J-S08038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

STACY GILBERT

                            Appellant                No. 2361 EDA 2014


                    Appeal from the PCRA Order July 8, 2014
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0001524-2000


BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                        FILED JANUARY 23, 2015

        Appellant Stacy Gilbert appeals pro se from the order entered in the

Chester County Court of Common Pleas, which dismissed his petition filed for

relief pursuant to the Post Conviction Relief Act (“PCRA”) 1 and his motion for

post-conviction DNA testing,2 incorporated therein. We affirm.

        On the appeal of the denial of his first PCRA petition, the PCRA court

accurately set forth the relevant facts and procedural history of this matter

as follows:

           [Appellant] was charged by an [i]nformation filed April 20,
           2000, with two counts of rape; one count of aggravated
____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
2
    42 Pa.C.S. § 9543.1.
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           indecent assault; and one count of indecent assault.1[3]
           [Appellant] pled guilty to these four counts pursuant to a
           plea agreement. In addition, [Appellant] was found to
           have violated the terms of his probation and parole in a
           prior case.2 [Appellant] was sentenced on October 2, 2000
           to fifteen to thirty [(15-30)] years to be served in the state
           penitentiary.[4] [Appellant] did not file a direct appeal.
              1
                These charges stem from incidents that occurred
              between August 1999 and April 2000.           On two
              separate     occasions[,   Appellant]    had    sexual
              intercourse with a twelve year old victim, A.I.
              Additionally, [Appellant] inserted a vibrator into the
              vagina of victim A.I. and touched the breast of a
              fourteen year old victim, K.P.
              2
                In the underlying case, [Appellant] was charged
              and convicted of indecent assault and corruption of
              minors. In that case, the victim was his niece. Over
              a period of four years, [Appellant] victimized
              preadolescents.

Trial Court 1925(a) Opinion on Appellant’s first            PCRA appeal, filed

September 28, 2004, p. 1 (citations to the record omitted).


____________________________________________


3
    18 Pa.C.S. §§ 3121(a)(2),(6), 3125(7), and 3126(a)(7), respectively.
4
  The trial court sentenced Appellant to 7-14 years’ incarceration for his first
rape charge and 7-14 years’ incarceration for the second rape charge, to be
served consecutively. The court also sentenced Appellant to 5-10 years’
incarceration for aggravated indecent assault and 2½-5 years’ incarceration
for indecent assault, to be served concurrent to his sentence for the rape
charges. Additionally, for violating parole and probation in his prior case,
the court revoked Appellant’s parole and sentenced him to the 12 month
balance to run concurrently to an additional sentence of 1-2 years’
incarceration for violating his probation.       The court imposed these
concurrent sentences consecutively to his rape sentence, for an aggregate
sentence of 15-30 years’ incarceration.




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       On March 28, 2003, Appellant filed his first PCRA petition. On July 31,

2003, the court dismissed Appellant’s PCRA petition as untimely and granted

PCRA counsel’s petition to withdraw.            Appellant appealed, and this Court

affirmed the order dismissing Appellant’s petition on March 1, 2005.

Commonwealth           v.   Stacy,     No.     2591   EDA   2003,   (Pa.Super.2005)

(unpublished memorandum). Appellant filed a second PCRA petition on April

19, 2005, which the court dismissed on June 22, 2005. Appellant did not

appeal the court’s order.

       On April 10, 2014, Appellant filed the present PCRA petition, his third,

which incorporated a motion for DNA testing.             On June 5, 2014, the trial

court issued a notice of intent to dismiss the PCRA petition pursuant to

Pa.R.Crim.P. 907.       On July 8, 2014, the court dismissed the petition and

Appellant’s motion for DNA testing.            On August 8, 2014, Appellant filed a

notice of appeal.5 The PCRA court did not order Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

and Appellant did not file one.



