Com. v. Grier, E. ( 2017 )


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  • J. S08026/17
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
    :           PENNSYLVANIA
    v.                    :
    :
    EMMITT J. GRIER, JR.,                     :          No. 847 WDA 2016
    :
    Appellant        :
    Appeal from the PCRA Order, May 27, 2016,
    in the Court of Common Pleas of Erie County
    Criminal Division at No. CP-25-CR-0002646-1999
    BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND SOLANO, J.
    MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED APRIL 17, 2017
    Emmitt J. Grier, Jr., appeals from the May 27, 2016 order entered in
    the Court of Common Pleas of Erie County which dismissed his third petition
    filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
    §§ 9541-9546. We affirm.
    The PCRA court set forth the extensive procedural history of this case,
    as follows:
    On August 31st, 1999, [a]ppellant was arrested
    and charged with two counts of Rape by Forcible
    Compulsion,      in  violation   of  18    Pa.C.S.[A.]
    § 3121(a)(1), one count of Criminal Attempt – Rape,
    in violation of 18 Pa.C.S.[A.] § 901(a), three counts
    of Unlawful Restraint – Risking Serious Bodily Injury,
    in violation of 18 Pa.C.S.[A.] § 2902(1), one count of
    Kidnapping to Facilitate a Felony, in violation of
    18 Pa.C.S.[A.] § 2901(a)(2), and one count of
    Burglary, in violation of 18 Pa.C.S.[A.] § 3502(a),
    regarding three separate incidents occurring on
    J. S08026/17
    June 30th, 1998; November 12th, 1998 and
    August 31st,     1999.[1]       Appellant’s counsel,
    A.J. Adams, Esq., filed a Motion for Competency
    Evaluation and Continuance on March 8th, 2000,
    which was granted by Judge William R. Cunningham
    on March 8th, 2000. A.J. Adams, Esq., filed a Motion
    to Withdraw as Counsel on April 18th, 2000, citing “a
    personality conflict.”    Judge Cunningham granted
    Attorney Adam’s [sic] Motion to Withdraw as Counsel
    on April 20th, 2000 and appointed the Erie County
    Public Defender’s Office to represent [a]ppellant.
    Appellant’s counsel, James A. Pitonyak, Esq., filed a
    Notice of Alibi Defense on May 26th, 2000.
    A [j]ury [t]rial was held before the undersigned
    judge from June 20th to June 22nd, 2000. The jury
    found [a]ppellant guilty of Counts 1 & 2 at docket
    no. 2646-1999, Counts 1 & 2 at docket no. 2647-
    1999[Footnote 1], and Counts 1, 2 & 3 on 2648-
    1999.     On August 10th, 2000, this Trial Court
    sentenced [a]ppellant [to an aggregate term of
    imprisonment of 28 ½ to 75 years].
    [Footnote 1] Count 3: Kidnapping to
    Facilitate a Felony at docket no. 2647-
    1999      was     withdrawn   by    the
    Commonwealth.
    ....
    1
    The record reflects that appellant’s convictions resulted from three
    separate incidents that involved the same victim, who was the mother of
    appellant’s girlfriend and the grandmother of his children.       (Notes of
    testimony, 6/20/00 at 43.) The victim testified that on June 30, 1998, she
    was in bed and lying on her stomach when she felt someone on her back
    who then taped her eyes and her head before he raped her. (Id. at 31-32.)
    The victim further testified that on November 12, 1998, she was driving her
    van when she heard noise coming from the rear of the van, and “then the
    next thing [she knew,] the hood of [her] coat [came] over [her] face and he
    tape[d] the hood around [her] neck so that [her] face [was] covered” before
    he attempted to rape her. (Id. at 46.) The victim also testified that on
    August 31, 1999, appellant arrived at her home claiming to need water and
    then raped her. (Id. at 55-62.)
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    Appellant, by and through Attorney Pitonyak,
    filed a Motion for Judgment of Acquittal/Motion for a
    New     Trial/Motion   for  Reconsideration    and/or
    Modification of Sentence on August 15th, 2000, which
    were denied by this Trial Court on August 15th, 2000.
    Appellant, by and through Attorney Pitonyak, filed a
    Notice of Appeal to the Pennsylvania Superior Court
    on August 30th, 2000. The Pennsylvania Superior
    Court affirmed [a]ppellant’s judgment of sentence on
    [August 15], 2001. Appellant filed a pro se Petition
    for Allowance of Appeal to the Pennsylvania Supreme
    Court on October 15th, 2001, which was denied on
    [April 24], 2002.
