Commonwealth v. Walsh

J-S43042-15

2015 PA Super 222

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

THOMAS A. WALSH

Appellant No. 366 EDA 2015

Appeal from the PCRA Order January 9, 2015
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0004964-2003

BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.

OPINION BY GANTMAN, P.J.: FILED OCTOBER 23, 2015

Appellant, Thomas A. Walsh, appeals pro se from the order entered in

the Chester County Court of Common Pleas, which denied his motion for

DNA testing pursuant to Section 9543.1 of the Post Conviction Relief Act

(“PCRA”).1 We affirm.

The relevant facts of this case are as follows. On October 9, 2003,

Appellant was released from prison on parole following his convictions for

terroristic threats and harassment against his wife, Dinah Walsh (“Victim”).

A condition of Appellant’s sentence prohibited Appellant from having contact

with Victim. Additionally, on the date of his release, Appellant signed a form

describing the rules and regulations of parole, which precluded Appellant
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1
42 Pa.C.S.A. §§ 9541-9546.
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from having contact with Victim. Victim also had a protection from abuse

(“PFA”) order against Appellant at this time prohibiting Appellant from

having any contact with her. On or about October 12, 2003, neighbors

informed Victim they had seen Appellant driving through her neighborhood.

Victim subsequently contacted the police and Appellant’s parole officer to

report Appellant’s actions.

On October 15, 2003, at approximately 8:30 p.m., Appellant went to

Victim’s home and waited outside for her arrival. When Victim pulled into

her driveway, Appellant opened her car door and said: “Go to my [parole]

officer, will you, fucking bitch. You’re going to die.” (N.T. Trial, 5/6/04, at

87-88). Appellant then raised a claw hammer and began striking Victim as

she screamed for help. In addition to striking Victim with the hammer,

Appellant broke all of the windows and the sunroof of Victim’s vehicle.

Appellant and Victim’s daughter, Amber Walsh, heard Victim’s screams and

ran outside to help her mother. Ms. Walsh saw Appellant strike her mother

with the hammer on her eyebrow bone. Michael Carpenter, Ms. Walsh’s

boyfriend, came outside to help Victim as well and observed Appellant hitting

her with a hammer. One of Victim’s neighbors also intervened to help

Victim. Ultimately, Victim was able to free herself from the vehicle and ran

up the porch toward her home. As Victim climbed the steps to her porch,

Appellant grabbed her shirt and struck Victim in the back of the head with

the hammer. The assault continued until Ms. Walsh’s dog came outside and

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bit Appellant’s arm.

Appellant left Victim’s home and waited on the porch of a neighbor’s

home. Appellant was bleeding; and he informed his neighbor, Julie Jilek,

that his daughter’s dog had bitten him. Appellant also told Ms. Jilek he had

an argument with Victim and beat her up. Appellant said he was upset

because Victim had called his parole officer, and he “messed up big” and

smashed the windows of Victim’s car. (Id. at 4). Ms. Jilek informed

Appellant that he could wait on her porch until the police came, but

Appellant fled the scene before police arrived.

Trooper Aaron Botts arrived on the scene and pursued Appellant on

foot. A neighbor spotted Appellant and alerted the police to his

whereabouts. When Trooper Botts apprehended Appellant, Appellant

disclosed that his injuries were the result of a dog bite. Appellant admitted

he had “roughed [Victim] up a bit.” (Id. at 24). Appellant also said he

smashed the windows of Victim’s vehicle with a hammer because he was

angry that she had called his parole officer. Trooper Barry Searfoss also

responded to the scene. Trooper Searfoss located the hammer in a

neighbor’s yard, secured it, and placed it into evidence.

Appellant sought medical treatment for his injuries. Trooper Joanne

Dragotta spoke with Appellant at the hospital. Appellant told her: “I just lost

it. I had enough of this shit.” (Id. at 33). Appellant also stated: “[Y]ou

know why I did this, because she called my PO and I knew that I was going

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back to prison. I just want to go to prison now. Take me now.” (Id. at 33-

34). Appellant later said: “I just went off. You know why? Because she

called my PO when I drove by the house. And my sister told me, she was

looking for me, so I went there and boom, just went off. … I don’t care if I

get the lethal injection for this. I just flipped when I heard that bitch called

my PO.” (Id. at 34). Appellant made similar statements to Trooper David

Kennedy the following morning at the police barracks.

