J-S19034-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

EDWARD L. DAVIS, :

:

Appellant : No. 2547 EDA 2014

Appeal from the PCRA Order entered on July 31, 2014

in the Court of Common Pleas of Philadelphia County,

Criminal Division, No. CP-51-CR-0524311-1987

BEFORE: STABILE, JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED APRIL 09, 2015

Edward L. Davis (“Davis”) appeals from the Order dismissing his first 

Petition filed pursuant to the Post Conviction Relief Act (“PCRA”),1and 

denying his Motion for Post-Conviction DNA Testing (hereinafter “the DNA 

Motion”). We affirm.

The PCRA court set forth the relevant procedural history underlying 

this appeal as follows:

In October 1988, following [a non-jury trial, the trial court] 

..., found [Davis] guilty of murder in the first-degree, possession 

of [an] instrument of crime, two counts of kidnapping, and four 

counts of simple assault .... [The murder victim was the mother 

of two of Davis’s children. Seven weeks before the murder, 

Davis had kidnapped two of the victim’s acquaintances at 

gunpoint and forced them to tell him where the victim was 

located. When Davis was released on bail concerning the 

kidnapping charges, he murdered the victim in her home, while 

her children were present.] Davis was subsequently sentenced 

to the mandatory term of life imprisonment. Davis appealed to 

 

1 See 42 Pa.C.S.A. §§ 9541-9546.
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the Superior Court of Pennsylvania and the Court affirmed his 

convictions and judgment of sentence on June 13, 1990. [See 

Commonwealth v. Davis, 576 A.2d 1005 (Pa. Super. 1990).] 

The Supreme Court of Pennsylvania granted allocat[u]r review 

and, on January 7, 1993, the Court vacated the judgment of 

sentence and remanded the case for a new trial. [See 

Commonwealth v. Davis, 615 A.2d 732 (Pa. 1992) (reversing 

based on the Supreme Court’s decision in Commonwealth v. 

Ludwig, 594 A.2d 281 (Pa. 1991) (holding that trial testimony 

given by a child witness via closed circuit television violates an 

accused’s right, under the Pennsylvania Constitution, to “face to 

face” confrontation)).2]

In May 1997, ... Davis elected to exercise his right to a jury 

trial and pled not guilty to all charges .... On May 12, 1997, the 

jury found Davis guilty of murder in the first[-]degree, 

possession of [an] instrument of crime, kidnapping, and multiple 

counts of simple assault. At the conclusion of the trial, the [trial 

court] sentenced Davis to the mandatory term of life 

imprisonment on the homicide charge and 6-10 years of 

imprisonment on the kidnapping charge, to run consecutively. 

He received no further penalty on the remaining charges. Davis 

filed post-sentence [M]otions, which were denied by operation of 

law. ... [T]he Superior Court of Pennsylvania ... affirmed his 

convictions and judgment of sentence on May 11, 1998. [See 

Commonwealth v. Davis, 718 A.2d 855 (Pa. Super. 1998) 

(unpublished memorandum).]

On December 9, 2013, Davis filed the instant PCRA 

[P]etition. In response, the Commonwealth filed a Motion to 

Dismiss on March 10, 2014. Davis filed a Response to the 

Commonwealth’s [Motion] on March 18, 2014. ... On June 6, 

2014, following a review of the record, Davis’[s] [P]etition, and 

the Commonwealth’s submission, th[e PCRA c]ourt sent Davis a 

[] Notice, pursuant to Pa.R.Crim.P. 907(1)[, stating the court’s 

intention to dismiss the PCRA Petition as being untimely filed]. 

Davis filed a response to the 907 Notice on June 25, 2014. 

Davis also filed [the DNA] Motion ... on July 9, 2014[, pursuant 

to 42 Pa.C.S.A. § 9543.1 (hereinafter “the PCRA DNA statute”). 

Therein, Davis asserted that he was innocent of the murder, 

pointing out that the medical examiner, Paul Hoyer, M.D. (“Dr. 

 

2 At Davis’s original trial, the court had permitted the minor child of the 

victim to testify against Davis, her father, via two-way closed circuit 

television.
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Hoyer”), had discovered semen on the victim’s body during the 

autopsy, which the parties had stipulated at trial did not belong 

to Davis. Davis argued in the DNA Motion that DNA testing of 

certain males with whom the victim purportedly had a romantic 

relationship might reveal the identity of the perpetrator]. On 

July 31, 2014 th[e PCRA c]ourt dismissed the PCRA [P]etition 

and denied the [DNA M]otion.

