J-S64014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DAVID STEWARD

                            Appellant                   No. 469 EDA 2016


              Appeal from the PCRA Order entered January 19, 2016
              In the Court of Common Pleas of Montgomery County
                Criminal Division at No: CP-46-CR-0020805-1986


BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                        FILED NOVEMBER 22, 2016

         Appellant, David Steward, appeals pro se from the January 19, 2016

order entered in the Court of Common Pleas of Montgomery County,

dismissing his third petition for collateral relief filed on May 29, 2015

pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46, and

granting counsel’s petition to withdraw under Commonwealth v. Finley,

550 A.2d 213 (Pa. Super. 1988). Following review, we affirm.

         In its Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s petition

without a hearing, the PCRA court provided the following factual and

procedural background:


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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        After a nine day jury trial in June 1986, [Appellant] was found
        guilty of first degree murder, aggravated assault, robbery,
        burglary, theft by unlawful taking, possession of an instrument
        of crime, criminal conspiracy, receiving stolen property, reckless
        endangerment and carrying firearms without a license.[1] On
        May 12, 1987, he was sentenced to life imprisonment.
           [1]
              The facts surrounding this case are as follows. On New Year’s Day
           1986, two intruders broke into the home of Doctor Michael and Mary
           Groll. After one intruder shot and killed Dr. Groll, the other intruder
           took a ring and money from Mrs. Groll. Approximately two weeks
           later, [Appellant] was questioned about this matter. Although given
           his Miranda rights, [Appellant] gave an oral statement implicating
           himself in the crime. He subsequently signed a written waiver of his
           rights, a confession and made a drawing of the victims’ bedroom. Mrs.
           Groll later picked [Appellant] out of a line-up.

        [Appellant’s] first attempt at an appeal was ultimately dismissed
        by the Pennsylvania Superior Court.         After a pro se PCRA
        petition, [Appellant’s] appellate rights were ultimately reinstated
        on November 20, 1999. Counsel was appointed for this appeal
        but the appeal was denied by the Superior Court on April 25,
        2001. [Appellant] sought review by the Pennsylvania Supreme
        Court but this was also denied on December 4, 2001. A second
        PCRA petition was filed on May 14, 2002 [“raising only the issue
        of DNA testing as it related to the hair sample recovered by the
        police”1]. This petition was dismissed by the trial court on
        December 16, 2002. After an appeal, the Superior Court agreed
        with the trial court and affirmed the dismissal of [Appellant’s]
        second PCRA petition. The Pennsylvania Supreme Court declined
        to review the matter through an order dated May 11, 2004. On
        July 29, 2004, [Appellant] filed a Petition for Writ of Habeas
        Corpus with the United States District Court for the Eastern
        District of Pennsylvania. This matter was disposed of through
        opinions dated March 30, 2005 and August 30, 2007.

        On May 29, 2015, [Appellant] filed a third pro se PCRA petition
        regarding DNA testing and relied on the exception for previously
        unknown facts. On June 30, 2015, the [PCRA court] appointed
        [PCRA counsel] to represent [Appellant] in this matter. The
        [PCRA court] gave counsel ninety (90) days from the date of the
____________________________________________


1
    PCRA Court Rule 907 Notice, 12/18/15, at 3.



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       appointing order to review the matter. On September 30, 2015,
       the undersigned granted [PCRA counsel’s] request for a sixty
       (60) day continuance. On December 3, 2015, [PCRA counsel]
       filed a detailed “no merit” letter, pursuant to Commonwealth v.
       Finley, 550 A.2d 2013 (Pa. Super. 1988), as well as a request
       to withdraw as counsel, stating that in his opinion [Appellant] is
       not entitled to relief under the PCRA. Following this [c]ourt’s
       independent review of the record, we determine that [PCRA
       counsel] is correct and no grounds exist which require an
       evidentiary hearing.[3]
         [3]
           With his “no merit” letter, [PCRA counsel] also filed [Appellant’s] pro
         se Motion for Post-Conviction DNA Testing, which was essentially an
         amended pro se PCRA petition.

