J. S08026/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    v.                    :
                                          :
EMMITT J. GRIER, JR.,                     :          No. 847 WDA 2016
                                          :
                         Appellant        :


                  Appeal from the PCRA Order, May 27, 2016,
                 in the Court of Common Pleas of Erie County
               Criminal Division at No. CP-25-CR-0002646-1999


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND SOLANO, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED APRIL 17, 2017

      Emmitt J. Grier, Jr., appeals from the May 27, 2016 order entered in

the Court of Common Pleas of Erie County which dismissed his third petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

      The PCRA court set forth the extensive procedural history of this case,

as follows:

                     On August 31st, 1999, [a]ppellant was arrested
              and charged with two counts of Rape by Forcible
              Compulsion,      in  violation   of  18    Pa.C.S.[A.]
              § 3121(a)(1), one count of Criminal Attempt – Rape,
              in violation of 18 Pa.C.S.[A.] § 901(a), three counts
              of Unlawful Restraint – Risking Serious Bodily Injury,
              in violation of 18 Pa.C.S.[A.] § 2902(1), one count of
              Kidnapping to Facilitate a Felony, in violation of
              18 Pa.C.S.[A.] § 2901(a)(2), and one count of
              Burglary, in violation of 18 Pa.C.S.[A.] § 3502(a),
              regarding three separate incidents occurring on
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           June 30th, 1998; November 12th, 1998 and
           August 31st,     1999.[1]       Appellant’s counsel,
           A.J. Adams, Esq., filed a Motion for Competency
           Evaluation and Continuance on March 8th, 2000,
           which was granted by Judge William R. Cunningham
           on March 8th, 2000. A.J. Adams, Esq., filed a Motion
           to Withdraw as Counsel on April 18th, 2000, citing “a
           personality conflict.”    Judge Cunningham granted
           Attorney Adam’s [sic] Motion to Withdraw as Counsel
           on April 20th, 2000 and appointed the Erie County
           Public Defender’s Office to represent [a]ppellant.
           Appellant’s counsel, James A. Pitonyak, Esq., filed a
           Notice of Alibi Defense on May 26th, 2000.

                 A [j]ury [t]rial was held before the undersigned
           judge from June 20th to June 22nd, 2000. The jury
           found [a]ppellant guilty of Counts 1 & 2 at docket
           no. 2646-1999, Counts 1 & 2 at docket no. 2647-
           1999[Footnote 1], and Counts 1, 2 & 3 on 2648-
           1999.     On August 10th, 2000, this Trial Court
           sentenced [a]ppellant [to an aggregate term of
           imprisonment of 28 ½ to 75 years].

                  [Footnote 1] Count 3: Kidnapping to
                  Facilitate a Felony at docket no. 2647-
                  1999      was     withdrawn   by    the
                  Commonwealth.

           ....


1
   The record reflects that appellant’s convictions resulted from three
separate incidents that involved the same victim, who was the mother of
appellant’s girlfriend and the grandmother of his children.       (Notes of
testimony, 6/20/00 at 43.) The victim testified that on June 30, 1998, she
was in bed and lying on her stomach when she felt someone on her back
who then taped her eyes and her head before he raped her. (Id. at 31-32.)
The victim further testified that on November 12, 1998, she was driving her
van when she heard noise coming from the rear of the van, and “then the
next thing [she knew,] the hood of [her] coat [came] over [her] face and he
tape[d] the hood around [her] neck so that [her] face [was] covered” before
he attempted to rape her. (Id. at 46.) The victim also testified that on
August 31, 1999, appellant arrived at her home claiming to need water and
then raped her. (Id. at 55-62.)


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                 Appellant, by and through Attorney Pitonyak,
          filed a Motion for Judgment of Acquittal/Motion for a
          New     Trial/Motion   for  Reconsideration    and/or
          Modification of Sentence on August 15th, 2000, which
          were denied by this Trial Court on August 15th, 2000.
          Appellant, by and through Attorney Pitonyak, filed a
          Notice of Appeal to the Pennsylvania Superior Court
          on August 30th, 2000. The Pennsylvania Superior
          Court affirmed [a]ppellant’s judgment of sentence on
          [August 15], 2001. Appellant filed a pro se Petition
          for Allowance of Appeal to the Pennsylvania Supreme
          Court on October 15th, 2001, which was denied on
          [April 24], 2002.

