J-S03014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

CLAUDIO SERGIO MANZANET,

                          Appellant                  No. 2852 EDA 2018


            Appeal from the Order Entered September 12, 2018
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0004828-1994

BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                        FILED APRIL 10, 2019

      Appellant, Claudio Sergio Manzanet, appeals pro se from the post-

conviction court’s September 12, 2018 order denying his petition for DNA

testing under 42 Pa.C.S. § 9543.1 of the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546. After review, we affirm.

      Our Court has previously summarized the facts of Appellant’s underlying

conviction, as follows:

            Appellant and co-defendant Jorge Fraticelli were convicted
      and sentenced to life imprisonment for their participation in a
      double-crossing drug deal gone bad[,] which ended in the death
      of Matthew DiMaggio. The details of their involvement are as
      follows. On December 12, 1994, Paul Wayland, a 26 year-old
      Australian national, arrived in Delaware after a cross-country trip
      from California to deliver a large quantity of marijuana. Once in
      Delaware, Wayland contacted Matthew DiMaggio, whom he later
      met at a local restaurant. Wayland proceeded to DiMaggio’s
      house, where DiMaggio removed most of the packages of
      marijuana from Wayland’s car and made numerous phone calls
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     arranging a meeting at the Sentinel Motel, Birmingham Township,
     Delaware County, in order to package and distribute the drugs.

           Later that evening, Wayland and DiMaggio drove to the
     Sentinel Motel, where they met Jeffrey Burger, a 26 year-old who
     DiMaggio had previously used for distribution of drugs. Before
     DiMaggio and Wayland had arrived at the motel room, however,
     Burger telephoned Appellant, whom he knew from drug dealing,
     to advise Appellant of the opportunity to steal marijuana from
     DiMaggio. Burger was also acquainted with Fraticelli, Appellant’s
     cousin and co-defendant. A few weeks earlier Burger sold Fraticelli
     a gun to give to Appellant in exchange for $20.00 and the promise
     of cocaine.

           When DiMaggio and Wayland arrived at the motel, they
     started to unpack the drugs and discovered that they needed a
     scale and baggies to properly measure and distribute the
     marijuana. Burger volunteered to drive to a garage in West
     Chester where he stored a scale owned by DiMaggio. While at the
     garage, he locked his keys in the car and called DiMaggio, who
     came and picked him up and drove Burger to get a second set of
     keys. After DiMaggio returned Burger to the garage, he retrieved
     the scale, and drove back to the motel. Burger, however,
     proceeded to Appellant’s apartment, where he met Appellant,
     Fraticelli, and Appellant’s girlfriend, Amy Sortino. While at the
     apartment, the three men concocted a scheme to rob the drugs
     from DiMaggio at the motel room. Fraticelli was in possession of
     the gun that he had previously purchased from Burger.

           A short time later, the group left Appellant’s apartment;
     Burger drove his car, followed by Sortino, who was driving
     Fraticelli’s car with Fraticelli and Appellant as passengers. Fraticelli
     was concerned about his identity, so the two cars stopped at a
     WaWa convenience store where Burger purchased a hat and
     pantyhose for Fraticelli.

           The four then proceeded to the Sentinel Motel. Burger re-
     entered the room where DiMaggio and Wayland were weighing
     pot. About ten minutes later there was a rattling at the door of
     the motel room. Burger looked out the window and saw Fraticelli
     wearing the knit cap that he had just purchased and [Appellant]
     in possession of the gun that he had provided him previously. He
     then opened the door and looked out as he saw them moving
     away. Burger reconsidered the situation and stepped back in the
     room and shut the door. The banging resumed and the door began


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     to open, then two shots were discharged through the door. At this
     point Wayland jumped into a closet in the motel room and Burger
     backed away from the door. The door was then kicked open
     completely and DiMaggio fell down to the floor behind it. From
     appearances, the door had struck DiMaggio in the face and
     possibly broke his nose. [Appellant] entered the room with a gun
     and told Burger to give him the bag [of marijuana]. A third shot
     was also discharged. As the assailants departed, it was suggested
     that the police were already on their way to the premises. Burger,
     Wayland, and DiMaggio quickly mustered their belongings, loaded
     them into the vehicles and departed the premises. Wayland took
     the wheel of DiMaggio’s truck as DiMaggio was unable to see.
     [Burger drove his own vehicle.]

