Com. v. Brookins, J.

J-A15036-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOHN BROOKINS :
:
Appellant : No. 551 EDA 2020

Appeal from the PCRA Order Entered January 14, 2020
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0005060-1991

BEFORE: LAZARUS, J., KING, J., and STRASSBURGER, J.*

MEMORANDUM BY KING, J.: FILED OCTOBER 27, 2020

Appellant, John Brookins, appeals from the order entered in the Bucks

County Court of Common Pleas, which denied his motion for DNA testing

pursuant to Section 9543.1 of the Post Conviction Relief Act (“PCRA”).1 We

affirm.

This Court has previously set forth the relevant facts and procedural

history of this case as follows:

On July [17], 1992, a jury convicted Appellant of first-
degree murder. Appellant’s conviction stemmed from the
December 20, 1990 killing of [Victim], the mother of
Appellant’s girlfriend, Sharon…. [Victim]’s body was
discovered “lying partially on the couch [in her apartment]
with a pair of large scissors embedded in her chest.” An
autopsy revealed that [Victim] was not only stabbed in the
____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S.A. §§ 9541-9546
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chest, but also had “eight significant internal injuries,
including skull penetration consistent with an object such as
scissors, protruding wounds, and bone fractures.” The
forensic pathologist further stated that [Victim]’s hyoid bone
had been broken, opining that she had likely been strangled.

Several of Appellant’s fingerprints were discovered at the
scene, including a bloody print on a television remote
control found near [Victim]’s body. Additionally, letters
written between [Victim] and Appellant were found in the
apartment and indicated that the two had a romantic
relationship. The letters also evinced that Appellant and
[Victim] had also recently quarreled about money. When
Appellant was interviewed by police after the murder, he
gave varying accounts of what occurred on the night
[Victim] was killed. For instance, while he initially denied
seeing [Victim] the night she died, after being arrested and
confronted with the fingerprint evidence, Appellant admitted
that he had been inside [Victim]’s apartment the night of
the murder, but claimed that he left for a short time and
returned later to find her dead. He told police that he
touched [Victim]’s body, got blood on his hands, and then
touched several objects in the apartment, such as the
phone. However, he denied touching the television remote
control.

Appellant was charged with murder and proceeded to a jury
trial, where he attempted to convince the jury that
Sharon…murdered her mother. However, the jury rejected
Appellant’s version of events and convicted him of first-
degree murder on July 17, 1992. Following a penalty
hearing, Appellant was sentenced to life imprisonment. He
filed a timely notice of appeal with this Court, and after we
affirmed his judgment of sentence, our Supreme Court
denied his subsequent petition for permission to appeal.

On January 18, 2000, Appellant filed a pro se PCRA petition
and counsel was appointed. At this point, the procedural
history of Appellant’s case becomes tortuous, to say the
least, and we decline to reproduce the specifics herein.
Instead…it is only necessary to explain that for various
reasons—including the apparent carelessness of the court—
the litigation of Appellant’s PCRA petition did not commence
until the Honorable Rea B. Boylan of the Court of Common

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Pleas of Bucks County took over his case on November 24,
2008. While Judge Boylan attempted to conduct a PCRA
hearing shortly thereafter, due to continuance requests and
other filings by the parties, Judge Boylan was only able to
conduct a partial PCRA hearing on July 1, 2009, and did not
complete that proceeding until June 15, 2011. We also note
that in the meantime, on October 29, 2010, Appellant filed
a “Motion to Subject Seized Gloves for [DNA] Testing,”
which the court denied on April 27, 2011. On June 27,
2012, the court also denied Appellant’s PCRA petition.

Appellant filed a notice of appeal to this Court on July 23,
2012. …

Commonwealth v. Brookins, No. 2118 EDA 2012, at 1-4 (Pa.Super. filed

Sept. 5, 2013) (unpublished memorandum). This Court affirmed the denial

of PCRA relief on September 5, 2013, and our Supreme Court denied

allowance of appeal on March 24, 2014.

On June 27, 2019, Appellant filed through counsel the current petition

seeking DNA testing, per Section 9543.1 of the PCRA, of nineteen pieces of

evidence collected by law enforcement in connection with Victim’s murder.2

The PCRA court issued notice of its intent to dismiss the petition, pursuant to

____________________________________________

2 The PCRA court lists the items as follows: “The nineteen (19) items that
Appellant has requested DNA testing be performed upon include [Victim]’s
pants, shirt, bra, and sweater; two white sheets used to transport [Victim]’s
body; scissors embedded in [Victim]’s chest; [Victim]’s ten fingernail scrapes;
scissors recovered from under the coffee table; metal trophy piece; metal
trophy base; [Victim]’s blood sample; a 10’ x 10’ piece of carpet; “[scraping]
from [ceiling] chase…;” blood residue from scrapings of bloodstain on floor;
gloves seized from Paul Cottman’s car; [Victim]’s white purse; all the non-
Negroid hairs or hair fragments removed from [Victim]’s clothing, the white
sheets, the carpet and sofa cushions; and Sharon’s hair samples.” (PCRA
Court Opinion, filed February 25, 2020, at 6 n. 5).

