Com. v. Brown, R. ( 2020 )

J-S41005-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT WAYNE BROWN :
:
Appellant : No. 1972 MDA 2019
Appeal from the Order Entered November 6, 2019,
in the Court of Common Pleas of Cumberland County,
Criminal Division at No(s): CP-21-CR-0003516-2010.
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT WAYNE BROWN :
:
Appellant : No. 1973 MDA 2019
Appeal from the Order Entered November 6, 2019,
in the Court of Common Pleas of Cumberland County,
Criminal Division at No(s): CP-21-CR-0000029-2011.
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STRASSBURGER, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED DECEMBER 01, 2020
Robert Wayne Brown appeals pro se from the order denying his motion
for post-conviction DNA testing filed pursuant to section 9543.1 of the Post
Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-9546. We affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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Brown’s convictions are the result of forty-one charges he faced at two
different criminal dockets. Previously, this Court has detailed the pertinent
facts and procedural history as to each docket as follows:
Brown’s convictions arise from his sexual abuse of his
grandchildren and step grandchildren. On December 1,
2010, Brown was babysitting his granddaughters, T.W. (age
three) and K.W. (age four). When T.W. and K.W.’s mother,
T.N. went to Brown’s home in Newville, Pennsylvania to pick
up the girls, she observed Brown with his pants unbuttoned
and unzipped. T.W. was standing between Brown’s legs
with her pants undone, and K.W., was facing the wall with
her pants around her ankles. T.N. immediately removed the
children from Brown’s home, and took them to Carlisle
Regional Medical Center.
At the hospital, Joey Wisner, PA, examined the children
and noticed three “warty lesions” near K.W.’s upper lip.
Wisner took external mouth swabs from both children,
which Pennsylvania State Police Corporal Bryan Henneman
took into evidence along with K.W.’s pants. Laboratory
testing later revealed the presence of seminal fluid on K.W.’s
pants, and the swab from K.W.’s mouth contained
spermatozoa. However, due to the breakdown and mixing
of genetic material, the lab could not conclusively match
those samples with Brown’s DNA.
On the same evening, Corporal Henneman went to
Brown’s residence, identified himself, and asked to speak
with Brown. Corporal Henneman was dressed in formal
business attire. Corporal Henneman told Brown that he was
not under arrest. Brown agreed to speak with Corporal
Henneman, and invited him inside the home.
Corporal Henneman digitally recorded the audio of his
ensuing conversation with Brown. In that conversation,
Brown admitted that K.W. and T.W. had touched his penis
on multiple occasions. He also stated that both K.W. and
T.W. had performed oral sex on him, and that he had
performed oral sex on K.W. on one occasion. Brown told
Corporal Henneman that he had a wart-like growth on [his]
penis, but did not know what it was. At the conclusion of
the interview, Corporal Henneman left Brown’s home.
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On December 2, 2010, Corporal Henneman arrested
Brown and charged him with two counts each of involuntary
deviate sexual intercourse (“IDSI”), IDSI with a child less
than thirteen years of age, unlawful contact with a minor,
sexual assault, indecent assault, indecent assault of a child
less than thirteen years of age, and corruption of minors.
Those charges were filed and docketed at CP-21-CR-3516-
2010.
Commonwealth v. Brown, 135 A.3d 652 (Pa. Super. 2015), unpublished
memorandum at 2-4 (footnote and citation to the record omitted).
This Court summarized the pertinent facts and procedural history
regarding the remaining docket number as follows:
On December 6, 2010, Brown’s step grandchildren,
[siblings] J.H. and M.H, after hearing about Brown’s arrest
and the sexual abuse allegations against him, reported to
[the] police that Brown had sexually assaulted them as well.
On that same day, Corporal Henneman interviewed J.H. and
M.H. J.H. told Corporal Henneman that, on multiple
occasions when he was approximately ten to twelve years
old, Brown performed oral sex on J.H. Brown also forced
J.H. to perform oral sex on him. J.H. told Corporal
Henneman that Brown had inserted his fingers, various sex
toys, and his penis into J.H.’s anus.
M.H. corroborated her brother’s allegations. She told
Corporal Henneman that, on multiple occasions when she
was approximately eight to ten years old, Brown performed
oral sex on her. Brown also forced M.H. to perform oral sex
on him. Brown penetrated M.H.’s vagina and anus with his
fingers and with various sex toys. M.H. also told Corporal
Henneman that, on one occasion, Brown inserted his penis
into her anus. On December 9, 2010, Corporal Henneman
filed a second criminal complaint, charging Brown with rape
of a child, IDSI, IDSI with a child less than thirteen years of
age, indecent assault, aggravated indecent assault,
unlawful contact with a minor, and corruption of minors.
