J-S27006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT WILLIAM BLAKE                       :
                                               :
                       Appellant               :   No. 786 WDA 2018

                   Appeal from the PCRA Order April 26, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0008910-1987,
                            CP-02-CR-0009390-1987


BEFORE:      OLSON, J., OTT, J., and COLINS*, J.

MEMORANDUM BY OLSON, J.:                                  FILED JUNE 11, 2019

        Appellant, Robert William Blake, appeals from the order entered on April

26, 2018, denying his claim for deoxyribonucleic acid (DNA) testing pursuant

to 42 Pa.C.S.A. § 9543.1 under the Post-Conviction Relief Act1 (PCRA). We

affirm.

        We briefly summarize the facts and procedural history of this case as

follows. On March 31, 1988, a jury found Appellant guilty of second-degree

murder, robbery, theft, and criminal conspiracy. The trial court sentenced

Appellant to life imprisonment. We affirmed Appellant’s judgment of sentence

on August 2, 1991. See Commonwealth v. Blake, 598 A.2d 1326 (Pa.

Super. 1991) (unpublished memorandum).               Our Supreme Court denied

further review. See Commonwealth v. Blake, 600 A.2d 533 (Pa. 1991).
____________________________________________


1   42 Pa.C.S.A. §§ 9542-9546.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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On January 20, 2016, Appellant filed a pro se request for DNA testing under

Section 9543.1 2 The trial court appointed counsel to represent Appellant. In

November 2017, Appellant filed a motion to hire a private investigator, which

the trial court granted.           Through the investigator, appointed counsel

discovered that police recovered an empty package of Marlboro cigarettes

from the victim’s car found in North Carolina three months after the killing. 3
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2   This Court previously determined:

       An application for DNA testing should be made in a motion, not in
       a PCRA petition. Though brought under the general rubric of the
       PCRA, motions for post-conviction DNA testing are clearly
       separate and distinct from claims brought pursuant to other
       sections of the PCRA. This Court has consistently held the
       one-year jurisdictional time bar of the PCRA does not apply to
       motions for DNA testing under Section 9543.1.

                               *               *     *

       Importantly, a motion for post-conviction DNA testing does not
       constitute a direct exception to the one-year time limit for filing a
       PCRA petition. Instead, it gives a convicted person a vehicle to
       first obtain DNA testing which could then be used within a PCRA
       petition to establish new facts in order to satisfy the requirements
       of an exception under 42 Pa.C.S.A. § 9545(b)(2).

Commonwealth v. Williams, 35 A.3d 44, 50 (Pa. Super. 2011) (internal
citations and quotations omitted). Here, Appellant filed the requisite motion
for DNA testing. Because the request for DNA testing precedes a formal PCRA
petition, we will refer to the lower court as the “trial” court rather than the
“PCRA” court.

3  Relevant to this appeal, two co-workers discovered the victim’s body in his
apartment in the Dormont area of Allegheny County near Pittsburgh,
Pennsylvania. Police apprehended Appellant in Florida and discovered the
victim’s car in North Carolina, three months after the killing. The physical



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The cigarette package, wrapped in a paper bag and discovered in a box of

evidence unrelated to this case, was marked as Exhibit #41 and indicated that

the crime laboratory examined and repackaged it on August 25, 1987.

Appellant requested that the trial court enter an order for DNA testing of the

empty cigarette package. On April 26, 2018, the trial court denied relief by

order and opinion. This timely appeal resulted.4

       On appeal, Appellant presents the following issue for our review:

       I.     Whether there [is] a reasonable probability that DNA testing
              on a discovered cigarette pack would produce exculpatory
              evidence that would establish Appellant’s actual innocence
              of the crime[s] he was convicted of?

Appellant’s Brief at 4.

       In summary, Appellant argues:

       The sole piece of remaining evidence discovered from
       [Appellant’s] case, which [Appellant] sought to test for DNA, was
       an empty pack of Marlboro cigarettes that were discovered in
____________________________________________


evidence presented at trial showed that the victim was killed inside his
apartment, not inside his vehicle. See Commonwealth v. Blake, 598 A.2d
1326, at *1-4 (Pa. Super. 1991) (unpublished memorandum).

