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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL P. KING 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1116 EDA 2018

Appeal from the PCRA Order March 28, 2018

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0014200-2009, 

CP-51-CR-0014201-2009

BEFORE: OTT, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY OTT, J.: FILED NOVEMBER 08, 2019

Michael P. King appeals from the order entered March 28, 2018, in the 

Philadelphia County Court of Common Pleas, dismissing as untimely filed his 

second petition for collateral relief filed pursuant to the Post Conviction Relief 

Act (“PCRA”), 42 Pa.C.S. §§ 9451-9546. King seeks relief from the judgment 

of sentence of an aggregate 231⁄2 to 47 years’ imprisonment imposed on July 

13, 2010, after his jury conviction of aggravated assault and criminal 

conspiracy1 at Docket No. 14200-2009, and possession with intent to deliver

(“PWID”) marijuana and fleeing or attempting to elude police officer2 at Docket 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 See 18 Pa.C.S. §§ 2702(a), and 903, respectively.

2 See 35 P.S. § 780-113(a)(30), and 75 Pa.C.S. § 3733(a), respectively.
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No. 14201-2009. On appeal, he argues the PCRA court abused its discretion 

when it denied: (1) his request for relief based upon the PCRA hearing 

testimony of a new eyewitness to the crime; and (2) his motion for DNA 

testing of a ski mask recovered from the scene of the crime. For the reasons 

below, we affirm.

The relevant facts underlying King’s conviction were summarized by the 

PCRA court as follows:

On July 24, 2009, Eric Jones was working as a plumber in the 

Raymond Rosen Manor Homes, a Philadelphia Housing Authority 

development located on the 2000 block of North Judson Street.

At approximately 1:30 p.m., Mr. Jones went outside to look for a 

part so that he could complete his assignment inside one of the 

houses on that block. When he came outside, he noticed a red 

truck in the middle of the street. Mr. Jones walked behind the 

truck, stepped into the middle of the street with his back facing 

the truck, and asked another Housing Authority employee at the 

corner of Judson and Diamond Streets whether a garbage disposal 

unit was available from the maintenance office. Hearing two 

gunshots very close to him, Mr. Jones turned and saw an arm 

extended outside the passenger window of the red truck. The 

passenger pointed and fired a semi-automatic handgun at Gregory 

Smith, who was approximately ten to twelve feet away from the 

passenger’s right side. 

As the shooter fired an additional five to six times, Mr. Jones saw 

smoke coming out of the gun. Having been shot in the chest a 

couple of times, Mr. Smith spun around and fell to the ground. 

Still, the passenger continued to fire his gun. When the shooting 

stopped, the truck drove the wrong direction on the one-way 

street. Mr. Jones ran down the street to find Housing Authority 

police. When he returned to the scene, Philadelphia police officers 

had already arrived. 

Police Officers Dominic Mathis, Kevin Overton, Kenneth Emmett, 

and Joseph Caruso were on summer beat patrol in this high crime 

area. As they stood on the southeast corner of Judson and Norris 

Streets, they also heard several gunshots coming from one block 
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away. Hearing those gunshots, Officers Overton, Emmett, and 

Caruso ran north on Judson Street. As they headed in that 

direction, they saw a bright red Ford pickup truck with tinted 

windows speed past them, going south on Judson Street. Looking 

through the truck’s front windshield, Officers Mathis and Caruso 

saw two black men inside the truck and noticed that the front 

passenger was larger than the driver. The passenger weighed 

approximately 200 to 250 pounds. The truck then turned right 

and headed westbound on Norris Street. 

When Officers Overton, Emmett, and Caruso arrived at the 

shooting scene, they encountered a frantic crowd of people who 

were yelling, screaming or running into their homes or onto their 

porches. They found Mr. Smith lying on the sidewalk in front of 

2056 North Judson Street. He was bleeding profusely as a result 

of being shot several times. Officer Overton and an unidentified 

woman applied pressure to Mr. Smith’s gunshot wounds in an 

effort to stop the bleeding. As the other officers tried to control 

the crowd, several people started yelling, “Get the red truck. Get 

the red truck. Get the guys in the red truck.” Officer Overton 

placed this information about a red truck over police radio. ... [Mr. 

