J-S30036-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 BRUCE MURRAY,                            :
                                          :
                   Appellant              :       No. 3157 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-1111091-1982

BEFORE: PANELLA, P.J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                        FILED AUGUST 23, 2019

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

      On June 24, 1983, following a jury trial, Murray was convicted of various

crimes, including second-degree murder, related to the killing and robbery of

Eric DeLegal (“DeLegal”). The trial court sentenced Murray to life in prison.

This Court affirmed Murray’s judgment of sentence, and the Pennsylvania

Supreme Court denied Murray’s Petition for allowance of appeal.           See

Commonwealth v. Murray, 505 A.2d 1035 (Pa. Super. 1985) (unpublished

memorandum), appeal denied, 1872 EAL 1985 (Pa. Nov. 26, 1986).

Thereafter, Murray filed numerous unsuccessful PCRA Petitions.
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       On January 3, 2018,1 Murray filed the instant pro se Motion for DNA

testing of various pieces of evidence purportedly collected at the scene of the

crime. On September 18, 2018, the PCRA court dismissed the Motion without

a hearing. Murray filed a timely Notice of Appeal2 and a Pa.R.A.P. 1925(b)

Concise Statement of matters complained of on appeal.

       On appeal, Murray raises the following questions for our review:

       A. DID PCRA Court Err For Failure To Comply To 42 Pa.C.S.A.
       §9543.1 For DNA Testing Of Items And Clothing Collected From
       The Alleged Crime Scene By Forensic Investigatiion, PCRA Court
       Has Failed To Serve Notice As Required To The Commonwealth
       Upon Receipt Of A Motion Under Subsection (a) The Shall Notify
       The Commonwealth and Shall Afford The Commonwealth An
       Opportunity To Respond To The Motion, PCRA Court Rubber
       Sampled Her Order, Is PCRA Judges At The Criminal Justice
       Center, 1301 Flbert Street Granting DNA Hearing To Obtain
       Forensic Evidence For Testing If Available? Defendant Wll Cite
       Those Cases On appeal For A Remain Requesting For, Is The
       Leading Case To Obtain Forensic Evidence From The Crime Scene?
       Is Commonwealth v. Anthony Wright, 609 A.3d 2011 Pa. Lexis
       38172 A.L.R. 6th No. EAP 2008[?]


____________________________________________


1 We note that Murray’s Motion is date-stamped January 3, 2017. However,
the envelope accompanying Murray’s Motion is postmarked January 3, 2018,
and Murray’s letter accompanying the Motion is dated December 30, 2017.
Accordingly, we believe the January 3, 2017 date stamp was an error, and the
Motion was actually docketed on January 3, 2018.

2 Murray’s pro se Notice of Appeal was received by the trial court on October
19, 2018, 31 days after the entry of the Order denying Murray’s Motion. See
Pa.R.A.P. 903(a) (stating that a notice of appeal shall be filed within 30 days
after the entry of the order from which the appeal is taken). However, Murray
certified that his Notice of Appeal was deposited with the prison mailing
system on October 16, 2018. See Pa.R.A.P. 121(a). In accordance with the
prisoner mailbox rule, see Commonwealth v. Jones, 700 A.2d 423, 426
(Pa. 1997), we find Murray’s Notice of Appeal to be timely filed.

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       B. Does PCRA Genece Brinkley Must Recusal Herself Once Case
       Be Remanded For Forensic DNA Testing? Does Appellant Have
       Evidnece To Support His Argument For Recusal Of Judge Brinkley?
       See, Commonwealth v. Amir Hakim McCain, Judge Denied
       McCain’s PCRA Petition For An Evidnetiary Hearing Regarding Trial
       Counsel Ineffectiveness For Failure To Communicate Information
       During His Absence Of Venireperson In -Chambers Of Juror 19
       Alam Hampton, The PCRA Judge Brinkley Stated that [ii] seems
       Obvious That The Purpose Of The Meeting Was To Discuss That
       Specific Juror And To Use A Peremptory Challenge To Strike Her,
       On August 7, 2000, The Superior Court Of Pennsylvania
       Remanded Appellant’s Case For An Evidentiary Hearing Stating In
       Light Of The Fact That No Hearing Was Held On Appellant’s PCRA
       Petition, They Do Not Have A Sufficient Factual That Basis Of
       Record To Review The PCRA Court’s Determinatioin, Due To The
       State of The Record.

Brief for Appellant at 1 (errors included).3

       In his first issue, Murray alleges that the trial court erred in denying his

Motion for DNA testing. Id. at 2-5. Murray states that the results of DNA

testing of certain pieces of evidence that were collected by police investigators

would prove his innocence. Id. at 2. Specifically, Murray requests that the

following items be tested: “(1) victim[’s] clothing, (2) victim[’s] blood, (3)

[Murray’s] blood, (4) [Murray’s] finger print [on] front door, (5) furnitures as

(a) table, (b) chairs and desk, (6) hair, (7) skin cells, (8) fibers, (9) bullets,

(10) pistol, (11) sawed off shotgun and (12) multiple gunshot of 38’s and 32



____________________________________________


3 Murray’s second claim raises issues unrelated to his request for DNA testing.
See Commonwealth v. Walsh, 125 A.3d 1248, 1252 (Pa. Super. 2015)
(stating that “Section 9543.1 cannot be used to raise extraneous issues not
related to DNA testing in an effort to avoid the one-year PCRA time bar.”
(quotation marks and brackets omitted)). Accordingly, Murray must raise this
issue in a timely-filed PCRA petition, and we will solely review Murray’s first
claim regarding the denial of his Motion for DNA testing.

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that caused wounds of the body and the manner of death to be homicide.”

Id.

      Initially, we note that

      [m]otions 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. 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.

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

marks and citations omitted).

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

as follows:

      [T]he [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 [of the PCRA]. 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 (Pa. Super. 2011) (internal

citations omitted).

      As we explained in Williams,

      [Section 9543.1] 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; [] (c) [the evidence was subject to the testing,

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        but newer technology could provide substantially more accurate
        and substantially more probative results]; or [(d)] 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 [S]ection 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 [S]ection 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 [the] 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 [the] 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 (citation omitted; emphasis in original).

        Here, Murray baldly asserts that police investigators collected numerous

pieces of evidence, which, if tested for DNA, would prove his innocence.

Although Murray claims that these items are being held by the Philadelphia

Police Department, Murray has failed to indicate whether these items were

discovered prior to his conviction, and if so, why they were not tested at that

time.    Additionally, Murray does not explain how the DNA testing of these

items would prove his innocence.         Thus, Murray has failed to meet the

threshold requirements for obtaining DNA testing, and to present a prima facie

case that the requested testing would establish his innocence.           See id.,

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supra.    Accordingly, Murray has not satisfied the requirements of Section

9543.1, and the trial court properly denied Murray’s Motion for DNA testing. 4

       Order affirmed. Motion for Correction to Appellee Errors Within Brief

denied.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/23/2019




____________________________________________


4Murray has filed a pro se “Motion for Correction to Appellee Errors Within
Brief,” which was deferred for disposition by this panel. After consideration,
we find the Motion to be frivolous and lacking any merit. Accordingly, we deny
Murray’s “Motion for Correction to Appellee Errors Within Brief.”

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