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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                         :
MILTON HUMBERTO SAULA-RIVERA,            :         No. 2806 EDA 2016
                                         :
                         Appellant       :


                 Appeal from the PCRA Order, August 20, 2016,
                in the Court of Common Pleas of Monroe County
                Criminal Division at No. CP-45-CR-0001163-2007


BEFORE: BENDER, P.J.E., RANSOM, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED MAY 15, 2017

        Milton Humberto Saula-Rivera appeals, pro se, from the order of

August 20, 2016, dismissing his second PCRA1 petition. We affirm.

                    This case has as its genesis [appellant]’s
              repeated sexual assault of his eleven-year-old
              stepdaughter, S.H. After S.H. revealed the sexual
              abuse to her school guidance counselor, [appellant]
              was arrested and charged with Rape of a Child,
              Involuntary Deviate Sexual Intercourse, Unlawful
              Contact with a Minor, Aggravated Indecent Assault,
              Statutory Sexual Assault, Sexual Assault, Indecent
              Assault, Corruption of Minors, Indecent Exposure,
              and Endangering the Welfare of a Child. Thereafter,
              on January 10, 2008, following a jury trial,
              [appellant] was convicted of all charges.

                   On April 15, 2008, the trial court sentenced
              [appellant] to an aggregate term of not less than 20
              nor more than 40 years[’] incarceration. On July 21,


1
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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              2008, the lower court denied [a]ppellant’s Motion for
              Reconsideration of Sentence.

Commonwealth v. Saula-Rivera, No. 2479 EDA 2008, unpublished

memorandum at 1-2 (Pa.Super. filed December 15, 2009) (footnotes

omitted). Appellant filed a direct appeal, and on December 15, 2009, this

court affirmed the judgment of sentence.            Id.; Commonwealth v.

Saula-Rivera, 990 A.2d 53 (Pa.Super. 2009) (unpublished memorandum).

On May 28, 2010, our supreme court denied allowance of appeal, and on

October 18, 2010, the United States Supreme Court denied appellant’s

petition for writ of certiorari. Commonwealth v. Saula-Rivera, 996 A.2d

492 (Pa. 2010), cert. denied, 562 U.S. 985 (2010).

     On October 25, 2010, appellant filed a timely pro se PCRA petition.

Counsel was appointed and filed an amended petition on appellant’s behalf.

On April 8, 2011, following an evidentiary hearing, the PCRA court denied

appellant’s amended petition.     On December 1, 2011, this court affirmed,

and on June 5, 2012, our supreme court denied appellant’s petition for

allowance of appeal.      Commonwealth v. Saula-Rivera, 40 A.3d 180

(Pa.Super. 2011) (unpublished memorandum), appeal denied, 47 A.3d 847

(Pa. 2012).

     Appellant filed the instant petition, his second, on May 5, 2016.

Therein, appellant requested the PCRA court to order that physical evidence

in the Commonwealth’s possession be DNA tested pursuant to 42 Pa.C.S.A.

§ 9543.1. Appellant also claimed that his trial counsel was ineffective for,


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inter alia, failing to request that all available physical evidence be subjected

to DNA testing, failing to adequately investigate the facts of the case, failing

to retain a medical expert to contest the Commonwealth’s expert’s findings,

and failing to retain a child psychologist to testify regarding the child victim’s

testimony and recollection.       (PCRA court opinion, 8/9/16 at 3.)           On

August 9, 2016, following 20-day notice pursuant to Pa.R.Crim.P. 907 and

appellant’s response thereto, the petition was dismissed. This timely appeal

followed.   On August 26, 2016, appellant was ordered to file a concise

statement of errors complained of on appeal within 21 days pursuant to

Pa.R.A.P. 1925(b), and he timely complied on September 16, 2016. (Docket

#8.) On September 28, 2016, the PCRA court filed a Rule 1925(a) opinion,

relying on its opinion and order of August 9, 2016, dismissing appellant’s

petition. (Docket #9.)

