J-S47018-19



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 MARCUS LEONARD WALLACE                   :
                                          :
                    Appellant             :     No. 51 MDA 2019

          Appeal from the PCRA Order Entered December 10, 2018
    In the Court of Common Pleas of Franklin County Criminal Division at
                      No(s): CP-28-CR-0000250-2011

 COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 MARCUS LEONARD WALLACE                   :
                                          :
                    Appellant             :     No. 52 MDA 2019

          Appeal from the PCRA Order Entered December 10, 2018
    In the Court of Common Pleas of Franklin County Criminal Division at
                      No(s): CP-28-CR-0000213-2010

BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY NICHOLS, J.:                       FILED NOVEMBER 13, 2019

      Appellant Marcus Leonard Wallace appeals from the order dismissing his

first petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546. He raises numerous issues, primarily challenging trial and direct appeal

counsels’ advocacy. We affirm.

      We state the facts and procedural history set forth by this Court’s

decision resolving Appellant’s direct appeal.
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      In the early morning of December 10, 2009, an assailant broke
      into the bedroom of Consuela Wallace. A relative, sleeping in a
      neighboring bedroom, heard a loud crash and a male’s voice
      arguing with Consuela. He later identified the male’s voice as
      Consuela’s adopted son, [Appellant]. Responding to the noise,
      the relative found Consuela lying on the floor of her bedroom,
      unconscious and bleeding from the head. Consuela later died from
      the blunt force trauma she had sustained to her head.

      Investigators quickly focused on [Appellant] as a person of
      interest. Shortly thereafter, [Appellant] was arrested on an
      outstanding, unrelated warrant. Pursuant to this arrest, a sample
      of [Appellant’s] DNA was taken and matched DNA found at the
      scene of the crime. Furthermore, while incarcerated on the
      unrelated charges, he provided a confession to the murder to
      officers who questioned him. He was charged with, among others,
      the first-degree murder of Consuela.

Commonwealth v. Wallace, 324 MDA 2015, 2016 WL 5417183, *1 (Pa.

Super. filed Aug. 16, 2016) (unpublished mem.).

      In addition to Appellant’s confession,

      [t]he Commonwealth presented evidence of [Appellant’s] long-
      standing hostility towards Consuela. The Commonwealth also
      presented evidence that a vehicle owned by [Appellant] had been
      seen in the area of Consuela’s house on the night of the murder.
      [Appellant’s] blood was later found on the steering wheel of the
      car. A witness in the home identified a voice he heard arguing
      with Consuela moments before her murder as [Appellant’s]. The
      blood tested was, among others, found on broken glass at
      Consuela’s home and on her bedroom wall.

Id. at *6 (noting that the “evidence linking [Appellant] to the crime was [not]

weak”).

      After lengthy proceedings concerning [Appellant’s] competence to
      stand trial, a trial on these charges was held in January, 2015.
      The jury found him guilty of first-degree murder and burglary.
      [Appellant] immediately moved for a judgment of acquittal on the
      grounds of insufficient evidence. The trial court denied the oral
      motion, and subsequently sentenced [Appellant] to life

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       imprisonment without parole, with a concurrent term            of
       imprisonment of 10 to 20 years on the burglary conviction.

Id. at *1.    Appellant appealed, and this Court affirmed.   Appellant filed a

petition for allowance of appeal with our Supreme Court, which the Court

denied on March 7, 2017.

       On January 4, 2018, the PCRA court docketed Appellant’s pro se PCRA

petition. The PCRA court appointed counsel, who filed a petition to withdraw

and no-merit letter under Turner/Finley1 letter.     Appellant filed a pro se

response to appointed counsel’s no-merit letter on August 16, 2018, which

the PCRA court construed as an amended PCRA petition.        On October 26,

2018, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss

and granted PCRA counsel’s petition to withdraw. Appellant requested, and

the PCRA court granted, an extension of time to file a response to the Rule

907 notice by December 7, 2018. Appellant did not file a response.

