J-S46027-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

DONALD L. LAMEY

                         Appellant                   No. 30 MDA 2014


                 Appeal from the Order November 22, 2013
              In the Court of Common Pleas of Centre County
            Criminal Division at No(s): CP-14-CR-0000842-1994


BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                      FILED SEPTEMBER 11, 2014

      Donald L. Lamey appeals, pro se, from the order of the Court of

Common Pleas of Centre County that denied his petition for post-conviction

DNA testing. After careful review, we affirm.

      On direct appeal, this Court set forth the relevant underlying facts of

this case as follows:

      On January 17, 1995, a jury found . . . Lamey . . . guilty of one
      hundred and ninety-five (195) separate criminal offenses,
      including sixty-two (62) counts of involuntary deviate sexual
      intercourse, forty-four (44) counts of statutory rape, forty (40)
      counts of aggravated indecent assault, forty (40) counts of
      indecent assault, one (1) count of endangering welfare of
      children, seven (7) counts of corruption of minors, and (1) count
      of i
      varied sexual encounters with his daughter, B.L., and her minor
      friends. On June 8, 1995, the Honorable Charles C. Brown, Jr.,
      sentenced Lamey to an aggregate of thirty-three and one-half
      (33 ½) to sixty-
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Commonwealth v. Lamey, 685 A.2d 1044 (Pa. Super. 1996) (unpublished

memorandum).



father on her birth certificate, that Lamey cared for the child since birth and



Trial, 1/16/95 at 24, 26; N.T. Trial 1/17/15 at 51-52. B.L., who was thirteen

years old at the time of trial, testified that Lamey was not her biological

father, although she believed he was at the time the offenses occurred. N.T.

Trial, 1/16/15, at 26.




that Lamey was not her biological father. Id. at 287. The court denied the

motion, id. at 290, and on January 17, 1995, Lamey was convicted of incest

and the other offenses cited above.

        On July 16, 1997, Lamey filed a timely petition under the Post

Conviction Relief Act (PCRA),1 which the court denied on April 22, 2003.

                                                 Commonwealth v. Lamey,

850 A.2d 10 (Pa. Super. 2004) (unpublished memorandum).                    The



appeal.    Commonwealth v. Lamey, 858 A.2d 109 (Pa. 2004).           In 2007,


____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.



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J-S46027-14



Lamey filed a second PCRA petition, which the PCRA court dismissed on

September 15, 2010. On appeal, we affirmed. Commonwealth v. Lamey,

32 A.3d 837 (Pa. Super. 2011) (unpublished memorandum).

        On August 1, 2013, Lamey filed a motion under section 9543.1 of the

PCRA,2 seeking DNA testing of B.L. in order to establish that he is not her

biological father. The PCRA court denied the motion on November 22, 2013,

and this timely appeal followed.

        Lamey raises the following issues for our review:

        1.
             for postconviction DNA testing.

        2. Whether the lower court erred by stating [Lamey] has failed
           to meet the requirements of 42 Pa.C.S. § 9543.1(a), as the
           verdict was rendered after January 1, 1995.

        3. Whether the lower court erred by not acknowledging that
           [Lamey] meets [the] above-state[d] section for DNA testing,
           which would prove he is not the biological father thus the
           charge of 18 [Pa.C.S.] § 4302 (incest) does not apply making
           [Lamey] innocent of said charge, and which he was
           prejudiced for, at this trial.




                                                                -conviction DNA

testing, this Court determines whether the movant satisfied the statutory

                                                 Commonwealth v. Williams, B.,

35 A.3d 44, 47 (Pa. Super. 2011) (citation omitted).

____________________________________________


2
    42 Pa.C.S. § 9543.1 (Postconviction DNA testing).



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      Section 9543.1(a) of the PCRA provides, in relevant part:

      (a)   Motion-

            (1)   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 of 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
                                                           he evidence
                  shall be available for testing as of the date of the
                  motion. If the evidence was discovered prior to the

                  been subject to the DNA testing requested because
                  the technology for testing was not in existence at the

                  seek testing at the time of a trial in a case where a
                  verdict was rendered on or before January 1, 1995,

                  court to pay for the testing because his client was
                  indigent and the court refused the request despite


42 Pa.C.S. § 9543.1(a).

      Lamey argues that he is entitled to compare his DNA to that of his

                                                                  gical father,



11.   While an assertion of actual innocence is required under section



assert the a



of section 9543.1(a)(2) have not been met.       Williams, B., supra at 51


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J-S46027-14



(appellant did not meet threshold elements of section 9543.1 because DNA

technology existed at time of trial, verdict rendered after January 1, 1995,

and trial court did not refuse request for funds to perform DNA testing;

Commonwealth v. Williams, R., 899 A.2d 1060 (Pa. 2006) (appellant

could not establish threshold elements because DNA technology existed at

time of trial, verdict was rendered after January 1, 1995, and trial court did

not refuse request by appellant to provide funding for DNA testing).

      As in Williams, B., supra and Williams, R., supra, testing is not

available here because the technology for DNA testing existed at the time of



never sought funding from the court to allow Lamey to seek DNA testing.

      Because the trial court properly held that Lamey did not meet the

threshold requirements of section 9543.1(2), he is not entitled to further

review.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/11/2014




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