J-S23036-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :   IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
               Appellee                  :
                                         :
                     v.                  :
                                         :
RONALD A. WILLIAMS,                      :
                                         :
               Appellant                 :   No. 1933 EDA 2014

            Appeal from the PCRA Order Entered May 23, 2014,
           in the Court of Common Pleas of Philadelphia County,
           Criminal Division, at No(s): CP-51-CR-1201001-2002

BEFORE:    DONOHUE, SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                         FILED MAY 29, 2015

     Ronald A. Williams (Appellant) appeals from the order entered on May

23, 2014, which denied his motion for post-conviction DNA testing under

Section 9543.1 of the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546.1 Upon review, we affirm.

     This Court previously summarized the background underlying this

matter as follows:



1
    On December 29, 2014, the Commonwealth of Pennsylvania
(Commonwealth) filed a petition requesting an extension of time to file a
brief. This Court granted the Commonwealth’s petition and directed that the
brief be filed on or before March 2, 2015.          On March 2, 2015, the
Commonwealth filed a second petition requesting an extension of time to file
its brief, and the Court denied that petition. The Commonwealth did not file
its brief until May 1, 2015, and, as a consequence, this Court did not
consider it in disposing of this appeal. On May 8, 2015, Appellant filed a
motion requesting an extension of time to file a reply brief. Because this
Court did not consider the Commonwealth’s brief in disposing of this appeal,
we deny Appellant’s motion as moot.

*Retired Senior Judge assigned to the Superior Court.
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           On March 12, 2002, Beverly and Solomon Sacks were
     working together at Best Deal Discount Footwear (“the sneaker
     store”) in Philadelphia. At approximately 6:30 p.m., a man,
     later identified as Appellant, entered the store, stood silently,
     and then exited. Ten minutes later, Appellant again entered the
     store, and this time pulled a gun from his jacket and pointed it
     at Mr. Sacks. Mr. Sacks told his wife to leave the store and call
     the police. Mrs. Sacks quickly exited the store and screamed for
     help. When police arrived, Mrs. Sacks and the officers entered
     the store to find Mr. Sacks suffering from a gunshot wound to
     the chest. Mr. Sacks told his wife that the intruder shot him and
     that he believed he was going to die. Mr. Sacks was transported
     to the University of Pennsylvania Hospital where he was
     pronounced dead at 7:14 p.m.

           Police began their investigation, and interviewed several
     eyewitnesses. During the investigation, the eyewitnesses, Mrs.
     Sacks, Pedro Genas, and Edward Iezzi, all identified Appellant
     from photo arrays, but with various degrees of certainty.
     However, when the witnesses were asked to view a line-up on
     November 6, 2002, all of them identified Appellant as the man
     they had seen on the night in question.

           Appellant was subsequently arrested, and the matter
     proceeded to a jury trial where Appellant was found guilty of
     second degree murder and robbery. The trial court sentenced
     Appellant to a term of life in prison on the murder bill, and the
     robbery conviction merged for sentencing purposes.

Commonwealth      v.   Williams,   909   A.2d   890   (Pa.   Super.      2006)

(unpublished memorandum at 1-2). Appellant filed a direct appeal, and this

Court affirmed Appellant’s judgment of sentence on August 24, 2006.        Id.

On February 28, 2007, our Supreme Court denied Appellant’s petition for

allowance of appeal.   Commonwealth v. Williams, 918 A.2d 745 (Pa.

2007).




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      Appellant filed a PCRA petition on July 2, 2007, and a motion for post-

conviction DNA testing on September 22, 2008.      The PCRA court formally

dismissed the petition on December 12, 2008, and Appellant timely filed an

appeal.2 On February 9, 2010, this Court affirmed, and the Supreme Court

denied Appellant’s petition for allowance of appeal on September 15, 2010.

Commonwealth v. Williams, 996 A.2d 18 (Pa. Super. 2010) (unpublished

memorandum), appeal denied, 8 A.3d 345 (Pa. 2010).

      Appellant filed the instant motion for post-conviction DNA testing on

November 14, 2013. Therein, Appellant sought “testing of the black jacket

worn by the perpetrator which was recovered and subjected to DNA analysis

by the Commonwealth, but not [through the use of] ‘Touch DNA’ analysis.” 3

Appellant’s Motion for Post-Conviction DNA Testing at 2.      Appellant thus

requested testing of the jacket using “the new, more advanced ‘Touch DNA’”

analysis.   Id.   On March 17, 2014, the Commonwealth filed a motion to

dismiss.    On May 1, 2014, the PCRA court issued notice pursuant to

Pa.R.Crim.P. 907 of its intent to dismiss Appellant’s motion without a

hearing. Appellant filed a response on May 20, 2014, and on May 23, 2014,

2
  It appears that the PCRA court also denied Appellant’s motion for post-
conviction DNA testing, but that Appellant did not seek appellate review of
that decision.
3
 Importantly, the DNA testing that was conducted either excluded Appellant
or yielded no DNA results or inconclusive DNA results. Williams, 996 A.2d
18 (unpublished memorandum at 12).



