J-S27037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                           Appellee

                      v.

MARK M. RING,

                           Appellant               No. 1238 MDA 2015


                Appeal from the PCRA Order June 17, 2015
             In the Court of Common Pleas of Luzerne County
            Criminal Division at No(s): CP-40-CR-0004097-2006

BEFORE: SHOGAN, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                      FILED APRIL 28, 2016

     This is a pro se appeal from the order entered in the Court of Common

Pleas of Luzerne County by the learned Judge Joseph Augello dismissing

Appellant Mark M. Ring’s (“Appellant”) motion for post-conviction DNA

testing. We affirm.

     After returning home from work at 4:00 a.m. on July 4, 2006, 53 year-

old Joseph Tarreto (“Tarreto”) took his dog for a walk in the back yard as

was his recent routine. N.T. (Preliminary Hearing), October 4, 2006, at 8-9.

His fiancée, Elizabeth Powell, was in the kitchen as Tarreto walked out, and

she heard him cry out in pain just seconds later before saying “he’s back.”

Id. at 9. Powell knew immediately Tarreto was referring to Appellant, as the

two men had a history of feuding and had engaged in a physical altercation

several days earlier. Id. at 24-25.



*Former Justice specially assigned to the Superior Court.
J-S27037-16



      Powell ran to the back door and looked out into the well-illuminated

back yard, where she saw a man wearing a dark colored baseball hat and a

white painter’s mask striking down at Tarreto with an aerosol paint can as

Tarreto assumed a defensive posture with his arms held up.      Id. at 9-10,

31.   Powell intervened and recognized the assailant as Appellant when his

mask came down. Id. at 10. In the time it took Appellant to subdue Powell,

Tarreto was able to come from behind Powell and push Appellant away from

her and toward the rear of the yard, where the two men entered an adjacent

grassy area leading to a cindered lot belonging to the Plains Township

Ambulance Association. Id. at 12-13, 26-27.

      Seconds later, Powell heard Tarreto yell in disbelief “he has a gun.”

Id. at 13.    Powell looked up and saw a flash as she heard a gunshot,

followed by Tarreto saying “he shot me.”      Id. at 13.   Powell watched as

Appellant fired two more shots into Tarreto, who fell first to his knees and

then face-down to the ground.      Id. at 13-14, 16.   Powell ran to call for

emergency assistance. Id. at 14.

      Tarreto lay dead at the scene when authorities arrived.        William

Lisman, Chief Deputy Coroner of Luzerne County, testified he had attended

an autopsy performed on Tarreto which revealed not only three gunshot

wounds but also multiple abrasions, bruises, and lacerations on Tarreto’s

face, scalp, chest, back, and arms. Id. at 50-52. Lisman recalled how the

doctor performing the autopsy noted one such injury, a rectangular shaped




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injury to Tarreto’s back, was consistent with the shape of a wooden spindle

recovered from the crime scene. Id. at 56-57.

      Pursuant to a negotiated plea agreement, Appellant pled guilty on

March 17, 2007, to one count of murder in the third degree, 18 Pa.C.S.A. §

2502(c), and received a sentence of 12 to 24 years of incarceration. He filed

neither post-sentence motions nor a direct appeal.

      Appellant subsequently filed a timely first petition under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, asserting

ineffective assistance of plea counsel.     The PCRA court entered an order

denying relief, this Court affirmed the order, see Commonwealth v. Ring,

996 A.2d 554 (Pa.Super. 2010) (unpublished memorandum at 1-2), and the

Supreme Court of Pennsylvania denied allowance of appeal.           See id.,

appeal denied, 5 A.3d 819 (Pa. 2010).          Appellant filed a second PCRA

petition asserting after-discovered evidence relating to the Pennsylvania

Supreme Court’s order vacating all juvenile system adjudications made in a

five-year period by former Judges Mark Ciavarella and Michael Conahan.

Specifically, Appellant sought vacation of the order appointing PCRA counsel

in his first PCRA challenge because it had been entered by disreputed Judge

Ciavarella.    The PCRA court dismissed Appellant’s second petition, and we

affirmed.     Commonwealth v. Ring, ___ A.3d. ____, No. 718 MDA 2014

(Pa.Super. filed January 13, 2015).