The Commonwealth charged Appellant with attempted murder,

aggravated assault, simple assault, possessing instruments of crime,

terroristic threats, and related offenses. Appellant proceeded to a jury trial

on May 6, 2004. The Commonwealth presented testimony/evidence from,

inter alia, Victim, Amber Walsh, Michael Carpenter, Julie Jilek, the

responding police officers, and Victim’s medical providers. The

Commonwealth also introduced the hammer as evidence. Appellant testified

in his own defense that he felt “mania” and “up rise” on the night in question

and simply lost control. Appellant claimed his actions were the result of

withdrawal symptoms from medication he had been taking while he was in

prison. Appellant admitted smashing all the windows and the sunroof in

Victim’s vehicle, but he denied that he ever struck Victim with the hammer.

Procedurally:

On May 7, 2004, a jury found [Appellant] guilty of
aggravated assault and multiple other crimes. [Appellant]
is currently serving a thirteen (13) to thirty-seven (37)
year prison sentence imposed on July 14, 2004. On

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September 13, 2005, the Superior Court affirmed his
judgment of sentence. On November 10, 2005, Appellant
filed his first petition under the [PCRA]. [The PCRA court]
dismissed this petition on August 14, 2006. The Superior
Court affirmed on August 27, 2007. The Supreme Court
denied Appellant’s petition for allowance of appeal on May
27, 2008.

On July 16, 2008, Appellant filed a second petition under
the [PCRA]. [The PCRA court] dismissed this petition on
September 3, 2008. The Superior Court affirmed on April
7, 2009, and the Supreme Court denied Appellant’s
petition for allowance of appeal on November 2, 2009.

On September 24, 2012, Appellant filed his third PCRA
petition. On October [4], 2012, after finding the petition
to be untimely, [the PCRA] court issued an order informing
Appellant of [the PCRA court’s] intent to dismiss his
petition without a hearing. Instead of responding to this
notice in court, Appellant filed a notice of appeal in the
Superior Court. On July 1, 2013, the Superior Court
quashed his appeal…. Upon remand of the record to [the
PCRA] court, [the court] again reviewed Appellant’s PCRA
petition. Finding his petition untimely, and no timeliness
exception applicable, [the PCRA court] dismissed
Appellant’s third petition on August 27, 2013. The
Superior Court affirmed on April 28, 2014.

Failing to obtain relief through these petitions, Appellant
then turned to 42 Pa.C.S.A. § 9543.1 “Postconviction DNA
Testing,” and on November 7, 2014, filed a motion
requesting that the hammer used in the attack on his wife
be tested to see if [V]ictim’s blood was present. The
Commonwealth responded to Appellant’s request on
December 9, 2014, and Appellant filed his rebuttal to the
Commonwealth’s answer on December 18, 2014. On
January 9, 2015, after finding that Appellant had failed to
establish entitlement to DNA testing, [the court] denied his
request.

(PCRA Court Opinion, filed on March 13, 2015, at 1-3) (internal citations

omitted). Appellant timely filed a notice of appeal on January 29, 2015. On

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February 3, 2015, the court ordered Appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant

timely complied on February 13, 2015.

Appellant raises the following issues for our review:

SHOULD TRIAL COUNSEL HAVE REQUESTED DNA RESULTS
THAT WOULD ESTABLISH [APPELLANT’S] INNOCENCE?

SHOULD TRIAL COUNSEL HAVE REQUESTED DNA RESULTS
TO VERIFY AN INJURY UNKNOWN TO THE DEFENSE AND
PRESENTED TO A JURY?

SHOULD TRIAL COUNSEL HAVE REQUESTED [A] PRE-
TRIAL [CONFERENCE]/SUPPRESSION HEARING
CONCERNING TESTIMONY REGARDING INJURIES TO THE
VICTIM, IN ORDER TO ESTABLISH INCONSISTENT
STATEMENTS ON HOW THE VICTIM ACQUIRED [HER]
INJURIES?

SHOULD TRIAL COUNSEL HAVE REQUESTED DNA RESULTS
THAT WOULD [HAVE] ESTABLISHED THAT THE VERDICT
IS AGAINST THE WEIGHT OF THE EVIDENCE?

IS THE PROSECUTION COMMITTING A BRADY[2]
VIOLATION BY CONCEALING DNA RESULTS?

(Appellant’s Brief at 4).

“[T]he PCRA’s one-year time bar does not apply to motions for the

performance of forensic DNA testing under Section 9543.1.”

