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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
BRADLEY DWAYNE MOLCHANY :
:
Appellant : No. 3321 EDA 2019
Appeal from the Order Entered October 24, 2019
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0000957-2006
BEFORE: KUNSELMAN, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: Filed: November 25, 2020
Bradley Dwayne Molchany (Appellant) appeals pro se from the order1
entered in the Lehigh County Court of Common Pleas denying his post-
conviction motion for DNA testing under 42 Pa.C.S. § 9543.1.2 We agree with
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1Appellant’s notice of appeal purported to appeal from the trial court’s order
entered October 23, 2019. However, the order is time-stamped as “filed” on
October 24th, and the corresponding docket entry is likewise dated October
24th. We have amended the caption to reflect the date of the order as October
24, 2019.
2 This Court has explained:
Though brought under the general rubric of the [Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546], 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
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the trial court that Appellant has failed to show identity was an issue in this
matter, and has failed to show how DNA testing would produce exculpatory
evidence, as required by 42 Pa.C.S. § 9543.1(c)(3)(i)-(ii). Thus, we affirm.
On April 30, 2007, Appellant pleaded nolo contendere to aggravated
assault and indecent assault of a complainant less than 13 years of age.3
Although the underlying offenses were committed in 2000, the victim,
Appellant’s niece, H.S., did not report them to police until 2005.4 At the plea
hearing, the Commonwealth summarized:
[H.S.] would testify that in June of 2000, she was twelve years
old and she was left in the care of [Appellant] when her mother
went on a two week vacation[. During this time, Appellant] forced
her into a bedroom at knife point, . . . forced her to remove her
clothing, tied her hands to her neck, [and] taped her mouth with
duct tape [in such a way that] any time she tried to move, she
would end up choking herself. She [had] trouble breathing.
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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).
3 18 Pa.C.S. §§ 2702(a)(1), 3126(a)(7).
4 Appellant states the victim is his brother’s step-daughter. Appellant’s Brief
at 3. At the time of the plea hearing, Appellant was 40 years old. N.T.,
4/30/07, at 5.
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During the assault [Appellant] had sexual intercourse with her[
and] told [H.S.] that he would kill her if she screamed or told
anybody about this incident.
[H.S.] indicated that the following night, [Appellant] was
intoxicated[ and] told her to go into the bedroom, she refused to
go, he picked her up, dragged her into the bedroom, removed her
clothing, again tied her hands to her neck with a cord where[,]
when she moved her hands, she would end up choking herself,
taped her mouth with duct tape and again had intercourse with
her. [H.S.] indicated that [Appellant] threatened to kill her if she
told anybody this incident.
[Five years later, o]n August 25th of 2005, [Appellant] was
interviewed by State Police . . . . [H]e provided a statement
indicating that he had sexual intercourse with [H.S.] when she
was twelve years old.
N.T., 4/30/07, at 24-27 (paragraph breaks added).
On January 28, 2008, the trial court imposed an aggregate sentence of
three to six years’ imprisonment, to be followed by four years’ probation.5 The
court also found Appellant was a sexually violent predator. N.T., 1/28/08, at
26. He did not take a direct appeal.
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5 Six years thereafter, on November 13, 2014, the trial court revoked
Appellant’s probation on the ground he failed to complete sex offender
treatment. The court resentenced Appellant to a term of three to six years’
imprisonment, to be followed by eight years’ probation. Appellant appealed
from this judgment of sentence, and this Court affirmed on November 15,
2015. Commonwealth v. Molchany, 72 EDA 2015 (unpub. memo.) (Pa.
Super. 2015).
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Following unsuccessful, serial PCRA petitions,6 Appellant filed, on
September 30, 2019, the underlying pro se motion for post-conviction DNA
testing, along with a pro se “Motion to Vacate Judgment Pursuant to 42 Pa.C.S.
§ 6501 et seq.”7 Together, the two motions aver that: (1) in 2002, the victim
accused Appellant of sexual assault and accused Appellant’s then-fiancée of
stalking, kidnapping, and assault; (2) “on the same day as” these allegations,
the victim underwent a rape kit examination; and (3) it was ultimately
“concluded that [the victim] had fabricated the allegations” against Appellant’s
fiancée, and as a result, the victim received two years’ probation. Appellant’s
Motion to Vacate Judgment, 9/30/19, at 1 (unpaginated); Appellant’s Motion
for Post Conviction DNA Testing, 9/30/19, at 2-3 (unpaginated). The motions
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6 On January 21, 2009, Appellant filed a timely pro se PCRA petition. Counsel
was appointed and filed an amended petition, which was denied. On appeal,
this Court affirmed on June 16, 2010. Commonwealth v. Molchany, 2276
EDA 2009 (unpub. memo.) (Pa. Super. 2010).