       In a single order listing both docket numbers, the PCRA court formally

dismissed Appellant’s PCRA petition on December 10, 2018.          The order

advised Appellant that he had a right to appeal within thirty days. Order,

12/10/18. The order did not instruct Appellant that he had to file multiple

notices of appeal.




____________________________________________


1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).


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      On January 2, 2019, the record reflects two notices of appeal filed, each

with both of the above-captioned trial court docket numbers. On February 4,

2019, this Court issued a rule to show cause as to why the appeal should not

be quashed pursuant to Commonwealth v. Walker, 185 A.3d 969 (Pa.

2018).   See also Commonwealth v. Creese, ___ A.3d ___, 2019 WL

3812232, *2 (Pa. Super. filed Aug. 14, 2019) (holding that a notice of appeal

may only contain one docket number, and quashing appeal in which the

appellant filed four separate notices of appeal, each listing all four docket

numbers). Appellant filed a pro se response indicating that because the trial

court had previously consolidated his cases, quashal was unnecessary. This

Court discharged the rule to show cause and referred the matter to this panel.

      As an initial matter, we address whether we must quash the appeal

under Creese and Walker, which this Court summarized in Commonwealth

v. Stansbury, ___ A.3d ___, 2019 WL 4197218, *2 (Pa. Super. filed Sept. 5,

2019), as follows:

      In [Walker], the High Court held that an appeal must be quashed
      if an appellant fails to file separate notices of appeal at each
      docket number implicated by an order resolving issues that
      involve more than one trial court docket will result in quashal of
      the appeal, as is the procedure indicated in the Note to Pa.R.A.P.
      341. The Walker Court acknowledged that its decision “was
      contrary to decades of case law from this Court and the
      intermediate appellate courts[.]” Hence, the Court held that its
      ruling applied only prospectively, and directed that the Rules be
      amended to comport with the Walker decision.

Stansbury, ___ A.3d ___, 2019 WL 4197218, at *2 (citation omitted).




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      In Stansbury, the PCRA court “entered a single order, at both criminal

case docket numbers under one caption, dismissing [the defendant’s] PCRA

petition and granting counsel’s request to withdraw.” Id. at *1. In pertinent

part, the order advised the defendant “that he has thirty days from this day,

to file a written notice of appeal to the Superior Court. Said notice of appeal

must be filed with the Clerk of Courts of Philadelphia County-Criminal Division

. . . .” Id. (emphasis in original and citation omitted).

      The Stansbury Court refused to quash the appeal based on Walker,

reasoning as follows:

      it has long been the law of this Commonwealth that the failure to
      file a timely appeal as a result of a breakdown in the court system
      is an exception to that general rule.

      We have many times declined to quash an appeal when the defect
      resulted from an appellant’s acting in accordance with
      misinformation relayed to him by the trial court.

      In the case sub judice, the PCRA court advised [the defendant]
      that he could appeal the dismissal of his PCRA petition by filing
      within thirty days a notice of appeal from its order. The court, still
      referring to its order that disposed of a PCRA petition pending at
      two separate docket numbers, again utilized the singular in
      advising [the defendant] where to file “Said notice of appeal[.]”
      Hence, while Walker required that [the defendant] file separate
      notices of appeal at each docket number, the PCRA court informed
      [the defendant] that he could pursue appellate review by filing a
      single notice of appeal.

Id. at *2-*3 (citations omitted).

      Here, similar to Stansbury, the PCRA court notified Appellant that he

had a right to appeal the court’s order denying PCRA relief. Order, 12/10/18.

The PCRA court’s order did not advise Appellant that he must file separate

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notices of appeal, each with one docket number, pursuant to Walker. Under

the circumstances, we conclude that the PCRA court’s failure to advise

Appellant properly of his appellate rights constitutes “a breakdown in court

operations such that we may overlook” any Walker defect. See Stansbury,

___ A.3d at ___, 2019 WL 4197218, at *3.

       Appellant filed a 216-page pro se brief raising twenty issues on appeal,

which we have reordered to facilitate disposition:2

       1. Whether the PCRA court erred in failing to grant relief and/or
       failing to find that counsel was ineffective for failing to address,
       nor raise, nor properly litigate the unlawful arrest of Appellant?