      On March 6, 2014, while Appellant’s second PCRA appeal was pending,

Appellant filed a motion for post-conviction DNA testing pursuant to 42

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Pa.C.S.A. § 9543.1.1       Specifically, Appellant sought so-called “Touch DNA”

testing2 of the wooden spindle to establish Tarreto had held the spindle, a

____________________________________________


1
 The statute that governs post-conviction DNA testing provides, in relevant
part:

    § 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 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 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.

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

    (1)(i) specify the evidence to be tested;
    ***
    (2)(i) assert the applicant's actual innocence of the offense for which
    the applicant was convicted; and
    ***
    (3) present a prima facie case demonstrating that the:
(Footnote Continued Next Page)


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test result which, Appellant claims, would prove he shot Tarreto in self-

defense and would warrant vacation of his judgment of sentence and a

remand for new proceedings.             The PCRA court entered an order holding

                       _______________________
(Footnote Continued)

       (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;
        ***
        (ii) 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. § 9543.1(a), (c), (d).
2
    We describe Touch DNA testing more fully, infra.



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Appellant’s motion pending determination of Appellant’s PCRA appeal. After

this Court affirmed the order denying PCRA relief on Appellant’s second

petition, the PCRA court issued an intention to dismiss Appellant’s motion for

DNA testing without a hearing pursuant to Pa.R.Crim.P. 907. Appellant filed

objections, and the court ordered the Commonwealth to file a response,

which the court received on May 21, 2015.

      Upon    review   of   the   record,     Appellant’s   objections,    and   the

Commonwealth’s     response,      the   court   entered     an   order    dismissing

Appellant's motion for post-conviction DNA testing, positing that he did not

meet the requirements of section 9543.1.            First, the court determined

Appellant acted with unreasonable delay by waiting 7 years after his 2007

sentencing to seek palm/fingerprint “Touch DNA” testing of a wooden spindle

of which he was aware at the time of his guilty plea.               “This delay is

unreasonable in light of the totality of the history of the case.” PCRA Court

Opinion, dated June 16, 2015, at 2.

      Furthermore, the court continued, Appellant could not satisfy the

provisions of section 9543.1(c)(3)(i), which required Appellant to present a

prima facie case demonstrating his identity or participation in the crime was

at issue in the proceedings that resulted in his conviction and sentencing.

“[Appellant’s] conviction rests upon his guilty plea, not on identification

evidence [produced at a trial],” the court noted.            Nor was Appellant’s

participation in the crime at issue, the court reasoned, as “[his] petition




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indicates that [he] seeks DNA testing as evidence of self-defense.” Id. This

timely appeal followed.

      “[W]hen examining the propriety of an order resolving a request for

DNA testing, we employ the PCRA standard of review.” Commonwealth v.

Gacobano, 65 A.3d 416, 419 (Pa.Super. 2013).        “Our standard of review

regarding a PCRA court's order is whether the determination of the PCRA

court is supported by the evidence of record and is free of legal error.”

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa.Super. 2011).             “The

PCRA court's findings will not be disturbed unless there is no support for the

findings in the certified record.” Id.

      Appellant argues his motion for DNA testing was not a PCRA petition

and the court should not have dismissed it as an untimely serial petition

under section 9545(b)(1). He contends the DNA evidence he seeks would

prove he shot his victim in self-defense, he is entitled to such DNA testing,

and the court improperly denied him of his constitutional rights to obtain

such testing. We disagree.

      Initially, we note that motions for post-conviction DNA testing “are

clearly separate and distinct from claims brought pursuant to other sections

of the PCRA.”    Commonwealth v. Williams, 35 A.3d 44, 50 (Pa.Super.

2011) (quoting Commonwealth v. Perry, 959 A.2d 932, 938 (Pa.Super.

2008)).   “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.” Id. (internal citations omitted).

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      It is clear that, to the extent the PCRA court deemed Appellant’s

motion untimely, it did so not pursuant to the timeliness provisions of the

PCRA’s    section    9545(b)(1)    but,    instead,     pursuant   to   section

9543.1(d)(1)(iii), which provides the court shall order testing only after,

inter alia, reviewing the record and making a determination that the motion

has been made in a timely manner.

