J-S37045-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LEE HERBERT WAGNER
Appellant No. 103 WDA 2016
Appeal from the Order January 5, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0011280-1996
BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.
MEMORANDUM BY LAZARUS, J.: FILED JUNE 28, 2016
Lee Herbert Wagner appeals from the order, entered in the Court of
Common Pleas of Allegheny County, which dismissed his petition pursuant to
the Post Conviction Relief Act (PCRA).1 After careful review, we affirm.
The trial court summarized the facts underlying Wagner’s convictions
for aggravated indecent assault and indecent assault as follows:
On August 9, 1996, [Wagner] met Chelsea Whitney, a woman
with whom he had been conversing by telephone for the
previous two weeks, at Station Square in the City of Pittsburgh.
After having dinner, [Wagner] and Ms. Whitney went to Mt.
Washington and then to Ms. Whitney’s apartment. At the
apartment, the parties engaged in kissing, which became violent
when [Wagner] ignored Ms. Whitney’s requests that he stop[.]
[Wagner] pinned Ms. Whitney to the sofa, ripped off her
____________________________________________
1
42 Pa.C.S. §§ 9541-9546.
J-S37045-16
pantyhose, and touched her vagina. After doing so, he left and
Ms. Whitney reported the incident to the police two days later.
Trial Court Opinion, 2/1/16, at 4.
The procedural history leading to the instant PCRA petition, the latest
in a series of such petitions, involves the following. On May 7, 1996, after a
jury found Wagner guilty of the above offenses, the trial court determined
Wagner to be a sexually violent predator pursuant to Megan’s Law2 and
sentenced him to a term of five years’ to life imprisonment. Wagner filed a
direct appeal, which resulted in Wagner receiving a new sentence due to the
unconstitutionality of portions of Megan’s Law. Wagner was resentenced on
December 16, 1998, to a term of five to ten years’ imprisonment. Wagner’s
judgment of sentence was affirmed on appeal on July 21, 2000. See
Commonwealth v. Wagner, 761 A.2d 1240 (Pa. Super. 2000)
(unpublished memorandum). Wagner did not file a petition for allowance of
appeal in the Pennsylvania Supreme Court.
Wagner filed a pro se PCRA petition on August 3, 2000. Counsel was
appointed and an amended petition was filed, alleging ineffective assistance
of counsel. After an evidentiary hearing was held on March 22, 2002, the
PCRA court dismissed the petition on April 4, 2002. This Court affirmed the
____________________________________________
2
Megan’s Law previously provided for the registration of sexual offenders
and was codified at 42 Pa.C.S § 9791 et seq. Megan’s Law was replaced
with the current law, the Sexual Offender Registration and Notification Act
(SORNA). See 42 Pa.C.S. §§ 9799.10-9799.41.
-2-
J-S37045-16
PCRA court’s order on July 2, 2003, and the Pennsylvania Supreme Court
denied Wagner’s petition for allowance of appeal on December 16, 2003.
See Commonwealth v. Wagner, 832 A.2d 545 (Pa. Super. 2003)
(unpublished memorandum), appeal denied, 841 A.2d 531 (Pa. 2003).
On January 28, 2006, Wagner filed a second pro se PCRA petition, in
which he requested DNA testing of certain evidence produced at trial. New
counsel was appointed, and a motion for post-conviction DNA testing was
filed on May 18, 2006. On November 13, 2006, the PCRA court dismissed
the motion without a hearing. A panel of this Court affirmed the dismissal.
See Commonwealth v. Wagner, 945 A.2d 771 (Pa. Super. 2007)
(unpublished memorandum), appeal denied, 952 A.2d 677 (Pa. 2008).
On July 17, 2008, Wagner filed a third pro se PCRA petition, in which
he argued that the Commonwealth withheld a statement made by the victim
to a Pittsburgh Action Against Rape (“PAAR”) representative. Wagner
asserted that this failure to disclose amounted to a violation of his
constitutional rights. On September 18, 2008, the PCRA court dismissed the
petition without a hearing. Wagner did not file an appeal following the
dismissal.
