J-S24010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 REINALDO CORREA                          :
                                          :
                    Appellant             :   No. 1283 MDA 2017

                Appeal from the PCRA Order June 19, 2017
   In the Court of Common Pleas of Dauphin County Criminal Division at
                     No(s): CP-22-CR-0001330-1998,
                         CP-22-CR-0002907-1998


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

MEMORANDUM BY OLSON, J.:                            FILED AUGUST 03, 2018

      Appellant, Reinaldo Correa, appeals pro se from the order denying his

third petition filed under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546, entered on June 19, 2017. We affirm.

      The factual background and procedural history of this case are as

follows. On November 6, 1998, Appellant pled guilty to a general charge of

homicide. On November 16, 1998, a panel of judges on the Court of Common

Pleas of Dauphin County adjudged Appellant guilty of first-degree murder and

sentenced him to life in prison. Appellant’s plea arose from his involvement

in the murder of Lenny Borelli, which we previously summarized as follows:

      Appellant told police that on March 3, 1998, he was a passenger
      in a car being driven by the victim, Lenny Borrelli, when a shot
      was fired at the car and Appellant felt “glass all over my face and
      neck.” Appellant was unable to ascertain the origin of the bullet.
      [Mr. Borrelli] stopped the car, which he and Appellant exited.
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     After Mr. Borrelli removed glass from Appellant’s face and neck,
     they started to leave the area. Appellant told police that he and
     [Mr. Borrelli] then “started walking towards the sidewalk. I had
     the gun in my hand, and I shot him.” While Appellant was unable
     to explain his motivation for shooting Mr. Borrelli, the
     Commonwealth adduced proof that Appellant fired five bullets into
     [Mr. Borrelli’s] head at close range, and that there was acrimony
     between Mr. Borrelli and Appellant based on past drug dealings.

Commonwealth v. Correa, 53 A.3d 944, at 2 (Pa. Super. 2012)

(unpublished memorandum) (citations omitted).

     Following restoration of Appellant’s direct appeal rights, this Court

affirmed his judgment of sentence on September 11, 2002. Commonwealth

v. Correa, 813 A.2d 901 (Pa. Super. 2002) (unpublished memorandum).

Thereafter, Appellant filed an untimely PCRA petition on March 17, 2004,

which the PCRA court dismissed.     We subsequently vacated that dismissal

order and remanded the matter due to the failure to appoint counsel. After

counsel was appointed, Appellant filed another PCRA petition which was

dismissed as untimely. We affirmed that dismissal order on June 17, 2009.

Commonwealth v. Correa, 981 A.2d 309 (Pa. Super. 2009) (unpublished

memorandum).

     Appellant filed a subsequent petition for collateral relief on February 14,

2011. After the PCRA court dismissed that petition, Appellant amended his

filing, which the PCRA court also denied.     On June 29, 2012, this Court

affirmed both dismissal orders by the PCRA court.

     Appellant initiated the current PCRA proceedings by filing a pro se

petition on August 25, 2016. Counsel was appointed on September 15, 2016.

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On February 28, 2017, counsel petitioned for leave to withdraw and filed a “no

merit” letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.

1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en

banc). On May 18, 2017, the trial court granted counsel’s petition and issued

notice of its intent to dismiss Appellant’s petition without a hearing. Appellant

filed a pro se response on June 12, 2017. On June 18, 2017, the PCRA court

dismissed Appellant’s petition as untimely. This timely appeal followed. 1

       Appellant raises three issues on appeal:

       1. [Did the trial court err in denying Appellant’s request for DNA
          testing pursuant to 42 Pa.C.S.A. § 9543.1?]

       2. [Did the trial court err in dismissing Appellant’s PCRA petition
          as untimely pursuant to 42 Pa.C.S.A. § 9545(b), since that
          statute was enacted unconstitutionally?]

       3. [Did the trial court err in dismissing Appellant’s PCRA petition
          as untimely since Appellant’s claims fall within the statute’s
          timeliness exceptions provided for in 42 Pa.C.S.A.
          § 9545(b)(i-iii)?]

Appellant’s Brief at 17.

