J-S35026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

MALIK T. CARTER,

                         Appellant                    No. 2008 EDA 2015


                 Appeal from the Order Entered June 4, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0012444-2010


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                           FILED JUNE 14, 2016

      Appellant, Malik T. Carter, appeals pro se from the post-conviction

court’s June 4, 2015 order denying his petition under section 9543.1 of the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      In July of 2012, Appellant was convicted by a jury of third-degree

murder, carrying a firearm without a license, carrying a firearm on a public

street in Philadelphia, and possessing an instrument of crime.             On

September 6, 2012, he was sentenced to an aggregate term of 28½ to 57

years’ incarceration. Appellant did not file a direct appeal.

      However, on May 29, 2013, Appellant filed a PCRA petition seeking the

restoration of his right to file a direct appeal nunc pro tunc.           The

Commonwealth did not oppose Appellant’s request, and the court granted

his petition and reinstated his direct appeal rights.    On July 1, 2014, this
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Court affirmed Appellant’s judgment of sentence, and on January 13, 2015,

our   Supreme       Court    denied     his    petition   for   allowance   of   appeal.

Commonwealth v. Carter, 105 A.3d 778 (Pa. Super. 2014) (unpublished

memorandum), appeal denied, 106 A.3d 724 (Pa. 2015).

       On May 29, 2015, Appellant filed a pro se “Motion for DNA Ballistic

Forensic Testing.”       Therein, Appellant “sought an order pursuant to 42

[Pa.C.S.] § 9543.1 for: (1) forensic ballistic testing of certain bullets; (2)

forensic ballistic testing of certain fired cartridge casings; and (3) forensic

gunshot residue testing of a truck.” PCRA Court Opinion (PCO), 7/2/15, at

1-2.1 On June 4, 2015, the PCRA court issued an order denying Appellant’s

motion, concluding that section 9543.1 “does not … authorize a post-

conviction petition for ballistics testing or gunshot residue testing.”           PCRA

Court Order, 6/4/15, at 1 (citing 42 Pa.C.S. § 9543.1(a)).

       Appellant filed a timely notice of appeal. He was not ordered to file a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, but

the PCRA court issued a Rule 1925(a) opinion on July 2, 2015.                    Herein,

____________________________________________


1
   Appellant’s “Motion for DNA Ballistic Forensic Testing” is neither docketed,
nor contained in the certified record. However, Appellant confirms that he
filed that document on May 29, 2013, and his summary of what testing he
sought in that motion mirrors the description provided by the PCRA court in
its opinion, quoted supra. See Appellant’s Brief at 1 (stating he “sought an
order pursuant to 42 Pa.C.S.A. § 9543.1(a)(1) for: (1) forensic ballistics
testing of certain bullets; (2) forensic ballistics testing of certain fired
cartridge casing[s]; and (3) forensic gunshot residue testing of a truck at the
crime scene”).



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Appellant presents one question for our review, which we reproduce

verbatim:
     Did lower court denied defendant access to the courts for motion
     for DNA forensic ballistics testing to support his innocence under
     Commonwealth v. Brooks remanded by this Superior Court of
     Pennsylvania if evidence is available for testing?

Appellant’s Brief at 2 (emphasis and unnecessary capitalization omitted).

     To begin, we note that:

     When reviewing the denial of a PCRA petition, our scope of
     review is limited by the parameters of the act. Our 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. Moreover, in general we may
     affirm the decision of the trial court if there is any basis on the
     record to support the trial court's action; this is so even if we
     rely on a different basis in our decision to affirm.

Commonwealth v. Brooks, 875 A.2d 1141, 1144 (Pa. Super. 2005).

     Additionally, this Court has addressed motions filed under section

9543.1 as follows:

     Motions for post-conviction DNA tests, while considered post-
     conviction petitions under the PCRA, are “clearly separate and
     distinct from claims pursuant to other sections of the PCRA.”
     Commonwealth v. Williams, 909 A.2d 383, 384 n. 1 (Pa.
     Super. 2006). It is well-recognized that the one-year time bar
     proscribed under the PCRA does not apply to petitions for post-
     conviction DNA testing under Section 9543.1. See, e.g., []
     Brooks, 875 A.2d [at] 1146 …; Commonwealth v. Young, 873
     A.2d 720, 724 (Pa. Super. 2005). In addition, petitions for post-
     conviction DNA testing are unique in that the petition does not
     carry with it the right to counsel. Brooks, 875 A.2d at 1147
     (“Nowhere does Section 9543.1 confer upon a petitioner the
     right to counsel.”).

Commonwealth v. Perry, 959 A.2d 932, 938 (Pa. Super. 2008).



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      Here, the PCRA court denied Appellant’s motion under section 9543.1,

reasoning that that provision “authorizes a defendant in custody to file a

post-conviction petition for DNA testing of evidence that may be the subject

of a petition under the [PCRA].     It does not, however, authorize a post-

conviction petition for ballistics testing or gunshot residue testing.” PCO at 2

(citing 42 Pa.C.S. § 9543.1(a)). In light of the language of section 9543.1,

we ascertain no error in the court’s conclusion that the statute does not

permit a petitioner to seek the type of forensic testing requested by

Appellant. Section 9543.1 provides, in pertinent part:

      (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.

42 Pa.C.S. § 9543.1(a) (emphasis added). Clearly, as demonstrated by the

above-emphasized language of section 9543.1, that statute applies only to

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petitioners seeking DNA testing.     It does not apply to the type of testing

sought by Appellant in his motion.

      Appellant’s reliance on Brooks does not convince us otherwise.

Preliminarily, Appellant claims that this Court remanded Brooks’ case for

“DNA testing of available evidence at the crime scene.” Appellant’s Brief at

4.   Appellant is incorrect; the Brooks panel did not remand, but rather

affirmed the PCRA court’s order denying Brooks’ motion for DNA testing.

See Brooks, 875 A.2d at 1147-48.            In any event, Brooks is also

distinguishable because the petitioner sought DNA testing “to determine if

[his] DNA is part of the blood found on any of the blood stained material,

including hair fibers or skin tissue which may have been found or found on

the victim or victim’s clothing.” Brooks, 875 A.2d at 1146. Brooks clearly

sought the type of DNA testing covered by section 9543.1; he did not seek

“forensic ballistic testing on bullets and gunshot residue [testing]” as does

Appellant. Appellant’s Brief at 4. Therefore, Brooks does not at all support

Appellant’s claim that the type of testing he seeks is available under section

9543.1.

      Because the explicit language of section 9543.1 confirms that only

testing of DNA evidence can be provided under that provision, the PCRA

court did not err in denying Appellant’s motion for ballistics and gunshot

residue testing.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/14/2016




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