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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
MILTON HUMBERTO SAULA-RIVERA, : No. 2806 EDA 2016
:
Appellant :
Appeal from the PCRA Order, August 20, 2016,
in the Court of Common Pleas of Monroe County
Criminal Division at No. CP-45-CR-0001163-2007
BEFORE: BENDER, P.J.E., RANSOM, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 15, 2017
Milton Humberto Saula-Rivera appeals, pro se, from the order of
August 20, 2016, dismissing his second PCRA1 petition. We affirm.
This case has as its genesis [appellant]’s
repeated sexual assault of his eleven-year-old
stepdaughter, S.H. After S.H. revealed the sexual
abuse to her school guidance counselor, [appellant]
was arrested and charged with Rape of a Child,
Involuntary Deviate Sexual Intercourse, Unlawful
Contact with a Minor, Aggravated Indecent Assault,
Statutory Sexual Assault, Sexual Assault, Indecent
Assault, Corruption of Minors, Indecent Exposure,
and Endangering the Welfare of a Child. Thereafter,
on January 10, 2008, following a jury trial,
[appellant] was convicted of all charges.
On April 15, 2008, the trial court sentenced
[appellant] to an aggregate term of not less than 20
nor more than 40 years[’] incarceration. On July 21,
1
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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2008, the lower court denied [a]ppellant’s Motion for
Reconsideration of Sentence.
Commonwealth v. Saula-Rivera, No. 2479 EDA 2008, unpublished
memorandum at 1-2 (Pa.Super. filed December 15, 2009) (footnotes
omitted). Appellant filed a direct appeal, and on December 15, 2009, this
court affirmed the judgment of sentence. Id.; Commonwealth v.
Saula-Rivera, 990 A.2d 53 (Pa.Super. 2009) (unpublished memorandum).
On May 28, 2010, our supreme court denied allowance of appeal, and on
October 18, 2010, the United States Supreme Court denied appellant’s
petition for writ of certiorari. Commonwealth v. Saula-Rivera, 996 A.2d
492 (Pa. 2010), cert. denied, 562 U.S. 985 (2010).
On October 25, 2010, appellant filed a timely pro se PCRA petition.
Counsel was appointed and filed an amended petition on appellant’s behalf.
On April 8, 2011, following an evidentiary hearing, the PCRA court denied
appellant’s amended petition. On December 1, 2011, this court affirmed,
and on June 5, 2012, our supreme court denied appellant’s petition for
allowance of appeal. Commonwealth v. Saula-Rivera, 40 A.3d 180
(Pa.Super. 2011) (unpublished memorandum), appeal denied, 47 A.3d 847
(Pa. 2012).
Appellant filed the instant petition, his second, on May 5, 2016.
Therein, appellant requested the PCRA court to order that physical evidence
in the Commonwealth’s possession be DNA tested pursuant to 42 Pa.C.S.A.
§ 9543.1. Appellant also claimed that his trial counsel was ineffective for,
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inter alia, failing to request that all available physical evidence be subjected
to DNA testing, failing to adequately investigate the facts of the case, failing
to retain a medical expert to contest the Commonwealth’s expert’s findings,
and failing to retain a child psychologist to testify regarding the child victim’s
testimony and recollection. (PCRA court opinion, 8/9/16 at 3.) On
August 9, 2016, following 20-day notice pursuant to Pa.R.Crim.P. 907 and
appellant’s response thereto, the petition was dismissed. This timely appeal
followed. On August 26, 2016, appellant was ordered to file a concise
statement of errors complained of on appeal within 21 days pursuant to
Pa.R.A.P. 1925(b), and he timely complied on September 16, 2016. (Docket
#8.) On September 28, 2016, the PCRA court filed a Rule 1925(a) opinion,
relying on its opinion and order of August 9, 2016, dismissing appellant’s
petition. (Docket #9.)
Initially, we note that, when examining the propriety
of an order resolving a request for DNA testing, we
employ the PCRA standard of review. See
Commonwealth v. Conway, 14 A.3d 101 (Pa.Super.
2011); Commonwealth v. Brooks, 875 A.2d 1141
(Pa.Super. 2005). “On appeal from the denial of PCRA
relief, our standard of review calls for us to determine
whether the ruling of the PCRA court is supported by
the record and free of legal error.” Commonwealth
v. Nero, 58 A.3d 802, 805 (Pa.Super. 2012) (quoting
Commonwealth v. Calhoun, 52 A.3d 281, 284
(Pa.Super. 2012)). In the present matter, we are
considering the PCRA court’s denial of a request for
DNA testing. In this context, the filing requirements
of 42 Pa.C.S. § 9545 have not yet been implicated.
