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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
DAVID PEPE, : No. 3626 EDA 2017
:
Appellant :
Appeal from the PCRA Order, September 25, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0910301-1998
BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 23, 2018
David Pepe, a/k/a/ David Wilson and/or David Pepe Wilson, appeals
pro se from the September 25, 2017 order denying his serial petition filed
pursuant to the Post Conviction Relief Act (“PCRA”)1 as untimely. After
careful review, we affirm.
The lengthy factual history of this case was summarized by a prior
panel of this court on direct appeal and need not be reiterated here. See
Commonwealth v. Pepe, 778 A.2d 1246 (Pa.Super. 2001) (unpublished
memorandum at 1-3), appeal denied, 790 A.2d 1015 (Pa. 2001). In sum,
a jury found appellant guilty of rape, involuntary deviate sexual intercourse,
robbery, aggravated assault, kidnapping, possessing instruments of crime,
1 42 Pa.C.S.A. §§ 9541-9546.
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and terroristic threats2 after he repeatedly raped a woman and kept her
drugged and bound in a coffin-like box over the course of a three-day
period. On April 15, 1999, the trial court sentenced appellant to an
aggregate term of 55 to 110 years’ imprisonment. On May 15, 2001, a
panel of this court affirmed appellant’s judgment of sentence, and our
supreme court denied allowance of appeal on November 8, 2001. Id. On
November 1, 2002, appellant filed a pro se PCRA petition and
Paul M. George, Esq. (“PCRA counsel”), was appointed to represent him. On
July 28, 2003, PCRA counsel filed an amended PCRA petition on appellant’s
behalf, which was ultimately dismissed by the PCRA court on April 29, 2004.
On May 25, 2005, a panel of this court affirmed the dismissal of appellant’s
petition, and our supreme court denied allowance of appeal on October 6,
2005. Commonwealth v. Wilson, 880 A.2d 13 (Pa.Super. 2005), appeal
denied, 887 A.2d 1241 (Pa. 2005).
On January 27, 2006, appellant filed a second pro se PCRA petition.
On April 26, 2006, appellant filed a separate pro se motion for
post-conviction DNA testing, pursuant to 42 Pa.C.S.A. § 9543.1. On
September 22, 2006, the PCRA court dismissed appellant’s petition as
untimely. Appellant’s motion for DNA testing was subsequently dismissed by
the PCRA court on January 22, 2008. Appellant only appealed the dismissal
2 18 Pa.C.S.A. §§ 3121, 3123, 3701, 2702, 2901, 905, and 2706,
respectively.
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of his PCRA petition, and on July 21, 2008, a panel of this court affirmed the
PCRA court’s order and noted that the issue of DNA testing was not before
it; our supreme court denied allowance of appeal on February 4, 2009.
Commonwealth v. Wilson, 959 A.2d 976 (Pa.Super. 2008), appeal
denied, 964 A.2d 895 (Pa. 2009). Thereafter, on January 29, 2010,
appellant filed an additional pro se motion for post-conviction DNA testing,
pursuant to Section 9543.1. The PCRA court denied appellant’s motion on
February 5, 2010, and a panel of this court affirmed the denial of relief on
November 9, 2010; our supreme court denied allowance of appeal on
July 11, 2011. Commonwealth v. Wilson, 22 A.3d 1065 (Pa.Super.
2010), appeal denied, 24 A.3d 363 (Pa. 2011).
Appellant filed the instant pro se petition, styled as an “Application for
Relief,” on August 17, 2016. On June 29, 2017, the PCRA court provided
appellant with notice of its intention to dismiss his petition without a
hearing, pursuant to Rule 907. Appellant filed multiple pro se responses to
the PCRA court’s Rule 907 notice on July 26, August 18, August 30,
September 1, and September 12, 2017. Thereafter, on September 25,
2017, the PCRA court dismissed appellant’s petition as untimely. This timely
appeal followed on October 20, 2017. Although not ordered to do so,
appellant filed a concise statement of errors complained of on appeal, in
accordance with Pa.R.A.P. 1925(b), that same day. On January 2, 2018, the
PCRA court filed its Rule 1925(a) opinion.
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Before we address the merits of appellant’s arguments, we must first
consider the timeliness of appellant’s PCRA petition because it implicates the
jurisdiction of the PCRA court to consider it. Commonwealth v. Davis, 86
A.3d 883, 887 (Pa.Super. 2014) (citation omitted). It is well settled that all
PCRA petitions, including second and subsequent petitions, must be filed
within one year of when a defendant’s judgment of sentence becomes final.
See 42 Pa.C.S.A. § 9545(b)(1). Here, appellant’s judgment of sentence
became final on February 6, 2002, 90 days after the Supreme Court of
Pennsylvania denied allowance of appeal and the deadline for filing a petition
for writ of certiorari in the Supreme Court of the United States expired.
