J-S37045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

LEE HERBERT WAGNER

                            Appellant                No. 103 WDA 2016


                     Appeal from the Order January 5, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0011280-1996


BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                            FILED JUNE 28, 2016

        Lee Herbert Wagner appeals from the order, entered in the Court of

Common Pleas of Allegheny County, which dismissed his petition pursuant to

the Post Conviction Relief Act (PCRA).1 After careful review, we affirm.

        The trial court summarized the facts underlying Wagner’s convictions

for aggravated indecent assault and indecent assault as follows:

        On August 9, 1996, [Wagner] met Chelsea Whitney, a woman
        with whom he had been conversing by telephone for the
        previous two weeks, at Station Square in the City of Pittsburgh.
        After having dinner, [Wagner] and Ms. Whitney went to Mt.
        Washington and then to Ms. Whitney’s apartment.           At the
        apartment, the parties engaged in kissing, which became violent
        when [Wagner] ignored Ms. Whitney’s requests that he stop[.]
        [Wagner] pinned Ms. Whitney to the sofa, ripped off her

____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
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       pantyhose, and touched her vagina. After doing so, he left and
       Ms. Whitney reported the incident to the police two days later.

Trial Court Opinion, 2/1/16, at 4.

       The procedural history leading to the instant PCRA petition, the latest

in a series of such petitions, involves the following. On May 7, 1996, after a

jury found Wagner guilty of the above offenses, the trial court determined

Wagner to be a sexually violent predator pursuant to Megan’s Law2 and

sentenced him to a term of five years’ to life imprisonment. Wagner filed a

direct appeal, which resulted in Wagner receiving a new sentence due to the

unconstitutionality of portions of Megan’s Law. Wagner was resentenced on

December 16, 1998, to a term of five to ten years’ imprisonment. Wagner’s

judgment of sentence was affirmed on appeal on July 21, 2000.                   See

Commonwealth           v.   Wagner,       761    A.2d   1240   (Pa.   Super.   2000)

(unpublished memorandum). Wagner did not file a petition for allowance of

appeal in the Pennsylvania Supreme Court.

       Wagner filed a pro se PCRA petition on August 3, 2000. Counsel was

appointed and an amended petition was filed, alleging ineffective assistance

of counsel. After an evidentiary hearing was held on March 22, 2002, the

PCRA court dismissed the petition on April 4, 2002. This Court affirmed the

____________________________________________


2
  Megan’s Law previously provided for the registration of sexual offenders
and was codified at 42 Pa.C.S § 9791 et seq. Megan’s Law was replaced
with the current law, the Sexual Offender Registration and Notification Act
(SORNA). See 42 Pa.C.S. §§ 9799.10-9799.41.




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PCRA court’s order on July 2, 2003, and the Pennsylvania Supreme Court

denied Wagner’s petition for allowance of appeal on December 16, 2003.

See Commonwealth v. Wagner, 832 A.2d 545 (Pa. Super. 2003)

(unpublished memorandum), appeal denied, 841 A.2d 531 (Pa. 2003).

      On January 28, 2006, Wagner filed a second pro se PCRA petition, in

which he requested DNA testing of certain evidence produced at trial. New

counsel was appointed, and a motion for post-conviction DNA testing was

filed on May 18, 2006. On November 13, 2006, the PCRA court dismissed

the motion without a hearing. A panel of this Court affirmed the dismissal.

See Commonwealth v. Wagner, 945 A.2d 771 (Pa. Super. 2007)

(unpublished memorandum), appeal denied, 952 A.2d 677 (Pa. 2008).

      On July 17, 2008, Wagner filed a third pro se PCRA petition, in which

he argued that the Commonwealth withheld a statement made by the victim

to a Pittsburgh Action Against Rape (“PAAR”) representative.       Wagner

asserted that this failure to disclose amounted to a violation of his

constitutional rights. On September 18, 2008, the PCRA court dismissed the

petition without a hearing.   Wagner did not file an appeal following the

dismissal.