Appellant filed two subsequent PCRA petitions, on October 10, 2016,
and March 23, 2018, respectively; both were denied. He appealed from the
December 9, 2016, order denying his second PCRA petition. That appeal,
however, was dismissed on November 16, 2017, for Appellant’s failure to file
a brief. Commonwealth v. Molchany, 198 EDA 2017 (order) (Pa. Super.
Nov. 16, 2017). Finally, we note Appellant filed a writ of habeas corpus in the
Pennsylvania Supreme Court on August 22, 2018, which was denied on
November 29, 2018. Commonwealth v. Molchany, 133 MM 2018 (order)
(Pa. Oct. 31, 2018).
7 Only the motion to vacate judgment was entered on the docket and time-
stamped as “Filed.” For citation purposes, we assign the same filing date to
Appellant’s motion for DNA testing.
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further assert that in 2005, the victim accused Appellant of sexual assault,
and on that same day, she underwent another rape kit examination. Appellant
sought DNA testing of the evidence collected from the victim’s alleged 2002
and 2005 medical examinations.8 Finally, we note Appellant’s motions claim
his statement to police was coerced and that his request for counsel, during
questioning, was denied.
The Commonwealth filed a response, reiterating that although Appellant
committed the underlying offenses in 2000, the victim did not report them
until 2006.9 Commonwealth’s Letter Response, 10/18/19, at 1 (unpaginated).
The Commonwealth maintains its “evidence in this case was primarily the
statement of the victim and [Appellant’s] own confession,” and denies that
any rape kit examination was performed or that any physical or DNA evidence
was ever collected. Commonwealth’s Letter Response, 10/18/19, at 1.
Furthermore, the Commonwealth argues Appellant’s motion failed to allege,
as required by 42 Pa.C.S. § 9543.1(c)(3)(i), any prima facie case that his
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8 Appellant’s motion also requested the appointment of counsel. However,
with respect to motions for DNA testing, “Section 9543.1 does not confer a
right to counsel.” Williams, 35 A.3d at 50.
9 We note, however, that Appellant gave a statement to police on August 25,
2005. See N.T., 4/30/07, at 26. Furthermore, we note the Commonwealth
characterized Appellant’s motion for DNA testing as a “fourth PCRA petition.”
Commonwealth’s Letter Response at 1. However, as stated above: “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.’” See Williams, 35 A.3d at 50 (citation omitted).
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identity was at issue, and instead, the victim knew and positively identified
Appellant. Id. at 2.
On October 24, 2019, the trial court issued the underlying order denying
Appellant’s motion for DNA testing. Appellant filed a timely pro se notice of
appeal on November 18th. That same day, the court directed Appellant to file
a Pa.R.A.P. 1925(b) statement of errors complained of on appeal within 21
days, or by Monday, December 9th.10 Appellant filed a pro se statement,
which was stamped by the court and entered on the docket on December 17th.
Preliminarily, we review the trial court’s suggestion that Appellant’s
issues should be found waived for an untimely Rule 1925(b) filing. See Order,
12/18/19. Rule 1925(b)(3) provides, “[A]ny issue not properly included in
the Statement timely filed and served pursuant to subdivision (b) shall be
deemed waived.” Pa.R.A.P. 1925(b)(3)(iv) (emphasis added).
As stated above, Appellant was directed to file a Rule 1925(b) statement
by December 9, 2019. The handwritten date next to his signature, on the
statement, is “12/10/2019,” and the statement itself is time-stamped and
entered on the docket as of December 17th. However, under the “prisoner
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10 The docket entry for the trial court’s November 18, 2019, Rule 1925(b)
order properly states the date and manner of service. See Pa.R.Crim.P.