Smith was later] admitted to Temple University Hospital, where 

he was treated for nine gunshot wounds to his back and flank and 

underwent surgery to repair his liver. He was discharged on July 

30, 2009. After Mr. Smith was taken to the hospital, Officers 

Overton, Emmett, and Caruso secured the crime scene and found 

fired cartridge casings in that area. They also attempted to find 

eyewitnesses, but no one was willing to cooperate. 

While Officers Overton, Emmett, and Caruso tended to the 

gunshot victim, controlled the crowd, and preserved the crime 

scene, Officer Mathis ran after the red truck, which was travelling 

westbound on Norris Street toward 25th Street. When Officer 

Mathis lost sight of the truck at 25th and Norris Streets, he alerted 

other officers of a red Ford truck with license plate YYD2101 and 

asked police travelling in that area to stop the truck. Officer 

Shanna Moore was travelling in the area of 29th and Diamond 

Streets when she heard Officer Mathis’ description of the truck 

over police radio. Minutes later, she saw a red truck matching this 

description on the 2500 block of Page Street, a small street 

between Norris and Diamond Streets, and signaled for the truck 

to stop. It did not stop, and Officer Moore gave chase. During 

this pursuit, the truck disregarded stop signs and traffic signals 

and drove in the wrong direction on many one-way streets. The 

truck slowed down on the 1600 block of Natrona Street, where 
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Officer Moore observed the passenger exiting the vehicle. Officer 

Moore informed other officers of the passenger’s exit over police 

radio and described the passenger as a “black male, lightcomplected, approximately 6’3”, 300 pounds, [wearing] tan 

pants, white shirt.” She could not tell which direction the 

passenger fled because he was still standing on the street when 

she continued to follow the truck. As she continued to pursue the 

truck, Officer Moore continued to inform the other responding 

officers of her location and progress over police radio. The truck 

essentially drove in a circle and returned to the 1700 block of 

Natrona Street, about one block from where the passenger exited 

the truck. When the truck stopped, the driver exited on the 1700 

block of Natrona Street. The truck crashed into a parked vehicle 

and was later held by other responding officers for investigation. 

Officer Moore parked her vehicle and pursued the driver on foot. 

Officer Moore lost sight of the driver when he ran into a breezeway 

near the 3200 block of Clifford Street. Officer Moore informed 

other officers over police radio that the driver exited the vehicle 

and described him as a “dark male, [wearing] dark colored 

clothing.” She also alerted officers that the truck had stopped on 

the 1700 block of Natrona Street and that the driver was running 

eastbound on the 3200 block of Eyre Street. Officer Moore then 

returned to the 1700 block of Natrona Street to confirm that no 

one on that block had been injured. 

Officers Forbes and Ricci responded to Officer Moore’s radio call 

and arrived at the 3200 block of Eyre Street, where they observed 

a man who matched Officer Moore’s description running through 

a breezeway between Eyre and Clifford Streets. Officers Forbes 

and Ricci ordered the man to the ground. They arrested the man, 

later identified as defendant Michael King in the middle of the 3200 

block of Clifford Street. Because they found no weapon on his 

person, they retraced defendant King’s steps, but were unable to 

recover a weapon. Within minutes, Officers Forbes and Ricci met 

Officer Moore, who then identified King as the driver. Defendant 

King was transported to Central Detectives Division for 

processing.

[The passenger, and King’s co-defendant, Jamar Stamps, was 

eventually found hiding in a home on the 3200 block of Turner 

Street. No gun was recovered from him. A ballistics expert 

testified at trial that the nine cartridge casings recovered from the 

scene were fired from the same .9mm gun. Four bullet fragments 

recovered were from a different firearm. An inspection of the red 
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truck reveal no bullet holes. King’s thumbprint was identified on 

the interior passenger door of the truck.] 

* * * *

In the bed of the pickup truck, [the assigned investigator, 

Detective Ralph Domenic,] recovered two Ziploc bags containing 

less than two pounds of marijuana. At trial Police Officer George 

Burgess, a narcotics officer qualified as an expert, opined that the 

marijuana was possessed with the intent to deliver, and that it 

had a total street value of more than $9,000 if sold in small 

quantities. Inside the truck, Detective Domenic recovered 

documents addressed to defendant King. Those documents 

included a rental agreement, a letter from a credit card company, 

and a letter from the Internal Revenue Service. Detective 

Domenic also recovered two photographs from the truck, one of 

which was printed on July 22, 2009 and depicted the victim, 

Gregory Smith, with his two brothers, Terrence Smith and 

Augustine Woodlong[,] at someone’s graduation in summer 2006. 