                 Appellant, pro se, filed his first PCRA Petition
          on August 6th, 2002. On August 7th, 2002, this Trial
          Court appointed William J. Hathaway, Esq., as
          [a]ppellant’s PCRA counsel and directed Attorney
          Hathaway to supplement/amend [a]ppellant’s first
          PCRA Petition within thirty (30) days. Following a
          request for extension of time, which was granted,
          Attorney    Hathaway      filed   a   Supplement     to
                                                         st
          [a]ppellant’s first PCRA Petition on October 1 , 2002.
          By Order dated October 3rd, 2002, this Trial Court
          directed the       Commonwealth to         respond to
          [a]ppellant’s first PCRA Petition within thirty (30)
          days. Assistant District Attorney Chad J. Vilushis
          filed a Response to [a]ppellant’s first PCRA Petition
          on October 24th, 2002. Following two Evidentiary
          Hearings on November 27th, 2002 and December 23,
          2002, this Trial Court dismissed [a]ppellant’s first
          PCRA Petition on January 24th, 2003.

                 On April 10th, 2003, upon consideration of
          correspondence received from [a]ppellant on
          April 9th, 2003[Footnote 2], wherein [a]ppellant
          requested his right to appeal the dismissal of his first
          PCRA Petition be granted nunc pro tunc, this Trial
          Court directed the Commonwealth to respond to
          [a]ppellant’s correspondence within fourteen (14)
          days. Assistant District Attorney Chad J. Vilushis
          filed a Response on April 11th, 2003 objecting to the
          reinstatement of [a]ppellant’s right to appeal.
          Following an Evidentiary Hearing on May 19th, 2003,


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          this Trial Court granted [a]ppellant’s second PCRA
          Petition, reinstated [a]ppellant’s right to appeal the
          dismissal of his first PCRA Petition nunc pro tunc
          and directed Attorney Hathaway to file said appeal
          within thirty (30) days.        On June 5th, 2003,
          [a]ppellant, by and through Attorney Hathaway, filed
          a Notice of Appeal to the Pennsylvania Superior
          Court. On September 23rd, 2003, [a]ppellant filed a
          Motion for Appointment of New Counsel, which this
          Trial Court denied on September 24th, 2003. The
          Pennsylvania Superior Court affirmed the dismissal
          of [a]ppellant’s first PCRA Petition on [March 25],
          2004.       Appellant, by and through Attorney
          Hathaway, filed a Petition for Allowance of Appeal to
          the Pennsylvania Supreme Court on May 18th, 2004,
          which was denied on [November 30], 2004.

                [Footnote 2] Appellant’s April 9th, 2003
                correspondence    was     treated     as
                [a]ppellant’s second PCRA Petition.
                William J. Hathaway, Esq. consented to
                assist Appellant.

                  On January 6th, 2005, [a]ppellant filed a
          pro se 42 U.S.C. § 1983 claim in the United States
          District Court for the Western District of
          Pennsylvania against Superintendent Edward J.
          Klem, Erie County District Attorney’s Office, the
          Commonwealth of Pennsylvania and the Office of
          Prothonotary, claiming these parties violated his
          procedural due process rights by refusing him access
          to the rape kits for DNA testing. Appellant filed a
          pro se Motion for Summary Judgment on July 28th,
          2005, which was dismissed as premature by United
          States District Magistrate Judge Susan Paradise
          Baxter on August 1st, 2005. Edward J. Klem, by and
          through his counsel, Mary L. Friedline, Esq., filed a
          Motion to Dismiss on October 4th, 2005. The Erie
          County District Attorney’s Office, by and through its
          counsel, Matthew J. McLaughlin, Esq., Assistant
          Solicitor for Erie County, filed a Motion to Dismiss on
          January 23rd, 2006. On January 24th, 2006, United
          States District Judge Sean J. McLaughlin, who was
          initially assigned to preside over [a]ppellant’s § 1983


