Com. v. Akan, A.

Opinion

J-S05023-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AKANINYENE EFIONG AKAN : : Appellant : No. 928 WDA 2017

Appeal from the PCRA Order June 8, 2017 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0001844-2011

BEFORE: OLSON, J., OTT, J., and STRASSBURGER, J.

MEMORANDUM BY OTT, J.: FILED JUNE 29, 2018

Akaninyene Efiong Akan appeals from the order entered on June 8,

2017, in the Court of Common Pleas of Allegheny County denying him relief

on his pro se, second petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. § 9541 et seq. The PCRA court denied Akan’s petition,

without a hearing, as it was not filed within the required one-year statutory

time limit and none of the timeliness exceptions applied. In this timely appeal,

Akan claims the PCRA court erred in failing to accept his assertion of newly

discovered evidence. After a thorough review of the submissions by the

parties, relevant law, and the certified record, we affirm.1 ____________________________________________

 Retired Senior Judge assigned to the Superior Court.

1 Our standard of review is as follows: J-S05023-18

In 2014, Akan was convicted of vaginally and anally raping a woman,

as well as forcing her to perform oral sex on him. Akan had been in the

woman’s residence the night before the assault in the company of one of the

victim’s roommates. Akan had brought the roommate, who was incoherently

drunk, home. However, Akan was forced to leave the residence. Akan’s

fingerprints were found on a window that was the point of entry to the

residence for the assault. His DNA was found in the victim’s underwear.

Approximately one week after the attack, the police spoke with Akan on the

street. His DNA was obtained from a cigarette he had been smoking that he

dropped on the street. At trial, Akan claimed the DNA results were flawed and

the positive test on the victim’s underwear was a product of cross-

contamination. Akan was convicted on a variety of charges and was sentenced

to an aggregate term of 32 to 80 years’ incarceration. Akan was afforded no

relief on his direct appeal or in his first PCRA petition.

The PCRA court has accurately related the statutory timeliness

requirements, as well as the statutory timeliness exceptions, found in the

PCRA. We see no need to recount them herein. See Trial Court Opinion, at

5-6. There is no question this PCRA petition was not filed within one year of

____________________________________________

“Our standard of review of a PCRA court's dismissal of a PCRA petition is limited to examining whether the PCRA court's determination is supported by the record evidence and free of legal error.”

Commonwealth v. Root, 179 A.3d 511, 515-16 (Pa. Super. 2018) (citation omitted).

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Akan’s sentence becoming final on August 28, 2014. Accordingly, Akan’s

petition is facially untimely. However, Akan claims he is entitled to the

timeliness exception found at 42 Pa.C.S. § 9545(b)(1)(ii), often referred to as

the newly discovered evidence exception.

Akan included two articles from scientific journals and a newspaper

article from the Pittsburgh Post-Gazette, each of which addresses a possible

problem of DNA analysis.2 The articles are as follows: (1) “Could Secondary

DNA Transfer Falsely Place Someone at the Scene of a Crime?” which was

published January 2016 in the Journal of Forensic Sciences, Vol. 61, No. 1, (2)

“When DNA Implicates the Innocent”, published in Scientific American, June

2016, and (3) “Complex DNA is still a developing technology, experts say”,

published August 28, 2016 in the Pittsburgh Post-Gazette. The PCRA court

correctly noted none of these articles qualifies as evidence. See Trial Court

Opinion, at 7-8; Commonwealth v. Castro, 93 A.3d 818, 824 (Pa. 2014)

(newspaper articles detailing allegations of police misconduct are not

evidence).

Essentially, the two scientific journal articles appear to relate concerns

regarding cross-contamination of evidence that might lead to a positive DNA

result despite a person never having had direct contact with the evidence.

Akan has provided no link from the articles’ statements to the specifics of ____________________________________________

2 Akan also included a Pittsburgh Police Department Memo, dated December 16, 2010, indicating Akan had been arrested in Oakland, California, on September 12, 2010. We fail to discern the relevance of this article as newly discovered evidence.

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Akan’s case. The requirement that the newly discovered evidence in this

matter be specifically linked to Akan’s trial evidence is even more compelling

because Akan’s DNA expert testified he found no improprieties in the

Commonwealth’s handling of the DNA evidence. See N.T. Trial, v. 2, 4/2-

4/2014, at 89.

Because none of Akan’s proffered articles qualifies as evidence, he is not

entitled to the application of the timeliness exception found at Section

9545(b)(1)(ii). Accordingly, the PCRA court properly determined the petition

was untimely and Akan was not entitled to relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/29/2018

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