PCRA Court Rule 907 Notice, 12/18/15, at 1-2 (emphasis in original)

(footnote omitted).     In its Rule 907 Notice, the PCRA court explained its

conclusion that Appellant’s petition was untimely and that Appellant failed to

plead or prove that information upon which he relied—a report of DNA

analysis errors published in an April 18, 2015 Washington Post article—could

not have been obtained earlier, despite the exercise of due diligence. Id. at

3-5.   Further, Appellant did not establish that the Washington Post article,

as “newly-discovered evidence,” would likely compel a different verdict

considering that Appellant confessed, that he drew a diagram of the crime

scene, and that he was identified by Mrs. Groll. Id. at 5. Finally, the PCRA

court concluded that the issue was previously litigated when Appellant’s

2002 DNA request for testing of hair samples was denied by the PCRA court,

a decision affirmed by this Court following which our Supreme Court denied

his petition for allowance of appeal. Id.




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       Having determined that Appellant’s petition was time-barred and

lacked merit, the PCRA court announced that Appellant was not entitled to

relief. Id. The court informed Appellant of his right to respond to the Rule

907 Notice within 20 days. Id. at 5-6. Appellant did not file a response.2

The PCRA court issued its final notice of dismissal on January 19, 2016 and

granted counsel’s request to withdraw. This timely appeal followed.3

       Appellant presents four issues for our consideration:

       I.     Whether the PCRA court erred in denying Appellant’s Post
              Conviction Petition as time-barred and not therefore
              entertaining the merits therein, when Appellant invoked
              and established his after-discovered facts exception set
              forth at 42 Pa.C.S.A. § 9545(b)(1)(ii) and section
              9545(b)(2)?

       II.    Whether Appellant is entitled to a [n]ew [t]rial, or
              [r]emand for an evidentiary hearing based upon the
              newspaper article of April 18, 2015, in the Washington
              Post, where the U.S. Justice Department and the FBI
              formally acknowledged flaws in their hair analysis, and
              admitted using incomplete and misleading statistics to
              secure convictions; said tests were conducted in
              Appellant’s trial in 1986, and used as evidence against
              him?
____________________________________________


2
  Appellant contends he filed an objection to the Rule 907 Notice on January
6, 2016. Appellant’s Brief at 7. The docket does not reflect the filing of any
objection or any other document between the date the notice was given and
the date of the order dismissing Appellant’s petition.
3
  The PCRA court did not order Appellant to file a concise statement of
matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).         On
February 22, 2016, the PCRA court filed an Opinion, directing this Court’s
attention to the PCRA court’s Rule 907 Notice “as the place where the
reasons for this Opinion may be found.” PCRA Court Opinion, 2/22/16 at 1.




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       III.   Whether the PCRA [c]ourt erred as a matter of law in
              denying Appellant’s Motion for DNA testing, file[d]
              December 3, 2015, under 9543.1, where DNA testing
              would establish Appellant’s “actual innocence”?

       IV.    Whether the PCRA [c]ourt erred as a matter of law by
              denying Appellant’s second request for DNA testing when
              the first DNA motion was not fully or properly litigated, and
              where prior comparison tests are not considered
              unreliable?

Appellant’s Brief at 4.4

       We begin by setting forth our standard of review.

       Our standard of review of an order denying PCRA relief is
       whether the record supports the PCRA court’s determination and
       whether the PCRA court’s decision is free of legal error.
       Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa. Super.
       2011) (citing Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.
       Super. 2005)). The PCRA court’s findings will not be disturbed
       unless there is no support for the findings in the certified record.
       Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.
       Super. 2001)).

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014).

