J-S46029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSEPH RHONE                               :
                                               :
                       Appellant               :   No. 2848 EDA 2018

              Appeal from the Order Entered September 18, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-1127472-1975


BEFORE:      PANELLA, P.J., OLSON, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.:                           FILED SEPTEMBER 27, 2019

        Appellant, Joseph Rhone, appeals pro se from the order entered on

September 18, 2018, denying his claim for deoxyribonucleic acid (DNA)

testing pursuant to 42 Pa.C.S.A. § 9543.1 under the Post-Conviction Relief Act

(“PCRA”).1 We affirm.

        On a previous appeal, we summarized the facts of this case as follows:

        On November 5, 1975, Herschel Williams, also known as the Jolly
        Green Giant, was shot to death as he entered his car with his two
        young children in front of their home. Very shortly after the
        shooting, [A]ppellant and two other men were arrested for
        Williams' murder. After a suppression hearing in which the court
        ruled that some of [A]ppellant's statements to police would be
        admissible at trial, [A]ppellant failed to appear for trial. After
        nearly [13] years of attempting to locate [A]ppellant, police


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S.A. §§ 9541-9546.
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      discovered him in Philadelphia[, Pennsylvania] and he was
      brought to trial in 1991.

      Several civilian and police witnesses testified for the
      Commonwealth. The civilian witnesses established that on the
      day of the murder, three men in a green [C]adillac were present
      on the street where Williams lived. Two of the men wore brown
      hats; one of the hats was identified as a brown jeff cap. The two
      men who wore hats left the car and were seen approaching
      Williams from opposite sides of the street, whereupon they shot
      him repeatedly. None of the witnesses [were able to positively]
      identify [A]ppellant as one of the shooters. Within minutes of the
      shooting, a call went over police radio describing the vehicle
      involved in the shooting. Police stopped a car matching the
      description and arrested its occupants, including [A]ppellant. At
      the time of his arrest, [A]ppellant was wearing a brown jeff cap.
      In addition to testimony regarding the events on the day of the
      shooting, the Commonwealth offered police testimony that
      [A]ppellant had been seen the day before, in the same green
      [C]adillac, driving behind the victim's car.

      At the time of his arrest, [A]ppellant acknowledged in a statement
      to police that he was present at the scene of the shooting, but
      claimed to have been in the car the entire time. He stated that
      he heard the gunshots but did not witness Williams' murder.

Commonwealth v. Rhone, 619 A.2d 1080, 1081 (Pa. Super. 1993).

      On May 1, 1991, the jury found Appellant guilty of first-degree murder,

conspiracy, and possession of an instrument of crime.        See PCRA Court

Opinion, 11/21/18, at 1. After denying Appellant’s post-sentence motions,

the trial court sentenced him to “life imprisonment for the murder conviction

and lesser consecutive terms of imprisonment for the remaining convictions.”

Id.   This Court affirmed Appellant’s judgment of sentence on January 27,

1993. Commonwealth v. Rhone, 619 A.2d 1080 (Pa. Super. 1993). Our

Supreme    Court   subsequently    denied   allocatur   on   June   7,     1993.

Commonwealth v. Rhone, 627 A.2d 731 (Pa. 1993). Thereafter, Appellant

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filed his first pro se PCRA petition on June 19, 1995. See PCRA Court Opinion,

11/21/18, at 2. “Counsel was appointed and subsequently filed an amended

petition claiming ineffective assistance of counsel.” Id. On October 1, 1996,

the PCRA court denied Appellant’s petition. Id. This Court affirmed the PCRA

court’s dismissal order on August 7, 1997. See Commonwealth v. Rhone,

704 A.2d 695 (Pa. Super. 1997). Our Supreme Court denied allocatur. See

Commonwealth v. Rhone, 716 A.2d 1248 (Pa. 1998).

