J-S16022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    WILLIAM GEORGE THOMPSON                    :
                                               :
                      Appellant                :   No. 935 WDA 2016

                   Appeal from the PCRA Order May 16, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0002610-2002


BEFORE:      MOULTON, J., RANSOM, J., and PLATT, J.*


MEMORANDUM BY RANSOM, J.:                                  FILED MAY 31, 2017

        Appellant, William George Thompson, appeals from the order entered

May 16, 2016, denying his petition for post-conviction DNA testing filed

pursuant to 42 Pa.C.S. § 9543.1. We affirm.

        On September 16, 2005, Appellant was convicted by a jury of three

counts of criminal homicide, one count of aggravated assault, five counts of

recklessly endangering another person, one count of possession of a firearm

without a license, and one count of criminal conspiracy.1 On December 12,

2005, Appellant received an aggregate sentence of life without the possibility

of parole. Appellant’s post-trial motion for a new trial was denied.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    Respectively, 18 Pa.C.S. §§ 2502(a), 2702(a), 2705, 6106 , 903(a).
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       In February 2006, Appellant timely filed a notice of appeal and court-

ordered 1925(b) statement. The trial court issued a responsive opinion in

January 2010.      This Court affirmed his judgment of sentence on February

22, 2012. Commonwealth v. Thompson, 46 A.3d 824 (Pa. Super. 2012)

(unpublished memorandum). Appellant did not petition the Supreme Court

for allowance of appeal.

       In May 2013, Appellant pro se filed a PCRA petition seeking

reinstatement of his right to file a petition for allowance of appeal to the

Supreme Court nunc pro tunc.             New counsel was appointed.    In August

2013, appointed counsel filed a petition for leave to withdraw and

Turner/Finley “no merit” letter.2              In September 2013, the PCRA court

issued Rule 907 notice of intent to dismiss Appellant’s petition without a

hearing and granted counsel permission to withdraw. While his first petition

was pending, Appellant pro se filed a petition for post-conviction DNA

testing. In January 2014, Appellant’s first petition was denied and dismissed

as untimely by the PCRA court.

       Appellant timely appealed.         In September 2015, this Court affirmed

the denial of Appellant’s PCRA petition, concluding that it was untimely and

Appellant had failed to plead any exception to the time bar.                See

Commonwealth v. Thompson, 467 WDA 2014 (Pa. Super. 2015)

____________________________________________


2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988).



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(unpublished memorandum). This Court did not address Appellant’s petition

for DNA testing as “it appear[ed] that the petition [was] still pending in the

court below” and that “the PCRA court [had] not disposed of [A]ppellant’s

post-conviction petition for DNA testing filed pursuant to 42 Pa.C.S. §

9543.1.” Id. at *8.

      In November 2015, the PCRA court issued Rule 907 notice of intent to

dismiss Appellant’s pro se petition for DNA testing. On May 24, 2016, this

Court granted Appellant’s application to compel the PCRA court to dismiss

his petition and ordered the PCRA court to dispose of any pending PCRA’s.

See Superior Ct. Order, 46 WDM 2016 (Pa. Super. May 24, 2016). Before

that order issued, however, the PCRA court entered an order dismissing

Appellant’s petition for DNA testing on May 16, 2016.

      On June 28, 2016, Appellant pro se filed a notice of appeal. On August

3, 2015, Appellant timely filed a court-ordered 1925(b) statement.         The

PCRA court issued a responsive opinion.

      The record reveals that the instant pro se petition was denied by order

on May 16, 2016. Generally, Appellant would have been required to file a

notice of appeal by Thursday, June 16, 2016. See Pa.R.A.P. 903(a) (notice

of appeal shall be filed within 30 days after the entry of the order from which

the appeal is taken).     However, Appellant’s notice of appeal was not




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docketed by the court until June 28, 2016.3 Nevertheless, the docket entries

do not indicate the date of service. See Pa.R.Crim.P. 114(C). The certified

record does not reveal whether the clerk of courts complied with

Pa.R.Crim.P. 114(B), as there is no evidence of the method of service.4

There is no indication that Appellant received proper notice of the PCRA

court’s May 16, 2016 order.

