J. S37033/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
MICHAEL WALKER,                         :         No. 2866 EDA 2018
                                        :
                       Appellant        :


          Appeal from the PCRA Order Entered August 24, 2018,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0004505-2012


BEFORE: BOWES, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED DECEMBER 16, 2019

     Michael Walker appeals pro se from the August 24, 2018 order entered

in the Court of Common Pleas of Philadelphia County dismissing his second

PCRA 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 procedural history as follows:

           On March 22, 2012, [appellant] was arrested and
           charged with Aggravated Assault, Robbery, Indecent
           Assault and related charges. On July 17, 2013,
           testimony began in [appellant’s] jury trial.        On
           July 18, 2013, [appellant] pled guilty to Robbery
           (18 Pa.C.S.[A.] § 3701(a)(1)(i)), a felony of the first
           degree, and Aggravated Assault (18 Pa.C.S.[A.]
           § 2702(a)(1)), a felony of the first degree, under the
           terms of a negotiated plea. [Appellant] also pled
           nolo contendere to Indecent Assault (18 Pa.C.S.[A.]
           § 3126(a)(1)), a misdemeanor of the second degree.
J. S37033/19


          On July 18, 2013, [appellant] was sentenced to two
          terms of 8-16 years[’ incarceration] each on the
          Robbery and Aggravated Assault charges, sentences
          to run concurrently. Sentencing was deferred on the
          Indecent Assault; a Pre-Sentence Investigation
          Report, Me[n]tal Health Evaluation and Psychiatric
          Evaluation were ordered. On September 12, 2013,
          [appellant] was sentenced to two years of probation
          for Indecent Assault to run consecutive to the Robbery
          and Aggravated Assault sentences. [Appellant] did
          not file a direct appeal.

          On April 9, 2014, [appellant] filed a PCRA Petition. On
          March 11, 2015, Attorney Henry McGregor Sias
          (“Attorney Sias”) entered his appearance on behalf of
          [appellant]. On June 30, 2015, Attorney Sias filed a
          Finley Letter pursuant to Finley v. Pennsylvania,
          481 U.S. 551, 107 S. Ct. 1990, 95 L. Ed. 2d 539
          (1987), Commonwealth v. Turner, 544 A.2d 927
          (Pa. 1988), and Commonwealth v. Friend, 896 A.2d
          607 (Pa.Super. 2006). The Finley letter concluded
          that (1) [appellant’s] claims were waived, and
          (2) [appellant’s] claims were meritless. On the same
          date Attorney Sias also filed a Motion to Withdraw as
          Counsel. On August 12, 2015, the [PCRA c]ourt filed
          a Notice of Intent to Dismiss pursuant to Rule 907.
          On October 26, 2015, the [PCRA c]ourt formally
          dismissed [appellant’s] PCRA Petition.

          On November 23, 2015, [appellant] file[d] a Notice of
          Appeal. On December 2, 2015, the [PCRA c]ourt
          ordered [appellant] to provide a Concise Statement of
          Errors Complained of on Appeal pursuant to
          Pa.R.A.P. 1925(b). On December 7, 2015, [appellant]
          filed a Statement of Errors Complained of on Appeal
          (“Statement I”) . . . .

          ....

          . . . . On April 25, 2016 the PCRA [c]ourt issued an
          opinion. On January 24, 2017[,] the Superior Court
          affirmed, holding that [appellant] had waived the
          issue presented in his appellate brief.



                                   -2-
J. S37033/19

PCRA court opinion, 11/15/18 at 1-3.

      On February 20, 2018, appellant filed pro se a PCRA petition, his

second, seeking relief on the grounds that his plea was allegedly unlawfully

induced. The PCRA petition also included a request for “new DNA testing to

prove my innocen[ce.]” (Appellant’s motion for PCRA relief, 2/20/18 at 4.)

