J-S42025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANTONIO J. BUNDY,                          :
                                               :
                       Appellant               :   No. 3123 EDA 2018


               Appeal from the Order Dated September 18, 2018,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0715041-1976.


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

MEMORANDUM BY KUNSELMAN, J.:                          FILED OCTOBER 11, 2019

        Antonio Bundy appeals, pro se, from the order denying his motion for

DNA testing filed pursuant to Section 9543.1 of the Post Conviction Relief Act

(“PCRA”). 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        The PCRA court provided the following relevant facts and procedural

history as follows:

              [Bundy] was arrested and subsequently charged in
           connection with the daytime robbery and fatal stabbing of a
           seventy-one-year-old man in center city Philadelphia. In
           December 1976, following a jury trial presided over by the
           Honorable Berel Caesar, [Bundy] was convicted of second-
           degree murder, robbery, resisting arrest, possession of an
           instrument of crime, and weapons offenses. On October 4,
           1977, [Bundy] was sentenced to life imprisonment for the
           murder conviction and lesser concurrent sentences for the
           remaining convictions.    Following a direct appeal, the
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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        Pennsylvania Supreme Court affirmed the judgment of
        sentence on May 16, 1980. [Commonwealth v. Bundy,
        414 A.2d 130 (Pa. 1980).]

            On October 13, 1983, [Bundy] filed his first petition for
        collateral relief under the former provisions of the Post
        Conviction Hearing Act (“PCHA”). Counsel was appointed,
        and after an evidentiary hearing, the PCHA court denied
        relief. On March 22, 1985, the Superior Court affirmed the
        PCHA court’s denial of relief by per curiam order.
        [Commonwealth v. Bundy, 494 A.2d 476 (Pa. Super.
        1985).] [Bundy] did not petition for allowance of appeal
        with our Supreme Court.

           [Bundy] was subsequently unsuccessful in obtaining
        post-conviction relief through multiple serial petitions,
        including those filed in 2011 and 2012. On April 23, 2015,
        [Bundy] filed his fifth pro se collateral petition. On August
        31, 2017, the PCRA court dismissed his petition as untimely
        and denied habeas corpus relief. [Bundy’s] subsequent
        appeal is currently pending before the Superior Court (3221
        EDA 2017).

           On February 2, 2018, [Bundy] filed a motion for DNA
        testing. The PCRA court denied the motion on September
        18, 2018. On October 16, 2018, the instant notice of appeal
        was timely filed to the Superior Court.

PCRA Court Opinion, 12/6/18, at 1-2 (footnotes omitted). The PCRA court did

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

     Bundy now raises the following issues, which we reproduce verbatim:

        [1.]     Have the lower court abuse its discretion,

        [2.]     Have the lower court misapplied the statutes,

        [3.]     Have the lower court misapplied the law,

        [4.]     Have the lower court violated its own rules
                 arbitrarily,

        [5.]     Have the lower court deprive [Bundy] of justice,




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         [6.]     Have the lower court denied [Bundy]               the
                  opportunity to prove his innocence[.]

Bundy’s Brief at 6. We will address these claims together.

      We review an order denying a motion for post-conviction DNA testing

as follows:

             Generally, the [PCRA] 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. Williams, 35 A.3d 44, 47 (citations omitted).

      Section 9543.1, in pertinent part, reads as follows:

§ 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

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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.

                                  ***

       (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

        (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) assert the applicant's actual innocence of the 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
       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:


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

             (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 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. § 9543.1.1

       As we explained in Williams:

          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 prime facie case that the DNA results, if
          exculpatory, would establish actual innocence.

Williams, 35 A.3d at 50.




____________________________________________


1We note that the Pennsylvania legislature rewrote this section, effective
December 24, 2018. See Act-2018-147, § 1.



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       In the instant case, the PCRA court concluded that, even though Bundy

had not established the threshold requirements, had he done so, he failed to

present a prima facie case of “actual innocence.” The court explained:

             At the outset, [Bundy] failed to meet his initial burden
          under § 9543.1(c)(1). [Bundy] failed to state that he
          consented to provide samples of bodily fluid for use in DNA
          testing and acknowledge that he 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 him in other cases.
          42 [Pa.C.S.A.] § 9543.1(c)(1)(ii), (iii).

             Even assuming that [Bundy] satisfied the threshold
          requirements under subsection 9543(c)(1), he failed to
          present a prima facie case of “actual innocence.” See id. §
          9543.1(c)(3)(ii)(A).     Specifically, [Bundy] failed to
          acknowledge his burden of proof, let alone provide any
          meaningful analysis to demonstrate that, assuming
          exculpatory results, the DNA testing would establish his
          innocence. See id. These omissions were fatal to [Bundy’s]
          attempt to obtain DNA testing.

PCRA Court Opinion, 12/6/18, at 3. Our review of Bundy’s motion, in light of

the   statutory    requirements      listed    above, supports the   PCRA court’s

conclusions.2

       Bundy’s arguments to the contrary are unavailing. He first argues that

the PCRA court mistakenly treated his motion as an untimely PCRA petition.
____________________________________________


2 The Commonwealth contends that the PCRA court lacked jurisdiction to
consider Bundy’s motion while his appeal from the denial of his fifth petition
was pending.    See Commonwealth’s Brief at 8-9.         As noted by the
Commonwealth, this Court quashed this appeal on January 7, 2019. See
Commonwealth v. Bundy, No. 3221 EDA 2017. We decline to affirm on this
basis.


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The above-cited discussion by the PCRA court clearly establishes that it did

not.

       In addition, Bundy cites no pertinent authority for his contention that he

must be afforded a hearing before his motion for DNA testing is dismissed.

Although he cites to Commonwealth v. Smith, 818 A.2d 494 (Pa. 2003),

this case did not deal with DNA testing or the right to an evidentiary hearing.

Rather, in Smith, our Supreme Court agreed with decisions from this Court

and held that Pa.R.Crim.P. 904 “mandates that an indigent petitioner, whose

first PCRA petition appears untimely, is entitled to the assistance of counsel in

order to determine whether any of the exceptions to the one-year time

limitation apply.”     Smith, 818 A.2d at 500-01 (citing Commonwealth v.

Ferguson, 722 A.2d 177 (Pa. Super. 1998)).

       Lastly, Bundy proffers no argument that there is a reasonable probability

that the DNA results, if exculpatory, would establish his innocence. Although

in his motion he maintains his innocence, Bundy has not averred that his

identification or participation in the crime was at issue in his trial. See 42

Pa.C.S.A. § 9543.1(a)(3)(i). As this Court noted in affirming the dismissal of

Bundy’s PCHA petition, “[t]he stabbing had been observed by eyewitnesses,

and Bundy had been apprehended as he fled from the scene. The defense

argued, in the alternative, that Bundy had acted in self-defense or, at least,

in   the   heat   of   passion   sufficient   to   reduce   his   guilt   to   voluntary

manslaughter.”)        Commonwealth v. Bundy, 494 A.2d 476 (Pa. Super.




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1985), unpublished memorandum at 3.              Bundy does not even attempt to

explain how DNA testing would assist him in establishing his innocence.3

       In sum, because the PCRA court correctly determined that Bundy failed

to satisfy the requirements of Section 9543.1, we affirm the court’s order

denying his motion of DNA testing.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/19




____________________________________________


3 We do not consider Bundy’s bare assertion that his continued confinement
constitutes cruel and unusual punishment under both the federal and state
constitutions because he did not raise the claim statement of questions
involved. See Pa.R.A.P. 2116(a) (providing “[n]o question will be considered
unless it is stated in the questions involved or is fairly suggested thereby”).


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