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the PCRA court formally dismissed Appellant’s motion. Appellant timely filed

a notice of appeal.

         Appellant presents the following issues for our consideration:

    I.      Whether the [PCRA court] applied the wrong standard of
            review to Appellant’s motion for post-conviction DNA testing?

   II.      Whether the [PCRA court] erred in finding that [Appellant]
            was not entitled to post-conviction DNA testing when he was
            prepared to pay for the DNA testing and to have the results
            run through [the Combined DNA Index System (CODIS)] and
            the Pennsylvania data bank when there was a reasonable
            probability the testing would produce exculpatory evidence?

  III.      Whether the [PCRA court] erred in finding that there were no
            issues of material fact when the DNA testing, assuming
            exculpatory results, would make out a prima faci[e] case that
            [Appellant] is actually innocent of all charges?

   IV.      Whether the motion for post-conviction DNA testing was
            timely and the denial of the motion was a denial of
            Appellant’s rights guaranteed by the Eighth and Fourteenth
            Amendments of the United States Constitution and Article 1,
            Section 13 of the Pennsylvania Constitution?

Appellant’s Brief at 2 (unnecessary capitalization omitted).

         “Post[-]conviction DNA testing falls under the aegis of the [PCRA,] 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.’” Commonwealth v. Conway, 14 A.3d 101, 108

(Pa. Super. 2011) (footnote and citation omitted) (quoting Commonwealth

v. Brooks, 875 A.2d 1141, 1144 (Pa. Super. 2005)).

         Section 9543.1 of the PCRA provides, in relevant part, as follows:



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     (a)     Motion.--

       (1)     An individual convicted of a criminal offense in a
               court of this Commonwealth and serving a term of
               imprisonment or awaiting execution because of a
               sentence of death may apply 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.

       (2)     The evidence may have been discovered either
               prior to or after the applicant’s conviction. The
               evidence shall be available for testing as of the
               date of the motion.          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 client was
               indigent and the court refused the request despite
               the client’s indigency.

                                      ***

     (c) Requirements.--In any motion under subsection (a), under
     penalty of perjury, the applicant shall:

                                      ***

       (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



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               (ii) DNA testing of the specific evidence,
                    assuming exculpatory results, would
                    establish:

                     (A)   the     applicant’s   actual
                           innocence of the offense for
                           which the applicant was
                           convicted;

                                       ***

      (d) Order.--

                                       ***

         (2)    The court shall not order the testing requested in
                a motion under subsection (a) 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:

               (i)   would establish the applicant’s actual
                     innocence of the offense for which the
                     applicant was convicted[.]

42 Pa.C.S. § 9543.1.

      “Thus, … on its face, the 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 (internal quotation

marks omitted) (emphasis in original) (quoting Brooks, 875 A.2d at 1147).

This Court has observed that the “actual innocence” standard mandates that



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“newly discovered evidence … make it ‘more likely than not that no

reasonable juror would have found [an applicant] guilty beyond a reasonable

doubt.’   Thus, this standard requires a reviewing court ‘to make a

probabilistic determination about what reasonable, properly instructed jurors

would do,’ if presented with the new evidence.” Conway, 14 A.3d at 109

(quoting Schlup v. Delo, 513 U.S. 298, 327, 329 (1995)). Accordingly, the

PCRA court must “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.” Commonwealth

v. Williams, 35 A.3d 44, 50 (Pa. Super. 2011) (emphasis in original)

(quoting Commonwealth v. Smith, 889 A.2d 582, 584 (Pa. Super. 2005)).

      Notwithstanding the various arguments Appellant presents on appeal,

we conclude that he is not entitled to relief. Put simply, Appellant has failed

to establish that there is a reasonable possibility that favorable results of the

requested DNA testing would establish his actual innocence. In this regard,

Appellant alleged in his motion as follows:

      The Commonwealth should be ordered to perform “Touch DNA”
      testing. In the alternative, [Appellant] will pay for the testing to
      rule himself out as a contributor to DNA found on the jacket and
      to make clear that the samples that have previously been
      determined to be inconclusive, in fact, rule out [Appellant] as a
      contributor. He also requests that the DNA results obtained from
      the new, advanced testing and the old results be run through
      CODIS. [Appellant] believes that those results would exclude



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      him but might now identify the contributor of the DNA found on
      the coat. He is requesting that the fingerprints found at the
      murder scene also be run through CODIS. [Appellant] believes
      that there is a reasonable probability that the contributor of both
      the DNA and the source of the fingerprints would be found to be
      the same perso[n, but not Appellant,] and that person could be
      identified by running the new and old evidence through CODIS.
      This would be prima facie evidence of [Appellant’s] actual
      innocence.

