Com. v. Batson, N.

J-S04010-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NADERA BATSON :
:
Appellant : No. 1182 EDA 2021

Appeal from the PCRA Order Entered April 29, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000123-2012

BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 15, 2022

Appellant, Nadera Batson, appeals pro se from the order dismissing her

motion for DNA testing filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. In 2013, Appellant was sentenced to an

aggregate term of 28½ - 57 years’ imprisonment, following her conviction for

third-degree murder, conspiracy, and related offenses. At trial, the

Commonwealth’s evidence established that Appellant and her co-defendant

essentially tortured and ultimately killed JaQuinn Brewton (“JaQuinn” or “the

decedent”), a three-year-old boy left in their care. Pursuant to Section 9543.1

of the PCRA, Appellant filed a motion for DNA testing (“DNA Motion”) of several

items seized from her home during the investigation into JaQuinn’s untimely

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* Former Justice specially assigned to the Superior Court.
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death. Appellant now appeals the order denying that motion. After careful

review, we affirm.

A full recitation of the facts adduced at trial can be found in this Court’s

memorandum decision affirming Appellant’s judgment of sentence on direct

appeal. See Commonwealth v. Batson, No. 299 EDA 2014, unpublished

memorandum at 1-4 (Pa. Super. filed June 23, 2015) (quoting Trial Court

Opinion, 3/2/14, at 2-5, 7). An abridged summary of those facts follows:

Appellant and her boyfriend, co-defendant Marcus King (“King”), took three-

year-old JaQuinn, Appellant’s godson, into their care in March of 2011.

According to King, Appellant would abuse JaQuinn almost daily, often for little

or no reason. She would hit JaQuinn with her hands, but at other times she

would strike him with a belt, brush, or shoe. Appellant would abuse JaQuinn

when the toddler touched something that he was not supposed to touch, or

when he had accidents because he was not potty-trained. Appellant would

also instruct the child to keep his hands down to prevent him from protecting

himself from her blows. King admitted to abusing JaQuinn as well; however,

he also claimed that he occasionally intervened to protect the boy from

Appellant due to the severity of her abuse. Appellant’s frequent abuse of

JaQuinn was also corroborated by a neighbor, who testified that he heard

Appellant beating JaQuinn at least four times a week during the Spring of

2011, and that Appellant would play loud music to drown out JaQuinn’s

screams.

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The abuse escalated, as Appellant burned JaQuinn’s feet so badly with

a hot liquid that the child could not walk for weeks. On another occasion, King

watched Appellant burn JaQuinn’s buttocks with a kitchen blowtorch because

the child had failed to reach the potty in time. Out of fear of being arrested,

Appellant and King did not seek medical attention for JaQuinn on either

occasion, despite medical testimony that established that these burns must

have caused extreme pain.

On June 29, 2011, the Philadelphia Fire Department, responding to a

911 call, discovered JaQuinn in a squalid bedroom in Appellant’s home. He

was not breathing, and they could not detect a pulse. Appellant claimed

JaQuinn had fallen down a flight of stairs, although the stairs in question were

heavily padded, and injuries all over JaQuinn’s body aroused further suspicion

by the responders. At the hospital, doctors were able to restart JaQuinn’s

heart, but he never regained consciousness, and he ultimately died on July

12, 2011.

The attending medical team discovered a myriad of significant injuries

on JaQuinn’s body, including evidence of second-degree burns that had begun

to heal on his legs and feet, which were consistent with a hot liquid spill, but

inconsistent with Appellant’s claim that the boy had stepped into a hot tub,

because, inter alia, there were no burns on the soles of his feet. They also

discovered a still-open, irregular-shaped burn wound on the boy’s buttocks

that was consistent with the use of a blowtorch as described by King. It was

determined that JaQuinn ultimately died due to blunt force trauma to his

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abdomen, which had caused lacerations on his pancreas and spleen, and

bruises on his liver. These internal injuries occurred at different times,

probably a few days apart, and were inconsistent with injuries from the fall

downstairs as Appellant had claimed. JaQuinn did not have injuries to his

head and extremities that would normally accompany such a fall, whereas his

internal injuries were far more consistent with a concentrated blow to

abdomen, such as from a punch by an adult. King testified at trial that

Appellant had beaten JaQuinn on the night before the 911 call because the

child would not stay in bed.

