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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                    v.                  :
                                        :
DAVID PEPE,                             :         No. 3626 EDA 2017
                                        :
                         Appellant      :


              Appeal from the PCRA Order, September 25, 2017,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0910301-1998


BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED OCTOBER 23, 2018

        David Pepe, a/k/a/ David Wilson and/or David Pepe Wilson, appeals

pro se from the September 25, 2017 order denying his serial petition filed

pursuant to the Post Conviction Relief Act (“PCRA”)1 as untimely.        After

careful review, we affirm.

        The lengthy factual history of this case was summarized by a prior

panel of this court on direct appeal and need not be reiterated here. See

Commonwealth v. Pepe, 778 A.2d 1246 (Pa.Super. 2001) (unpublished

memorandum at 1-3), appeal denied, 790 A.2d 1015 (Pa. 2001). In sum,

a jury found appellant guilty of rape, involuntary deviate sexual intercourse,

robbery, aggravated assault, kidnapping, possessing instruments of crime,




1   42 Pa.C.S.A. §§ 9541-9546.
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and terroristic threats2 after he repeatedly raped a woman and kept her

drugged and bound in a coffin-like box over the course of a three-day

period.   On April 15, 1999, the trial court sentenced appellant to an

aggregate term of 55 to 110 years’ imprisonment.            On May 15, 2001, a

panel of this court affirmed appellant’s judgment of sentence, and our

supreme court denied allowance of appeal on November 8, 2001. Id. On

November    1,   2002,   appellant   filed   a   pro   se   PCRA     petition   and

Paul M. George, Esq. (“PCRA counsel”), was appointed to represent him. On

July 28, 2003, PCRA counsel filed an amended PCRA petition on appellant’s

behalf, which was ultimately dismissed by the PCRA court on April 29, 2004.

On May 25, 2005, a panel of this court affirmed the dismissal of appellant’s

petition, and our supreme court denied allowance of appeal on October 6,

2005. Commonwealth v. Wilson, 880 A.2d 13 (Pa.Super. 2005), appeal

denied, 887 A.2d 1241 (Pa. 2005).

     On January 27, 2006, appellant filed a second pro se PCRA petition.

On April 26, 2006, appellant         filed a     separate   pro se    motion    for

post-conviction DNA testing, pursuant to 42 Pa.C.S.A. § 9543.1.                 On

September 22, 2006, the PCRA court dismissed appellant’s petition as

untimely. Appellant’s motion for DNA testing was subsequently dismissed by

the PCRA court on January 22, 2008. Appellant only appealed the dismissal




2  18 Pa.C.S.A. §§ 3121, 3123, 3701, 2702, 2901, 905, and 2706,
respectively.


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of his PCRA petition, and on July 21, 2008, a panel of this court affirmed the

PCRA court’s order and noted that the issue of DNA testing was not before

it; our supreme court denied allowance of appeal on February 4, 2009.

Commonwealth v. Wilson, 959 A.2d 976 (Pa.Super. 2008), appeal

denied, 964 A.2d 895 (Pa. 2009).           Thereafter, on January 29, 2010,

appellant filed an additional pro se motion for post-conviction DNA testing,

pursuant to Section 9543.1. The PCRA court denied appellant’s motion on

February 5, 2010, and a panel of this court affirmed the denial of relief on

November 9, 2010; our supreme court denied allowance of appeal on

July 11, 2011.    Commonwealth v. Wilson, 22 A.3d 1065 (Pa.Super.

2010), appeal denied, 24 A.3d 363 (Pa. 2011).

      Appellant filed the instant pro se petition, styled as an “Application for

Relief,” on August 17, 2016.    On June 29, 2017, the PCRA court provided

appellant with notice of its intention to dismiss his petition without a

hearing, pursuant to Rule 907. Appellant filed multiple pro se responses to

the PCRA court’s Rule 907 notice on July 26, August 18, August 30,

September 1, and September 12, 2017.           Thereafter, on September 25,

2017, the PCRA court dismissed appellant’s petition as untimely. This timely

appeal followed on October 20, 2017.         Although not ordered to do so,

appellant filed a concise statement of errors complained of on appeal, in

accordance with Pa.R.A.P. 1925(b), that same day. On January 2, 2018, the

PCRA court filed its Rule 1925(a) opinion.



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      Before we address the merits of appellant’s arguments, we must first

consider the timeliness of appellant’s PCRA petition because it implicates the

jurisdiction of the PCRA court to consider it. Commonwealth v. Davis, 86

A.3d 883, 887 (Pa.Super. 2014) (citation omitted). It is well settled that all

PCRA petitions, including second and subsequent petitions, must be filed

within one year of when a defendant’s judgment of sentence becomes final.

See 42 Pa.C.S.A. § 9545(b)(1).        Here, appellant’s judgment of sentence

became final on February 6, 2002, 90 days after the Supreme Court of

Pennsylvania denied allowance of appeal and the deadline for filing a petition

for writ of certiorari in the Supreme Court of the United States expired.

See 42 Pa.C.S.A. § 9545(b)(3) (providing “a judgment 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[]”).       Accordingly, appellant had

until February 6, 2003, to file a timely PCRA petition.       See 42 Pa.C.S.A.

§ 9545(b)(1). Appellant’s instant petition, filed August 17, 2016, is patently

untimely, and the PCRA court lacked jurisdiction to review it, unless

appellant alleged and proved one of the statutory exceptions to the time-bar

set forth in Section 9545(b)(1).

