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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
STANLEY ROOKER :
:
Appellant : No. 243 EDA 2020
Appeal from the PCRA Order Entered December 2, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0933461-1993
BEFORE: KUNSELMAN, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: Filed: November 25, 2020
Stanley Rooker (Appellant) takes this counseled appeal from the order
entered in the Philadelphia Court of Common Pleas denying his motion for DNA
testing.1 We first conclude counsel’s failure to file a court-ordered Pa.R.A.P.
1925(b) statement was per se ineffectiveness, for which Appellant is entitled
to immediate relief. Thus, we decline to find waiver, and instead consider the
merits of Appellant’s claims.2 We affirm.
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1 See 42 Pa.C.S. § 9543.1 (“Postconviction DNA testing”).
2 As we discuss infra, the trial court issued an opinion that addresses the
issues raised on appeal; thus, we decline to remand for counsel to file a Rule
1925(b) statement and the court to file a responsive opinion.
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Appellant was found guilty by a jury of murder of the first degree,3
possessing instruments of crime, and two counts of robbery.4 He was
sentenced to an aggregate term of life imprisonment on July 27, 1994. Trial
Ct. Op., 2/3/20, at 2 (unpaginated).
Twenty-four years later, on July 31, 2018, Appellant filed the underlying
pro se “Motion for Forensic DNA Testing of Evidence,”5 seeking “DNA testing
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3 18 Pa.C.S. § 2502(a).
4 18 Pa.C.S. §§ 907(a), 3701(a).
5This motion was entered on the trial docket as a “Post Conviction Relief Act
Petition.” Trial Docket at 1. However, as the trial court properly notes, a
post-conviction motion for DNA testing is to be reviewed under 42 Pa.C.S.
§ 9543.1, rather than the other statutory provisions of the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. This Court has explained:
An application for DNA testing should be made in a motion,
not in a PCRA petition. Though brought under the general rubric
of the PCRA, motions for post-conviction DNA testing are “clearly
separate and distinct from claims brought pursuant to other
sections of the PCRA.” 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. Another distinction of
motions for DNA testing is that Section 9543.1 does not confer a
right to counsel.
Importantly, a motion for post-conviction DNA testing does
not constitute a direct exception to the one year time limit for
filing a PCRA petition. Instead, it gives a convicted person a
vehicle “to first obtain DNA testing which could then be used within
a PCRA petition to establish new facts in order to satisfy the
requirements of an exception under 42 Pa.C.S.A. § 9545(b)(2).”
Commonwealth v. Williams, 35 A.3d 44, 50 (Pa. Super. 2011) (citations
omitted).
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of items and clothing from the crime scene collected by the” police.
Appellant’s Motion for Forensic DNA Testing of Evidence, 7/31/18, at 1. On
March 12, 2019, Appellant filed, pro se, a “nearly identical” motion. Trial Ct.
Op. at 2. The trial court issued an order on April 3, 2019, denying the motion.
Appellant did not initially appeal, but on May 23, 2019, filed a pro se PCRA
petition alleging he did not timely receive the court’s dismissal order. Present
counsel, Douglas Dolfman, Esquire (Counsel), entered his appearance on
Appellant’s behalf on September 30, 2019. On December 2, 2019, the court
reinstated Appellant’s right to file a notice of appeal nunc pro tunc.
On December 5, 2019, Appellant filed a timely counseled notice of
appeal. On December 19th, the court directed Appellant to file, within 21
days, a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. This
order advised: “Failure to comply with this Order will be deemed a waiver of
all issues.” Order, 12/19/19. However, no Rule 1925(b) statement appears
in the record nor on the trial docket.
The trial court issued an opinion on February 2, 2020, first suggesting
Appellant has waived his appellate issues for failure to comply with the Rule
1925(b) order. Trial Ct. Op. at 3-4. The court, however, also sets forth its
reasons for denying the motion for DNA testing — the petition failed to: (1)
present a prima facie case of actual innocence; and (2) state Appellant’s
consent to be tested and acknowledge that any data obtained from DNA
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testing may be entered in law enforcement databases and used to investigate
other crimes, in contravention of Subsection 9543.1(c)(1). Id. at 4-5.
