J-S70027-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                   :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                      Appellee                  :
                                                :
              v.                                :
                                                :
JEROME ALLAN LOACH,                             :
                                                :
                      Appellant                 :   No. 1353 EDA 2015

                      Appeal from the PCRA Order April 24, 2015,
                     Court of Common Pleas, Montgomery County,
                   Criminal Division at No. CP-46-CR-0023680-1988

BEFORE: DONOHUE, LAZARUS and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.:                            FILED DECEMBER 11, 2015

      Appellant, Jerome Allan Loach (“Loach”), appeals pro se from the order

entered on April 24, 2015 by the Court of Common Pleas of Montgomery

County, Criminal Division, dismissing his sixth petition filed pursuant to the

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

      This case arises from a May 24, 1988 brawl involving four inmates at

the   State   Correction     Institution   in   Graterford,   Montgomery   County,

Pennsylvania, which resulted in the stabbing death of William Jamal Brawley

(“Brawley”). During the fight, witnesses observed Loach repeatedly stab two

of the inmates involved in the fight with a homemade shank. Most notably,

one of these stabbing victims was Brawley, whom Loach fatally stabbed in

the neck.




*Retired Senior Judge assigned to the Superior Court.
J-S70027-15


      The PCRA court summarized the relevant procedural history of this

case as follows:

                A jury found Loach guilty of third[-]degree
            murder, three counts of aggravated assault, assault
            by a prisoner, possession of instruments of crime,
            and criminal attempt at first[-]degree murder. On
            June 14, 1990, the Pennsylvania Superior Court
            affirmed his judgment of sentence.             The
            Pennsylvania Supreme Court denied his petition for
            allowance of appeal on October 30, 1990.

               The instant petition is [Loach’s] sixth under the
            [PCRA]. [Loach] filed a pro se [PCRA petition] in
            January of 1991. A re-sentencing hearing was held
            on June 20, 1991. [Loach] filed a second PCRA
            petition on June 20, 1991. In September 1991, the
            PCRA [c]ourt denied this second petition.        The
            Superior Court affirmed this denial in 1992. [Loach]
            again filed for allocatur, which was denied by the
            Pennsylvania Supreme Court. Loach filed his third
            PCRA petition, pro se, in 1995, which was
            subsequently denied. This decision was affirmed by
            the Superior Court and allocatur was once again
            denied.

               On December 31, 1996, [Loach] filed a pro se
            petition for [w]rit of [h]abeas [c]orpus in the United
            States District Court for the Eastern District of
            Pennsylvania.     In May of 1999, Thomas Quinn,
            Esquire was appointed to represent Loach in the
            habeas corpus proceedings. An evidentiary hearing
            was held in March of 2000 and Loach’s pro se
            [p]etition for [w]rit of [h]abeas [c]orpus was denied.

               In January of 2003, [Loach] filed a fourth PCRA
            petition. This [c]ourt denied the petition on October
            1, 2003.     Specifically, this [c]ourt found that it
            lacked jurisdiction as the petition was untimely. The
            Superior Court affirmed this [c]ourt’s decision on
            August 12, 2004.




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                On October 28, 2008, Loach filed a [p]etition to
             [v]acate, [v]oid [j]udgment, [b]ased [u]pon [f]raud
             and [w]ant for [s]ubject [m]atter [j]urisdiction. This
             [c]ourt denied the petition on November 3, 2008,
             and the Superior Court affirmed this [c]ourt’s
             decision on July 2, 2009.

PCRA Court Opinion, 7/15/15, at 1-2 (footnotes omitted).

      On February 4, 2015, Loach filed the instant PCRA petition. Within this

PCRA petition, Loach also included a request for the post conviction DNA

testing of a shank and white bloody t-shirt that prison authorities recovered

from the scene of Brawley’s stabbing pursuant to 42 Pa.C.S.A. § 9543.1.