PCRA Court Opinion, 7/31/14, at 1-2 (unnumbered, some capitalization 

omitted, footnote added). Davis timely filed a Notice of Appeal from the July 

31, 2014 Order.

On appeal, Davis presents the following issues for our review:

1. Whether the Statutory Construction Act makes it facially 

unconstitutional to apply the PCRA’s timeliness provisions 

to a claim that a constitutional violation led to the 

conviction of an innocent person?

2. Whether the PCRA court abused its discretion when it 

denied the [DNA M]otion []?

3. Whether the conviction was obtained in violation of the 

right to effective assistance of counsel guaranteed by the 

Sixth Amendment to the Constitution of the United 

States?

4. Whether the conviction was obtained in violation of the 

Fourteenth Amendment right to a fair trial untainted by 

false testimony elicited from a member of the prosecution 

team?

Brief for Appellant at 2 (issues numbered, capitalization omitted). 

As a preliminary matter, we observe that Davis has filed with this 

Court a Motion to Strike the Commonwealth’s appellate brief as being 

untimely (hereinafter “Motion to Strike Brief”). Davis points out that 

although this Court gave the Commonwealth one extension of time in which 

to file its brief, the Commonwealth filed the brief twenty days after the due 
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date. Motion to Strike Brief, 2/19/15, at 1-2. We deny Davis’s Motion to 

Strike Brief, as he was not prejudiced by the Commonwealth’s late filing of 

its brief.

We begin by noting our well-settled standard of review: “In reviewing 

the [dismissal] of PCRA relief, we examine whether the PCRA court’s 

determination is supported by the record and free of legal error.” 

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation 

omitted).

Under the PCRA, any PCRA petition, “including a second or subsequent 

petition, shall be filed within one year of the date the judgment becomes 

final[.]” 42 Pa.C.S.A. § 9545(b)(1). Any PCRA petition that is not filed 

within one year of the date the judgment becomes final is time-barred, 

unless the petitioner has pled and proven one of the three exceptions to the 

PCRA’s time limitation set forth in 42 Pa.C.S.A. § 9545(b)(1)(i-iii) (providing 

that an untimely PCRA petition may be considered timely if a petitioner 

alleges and proves (1) governmental interference with the presentation of 

his claims; (2) discovery of previously unknown facts which could not have 

been discovered with due diligence; or (3) an after-recognized constitutional 

right given retroactive application). The PCRA’s timeliness requirements are 

jurisdictional in nature and a court may not address the merits of the issues 

raised if the PCRA petition was not timely filed. Commonwealth v. 

Albrecht, 994 A.2d 1091, 1093 (Pa. 2010). 
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Here, Davis’s PCRA Petition, filed in December 2014, is facially 

untimely because his judgment of sentence became final more than sixteen 

years prior, in June 1998. Moreover, Davis did not plead any of the 

exceptions to the PCRA’s jurisdictional time bar in the PCRA Petition, his Rule 

907 Response, or in his appellate brief. Rather, Davis challenges the 

constitutionality of the PCRA’s time bar itself, and claims that his trial 

counsel rendered ineffective assistance. 

In his first issue, Davis argues that the PCRA is unconstitutional on its 

face to the extent that its time bar can unlawfully preclude a “gateway claim 

of actual innocence[,]” which, according to Davis, violates the Constitution of 

the United States and Pennsylvania’s Statutory Construction Act (“SCA”).3 

Brief for Appellant at 12; see also id. at 14 (arguing that “[t]he General 

Assembly[, in the SCA,] has taken the position that its actions must not be 

interpreted to lead to results that are absurd or unreasonable or that its 

actions be interpreted to violate the Constitution[s] of the United States or 

Pennsylvania.”). According to Davis, his claim of “actual innocence”4is 

sufficient to overcome the PCRA’s time-bar, pursuant to the United States 

 

3 See 1 Pa.C.S.A. § 1501 et seq.

4 Davis bases his claim of actual innocence upon the fact that the semen 

discovered on the victim’s body did not belong to Davis. Brief for Appellant 

at 16; see also id. at 19 (asserting that “[a] presumptively positive [DNA] 

match [concerning the semen in question] with one of the victim’s known 

associates would establish a prima facie case that [] Davis is actually 

innocent of the murder.”).
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Supreme Court’s decision in McQuiggin v. Perkins, 133 S. Ct. 1924 

(2013). Brief for Appellant at 14-16. 

