J-S43042-15


                                  2015 PA Super 222

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

THOMAS A. WALSH

                            Appellant                   No. 366 EDA 2015


                  Appeal from the PCRA Order January 9, 2015
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0004964-2003


BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.

OPINION BY GANTMAN, P.J.:                             FILED OCTOBER 23, 2015

        Appellant, Thomas A. Walsh, appeals pro se from the order entered in

the Chester County Court of Common Pleas, which denied his motion for

DNA testing pursuant to Section 9543.1 of the Post Conviction Relief Act

(“PCRA”).1 We affirm.

        The relevant facts of this case are as follows.    On October 9, 2003,

Appellant was released from prison on parole following his convictions for

terroristic threats and harassment against his wife, Dinah Walsh (“Victim”).

A condition of Appellant’s sentence prohibited Appellant from having contact

with Victim. Additionally, on the date of his release, Appellant signed a form

describing the rules and regulations of parole, which precluded Appellant
____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
J-S43042-15


from having contact with Victim.      Victim also had a protection from abuse

(“PFA”) order against Appellant at this time prohibiting Appellant from

having any contact with her.       On or about October 12, 2003, neighbors

informed Victim they had seen Appellant driving through her neighborhood.

Victim subsequently contacted the police and Appellant’s parole officer to

report Appellant’s actions.

      On October 15, 2003, at approximately 8:30 p.m., Appellant went to

Victim’s home and waited outside for her arrival. When Victim pulled into

her driveway, Appellant opened her car door and said: “Go to my [parole]

officer, will you, fucking bitch. You’re going to die.” (N.T. Trial, 5/6/04, at

87-88). Appellant then raised a claw hammer and began striking Victim as

she screamed for help.        In addition to striking Victim with the hammer,

Appellant broke all of the windows and the sunroof of Victim’s vehicle.

Appellant and Victim’s daughter, Amber Walsh, heard Victim’s screams and

ran outside to help her mother. Ms. Walsh saw Appellant strike her mother

with the hammer on her eyebrow bone.          Michael Carpenter, Ms. Walsh’s

boyfriend, came outside to help Victim as well and observed Appellant hitting

her with a hammer.      One of Victim’s neighbors also intervened to help

Victim. Ultimately, Victim was able to free herself from the vehicle and ran

up the porch toward her home. As Victim climbed the steps to her porch,

Appellant grabbed her shirt and struck Victim in the back of the head with

the hammer. The assault continued until Ms. Walsh’s dog came outside and


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bit Appellant’s arm.

        Appellant left Victim’s home and waited on the porch of a neighbor’s

home.     Appellant was bleeding; and he informed his neighbor, Julie Jilek,

that his daughter’s dog had bitten him. Appellant also told Ms. Jilek he had

an argument with Victim and beat her up.          Appellant said he was upset

because Victim had called his parole officer, and he “messed up big” and

smashed the windows of Victim’s car.        (Id. at 4).     Ms. Jilek informed

Appellant that he could wait on her porch until the police came, but

Appellant fled the scene before police arrived.

        Trooper Aaron Botts arrived on the scene and pursued Appellant on

foot.     A neighbor spotted Appellant and alerted the police to his

whereabouts.      When Trooper Botts apprehended Appellant, Appellant

disclosed that his injuries were the result of a dog bite. Appellant admitted

he had “roughed [Victim] up a bit.”     (Id. at 24).    Appellant also said he

smashed the windows of Victim’s vehicle with a hammer because he was

angry that she had called his parole officer.     Trooper Barry Searfoss also

responded to the scene.        Trooper Searfoss located the hammer in a

neighbor’s yard, secured it, and placed it into evidence.