    Appellant, pro se, filed his first PCRA Petition
    on August 6th, 2002. On August 7th, 2002, this Trial
    Court appointed William J. Hathaway, Esq., as
    [a]ppellant’s PCRA counsel and directed Attorney
    Hathaway to supplement/amend [a]ppellant’s first
    PCRA Petition within thirty (30) days. Following a
    request for extension of time, which was granted,
    Attorney    Hathaway      filed   a   Supplement     to
    st
    [a]ppellant’s first PCRA Petition on October 1 , 2002.
    By Order dated October 3rd, 2002, this Trial Court
    directed the       Commonwealth to         respond to
    [a]ppellant’s first PCRA Petition within thirty (30)
    days. Assistant District Attorney Chad J. Vilushis
    filed a Response to [a]ppellant’s first PCRA Petition
    on October 24th, 2002. Following two Evidentiary
    Hearings on November 27th, 2002 and December 23,
    2002, this Trial Court dismissed [a]ppellant’s first
    PCRA Petition on January 24th, 2003.
    On April 10th, 2003, upon consideration of
    correspondence received from [a]ppellant on
    April 9th, 2003[Footnote 2], wherein [a]ppellant
    requested his right to appeal the dismissal of his first
    PCRA Petition be granted nunc pro tunc, this Trial
    Court directed the Commonwealth to respond to
    [a]ppellant’s correspondence within fourteen (14)
    days. Assistant District Attorney Chad J. Vilushis
    filed a Response on April 11th, 2003 objecting to the
    reinstatement of [a]ppellant’s right to appeal.
    Following an Evidentiary Hearing on May 19th, 2003,
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    this Trial Court granted [a]ppellant’s second PCRA
    Petition, reinstated [a]ppellant’s right to appeal the
    dismissal of his first PCRA Petition nunc pro tunc
    and directed Attorney Hathaway to file said appeal
    within thirty (30) days.        On June 5th, 2003,
    [a]ppellant, by and through Attorney Hathaway, filed
    a Notice of Appeal to the Pennsylvania Superior
    Court. On September 23rd, 2003, [a]ppellant filed a
    Motion for Appointment of New Counsel, which this
    Trial Court denied on September 24th, 2003. The
    Pennsylvania Superior Court affirmed the dismissal
    of [a]ppellant’s first PCRA Petition on [March 25],
    2004.       Appellant, by and through Attorney
    Hathaway, filed a Petition for Allowance of Appeal to
    the Pennsylvania Supreme Court on May 18th, 2004,
    which was denied on [November 30], 2004.
    [Footnote 2] Appellant’s April 9th, 2003
    correspondence    was     treated     as
    [a]ppellant’s second PCRA Petition.
    William J. Hathaway, Esq. consented to
    assist Appellant.
    On January 6th, 2005, [a]ppellant filed a
    pro se 42 U.S.C. § 1983 claim in the United States
    District Court for the Western District of
    Pennsylvania against Superintendent Edward J.
    Klem, Erie County District Attorney’s Office, the
    Commonwealth of Pennsylvania and the Office of
    Prothonotary, claiming these parties violated his
    procedural due process rights by refusing him access
    to the rape kits for DNA testing. Appellant filed a
    pro se Motion for Summary Judgment on July 28th,
    2005, which was dismissed as premature by United
    States District Magistrate Judge Susan Paradise
    Baxter on August 1st, 2005. Edward J. Klem, by and
    through his counsel, Mary L. Friedline, Esq., filed a
    Motion to Dismiss on October 4th, 2005. The Erie
    County District Attorney’s Office, by and through its
    counsel, Matthew J. McLaughlin, Esq., Assistant
    Solicitor for Erie County, filed a Motion to Dismiss on
    January 23rd, 2006. On January 24th, 2006, United
    States District Judge Sean J. McLaughlin, who was
    initially assigned to preside over [a]ppellant’s § 1983
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    claim, recused himself and reassigned the matter to
    Senior United States District Judge Maurice B.