We first consider the trial court’s suggestion of waiver under Rule 1925.
This Court has stated:
We are mindful that, in Commonwealth v. Lord, . . . 719 A.2d
306, 309 ([Pa.] 1998), our Supreme Court held that if an appellant
is directed to file a concise statement of matters to be raised on
appeal pursuant to Rule 1925(b), any issues not raised in that
statement are waived. In Commonwealth v. Butler, . . . 812
A.2d 631 ([Pa.] 2002), the Court further expanded on the Lord
holding, stating that waiver automatically applies when a Rule
1925(b) statement is not filed or if an issue is not included in the
Rule 1925(b) statement, even when the question of waiver has
not been raised by the other party, and even when the trial court
has chosen to overlook the failure by addressing the issues it
assumed would be raised.
However, our Supreme Court recently amended Rule 1925
and added a procedure for appellate courts to rectify a criminal
appellant’s failure to file a Rule 1925(b) statement[:]
* * *
(3) If an appellant in a criminal case was ordered to file
a Statement and failed to do so, such that the appellate
court is convinced that counsel has been per se
ineffective, the appellate court shall remand for the filing
of a Statement nunc pro tunc and for the preparation and
filing of an opinion by the judge.
Pa.R.A.P. 1925(c)(3). . . .
Commonwealth v. Scott, 952 A.2d 1190, 1191-92 (Pa. Super. 2008)
(paragraph break added).
Appellant’s brief does not address Counsel’s failure to file a court-
ordered Rule 1925(b) statement. Under Lord and Butler, we would conclude
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all of Appellant’s issues are accordingly waived. See Scott, 952 A.2d at 1191.
However, pursuant to amended Rule 1925(c)(3), we determine Counsel’s
failure to comply with the Rule 1925(b) order is per se ineffectiveness, for
which Appellant is entitled to immediate relief. See id.; see also
Commonwealth v. Bennett, 930 A.2d 1264, 1273 (Pa. 2007) (“[T]he failure
to file a requested . . . 1925(b) statement . . . is the functional equivalent of
having no counsel at all[ and such] deprivation requires a finding of
prejudice.”).
We could remand for Counsel to file a Rule 1925(b) statement and the
trial court to prepare an opinion. See Pa.R.A.P. 1925(c)(3). However, the
trial court has filed an opinion that addresses the issues presented in
Appellant’s brief.6 Accordingly, we decline to remand, and instead will proceed
to consider Appellant’s claims on appeal. See Commonwealth v. Boniella,
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6 Appellant’s brief identifies his appellate claims, immediately after
acknowledging the trial court’s Rule 1925(b) order, as follows:
On December 19, 2019, [the trial c]ourt ordered Appellant to file
a Concise Statement of Matters pursuant to Pa.R.A.P. 1925(b).
Appellant avers that (1) the trial judge erred as a matter of law
by denying Appellant’s Motion for DNA Testing due to his failure
to include consent to provide bodily fluid for use in the DNA
testing, (2) the trial judge erred in finding Appellant failed to
present a prima facie case of “actual innocence” and (3) the trial
judge failed to consider §9542.1 liberally in favor of Appellant.
Appellant’s Brief at 8-9.
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158 A.3d 162, 164 (Pa. Super. 2017) (“[W]here the trial court addresses the
issues raised in an untimely Rule 1925(b) statement, we need not remand but
may address the issues on their merits.”) (citation omitted).7
Appellant’s statement of questions involved raises one claim:
Did the trial court err in their denial of Appellants’ motion for DNA
testing?
Appellant’s Brief at 7. His argument section is divided into three sections.8
First, Appellant avers the trial court erred in finding his motion for DNA testing
failed “to explicitly state consent to provide bodily fluids for DNA testing,” as
required by Subsection 9543.1(c)(1)(ii). Id. at 11. In support, Appellant
reasons the court failed to consider Subsection 9543.1(g)(1), which provides
“[t]he filing of the motion shall constitute the applicant’s consent to provide
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7 Although Boniella addressed counsel’s untimely filing of a Rule 1925(b)
statement, Boniella also noted that both an untimely filing and the failure to
file any Rule 1925(b) statement constitute per se ineffectiveness. See
Boniella, 158 A.3d at 164. See also Commonwealth v. Rosado, 150 A.3d
425, 433 (Pa. 2016) (“[E]rrors which completely foreclose appellate review
amount to a constructive denial of counsel and thus ineffective assistance of
counsel per se, whereas those which only partially foreclose such review are
subject to the ordinary Strickland/Pierce framework [for an ineffective
assistance of counsel claim.]”). Accordingly, we apply the disposition in
Boniella to the instant appeal.