On   June   8,   2018,   the   PCRA   court   notified   appellant,   pursuant   to

Pa.R.Crim.P. 907, of its intent to dismiss the PCRA petition as untimely filed

and failing to invoke an exception to the PCRA jurisdictional time-bar.

Appellant did not file a response. The PCRA court subsequently dismissed

appellant’s PCRA petition.

      Appellant filed pro se a timely notice of appeal. The PCRA court ordered

appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. The PCRA court

subsequently issued its Rule 1925(a) opinion.

      Appellant raises the following issue for our review:

            Did the [PCRA] court err by treating the pro se
            appellant’s inartful but fairly obvious attempt to seek
            post-conviction DNA testing using a standard,
            preprinted Department of Corrections form as a
            time-barred, serial “PCRA Petition” which it promptly
            dismissed without providing appellant with notice or
            the opportunity to respond and address the
            deficiencies in his pleading as contemplated by
            Pa.R.Crim.P. 905?

Appellant’s brief at 4 (emphasis added, full capitalization omitted).




                                      -3-
J. S37033/19

      Appellant claims the PCRA court erred in dismissing his request for DNA

testing which was made using a standard, pre-printed PCRA petition form and

argues he should have been permitted to amend his request for any

deficiencies. (Id. at 13-15.)

      When examining the propriety of an order resolving a request for

DNA testing, this court must apply the PCRA standard of review.             See

Commonwealth v. Gacobano, 65 A.3d 416, 419 (Pa.Super. 2013) (citation

omitted). “On appeal from the denial of PCRA relief, our standard of review

calls for us to determine whether the ruling of the PCRA court is supported by

the record and free of legal error.” Id. (citation omitted). “The PCRA court’s

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

certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)

(citations omitted). “This Court grants great deference to the findings of the

PCRA court, and we will not disturb those findings merely because the record

could support a contrary holding.” Commonwealth v. Hickman, 799 A.2d

136, 140 (Pa.Super. 2002) (citation omitted).

      This court has previously held that:

            the one-year jurisdictional time bar of the PCRA does
            not apply to motions for DNA testing under Section
            9543.1. . . .

            [A] motion for post-conviction DNA testing does not
            constitute a direct exception to the one year time limit
            for filing a PCRA petition. Instead, it gives a convicted
            person a vehicle to first obtain DNA testing which
            could then be used within a PCRA petition to establish



                                      -4-
J. S37033/19


             new facts in order to satisfy the requirements of an
             exception under 42 Pa.C.S.A. § 9545(b)(2).

             . . . . When presented with a hybrid filing that
             comingles PCRA claims and a request for DNA testing,
             the standard set forth in Section 9543.1 requires the
             court to address the DNA request first and foremost.
             A petitioner who is unable to obtain DNA testing under
             Section 9543.1 can still pursue [a] claim under the
             PCRA . . . 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) (citations

and quotation marks omitted), appeal denied, 50 A.3d 121 (Pa. 2012). This

court has observed, “[t]o consider a request for DNA testing as untimely based

solely on the nomenclature used would merely elevate form over substance.”

Commonwealth v. Young, 873 A.2d 720, 724 n.2 (Pa.Super. 2005), appeal

denied, 891 A.2d 733 (Pa. 2005), overruled on other grounds by

Commonwealth v. Wright, 14 A.3d 798 (Pa. 2011). In reviewing a denial

of a request for post-conviction DNA testing, this court must determine if the

requirements of Section 9543.1 are satisfied and may affirm the PCRA court’s

decision    on   any   grounds    provided    there   is   a   basis     of   support.

Commonwealth v. Walsh, 125 A.3d 1248, 1253 (Pa.Super. 2015).                        In

contrast,   we   review   the    PCRA   court’s   legal    conclusions    de    novo.

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).




                                        -5-
J. S37033/19

      Section 9543.1, as enacted at the time appellant filed his instant PCRA

petition, stated, in pertinent part, as follows:1

            § 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.