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          claim, recused himself and reassigned the matter to
          Senior United States District Judge Maurice B.
          Cohill, Jr. Appellant filed a second pro se Motion for
          Summary Judgment on March 30th, 2006, and filed a
          third pro se Motion for Summary Judgment on
          April 10th, 2006. On May 15th, 2006, Judge Baxter
          filed her Report and Recommendation, wherein she
          recommended Edward J. Klem’s and the Erie County
          District Attorney’s Office’s Motions to Dismiss be
          granted and [a]ppellant’s two Motions for Summary
          Judgment be dismissed as “an improper attempt to
          collaterally attack his state court criminal conviction
          and sentence.” By Order dated June 29th, 2006,
          Judge Cohill, Jr. adopted Judge Baxter’s Report and
          Recommendation, granted Edward J. Klem’s and the
          Erie County District Attorney’s Office’s Motions to
          Dismiss and denied [a]ppellant’s two Motions for
          Summary Judgment.          Appellant filed a Notice of
          Appeal to the United States Court of Appeals for the
          Third Circuit on July 26th, 2006. On January 12th,
          2010, the United States Court of Appeals for the
          Third [Circuit], in an Opinion published by Senior
          United      States   Circuit    Judge     Franklin   S.
          Van Antwerpen, vacated Judge Cohill, Jr.’s Order and
          remanded for further proceedings, holding the case
          of Heck v. Humphrey, 512 U.S. 477 (1994), does
          not bar a § 1983 claim requesting access to evidence
          for post-conviction DNA testing.          On remand,
          Judge Baxter, in a Report and Recommendation
          dated      September      19th,    2011,    determined
          [a]ppellant’s procedural due process rights had been
          violated and recommended [a]ppellant’s Motion for
          Summary Judg[ment] be granted. On October 19th,
          2011, Judge Cohill, Jr. adopted Judge Baxter’s
          Report      and    Recommendation        and    granted
          [a]ppellant’s Motion for Summary Judgment, wherein
          final judgment for [a]ppellant was entered on
          November 10th, 2011.         The Erie County District
          Attorney’s Office filed a Notice of Appeal to the
          United States Court of Appeals for the Third Circuit.
          Prior to a decision being rendered by the United
          States Court of Appeals for the Third Circuit, the
          parties agreed upon a Stipulated Order for
          Post-Conviction DNA Testing and filed a Joint Motion


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          for Entry of Consent Judgment on September 10th,
          2012. The Erie County District Attorney’s Office filed
          a Motion to Voluntar[ily] Dismiss the Appeal, which
          was granted on September 17th, 2012.

                 The rape kits were submitted to Bode
          Technology in Lorton, Virginia for testing. A Forensic
          Case Report dated January 31st, 2013 and a
          Supplemental Forensic Case Report dated October
          5th, 2014 were both submitted. Upon receiving these
          Reports, [a]ppellant filed the instant pro se PCRA
          Petition, his third, on January 9th, 2015. This Trial
          Court appointed William J. Hathaway, Esq., as
          [a]ppellant’s PCRA counsel on January 22nd, 2015.
          Attorney Hathaway filed a Motion to Withdraw as
          Counsel on January 28th, 2015, citing a conflict. This
          Trial Court granted Attorney Hathaway’s Motion to
          Withdraw on February 4th, 2015, and appointed
          Thomas D. Brasco, Jr., Esq., as [a]ppellant’s PCRA
          counsel, who was directed to supplement/amend
          [a]ppellant’s third PCRA Petition within thirty (30)
          days. Following several extensions, Attorney Brasco
          filed a Supplement to [a]ppellant’s third PCRA
          Petition on January 22nd, 2016. On January 26th,
          2016, this Trial Court directed the Commonwealth to
          respond to the Supplement to [a]ppellant’s third
          PCRA Petition within thirty (30) days.        Assistant
          District Attorney Michael E. Burns filed a Response to
          Supplement to Motion for Post-Conviction Collateral
          Relief on February 24th, 2016.          An Evidentiary
                                                th
          Hearing was scheduled for April 18 , 2016, where,
          by Stipulation, counsel only presented oral
          arguments. Following the Evidentiary Hearing, this
          Trial Court filed its Notice of Intent to Dismiss
          Appellant’s third PCRA Petition as patently untimely
          and stating no grounds for which relief may be
          granted under the [PCRA]. Appellant filed Objections
          to PCRA Court’s Notice of Intent to Dismiss on
          May 27th, 2016. On May 27th, 2016, this Trial Court
          dismissed [a]ppellant’s third PCRA Petition.