For about three or four years, Gregory and Terrence were seen 

numerous times with defendant King during high school basketball 

games. Their brother Augustine played basketball and graduated 

from Simon Gratz High School one year after defendant King. ...

Two fingerprints on the back right side of the photograph were 

identified as defendant King’s left index finger and left thumb. 

One fingerprint toward the back center of the photograph was 

identified as defendant King’s left thumb. ...

Detective Domenic discovered that the truck was registered to 

April Griffin, who declined a formal police interview. Detective 

Domenic also made several attempts to interview Mr. Smith, the 

shooting victim, but was unsuccessful due to Mr. Smith’s initial 

physical inability and later refusal to cooperate. The victim’s 

brother, Terrence Smith, also declined to be interviewed by 

Detective Domenic during his hospital visit.

PCRA Court Opinion, 7/27/2018, at 2-7 (record citations omitted).

King was subsequently charged at Docket No. 14200-2009 with 

attempted homicide,3 aggravated assault, conspiracy, and possession of an 

____________________________________________

3 See 18 Pa.C.S. §§ 901(a)/2502.
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instrument of crime4for his involvement in the shooting, and at Docket No. 

14201-2009, with PWID and fleeing and eluding police for the chase after the 

shooting. The case proceeded to a jury trial. On May 4, 2009, the jury found

King guilty of aggravated assault and conspiracy at Docket No. 14200-2009, 

and both offenses at Docket No. 14201-2009. The jury acquitted King of 

attempted homicide and possession of an instrument of crime.5

On July 13, 2010, the trial court imposed the following sentence: (1) at 

Docket No. 14200-2009, at term of 10 to 20 years’ imprisonment for 

aggravated assault, and a consecutive term of 10-20 years’ imprisonment for 

conspiracy; and (2) at Docket No. 14201-2009, a term of two and one-half to 

five years’ imprisonment for PWID and a consecutive term of one to two years’ 

imprisonment for fleeing police. The court directed the sentences at both 

dockets to run consecutively to each other, for an aggregate term of 231⁄2 to 

47 years’ incarceration.

King filed a timely direct appeal challenging three purported evidentiary 

errors as well as the trial court’s refusal to grant a mistrial following alleged 

prosecutorial misconduct. This Court affirmed the judgment of sentence on 

direct appeal, and the Pennsylvania Supreme Court denied King’s petition for 

____________________________________________

4 See 18 Pa.C.S. § 907.

5 King was tried jointly with his co-defendant, Stamps. Stamps was convicted 

of, inter alia, attempted homicide and criminal conspiracy, and sentenced to 

serve an aggregate term of 401⁄2 to 81 years’ imprisonment. See 

Commonwealth v. Stamps, 47 A.3d 1244 (Pa. Super. 2012) (unpublished 

memorandum), appeal denied, 49 A.3d 443 (Pa. 2012).
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allowance of appeal. See Commonwealth v. King, 47 A.3d 1235 (Pa. Super. 

2012) (unpublished memorandum), appeal denied, 49 A.3d 442 (Pa. 2012).

On September 4, 2012, King filed a timely, pro se PCRA petition, raising 

various claims concerning the ineffective assistance of trial counsel. Counsel 

was appointed, and filed an amended petition on February 3, 2014. However, 

on July 7, 2014, King filed a petition seeking permission to proceed pro se. 

Following a Grazier6 hearing, the trial court granted King permission to 

proceed pro se, and King subsequently filed two additional amended PCRA 

petitions. On February 13, 2015, the PCRA court issued notice of its intent to 

dismiss King’s petition without first conducting an evidentiary hearing 

pursuant to Pa.R.Crim.P. 907. Although King filed a pro se objection on 

February 18, 2015, the court, nevertheless, dismissed King’s petition on March 

13, 2015. King filed a timely appeal to this Court.

While that appeal was pending, King filed the present PCRA petition, his 

second, on August 29, 2016, alleging after-discovered evidence, namely a 

new eyewitness to the shooting who claimed King was not involved. On 

October 5, 2016, a panel of this Court affirmed the denial of relief from his 

first PCRA petition. See Commonwealth v. King, 159 A.3d 34 (Pa. Super. 

