J-S57011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARCUS JOHNSON                             :
                                               :
                       Appellant               :   No. 3285 EDA 2017

                   Appeal from the Order September 28, 2017
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0000576-1999,
                                          CP-23-CR-0006098-1998,
                                          CP-23-CR-0007000-1998,
                                          CP-23-CR-0007001-1998


BEFORE:      PANELLA, J., PLATT, J., and STRASSBURGER, J.

MEMORANDUM BY PANELLA, J.                           FILED DECEMBER 14, 2018

        Marcus Johnson appeals, pro se, from the order denying his petition

pursuant to the Post Conviction Relief Act (“PCRA”). In his petition, Johnson

sought the production of several items he believed the Commonwealth never

disclosed to him, as well as forensic testing of an orange juice bottle. He

contended the evidence he sought could prove his innocence in the four

separate convenience store robberies for which he is currently serving 30 to

70 years in prison. On appeal, he only challenges the court’s refusal to order

DNA testing. We conclude the PCRA court properly found Johnson was not

entitled to any relief. Thus, we affirm.

____________________________________________


   Retired Senior Judge assigned to the Superior Court.
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      On July 26, 2017, Johnson filed a pro se document entitled “Motion

Pursuant to 42 Pa.C.S. §9543.1/Disclosure of Exculpatory Evidence.” In this

motion, Johnson claimed that he “discovered on September 19, 2013, that the

Commonwealth’s only witness [to one of the robberies] never identified him

and that she … provided the police with a statement the night of the crime

that resembled someone other than” Johnson. Petition, 7/26/17, at ¶ 2. That

witness also testified that the robber “placed an orange juice bottle on the

counter prior to the robbery.” Id., at ¶ 13.

      Based upon these allegations, Johnson requested the Commonwealth

disclose the incident reports from one of his robberies. According to Johnson,

the Commonwealth’s failure to disclose these reports previously constituted a

Brady violation. Johnson also requested the right to conduct a DNA test on

the orange juice bottle.

      In his pro se “Supplemental Motion Pursuant to 42 Pa.C.S. § 9543.1,”

Johnson asserted that the FBI, in 2011, developed new technology for testing

for fingerprint evidence. He argues the orange juice bottle should be tested

with this new technology. He also renewed his argument that the

Commonwealth      had   never   disclosed   exculpatory   police   reports   from

eyewitnesses.

      The court determined Johnson’s motions constituted petitions pursuant

to the PCRA. And it dismissed the petitions as untimely. On appeal, Johnson




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argues the PCRA court erred when it refused to order DNA testing of the

orange juice bottle.

      “Post-conviction DNA testing falls under the aegis of the PCRA[.]”

Commonwealth v. Conway, 14 A.3d 101, 108 (Pa. Super. 2011) (citation

and parentheses omitted). However, the one-year jurisdictional time bar that

exists under the PCRA does not apply to motions for the performance of DNA

testing under 42 Pa.C.S.A. § 9543.1. See id., at 108 n.2. “Rather, after DNA

testing has been completed, the applicant may, within 60 days of receiving

the test results, petition to the court for post-conviction relief on the basis of

after-discovered   evidence,   an   exception   to   the   one-year   statute   of

limitations.” Id. (citation omitted). We therefore turn to application of §

9543.1 to this appeal.

      “[O]ur 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.” Id., at 108 (citation, internal quotations, and footnote

omitted). In reviewing an order denying a motion for post-conviction DNA

testing, this Court must determine whether the movant satisfied the statutory

requirements listed in § 9543.1. See id. Since the resolution of this appeal

involves statutory construction, which involves a pure question of law, we

apply a de novo standard and a plenary scope of review. See id.

      An individual seeking relief under § 9543.1 must

      present a prima facie case demonstrating that the:


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       (i) identity of or the participation in the crime by the perpetrator
       was at issue in the proceedings that resulted in 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).1 Here, it is undisputed that Johnson’s

defense at trial was a mistaken identity defense. See N.T., Jury Trial,

3/14/2000, at 98. Thus, the PCRA court’s decision hinged on the ability of the

DNA testing to establish Johnson’s actual innocence.

       In addressing this issue, the court was required to determine whether

there is a “reasonable possibility that the testing would produce exculpatory

evidence that … would establish” Johnson’s actual innocence of the four

robberies. See 42 Pa.C.S.A. § 9543.1(d)(2)(i). Obviously, the predicate upon

which this determination rests is that the evidence Johnson wishes to be

tested still exists. See Commonwealth v. Williams, 35 A.3d 44, 49 (Pa.

Super. 2011) (observing “the evidence specified must be available for testing

on the date of the motion”).

       Here, the Commonwealth asserts the orange juice bottle at issue is no

longer in its possession. See Commonwealth’s Answer, filed 9/26/17, at ¶ 23.

This is not surprising, as the Commonwealth acknowledged it was unable to

____________________________________________


1 Section 9543.1 was amended on October 24, 2018, effective December 23,
2018. As the amendment was not effective at the time of the PCRA court’s
ruling, we will proceed to analyze this appeal pursuant to the prior version of
the statute.

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find any detectable fingerprints on the bottle. See N.T., Jury Trial, 3/15/00,

at 109. Thus, there was no reason for the Commonwealth to preserve this

evidence in the approximately 17 years between the trial and Johnson’s

request for testing.

      Even if we were to conclude the bottle existed, Johnson’s claim would

fail for another fundamental reason. Johnson is not requesting DNA testing.

Rather, he is requesting fingerprint testing using new technology allegedly

developed by the FBI. By the explicit language of the statute, fingerprint

testing does not fall under the purview of § 9543.1.

      Furthermore, Johnson has been aware of the orange juice bottle since

before his trial. By his own assertion, the method of testing he is requesting

was allegedly developed by the FBI in 2011. Johnson did not request DNA

testing of the bottle in his third PCRA petition, which he filed in 2013. The six

years between development and the current petition certainly cannot establish

the timeliness of Johnson’s request. See, e.g., Commonwealth v.

Edmiston, 65 A.3d 339, 358-359 (Pa. 2013) (finding appellant’s failure to

request DNA testing at trial or during lengthy PCRA proceedings rendered his

subsequent request untimely).

      Finally, as the PCRA court notes, and as another panel of this Court has

observed, the evidence of Johnson’s guilt is overwhelming. See, e.g.,

Commonwealth v. Johnson, No. 1891 EDA 2000, at *4 (Pa. Super. filed

August 29, 2001) (unpublished memorandum) (finding that “evidence of

appellant’s guilt in this case is … overwhelming”). Even if he were to obtain

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DNA or fingerprint testing of the orange juice bottle, and the testing did not

inculpate him, it would not be enough to establish his innocence. The orange

juice bottle was likely handled by a multitude of people during the process

from bottling, to shipping, to stocking the convenience store. The presence of

another person’s DNA or fingerprints would not be so indicative of Johnson’s

innocence so as to overcome the multiple eyewitnesses who positively

identified him at trial.

      For all these reasons, we can find no error in the PCRA court’s order

denying Johnson’s request for testing. We thus affirm.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/18




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