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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                     v.                    :
                                           :
ERIC ROBINSON,                             :           No. 25 EDA 2019
                                           :
                          Appellant        :


                Appeal from the Order Dated November 27, 2018,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-1206701-1981


BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    Filed: March 16, 2020

        Eric Robinson appeals pro se from the November 27, 2018 order

dismissing his untimely serial petition filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, and his motion for

post-conviction DNA testing. After careful review, we affirm.

        The relevant facts of this case were set forth in the PCRA court’s opinion

and need not be reiterated here. (See PCRA court opinion, 6/4/19 at 1-3.)

The pertinent procedural history of this case, as gleaned from the certified

record, is as follows:      On February 8, 1982, appellant was found guilty

following a bench trial of first-degree murder1 and related offenses in

connection with the shooting death of Yefim Zaks in West Philadelphia. The




1   18 Pa.C.S.A. 2501(a).
J. S06034/20

trial court sentenced appellant to a mandatory term of life imprisonment. On

August 31, 1984, a panel of this court affirmed appellant’s judgment of

sentence in part and vacated it in part, and our supreme court denied

allowance of appeal on January 7, 1985. See Commonwealth v. Robinson,

481 A.2d 1376 (Pa.Super. 1984) (unpublished memorandum), appeal

denied,        A.2d     (Pa. 1985).2 Appellant did not file a petition for writ of

certiorari with the Supreme Court of the United States. From 1986 to 2012,

appellant filed five unsuccessful PCRA petitions.

        Appellant filed the instant pro se PCRA petition, his sixth, on March 8,

2016. Contemporaneously with this petition, appellant filed a pro se motion

for post-conviction DNA testing, pursuant to 42 Pa.C.S.A. § 9543.1.            On

July 31, 2018, the PCRA court appointed counsel,3 who subsequently filed a

“no merit” letter and petition to withdraw in accordance with Commonwealth

v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550

A.2d 213 (Pa.Super. 1988) (en banc). On October 22, 2018, the PCRA court

provided appellant with notice of its intention to dismiss his petition without a

hearing, pursuant to Pa.R.Crim.P. 907(1). Appellant filed a pro se response

to the PCRA court’s Rule 907 notice on November 15, 2018. On November 27,

2018, the PCRA court granted counsel permission to withdraw. That same




2We were unable to locate our supreme court’s denial of appellant’s allocator
petition in our search of the Atlantic Reporter.

3   George S. Yacoubian, Esq.


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day, the PCRA court dismissed both appellant’s untimely serial PCRA petition

and his motion for post-conviction DNA testing. This timely appeal followed.4

      Appellant’s argument on appeal is two-fold.      Appellant first contends

that he is entitled to collateral relief because of an unspecified constitutional

violation, the ineffectiveness of his counsel, and the unavailability of

exculpatory DNA evidence. (See pro se PCRA petition, 3/8/16 at ¶¶ 4-5.)

Appellant also contends that “the [PCRA court] erred as a matter of law in

determining that DNA testing would not produce exculpatory evidence that

would establish appellant’s actual innocence.”        (Appellant’s brief at 14

(extraneous capitalization omitted)).



I.    Dismissal of PCRA petition

      Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “This Court grants

great deference to the findings of the PCRA court, and we will not disturb those

findings merely because the record could support a contrary holding.”

Commonwealth v. Hickman, 799 A.2d 136, 140 (Pa.Super. 2002) (citation

omitted). Additionally, we note that, “[a]lthough this Court is willing to


4The PCRA court did not order appellant to file a concise statement of errors
complained of on appeal, in accordance with Pa.R.A.P. 1925(b). The PCRA
court filed its Rule 1925(a) opinion on June 4, 2019.


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liberally construe materials filed by a pro se litigant, pro se status confers no

special benefit upon the appellant[.]” Commonwealth v. Adams, 882 A.2d

496, 498 (Pa.Super. 2005) (citation omitted).

      Preliminarily, we must consider the timeliness of appellant’s PCRA

petition because it implicates the jurisdiction of this court and the PCRA court.

Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014) (citation

omitted). All PCRA petitions, including second and subsequent petitions, must

be filed within one year of when a defendant’s judgment of sentence becomes

final. 42 Pa.C.S.A. § 9545(b)(1). “A judgment becomes final at the conclusion

of direct review, including discretionary review in the Supreme Court of the

United States and the Supreme Court of Pennsylvania, or at the expiration of

the time for seeking the review.”       42 Pa.C.S.A. § 9545(b)(3).          If a PCRA

petition   is   untimely,   a   court   lacks   jurisdiction   over   the    petition.