       2. Whether the PCRA court erred in failing to grant relief and/or
       failing to find that counsel was ineffective for failing to properly
       litigate the issues of the search warrant for the buccal swab?

       3. Whether the court erred in failing to grant relief and/or failing
       to find that counsel was ineffective for failing to properly litigate
       May 16, 2012 order denying motion for suppression of buccal
       swab on direct appeal?

       4. Whether PCRA court erred in failing to grant relief and/or failing
       to find that counsel was ineffective for failing to properly litigate
       motion to suppress the interrogation of counseled [Appellant] and
       on appeal?

       5. Whether PCRA court erred in failing to grant relief and/or failing
       to find that counsel was ineffective for disregarding the
       confrontation clause violation at the October 20, 2011 hearing?




____________________________________________


2 Because we agree with the PCRA court that some of Appellant’s issues
overlap, we have reordered Appellant’s issues to parallel the PCRA court’s
opinion in part.


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     6. Whether the court erred in failing to grant relief and/or failing
     to find that counsel was ineffective for withdrawing the motion for
     change of venue/venire?

     7. Whether the court erred in failing to grant relief and/or failing
     to find that counsel was ineffective for failing to address nor
     correct the failure to voir dire juror #69 Darrell Kaiser to
     determine impartiality, U.S. Const amend XIV Pa Cons Art 1 § 9?

     8. Whether the court erred in failing to grant relief and/or failing
     to find that counsel was ineffective for disregarding the NAPUE
     violation involving the purported CODIS search (Com. exhib
     #218)?

     9. Whether the court erred in failing to grant relief and/or failing
     to find that counsel was ineffective for failing to raise Pa. R. Crim.
     P. 600, Rule 600 permits the Court to order tolling of the days
     (computation)?

     10. Whether the court erred in failing to grant relief and/or failing
     to find that counsel was ineffective for failing to call defense
     witnesses?

     11. Whether the court erred in failing to grant relief and/or failing
     to find that counsel was ineffective for failing to impeach the
     Commonwealth’s witnesses?

     12. Whether the court erred in failing to grant relief and/or failing
     to find that counsel was ineffective for failing to address nor
     litigate nor correct the issues identified in re: (1) expert witnesses
     granted but not paid and (2) expert witnesses granted and paid
     but not utilized nor used nor participate during trial?

     13. Whether the court erred in failing to grant relief and/or failing
     to find that counsel was ineffective for failing to properly litigate
     the inadmissible “Fear” statement and failed to address other
     hearsay issues on appeal under denial of motion to exclude prior
     bad acts?

     14. Whether the court erred in failing to grant relief and/or failing
     to find that counsel was ineffective for conceding the necessary
     requisite elements of first degree murder at trial and on appeal?




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      15. Whether the court erred in failing to grant relief and/or failing
      to find that counsel was ineffective for disregarding the
      Commonwealth’s failure to prove location of death purported in
      bill of particulars at trial?

      16. Whether the court erred in failing to grant relief and/or failing
      to find that counsel was ineffective for disregarding, failing to
      object, nor request correction of the court’s erroneous jury
      instruction and for reiterating the same during trial?

      17. Whether the court erred in failing to grant relief and/or failing
      to find that counsel was ineffective for failing to properly litigate
      [Appellant’s] sufficiency of the evidence claim on appeal?

      18. Whether the court erred in failing to grant relief and/or failing
      to find that counsel was ineffective for failing to properly raise a
      weight of evidence claim?

      19. Whether the court erred in failing to grant relief and/or failing
      to find that counsel was ineffective for failing to litigate motion to
      suppress the vehicle search on appeal?

      20. Whether the court erred in failing to grant relief and/or failing
      to find that PCRA counsel was ineffective for failing to investigate
      nor address the Promega patent issue in relation to Powerplex 16
      system, the DNA kit used in this case?

Appellant’s Brief at 6-10 (some capitalization omitted).