            Initially, we note that, when examining the propriety
            of an order resolving a request for DNA testing, we
            employ the PCRA standard of review.                 See
            Commonwealth v. Conway, 14 A.3d 101 (Pa.Super.
            2011); Commonwealth v. Brooks, 875 A.2d 1141
            (Pa.Super. 2005). “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.” Commonwealth
            v. Nero, 58 A.3d 802, 805 (Pa.Super. 2012) (quoting
            Commonwealth v. Calhoun, 52 A.3d 281, 284
            (Pa.Super. 2012)). In the present matter, we are
            considering the PCRA court’s denial of a request for
            DNA testing. In this context, the filing requirements
            of 42 Pa.C.S. § 9545 have not yet been implicated.
            As we noted in Commonwealth v. Weeks, 831 A.2d
            1194, 1196 (Pa.Super. 2003), “Post conviction DNA
            testing does not directly create an exception to


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          § 9545’s one-year time bar.        See 42 Pa.C.S.A.
          § 9543.1. Rather it allows for a convicted individual to
          first obtain DNA testing which could then be used
          within a PCRA petition to establish new facts in order
          to satisfy the requirements of an exception under
          42 Pa.C.S.A. § 9545(b)(2).        See 42 Pa.C.S.A.
          § 9543.1(f)(1).”[Footnote 2] Accord Commonwealth
          v. Scarborough,         Pa.     , 64 A.3d 602, 609
          (2013) (“the litigation of a motion for DNA testing
          under Section 9543.1 is, in substance, a wholly
          separate proceeding from litigation of a PCRA
          petition.”); Commonwealth v. Williams, 35 A.3d
          44, 50 (Pa.Super. 2011) [, appeal denied, 50 A.3d
          121 (Pa. 2012)] ( “This Court has consistently held the
          one-year jurisdictional time bar of the PCRA does not
          apply to motions for DNA testing under Section
          9543.1.”).

                [Footnote 2] 42 Pa.C.S. § 9543.1(f),
                posttesting procedures, provides:

                (1)   After      the    DNA      testing
                      conducted under this section
                      has been completed, the
                      applicant may, pursuant to
                      section 9545(b)(2) (relating
                      to         jurisdiction       and
                      proceedings),        during    the
                      60-day period beginning on
                      the date on which the
                      applicant is notified of the
                      test results, petition to the
                      court for postconviction relief
                      pursuant          to       section
                      9543(a)(2)(vi) (relating to
                      eligibility for relief).

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

Furthermore, as in Gacobano,

          While the PCRA petition filed in this case
          com[m]ingled the DNA test request with other PCRA-
          based requests for relief, the two forms of relief


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              must be bifurcated and the DNA testing issue is to be
              addressed first. Williams, supra. Furthermore, in
              this appeal, Appellant only litigates his DNA issue.
              Thus, we do not apply the provisions of 42 Pa.C.S.
              § 9545 herein.

Id.2

       The PCRA court dismissed appellant’s petition on the basis that he filed

a PCRA petition instead of a motion for DNA testing. (PCRA court opinion,

8/9/16 at 4-5.)     See Williams, 35 A.3d at 50 (“An application for DNA

testing should be made in a motion, not in a PCRA petition. Though brought

under the general rubric of the PCRA, motions for post-conviction DNA

testing are clearly separate and distinct from claims brought pursuant to

other sections of the PCRA.” (citations and quotation marks omitted;

emphasis in original)).    The PCRA court concluded that appellant’s PCRA

petition was filed beyond the one-year jurisdictional time-bar and no

exception to the PCRA’s timeliness requirement applied.          (PCRA court

opinion, 8/9/16 at 5.)     See 42 Pa.C.S.A. § 9545(b)(1) (a PCRA petition,

including a second or subsequent petition, must be filed within one year of

the    date   the   underlying   judgment   becomes    final).   However,    in

Commonwealth v. Young, 873 A.2d 720 (Pa.Super. 2005), appeal

denied, 891 A.2d 733 (Pa. 2005), overruled on other grounds by




2
  In his Rule 1925(b) statement and in his brief on appeal, appellant did not
raise his trial counsel ineffectiveness claims contained in his second PCRA
petition.


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Commonwealth v. Wright, 14 A.3d 798 (Pa. 2011), this court observed

that,

             [W]hile filing a motion for DNA testing is preferred,
             where as here, a pro se defendant’s sole request in
             a PCRA petition is the equivalent of a section 9543.1
             motion, we find that the trial court and this Court
             may address it on its merits. To consider a request
             for DNA testing as untimely based solely on the
             nomenclature used would merely elevate form over
             substance.