Commonwealth v. Brooks, 875 A.2d 1141, 1146 (Pa.Super. 2005)

(emphasis in original). Importantly, however, “Section 9543.1 cannot be

used to raise extraneous issues not related to DNA testing in an effort to
____________________________________________

2
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

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avoid the one-year [PCRA] time bar.” Commonwealth v. Gandy, 38 A.3d

899, 905 (Pa.Super. 2012), appeal denied, 616 Pa. 651, 49 A.3d 442 (2012)

(internal citations omitted). See also Brooks, supra (explaining petitioner

must raise claims unrelated to motion for post-conviction DNA testing

separately in timely filed PCRA petition).

Instantly, the order on appeal implicates only the court’s denial of

Appellant’s post-conviction request for DNA testing pursuant to Section

9543.1. Nevertheless, Appellant attempts to advance on appeal new issues

outside his request for DNA testing. These issues, including Appellant’s

claims that trial counsel was ineffective for failing to request DNA testing

sooner, are unreviewable at this juncture. See Gandy, supra; Brooks,

supra. See also Commonwealth v. B. Williams, 35 A.3d 44, 50-51

(Pa.Super. 2011), appeal denied, 616 Pa. 467, 50 A.3d 121 (2012) (stating

petitioner who is unable to obtain DNA testing under Section 9543.1 can still

pursue ineffective assistance of counsel claim based on failure to request

DNA testing of evidence at trial, but only if PCRA petition is timely filed or

otherwise meets statutory exception to timeliness requirements). 3 Thus, we

will review only Appellant’s challenge to the court’s denial of his request for

DNA testing, which is the sole issue properly before us for review.
____________________________________________

3
More than one year has elapsed since Appellant’s judgment of sentence
became final. Consequently, Appellant must satisfy one of the PCRA’s
enumerated timeliness exceptions to obtain review of a future PCRA petition.
See 42 Pa.C.S.A. § 9545(b)(1).

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Appellant argues the jury convicted him of two counts of aggravated

assault based on the Commonwealth’s theory that Appellant struck Victim in

the head with a hammer. Appellant denies striking Victim with the hammer

and maintains that he struck only the vehicle sunroof with the hammer,

causing the glass to shatter and inflict Victim’s injuries. Appellant claims

Victim’s testimony that Appellant struck her directly with the hammer is

inconsistent with the medical records produced at trial showing Victim

suffered only minimal wounds.4 Appellant insists Victim’s DNA is not present

on the hammer. Appellant suggests the absence of Victim’s DNA on the

hammer would establish Appellant’s actual innocence for aggravated assault.

Appellant concludes the court erred by denying his request for post-

conviction DNA testing, and this Court must reverse. We disagree.

Our standard of review in this case is as follows:

Generally, the 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.

B. Williams, supra at 47 (internal citations omitted).

Requests for post-conviction DNA testing are governed by statute at
____________________________________________

4
Nothing in the record supports Appellant’s contention that Victim’s injuries
were “minimal.”

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42 Pa.C.S.A. § 9543.1, which provides in pertinent 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.

* * *

(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

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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

(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.

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(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), 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).

(2) Upon receipt of a petition filed under paragraph
(1), the court shall consider the petition along with any
answer filed by the Commonwealth and shall conduct a
hearing thereon.

(3) In any hearing on a petition for postconviction
relief filed under paragraph (1), the court shall
determine whether the exculpatory evidence resulting
from the DNA testing conducted under this section
would have changed the outcome of the trial as
required by section 9543(a)(2)(vi).

* * *

42 Pa.C.S.A. § 9543.1.

Thus, under Section 9543.1(a):

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,

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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.

B. Williams, supra at 49 (citing 42 Pa.C.S.A. § 9543.1(a)(2)). See also

Commonwealth v. Perry, 959 A.2d 932 (Pa.Super. 2008) (holding PCRA

counsel was not ineffective for declining to pursue post-conviction DNA

testing where technology for testing existed at time of trial, verdict came

after January 1, 1995, and court had not refused request for funds for

testing; consequently, appellant could not have met his threshold burden

under Section 9543.1(a)(2)).

Additionally:

The text of the statute set forth in Section 9543.1(c)(3)
and reinforced in Section 9543.1(d)(2) requires the
applicant to demonstrate that favorable results of the
requested DNA testing would establish the applicant’s
actual innocence of the crime of conviction. The statutory
standard to obtain testing requires more than conjecture
or speculation; it demands a prima facie case that the
DNA results, if exculpatory, would establish actual
innocence.