       “Pennsylvania Rule of Criminal Procedure 114(C)(2) provides that all

orders and court notices must be docketed, and the docket must contain the

date the clerk received the order, the date of the order, and the date and

manner of service of the order or court notice.” Commonwealth v. Davis,

867 A.2d 585, 586 (Pa. Super. 2005). The notice and service requirements

of Rule 114 are mandatory.           Commonwealth v. Hess, 810 A.2d 1249,

1253 (Pa. 2002).       As we cannot properly conclude that there was proper

notice, we decline to quash the appeal based on the untimely filing of his

notice of appeal.     See Pa.R.A.P. 105(b); Commonwealth v. Braykovich,
____________________________________________


3
   Notwithstanding, the postmark on the envelope containing Appellant’s
notice of appeal was June 17, 2016. See Commonwealth v. Chambers,
35 A.3d 34 (Pa.Super. 2011), appeal denied, 46 A.3d 715 (2012) (explaining
prisoner mailbox rule provides that pro se prisoner’s document is deemed
filed on date he delivers it to prison authorities for mailing); see also
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (an appeal by a
pro se prisoner is deemed filed on the date the prisoner deposits the appeal
with prison authorities and/or places it in the prison mailbox).
4
  A copy of the docket does not appear in the certified record. Further, this
Court issued a motion to compel after the date on the order, further
suggesting that Appellant did not receive proper notice.



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664 A.2d 133 (Pa. Super. 1995) (noting we may permit extensions of the

filing period in extraordinary circumstances, such as a breakdown in the

processes of the court).

       On    appeal,    Appellant     raises     one   overarching   issue   for   our

consideration, that is, whether the trial court erred in denying his petition for

DNA testing filed pursuant to 42 Pa.C.S. § 9543.1.5

       Our standard of review is as follows:

       Post-conviction DNA testing falls under the aegis of the
       Pennsylvania Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§
       9541–9546, and thus, ‘[o]ur 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.’


____________________________________________



5
  Appellant raises several extraneous issues numbered as issues 4-6 in his
brief. First, he asserts that counsel was ineffective. Second, Appellant
asserts that he was not permitted to challenge the Commonwealth witness’
testimony and that they did not tell the truth when they testified. Third, he
suggests the Commonwealth improperly withheld a letter dated January 27,
2006, from the Department of Justice containing “crucial information.” See
Appellant's Br. at 8-9.

“‘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.’”
Commonwealth v. Walsh, 125 A.3d 1248, 1252 (Pa. Super. 2015)
(quoting Commonwealth v. Gandy, 38 A.3d 889, 905 (Pa. Super. 2012),
appeal denied, 49 A.3d 442 (Pa. 2012)).          As these issues, including
ineffective assistance of counsel, are beyond the scope of his petition, they
are unreviewable at this juncture. Thus, we will review only Appellant’s
challenge to the court’s denial of his request for DNA testing, which is the
sole matter properly before us.




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Commonwealth v. Conway, 14 A.3d 101, 108 (Pa. Super. 2011), appeal

denied, 29 A.2d 795 (Pa. 2011) (quoting Commonwealth v. Brooks, 875

A.2d 1141, 1144 (Pa.Super.2005)).              “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.’” In re Payne, 129 A.3d 546, 553 n.11 (Pa. Super. 2015) (en banc),

appeal denied, 145 A.3d 167 (Pa. 2016) (quoting Commonwealth v.

Williams, 35 A.3d 44, 50 (Pa. Super. 2011) (citation omitted)).         Further,

“[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.” Conway, 14 A.3d at 108 n.2 (citing Brooks, 875 A.2d at 1146).6

As always in our review of the PCRA court’s decision, this Court is bound by

the PCRA court’s credibility findings where those determinations are

supported by the record.         Commonwealth v. Small, 980 A.2d 549, 569

(Pa. 2009) (citing Commonwealth v. Moore, 860 A.2d 88, 99 (Pa. 2004)).

       We summarize the issues presented by Appellant’s petition as follows.

Appellant petitioned the court for DNA testing to be performed on black,
____________________________________________


6
  This Court has explained that a petition for post conviction DNA testing
does not directly create an exception to 42 Pa.C.S. § 9545’s one year time
bar; 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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Nike sneakers seized from his apartment and admitted into evidence against

him at trial.7    According to Appellant, DNA testing of the sneakers would

reveal that they did not belong to him. Therefore, Appellant concludes, the

DNA testing of the sneakers would be exculpatory evidence and establish his

actual innocence. See, generally, Appellant's Br.