In McQuiggin, the Supreme Court held that a claim of actual 

innocence, if proved, can serve as a gateway through which a petitioner may 

pass the one-year time bar for filing an otherwise untimely first federal 

habeas corpus petition when the claim of actual innocence is supported by 

newly-discovered evidence. McQuiggin, 133 S. Ct. at 1926. This ruling 

concerns federal habeas corpus petitions and the time limitations applicable 

thereto, and is not applicable to petitions filed in state court seeking relief 

under the PCRA.5 Thus, McQuiggin is inapplicable to Davis’s case and 

provides no relief from the PCRA’s time bar.

Moreover, we reject Davis’s claim that the PCRA violates the SCA and 

is unconstitutional. It is well established that “the time restrictions for filing 

PCRA petitions are constitutional[.]” Commonwealth v. Fahy, 737 A.2d 

214, 223 (Pa. 1999); Commonwealth v. Peterkin, 722 A.2d 638, 643 (Pa. 

1998) (same); see also Commonwealth v. Edmiston, 65 A.3d 339, 349

(Pa. 2013) (stating that “[a]s we have explained, the nature of the 

constitutional violations alleged has no effect on the application of the PCRA 

time bar. ... Rather, the only cognizable exceptions are set forth at Section 

9545(b)(1).” (internal citations omitted)).

 

5 We additionally observe that the Supreme Court did not expressly 

pronounce that McQuiggin applies retroactively, and it does not represent a 

watershed change in procedural law.
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Next, Davis argues that the PCRA court abused its discretion by 

denying the DNA Motion, and determining that it did not entitle Davis to 

relief because the parties had stipulated that the semen found on the 

victim’s body did not belong to him. See Brief for Appellant at 17.6 

According to Davis, the PCRA court’s ruling is contrary to this Court’s 

decision in Commonwealth v. Conway, 14 A.3d 101 (Pa. Super. 2011) 

(where the defendant was convicted of murder based solely on 

circumstantial evidence, and the Commonwealth did not introduce any DNA 

or other scientific evidence tying him to the victim’s body, holding that the 

PCRA court improperly denied the defendant’s motion for DNA testing 

because the defendant had established that there is a “reasonable 

possibility” that favorable results of the requested DNA testing would 

establish his actual innocence). See Brief for Appellant at 17-18.

“Post[-]conviction DNA testing falls under the aegis of the [PCRA,] and 

thus, our standard of review permits us to consider only whether the PCRA 

court’s determination is supported by the evidence of record and whether it 

is free from legal error.” Conway, 14 A.3d at 108 (footnote, citation, 

brackets and quotation marks omitted). To obtain post-conviction DNA 

testing under the PCRA DNA statute, a petitioner must prove the following:

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 

 

6 We observe that “a motion for post-conviction DNA testing does not 

constitute a direct exception to the one year time limit for filing a PCRA 

petition.” Commonwealth v. Williams, 35 A.3d 44, 50 (Pa. Super. 2011).
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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.

42 Pa.C.S.A. § 9543.1(a)(2). In other words, “[a] petitioner [] does not 

meet the requirements of [section] 9543.1(a)(2) if the technology existed at 

the time of his 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, 939 (Pa. Super. 2008) (citation, quotation marks and brackets 

omitted). In the instant case, all of the conditions stated in Perry are 

satisfied, and Davis makes no attempt to prove otherwise. 

Nevertheless, the PCRA court cogently reasoned that it properly denied 

the DNA Motion under the PCRA DNA statute for the following reasons:

In Conway, the Court explained that “the prima facie 

requirement set forth in [42 Pa.C.S.A.] § 9543.1(c)(3) and 

reinforced in [section] 9543.1(d)(2) requires that [the petitioner] 

demonstrate that there is a ‘reasonable possibility,’ that 

‘favorable results of the requested DNA testing would establish 

the [petitioner’s] actual innocence of the crime of conviction.’” 