      To invoke an exception under Section 9545(b)(1), a petitioner must

allege and prove:

            (i)     the failure to raise the claim previously was the
                    result of interference by government officials


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                    with the presentation of the claim in violation
                    of   the   Constitution   or   laws   of   this
                    Commonwealth or the Constitution or laws of
                    the United States;

            (ii)    the facts upon which the claim is predicated
                    were unknown to the petitioner and could not
                    have been ascertained by the exercise of due
                    diligence; or

            (iii)   the right asserted is a constitutional right that
                    was recognized by the Supreme Court of the
                    United States or the Supreme Court of
                    Pennsylvania after the time period provided in
                    this section and has been held by that court to
                    apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      Instantly, the record reveals that appellant failed to explicitly plead or

prove any of the statutory exceptions to the PCRA time-bar required to

invoke and preserve an otherwise timely petition.          Accordingly, we lack

jurisdiction to review the merits of appellant’s claims. See Commonwealth

v. Callahan, 101 A.3d 118, 123 (Pa.Super. 2014) (holding, if a PCRA

petition is untimely on its face, or fails to meet one of the three statutory

exceptions to the time-bar, we lack jurisdiction to review it).

      Appellant, however, alleges his innocence and contends that his

instant petition qualifies as a motion for post-conviction DNA testing

pursuant to Section 9543.1.        (See appellant’s brief at 1; pro se PCRA

petition, 8/17/16 at 1.)

            Motions for post-conviction DNA tests, while
            considered post-conviction petitions under the PCRA,
            are clearly separate and distinct from claims


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           pursuant to other sections of the PCRA.    It is
           well-recognized that the one-year time bar
           proscribed under the PCRA does not apply to
           petitions for post-conviction DNA testing under
           Section 9543.1.

Commonwealth v. Perry, 959 A.2d 932, 938 (Pa.Super. 2008) (citations

and internal quotation marks omitted).

     Section 9543.1 provides, in relevant part, as follows:

           (a)    Motion.--

                  (1)       An individual convicted of a criminal
                            offense     in   a   court    of   this
                            Commonwealth and serving a term
                            of    imprisonment       or    awaiting
                            execution because of a sentence of
                            death may apply by making a
                            written motion to the sentencing
                            court for the performance of forensic
                            DNA testing on specific evidence
                            that is related to the investigation or
                            prosecution that resulted in the
                            judgment of conviction.

           ....

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

                  (1)(i)       specify   the   evidence   to   be
                               tested;

                     (ii)      state    that    the    applicant
                               consents to provide samples of
                               bodily fluid for use in the DNA
                               testing; and

                     (iii)     acknowledge that the applicant
                               understands that, if the motion
                               is granted, any data obtained


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                               from any DNA samples or test
                               results may be entered into law
                               enforcement databases, may be
                               used in the investigation of
                               other crimes and may be used
                               as    evidence     against  the
                               applicant in other cases.

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

            ....

                   (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[.]

42 Pa.C.S.A. § 9543.1(a), (c).

     To the extent appellant’s petition is construed as a motion for

post-conviction DNA testing, our review of the record reveals that appellant’s

serial request is duplicative of those raised in his three prior motions for

post-conviction DNA testing. As a panel of this court previously explained,

appellant failed to establish a prima facie case for DNA testing:


                                         -7-
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          The claim advanced by [a]ppellant here is the same
          claim advanced in his previous motions for
          post-conviction DNA testing. Appellant claims that
          the victim at some point during the relevant period
          had sex with two other men and that the victim and
          those men conspired to rob him. This claim was fully
          litigated at [a]ppellant’s first PCRA hearing and
          rejected by the PCRA court. This Court upheld the
          denial of the PCRA petition on appeal. Thus, in the
          absence of any new evidence, which [a]ppellant has
          not furnished, this claim is estopped under the law of
          the case doctrine. Commonwealth v. King, 999
          A.2d 598, 599 (Pa.Super. 2010) (explaining that 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.”).

          Even if this were not the case, [a]ppellant’s claim
          suffers from the same deficiencies as in his earlier
          motions for post-conviction DNA testing. At trial,
          [a]ppellant admitted that he had unprotected anal
          sex with the victim and did not dispute that his
          seminal fluid would be present on the victim and her
          clothes. ([Notes of testimony,] 4/13/99 at
          21-24).[Footnote]     Thus, [a]ppellant’s identity or
          participation in the crime was not an issue at trial.
          Appellant’s motion for post-conviction DNA testing
          does not meet the requirement of 42 Pa.C.S.A.
          § 9543.1(c)(3)(1).       See Commonwealth v.
          Williams, 909 A.2d 383, 386 (Pa.Super. 2006) (“We
          find that the PCRA court properly dismissed Williams’
          motion for DNA testing as Williams’ identity was not
          at issue at trial--as mentioned, the very theory of
          the defense, and the sum and substance of Williams’
          own testimony, was that the sexual intercourse had
          occurred and was consensual. Therefore, because
          Williams’ participation was not at issue, the results of
          the DNA testing would not establish his innocence.”).




                                   -8-
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                  [Footnote] Appellant now disputes both
                  of these contentions but he is bound by
                  his worn trial testimony.

Commonwealth v. Wilson, 22 A.3d 1065 (Pa.Super. 2010) (unpublished

memorandum at 7-8), appeal denied, 24 A.3d 363 (Pa. 2011).

      As recognized by the PCRA court, like his prior unsuccessful motions,

appellant has again failed to present any new evidence establishing a

prima facie case for DNA testing. (See PCRA court opinion, 1/2/18 at 5.)

Accordingly, for all the forgoing reasons, we discern no error on the part of

the PCRA court in dismissing appellant’s serial untimely petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 10/23/18




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