J-S65002-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ROBERT SHAWN MCPHERSON

                            Appellant                 No. 364 WDA 2014


                 Appeal from the PCRA Order January 31, 2014
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0012810-1985


BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                      FILED NOVEMBER 30, 2016

        Robert Shawn McPherson appeals from the trial court’s final order

denying his petition filed pursuant to the Post Conviction Relief Act (PCRA). 1

After careful review, we find that McPherson’s PCRA petition is untimely and

we affirm.

        The trial court made the following findings of fact and summarized the

procedural history as follows:

              The petitioner was convicted of second-degree
              murder after a jury trial at CC198512810 in
              Allegheny County, Pennsylvania on April 27, 1987
              before the late Honorable John O’Brien.       On
              September 14, 1988, the defendant was sentenced
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
J-S65002-16


            to a mandatory term of life imprisonment, without
            the possibility of parole. An appeal to the Superior
            Court of Pennsylvania at 1990 WDA 1538 affirmed
            the judgment of sentence on January 8, 1990. A
            Petition for Allowance of Appeal was filed by
            defendant at No. 79 WD 1990 and denied on October
            4, 1990.

            Defendant’s lawyer, Erika Kreisman, Esquire, filed a
            Motion to Order Pittsburgh Police to look for Stored
            Evidence on December 9, 2008. The object of the
            motion was to recover crime-scene evidence for
            submission for DNA testing and analysis. Hearings
            were held on January 13, 2009 and February 4,
            2009, and the subject exhibits appear to be lost,
            misplaced, or destroyed. There does not appear to
            be any misconduct on the part of police being unable
            to produce any exhibits after a diligent search. In
            any event, the exhibits are not available for testing.
            The Court entered an Order dismissing a PCRA filed
            on behalf of defendant by Sally Frick, Esquire, and a
            timely appeal was filed.

Trial Court Opinion, 3/9/15, at 1-2.

      McPherson argues that he is entitled to DNA testing of certain physical

evidence obtained from the original crime scene.        Although McPherson

admits that “following an evidentiary hearing, it became apparent that the

physical evidence was destroyed because the police property/evidence room

where it was stored was flooded and nothing was salvaged,” McPherson

insists that “there must be some type of remedy to be fashioned from the

Commonwealth’s failure to provide such evidence, despite [lack of] any

deliberate destruction.” Appellant’s Brief, at 5.

      To begin, we must first address whether McPherson’s PCRA petition is

timely, as this may affect whether the PCRA court had jurisdiction over his



                                       -2-
J-S65002-16



petition.   See Commonwealth v. Gandy, 38 A.3d 899, 902 (Pa. Super.

2012) (“Even where neither party nor the PCRA court have addressed the

matter, it is well-settled that we may raise it sua sponte since a question of

timeliness implicates . . . jurisdiction.”)      McPherson first suggests that his

request for DNA testing falls within the purview of Section 9543.1, and that

a motion for post-conviction DNA testing “is not subject to the one-year

jurisdictional time bar applicable to other PCRA petitions seeking collateral

relief.” Appellant’s Brief, at 7.

       We agree that a motion for post-conviction DNA testing is not subject

to the same jurisdictional time restrictions as a PCRA petition.2             See

Commonwealth v. Brooks, 875 A.2d 1141, 1146 (Pa. Super. 2005) (“The

PCRA's one-year time bar does not apply to motions for the performance of

forensic DNA testing under § 9543.1.”). In this case, however, there is no

physical evidence to submit for DNA testing, so Section 9543.1 cannot

apply.3     Therefore, McPherson is not entitled to relief because his PCRA

____________________________________________


2
 McPherson ignores the requirement that when a motion for post-conviction
DNA testing is filed, “the evidence shall be available for testing as of the
date of the motion.” 42 Pa.C.S. 9543.1(a)(2). McPherson admits that the
physical evidence he wishes to submit for DNA testing is no longer available.
See Appellant’s Brief, at 7.
3
  While section 9543.1 “does not directly create an exception to the one-year
time bar, 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).



                                           -3-
J-S65002-16



petition is untimely and he did not plead any exception to the PCRA time bar

provisions.4

       Gandy, supra, is instructive on the issue of whether McPherson’s

request for DNA testing of destroyed physical evidence is timely under the

PCRA. In Gandy, the Court held:

               In these circumstances, Appellant is trying to invoke
               the DNA testing components of § 9543.1 as a
               jurisdictional hook in order to present his
               constitutional claims regarding the destruction of
               evidence. We have previously ruled § 9543.1 cannot
               be used to raise extraneous issues not related to
               DNA testing in an effort to avoid the one-year time
               bar. Appellant's claims relate exclusively to the
               destruction of evidence that likely occurred over 25
               years ago, not to any recent DNA testing conducted
               pursuant to § 9543.1.

               We, therefore, conclude that Appellant's third, pro se
               PCRA petition was untimely, and that he failed to
               meet an exception to the PCRA timeliness
               requirements. Because the PCRA court below lacked
               jurisdiction, it was precluded from entertaining any
               claim or affording Appellant any form of relief from
               the alleged constitutional violations.

Gandy, 38 A.3d at 905-906.

       Like in Gandy, McPherson filed his PCRA petition under the guise of a

motion for post-conviction DNA testing.          After an evidentiary hearing to

determine whether the physical evidence from McPherson’s case still exists,
____________________________________________


4
 A PCRA petition must be filed within one year of the date the judgment of
sentence becomes final, unless the petitioner alleges and proves one of the
exceptions enumerated under the PCRA. See 42 Pa.C.S. § 9545(b)(1)(i-iii).



                                           -4-
J-S65002-16


the trial court determined that “the subject exhibits appear to be lost,

misplaced, or destroyed.” Trial Court Opinion, 3/10/15, at 2. Therefore, we

cannot entertain McPherson’s claim because his PCRA petition is untimely.5

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2016




____________________________________________


5
   McPherson’s judgment of sentence became final on January 4, 1991, ninety
days after McPherson’s petition for allowance of appeal to the Supreme
Court was denied. See 42 Pa.C.S. § 9545(b)(3); Sup.Ct. R. 13. McPherson
had one year from the date when his judgment of sentence became final to
file a timely PCRA petition, unless the petition alleged and McPherson proved
one of the exceptions enumerated under the PCRA. See 42 Pa.C.S. §
9545(b)(1)(i-iii). Here, he did not file his petition until almost seventeen
years later and also alleged no section 9545(b)(1) exception.



                                           -5-
