J-S50035-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

JAMES EDWARD HULL,

                         Appellant                  No. 425 WDA 2014


            Appeal from the PCRA Order entered January 27, 2014,
              in the Court of Common Pleas of Allegheny County,
             Criminal Division, at No(s): CP-02-CR-0007650-1999
                          & CP-02-CR-0008641-1999

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.:                          FILED AUGUST 11, 2014

                                               pro se from the order entered

denying his motion for DNA testing pursuant to section 9543.1 of the Post

Convi                                                -9546. We affirm.

        The pertinent facts and procedural history may be summarized as

follows: On June 21, 2001, Appellant entered guilty pleas at two separate

dockets to various sexual offenses involving a male victim under the age of

sixteen, and a female victim under the age of thirteen. That same day, the

trial court sentenced him at both dockets to an aggregate term of seven to

fourteen years of incarceration, and a consecutive eleven years of probation.

On August 15, 2001, Appellant filed an untimely pro se notice of appeal.

Appellant subsequently filed a PCRA petition, and the PCRA court reinstated
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      Appellant then filed a timely appeal. In an unpublished memorandum



sentence. Commonwealth v. Hull, 924 A.2d 692 (Pa. Super. 2007). On



of appeal. Commonwealth v. Hull, 927 A.2d 623 (Pa. 2007).

      On August 23, 2007, Appellant filed a pro se PCRA petition. Counsel

was appointed, and on February 11, 2008, PCRA counsel filed an amended

petition. On July 8, 2008, the PCRA court issued Pa.R.Crim.P. 907 notice of

i



Appellant filed an appeal to this Court.    In an unpublished memorandum

filed on June 9, 2009, this Court affir                                   -

conviction relief. Commonwealth v. Hull, 981 A.2d 313 (Pa. Super. 2009).



allowance of appeal.   Commonwealth v. Hull, 987 A.2d 160 (Pa. Super.

2009).

      On August 19, 2013, Appellant filed the motion for DNA testing at



September 24, 2013.       On November 14, 2013, the PCRA court issued

Pa.R.Crim.P. 907 notice of its intent to dismiss Appel

did not file a response. By order entered January 27, 2014, the PCRA court



not require Pa.R.A.P. 1925 compliance.

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       Appellant phrases his sole issue raised on appeal as follows:



          under 42 Pa.C.S.A. § 9543(c)(3) Actual Innocence
          exists, even though Appellant entered a Guilty Plea, where
          evidence exists that can be tested excluding Appellant
          from any crime?




       Because our review of the record readily establishes that Appellant has

failed to satisfy the threshold statutory requirements governing post-

conviction DNA testing, we need

guilty plea vitiates his request. Compare Williams v. Erie County Dist.

                , 848 A.2d 967, 972 (Pa. Super. 2004), appeal denied, 864

                                                                            y




       Section 9543.1 of the PCRA gives a petitioner the opportunity to

request DNA testing. Commonwealth v. Smith, 889 A.2d 582, 583 (Pa.

Super. 2005). A petitioner seeking post-conviction DNA testing must satisfy

several statutory requirements before a PCRA court may order such testing. 1

Id. In pertinent part, the statute reads:


____________________________________________


1
  The statutory provision does not confer a right to counsel.
Commonwealth v. Brooks, 875 A.2d 1141, 1147 (Pa. Super. 2005).




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       § 9543.1. Postconviction DNA testing

        (a) Motion.

          (1) An individual convicted of a criminal offense in a
       court of this Commonwealth and serving a term of
       imprisonment or 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
       be available for testing as of the date of the motion. If the

       the evidence shall not have been subject to the DNA
       testing requested because the technology for testing was

       counsel did not seek testing at the time of the trial in a
       case where a verdict was rendered on or before January 1,

       court to pay for the testing because his client was indigent

       indigency.

        (b) Notice to the Commonwealth.

          (1) Upon receipt of a motion under subsection (a), the
       court shall notify the Commonwealth and shall afford the
       Commonwealth an opportunity to respond to the motion.

          (2) Upon receipt of a motion under subsection (a) or
       notice of the motion, as applicable, the Commonwealth
       and the court shall take steps reasonably necessary to
       ensure that any remaining biological material in the
       possession of the Commonwealth or the court is preserved
       pending the completion of the proceedings under this
       section.

        (c) Requirements. In any motion under subsection (a),
       under penalty of perjury, the applicant shall:

          (1) (i) specify the evidence to be tested;



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             (ii) state 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 of 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.