On August 12, 2013, a jury convicted Appellant of third-degree murder,

criminal conspiracy (homicide), endangering the welfare of a child, and

possessing an instrument of crime. On December 18, 2013, the trial court

sentenced Appellant as indicated above, and Appellant subsequently filed a

direct appeal. This Court affirmed Appellant’s judgment of sentence, and our

Supreme Court declined further review. Commonwealth v. Batson, 122

A.3d 1140 (Pa. Super. 2015) (unpublished memorandum), appeal denied, 129

A.3d 1240 (Pa. 2015). Appellant previously filed an untimely PCRA petition

on March 31, 2017, which was denied by the PCRA court on September 21,

2017. Appellant filed a timely appeal therefrom, but that appeal was

ultimately dismissed on February 22, 2019, due to Appellant’s failure to file a

brief.

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Appellant filed the at-issue DNA Motion on October 6, 2020, and counsel

was appointed. Appointed counsel ultimately filed a Turner/Finley1 letter on

March 4, 2021 and a petition to withdraw as counsel. On March 11, 2021, the

PCRA court issued notice to Appellant, pursuant to Pa.R.Crim.P. 907, of the

court’s intent to dismiss the DNA petition. Appellant did not file a response to

the court’s Rule 907 notice. On April 29, 2021, the court dismissed the DNA

Motion, and granted counsel’s motion to withdraw. Appellant effectively filed

a timely, pro se notice of appeal on May 29, 2021.2 The PCRA court did not

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1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).

2 On June 2, 2021, Appellant’s pro se notice of appeal was filed. The notice
of appeal was due by Tuesday, June 1, 2021. See Pa.R.A.P. 903(a) (stating
notice of appeal shall be filed within 30 days after the entry of the order from
which the appeal is taken); 1 Pa.C.S. § 1908 (whenever the last day of the
appeal period falls on a weekend or on any legal holiday, such day shall be
omitted from the computation of time). Appellant, who is incarcerated, dated
the pro se notice of appeal May 29, 2021. On August 20, 2021, this Court
issued a rule to show cause why the appeal should not be quashed as
untimely. Appellant filed a pro se response on August 30, 2021, providing
documentation of a cash slip from the Department of Corrections, indicating
that Appellant mailed her notice of appeal on May 29, 2021, corroborating the
date on the notice itself. Notably, the Commonwealth does not dispute that
Appellant submitted her notice of appeal to prison authorities for mailing on
that date. Nevertheless, independent of the documentation provided by
Appellant, it is virtually certain that Appellant mailed the notice of appeal from
prison on or before the due date, given that it was received by the court on
the day after it was due. By operation of the prisoner mailbox-rule, we deem
Appellant’s notice of appeal to have been timely filed on May 29, 2021. See
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (defining the
prisoner-mailbox rule, which provides that “when the appellant is (a) acting
pro se and (b) incarcerated at the time he or she seeks to file an appeal,
justice requires the appeal to be deemed ‘filed’ on the date that the appellant
(Footnote Continued Next Page)

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order Appellant to file a Pa.R.A.P. 1925(b) statement. The court issued its

Rule 1925(a) opinion on April 29, 2021.

Appellant now presents the following questions for our review:

A. Did the [PCRA c]ourt err in denying Appellant’s Motion for DNA
and Biological Evidence Testing?

B. Did the [t]rial [c]ourt err in allowing co[-]defendant Marcus
King to be the main evidence against Appellant when his
testimony should never have been admitted or impeached by
defense counsel?

Appellant’s Brief at 4.

A.