                  Appellant filed a Notice of Appeal to the
          Superior Court on June 10th, 2016. This Trial Court
          filed its 1925(b) Order on June 10th, 2016. Appellant


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           filed a Motion for Extension of Time to file a Concise
           Statement on [June 30], 2016, which was granted
           by this Trial Court on July 1st, 2016 and provided an
           additional five (5) days for [a]ppellant to file his
           Concise Statement. On July 6th, 2016, [a]ppellant
           filed his Concise Statement of Errors Complained of
           on Appeal.

PCRA court opinion, 8/9/16 at 2-6.

     Appellant raises the following issues for our review:2

           1.    Was the trial Court’s use of, and citation to,
                 remarks made by Attorney James Pitonyak at
                 the PCRA argument, held November 27, 2002,
                 to determine whether an evidentiary hearing
                 shall be held, improper and an abuse of
                 discretion,   and    therefore   a   denial of
                                  th
                 [appellant’s] 14     Amendment Due Process
                 Rights, in that Attorney Pitonyak essentially
                 offered factual evidence to be considered when
                 the purpose of the hearing was to determine
                 whether an evidentiary hearing was necessary?

           2.    Should this Court apply the point of law in
                 Commonwealth v. Hawk[, 709 A.2d 373 (Pa.
                 1998),] requiring any and all DNA testing
                 results where identification is at issue in a trial
                 to go to a jury to the PCRA statute concerning
                 DNA testing?

           3.    Does acknowledgment by the Western District
                 of   [Pennsylvania]     federal   court      that
                 [appellant’s] procedural due process rights had
                 been violated by barring [appellant] access to
                 DNA testing toll the timeliness of filing of any
                 subsequent PCRA petition?

           4.    Did a miscarriage of justice occur, and has it
                 been occurring, since the PCRA hearing held by
                 Judge Domitrovich, on November 27, 2002,

2
  Present appellate counsel was appointed following appellant’s filing of a
pro se notice of appeal.


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                    where Attorney James Pitonyak offered fact
                    evidence to the Court, without being sworn,
                    and offered testimonial evidence in a
                    non-evidentiary hearing, and then was cited to
                    by Trial Court, PCRA Court, Third Circuit Court,
                    and Western District of [Pennsylvania] Court as
                    valid evidence of trial strategy without offering
                    [appellant] the right to confront the “witness”,
                    in violation of the Conflict Clause of the
                    6th Amendment of the Constitution?

Appellant’s brief at 5-6.

         We limit our review of a PCRA court’s decision to examining whether

the record supports the PCRA court’s findings-of-fact and whether its

conclusions of law are free from legal error.      Commonwealth v. Mason,

130 A.3d 601, 617 (Pa. 2015) (citations omitted). We view the PCRA court’s

findings and the evidence of record in a light most favorable to the prevailing

party. Id.

         All PCRA petitions, including second and subsequent petitions, must be

filed within one year of when a defendant’s judgment of sentence becomes

final.    42 Pa.C.S.A. § 9545(b)(1).      “A judgment becomes final at the

conclusion of direct review, including discretionary review in the Supreme

Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of the time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).

The Pennsylvania Supreme Court has held that the PCRA’s time restriction is

constitutionally sound.     Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa.

2004). In addition, our supreme court has instructed that the timeliness of

a PCRA petition is jurisdictional. If a PCRA petition is untimely, a court lacks


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jurisdiction over the petition. Commonwealth v. Callahan, 101 A.3d 118,

120-121 (Pa.Super. 2014) (courts do not have jurisdiction over an untimely

PCRA); see also Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005).

     Here, the trial court sentenced appellant on August 10, 2000.

Appellant filed timely post-trial motions, which the trial court denied.   On

August 30, 2000, appellant filed a direct appeal to this court. Subsequently,

on August 15, 2001, this court affirmed appellant’s judgment of sentence.

Commonwealth v. Grier, 785 A.2d 1028 (Pa.Super. 2001) (decision

without published opinion).   On April 24, 2002, our supreme court denied

appellant’s petition for allowance of review. Commonwealth v. Grier, 797

A.2d 910 (Pa. 2002).      Consequently, appellant’s judgment of sentence

became final on July 23, 2002, which was 90 days after our supreme court

denied discretionary review on April 24, 2002.           See 42 Pa.C.S.A.