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5
   Appellant labeled his “notice of appeal” “Brief for Appellee.” On August 11,
2014, the PCRA court ordered Appellant’s “Brief for Appellee” be considered
a notice of appeal of the court’s July 8, 2014 order dismissing his PCRA
petition and motion for DNA testing. In this order, the PCRA court also
adopted its opinion from the notice of intent to dismiss the PCRA petition,
filed on June 5, 2014, as its Rule 1925(a) opinion.




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       In his handwritten “Brief for Appellee” filed on January 12, 2015,

Appellant lists 51 statements.6          Although Appellant fails to list individual

questions for review as required by the rules of appellate procedure,

because the PCRA court has already addressed Appellant’s essential issue,

we will summarize and address Appellant’s issue as follows:            Whether the

trial court erred in denying his PCRA petition and his motion for post-

conviction DNA testing?

       Appellant argues his motion for DNA testing was not a PCRA petition

and the court should not have dismissed it as untimely. He contends DNA

evidence would prove he did not rape his victim, he is entitled to have DNA

testing performed, and the court improperly denied him of his constitutional

rights. We disagree.

       Our well-settled standard of review for orders denying PCRA relief is

“to determine whether the determination of the PCRA court is supported by

the evidence of record and is free of legal error. The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

certified record.”      Commonwealth v. Barndt, 74 A.3d 185, 191-192

(Pa.Super.2013) (internal quotations and citations omitted).


____________________________________________


6
  Appellant lists these 51 statements three times, once under his “Statement
of Facks” section, once under his “Brief Statement of the order under
Review” section, and once under his “Summary of Argument” section. See
Appellant’s Brief at 1-6, 1-6, and 1-6.



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      Primarily, we note that the timeliness of a PCRA petition implicates the

jurisdiction of both this Court and the PCRA court.        Commonwealth v.

Williams, 35 A.3d 44, 52 (Pa.Super.2011), appeal denied, 50 A.3d 121

(Pa.2012). “Pennsylvania law makes clear that no court has jurisdiction to

hear an untimely PCRA petition.”     Id.   To “accord finality to the collateral

review process[,]” the PCRA “confers no authority upon [appellate courts] to

fashion    ad   hoc   equitable   exceptions    to   the    PCRA    timebar[.]”

Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011). With respect to

jurisdiction under the PCRA, this Court has further explained:

          The most recent amendments to the PCRA...provide a
          PCRA petition, including a second or subsequent petition,
          shall be filed within one year of the date the underlying
          judgment becomes final. A judgment is deemed 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
          time for seeking the review.

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

(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011).

This Court may review a PCRA petition filed more than one year after the

judgment of sentence becomes final only if the claim falls within one of the

following three statutory exceptions, which the petitioner must plead and

prove:

             (i) the failure to raise the claim 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;

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             (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. § 9545(b)(1).            Further, if a petition pleads one of these

exceptions, the petition will not be considered unless it is “filed within 60

days of the date the claim could have been presented.” 42 Pa.C.S. §

9545(b)(2).

       Additionally, a heightened standard applies to a second or subsequent

PCRA    petition    to    avoid   “serial        requests   for   post-conviction   relief.”

Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa.2011).                           A second or

subsequent PCRA petition “will not be entertained unless a strong prima

facie showing is offered to demonstrate that a miscarriage of justice may

have occurred.”          Commonwealth v. Hawkins, 953 A.2d 1248, 1251

(Pa.2006).     In a second or subsequent post-conviction proceeding, “all

issues are waived except those which implicate a defendant’s innocence or

which raise the possibility that the proceedings resulting in conviction were

so unfair that a miscarriage of justice which no civilized society can tolerate

occurred.”         Commonwealth             v.     Williams,      660   A.2d    614,   618

(Pa.Super.1995).




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      Motions    for   post-conviction   DNA   testing,   however,   “are   clearly

separate and distinct from claims brought pursuant to other sections of the

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

(quoting Commonwealth v. Perry, 959 A.2d 932, 938 (Pa.Super.2008)).

“This 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.” Id.

