J-S32037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

WILLIAM RINICK

                           Appellant                   No. 900 EDA 2016


                   Appeal from the PCRA Order March 8, 2016
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0606601-2002

BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JUNE 26, 2017

        Appellant, William Rinick, appeals pro se from the order entered in the

Philadelphia County Court of Common Pleas dismissing his second Post

Conviction Relief Act1 (“PCRA”) petition.     Appellant argues the PCRA court

erred in denying his petition for post-conviction DNA testing pursuant to 42

Pa.C.S. § 9543.1 and his “state habeas corpus petition” as untimely.         We

affirm.

        The relevant facts and procedural history of this case are as follows.2

In the early morning hours of October 31, 2001, Appellant shot and killed



*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
 For a more detailed description of the facts, please see this Court’s prior
memorandum affirming Appellant’s judgment of sentence.                  See
Commonwealth v. Rinick, 3614 EDA 2003 (unpublished memorandum)
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the decedent at close range in front of Michael Focoso.         Following the

shooting, Appellant and Michael Focoso placed their clothing and shoes in a

single brown paper bag, which they set on fire on a dirt road near the

Philadelphia Airport.    On October 31, 2003, a jury convicted Appellant of

first-degree murder3 and related charges following the shooting death of the

victim.    The trial court sentenced Appellant to an aggregate term of life

without parole. This Court affirmed Appellant’s judgment of sentence, and

our Supreme Court denied allowance of appeal.           See Rinick, 3614 EDA

2003. Thereafter, Appellant appealed to the United States Supreme Court,

which     denied   certiorari   on   November   14,   2005.   See   Rinick   v.

Pennsylvania, 546 U.S. 1021 (2005).

        Appellant timely filed his first PCRA petition pro se on June 9, 2006.

The PCRA court appointed counsel who filed several amended petitions. The

Commonwealth subsequently filed a motion to dismiss the petition, and the

PCRA court issued notice of its intent to dismiss Appellant’s petition without

a hearing pursuant to Pa.R.Crim.P. 907.           However, on April 7, 2009,

Appellant filed a pro se request for a Grazier4 hearing.      The PCRA court

conducted the hearing and permitted Appellant to proceed pro se. Appellant



(Pa. Super. filed Feb. 7, 2005), appeal denied, 100 EAL 2005 (Pa. filed July
7, 2005).
3
    18 Pa.C.S. § 2502(a).
4
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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J-S32037-17


thus filed another amended PCRA petition pro se, and the Commonwealth

again responded with a motion to dismiss.      The PCRA court subsequently

issued Rule 907 notice and dismissed Appellant’s petition on March 8, 2010.

This Court affirmed, and our Supreme Court denied allowance of appeal.

See Commonwealth v. Rinick, 774 EDA 2010 (unpublished memorandum)

(Pa. Super. filed March 10, 2011), appeal denied, 252 EAL 2011 (Pa. filed

Sept. 12, 2011).

     On April 20, 2015, Appellant filed a pro se PCRA petition for “state

habeas corpus” relief, in which he alleged he was to be returned to federal

custody to begin serving his sentence on prior federal convictions, as his

state sentence was ordered to run consecutive to any other sentence.5

Thereafter, on December 31, 2015, Appellant filed a pro se PCRA petition for

Section 9543.1 post-conviction DNA testing.     The PCRA court issued Rule

907 notice, to which Appellant responded pro se.     On March 8, 2016, the

PCRA court dismissed both of Appellant’s petitions as untimely.     Appellant

filed pro se a timely notice of appeal and a voluntary concise statement of


5
  Appellant was convicted of federal charges relating to the possession and
distribution of cocaine. On May 7, 2003, the United States District Court for
the Eastern District of Pennsylvania sentenced Appellant to 360 months’
imprisonment and returned him to Pennsylvania state court for his pending
murder case. Thereafter, a detainer was lodged against Appellant on May
14, 2003, requesting that the Pennsylvania state custodian notify the U.S.
Marshals prior to Appellant’s state release, so the U.S. Department of Justice
could assume custody of Appellant for him to begin serving his federal
sentence.




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errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).6

     When reviewing a PCRA court’s order denying a petitioner’s request for

post-conviction DNA testing, we employ the same standard of review as

when reviewing the denial of PCRA relief, that is, we must determine

whether the ruling of the trial court is supported by the record and free of

legal error. Commonwealth v. Gacobano, 65 A.3d 416, 419 (Pa. Super.

2013) (citations omitted).   Moreover, this Court has held that “the 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) (citation and footnote omitted).

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

Section 9543.1, which provides in relevant 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

6
  We note that Appellant’s voluntary Rule 1925(b) statement fails to raise
any claims pertaining to his state habeas corpus petition. To preserve the
requirements and purpose of Rule 1925(b), an appellant who files a
voluntary Rule 1925(b) statement is held to the same requirements as an
appellant who files a Rule 1925(b) statement pursuant to a court order. See
Commonwealth v. Snyder, 870 A.2d 336, 341 (Pa. Super. 2005) (stating
the appellant waived the issues not raised in his voluntary Rule 1925(b)
statement). Therefore, because Appellant did not raise the claim that he
was to begin serving his federal sentence prior to his state sentence in his
voluntary Rule 1925(b) statement, this claim is waived. See id. Thus, we
shall only address Appellant’s remaining claim on appeal regarding his
petition for post-conviction DNA testing.



