonwealth counters that Appellant’s DNA petition is barred by the
law of the case doctrine. Commonwealth’s Brief at 10.
This Court has previously described the law of the case doctrine as
follows.
The law of the case doctrine refers to a
family of rules which embody the concept that
a court involved in the later phases of a
litigated matter should not reopen questions
decided by another judge of that same court or
by a higher court in the earlier phases of the
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matter …. The various rules which make up
the law of the case doctrine serve not only to
promote the goal of judicial economy … but
also operate (1) to protect the settled
expectations of the parties; (2) to insure
uniformity of decisions; (3) to maintain
consistency during the course of a single case;
(4) to effectuate the proper and streamlined
administration of justice; and (5) to bring
litigation to an end.
Commonwealth v. McCandless, 880 A.2d 1262,
1267 (Pa. Super. 2005), appeal dismissed as
improvidently granted, 593 Pa. 657, 933 A.2d 650(2007) (quoting Commonwealth v. Starr, 541 Pa.
564, 664 A.2d 1326, 1331 (1995)). Thus, under the
doctrine of the law of the case,
when an appellate court has considered and
decided a question submitted to it upon
appeal, it will not, upon a subsequent appeal
on another phase of the case, reverse its
previous ruling even though convinced it was
erroneous. This rule has been adopted and
frequently applied in our own State. It is not,
however, inflexible. It does not have the
finality of the doctrine of res judicata. “The
prior ruling may have been followed as the law
of the case but there is a difference between
such adherence and res judicata; one directs
discretion, and the other supercedes it and
compels judgment. In other words, in one it is
a question of power, in the other of
submission.” The rule of the “law of the case”
is one largely of convenience and public policy,
both of which are served by stability in judicial
decisions, and it must be accommodated to the
needs of justice by the discriminating exercise
of judicial power.
[McCandless, supra at 1268.]
Gacobano, supra at 419-420.
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In Gacobano, the defendant filed his first DNA motion under the PCRA
in 2006, which the PCRA court denied on statutory grounds. Id. at 418. On
appeal, this Court affirmed in an unpublished memorandum, concluding that,
just as it did in our 2008 opinion in this case, that Gacobano could not meet
any of the three preliminary conditions for DNA testing. Id. Also similar to
this case, the Gacobano Court concluded that Gacobano “could not satisfy
any of those mandates in that his jury verdict was rendered after January 1,
1995, DNA testing existed when Appellant was tried, and Appellant never
was refused funding for such a test.” Id. Gacobano then filed another
petition seeking to vacate his judgment of sentence on the grounds that he
was denied DNA testing. Id. Construing this petition as a DNA motion
under Section 9543.1, this Court concluded that the law of the case doctrine
barred consideration of this new DNA motion. Specifically, this Court noted
that “[w]e ha[d] previously ruled that Appellant is not entitled to DNA
testing under the statute authorizing such analysis. That ruling applied the
pertinent statutory language and was not clearly erroneous.” Id. at 420.
Accordingly, this Court affirmed the PCRA court’s order on this basis. Id.In the case sub judice, this Court previously concluded in 2008 that
Appellant was statutorily ineligible for DNA testing under Section 9543.1 due
to his inability to show that any of the three preliminary requirements were
satisfied. See Perry, supra at 938-939. Like in Gacobano, a prior panel
of this Court applied the requirements of Section 9543.1, and Appellant has
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not shown that its previous legal conclusion was “clearly erroneous.”
Gacobano, supra. Instantly, Appellant argues that he only discovered in
2013 that GCS’s 2002 letter stated that “several of the samples as to the
DNA evidence were inconclusive … [and h]is attorney chose not to utilize this
report in [Appellant]’s defense.” Appellant’s Brief at 11. This does not alter
Appellant’s eligibility under Section 9543.1, as it does not change Appellant’s
failure to show any of the preliminary requirements under the statute. 3 As a
result, Appellant’s arguments as to his DNA motion are barred by the law of
the case doctrine. See Gacobano, supra at 419-420.
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3
Appellant does not specifically couch this line of argument in his brief as an
independent ineffective assistance of counsel claim, which would be subject
to the PCRA and its time-bar. See Appellant’s Brief at 11. Therefore, we do
not address it as such.
We also note that in his original motion, Appellant alleged an
additional claim for relief under Section 9543(a) of the PCRA alleging
ineffective assistance of counsel, independent of his request for relief under
Section 9543.1. Appellant’s Motion for DNA Testing, 3/25/13, at 2-5. Based
upon our review of the certified record, it appears that the PCRA court
addressed all of these claims under both sections of the statute in its Rule
907 notice and in its Rule 1925(a) opinion. Cf. Commonwealth v. Brooks,
875 A.2d 1141, 1148 (Pa. Super. 2005) (stating, “[w]e have held that a
PCRA petition cannot be used to make a motion for DNA analysis … and the
reverse is surely true as well[]”). However, on appeal, Appellant only
argues that the PCRA court erred when it denied his claim for DNA testing
under Section 9543.1. See Appellant’s Brief at 10-11; Appellant’s Rule
1925(b) Statement, 6/9/14, at 1 (stating the sole issue on appeal as “[w]as
the [PCRA c]ourt in error for dismissing [Appellant]’s [a]mended [p]etition
for [PCRA r]elief regarding after-discovered evidence and a request that said
evidence be made available for DNA testing[]”). Therefore, said claim is not
before us in the instant appeal.
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Based on the foregoing, we conclude the PCRA court properly denied
Appellant’s motion for DNA testing under Section 9543.1. Accordingly, the
PCRA court’s March 19, 2014 order is affirmed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/2014
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