In her first issue, Appellant asserts that the PCRA court erred when it

denied her DNA Motion. Specifically, Appellant contends that the PCRA court

should have ordered DNA testing of a rape kit performed on JaQuinn, and on

three items seized from Appellant’s residence: a comb, a mop, and a kitchen

blowtorch. The PCRA court denied the motion, reasoning that Appellant failed

to “present a prima facie case that her identity as the perpetrator is at issue[,]

or that [favorable results from] DNA testing would prove her actual

innocence.” PCRA Court Opinion (“PCO”), 4/29/21, at 4.

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

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deposits the appeal with prison authorities and/or places it in the prison
mailbox”).

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Section 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. Williams, 35 A.3d 44, 47 (Pa. Super. 2011) (cleaned

up).

As is pertinent to the PCRA court’s analysis,

[t]he 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.

Id. at 50 (citations omitted).

Here, the PCRA court determined that none of the proposed testing

could potentially establish Appellant’s actual innocence of the crimes for which

she was convicted, reasoning as follows:

[Appellant] filed a Motion to Compel Production of DNA and
Biological material to have DNA testing performed on the
decedent’s rape kit, a mop, hairbrush, [and] blowtorch…,
recovered during the pretrial investigation. Pursuant to [Section]
9543.1, a petitioner requesting postconviction DNA testing must
make a prima facie showing that the identity of or participation in
the crime by the perpetrator was at issue in the proceedings, and
DNA testing of the specific evidence, assuming exculpatory
evidence, would establish her actual innocence. 42 Pa.C.S. §
9543.1(c); Commonwealth v. Robinson, 239 A.3d 154 (Pa.
Super. 2020). A successful prima facie showing will vary with the
circumstances of each case. Id. (citing In re Payne, 129 A.3d
546, 559 (Pa. Super. 2015)). A court cannot order DNA testing if
there is no reasonable possibility that favorable DNA test results
would establish actual innocence. Id.; see Payne, 129 A.3d at
563.

The absence of a petitioner’s DNA at the crime scene alone is not
sufficient to establish actual innocence. Commonwealth v.
Tyler, 234 A.3d 750, 754 (Pa. Super. 2020); accord

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Commonwealth v. Heilman, 867 A.2d 542, 547 (Pa. Super.
2005)[]. A petitioner must present additional evidence, in support
of her absence of DNA, to establish actual innocence. Id.

[Appellant]’s claim fails because she cannot present a prima facie
case that her identity as the perpetrator is at issue or that DNA
testing would prove her actual innocence. At trial, the
Commonwealth presented overwhelming evidence of her guilt,
showing that [Appellant] murdered the decedent after a four-
month-long period of continual, unspeakable abuse. On June 29,
2011, when firefighters responded to the call that the decedent
had fallen down the stairs, [Appellant] was home alone with the
unresponsive decedent, who was lying face down on the floor of
her apartment. While [Appellant] told firefighters that the
decedent had fallen down the stairs and hit his head, this
fabricated account was directly contradicted by the testimony of
trauma nurses who treated the decedent and Associate Medical
Examiner Dr. Aaron Rosen. Their testimony indicated that the
decedent’s death was caused by blunt force trauma to his
abdomen. That traumatic injury, which ruptured the decedent’s
pancreas, was inconsistent with injuries resulting from a fall down
the stairs. See N.T., 8/7/13, at 2.

Additional evidence presented at trial demonstrated that
[Appellant] engaged in a horrifying campaign of abuse that
culminated in the decedent’s murder. In the month leading up to
his hospitalization, Hassan Babb, [Appellant]’s neighbor, heard
[Appellant] assault the decedent during the day, at least four
times a week. The beatings were so severe that Babb heard them
over the loud music emanating from [Appellant]’s apartment. On
one occasion Babb intervened by knocking on [Appellant]’s door
and demanding her to stop. See N.T., 8/7/13, at 23.

In the weeks before [JaQuinn]’s death, co-defendant King
identified two instances where [Appellant] tortured the
decedent…. King discovered that [Appellant] had burned the
decedent’s feet while [King] was absent from the apartment. The
burns were so severe that the child could not walk. N.T., 8/8/13,
at 34. King also witnessed [Appellant] burn [JaQuinn]’s buttocks
[with a blowtorch] after he had an accident and defecated on the
floor. When King attempted to treat the burns with cold, running
water, layers of skin fell off.