Commonwealth v. Callahan, 101 A.3d 118, 120-121 (Pa.Super. 2014).

      Here, appellant’s judgment of sentence became final on April 8, 1985,

90 days after our supreme court denied allowance of appeal and the deadline

for filing a petition for writ of certiorari with the Supreme Court of the United

States expired. See 42 Pa.C.S.A. § 9545(b)(3). Accordingly, appellant had

until April 8, 1986, to file a timely PCRA petition.             See 42 Pa.C.S.A.

§ 9545(b)(1). Appellant’s instant petition was filed on March 8, 2016, almost

30 years past the deadline, and is patently untimely. As a result, the PCRA

court lacked jurisdiction to review appellant’s petition, unless he pleads and



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proves that one of the following three statutory exceptions to the one-year

jurisdictional time-bar applies.

      The three statutory exceptions to the PCRA time-bar are as follows:

               (i)     the failure to raise the claim previously was the
                       result of interference by government officials
                       with the presentation of the claim in violation of
                       the Constitution or laws of this Commonwealth
                       or the Constitution or laws of the United States;

               (ii)    the facts upon which the claim is predicated
                       were unknown to the petitioner and could not
                       have been ascertained by the exercise of due
                       diligence; or

               (iii)   the right asserted is a constitutional right that
                       was recognized by the Supreme Court of the
                       United States or the Supreme Court of
                       Pennsylvania after the time period provided in
                       this section and has been held by that court to
                       apply retroactively.

42 Pa.C.S.A. § 9545(b)(1).

      Instantly, the record reveals that appellant has failed to invoke any of

the three statutory exceptions to the one-year jurisdictional time-bar. On the

contrary, appellant’s brief makes no argument whatsoever with respect to

timeliness of his petition and does not even cite Section 9545(b)(1).

Accordingly, we lack jurisdiction to review the merits of any of the claims

appellant raised in his untimely petition.        See Callahan, 101 A.3d at 123

(holding, if a PCRA petition is untimely on its face, or fails to meet one of the

three statutory exceptions to the time-bar, we lack jurisdiction to review it on

the merits).



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II.   Denial of motion for post-conviction DNA testing

      We now turn to appellant’s claim that the PCRA court erred in denying

his pro se motion for post-conviction DNA testing.        (Appellant’s brief at

14-27.)

            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. 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) (citations

and internal quotation marks omitted).

      Our standard of review of an order denying a motion for post-conviction

DNA testing is well settled:

            [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), appeal denied, 50 A.3d 121 (Pa. 2012).




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     The requirements for obtaining post-conviction DNA testing are set forth

in 42 Pa.C.S.A. § 9543.1(c).5 As a panel of this court 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; 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 [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 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


5 We note that Section 9543.1 was amended and the new language became
effective December 24, 2018. See Act 2018, Oct. 24, P.L. 896, No. 147, § 1.
Because appellant filed his motion on March 8, 2016, this amended language
does not apply.


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            exculpatory evidence    that would            establish
            petitioner’s actual innocence.

Williams, 35 A.3d at 49-50 (citation omitted; emphasis in original); see also

42 Pa.C.S.A. § 9543.1(d)(2)(i) (stating, “[t]he court shall not order the testing

requested . . . 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 . . . would establish the applicant’s actual

innocence of the offense for which the applicant was convicted[.]”).

      In In re Payne, 129 A.3d 546 (Pa.Super. 2015) (en banc), appeal

denied, 145 A.3d 167 (Pa. 2016), a panel of this court explained that actual

innocence in the context of Section 9543.1(d)(2)(i) is demonstrated by

evidence that “make[s] it more likely than not that no reasonable juror would

have found [the applicant] guilty beyond a reasonable doubt.” Payne, 129

A.3d at 556 (citation and internal quotation marks omitted). The Payne court

explained that, “[t]he threshold question is, therefore, not the likelihood of

proof of innocence, but whether it is within the realm of reason that some

result(s) could prove innocence.” Id. at 563.

      Herein, appellant argues that he complied with all requirements of

Section 9543.1(c) and baldly contends that the PCRA court failed to apply the

aforementioned standard set forth in Payne. (Appellant’s brief at 4, 17-20.)

The record belies these contentions.