2016). Thereafter, on April 7, 2017, King inquired as to the status of his 

August 2016 petition. The PCRA court directed the Commonwealth to file a 

response to that petition, and, on October 13, 2017, the Commonwealth filed

____________________________________________

6 See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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a motion to dismiss. Counsel was appointed for King, and filed a response to 

the motion to dismiss on December 7, 2017. Subsequently, on January 12, 

2018, counsel filed a motion for discovery, seeking production of a “black 

mask” that was recovered from the crime scene, and DNA testing on that 

mask. Motion for Discovery, 1/12/2018, at ¶ 33. The court denied the motion 

on January 26, 2018. King then filed a second motion for discovery, seeking 

a list of rogue police officers who were the subject of an online news article 

published on February 13, 2018, in order to determine if any of those officers 

were involved in King’s case. The case proceeded to a bifurcated PCRA hearing 

that began on March 9, 2018, and was scheduled to continue on March 28, 

2018. In the meantime, on March 16, 2018, King filed another motion seeking 

DNA testing of the black mask recovered from the crime scene pursuant to 42 

Pa.C.S. § 9543.1, in order to corroborate his after-discovered evidence claim. 

After the conclusion of the evidentiary hearing on March 28, 2018, the PCRA 

court entered an order dismissing King’s second PCRA petition, and denying 

his request for DNA testing. This timely appeal followed.7 

____________________________________________

7 On April 12, 2018, the PCRA court ordered King to file a concise statement 

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). King 

complied with the court’s directive, and filed a concise statement on April 17, 

2018.

We note King filed a single notice of appeal from the order in question, despite 

the fact that the order disposed of two separate cases (Docket Nos. 14200-

2009 and 14201-2009 ). This was common practice before June 1, 2018, 

when the Pennsylvania Supreme Court decided Commonwealth v. Walker, 

185 A.3d 969 (Pa. 2018). In Walker, the Court held that “when a single order 
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In his first issue on appeal, King contends the PCRA court abused its 

discretion when it denied his request for a new trial based upon the afterdiscovered evidence. “In reviewing the denial of PCRA relief, we examine 

whether the PCRA court’s determination is supported by the record and free 

of legal error.” Commonwealth v. Mitchell, 141 A.3d 1277, 1283-1284 (Pa. 

2016) (internal punctuation and citation omitted). “The PCRA court’s 

credibility determinations, when supported by the record, are binding on this 

Court; however, we apply a de novo standard of review to the PCRA court’s 

legal conclusions.” Commonwealth v. Small, 189 A.3d 961, 971 (Pa. 2018)

Before we may address the merits of King’s underlying claim, we must 

first determine if the petition was timely filed.8 The requirement that a PCRA 

petition must be filed within one year of the date the underlying judgment 

becomes final “is mandatory and jurisdictional in nature.” Commonwealth 

v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied, 134 S.Ct. 2695 (U.S. 

2014). See also 42 Pa.C.S. § 9545(b)(1). “The court cannot ignore a 

petition’s untimeliness and reach the merits of the petition.” Id. Here, King’s 

____________________________________________

resolves issues arising on more than one lower court docket, separate notices 

of appeal must be filed[, and t]he failure to do so will result in quashal of the 

appeal. Id. at 977. However, the Court held the decision would be applied 

prospectively only. See id. Because the notice of appeal herein was filed 

before Walker, we need not quash King’s appeal. 

8 We note while the PCRA court addressed the timeliness of King’s petition in 

its opinion, it did not specifically determine whether the petition met the 

timeliness exception set forth at 42 Pa.C.S. § 9545(b)(2)(ii). See PCRA Court 

Opinion, 7/27/2018, at 9. Rather, the court simply concluded the underlying 

claim was meritless. See id. at 11. 
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judgment of sentence was final on November 6, 2012, 90 days after the 

Pennsylvania Supreme Court denied his petition for allowance of appeal, and 

King failed to file a petition for writ of certiorari in the United States Supreme 

Court. See 42 Pa.C.S. § 9545(b)(3); U.S. Sup.Ct.R. 13. Therefore, King had 

until November 6, 2013, to file a timely PCRA petition. The one before us, 

filed almost three years later, is patently untimely.

