J-S67020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    GARY WALKER,                               :
                                               :
                      Appellant                :       No. 18 EDA 2017

                 Appeal from the PCRA Order December 6, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0401341-1996

BEFORE:      GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY MUSMANNO, J.:                FILED DECEMBER 19, 2017
    Gary Walker (“Walker”), pro se, appeals from the Order denying his

fourth Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).1 We affirm.

        The PCRA court set forth the relevant history underlying the instant

appeal as follows:

               On December 13, 1995, [] Walker … fatally shot William
        Hamlin [(“Hamlin”)] outside [of] a barbershop at 7th and
        Diamond Streets in Philadelphia. On July 7, 1997, following a
        jury trial[,] … [Walker] was convicted of first-degree murder and
        possessing an instrument of crime. The trial court immediately
        sentenced [Walker] to a mandatory term of life imprisonment for
        the murder conviction[,] and a lesser, concurrent term of
        imprisonment for the weapons offense. On August 16, 1999,
        following a direct appeal, the Superior Court affirmed the
        judgment of sentence[,] and on December 28, 1999, our
        [S]upreme [C]ourt denied appeal. [See Commonwealth v.

____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.


____________________________________
* Former Justice specially assigned to the Superior Court.
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      Walker, 745 A.2d 47 (Pa. Super. 1998) (unpublished
      memorandum), appeal denied, 747 A.2d 900 (Pa. 1999).

PCRA Court Opinion, 2/13/17, at 1-2 (footnote omitted).

      On March 14, 2016, Walker filed his fourth PCRA Petition, followed by

a Petition for habeas corpus relief.      Walker also filed a Motion for post-

conviction DNA testing on August 2, 2016.         Thereafter, the PCRA court

issued Notice of its intention to deny Walker’s post-conviction Petitions and

Motion, in accordance with Pa.R.Crim.P. 907.       Walker submitted a pro se

response to the Notice, after which the PCRA court entered its Order denying

each request for post-conviction relief. Thereafter, Walker filed the instant

timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of matters complained of on appeal.

      Walker presents the following claims for our review:

      1. Is [Walker’s] claim for DNA testing time-barred?

      2. Did [Walker] provide [the] PCRA court with a prima facie case
         to warrant a[] hearing?

Brief for Appellant at 4. We will address Walker’s claims together.

      Walker argues that the cumulative effect of the investigation and court

proceedings   demonstrates    that   he    was   the   victim   of   a   bad-faith

investigation. Id. at 11. Walker claims that that he was convicted on wholly

circumstantial evidence: an eyewitness with mental health issues who was

involved in the attack on Walker and the victim; and a former detective who

had a pattern of altering crime scenes, fabricating evidence, and fabricating


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statements.   Id. at 12-13.     According to Walker, he never denied his

presence at the crime scene. Id. at 13. However, he was not the person

who possessed a 9mm firearm, or left a 9mm casing where the victim’s body

was found. Id. Walker asserts that there was no evidence that the victim

was shot with a 9mm handgun, and the evidence established that the victim

was not shot at close range. Id.

      Walker states that “given the facts that [his own] DNA [can’t] be found

on the victim[’s] clothing[,] or [the] victim[’s] DNA found on [Walker’s]

clothing,” his and the victim’s clothing should be tested. Id. Walker points

out that there is no scientific evidence that he shot the victim at point-blank

range, and that testing of the clothing could establish this fact. Id. at 14.

However, Walker concedes that the absence of his DNA on any of the tested

items “will not provide compelling evidence of his innocence.”             Id.

Nevertheless, Walker insists that the tests might reveal the presence of a

third, unidentified perpetrator. Id.

      “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.        The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.”

Commonwealth v. Lewis, 63 A.3d 1274, 1278 (Pa. Super. 2013) (citation

omitted).