8 Appellant’s entire argument section spans two pages. Appellant’s Brief at
11-12. Each of the discussions under his three headings consists, in sum, of
three sentences. We remind Counsel: “The brief must support the claims with
pertinent discussion, with references to the record and with citations to legal
authorities. Pa.R.A.P. 2119(a), (b), (c).” Commonwealth v. Hardy, 918
A.2d 766, 771 (Pa. Super. 2007) (one citation omitted).
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samples of bodily fluid for . . . DNA testing.” Id. Next, Appellant asserts the
court erred in finding he failed to present a prima facie case of “actual
innocence,” where instead the “liberal” “threshold question is . . . not the
likelihood of proof of innocence, but whether it is within the realm of reason
that some result(s) could prove innocence.” Id., quoting In Re Payne, 129
A.3d 546 (Pa. Super. 2015) (en banc). Appellant then avers, in sum, “it is
within the realm of reason that the facts presented by Appellant in his motion
(namely, the existence of eye witness testimony which would be contradicted
by DNA evidence) could prove his innocence.” Appellant’s Brief at 11-12.
Finally, Appellant alleges the trial court failed to liberally consider his pro se
motion, and instead improperly “elevated form over substance . . . against the
purpose of . . . post-conviction DNA testing.” Id. at 12. No relief is due.
We note the relevant standard of review:
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. . . .
Williams, 35 A.3d at 47 (citations omitted).
Subsections 9543.1(a) and (c) sets forth the requirements of a motion
for post-conviction DNA testing, in pertinent part:
(a) Motion. —
* * *
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(6) The motion shall explain how, after review of the
record of the applicant’s trial, there is a reasonable possibility
if the applicant is under State supervision . . . that the testing
would produce exculpatory evidence that would establish:
(i) the applicant’s actual innocence of the offense for
which the applicant was convicted;
* * *
(c) Requirements. — In any motion . . . 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
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(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. § 9543.1(a)(6)(i), (c)(1)-(3). With respect to the requirements of
Subsection(a), Subsection (g) provides:
(g) Effect of motion. — The filing of a motion for forensic
DNA testing pursuant to subsection (a) shall have the following
effect:
(1) The filing of the motion shall constitute the applicant’s
consent to provide samples of bodily fluid for use in the DNA
testing. . . .
42 Pa.C.S. § 9543.1(g)(1).
Furthermore, we note: “When the words of a statute are clear and
unambiguous, we may not go beyond the plain meaning of the language of
the statute under the pretext of pursuing its spirit.” Commonwealth v.
Schultz, 116 A.3d 1116, 1120 (Pa. Super. 2015) (citations omitted). “[T]he
term shall is mandatory for purposes of statutory construction when a statute
is unambiguous[.]” Id. at 1121 (citation omitted).
Here, Appellant’s second pro se motion for DNA testing cited “items and
clothing from the crime scene:”
(1) victim’s clothing, (2) victim’s car, (3) [Appellant’s] blood, (4)
[Appellant’s] clothing (5) finger print, (6) skin cells, (7) fibers, (8)
samples [sic], (9) ballistic [sic], (10) gun powder, (11) female
clothing that was in the car with victim during the murder and
(12) blood test and finger print of the Commonwealth’s witnesses
that testified.
