Com. v. Hull, J.

• Court: Superior Court of Pennsylvania
• Decided: August 11, 2014
• Docket: 425 WDA 2014
• Status: Unpublished

Opinion

J-S50035-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JAMES EDWARD HULL,

Appellant No. 425 WDA 2014

Appeal from the PCRA Order entered January 27, 2014, in the Court of Common Pleas of Allegheny County, Criminal Division, at No(s): CP-02-CR-0007650-1999 & CP-02-CR-0008641-1999

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.: FILED AUGUST 11, 2014

pro se from the order entered

denying his motion for DNA testing pursuant to section 9543.1 of the Post

Convi -9546. We affirm.

The pertinent facts and procedural history may be summarized as

follows: On June 21, 2001, Appellant entered guilty pleas at two separate

dockets to various sexual offenses involving a male victim under the age of

sixteen, and a female victim under the age of thirteen. That same day, the

trial court sentenced him at both dockets to an aggregate term of seven to

fourteen years of incarceration, and a consecutive eleven years of probation.

On August 15, 2001, Appellant filed an untimely pro se notice of appeal.

Appellant subsequently filed a PCRA petition, and the PCRA court reinstated J-S50035-14

Appellant then filed a timely appeal. In an unpublished memorandum

sentence. Commonwealth v. Hull, 924 A.2d 692 (Pa. Super. 2007). On

of appeal. Commonwealth v. Hull, 927 A.2d 623 (Pa. 2007).

On August 23, 2007, Appellant filed a pro se PCRA petition. Counsel

was appointed, and on February 11, 2008, PCRA counsel filed an amended

petition. On July 8, 2008, the PCRA court issued Pa.R.Crim.P. 907 notice of

i

Appellant filed an appeal to this Court. In an unpublished memorandum

filed on June 9, 2009, this Court affir -

conviction relief. Commonwealth v. Hull, 981 A.2d 313 (Pa. Super. 2009).

allowance of appeal. Commonwealth v. Hull, 987 A.2d 160 (Pa. Super.

2009).

On August 19, 2013, Appellant filed the motion for DNA testing at

September 24, 2013. On November 14, 2013, the PCRA court issued

Pa.R.Crim.P. 907 notice of its intent to dismiss Appel

did not file a response. By order entered January 27, 2014, the PCRA court

not require Pa.R.A.P. 1925 compliance.

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Appellant phrases his sole issue raised on appeal as follows:

under 42 Pa.C.S.A. § 9543(c)(3) Actual Innocence exists, even though Appellant entered a Guilty Plea, where evidence exists that can be tested excluding Appellant from any crime?

Because our review of the record readily establishes that Appellant has

failed to satisfy the threshold statutory requirements governing post-

conviction DNA testing, we need

guilty plea vitiates his request. Compare Williams v. Erie County Dist.

, 848 A.2d 967, 972 (Pa. Super. 2004), appeal denied, 864

y

Section 9543.1 of the PCRA gives a petitioner the opportunity to

request DNA testing. Commonwealth v. Smith, 889 A.2d 582, 583 (Pa.

Super. 2005). A petitioner seeking post-conviction DNA testing must satisfy

several statutory requirements before a PCRA court may order such testing. 1

Id. In pertinent part, the statute reads:

____________________________________________

1 The statutory provision does not confer a right to counsel. Commonwealth v. Brooks, 875 A.2d 1141, 1147 (Pa. Super. 2005).

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§ 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 be available for testing as of the date of the motion. If the

the evidence shall not have been subject to the DNA testing requested because the technology for testing was

counsel did not seek testing at the time of the trial in a case where a verdict was rendered on or before January 1,

court to pay for the testing because his client was indigent

indigency.

(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 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;

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(ii) state 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 of 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.

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 on and sentencing; and

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

for which the applicant was convicted[.]

42 Pa. C.S.A. § 9543.1. If, after

the DNA testing would produce exculpatory evidence that would establish

r the testing.

Id. (citing 42 Pa.C.S.A. § 9543.1(d)(2)).

-conviction DNA

testing, this Court determines whether the movant satisfied the statutory

Commonwealth v. Williams, 35

A.3d 44 (Pa. Super. 2011). As we summarized in Williams:

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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 wa it was not already DNA tested because (a) technology for

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

9543.1(a)(2). Additionally,

[T]he legislature delineated a clear standard and in fact delineated certain portions of the standard twice. Under section 6543.1(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

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 possibility that the testing would produce exculpatory evidence to 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 [the] 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

Williams, 35 A.3d at 49-50 (citing Commonwealth v. Smith, 889 A.2d

obtain testing requires more than conjecture or speculation; it demands a

prima facie case that the DNA result, if exculpatory, would establish actual

Id. at 50.

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In s

explained:

5. [Appellant] has not made the prima facie showing that DNA testing of specific evidence, assuming exculpatory

the offense for which [he] was convicted as required by 42 Pa.C.S.A. § 9543.1(c)(2) and (3)(ii)[(A)]; and

6. After a review of the record of the trial, the Court does not believe that there exists a reasonable probability that the testing would [produce] exculpatory evidence that . . .

offense for which [he] was charged in that [Appellant] was charged with offenses that took place over the course of at least a two to three year period and involved two victims; one victim did not allege anything other than illegal touching, so it is impossible for any DNA evidence to have any relevance to that conviction. Moreover, given the numerous instances of sexual contact between [Appellant] and the other victim over the course of that time, it is impossible for one single piece of evidence subject to DNA testing to exonerate him. The absence of genetic material would not demonstrate his innocence. The Superior Court held in Commonwealth v. Heilman, 867 [A.2d] 542 (Pa. Super. 2005) that the prima facie requirement set forth in § 9543.1(c)(3) and reinforced [] in [§ 9543.1(d)(2)] requires an appellant to demonstrate that favorable results

of conviction [sic]. [Appellant] has failed to make such a demonstration. In DNA as in other areas, an absence of evidence is not evidence of absence. [Heilman, 867 A.2d at 546-47]. Because the exculpatory DNA results would not establish actual innocence in this case, that statute prevents [the] ordering of such testing.

Pa.R.Crim.P. 907 Notice, 11/14/13, at 1-2.

conclusions. Appellant has failed to satisfy the threshold statutory

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requirements governing a post-conviction request for DNA testing.

Appellant does not adequately identify the specific evidence available

for testing either prior to his trial or discovered after his conviction. Rather,

Appellant merely asserts that he seeks

7. According to Appellant, given the conduct with which he was charged, the

bec

examination of [the male victim] at [the] hospital, [which] led to

Id. at 8. In response, the

suggests that [a

physical] examination [of the male victim] would have yielded any material

evidence to the contrary. Moreover, it is clear that the technology for DNA

testing existed

record that the trial court refused any request for funds by Appellant for DNA

testing. See Commonwealth v. Perry, 959 A.2d 932, 938 (Pa. Super.

2008) (affirming the denial of post-conviction request for DNA testing under

these facts).

Thus, because Appellant has failed to establish the statutorily required

prima facie -

ture and

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Williams, supra. We therefore conclude that the PCRA

-conviction request for DNA testing.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/11/2014

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