B. Williams, supra (emphasis added). See also Commonwealth v. G.

Williams, 909 A.2d 383 (Pa.Super. 2006) (affirming dismissal of request for

post-conviction DNA testing where appellant’s identity as perpetrator was

not at issue in rape case; appellant’s theory of case at trial was that he had

consensual sex with victim; because appellant’s participation was confirmed,

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DNA testing would not establish his innocence).

Significantly, in DNA testing cases, “an absence of evidence is not

evidence of absence.” Commonwealth v. Heilman, 867 A.2d 542, 547

(Pa.Super. 2005). See also B. Williams, supra (affirming trial court’s

denial of DNA testing where appellant failed to meet threshold requirements

for DNA testing, under Section 9543.1(a)(2), and did not demonstrate prima

facie case of “actual innocence”; even if appellant’s DNA were not found on

hat/wig, record contained overwhelming evidence of appellant’s guilt

including three unshakable eyewitnesses, appellant’s confession, and

appellant’s access to weapon used in crimes); Commonwealth v. Smith,

889 A.2d 582 (Pa.Super. 2005), appeal denied, 588 Pa. 769, 905 A.2d 500

(2006) (affirming denial of request for post-conviction DNA testing where

absence of appellant’s DNA from victim’s fingernails would not establish

appellant’s innocence of victim’s murder; nothing in record supported

appellant’s claim that victim would have scratched her assailant leaving DNA

evidence under her fingernails).

Further, Section 9543.1(d) requires the petitioner to make a timely

request for DNA testing. See 42 Pa.C.S.A. § 9543.1(d)(1)(iii). In analyzing

timeliness for purposes of Section 9543.1(d)(1)(iii), the court must consider

the facts of each case to determine whether the applicant’s request for post-

conviction DNA testing is to demonstrate his actual innocence or to delay the

execution of sentence or administration of justice. Commonwealth v.

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Edmiston, 619 Pa. 549, 578, 65 A.3d 339, 357 (2013), cert. denied, ___

U.S. ___, 134 S.Ct. 639, 187 L.Ed.2d 423 (2013). In Edmiston, the court

convicted the defendant of first-degree murder, rape, statutory rape and

involuntary deviate sexual intercourse. The defendant’s convictions

stemmed from events that occurred on October 5, 1988, after the defendant

kidnapped the two-year-old victim and inflicted gruesome injuries on her

before ultimately murdering her and leaving her body in a wooded area. On

October 5, 1989, a jury imposed a sentence of death for the defendant’s

crimes. On September 30, 2009, the defendant filed a motion for post-

conviction DNA testing. In analyzing whether the defendant’s request for

DNA testing was timely under Section 9543.1(d)(1)(iii), our Supreme Court

stated:

Although the PCRA court did not make the requisite finding
of timeliness, we see no need to remand for the court to
do so because, as explained below, our own review of the
record and circumstances surrounding [the defendant’s]
post-conviction DNA testing request leads to the
conclusion that this motion was untimely as a matter of
law and was forwarded only to delay further the execution
of the sentence. Notably, at the time of trial, [the
defendant] indicated that he was satisfied with the DNA
testing that had been conducted, and declined further
testing. Following conviction, as noted, the postconviction
DNA testing provision was enacted on September 8, 2002.
Thereafter, [the defendant’s] review as of right under the
PCRA concluded in 2004 with our decision in Edmiston
II,[5] without [his] seeking DNA testing. Moreover, he did
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5
See Commonwealth v. Edmiston, 578 Pa. 284, 851 A.2d 883 (2004)
(“Edmiston II”).

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not seek such testing as part of his second PCRA petition
(which caused his federal habeas corpus petition to be held
in stasis, thereby causing further delay), or as part of the
amendment or supplement to that petition. It was not
until after his second PCRA petition was nearing
completion that [the defendant] finally sought DNA testing.

[The defendant] has known of the existence of
physical evidence he now seeks to test since his trial
over twenty years ago. From that time to the
present he has been represented by counsel, who
knew of the statute, the technology, and the
evidence, and who were vigorously pursuing post-
conviction relief on his behalf. Under such
circumstances, courts should exercise a healthy
skepticism when faced with requests for DNA
testing.

This is especially true when, as here, careful
examination of the record reveals that [the
defendant] is not a likely candidate to be exonerated
by DNA testing.

