Com. v. McClellan, W.

J-S37037-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIE EARL MCCLELLAN :
:
Appellant : No. 782 EDA 2022
Appeal from the Order Entered February 22, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0208241-1998
BEFORE: BOWES, J., LAZARUS, J., and OLSON, J.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 6, 2022
Appellant, Willie Earl McClellan, appeals pro se from the order entered
on February 22, 2022, dismissing his petition for DNA testing under the
Post-Conviction Relief Act (PCRA).1 We affirm.
A prior panel of this Court previously set forth the facts and procedural
history of this case as follows:
On January 7, 1998, police were called to [a residence located
along North] 16th Street in Philadelphia, [Pennsylvania] where
they found [A]ppellant's wife standing outside crying hysterically.
They entered the residence, where they found [A]ppellant's two
children who had been stabbed to death. They also found
[A]ppellant in his bed under covers. He had stab wounds, but was
not in danger of death. On the interior walls of the house were
magic marker messages directed to [A]ppellant's wife. The first
message read: "Shy Butch, you can be. (sic) Love, Earl." The
second message read: "I always gave you what you wanted, now
you are free. Love, Earl." The reference in the first message to
"Shy Butch'' was a reference to an internet screen name that
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1 42 Pa.C.S.A. § 9543.1.
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[A]ppellant's wife allegedly used when conversing in a
homosexually oriented chat room. Based on the evidence and the
information provided by [A]ppellant’s wife, [A]ppellant was
arrested, and charged with multiple homicide[s].
Following [A]ppellant‘s arrest, he provided the police with a
confession, which was ultimately reduced to writing and signed.
Subsequent attempts to have this confession suppressed were
unsuccessful, and by the time of trial the Commonwealth was
prepared to introduce this confession as part of its case[-]in[-]
chief.
The case proceeded to trial, with the Commonwealth pursuing the
death penalty. The trial began and the Commonwealth, during
the first day, produced three witnesses including the two police
officers who were first on the scene, and the paramedic who first
attended to [A]ppellant’s stab wounds.
On the second day of trial[,] the paramedic completed his
testimony before the lunch break. Following the lunch break
[A]ppellant’s counsel and the Commonwealth’s attorney advised
the trial court that a plea agreement had been reached, under the
terms of which [A]ppellant would plead guilty to two homicides
and the weapons offense in return for a sentence of two
consecutive life sentences. Thereafter, the trial court presided
over a colloquy in which [A]ppellant‘s counsel explained to
[A]ppellant the full ramifications of his decision to plead guilty.
This colloquy alone encompasse[d] eleven pages of the transcript.
The trial judge accepted the guilty plea and imposed the
consecutive life sentences that were discussed, but not without
conducting his own inquiry into the voluntariness of [A]ppellant’s
plea. The trial judge then ended the proceedings, which meant
the jury was dismissed as were the Commonwealth’s witnesses.
The following day [A]ppellant called his attorney and stated his
desire to withdraw his guilty plea and proceed to another trial. The
trial attorney complied with [A]ppellant’s wishes to file a motion
to withdraw the guilty plea, but simultaneously filed a motion to
withdraw as counsel due to the apparent conflict arising from the
complaint of [A]ppellant that trial counsel was ineffective in
advising him to plead guilty. The petition to withdraw as counsel
was granted, new counsel was appointed, and an evidentiary
hearing was held in which the circumstances surrounding
[A]ppellant’s decision to plead guilty were explored. The presiding
judge found no support for [A]ppellant’s claim of ineffective
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assistance of counsel and ultimately denied [A]ppellant’s request
to withdraw his guilty plea.
Commonwealth v. McClellan, 776 A.2d 1007 (Pa. Super. 2001)
(unpublished memorandum) at *1-3.
On direct appeal to this Court, Appellant argued the ineffective
assistance of counsel constituted manifest injustice which permitted the
withdraw of his guilty plea. More specifically, as we explained:
Appellant’s argument to this Court [was] that the circumstances
under which [A]ppellant agreed to accept his attorney’s advice
were so “volatile and emotional” that his plea could not “be viewed
as voluntarily, willingly, and intelligently made.” Our response to
this argument [was] twofold. First, in any proceeding where the
issue is whether the defendant murdered his children, we would
expect that there would be a certain amount of volatility and
emotion. Secondly, although counsel argue[d] that [A]ppellant
asserted his “innocence“ prior to agreeing to plead guilty, counsel
[made] no claim that [A]ppellant ha[d] a defense to the charges.
