J-S19034-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                :      IN THE SUPERIOR COURT OF
                                             :            PENNSYLVANIA
                    Appellee                 :
                                             :
              v.                             :
                                             :
EDWARD L. DAVIS,                             :
                                             :
                    Appellant                :           No. 2547 EDA 2014

             Appeal from the PCRA Order entered on July 31, 2014
             in the Court of Common Pleas of Philadelphia County,
                 Criminal Division, No. CP-51-CR-0524311-1987

BEFORE: STABILE, JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                             FILED APRIL 09, 2015

        Edward L. Davis (“Davis”) appeals from the Order dismissing his first

Petition filed pursuant to the Post Conviction Relief Act (“PCRA”),1 and

denying his Motion for Post-Conviction DNA Testing (hereinafter “the DNA

Motion”). We affirm.

        The PCRA court set forth the relevant procedural history underlying

this appeal as follows:

              In October 1988, following [a non-jury trial, the trial court]
        …, found [Davis] guilty of murder in the first-degree, possession
        of [an] instrument of crime, two counts of kidnapping, and four
        counts of simple assault …. [The murder victim was the mother
        of two of Davis’s children. Seven weeks before the murder,
        Davis had kidnapped two of the victim’s acquaintances at
        gunpoint and forced them to tell him where the victim was
        located.   When Davis was released on bail concerning the
        kidnapping charges, he murdered the victim in her home, while
        her children were present.] Davis was subsequently sentenced
        to the mandatory term of life imprisonment. Davis appealed to

1
    See 42 Pa.C.S.A. §§ 9541-9546.
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     the Superior Court of Pennsylvania and the Court affirmed his
     convictions and judgment of sentence on June 13, 1990. [See
     Commonwealth v. Davis, 576 A.2d 1005 (Pa. Super. 1990).]
     The Supreme Court of Pennsylvania granted allocat[u]r review
     and, on January 7, 1993, the Court vacated the judgment of
     sentence and remanded the case for a new trial.               [See
     Commonwealth v. Davis, 615 A.2d 732 (Pa. 1992) (reversing
     based on the Supreme Court’s decision in Commonwealth v.
     Ludwig, 594 A.2d 281 (Pa. 1991) (holding that trial testimony
     given by a child witness via closed circuit television violates an
     accused’s right, under the Pennsylvania Constitution, to “face to
     face” confrontation)).2]

            In May 1997, … Davis elected to exercise his right to a jury
     trial and pled not guilty to all charges …. On May 12, 1997, the
     jury found Davis guilty of murder in the first[-]degree,
     possession of [an] instrument of crime, kidnapping, and multiple
     counts of simple assault. At the conclusion of the trial, the [trial
     court] sentenced Davis to the mandatory term of life
     imprisonment on the homicide charge and 6-10 years of
     imprisonment on the kidnapping charge, to run consecutively.
     He received no further penalty on the remaining charges. Davis
     filed post-sentence [M]otions, which were denied by operation of
     law. … [T]he Superior Court of Pennsylvania … affirmed his
     convictions and judgment of sentence on May 11, 1998. [See
     Commonwealth v. Davis, 718 A.2d 855 (Pa. Super. 1998)
     (unpublished memorandum).]

            On December 9, 2013, Davis filed the instant PCRA
     [P]etition. In response, the Commonwealth filed a Motion to
     Dismiss on March 10, 2014. Davis filed a Response to the
     Commonwealth’s [Motion] on March 18, 2014. … On June 6,
     2014, following a review of the record, Davis’[s] [P]etition, and
     the Commonwealth’s submission, th[e PCRA c]ourt sent Davis a
     [] Notice, pursuant to Pa.R.Crim.P. 907(1)[, stating the court’s
     intention to dismiss the PCRA Petition as being untimely filed].
     Davis filed a response to the 907 Notice on June 25, 2014.
     Davis also filed [the DNA] Motion … on July 9, 2014[, pursuant
     to 42 Pa.C.S.A. § 9543.1 (hereinafter “the PCRA DNA statute”).
     Therein, Davis asserted that he was innocent of the murder,
     pointing out that the medical examiner, Paul Hoyer, M.D. (“Dr.

