J-S79015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSE ARNALDO TORRES-RIVERA                 :
                                               :
                       Appellant               :   No. 1263 MDA 2018

                Appeal from the Order Entered July 16, 2018
      In the Court of Common Pleas of Berks County Criminal Division at
                       No(s): CP-06-CR-0001903-2009


BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                                FILED APRIL 15, 2019

       Appellant, Jose Arnaldo Torres-Rivera, appeals pro se from the order

denying his motion for DNA testing filed pursuant to Section 9543.11 of the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.2 We affirm.

       Previously, the PCRA court summarized the underlying facts of this

matter as follows:

              On March 1, 2009, a man, Carmelo Isasas Muniz, was shot
       outside the Puerto Rican Civic Association (hereinafter, Club). A
       shell casing from a .22 caliber firearm was found near the victim.
____________________________________________


1  Section 9543.1 of the PCRA provides that convicted defendants serving a
term of imprisonment may move 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.” 42 Pa.C.S. § 9543.1(a)(1).

2  We observe that “petitions for post-conviction DNA testing are unique in
that the petition does not carry with it the right to counsel.” Commonwealth
v. Perry, 959 A.2d 932, 938 (Pa. Super. 2008) (citing Commonwealth v.
Brooks, 875 A.2d 1141, 1147 (Pa. Super. 2005)).
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     Other shell casings were found later at the scene. Mr. Muniz was
     a resident of Florida; he was not a member of Club. He gained
     admittance as Ms. Edna Rivera’s guest. The victim was under the
     influence of alcohol and cocaine at the time of his death. A video
     from a surveillance camera located at a neighboring food market
     captured the shooting.       Ms. Rivera, [Appellant’s] paramour,
     identified [Appellant] as the shooter in the surveillance video.

            [Appellant] was arrested at his place of employment. He
     speaks only Spanish, so all of his conversations with the police
     officers went through a translator. [Appellant] admitted that he
     had killed the victim and signed and dated his handwritten
     statement. The criminal investigator did not inform [Appellant]
     that the police had a video of the shooting. According to
     [Appellant], he had consumed about twelve bottles of beer at the
     Club. [Appellant] contended that the victim and three other
     people had left the Club at the same time as he had. The victim
     had pushed him, and [Appellant] had fallen to the ground.
     [Appellant] had then encountered a man who had handed him a
     black handgun with some bullets that [Appellant] had put inside
     the gun. [Appellant] stated that his mind had gone blank when
     the man had handed the gun to him. [Appellant] had then
     returned to the Club and had shot the victim. [Appellant] had
     returned the gun back to the owner after the shooting and had
     walked home.

           [Appellant] also described his clothing and where it was
     located. The police recovered the clothing where [Appellant] had
     indicated. The clothing matched the clothing worn by the shooter
     in the video. [Appellant] further claimed that he had told his
     mother about the incident, but his mother had informed the
     criminal investigator that [Appellant] had never admitted to her
     that he had killed anyone.

           [Appellant] has a verbal I.Q. score of 65 which places him
     in the mildly mentally retarded range.        [Appellant] did not
     graduate from high school or obtain a G.E.D. He ended school
     due to his age. Dr. Frank M. Dattilio, a clinical and forensic
     psychologist, found that [Appellant] understands the difference
     between right and wrong and that a person with [Appellant’s]
     scores has the ability, to some degree, to form the intent to hurt
     someone.




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              Dr. Larry Rotenberg, a physician specializing in the field of
       psychiatry and forensic psychiatry, examined [Appellant]. He
       found that [Appellant] gave different versions of the shooting to
       different people; [Appellant] claimed to Dr. Rotenberg that he had
       lied to all the other people about the shooting. [Appellant] has a
       significant psychiatric history consisting of several attempts to
       hang himself. Dr. Rotenberg testified that to a reasonable degree
       of psychiatric certainty as to [Appellant’s] state of mind, the
       shooting had occurred in the heat of passion, with sufficient
       provocation, and with no time for reflection.

            The Commonwealth did not present any expert witnesses,
       so the testimony of Dr. Rotenberg and Dr. Dattilio was
       uncontroverted.