See   PCRA    Petition,   2/4/15,   ¶¶   25-29.   On   March 13,      2015,   the

Commonwealth filed an answer to Loach’s sixth PCRA petition. On April 24,

2015, the PCRA court denied Loach’s sixth PCRA petition, including the

request for the post conviction DNA testing of the shank and white bloody t-

shirt. On May 12, 2015, Loach filed a timely pro se notice of appeal.1

      On appeal, Loach raises the follow issues for our review:

             1.    Did the PCRA court erred [sic] as a matter of
                   law when it concluded that DNA testing is
                   untimely pursuant to 42 Pa.C.S. § 9543.1(c) &
                   (d)(1)(iii) [and that] there is no reasonable
                   possibility that DNA testing could prove
                   [Loach]’s actual innocence, in light of a clear
                   Brady violation that has resulted in a
                   miscarriage of justice[?]




1
   The PCRA court did not order Loach to file a concise statement of the
errors complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania
Rules of Appellate Procedure.


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          2.   Pursuant to Bunkley v. Florida, 538 U.S. 835
               (2003), did the PCRA court erred [sic] in
               denying relief on the general and specific penal
               statutes without deciding whether [Loach’s]
               conviction    upon     both   statutes     [was]
               unconstitutional and in violation of the Due
               Process Clause, Commonwealth v. Lussi,
               757 A.2d 361 ([Pa.] 2000), for purposes of
               state law at the time [Loach]’s conviction
               became final. Fiore v. White, 531 U.S. 225
               (2001)[?]

          3.   Did the PCRA court erred [sic] as a matter of
               law in dismissing [Loach]’s PCRA petition
               without the appointment of counsel on a first
               PCRA/or [sic] did the court erred [sic] as a
               matter of law in not allowing an amendment to
               a first PCRA petition[?]

          4.   Did the PCRA court violate [Loach]’s due
               process and substantive due process rights
               when it refused an appeal to take place during
               [his] re-sentencing hearing; and is [Loach]
               entitled to relief under the authority of
               Commonwealth v. Lantzy, 736 A.2d 564
               ([Pa.] 1999)[,] and Roe v. Flores-Ortega,
               528 U.S. 470 (2000), where counsel failed to
               consult or file a requested appeal[?]

          5.   Did the PCRA court erred [sic] as a matter of
               law in denying relief, when the prosecutor
               struck an African-American off the jury,
               thereby[]    violating   [Loach]’s    Fourteenth
               Amendment [s]ubstantive [d]ue [p]rocess
               [r]ights such that counsel was obliged to raise
               that particular objection, and brief the issue[?]
               Furthermore, did the trial court erred [sic] in
               not making a ruling on the Batson v.
               Kentucky 476 U.S. 79 (1986)[] violation[?]




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Loach’s Brief at i-ii.2

      For his first issue on appeal, Loach argues that the trial court erred by

denying his request for the post conviction DNA testing of two shanks and a

white bloody t-shirt that prison authorities allegedly recovered from the

scene of Brawley’s murder. See Loach’s Brief at 33-44. “[W]hen examining

the propriety of an order resolving a request for DNA testing, we employ the

PCRA standard of review.”     Commonwealth v. Gacobano, 65 A.3d 416,

419 (Pa. Super. 2013). “Our standard of review regarding a PCRA court’s

order is whether the determination of the PCRA court is supported by the

evidence of record and is free of legal error.” Commonwealth v. Garcia,

23 A.3d 1059, 1061 (Pa. Super. 2011). “The PCRA court’s findings will not

be disturbed unless there is no support for the findings in the certified

record.” Id.

