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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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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 In an unpublished memorandum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 In an unpublished memorandum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
58
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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