Nevertheless, an untimely PCRA petition may still be considered if one 

of the three time-for-filing exceptions applies. See 42 Pa.C.S. § 

9545(b)(1)(i)-(iii). A PCRA petition alleging any of the exceptions under 

Section 9545(b)(1) must be filed within 60 days of when the PCRA claim could 

have first been brought.9 See 42 Pa.C.S. § 9545(b)(2).

Upon our review, we find King has sufficiently invoked the newly 

discovered facts exception to the timing requirements set forth in Subsection 

9545(b)(1)(ii). The Act provides an exception to the one-year filing 

requirement when the petitioner alleges and proves “the facts upon which the 

claim is predicated were unknown to the petitioners and could not have been 

ascertained by the exercise of due diligence[.]” 42 Pa.C.S. § 9454(b)(1)(ii). 

Accordingly, the timeliness exception at Subsection 9545(b)(1)(ii), 

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9 The Legislature recently amended Subsection 9545(b)(2), which now grants 

a petitioner one year to invoke one of the timing exceptions. See Section 3 

of Act 2018, Oct. 24, P.L. 894, No. 146. The amendment, however, applies 

only to claims arising on or after December 24, 2017. Therefore, it is 

inapplicable here.
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has two components, which must be alleged and proved. Namely, 

the petitioner must establish that: 1) the facts upon which the 

claim was predicated were unknown and 2) could not have been 

ascertained by the exercise of due diligence. If the petitioner 

alleges and proves these two components, then the PCRA court 

has jurisdiction over the claim under this subsection.

Commonwealth v. Brown, 111 A.3d 171, 176–177 (Pa. Super. 2015)

(quotation omitted and emphasis in original), appeal denied, 125 A.3d 1197 

(Pa. 2015). The Section 9545 exception “does not require any merits analysis 

of an underlying after-discovered-evidence claim.” Id. at 177 (footnote 

omitted).

Here, the facts upon which the claim was predicated, i.e., Pope’s 

assertion that he was an eyewitness to the crime and the crime was not 

committed by King, were unknown to King until July of 2016, and could not 

have been ascertained by the exercise of due diligence. Indeed, Pope was a 

previously unknown witness who did not know King at the time of the crime.

See Petition for Post Conviction Relief Act, 8/29/2016, at Exhibit A, Affidavit 

of Kailif Pope, 8/9/2016. Furthermore, King filed the present PCRA petition 

less than 60 days after speaking with Pope about the shooting. See 42 Pa.C.S. 

§ 9545(b)(2). Therefore, we conclude King’s petition filed on August 29, 

2016, successfully invoked the newly discovered facts exception to the PCRA’s 

timing requirements, and we may proceed to consider his substantive claim 

on appeal. 

As noted above, King’s first issue challenges the PCRA court’s refusal to 

grant him a new trial based upon after-discovered evidence, namely, 

exculpatory testimony from a new eyewitness to the crime, Kailif Pope. Our 
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analysis of an after-discovered evidence claim consists of a four-part test, 

which requires the defendant to demonstrate the new evidence:

(1) could not have been obtained prior to the conclusion of the 

trial by the exercise of reasonable diligence; (2) is not merely 

corroborative or cumulative; (3) will not be used solely to impeach 

the credibility of a witness; and (4) would likely result in a different 

verdict if a new trial were granted.

Small, supra, 189 A.3d at 972. In determining whether introduction of the 

new evidence would likely result in a different verdict if a new trial was 

granted, the PCRA court “should consider the integrity of the alleged afterdiscovered evidence, the motive of those offering the evidence, and the overall 

strength of the evidence supporting the conviction.” Commonwealth v.

Padillas, 997 A.2d 356, 365 (Pa. Super. 2010), appeal denied, 14 A.3d 826 

(Pa. 2010).

At the evidentiary hearing, Pope testified that on July 24, 2009, just 

prior to the shooting, he was walking up Judson Street to meet a friend. See

N.T., 3/9/2018, at 20-21. He saw a man wearing a ski mask walk between a 

red truck that was stopped in the street and a parked car, pull out a gun, and 

start shooting. See id. at 21. Pope claimed the shooter then took off the 

mask and dropped it on the ground. See id. He stated the man in the mask 

was a short, “light skin guy with dreads,” who looked nothing like King. Id. 