      The standard of review for an order resolving a PCRA petition is well-

settled:

      This Court’s standard of review regarding an order denying a
      petition under the PCRA is whether the determination of the PCRA
      court is supported by the evidence of record and is free of legal
      error. The PCRA court’s findings will not be disturbed unless there
      is no support for the findings in the certified record.

Commonwealth v. Grayson, 212 A.3d 1047, 1051 (Pa. Super. 2019)

(citation omitted).




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      To prevail on a claim alleging counsel’s ineffectiveness under the
      PCRA, the petitioner must demonstrate (1) that the underlying
      claim is of arguable merit; (2) that counsel’s course of conduct
      was without a reasonable basis designed to effectuate his client’s
      interest; and (3) that he was prejudiced by counsel’s
      ineffectiveness, i.e. there is a reasonable probability that but for
      the act or omission in question the outcome of the proceeding
      would have been different.

Id. at 1054 (citation omitted and some formatting altered).

      In support of his first issue, Appellant contends that trial counsel was

ineffective for failing to argue that the arrest was illegal. Appellant’s Brief at

22.   Specifically, Appellant asserts that the police improperly arrested him

without a warrant and that a question of fact exists as to whether the

preliminary hearing was held within forty-eight hours of his arrest. Id. at 23,

25-26, 33. Appellant also claims that his preliminary hearing counsel was

ineffective for conceding that the Commonwealth had established a prima

facie case against him.    Id. at 29-30. He argues that the trial judge was

biased against him. Id. at 32. Further, Appellant states that trial counsel was

ineffective   for   not   arguing   that    the   Commonwealth       fraudulently

misrepresented a DNA test result and knowingly used false testimony in

violation of Napue v. Illinois, 360 U.S. 264 (1959). Id. at 38. Appellant

insists that he has established a pattern of illegal behavior by, and collusion

between, the Commonwealth and Appellant’s trial counsel. Id. at 40-43.

      Appellant’s second issue challenges trial counsel’s advocacy regarding

the Commonwealth’s search warrant for a DNA sample, i.e., a buccal swab,

and the results of the DNA test on the sample. Id. at 53. Appellant raises

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numerous issues with respect to whether the Commonwealth had probable

cause for the warrant and the validity of the DNA test results. Id. at 53-69.

Appellant’s third issue similarly contends trial counsel was ineffective for not

properly arguing the motion to suppress the buccal swab. Id. at 212-16.

      In support of his fourth issue, Appellant argues that trial counsel was

ineffective for failing to raise the following arguments in support of his motion

to suppress the interrogation. Id. at 44. First, Appellant insists that he did

not waive his right to counsel and that he never had counsel for the

interrogation. Id. Second, he contends that the police illegally transported

him from jail to the police barracks. Id. at 45. Third, Appellant argues that

the amount set for his bail was excessive and unconstitutional. Id. at 45-50.

Fourth, he asserts that he did not recall signing a waiver of his Miranda rights,

and the Commonwealth should be compelled to produce the waiver form. Id.

at 51-53.

      Appellant’s fifth issue is that trial counsel was ineffective for not

objecting to the absence of the DNA lab technician at the suppression hearing.

Id. at 70. In Appellant’s view, the police officer who testified about the DNA

test results was unqualified and his testimony should have been excluded. Id.

at 70-71.

      Appellant’s sixth and seventh issues claim that trial counsel was

ineffective for withdrawing his motion for a change of venue. Id. at 74. In

Appellant’s view, counsel erred by not using a previously-approved jury


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consultant and by not requesting a voir dire of a “stealth juror.”3 Id. at 74-

75, 203-07. Appellant alleges that given the negative publicity, the jury pool

was biased against him. Id. at 75.

       Appellant’s eighth issue contends that the Commonwealth elicited false

testimony in violation of Napue, because its witnesses lied regarding various

aspects of the DNA sample. Id. at 78-86.

       Ninth, Appellant argues counsel was ineffective for not filing a

Pa.R.Crim.P. 600 challenge. Id. at 76. In Appellant’s view, trial counsel was

ineffective for causing some of the delays and other delays were caused by

the trial court’s failure to pay previously-approved expert witnesses. Id. at

77.

