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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
DONALD EUGENE WILES
Appellant No. 162 MDA 2016
Appeal from the PCRA Order December 29, 2015
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0001754-1989
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 06, 2016
Appellant, Donald Eugene Wiles, appeals from the order entered in the
Cumberland County Court of Common Pleas, which denied his motion for
DNA testing pursuant to § 9543.1 of the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. We affirm.
The relevant factual and procedural history is as follows. In 1990, a
jury convicted Wiles of first-degree murder and conspiracy. Thereafter, Wiles
was sentenced to life imprisonment. Wiles timely filed his first PCRA petition,
which the court subsequently denied. This Court affirmed Wiles’ judgment of
sentence on December 3, 1993. Our Supreme Court denied allocator.
Thereafter, Wiles filed three habeas corpus petitions, which were all
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*
Former Justice specially assigned to the Superior Court.
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dismissed by the United States District Court for the Middle District of
Pennsylvania. Wiles’ habeas corpus petition to our Supreme Court was also
dismissed. The PCRA court denied Wiles’ second and third PCRA petitions.
This Court affirmed both decisions.
On September 17, 2015, Wiles filed the instant post-conviction motion,
in which he sought DNA testing and fingerprint analysis of various items
found at the crime scene. Wiles requested the following items be tested: a
used condom, a used spoon and other utensils found in the kitchen area,
cigarette butts, skin cell residue from 3 unidentified fingerprints, and any
samples taken from material parts of the victim’s body. See Appellant’s
Request for DNA Testing and Fingerprint Analysis, 9/17/2015, at 5.
Following a hearing, the court denied the motion. This appeal followed.
On appeal, Wiles insists that the court erred in denying his motion for
DNA testing. We disagree.
“Post-conviction DNA testing falls under the aegis of the” PCRA.
Commonwealth v. Conway, 14 A.3d 101, 108 (Pa. Super. 2011) (citation
omitted). The one-year jurisdictional time bar that exists under the PCRA
does not apply to motions for the performance of DNA testing under §
9543.1. See id., at 108 n.2. “Rather, after DNA testing has been completed,
the applicant may, within 60 days of receiving the test results, petition to
the court for post-conviction relief on the basis of after-discovered evidence,
an exception to the one-year statute of limitations.” Id. (citation omitted).
Thus, at this time, there is no jurisdictional impediment to our review.
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“[O]ur standard of review permits us to consider only whether the
PCRA court’s determination is supported by the evidence of record and
whether it is free from legal error.” Id., at 108 (citation, internal quotations,
and footnote omitted). In reviewing an order denying a motion for post-
conviction DNA testing, this Court must determine whether the movant
satisfied the statutory requirements listed in § 9543.1. See id. Since the
resolution of this appeal involves statutory construction, which involves a
pure question of law, we apply a de novo standard and a plenary scope of
review. See id.
Section 9543.1 provides, in pertinent part, as follows.
(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.
42 Pa.C.S.A. § 9543.1(a)(1)-(2).
An individual seeking relief under this statute must
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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 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[.]
42 Pa.C.S.A. § 9543.1(c)(3)(i)-(ii)(A).
The statute also provides that a court shall not order DNA testing 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[.]
42 Pa.C.S.A. § 9543.1(d)(2)(i).
As provided in the statute, there are several threshold requirements to
obtain DNA testing, which are as follows.
(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.
Commonwealth v. Williams, 35 A.3d 44, 49 (Pa. Super. 2011). See also
42 Pa.C.S.A. § 9543.1(a)(2).
Additionally,
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[t]he legislature delineated a clear standard─and in fact
delineated certain portions of the standard twice. Under 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 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 (citation omitted).
Because Wiles’ case went to verdict before January 1, 1995, he meets
the threshold requirements for post-conviction DNA testing. Nevertheless,
after the PCRA court assessed the trial record, it determined that there was
not a reasonable possibility that DNA testing would produce exculpatory
evidence to establish Wiles’ actual innocence. The PCRA court explained that
[t]he fingerprints at the scene may have been left weeks or
months prior to the murder and consequently would not directly
establish Defendant’s innocence. Similarly, even if the DNA
evidence inside the condom belongs to another unidentified
party, that evidence would not establish Defendant’s innocence.
PCRA Court Opinion, 12/29/15, at 4.
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We agree. Although Wiles claims that the DNA evidence will establish
his innocence, he fails to provide any evidentiary basis to infer that the
fingerprints at the scene or the DNA found in the condom were left by the
“true” perpetrator of the crime. Given the circumstances of the case and the
speculative nature of Wiles’ claim, the PCRA court concluded that DNA
testing would not establish his actual innocence. In that respect, the court
reasoned that
during the trial, the Commonwealth relied primarily on witnesses
to prove Defendant’s guilt. The Commonwealth did not rely on
DNA evidence or fingerprints. It does not appear to be disputed
that simply testing the evidence would not directly establish
Defendant’s innocence but further investigation would be
required. We therefore cannot agree with Defendant’s assertion
that testing the requested evidence will lead to exculpatory
results, and find it more likely that there is no reasonable
possibility that testing would produce exculpatory evidence.
Id., at 4-5.
The PCRA court’s reasoning is sound. At trial, Wiles’ co-conspirator
provided eyewitness testimony regarding Wiles’ involvement in the crime.
Thus, the evidence against Wiles was more than just circumstantial.
Compare Conway, 14 A.3d at 112-113 (reversing court’s decision to deny
DNA testing and holding reasonable possibility existed that DNA testing
could prove applicant’s actual innocence sufficient to warrant testing, where
evidence produced at trial, except for testimony from jailhouse informant,
was wholly circumstantial, and where the victim’s clothing was ripped in
such a way that indicated extensive contact with the hands of her assailant).
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Under the facts and circumstances of the instant case, we have no
reason to disturb the court’s decision to deny Wiles’ request for DNA testing.
Accordingly, we affirm the court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/6/2016
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