Moreover, appellate counsel admit[ted] that trial counsel’s legal
advice to [A]ppellant was sound. Therefore, there is nothing
contained in [A]ppellant’s arguments that persuade[d] this Court
that the trial judge was incorrect in his conclusion that [A]ppellant
failed to demonstrate “manifest injustice.” By extension, [we
determined] there [was] no basis upon which to overrule the
judge’s determination that counsel was not ineffective.
Consequently, we [] affirm[ed] the judgment of sentence.
Id. at *6-7. Appellant did not seek an allowance of appeal from our Supreme
Court.
On January 29, 2020,2 Appellant filed a petition for DNA testing under
the PCRA. “An individual convicted of a criminal offense in a court of this
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2 Appellant unsuccessfully litigated several PCRA petitions between his direct
appeal and his current claim.
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Commonwealth may apply by making a written motion to the sentencing court
at any time 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). “DNA testing may be sought at
any time if the 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.” 42 Pa.C.S.A. § 9543.1(a)(4).
“Notwithstanding any other provision of law, a plea of guilty to a crime of
violence[…] or a confession given by an applicant concerning the offense for
which the applicant was convicted, shall not prohibit the applicant from
asserting actual innocence […] or the court from making a determination and
ordering DNA testing[.]” 42 Pa.C.S.A. § 9543.1(a)(5).3 “The motion shall
explain how […] after review of the record of the applicant's guilty plea there
is a reasonable probability, that the testing would produce exculpatory
evidence that would establish: (i) the applicant's actual innocence of the
offense for which the applicant was convicted[.]” 42 Pa.C.S.A.
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3 Under the prior version of Section 9543.1 adopted in 2002, “[w]e found
that the language of § 9543.1 clearly preclude[d] that section's application to
petitioners seeking to challenge convictions resulting in guilty pleas by
reference to DNA evidence.” Williams v. Erie Cnty. Dist. Attorney's Off.,
848 A.2d 967, 972 (Pa. Super. 2004). We note that Section 9543.1 was
amended in 2018 to include, inter alia, Section (a)(5). While this case involves
a guilty plea and Section 9543.1(a)(5) permits Appellant’s request for testing,
as discussed at length below, the purported results of DNA testing on the
specific items requested simply would not exculpate Appellant. As such, we
need not examine the factual, evidentiary record supporting Appellant’s plea
to decide this case.
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§ 9543.1(a)(6)(i). The applicant must specify the evidence to be tested,
consent to provide samples of bodily fluid for use in the DNA testing,
acknowledge that any data obtained from any DNA samples or test results
may be entered into law enforcement databases for investigation of other
crimes and may be used as evidence in other cases, and specifically request
DNA testing for the purpose of demonstrating actual innocence. See 42
Pa.C.S.A. § 9543.1(c)(1)(i-iii)-(c)(2). Finally, an applicant “must 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 [] the applicant's
actual innocence of the offense for which the applicant was convicted[.]” 42
Pa.C.S.A. § 9543.1(c)(3).
On February 22, 2022, the PCRA court denied relief by order and
opinion, determining that Appellant failed to meet his initial burden under
Section 9543.1:
Specifically, [Appellant] failed to state that he consented to
provide samples of bodily fluid for use in DNA testing and to
acknowledge that he 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
him in other cases.
Furthermore, even if [Appellant] satisfied the threshold
requirements under [Section] 9543.1(a), he failed to provide any
meaningful analysis to demonstrate that DNA testing would
establish his innocence. Although [Appellant] referenced his
burden of proof, by requesting that specific articles, namely a pair
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of underwear, a T-shirt, and a knife be tested, it is unclear how
the absence of [Appellant’s] DNA or the detection of distinct DNA
on those items would establish his innocence. Accordingly,
[Appellant’s] request for DNA testing is denied.
PCRA Court Opinion, 2/22/2022, at 1.
On appeal pro se, Appellant raises the following issue for our review:
Whether the [PCRA] court judge erred in the denial of Appellant’s
motion [for DNA testing], rather than allow Appellant to correct
the deficiencies in the motion filed[?]
Appellant’s Pro Se Brief at 2 (complete capitalization omitted).
Appellant argues that he can satisfy the requirements of Section 9543.1
if given the chance to cure the deficiencies of the motion he originally filed.