114(C) (docket entries shall contain date of service of court order);
Commonwealth v. Hess, 810 A.2d 1249, 1255 (Pa. 2002) (declining to find
waiver for failure to file Rule 1925(b) statement where, inter alia, docket sheet
did not indicate date or manner of service of trial court’s Rule 1925(b) order,
in contravention of Pa.R.Crim.P. 114).
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mailbox rule,” “a pro se prisoner’s appeal shall be deemed to be filed on the
date that he delivers the appeal to prison authorities and/or places his notice
of appeal in the institutional mailbox.” Commonwealth v. Chambers, 35
A.3d 34, 39 (Pa. Super. 2011) (citation omitted). The certified electronic
record does not include an envelope or postage cancellation to allow
independent review by this panel as to when, notwithstanding the signature
line date, Appellant mailed the Rule 1925(b) statement. Finally, we note
Appellant does not address, let alone dispute, the trial court’s suggestion of
waiver under Rule 1925(b). We could remand for Appellant to present
evidence as to when he placed his Rule 1925(b) statement in the prison
mailbox, and for the trial court to determine whether the statement was timely
filed. See id. at 40. “In light of our disposition of [Appellant’s] substantive
argument, however, we conclude that it would be futile to do so. We turn to
that issue now.” See id.
For ease of review, we first note the relevant standard of review and the
pertinent provisions of Section 9543.1.
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).
When presented with a hybrid filing that comingles PCRA claims
and a request for DNA testing, the standard set forth in Section
9543.1 requires the court to address the DNA request first and
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foremost. A petitioner who is unable to obtain DNA testing under
Section 9543.1 can still pursue an ineffective assistance of counsel
claim under the PCRA for failure to request DNA testing of
evidence at trial, but only if the PCRA petition is timely filed or
otherwise meets one of the statutory exceptions to the timeliness
requirements.
Id. at 50-51.
Subsections 9543.1(a) and (c) set forth the following relevant
requirements of a motion for post-conviction DNA testing:
(a) Motion. —
* * *
(2) . . . The evidence shall be available for testing as of
the date of the motion. . . .
* * *
(c) Requirements. — In any motion . . . under penalty of
perjury, the applicant shall:
* * *
(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. § 9543.1(a)(2), (c)(3)(i)-(ii)(A). 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
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spirit.” Commonwealth v. Schultz, 116 A.3d 1116, 1120 (Pa. Super. 2015)
(citation omitted). “[T]he term shall is mandatory for purposes of statutory
construction when a statute is unambiguous[.]” Id. at 1121 (citation
omitted).
Here, the trial court cited several grounds for denying Appellant’s motion
for DNA testing. First, it reasoned: “Appellant’s conviction was based on
conduct that occurred 5 years prior to the initiation of a police investigation,”
and “there was no physical evidence in this case, including no evidence of
DNA, no evidence of [any] rape kit, and no biological material to compare any
DNA evidence.” Order, 10/24/19, at 1. The court also found Appellant failed
to “allege that his identity was at issue in this matter when the victim was
familiar with [him] and positively identified him as the perpetrator.” Id. at 2.
Finally, the court found Appellant “failed to present a prima facie case that
there is a reasonable probability that forensic DNA testing would produce
exculpatory evidence.” Id. at 1-2 (footnote omitted).
On appeal, Appellant does not address any of the trial court’s analysis.
Instead, his argument consists of the following claims:11 (1) “[t]he alleged
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11 Appellant’s pro se brief does not include a statement of questions presented
nor any legal authority in his argument section. We could find waiver of his
issues on these bases. See Pa.R.A.P. 2116(a) (“No question will be considered
unless it is stated in the statement of questions involved or is fairly suggested
thereby.”), 2119(a) (“The argument . . . shall have . . . such discussion and
citation of authorities as are deemed pertinent.”); Commonwealth v.
Johnson, 985 A.2d 915, 924 (Pa. 2009) (“[W]here an appellate brief fails to
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victim made her statements to police while being treated at the hospital for
alleged rape[, and e]vidence receipts [of her clothing and the rape kit] were
on file with the District Attorney’s office;” (2) the prosecutor committed a
Brady12 violation by omitting “the results of the medical exams and the
collected DNA evidence,” and thus violated Appellant’s rights to due process,
a fair trial, and confrontation of his accuser; (3) Appellant’s counsel failed to
call Detective Theresa Renko, who would have testified the victim’s 2000
allegations “were determined to be fabricated,” and thus the victim “received
a suspended sentence and [was] placed on [2] years probation; (4)
Appellant’s confession “during the 12 hour questioning by” police was coerced
and his right to counsel was denied; and (5) Appellant’s “re-sentencing . . .
for his failure to admit guilt during a therapy session or treatment program[ ]
violated [his] due process rights,” where he pleaded nolo contendere, under
which he was not required to admit guilt. Appellant’s Brief at 7-8 (some
capitalization removed). No relief is due.