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          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 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



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                                 *    *    *

          (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.

          (2) The court shall not order the testing requested
          in a motion under subsection (a) if, after review of


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           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. § 9543.1 (some subsections omitted).

           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,
        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


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       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.] §
       9543.1(a)(2). Additionally,

          [T]he legislature delineated a clear standard—and in
          fact delineated certain portions of the standard
          twice. Under section 9543.1(c)(3), the petitioner is
          required to present a prima facie case that the
          requested     DNA    testing,   assuming    it  gives
          exculpatory results, would establish the petitioner’s
          actual innocence of the crime.          Under section
          9543.1(d)(2), the court is directed not to order the
          testing if it determines, after review of the trial
          record, that there is no reasonable possibility that
          the testing would produce exculpatory evidence to
          establish petitioner’s actual innocence. From the
          clear words and plain meaning of these provisions,
          there can be no mistake that the burden lies with the
          petitioner to make a prima facie case that favorable
          results from the requested DNA testing would
          establish his innocence. We note that the statute
          does not require petitioner to show that the DNA
          testing results would be favorable. However, the
          court is required to review not only the motion [for
          DNA testing], but also the trial record, and then
          make a determination as to whether there is a
          reasonable possibility that DNA testing would
          produce exculpatory evidence that would establish
          petitioner’s actual innocence.            We find no
          ambiguity in the standard established by the
          legislature with the words of this statute.

       Commonwealth v. Smith, 889 A.2d 582, 584 (Pa. Super.
       2005), appeal denied, 905 A.2d 500 (Pa. 2006) (emphasis
       added).    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. Id.
       at 585. 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 586.


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Commonwealth v. Williams, 35 A.3d 44, 49-50 (Pa. Super. 2011).

      Instantly, Appellant’s petition for post-conviction DNA testing alleges

that the charred sneaker used as physical evidence against Appellant did not

belong to him, but rather belonged to the Commonwealth’s witness, Michael

Focoso.7   Appellant claims DNA testing would prove that Appellant never

wore the sneaker and would, therefore, exculpate him.              Nevertheless,

Appellant has neither proven that he was unable to obtain DNA testing of the

sneaker at the time trial, nor has he presented a prima facie case to

demonstrate that DNA testing of the sneaker would establish his actual

innocence. See 42 Pa.C.S. § 9543.1(a)(2), (c)(3); Williams, 35 A.3d at 50.

      In his petition, Appellant baldly asserts that trial counsel refused

Appellant’s request to have the sneaker tested for DNA, and because

Appellant was indigent, he was unable to obtain private DNA testing himself.

Moreover, Appellant merely alleges that DNA testing will reveal that the

sneaker belonged to Focoso, which will automatically eliminate Appellant as

the shooter and prove his innocence.          However, Appellant’s argument

ignores the additional evidence presented against him at trial, which this

Court held was sufficient for the jury to find Appellant guilty.


7
  Appellant’s petition for DNA testing also alleges several claims regarding
the plea and sentencing agreements between the Commonwealth and
Michael Focoso in exchange for his testimony against Appellant. However,
Appellant has abandoned these claims in his pro se brief. Therefore, we
shall not address them.



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           [Focoso] clearly testified that he observed Appellant shoot
           the victim at point blank range after Appellant asked
           Focoso to drive him to the victim’s home.          Focoso’s
           testimony regarding the burned clothes was corroborated
           by the police. A witness who lived near the site of the
           murder testified that she saw Appellant and Focoso
           running down the street shortly after she heard gun shots.

               The jury was aware that Focoso was an accomplice and
           that the government offered him favorable treatment in
           return for his testimony.      The jury was entitled to
           disbelieve the evidence Appellant introduced in an attempt
           to implicate Focoso.

Rinick, 3614 EDA 2003 (unpublished memorandum at 9) (citation omitted).

Therefore, even if DNA testing proved the sneaker did not belong to

Appellant, it would not establish his actual innocence.             See 42 Pa.C.S. §

9543.1 (c)(3); Williams, 35 A.3d at 50; see also Commonwealth v.

Heilman, 867 A.2d 542, 546-47 (Pa. Super. 2005) (“On its face, the prima

facie    requirement    set   forth   in   §   9543.1(c)(3)   and    reinforced   in §

9543.1(d)(2) requires an appellant to demonstrate that favorable results of

the requested DNA testing ‘would establish’ the appellant’s actual

innocence of the crime of conviction.           Heilman has failed to make such a

demonstration, nor could he.           In DNA as in other areas, an absence of

evidence is not evidence of absence.” (citation omitted)). Accordingly, we

affirm     the   PCRA      court’s    denial   of   Appellant’s     petitions.    See

Commonwealth v. Clouser, 998 A.2d 656, 661 n.3 (Pa. Super. 2010) (“It

is well-settled that this Court may affirm on any basis.” (citation omitted)).

         Order affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/26/2017




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