        Appellant sought medical treatment for his injuries.   Trooper Joanne

Dragotta spoke with Appellant at the hospital. Appellant told her: “I just lost

it. I had enough of this shit.” (Id. at 33). Appellant also stated: “[Y]ou

know why I did this, because she called my PO and I knew that I was going


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back to prison. I just want to go to prison now. Take me now.” (Id. at 33-

34). Appellant later said: “I just went off.           You know why?    Because she

called my PO when I drove by the house. And my sister told me, she was

looking for me, so I went there and boom, just went off. … I don’t care if I

get the lethal injection for this. I just flipped when I heard that bitch called

my PO.” (Id. at 34). Appellant made similar statements to Trooper David

Kennedy the following morning at the police barracks.

      The    Commonwealth        charged    Appellant     with    attempted     murder,

aggravated assault, simple assault, possessing instruments of crime,

terroristic threats, and related offenses. Appellant proceeded to a jury trial

on May 6, 2004.        The Commonwealth presented testimony/evidence from,

inter alia, Victim, Amber Walsh, Michael Carpenter, Julie Jilek, the

responding    police     officers,   and    Victim’s    medical    providers.      The

Commonwealth also introduced the hammer as evidence. Appellant testified

in his own defense that he felt “mania” and “up rise” on the night in question

and simply lost control.      Appellant claimed his actions were the result of

withdrawal symptoms from medication he had been taking while he was in

prison.   Appellant admitted smashing all the windows and the sunroof in

Victim’s vehicle, but he denied that he ever struck Victim with the hammer.

      Procedurally:

          On May 7, 2004, a jury found [Appellant] guilty of
          aggravated assault and multiple other crimes. [Appellant]
          is currently serving a thirteen (13) to thirty-seven (37)
          year prison sentence imposed on July 14, 2004.        On

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        September 13, 2005, the Superior Court affirmed his
        judgment of sentence. On November 10, 2005, Appellant
        filed his first petition under the [PCRA]. [The PCRA court]
        dismissed this petition on August 14, 2006. The Superior
        Court affirmed on August 27, 2007. The Supreme Court
        denied Appellant’s petition for allowance of appeal on May
        27, 2008.

        On July 16, 2008, Appellant filed a second petition under
        the [PCRA]. [The PCRA court] dismissed this petition on
        September 3, 2008. The Superior Court affirmed on April
        7, 2009, and the Supreme Court denied Appellant’s
        petition for allowance of appeal on November 2, 2009.

        On September 24, 2012, Appellant filed his third PCRA
        petition. On October [4], 2012, after finding the petition
        to be untimely, [the PCRA] court issued an order informing
        Appellant of [the PCRA court’s] intent to dismiss his
        petition without a hearing. Instead of responding to this
        notice in court, Appellant filed a notice of appeal in the
        Superior Court. On July 1, 2013, the Superior Court
        quashed his appeal…. Upon remand of the record to [the
        PCRA] court, [the court] again reviewed Appellant’s PCRA
        petition. Finding his petition untimely, and no timeliness
        exception applicable, [the PCRA court] dismissed
        Appellant’s third petition on August 27, 2013.         The
        Superior Court affirmed on April 28, 2014.

        Failing to obtain relief through these petitions, Appellant
        then turned to 42 Pa.C.S.A. § 9543.1 “Postconviction DNA
        Testing,” and on November 7, 2014, filed a motion
        requesting that the hammer used in the attack on his wife
        be tested to see if [V]ictim’s blood was present. The
        Commonwealth responded to Appellant’s request on
        December 9, 2014, and Appellant filed his rebuttal to the
        Commonwealth’s answer on December 18, 2014.              On
        January 9, 2015, after finding that Appellant had failed to
        establish entitlement to DNA testing, [the court] denied his
        request.

(PCRA Court Opinion, filed on March 13, 2015, at 1-3) (internal citations

omitted). Appellant timely filed a notice of appeal on January 29, 2015. On


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J-S43042-15


February 3, 2015, the 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 on February 13, 2015.