    Cohill, Jr. Appellant filed a second pro se Motion for
    Summary Judgment on March 30th, 2006, and filed a
    third pro se Motion for Summary Judgment on
    April 10th, 2006. On May 15th, 2006, Judge Baxter
    filed her Report and Recommendation, wherein she
    recommended Edward J. Klem’s and the Erie County
    District Attorney’s Office’s Motions to Dismiss be
    granted and [a]ppellant’s two Motions for Summary
    Judgment be dismissed as “an improper attempt to
    collaterally attack his state court criminal conviction
    and sentence.” By Order dated June 29th, 2006,
    Judge Cohill, Jr. adopted Judge Baxter’s Report and
    Recommendation, granted Edward J. Klem’s and the
    Erie County District Attorney’s Office’s Motions to
    Dismiss and denied [a]ppellant’s two Motions for
    Summary Judgment.          Appellant filed a Notice of
    Appeal to the United States Court of Appeals for the
    Third Circuit on July 26th, 2006. On January 12th,
    2010, the United States Court of Appeals for the
    Third [Circuit], in an Opinion published by Senior
    United      States   Circuit    Judge     Franklin   S.
    Van Antwerpen, vacated Judge Cohill, Jr.’s Order and
    remanded for further proceedings, holding the case
    of Heck v. Humphrey, 
    512 U.S. 477
    (1994), does
    not bar a § 1983 claim requesting access to evidence
    for post-conviction DNA testing.          On remand,
    Judge Baxter, in a Report and Recommendation
    dated      September      19th,    2011,    determined
    [a]ppellant’s procedural due process rights had been
    violated and recommended [a]ppellant’s Motion for
    Summary Judg[ment] be granted. On October 19th,
    2011, Judge Cohill, Jr. adopted Judge Baxter’s
    Report      and    Recommendation        and    granted
    [a]ppellant’s Motion for Summary Judgment, wherein
    final judgment for [a]ppellant was entered on
    November 10th, 2011.         The Erie County District
    Attorney’s Office filed a Notice of Appeal to the
    United States Court of Appeals for the Third Circuit.
    Prior to a decision being rendered by the United
    States Court of Appeals for the Third Circuit, the
    parties agreed upon a Stipulated Order for
    Post-Conviction DNA Testing and filed a Joint Motion
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    for Entry of Consent Judgment on September 10th,
    2012. The Erie County District Attorney’s Office filed
    a Motion to Voluntar[ily] Dismiss the Appeal, which
    was granted on September 17th, 2012.
    The rape kits were submitted to Bode
    Technology in Lorton, Virginia for testing. A Forensic
    Case Report dated January 31st, 2013 and a
    Supplemental Forensic Case Report dated October
    5th, 2014 were both submitted. Upon receiving these
    Reports, [a]ppellant filed the instant pro se PCRA
    Petition, his third, on January 9th, 2015. This Trial
    Court appointed William J. Hathaway, Esq., as
    [a]ppellant’s PCRA counsel on January 22nd, 2015.
    Attorney Hathaway filed a Motion to Withdraw as
    Counsel on January 28th, 2015, citing a conflict. This
    Trial Court granted Attorney Hathaway’s Motion to
    Withdraw on February 4th, 2015, and appointed
    Thomas D. Brasco, Jr., Esq., as [a]ppellant’s PCRA
    counsel, who was directed to supplement/amend
    [a]ppellant’s third PCRA Petition within thirty (30)
    days. Following several extensions, Attorney Brasco
    filed a Supplement to [a]ppellant’s third PCRA
    Petition on January 22nd, 2016. On January 26th,
    2016, this Trial Court directed the Commonwealth to
    respond to the Supplement to [a]ppellant’s third
    PCRA Petition within thirty (30) days.        Assistant
    District Attorney Michael E. Burns filed a Response to
    Supplement to Motion for Post-Conviction Collateral
    Relief on February 24th, 2016.          An Evidentiary
    th
    Hearing was scheduled for April 18 , 2016, where,
    by Stipulation, counsel only presented oral
    arguments. Following the Evidentiary Hearing, this
    Trial Court filed its Notice of Intent to Dismiss
    Appellant’s third PCRA Petition as patently untimely
    and stating no grounds for which relief may be
    granted under the [PCRA]. Appellant filed Objections
    to PCRA Court’s Notice of Intent to Dismiss on
    May 27th, 2016. On May 27th, 2016, this Trial Court
    dismissed [a]ppellant’s third PCRA Petition.
    Appellant filed a Notice of Appeal to the
    Superior Court on June 10th, 2016. This Trial Court
    filed its 1925(b) Order on June 10th, 2016. Appellant
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    filed a Motion for Extension of Time to file a Concise
    Statement on [June 30], 2016, which was granted
    by this Trial Court on July 1st, 2016 and provided an
    additional five (5) days for [a]ppellant to file his
    Concise Statement. On July 6th, 2016, [a]ppellant
    filed his Concise Statement of Errors Complained of
    on Appeal.