      Relevant to this claim, section 9543(a)(2)(vi)


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      provides for post-conviction relief where a petitioner could prove
      a claim of newly discovered exculpatory evidence. In order to
      succeed on such a claim, the petitioner must establish by a
      preponderance of the evidence that:

      (1)     the evidence has been discovered after the trial and it
              could not have been obtained at or prior to trial through
              reasonable diligence;

      (2)     such evidence is not cumulative;

      (3)     it is not being used solely to impeach credibility; and

      (4)     such evidence would likely compel a different verdict.

Commonwealth v. Fiore, 780 A.2d 704, 711 (Pa. Super. 2001).

      The DNA testing statute, section 9543.1(a), provides in relevant part,

as follows:

      An individual convicted of a criminal offense in a court of this
      Commonwealth and serving a term of imprisonment … 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.

42 Pa.C.S.A. § 9543.1(a)(1). Within this motion, the applicant must

      (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(c)(3)(i)-(ii)(A).


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     Section 9543.1(d) prescribes when the court must order DNA testing

and when it must not:

     (1) Except as provided in paragraph (2), the court shall order
     the testing requested in a motion under subsection (a) . . . 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:

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

42 Pa.C.S.A. § 9543.1(d).

     [O]n its face, the prima facie requirement set forth in
     § 9543.1(c)(3) and reinforced in § 9543.1(d)(2) requires that an
     appellant demonstrate that there is a “reasonable possibility”
     that “favorable results of the requested DNA testing ‘would
     establish’ the appellant's actual innocence of the crime of
     conviction.” … [T]he definition of “actual innocence” that is to be
     applied in the evaluation of the effect of new evidence is that
     articulated by the United States Supreme Court in its [o]pinion in
     Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct. 851, 130 L. Ed.
     2d 808 [] (1995), namely, 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.” Thus,
     this standard requires a reviewing court “to make a probabilistic
     determination about what reasonable, properly instructed jurors

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     would do,” if presented with the new evidence. Id., 513 U.S. at
     329 ….

Commonwealth v. Kunco, 2017 PA Super 345, 2017 Pa. Super. LEXIS

878, at *13-*15.

     In its Opinion, the PCRA court addressed this claim as follows:

           At the outset, section 9543.1 does not authorize ballistics
     testing or gunshot-residue testing.        See 42 [Pa.C.S.A.]
     § 9543.1(a) (providing that only testing of DNA evidence can be
     provided under that provision).

           With respect to DNA testing, [Walker] failed to meet the
     threshold requirements for post-conviction DNA testing pursuant
     to 42 [Pa.C.S.A.] § 9543.1(a)(2). As is evident from the statute,
     a petitioner may obtain post-conviction DNA testing of evidence
     discovered prior to the petitioner’s conviction upon making a
     threshold showing that:

        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.

     42 [Pa.C.S.A.] § 9543.1(a)(2).    [Walker’s] failure to even
     acknowledge his burden under subsection 9543.1(a)(2) was fatal
     to his [M]otion.

           Even assuming, arguendo, that [Walker] made the
     threshold demonstration, he did not present a prima facie case
     pursuant to subsection 9543.1(c)(3).        To the extent that
     [Walker] claimed that favorable results of DNA testing, by itself,
     would establish his innocence, he failed to demonstrate that the
     absence of the victim’s DNA on his clothing is even material to
     the issue of whether the shooting was premeditated.          See
     Commonwealth v. Heilman, 867 A.2d 542, 547 (Pa. Super.
     2005) ([stating that] “[i]n DNA[,] as in other areas, an absence

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      of evidence is not evidence of absence.”). Therefore, [Walker],
      who has known of the physical evidence he now seeks to test
      since his trial nearly twenty years ago, is not entitled to relief
      pursuant to section 9543.1.

PCRA Court Opinion, 2/13/17, at 6-7. We agree with the sound reasoning of

the PCRA court, as set forth above, and affirm on this basis as to Walker’s

claims of error. See id.; see also Commonwealth v. Baumhammers, 92

A.3d 708, 726-27 (Pa. 2014) (stating that, “if the record reflects that the

underlying issue is of no arguable merit or no prejudice resulted, no

evidentiary hearing is required.”).

      Motion to Prohibit Commonwealth from Presenting Brief denied; Order

affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2017




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