        Appellant raises the following issues for our review:

           SHOULD TRIAL COUNSEL HAVE REQUESTED DNA RESULTS
           THAT WOULD ESTABLISH [APPELLANT’S] INNOCENCE?

           SHOULD TRIAL COUNSEL HAVE REQUESTED DNA RESULTS
           TO VERIFY AN INJURY UNKNOWN TO THE DEFENSE AND
           PRESENTED TO A JURY?

           SHOULD TRIAL COUNSEL HAVE REQUESTED [A] PRE-
           TRIAL     [CONFERENCE]/SUPPRESSION     HEARING
           CONCERNING TESTIMONY REGARDING INJURIES TO THE
           VICTIM, IN ORDER TO ESTABLISH INCONSISTENT
           STATEMENTS ON HOW THE VICTIM ACQUIRED [HER]
           INJURIES?

           SHOULD TRIAL COUNSEL HAVE REQUESTED DNA RESULTS
           THAT WOULD [HAVE] ESTABLISHED THAT THE VERDICT
           IS AGAINST THE WEIGHT OF THE EVIDENCE?

           IS THE PROSECUTION COMMITTING A                       BRADY[2]
           VIOLATION BY CONCEALING DNA RESULTS?

(Appellant’s Brief at 4).

        “[T]he PCRA’s one-year time bar does not apply to motions for the

performance       of    forensic     DNA       testing   under   Section    9543.1.”

Commonwealth v. Brooks, 875 A.2d 1141, 1146 (Pa.Super. 2005)

(emphasis in original).       Importantly, however, “Section 9543.1 cannot be

used to raise extraneous issues not related to DNA testing in an effort to
____________________________________________


2
    Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).



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J-S43042-15


avoid the one-year [PCRA] time bar.” Commonwealth v. Gandy, 38 A.3d

899, 905 (Pa.Super. 2012), appeal denied, 616 Pa. 651, 49 A.3d 442 (2012)

(internal citations omitted). See also Brooks, supra (explaining petitioner

must raise claims unrelated to motion for post-conviction DNA testing

separately in timely filed PCRA petition).

       Instantly, the order on appeal implicates only the court’s denial of

Appellant’s post-conviction request for DNA testing pursuant to Section

9543.1. Nevertheless, Appellant attempts to advance on appeal new issues

outside his request for DNA testing.             These issues, including Appellant’s

claims that trial counsel was ineffective for failing to request DNA testing

sooner, are unreviewable at this juncture.            See Gandy, supra; Brooks,

supra.     See also Commonwealth v. B. Williams, 35 A.3d 44, 50-51

(Pa.Super. 2011), appeal denied, 616 Pa. 467, 50 A.3d 121 (2012) (stating

petitioner who is unable to obtain DNA testing under Section 9543.1 can still

pursue ineffective assistance of counsel claim based on failure to request

DNA testing of evidence at trial, but only if PCRA petition is timely filed or

otherwise meets statutory exception to timeliness requirements). 3 Thus, we

will review only Appellant’s challenge to the court’s denial of his request for

DNA testing, which is the sole issue properly before us for review.
____________________________________________


3
  More than one year has elapsed since Appellant’s judgment of sentence
became final. Consequently, Appellant must satisfy one of the PCRA’s
enumerated timeliness exceptions to obtain review of a future PCRA petition.
See 42 Pa.C.S.A. § 9545(b)(1).



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       Appellant argues the jury convicted him of two counts of aggravated

assault based on the Commonwealth’s theory that Appellant struck Victim in

the head with a hammer. Appellant denies striking Victim with the hammer

and maintains that he struck only the vehicle sunroof with the hammer,

causing the glass to shatter and inflict Victim’s injuries.   Appellant claims

Victim’s testimony that Appellant struck her directly with the hammer is

inconsistent with the medical records produced at trial showing Victim

suffered only minimal wounds.4 Appellant insists Victim’s DNA is not present

on the hammer.        Appellant suggests the absence of Victim’s DNA on the

hammer would establish Appellant’s actual innocence for aggravated assault.