       In 1998, 2005, and 2007, Appellant unsuccessfully sought collateral

relief “through serial petitions.” PCRA Court Opinion, 11/21/18, at 2. Then,

on July 18, 2016, Appellant filed his fifth pro se PCRA petition. Id. The PCRA

court ultimately dismissed his petition as untimely, and on April 22, 2019, this

Court affirmed the PCRA court’s decision. See Commonwealth v. Rhone,

__A.2d__, 3352 EDA 2017 (Pa. Super. 2019) (unpublished memorandum), at

1-9 (citation omitted).

       While Appellant’s appeal following the denial of his July 18, 2016 PCRA

petition was pending before this Court, he filed the current motion for DNA

testing.2 See PCRA Court Opinion, 11/21/18, at 2. In his motion, Appellant
____________________________________________


2  Our Supreme Court has held that “a subsequent PCRA petition cannot be
filed until the resolution of review of the pending PCRA petition by the highest
state court in which review is sought, or upon the expiration of the time for
seeking such review.” Commonwealth v. Lark, 746 A.2d 585, 588 (Pa.
2000). Nonetheless, this Court and our Supreme Court have continuously
distinguished between a motion for DNA testing under Section 9543.1 and a
petition for collateral relief under Section 9543. See Commonwealth v.
Scarborough, 64 A.3d 602, 609 (Pa. 2013) (explaining that while Section



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sought DNA testing of the “brown jeff cap” the Commonwealth alleged he wore

at the time of the murder. See id. at 3. Essentially, Appellant argued that

“the Commonwealth’s [entire] case was based on the identification of

[Appellant] from a ‘hat.’” Appellant’s Motion for DNA Testing, 8/9/17, at 3.

On September 18, 2018, the PCRA court denied Appellant’s motion. See id.

This timely appeal followed.

       In Appellant’s brief, he asserts that the trial court erred in denying his

motion for DNA testing.3          See Appellant’s Brief at *1-7 (un-paginated).

Specifically, Appellant contends that the PCRA court erred in not finding that

Appellant demonstrated implicit consent by filing the motion, and therefore,

met the requirements of Sections 9543.1(c)(ii)-(iii).         See id. at *3-6

(un-paginated).      Also, Appellant argued that the PCRA court erroneously

required him to demonstrate that, if exculpatory, the DNA results would

establish Appellant’s actual innocence. See id. We disagree.


____________________________________________


9543.1 is placed “within the larger statutory framework of the PCRA” it is “a
wholly separate proceeding from [the] litigation of a PCRA petition”);
Commonwealth v. Conway, 14 A.3d 101, 108 n.2 (Pa. Super. 2011)
(explaining that the one-year time bar of Section 9545 does not apply to a
motion filed under Section 9543.1). Accordingly, the fact that Appellant filed
the current motion while his PCRA petition was pending before this Court does
not impede our review. Id. at 588.

3 We note that Appellant’s brief does not adhere to our Rules of Appellate
Procedure. See generally Pa.R.A.P. 2111-2119. In fact, it does not include
any of the requirements set forth in Rule 2111(a)(1)-(12). See Appellant’s
Brief *1-7 (un-paginated). As such, we could quash for these multiple
deficiencies, but we decline to do so because our judicial review is
unhampered.

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      Our standard of review is as follows:

      Generally, the trial court's application of a statute is a question of
      law that compels plenary review to determine 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, 1252–1253 (Pa. Super. 2015)

(citation omitted).

      Section 9543.1 provides, in pertinent part:

      (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.

                                      ***

      (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 that the
         applicant seeks DNA testing for the purpose of
         demonstrating the applicant’s actual innocence;

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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[.]

42 Pa.C.S.A. § 9543.1 (emphasis added).

      In examining Section 9543.1, this Court previously determined:

      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.

Walsh,    125   A.3d    at   1254–1255     (emphasis    in   original),   quoting

Commonwealth v. B. Williams, 35 A.3d 44, 50-51 (Pa. Super. 2011).

Notably, this Court has repeatedly held that the “absence of evidence is not

evidence of absence.” Commonwealth v. Heilman, 867 A.2d 542, 547

(Pa. Super. 2005) (emphasis added).

