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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
CLINTON HITNER, :
:
Appellant : No. 2719 EDA 2016
Appeal from the PCRA Order July 7, 2016
in the Court of Common Pleas of Bucks County,
Criminal Division, No(s): CP-09-CR-0002015-2004;
CP-09-CR-0002016-2004
BEFORE: OLSON, SOLANO and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: Filed May 19, 2017
Clinton Hitner (“Hitner”) appeals, pro se, from the Order dismissing his
Motion for Post-Conviction DNA Testing filed pursuant to Section 9543.1 of
the Post Conviction Relief Act (“PCRA”).1 We affirm.
Following a jury trial, Hitner was convicted of multiple counts of rape,
kidnapping, and related charges, arising from the rape of two women.2 On
October 6, 2005, Hitner was classified as a sexually violent predator, and the
trial court sentenced him to an aggregate term of 40 to 80 years in prison.
This Court affirmed Hitner’s judgment of sentence, and the Pennsylvania
Supreme Court denied allowance of appeal. See Commonwealth v.
1
See 42 Pa.C.S.A. §§ 9541-9546.
2
Hitner was charged on two separate dockets, which were consolidated prior
to trial.
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Hitner, 910 A.2d 721 (Pa. Super. 2006), appeal denied, 926 A.2d 441 (Pa.
2007).
Hitner subsequently filed two PCRA Petitions, which were denied.
Hitner filed the instant pro se Motion for Post-Conviction DNA Testing
on April 18, 2016. The PCRA court issued a Pa.R.Crim.P. 907 Notice, to
which Hitner, pro se, filed a Response. The PCRA court dismissed Hitner’s
Motion for Post-Conviction DNA Testing, noting that Hitner had failed to
allege how DNA testing would be exculpatory, or support his claim of actual
innocence. Hitner filed a timely Notice of Appeal.3
On appeal, Hitner raises the following question for our review: “Did
the PCRA court err in denying post[-]conviction DNA testing[,] which would
establish [Hitner’s] innocence?” Brief for Appellant at 5.
Hitner argues that “the Commonwealth knowingly, intentionally and
willfully omitted certain items of evidence from their request for DNA
testing[,]” and that, as a result, “the defense was unable to mount a reliable
defense … that would have resulted in … an acquittal of the kidnapping
offenses.” Id. at 7. Specifically, Hitner claims that the Commonwealth did
not submit samples from the trunk of his car for testing, despite one victim’s
claim that he had kidnapped her by forcing her into the trunk. Id. Hitner
asserts that under the pertinent statute, 42 Pa.C.S.A. § 9543.1, “[t]he only
recourse for the [c]ourt to deny this [Petition] … is to claim … that there is
3
The PCRA court did not order Hitner to file a Pa.R.A.P. 1925(b) Concise
Statement of matters complained of on appeal.
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no reasonable probability that the testing would produce exculpatory
evidence.” Brief for Appellant at 9.
Generally, the [PCRA] 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 [dismissing] 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.
Commonwealth v. Walsh, 125 A.3d 1248, 1252-53 (Pa. Super. 2015).
Initially,
[m]otions for post-conviction DNA tests, while considered post-
conviction petitions under the PCRA, are clearly separate and
distinct from claims pursuant to other sections of the PCRA. It is
well-recognized that the one-year time bar proscribed under the
PCRA does not apply to petitions for post-conviction DNA testing
under Section 9543.1.
Commonwealth v. Perry, 959 A.2d 932, 938 (Pa. Super. 2008) (citations
and quotation marks omitted).
To obtain post-conviction DNA testing under Section 9543.1, a
petitioner must prove the following:
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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42 Pa.C.S.A. § 9543.1(a)(2). In other words, “[a] petitioner [] does not
meet the requirements of [Section] 9543.1(a)(2) if the technology existed at
the time of his trial, the verdict was rendered after January 1, 1995, and the
court never refused funds for the testing.” Perry, 959 A.2d at 938-39
(citation, quotation marks and brackets omitted).
Additionally,
[u]nder [S]ection 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 [S]ection
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. … [T]here
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.
Commonwealth v. Williams, 35 A.3d 44, 49-50 (Pa. Super. 2011); see
also 42 Pa.C.S.A. § 9543.1(c)(3), (d)(2).
Here, Hitner has not satisfied the threshold requirements set forth
under Section 9543.1(a)(2). Evidence from Hitner’s vehicle would have
been available before his trial in 2005, the DNA technology was available at
the time of his trial, the verdict was rendered after January 1, 1995, and
there is no evidence that the trial court refused funds for DNA testing. See
42 Pa.C.S.A. § 9543.1(a)(2); see also Williams, 35 A.3d at 51 (affirming
PCRA court’s denial of request for post-conviction DNA testing because the
samples at issue were discovered prior to trial, technology for testing was
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available at the time of trial, the verdict was entered after January 1, 1995,
and the court did not refuse funds for testing).
Additionally, as the PCRA court noted,
the DNA evidence presented at trial, in conjunction with Hitner’s
admissions at trial, confirmed Hitner’s guilt. Human hairs from
one of the victims [were] found in Hitner’s car following his
arrest. Additionally, semen swabs from the same victim’s face
matched Hitner’s DNA. Finally, a penile swab from Hitner
contained the DNA of the second victim. … Hitner admitted to
having consensual sex with both women. Hitner has not provided
any facts alleging what DNA evidence could possibly be
discovered that would establish his innocence.
PCRA Court Opinion, 11/18/16, at 3 (paragraph break omitted); see also
Commonwealth v. Williams, 909 A.2d 383, 386 (Pa. Super. 2006)
(concluding that DNA testing would not establish appellant’s innocence,
where his identity was not at issue in rape trial, as his defense theory was
that the sexual intercourse had been consensual). Accordingly, the PCRA
court did not err in dismissing Hitner’s Motion for Post-Conviction DNA
Testing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/19/2017
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