      Preliminarily, we note that appellant has failed to proffer any evidence

that the items he desired to be DNA tested still exist more than 30 years after


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his convictions, as he was required to do. See 42 Pa.C.S.A. § 9543.1(a)(2)

(stating, “[t]he evidence shall be available for testing as of the date of the

motion.”).   While he asserted his actual innocence in his PCRA petition,

appellant also failed to present a prima facie case demonstrating that the

results of the DNA testing, even if favorable, would establish his actual

innocence. See id. at § 9543.1(c)(2), (3)(i), and (3)(ii)(A). To this point, we

agree with the sound reasoning of the PCRA court:

             The evidence adduced at trial overwhelmingly
             established that [appellant] was responsible for the
             murder of Yefim Zaks and DNA testing would not have
             changed the verdict.

             ....

             First, the absence of [appellant’s] DNA on Zaks’ body
             or on the seat cover used to wrap the deceased would
             not exculpate him by proving that he never handled
             the body, as he suggests. The lack of [appellant’s]
             DNA material on the seat cover or corpse would
             neither prove nor disprove that [appellant] killed
             Zaks. . . .

             Similarly, lack of gunshot residue on [appellant’s]
             jacket would neither prove nor disprove he killed
             Zaks. Although [appellant] was wearing the jacket at
             the time of his arrest, there is no evidence that he was
             wearing it when he shot Zaks. Once again, the
             absence of evidence is not evidence of absence and
             cannot prove actual innocence. Therefore, a lack of
             gunshot residue on [appellant’s] jacket would not
             serve to prove his actual innocence.

             Third, [appellant] claims that Zaks’ blood type was
             never tested and that there was no evidence that
             Zaks’ blood type was B. [Appellant] cites Dr. Charles
             Tumosa’s testimony at trial where he testified that he
             never received a sample of the deceased’s blood.


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          [Appellant] claims that if Zaks’ blood were analyzed
          for blood type, it would not match the Type B blood
          found on [appellant’s] jeans. This claim is easily
          belied by the record. Earlier on the same day that
          Dr. Tumosa testified at trial, the Deputy Medical
          Examiner Dr. Robert L. Catherman testified that he
          examined Zaks’ body, determined the cause and
          approximate time of death, and performed an
          autopsy. As part of the autopsy, Dr. Catherman
          performed a blood[] typing test on Zaks’ blood and
          determined that it was Type B. After Dr. Catherman
          testified, Dr. Frank Thompson, Jr., a Histologist in the
          Office of the Medical Examiner, testified that he also
          performed blood[] typing analysis on a sample from
          Zaks’ body and determined that it was Type B.
          [Appellant] has provided no evidentiary basis to
          suggest that the blood on the jeans, which indeed
          matched Zaks’ blood type, belonged to anyone else
          other than Zaks. Rather, his entire argument rests on
          the false belief that Zaks’ blood type was never
          determined, and he believes that performing a blood
          typing test would show they do not match. Since
          performing a blood type analysis at this time would
          only duplicate analysis already performed and which
          showed that Zaks’ blood type matched the blood on
          [appellant’s] jeans, this would in no way prove actual
          innocence.

          Last, [appellant] claims that DNA testing will prove
          that the two individuals he claims used Zaks’ credit
          cards at a bank on the day of the murder are the true
          perpetrators. This claim is wholly without merit. First,
          there is nothing in the trial record regarding these two
          individuals or the incident at the bank. Second, DNA
          testing would neither prove nor disprove whether two
          unknown individuals participated in some way in Zaks’
          murder. There are no known samples of DNA material
          from these two unnamed individuals and [appellant]
          does not even specify which evidence in connection
          with the alleged bank incident he believes should be
          subjected to DNA evidence or how it would establish
          his actual innocence. He simply baldly claims that
          these two people are the true murderers. This is



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           insufficient to establish the prima facie case that
           [appellant] needs for relief.

PCRA court opinion, 6/4/19 at 8-11 (footnote and citations to notes of

testimony omitted).

     Contrary to appellant’s contention, it is clear from the PCRA court’s

analysis that it applied the appropriate standard in this matter. Accordingly,

we discern no error on the part of the PCRA court and conclude the PCRA court

properly dismissed appellant’s untimely serial PCRA petition and his motion

for post-conviction DNA testing.

     Order affirmed.



     Lazarus, J. joins this Memorandum.

     McLaughlin, J. concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: March 16, 2020




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