J-S93038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RICHARD MERCALDO, JR.,

                            Appellant                No. 1054 EDA 2016


                   Appeal from the PCRA Order March 4, 2016
               in the Court of Common Pleas of Delaware County
               Criminal Division at No.: CP-23-CR-0001689-1999


BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 06, 2017

        Appellant, Richard Mercaldo, Jr., appeals from the 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 We affirm.

        The PCRA court aptly set forth the relevant facts and procedural

history of this case as follows:

                    Appellant’s   mother    financially supported
              Appellant until she died in November of 1994. After
              Appellant’s mother’s death, Appellant’s father
              refused to give Appellant any additional money and
              told Appellant that he ([F]ather) was dating again.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Although Appellant titled his filing a petition rather than a motion, we will
refer to the filing as a motion throughout this memorandum, for consistency
with the applicable statutory provision. See 42 Pa.C.S.A. § 9543.1(a)(1).
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           On December 28, 1995, at approximately 11:00
           p.m., Appellant and his friend, Michael Kent, went to
           Father’s house, and Appellant told Father that he
           was going to move in with Father. Father indicated
           that he would not permit the move, and following a
           heated   argument,     Appellant    stabbed   Father.
           Appellant then took forty dollars ($40.00) from
           Father and, with Kent in the car, put the knife in a
           dumpster behind the local YMCA.

                 On December 29, 1995, Appellant returned to
           Father’s house and notified the police that Father
           was dead. Subsequently, Kent told the police that
           Appellant murdered his father, Appellant was
           arrested, and Appellant was charged with [the
           murder and] various other crimes.

           Following a jury trial, Appellant was convicted of first
     degree murder and possession of an instrument of a crime. On
     January 21, 2000, Appellant was sentenced to life imprisonment.
     After filing a direct appeal, his judgment of sentence was
     affirmed on June 14, 2001. Appellant did not seek review of that
     decision with the Pennsylvania Supreme Court.

            According to the record, Appellant filed his first [PCRA]
     petition on or about July 18, 2001. The petition was denied on
     December 30, 2004. On March 12, 2014, the Appellant filed a
     pro se “[Motion] for Post Conviction DNA Testing.” This court
     appointed counsel who filed an “Amended Post Conviction Relief
     Act Petition” on January 29, 2015 and on November 2, 2015
     counsel filed a “Motion [Requesting] DNA Testing.” Following a
     hearing on these motions, this court ultimately concluded that
     the Appellant was not entitled to relief and denied his motions on
     March 4, 2016. It is from that order that he now [timely]
     appeals. While the court did not request a concise statement
     pursuant to Pa.R.A.P., Rule 1925, Appellant filed one on June 7,
     2016. . . .




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(PCRA Court Opinion, 7/12/16, at 1-2) (footnote and record citation

omitted).2

       Appellant raises the following question for our review: “Did the [PCRA]

court err in denying [his motion] requesting STR DNA testing pursuant to 42

Pa.C.S.A. § 9543.1 as to certain items of evidence still in possession of the

Delaware County District Attorney’s Office?”        (Appellant’s Brief, at 4)

(unnecessary capitalization omitted; citation formatting provided). 3      This

issue does not merit relief.

             Initially, we note that, when examining the propriety of an
       order resolving a request for DNA testing, we employ the PCRA
       standard of review. On appeal from the denial of PCRA relief,
       our standard of review calls for us to determine whether the
       ruling of the PCRA court is supported by the record and free of
       legal error. In the present matter, we are considering the PCRA
       court’s denial of a request for DNA testing. In this context, the
       [timeliness] filing requirements of 42 Pa.C.S.[A.] § 9545 have
       not yet been implicated.

Commonwealth v. Gacobano, 65 A.3d 416, 419 (Pa. Super. 2013)

(citations omitted).

             Generally, the trial court’s application of a statute is a
       question of law that compels plenary review to determine
____________________________________________


2
  The PCRA court entered an opinion on July 12, 2016.          See Pa.R.A.P.
1925(a).
3
   “‘STR’ stands for short tandem repeat, and involves viewing a sequence of
DNA that is repeated exactly one repeat sequence after another in tandem,
like the cars of a train.” Commonwealth v. Jones, 811 A.2d 1057, 1061
n.4 (Pa. Super. 2002), appeal denied, 832 A.2d 435 (Pa. 2003) (record
citation omitted).




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      whether the court committed an error of law. When reviewing
      an order denying a motion for post-conviction DNA testing, this
      Court determines whether the movant satisfied the statutory
      requirements listed in Section 9543.1. We can affirm the court’s
      decision if there is any basis to support it, even if we rely on
      different grounds to affirm.

Commonwealth v. Walsh, 125 A.3d 1248, 1252–53 (Pa. Super. 2015)

(citation omitted).

      Instantly, Appellant petitioned the PCRA court for DNA testing after he

watched a television program about DNA evidence on CSPAN. (See PCRA

Motion, 3/12/14, at unnumbered page 1 ¶ 3). He requested testing of “the

victim’s coat, hat, shirt, undershirt, hat [sic], tie, fingernail clippings, or

other biological evidence,” and averred that his Father’s assailant may have

left DNA evidence during the “obvious attack . . . and scuffle[.]” (Id. at ¶¶

5-6). Counsel then requested STR DNA testing of additional items, including

the victim’s glasses and keys, and a bloodstained piece of rug and

handkerchief. (See Amended PCRA Motion, 1/29/15, at unnumbered pages

1-2; Motion Requesting DNA Testing, 11/02/15, at unnumbered pages 2-3).