See 42 Pa.C.S.A. § 9545(b)(3) (providing “a judgment becomes final at the
conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review[]”). Accordingly, appellant had
until February 6, 2003, to file a timely PCRA petition. See 42 Pa.C.S.A.
§ 9545(b)(1). Appellant’s instant petition, filed August 17, 2016, is patently
untimely, and the PCRA court lacked jurisdiction to review it, unless
appellant alleged and proved one of the statutory exceptions to the time-bar
set forth in Section 9545(b)(1).
To invoke an exception under Section 9545(b)(1), a petitioner must
allege and prove:
(i) the failure to raise the claim previously was the
result of interference by government officials
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with the presentation of the claim in violation
of the Constitution or laws of this
Commonwealth or the Constitution or laws of
the United States;
(ii) the facts upon which the claim is predicated
were unknown to the petitioner and could not
have been ascertained by the exercise of due
diligence; or
(iii) the right asserted is a constitutional right that
was recognized by the Supreme Court of the
United States or the Supreme Court of
Pennsylvania after the time period provided in
this section and has been held by that court to
apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
Instantly, the record reveals that appellant failed to explicitly plead or
prove any of the statutory exceptions to the PCRA time-bar required to
invoke and preserve an otherwise timely petition. Accordingly, we lack
jurisdiction to review the merits of appellant’s claims. See Commonwealth
v. Callahan, 101 A.3d 118, 123 (Pa.Super. 2014) (holding, if a PCRA
petition is untimely on its face, or fails to meet one of the three statutory
exceptions to the time-bar, we lack jurisdiction to review it).
Appellant, however, alleges his innocence and contends that his
instant petition qualifies as a motion for post-conviction DNA testing
pursuant to Section 9543.1. (See appellant’s brief at 1; pro se PCRA
petition, 8/17/16 at 1.)
Motions for post-conviction DNA tests, while
considered post-conviction petitions under the PCRA,
are clearly separate and distinct from claims
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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 internal quotation marks omitted).
Section 9543.1 provides, 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.
....
(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
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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;
....
(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[.]
42 Pa.C.S.A. § 9543.1(a), (c).
To the extent appellant’s petition is construed as a motion for
post-conviction DNA testing, our review of the record reveals that appellant’s
serial request is duplicative of those raised in his three prior motions for
post-conviction DNA testing. As a panel of this court previously explained,
appellant failed to establish a prima facie case for DNA testing:
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The claim advanced by [a]ppellant here is the same
claim advanced in his previous motions for
post-conviction DNA testing. Appellant claims that
the victim at some point during the relevant period
had sex with two other men and that the victim and
those men conspired to rob him. This claim was fully
litigated at [a]ppellant’s first PCRA hearing and
rejected by the PCRA court. This Court upheld the
denial of the PCRA petition on appeal. Thus, in the
absence of any new evidence, which [a]ppellant has
not furnished, this claim is estopped under the law of
the case doctrine. Commonwealth v. King, 999
A.2d 598, 599 (Pa.Super. 2010) (explaining that the
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 earlier phases
of the matter.”).
Even if this were not the case, [a]ppellant’s claim
suffers from the same deficiencies as in his earlier
motions for post-conviction DNA testing. At trial,
[a]ppellant admitted that he had unprotected anal
sex with the victim and did not dispute that his
seminal fluid would be present on the victim and her
clothes. ([Notes of testimony,] 4/13/99 at
21-24).[Footnote] Thus, [a]ppellant’s identity or
participation in the crime was not an issue at trial.
Appellant’s motion for post-conviction DNA testing
does not meet the requirement of 42 Pa.C.S.A.
§ 9543.1(c)(3)(1). See Commonwealth v.
Williams, 909 A.2d 383, 386 (Pa.Super. 2006) (“We
find that the PCRA court properly dismissed Williams’
motion for DNA testing as Williams’ identity was not
at issue at trial--as mentioned, the very theory of
the defense, and the sum and substance of Williams’
own testimony, was that the sexual intercourse had
occurred and was consensual. Therefore, because
Williams’ participation was not at issue, the results of
the DNA testing would not establish his innocence.”).
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[Footnote] Appellant now disputes both
of these contentions but he is bound by
his worn trial testimony.
Commonwealth v. Wilson, 22 A.3d 1065 (Pa.Super. 2010) (unpublished
memorandum at 7-8), appeal denied, 24 A.3d 363 (Pa. 2011).
As recognized by the PCRA court, like his prior unsuccessful motions,
appellant has again failed to present any new evidence establishing a
prima facie case for DNA testing. (See PCRA court opinion, 1/2/18 at 5.)
Accordingly, for all the forgoing reasons, we discern no error on the part of
the PCRA court in dismissing appellant’s serial untimely petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/23/18
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