As we noted in Commonwealth v. Weeks, 831 A.2d
1194, 1196 (Pa.Super. 2003), “Post conviction DNA
testing does not directly create an exception to
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§ 9545’s one-year time bar. See 42 Pa.C.S.A.
§ 9543.1. Rather it allows for a convicted individual 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). See 42 Pa.C.S.A.
§ 9543.1(f)(1).”[Footnote 2] Accord Commonwealth
v. Scarborough, Pa. , 64 A.3d 602, 609
(2013) (“the litigation of a motion for DNA testing
under Section 9543.1 is, in substance, a wholly
separate proceeding from litigation of a PCRA
petition.”); Commonwealth v. Williams, 35 A.3d
44, 50 (Pa.Super. 2011) [, appeal denied, 50 A.3d
121 (Pa. 2012)] ( “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.”).
[Footnote 2] 42 Pa.C.S. § 9543.1(f),
posttesting procedures, provides:
(1) After the DNA testing
conducted under this section
has been completed, the
applicant may, pursuant to
section 9545(b)(2) (relating
to jurisdiction and
proceedings), during the
60-day period beginning on
the date on which the
applicant is notified of the
test results, petition to the
court for postconviction relief
pursuant to section
9543(a)(2)(vi) (relating to
eligibility for relief).
Commonwealth v. Gacobano, 65 A.3d 416, 419 (Pa.Super. 2013).
Furthermore, as in Gacobano,
While the PCRA petition filed in this case
com[m]ingled the DNA test request with other PCRA-
based requests for relief, the two forms of relief
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must be bifurcated and the DNA testing issue is to be
addressed first. Williams, supra. Furthermore, in
this appeal, Appellant only litigates his DNA issue.
Thus, we do not apply the provisions of 42 Pa.C.S.
§ 9545 herein.
Id.2
The PCRA court dismissed appellant’s petition on the basis that he filed
a PCRA petition instead of a motion for DNA testing. (PCRA court opinion,
8/9/16 at 4-5.) See Williams, 35 A.3d at 50 (“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.” (citations and quotation marks omitted;
emphasis in original)). The PCRA court concluded that appellant’s PCRA
petition was filed beyond the one-year jurisdictional time-bar and no
exception to the PCRA’s timeliness requirement applied. (PCRA court
opinion, 8/9/16 at 5.) See 42 Pa.C.S.A. § 9545(b)(1) (a PCRA petition,
including a second or subsequent petition, must be filed within one year of
the date the underlying judgment becomes final). However, in
Commonwealth v. Young, 873 A.2d 720 (Pa.Super. 2005), appeal
denied, 891 A.2d 733 (Pa. 2005), overruled on other grounds by
2
In his Rule 1925(b) statement and in his brief on appeal, appellant did not
raise his trial counsel ineffectiveness claims contained in his second PCRA
petition.
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Commonwealth v. Wright, 14 A.3d 798 (Pa. 2011), this court observed
that,
[W]hile filing a motion for DNA testing is preferred,
where as here, a pro se defendant’s sole request in
a PCRA petition is the equivalent of a section 9543.1
motion, we find that the trial court and this Court
may address it on its merits. To consider a request
for DNA testing as untimely based solely on the
nomenclature used would merely elevate form over
substance.
Id. at 724 n.2.
“Moreover, ‘the DNA testing statute, which was passed unanimously by
the Pennsylvania General Assembly, should be regarded as a remedial
statute and interpreted liberally in favor of the class of citizens who were
intended to directly benefit therefrom, namely, those wrongly convicted of a
crime.’” In re Payne, 129 A.3d 546, 554 (Pa.Super. 2015) (en banc),
appeal denied, 145 A.3d 167 (Pa. 2016), quoting Commonwealth v.
Conway, 14 A.3d 101, 113 (Pa.Super. 2011), appeal denied, 29 A.3d 795
(Pa. 2011). Nevertheless, we agree with the PCRA court that even treating
appellant’s petition as a motion for DNA testing, he failed to meet the
threshold requirements under Section 9543.1.
The DNA statute, Section 9543.1, provides, in pertinent part, as
follows:
(a) Motion.--
(1) An individual convicted of a criminal
offense in a court of this Commonwealth
and serving a term of imprisonment or
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awaiting execution because of a sentence
of death may apply by making a written
motion to the sentencing court for the
performance of forensic DNA testing on
specific evidence that is related to the
investigation or prosecution that resulted
in the judgment of conviction.