           Wayland drove to a gas station and initiated a call to 9-1-1,
     but then decided to leave DiMaggio, who was lying on the ground,
     and hitch-hike to a nearby restaurant. Wayland’s frantic behavior
     at the restaurant prompted an employee to call the police, who
     had just responded to a call from a gas station attendant who
     reported DiMaggio’s presence. When the officers arrived at the
     gas station, they saw DiMaggio, with a bloodied face, staggering
     incoherently in circles near his truck. Despite resistance, DiMaggio
     was transported to the emergency room where it was later
     determined that he was blinded by a bullet to his left eye.
     Following brain surgery, DiMaggio died nine days later.

           When the officers arrived at the restaurant to question
     Wayland, he initially denied any knowledge of DiMaggio; however,
     an anonymous phone call to the pay phone at the restaurant
     allowed the officers to piece together the situation. The officers
     interviewed Wayland, who later admitted his relationship with
     DiMaggio, and explained the circumstances surrounding the
     shooting. Burger was subsequently connected to the shooting
     through motel registration and telephone records. Burger, who
     had been struck in the calf by a bullet during the episode at the
     motel, did not report the incident to police or seek medical
     treatment. Ultimately, however, with the assistance of counsel,
     Burger turned himself into the police and provided detailed
     statements regarding the Sentinel shooting, implicating himself
     and the others in the robbery and homicide. Burger later entered
     open guilty pleas to third degree murder, robbery, and criminal
     conspiracy. Wayland and Burger both testified for the
     Commonwealth at trial.



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            On April 19, 1995, Appellant filed a motion to sever his trial
      from that of his co-defendants, Fraticelli and Sortino, which was
      denied by Order dated July 5, 1995. The matter proceeded to a
      jury trial after which, on July 18, 1995, Appellant and co-
      defendant Fraticelli were found guilty of, inter alia, second[-]
      degree murder, robbery, possession of an instrument of crime,
      and criminal conspiracy; co-defendant Sortino was acquitted.
      Appellant was sentenced on September 26, 1995, to life
      imprisonment for second[-]degree murder, a consecutive term of
      three to six years imprisonment for criminal conspiracy, and a
      concurrent term of six to twenty-four months for carrying a
      firearm without a license.

Commonwealth        v.   Manzanet,    No.   03949    PHL   1995,   unpublished

memorandum at 1-5 (Pa. Super. filed Nov. 3, 1997) (footnote and citation to

record omitted).

      Appellant filed a timely appeal from his judgment of sentence and, after

this Court affirmed, see id., our Supreme Court denied his petition for

allowance of appeal.     Commonwealth v. Manzanet, 724 A.2d 349 (Pa.

1998). Over the ensuing years, Appellant filed at least two PCRA petitions,

both of which were denied by the PCRA court and affirmed on appeal. See

Commonwealth v. Manzanet, 876 A.2d 466 (Pa. Super. 2005) (unpublished

memorandum); Commonwealth v. Manzanet, 22 A.3d 1066 (Pa. Super.

2010) (unpublished memorandum), appeal denied, 21 A.3d 1191 (Pa. 2011).

      On June 25, 2018, Appellant filed an “Application/Request to Seek an

Order to Conduct Forensic D.N.A. Testing Pursuant to 42 Pa.C.S.[] § 9543.1”

(hereinafter, “Petition”).   Therein, Appellant requested DNA testing of a

bandana that had been entered into evidence by the Commonwealth at trial.

In explaining the import of the bandana, Appellant claimed that he “was



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implicated in the crime as the ‘shooter’ that wore a ‘[b]andana.’” Petition,

6/25/18, at 1. Appellant then baldly stated, without any discussion, that DNA

testing of the bandana “would establish [his] actual innocence.” Id. at 2.

      On August 2, 2018, the PCRA court issued an order directing the

Commonwealth to file a response to Appellant’s Petition, which it did on

August 29, 2018. On September 13, 2018, the PCRA court issued an order

denying the Petition.

      Appellant filed a timely, pro se notice of appeal and concurrently filed a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. On

October 23, 2018, the PCRA court issued a Rule 1925(a) opinion. Herein,

Appellant presents three questions for our review:

      A. Whether the “State of Emergency” initiated by the Department
         of Corrections on August 29, 2018 impede[d Appellant’s] ability
         to reply to the Commonwealth’s answer filed on August 29,
         2018[, and] violate[d] the 1st and 14th Amendments to the
         United States Constitution and Article One Section 9 of the
         Pennsylvania Constitution when the Commonwealth’s answer
         was returned to sender pursuant to the new security directives?