After witnessing the shooting, Pope claimed he ran because he was only 16 

years old at the time and he was “scared.” Id. at 35. He also testified that 

he told one friend what he saw that day, but never told anyone else. See id.

at 22. Pope explained he met King for the first time in April of 2016 when 
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they were cellmates in prison. See id. at 16-17. He stated that on July 24,

2016, King “seemed like he was stressed” and “wasn’t acting like his normal 

self.” Id. at 19. When Pope asked King what was wrong, King told him it was 

“the anniversary of the day he was convicted of a crime.” Id. at 20. Pope

then told King he witnessed the shooting. See id. He stated, “I would never 

forget seeing somebody get shot.” Id.

King argues Pope’s testimony satisfies the criteria for establishing the 

existence of after-discovered evidence, and the PCRA court abused its 

discretion when it declined to grant him a new trial. See King’s Brief at 16-

17. He emphasizes Pope’s testimony (1) could not have been obtained prior 

to trial, (2) was not merely corroborative or cumulative, and (3) would not 

have been used solely to impeach another witness’s credibility. See id. at 18. 

Rather, King asserts Pope’s testimony “was completely different than the 

narrative of how this shooting occurred that the Commonwealth presented to 

the jury.” Id. Moreover, he insists if Pope had testified at trial,

it would have strengthened [] King’s theory of there being an 

alternative explanation for the shooting that occurred and that this 

alternative explanation would have given the jury grounds for 

concluding that reasonable doubt existed. As a result, a not guilty 

verdict would have resulted.

Id. at 19.

The PCRA court concluded, however, that Pope’s account of the shooting 

is “highly suspect, lacking in credibility, and not worthy of belief.” N.T., 

3/28/2018, at 80. At the conclusion of the hearing, the PCRA court detailed 

the basis for its ruling:
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[Pope] would have this Court believe that he was on the scene 

and witnessed the shooting. Further, he stated that the shooter 

committed the actual crime while wearing a mask, a mask which 

he then immediately removed after the shooting in the presence 

of others and discarded same at the crime scene.

As aforementioned, that account is wholly lacking in believability. 

Thus, it would not likely result in a difference verdict if a new trial 

were granted. That is especially so when one examines the 

evidence presented at Mr. King’s trial. Mr. King and his 

codefendant Mr. Stamps were arrested after fleeing the scene of 

the shooting in a red truck driven by petitioner.

A witness stated at trial that the arm of an African-American male 

extended from the passenger side of the red truck and fired 

multiple shots into the body of the victim in this case, Gregory 

Smith.

Unknown to the assailants, a group of police cadets in training 

were one block away, heard the shooting and some responded to 

the scene. Upon arrival, members of the crowd gathered there, 

yelled get the red truck, which was pursued.

During the pursuit, Mr. Stamps jumped out of the moving truck, 

but was eventually arrested in the immediate area. Mr. King 

continued but later he, too, abandoned the truck and was arrested 

a short distance therefrom.

Inside the truck driven by Mr. King was a photograph of the victim 

and paperwork in Petitioner Michael King’s name. There was also 

a quantity of marijuana in the truck bed. ...

... Clearly, the black mask is a red herring with no connection to 

this case.

 Id. at 81-83. We find the court’s credibility determination is supported by 

the record, and, therefore, binding on this Court. See Small, supra, 189 

A.3d at 971. Pope’s claim that the shooting was committed by a man in a 

black ski mask contradicts the evidence at trial that the shooting was 

committed by the passenger in the red truck. The evidence established that 

Jones witnessed the shooter extend his arm from the truck’s passenger 
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window and fire multiple shots at Smith, the truck sped from the scene 

immediately after the shooting, and the gathering crowd told the police to 

“Get the red truck.” PCRA Court Opinion, 7/27/2018, at 2-3. Furthermore, 

while a black knit ski mask was recovered at the scene, the assigned 

investigator, Detective Ralph Dominic, testified at the evidentiary hearing that 

he did not submit the ski mask for DNA testing because “[t]here was no 

evidence to connect that mask to the incident whatsoever.” Id. at 46. 