Appellant concludes the court erred by denying his request for post-

conviction DNA testing, and this Court must reverse. We disagree.

       Our standard of review in this case 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.

B. Williams, supra at 47 (internal citations omitted).

       Requests for post-conviction DNA testing are governed by statute at
____________________________________________


4
 Nothing in the record supports Appellant’s contention that Victim’s injuries
were “minimal.”



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42 Pa.C.S.A. § 9543.1, which provides in pertinent part:

        § 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.

                                 *    *    *

        (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

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              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; and

                                 *     *      *

          (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;

                                 *     *      *

       (d) Order.−

          (1) Except as provided in paragraph (2), the court
          shall order the testing requested in a motion under
          subsection (a) under reasonable conditions designed to
          preserve the integrity of the evidence and the testing
          process 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.


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           (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;

                                     *       *       *

        (f) Posttesting procedures.−

           (1) After the DNA testing conducted under this
           section has been completed, the applicant may,
           pursuant to section 9545(b)(2) (relating to jurisdiction
           and proceedings), during the 60-day period beginning
           on the date on which the applicant is notified of the test
           results, petition to the court for postconviction relief
           pursuant to section 9543(a)(2)(vi) (relating to eligibility
           for relief).

           (2) Upon receipt of a petition filed under paragraph
           (1), the court shall consider the petition along with any
           answer filed by the Commonwealth and shall conduct a
           hearing thereon.

           (3) In any hearing on a petition for postconviction
           relief filed under paragraph (1), the court shall
           determine whether the exculpatory evidence resulting
           from the DNA testing conducted under this section
           would have changed the outcome of the trial as
           required by section 9543(a)(2)(vi).

                                 *       *       *

42 Pa.C.S.A. § 9543.1.

     Thus, under Section 9543.1(a):

        The statute 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,

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         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; or (c) 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.

B. Williams, supra at 49 (citing 42 Pa.C.S.A. § 9543.1(a)(2)). See also

Commonwealth v. Perry, 959 A.2d 932 (Pa.Super. 2008) (holding PCRA

counsel was not ineffective for declining to pursue post-conviction DNA

testing where technology for testing existed at time of trial, verdict came

after January 1, 1995, and court had not refused request for funds for

testing; consequently, appellant could not have met his threshold burden

under Section 9543.1(a)(2)).

      Additionally:

         The text of the statute set forth in Section 9543.1(c)(3)
         and reinforced in Section 9543.1(d)(2) 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.

B. Williams, supra (emphasis added).          See also Commonwealth v. G.

Williams, 909 A.2d 383 (Pa.Super. 2006) (affirming dismissal of request for

post-conviction DNA testing where appellant’s identity as perpetrator was

not at issue in rape case; appellant’s theory of case at trial was that he had

consensual sex with victim; because appellant’s participation was confirmed,


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DNA testing would not establish his innocence).

      Significantly, in DNA testing cases, “an absence of evidence is not

evidence of absence.”    Commonwealth v. Heilman, 867 A.2d 542, 547

(Pa.Super. 2005).     See also B. Williams, supra (affirming trial court’s

denial 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), appeal denied, 588 Pa. 769, 905 A.2d 500

(2006) (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).

      Further, Section 9543.1(d) requires the petitioner to make a timely

request for DNA testing. See 42 Pa.C.S.A. § 9543.1(d)(1)(iii). In analyzing

timeliness for purposes of Section 9543.1(d)(1)(iii), the court must consider

the facts of each case to determine whether the applicant’s request for post-

conviction DNA testing is to demonstrate his actual innocence or to delay the

execution of sentence or administration of justice.       Commonwealth v.