      B. Whether the [PCRA] court error [sic] in it’s [sic] assessment of
         the facts when it stated that [Appellant] “failed to present this
         court with a prima facie case” that the untested item if tested
         would show his actual innocence without first: 1) giving
         [Appellant] time to reply to the Commonwealth’s objections;
         and, 2) without holding an evidentiary hearing where the facts
         could be developed in support of his request?

      C. Whether the [PCRA] court’s assessment of the “timeliness”
         requirement pursuant to [section] 9543.1 go[es] afoul of the
         spirit and intent of the Legislature without first giving
         [Appellant]   an    opportunity  to     present   “extenuating
         circumstances” as a cause for the delay [in] violat[ion of] the
         14th Amendments [sic] Equal Protection and Due Process
         Clauses of the United States Constitution?

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Appellant’s Brief at viii (unnecessary capitalization and emphasis omitted).

      Preliminarily, we note that “[p]ost[-]conviction DNA testing falls under

the aegis of the [PCRA,] and thus, ‘[o]ur standard of review permits us to

consider only whether the PCRA court’s determination is supported by the

evidence of record and whether it is free from legal error.’” Commonwealth

v. Conway, 14 A.3d 101, 108 (Pa. Super. 2011) (footnote and citation

omitted) (quoting Commonwealth v. Brooks, 875 A.2d 1141, 1144 (Pa.

Super. 2005)).

      Section 9543.1 of the PCRA, which sets forth the requirements a

petitioner must meet to obtain DNA testing, states, in pertinent part, as

follows:

      (a) Motion.--

      (1) An individual convicted of a criminal offense in a court of this
      Commonwealth may apply by making a written motion to the
      sentencing court at any time 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 evidence was subject to the testing, but newer
      technology could provide substantially more accurate and
      substantially probative results, 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.


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                                      ***

     (4) DNA testing may be sought at any time if the 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.

                                      ***

     (6) The motion shall explain how, after review of the record of the
     applicant’s trial, there is a reasonable possibility if the applicant is
     under State supervision, or there is a reasonable probability if the
     applicant is not under State supervision, or after review of the
     record of the applicant’s guilty plea there is a reasonable
     probability, that the testing would produce exculpatory evidence
     that would establish:

        (i) the applicant’s actual innocence of the offense for which
        the applicant was convicted;

                                      ***

     (b) Notice to the Commonwealth.--

        (1) Upon receipt of a motion under subsection (a), the court
        shall notify the Commonwealth and shall afford the
        Commonwealth an opportunity to respond to the motion.

     (c) Requirements.--In any motion under subsection (a), under
     penalty of perjury, the applicant shall:

                                      ***

     (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.--



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         (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 the record of
         the applicant’s trial, the court determines that there is no
         reasonable possibility for an applicant under State
         supervision, or there is no reasonable probability for an
         applicant not under State supervision, or after review of the
         record of the applicant’s guilty plea, the court determines
         that there is no reasonable probability, 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;

42 Pa.C.S. § 9543.1.

      In the case sub judice, Appellant first argues that his constitutional

rights were violated when the PCRA court denied his Petition without providing

him with an opportunity to reply to the response filed by the Commonwealth

on August 29, 2018. Appellant claims that the prison system was in a ‘State

of Emergency’ at the time the Commonwealth filed its response and,

therefore, Appellant did not receive the response, nor have time to reply to it,

before the court issued the order denying his Petition.


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      In support of his argument that he had the right to file a response,

Appellant relies on Pennsylvania Rules of Appellate Procedure 2113 (Reply

Brief) and 2185 (Service and Filing of Briefs), which clearly are not applicable

to the PCRA proceedings below. See Appellant’s Brief at 1. Moreover, section

9543.1(b) requires that the court notify the Commonwealth when a petition

for DNA testing is filed, and “afford the Commonwealth an opportunity to

respond.” 42 Pa.C.S. § 9543.1(b)(1). Nothing in the statute compels the

court to then allow the petitioner to respond to the Commonwealth’s response.

Indeed, the statutory language makes clear that it is the petitioner’s burden

to plead, in the petition, the facts demonstrating the necessity of the

requested testing. Accordingly, Appellant’s first issue is meritless.

      In Appellant’s next two issues, he argues that the PCRA court erred in

concluding that he failed to present a prima facie case that DNA testing of the

bandana would demonstrate his actual innocence, and that he did not timely

file the Petition. Appellant insists that the court should not have reached these

decisions without first holding a hearing, or providing Appellant the

opportunity to reply to the Commonwealth’s response. As discussed, supra,

nothing in the statute required the court to allow Appellant to reply to the

Commonwealth’s response.        Moreover, for the reasons stated infra, we

conclude that Appellant’s Petition did not meet the requirements of section

9543.1 and, therefore, the court did not err in denying it without a hearing.

