J-A15036-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

JOHN BROOKINS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 551 EDA 2020

Appeal from the PCRA Order Entered January 14, 2020

In the Court of Common Pleas of Bucks County

Criminal Division at No(s): CP-09-CR-0005060-1991

BEFORE: LAZARUS, J., KING, J., and STRASSBURGER, J.*

MEMORANDUM BY KING, J.: FILED OCTOBER 27, 2020

Appellant, John Brookins, appeals from the order entered in the Bucks 

County Court of Common Pleas, which denied his motion for DNA testing 

pursuant to Section 9543.1 of the Post Conviction Relief Act (“PCRA”).1 We 

affirm. 

This Court has previously set forth the relevant facts and procedural 

history of this case as follows:

On July [17], 1992, a jury convicted Appellant of firstdegree murder. Appellant’s conviction stemmed from the

December 20, 1990 killing of [Victim], the mother of 

Appellant’s girlfriend, Sharon.... [Victim]’s body was 

discovered “lying partially on the couch [in her apartment] 

with a pair of large scissors embedded in her chest.” An 

autopsy revealed that [Victim] was not only stabbed in the 

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* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S.A. §§ 9541-9546
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chest, but also had “eight significant internal injuries, 

including skull penetration consistent with an object such as 

scissors, protruding wounds, and bone fractures.” The 

forensic pathologist further stated that [Victim]’s hyoid bone 

had been broken, opining that she had likely been strangled.

Several of Appellant’s fingerprints were discovered at the 

scene, including a bloody print on a television remote 

control found near [Victim]’s body. Additionally, letters 

written between [Victim] and Appellant were found in the 

apartment and indicated that the two had a romantic 

relationship. The letters also evinced that Appellant and 

[Victim] had also recently quarreled about money. When 

Appellant was interviewed by police after the murder, he 

gave varying accounts of what occurred on the night 

[Victim] was killed. For instance, while he initially denied 

seeing [Victim] the night she died, after being arrested and 

confronted with the fingerprint evidence, Appellant admitted 

that he had been inside [Victim]’s apartment the night of 

the murder, but claimed that he left for a short time and 

returned later to find her dead. He told police that he 

touched [Victim]’s body, got blood on his hands, and then 

touched several objects in the apartment, such as the 

phone. However, he denied touching the television remote 

control. 

Appellant was charged with murder and proceeded to a jury 

trial, where he attempted to convince the jury that 

Sharon...murdered her mother. However, the jury rejected 

Appellant’s version of events and convicted him of firstdegree murder on July 17, 1992. Following a penalty 

hearing, Appellant was sentenced to life imprisonment. He 

filed a timely notice of appeal with this Court, and after we 

affirmed his judgment of sentence, our Supreme Court 

denied his subsequent petition for permission to appeal. 

On January 18, 2000, Appellant filed a pro se PCRA petition 

and counsel was appointed. At this point, the procedural 

history of Appellant’s case becomes tortuous, to say the 

least, and we decline to reproduce the specifics herein. 

Instead...it is only necessary to explain that for various 

reasons—including the apparent carelessness of the court—

the litigation of Appellant’s PCRA petition did not commence 

until the Honorable Rea B. Boylan of the Court of Common 
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Pleas of Bucks County took over his case on November 24, 

2008. While Judge Boylan attempted to conduct a PCRA 

hearing shortly thereafter, due to continuance requests and 

other filings by the parties, Judge Boylan was only able to 

conduct a partial PCRA hearing on July 1, 2009, and did not 

complete that proceeding until June 15, 2011. We also note 

that in the meantime, on October 29, 2010, Appellant filed 

a “Motion to Subject Seized Gloves for [DNA] Testing,” 

which the court denied on April 27, 2011. On June 27, 

2012, the court also denied Appellant’s PCRA petition. 

Appellant filed a notice of appeal to this Court on July 23, 

2012. ...

Commonwealth v. Brookins, No. 2118 EDA 2012, at 1-4 (Pa.Super. filed 

Sept. 5, 2013) (unpublished memorandum). This Court affirmed the denial 

of PCRA relief on September 5, 2013, and our Supreme Court denied 

allowance of appeal on March 24, 2014. 

On June 27, 2019, Appellant filed through counsel the current petition 

seeking DNA testing, per Section 9543.1 of the PCRA, of nineteen pieces of 

evidence collected by law enforcement in connection with Victim’s murder.2 

The PCRA court issued notice of its intent to dismiss the petition, pursuant to 

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2 The PCRA court lists the items as follows: “The nineteen (19) items that 

Appellant has requested DNA testing be performed upon include [Victim]’s 

pants, shirt, bra, and sweater; two white sheets used to transport [Victim]’s 

body; scissors embedded in [Victim]’s chest; [Victim]’s ten fingernail scrapes; 

scissors recovered from under the coffee table; metal trophy piece; metal 

trophy base; [Victim]’s blood sample; a 10’ x 10’ piece of carpet; “[scraping]

from [ceiling] chase...;” blood residue from scrapings of bloodstain on floor; 

gloves seized from Paul Cottman’s car; [Victim]’s white purse; all the nonNegroid hairs or hair fragments removed from [Victim]’s clothing, the white 

sheets, the carpet and sofa cushions; and Sharon’s hair samples.” (PCRA 

Court Opinion, filed February 25, 2020, at 6 n. 5). 
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Pa.R.Crim.P. 907, on September 25, 2019, and denied the petition on January 

14, 2020. On January 27, 2020, Appellant filed a timely notice of appeal and 

a voluntary concise statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(b). 