Appellant’s Motion for Post-Conviction DNA Testing at 11.4          Moreover,

Appellant argues in his brief, inter alia, that “he is a victim of cross-racial

misidentification,” that the requested DNA testing will show his DNA is not

on the jacket, and that “[t]he absence of DNA would surely create

reasonable doubt in the mind of a juror.” Id. at 24-25. We disagree.

      In this Court’s memorandum disposing of Appellant’s first PCRA

petition, wherein we rejected Appellant’s claim that trial counsel was



4
  Appellant continued by asserting the same theories relied upon by the
applicant in Conway in arguing that he is entitled to DNA testing, namely:

      (1) a “redundancy” theory, which postulates that if the individual
      DNA tests reveal evidence of a third person on multiple items
      connected with the crime, then those “redundant” results would
      give rise to an inference of a separate assailant; (2) a “data
      bank” theory, which postulates that any DNA results that are
      obtained from DNA testing that prove the presence of an
      unknown person could be run through state and federal data
      banks for a match, which, if successful, would lead to the
      identification of a separate assailant; and (3) a “confession”
      theory, which postulates that an assailant who is discovered by
      using the data bank theory could, when confronted with the DNA
      evidence, confess to the crime.

Conway, 14 A.3d at 110.


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ineffective for failing to request additional DNA testing, we explained as

follows:

             Appellant contends trial counsel’s failure to request funds
      for additional DNA testing constitutes deficient performance as
      there was no reasonable basis for not making the request. To
      the contrary, trial testimony revealed that twelve samples had
      been taken from the jacket and submitted for DNA testing.
      While six of those samples returned no DNA results or
      inconclusive DNA results, Appellant was excluded from the
      remaining six samples.        As the complained of tests were
      inconclusive, there was strength in the argument that the
      prosecution’s own DNA testing did not positively identify
      Appellant as the killer. Furthermore, there is just as reasonable
      a probability that additional testing would have revealed
      Appellant’s DNA on the jacket as there is that it would have
      excluded him from the source of the samples. Also, assuming,
      arguendo, new DNA testing would have positively excluded
      Appellant, this fact alone does not necessarily lead to a not guilty
      verdict.   As has been noted previously, three eyewitnesses
      identified Appellant as the shooter.

Williams, 996 A.2d 18 (unpublished memorandum at 12) (citations

omitted).

      We find the observations above to be particularly apt in the context of

this matter and conclude that Appellant provides us no reason to reach a

different conclusion. Appellant was convicted primarily on the basis of three

eyewitness identifications in the face of DNA testing that failed to identify

Appellant. Thus, even if the results of the requested DNA testing definitively

excluded Appellant’s DNA from the jacket, further confirmation of this

absence     does   not   enable   Appellant   to   meet   his   burden.      See

Commonwealth v. Heilman, 867 A.2d 542, 547 (Pa. Super. 2005) (“In



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DNA as in other areas, an absence of evidence is not evidence of

absence.”).5   Moreover, even if the results of the requested DNA testing

positively identified someone else’s DNA on the jacket, Appellant fails to

explain how that necessarily points to a different assailant. Thus, it would

not exculpate Appellant.   See Commonwealth v. Smith, 889 A.2d 582,

585 (Pa. Super. 2005) (“Merely detecting DNA from another individual on

the victim’s fingernails, in the absence of any evidence as to how and when

that DNA was deposited, would not exculpate appellant by pointing to a

different assailant.”).

      As Appellant has failed to meet his prima facie burden under

Section 9543.1 of the PCRA, the PCRA court did not err in denying his

motion for post-conviction DNA testing. Accordingly, we affirm the court’s

order.

      Order affirmed.




5
  In fact, Appellant acknowledges that the forensic expert who performed the
original DNA testing testified on behalf of the Commonwealth “that the fact
that [Appellant’s] DNA was not present in the samples did not mean that he
did not touch the coat, but only that his DNA was not detected.” Appellant’s
Motion for Post-Conviction DNA Testing at 7 (emphasis omitted); Appellant’s
Brief at 9 (emphasis omitted).


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J-S23036-15




Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 5/29/2015




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