      First, we agree with the PCRA court that “Appellant failed to present …

a prima facie case that the DNA testing of the bandana would result in

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evidence, which if exculpatory, would establish his actual innocence.” See

PCRA Court Opinion (PCO), 10/23/18, at 8. Our Court has explained that

      the    interplay   between      [sections   9543.1(d)(2)      and
      9543.1(d)(2)(i)] requires that DNA testing “shall not” be ordered
      by the PCRA court if there is “no reasonable possibility that the
      testing would produce exculpatory evidence” that “would establish
      … actual innocence of the offense for which the applicant was
      convicted.”

      Section 9543.1 frequently incorporates, yet fails to define, the
      term “actual innocence.” In Conway, 14 A.3d at 109, this Court
      applied a definition of ‘actual innocence’ taken from “the United
      States Supreme Court in its Opinion in Schlup v. Delo, 513 U.S.
      298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), namely, that
      the newly discovered [DNA] evidence must make it ‘more likely
      than not that no reasonable juror would have found him guilty
      beyond a reasonable doubt.’”

In re Payne, 129 A.3d 546, 556 (Pa. Super. 2015).

      Here, as stated supra, in Appellant’s Petition, he offered no explanation

for how or why DNA testing of the bandana would prove his actual innocence.

Instead, he merely claimed that the bandana was worn by the shooter and,

thus, testing of the bandana would prove his actual innocence.       Appellant

elaborates somewhat in his brief to this Court, essentially insisting that the

absence of his DNA on the bandana would prove that he was not the shooter.

      Appellant’s argument fails for two reasons. First, even if the lack of

Appellant’s DNA on the bandana would prove he was not the shooter in this

case, that fact does not establish his actual innocence of the crimes for which

he was convicted.    The Commonwealth presented evidence that Appellant

engaged in a conspiracy with Fraticelli.     “Once there is evidence of the

presence of a conspiracy, conspirators are liable for acts of co-conspirators

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committed in furtherance of the conspiracy.” Commonwealth v. Lambert,

795 A.2d 1010, 1016 (Pa. Super. 2002). Therefore, even if Fraticelli was the

shooter wearing the bandana, Appellant would still be criminally liable for

Fraticelli’s conduct.

      Second, Appellant has offered nothing to support his ‘actual innocence’

claim other than the potential absence of his DNA from the bandana. “[T]his

Court has routinely held that the absence of the accused’s DNA, by itself,

cannot satisfy [s]ection 9543.1(d)(2)(i)’s ‘actual innocence’ standard.” In re

Payne, 129 A.3d at 558 (emphasis in original). Consequently, Appellant has

failed to demonstrate a prima facie case that the absence of his DNA on the

bandana would prove his actual innocence.

      Alternatively, we would also agree with the PCRA court that Appellant

failed to establish that his Petition was “made in a timely manner….”       42

Pa.C.S. § 9543.1(a)(4).      In reaching this conclusion, the PCRA court

explained:

            Appellant has known of the existence of the bandana, the
      item that he was seeking DNA testing on, since his arrest, which
      occurred in 1994. Appellant knew about the bandana’s existence
      during this [t]rial and his conviction, which occurred in 1995 and
      Appellant failed to raise the issue of the bandana in any and every
      pleading filed since his conviction, which occurred on July 18,
      1995[,] and failed to raise it since 2002 when the statute was
      enacted and effective.

PCO at 10. We agree with the trial court’s timeliness analysis.

      We are also unconvinced by Appellant’s claim on appeal that his petition

was filed “in a timely manner base[d] on the development of new DNA testing

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techniques and its acceptance and application by the Pennsylvania State Police

and by the Philadelphia Police Crime Lab.” Appellant’s Brief at 21. Appellant

fails to explain why these new DNA-testing techniques were required, or how

the DNA testing available in 1995 was inadequate.       Additionally, Appellant

admits that the “STR” and “Y-STR” testing “was adopted by the Pennsylvania

State Police in 2007 and by the Philadelphia Police Crime Lab in 2010[,]” id.

at 20-21, yet he does not discuss why he waited until 2018 to file his Petition.

Thus, Appellant has not demonstrated that his Petition was timely filed.

      For all of these reasons, we conclude that the PCRA court’s denial of

Appellant’s Petition is supported by the record, and we discern no legal error

in that decision.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/19




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