J-S70027-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ADMIRAL PERRY

                            Appellant                No. 1160 EDA 2014


                  Appeal from the PCRA Order March 19, 2014
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0001239-2001


BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                         FILED DECEMBER 02, 2014

        Appellant, Admiral Perry, appeals from the March 19, 2014 order

denying his motion for DNA testing pursuant to Section 9543.1 of the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.1       After careful

review, we affirm.

        In a prior published opinion, a panel of this Court summarized the

relevant factual and procedural background of this case as follows.

              On June 26, 1980, Kay Aisenstein left her home in
              the city of Philadelphia and did not return. At the
              time and place of Aisenstein’s disappearance, a
              witness, Richard Sussman, saw a young, light-
____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
1
  Our Supreme Court has held that an order disposing of a motion for DNA
testing under the PCRA is a final order that is immediately appealable.
Commonwealth v. Scarborough, 64 A.3d 602, 609 (Pa. 2013).
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          skinned, black male speeding from an alleyway in a
          1975 Chevrolet Malibu with its lights off. Richard
          Sussman and his father, Charles Sussman, were
          interviewed by police that night and a police sketch
          artist produced a composite sketch based upon a
          description of the driver.    Richard Sussman was
          shown mug books, but was unable to make an
          identification at that time.     The next morning,
          Aisenstein’s body was found in Delaware County,
          beaten, strangled and raped. On June 28, 1980, the
          Chevrolet Malibu was located in Philadelphia.
          Samples of what appeared to be blood were collected
          from the car. These samples were analyzed by a
          crime lab in June or July of 1980, and then
          repackaged for storage. No further progress was
          made in the investigation until 1992.

                 In 1992, Richard Sussman was shown a
          photographic array, and he identified Appellant as
          the man he saw driving from the alleyway in June of
          1980. In 1994, police obtained a search warrant to
          withdraw a blood sample from Appellant. In 1995,
          forensic DNA technology unavailable in 1980 enabled
          police to test the preserved blood evidence taken
          from the Chevrolet Malibu. The testing determined
          that the blood on the items taken from the vehicle
          came from two different people: the first was
          identified as Aisenstein, and the second was
          identified as Appellant. N.T., 9/24/2003, at 75–76.

                 At trial, the Commonwealth built its case
          largely on the 1992 photographic identification of
          Appellant by Richard Sussman, similarities between
          the composite sketch prepared by the police sketch
          artist and a 1980 photograph of Appellant, and the
          DNA evidence. On September 25, 2003, Appellant
          was convicted of first-degree murder, kidnapping,
          involuntary deviate sexual intercourse, and rape in
          connection with the death of Aisenstein.        On
          September 30, 2003, Appellant was sentenced to life
          in prison without parole on the murder charge, and
          an aggregate sentence of thirty to sixty years’
          imprisonment on the remaining convictions, to run
          consecutive to the sentence Appellant was already

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             serving.     Appellant filed timely post-sentence
             motions, which were denied.     He filed a timely
             appeal, and this Court affirmed the judgment of
             sentence on June 23, 2005. On December 29, 2005,
             our Supreme Court denied Appellant’s petition for
             allowance of appeal.

                   On February 1, 2006, Appellant filed a timely,
             pro se, PCRA petition and was appointed counsel.
             PCRA counsel filed a [no-merit] letter [pursuant to
             Commonwealth v. Turner, 544 A.2d 927 (Pa.
             1988), Commonwealth v. Finley, 550 A.2d 213
             (Pa. Super. 1988) (en banc), and their progeny]
             seeking to withdraw his appearance. Counsel was
             permitted to withdraw and on July 19, 2007, the
             PCRA court denied Appellant’s petition without a
             hearing.

Commonwealth v. Perry, 959 A.2d 932, 934 (Pa. Super. 2008) (footnotes

omitted).    On September 15, 2008, this Court affirmed the PCRA court’s

order dismissing Appellant’s first PCRA petition. Id. at 939. Relevant to the

instant appeal, this Court concluded that under our Supreme Court’s decision

in Commonwealth v. Williams, 899 A.2d 1060 (Pa. 2006), Appellant was

not eligible for DNA testing under the PCRA because “the technology existed

at the time of his trial, the verdict was rendered after January 1, 1995, and

the court never refused funds for the testing.”   Perry, supra at 938-939,

quoting Williams, supra at 1063.       Appellant did not file a petition for

allowance of appeal in our Supreme Court.

     On March 25, 2013, Appellant filed a ”Petition for Post Conviction DNA

Testing Pursuant to 42 Pa. C.S.A. § 9543.1.”      The PCRA court appointed

counsel.    The Commonwealth filed its answer on December 5, 2013.        On


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February 19, 2014, the PCRA court entered an order notifying Appellant of

its intent to dismiss Appellant’s DNA motion without a hearing pursuant to

Pennsylvania Rule of Criminal Procedure 907.          Appellant filed a pro se

response on March 7, 2014, although he was still represented by counsel.

On March 19, 2014, the PCRA court entered its final order dismissing

Appellant’s DNA motion. On April 16, 2014, Appellant filed a timely notice of

appeal.2

        On appeal, Appellant presents one issue for our review.

              I.    Was the [PCRA] court in error for dismissing
              [Appellant]’s amended petition for [PCRA] relief
              regarding after-discovered evidence and a request
              that said evidence be made available for DNA
              testing?

Appellant’s Brief at 4.

        “Initially, we note that, when examining the propriety of an order

resolving a request for DNA testing, we employ the PCRA standard of

review.”    Commonwealth v. Gacobano, 65 A.3d 416, 419 (Pa. Super.