      On January 27, 2011, Wagner filed a fourth pro se PCRA petition,

including a second motion for DNA testing.     The PCRA court entered a

Pa.R.Crim.P. 907 notice of intent to dismiss without a hearing on February

22, 2011, and dismissed the PCRA petition on March 21, 2011.           The




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dismissal was affirmed on appeal to this Court.    See Commonwealth v.

Wagner, 46 A.3d 812 (Pa. Super. 2012) (unpublished memorandum).

      Wagner filed a fifth pro se PCRA petition on August 7, 2012. Following

the entry of a notice of intent to dismiss without a hearing pursuant to Rule

907, the PCRA court dismissed the petition on October 11, 2012. Wagner

did not file an appeal.

      On September 9, 2015, Wagner filed the instant, counseled petition

requesting post-conviction DNA testing pursuant to the PCRA.       The PCRA

court issued a Rule 907 notice of intent to dismiss the petition without a

hearing and entered a final order dismissing the petition on January 5, 2016.

Wagner filed a timely notice of appeal and concise statement of issues raised

on appeal pursuant to Pa.R.A.P. 1925(b).

      On appeal, Wagner raises the following issue for our consideration:

      Did the trial court err in denying [Wagner’s] motion for
      performance of forensic DNA testing pursuant to 42 Pa.C.S. §
      9543.1 since the request for DNA testing has not been properly
      previously litigated since [Wagner] respectfully avers that the
      trial court and Superior Court had relied upon the erroneous
      assumption that [Wagner] admitted to sexual activities, other
      than kissing, with the victim, but the record indicates that he
      never admitted to anyt[h]ing more than kissing, and never
      admitted to ripping her pantyhose and inserting his fingers into
      her vagina. Hence, the absence of [Wagner’s] DNA at the tear
      hole in the crotch area of the pantyhose would exonerate him of
      the crime of aggravated indecent assault since his conviction was
      based up[on] the alleged insertion of two of [Wagner’s] fingers
      into the victim’s vagina, but to have accomplished that he would
      have had to first have forcibly ripped through the victim’s
      pantyhose (and that action would have deposited his skin
      follicles on the pantyhose)?



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Brief for Appellant, at 3.

      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.

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

(citations omitted). Where we are considering the PCRA court’s denial of a

request for DNA testing, we note that

      the filing requirements of 42 Pa.C.S. § 9545 have not yet been
      implicated. . . . Post[-]conviction DNA testing does not directly
      create an exception to § 9545’s one-year time bar. 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. § 9545(b)(2).

Id. (citations omitted). Indeed, “[t]his Court has consistently held the one-

year jurisdictional time bar of the PCRA does not apply to motions for DNA

testing under Section 9543.1.” Commonwealth v. Williams, 35 A.3d 44,

50 (Pa. Super. 2011).

      Although Wagner’s petition seeking DNA testing does not fall under the

timeliness requirements of typical PCRA petitions, the instant request is

nevertheless barred by the law of the case doctrine.         As we noted in

Gacobano,

      [t]he law of the case doctrine refers to a family of rules which
      embody the concept that a court involved in the later phases of
      a litigated matter should not reopen questions decided by
      another judge of that same court or by a higher court in the

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      earlier phases of the matter. . . . [W]hen an appellate court has
      considered and decided a question submitted to it upon appeal,
      it will not, upon a subsequent appeal on another phase of the
      case, reverse its previous ruling.

Gacobano, supra at 419-20.

      Instantly, Wagner has submitted a petition for DNA testing for the

third time.   Wagner has made substantially the same argument in each

petition.   Wagner’s initial DNA testing request was dismissed by the PCRA

court, was rejected by a panel of this Court, and was denied review by the

Pennsylvania Supreme Court.       Likewise, Wagner’s second DNA testing

request was dismissed by the PCRA court, and the dismissal was affirmed by

a panel of this Court. Accordingly, Wagner’s claim has been fully litigated

and under the law of the case, we will not reverse our previous rulings.

Gacobano, supra.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/2016




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