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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
STACY GILBERT
Appellant No. 2361 EDA 2014
Appeal from the PCRA Order July 8, 2014
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0001524-2000
BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JANUARY 23, 2015
Appellant Stacy Gilbert appeals pro se from the order entered in the
Chester County Court of Common Pleas, which dismissed his petition filed for
relief pursuant to the Post Conviction Relief Act (“PCRA”) 1 and his motion for
post-conviction DNA testing,2 incorporated therein. We affirm.
On the appeal of the denial of his first PCRA petition, the PCRA court
accurately set forth the relevant facts and procedural history of this matter
as follows:
[Appellant] was charged by an [i]nformation filed April 20,
2000, with two counts of rape; one count of aggravated
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1
42 Pa.C.S. §§ 9541-9546.
2
42 Pa.C.S. § 9543.1.
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indecent assault; and one count of indecent assault.1[3]
[Appellant] pled guilty to these four counts pursuant to a
plea agreement. In addition, [Appellant] was found to
have violated the terms of his probation and parole in a
prior case.2 [Appellant] was sentenced on October 2, 2000
to fifteen to thirty [(15-30)] years to be served in the state
penitentiary.[4] [Appellant] did not file a direct appeal.
1
These charges stem from incidents that occurred
between August 1999 and April 2000. On two
separate occasions[, Appellant] had sexual
intercourse with a twelve year old victim, A.I.
Additionally, [Appellant] inserted a vibrator into the
vagina of victim A.I. and touched the breast of a
fourteen year old victim, K.P.
2
In the underlying case, [Appellant] was charged
and convicted of indecent assault and corruption of
minors. In that case, the victim was his niece. Over
a period of four years, [Appellant] victimized
preadolescents.
Trial Court 1925(a) Opinion on Appellant’s first PCRA appeal, filed
September 28, 2004, p. 1 (citations to the record omitted).
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3
18 Pa.C.S. §§ 3121(a)(2),(6), 3125(7), and 3126(a)(7), respectively.
4
The trial court sentenced Appellant to 7-14 years’ incarceration for his first
rape charge and 7-14 years’ incarceration for the second rape charge, to be
served consecutively. The court also sentenced Appellant to 5-10 years’
incarceration for aggravated indecent assault and 2½-5 years’ incarceration
for indecent assault, to be served concurrent to his sentence for the rape
charges. Additionally, for violating parole and probation in his prior case,
the court revoked Appellant’s parole and sentenced him to the 12 month
balance to run concurrently to an additional sentence of 1-2 years’
incarceration for violating his probation. The court imposed these
concurrent sentences consecutively to his rape sentence, for an aggregate
sentence of 15-30 years’ incarceration.
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On March 28, 2003, Appellant filed his first PCRA petition. On July 31,
2003, the court dismissed Appellant’s PCRA petition as untimely and granted
PCRA counsel’s petition to withdraw. Appellant appealed, and this Court
affirmed the order dismissing Appellant’s petition on March 1, 2005.
Commonwealth v. Stacy, No. 2591 EDA 2003, (Pa.Super.2005)
(unpublished memorandum). Appellant filed a second PCRA petition on April
19, 2005, which the court dismissed on June 22, 2005. Appellant did not
appeal the court’s order.
On April 10, 2014, Appellant filed the present PCRA petition, his third,
which incorporated a motion for DNA testing. On June 5, 2014, the trial
court issued a notice of intent to dismiss the PCRA petition pursuant to
Pa.R.Crim.P. 907. On July 8, 2014, the court dismissed the petition and
Appellant’s motion for DNA testing. On August 8, 2014, Appellant filed a
notice of appeal.5 The PCRA court did not order Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
and Appellant did not file one.
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5
Appellant labeled his “notice of appeal” “Brief for Appellee.” On August 11,
2014, the PCRA court ordered Appellant’s “Brief for Appellee” be considered
a notice of appeal of the court’s July 8, 2014 order dismissing his PCRA
petition and motion for DNA testing. In this order, the PCRA court also
adopted its opinion from the notice of intent to dismiss the PCRA petition,
filed on June 5, 2014, as its Rule 1925(a) opinion.
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In his handwritten “Brief for Appellee” filed on January 12, 2015,
Appellant lists 51 statements.6 Although Appellant fails to list individual
questions for review as required by the rules of appellate procedure,
because the PCRA court has already addressed Appellant’s essential issue,
we will summarize and address Appellant’s issue as follows: Whether the
trial court erred in denying his PCRA petition and his motion for post-
conviction DNA testing?
Appellant argues his motion for DNA testing was not a PCRA petition
and the court should not have dismissed it as untimely. He contends DNA
evidence would prove he did not rape his victim, he is entitled to have DNA
testing performed, and the court improperly denied him of his constitutional
rights. We disagree.