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Pa.R.Crim.P. 907, on September 25, 2019, and denied the petition on January

14, 2020. On January 27, 2020, Appellant filed a timely notice of appeal and

a voluntary concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b).

Appellant raises two issues on appeal:

[Whether] the PCRA court erred…when it concluded
[Appellant]’s DNA testing motion is untimely[?]

[Whether] the PCRA court erred when it said there was no
reasonable probability modern DNA testing could produce
exculpatory results that would prove [Appellant]’s actual
innocence[?]

(Appellant’s Brief at 1).

In his first issue on appeal, Appellant argues the PCRA court erred in

concluding that his DNA testing motion was untimely under Section

9543.1(d)(1)(iii) and Commonwealth v. Edmiston, 619 Pa. 549, 65 A.3d

339 (2013), cert. denied, 571 U.S. 1026, 134 S.Ct. 639, 187 L.Ed.2d 423

(2013).3 Appellant contends the instant case is factually distinguishable from

Edmiston where, inter alia, Appellant is not on death row, Appellant has filed

only a single PCRA petition, and Appellant’s PCRA counsel failed to “vigorously”

represent him. Appellant further maintains the PCRA court did not “assume

____________________________________________

3 Our Supreme Court recently overruled Edmiston on grounds unrelated to
DNA testing. See Commonwealth v. Small, ___ A.3d ___, 2020 WL
5833781 (Pa. filed October 1, 2020) (expressly disavowing public record
presumption for purposes of analyzing “newly-discovered fact” exception to
PCRA time-bar).

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exculpatory results” as Section 9543.1 mandates. Instead, Appellant avers

the court presupposed DNA testing would inculpate him based on the

“overwhelming” trial evidence. Appellant additionally asserts the

Commonwealth would not be prejudiced if DNA testing links Sharon to Victim’s

murder and requires the Commonwealth to prosecute Sharon and re-

prosecute Appellant, as the Commonwealth can utilize the recorded testimony

of the witnesses presented at Appellant’s trial almost thirty years ago.

In his second issue, Appellant contends the PCRA court erred when it

concluded that there was no reasonable probability that DNA testing could

produce exculpatory results that would prove Appellant’s actual innocence.

Rather, Appellant insists that if Sharon’s DNA is discovered on two or more of

the items he requested for testing, it is “more likely than not” that a jury would

not have convicted him of first-degree murder. Appellant maintains that such

DNA evidence, coupled with the testimony of the six women who said Sharon

confessed to murdering Victim, would have destroyed the Commonwealth’s

theory that Appellant murdered Victim alone. Appellant concludes this Court

should vacate the PCRA court’s order and remand with instructions that DNA

testing be conducted. We disagree.

Our standard of review in this case is as follows:

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

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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. B. Williams, 35 A.3d 44, 47 (Pa.Super. 2011), appeal

denied, 616 Pa. 467, 50 A.3d 121 (2012) (internal citations and quotation

marks omitted).

Requests for post-conviction DNA testing are governed by statute at 42

Pa.C.S.A. § 9543.1, which provides in pertinent part:

§ 9543.1. Postconviction DNA testing

(a) Motion.−

(1) An individual convicted of a criminal offense in a
court of this Commonwealth may apply by making a
written motion to the sentencing court at any time 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 evidence was subject to the
testing, but newer technology could provide substantially
more accurate and substantially probative results, 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),

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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 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) in a sworn statement subject to the penalties under
18 Pa.C.S. §§ 4902 (relating to perjury) and 4903
(relating to false swearing), assert the applicant’s actual
innocence of the offense for which the applicant was
convicted and that the applicant seeks DNA testing for
the purpose of demonstrating the applicant’s actual
innocence; 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

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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

(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 for an applicant under State
supervision, or there is no reasonable probability for an
applicant not under State supervision, or after review of
the record of the applicant’s guilty plea, the court
determines that there is no reasonable probability, 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)(1)(i)-(iii), (c)(2)(i), (c)(3)(i)-(ii)(A), (d)(1)(i)-

(iii), (d)(2)(i).

Thus,

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
demands a prima facie case that the DNA results, if
exculpatory, would establish actual innocence.

