J. S37033/19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

MICHAEL WALKER, : No. 2866 EDA 2018

:

 Appellant :

Appeal from the PCRA Order Entered August 24, 2018,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0004505-2012

BEFORE: BOWES, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 16, 2019

Michael Walker appeals pro se from the August 24, 2018 order entered 

in the Court of Common Pleas of Philadelphia County dismissing his second 

PCRA 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 procedural history as follows:

On March 22, 2012, [appellant] was arrested and 

charged with Aggravated Assault, Robbery, Indecent 

Assault and related charges. On July 17, 2013, 

testimony began in [appellant’s] jury trial. On 

July 18, 2013, [appellant] pled guilty to Robbery 

(18 Pa.C.S.[A.] § 3701(a)(1)(i)), a felony of the first 

degree, and Aggravated Assault (18 Pa.C.S.[A.] 

§ 2702(a)(1)), a felony of the first degree, under the 

terms of a negotiated plea. [Appellant] also pled 

nolo contendere to Indecent Assault (18 Pa.C.S.[A.] 

§ 3126(a)(1)), a misdemeanor of the second degree.
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On July 18, 2013, [appellant] was sentenced to two 

terms of 8-16 years[’ incarceration] each on the 

Robbery and Aggravated Assault charges, sentences 

to run concurrently. Sentencing was deferred on the 

Indecent Assault; a Pre-Sentence Investigation 

Report, Me[n]tal Health Evaluation and Psychiatric 

Evaluation were ordered. On September 12, 2013, 

[appellant] was sentenced to two years of probation 

for Indecent Assault to run consecutive to the Robbery 

and Aggravated Assault sentences. [Appellant] did 

not file a direct appeal.

On April 9, 2014, [appellant] filed a PCRA Petition. On 

March 11, 2015, Attorney Henry McGregor Sias 

(“Attorney Sias”) entered his appearance on behalf of 

[appellant]. On June 30, 2015, Attorney Sias filed a 

Finley Letter pursuant to Finley v. Pennsylvania, 

481 U.S. 551, 107 S. Ct. 1990, 95 L. Ed. 2d 539 

(1987), Commonwealth v. Turner, 544 A.2d 927 

(Pa. 1988), and Commonwealth v. Friend, 896 A.2d 

607 (Pa.Super. 2006). The Finley letter concluded 

that (1) [appellant’s] claims were waived, and 

(2) [appellant’s] claims were meritless. On the same 

date Attorney Sias also filed a Motion to Withdraw as 

Counsel. On August 12, 2015, the [PCRA c]ourt filed 

a Notice of Intent to Dismiss pursuant to Rule 907. 

On October 26, 2015, the [PCRA c]ourt formally 

dismissed [appellant’s] PCRA Petition.

On November 23, 2015, [appellant] file[d] a Notice of 

Appeal. On December 2, 2015, the [PCRA c]ourt 

ordered [appellant] to provide a Concise Statement of 

Errors Complained of on Appeal pursuant to 

Pa.R.A.P. 1925(b). On December 7, 2015, [appellant]

filed a Statement of Errors Complained of on Appeal 

(“Statement I”) . . . .

. . . .

. . . . On April 25, 2016 the PCRA [c]ourt issued an 

opinion. On January 24, 2017[,] the Superior Court 

affirmed, holding that [appellant] had waived the 

issue presented in his appellate brief.
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PCRA court opinion, 11/15/18 at 1-3.

On February 20, 2018, appellant filed pro se a PCRA petition, his 

second, seeking relief on the grounds that his plea was allegedly unlawfully 

induced. The PCRA petition also included a request for “new DNA testing to 

prove my innocen[ce.]” (Appellant’s motion for PCRA relief, 2/20/18 at 4.) 

On June 8, 2018, the PCRA court notified appellant, pursuant to 

Pa.R.Crim.P. 907, of its intent to dismiss the PCRA petition as untimely filed 

and failing to invoke an exception to the PCRA jurisdictional time-bar. 

Appellant did not file a response. The PCRA court subsequently dismissed 

appellant’s PCRA petition. 

Appellant filed pro se a timely notice of appeal. The PCRA court ordered

appellant to file a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. The PCRA court 

subsequently issued its Rule 1925(a) opinion.

Appellant raises the following issue for our review:

Did the [PCRA] court err by treating the pro se

appellant’s inartful but fairly obvious attempt to seek 

post-conviction DNA testing using a standard, 

preprinted Department of Corrections form as a 

time-barred, serial “PCRA Petition” which it promptly 

dismissed without providing appellant with notice or 

the opportunity to respond and address the 

deficiencies in his pleading as contemplated by 

Pa.R.Crim.P. 905?

Appellant’s brief at 4 (emphasis added, full capitalization omitted).
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Appellant claims the PCRA court erred in dismissing his request for DNA 

testing which was made using a standard, pre-printed PCRA petition form and 

argues he should have been permitted to amend his request for any 

deficiencies. (Id. at 13-15.)

When examining the propriety of an order resolving a request for 

DNA testing, this court must apply the PCRA standard of review. See 

Commonwealth v. Gacobano, 65 A.3d 416, 419 (Pa.Super. 2013) (citation 

omitted). “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.” Id. (citation omitted). “The PCRA court’s 

findings will not be disturbed unless there is no support for the findings in the 

certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014) 

(citations omitted). “This Court grants great deference to the findings of the 

PCRA court, and we will not disturb those findings merely because the record 

could support a contrary holding.” Commonwealth v. Hickman, 799 A.2d 

136, 140 (Pa.Super. 2002) (citation omitted).

This court has previously held that:

the one-year jurisdictional time bar of the PCRA does 

not apply to motions for DNA testing under Section 

9543.1. . . .