Appellant raises two issues on appeal:

[Whether] the PCRA court erred...when it concluded 

[Appellant]’s DNA testing motion is untimely[?]

[Whether] the PCRA court erred when it said there was no 

reasonable probability modern DNA testing could produce 

exculpatory results that would prove [Appellant]’s actual 

innocence[?]

(Appellant’s Brief at 1). 

In his first issue on appeal, Appellant argues the PCRA court erred in 

concluding that his DNA testing motion was untimely under Section 

9543.1(d)(1)(iii) and Commonwealth v. Edmiston, 619 Pa. 549, 65 A.3d 

339 (2013), cert. denied, 571 U.S. 1026, 134 S.Ct. 639, 187 L.Ed.2d 423 

(2013).

3

 Appellant contends the instant case is factually distinguishable from 

Edmiston where, inter alia, Appellant is not on death row, Appellant has filed 

only a single PCRA petition, and Appellant’s PCRA counsel failed to “vigorously” 

represent him. Appellant further maintains the PCRA court did not “assume 

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3 Our Supreme Court recently overruled Edmiston on grounds unrelated to 

DNA testing. See Commonwealth v. Small, ___ A.3d ___, 2020 WL 

5833781 (Pa. filed October 1, 2020) (expressly disavowing public record 

presumption for purposes of analyzing “newly-discovered fact” exception to 

PCRA time-bar).
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exculpatory results” as Section 9543.1 mandates. Instead, Appellant avers 

the court presupposed DNA testing would inculpate him based on the 

“overwhelming” trial evidence. Appellant additionally asserts the 

Commonwealth would not be prejudiced if DNA testing links Sharon to Victim’s 

murder and requires the Commonwealth to prosecute Sharon and reprosecute Appellant, as the Commonwealth can utilize the recorded testimony 

of the witnesses presented at Appellant’s trial almost thirty years ago. 

In his second issue, Appellant contends the PCRA court erred when it 

concluded that there was no reasonable probability that DNA testing could 

produce exculpatory results that would prove Appellant’s actual innocence. 

Rather, Appellant insists that if Sharon’s DNA is discovered on two or more of 

the items he requested for testing, it is “more likely than not” that a jury would 

not have convicted him of first-degree murder. Appellant maintains that such

DNA evidence, coupled with the testimony of the six women who said Sharon 

confessed to murdering Victim, would have destroyed the Commonwealth’s 

theory that Appellant murdered Victim alone. Appellant concludes this Court 

should vacate the PCRA court’s order and remand with instructions that DNA 

testing be conducted. We disagree. 

Our standard of review in this case is as follows:

Generally, the trial court’s application of a statute is a 

question of law that compels plenary review to determine 

whether the court committed an error of law. When 

reviewing an order denying a motion for post-conviction 

DNA testing, this Court determines whether the movant 

satisfied the statutory requirements listed in Section 
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9543.1. We can affirm the court’s decision if there is any 

basis to support it, even if we rely on different grounds to 

affirm. 

Commonwealth v. B. Williams, 35 A.3d 44, 47 (Pa.Super. 2011), appeal 

denied, 616 Pa. 467, 50 A.3d 121 (2012) (internal citations and quotation 

marks omitted). 

Requests for post-conviction DNA testing are governed by statute at 42 

Pa.C.S.A. § 9543.1, which provides in pertinent part:

§ 9543.1. Postconviction DNA testing

(a) Motion.−

(1) An individual convicted of a criminal offense in a 

court of this Commonwealth may apply by making a 

written motion to the sentencing court at any time 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 evidence was subject to the 

testing, but newer technology could provide substantially 

more accurate and substantially probative results, 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. 

* * *

(c) Requirements.−In any motion under subsection (a), 
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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) in a sworn statement subject to the penalties under 

18 Pa.C.S. §§ 4902 (relating to perjury) and 4903 

(relating to false swearing), assert the applicant’s actual 

innocence of the offense for which the applicant was 

convicted and that the applicant seeks DNA testing for 

the purpose of demonstrating the applicant’s actual 

innocence; and 

* * *

(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: 

(A) the applicant’s actual innocence of the offense 

for which the applicant was convicted; 

* * *

(d) Order.−

(1) Except as provided in paragraph (2), the court shall 

order the testing requested in a motion under subsection 

(a) under reasonable conditions designed to preserve the 
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integrity of the evidence and the testing process upon a 

determination, after review of the record of the 

applicant’s trial, that the: 

(i) requirements of subsection (c) have been met; 

(ii) evidence to be tested has been subject to a chain 

of custody sufficient to establish that it has not been 

altered in any material respect; and 

(iii)motion is made in a timely manner and for the 

purpose of demonstrating the applicant’s actual 

innocence and not to delay the execution of sentence 

or administration of justice. 

