J-S24034-20


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    Appellee             :
                                         :
          v.                             :
                                         :
GREGORY MARTINEZ,                        :
                                         :
                    Appellant            :     No. 1371 EDA 2019

                Appeal from the PCRA Order Entered April 16, 2019
               in the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0207821-1988

BEFORE:        BENDER, P.J.E., STABILE, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                    FILED AUGUST 07, 2020

     Gregory Martinez (Appellant) appeals pro se from the order entered on

April 16, 2019, dismissing his motion for post-conviction DNA testing filed

pursuant to section 9543.1 of the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. Upon review, we affirm.

     This Court has previously provided the following factual summary.

            On May 12, 1997, Jerry Morris[], a used-car dealer,
     allowed [A]ppellant to borrow a gold-colored Plymouth to show
     to a potential buyer; [A]ppellant occasionally sold cars for
     Morris. While having lunch later that day, [A]ppellant
     encountered John Reese [(Victim)], to whom he had sold a car
     transmission two years earlier. [Victim] complained about the
     transmission and demanded his money back. Appellant refused
     to refund the money, and the verbal argument escalated into a
     fistfight. Appellant left the restaurant [in his car] and vowed to
     return for [Victim]. Moments later, [A]ppellant came back in the
     gold Plymouth and shot [Victim].

                                     ***


*Retired Senior Judge assigned to the Superior Court.
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            During the investigation… Morris… spoke to the police,
      stating that [A]ppellant had been to see him on the night of the
      murder and [Appellant] had stated that he killed [Victim].

Commonwealth        v.   Martinez,    897   A.2d   520    (Pa.   Super.   2006)

(unpublished memorandum at 1-2).

      Based on the foregoing, Appellant was charged with first-degree

murder, possessing an instrument of crime, and carrying a firearm without a

license. On March 18, 1999, Appellant proceeded to a jury trial. The

Commonwealth presented, inter alia, Morris’ testimony, as well as testimony

from two eyewitnesses who observed Appellant shoot Victim. One of those

eyewitnesses was Teresca Cherry, who

      was nearby when the shooting occurred[. She stated that
      Appellant], whom she had known for a long time as Chop, and
      [Victim] got into a fight. As the fighting ended, Cherry heard
      [Appellant] say, “I'll be back.” Cherry testified that she then saw
      [Appellant] get into a beige[-]colored car1 and drive away. A few
      minutes later, [Appellant] returned, walked up to the victim, and
      shot him twice. Cherry… saw [Appellant] get back in the beige
      car and drive north on Lancaster [Street]. Officer Lorenzo
      Walker… testi[fied ]that he saw [Appellant] shoot the victim.
      After sending out a bulletin, Officer Walker pursued [Appellant]
      as he fled the scene in a beige colored Plymouth Reliant. Officer
      Walker followed the vehicle down Lancaster [Street] to Sloan
      Street.

Commonwealth        v.   Martinez,   764    A.2d   1125   (Pa.   Super.   2000)

(unpublished memorandum at 1-2). Officer Walker lost sight of Appellant


1
 Throughout trial, the car was interchangeably referred to as gold and beige.
Because Appellant abandoned the vehicle and escaped on foot down an
alley, the identification of the car used to flee the shooting was not at issue.
Martinez, 897 A.2d 520 (unpublished memorandum at 2).


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after Appellant jumped out of the Plymouth and ran down an alley.

Martinez, 897 A.2d 520 (unpublished memorandum at 2).

      A second law-enforcement officer placed Appellant near the scene of

the murder, and a third officer saw the Plymouth Reliant speed away from

Victim after the shooting.