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Commonwealth v. Walsh, 125 A.3d 1248, 1254-55 (Pa.Super. 2015)

(quoting B. Williams, supra). “If, after reviewing the record of petitioner’s

trial, the court determines that there is ‘no reasonable possibility that the

[DNA] testing would produce exculpatory evidence that would establish the

[petitioner’s] actual innocence,’ the court shall not order the testing.”

Commonwealth v. Smith, 889 A.2d 582, 583 (Pa.Super. 2005), appeal

denied, 588 Pa. 769, 905 A.2d 500 (2006); 42 Pa.C.S.A. § 9543.1(d)(2)(i).

Additionally, this 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. Conway, 14 A.3d 101, 108 n.2 (Pa.Super.

2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). Nevertheless, our

Supreme Court has analyzed the timeliness requirement under Section

9543.1(d)(1)(iii) and explained that when determining timeliness for DNA

testing motions, the PCRA court must consider the individual facts of each

case. Edmiston, supra. In concluding that the defendant in Edmiston did

not file his request for post-conviction DNA testing in a timely manner, the

Court reasoned:

Although the PCRA court did not make the requisite finding
of timeliness, we see no need to remand for the court to do
so because, as explained below, our own review of the
record and circumstances surrounding [the defendant’s]
post-conviction DNA testing request leads to the conclusion
that this motion was untimely as a matter of law and was
forwarded only to delay further the execution of the
sentence. Notably, at the time of trial, [the defendant]
indicated that he was satisfied with the DNA testing that had

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been conducted, and declined further testing. Following
conviction, as noted, the postconviction DNA testing
provision was enacted on September 8, 2002. Thereafter,
[the defendant’s] review as of right under the PCRA
concluded in 2004…without [his] seeking DNA testing.
Moreover, he did not seek such testing as part of his second
PCRA petition (which caused his federal habeas corpus
petition to be held in stasis, thereby causing further delay),
or as part of the amendment or supplement to that petition.
It was not until after his second PCRA petition was nearing
completion that [the defendant] finally sought DNA testing.

[The defendant] has known of the existence of physical
evidence he now seeks to test since his trial over twenty
years ago. From that time to the present he has been
represented by counsel, who knew of the statute, the
technology, and the evidence, and who were vigorously
pursuing post-conviction relief on his behalf. Under such
circumstances, courts should exercise a healthy skepticism
when faced with requests for DNA testing.

This is especially true when, as here, careful examination of
the record reveals that [the defendant] is not a likely
candidate to be exonerated by DNA testing.

Edmiston, supra at 579, 65 A.3d at 357.

Instantly, in addressing Appellant’s first issue concerning the timeliness

of his DNA testing motion, the PCRA court reasoned as follows:

We believe that Edmiston is similar and applicable to the
instant matter, and despite Appellant’s strenuous
arguments to the contrary, we have concluded that
Appellant is not a likely candidate to be exonerated by DNA
testing. For nearly thirty (30) years, Appellant has known
of the existence of the items he wishes to be tested, and in
fact he submitted a “Motion to Subject Seized Gloves for
[DNA] testing” over nine (9) years ago, on October 29,
2010. As noted previously, Judge Boylan denied that
motion on June 27, 2012. As Judge Boylan observed, it was
only speculation that those gloves may have even been
related to the murder of [Victim], and the results of any

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testing done on them would be far from sufficient to
establish a prima facie case of Appellant’s actual innocence.

Appellant initially only requested DNA testing of the
aforementioned pair of gloves, rather than the list of
nineteen (19) items he has identified in his current request
for DNA testing. That list now includes, in addition to those
gloves once again, the pair of scissors used as the murder
weapon. Since Appellant was obviously aware of the
availability of DNA testing when he made his initial request
to test the gloves, and he was aware that all of the evidence
regarding which he now seeks testing was available when
he made that request almost a decade ago, he could have
presumably identified and requested testing of all items
involved in [Victim]’s death that could provide potentially
exculpatory evidence, including those scissors, at that time
in 2010.

Appellant’s request for DNA testing of the gloves, however,
had the appearance of a fishing expedition designed solely
to sow doubt over his conviction based upon the possible
involvement of [Victim]’s daughter, Sharon…, in the murder
of her mother, [Victim]. Now, nine years later, Appellant is
apparently attempting to expand that fishing expedition, as
well as his evolving theory involving the participation of
Sharon…in the murder of her mother, by requesting
additional items be tested. Obviously, with the passage of
time, it may well be difficult and perhaps impossible to
ascertain or recreate the circumstances involving the
collection and observation of those items sought to be
tested.

Although Appellant has been sentenced to incarceration for
life without parole, and therefore his request cannot delay
the execution of his sentence, we are nevertheless, in
accordance with Edmiston, supra, extremely skeptical of
Appellant’s request. Accordingly, we find his request
untimely, and apparently made in furtherance of an evolving
and unpersuasive theory in support of a claim of actual
innocence.