[Appellant] has not shown that DNA testing would prove her actual
innocence. Her claim rests entirely on an underdeveloped and

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boilerplate assertion that if the Commonwealth had performed
DNA testing on the items, the resulting DNA evidence would
establish her innocence. The Commonwealth recovered DNA
samples from three items located at [Appellant’s] apartment: a
blowtorch, hairbrush, and mop. Investigators obtained samples
from [the decedent] at the hospital for the purpose of a sexual
assault forensic exam, but because the Forensic Science Division
of the Philadelphia Police Department did not detect any biological
material, [Appellant] was not charged with sexual assault.

As for the remaining items, even if DNA testing had been
completed and excluded [Appellant] as an originator [of the] DNA,
the jury’s verdict would have been the same. While the exact item
that [Appellant] used to inflict the death blow to [JaQuinn]’s
abdomen is unknown, [t]he overwhelming evidence of
[Appellant]’s abuse of the decedent left no reasonable doubt in
the jury’s mind of her culpability. This [c]ourt agrees with PCRA
counsel’s determination that [Appellant’s] instant motion is
meritless, as she cannot establish either requirement of a prima
facie case [that would entitle her to relief under Section 9543.1].

PCO at 4-6 (some citations reformatted; footnote omitted).

Appellant asserts that DNA testing of the items found in her apartment

would potentially point to another culprit, such as her co-defendant, King.

See Appellant’s Brief at 11-12. However, we are wholly unconvinced by her

argument given the circumstances of this case. As argued by the

Commonwealth, the “possible absence of [Appellant]’s DNA on any of the

recovered items from [Appellant]’s home does not preclude the possibility that

she in fact did use those items to abuse JaQuinn, even if Marcus King’s DNA

was also present.” Commonwealth’s Brief at 15. Furthermore, “even if King’s

DNA was found on the items, this evidence would not show [Appellant]’s actual

innocence. The jury found that [Appellant] conspired with King to kill JaQuinn.

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The jury verdict is consistent with the possibility that it was King who used

the blowtorch or hairbrush to abuse JaQuinn.” Id. at 16. In any event,

none of the items recovered from [Appellant]’s home were
responsible for JaQuinn’s death, nor critical to [Appellant]’s abuse
of JaQuinn. The medical evidence showed that JaQuinn died due
to blunt force trauma to his abdomen. Blunt force trauma to his
abdomen would be consistent with King’s testimony that
[Appellant] beat JaQuinn the night before he died. Further, given
the testimony by [Appellant]’s neighbor, there was strong
circumstantial evidence of [Appellant]’s abuse of JaQuinn. No
specific item used in her abuse was necessary in light of the
evidence that she was abusing him. DNA testing would not show
[Appellant]’s actual innocence.

Id. at 16-17 (citations omitted).

We agree with the Commonwealth. Even if the requested DNA tests

demonstrated the absence of Appellant’s DNA, and/or the presence of King’s

DNA, such results could not establish Appellant’s actual innocence in the

circumstances of this case. As to the blowtorch, we note that King admitted

that it belonged to him at trial, and, thus, it would be no surprise to the jury

if his DNA was discovered on it, or on any other item found in their shared

residence. The absence of Appellant’s DNA on the blowtorch would also not

be sufficient to show a prima facie case of her actual innocence, as it is

axiomatic that in DNA cases, “as in other areas, an absence of evidence is not

evidence of absence.” Heilman, 867 A.2d at 547.