       Appellant’s tenth issue is that trial counsel was ineffective for not calling

various witnesses for his defense. Id. at 87. Appellant contends that those

witnesses would have proffered favorable testimony, which he summarized

extensively. Id. at 87-106. Appellant’s eleventh issue similarly argues that

trial counsel was ineffective for not impeaching numerous witnesses. Id. at

106. Appellant discusses the witnesses that he believes should have been

impeached. Id. at 106-32. Likewise, in support of his twelfth issue, Appellant



____________________________________________


3 A “stealth juror” is a “juror who hides a potentially disqualifying bias or
conflict of interest in order to serve on a jury. A stealth juror may want to
influence the outcome of the trial . . . .” Hunter v. Ford Motor Co., Inc.,
305 S.W.3d 202, 211 n.1 (Tex. App. 2009) (citation omitted).


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argues that trial counsel was ineffective for not ensuring that previously-

retained defense experts were paid. Id. at 197-99. Had those experts been

paid, Appellant reasons, they would have issued favorable expert reports. Id.

at 199. Appellant also questions trial counsel’s selection and use of expert

witnesses. Id. at 201.

       Appellant’s thirteenth claim is that trial counsel was ineffective for failing

to make a proper objection to inadmissible hearsay and evidence of other prior

bad acts. Id. at 132-33. Appellant also argues that direct appeal counsel was

ineffective for not arguing the issue adequately on appeal. Id. at 134.

       In support of his fourteenth issue, Appellant contends that trial counsel

was ineffective for conceding “the first two”4 elements for first-degree murder

during counsel’s closing argument. Id. at 135-36. Specifically, Appellant is

referring to trial counsel’s alternative argument that even if the jury concluded

that Appellant was the culprit, he should be found guilty of only third-degree

murder as the murder was unintentional. Id.; see, e.g., N.T. Trial, 2/2/15,

at 20-21 (“[Appellant] was just trying to get back in the house. And I suggest,

ladies and gentlemen, on the night in question if he was trying to get back in

the house to talk to his mother [i.e., the victim,] and during that discussion


____________________________________________


4Although Appellant did not specifically identify these particular elements, it
appears he is referring to “(1) a human being was unlawfully killed; (2) the
defendant was responsible for the killing; and (3) the defendant acted with
malice and a specific intent to kill.” Commonwealth v. Thomas, 54 A.3d
332, 335 (Pa. 2012) (citation omitted).


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or argument whatever it may be and maybe we’ll never know if he beat her

to death with an object in her head, I suggest that is third-degree murder.”).

      For his fifteenth issue, Appellant maintains that trial counsel was

ineffective for not arguing that the Commonwealth failed to establish the

location of the victim’s death. Appellant’s Brief at 141. In support of his issue,

Appellant discusses evidence that, in his view, provides contradicting

information on the location of the victim’s death. Id. at 143-45. Appellant

posits that because the Commonwealth did not prove where the victim died,

the trial court lacked jurisdiction over him. Id. at 142.

      Appellant’s sixteenth issue is that counsel was ineffective for not

challenging the trial court’s jury charge. Id. at 150. Specifically, the trial

court had charged the jury that it must find that the victim is dead. Id. at

151. Appellant contends that the trial court should have instructed the jury

that the Commonwealth had to prove that the victim’s “death was unlawful

beyond a reasonable doubt.” Id. Appellant also injects a challenge to the

sufficiency of evidence here, reasoning that the evidence did not support an

unlawful death. Id. at 152-53. Appellant similarly asserts that trial counsel’s

closing arguments were erroneous because counsel also wrongly stated that

the Commonwealth had to prove that the victim was deceased. Id. at 154.

Appellant claims trial counsel should have made a different argument. Id. at

155-56.