       In his first claim, Appellant asserts that the PCRA court erroneously

rejected his application for DNA testing.        Contrary to Appellant’s claim,

however, our review of the record reveals that Appellant never filed a motion



____________________________________________


1  Appellant filed notice of appeal on July 19, 2017. Trial court ordered
Appellant to file concise statement of errors complained of on appeal pursuant
to Pa.R.A.P 1925(b) on August 24, 2017. Appellant filed his concise statement
on September 25, 2017, and the trial court filed a memorandum in lieu of
opinion pursuant to Pa.R.A.P. 1925(a) on October 11, 2017.

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for post-conviction DNA testing before the PCRA court. In fact, the issue of

DNA testing was initially raised before the PCRA court in counsel’s

Turner/Finley letter. There, counsel, in response to communications from

Appellant, explained that Appellant did not meet several eligibility criteria for

biological testing.   In his pro se response, Appellant argued that he was

entitled to a hearing to resolve disputed facts surrounding his desire for DNA

testing.

      Under the PCRA, an individual convicted of a crime in Pennsylvania and

serving a sentence of imprisonment or awaiting execution of a death sentence

“may apply [for post-conviction biological testing] 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.”      42 Pa.C.S.A. § 9543.1(a)(1).       Because PCRA

counsel’s Turner/Finley letter and Appellant’s pro se response do not

constitute the formal, written application referred to in § 9543.1(a)(1),

Appellant is not entitled to appellate review of his initial claim. See Pa.R.A.P.

302(a) (appellant cannot raise a claim for the first time on appeal).

      Appellant argues in his second issue that the one-year time limit for

PCRA petitions, established by 42 Pa.C.S.A. § 9545(b), is unconstitutional and

that its provisions conflict with 42 Pa.C.S.A. § 9543(b), which provides,

without a specific limit, that a petition can be dismissed if the delay in filing

would prejudice the Commonwealth. These claims are without merit. Our


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Supreme Court has held that the PCRA’s one-year time limit is constitutional.

See Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999). Hence, no

relief is due.

       Finally, Appellant asserts that his PCRA petition was erroneously

dismissed as untimely, since his claims satisfy the governmental interference

and newly-discovered facts exceptions to the PCRA’s time bar. PCRA time

restrictions are jurisdictional in nature and a court cannot hear an untimely

petition2 unless the petitioner can establish one of three exceptions:

       (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
                 provided in this section has been held by that court to
                 apply retroactively.


42 Pa.C.S.A. §§ 9545(b)(1)(i-iii).


       We initially note that Appellant’s PCRA petition is patently untimely. As

our prior decisions in this case have established, Appellant’s judgment of


____________________________________________


2   See Commonwealth v. Burton, 158 A.3d 618, 627 (Pa. 2017).



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sentence became final on October 11, 2002, and he had until October 13,

2003 to file a timely PCRA petition.3 Therefore, Appellant can only proceed if

he properly invokes one of the timeliness exceptions found at § 9545(b). See

Commonwealth v. Edmiston, 65 A.3d 339, 346 (Pa. 2011).

       Appellant attempts to establish the governmental interference exception

in several ways. Appellant first argues that his judgment of sentence was

never valid because it was not properly entered on the docket following its

pronouncement in open court.            Thus, according to Appellant, his appeals

process was invalid, and by entertaining his appeals, government officials (i.e.

the courts) interfered with his proper understanding of the appellate process

and how to present his claims. This argument is without merit. Pa.R.A.P.

903(c)(3) states that a judgment of sentence imposed in open court

constitutes a final order, and it is uncontested that Appellant was sentenced

to life in prison in open court. Hence, Appellant’s claim that his judgment of

sentence was not properly entered is meritless.

       Appellant next contends that the courts interfered with his ability to

bring an illegal sentence claim by entertaining his appeals following the entry

of an invalid plea. Here, Appellant argues that his plea was invalid because

he unknowingly waived his right to a jury trial. Specifically, Appellant claims

that he was not informed that all twelve jurors would have to find him guilty.


____________________________________________


3 Appellant was given until October 13, 2003 instead of October 11, 2003
because the 11th was a Saturday.

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Appellant theorizes that the courts, by entertaining his appeals, misled him

into believing that his sentence was valid and thereby interfered with the

presentation of his collateral claims.