(internal citations omitted).

      The statute that governs post-conviction DNA testing provides, in

relevant part:

         § 9543.1. Postconviction DNA testing

         (a)     Motion.-

            (1) An individual convicted of a criminal offense in a
            court of this Commonwealth and serving a term of
            imprisonment or awaiting execution because of a
            sentence of death may apply by making a written
            motion to the sentencing court 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.

            (2) The evidence may have been discovered either prior
            to or after the applicant’s conviction. The evidence
            shall be available for testing as of the date of the
            motion. If the evidence was discovered prior to the
            applicant’s conviction, the evidence shall not have been
            subject to the DNA testing requested because the
            technology for testing was not in existence at the time
            of the trial or the applicant’s counsel did not seek
            testing at the time of the trial in a case where a verdict
            was rendered on or before January 1, 1995, or the
            applicant’s counsel sought funds from the court to pay
            for the testing because his client was indigent and the
            court refused the request despite the client’s indigency.

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       (b) Notice to the Commonwealth.-

          (1) Upon receipt of a motion under subsection (a), the
          court shall notify the Commonwealth and shall afford
          the Commonwealth an opportunity to respond to the
          motion.

          (2) Upon receipt of a motion under subsection (a) or
          notice of the motion, as applicable, the Commonwealth
          and the court shall take the steps reasonably necessary
          to ensure that any remaining biological material in the
          possession of the Commonwealth or the court is
          preserved pending the completion of the proceedings
          under this section.

       (c) Requirements.-In any motion under subsection
       (a), under penalty of perjury, the applicant shall:

          (1)(i) specify the evidence to be tested;

          (ii) state that the applicant consents to provide samples
          of bodily fluid for use in the DNA testing; and

          (iii) acknowledge that the applicant understands that, if
          the motion is granted, any data obtained from any DNA
          samples or test results may be entered into law
          enforcement databases, may be used in the
          investigation of other crimes and may be used as
          evidence against the applicant in other cases.

          (2)(i) assert the applicant’s actual innocence of the
          offense for which the applicant was convicted; and

                                 *     *   *

          (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.-

       (1) Except as provided in paragraph (2), the court shall
       order the testing requested in a motion under subsection
       (a) under reasonable conditions designed to preserve the
       integrity of the evidence and the testing process upon a
       determination, after review of the record of the applicant’s
       trial, that the:

          (i) requirements of subsection (c) have been met;

          (ii) evidence to be tested has been subject to a chain of
          custody sufficient to establish that it has not been
          altered in any material respect; and

          (iii) 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.

       (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;

                               *    *    *

       (f) Posttesting procedures.-

       (1) After the DNA testing conducted under this section has
       been completed, the applicant may, pursuant to section
       9545(b)(2) (relating to jurisdiction and proceedings),

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         during the 60-day period beginning on the date on which
         the applicant is notified of the test results, petition to the
         court for postconviction relief pursuant to section
         9543(a)(2)(vi) (relating to eligibility for relief).

42 Pa.C.S. § 9543.1(a), (b), (c), (d), (f).

      We review an order denying a motion for post-conviction DNA testing

as follows:

         [T]he trial court’s application of a statute is a question of
         law that compels plenary review to determine whether the
         court committed an error of law. When reviewing an order
         denying a motion for post-conviction DNA testing, this
         Court determines whether the movant satisfied the
         statutory requirements listed in Section 9543.1. We can
         affirm the court’s decision if there is any basis to support
         it, even if we rely on different grounds to affirm.

Williams, 35 A.3d at 47 (internal citations omitted).