            Officer Anthony Winbush testified that, near the time of
      the shooting, he was traveling on Sloan Street, a narrow side
      street, when he pulled onto the curb to let another car pass. The
      car was driven by [Appellant]. As it passed, both men looked at
      each other. Officer Winbush testified that he had known
      [Appellant] and his family for several years.…

            Shortly before the shooting, Officer Samuel McClain, who
      was off duty, was driving toward Lancaster [Street] to meet with
      Officer Winbush when Officer McClain heard a gunshot. A few
      seconds later, he observed a beige Reliant drive by him in the
      opposite direction at a high rate of speed. A few moments later,
      Officer McClain saw a marked police car with its lights flashing
      speed by him. As Officer McClain approached 40th and Lancaster
      [Streets], he saw people taking items off of a body that was
      resting on the ground. He stopped his car and approached the
      body. Upon turning the body over, Officer McClain observed that
      the victim[] had been shot. [Victim] died shortly thereafter.

Martinez, 764 A.2d 1125 (unpublished memorandum at 2).

   Finally, the Commonwealth presented evidence that Appellant’s palm

print was found on the Plymouth Reliant, and .32 caliber Smith and Wesson

bullets recovered from Victim’s body were similar to .32 caliber cartridges

seized from Appellant’s residence. Id. (unpublished memorandum at 3).

      On March 23, 1999, the jury convicted Appellant of first-degree

murder, possessing an instrument of crime, and carrying a firearm without a

license. Appellant was sentenced to life imprisonment without the possibility

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of parole for murder and concurrent sentences of two to four years of

imprisonment on the remaining charges. Appellant filed a direct appeal. This

Court affirmed Appellant’s judgment of sentence on August 7, 2000, and our

Supreme Court denied his petition for allowance of appeal on January 31,

2001. Id., appeal denied, 766 A.2d 1245 (Pa. 2001). Appellant’s first PCRA

petition was timely filed on September 13, 2001, and dismissed by the PCRA

court. We affirmed the PCRA court’s dismissal, and our Supreme Court

denied allocatur. Martinez, 897 A.2d 520, allocatur denied, 911 A.2d 934

(Pa. 2006).

      Appellant filed his second PCRA petition on May 14, 2012, amended on

August 16, 2012.2 On March 14, 2018, Appellant pro se filed the instant

motion for post-conviction DNA testing of clothing worn by Victim.

Appellant’s Motion for DNA Testing, 3/14/2018, at 3. The Commonwealth

filed a motion to dismiss Appellant’s second PCRA petition and motion for

DNA testing on January 16, 2019, to which Appellant responded on February

13, 2019.3 The PCRA court sent Appellant a notice of intent to dismiss his



2The PCRA Court’s opinion states that Appellant “filed an amended petition”
on August 16, 2012 and discusses exclusively the content of Appellant’s
August 2012 filing, however a review of the record does not indicate whether
Appellant had leave to amend his May 14, 2012 petition. See PCRA Court
Opinion, 10/24/2019, at 3, 4-7.

3  The Commonwealth’s motion to dismiss covers both Appellant’s 2012 PCRA
petition and 2018 motion for DNA testing, erroneously stating that they were
filed together on May 14, 2012. Commonwealth Motion to Dismiss,
1/16/2019, at 7. No explanation appears in the record for the more than six
(Footnote Continued Next Page)

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PCRA petition pursuant to Pa.R.Crim.P. 907 on March 18, 2019. Appellant

responded on April 8, 2019. On April 16, 2019, the PCRA court dismissed

Appellant’s PCRA petition as untimely filed and without merit and denied his

motion for DNA testing.

      Appellant timely filed a notice of appeal from the denial of his motion

for DNA testing.4

      Appellant raises the following issue on appeal.

      Appellant’s... petition to have DNA testing was denied without a
      hearing, which deprived Appellant of due process and caused a
      miscarriage of justice. The lower court abused it[]s discretion
      and was in error of the law, as the ruling was contrary to the
      statute, and was not supported by the record.