Those charges were filed and docketed at CP-21-CR-29-
2011.
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Brown, unpublished memorandum at 4-5 (footnotes omitted).
Prior to trial, the Commonwealth filed notice of its intent to seek
mandatory minimum sentences if a jury convicted Brown of several of the sex
offenses. The Commonwealth consolidated the two dockets for trial, which
began on August 20, 2012. Two days later, the jury convicted Brown on all
of the charges. On April 4, 2013, the trial court sentenced Brown to an
aggregate term of 40 to 120 years of imprisonment. Brown did not file a
direct appeal, however, after he filed a PCRA petition, his right to appeal was
reinstated nunc pro tunc.
On appeal, Brown’s counsel filed a petition to withdraw and a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that
Brown’s appeal was wholly frivolous. This Court disagreed, concluding that
Brown’s aggregate sentence included mandatory minimums, which this Court
in Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014), had declared
unconstitutional. See Brown, unpublished memorandum at 15-19. Thus,
this Court vacated Brown’s judgment of sentence and remanded for
resentencing. On August 23, 2016, our Supreme Court denied the
Commonwealth’s petition for allowance of appeal. Commonwealth v.
Brown, 145 A.3d 723 (Pa. 2016).
Following remand, at resentencing, the trial court expressly stated that
it had not imposed any mandatory minimums as part of its original aggregate
sentence. See Resentencing Order, 11/15/16, at 1. The court therefore
reimposed its 40 to 120 year sentence. Brown filed a timely appeal to this
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Court in which he challenged the discretionary aspects of his sentence. In an
unpublished memorandum filed on August 23, 2017, we concluded that
Brown’s failure to file a post-sentence motion waived his sentencing claim.
We therefore affirmed his judgment of sentence. Commonwealth v. Brown,
175 A.3d 1107 (Pa. Super. 2017). On February 5, 2018, our Supreme Court
denied Brown’s petition for allowance of appeal. Commonwealth v. Brown,
181 A.3d 284 (Pa. 2018).
On August 26, 2019, Brown filed the petition at issue, titled a “Petition
to Retest DNA.” In his one-page petition, Brown requested that the DNA in
his case be retested pursuant to Section 9543.1 of the PCRA because “certain
results were deemed inconclusive,” and the newly amended statute allowed
for testing “with Newer Technology that could produce [substantially] more
Accurate and Probative results.” Petition, 8/26/19, at 1. The Commonwealth
filed a response. By order entered November 5, 2019, the PCRA court denied
the petition. On October 7, 2019, Brown filed an amended petition, in which
he specified the evidence to be retested and asserted his innocence. This pro
se appeal followed.1 Both Brown and the PCRA court have complied with
Pa.R.A.P. 1925.
____________________________________________
1No violation of our Supreme Court’s decision in Commonwealth v. Walker,
185 A.3d 969 (Pa. 2018) occurred in this case. Brown filed separate notices
of appeal for each docket, and, although he included both docket numbers on
each appeal, this fact is no longer a basis for quashal. See generally,
Commonwealth v. Jerome Johnson, 236 A.3d 1141 (Pa. Super. 2020) (en
banc).
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Brown raises the following issues:
1) Did [Brown] state his request under [Section] 9543.1
clearly?
2) Was the original DNA test inconclusive?
3) Does [Brown] have [the] right to DNA testing?
4) Did [Brown’s] trial counsel consult [an] expert in the case
or seek comparative testing?
5) Did [Brown] receive[a] raw data report and DNA original
test results with his discovery?
6) Did the [victims] in the case make a complaint or
statement saying they were abused?
7) Are there conflicting statements and interviews and
property records regarding evidence collected?
8) Did the trial court [err] in denying motion to test DNA?
Brown’s Brief at 2 (excess capitalization omitted).
As noted by the Commonwealth, only the issues involving the DNA
testing are properly before this Court. See Commonwealth’s Brief at 6-10.
See also Commonwealth v. Walsh, 125 A.3d 1248, 1252 (Pa. Super. 2015)
(explaining, “Section 9543.1 cannot be used to raise extraneous issues not
related to DNA testing in an effort to avoid the one-year [PCRA] time bar”).
Thus, we limit our review to the denial of Brown’s petition for DNA testing.
Our standard of review is well settled:
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 [applicant]
satisfied the statutory requirements listed in Section
9543.1. We can affirm the court’s decision if there is any
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basis to support it, even if we rely on different grounds to
affirm.
Walsh, 125 A.3d at 1252-53.
Petitions for post-conviction DNA testing are governed by statute.