2
  At Davis’s original trial, the court had permitted the minor child of the
victim to testify against Davis, her father, via two-way closed circuit
television.

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      Hoyer”), had discovered semen on the victim’s body during the
      autopsy, which the parties had stipulated at trial did not belong
      to Davis. Davis argued in the DNA Motion that DNA testing of
      certain males with whom the victim purportedly had a romantic
      relationship might reveal the identity of the perpetrator]. On
      July 31, 2014 th[e PCRA c]ourt dismissed the PCRA [P]etition
      and denied the [DNA M]otion.

PCRA Court Opinion, 7/31/14, at 1-2 (unnumbered, some capitalization

omitted, footnote added). Davis timely filed a Notice of Appeal from the July

31, 2014 Order.

      On appeal, Davis presents the following issues for our review:

      1. Whether the Statutory Construction Act makes it facially
         unconstitutional to apply the PCRA’s timeliness provisions
         to a claim that a constitutional violation led to the
         conviction of an innocent person?

      2. Whether the PCRA court abused its discretion when it
         denied the [DNA M]otion []?

      3. Whether the conviction was obtained in violation of the
         right to effective assistance of counsel guaranteed by the
         Sixth Amendment to the Constitution of the United
         States?

      4. Whether the conviction was obtained in violation of the
         Fourteenth Amendment right to a fair trial untainted by
         false testimony elicited from a member of the prosecution
         team?

Brief for Appellant at 2 (issues numbered, capitalization omitted).

      As a preliminary matter, we observe that Davis has filed with this

Court a Motion to Strike the Commonwealth’s appellate brief as being

untimely (hereinafter “Motion to Strike Brief”).       Davis points out that

although this Court gave the Commonwealth one extension of time in which

to file its brief, the Commonwealth filed the brief twenty days after the due

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date. Motion to Strike Brief, 2/19/15, at 1-2. We deny Davis’s Motion to

Strike Brief, as he was not prejudiced by the Commonwealth’s late filing of

its brief.

       We begin by noting our well-settled standard of review: “In reviewing

the [dismissal] of PCRA relief, we examine whether the PCRA court’s

determination is supported by the record and free of legal error.”

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation

omitted).

       Under the PCRA, any PCRA petition, “including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes

final[.]”    42 Pa.C.S.A. § 9545(b)(1).   Any PCRA petition that is not filed

within one year of the date the judgment becomes final is time-barred,

unless the petitioner has pled and proven one of the three exceptions to the

PCRA’s time limitation set forth in 42 Pa.C.S.A. § 9545(b)(1)(i-iii) (providing

that an untimely PCRA petition may be considered timely if a petitioner

alleges and proves (1) governmental interference with the presentation of

his claims; (2) discovery of previously unknown facts which could not have

been discovered with due diligence; or (3) an after-recognized constitutional

right given retroactive application). The PCRA’s timeliness requirements are

jurisdictional in nature and a court may not address the merits of the issues

raised if the PCRA petition was not timely filed.        Commonwealth v.

Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).




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        Here, Davis’s PCRA Petition, filed in December 2014, is facially

untimely because his judgment of sentence became final more than sixteen

years prior, in June 1998.        Moreover, Davis did not plead any of the

exceptions to the PCRA’s jurisdictional time bar in the PCRA Petition, his Rule

907 Response, or in his appellate brief.         Rather, Davis challenges the

constitutionality of the PCRA’s time bar itself, and claims that his trial

counsel rendered ineffective assistance.

        In his first issue, Davis argues that the PCRA is unconstitutional on its

face to the extent that its time bar can unlawfully preclude a “gateway claim

of actual innocence[,]” which, according to Davis, violates the Constitution of

the United States and Pennsylvania’s Statutory Construction Act (“SCA”).3

Brief for Appellant at 12; see also id. at 14 (arguing that “[t]he General

Assembly[, in the SCA,] has taken the position that its actions must not be

interpreted to lead to results that are absurd or unreasonable or that its

actions be interpreted to violate the Constitution[s] of the United States or

Pennsylvania.”).     According to Davis, his claim of “actual innocence”4 is

sufficient to overcome the PCRA’s time-bar, pursuant to the United States




3
    See 1 Pa.C.S.A. § 1501 et seq.
4
  Davis bases his claim of actual innocence upon the fact that the semen
discovered on the victim’s body did not belong to Davis. Brief for Appellant
at 16; see also id. at 19 (asserting that “[a] presumptively positive [DNA]
match [concerning the semen in question] with one of the victim’s known
associates would establish a prima facie case that [] Davis is actually
innocent of the murder.”).