       In his first issue, Appellant contends the trial court erred in finding

Appellant’s petition was time-barred, asserting he invoked and established

an after-discovered facts exception under § 9545(b)(1)(ii) and within the

time constraints of § 9545(b)(2).              As this Court has reiterated, “The

timeliness of a PCRA petition is a jurisdictional threshold and may not be

____________________________________________


4
  Appellant has not challenged the adequacy of PCRA counsel’s “no-merit”
letter. Therefore, that issue is not before this Court. See Commonwealth
v. Pitts, 981 A.2d 875, 880 (Pa. 2009).



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disregarded in order to reach the merits of the claims raised in a PCRA

petition that is untimely.” Id. (citing Commonwealth v. Murray, 753 A.2d

201, 203 (Pa. 2000)).

      In Lawson, we explained:

      Effective January 16, 1996, the PCRA was amended to require a
      petitioner to file any PCRA petition within one year of the date
      the judgment of sentence becomes final.           42 Pa.C.S.A. §
      9545(b)(1). A judgment of sentence “becomes final at the
      conclusion of direct review, including discretionary review in the
      Supreme Court of the United States and the Supreme Court of
      Pennsylvania, or at the expiration of time for seeking the
      review.” 42 Pa.C.S.A. § 9545(b)(3). . . .

      However, an untimely petition may be received when the
      petition alleges, and the petitioner proves, that any of the three
      limited exceptions to the time for filing the petition, set forth at
      42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met. A petition
      invoking one of these exceptions must be filed within sixty days
      of the date the claim could first have been presented. 42
      Pa.C.S.A. § 9545(b)(2). In order to be entitled to the exceptions
      to the PCRA’s one-year filing deadline, “the petitioner must plead
      and prove specific facts that demonstrate his claim was raised
      within the sixty-day time frame” under section 9545(b)(2).
      Carr, 768 A.2d at 1167.

Id. at 4-5.

      As reflected above, this Court affirmed Appellant’s judgment of

sentence on April 25, 2001 and our Supreme Court denied Appellant’s

petition for allowance of appeal on December 4, 2001.           Therefore, his

judgment of sentence became final 90 days later, on March 3, 2002, the

deadline for filing a writ of certiorari with the United States Supreme Court.

U.S.Sup.Ct. Rule 13.     In accordance with § 9545(b)(1) and absent any

applicable exception, Appellant’s deadline for filing his PCRA petition was

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March 3, 2003.     The instant petition, filed on May 29, 2015, is patently

untimely and we may not consider its merits, if any, unless petitioner asserts

one of the timeliness exceptions and files his petition within sixty days of the

date the exception could be asserted.      42 Pa.C.S.A. § 9545(b)(2).      Here,

Appellant invoked the exception recognized in § 9545(b)(1)(ii), i.e., that

facts were unknown to him and could not have been ascertained by the

exercise of due diligence.   He contends he filed his petition in accordance

with § 9545(b)(2) by filing the petition within sixty days of publication of the

Washington Post article relating to faulty DNA hair analysis.

      Appellant’s assertion that he could not have been aware of the DNA

hair analysis issue prior to April 18, 2015 is belied by his own exhibits to his

petition that included a March 2012 article and a July 2013 article dealing

with the same issue. Further, as the PCRA court noted:

      In 2002, [Appellant] filed a PCRA petition raising only the issue
      of DNA testing as it related to the hair sample recovered by the
      police. [Appellant] was obviously on notice as to the availability
      of DNA testing at that time and therefore could have requested
      testing on all the other evidence in the case. As [Appellant] did
      not seek DNA testing for any other evidence previously, it is this
      [c]ourt’s opinion the [Appellant’s] current request to have
      additional evidence DNA tested is time-barred and the [c]ourt
      lacks the jurisdiction to address this request.

PCRA Court Rule 907 Notice, 12/18/15, at 3 (emphasis in original). We find

the record supports the PCRA court’s determination on the issue of

timeliness and that its decision is free of legal error. Finding no error in the

PCRA court’s determination, we shall not disturb it.