      Regarding requests for post conviction DNA testing, this Court has

stated the following:

                An application for DNA testing should be made in
             a motion, not in a PCRA petition. Commonwealth
             v. Weeks, 831 A.2d 1194, 1196 (Pa. Super. 2003).
             Though brought under the general rubric of the
             PCRA, motions for post-conviction DNA testing are
             “clearly separate and distinct from claims brought
             pursuant to other sections of the PCRA.”
             Commonwealth v. Perry, 959 A.2d 932, 938 (Pa.
             Super. 2008).     This Court has consistently held
             [that] the one-year jurisdictional time bar of the


2
   We reordered and reformatted the issues Loach raises on appeal for ease
of review.


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            PCRA does not apply to motions for DNA testing
            under [s]ection 9543.1.       Commonwealth v.
            Conway, 14 A.3d 101, 108 n.2 (Pa. Super. 2011),
            appeal denied, [] 29 A.3d 795 ([Pa.] 2011); Perry,
            supra at 938; [Commonwealth v. Brooks, 875
            A.2d 1141, 1146 (Pa. Super. 2005)].         Another
            distinction of motions for DNA testing is that
            [s]ection 9543.1 does not confer a right to counsel.
            Brooks, supra at 1147.

               Importantly, a motion for post-conviction DNA
            testing does not constitute a direct exception to the
            one[-]year time limit for filing a PCRA petition.
            Weeks, supra. Instead, it gives a convicted person
            a vehicle “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).” Id.

               This Court has held “that a PCRA petition cannot
            be used to make a motion for DNA analysis, [id.],
            and the reverse is surely true as well.” Brooks,
            supra at 1148. When presented with a hybrid filing
            that comingles PCRA claims and a request for DNA
            testing, the standard set forth in [s]ection 9543.1
            requires the court to address the DNA request first
            and foremost. See id. A petitioner who is unable to
            obtain DNA testing under [s]ection 9543.1 can still
            pursue an ineffective assistance of counsel claim
            under the PCRA for failure to request DNA testing of
            evidence at trial, but only if the PCRA petition is
            timely filed or otherwise meets one of the statutory
            exceptions to the timeliness requirements.

Commonwealth v. Williams, 35 A.3d 44, 50-51 (Pa. Super. 2011)

(emphasis in original).

      Loach claims that on the day of Brawley’s murder, two inmates, one of

whom was Brawley, attacked him and another inmate in an attempted

robbery.   Loach’s Brief at 5.   Loach avers that at the outset of the attack



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Brawley was wielding a shank (“the first shank”). Id. Loach contends that

while he was attempting to wrestle that shank away from Brawley, an

unidentified fifth inmate wearing a white t-shirt emerged from a crowd of

inmates with another shank (“the second shank”) and fatally stabbed

Brawley in the neck. Id. While Loach admits that he eventually wound up

with the first shank, he asserts that he was not the person who killed

Brawley. Id.

       Loach now seeks the DNA testing of both shanks and a white bloody t-

shirt that he avers prison authorities recovered from the scene of Brawley’s

murder. See id. at 33-44. Loach believes that the DNA testing of each of

these objects will prove his actual innocence because his conviction was

based entirely on circumstantial evidence.    See id.   Loach argues that if

DNA testing of the first shank reveals the absence of his DNA and Brawley’s

DNA, than it cannot be the murder weapon.       See id. at 42.   Additionally,

Loach argues that if DNA testing of the second shank, which he avers was

used by an inmate in a white t-shirt, reveals the absence of his DNA and the

presence of the DNA of an unidentified inmate, it proves his claim that the

unidentified fifth inmate was involved in the fight and killed Brawley. See

id.   Finally, Loach contends that if DNA testing of the white bloody t-shirt

reveals the absence of his DNA and the presence of the DNA of an

unidentified inmate, it will prove that he was not the person in the white t-




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shirt who he contends murdered Brawley, because he was wearing a brown

shirt on the day in question. See id.

     Requests for post conviction DNA testing are governed by 42 Pa.C.S.A.

§ 9543.1.   The statute sets forth several threshold requirements to obtain

post conviction DNA testing.   Most relevant to this case are the following

mandates.   Section 9543.1(c)(1)(i) requires an applicant seeking the DNA

testing of evidence to specify the evidence to be tested.       42 Pa.C.S.A.

