J-S46027-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DONALD L. LAMEY
Appellant No. 30 MDA 2014
Appeal from the Order November 22, 2013
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0000842-1994
BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 11, 2014
Donald L. Lamey appeals, pro se, from the order of the Court of
Common Pleas of Centre County that denied his petition for post-conviction
DNA testing. After careful review, we affirm.
On direct appeal, this Court set forth the relevant underlying facts of
this case as follows:
On January 17, 1995, a jury found . . . Lamey . . . guilty of one
hundred and ninety-five (195) separate criminal offenses,
including sixty-two (62) counts of involuntary deviate sexual
intercourse, forty-four (44) counts of statutory rape, forty (40)
counts of aggravated indecent assault, forty (40) counts of
indecent assault, one (1) count of endangering welfare of
children, seven (7) counts of corruption of minors, and (1) count
of i
varied sexual encounters with his daughter, B.L., and her minor
friends. On June 8, 1995, the Honorable Charles C. Brown, Jr.,
sentenced Lamey to an aggregate of thirty-three and one-half
(33 ½) to sixty-
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Commonwealth v. Lamey, 685 A.2d 1044 (Pa. Super. 1996) (unpublished
memorandum).
father on her birth certificate, that Lamey cared for the child since birth and
Trial, 1/16/95 at 24, 26; N.T. Trial 1/17/15 at 51-52. B.L., who was thirteen
years old at the time of trial, testified that Lamey was not her biological
father, although she believed he was at the time the offenses occurred. N.T.
Trial, 1/16/15, at 26.
that Lamey was not her biological father. Id. at 287. The court denied the
motion, id. at 290, and on January 17, 1995, Lamey was convicted of incest
and the other offenses cited above.
On July 16, 1997, Lamey filed a timely petition under the Post
Conviction Relief Act (PCRA),1 which the court denied on April 22, 2003.
Commonwealth v. Lamey,
850 A.2d 10 (Pa. Super. 2004) (unpublished memorandum). The
appeal. Commonwealth v. Lamey, 858 A.2d 109 (Pa. 2004). In 2007,
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1
42 Pa.C.S. §§ 9541-9546.
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Lamey filed a second PCRA petition, which the PCRA court dismissed on
September 15, 2010. On appeal, we affirmed. Commonwealth v. Lamey,
32 A.3d 837 (Pa. Super. 2011) (unpublished memorandum).
On August 1, 2013, Lamey filed a motion under section 9543.1 of the
PCRA,2 seeking DNA testing of B.L. in order to establish that he is not her
biological father. The PCRA court denied the motion on November 22, 2013,
and this timely appeal followed.
Lamey raises the following issues for our review:
1.
for postconviction DNA testing.
2. Whether the lower court erred by stating [Lamey] has failed
to meet the requirements of 42 Pa.C.S. § 9543.1(a), as the
verdict was rendered after January 1, 1995.
3. Whether the lower court erred by not acknowledging that
[Lamey] meets [the] above-state[d] section for DNA testing,
which would prove he is not the biological father thus the
charge of 18 [Pa.C.S.] § 4302 (incest) does not apply making
[Lamey] innocent of said charge, and which he was
prejudiced for, at this trial.
-conviction DNA
testing, this Court determines whether the movant satisfied the statutory
Commonwealth v. Williams, B.,
35 A.3d 44, 47 (Pa. Super. 2011) (citation omitted).
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2
42 Pa.C.S. § 9543.1 (Postconviction DNA testing).
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Section 9543.1(a) of the PCRA provides, in relevant part:
(a) Motion-
(1) An individual convicted of a criminal offense in a
court of this Commonwealth and serving a term of
imprisonment . . . may apply by making a written
motion to the sentencing court for the performance
of forensic DNA testing of 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
he evidence
shall be available for testing as of the date of the
motion. If the evidence was discovered prior to the
been subject to the DNA testing requested because
the technology for testing was not in existence at the
seek testing at the time of a trial in a case where a
verdict was rendered on or before January 1, 1995,
court to pay for the testing because his client was
indigent and the court refused the request despite
42 Pa.C.S. § 9543.1(a).
Lamey argues that he is entitled to compare his DNA to that of his
gical father,
11. While an assertion of actual innocence is required under section
assert the a
of section 9543.1(a)(2) have not been met. Williams, B., supra at 51
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(appellant did not meet threshold elements of section 9543.1 because DNA
technology existed at time of trial, verdict rendered after January 1, 1995,
and trial court did not refuse request for funds to perform DNA testing;
Commonwealth v. Williams, R., 899 A.2d 1060 (Pa. 2006) (appellant
could not establish threshold elements because DNA technology existed at
time of trial, verdict was rendered after January 1, 1995, and trial court did
not refuse request by appellant to provide funding for DNA testing).
As in Williams, B., supra and Williams, R., supra, testing is not
available here because the technology for DNA testing existed at the time of
never sought funding from the court to allow Lamey to seek DNA testing.
Because the trial court properly held that Lamey did not meet the
threshold requirements of section 9543.1(2), he is not entitled to further
review.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/11/2014
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