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Edmiston, 619 Pa. 549, 578, 65 A.3d 339, 357 (2013), cert. denied, ___

U.S. ___, 134 S.Ct. 639, 187 L.Ed.2d 423 (2013). In Edmiston, the court

convicted the defendant of first-degree murder, rape, statutory rape and

involuntary    deviate    sexual    intercourse.   The   defendant’s   convictions

stemmed from events that occurred on October 5, 1988, after the defendant

kidnapped the two-year-old victim and inflicted gruesome injuries on her

before ultimately murdering her and leaving her body in a wooded area. On

October 5, 1989, a jury imposed a sentence of death for the defendant’s

crimes.    On September 30, 2009, the defendant filed a motion for post-

conviction DNA testing.        In analyzing whether the defendant’s request for

DNA testing was timely under Section 9543.1(d)(1)(iii), our Supreme Court

stated:

          Although the PCRA court did not make the requisite finding
          of timeliness, we see no need to remand for the court to
          do so because, as explained below, our own review of the
          record and circumstances surrounding [the defendant’s]
          post-conviction DNA testing request leads to the
          conclusion that this motion was untimely as a matter of
          law and was forwarded only to delay further the execution
          of the sentence.       Notably, at the time of trial, [the
          defendant] indicated that he was satisfied with the DNA
          testing that had been conducted, and declined further
          testing. Following conviction, as noted, the postconviction
          DNA testing provision was enacted on September 8, 2002.
          Thereafter, [the defendant’s] review as of right under the
          PCRA concluded in 2004 with our decision in Edmiston
          II,[5] without [his] seeking DNA testing. Moreover, he did
____________________________________________


5
  See Commonwealth v. Edmiston, 578 Pa. 284, 851 A.2d 883 (2004)
(“Edmiston II”).



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       not seek such testing as part of his second PCRA petition
       (which caused his federal habeas corpus petition to be held
       in stasis, thereby causing further delay), or as part of the
       amendment or supplement to that petition. It was not
       until after his second PCRA petition was nearing
       completion that [the defendant] finally sought DNA testing.

       [The defendant] has known of the existence of
       physical evidence he now seeks to test since his trial
       over twenty years ago.     From that time to the
       present he has been represented by counsel, who
       knew of the statute, the technology, and the
       evidence, and who were vigorously pursuing post-
       conviction relief on his behalf.        Under such
       circumstances, courts should exercise a healthy
       skepticism when faced with requests for DNA
       testing.

       This is especially true when, as here, careful
       examination of the record reveals that [the
       defendant] is not a likely candidate to be exonerated
       by DNA testing.

                                *     *      *

       Given [the vast] evidence [against the defendant], it is not
       surprising [he] declined DNA testing at the time of trial,
       following the inability of the preliminary, pre-trial DNA
       tests to identify or inculpate [the defendant]; a decision to
       seek further testing, of course, could have sealed [the
       defendant’s] fate. That fact, in turn, is probative of the
       delay and purpose of [the defendant’s] belated request for
       DNA testing, forwarded only as his serial PCRA petition
       was approaching conclusion. …

          The statute limits post-trial testing for very salient
          reasons: If post-trial testing were routinely available,
          few would seek pre-trial testing; it would behoove
          counsel to go to trial without testing, then seek DNA
          testing if convicted, there being nothing but an up-
          side to a convicted client.      DNA testing that is
          available cannot become after-discovered evidence,
          and cannot be treated as a second chance lottery
          ticket.

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                                       *       *    *

           The PCRA court also spoke of “advances in technology,”
           but as the Commonwealth notes, the statute does not
           make advances in technology an excuse for failing timely
           to request DNA testing. The statute recognized that the
           testing available at the time of its enactment was of
           sufficient reliability that defendants could seek DNA
           testing, in cases where good faith claims of innocence were
           timely raised. [The defendant’s] guilty status has not
           changed since his 1989 conviction; advances in technology
           allegedly occurring after that date do not explain why he, if
           truly innocent, did not seek immediate testing, or, at the
           very least, testing available as technology improved during
           the intervening years, rather than languishing on death
           row, all the while being supposedly innocent.