PCRA Court Opinion, 2/9/12, at 1-3.

       On August 17-20, 2010, a jury convicted Appellant of first-degree

murder and firearms not to be carried without a license. 3 On September 23,

2010, the trial court sentenced Appellant to serve a term of life imprisonment

for the first-degree murder conviction and a concurrent sentence of twenty to

forty months for the firearms violation. Appellant filed post-sentence motions,

which were denied. Appellant then filed a direct appeal, which he discontinued

on March 15, 2011.

       On March 22, 2011, Appellant filed a timely PCRA petition. Following a

hearing, the PCRA petition was denied on February 9, 2012. On September

12, 2012, this Court affirmed the order denying the PCRA petition, and our

Supreme Court denied Appellant’s petition for allowance of appeal on April 9,

2013. Commonwealth v. Torres-Rivera, 378 MDA 2012, 60 A.3d 850 (filed


____________________________________________


3   18 Pa.C.S. §§ 2502(a) and 6106(a)(1), respectively.

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September 12, 2012) (unpublished memorandum), appeal denied, 64 A.3d

632 (Pa. 2013).       Appellant filed a petition for writ of certiorari, which the

United States Supreme Court denied on October 7, 2013. Torres-Rivera v.

Pennsylvania, 571 U.S. 859 (2013).

       On June 3, 2016, Appellant filed a petition for writ of habeas corpus.

The court treated the petition as a PCRA petition and appointed counsel.

Counsel then filed a motion for leave to withdraw and a Turner/Finley no-

merit letter.    Appellant filed a response to the request to withdraw.        On

September 27, 2016, the PCRA court issued notice of its intent to dismiss the

PCRA petition and granted counsel’s request to withdraw. The record reflects

no further action was taken with regard to the second PCRA petition.4


____________________________________________


4 We note our Supreme Court has long held that “a subsequent PCRA petition
cannot be filed until the resolution of review of the pending PCRA petition by
the highest state court in which review is sought, or upon the expiration of
the time for seeking such review.” Commonwealth v. Lark, 746 A.2d 585,
588 (Pa. 2000). Although a motion for DNA testing under Section 9543.1
“falls under the aegis” of the PCRA, Commonwealth v. Kunco, 173 A.3d
817, 823 (Pa. Super. 2017), this Court has differentiated between a motion
under Section 9543.1 and a petition for relief filed under Section 9543. In
Commonwealth v. McLaughlin, 835 A.2d 747 (Pa. Super. 2003), we
explained that a Section 9543.1 motion was not a PCRA petition, but rather
“allows for a convicted individual to first obtain DNA testing which could then
be used within a PCRA petition.” Id. at 750. See also In re Payne, 129
A.3d 546, 553 n.11 (Pa. Super. 2015) (“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.’”). Accordingly, the fact that a final order disposing of Appellant’s
second PCRA petition is not in the certified record does not present a
jurisdictional impediment to our review.



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        On July 5, 2018, Appellant filed, pro se, the instant motion seeking DNA

testing.5   The motion was denied on July 16, 2018.              This timely appeal

followed. Both Appellant and the PCRA court have complied with Pa.R.A.P.

1925.

        Appellant presents the following issue for our review:

             THE LOWER COURT ABUSED ITS DISCRETION WHEN IT
        DENIED THE MOTION FOR DNA TESTING FILE BY THE APPELLANT.
        THE RECORD IS ABSOLUTELY CLEAR THAT THE LOWER COURT
        ABUSED ITS DISCRETION BY DENYING THE MOTION. SEE ORDER
        IN QUESTION, PAGE 2 OF THIS BRIEF AND ALSO SEE ATTACHED
        ORDER IN APPENDIX SECTION OF THIS BRIEF.

Appellant’s Brief at 3 (verbatim, capitalization in original).