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Appellant’s Motion for Forensic DNA Testing of Evidence, 3/12/19, at 1
(unpaginated). Immediately thereafter, the motion avers:
The Commonwealth’s witnesses are the real killers that set-up
[Appellant] for another individual that shot the deceased. It is
imperative that DNA testing be conducted of the Commonwealth’s
witnesses regarding the crime scene. [Appellant has] the same
situation in Commonwealth v. Anthony Wright’s case.[9]
Id. at 1. Neither motion provides any particular explanation of what DNA
testing would show. Instead, the motion merely contends that on November
12, 2002, and March 4, 2014, Appellant requested the District Attorney’s
Office PCRA Unit Chief Supervisor to preserve the evidence collected from the
crime scene for DNA testing, but the Chief Supervisor did not respond. Id. at
3. The motion reasons:
If for some reason [the] Chief Supervisor . . . and the
Philadelphia Police Department Property Officer refuse or
destroyed any evidence without notifying [Appellant]. Which is to
ascertain whether he would like to perform any testify [sic] of the
victim’s clothing or other items requested within this motion for
Forensic DNA testing. It is evident that [Appellant] will have an
issue of “spoliation of evidence.” Which he will suffered [sic] an
irreparable injury to support his actual innocence to establish a
prima facie case. Which is to demonstrate that Forensic DNA
testing of the evidence assuming exculpatory results would
establish his actual innocence will be seeking for new trial.
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9 While Appellant provided no citation for any criminal case involving Anthony
Wright, it appears he is referring to Commonwealth v. Wright, 14 A.3d 798
(Pa. 2011). In that case, as Appellant discusses in his motion, the
Pennsylvania Supreme Court held that with respect to Section 9543.1’s
requirement for a showing of actual innocence, “a confession, even if
previously and finally adjudicated as voluntary, does not constitute a per se
bar to establishing a prima facie case [of actual innocence], and the convicted
person may, therefore, obtain DNA testing under Section 9543.1 if he or she
meets all of this statute’s pertinent requirements.” Id. at 800.
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Id. at 3-4.
Here, we agree with Appellant that while Subsection 9543.1(c)(1)(ii)
states that a motion “shall” “state that the applicant consents to provide
samples of bodily fluid for use in the DNA testing,” Subsection (g)(1) provides,
“[t]he filing of the motion shall constitute the applicant’s consent to provide
samples of bodily fluid for use in the DNA testing.” See 42 Pa.C.S. §
9543.1(c)(1)(ii), (g)(1); Appellant’s Brief at 11.
However, we agree with the trial court that Appellant’s pro se motions
failed to “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.” See 42 Pa.C.S. § 9543.1(c)(1)(iii); Trial Ct. Op. at 4. Appellant
contends the trial court “elevated form over substance,” and instead should
have reviewed his pro se motion “liberally.” Appellant’s Brief at 12. However,
the plain language of Section 9543.1(c) is clear and the term “shall” is
mandatory. See 42 Pa.C.S. § 9543.1(c)(1)(iii); Schultz, 116 A.3d at 1121.
On this basis alone we may affirm the order denying the motion.
Furthermore, we agree with the trial court that Appellant’s motion failed
to satisfy “the threshold requirement[ ]” of showing how DNA testing would
establish his actual innocence. See 42 Pa.C.S. § 9543.1(a)(6)(i); Trial Ct.
Op. at 4-5. This Court has reasoned:
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Section 9543.1 frequently incorporates, yet fails to define, the
term “actual innocence.” In [Commonwealth v. Conway, 14
A.3d 101 (Pa. Super. 2011),] this Court applied a definition of
‘actual innocence’ taken from “the United States Supreme Court
in its Opinion in Schlup v. Delo, 513 U.S. 298, 327, . . . (1995),
namely, that the newly discovered [DNA] evidence must make it
‘more likely than not that no reasonable juror would have found
him guilty beyond a reasonable doubt.’”
In re Payne, 129 A.3d at 556.
Appellant’s motion vaguely alleges “[t]he Commonwealth’s witnesses”
“are the real killers” who framed him for shooting the victim. Appellant’s
Motion for Forensic DNA Testing, 3/12/19, at 1. The motion, however, fails
to explain what exculpatory evidence would be produced by DNA testing, nor
particularly how DNA testing of the evidence and the unnamed
“Commonwealth’s witnesses” would establish his actual innocence. See 42
Pa.C.S. § 9543.1(a)(6)(i). For the foregoing reasons, we affirm the order of
the trial court denying Appellant’s motion for DNA testing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/20
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