J-S65002-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROBERT SHAWN MCPHERSON

Appellant No. 364 WDA 2014

Appeal from the PCRA Order January 31, 2014

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0012810-1985

BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 30, 2016

Robert Shawn McPherson appeals from the trial court’s final order 

denying his petition filed pursuant to the Post Conviction Relief Act (PCRA).1 

After careful review, we find that McPherson’s PCRA petition is untimely and 

we affirm. 

The trial court made the following findings of fact and summarized the 

procedural history as follows:

The petitioner was convicted of second-degree 

murder after a jury trial at CC198512810 in 

Allegheny County, Pennsylvania on April 27, 1987 

before the late Honorable John O’Brien. On 

September 14, 1988, the defendant was sentenced 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.
J-S65002-16

- 2 -

to a mandatory term of life imprisonment, without 

the possibility of parole. An appeal to the Superior 

Court of Pennsylvania at 1990 WDA 1538 affirmed 

the judgment of sentence on January 8, 1990. A 

Petition for Allowance of Appeal was filed by 

defendant at No. 79 WD 1990 and denied on October 

4, 1990.

Defendant’s lawyer, Erika Kreisman, Esquire, filed a 

Motion to Order Pittsburgh Police to look for Stored 

Evidence on December 9, 2008. The object of the 

motion was to recover crime-scene evidence for 

submission for DNA testing and analysis. Hearings 

were held on January 13, 2009 and February 4, 

2009, and the subject exhibits appear to be lost, 

misplaced, or destroyed. There does not appear to 

be any misconduct on the part of police being unable 

to produce any exhibits after a diligent search. In 

any event, the exhibits are not available for testing. 

The Court entered an Order dismissing a PCRA filed 

on behalf of defendant by Sally Frick, Esquire, and a 

timely appeal was filed. 

Trial Court Opinion, 3/9/15, at 1-2.

McPherson argues that he is entitled to DNA testing of certain physical 

evidence obtained from the original crime scene. Although McPherson 

admits that “following an evidentiary hearing, it became apparent that the 

physical evidence was destroyed because the police property/evidence room 

where it was stored was flooded and nothing was salvaged,” McPherson 

insists that “there must be some type of remedy to be fashioned from the 

Commonwealth’s failure to provide such evidence, despite [lack of] any 

deliberate destruction.” Appellant’s Brief, at 5. 

To begin, we must first address whether McPherson’s PCRA petition is 

timely, as this may affect whether the PCRA court had jurisdiction over his 
J-S65002-16

- 3 -

petition. See Commonwealth v. Gandy, 38 A.3d 899, 902 (Pa. Super. 

2012) (“Even where neither party nor the PCRA court have addressed the 

matter, it is well-settled that we may raise it sua sponte since a question of 

timeliness implicates . . . jurisdiction.”) McPherson first suggests that his 

request for DNA testing falls within the purview of Section 9543.1, and that 

a motion for post-conviction DNA testing “is not subject to the one-year 

jurisdictional time bar applicable to other PCRA petitions seeking collateral 

relief.” Appellant’s Brief, at 7. 

We agree that a motion for post-conviction DNA testing is not subject 

to the same jurisdictional time restrictions as a PCRA petition.2 See 

Commonwealth v. Brooks, 875 A.2d 1141, 1146 (Pa. Super. 2005) (“The 

PCRA's one-year time bar does not apply to motions for the performance of 

forensic DNA testing under § 9543.1.”). In this case, however, there is no 

physical evidence to submit for DNA testing, so Section 9543.1 cannot 

apply.3 Therefore, McPherson is not entitled to relief because his PCRA 

____________________________________________

2 McPherson ignores the requirement that when a motion for post-conviction 

DNA testing is filed, “the evidence shall be available for testing as of the 

date of the motion.” 42 Pa.C.S. 9543.1(a)(2). McPherson admits that the 

physical evidence he wishes to submit for DNA testing is no longer available. 

See Appellant’s Brief, at 7. 

3 While section 9543.1 “does not directly create an exception to the one-year 

time bar, 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).” 

Commonwealth v. Weeks, 831 A.2d 1194, 1196 (Pa. Super. 2003).
J-S65002-16

- 4 -

petition is untimely and he did not plead any exception to the PCRA time bar 

provisions.4 

Gandy, supra, is instructive on the issue of whether McPherson’s 

request for DNA testing of destroyed physical evidence is timely under the 

PCRA. In Gandy, the Court held:

In these circumstances, Appellant is trying to invoke 

the DNA testing components of § 9543.1 as a 

jurisdictional hook in order to present his 

constitutional claims regarding the destruction of 

evidence. We have previously ruled § 9543.1 cannot 

be used to raise extraneous issues not related to 

DNA testing in an effort to avoid the one-year time 

bar. Appellant's claims relate exclusively to the 

destruction of evidence that likely occurred over 25 

years ago, not to any recent DNA testing conducted 

pursuant to § 9543.1.

We, therefore, conclude that Appellant's third, pro se

PCRA petition was untimely, and that he failed to 

meet an exception to the PCRA timeliness 

requirements. Because the PCRA court below lacked 

jurisdiction, it was precluded from entertaining any 

claim or affording Appellant any form of relief from 

the alleged constitutional violations.

Gandy, 38 A.3d at 905-906.

Like in Gandy, McPherson filed his PCRA petition under the guise of a 

motion for post-conviction DNA testing. After an evidentiary hearing to 

determine whether the physical evidence from McPherson’s case still exists, 

____________________________________________

4 A PCRA petition must be filed within one year of the date the judgment of 

sentence becomes final, unless the petitioner alleges and proves one of the 

exceptions enumerated under the PCRA. See 42 Pa.C.S. § 9545(b)(1)(i-iii).
J-S65002-16

- 5 -

the trial court determined that “the subject exhibits appear to be lost, 

misplaced, or destroyed.” Trial Court Opinion, 3/10/15, at 2. Therefore, we 

cannot entertain McPherson’s claim because his PCRA petition is untimely.5

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/30/2016

____________________________________________

5 McPherson’s judgment of sentence became final on January 4, 1991, ninety 

days after McPherson’s petition for allowance of appeal to the Supreme 

Court was denied. See 42 Pa.C.S. § 9545(b)(3); Sup.Ct. R. 13. McPherson 

had one year from the date when his judgment of sentence became final to 

file a timely PCRA petition, unless the petition alleged and McPherson proved 

one of the exceptions enumerated under the PCRA. See 42 Pa.C.S. § 

9545(b)(1)(i-iii). Here, he did not file his petition until almost seventeen 

years later and also alleged no section 9545(b)(1) exception.