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Supreme Court’s decision in McQuiggin v. Perkins, 133 S. Ct. 1924

(2013). Brief for Appellant at 14-16.

      In McQuiggin, the Supreme Court held that a claim of actual

innocence, if proved, can serve as a gateway through which a petitioner may

pass the one-year time bar for filing an otherwise untimely first federal

habeas corpus petition when the claim of actual innocence is supported by

newly-discovered evidence.     McQuiggin, 133 S. Ct. at 1926.         This ruling

concerns federal habeas corpus petitions and the time limitations applicable

thereto, and is not applicable to petitions filed in state court seeking relief

under the PCRA.5      Thus, McQuiggin is inapplicable to Davis’s case and

provides no relief from the PCRA’s time bar.

      Moreover, we reject Davis’s claim that the PCRA violates the SCA and

is unconstitutional. It is well established that “the time restrictions for filing

PCRA petitions are constitutional[.]”    Commonwealth v. Fahy, 737 A.2d

214, 223 (Pa. 1999); Commonwealth v. Peterkin, 722 A.2d 638, 643 (Pa.

1998) (same); see also Commonwealth v. Edmiston, 65 A.3d 339, 349

(Pa. 2013) (stating that “[a]s we have explained, the nature of the

constitutional violations alleged has no effect on the application of the PCRA

time bar. … Rather, the only cognizable exceptions are set forth at Section

9545(b)(1).” (internal citations omitted)).



5
  We additionally observe that the Supreme Court did not expressly
pronounce that McQuiggin applies retroactively, and it does not represent a
watershed change in procedural law.

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     Next, Davis argues that the PCRA court abused its discretion by

denying the DNA Motion, and determining that it did not entitle Davis to

relief because the parties had stipulated that the semen found on the

victim’s body did not belong to him.           See Brief for Appellant at 17.6

According to Davis, the PCRA court’s ruling is contrary to this Court’s

decision in Commonwealth v. Conway, 14 A.3d 101 (Pa. Super. 2011)

(where   the   defendant     was   convicted    of   murder   based   solely   on

circumstantial evidence, and the Commonwealth did not introduce any DNA

or other scientific evidence tying him to the victim’s body, holding that the

PCRA court improperly denied the defendant’s motion for DNA testing

because the defendant had established that there is a “reasonable

possibility” that favorable results of the requested DNA testing would

establish his actual innocence). See Brief for Appellant at 17-18.

     “Post[-]conviction DNA testing falls under the aegis of the [PCRA,] and

thus, our 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.”    Conway, 14 A.3d at 108 (footnote, citation,

brackets and quotation marks omitted).          To obtain post-conviction DNA

testing under the PCRA DNA statute, a petitioner must prove the following:

     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

6
  We observe that “a motion for post-conviction DNA testing does not
constitute a direct exception to the one year time limit for filing a PCRA
petition.” Commonwealth v. Williams, 35 A.3d 44, 50 (Pa. Super. 2011).

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      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.

42 Pa.C.S.A. § 9543.1(a)(2).     In other words, “[a] petitioner [] does not

meet the requirements of [section] 9543.1(a)(2) if 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.” Commonwealth v. Perry, 959

A.2d 932, 939 (Pa. Super. 2008) (citation, quotation marks and brackets

omitted).   In the instant case, all of the conditions stated in Perry are

satisfied, and Davis makes no attempt to prove otherwise.