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      In his second issue, Appellant contends he is entitled to a new trial or

remand for evidentiary hearing based on the Washington Post article.       In

light of our conclusion that the PCRA court properly dismissed Appellant’s

PCRA petition as untimely filed, Appellant’s second issue is moot.

      Appellant next argues that the PCRA court erred by denying his Motion

for Post Conviction DNA Testing, asserting that DNA testing would establish

his actual innocence. The PCRA court, having determined the May 29, 2015

petition was untimely, did not discuss the December 3, 2015 motion

separately.   Because it was clearly a motion for DNA testing filed under

§ 9543.1 and not a PCRA petition, we shall address it.

      According to PCRA counsel:

      Based upon [Appellant’s] desire to expand the number of items
      for which he sought DNA testing, the undersigned requested,
      and was granted by Order of September 30, 2015, additional
      time within which to review the matter so as to determine
      whether [Appellant’s] requests had merit pursuant to the PCRA.
      Thereafter, on November 3, 2015, [Appellant] sent to counsel a
      comprehensive Motion for Post-Conviction DNA Testing.
      [Appellant] directed the undersigned to file the Motion with the
      Court. A copy of the Motion is attached hereto as Exhibit “A.”
      As with the original Petition[] for PCRA Relief, filed May 29,
      2015, the undersigned does not believe that the Motion for Post-
      Conviction DNA Testing has merit.

Finley No-Merit Letter, 12/3/15, at 3. Although attached as an exhibit to

counsel’s no-merit letter, the docket reflects that PCRA counsel separately

filed the motion on December 14, 2015. However, the PCRA court did not

consider it as a motion for DNA testing filed in accordance with § 9543.1.




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Instead, the court treated the motion as “essentially an amended pro se

[PCRA] petition.” PCRA Court Rule 907 Notice, 12/18/15, at 2 n.3.

      In Commonwealth v. Gacobano, 65 A.3d 416 (Pa. Super. 2013),

this Court commented:

     “Post conviction DNA testing does not directly create an
     exception to § 9545’s one-year time bar. See 42 Pa.C.S.A.
     § 9543.1. Rather it allows for a convicted individual to first
     obtain DNA testing which could then be used within a PCRA
     petition to establish new facts in order to satisfy the
     requirements of an exception under 42 Pa.C.S.A. § 9545(b)(2).
     See 42 Pa.C.S.A. § 9543.1(f)(1).” Accord Commonwealth v.
     Scarborough, [] 64 A.3d 602, 609 ([Pa.] 2013) (“the litigation
     of a motion for DNA testing under Section 9543.1 is, in
     substance, a wholly separate proceeding from litigation of a
     PCRA petition.”); Commonwealth v. Williams, 35 A.3d 44, 50
     (Pa. Super. 2011) (“This Court has consistently held the one-
     year jurisdictional time bar of the PCRA does not apply to
     motions for DNA testing under Section 9543.1.”). While the
     PCRA petition filed in this case comingled the DNA test request
     with other PCRA-based requests for relief, the two forms of relief
     must be bifurcated and the DNA testing issue is to be addressed
     first. Williams, supra.

Id. at 419 (footnote omitted).

     In accordance with the provisions of 42 Pa.C.S.A. § 9543.1 addressing

post conviction DNA testing, a convicted individual serving a term of

imprisonment may file a written motion seeking DNA testing of specific

evidence related to the prosecution resulting in the individual’s conviction.

42 Pa.C.S.A. § 9543.1(a).        Upon receipt of a motion filed pursuant to

§ 9543.1(a), the court is to, inter alia, notify the Commonwealth and afford

the Commonwealth an opportunity to respond.         § 9543.1(b).    The court

proceeds to determine whether the requirements of § 9543.1(c) are satisfied

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and then issues an order for testing or explains why testing is not

warranted.    § 9543.1(c) and (d).    Those procedures were not followed in

light of the fact the PCRA court treated the motion as an amended PCRA

petition.