       An applicant for post-conviction DNA testing shall (1) specify the

evidence to be tested, (2) assert the applicant’s actual innocence of the

offense for which he or she was convicted, and (3) present a prima facie

case demonstrating that the:

          (i) identity of or the participation in the crime by the
       perpetrator was at issue in the proceedings that resulted in the
       applicant's conviction and sentencing; and

          (ii) DNA testing of the specific evidence, assuming
       exculpatory results, would establish… the applicant's actual
       innocence of the offense for which the applicant was convicted[.]

42 Pa.C.S. § 9543.1(c)(1)-(3). “[T]he prima facie requirement set forth in §

9543.1(c)(3) and reinforced in § 9543.1(d)(2) requires that an appellant

demonstrate that there is a reasonable possibility that favorable results of

the requested DNA testing would establish the appellant's actual innocence

of the crime of conviction.” Conway, 14 A.3d at 109 (footnote and internal

quotation marks omitted) (citations omitted).       Thus, Appellant has the

burden of showing that the DNA testing requested pertains to specific
____________________________________________


7
  The sneakers seized in Appellant’s apartment matched the description
provided by an eyewitness of those worn by one of the assailants.



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evidence related to the investigation or prosecution that resulted in his

conviction and that exculpatory results of testing would establish his ‘actual

innocence’ of the crime of which he was convicted.             42 Pa.C.S. §

9543.1(a)(1), (c)(3)(ii); Commonwealth v. Smith, 889 A.2d 582, 583 (Pa.

Super. 2005).

      Here, the PCRA court found DNA testing of the sneakers would only

prove the identity of the individual who might have worn them and not the

identity of the perpetrator. As to the second prong of the prima facie test,

the PCRA court found that the DNA testing, assuming exculpatory results,

would not establish a reasonable possibility of Appellant’s actual innocence

of the offenses of which he was convicted.     See 42 Pa.C.S. § 9543.1(2),

(3)(ii)(A). The Commonwealth presented ample other evidence to suggest

Appellant was one of the two shooters in the killings, including the

statements of Brian Shealy, Octavio Rodriguez, and Melissa Cox. See PCRA

Ct. Op., 9/16/2016, at 8.      Shealy provided eyewitness identification of

Appellant as being present at the scene of the crime and this information led

police to arrest him as a suspect.   See id. at 5.   Rodriguez testified that

while lodged in the same cell unit as Appellant, Appellant admitted that he

shot his gun once before it jammed and that one of the victims was

murdered because he owed money for drugs.         See id. at 6.   In addition,

police obtained Appellant’s cellphone records and learned that Appellant had

exchanged several calls with a number belonging to Melissa Cox on the date

of the incident.     See id.     When interviewed, Cox told police that

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“approximately two hours after the shooting, she received a phone call from

[Appellant] in which he said he had killed some people in Homewood and

that he sounded scared.” Id. Given the evidence of record, the PCRA court

correctly concluded that DNA testing of the sneakers would not establish

Appellant’s innocence.

       In light of the evidence amassed in support of Appellant’s conviction in

this case, Appellant has failed to establish a reasonable possibility that DNA

testing of the sneakers would produce exculpatory evidence that would

establish his actual innocence. See Smith, 889 A.2d at 584.8 Accordingly,

we discern no error in the PCRA court’s denial of Appellant’s petition for

post-conviction DNA testing.

       Order affirmed.




____________________________________________


8
  In finding the evidence sufficient to support Appellant’s convictions, this
Court affirmed Appellant’s sentences on direct appeal based on the weight
and sufficiency of the evidence. Commonwealth v. Thompson, 46 A.3d
824, at *4 (Pa. Super. 2012) (unpublished memorandum) (adopting trial
court opinion). Based on the evidence summarized previously, the proposed
DNA testing, assuming exculpatory results, would not change our conclusion
that “the evidence was more than sufficient to establish that Thompson was
one of the two shooters who killed three people in Mr. Tommy’s restaurant.”
Trial Ct. Op., 1/15/2010, at 84-85.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/31/2017




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