Appellant’s Brief at 8 (unnumbered)5 (some capitalization omitted).6




(Footnote Continued)   _______________________

year delay in addressing Appellant’s 2012 PCRA petition. We do not condone
such extreme delays. Our Supreme Court has made clear that “[t]he PCRA
court [has] the ability and responsibility to manage its docket and caseload
and thus an essential role in ensuring the timely resolution of PCRA
matters.” Commonwealth v. Renchenski, 52 A.3d 251, 260 (Pa. 2012).
However, we need not address this delay further as Appellant’s responses to
the Commonwealth’s motion to dismiss and subsequent filings exclusively
contest the dismissal of his 2018 motion for DNA testing, and not his 2012
PCRA petition.
4
  The PCRA court complied with Pa.R.A.P. 1925(a). It did not order a
Pa.R.A.P. 1925(b) statement and none was filed.
5 Appellant purports to hand-number his brief; however it is difficult to
follow; so we have renumbered for ease of reference.
6
 Insofar as Appellant argues tangentially that he was not afforded counsel,
we note that section 9543.1 does not confer a right to counsel.
Commonwealth v. Williams, 35 A.3d 44, 50 (Pa. Super. 2011).

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      “Post[-]conviction DNA testing falls under the aegis of the… PCRA, and

thus, our 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. Kunco, 173 A.3d 817, 823 (Pa.

Super. 2017) (original brackets omitted) (quoting Commonwealth v.

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

      The post-conviction DNA testing statute permits “[a]n individual

convicted of a criminal offense in a court of this Commonwealth” to apply by

“written motion to the sentencing court at any time 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. § 9543.1(a)(1).      “DNA testing may be sought at any time if the

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.” 42 Pa.C.S. § 9543.1(a)(4).

      (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.

       “[O]n 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). In

order for new evidence resulting from DNA testing to establish “actual

innocence,” it “must make it ‘more likely than not that no reasonable juror

would have found [the appellant] 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

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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 … actual innocence.” Commonwealth v. Williams, 35 A.3d 44,

50 (Pa. Super. 2011) (quoting Commonwealth v. Smith, 889 A.2d 582,

584 (Pa. Super. 2005)).

      In his motion for DNA testing, Appellant argued he was entitled to

have Victim’s shirt, sweatshirt, and jacket tested for “DNA, blood, hair[,] and

any fibers that would reveal [an]other persons’ DNA besides the deceased.”

Appellant’s Motion, 3/14/2018, at 3. Through a string of inferences, he

posits that blood on Victim’s shirt could exonerate him by showing that

someone else committed the murder. Id. at 2. First, Appellant maintains

that he is innocent, and his DNA would not be found on Victim. Id. Next,

Appellant states that the “struggle and … fight” preceding the shooting put

Victim and his attacker “in very close contact” such that it is reasonable to

believe blood from the attacker would have gotten on Victim’s clothing. Id.

at 2. He then endorses “the testimony explain[ing that] the man who fought

[Victim] is the same person who came back and shot [Victim].” Id.

Therefore, Appellant reasons that blood on Victim’s shirt “could be of both

parties, the shooter and the deceased.” Id. As a result, Appellant concludes


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DNA testing may result in identifying the shooter and exonerating Appellant.

Id. at 3.

      In denying Appellant’s motion, the PCRA court found that Appellant

failed to make out a prima facie case pursuant to § 9543.1(c)(3). PCRA

Court Opinion, 10/24/2019, at 10. The PCRA court determined that, given

the “overwhelming[]” evidence establishing Appellant’s responsibility for the

murder, neither the absence of his DNA nor the presence of another person’s

DNA would establish Appellant’s actual innocence. Id.

       On   appeal,   Appellant   asserts   that   the   PCRA   court   “failed   to

understand that eyewitness testimony … is unreliable and most damaging to

a fair trial because of misidentification.” Appellant’s Brief at 7 (unnumbered).

Appellant relies on Conway to argue he has presented a prima facie case

that, assuming exculpatory results, DNA testing would resolve the purported

misidentification and reveal the actual murderer based upon Conway’s data

bank theory and confession theory. Id. at 10-11 (unnumbered) (citing

Conway, 14 A.3d at 110; In re Payne, 129 A.3d 546 (Pa. Super. 2015)).