* * *

Given [the vast] evidence [against the defendant], it is not
surprising [he] declined DNA testing at the time of trial,
following the inability of the preliminary, pre-trial DNA
tests to identify or inculpate [the defendant]; a decision to
seek further testing, of course, could have sealed [the
defendant’s] fate. That fact, in turn, is probative of the
delay and purpose of [the defendant’s] belated request for
DNA testing, forwarded only as his serial PCRA petition
was approaching conclusion. …

The statute limits post-trial testing for very salient
reasons: If post-trial testing were routinely available,
few would seek pre-trial testing; it would behoove
counsel to go to trial without testing, then seek DNA
testing if convicted, there being nothing but an up-
side to a convicted client. DNA testing that is
available cannot become after-discovered evidence,
and cannot be treated as a second chance lottery
ticket.

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* * *

The PCRA court also spoke of “advances in technology,”
but as the Commonwealth notes, the statute does not
make advances in technology an excuse for failing timely
to request DNA testing. The statute recognized that the
testing available at the time of its enactment was of
sufficient reliability that defendants could seek DNA
testing, in cases where good faith claims of innocence were
timely raised. [The defendant’s] guilty status has not
changed since his 1989 conviction; advances in technology
allegedly occurring after that date do not explain why he, if
truly innocent, did not seek immediate testing, or, at the
very least, testing available as technology improved during
the intervening years, rather than languishing on death
row, all the while being supposedly innocent.

* * *

Taking into consideration the strength of the
evidence proffered against [the defendant] at trial,
as the DNA testing provision explicitly requires, [the
defendant’s] deliberate decision at the time of trial
not to seek further scientific testing, his counsel’s
apparent decision not to seek DNA testing
throughout these lengthy post-conviction
proceedings, and the belated timing of the current
claim, it cannot reasonably be concluded that his
DNA testing motion was 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.”

Id. at 579-81, 65 A.3d at 357-59 (internal citations omitted) (emphasis

added). Thus, our Supreme Court affirmed the order denying post-

conviction DNA testing.6 Id. at 581-82, 65 A.3d at 359.

____________________________________________

6
The PCRA court denied the DNA testing request on different grounds.

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Instantly, Appellant’s trial took place on May 6-7, 2004. At trial, the

Commonwealth introduced testimony concerning Appellant’s assault on

Victim using a claw hammer and admitted into evidence the hammer used in

the attack. Thus, the evidence Appellant seeks to have DNA tested was

discovered and available before Appellant’s trial. Additionally, DNA testing

technology was available at the time of Appellant’s trial in 2004, the jury

reached its verdict after January 1, 1995, and the court did not refuse a

request for funds for DNA testing. Consequently, Appellant is unable to

satisfy the threshold requirements necessary to obtain post-conviction DNA

testing. See 42 Pa.C.S.A. § 9543.1(a)(2); B. Williams, supra; Perry,

supra.

Appellant has also failed to present a prima facie case demonstrating

his actual innocence. Appellant does not contest on appeal that he swung

the hammer at issue. Instead, Appellant claims he hit only the windows and

sunroof of Victim’s car with the hammer, but he did not strike Victim. The

trial court addressed Appellant’s claim of actual innocence as follows:

Appellant was found guilty of aggravated assault under
two subsections of 18 Pa.C.S.A. § 2702, (a)(1) and (a)(4).
A person is guilty of aggravated assault under 18 Pa.C.S.A.
§ 2702(a)(1) if he “attempts to cause serious bodily injury
to another, or causes such injury intentionally, knowingly
or recklessly….” Thus, a person can be found guilty of
aggravated assault if the Commonwealth proves, beyond a
reasonable doubt, that the defendant attempted to cause
the victim serious bodily injury. Aggravated assault does
not require proof that serious bodily injury was inflicted
but only that an attempt was made to cause such injury.

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A person is guilty of aggravated assault under 18 Pa.C.S.A.
§ 2702(a)(4) if he “attempts to cause or intentionally or
knowingly causes bodily injury to another with a deadly
weapon.” Thus, one can be guilty under this statute if one
attempts to cause bodily injury with a deadly weapon.

At trial, [V]ictim testified that on the evening of October
15, 2003, she pulled into her driveway and turned off her
car. She felt someone grab the car door and rip it open.
She then heard Appellant say: “Go to my probation officer,
will you, fucking bitch. You’re going to die.” Appellant
raised the claw hammer and [struck V]ictim in the area of
her left brow bone. Appellant then continued with his
attack on [V]ictim and on her car.

