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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
Appellee :
v. :
:
JACQUIN JOHN CARR :
:
Appellant : No. 1204 MDA 2017
:
Appeal from the PCRA Order July 18, 2017
in the Court of Common Pleas of Lancaster County
Criminal Division at No.: CP-36-CR-0000255-2007
BEFORE: BOWES, J., MURRAY, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED MAY 30, 2018
Appellant, Jacquin John Carr, appeals pro se from the order denying his
motion for DNA testing pursuant to Section 9543.1 of the Post-Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
We take the factual and procedural history in this matter from our
review of the certified record. On March 12, 2008, following his jury trial,
Appellant was convicted of second-degree murder, and, on March 31, 2008,
he was sentenced to a term of life in prison. On May 27, 2009, this Court
affirmed the judgment of sentence, and our Supreme Court denied Appellant’s
petition for allowance of appeal on June 16, 2010. (See Commonwealth v.
Carr, 976 A.2d 1199 (Pa. Super. 2009) (unpublished memorandum), appeal
denied, 996 A.2d 1067 (Pa. 2010)). Appellant filed his first PCRA petition on
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* Retired Senior Judge assigned to the Superior Court.
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March 15, 2011, which the court denied on March 1, 2013. On April 15, 2014,
this Court dismissed Appellant’s appeal for failure to file a brief.
On July 17, 2017, Appellant filed the instant motion for DNA testing.
The PCRA court denied the motion on July 18, 2017. This timely appeal
followed.1
Appellant raises the following question for our review: “[Whether] the
[PCRA] court abused its discretion when it dismissed the petition filed by the
Appellant and pertaining to this instant case[?]” (Appellant’s Brief, at 3
(unnecessary capitalization omitted); see id. at 8-17). This issue does not
merit relief.
Initially, 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.
In the present matter, we are considering the PCRA court’s denial
of a request for DNA testing. In this context, the [timeliness] filing
requirements of 42 Pa.C.S.[A.] § 9545 have not yet been
implicated. . . .
Commonwealth v. Gacobano, 65 A.3d 416, 419 (Pa. Super. 2013)
(citations and quotation marks omitted).
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
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1Appellant filed his concise statement of matters complained of on appeal on
August 14, 2017. The trial court entered its opinion on September 22, 2017.
See Pa.R.A.P. 1925.
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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)
(citation omitted).
The applicable statutory provisions state, in relevant part, as follows:
(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
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(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
(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
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(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; . . .
42 Pa.C.S.A. § 9543.1(a), (c), (d).
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, 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:
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
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demands a prima facie case that the DNA results, if
exculpatory, would establish actual innocence.
Significantly, in DNA testing cases, an absence of evidence
is not evidence of absence. . . .
Walsh, supra at 1254–55 (case citations, quotation marks, and original
emphasis omitted; emphasis added).
Here, Appellant petitioned the PCRA court for DNA testing of two swabs
taken from the sidewalk of the crime scene, and blood on a cell phone dropped
by the victim.2 He claims that he did not ask for them to be tested earlier
because he did not know of their existence, and argues: “the DNA testing will
allow the Commonwealth to determine the real attacker who attempted to rob
the decedent and did kill the decedent.” (Appellant’s Brief, at 9) (most
capitalization omitted).
Appellant has failed to meet the threshold requirements for DNA testing
under Section 9543(a)(2). See 42 Pa.C.S.A. § 9543.1(a)(2). The swabs from
the sidewalk and the cell phone were discovered before Appellant’s trial in
2010, technology for DNA testing 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 id. Consequently, Appellant
has not met his threshold burden under Section 9543.1(a)(2). See Walsh,
supra at 1257 (concluding appellant unable to satisfy threshold requirements
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2The PCRA court observed that the swabs were taken from a public sidewalk
and were not admitted at trial, and no swabs were taken on the cell phone
collected from the crime scene. (See PCRA Court Opinion, 9/22/17, at
unnumbered page 3).
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necessary to obtain post-conviction DNA testing of evidence discovered and
available before trial where DNA testing technology was available at time of
trial, jury reached its verdict after January 1, 1995, and court did not refuse
request for funds for DNA testing).
Additionally, Appellant has failed to prove a prima facie case that the
testing would produce exculpatory evidence proving his actual innocence. See
id. at 1254-55; 42 Pa.C.S.A. § 9543.1(c)(3), (d)(2). The PCRA court found
that Appellant’s argument that the testing will reveal blood belonging to
someone other than himself does not establish a prima facie case because “an
averment that a [d]efendant’s DNA will be absent from the crime scene will
not justify testing under section 9543.1.” (PCRA Ct. Op., at unnumbered page
4) (footnote omitted) (citing cases). Upon review, we agree.
In sum, we conclude the PCRA court properly denied Appellant’s motion
for post-conviction DNA testing. See Gacobano, supra at 419. Accordingly,
we affirm the order of the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/30/18
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