Com. v. Walker, G.

J-S67020-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GARY WALKER, :
:
Appellant : No. 18 EDA 2017
Appeal from the PCRA Order December 6, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0401341-1996
BEFORE: GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 19, 2017
Gary Walker (“Walker”), pro se, appeals from the Order denying his
fourth Petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”).1 We affirm.
The PCRA court set forth the relevant history underlying the instant
appeal as follows:
On December 13, 1995, [] Walker … fatally shot William
Hamlin [(“Hamlin”)] outside [of] a barbershop at 7th and
Diamond Streets in Philadelphia. On July 7, 1997, following a
jury trial[,] … [Walker] was convicted of first-degree murder and
possessing an instrument of crime. The trial court immediately
sentenced [Walker] to a mandatory term of life imprisonment for
the murder conviction[,] and a lesser, concurrent term of
imprisonment for the weapons offense. On August 16, 1999,
following a direct appeal, the Superior Court affirmed the
judgment of sentence[,] and on December 28, 1999, our
[S]upreme [C]ourt denied appeal. [See Commonwealth v.
____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546.
____________________________________
* Former Justice specially assigned to the Superior Court.
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Walker, 745 A.2d 47 (Pa. Super. 1998) (unpublished
memorandum), appeal denied, 747 A.2d 900 (Pa. 1999).
PCRA Court Opinion, 2/13/17, at 1-2 (footnote omitted).
On March 14, 2016, Walker filed his fourth PCRA Petition, followed by
a Petition for habeas corpus relief. Walker also filed a Motion for post-
conviction DNA testing on August 2, 2016. Thereafter, the PCRA court
issued Notice of its intention to deny Walker’s post-conviction Petitions and
Motion, in accordance with Pa.R.Crim.P. 907. Walker submitted a pro se
response to the Notice, after which the PCRA court entered its Order denying
each request for post-conviction relief. Thereafter, Walker filed the instant
timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise
Statement of matters complained of on appeal.
Walker presents the following claims for our review:
1. Is [Walker’s] claim for DNA testing time-barred?
2. Did [Walker] provide [the] PCRA court with a prima facie case
to warrant a[] hearing?
Brief for Appellant at 4. We will address Walker’s claims together.
Walker argues that the cumulative effect of the investigation and court
proceedings demonstrates that he was the victim of a bad-faith
investigation. Id. at 11. Walker claims that that he was convicted on wholly
circumstantial evidence: an eyewitness with mental health issues who was
involved in the attack on Walker and the victim; and a former detective who
had a pattern of altering crime scenes, fabricating evidence, and fabricating
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statements. Id. at 12-13. According to Walker, he never denied his
presence at the crime scene. Id. at 13. However, he was not the person
who possessed a 9mm firearm, or left a 9mm casing where the victim’s body
was found. Id. Walker asserts that there was no evidence that the victim
was shot with a 9mm handgun, and the evidence established that the victim
was not shot at close range. Id.
Walker states that “given the facts that [his own] DNA [can’t] be found
on the victim[’s] clothing[,] or [the] victim[’s] DNA found on [Walker’s]
clothing,” his and the victim’s clothing should be tested. Id. Walker points
out that there is no scientific evidence that he shot the victim at point-blank
range, and that testing of the clothing could establish this fact. Id. at 14.
However, Walker concedes that the absence of his DNA on any of the tested
items “will not provide compelling evidence of his innocence.” Id.
Nevertheless, Walker insists that the tests might reveal the presence of a
third, unidentified perpetrator. Id.
“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. The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified record.”
Commonwealth v. Lewis, 63 A.3d 1274, 1278 (Pa. Super. 2013) (citation
omitted).
Relevant to this claim, section 9543(a)(2)(vi)
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provides for post-conviction relief where a petitioner could prove
a claim of newly discovered exculpatory evidence. In order to
succeed on such a claim, the petitioner must establish by a
preponderance of the evidence that:
(1) the evidence has been discovered after the trial and it
could not have been obtained at or prior to trial through
reasonable diligence;
(2) such evidence is not cumulative;
(3) it is not being used solely to impeach credibility; and
(4) such evidence would likely compel a different verdict.