      Regarding the post-conviction DNA statute, we observe:

         The statute sets forth several threshold requirements to
         obtain DNA testing: (1) the evidence specified must be
         available for testing on the date of the motion; (2) if the
         evidence was discovered prior to the applicant’s conviction,
         it was not already DNA tested because (a) technology for
         testing did not exist at the time of the applicant’s trial; (b)
         the applicant’s counsel did not request testing in a case
         that went to verdict before January 1, 1995; or (c) counsel
         sought funds from the court to pay for the testing because
         his client was indigent, and the court refused the request
         despite the client’s indigency.     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 petitioner’s actual
         innocence. From the clear words and plain meaning of


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        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 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
        petitioner’s actual innocence. We find no ambiguity in the
        standard established by the legislature with the words of
        this statute.

Williams, 35 A.3d at 49-50.

     In dismissing Appellant’s PCRA petition and motion for post-conviction

DNA testing, the PCRA court reasoned as follows:

        Here, [Appellant’s] guilty plea and sentencing took place
        on October 2, 2000.… [Appellant] had until November 1,
        2000 to appeal his conviction and sentencing. However,
        [Appellant] failed to file a direct appeal in this case.
        Because [Appellant] failed to file a direct appeal within the
        requisite 30 days, the judgment of sentence became final
        on November 1, 2000, creating a deadline for petitioning
        for post-conviction relief of November 1, 2001. However,
        [Appellant] filed the instant PCRA [p]etition on April 22,
        2014, which is well beyond the one-year statutory
        deadline.    Moreover, [Appellant] fails to plead facts
        evidencing that he meets one of the statutory exceptions
        that would excuse the late filing. Because [Appellant’s]
        petition is untimely, this court lacks jurisdiction over the
        matter.

                                *     *      *

        [Appellant’s] contention that he is entitled to post[-]
        conviction DNA testing is not cognizable.       First, DNA
        testing existed at the time he entered into his guilty plea
        on October 2, 2000. Because [Appellant’s] guilty plea
        occurred after January 1, 1995, and the court did not
        refuse a request for DNA testing, [Appellant] fails to


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         establish any of the requirements to excuse his failure to
         previously request DNA testing.

         Secondly, [Appellant] fails to present a prima facie case
         demonstrating that his identity or participation in the crime
         was at issue, and that DNA testing would establish his
         actual innocence of the offenses for which he was
         convicted. [Appellant] admitted his guilt by entering guilty
         pleas to the charged offenses. Specifically, the trial court
         found the plea to be voluntarily, intelligently, and
         knowingly entered. [Appellant] testified, during his plea
         colloquy, that he was able to read, write, and understand
         the English language and that he was not under any
         condition that would prevent him from understanding the
         nature and ramifications of his plea. The [c]ourt asked
         [Appellant] “have you taken any alcohol, any drugs or any
         controlled substances within the last 24 hours? Are you
         suffering from any condition that would prevent you from
         understanding what it is that I’m (Judge Mahon) saying or
         what’s happening here today?” The [c]ourt also asked
         [Appellant] whether he had been “forced,[”] “threatened,”
         or “made any promises” to induce him into plead[ing]
         guilty.   [Appellant] responded, “No” to all of these
         questions asked by the [c]ourt.

                                 *     *      *

         Because [Appellant] previously admitted that he was guilty
         of the charged offenses, post-conviction DNA testing would
         only serve to delay the execution of the sentence and the
         administration of justice. This is especially true where, as
         here, a cogent examination of the record reveals that
         [Appellant] is not a likely candidate to be exonerated by
         DNA testing. Furthermore, [b]ecause [Appellant’s] PCRA
         petition is both untimely and fails to meet any of the
         enumerated exceptions to this one-year timeliness
         requirement; this [c]ourt is divested of jurisdiction over
         this matter. Accordingly, [Appellant’s] petition is to be
         dismissed.

PCRA Court’s Notice of Intent to Dismiss PCRA Petition Pursuant to

Pa.R.Crim.P. 907(1), filed June 5, 2014, pp. 4, 6 n.2.


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      We agree with the PCRA court that Appellant failed to satisfy the time

limitation for his PCRA petition and failed to meet the statutory requirements

listed in Section 9543.1 for his post-conviction DNA testing motion.

Accordingly, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/2015




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