[Conway, 14 A.3d at 109 (emphasis, footnote and citations 

omitted); see also Williams, 35 A.3d at 50 (stating that “[t]he 

statutory standard to obtain testing requires more than 

conjecture or speculation; it demands a prima facie case that the 

DNA results, if exculpatory, would establish actual innocence.”).] 

Conway adopts the standard of actual innocence set forth by 

the Supreme Court of the United States in Schlup v. Delo[, 513 

U.S. 298 (1995),] that the newly discovered evidence must 

make it “more likely than not that no reasonable juror would 

have found him guilty beyond a reasonable doubt.” [Conway, 

14 A.3d at 109 (quoting Schlup, 513 U.S. at 327).]

In the instant case, Davis seeks to have the semen found 

on the victim’s body tested against the CODIS[, i.e., the national 
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Combined DNA Index System], the Pennsylvania data banks, 

and the two known associates of the victim, Anthony Smith and 

Earl Maples. Davis represents that, at trial, the jury heard 

testimony from numerous witnesses establishing the victim’s 

connection to both Anthony Smith and Earl Maples and that the 

sexual encounter leading to the semen may have occurred 

shortly before the murder;[FN] however, the jury also heard a 

stipulation entered by trial counsel that the semen on the 

victim’s body did not belong to Davis. Thus, the jury knew that 

Davis was excluded as a source of the semen, thereby showing 

that it came from Anthony Smith, Earl Maples, or an unknown 

party, and, in light of all of the other evidence presented by the 

Commonwealth, found Davis to be guilty of the murder. As 

such, th[e PCRA c]ourt has found that Davis has not 

demonstrated a reasonable probability that favorable results of 

such testing would establish his actual innocence of the murder.

[FN] Davis represents that [Edwin] Lieberman[, M.D. (“Dr. 

Lieberman”), i.e., the county medical examiner at the 

time of Davis’s second trial who had reviewed Dr. Hoyer’s 

autopsy notes concerning the victim,] testified that he 

could not determine when exactly the victim had sex[,] 

and that it could have been minutes before her death or 

a day and a half before her death. Conversely, Dr. 

Hoyer, who conducted the autopsy of the victim and 

testified at [Davis’s first] trial, testified that the sex 

occurred shortly before her death.

PCRA Court Opinion, 7/31/14, at 5-6 (unnumbered, some footnotes 

omitted). The PCRA court’s sound analysis is supported by the record and 

the law. Accordingly, we conclude that there is no merit to Davis’s challenge 

to the PCRA court’s denial of the DNA Motion.

In his third issue, Davis asserts that the PCRA court erred by 

dismissing his PCRA Petition because he had established that his trial 

counsel rendered ineffective assistance. See Brief for Appellant at 20-23. 

Specifically, Davis challenges trial counsel’s failure to (1) object to the trial 

court’s allegedly erroneous alibi instruction; (2) ensure that the DNA 
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evidence from the semen found on the victim’s body was checked against 

the males with whom the victim was romantically involved; and (3) locate 

Dr. Hoyer to testify at Davis’s second trial. Id.

“[I]t is well established that the fact that a petitioner’s claims are 

couched in terms of ineffectiveness will not save an otherwise untimely 

petition from the application of the time restrictions of the PCRA.” 

Edmiston, 65 A.3d at 349 (citation omitted). As stated above, Davis’s 

PCRA Petition is facially untimely and he has failed to plead and prove any of 

the three exceptions to the PCRA’s jurisdictional time bar. Therefore, Davis’s 

ineffectiveness claims do not entitle him to relief. Id. 

Finally, Davis is not entitled to relief on his last issue, wherein he avers 

that he was deprived of a fair trial because the prosecutor allegedly elicited 

false testimony from Dr. Lieberman. See Brief for Appellant at 23-25. Such 

claim does not meet any of the exceptions to the PCRA’s time limitation.

We conclude that the PCRA court neither abused its discretion nor 

committed an error of law by dismissing Davis’s first PCRA Petition as 

untimely, and that Davis’s challenge to the constitutionality of the PCRA 

lacks merit. Additionally, the PCRA court properly denied the DNA Motion. 

Therefore, we affirm the Order on appeal and deny Davis’s Motion to Strike 

Brief.

Order affirmed. Motion to Strike Brief denied.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/9/2015