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provide any discussion of a claim with citation to relevant authority or fails to
develop the issue in any other meaningful fashion capable of review, that claim
is waived.”). Nevertheless, because we can discern the gist of Appellant’s
arguments, we decline to find waiver.
12 “To establish a Brady violation, appellant must demonstrate that evidence
at issue ‘was favorable to him, because it was either exculpatory or could have
been used for impeachment; the prosecution either willfully or inadvertently
suppressed the evidence; and prejudice ensued.’” Interest of R.D., 44 A.3d
657, 675 (Pa. Super. 2012) (citation omitted); see Brady v. Maryland, 373
U.S. 83 (1963).
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First, we agree with the trial court that Appellant has not shown his
identity was at issue in this matter, as required by Subsection 9543.1(c)(3)(i).
See 42 Pa.C.S. § 9543.1(c)(3)(i) (motion “shall” present a prima facie case
that the identity of or participation in the crime by the perpetrator was at
issue); Schultz, 116 A.3d at 1121; Williams, 35 A.3d at 47; Order,
10/24/19, at 2. As stated above, the victim was Appellant’s niece and was in
his care when the offenses were committed, and Appellant’s motion for DNA
testing raised no claim to the contrary.
We further agree with the trial court that Appellant’s motion failed to
establish a prima facie case that DNA testing would establish his actual
innocence. See 42 Pa.C.S. § 9543.1(c)(3)(ii)(A); Order, 10/24/19, at 1. The
motion merely presents a bald conclusion that the victim was untruthful,
without discussion of what the DNA results would particularly show: “Post-
Conviction DNA testing will establish my innocence [i]n the following way(s):
It will prove once and for all that [the victim] fabricated the sexual assault
allegations[.]” See Appellant’s Motion for Post-Conviction DNA Testing at 3.
Finally, to the extent Appellant challenges the trial court’s finding that no DNA
evidence was collected, his argument fails. While he claims the victim
underwent rape kit examinations in 2002 and 2005, the offenses for which he
was convicted were committed in 2000. Appellant fails to explain how any
DNA evidence collected in 2002 and 2005 would relate to his offenses
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committed in 2000. For the foregoing reasons, we conclude the trial court did
not err in denying Appellant’s motion or DNA testing.
We also deny relief on Appellant’s remaining issues, relating to the
prosecutor’s alleged Brady violation, his statement to police, the victim’s
alleged prior bad acts, and his probation revocation sentence. These claims
are subject to the standard PCRA rubric, and we conclude they are waived
because they could have been raised in, respectively, a direct appeal from his
original judgment of sentence or in the appeal from his VOP sentence. See
42 Pa.C.S. § 9543(a)(3) (petitioner must plead and prove by a preponderance
of the evidence that allegation of error has not been waived), 9544(b) (issue
is waived if the petitioner could have raised it but failed to do so on appeal);
Commonwealth v. Spotz, 18 A.3d 244, 270 (Pa. 2011); Williams, 35 A.3d
at 50-51.
Additionally, any claim of ineffective assistance of counsel — relating to
the victim’s alleged fabrication of the offenses — could be raised under the
PCRA, but we conclude it is untimely under the PCRA’s timeliness
requirements. See Williams, 35 A.3d at 52 (“[N]o court has jurisdiction to
hear an untimely PCRA petition.”). Appellant’s original sentence was imposed
on January 28, 2008, and he did not take a direct appeal. Thus, his judgment
of sentence became final 30 days thereafter, on February 27, 2008, when the
time to file an appeal expired. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903.
Appellant then had one year, or until February 27, 2009, to file a timely PCRA
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petition. See 42 Pa.C.S. § 9545(b)(1). The underlying motions for DNA
testing and to vacate the judgment of sentence were filed more than 10 years
later, on September 30, 2019, and did not raise any of the exceptions to the
PCRA’s general one-year filing rule. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).
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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