      Nevertheless, the PCRA court cogently reasoned that it properly denied

the DNA Motion under the PCRA DNA statute for the following reasons:

      In Conway, the Court explained that “the prima facie
      requirement set forth in [42 Pa.C.S.A.] § 9543.1(c)(3) and
      reinforced in [section] 9543.1(d)(2) requires that [the petitioner]
      demonstrate that there is a ‘reasonable possibility,’ that
      ‘favorable results of the requested DNA testing would establish
      the [petitioner’s] actual innocence of the crime of conviction.’”
      [Conway, 14 A.3d at 109 (emphasis, footnote and citations
      omitted); see also Williams, 35 A.3d at 50 (stating that “[t]he
      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.”).]
      Conway adopts the standard of actual innocence set forth by
      the Supreme Court of the United States in Schlup v. Delo[, 513
      U.S. 298 (1995),] that the newly discovered evidence must
      make it “more likely than not that no reasonable juror would
      have found him guilty beyond a reasonable doubt.” [Conway,
      14 A.3d at 109 (quoting Schlup, 513 U.S. at 327).]

            In the instant case, Davis seeks to have the semen found
      on the victim’s body tested against the CODIS[, i.e., the national

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      Combined DNA Index System], the Pennsylvania data banks,
      and the two known associates of the victim, Anthony Smith and
      Earl Maples. Davis represents that, at trial, the jury heard
      testimony from numerous witnesses establishing the victim’s
      connection to both Anthony Smith and Earl Maples and that the
      sexual encounter leading to the semen may have occurred
      shortly before the murder;[FN] however, the jury also heard a
      stipulation entered by trial counsel that the semen on the
      victim’s body did not belong to Davis. Thus, the jury knew that
      Davis was excluded as a source of the semen, thereby showing
      that it came from Anthony Smith, Earl Maples, or an unknown
      party, and, in light of all of the other evidence presented by the
      Commonwealth, found Davis to be guilty of the murder. As
      such, th[e PCRA c]ourt has found that Davis has not
      demonstrated a reasonable probability that favorable results of
      such testing would establish his actual innocence of the murder.
          [FN]
              Davis represents that [Edwin] Lieberman[, M.D. (“Dr.
          Lieberman”), i.e., the county medical examiner at the
          time of Davis’s second trial who had reviewed Dr. Hoyer’s
          autopsy notes concerning the victim,] testified that he
          could not determine when exactly the victim had sex[,]
          and that it could have been minutes before her death or
          a day and a half before her death. Conversely, Dr.
          Hoyer, who conducted the autopsy of the victim and
          testified at [Davis’s first] trial, testified that the sex
          occurred shortly before her death.

PCRA Court Opinion, 7/31/14, at 5-6 (unnumbered, some footnotes

omitted). The PCRA court’s sound analysis is supported by the record and

the law. Accordingly, we conclude that there is no merit to Davis’s challenge

to the PCRA court’s denial of the DNA Motion.

      In his third issue, Davis asserts that the PCRA court erred by

dismissing his PCRA Petition because he had established that his trial

counsel rendered ineffective assistance.    See Brief for Appellant at 20-23.

Specifically, Davis challenges trial counsel’s failure to (1) object to the trial

court’s allegedly erroneous alibi instruction; (2) ensure that the DNA

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evidence from the semen found on the victim’s body was checked against

the males with whom the victim was romantically involved; and (3) locate

Dr. Hoyer to testify at Davis’s second trial. Id.

         “[I]t is well established that the fact that a petitioner’s claims are

couched in terms of ineffectiveness will not save an otherwise untimely

petition from the application of the time restrictions of the PCRA.”

Edmiston, 65 A.3d at 349 (citation omitted).             As stated above, Davis’s

PCRA Petition is facially untimely and he has failed to plead and prove any of

the three exceptions to the PCRA’s jurisdictional time bar. Therefore, Davis’s

ineffectiveness claims do not entitle him to relief. Id.

         Finally, Davis is not entitled to relief on his last issue, wherein he avers

that he was deprived of a fair trial because the prosecutor allegedly elicited

false testimony from Dr. Lieberman. See Brief for Appellant at 23-25. Such

claim does not meet any of the exceptions to the PCRA’s time limitation.

         We conclude that the PCRA court neither abused its discretion nor

committed an error of law by dismissing Davis’s first PCRA Petition as

untimely, and that Davis’s challenge to the constitutionality of the PCRA

lacks merit. Additionally, the PCRA court properly denied the DNA Motion.

Therefore, we affirm the Order on appeal and deny Davis’s Motion to Strike

Brief.

         Order affirmed. Motion to Strike Brief denied.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/9/2015




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