Section 9543.1 of the PCRA provides, in pertinent part:
§ 9543.1. Postconviction DNA testing
(a) Motion.—
(1) An individual convicted of a criminal offense in a
court of this Commonwealth may apply by making a
written motion to the sentencing court at any time
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
the verdict was rendered on or before January 1,
1995, or the evidence was subject to testing, but
newer technology could provide substantially more
accurate and substantively probative results, or the
applicant’s counsel sought funds from the court to
pay for the testing because he was indigent and the
court refused the request despite the client’s
indigency.
(3) A request for DNA testing under this section shall be
by written petition and shall be filed with the clerk of
courts of the judicial district where the sentence is
imposed.
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(4) DNA testing may be sought at any time if the 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.
42 Pa.C.S.A. § 9543.1(a).
Section 9543.1(c)(3), provides, in pertinent part, that, when filing a
motion for post-conviction DNA testing, an applicant must 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 for which the
applicant was convicted[.]
42 Pa.C.S.A. § 9543.1(c)(3).
Finally, as provided in Section 9543.1(d)(2)(i), the PCRA “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 probability, that the testing would produce exculpatory evidence
that . . . would establish the applicant’s actual innocence of the offense for
which the applicant was convicted[.]” 42 Pa.C.S.A. § 9543(d).
Here, the PCRA court found that Brown failed completely to establish a
prima facie case in his one-page motion. Initially, the court explained:
The facts leading to the obtaining of the original samples
alone were incriminatory before any testing. Specifically,
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[Brown] was caught in his home office with his pants undone
and a four year old child, who[se] pants were also undone,
standing between his legs and with a three year old child in
the same room standing facing a wall with her pants down
to her ankles and those children were immediately taken to
a hospital where the samples were collected and
subsequently tested for DNA. Now, [Brown] untimely
requests the DNA evidence used in his cases be re-tested;
without legal foundation he claims newer DNA technology
can produce substantially more accurate and probative
results.
PCRA Court Opinion, 1/3/20, at 1-2.
The PCRA court then cited the relevant provisions of Section 9543.1 and
concluded:
Instantly, [Brown] fails to meet the requirements of
subsection (a)(2) because his convictions are well after
January 1, 1995, DNA testing was available and performed
in his case, and he provides no explanation how DNA testing
now is any different than the testing performed less than
ten (10) years ago. The one sample collected was too
diluted for viable DNA results and the second could not
exclude [Brown] from the pool of sample genetic material
found.
Further, after considering the credible testimony of the
eyewitness who discovered [Brown] in the act of sexually
assaulting his grandchildren, and review of the record of
[Brown’s] trial, there is no reasonable probability that the
requested testing would produce exculpatory evidence
establishing [Brown’s] actual innocence.
[Brown’s] request is merely to delay the execution of a
lawful sentence and administration of justice. As [Brown’s]
appeal is meritless, it should be denied.
Id. at 3.
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Our review of the record supports the PCRA court’s conclusions that
Brown’s post-conviction DNA testing is untimely and that he cannot meet the
requirements of Section 9543.1(a).
Section 9543.1(d)(iii) requires the applicant to make a timely request
for DNA testing. “In analyzing timeliness for purposes of Section
9543(d)(1)(iii), the court must consider the facts of each case to determine
whether the applicant’s request for post-conviction DNA testing is to
demonstrate his actual innocence or to delay the execution of sentence or
administration of justice.” Walsh, 125 A.3d at 1255 (citation omitted). Here,
our review of testimony from Brown’s trial amply supports the PCRA court’s
conclusion that the purpose of Brown’s petition was only to delay further the
execution of his sentence.
An applicant for post-conviction DNA testing “does not meet the
requirements of § 9543.1(a)(2) [if] the technology existed at the time of trial,
the verdict was rendered after January 1, 1995, and the court never refused
funds for the testing.” Commonwealth v. Perry, 959 A.2d 932, 938-39 (Pa,
Super. 2008) (citation omitted). We agree with the PCRA court that all of
these conditions are satisfied in this case. As noted by the PCRA court, Brown
was convicted well after 1995, and DNA testing was actually performed in his
case. In essence, Brown mistakenly believes the newly amended section’s
reference to “newer technology” permits him to seek retesting without
establishing a prima facie case.
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Finally, we agree with the PCRA court that, given the eyewitness
testimony regarding the sexual offenses, as well as Brown’s own statements
to Corporal Brenneman, see supra, “there is no reasonable probability that
the requested testing would produce exculpatory evidence establishing
[Brown’s] actual innocence.” PCRA Court Opinion, 1/3/20, at 3.
In sum, our review of the record supports the PCRA court’s conclusion
that Brown’s petition for post-conviction DNA testing is untimely, and Brown
failed to allege a prima facie case to support the DNA test he requested. We
therefore affirm the order denying the petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2020
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