      According to the PCRA court, Appellant was aware of the existence of

the spindle for at least seven years prior to filing this motion for DNA testing

and, for that reason, was untimely in making his present request. However,

because the court did not address Appellant’s contention that the type of

DNA testing requested was relatively new, we decline to affirm on this basis.

Instead, we examine whether Appellant met the threshold requirements to

obtain DNA testing and, if he did, whether Appellant carried his statutory

burden to make a prima facie case, first, that his participation in the crime

was at issue in the proceedings resulting in his conviction and, second, that

the DNA evidence, assuming exculpatory results, would establish his actual

innocence of the crime.

            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.

Williams, 35 A.3d at 47 (internal citations omitted).

      Regarding the post-conviction DNA statute, we observe:



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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 was
     discovered prior to the applicant's conviction, it was not already
     DNA tested because (a) technology for testing did not exist at
     the time of the applicant's trial; (b) the applicant's counsel did
     not request testing in a case 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 despite the client's indigency.        Additionally, ...
     [u]nder section 9543.1(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
     petitioner's actual innocence of the crime.         Under section
     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
     reasonable possibility that the testing would produce exculpatory
     evidence to establish petitioner's actual innocence. 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 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 petitioner's actual innocence. We find no
     ambiguity in the standard established by the legislature with the
     words of this statute.

Id. at 49–50.

     First, we find that Appellant does not meet the threshold requirements

for post-conviction DNA testing under 42 Pa.C.S. § 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:




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     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. § 9543.1(a)(2).     A petitioner, therefore, “does not meet the

requirements of § 9543.1(a)(2) [if] the technology existed at the time of his

trial, the verdict was rendered after January 1, 1995, and the court never

refused funds for the testing.”   Commonwealth v. Williams, 899 A.2d

1060, 1063 (Pa. 2006).

     Appellant fails to substantiate his otherwise bald assertion that “Touch

DNA”—a process by which DNA may be extracted from small amounts of

skin cells shed upon objects—represents a new investigation technology that

did not exist at the time of his guilty plea. Our research reveals that Touch

DNA was first developed in 1997 and first used by investigators in the United

States by 2003.

     The touch DNA method—named for the fact that it analyzes skin
     cells left behind when assailants touch victims, weapons or
     something else at a crime scene—has been around for the last
     five years. In fact, the prosecutor in the [Jon Benet] Ramsey
     case, Boulder County District Attorney Mary Lacy, learned about
     touch DNA when she attended a course here at the West Virginia
     University Forensic Science Initiative in the summer of 2007.

Scientific American, “What is Touch DNA?,” August 8, 2008. Under section

9543.1(a)(2), Appellant was required to show that the spindle was not

Touch DNA-tested because “technology for testing did not exist at the time



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of trial.” It appears such technology for testing did, in fact, exist at the time

Appellant entered his guilty plea.        Without so much as arguing the

technology was so infrequently used or not yet generally accepted in our

jurisdiction as to have been unavailable and, effectively, nonexistent in that

sense, Appellant has failed to satisfy the threshold requirements of

9543.1(a)(2).    Perry, 959 at 938-39 (affirming on section 9543.1(a)(2)

threshold conditions).

      Even if we were to assume, arguendo, Touch DNA was not available at

the time of his guilty plea so as to prohibit the conclusion that the

technology existed for purposes of section 9543.1(2)(a), Appellant’s motion

would nevertheless falter under section 9543.1(c)(3) review.        Specifically,

Appellant has not made a prima facie case under either subsection (c)(3)(i),

that his participation in the crime was at issue in the proceedings below

leading to his conviction, or under subsection (c)(3)(ii)(A), that Touch DNA

results would establish his actual innocence.