[A] motion for post-conviction DNA testing does not 

constitute a direct exception to the one year time limit 

for filing a PCRA petition. Instead, it gives a convicted 

person a vehicle to first obtain DNA testing which 

could then be used within a PCRA petition to establish 
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new facts in order to satisfy the requirements of an 

exception under 42 Pa.C.S.A. § 9545(b)(2).

. . . . When presented with a hybrid filing that 

comingles PCRA claims and a request for DNA testing, 

the standard set forth in Section 9543.1 requires the 

court to address the DNA request first and foremost. 

A petitioner who is unable to obtain DNA testing under 

Section 9543.1 can still pursue [a] claim under the 

PCRA . . . but only if the PCRA petition is timely filed 

or otherwise meets one of the statutory exceptions to 

the timeliness requirements.

Commonwealth v. Williams, 35 A.3d 44, 50-51 (Pa.Super. 2011) (citations 

and quotation marks omitted), appeal denied, 50 A.3d 121 (Pa. 2012). This 

court has observed, “[t]o consider a request for DNA testing as untimely based 

solely on the nomenclature used would merely elevate form over substance.” 

Commonwealth v. Young, 873 A.2d 720, 724 n.2 (Pa.Super. 2005), appeal 

denied, 891 A.2d 733 (Pa. 2005), overruled on other grounds by 

Commonwealth v. Wright, 14 A.3d 798 (Pa. 2011). In reviewing a denial 

of a request for post-conviction DNA testing, this court must determine if the 

requirements of Section 9543.1 are satisfied and may affirm the PCRA court’s 

decision on any grounds provided there is a basis of support. 

Commonwealth v. Walsh, 125 A.3d 1248, 1253 (Pa.Super. 2015). In

contrast, we review the PCRA court’s legal conclusions de novo. 

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).
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Section 9543.1, as enacted at the time appellant filed his instant PCRA 

petition, stated, in pertinent part, as follows:1

§ 9543.1. Postconviction 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.

 

1 We note that Section 9543.1 was amended and the new language became

effective December 24, 2018. See Act 2018, Oct. 24, P.L. 896, No. 147, § 1. 

Because appellant filed his petition on February 20, 2018, this amended 

language does not apply.
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. . . .

(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 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:
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(A) the applicant’s actual 

innocence of the 

offense for which the 

applicant was 

convicted; . . .

Former 42 Pa.C.S.A. § 9543.1

Here, a review of appellant’s PCRA petition demonstrates that appellant 

made a request for DNA testing; a request that must be bifurcated from 

appellant’s PCRA petition.

2

 Therefore, we shall address appellant’s claim for 

post-conviction DNA testing pursuant to Section 9543.1 and need not apply 

the provisions of Section 9545 herein.

The record demonstrates that in his request for DNA testing, appellant 

failed to identify the specific evidence for which he seeks DNA testing as 

required by Section 9543.1(a)(1) and (c)(1)(i). In addition, appellant failed 

to state that he consented to provide samples of bodily fluid for use in the 

DNA testing and acknowledge that any data 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. See 42 Pa.C.S.A. § 9543.1(c)(1)(ii) and (iii). While 

he asserted his actual innocence in his PCRA petition, appellant failed to 

 

2 We note that appellant does not challenge the PCRA court’s dismissal of his

PCRA petition, requesting relief for an unlawfully induced sentence, as 

untimely and failing to invoke one of the three statutory exceptions to the 

jurisdictional time-bar. Therefore, appellant has waived this claim. See 

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (reiterating that any 

issues not raised in a Rule 1925(b) statement are waived).
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present a prima facie case demonstrating that his identity or the participation 

in the crime as the perpetrator was at issue or that DNA testing of specific 

evidence, assuming exculpatory results, would establish actual innocence. Id.

at § 9543.1(c)(2) and (3)(i) and (ii)(A). Therefore, appellant’s request for 

DNA testing failed to satisfy the requirements for such a request pursuant to 

Section 9543.1.

Appellant argues the PCRA court should have permitted appellant to file 

an amended pleading to address the deficiencies in his request for DNA testing

pursuant to Pennsylvania Rule of Criminal Procedure 905(B). (Appellant’s 

brief at 14-15.) Rule 905(B) states, “[w]hen a petition for post-conviction 

collateral relief is defective as originally filed, the [PCRA court] shall order 

amendment of the petition.” Pa.R.Crim.P. 905(B) (emphasis added).

Here, appellant co-mingled his request for DNA testing with his petition 

for PCRA relief. The request for DNA testing is a motion made pursuant to 

Section 9543.1 and is not a PCRA petition. Rule 905 deals specifically with 

PCRA petitions and is not intended to include motions for DNA testing filed 

pursuant to Section 9543.1. Consequently, appellant’s argument is without 

merit.

Moreover, to the extent appellant seeks to have a second DNA test 

performed on the same evidence that was previously tested, Section 9543.1 

was not intended to permit such a request. The language of Section 9543.1, 

providing petitioners an opportunity for DNA testing of evidence discovered 
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prior to conviction if “the technology for testing was not in existence at the 

time of the trial” indicates that the purpose of Section 9543.1 was to provide 

the first-time DNA testing of such evidence once testing was available. See

former 42 Pa.C.S.A. § 9543.1(a)(2). In the instant case, appellant had DNA 

testing performed; and the PCRA court explained, “the DNA results in question 

establish conclusively that [appellant’s] DNA was found in a sperm fraction 

from a vaginal swab collected from the complainant.” (PCRA court opinion, 

11/15/18 at 10-11.)

For all of these reasons, we find that the trial court’s denial of appellant’s 

request for DNA testing pursuant to Section 9543.1 is supported by the record 

and is free of legal error. Therefore, appellant’s claim fails.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/16/19