        In his sole issue, Appellant argues that the PCRA court erred in denying

his motion for DNA testing. Appellant’s Brief at 6-10. Essentially, Appellant

contends that the PCRA court abused its discretion in summarily denying his

motion. Appellant asserts that “the lower court dismissed the motion for DNA

testing without addressing the facts that are in the motion …” Id. at 8 (full




____________________________________________


5 We also observe that “[t]he one year jurisdictional time bar that exists under
the [PCRA] does not apply to motions for the performance of forensic DNA
testing under Section 9543.1.” Commonwealth v. Conway, 14 A.3d 101,
108 n.2 (Pa. Super. 2011) (citing Commonwealth v. Brooks, 875 A.2d
1141, 1146 (Pa. Super. 2005)). This Court has explained that a petition for
post-conviction DNA testing does not directly create an exception to the one-
year time bar under 42 Pa.C.S. § 9545; however, if granted, it “allows for a
convicted individual 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. Weeks,
831 A.2d 1194, 1196 (Pa. Super. 2003) (citing 42 Pa.C.S. § 9543.1(f)(1)).

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capitalization omitted). Appellant asserts that DNA testing “would provide the

identity of the real killer.” Id. (capitalization and underlining omitted).

      Initially, we observe that, in 1992, this Court recognized the viability of

DNA testing as an evidentiary tool for the first time.       Commonwealth v.

Brison, 618 A.2d 420, 425 (Pa. Super. 1992); Commonwealth v. Rodgers,

605 A.2d 1228, 1234-1235 (Pa. Super. 1992). Our review of the PCRA court’s

decision regarding a Section 9543.1 motion for DNA testing “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.” Commonwealth

v. Kunco, 173 A.3d 817, 823 (Pa. Super. 2017) (citation omitted). We may

affirm the PCRA court’s decision “if there is any basis to support it, even if this

Court relies on different grounds to affirm.” Id.

      Subsection (a)(2) of Section 9543.1 of the PCRA “sets forth several

threshold requirements to obtain DNA testing.” Commonwealth v. Walsh,

125 A.3d 1248, 1254 (Pa. Super. 2015) (quoting Commonwealth v.

Williams, 35 A.3d 44, 49 (Pa. Super. 2011)). The subsection requires that

the evidence be available for testing as of the date of the motion, and that the

petitioner must prove the following:

      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


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     client was indigent and the court refused the request despite the
     client’s indigency.

42 Pa.C.S. § 9543.1(a)(2).

     Therefore,

     [t]he 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.             42 Pa.C.S.A.
     § 9543.1(a)(2).

Williams, 35 A.3d at 49.

     Our review of the record reflects that Appellant has requested DNA

testing of blood swabs recovered from the crime scene that are located in a

police evidence room. Motion, 7/5/18, at 1-3. Thus, Appellant has asserted

that the evidence is available for testing, and the Commonwealth has not

challenged this point. Accordingly, Appellant has met the first requirement.

     Regarding the next requirement, Appellant has failed to allege that this

evidence was first discovered after his trial in 2010. Moreover, because the

blood swabs were collected from the scene of a murder that occurred on

March 1, 2009, and Appellant’s trial was held in August of 2010, we conclude

that this evidence was discovered prior to Appellant’s conviction. Therefore,

Appellant is required to prove that the evidence was not already subjected to




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DNA testing due to one of the three enumerated reasons set forth in

Subsection 9543.1(a)(2).

      As it relates to Appellant’s statutory obligations, Appellant does not

assert, much less demonstrate that: 1) DNA testing technology was not

available at the time of his trial in 2010; 2) he was convicted prior to 1995

and counsel failed to request testing; or 3) he was indigent and the trial court

denied his request for funds to pay for DNA testing prior to trial. 42 Pa.C.S.

§ 9543.1(a)(2). Appellant simply ignores these threshold components of the

post-conviction DNA statute. Accordingly, Appellant’s motion does not meet

the necessary requirements for DNA testing under the PCRA. Hence, the PCRA

court did not err in denying Appellant’s petition for DNA testing.         See

Commonwealth v. Perry, 959 A.2d 932, 939 (Pa. Super. 2008) (no relief

when petitioner failed to satisfy the conditions outlined in § 9543.1(a)(2));

Commonwealth v. Walsh, 125 A.3d 1248, 1257 (Pa. Super. 2015) (same).

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 04/15/2019




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