    PCRA court opinion, 8/9/16 at 2-6.
    Appellant raises the following issues for our review:2
    1.    Was the trial Court’s use of, and citation to,
    remarks made by Attorney James Pitonyak at
    the PCRA argument, held November 27, 2002,
    to determine whether an evidentiary hearing
    shall be held, improper and an abuse of
    discretion,   and    therefore   a   denial of
    th
    [appellant’s] 14     Amendment Due Process
    Rights, in that Attorney Pitonyak essentially
    offered factual evidence to be considered when
    the purpose of the hearing was to determine
    whether an evidentiary hearing was necessary?
    2.    Should this Court apply the point of law in
    Commonwealth v. Hawk[, 
    709 A.2d 373
    (Pa.
    1998),] requiring any and all DNA testing
    results where identification is at issue in a trial
    to go to a jury to the PCRA statute concerning
    DNA testing?
    3.    Does acknowledgment by the Western District
    of   [Pennsylvania]     federal   court      that
    [appellant’s] procedural due process rights had
    been violated by barring [appellant] access to
    DNA testing toll the timeliness of filing of any
    subsequent PCRA petition?
    4.    Did a miscarriage of justice occur, and has it
    been occurring, since the PCRA hearing held by
    Judge Domitrovich, on November 27, 2002,
    2
    Present appellate counsel was appointed following appellant’s filing of a
    pro se notice of appeal.
    -7-
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    where Attorney James Pitonyak offered fact
    evidence to the Court, without being sworn,
    and offered testimonial evidence in a
    non-evidentiary hearing, and then was cited to
    by Trial Court, PCRA Court, Third Circuit Court,
    and Western District of [Pennsylvania] Court as
    valid evidence of trial strategy without offering
    [appellant] the right to confront the “witness”,
    in violation of the Conflict Clause of the
    6th Amendment of the Constitution?
    Appellant’s brief at 5-6.
    We limit our review of a PCRA court’s decision to examining whether
    the record supports the PCRA court’s findings-of-fact and whether its
    conclusions of law are free from legal error.      Commonwealth v. Mason,
    
    130 A.3d 601
    , 617 (Pa. 2015) (citations omitted). We view the PCRA court’s
    findings and the evidence of record in a light most favorable to the prevailing
    party. 
    Id. All PCRA
    petitions, including second and subsequent petitions, must be
    filed within one year of when a defendant’s judgment of sentence becomes
    final.    42 Pa.C.S.A. § 9545(b)(1).      “A judgment becomes final at the
    conclusion of direct review, including discretionary review in the Supreme
    Court of the United States and the Supreme Court of Pennsylvania, or at the
    expiration of the time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).
    The Pennsylvania Supreme Court has held that the PCRA’s time restriction is
    constitutionally sound.     Commonwealth v. Cruz, 
    852 A.2d 287
    , 292 (Pa.
    2004). In addition, our supreme court has instructed that the timeliness of
    a PCRA petition is jurisdictional. If a PCRA petition is untimely, a court lacks
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    jurisdiction over the petition. Commonwealth v. Callahan, 
    101 A.3d 118
    ,
    120-121 (Pa.Super. 2014) (courts do not have jurisdiction over an untimely
    PCRA); see also Commonwealth v. Wharton, 
    886 A.2d 1120
    (Pa. 2005).
    Here, the trial court sentenced appellant on August 10, 2000.
    Appellant filed timely post-trial motions, which the trial court denied.   On
    August 30, 2000, appellant filed a direct appeal to this court. Subsequently,
    on August 15, 2001, this court affirmed appellant’s judgment of sentence.
    Commonwealth v. Grier, 
    785 A.2d 1028
    (Pa.Super. 2001) (decision
    without published opinion).   On April 24, 2002, our supreme court denied
    appellant’s petition for allowance of review. Commonwealth v. Grier, 
    797 A.2d 910
    (Pa. 2002).      Consequently, appellant’s judgment of sentence
    became final on July 23, 2002, which was 90 days after our supreme court
    denied discretionary review on April 24, 2002.           See 42 Pa.C.S.A.