2013) (citations omitted).         “In reviewing the denial of PCRA relief, we

examine whether the PCRA court’s determination is supported by the record

and free of legal error.” Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014) (internal quotation marks and citation omitted). “The scope of review

is limited to the findings of the PCRA court and the evidence of record,


____________________________________________
2
    Appellant and the PCRA court have complied with Pa.R.A.P. 1925.



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viewed in the light most favorable to the prevailing party at the trial level.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).

“It is well-settled that a PCRA court’s credibility determinations are binding

upon an appellate court so long as they are supported by the record.”

Commonwealth v. Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation

omitted). However, this Court reviews the PCRA court’s legal conclusions de

novo.      Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014)

(citation omitted). We further note that “[m]otions for post-conviction DNA

tests [pursuant to Section 9543.1], while considered post-conviction

petitions under the PCRA, are clearly separate and distinct from claims

pursuant to other sections of the PCRA.” Perry, supra at 938.

        In the case sub judice, Appellant avers that the PCRA erred in denying

his DNA motion because Appellant reviewed a letter from Genetic Consultant

Services (GCS) dated June 1, 2002 which “suggest[ed] … that several of the

samples as to the DNA evidence were inconclusive.” Appellant’s Brief at 11.

The Commonwealth counters that Appellant’s DNA petition is barred by the

law of the case doctrine. Commonwealth’s Brief at 10.

        This Court has previously described the law of the case doctrine as

follows.

                          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

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               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.

          Commonwealth v. McCandless, 880 A.2d 1262,
          1267 (Pa. Super. 2005), appeal dismissed as
          improvidently granted, 593 Pa. 657, 933 A.2d 650
          (2007) (quoting Commonwealth v. Starr, 541 Pa.
          564, 664 A.2d 1326, 1331 (1995)). Thus, under the
          doctrine of the law of the case,

               when 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 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 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.

          [McCandless, supra at 1268.]

Gacobano, supra at 419-420.


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     In Gacobano, the defendant filed his first DNA motion under the PCRA

in 2006, which the PCRA court denied on statutory grounds. Id. at 418. On

appeal, this Court affirmed in an unpublished memorandum, concluding that,

just as it did in our 2008 opinion in this case, that Gacobano could not meet

any of the three preliminary conditions for DNA testing. Id. Also similar to

this case, the Gacobano Court concluded that Gacobano “could not satisfy

any of those mandates in that his jury verdict was rendered after January 1,

1995, DNA testing existed when Appellant was tried, and Appellant never

was refused funding for such a test.”     Id.   Gacobano then filed another

petition seeking to vacate his judgment of sentence on the grounds that he

was denied DNA testing.     Id.   Construing this petition as a DNA motion

under Section 9543.1, this Court concluded that the law of the case doctrine

barred consideration of this new DNA motion. Specifically, this Court noted

that “[w]e ha[d] previously ruled that Appellant is not entitled to DNA

testing under the statute authorizing such analysis. That ruling applied the

pertinent statutory language and was not clearly erroneous.”      Id. at 420.

Accordingly, this Court affirmed the PCRA court’s order on this basis. Id.

     In the case sub judice, this Court previously concluded in 2008 that

Appellant was statutorily ineligible for DNA testing under Section 9543.1 due

to his inability to show that any of the three preliminary requirements were

satisfied. See Perry, supra at 938-939. Like in Gacobano, a prior panel

of this Court applied the requirements of Section 9543.1, and Appellant has


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not shown that its previous legal conclusion was “clearly erroneous.”

Gacobano, supra. Instantly, Appellant argues that he only discovered in

2013 that GCS’s 2002 letter stated that “several of the samples as to the

DNA evidence were inconclusive … [and h]is attorney chose not to utilize this

report in [Appellant]’s defense.” Appellant’s Brief at 11. This does not alter

Appellant’s eligibility under Section 9543.1, as it does not change Appellant’s

failure to show any of the preliminary requirements under the statute. 3 As a

result, Appellant’s arguments as to his DNA motion are barred by the law of

the case doctrine. See Gacobano, supra at 419-420.



____________________________________________
3
  Appellant does not specifically couch this line of argument in his brief as an
independent ineffective assistance of counsel claim, which would be subject
to the PCRA and its time-bar. See Appellant’s Brief at 11. Therefore, we do
not address it as such.

      We also note that in his original motion, Appellant alleged an
additional claim for relief under Section 9543(a) of the PCRA alleging
ineffective assistance of counsel, independent of his request for relief under
Section 9543.1. Appellant’s Motion for DNA Testing, 3/25/13, at 2-5. Based
upon our review of the certified record, it appears that the PCRA court
addressed all of these claims under both sections of the statute in its Rule
907 notice and in its Rule 1925(a) opinion. Cf. Commonwealth v. Brooks,
875 A.2d 1141, 1148 (Pa. Super. 2005) (stating, “[w]e have held that a
PCRA petition cannot be used to make a motion for DNA analysis … and the
reverse is surely true as well[]”). However, on appeal, Appellant only
argues that the PCRA court erred when it denied his claim for DNA testing
under Section 9543.1. See Appellant’s Brief at 10-11; Appellant’s Rule
1925(b) Statement, 6/9/14, at 1 (stating the sole issue on appeal as “[w]as
the [PCRA c]ourt in error for dismissing [Appellant]’s [a]mended [p]etition
for [PCRA r]elief regarding after-discovered evidence and a request that said
evidence be made available for DNA testing[]”). Therefore, said claim is not
before us in the instant appeal.



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     Based on the foregoing, we conclude the PCRA court properly denied

Appellant’s motion for DNA testing under Section 9543.1. Accordingly, the

PCRA court’s March 19, 2014 order is affirmed.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/2/2014




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