Our well-settled standard of review for orders denying PCRA relief is
“to determine whether the determination of the PCRA court is supported by
the evidence of record and is free of legal error. The PCRA court’s findings
will not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-192
(Pa.Super.2013) (internal quotations and citations omitted).
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6
Appellant lists these 51 statements three times, once under his “Statement
of Facks” section, once under his “Brief Statement of the order under
Review” section, and once under his “Summary of Argument” section. See
Appellant’s Brief at 1-6, 1-6, and 1-6.
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Primarily, we note that the timeliness of a PCRA petition implicates the
jurisdiction of both this Court and the PCRA court. Commonwealth v.
Williams, 35 A.3d 44, 52 (Pa.Super.2011), appeal denied, 50 A.3d 121
(Pa.2012). “Pennsylvania law makes clear that no court has jurisdiction to
hear an untimely PCRA petition.” Id. To “accord finality to the collateral
review process[,]” the PCRA “confers no authority upon [appellate courts] to
fashion ad hoc equitable exceptions to the PCRA timebar[.]”
Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011). With respect to
jurisdiction under the PCRA, this Court has further explained:
The most recent amendments to the PCRA...provide a
PCRA petition, including a second or subsequent petition,
shall be filed within one year of the date the underlying
judgment becomes final. A judgment is deemed final at
the conclusion of direct review, including discretionary
review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of
time for seeking the review.
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010)
(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011).
This Court may review a PCRA petition filed more than one year after the
judgment of sentence becomes final only if the claim falls within one of the
following three statutory exceptions, which the petitioner must plead and
prove:
(i) the failure to raise the claim was the result of
interference by government officials with the
presentation of the claim in violation of the Constitution
or laws of this Commonwealth or the Constitution or
laws of the United States;
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(ii) the facts upon which the claim is predicated were
unknown to the petitioner and could not have been
ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or
the Supreme Court of Pennsylvania after the time period
provided in this section and has been held by that court
to apply retroactively.
42 Pa.C.S. § 9545(b)(1). Further, if a petition pleads one of these
exceptions, the petition will not be considered unless it is “filed within 60
days of the date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2).
Additionally, a heightened standard applies to a second or subsequent
PCRA petition to avoid “serial requests for post-conviction relief.”
Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa.2011). A second or
subsequent PCRA petition “will not be entertained unless a strong prima
facie showing is offered to demonstrate that a miscarriage of justice may
have occurred.” Commonwealth v. Hawkins, 953 A.2d 1248, 1251
(Pa.2006). In a second or subsequent post-conviction proceeding, “all
issues are waived except those which implicate a defendant’s innocence or
which raise the possibility that the proceedings resulting in conviction were
so unfair that a miscarriage of justice which no civilized society can tolerate
occurred.” Commonwealth v. Williams, 660 A.2d 614, 618
(Pa.Super.1995).
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Motions for post-conviction DNA testing, however, “are clearly
separate and distinct from claims brought pursuant to other sections of the
PCRA.” Commonwealth v. Williams, 35 A.3d 44, 50 (Pa.Super.2011)
(quoting Commonwealth v. Perry, 959 A.2d 932, 938 (Pa.Super.2008)).
“This Court has consistently held the one-year jurisdictional time bar of the
PCRA does not apply to motions for DNA testing under Section 9543.1.” Id.
(internal citations omitted).
The statute that governs post-conviction DNA testing provides, in
relevant part:
§ 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.
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(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 the 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;
(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; and
* * *
(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
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(ii) DNA testing of the specific evidence, assuming
exculpatory results, would establish:
(A) the applicant’s actual innocence of the offense
for which the applicant was convicted;
* * *
(d) Order.-
(1) Except as provided in paragraph (2), the court shall
order the testing requested in a motion under subsection
(a) under reasonable conditions designed to preserve the
integrity of the evidence and the testing process upon a
determination, after review of the record of the applicant’s
trial, that the:
(i) requirements of subsection (c) have been met;
(ii) evidence to be tested has been subject to a chain of
custody sufficient to establish that it has not been
altered in any material respect; and
(iii) motion is made in a timely manner and for the
purpose of demonstrating the applicant’s actual
innocence and not to delay the execution of sentence or
administration of justice.
(2) The court shall not order the testing requested in a
motion under subsection (a) if, after review of the record
of the applicant’s trial, the court determines that there is
no reasonable possibility that the testing would produce
exculpatory evidence that:
(i) would establish the applicant’s actual innocence of the
offense for which the applicant was convicted;
* * *
(f) Posttesting procedures.-
(1) After the DNA testing conducted under this section has
been completed, the applicant may, pursuant to section
9545(b)(2) (relating to jurisdiction and proceedings),
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during the 60-day period beginning on the date on which
the applicant is notified of the test results, petition to the
court for postconviction relief pursuant to section
9543(a)(2)(vi) (relating to eligibility for relief).