      In Williams v. Erie County Dist. Atty's Office, 848 A.2d 967, 972

(Pa.Super. 2004), appeal denied, 864 A.2d 530 (Pa. 2004), a three-judge

panel of this Court unanimously held that “the language of § 9543.1 clearly

precludes that section's application to petitioners seeking to challenge

convictions resulting in guilty pleas by reference to DNA evidence.”       In so

holding, the panel reasoned a defendant who pled guilty could not

demonstrate that his identity or participation in the crime was at issue at the

guilty plea proceedings:

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      In light of this language [found in section 9543.1(c)], we are
      constrained to interpret § 9543.1 to preclude application to an
      applicant who has pleaded guilty.        Subsection 9543.1(c)(3)
      requires the applicant to demonstrate that the “identity of or the
      participation in the crime by the perpetrator was at issue in the
      proceedings that resulted in the applicant's conviction.” Id. §
      9543.1(c)(3)(i). We fail to see how this mandatory element of
      an applicant's prima facie case can be demonstrated where he
      pleaded guilty, thus nullifying any subsequent claim that the
      “identity of or the participation in the crime by the perpetrator
      was at issue.” Cf. [Commonwealth v.] Guth, 735 A.2d [709,]
      711 n. 3. Indeed, on the plain language of the statute, such a
      claim also must fail because we do not read the statute's use of
      “proceedings” to encompass negotiations between the
      prosecution and the defense regarding plea bargains.


Id. at 972. “It is axiomatic that a three-judge panel is bound by previous

panel opinions unless overruled by this Court sitting en banc, our Supreme

Court, or the United States Supreme Court.” Commonwealth v. Pepe, 897

A.2d 463, 465 (Pa.Super. 2006) (citation omitted), cert. denied, Pepe v.

Pennsylvania, 566 U.S. 881 (2008). Accordingly, we find Appellant is not

entitled to relief on this basis.

      Nor has Appellant demonstrated that Touch DNA results placing the

spindle in Tarreto’s hand would establish his actual innocence. In order to

establish a defendant's actual innocence, “the newly discovered evidence

must make it ‘more likely than not that no reasonable juror would have

found him guilty beyond a reasonable doubt.’ ... [T]his standard requires a

reviewing   court   ‘to   make      a   probabilistic   determination   about   what

reasonable, properly instructed jurors would do,’ if presented with the new




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evidence.” Commonwealth v. Conway, 14 A.3d 101, 109 (Pa.Super.

2011) (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).

       The gist of Appellant’s contention is that if Touch DNA testing of the

wooden spindle recovered 25 feet from Tarreto’s body at the crime scene

confirms Tarreto held the spindle, then it would provide previously

unavailable evidence that Tarreto posed a threat of serious bodily harm to

Appellant at the time Appellant fired the fatal gunshots.     Appellant argues

that such evidence “would have affected the outcome of a trial as it would

have created a reasonable doubt Ring acted with malice, . . . an element of

third degree murder.” Appellant’s brief at 22.

       What Appellant fails to address, however, is that the circumstances

surrounding his shooting of Torreto were generally inconsistent with his

having done so in self-defense. A disguised Appellant ambushed Torreto in

his own yard, beat him about the head and body with the butt end of a

metal spray can, and assaulted Ms. Powell in her attempt to come to

Torreto’s aid.3      As for the wooden spindle itself, autopsy observations

matched at least one of Torreto’s wounds with the spindle, the spindle was

____________________________________________


3
  “Generally, the use of force ‘is justifiable when the actor believes that such
force is immediately necessary for the purpose of protecting himself against
the use of unlawful force’ by another. 18 Pa.C.S. § 505(a). However,
deadly force is not justified when the defendant provoked the use of force
against himself. Id., § 505(b)(2)(i).” Commonwealth v. Houser, 18 A.3d
1128, 1139 (Pa. 2011).




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discovered approximately 25 feet away from where Tarreto was shot and

fell, and Ms. Powell testified that she did not observe Tarreto holding

anything at the time he was shot.

         Even assuming Touch DNA results would place the spindle in Tarreto’s

hand at some point, as we must assume under the subsection (c)(3)(ii)(A)

analysis, we nevertheless conclude the totality of evidence is wholly

inconsistent with a self-defense narrative portraying Tarreto as a spindle-

wielding aggressor who placed Appellant in legitimate fear of serious bodily

injury warranting the use of deadly force.       Given the circumstances, we

discern no indication in the record that Touch DNA evidence would have

made it “more likely than not that no reasonable juror would have found

Appellant guilty beyond a reasonable doubt.”        It follows, therefore, that

Appellant cannot establish actual innocence as required under the DNA

statute, and we would, thus, agree with the PCRA court’s conclusion on this

point.

         For all the foregoing reasons, we affirm the order denying Appellant’s

request for DNA testing.

         Order is AFFIRMED.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/28/2016

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