The same applies to the mop. Appellant argues that the police alleged

that she used the mop to conceal evidence of JaQuinn’s injuries. Appellant’s

Brief at 12. However, Appellant’s use of a mop for that purpose was also not

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a critical fact with respect to any of the crimes for which Appellant was

convicted. She was not convicted of any charge related to concealing or

tampering with evidence of a crime. The absence of JaQuinn’s blood on the

mop (a result Appellant contends would be favorable to her) could not prove

Appellant’s innocence because, again, the absence of evidence is not evidence

of absence. Moreover, the absence of JaQuinn’s blood on the mop would not

contradict the allegation that Appellant caused the internal injuries to JaQuinn

that ultimately caused his death, as Appellant points to nothing in the record

that suggests those injuries would have caused external bleeding that might

have been concealed by cleaning the scene of the crime. Appellant further

argues that the mop was in a common area and accessible to other residents.

Id. Even if true, the absence of JaQuinn’s DNA on the mop, and/or the

presence of another DNA profile, could not constitute evidence of Appellant’s

actual innocence.

Likewise, there is no potential DNA profile that, if found on the brush,

would tend to exonerate Appellant. None of the offenses for which she was

convicted rested solely upon an allegation that Appellant used that item to

abuse JaQuinn, and the presence of King’s DNA profile would not be a surprise

to the jury, since King lived with Appellant and JaQuinn at the relevant time.

As to the rape kit, Appellant was never charged with a sexual offense,

and thus DNA results from the rape kit are not related to any offense for which

she was convicted. In any event, Appellant does not present any argument

in her brief as to how further testing of the rape kit could produce results that

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tended to demonstrate her innocence of the crime for which she was

convicted. Indeed, Appellant fails to explain how DNA testing is even possible

given the factual finding by the PCRA court that “the Forensic Science Division

of the Philadelphia Police Department did not detect any biological material”

in the sample obtained from JaQuinn at the hospital. PCO at 6.

Appellant cites several cases for our consideration, none of which

support her arguments that the PCRA court should have granted her motion

for DNA testing. First, in Payne, the petitioner was convicted of second-

degree murder and related offenses for his participation in a burglary that led

to the victim’s death, where there was an “absence of any physical evidence

demonstrating his guilt[.]” Payne, 129 A.3d at 550. Payne was not caught

at the scene of the home invasion, and there were no surviving eyewitnesses

to the crime. Three witnesses,

Wallick, Oglesby, and Gibson[,] each purportedly heard Payne
make inculpatory statements to them, individually, concerning the
… burglary/murder. Although their accounts of Payne’s
inculpatory remarks were consistent in broad strokes, there were
some significant details that varied between them. All three
testified that Payne had told them that he was accompanied by
two cohorts during the home invasion, and that a telephone had
been used as the murder weapon. However, their stories differed
considerably with regard to other matters, such as whether Payne
had killed [the victim] himself, as well as the identity of his co-
conspirators.

Id.

In Payne,

the Commonwealth appeal[ed] from the … order granting …
Payne[]’s request for DNA testing of physical evidence taken from

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the crime scene of the homicide for which Payne was convicted of
second-degree (felony) murder and related offenses. The
Commonwealth contend[ed] the trial court erred when it found
that there was a reasonable probability that the results of the
testing could demonstrate Payne’s “actual innocence,” as is
necessary to assert a successful claim under [Section] 9543.1.
Specifically, the Commonwealth argue[d] that the legal
framework of Payne’s felony murder conviction precludes such a
finding because, in order to convict him, the jury was not required
to determine whether Payne was the principal actor.

Id. at 548–49.

An en banc panel of this Court first recognized that “this Court has

consistently held that the absence of a petitioner’s DNA, by itself, cannot

demonstrate “‘actual innocence[,]’” but that “the quantum of evidence

necessary to satisfy Section 9543.1[,] above and beyond the absence of the

petitioner’s DNA has been, and should continue to be, determined on a case-

by-case basis, as circumstances dictate.” Id. at 559. Payne did not merely

argue that he sought testing to demonstrate the absence of his DNA at the

scene of the crime. Instead, “he also assert[ed] that DNA testing might reveal

the identity of the person who actually killed the victim” by comparing that

DNA to the law enforcement DNA databases. Id. at 560. The Commonwealth

argued on appeal that the lower court had erred in granting relief under

Section 9543.1, contending that Payne’s conviction did not necessitate a

finding that he had killed the victim, because his conviction was premised on

conspiratorial liability for his participation in the burglary. Id. Thus, the

Commonwealth believed that there was no potential DNA results that could

prove Payne’s actual innocence.