4   An order denying a motion for DNA testing is a final order. See
Commonwealth v. Scarborough, 9 A.3d 206 (Pa. Super. 2010), reversed
on other grounds, 64 A.3d 602 (Pa. 2013); see also 42 Pa.C.S.A.
§ 9543.1(d)(3) (“Any DNA testing order under [S]ection [9543.1] shall
constitute a final order. An applicant or the Commonwealth may appeal a
decision denying or granting a DNA testing order in accordance with the
Pennsylvania Rules of Appellate Procedure.”). Appellant filed a timely notice
of appeal on May 25, 2018. On May 31, 2018, the trial court directed Appellant
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b) before July 2, 2018. Appellant complied timely. On July 16,
2018, the trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) relying
entirely upon its prior April 26, 2018 opinion as rationale for denying relief.

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      Carolina Beach, North Carolina, in the victim’s car. This evidence,
      along with the car, were discovered three months after the
      victim’s death.

      Since the case against [Appellant] relied solely on (unreliable)
      eyewitness accounts, and, more particularly, the whole case
      would be decided on whether [Appellant] was spotted in the
      victim’s car before his death – which the Commonwealth argued
      – the discovered pack of Marlboros was material evidence that
      afforded [Appellant] “the opportunity to establish the unlikely” –
      the identity of unknown third party who could undermine the
      [trial] witnesses’ identification of [Appellant].

      The [trial] court should [have] afforded [Appellant] the right to
      conduct DNA testing. And, provided it did not, the [trial] court
      abused its discretion in light of this Court’s precedent construing
      the post-conviction DNA statute.

Id. at 16.

      More specifically, Appellant argues that “the victim’s car was seemingly

abandoned and untouched immediately following the victim’s death” and,

thus, “it [was] more likely than not that the Marlboro pack is linked to the

car’s last occupants of May 1987.” Id. at 21-22. As such, Appellant “contends

that testing the Marlboro cigarette pack, discovered from the victim’s car,

could establish the presence of some other third-party in that vehicle, who the

Commonwealth’s teenage witnesses mistook for [Appellant].”          Id. at 20.

Moreover, Appellant maintains that the Commonwealth argued in 1988 that

Appellant was the third person seen riding with the victim and a co-defendant

in the victim’s car close in time to the murder and, therefore, the Marlboro

package is material evidence.     Id. at 23.    Appellant concedes that the

purported DNA evidence will not singlehandedly prove his innocence, but

claims that “if DNA [is] extracted from the Marlboro pack that identifies an


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unknown person – not the victim, [co-defendant], or [Appellant] – then surely

such evidence further undermines the unreliable identifications used to convict

[Appellant] in the first place.” Id. at 23-24.

      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.

         (2)   The evidence may have been discovered either prior to
               or after the applicant's conviction. The evidence shall be
               available for testing as of the date of the motion. If the
               evidence was discovered prior to the applicant's
               conviction, 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 evidence was subject to the
               testing, but newer technology could provide substantially
               more accurate and substantially probative results, or the


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              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.

       (3)    A request for DNA testing under this section shall be by
              written petition and shall be filed with the clerk of courts
              of the judicial district where the sentence is imposed.

       (4)    DNA testing may be sought at any time if the 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.

       (5)    Notwithstanding any other provision of law, a plea of
              guilty to a crime of violence, as defined in section
              9714(g) (relating to sentences for second and
              subsequent offenses), or a confession given by an
              applicant concerning the offense for which the applicant
              was convicted, shall not prohibit the applicant from
              asserting actual innocence under subsection (c)(2) or the
              court from making a determination and ordering DNA
              testing under subsection (d)(2).

       (6)    The motion shall explain how, after review of the record
              of the applicant's trial, there is a reasonable possibility if
              the applicant is under State supervision, or there is a
              reasonable probability if the applicant is not under State
              supervision, or after review of the record of the
              applicant's guilty plea there is a reasonable probability,
              that the testing would produce exculpatory evidence that
              would establish:

              (i)      the applicant's actual innocence of the offense
                       for which the applicant was convicted;

                              *      *    *
          (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

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          (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) in a sworn statement subject to the penalties under
          18 Pa.C.S. §§ 4902 (relating to perjury) and 4903 (relating
          to false swearing), 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[.]

                            *       *         *

          (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[.]

