Appeal from the PCRA Order January 5, 2011 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0004690-1999
The opinion of the court was delivered by: Gantman, J.:
BEFORE: GANTMAN, LAZARUS, AND STRASSBURGER*, JJ.
Appellant, Barry Eli Williams, appeals from the order entered in the Allegheny County Court of Common Pleas, which denied his motion for collateral relief/DNA testing pursuant to Section 9543.1 of the Post Conviction Relief Act ("PCRA").*fn1 We affirm.
The relevant facts and procedural history of this case are as follows. On February 19, 1999, two men entered Elizabeth Pharmacy in Pittsburgh, PA, armed with a knife and handgun. The man wielding the knife used a bandana to cover his face; the gunman wore a hat/wig. The men demanded money. A standoff ensued when a pharmacy employee drew a gun, and John Mariano (a retired Pittsburgh police officer) entered the store. The gunman grabbed a store customer and pointed the gun at his neck. After refusing Officer Mariano's requests to surrender his weapon, the gunman shot the customer, dropped the gun, and fled the store. Witnesses saw the man exit the store and drop an object, later identified as the hat/wig, in a nearby playground. An investigation into the robbery produced Appellant as a potential suspect.*fn2 Police interviewed Appellant, who initially denied any knowledge of the robbery. Appellant soon admitted his involvement but claimed he shot the customer by accident.
The Commonwealth charged Appellant with robbery, aggravated assault, and criminal conspiracy. In addition to the testimony of three eyewitnesses from the pharmacy, the Commonwealth presented evidence that hairs recovered from the hat/wig were consistent with hair samples taken from Appellant. At the conclusion of the trial, the jury found Appellant guilty of all charges. On October 24, 2000, the court sentenced Appellant to twenty one (21) to fifty six (56) years' imprisonment. This Court affirmed the judgment of sentence on November 26, 2001; our Supreme Court denied allowance of appeal on March 27, 2002. See Commonwealth v. Williams, B., 792 A.2d 620 (Pa.Super. 2001), appeal denied, 568 Pa. 700, 796 A.2d 982 (2002). Appellant filed his first PCRA petition on March 26, 2003. Ultimately, the court denied and dismissed the petition on September 27, 2004. This Court affirmed that decision on December 1, 2006. See Commonwealth v. Williams, B., 915 A.2d 153 (Pa.Super. 2006) (unpublished memorandum).
On March 25, 2010, Appellant filed his second and current petition for collateral relief, seeking DNA testing of hair samples found in the hat/wig discovered near the crime scene. The court issued notice of its intent to dismiss, pursuant to Pa.R.Crim.P. 907, on December 1, 2010, and dismissed the petition on January 5, 2011. On February 4, 2011, Appellant timely filed a notice of appeal. On February 7, 2011, the court ordered Appellant to file a concise statement of errors complained on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant timely complied on February 24, 2011.
Appellant raises two issues for our review:
WHETHER THE PCRA COURT ERRED IN FINDING THAT APPELLANT'S PCRA PETITION WAS UNTIMELY FILED? WHETHER THE PCRA COURT ERRED IN FINDING THAT DNA SAMPLES WERE AVAILABLE AND COULD HAVE BEEN TESTED BY APPELLANT PRIOR TO TRIAL AND THAT APPELLANT FAILED TO ESTABLISH A PRIMA FACIE CASE OF ACTUAL INNOCENCE IF EXCULPATORY RESULTS OF DNA TESTING COULD BE ESTABLISHED?
(Appellant's Brief 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." Commonwealth v. Lewis, 885 A.2d 51, 55 (Pa.Super. 2005), appeal denied, 588 Pa. 777, 906 A.2d 540 (2006). When reviewing an order denying a motion for post-conviction DNA testing, this Court determines whether the movant satisfied the statutory requirements listed in Section 9543.1. Commonwealth v. Brooks, 875 A.2d 1141, 1147-48 (Pa.Super. 2005). We can affirm the court's decision if there is any basis to support it, even if we rely on different grounds to affirm. See Commonwealth v. Heilman, 867 A.2d 542 (Pa.Super. 2005), appeal denied, 583 Pa. 669, 876 A.2d 393 (2005).
On appeal, Appellant first asserts the one-year time limitation does not apply to PCRA petitions that include a request for DNA testing under 42 Pa.C.S.A. § 9543.1. Appellant claims his PCRA petition should have been deemed timely because it encompassed a request for DNA testing of the hair samples from the hat/wig recovered near the crime scene. Appellant seems to suggest that embedding a request for DNA testing in an otherwise untimely PCRA petition automatically renders the petition timely in all respects. Appellant insists he made a prima facie case for DNA testing and that alone is sufficient to necessitate an evidentiary hearing on his companion claim of trial counsel's ineffectiveness for failing to obtain DNA testing of that evidence for trial. Appellant focuses on (1) the evidentiary importance of the hair samples, (2) his identity as a disputed issue at trial, and (3) the fact that DNA testing might lead to exculpatory evidence. Appellant contends Commonwealth v. Williams, R., 587 Pa. 304, 899 A.2d 1060 (2006) controls and entitles him straightaway to a hearing on his claim of trial counsel's ineffectiveness for failing to request DNA testing.
Appellant concludes this Court should grant his request for DNA testing and remand for a hearing on trial counsel's alleged ineffectiveness. For the reasons that follow, we cannot agree with Appellant's contentions.
Requests for post-conviction DNA testing are governed by statute at 42 Pa.C.S.A. § 9543.1, which provides in pertinent part: § 9543.1. Post-conviction DNA testing (a) Motion.−
(1) An individual convicted of a criminal offense in a court of this Commonwealth and serving a term of imprisonment or 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 ...