      However, even if the PCRA court addressed the motion as a

§ 9543.1(a) motion, Appellant would not be entitled to relief based on the

“law of the case” doctrine. As this Court explained in Gacobano,

      The law of the case doctrine refers to a family of rules which
      embody the concept that a court involved in the later phases of
      a litigated matter should not reopen questions decided by
      another judge of that same court or by a higher court in the
      earlier phases of the matter. . . . The various rules which make
      up the law of the case doctrine serve not only to promote the
      goal of judicial economy . . . but also operate (1) to protect the
      settled expectations of the parties; (2) to insure uniformity of
      decisions; (3) to maintain consistency during the course of a
      single case; (4) to effectuate the proper and streamlined
      administration of justice; and (5) to bring litigation to an end.

Gacobano, 65 A.3d at 419-20 (quoting Commonwealth v. McCandless,

880 A.2d 1262, 1267 (Pa. Super. 2005) (additional citation omitted)).

Therefore, under law of the case doctrine,

      [W]hen an appellate court has considered and decided a
      question submitted to it upon appeal, it will not, upon a
      subsequent appeal on another phase of the case, reverse its
      previous ruling even though convinced it was erroneous. This
      rule has been adopted and frequently applied in our own State.
      It is not, however, inflexible. It does not have the finality of the
      doctrine of res judicata.      “The prior ruling may have been
      followed as the law of the case but there is a difference between
      such adherence and res judicata; one directs discretion, and the
      other supercedes (sic) it and compels judgment. In other words,
      in one it is a question of power, in the other of submission.” The
      rule of the “law of the case” is one largely of convenience and

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       public policy, both of which are served by stability in judicial
       decisions, and it must be accommodated to the needs of justice
       by the discriminating exercise of judicial power.

Id. at 420 (quoting McCandless, 880 A.2d at 1268 (additional citation

omitted)).

       As reflected in the PCRA court’s factual and procedural summary set

forth above, Appellant filed a second PCRA petition on May 14, 2002 “raising

only the issue of DNA testing as it related to the hair sample recovered by

the police.”     PCRA Court Rule 907 Notice, 12/18/15, at 3 (emphasis in

original).   The PCRA court dismissed the petition on December 16, 2002,

noting inter alia that DNA testing is appropriate when a conviction rests

largely on identification and DNA technology could definitely establish an

accused’s    innocence.        PCRA     Court      Opinion,   4/15/03,   18-20   (citing

Commonwealth v. Godschalk, 679 A.2d 1295, 1297 (Pa. Super. 1997)

(additional citations omitted)). The PCRA court explained that testing could

not positively exonerate Appellant, unlike the appellant in Godschalk,

noting that DNA results could not exclude Appellant from having committed

the crime and, therefore, would not conclusively exculpate Appellant from

having committed a murder to which he confessed and during the

commission of which he was positively identified. Id.5


____________________________________________


5
  Although Appellant’s 2002 sought DNA testing of only hair recovered by
police, the rationale applied to denial of the 2002 petition is equally
(Footnote Continued Next Page)


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        Appellant filed an appeal to this Court.            On October 20, 2003, we

affirmed the dismissal of Appellant’s second PCRA petition.                  On May 11,

2004, our Supreme Court denied Appellant’s petition for allowance of appeal.

Commonwealth v. Steward, 839 A.2d 1164 (Pa. Super. 2003), appeal

denied, 849 A.2d 1205 (Pa. 2004). Therefore, applying the law of the case

doctrine, Appellant’s third issue claiming error in relation to his petition for

DNA testing must fail.         Consequently, Appellant’s fourth issue is rendered

moot.

        Our review confirms that the record supports the PCRA court’s

dismissal of Appellant’s third PCRA petition.               Because the PCRA court’s

decision is free of legal error, we shall not disturb it.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/22/2016




                       _______________________
(Footnote Continued)

applicable to Appellant’s request                for   comprehensive   DNA    testing   of
numerous pieces of evidence.



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