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This Court rejected the Commonwealth’s theory. First, Payne’s

conviction for conspiracy had been reversed during a prior appeal. Second,

this Court recognized that, even if the conspiracy conviction had survived,

Payne was asserting his innocence as to his involvement in any of the charges

associated with the fatal burglary, not solely his murder conviction. Third,

Payne’s conviction rested entirely on the somewhat inconsistent testimony of

three witnesses to his alleged self-incriminatory statements regarding the

crime. Finally, the Payne Court noted that,

with respect to the burden on a Section 9543.1 petitioner, “no
reasonable probability” does not mean, “no likely probability.” It
should go without saying that the most likely result of Section
9543.1 DNA testing will corroborate a petitioner’s guilt, confirm it
outright, or simply fail to cast significant doubt on the verdict.
However, the very purpose of Section 9543.1 must be to afford a
petitioner the opportunity to demonstrate the unlikely. The
threshold question is, therefore, not the likelihood of proof of
innocence, but whether it is within the realm of reason that some
result(s) could prove innocence.

Id. at 563.

Here, by contrast, Appellant was found at the scene of the murder, and

was the only person present with the victim. She concocted a claim that

JaQuinn had fallen down the steps, thereby admitting her presence at the time

he was injured, regardless of whether the cause of the injury was fabricated.

Furthermore, direct eyewitness testimony of Appellant’s abuse of JaQuinn was

provided by her co-defendant, including testimony regarding the beating that

likely caused his death. JaQuinn was found unresponsive and critically injured

while alone in Appellant’s care, and further eyewitness testimony by a

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neighbor corroborated multiple instances of prior abuse of the boy at

Appellant’s hand. These facts are not analogous to Payne, where there was

no eyewitness to the offense and no physical evidence tying Payne to the

scene of the fatal burglary. Here, it is not merely unlikely that DNA testing of

the available evidence would tend to prove Appellant’s actual innocence, it is

wholly unreasonable to believe so in the circumstances of this case, as

discussed above. Given these distinctions,3 we are unconvinced that the PCRA

court’s decision contravened our holding in Payne.

Appellant also cites Skinner v. Switzer, 562 U.S. 521 (2011), a federal

case that has no bearing on the instant appeal. In Skinner, the Supreme

Court of the United States held that a convicted state prisoner may seek DNA

testing of crime-scene evidence in a civil rights action filed pursuant to 42

U.S.C. § 1983. The Court thereby resolved a conflict in the federal circuit

courts, as some federal courts had found that DNA testing claims were

“cognizable in federal court only when asserted in a petition for a writ of

habeas corpus under 28 U.S.C. § 2254.” Id. at 524. Appellant has filed the

current action under a state statute in state court. Skinner does not support

her claim for relief.4
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3We also note that the procedural posture of these cases is dissimilar, as the
Commonwealth had appealed an order granting DNA testing in Payne.

4Appellant cites other federal cases which are inapposite for similar reasons.
D.A.'s Off. for Third Jud. Dist. v. Osborne, 557 U.S. 52 (2009), and Grier
v. Klem, 591 F.3d 672 (3d Cir. 2010), both involve DNA-testing claims raised
(Footnote Continued Next Page)

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Appellant next cites Commonwealth v. Wright, 14 A.3d 798 (Pa.