(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 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), 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
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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) assert the applicant’s
actual innocence of the
offense for which the
applicant was
convicted[.]
(3) present a prima facie case demonstrating
that the:
(i) identity of or the
participation in the
crime by the
perpetrator was at
issue in the
proceedings that
resulted in the
applicant’s conviction
and sentencing; and
(ii) DNA testing of the
specific evidence,
assuming exculpatory
results, would
establish:
(A) the applicant’s
actual innocence of
the offense for
which the applicant
was convicted[.]
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(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 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 that the
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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.
The statute sets forth several threshold requirements
to obtain DNA testing: (1) the evidence specified
must be available for testing on the date of the
motion; (2) if the evidence was discovered prior to
the applicant’s conviction, it was not already DNA
tested because (a) technology for testing did not
exist at the time of the applicant’s trial; (b) the
applicant’s counsel did not request testing in a case
that went to verdict before January 1, 1995; or
(c) 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. 42 Pa.C.S.A. § 9543.1(a)(2).
Williams, 35 A.3d at 49.
Instantly, appellant did not specify the particular items in the
possession of the Commonwealth for which he sought DNA testing. (PCRA
court opinion, 8/9/16 at 6.) In his brief, appellant alleges that, “The
Commonwealth maintained numerous items of clothing including the
victim[’]s panties, clothing, towels, and examined numerous pieces of
evidence, clothing, towels etc. used by the [a]ppellant. These select items
are available for DNA testing and will prove that the [a]ppellant
[Saula-]Rivera never had any sexual relations with the victim.” (Appellant’s
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brief at 9.) Appellant never alleged that this evidence was first discovered
after his trial in 2008. Furthermore, as the PCRA court observed, the verdict
in appellant’s case was rendered after January 1, 1995, and DNA testing
technology was available at that time. (PCRA court opinion, 8/9/16 at 6.)
Appellant never requested funds from the trial court to pay for DNA testing,
so the trial court never refused such a request. (Id.) As such, the PCRA
court properly concluded that appellant did not meet the threshold
requirements for DNA testing under Section 9543.1(a)(2). Williams, 35
A.3d at 51, citing Commonwealth v. Perry, 959 A.2d 932, 938 (Pa.Super.
2008) (affirming denial of request for DNA testing because technology for
testing was available at time of applicant’s trial, verdict was entered after
January 1, 1995, and trial court did not deny funds for testing, despite
applicant’s indigence).
In addition, appellant failed to state that he consented to provide
samples of bodily fluid for use in DNA testing and acknowledge that any data
obtained from DNA samples or test results may be used in the investigation
of other crimes. Also, while appellant asserted his actual innocence of the
offenses, he failed to present a prima facie case demonstrating that DNA
testing of specific evidence, assuming exculpatory results, would establish
his actual innocence. See Williams, 35 A.3d at 50 (“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
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innocence.”), citing Commonwealth v. Smith, 889 A.2d 582, 586
(Pa.Super. 2005), appeal denied, 905 A.2d 500 (Pa. 2006).
Finally, to the extent that appellant argued trial counsel was ineffective
for failing to request DNA testing on items of the victim’s clothing, he did not
satisfy a statutory exception to the PCRA’s timeliness requirements.
Williams, 35 A.3d at 53 (explaining that, “Appellant’s request for DNA
testing did not constitute a direct exception to the time bar of the PCRA”),
citing Weeks, 831 A.2d at 1196. It is well settled that claims of trial
counsel ineffectiveness do not operate as an independent exception to the
one-year jurisdictional time-bar of the PCRA. See Commonwealth v.
Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000) (holding a claim of
ineffective assistance of counsel does not save an otherwise untimely
petition for review on the merits); see also Commonwealth v. Breakiron,
781 A.2d 94, 97 (Pa. 2001) (allegations of ineffective assistance of counsel
will not avoid the timeliness requirement of the PCRA). Rather, appellant
first had to meet the standards for DNA testing, obtain the DNA testing, and
then offer the exculpatory results as an exception to the PCRA time limits
within 60 days after receiving the results. Williams, 35 A.3d at 53-54. For
these reasons, the PCRA court did not err in dismissing appellant’s petition
without a hearing.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/15/2017
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Com. v. Saula-Rivera, M.
Combined Opinion