J-S56022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

DONALD EUGENE WILES

                            Appellant                  No. 162 MDA 2016


                Appeal from the PCRA Order December 29, 2015
              In the Court of Common Pleas of Cumberland County
              Criminal Division at No(s): CP-21-CR-0001754-1989


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J.                       FILED SEPTEMBER 06, 2016

        Appellant, Donald Eugene Wiles, appeals from the order entered in the

Cumberland County Court of Common Pleas, which denied his motion for

DNA testing pursuant to § 9543.1 of the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546. We affirm.

        The relevant factual and procedural history is as follows. In 1990, a

jury convicted Wiles of first-degree murder and conspiracy. Thereafter, Wiles

was sentenced to life imprisonment. Wiles timely filed his first PCRA petition,

which the court subsequently denied. This Court affirmed Wiles’ judgment of

sentence on December 3, 1993. Our Supreme Court denied allocator.

Thereafter, Wiles filed three habeas corpus petitions, which were all
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S56022-16



dismissed by the United States District Court for the Middle District of

Pennsylvania. Wiles’ habeas corpus petition to our Supreme Court was also

dismissed. The PCRA court denied Wiles’ second and third PCRA petitions.

This Court affirmed both decisions.

      On September 17, 2015, Wiles filed the instant post-conviction motion,

in which he sought DNA testing and fingerprint analysis of various items

found at the crime scene. Wiles requested the following items be tested: a

used condom, a used spoon and other utensils found in the kitchen area,

cigarette butts, skin cell residue from 3 unidentified fingerprints, and any

samples taken from material parts of the victim’s body. See Appellant’s

Request for DNA Testing and Fingerprint Analysis, 9/17/2015, at 5.

Following a hearing, the court denied the motion. This appeal followed.

      On appeal, Wiles insists that the court erred in denying his motion for

DNA testing. We disagree.

      “Post-conviction DNA testing falls under the aegis of the” PCRA.

Commonwealth v. Conway, 14 A.3d 101, 108 (Pa. Super. 2011) (citation

omitted). The one-year jurisdictional time bar that exists under the PCRA

does not apply to motions for the performance of DNA testing under §

9543.1. See id., at 108 n.2. “Rather, after DNA testing has been completed,

the applicant may, within 60 days of receiving the test results, petition to

the court for post-conviction relief on the basis of after-discovered evidence,

an exception to the one-year statute of limitations.” Id. (citation omitted).

Thus, at this time, there is no jurisdictional impediment to our review.

                                      -2-
J-S56022-16



      “[O]ur standard of review permits us to consider only whether the

PCRA court’s determination is supported by the evidence of record and

whether it is free from legal error.” Id., at 108 (citation, internal quotations,

and footnote omitted). In reviewing an order denying a motion for post-

conviction DNA testing, this Court must determine whether the movant

satisfied the statutory requirements listed in § 9543.1. See id. Since the

resolution of this appeal involves statutory construction, which involves a

pure question of law, we apply a de novo standard and a plenary scope of

review. See id.

      Section 9543.1 provides, in pertinent part, as follows.

      (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.

42 Pa.C.S.A. § 9543.1(a)(1)-(2).

      An individual seeking relief under this statute must



                                      -3-
J-S56022-16


      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 applicant’s
      conviction and sentencing; and

      (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[.]

42 Pa.C.S.A. § 9543.1(c)(3)(i)-(ii)(A).

      The statute also provides that a court shall not order DNA testing 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[.]

42 Pa.C.S.A. § 9543.1(d)(2)(i).

      As provided in the statute, there are several threshold requirements to

obtain DNA testing, which are as follows.

      (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.

Commonwealth v. Williams, 35 A.3d 44, 49 (Pa. Super. 2011). See also

42 Pa.C.S.A. § 9543.1(a)(2).

      Additionally,

                                     -4-
J-S56022-16



     [t]he legislature delineated a clear standard─and in fact
     delineated certain portions of the standard twice. Under 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 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 (citation omitted).

     Because Wiles’ case went to verdict before January 1, 1995, he meets

the threshold requirements for post-conviction DNA testing. Nevertheless,

after the PCRA court assessed the trial record, it determined that there was

not a reasonable possibility that DNA testing would produce exculpatory

evidence to establish Wiles’ actual innocence. The PCRA court explained that

     [t]he fingerprints at the scene may have been left weeks or
     months prior to the murder and consequently would not directly
     establish Defendant’s innocence. Similarly, even if the DNA
     evidence inside the condom belongs to another unidentified
     party, that evidence would not establish Defendant’s innocence.

PCRA Court Opinion, 12/29/15, at 4.



                                    -5-
J-S56022-16



      We agree. Although Wiles claims that the DNA evidence will establish

his innocence, he fails to provide any evidentiary basis to infer that the

fingerprints at the scene or the DNA found in the condom were left by the

“true” perpetrator of the crime. Given the circumstances of the case and the

speculative nature of Wiles’ claim, the PCRA court concluded that DNA

testing would not establish his actual innocence. In that respect, the court

reasoned that

      during the trial, the Commonwealth relied primarily on witnesses
      to prove Defendant’s guilt. The Commonwealth did not rely on
      DNA evidence or fingerprints. It does not appear to be disputed
      that simply testing the evidence would not directly establish
      Defendant’s innocence but further investigation would be
      required. We therefore cannot agree with Defendant’s assertion
      that testing the requested evidence will lead to exculpatory
      results, and find it more likely that there is no reasonable
      possibility that testing would produce exculpatory evidence.

Id., at 4-5.

      The PCRA court’s reasoning is sound. At trial, Wiles’ co-conspirator

provided eyewitness testimony regarding Wiles’ involvement in the crime.

Thus, the evidence against Wiles was more than just circumstantial.

Compare Conway, 14 A.3d at 112-113 (reversing court’s decision to deny

DNA testing and holding reasonable possibility existed that DNA testing

could prove applicant’s actual innocence sufficient to warrant testing, where

evidence produced at trial, except for testimony from jailhouse informant,

was wholly circumstantial, and where the victim’s clothing was ripped in

such a way that indicated extensive contact with the hands of her assailant).



                                    -6-
J-S56022-16



      Under the facts and circumstances of the instant case, we have no

reason to disturb the court’s decision to deny Wiles’ request for DNA testing.

Accordingly, we affirm the court’s order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/6/2016




                                     -7-