1 We note that Section 9543.1 was amended and the new language became
effective December 24, 2018. See Act 2018, Oct. 24, P.L. 896, No. 147, § 1.
Because appellant filed his petition on February 20, 2018, this amended
language does not apply.


                                      -6-
J. S37033/19



          ....

          (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 . . . .

                 (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

                      (ii) DNA testing of the specific
                           evidence,          assuming
                           exculpatory results,  would
                           establish:


                                     -7-
J. S37033/19



                          (A)   the applicant’s actual
                                innocence     of   the
                                offense for which the
                                applicant         was
                                convicted; . . .

Former 42 Pa.C.S.A. § 9543.1

     Here, a review of appellant’s PCRA petition demonstrates that appellant

made a request for DNA testing; a request that must be bifurcated from

appellant’s PCRA petition.2 Therefore, we shall address appellant’s claim for

post-conviction DNA testing pursuant to Section 9543.1 and need not apply

the provisions of Section 9545 herein.

     The record demonstrates that in his request for DNA testing, appellant

failed to identify the specific evidence for which he seeks DNA testing as

required by Section 9543.1(a)(1) and (c)(1)(i). In addition, appellant failed

to state that he consented to provide samples of bodily fluid for use in the

DNA testing and acknowledge that 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. See 42 Pa.C.S.A. § 9543.1(c)(1)(ii) and (iii). While

he asserted his actual innocence in his PCRA petition, appellant failed to


2 We note that appellant does not challenge the PCRA court’s dismissal of his
PCRA petition, requesting relief for an unlawfully induced sentence, as
untimely and failing to invoke one of the three statutory exceptions to the
jurisdictional time-bar. Therefore, appellant has waived this claim. See
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (reiterating that any
issues not raised in a Rule 1925(b) statement are waived).


                                    -8-
J. S37033/19

present a prima facie case demonstrating that his identity or the participation

in the crime as the perpetrator was at issue or that DNA testing of specific

evidence, assuming exculpatory results, would establish actual innocence. Id.

at § 9543.1(c)(2) and (3)(i) and (ii)(A). Therefore, appellant’s request for

DNA testing failed to satisfy the requirements for such a request pursuant to

Section 9543.1.

      Appellant argues the PCRA court should have permitted appellant to file

an amended pleading to address the deficiencies in his request for DNA testing

pursuant to Pennsylvania Rule of Criminal Procedure 905(B).        (Appellant’s

brief at 14-15.) Rule 905(B) states, “[w]hen a petition for post-conviction

collateral relief is defective as originally filed, the [PCRA court] shall order

amendment of the petition.” Pa.R.Crim.P. 905(B) (emphasis added).

      Here, appellant co-mingled his request for DNA testing with his petition

for PCRA relief. The request for DNA testing is a motion made pursuant to

Section 9543.1 and is not a PCRA petition. Rule 905 deals specifically with

PCRA petitions and is not intended to include motions for DNA testing filed

pursuant to Section 9543.1. Consequently, appellant’s argument is without

merit.

      Moreover, to the extent appellant seeks to have a second DNA test

performed on the same evidence that was previously tested, Section 9543.1

was not intended to permit such a request. The language of Section 9543.1,

providing petitioners an opportunity for DNA testing of evidence discovered



                                     -9-
J. S37033/19

prior to conviction if “the technology for testing was not in existence at the

time of the trial” indicates that the purpose of Section 9543.1 was to provide

the first-time DNA testing of such evidence once testing was available. See

former 42 Pa.C.S.A. § 9543.1(a)(2). In the instant case, appellant had DNA

testing performed; and the PCRA court explained, “the DNA results in question

establish conclusively that [appellant’s] DNA was found in a sperm fraction

from a vaginal swab collected from the complainant.” (PCRA court opinion,

11/15/18 at 10-11.)

      For all of these reasons, we find that the trial court’s denial of appellant’s

request for DNA testing pursuant to Section 9543.1 is supported by the record

and is free of legal error. Therefore, appellant’s claim fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 12/16/19




                                      - 10 -