§ 9545(b)(3); Pa.R.A.P. 903; Commonwealth v. Cintora, 69 A.3d 759,

763 (Pa.Super. 2013). Therefore, appellant’s petition, filed nearly 13 years

later on January 9, 2015, is facially untimely. As a result, the PCRA court

lacked jurisdiction to review appellant’s petition, unless appellant alleged

and proved one of the statutory exceptions to the time-bar, as set forth in

42 Pa.C.S.A. § 9545(b)(1).

     Those three narrow exceptions to the one-year time-bar are:       when

the government has interfered with the appellant’s ability to present the

claim, when the appellant has recently discovered facts upon which his PCRA



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claim is predicated, or when either the Pennsylvania Supreme Court or the

United States Supreme Court has recognized a new constitutional right and

made     that   right   retroactive.      42    Pa.C.S.A.   §   9545(b)(1)(i-iii);

Commonwealth v. Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012).

The appellant bears the burden of pleading and proving the applicability of

any exception. 42 Pa.C.S.A. § 9545(b)(1). If an appellant fails to invoke a

valid exception to the PCRA time-bar, this court may not review the petition.

See 42 Pa.C.S.A. § 9545(b)(1)(i-iii).

       Although appellant raises a myriad of complaints that, for the most

part, challenge the dismissal of his first PCRA petition wherein he alleged

ineffective assistance of trial counsel for failure to pursue DNA testing, the

gravamen of appellant’s complaint is that he is entitled to “a new trial based

upon the DNA evidence showing that he, while could [sic] not be excluded as

a potential perpetrator of the first completed rape, but also showing that he

may not necessarily be included.”       (Appellant’s brief at 32-33.)   Appellant

seemingly attempts to invoke the new-facts exception to the one-year time

bar set forth in 42 Pa.C.S.A. § 9545(b)(1)(ii).      The PCRA requires that all

petitions invoking an exception must be filed within 60 days of the date the

claim could have been presented. Id. at 9545(b)(2).

       The record before us fails to demonstrate when appellant received the

October 5, 2014 supplemental DNA test report upon which he rests his

claim, but the record does reflect that appellant filed the instant pro se



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petition on January 9, 2015, which was 96 days after the date of the report.

Appellant has failed to come forth with any evidence to demonstrate that he

filed his petition within 60 days of learning of the DNA test results or that his

tardiness   can   be   excused    by    the     prisoner   mailbox   rule.    See

Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (extending

prisoner mailbox rule to all appeals by pro se prisoners).              Therefore,

appellant’s petition appears to be untimely.        But even if the petition was

timely, dismissal was nevertheless warranted.

      In analyzing a claim of new facts under Subsection 9545(b)(1)(ii), our

supreme court in Commonwealth v. Bennett, 930 A.2d 1264, 1271 (Pa.

2007), made clear that the exception set forth in Subsection (b)(1)(ii) does

not require any merits analysis of the underlying claim.              Rather, the

exception merely requires that the facts upon which the claim is predicated

must not have been known to appellant and could not have been ascertained

by due diligence. Id. (citation omitted). Therefore, the plain language of

Subsection (b)(1)(ii) is not so narrow as to limit itself to only claims

involving after-discovered evidence.        Id. at 1272.      Rather, Subsection

(b)(1)(ii) has two components, which appellant must allege and prove: (1)

that the facts upon which the claim was predicated were unknown and (2)

that those facts could not have been ascertained by the exercise of due

diligence. Id. If the petitioner alleges and proves these two components,




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then the PCRA court has jurisdiction over the claim under this subsection.

Id. (citation omitted).

      Appellant asserts that the new facts are the results of the DNA testing

contained in the October 5, 2014 supplemental report.            In order to be

eligible for relief, the PCRA requires that the evidence was unavailable at the

time of trial. See 42 Pa.C.S.A. § 9543(a)(2)(vi). The record reflects that

appellant raised an ineffective assistance of counsel claim in his first PCRA

wherein he alleged trial counsel’s ineffectiveness for failure to request DNA

testing. The record further reflects that the PCRA court held a hearing on

November 27, 2002, at which time trial counsel “just happened to walk

in[to]” the courtroom and stated that “[appellant] did not request [DNA]

testing   himself.”       (Notes   of   testimony,   11/27/02   at   7-8.)   The

Commonwealth then stated that the “main reason [it] did not go forward

with DNA testing” was because “[appellant] had basically given a video

taped [sic] confession.” (Id. at 7.) Subsequently, the PCRA court entered

an order that denied appellant relief.