    § 9545(b)(3); Pa.R.A.P. 903; Commonwealth v. Cintora, 
    69 A.3d 759
    ,
    763 (Pa.Super. 2013). Therefore, appellant’s petition, filed nearly 13 years
    later on January 9, 2015, is facially untimely. As a result, the PCRA court
    lacked jurisdiction to review appellant’s petition, unless appellant alleged
    and proved one of the statutory exceptions to the time-bar, as set forth in
    42 Pa.C.S.A. § 9545(b)(1).
    Those three narrow exceptions to the one-year time-bar are:       when
    the government has interfered with the appellant’s ability to present the
    claim, when the appellant has recently discovered facts upon which his PCRA
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    claim is predicated, or when either the Pennsylvania Supreme Court or the
    United States Supreme Court has recognized a new constitutional right and
    made     that   right   retroactive.      42    Pa.C.S.A.   §   9545(b)(1)(i-iii);
    Commonwealth v. Brandon, 
    51 A.3d 231
    , 233-234 (Pa.Super. 2012).
    The appellant bears the burden of pleading and proving the applicability of
    any exception. 42 Pa.C.S.A. § 9545(b)(1). If an appellant fails to invoke a
    valid exception to the PCRA time-bar, this court may not review the petition.
    See 42 Pa.C.S.A. § 9545(b)(1)(i-iii).
    Although appellant raises a myriad of complaints that, for the most
    part, challenge the dismissal of his first PCRA petition wherein he alleged
    ineffective assistance of trial counsel for failure to pursue DNA testing, the
    gravamen of appellant’s complaint is that he is entitled to “a new trial based
    upon the DNA evidence showing that he, while could [sic] not be excluded as
    a potential perpetrator of the first completed rape, but also showing that he
    may not necessarily be included.”       (Appellant’s brief at 32-33.)   Appellant
    seemingly attempts to invoke the new-facts exception to the one-year time
    bar set forth in 42 Pa.C.S.A. § 9545(b)(1)(ii).      The PCRA requires that all
    petitions invoking an exception must be filed within 60 days of the date the
    claim could have been presented. 
    Id. at 9545(b)(2).
    The record before us fails to demonstrate when appellant received the
    October 5, 2014 supplemental DNA test report upon which he rests his
    claim, but the record does reflect that appellant filed the instant pro se
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    petition on January 9, 2015, which was 96 days after the date of the report.
    Appellant has failed to come forth with any evidence to demonstrate that he
    filed his petition within 60 days of learning of the DNA test results or that his
    tardiness   can   be   excused    by    the     prisoner   mailbox   rule.    See
    Commonwealth v. Jones, 
    700 A.2d 423
    , 426 (Pa. 1997) (extending
    prisoner mailbox rule to all appeals by pro se prisoners).              Therefore,
    appellant’s petition appears to be untimely.        But even if the petition was
    timely, dismissal was nevertheless warranted.
    In analyzing a claim of new facts under Subsection 9545(b)(1)(ii), our
    supreme court in Commonwealth v. Bennett, 
    930 A.2d 1264
    , 1271 (Pa.
    2007), made clear that the exception set forth in Subsection (b)(1)(ii) does
    not require any merits analysis of the underlying claim.              Rather, the
    exception merely requires that the facts upon which the claim is predicated
    must not have been known to appellant and could not have been ascertained
    by due diligence. 
    Id. (citation omitted).
    Therefore, the plain language of
    Subsection (b)(1)(ii) is not so narrow as to limit itself to only claims
    involving after-discovered evidence.        
    Id. at 1272.
         Rather, Subsection
    (b)(1)(ii) has two components, which appellant must allege and prove: (1)
    that the facts upon which the claim was predicated were unknown and (2)
    that those facts could not have been ascertained by the exercise of due
    diligence. 
    Id. If the
    petitioner alleges and proves these two components,
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    then the PCRA court has jurisdiction over the claim under this subsection.
    
    Id. (citation omitted).
    Appellant asserts that the new facts are the results of the DNA testing
    contained in the October 5, 2014 supplemental report.            In order to be
    eligible for relief, the PCRA requires that the evidence was unavailable at the
    time of trial. See 42 Pa.C.S.A. § 9543(a)(2)(vi). The record reflects that
    appellant raised an ineffective assistance of counsel claim in his first PCRA
    wherein he alleged trial counsel’s ineffectiveness for failure to request DNA
    testing. The record further reflects that the PCRA court held a hearing on
    November 27, 2002, at which time trial counsel “just happened to walk
    in[to]” the courtroom and stated that “[appellant] did not request [DNA]
    testing   himself.”       (Notes   of   testimony,   11/27/02   at   7-8.)   The
    Commonwealth then stated that the “main reason [it] did not go forward
    with DNA testing” was because “[appellant] had basically given a video
    taped [sic] confession.” (Id. at 7.) Subsequently, the PCRA court entered
    an order that denied appellant relief.