Id. at 6-7. Appellant “gives consent to provide samples of bodily fluid” and
“understand[s] that, if the motion is granted, any data obtained from the DNA
samples or test results may be entered into law enforcement databases, and
may be used in the investigation of other crimes and may be used as evidence
against [Appellant.]” Id. at 7. Appellant also “asserts that he will provide the
meaningful analysis to demonstrate how the DNA testing will establish
Appellant’s innocence.” Id. Appellant argues that DNA testing of the clothes
he was wearing at the time of the crimes, white underwear briefs and a white
t-shirt, “will demonstrate Appellant’s perspiration around the neck and
Appellant’s blood” but that “there will be no blood of the victims on these
clothes[.]” Id. Appellant also contends that DNA testing of the knife found
on his nightstand will reveal “Appellant’s blood and fingerprints on it, as well
as Appellant’s ex-wife’s fingerprints.” Id. at 8. Finally, for the first time on
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appeal, Appellant “realizes that there is a fourth piece of evidence that needs
to be tested[,]” specifically his ex-wife’s t-shirt that “when tested will have
[her] perspiration on the collar and Appellant’s blood on it[.]” Id. at 7-8.
Our standard of review is as follows:
Generally, the trial 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. 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. Walsh, 125 A.3d 1248, 1252–1253 (Pa. Super. 2015)
(citation omitted).
This Court has stated that the statutory text of Section 9543.1
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. 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 1254–1255 (citation omitted; emphasis in original). “[A]ctual
innocence” is defined as making it “more likely than not that no reasonable
juror would find him guilty beyond a reasonable doubt.” Commonwealth v.
Payne, 129 A. 3d 546, 556 (Pa. Super. 2015).
“Significantly, in DNA testing cases, ‘an absence of evidence is not
evidence of absence.’” Walsh, 125 A.3d at 1255, citing Commonwealth v.
Heilman, 867 A.2d 542, 547 (Pa. Super. 2005); Commonwealth v. B.
Williams, 35 A.3d 44, 50–51 (Pa. Super. 2011) (affirming trial court's denial
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of DNA testing where appellant failed to meet threshold requirements for DNA
testing, under Section 9543.1(a)(2), and did not demonstrate prima facie case
of “actual innocence”; even if appellant's DNA were not found on hat/wig,
record contained overwhelming evidence of appellant's guilt including three
unshakable eyewitnesses, appellant's confession, and appellant's access to
weapon used in crimes); Commonwealth v. Smith, 889 A.2d 582 (Pa.
Super. 2005) (affirming denial of request for post-conviction DNA testing
where absence of appellant's DNA from victim's fingernails would not establish
appellant's innocence of victim's murder; nothing in record supported
appellant's claim that victim would have scratched her assailant leaving DNA
evidence under her fingernails).
Upon review, we agree with the PCRA court that Appellant failed to
provide any meaningful analysis to demonstrate that DNA testing would
establish his innocence. The absence of the victims’ DNA on the underwear
and t-shirt Appellant was wearing at the time of the crimes would not establish
Appellant’s absence from the scene. Walsh, supra. Moreover, the presence
of Appellant’s DNA on his own clothing and the knife found near him would
not exculpate him. Furthermore, Section 9543.1 only pertains to DNA testing
and does not provide testing for fingerprints. Therefore, the PCRA court
properly denied relief regarding Appellant’s request to test the knife found at
the scene for ex-wife’s fingerprints. See Commonwealth v. Matthews, 256
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A.3d 29 (Pa. Super. 2021) (unpublished memorandum 4 at *3)
(“[I]mportantly, a request for fingerprint testing is not the same thing as a
request for DNA testing.”). Finally, in his PCRA motion, Appellant failed to
request DNA testing of the t-shirt worn by his ex-wife and, as a result, waived
that claim for our review. See Pa.R.A.P. 302(a) (“Issues not raised in the trial
court are waived and cannot be raised for the first time on appeal.).
Regardless, Appellant has not demonstrated how the presence of his DNA if
found on his ex-wife’s t-shirt, would exonerate him. Because Appellant failed
to demonstrate that DNA testing would establish his innocence, correcting the
deficiencies in his motion regarding his consent to provide samples of bodily
fluid and to allow data obtained be entered into law enforcement databases
for other crimes would not afford Appellant relief. Accordingly, we discern no
abuse of discretion or error of law in denying Appellant’s request for DNA
testing under the PCRA.
Order affirmed.
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4 See Pa.R.A.P. 126(b) (unpublished non-precedential decisions of the
Superior Court filed after May 1, 2019, may be cited for their persuasive
value).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/6/2022
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