[V]ictim (and Appellant’s) daughter testified that on the
day of the incident she saw her father swing a hammer at
her mother and hit her mother on the eyebrow bone. She
also saw her father hitting her mother’s car with the
hammer and breaking the car’s windows while her mother
was still in the car.

Appellant himself testified that on the night of the incident
he felt a “mania…up rise,” and that he took the hammer
and smashed every window of [V]ictim’s car while [V]ictim
remained in the automobile. The last thing he struck was
the car’s sunroof, and then “all the glass fell on top of her.
It was like big chunks of it just busted right down in the
head.”

Appellant claims that DNA testing would reveal that the
blood on the hammer was his own, caused by a dog bite,
and thus he could be not guilty of the crime of aggravated
assault. Appellant is incorrect. The presence or absence
of [V]ictim’s blood on the hammer is immaterial to the
issue of whether Appellant attempted to cause serious
bodily injury, or attempted to cause bodily injury with a
deadly weapon. Accordingly, in the unlikely event that
DNA testing actually revealed the absence of [V]ictim’s
blood on the hammer, such evidence could not establish
Appellant’s actual innocence of the crime of aggravated
assault.

(PCRA Court Opinion at 3-5) (internal citations and some quotation marks

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omitted). We accept the court’s reasoning and conclusion that the absence

of Victim’s DNA on the hammer would not establish Appellant’s actual

innocence for aggravated assault. See 42 Pa.C.S.A. § 9543.1(c)(3); B.

Williams, supra; G. Williams, supra; Smith, supra; Heilman, supra.

Further, Appellant did not seek DNA testing of the hammer at the time

of his trial in 2004. Between 2005 and 2014, Appellant unsuccessfully

litigated three PCRA petitions, none of which requested DNA testing of the

hammer used in the attack. Appellant did not file the current request for

DNA testing of the hammer until November 7, 2014. In light of the

overwhelming evidence of Appellant’s guilt at trial (including Victim’s

testimony and testimony from several eyewitnesses who saw Appellant

strike Victim with the hammer), Appellant’s decision not to seek DNA testing

at the time of trial, Appellant’s failure to seek DNA testing throughout the

post-conviction proceedings in this case, and the belated timing of

Appellant’s current request for DNA testing, the record demonstrates that

Appellant’s motion for DNA testing is untimely for purposes of Section

9543.1(d). See 42 Pa.C.S.A. § 9543.1(d)(1)(iii); Edmiston, supra.

Based upon the foregoing, Appellant failed to satisfy the threshold

requirements to obtain DNA testing pursuant to Section 9543.1(a)(2); he did

not present a prima facie case of actual innocence pursuant to Section

9543.1(c)(3); and he failed to make his request for DNA testing in a timely

manner pursuant to Section 9543.1(d)(1)(iii). Therefore, the PCRA court

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properly denied Appellant’s motion for post-conviction DNA testing.7

Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/23/2015

____________________________________________

7
On April 22, 2015, Appellant filed a pro se motion in this Court for
transmission of the record pursuant to Pa.R.A.P. 1931, seeking a pre-trial
transcript dated May 5, 2004, trial transcripts dated May 6, 2004 and May 7,
2004, the sentencing transcript dated July 14, 2004, and all exhibits,
including photographs presented at trial. We have obtained the trial
transcripts necessary to dispose of Appellant’s claim on appeal. Regarding
the other transcripts/exhibits Appellant wants, Appellant fails to explain how
these documents are relevant to disposition of his appeal and their exclusion
from the certified record has not hampered our review. Thus, we deny
Appellant’s motion for transmission of the record.

Appellant filed another pro se motion with this Court on May 7, 2015, to
supplement an exhibit, in rebuttal to the Commonwealth’s brief. Appellant
contends the Commonwealth’s statement on appeal that Appellant
previously litigated his request for DNA testing is belied by the record. In
support of his position, Appellant seeks to supplement the record with the
PCRA court’s March 7, 2013 order dismissing an earlier request for DNA
testing (filed August 28, 2012) based on the pendency of Appellant’s appeal
from the order denying his third PCRA petition. The court’s March 7, 2013
order is absent from the certified record. Nevertheless, nothing in the
record supports the Commonwealth’s assertion that Appellant previously
litigated his request for DNA testing on the merits; and we do not deny
Appellant relief on this basis. Thus, we deny Appellant’s motion to
supplement the record.

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