2011), where our Supreme Court held that a confession, even if one previously

adjudicated as voluntary, does not constitute a per se bar to establishing a

prima facie case demonstrating that DNA testing would establish actual

innocence. Wright also does not afford Appellant any relief. Appellant did

not confess to any criminal liability, and so Wright is not on point. However,

even if Appellant’s statement to authorities that JaQuinn had fallen down the

stairs could be construed as a partial confession that implicates Wright, the

PCRA court here did not purport to use the admission of that statement into

evidence as a per se bar to Appellant’s ability to obtain relief under Section

9543.1. In Wright, by contrast, the Supreme Court remanded to the trial

court because the lower court had failed to provide sufficient analysis for the

Supreme Court to determine if the lower court had solely relied on Wright’s

confession to deny relief under Section 9543.1. Here, while the PCRA court

relied in some part on Appellant’s ostensibly incriminatory statement in its

analysis, that was not the only evidence considered by the court in

determining Appellant was not entitled to DNA testing of the available

evidence and, thus, the lower court did not contravene Wright’s rejection of

a per se bar for relief under Section 9543.1 based on confessions.

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as federal civil rights actions under Section 1983 and, therefore, are not
relevant to DNA-testing claims raised under Section 9543.1 of the PCRA. We
must examine Appellant’s DNA-testing claim pursuant to the requirements of
Section 9543.1, even if federal statutory law provides for greater relief.

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Accordingly, we conclude that the record adequately supports the PCRA

court’s determination that Appellant failed to meet the statutory requirements

for DNA testing set forth in Section 9543.1. Accordingly, no relief is due on

this claim.

B.

In her second claim, Appellant asserts that the trial court “erred in

allowing co-defendant Marcus King to be the main evidence against

Appellant[.]” Appellant’s Brief at 14. Under the auspices of this claim,

Appellant argues: that King was offered a deal to testify against her, id.; that

the prosecutor failed to disclose “the full extent of the deal,” id.; that her

counsel was ineffective for failing to adequately impeach King regarding the

deal, id.; and that Appellant’s sentence was unfair compared to King’s, given

similar conduct and similar records, id. at 15.

The Commonwealth asserts that these claims have all been waived due

to Appellant’s failure to raise them below. Commonwealth’s Brief at 18 (citing

Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot

be raised for the first time on appeal.”)). Furthermore, the Commonwealth

argues that, even if these claims had been raised below, they are waived

because Appellant could have raised them in prior proceedings but failed to

do so. Id. (citing 42 Pa.C.S. § 9543(a)(3) (requiring a petitioner, to be eligible

for relief under the PCRA, to prove that “the allegation of error has not been

previously litigated or waived”)).

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However, we cannot reach the question of waiver, as this Court lacks

jurisdiction to address the second question presented for our review. A

request for DNA testing filed pursuant to Section 9543.1 is itself not subject

to the time limitations of the PCRA. See Commonwealth v. Williams, 35

A.3d 44, 50 (Pa. Super. 2011) (“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.”). Yet, with regard to all other claims, the PCRA time

limitations implicate our jurisdiction and may not be altered or disregarded in

order to address the merits of a petition. Commonwealth v. Bennett, 930

A.2d 1264, 1267 (Pa. 2007). Under the PCRA, any petition for post-conviction

relief, including a second or subsequent one, must be filed within one year of

the date the judgment of sentence becomes final, unless one of the following

exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

(b) Time for filing petition.--

(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:

(i) the failure to raise the claim previously was the result of
interference by government officials 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

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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. § 9545(b)(1)(i)-(iii). “Any petition invoking an exception provided

in paragraph (1) shall be filed within one year of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2).

Here, Appellant’s PCRA petition/DNA Motion,5 filed on October 6, 2020,

is patently untimely with respect to any claim but for the request for DNA

testing under Section 9543.1. Nowhere in her brief, or in her initial petition,

did Appellant attempt to invoke an exception to the PCRA’s jurisdictional time

bar. Indeed, as correctly noted by the Commonwealth, Appellant did not raise

any of these claims in her DNA motion. Necessarily then, Appellant has failed

to plead, much less prove, the applicability of any exception to the PCRA’s

time bar, as required by Section 9545(b)(1), that would permit this Court to

address the claims she now raises for the first time in her brief. Thus, we lack

jurisdiction to address all of Appellant’s remaining claims.

Order affirmed.

____________________________________________

5We note that Appellant did not style her motion for DNA testing as a PCRA
petition, and she did not raise any of the claims set forth in the second issue
presented in her brief in that motion.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/15/2022

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