J-S53005-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,  :           IN THE SUPERIOR COURT OF
                               :                PENNSYLVANIA
             Appellee          :
                               :
         v.                    :
                               :
AVON CONSTANT QUIERO, JR., AKA :
AVON CONSTANTIN QUIERO, JR.,   :
                               :
             Appellant         :           No. 352 MDA 2015

              Appeal from the Order entered January 13, 2015,
                  Court of Common Pleas, Lebanon County,
              Criminal Division at No. CP-38-CR-0001570-2012

BEFORE: DONOHUE, OTT and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED OCTOBER 06, 2015

      Avon Constant Quiero, Jr. (“Quiero”) appeals from the order of court

denying his petition seeking post-conviction DNA testing. We affirm.

      The PCRA court summarized the facts underlying this appeal as

follows:

                 On October 2, 2012, the Wachovia Bank at 801
           Cumberland Street, Lebanon City, Lebanon County,
           Pennsylvania was robbed. The Robber handed a note
           written on a [S]ocial [S]ecurity card to Irma Calero-
           Haser (herein “Haser”), a teller. The note said that
           he had a gun and demanded that she empty her
           drawer. Haser followed the instructions and gave
           the robber the money. Haser testified that she saw
           metal on him and that she believed that he did have
           a gun. The robber put the money in his pocket and
           exited the Bank through the front, side door.

                 Haser told her co- worker, Danielle Peachy
           (herein “Peachy”), what had happened. Peachy was
           working the drive through window and saw the
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             robber through the drive through window. He was
             about four feet away from the window. As the
             supervisor on duty, Peachy shut down the bank and
             notified police. When the police arrived, both women
             gave a description of the robber. Haser described the
             robber as male, tall, Hispanic, wore a hat, and husky
             /chubby. At trial Haser testified that she is five foot,
             two inches tall, so any one taller than her is “tall.”
             Peachy described the robber as a husky Hispanic
             male wearing a hat.

                   Later that day, Peachy was shown a photo
             array by Sargent [sic] Jon Hess (herein “Sgt. Hess”)
             of the Lebanon City Police. Peachy identified [Quiero]
             as the man who had committed the robbery. Haser
             was not able to identify anyone from the photo array
             on that day. Peachy gave police access to the
             surveillance video.

Trial Court Opinion, 3/25/15, at 2-3.

      Quiero was subsequently arrested in connection with this robbery.

After numerous continuances, Quiero’s jury trial occurred on May 8, 2014.

Quiero represented himself at trial and a court-appointed attorney,

Elizabeth Judd, Esquire, acted as stand-by counsel.       He was convicted of

two counts of robbery and sentenced to six to twenty years of incarceration.

Quiero filed a post-sentence motion, which the trial court denied after a

hearing. On November 17, 2014, Quiero filed a direct appeal to this Court.

On January 12, 2015, Quiero filed a petition for post-conviction DNA

testing.   The PCRA court denied this petition the following day, and this

appeal followed.




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     Quiero asks, “[d]id the [trial] court’s refusal to grant [his] request for

[p]ost-[c]onviction DNA testing violate [his] rights to due process?”

Quiero’s Brief at 1. Requests for post-conviction DNA testing are governed

by 42 Pa.C.S.A. § 9543.1.

           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.” Commonwealth v. Lewis, 885 A.2d 51, 55
           (Pa. Super. 2005), appeal denied, [] 906 A.2d 540
           ([Pa.] 2006). 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.
           Commonwealth v. Brooks, 875 A.2d 1141, 1147–
           48 (Pa. Super. 2005). We can affirm the court’s
           decision if there is any basis to support it, even if we
           rely   on     different  grounds     to   affirm.   See
           Commonwealth v. Heilman, 867 A.2d 542 (Pa.
           Super. 2005), appeal denied, [] 876 A.2d 393 ([Pa.]
           2005).