§ 9543.1(c)(1)(i). The evidence specified must be available for testing as of

the date of the motion. 42 Pa.C.S.A. § 9543.1(a)(2).

     Additionally,

            [u]nder section 9543.1(c)(3), the petitioner is
            required to present a prima facie case that the
            requested     DNA     testing,   assuming   it   gives
            exculpatory results, would establish the petitioner’s
            actual innocence of the crime. Under section
            9543.1(d)(2), the court is directed not to order the
            testing if it determines, after review of the trial
            record, that there is no reasonable possibility that
            the testing would produce exculpatory evidence to
            establish [the] petitioner’s actual innocence. From
            the clear words and plain meaning of these
            provisions, there can be no mistake that the burden
            lies with the petitioner to make a prima facie case
            that favorable results from the requested DNA
            testing would establish his innocence. We note that
            the statute does not require petitioner to show that
            the DNA testing results would be favorable.
            However, the court is required to review not only the
            motion, 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
            petitioner’s actual innocence.



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Commonwealth v. Smith, 889 A.2d 582, 584 (Pa. Super. 2005) (footnote

omitted). In order to establish a defendant’s actual innocence, “the newly

discovered evidence must make it ‘more likely than not that no reasonable

juror would have found him guilty beyond a reasonable doubt.’ … [T]his

standard requires a reviewing court ‘to make a probabilistic determination

about what reasonable, properly instructed jurors would do,’ if presented

with the new evidence.”    Commonwealth v. Conway, 14 A.3d 101, 109

(Pa. Super. 2011) (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).

      We conclude that the PCRA court did not err by denying Loach’s

request for post conviction DNA testing.    At the outset, we observe that

Loach failed to request the DNA testing of the second shank in his petition to

the PCRA court.    See PCRA Petition, 2/4/15, ¶¶ 25-29.      Indeed, Loach’s

PCRA petition does not even reference a second shank.                See id.

Accordingly, Loach has waived his DNA testing claim with respect to the

second shank.3    See 42 Pa.C.S.A. § 9543.1(c)(1)(i); see also Pa.R.A.P.

302(a) (“Issues not raised in the lower court are waived and cannot be

raised for the first time on appeal.”).   Moreover, there is no evidence of

record supporting the existence of a second shank.       The certified record



3
   Waiver is further supported by the absence of discussion relating to a
second shank in the trial court’s opinion, see Trial Court Opinion, 7/15/15,
at 3-8, or the Commonwealth’s answer to Loach’s PCRA petition, see
Commonwealth’s Answer to Defendant’s Petition for Relief Under the PCRA
and for DNA Testing, 3/13/15.


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reflects that there was only one shank used during the fight and only one

shank recovered from the crime scene. See N.T., 2/16/89, at 66-70.

     Regarding the first shank and white bloody t-shirt, even if DNA testing

of those items returned results favorable to Loach, it would not necessarily

prove Loach’s actual innocence. This Court has held that “the mere absence

of appellant’s DNA on any of the tested items will not provide compelling

evidence of his innocence.”      Conway, 14 A.3d at 110; see also

Commonwealth v. Heilman, 867 A.2d 542, 547 (Pa. Super. 2005) (“In

DNA as in other areas, an absence of evidence is not evidence of absence.”).

Favorable DNA testing results from the first shank and white bloody t-shirt

would have to overcome the direct evidence of Loach’s guilt.    Contrary to

Loach’s assertion, he was not convicted solely based on circumstantial

evidence.