           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
                               on and sentencing; and

           (ii) DNA testing of the specific evidence, assuming
        exculpatory results, would establish:


        for which the applicant was convicted[.]

                                       ***

42 Pa. C.S.A. § 9543.1.    If, after



the DNA testing would produce exculpatory evidence that would establish

                                                                r the testing.

Id. (citing 42 Pa.C.S.A. § 9543.1(d)(2)).

                                                              -conviction DNA

testing, this Court determines whether the movant satisfied the statutory

                                             Commonwealth v. Williams, 35

A.3d 44 (Pa. Super. 2011). As we summarized in Williams:


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        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 wa
        it was not already DNA tested because (a) technology for


        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

        9543.1(a)(2). Additionally,

        [T]he legislature delineated a clear standard and in fact
        delineated certain portions of the standard twice. Under
        section 6543.1(c)(3), the petitioner is required to present
        a prima facie case that the requested DNA testing,
        assuming it gives exculpatory results, would establish the

        9543.1(d)(2), the court is directed not to order the testing
        if it determines, after review of the trial record, that there
        is no possibility that the testing would produce exculpatory
        evidence to
        From the clear words and plain meaning of these
        provisions, there can be no mistake that the burden lies
        with the petitioner to make a prima facie case that
        favorable results from the requested DNA testing would
        establish his innocence. We note that the statute does not
        require [the] petitioner to show that the DNA testing
        results would be favorable. However, the court is required
        to review not only the motion [for DNA testing], but also
        the trial record, and then make a determination as to
        whether there is a reasonable possibility that DNA testing
        would produce exculpatory evidence that would establish


Williams, 35 A.3d at 49-50 (citing Commonwealth v. Smith, 889 A.2d

58

obtain testing requires more than conjecture or speculation; it demands a

prima facie case that the DNA result, if exculpatory, would establish actual

              Id. at 50.

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     In s

explained:

        5. [Appellant] has not made the prima facie showing that
        DNA testing of specific evidence, assuming exculpatory

        the offense for which [he] was convicted as required by 42
        Pa.C.S.A. § 9543.1(c)(2) and (3)(ii)[(A)]; and

        6. After a review of the record of the trial, the Court does
        not believe that there exists a reasonable probability that
        the testing would [produce] exculpatory evidence that . . .

        offense for which [he] was charged in that [Appellant] was
        charged with offenses that took place over the course of at
        least a two to three year period and involved two victims;
        one victim did not allege anything other than illegal
        touching, so it is impossible for any DNA evidence to have
        any relevance to that conviction. Moreover, given the
        numerous instances of sexual contact between [Appellant]
        and the other victim over the course of that time, it is
        impossible for one single piece of evidence subject to DNA
        testing to exonerate him. The absence of genetic material
        would not demonstrate his innocence. The Superior Court
        held in Commonwealth v. Heilman, 867 [A.2d] 542 (Pa.
        Super. 2005) that the prima facie requirement set forth in
        § 9543.1(c)(3) and reinforced [] in [§ 9543.1(d)(2)]
        requires an appellant to demonstrate that favorable results

                                                    of conviction
        [sic].    [Appellant] has failed to make such a
        demonstration. In DNA as in other areas, an absence of
        evidence is not evidence of absence. [Heilman, 867 A.2d
        at 546-47]. Because the exculpatory DNA results would
        not establish actual innocence in this case, that statute
        prevents [the] ordering of such testing.

Pa.R.Crim.P. 907 Notice, 11/14/13, at 1-2.



conclusions.   Appellant has failed to satisfy the threshold statutory


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requirements      governing   a   post-conviction   request     for   DNA   testing.

      Appellant does not adequately identify the specific evidence available

for testing either prior to his trial or discovered after his conviction. Rather,

Appellant merely asserts that he seeks



7. According to Appellant, given the conduct with which he was charged, the



bec

examination of [the male victim] at [the] hospital, [which] led to

                                                    Id. at 8.    In response, the

                                                                 suggests that [a

physical] examination [of the male victim] would have yielded any material



evidence to the contrary. Moreover, it is clear that the technology for DNA

testing existed

record that the trial court refused any request for funds by Appellant for DNA

testing.   See Commonwealth v. Perry, 959 A.2d 932, 938 (Pa. Super.

2008) (affirming the denial of post-conviction request for DNA testing under

these facts).

      Thus, because Appellant has failed to establish the statutorily required

prima facie                                                                        -

                                                                            ture and




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               Williams, supra.   We therefore conclude that the PCRA

                             -conviction request for DNA testing.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2014




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