(PCRA Court Opinion at 6-7) (internal footnote omitted). We agree with the

PCRA court’s analysis.

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The jury convicted Appellant of first-degree murder in 1992. Nearly

twenty years later, in 2010, Appellant filed his first motion for DNA testing,

listing only a pair of gloves. After the PCRA court denied that motion,

Appellant waited another nine years before he filed the current DNA testing

motion, listing an additional eighteen items, all of which Appellant has known

about for years. Thus, we agree with the PCRA court’s determination that

Appellant’s DNA testing motion is untimely. See 42 Pa.C.S.A. §

9543.1(d)(1)(iii); Edmiston, supra.

As for Appellant’s second issue concerning whether DNA testing would

produce exculpatory results, the PCRA court further reasoned:

In his most current version of the events surrounding the
murder of [Victim], Appellant now admits that he was
present at the murder scene, but alleges that he observed
Sharon…murder her mother. He therefore requests that the
nineteen items he has identified in his petition for DNA
testing be examined for traces of Sharon’s DNA, and/or the
absence of his DNA. What is striking about Appellant’s
request, and what he fails to acknowledge, is that it
represents an attempt to cast suspicion upon another
individual who may or may not have been involved in
[Victim]’s murder, and does absolutely nothing to dispel or
repudiate the overwhelming evidence upon which
Appellant’s guilt and subsequent conviction were based.

* * *

Despite the zealous advocacy of Appellant’s counsel and his
strenuous arguments concerning the recent advancements
in DNA testing technology, this [c]ourt is constrained to
conclude, based upon review of the factual record, that the
requested DNA testing of the nineteen items identified in
Appellant’s petition will not produce exculpatory evidence
that would establish his actual innocence. It is clear that
even if the requested testing did produce evidence of

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Sharon…’s DNA on those items, as he suggests in his
petition and supporting briefs, it would still not be sufficient
to dispel or repudiate the evidence…which the jury
undoubtedly relied upon when it concluded that Appellant
was guilty of First Degree Murder.

In other words, we recognize that if the testing requested
by Appellant did produce evidence of Sharon…’s DNA on
those particular items, that, in and of itself, would not be
sufficient to establish Appellant’s actual innocence, or even
prove that Sharon…was in fact the murderer. As the
Commonwealth observed, it would not be surprising to
discover DNA of [Victim]’s daughter on items belonging to
[Victim] since it was acknowledged, and expected, that
Sharon…frequently visited her mother in her apartment,
even if for the sole purpose of extracting money from her
for drugs.

It is apparent that Appellant’s request for DNA testing is also
based upon the presumption that his DNA would be absent
from the items he seeks to be tested. The Superior Court
of Pennsylvania, however, has routinely held that the
absence of the accused’s DNA, by itself, cannot satisfy
Section 9543.1(d)(2)(i)’s actual innocence standard. We
accordingly determined that the absence of Appellant’s DNA
on the subject items, by itself, would not demonstrate his
actual innocence or negate the substantial circumstantial
and physical evidence presented at his trial which the jury
presumably relied upon in convicting him of [Victim]’s
murder.

Appellant’s expressed strategy in these post-conviction
proceedings has been to attempt to cast doubt upon the
jury’s verdict and his conviction, with the ultimate objective
of achieving a new trial, by suggesting that [Victim]’s
daughter was the actual murderer while he coincidentally
happened upon the crime scene. He therefore posits that if
the jury has been exposed to any such evidence even
remotely supporting his theory, then the jury would have
been infused with sufficient reasonable doubt to render it
incapable of finding him guilty of murder. It is clear,
however, that Appellant’s theory does not present a prima
facie case wherein favorable results from the requested DNA
testing would establish Appellant’s actual innocence.

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Accordingly, we do not find Appellant’s DNA proffer to be a
sufficient or appropriate basis for granting his request for
DNA testing.

(PCRA Court Opinion at 7-10) (internal citations and quotation marks

omitted). Again, we agree with the PCRA court’s analysis of this issue. Even

if testing revealed the presence of Sharon’s DNA on the items, that would not

necessarily prove Appellant’s innocence. Furthermore, a lack of Appellant’s

DNA would not prove his innocence either, given the other evidence presented

at trial. Thus, the PCRA court correctly denied Appellant’s request for DNA

testing, as he failed to present a prima facie case of actual innocence. See

42 Pa.C.S.A. § 9543.1(c)(3)(ii)(A); Walsh, supra; Smith, supra.

Accordingly, we affirm the order denying Appellant’s motion.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/27/2020

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