     The certified record reveals that three witnesses testified that they

observed Loach wielding a shank during the brawl and thrusting it at other

inmates. The record reflects that two inmates, Norman Graham (“Graham”)

and Dwayne Grant, observed Loach with a shank repeatedly stabbing

Brawley.    N.T., 2/16/89, at 113-14, 123-24, 166-67.    The record further

reflects that Graham witnessed Loach deliver the fatal blow to Brawley when

Loach stabbed Brawley in the neck. Id. at 123-24. Additionally, Sergeant

Michael Bivins (“Sergeant Bivins”) testified that he saw Loach with a shank

trying to stab multiple inmates and that he still had the shank after the



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brawl had concluded.         N.T., 2/15/89, at 232-33.          Although Dr. Lance

Couturier, the prison’s Chief Psychologist, testified that the person who was

wielding the shank during the fight was wearing a white t-shirt, he observed

the brawl from at least seventy-five feet away, did not observe that person

stab anyone, and could not identify anyone involved in the fight.                  N.T.,

2/17/89, at 75-79, 82.

      Thus, there is direct eyewitness testimony that Loach was the only

person during that brawl that wielded a shank, that he stabbed Brawley

multiple times, including in the neck, and that he still possessed that shank

after the brawl. There is also direct eyewitness testimony of Loach thrusting

the shank at other inmates during the scrum.             Accordingly, based on this

direct eyewitness testimony, we must conclude that the even if the results of

the DNA testing on the first shank and bloody white t-shirt were favorable to

Loach, it would not establish his actual innocence of the crime. See Smith,

889 A.2d at 584; Conway, 14 A.3d at 109.

      Moreover, the certified record reflects that Loach’s request for DNA

testing fails pursuant to section 9543.1(a)(2), which requires that the

evidence specified for DNA testing must be available for testing as of the

date of the motion.       See 42 Pa.C.S.A. § 9543.1(a)(2).             In its answer to

Loach’s PCRA petition, the Commonwealth asserts that it was unable to find

the   handle   of   the   first   shank    or   the   white   bloody    t-shirt.   See

Commonwealth’s Answer to Defendant’s Petition for Relief Under the PCRA



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and for DNA Testing, 3/13/15, ¶ 21. It is unclear from the record if either

party, to this point, has recovered these items.       Accordingly, we must

conclude that the trial court did not err in denying Loach’s request for post

conviction DNA testing.

     We now turn our attention to Loach’s PCRA claims. Prior to addressing

the merits of Loach’s claims, we must determine whether we have

jurisdiction to decide these issues. “Pennsylvania law makes clear no court

has jurisdiction to hear an untimely PCRA petition.”     Commonwealth v.

Monaco, 996 A.2d 1076, 1079 (Pa. Super. 2010) (quoting Commonwealth

v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003)).        A petitioner must file a

PCRA petition within one year of the date on which the petitioner’s judgment

became final, unless one of the three statutory exceptions apply:

           (i) the failure to raise the claim previously was the
           result of interference by government officials with
           the presentation of the claim in violation of the
           Constitution or laws of this Commonwealth or the
           Constitution or laws of the United States;

           (ii) the facts upon which the claim is predicated were
           unknown to the petitioner and could not have been
           ascertained by the exercise of due diligence; or

           (iii) the right asserted is a constitutional right that
           was recognized by the Supreme Court of the United
           States or the Supreme Court of Pennsylvania after
           the time period provided in this section and has been
           held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1). A petitioner must file a petition invoking one of

these exceptions “within 60 days of the date the claim could have been



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presented.” 42 Pa.C.S.A. § 9545(b)(2).       If a petition is untimely, and the

petitioner has not pled and proven any exception, “‘neither this Court nor

the trial court has jurisdiction over the petition.   Without jurisdiction, we

simply do not have the legal authority to address the substantive claims.’”

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

      Loach’s instant PCRA petition is facially untimely and he does not

contest this determination.    Accordingly, we are without jurisdiction to

decide Loach’s claims unless he pled and proved one of the three timeliness

exceptions of section 9545(b)(1).    See id.     As Loach did not attempt to

plead or prove any of the timeliness exceptions of section 9545(b)(1) in his

PCRA petition, we are without jurisdiction to address the merits of his PCRA

claims. See id.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/11/2015




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