       To establish the governmental interference exception, the petitioner

must prove that government officials violated the Constitution or laws of either

Pennsylvania or the United States. 42 Pa.C.S.A. § 9545(b)(1)(i). Courts do

not violate the law by adjudicating appeals. Furthermore, Appellant fails to

develop his claim by providing specific allegations of illegal conduct, which is

required to establish the governmental interference exception.                See

Commonwealth v. Albrecht, 994 A.2d 1091, 1095 (Pa. 2010) (“Appellant

fails to show any of the conditions of his incarceration were illegal, as required

to meet the governmental interference exception to PCRA’s timeliness

requirement.”); Commonwealth v. Puksar, 951 A.2d 267, 293-294 (Pa.

2008) (failure to develop claim waives it).

       Appellant’s final government interference claim is that the Dauphin

County District Attorney’s office and the Dauphin County Forensic Laboratory

interfered with Appellant’s ability to obtain DNA testing. Appellant alleges that

the district attorney coerced him into believing that blood samples taken from

him during the initial investigation of his case were never tested because the

source deposit was too small.4             Appellant contends that this coercion


____________________________________________


4 Appellant alleges earlier in his brief that it was his trial counsel who told him
this.

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prevented him from learning of other methods of DNA testing and of DNA

testing policies which terminate the testing process once a confession is

obtained. This interference, as well as Appellant’s subsequent prison term,

prevented Appellant from learning of other methods of DNA testing and of

DNA testing policies until he attended a legal seminar in prison.

       These    contentions     do   not       establish   a   cognizable   governmental

interference claim. Appellant does not specify any illegal actions taken by the

district attorney or the Dauphin County Forensic Laboratory.                    Instead,

Appellant makes only a bald assertion of coercion, and it is not illegal to forgo

a DNA test, or pursue a policy which stops testing if a confession is obtained.

       Appellant’s related newly-discovered facts claim also fails.                 The

exception requires that Appellant establish the facts upon which the claim is

based were unknown to him, and that they could not have been obtained

through due diligence. Commonwealth v. Burton, 158 A.3d 618, 629 (Pa.

2017) (emphasis added).           Simply put, Appellant is not alleging any new

exculpatory facts upon which a claim could be based. Appellant asserts only

that he has become aware of the existence of new DNA testing technology

which could produce DNA test results.5 The development of new technology,

by itself, does not contradict previous test results, and Appellant does not

____________________________________________


5  Although Appellant does not specify, presumably he mentions these new
technologies because they are capable of testing smaller amounts of DNA.




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challenge the validity of previously used DNA testing techniques or explain

how or why new tests would produce exculpatory results.6 In fact, Appellant

admits that DNA test results were never produced by the Commonwealth and

were not used against him to induce his plea.            Since Appellant cannot

successfully petition the court for post-conviction DNA testing7 and since he

has failed to show how new DNA testing techniques would be likely to produce

new, exculpatory facts, Appellant cannot invoke the newly-discovered facts

exception.

       Lastly, Appellant argues in his brief that PCRA counsel was ineffective.

Here, Appellant contends simply that PCRA counsel’s flawed legal analysis led

the court to dismiss Appellant’s petition.       Essentially, Appellant’s claim of

ineffectiveness is that his appointed PCRA counsel did not agree with his view

of the issues. As explained above, we find Appellant’s underlying issues lack



____________________________________________


6  In Commonwealth v. Chmiel, 173 A.3d 617 (Pa. 2017), our Supreme
Court held that an admission by the FBI, which cast doubt upon the validity
of a microscopic hair analysis technique, constituted a newly-discovered fact.
The Court used this holding to extend PCRA relief based on the
newly-discovered facts exception in Commonwealth v. Edmiston, 179 A.3d
447 (Pa. 2018). Here, however, Appellant does not identify what new tests
would be available or explain how or why new testing techniques would
produce results that exonerate him.

7  See In re Payne, 129 A.3d 546, 555-556 n.12 (Pa. Super. 2015) (citations
omitted) (“Post-conviction DNA testing does not directly create an exception
to § 9545’s one-year time ban. Rather 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).”)

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arguable merit, and, therefore, Appellant’s claim of ineffectiveness cannot

stand. See Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012)

(to prove ineffectiveness, petitioner must establish, among other things, that

an underlying issue has arguable merit), quoting Commonwealth v.

Burkett, 5 A.3d 1260, 1271-72 (Pa. Super. 2010). Since Appellant did not

present a written motion for DNA testing and since he did not properly invoke

an exception to the PCRA’s time-bar, no relief is due on Appellant’s final claim.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/03/2018




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