Commonwealth v. Fiore, 780 A.2d 704, 711 (Pa. Super. 2001).
The DNA testing statute, section 9543.1(a), provides in relevant part,
as follows:
An individual convicted of a criminal offense in a court of this
Commonwealth and serving a term of imprisonment … 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.
42 Pa.C.S.A. § 9543.1(a)(1). Within this motion, the applicant must
(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 ….
42 Pa.C.S.A. § 9543.1(c)(3)(i)-(ii)(A).
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Section 9543.1(d) prescribes when the court must order DNA testing
and when it must not:
(1) Except as provided in paragraph (2), the court shall order
the testing requested in a motion under subsection (a) . . . 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 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[.]
42 Pa.C.S.A. § 9543.1(d).
[O]n its face, the prima facie requirement set forth in
§ 9543.1(c)(3) and reinforced in § 9543.1(d)(2) requires that an
appellant demonstrate that there is a “reasonable possibility”
that “favorable results of the requested DNA testing ‘would
establish’ the appellant's actual innocence of the crime of
conviction.” … [T]he definition of “actual innocence” that is to be
applied in the evaluation of the effect of new evidence is that
articulated by the United States Supreme Court in its [o]pinion in
Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct. 851, 130 L. Ed.
2d 808 [] (1995), namely, that the newly discovered evidence
must make it “more likely than not that no reasonable juror
would have found him guilty beyond a reasonable doubt.” Thus,
this standard requires a reviewing court “to make a probabilistic
determination about what reasonable, properly instructed jurors
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would do,” if presented with the new evidence. Id., 513 U.S. at
329 ….
Commonwealth v. Kunco, 2017 Pa. Super. 345, 2017 Pa. Super. LEXIS
878, at *13-*15.
In its Opinion, the PCRA court addressed this claim as follows:
At the outset, section 9543.1 does not authorize ballistics
testing or gunshot-residue testing. See 42 [Pa.C.S.A.]
§ 9543.1(a) (providing that only testing of DNA evidence can be
provided under that provision).
With respect to DNA testing, [Walker] failed to meet the
threshold requirements for post-conviction DNA testing pursuant
to 42 [Pa.C.S.A.] § 9543.1(a)(2). As is evident from the statute,
a petitioner may obtain post-conviction DNA testing of evidence
discovered prior to the petitioner’s conviction upon making a
threshold showing that:
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.
42 [Pa.C.S.A.] § 9543.1(a)(2). [Walker’s] failure to even
acknowledge his burden under subsection 9543.1(a)(2) was fatal
to his [M]otion.
Even assuming, arguendo, that [Walker] made the
threshold demonstration, he did not present a prima facie case
pursuant to subsection 9543.1(c)(3). To the extent that
[Walker] claimed that favorable results of DNA testing, by itself,
would establish his innocence, he failed to demonstrate that the
absence of the victim’s DNA on his clothing is even material to
the issue of whether the shooting was premeditated. See
Commonwealth v. Heilman, 867 A.2d 542, 547 (Pa. Super.
2005) ([stating that] “[i]n DNA[,] as in other areas, an absence
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of evidence is not evidence of absence.”). Therefore, [Walker],
who has known of the physical evidence he now seeks to test
since his trial nearly twenty years ago, is not entitled to relief
pursuant to section 9543.1.
PCRA Court Opinion, 2/13/17, at 6-7. We agree with the sound reasoning of
the PCRA court, as set forth above, and affirm on this basis as to Walker’s
claims of error. See id.; see also Commonwealth v. Baumhammers, 92
A.3d 708, 726-27 (Pa. 2014) (stating that, “if the record reflects that the
underlying issue is of no arguable merit or no prejudice resulted, no
evidentiary hearing is required.”).
Motion to Prohibit Commonwealth from Presenting Brief denied; Order
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2017
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