Id. at 724 n.2.

        “Moreover, ‘the DNA testing statute, which was passed unanimously by

the Pennsylvania General Assembly, should be regarded as a remedial

statute and interpreted liberally in favor of the class of citizens who were

intended to directly benefit therefrom, namely, those wrongly convicted of a

crime.’”   In re Payne, 129 A.3d 546, 554 (Pa.Super. 2015) (en banc),

appeal denied, 145 A.3d 167 (Pa. 2016), quoting Commonwealth v.

Conway, 14 A.3d 101, 113 (Pa.Super. 2011), appeal denied, 29 A.3d 795

(Pa. 2011). Nevertheless, we agree with the PCRA court that even treating

appellant’s petition as a motion for DNA testing, he failed to meet the

threshold requirements under Section 9543.1.

        The DNA statute, Section 9543.1, provides, in pertinent 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


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                      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.

                (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


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                            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[.]

               (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[.]




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          (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



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                         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.A. § 9543.1.

            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. 42 Pa.C.S.A. § 9543.1(a)(2).

Williams, 35 A.3d at 49.

      Instantly, appellant did not specify the particular items in the

possession of the Commonwealth for which he sought DNA testing. (PCRA

court opinion, 8/9/16 at 6.)         In his brief, appellant alleges that, “The

Commonwealth maintained numerous items of clothing including the

victim[’]s panties, clothing, towels, and examined numerous pieces of

evidence, clothing, towels etc. used by the [a]ppellant. These select items

are   available   for   DNA    testing   and      will   prove   that   the   [a]ppellant

[Saula-]Rivera never had any sexual relations with the victim.” (Appellant’s



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brief at 9.) Appellant never alleged that this evidence was first discovered

after his trial in 2008. Furthermore, as the PCRA court observed, the verdict

in appellant’s case was rendered after January 1, 1995, and DNA testing

technology was available at that time. (PCRA court opinion, 8/9/16 at 6.)

Appellant never requested funds from the trial court to pay for DNA testing,

so the trial court never refused such a request. (Id.) As such, the PCRA

court properly concluded that appellant did not meet the threshold

requirements for DNA testing under Section 9543.1(a)(2).       Williams, 35

A.3d at 51, citing Commonwealth v. Perry, 959 A.2d 932, 938 (Pa.Super.

2008) (affirming denial of request for DNA testing because technology for

testing was available at time of applicant’s trial, verdict was entered after

January 1, 1995, and trial court did not deny funds for testing, despite

applicant’s indigence).

      In addition, appellant failed to state that he consented to provide

samples of bodily fluid for use in DNA testing and acknowledge that any data

obtained from DNA samples or test results may be used in the investigation

of other crimes. Also, while appellant asserted his actual innocence of the

offenses, he failed to present a prima facie case demonstrating that DNA

testing of specific evidence, assuming exculpatory results, would establish

his actual innocence. See Williams, 35 A.3d at 50 (“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



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innocence.”), citing Commonwealth v. Smith, 889 A.2d 582, 586

(Pa.Super. 2005), appeal denied, 905 A.2d 500 (Pa. 2006).

      Finally, to the extent that appellant argued trial counsel was ineffective

for failing to request DNA testing on items of the victim’s clothing, he did not

satisfy a statutory exception to the PCRA’s timeliness requirements.

Williams, 35 A.3d at 53 (explaining that, “Appellant’s request for DNA

testing did not constitute a direct exception to the time bar of the PCRA”),

citing Weeks, 831 A.2d at 1196.        It is well settled that claims of trial

counsel ineffectiveness do not operate as an independent exception to the

one-year jurisdictional time-bar of the PCRA.        See Commonwealth v.

Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000) (holding a claim of

ineffective assistance of counsel does not save an otherwise untimely

petition for review on the merits); see also Commonwealth v. Breakiron,

781 A.2d 94, 97 (Pa. 2001) (allegations of ineffective assistance of counsel

will not avoid the timeliness requirement of the PCRA).      Rather, appellant

first had to meet the standards for DNA testing, obtain the DNA testing, and

then offer the exculpatory results as an exception to the PCRA time limits

within 60 days after receiving the results. Williams, 35 A.3d at 53-54. For

these reasons, the PCRA court did not err in dismissing appellant’s petition

without a hearing.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/15/2017




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