                                *        *        *
          (d) Order.—

          (1) Except as provided in paragraph (2), the court shall
          order the testing requested in a motion under subsection (a)
          under reasonable conditions designed to preserve the
          integrity of the evidence and the testing process upon a
          determination, after review of the record of the applicant's
          trial, that the:

                (i) requirements of subsection (c) have been met;




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                 (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 for an applicant under State
           supervision, or there is no reasonable probability for an
           applicant not under State supervision, or after review of the
           record of the applicant's guilty plea, the court determines
           that there is no reasonable probability, 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 (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.

     [Commonwealth v.] B. Williams, [35 A.3d 44, 50-51 (Pa.
     Super. 2011)] (emphasis added). See also Commonwealth v.
     G. Williams, 909 A.2d 383 (Pa. Super. 2006) (affirming dismissal
     of request for post-conviction DNA testing where appellant's
     identity as perpetrator was not at issue in rape case; appellant's
     theory of case at trial was that he had consensual sex with victim;

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       because appellant's participation was confirmed, DNA testing
       would not establish his innocence).

       Significantly, in DNA testing cases, “an absence of evidence is not
       evidence of absence.” Commonwealth v. Heilman, 867 A.2d
       542, 547 (Pa. Super. 2005). See also B. Williams, supra
       (affirming trial court's denial of DNA testing where appellant failed
       to meet threshold requirements for DNA testing, under Section
       9543.1(a)(2), and did not demonstrate prima facie case of “actual
       innocence”; even if appellant's DNA were not found on hat/wig,
       record contained overwhelming evidence of appellant's guilt
       including three unshakable eyewitnesses, appellant's confession,
       and appellant's access to weapon used in crimes);
       Commonwealth v. Smith, 889 A.2d 582 (Pa. Super. 2005),
       appeal denied, 905 A.2d 500 (Pa. 2006) (affirming denial of
       request for post-conviction DNA testing where absence of
       appellant's DNA from victim's fingernails would not establish
       appellant's innocence of victim's murder; nothing in record
       supported appellant's claim that victim would have scratched her
       assailant leaving DNA evidence under her fingernails).

Walsh, 125 A.3d at 1254–1255 (Pa. Super. 2015) (emphasis in original).

       In this case, the trial court concluded:

       The victim of this stabbing was found in his own apartment. He
       was not found in a car which is where the empty pack of
       [cigarettes] was found.[5]       Conspicuous by its absence is
       [Appellant’s] failure to explain this analytical gap. Furthermore,
       the [] cigarette pack [] was found in a car, in a different state and,
       some three months AFTER the killing. These “facts” lead to one
       question – when was the pack left there? [Appellant] simply
       cannot answer that question. The inability of [Appellant] to
       adequately address these factual holes in his claim prevents [the
       trial c]ourt from concluding that DNA results would establish his
       actual innocence.

Trial Court Opinion, 4/26/2018, at 2.



____________________________________________


5 Upon review of the record, we note that there was no evidence presented
at trial to suggest that the victim was stabbed inside his vehicle.

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      Upon review, we agree with the trial court’s assessment. Appellant’s

petition did not establish a prima facie case that the DNA results, if

exculpatory, would establish Appellant’s actual innocence.      As previously

stated, the absence of evidence is not evidence of absence. Thus, even if

Appellant could establish the absence of his own DNA or the presence of DNA

from a third-party, such evidence would not establish that Appellant was

innocent. Moreover, as the trial court astutely noted, there is no evidence to

suggest when someone discarded the cigarette package in the vehicle. It may

have been there well before the killing. Although less likely, someone may

have discarded the cigarette package after the vehicle was stolen and/or

abandoned. Thus, we reject Appellant’s suggestion that it was more likely

than not that the cigarette package was linked to the car’s last occupants of

May 1987. Finally, even if tests revealed another party’s DNA on the cigarette

package, such evidence would not directly implicate that other person as the

killer (or co-defendant) or somehow exculpate Appellant. Appellant’s claim is

mere conjecture, as there is no direct correlation between the cigarette

package and the crimes.     Thus, DNA tests would not establish Appellant’s

actual innocence.       Because Appellant failed to satisfy the statutory

requirements listed in Section 9543.1, we discern no trial court error in

denying Appellant relief for DNA testing.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/11/2019




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