                                       *       *    *

           Taking into consideration the strength of the
           evidence proffered against [the defendant] at trial,
           as the DNA testing provision explicitly requires, [the
           defendant’s] deliberate decision at the time of trial
           not to seek further scientific testing, his counsel’s
           apparent decision not to seek DNA testing
           throughout     these     lengthy      post-conviction
           proceedings, and the belated timing of the current
           claim, it cannot reasonably be concluded that his
           DNA testing motion was 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.”

Id. at 579-81, 65 A.3d at 357-59 (internal citations omitted) (emphasis

added).      Thus, our Supreme Court affirmed the order denying post-

conviction DNA testing.6 Id. at 581-82, 65 A.3d at 359.

____________________________________________


6
    The PCRA court denied the DNA testing request on different grounds.



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      Instantly, Appellant’s trial took place on May 6-7, 2004. At trial, the

Commonwealth introduced testimony concerning Appellant’s assault on

Victim using a claw hammer and admitted into evidence the hammer used in

the attack.    Thus, the evidence Appellant seeks to have DNA tested was

discovered and available before Appellant’s trial. Additionally, DNA testing

technology was available at the time of Appellant’s trial in 2004, the jury

reached its verdict after January 1, 1995, and the court did not refuse a

request for funds for DNA testing.      Consequently, Appellant is unable to

satisfy the threshold requirements necessary to obtain post-conviction DNA

testing.    See 42 Pa.C.S.A. § 9543.1(a)(2); B. Williams, supra; Perry,

supra.

      Appellant has also failed to present a prima facie case demonstrating

his actual innocence. Appellant does not contest on appeal that he swung

the hammer at issue. Instead, Appellant claims he hit only the windows and

sunroof of Victim’s car with the hammer, but he did not strike Victim. The

trial court addressed Appellant’s claim of actual innocence as follows:

           Appellant was found guilty of aggravated assault under
           two subsections of 18 Pa.C.S.A. § 2702, (a)(1) and (a)(4).
           A person is guilty of aggravated assault under 18 Pa.C.S.A.
           § 2702(a)(1) if he “attempts to cause serious bodily injury
           to another, or causes such injury intentionally, knowingly
           or recklessly….” Thus, a person can be found guilty of
           aggravated assault if the Commonwealth proves, beyond a
           reasonable doubt, that the defendant attempted to cause
           the victim serious bodily injury. Aggravated assault does
           not require proof that serious bodily injury was inflicted
           but only that an attempt was made to cause such injury.


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        A person is guilty of aggravated assault under 18 Pa.C.S.A.
        § 2702(a)(4) if he “attempts to cause or intentionally or
        knowingly causes bodily injury to another with a deadly
        weapon.” Thus, one can be guilty under this statute if one
        attempts to cause bodily injury with a deadly weapon.

        At trial, [V]ictim testified that on the evening of October
        15, 2003, she pulled into her driveway and turned off her
        car. She felt someone grab the car door and rip it open.
        She then heard Appellant say: “Go to my probation officer,
        will you, fucking bitch. You’re going to die.” Appellant
        raised the claw hammer and [struck V]ictim in the area of
        her left brow bone. Appellant then continued with his
        attack on [V]ictim and on her car.

        [V]ictim (and Appellant’s) daughter testified that on the
        day of the incident she saw her father swing a hammer at
        her mother and hit her mother on the eyebrow bone. She
        also saw her father hitting her mother’s car with the
        hammer and breaking the car’s windows while her mother
        was still in the car.

        Appellant himself testified that on the night of the incident
        he felt a “mania…up rise,” and that he took the hammer
        and smashed every window of [V]ictim’s car while [V]ictim
        remained in the automobile. The last thing he struck was
        the car’s sunroof, and then “all the glass fell on top of her.
        It was like big chunks of it just busted right down in the
        head.”