In his appellate brief, Appellant acknowledges that DNA testing was available

at the time of his trial, but argues that the specific form of testing that he

seeks (STR) was not available at that time. (See Appellant’s Brief, at 8).

      The applicable statutory provisions state, 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


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          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.

          (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 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.

                              *    *    *

     (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 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; and . .
          .
                                *    *    *


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          (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.—

          (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 that the
          testing would produce exculpatory evidence that:




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

42 Pa.C.S.A. § 9543.1(a), (c), (d).

      Thus, under Section 9543.1(a):

                  The statute sets forth several threshold
            requirements to obtain DNA testing: (1) the evidence
            specified must be available for testing on the date of
            the motion; (2) if the evidence was discovered
            prior to the applicant’s conviction, it was not
            already DNA tested because (a) technology for
            testing did not exist at the time of the
            applicant’s trial; (b) the applicant’s counsel did
            not request testing in a case that went to
            verdict before January 1, 1995; or (c) 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.

            Additionally:

                  The text of the statute set forth in Section
            9543.1(c)(3) and reinforced in Section 9543.1(d)(2)
            requires the applicant to demonstrate that favorable
            results of the requested DNA testing would establish
            the applicant’s actual innocence of the crime of
            conviction. The statutory standard to obtain testing
            requires more than conjecture or speculation; it
            demands a prima facie case that the DNA results, if
            exculpatory, would establish actual innocence.

             Significantly, in DNA testing cases, an absence of evidence
      is not evidence of absence. . . .

            Further, Section 9543.1(d) requires the petitioner to make
      a timely request for DNA testing. . . .

Walsh, supra at 1254–55 (case citations, quotation marks, and original

emphasis omitted; emphasis added).

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      Here, the evidence Appellant seeks to have DNA tested was discovered

before his conviction.    See 42 Pa.C.S.A. § 9543.1(a)(2).      The PCRA court

determined that Appellant is not entitled to DNA testing of these items

because he failed to meet the threshold requirements set forth in Section

9543.1(a)(2).    (See PCRA Ct. Op., at 5).           Upon review, we agree.

Specifically, the technology for DNA testing existed at time of Appellant’s

trial; the jury reached its verdict on December 10, 1999 (nearly five years

after January 1, 1995); and the trial court had not refused a request for

funds for testing.       See 42 Pa.C.S.A. § 9543.1(a)(2).         Consequently,

Appellant has not met his threshold burden under Section 9543.1(a)(2).

See Walsh, supra at 1257 (concluding appellant unable to satisfy threshold

requirements necessary to obtain post-conviction DNA testing of evidence

discovered and available before trial where DNA testing technology was

available at time of trial, jury reached its verdict after January 1, 1995, and

court did not refuse request for funds for DNA testing).

      With respect to Appellant’s assertion that he is entitled to DNA testing

because the specific form of testing that he requests (STR) was unavailable

at the time of trial, (see Appellant’s Brief, at 8), this claim is waived. In his

appellate brief, Appellant does not explain the difference between STR

testing and the DNA testing available at the time of his trial, or discuss why

this case requires this specific type of testing, nor does he cite any

controlling legal authority on this issue. (See id. at 8-9). Thus, Appellant’s




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argument is waived for his failure to develop it properly.      See Pa.R.A.P.

2119(a)-(c).

       Moreover, regarding advancements in DNA testing technology, our

Supreme Court has stated: “[t]he statute recognized that the testing

available at the time of its enactment was of sufficient reliability that

defendants could seek DNA testing, in cases where good faith claims of

innocence were timely raised.”           Commonwealth v. Edmiston, 65 A.3d

339, 358 (Pa. 2013), cert. denied, 134 S.Ct. 639 (2013). Advancements in

technology do not explain why Appellant did not seek DNA testing at the

time of trial using the technology available to him, or, at the very least,

request testing in 2007, when he claims STR testing was adopted in

Pennsylvania.      See id.; (see also Appellant’s Brief, at 8-9).   Therefore,

Appellant’s argument would not alter our determination that he failed to

meet the threshold requirements of Section 9543.1(a)(2).4

       In sum, we conclude the PCRA court properly denied Appellant’s

motion for post-conviction DNA testing.          See Gacobano, supra at 419.

Accordingly, we affirm the order of the PCRA court.

____________________________________________


4
  We also observe the PCRA court’s finding that, even if Appellant had
satisfied the threshold requirements, he failed to establish a prima facie case
of actual innocence, where the evidence included testimony from an
eyewitness to the murder and from a friend to whom Appellant had
confessed, and there was no evidence that the victim struggled with his
assailant.    (See PCRA Ct. Op., at 5-6); see also 42 Pa.C.S.A. §
9543.1(c)(3)(ii)(A); see id. at (d)(2)(i).



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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/6/2017




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