Indeed, neither Eric Jones, nor any of neighbors, ever stated the shooter wore 

a mask over his face. See id. at 51-52. Therefore, Detective Dominic 

assumed the hat was simply debris left on the street. See id. at 54.

Accordingly, we agree with the PCRA court that Pope’s unbelievable 

account of the shooting, which he revealed for the first time after he became 

King’s cellmate, would not “likely result in a different verdict if a new trial were 

granted.” Small, supra, 189 A.3d at 972. Thus, Pope’s first issue fails.

Next, King contends the PCRA court abused its discretion when it denied 

his motion for DNA testing on the black ski mask. See King’s Brief at 20. 

Again, we find he is entitled to no relief.

A criminal defendant may seek post-conviction DNA testing of specific 

evidence pursuant to 42 Pa.C.S. § 9543.1. While a motion for DNA testing is 

not subject to the PCRA’s one-year time bar, the request must be made “in a 

timely manner.” 42 Pa.C.S. § 9543.1(d)(iii); Commonwealth v. Walsh, 125 

A.3d 1248, 1252 (Pa. Super. 2015). The statute first requires the applicant 

to specify the evidence to be tested, consent to provide his own DNA samples, 
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and assert his “actual innocence of the offense for which [he] was 

convicted[.]” 42 Pa.C.S. § 9543.1(c)(1)-(2). The applicant must then 

establish a prima facie case demonstrating that: (a) the identity of the 

perpetrator in the case was at issue, and (b) DNA testing of the evidence, 

“assuming exculpatory results, would establish ... the applicant’s actual 

innocence of the offense for which the applicant was convicted[.]” 42 Pa.C.S. 

§ 9543.1(c)(3)(i)-(ii)(A) (emphasis supplied).

In the present case, King concedes DNA testing of the black ski mask 

recovered from the crime scene “may not have been enough to change the 

outcome of [his] trial[.]” King’s Brief at 23. However, he insists “the 

additional testimony of post-conviction witness Kailif Pope changed all that.” 

Id. King argues: “That said additional testimony made [King’s] claim of 

actual innocence far more acceptable by a trier of fact and now called for the 

said ‘black mask’ to undergo DNA testing to determine if that hat was worn 

by co-defendant Jamar Stamps, or even the Defendant, [] King, or by 

someone else.” Id.

The PCRA court, however, concluded King failed to show “how any DNA 

findings would have led to a different outcome at trial.” PCRA Court Opinion, 

7/27/2018, at 13. We agree. First, as the PCRA court points out, King’s 

“entire case is based upon the discredited testimony of Kailif Pope.” Id. Pope 

provided the only testimony connecting the ski mask to the crime, and the 

PCRA court found his testimony to be incredible. Moreover, even if Pope’s 

testimony was believed, and the shooter did wear a ski mask, the 
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Commonwealth never asserted that King was the actual shooter. Rather, he 

was tried as the shooter’s co-conspirator/accomplice. Therefore, even if the 

DNA test revealed none of King’s DNA on the ski mask, it would not establish 

his actual innocence of the crime. See Commonwealth v. Smith, 889 A.2d 

582, 585 (Pa. Super. 2005) (affirming PCRA court’s denial of defendant’s 

request to conduct DNA testing of victim’s fingernail clippings; no evidence at 

trial that victim scratched her attacker so that “[m]erely detecting DNA from 

another individual on the victim’s fingernails, in the absence of any evidence 

as to how and when that DNA was deposited, would not exculpate appellant 

by pointing to a different assailant.”), appeal denied, 905 A.2d 500 (Pa. 2006). 

Indeed, even if DNA recovered from the ski mask matched neither King 

nor Stamps, there was no evidence presented at trial that the shooter wore a 

ski mask, let alone took it off and dropped it on the ground immediately after 

the shooting. Rather, as noted above, Jones testified the shooter was the 

passenger in the red truck, the crowd at the scene told the responding officers 

to follow the truck, the truck sped from the crime scene immediately after the 

shooting, King was stopped after abandoning the truck, and a picture of the 

victim and mail addressed to King were recovered from the truck. See PCRA 

Court Opinion, 7/27/2018, at 2-7. There is no indication the ski mask had 

any connection to the crime, save for Pope’s discredited testimony. 

Accordingly, no relief is warranted.

Order affirmed.
J-S42014-19

- 18 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/8/19