      Although appellant takes issue with trial counsel’s statement at the

November 27, 2002 PCRA hearing that appellant did not request DNA testing

because counsel was not under oath, the record demonstrates that the main

reason why appellant was unable to obtain DNA testing in his first PCRA was

because of his confessions.        In 2011, our supreme court held that “a

confession, even if previously and finally adjudicated as voluntary, does not



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constitute a per se bar to establishing a prima facie case, and the convicted

person may, therefore, obtain DNA testing under [PCRA] Section 9543.1 if

he   or   she   meets   all   of   this    statute’s   pertinent   requirements.”

Commonwealth v. Wright, 14 A.3d 798, 817 (Pa. 2011).                  The record

reflects that appellant did not file a motion seeking post-conviction DNA

testing pursuant to Section 9543.1, seemingly because he filed that petition

on August 6, 2002, which was prior to the September 3, 2002 effective date

of Section 9543.1. The record is clear, however, that the underlying goal of

appellant’s first PCRA petition was to obtain DNA testing. The record further

reflects that the PCRA court denied that petition because appellant’s

“conviction rest[ed] largely on his own confession” and, therefore, “his

assertion that the outcome of his trial would have been different if counsel

had sought out DNA testing [] is without merit.”          (PCRA court notice of

intention to dismiss, 1/3/03 at 6.)       It was after appellant was foreclosed

from obtaining state-based relief in his quest for DNA testing that he sought

relief in federal court which, after many years, ultimately proved successful.

We, therefore, find that appellant has met the requirements for the new-

facts exception, and we have jurisdiction to entertain this appeal.

      The record reflects that the results of the biological evidence obtained

from the rape kit used to gather evidence in connection with the June 30,




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1998 rape3 were set forth in the January 31, 2013 report and the October 5,

2014 supplemental report. The record further reflects that the January 31,

2013 report concluded that “[appellant] cannot be excluded as a possible

contributor of the partial Y-STR profile obtained from the epithelial

fraction (EF) of sample CCB1243-0152-E03a.” (Appellant’s letter request for

evidentiary hearing, 1/21/16 at Exhibit “A”; Docket # 67). The October 5,

2014 supplemental report was issued “due to a request for additional

testing” in which 3 of the 18 previously tested samples were retested. (Id.

at Exhibit “B”.) The report concludes that:

            [t]he partial Y-STR profile obtained from the
            epithelial fraction (EF) of sample CCB1243-0152-R07
            is consistent with a mixture of at least two
            individuals.

            Due to the limited data obtained and the possibility
            of allelic drop out, no conclusions can be made on
            this partial mixture Y-STR profile.

Id.

      Therefore, the October 5, 2014 supplemental report was inconclusive.

Indeed, by appellant’s own admission, he “[can]not be excluded as a

potential perpetrator of the first completed rape.” (Appellant’s brief at 33.)



3
  The record reflects that rape kits were used to gather biological evidence in
connection with the June 30, 1998 and August 31, 1999 rapes. It appears
that no rape kit was used in connection with the November 12, 1998
incident because the crime committed was attempted rape. Additionally,
appellant did not seek DNA testing of the rape kit used in connection with
the August 31, 1999 rape because appellant maintains that that sexual act
was consensual.


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Clearly then, because the DNA test results do not exclude appellant from

having committed the June 30, 1998 rape and would not conclusively

exculpate him from having committed that rape, the admission into evidence

of those test results would not have changed the outcome of appellant’s

trial. See 42 Pa.C.S.A. § 9543(a)(2)(vi) (requiring that for a petitioner to be

eligible for PCRA relief, the petitioner must prove by a preponderance of the

evidence that his conviction resulted from “the unavailability at the time of

trial of exculpatory evidence that has subsequently become available and

would have changed the outcome of the trial if it had been introduced”.).

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/17/2017




                                    - 15 -
