J-S16044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                       :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                          :        PENNSYLVANIA
                                       :
                    Appellee           :
              v.                       :
                                       :
 JACQUIN JOHN CARR                     :
                                       :
                    Appellant          :       No. 1204 MDA 2017
                                       :


                   Appeal from the PCRA Order July 18, 2017
              in the Court of Common Pleas of Lancaster County
              Criminal Division at No.: CP-36-CR-0000255-2007


BEFORE:    BOWES, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                              FILED MAY 30, 2018

     Appellant, Jacquin John Carr, appeals pro se from the order denying his

motion for DNA testing pursuant to Section 9543.1 of the Post-Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

     We take the factual and procedural history in this matter from our

review of the certified record. On March 12, 2008, following his jury trial,

Appellant was convicted of second-degree murder, and, on March 31, 2008,

he was sentenced to a term of life in prison. On May 27, 2009, this Court

affirmed the judgment of sentence, and our Supreme Court denied Appellant’s

petition for allowance of appeal on June 16, 2010. (See Commonwealth v.

Carr, 976 A.2d 1199 (Pa. Super. 2009) (unpublished memorandum), appeal

denied, 996 A.2d 1067 (Pa. 2010)). Appellant filed his first PCRA petition on



____________________________________
* Retired Senior Judge assigned to the Superior Court.
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March 15, 2011, which the court denied on March 1, 2013. On April 15, 2014,

this Court dismissed Appellant’s appeal for failure to file a brief.

       On July 17, 2017, Appellant filed the instant motion for DNA testing.

The PCRA court denied the motion on July 18, 2017.             This timely appeal

followed.1

       Appellant raises the following question for our review: “[Whether] the

[PCRA] court abused its discretion when it dismissed the petition filed by the

Appellant and pertaining to this instant case[?]”        (Appellant’s Brief, at 3

(unnecessary capitalization omitted); see id. at 8-17). This issue does not

merit relief.

              Initially, we note that, when examining the propriety of an
       order resolving a request for DNA testing, we employ the PCRA
       standard of review. On appeal from the denial of PCRA relief, our
       standard of review calls for us to determine whether the ruling of
       the PCRA court is supported by the record and free of legal error.
       In the present matter, we are considering the PCRA court’s denial
       of a request for DNA testing. In this context, the [timeliness] filing
       requirements of 42 Pa.C.S.[A.] § 9545 have not yet been
       implicated. . . .

Commonwealth v. Gacobano, 65 A.3d 416, 419 (Pa. Super. 2013)

(citations and quotation marks omitted).

             Generally, the trial 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. We can affirm the court’s
____________________________________________


1Appellant filed his concise statement of matters complained of on appeal on
August 14, 2017. The trial court entered its opinion on September 22, 2017.
See Pa.R.A.P. 1925.

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      decision if there is any basis to support it, even if we rely on
      different grounds to affirm.

Commonwealth v. Walsh, 125 A.3d 1248, 1252–53 (Pa. Super. 2015)

(citation omitted).

      The applicable statutory provisions state, in relevant part, as follows:

      (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:

            (1) (i) specify the evidence to be tested;

                 (ii) state that the applicant consents to provide
            samples of bodily fluid for use in the DNA testing; and


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                 (iii) acknowledge that the applicant understands
          that, if the motion is granted, any data obtained from
          any DNA samples or test results may be entered into
          law enforcement databases, may be used in the
          investigation of other crimes and may be used as
          evidence against the applicant in other cases.

          (2) (i) assert the applicant’s actual innocence of the
          offense for which the applicant 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:

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

                                 *    *    *

     (d) Order.—

          (1) Except as provided in paragraph (2), the court
          shall order the testing requested in a motion under
          subsection (a) under reasonable conditions designed
          to preserve the integrity of the evidence and the
          testing process upon a determination, after review of
          the record of the applicant’s trial, that the:

                 (i) requirements of subsection (c) have been
          met;

                (ii) evidence to be tested has been subject to a
          chain of custody sufficient to establish that it has not
          been altered in any material respect; and


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                  (iii) motion is made in a timely manner and for
            the purpose of demonstrating the applicant’s actual
            innocence and not to delay the execution of sentence
            or administration of justice.

            (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.A. § 9543.1(a), (c), (d).

            Thus, under Section 9543.1(a):

                  The statute 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:

                  The text of the statute set forth in Section
            9543.1(c)(3) and reinforced in Section 9543.1(d)(2)
            requires the applicant to demonstrate that favorable
            results of the requested DNA testing would establish
            the applicant’s actual innocence of the crime of
            conviction. The statutory standard to obtain testing
            requires more than conjecture or speculation; it

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              demands a prima facie case that the DNA results, if
              exculpatory, would establish actual innocence.

              Significantly, in DNA testing cases, an absence of evidence
       is not evidence of absence. . . .

Walsh, supra at 1254–55 (case citations, quotation marks, and original

emphasis omitted; emphasis added).

       Here, Appellant petitioned the PCRA court for DNA testing of two swabs

taken from the sidewalk of the crime scene, and blood on a cell phone dropped

by the victim.2 He claims that he did not ask for them to be tested earlier

because he did not know of their existence, and argues: “the DNA testing will

allow the Commonwealth to determine the real attacker who attempted to rob

the decedent and did kill the decedent.”         (Appellant’s Brief, at 9) (most

capitalization omitted).

       Appellant has failed to meet the threshold requirements for DNA testing

under Section 9543(a)(2). See 42 Pa.C.S.A. § 9543.1(a)(2). The swabs from

the sidewalk and the cell phone were discovered before Appellant’s trial in

2010, technology for DNA testing was available at the time of his trial, the

verdict was rendered after January 1, 1995, and there is no evidence that the

trial court refused funds for DNA testing. See id. Consequently, Appellant

has not met his threshold burden under Section 9543.1(a)(2). See Walsh,

supra at 1257 (concluding appellant unable to satisfy threshold requirements

____________________________________________


2The PCRA court observed that the swabs were taken from a public sidewalk
and were not admitted at trial, and no swabs were taken on the cell phone
collected from the crime scene. (See PCRA Court Opinion, 9/22/17, at
unnumbered page 3).

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necessary to obtain post-conviction DNA testing of evidence discovered and

available before trial where DNA testing technology was available at time of

trial, jury reached its verdict after January 1, 1995, and court did not refuse

request for funds for DNA testing).

      Additionally, Appellant has failed to prove a prima facie case that the

testing would produce exculpatory evidence proving his actual innocence. See

id. at 1254-55; 42 Pa.C.S.A. § 9543.1(c)(3), (d)(2). The PCRA court found

that Appellant’s argument that the testing will reveal blood belonging to

someone other than himself does not establish a prima facie case because “an

averment that a [d]efendant’s DNA will be absent from the crime scene will

not justify testing under section 9543.1.” (PCRA Ct. Op., at unnumbered page

4) (footnote omitted) (citing cases). Upon review, we agree.

      In sum, we conclude the PCRA court properly denied Appellant’s motion

for post-conviction DNA testing. See Gacobano, supra at 419. Accordingly,

we affirm the order of the PCRA court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/30/18




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