On January 27, 2011, Wagner filed a fourth pro se PCRA petition,
including a second motion for DNA testing. The PCRA court entered a
Pa.R.Crim.P. 907 notice of intent to dismiss without a hearing on February
22, 2011, and dismissed the PCRA petition on March 21, 2011. The
-3-
J-S37045-16
dismissal was affirmed on appeal to this Court. See Commonwealth v.
Wagner, 46 A.3d 812 (Pa. Super. 2012) (unpublished memorandum).
Wagner filed a fifth pro se PCRA petition on August 7, 2012. Following
the entry of a notice of intent to dismiss without a hearing pursuant to Rule
907, the PCRA court dismissed the petition on October 11, 2012. Wagner
did not file an appeal.
On September 9, 2015, Wagner filed the instant, counseled petition
requesting post-conviction DNA testing pursuant to the PCRA. The PCRA
court issued a Rule 907 notice of intent to dismiss the petition without a
hearing and entered a final order dismissing the petition on January 5, 2016.
Wagner filed a timely notice of appeal and concise statement of issues raised
on appeal pursuant to Pa.R.A.P. 1925(b).
On appeal, Wagner raises the following issue for our consideration:
Did the trial court err in denying [Wagner’s] motion for
performance of forensic DNA testing pursuant to 42 Pa.C.S. §
9543.1 since the request for DNA testing has not been properly
previously litigated since [Wagner] respectfully avers that the
trial court and Superior Court had relied upon the erroneous
assumption that [Wagner] admitted to sexual activities, other
than kissing, with the victim, but the record indicates that he
never admitted to anyt[h]ing more than kissing, and never
admitted to ripping her pantyhose and inserting his fingers into
her vagina. Hence, the absence of [Wagner’s] DNA at the tear
hole in the crotch area of the pantyhose would exonerate him of
the crime of aggravated indecent assault since his conviction was
based up[on] the alleged insertion of two of [Wagner’s] fingers
into the victim’s vagina, but to have accomplished that he would
have had to first have forcibly ripped through the victim’s
pantyhose (and that action would have deposited his skin
follicles on the pantyhose)?
-4-
J-S37045-16
Brief for Appellant, at 3.
We note that,
when examining the propriety of an order resolving a request for
DNA testing, we employ the PCRA standard of review. On
appeal from the denial of PCRA relief, our standard of review
calls for us to determine whether the ruling of the PCRA court is
supported by the record and free of legal error.
Commonwealth v. Gacobano, 65 A.3d 416, 419 (Pa. Super. 2013)
(citations omitted). Where we are considering the PCRA court’s denial of a
request for DNA testing, we note that
the filing requirements of 42 Pa.C.S. § 9545 have not yet been
implicated. . . . Post[-]conviction DNA testing does not directly
create an exception to § 9545’s one-year time bar. Rather[,] it
allows for a convicted individual to first obtain DNA testing which
could then be used within a PCRA petition to establish new facts
in order to satisfy the requirements of an exception under 42
Pa.C.S. § 9545(b)(2).
Id. (citations omitted). Indeed, “[t]his 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.” Commonwealth v. Williams, 35 A.3d 44,
50 (Pa. Super. 2011).
Although Wagner’s petition seeking DNA testing does not fall under the
timeliness requirements of typical PCRA petitions, the instant request is
nevertheless barred by the law of the case doctrine. As we noted in
Gacobano,
[t]he law of the case doctrine refers to a family of rules which
embody the concept that a court involved in the later phases of
a litigated matter should not reopen questions decided by
another judge of that same court or by a higher court in the
-5-
J-S37045-16
earlier phases of the matter. . . . [W]hen an appellate court has
considered and decided a question submitted to it upon appeal,
it will not, upon a subsequent appeal on another phase of the
case, reverse its previous ruling.
Gacobano, supra at 419-20.
Instantly, Wagner has submitted a petition for DNA testing for the
third time. Wagner has made substantially the same argument in each
petition. Wagner’s initial DNA testing request was dismissed by the PCRA
court, was rejected by a panel of this Court, and was denied review by the
Pennsylvania Supreme Court. Likewise, Wagner’s second DNA testing
request was dismissed by the PCRA court, and the dismissal was affirmed by
a panel of this Court. Accordingly, Wagner’s claim has been fully litigated
and under the law of the case, we will not reverse our previous rulings.
Gacobano, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/2016
-6-