Taken together, the data bank and confession theories postulate that if DNA

testing yields DNA of an unknown person, it “could be run through state and

federal data banks for a match.” Conway, 14 A.3d at 110. If the data bank

search finds a match, the identified person could be confronted with the

results and choose to confess. Id. Appellant concludes that, applying the

theories to his case, “[t]he blood may reveal the real killer. The killer may


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also confess to the crime.… The DNA would reveal that Appellant is actually

innocent of the crimes charged.” Appellant’s Brief at 10-11 (unnumbered).

      Appellant’s comparison to Conway and Payne is inapt.7 Motions for

DNA testing are evaluated on a case-by-case basis; the data bank and

confession theories are not universally applicable or exculpatory. Payne,

129 A.3d at 559-60, 564. Here, rather than exonerate Appellant, the

detection of multiple DNA profiles on Victim’s clothing is consistent with the

evidence adduced at trial. First, although Appellant’s argument focuses on

blood, we note that his broad request for testing any source of DNA would

have no exculpatory value. See Appellant’s Motion, 3/14/2018, at 3. In

addition to Victim’s encounters prior to the shooting and while receiving

medical care, Officer McClain observed multiple people come in contact with

Victim’s clothing while removing items from the body. Moreover, the mere

absence of Appellant’s DNA cannot establish actual innocence. See Smith,

889 A.2d at 585 (“Merely detecting DNA from another individual on the

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




7
  In Payne, we held that detection of another person’s DNA could be
exculpatory where no physical evidence linked the appellant to the murder;
the conviction was based on testimony from two jailhouse informants and
one other witness claiming the appellant confessed to them; and testing was
sought for specific, inherently inculpatory items such as a pubic hair. Payne,
129 A.3d at 564. In Conway, we found that DNA testing was warranted
where Conway was convicted based on circumstantial evidence and no prior
relationship existed between Conway and the victim to suggest a motive.
Conway, 14 A.3d at 109.

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

assailant.”).

      Appellant has not demonstrated that there is a reasonable possibility

the presence of another person’s blood on Victim’s clothing, and/or the

absence    of   Appellant’s,   would   establish   his   actual   innocence.   The

Commonwealth’s case did not rely on proving that the assailant and Victim’s

fight caused either party to bleed, that the assailant came in such close

contact with Victim that blood would inevitably transfer, or that the assailant

bled on Victim. As such, new evidence showing someone else’s blood came

into contact with Victim’s body or clothing, but Appellant’s blood did not,

would not disprove or outweigh the most salient evidence introduced at trial.

At trial, a law enforcement officer and a person who knew Appellant for

years testified that they saw Appellant shoot Victim.8 Two more law

enforcement officers placed Appellant near the crime scene, fleeing in the

Plymouth Reliant. Finally, Appellant does not challenge the evidence that he

drove the Plymouth Reliant used to flee the scene, confessed the murder to

Morris, and possessed ammunition consistent with the bullets used to kill

Victim. Thus, even if DNA evidence favorable to Appellant had been

8
  Notwithstanding Appellant’s bald proclamation that eyewitness accounts
are generally unreliable, we note that Appellant’s theory for the transfer of
the shooter’s DNA onto Victim’s clothing relies on his selective endorsement
of eyewitness testimony. Appellant’s Reply Brief at 1 (“[I]t was the
Commonwealth’s witness [Cherry] that presented a prima facie case that
DNA testing is needed” by testifying to the fight between Appellant and
Victim.).

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introduced at trial, it is not probable that any reasonable juror would have

found Appellant not guilty.

      As Appellant has failed to meet his prima facie burden under

§ 9543.1(c)(3), we find that the PCRA court did not err in denying

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

the PCRA court’s order.

      Order affirmed.

 Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/20




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