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      Appellant’s next two issues, his seventeenth and eighteenth, are that

trial and direct appeal counsel were ineffective for not challenging and/or not

“properly” challenging the sufficiency and weight of the evidence. Id. at 159,

172. Appellant discusses contradictory evidence and testimony that, in his

view, counsel did not adequately challenge certain evidence during trial or on

direct appeal. Id. at 159-72. Appellant contends that trial counsel should

have challenged the weight of the evidence, and he reiterates the evidence

and other errors that he believes should have resulted in a new trial. Id. at

172-89.

      Appellant’s nineteenth issue claims trial counsel was ineffective in

litigating a motion to suppress the search of his vehicle. Id. at 189. Appellant

identifies numerous arguments that he believes trial counsel should have

raised, which would have resulted in the trial court granting the motion to

suppress. Id. at 189-97.

      After careful review of Appellant’s arguments, the record, and the PCRA

court’s opinion, we affirm on the basis of the PCRA court’s opinion for

Appellant’s first nineteen issues.   See PCRA Ct. Op., 10/26/18, at 1-52.

Without exhaustively recounting the PCRA court’s opinion for every issue, the

PCRA court generally concluded that Appellant misapprehended the factual

record, thus undermining his legal arguments, and that Appellant failed to

plead and prove one or more of the three factors for establishing counsel’s

ineffectiveness. See Grayson, 212 A.3d at 1054.


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      In addition to the PCRA court’s reasoning, we add the following.

Regarding Appellant’s first issue, we note that even if counsel was ineffective

regarding aspects of the preliminary hearing, any such defects are immaterial

as a jury found Appellant guilty. See Commonwealth v. Stultz, 114 A.3d

865, 881-82 (Pa. Super. 2015) (noting that deficiency at preliminary hearing

was harmless absent showing that the deficiency rendered verdict unreliable).

      With respect to Appellant’s thirteenth issue, which challenged trial

counsel’s advocacy in moving to exclude the inadmissible hearsay, we add

that Appellant has not established a reasonable probability that but for such

testimony, the outcome of his trial would have been different. See Grayson,

212 A.3d at 1054.    As this Court previously noted, Appellant confessed to

killing the decedent. See Wallace, 2016 WL 5417183 at *1.

      With respect to the PCRA court’s disposition of Appellant’s fourteenth

issue regarding trial counsel’s alleged concession to elements of first-degree

murder during closing arguments, we add the following observations. First,

trial counsel had a reasonable basis for arguing that if Appellant was culpable,

then the jury should find Appellant guilty of a lesser offense. See Grayson,

212 A.3d 1047 at 1051. Second, Appellant confessed to the crime, and the

evidence linking him to the homicide was extensive. See Wallace, 2016 WL

5417183 at *1, *6. Even if trial counsel’s statement constituted an improper

concession, Appellant has not established a reasonable probability that but for

that statement, the outcome of trial would have been different. See Grayson,


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212 A.3d at 1054; accord Commonwealth v. Carpenter, 725 A.2d 154,

162-63 (Pa. 1999) (holding that absent proof that defense counsel had no

reasonable basis for conduct or reasonable probability that outcome of trial

would have been different, counsel could not be ineffective for statements

made during closing).

       We turn to Appellant’s twentieth and final issue. Appellant contends

that one of the patents on the DNA kit used by the Commonwealth is invalid.

Appellant’s Brief at 208. Appellant reasons that because the patent is invalid,

the resulting DNA analysis must also be invalid. Id. Appellant, however, has

not pled and proved that his claim “has not been previously litigated or

waived.” See 42 Pa.C.S. § 9543(a)(3). Even if Appellant’s argument was

properly before this Court, whether a patent is valid has no bearing on the

accuracy of the DNA kit results inculpating Appellant. A patent simply is the

right to exclude others from using the invention.5 See 35 U.S.C. § 154. A

patent’s validity has no correlation with the accuracy of a particular patented

process. For these reasons, Appellant’s last claim lacks merit. Accordingly,

having perceived no abuse of discretion or error of law, we affirm the PCRA

court’s order. See Grayson, 212 A.3d at 1051.

       Order affirmed.



____________________________________________


5 Moreover, a state court cannot resolve the validity of a patent.     See 28
U.S.C. § 1338.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2019




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