42 Pa.C.S. § 9543.1(a), (b), (c), (d), (f).
We review an order denying a motion for post-conviction DNA testing
as follows:
[T]he trial court’s application of a statute is a question of
law that compels plenary review to determine whether the
court committed an error of law. When reviewing an order
denying a motion for post-conviction DNA testing, this
Court determines whether the movant satisfied the
statutory requirements listed in Section 9543.1. We can
affirm the court’s decision if there is any basis to support
it, even if we rely on different grounds to affirm.
Williams, 35 A.3d at 47 (internal citations omitted).
Regarding the post-conviction DNA statute, we observe:
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 was discovered prior to the applicant’s conviction,
it was not already DNA tested because (a) technology for
testing did not exist at the time of the applicant’s trial; (b)
the applicant’s counsel did not request testing in a case
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
despite the client’s indigency. Additionally, … [u]nder
section 9543.1(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
petitioner’s actual innocence of the crime. Under section
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 reasonable possibility that the testing would produce
exculpatory evidence to establish petitioner’s actual
innocence. From the clear words and plain meaning of
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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 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
petitioner’s actual innocence. We find no ambiguity in the
standard established by the legislature with the words of
this statute.
Williams, 35 A.3d at 49-50.
In dismissing Appellant’s PCRA petition and motion for post-conviction
DNA testing, the PCRA court reasoned as follows:
Here, [Appellant’s] guilty plea and sentencing took place
on October 2, 2000.… [Appellant] had until November 1,
2000 to appeal his conviction and sentencing. However,
[Appellant] failed to file a direct appeal in this case.
Because [Appellant] failed to file a direct appeal within the
requisite 30 days, the judgment of sentence became final
on November 1, 2000, creating a deadline for petitioning
for post-conviction relief of November 1, 2001. However,
[Appellant] filed the instant PCRA [p]etition on April 22,
2014, which is well beyond the one-year statutory
deadline. Moreover, [Appellant] fails to plead facts
evidencing that he meets one of the statutory exceptions
that would excuse the late filing. Because [Appellant’s]
petition is untimely, this court lacks jurisdiction over the
matter.
* * *
[Appellant’s] contention that he is entitled to post[-]
conviction DNA testing is not cognizable. First, DNA
testing existed at the time he entered into his guilty plea
on October 2, 2000. Because [Appellant’s] guilty plea
occurred after January 1, 1995, and the court did not
refuse a request for DNA testing, [Appellant] fails to
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establish any of the requirements to excuse his failure to
previously request DNA testing.
Secondly, [Appellant] fails to present a prima facie case
demonstrating that his identity or participation in the crime
was at issue, and that DNA testing would establish his
actual innocence of the offenses for which he was
convicted. [Appellant] admitted his guilt by entering guilty
pleas to the charged offenses. Specifically, the trial court
found the plea to be voluntarily, intelligently, and
knowingly entered. [Appellant] testified, during his plea
colloquy, that he was able to read, write, and understand
the English language and that he was not under any
condition that would prevent him from understanding the
nature and ramifications of his plea. The [c]ourt asked
[Appellant] “have you taken any alcohol, any drugs or any
controlled substances within the last 24 hours? Are you
suffering from any condition that would prevent you from
understanding what it is that I’m (Judge Mahon) saying or
what’s happening here today?” The [c]ourt also asked
[Appellant] whether he had been “forced,[”] “threatened,”
or “made any promises” to induce him into plead[ing]
guilty. [Appellant] responded, “No” to all of these
questions asked by the [c]ourt.
* * *
Because [Appellant] previously admitted that he was guilty
of the charged offenses, post-conviction DNA testing would
only serve to delay the execution of the sentence and the
administration of justice. This is especially true where, as
here, a cogent examination of the record reveals that
[Appellant] is not a likely candidate to be exonerated by
DNA testing. Furthermore, [b]ecause [Appellant’s] PCRA
petition is both untimely and fails to meet any of the
enumerated exceptions to this one-year timeliness
requirement; this [c]ourt is divested of jurisdiction over
this matter. Accordingly, [Appellant’s] petition is to be
dismissed.
PCRA Court’s Notice of Intent to Dismiss PCRA Petition Pursuant to
Pa.R.Crim.P. 907(1), filed June 5, 2014, pp. 4, 6 n.2.
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We agree with the PCRA court that Appellant failed to satisfy the time
limitation for his PCRA petition and failed to meet the statutory requirements
listed in Section 9543.1 for his post-conviction DNA testing motion.
Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/23/2015
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