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Commonwealth of Pennsylvania v. Jason Gacobano

April 12, 2013

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
JASON GACOBANO, APPELLANT



Appeal from the PCRA Order March 12, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1003062-1995

The opinion of the court was delivered by: Bowes, J.:

J-S21018-13

BEFORE: BENDER, BOWES, and LAZARUS, JJ.

OPINION BY BOWES, J.:

Jason Gacobano appeals from the March 12, 2012 order denying his petition for DNA testing. We affirm.

At approximately 11:30 p.m. on August 28, 1995, the victim, C.W., was asleep in her Philadelphia home when Appellant, Camilio Gonzalez, and a third unidentified male forced their way into the residence. The three men pointed a gun at C.W., and Appellant, who removed a mask that he was wearing, raped the victim in front of his two cohorts. The three men told her that they had been paid to assault her for something that her husband had done. Then, Gonzalez raped C.W. while the unidentified male forced her to perform oral sex on him. During this brutal sexual assault, the victim was told to remain quiet or she would never see her son again. After the assault, C.W. was forced to wash herself in the bathtub, and her ponytail was cut off with a razor. After the three men bound C.W.'s feet and hands together with shoe laces, they were interrupted by police who had been called to the scene.

As police entered, Appellant, Gonzalez, and the third man jumped into the rear yard from the bathroom window. Appellant and Gonzalez were apprehended at the scene and identified as her rapists by C.W. In the area of Appellant's arrest, police recovered the victim's ponytail, a ski mask, vinyl gloves, and a loaded semi-automatic pistol. After she gave a statement to police, C.W. exited the police headquarters and purchased a bag of heroin. She was arrested and encountered Appellant and Gonzalez at the police station. While he pretended to shoot a gun at his head, Appellant told C.W. that he would kill her if she testified against him. On August 22, 1996, a jury convicted Appellant of rape, involuntary deviate sexual intercourse, burglary, possession of an instrument of crime, and conspiracy. On November 25, 1996, he was sentenced to fourteen and one-half to fifty years imprisonment.

On July 21, 1998, we affirmed the judgment of sentence and rejected four contentions, including that the trial court erred in determining that C.W. was competent to testify at trial despite the fact that she admittedly was a heroin addict. Commonwealth v. Gacobano, 724 A.2d 954 (Pa.Super. 1998) (unpublished memorandum). Appellant did not seek review in the Supreme Court. Appellant filed his first PCRA petition on December 14, 1998, counsel was appointed, and counsel filed a petition to withdraw and no-merit letter. The PCRA court denied relief on May 24, 2000, and the ensuing appeal was dismissed after a brief was not filed.

On March 1, 2001, Appellant filed a second PCRA petition that was dismissed. On appeal, we affirmed and specifically concluded that the 2001 petition was untimely and that, under 42 Pa.C.S. § 9545, Appellant had until August 20, 1999, to file a timely PCRA petition. Commonwealth v. Gacobano, 815 A.2d 1125 (Pa.Super. 2002) (unpublished memorandum). Next, Appellant, on August 10, 2006, filed a petition seeking DNA testing of crime scene evidence. The PCRA court concluded that Appellant was not entitled to post-conviction DNA testing under the pertinent statute, 42 Pa.C.S. § 9543.1.*fn1 On appeal, we affirmed. Commonwealth v. Gacobano, 987 A.2d 813 (Pa.Super. 2009) (unpublished memorandum). We noted that under § 9543.1, in order to obtain post-conviction DNA testing, a defendant must establish, as a preliminary matter: 1) that the technology for DNA testing did not exist at the time of trial; 2) counsel did not ask for the testing in a case where the verdict was rendered on or before January 1, 1995; or 3) the indigent defendant sought and was denied DNA testing. We concluded that Appellant could not satisfy any of those mandates in that his jury verdict was rendered after January 1, 1995, DNA testing existed when Appellant was tried, and Appellant never was refused funding for such a test.

On April 18, 2011, Appellant filed a fourth petition for post-conviction relief in which he asked the court to vacate the judgment of sentence based, inter alia, on the fact that he was denied DNA testing. He asserted therein that the petition should not be considered a PCRA petition. After the court issued notice of its intent to dismiss the petition without a hearing, Appellant filed a response wherein he again asserted that he was requesting DNA testing of crime scene evidence. That petition was dismissed on March 12, 2012, and, in this ensuing appeal, Appellant asserts, "Did the lower court erred [sic] when it denied petitioner's successive PCRA filing and request for DNA testing of evidence recovered, when petitioner's actual innocence claim rest[s] solely on the results of DNA testing never done and/or presented to the jury?" Appellant's brief at 3.

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 § 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)."*fn2 Accord Commonwealth v. Scarborough, 2013 WL 1173989, 5 (Pa. 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) ("This Court has consistently held the one-year jurisdictional time bar of the PCRA does not apply to motions for DNA testing under Section ...


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