      Upon review, we conclude that the PCRA court properly denied

Appellant’s motion for DNA testing. At the outset, we note that Appellant's

motion failed to comply with Sections 9543.1(c)(1)(ii) and (iii), which by their

plain language, require a movant’s express consent to providing samples of



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bodily fluids and acknowledgment that test results may be entered into law

enforcement database and used in the investigation of other crimes. See id.;

see also Commonwealth v. Smith, 889 A.2d 582, 584 (Pa. Super. 2005)

(interpreting Section 9543.1 according to its “clear words and plain meaning”).

To this, Appellant argues that “the entire [m]otion for DNA testing

[constitutes] consent” and because Appellant filed pro se, this Court “must

construe his motion in a light commensurate with his status as a pro se litigant

if all indications in the motion show his implied consent consistent with the

rules.” See Appellant’s Brief at *3-4 (un-paginated). We have previously

determined, however, that “pro se status confers no special benefit upon the

appellant.”    Commonwealth v. Adams, 882 A.2d 496, 498 (Pa. Super.

2005).      Rather, “any person choosing to represent himself in a legal

proceeding must, to a reasonable extent, assume that his lack of expertise

and legal training will be his undoing.” Id. Accordingly, Appellant’s pro se

status does not require this Court to conclude that simply filing the motion

meets the necessary requirements set forth in Sections 9543.1(c)(1)(ii) and

(iii).

         Furthermore, even if Appellant complied with the requirements of

Sections 9543.1(c)(1)(ii) and (iii), Appellant still failed to establish a prima

facie case that the DNA results, if exculpatory, would establish Appellant's




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actual innocence.4        In his motion, Appellant argued that because “the

Commonwealth’s [entire] case was based upon the                identification of

[Appellant] from a ‘hat,’” the absence of his DNA on the hat would establish a

“very high ‘reasonable possibility’” of his actual innocence. Appellant’s Motion

for DNA Testing, 8/9/17, at 3. The PCRA court addressed Appellant’s claim of

actual innocence as follows:

       [Appellant] argued that he was identified and ultimately convicted
       based solely upon a hat he was wearing during the commission of
       the crime. Preliminarily, the lack of [Appellant’s] DNA on the hat
       would not prove that he did [not] wear it any point prior to his
       arrest.

       Furthermore, contrary to [Appellant’s] characterization of the
       evidence presented by the prosecution, his conviction was not
       based solely upon the introduction of the jeff cap. Witnesses
       testified that three men in a green Cadillac were responsible for
       the murder and two of the men wore brown hats; one of the hats
       was identified as a brown jeff cap. Testimony further established
       that police stopped a car matching the description of the vehicle
       involved, and at the time of [Appellant’s] arrest, he was wearing
       a brown jeff cap. There was also police testimony that [Appellant]
       had been seen the day before, in the same green Cadillac, driving
       behind the victim’s car. Additionally, [Appellant] told the police
       shortly after the shooting that he was present at the scene of the
       shooting in the green Cadillac. [Appellant’s] admission alone
       connects him with his co-conspirators at the crime scene,
       regardless of whether his DNA was present on the hat he was
       wearing when arrested. Thus, given the evidence presented at
       trial, [Appellant] failed to show that favorable DNA testing results
       would make it more likely than not that no reasonably juror would
       have found him guilty beyond a reasonable doubt.
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4 In Appellant’s brief, he seemingly argues that the PCRA court erred in
“coming to the merits” of whether the DNA results would establish actual
innocence. See Appellant’s Brief at *5 (un-paginated). However, Section
9543.1(c)(3) requires the Appellant to make such a demonstration. See 42
Pa.C.S.A. §9543.1(c)(3). Therefore, Appellant’s argument is meritless.

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PCRA Court Opinion, 11/21/18, at 3-4 (internal citations omitted). We accept

the PCRA court’s reasoning and conclusion that the absence of Appellant’s

DNA on the hat would not establish his actual innocence. See Heilman, 867

A.2d at 547. Accordingly, because Appellant failed to satisfy the statutory

requirements listed in Section 9543.1, we discern no error in denying

Appellant’s motion for DNA testing.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/19




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