Commonwealth v. Williams, 35 A.3d 44, 47 (Pa. Super. 2011).

     Section 9543.1 provides, in relevant part, as follows:

           (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



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          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

          (ii) in a capital case:

                 (A) assert the applicant's actual innocence of
          the charged or uncharged conduct constituting an
          aggravating circumstance under section 9711(d)
          (relating to sentencing procedure for murder of the
          first degree) if the applicant's exoneration of the




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          conduct would result in vacating a sentence of
          death; or

                (B) assert that the outcome of the DNA testing
          would establish a mitigating circumstance under
          section 9711(e)(7) if that mitigating circumstance
          was presented to the sentencing judge or jury and
          facts as to that issue were in dispute at the
          sentencing hearing.

          (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;

                (B) in a capital case, the applicant's actual
          innocence of the charged or uncharged conduct
          constituting an aggravating circumstance under
          section 9711(d) if the applicant's exoneration of the
          conduct would result in vacating a sentence of
          death; or

                (C) in a capital case, a mitigating circumstance
          under section 9711(e)(7) under the circumstances
          set forth in subsection (c)(1)(iv).

          (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:



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                    (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;

                   (ii) in a capital case, would establish the
             applicant's actual innocence of the charged or
             uncharged conduct constituting an aggravating
             circumstance under section 9711(d) if the applicant's
             exoneration of the conduct would result in vacating a
             sentence of death; or

                   (iii) in a capital case, would establish a
             mitigating circumstance under section 9711(e)(7)
             under the circumstances set forth in subsection
             (c)(1)(iv).


42 Pa.C.S.A. § 9543.1(a),(c),(d).          Section 9543.1 contains “several

threshold requirements to obtain DNA testing[.]” Williams, 35 A.3d at 49.

These are:

             (1) the evidence specified must be available for
             testing on the date of the motion; (2) if the evidence



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             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 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.

Id.   This    Court   has   further   explained   that   when   enacting   these

requirements,

                the 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




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                standard established by the legislature with the
                words of this statute.

            Commonwealth v. Smith, 889 A.2d 582, 584 (Pa.
            Super. 2005), appeal denied, 588 Pa. 769, 905 A.2d
            500 (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.

Id. at 49-50.

      Returning to the present appeal, the PCRA court denied Quiero’s

request because he did not meet the requirements of § 9543.1(a) or (c).

PCRA Court Opinion, 3/25/15, at 9-10. We agree. The DNA evidence Quiero

seeks to have tested is on the social security card handed to Haser during

the robbery, and he acknowledges that the trial court provided funds for

DNA testing of this item, due to his indigent status, during trial. Quiero’s

Petition for Post-Conviction DNA Testing, 2/17/15, at 1.           He cannot,

therefore, establish that he was denied funds for this testing, as is required

by § 9543.1(a).1




1
   As noted by the PCRA court, the Social Security card was, in fact, tested
for DNA by the Commonwealth, and it revealed DNA consistent with Quiero’s
DNA. After much searching, Quiero’s counsel found an expert to review the
DNA results, and that expert also concluded that the DNA matched Quiero.


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      The PCRA court also found that Quiero failed to establish a prima facie

case that that the requested DNA testing would establish his actual

innocence of the crime.     We agree.     In his petition, Quiero proclaims his

innocence, but does not explain how further DNA testing would establish

that his is actually innocent of the crimes of which he was convicted. See

id. at 2.2

      Having found that the PCRA court did not err in its conclusion that

Quiero failed to meet the requirements of § 9543.1(a) and (c), we find no

error in its denial of his petition for post-conviction DNA testing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/6/2015




2
  Although not germane to our decision, we note that the PCRA court
conducted the review of the record of Quiero’s trial, as it was required to
pursuant to § 9543.1(d)(2), and determined that there is no reasonable
probability that the requested DNA testing would produce exculpatory
evidence. PCRA Court Opinion, 3/15/15, at 10.


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