        Appellant claims that DNA testing would reveal that the
        blood on the hammer was his own, caused by a dog bite,
        and thus he could be not guilty of the crime of aggravated
        assault. Appellant is incorrect. The presence or absence
        of [V]ictim’s blood on the hammer is immaterial to the
        issue of whether Appellant attempted to cause serious
        bodily injury, or attempted to cause bodily injury with a
        deadly weapon. Accordingly, in the unlikely event that
        DNA testing actually revealed the absence of [V]ictim’s
        blood on the hammer, such evidence could not establish
        Appellant’s actual innocence of the crime of aggravated
        assault.

(PCRA Court Opinion at 3-5) (internal citations and some quotation marks

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omitted). We accept the court’s reasoning and conclusion that the absence

of Victim’s DNA on the hammer would not establish Appellant’s actual

innocence for aggravated assault.     See 42 Pa.C.S.A. § 9543.1(c)(3); B.

Williams, supra; G. Williams, supra; Smith, supra; Heilman, supra.

     Further, Appellant did not seek DNA testing of the hammer at the time

of his trial in 2004.   Between 2005 and 2014, Appellant unsuccessfully

litigated three PCRA petitions, none of which requested DNA testing of the

hammer used in the attack.    Appellant did not file the current request for

DNA testing of the hammer until November 7, 2014.           In light of the

overwhelming evidence of Appellant’s guilt at trial (including Victim’s

testimony and testimony from several eyewitnesses who saw Appellant

strike Victim with the hammer), Appellant’s decision not to seek DNA testing

at the time of trial, Appellant’s failure to seek DNA testing throughout the

post-conviction proceedings in this case, and the belated timing of

Appellant’s current request for DNA testing, the record demonstrates that

Appellant’s motion for DNA testing is untimely for purposes of Section

9543.1(d). See 42 Pa.C.S.A. § 9543.1(d)(1)(iii); Edmiston, supra.

     Based upon the foregoing, Appellant failed to satisfy the threshold

requirements to obtain DNA testing pursuant to Section 9543.1(a)(2); he did

not present a prima facie case of actual innocence pursuant to Section

9543.1(c)(3); and he failed to make his request for DNA testing in a timely

manner pursuant to Section 9543.1(d)(1)(iii).    Therefore, the PCRA court


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properly    denied    Appellant’s    motion    for   post-conviction   DNA   testing.7

Accordingly, we affirm.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/23/2015

____________________________________________


7
   On April 22, 2015, Appellant filed a pro se motion in this Court for
transmission of the record pursuant to Pa.R.A.P. 1931, seeking a pre-trial
transcript dated May 5, 2004, trial transcripts dated May 6, 2004 and May 7,
2004, the sentencing transcript dated July 14, 2004, and all exhibits,
including photographs presented at trial.        We have obtained the trial
transcripts necessary to dispose of Appellant’s claim on appeal. Regarding
the other transcripts/exhibits Appellant wants, Appellant fails to explain how
these documents are relevant to disposition of his appeal and their exclusion
from the certified record has not hampered our review. Thus, we deny
Appellant’s motion for transmission of the record.

Appellant filed another pro se motion with this Court on May 7, 2015, to
supplement an exhibit, in rebuttal to the Commonwealth’s brief. Appellant
contends the Commonwealth’s statement on appeal that Appellant
previously litigated his request for DNA testing is belied by the record. In
support of his position, Appellant seeks to supplement the record with the
PCRA court’s March 7, 2013 order dismissing an earlier request for DNA
testing (filed August 28, 2012) based on the pendency of Appellant’s appeal
from the order denying his third PCRA petition. The court’s March 7, 2013
order is absent from the certified record. Nevertheless, nothing in the
record supports the Commonwealth’s assertion that Appellant previously
litigated his request for DNA testing on the merits; and we do not deny
Appellant relief on this basis.      Thus, we deny Appellant’s motion to
supplement the record.



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