    Although appellant takes issue with trial counsel’s statement at the
    November 27, 2002 PCRA hearing that appellant did not request DNA testing
    because counsel was not under oath, the record demonstrates that the main
    reason why appellant was unable to obtain DNA testing in his first PCRA was
    because of his confessions.        In 2011, our supreme court held that “a
    confession, even if previously and finally adjudicated as voluntary, does not
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    constitute a per se bar to establishing a prima facie case, and the convicted
    person may, therefore, obtain DNA testing under [PCRA] Section 9543.1 if
    he   or   she   meets   all   of   this    statute’s   pertinent   requirements.”
    Commonwealth v. Wright, 
    14 A.3d 798
    , 817 (Pa. 2011).                  The record
    reflects that appellant did not file a motion seeking post-conviction DNA
    testing pursuant to Section 9543.1, seemingly because he filed that petition
    on August 6, 2002, which was prior to the September 3, 2002 effective date
    of Section 9543.1. The record is clear, however, that the underlying goal of
    appellant’s first PCRA petition was to obtain DNA testing. The record further
    reflects that the PCRA court denied that petition because appellant’s
    “conviction rest[ed] largely on his own confession” and, therefore, “his
    assertion that the outcome of his trial would have been different if counsel
    had sought out DNA testing [] is without merit.”          (PCRA court notice of
    intention to dismiss, 1/3/03 at 6.)       It was after appellant was foreclosed
    from obtaining state-based relief in his quest for DNA testing that he sought
    relief in federal court which, after many years, ultimately proved successful.
    We, therefore, find that appellant has met the requirements for the new-
    facts exception, and we have jurisdiction to entertain this appeal.
    The record reflects that the results of the biological evidence obtained
    from the rape kit used to gather evidence in connection with the June 30,
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    1998 rape3 were set forth in the January 31, 2013 report and the October 5,
    2014 supplemental report. The record further reflects that the January 31,
    2013 report concluded that “[appellant] cannot be excluded as a possible
    contributor of the partial Y-STR profile obtained from the epithelial
    fraction (EF) of sample CCB1243-0152-E03a.” (Appellant’s letter request for
    evidentiary hearing, 1/21/16 at Exhibit “A”; Docket # 67). The October 5,
    2014 supplemental report was issued “due to a request for additional
    testing” in which 3 of the 18 previously tested samples were retested. (Id.
    at Exhibit “B”.) The report concludes that:
    [t]he partial Y-STR profile obtained from the
    epithelial fraction (EF) of sample CCB1243-0152-R07
    is consistent with a mixture of at least two
    individuals.
    Due to the limited data obtained and the possibility
    of allelic drop out, no conclusions can be made on
    this partial mixture Y-STR profile.
    
    Id. Therefore, the
    October 5, 2014 supplemental report was inconclusive.
    Indeed, by appellant’s own admission, he “[can]not be excluded as a
    potential perpetrator of the first completed rape.” (Appellant’s brief at 33.)
    3
    The record reflects that rape kits were used to gather biological evidence in
    connection with the June 30, 1998 and August 31, 1999 rapes. It appears
    that no rape kit was used in connection with the November 12, 1998
    incident because the crime committed was attempted rape. Additionally,
    appellant did not seek DNA testing of the rape kit used in connection with
    the August 31, 1999 rape because appellant maintains that that sexual act
    was consensual.
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    Clearly then, because the DNA test results do not exclude appellant from
    having committed the June 30, 1998 rape and would not conclusively
    exculpate him from having committed that rape, the admission into evidence
    of those test results would not have changed the outcome of appellant’s
    trial. See 42 Pa.C.S.A. § 9543(a)(2)(vi) (requiring that for a petitioner to be
    eligible for PCRA relief, the petitioner must prove by a preponderance of the
    evidence that his conviction resulted from “the unavailability at the time of
    trial of exculpatory evidence that has subsequently become available and
    would have changed the outcome of the trial if it had been introduced”.).
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 4/17/2017
    - 15 -
    

Document Info

Docket Number: Com. v. Grier, E. No. 847 WDA 2016

Filed Date: 4/17/2017

Precedential Status: Precedential

Modified Date: 4/17/2017