(2) The court shall not order the testing requested in a 

motion under subsection (a) if, after review of the record 

of the applicant’s trial, the court determines that there is 

no reasonable possibility for an applicant under State 

supervision, or there is no reasonable probability for an 

applicant not under State supervision, or after review of 

the record of the applicant’s guilty plea, the court 

determines that there is no reasonable probability, that 

the testing would produce exculpatory evidence that: 

(i) would establish the applicant’s actual innocence of 

the offense for which the applicant was convicted; 

* * *

42 Pa.C.S.A. § 9543.1(a), (c)(1)(i)-(iii), (c)(2)(i), (c)(3)(i)-(ii)(A), (d)(1)(i)-

(iii), (d)(2)(i). 

Thus, 

The text of the statute set forth in Section 9543.1(c)(3) and 

reinforced in Section 9543.1(d)(2) requires the applicant to 

demonstrate that favorable results of the requested DNA 

testing would establish the applicant’s actual innocence of 

the crime of conviction. The 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. 
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Commonwealth v. Walsh, 125 A.3d 1248, 1254-55 (Pa.Super. 2015)

(quoting B. Williams, supra). “If, after reviewing the record of petitioner’s 

trial, the court determines that there is ‘no reasonable possibility that the 

[DNA] testing would produce exculpatory evidence that would establish the 

[petitioner’s] actual innocence,’ the court shall not order the testing.” 

Commonwealth v. Smith, 889 A.2d 582, 583 (Pa.Super. 2005), appeal 

denied, 588 Pa. 769, 905 A.2d 500 (2006); 42 Pa.C.S.A. § 9543.1(d)(2)(i). 

Additionally, this Court has consistently held the one-year jurisdictional 

time bar of the PCRA does not apply to motions for DNA testing under Section 

9543.1. Commonwealth v. Conway, 14 A.3d 101, 108 n.2 (Pa.Super. 

2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). Nevertheless, our 

Supreme Court has analyzed the timeliness requirement under Section 

9543.1(d)(1)(iii) and explained that when determining timeliness for DNA 

testing motions, the PCRA court must consider the individual facts of each 

case. Edmiston, supra. In concluding that the defendant in Edmiston did 

not file his request for post-conviction DNA testing in a timely manner, the 

Court reasoned: 

Although the PCRA court did not make the requisite finding 

of timeliness, we see no need to remand for the court to do 

so because, as explained below, our own review of the 

record and circumstances surrounding [the defendant’s] 

post-conviction DNA testing request leads to the conclusion 

that this motion was untimely as a matter of law and was 

forwarded only to delay further the execution of the 

sentence. Notably, at the time of trial, [the defendant] 

indicated that he was satisfied with the DNA testing that had 
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been conducted, and declined further testing. Following 

conviction, as noted, the postconviction DNA testing 

provision was enacted on September 8, 2002. Thereafter, 

[the defendant’s] review as of right under the PCRA 

concluded in 2004...without [his] seeking DNA testing. 

Moreover, he did not seek such testing as part of his second 

PCRA petition (which caused his federal habeas corpus

petition to be held in stasis, thereby causing further delay), 

or as part of the amendment or supplement to that petition. 

It was not until after his second PCRA petition was nearing 

completion that [the defendant] finally sought DNA testing.

[The defendant] has known of the existence of physical 

evidence he now seeks to test since his trial over twenty 

years ago. From that time to the present he has been 

represented by counsel, who knew of the statute, the 

technology, and the evidence, and who were vigorously 

pursuing post-conviction relief on his behalf. Under such 

circumstances, courts should exercise a healthy skepticism 

when faced with requests for DNA testing.

This is especially true when, as here, careful examination of 

the record reveals that [the defendant] is not a likely 

candidate to be exonerated by DNA testing. 

Edmiston, supra at 579, 65 A.3d at 357. 

Instantly, in addressing Appellant’s first issue concerning the timeliness 

of his DNA testing motion, the PCRA court reasoned as follows:

We believe that Edmiston is similar and applicable to the 

instant matter, and despite Appellant’s strenuous 

arguments to the contrary, we have concluded that 

Appellant is not a likely candidate to be exonerated by DNA 

testing. For nearly thirty (30) years, Appellant has known 

of the existence of the items he wishes to be tested, and in 

fact he submitted a “Motion to Subject Seized Gloves for 

[DNA] testing” over nine (9) years ago, on October 29, 

2010. As noted previously, Judge Boylan denied that 

motion on June 27, 2012. As Judge Boylan observed, it was 

only speculation that those gloves may have even been 

related to the murder of [Victim], and the results of any 
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testing done on them would be far from sufficient to 

establish a prima facie case of Appellant’s actual innocence. 

Appellant initially only requested DNA testing of the 

aforementioned pair of gloves, rather than the list of 

nineteen (19) items he has identified in his current request 

for DNA testing. That list now includes, in addition to those 

gloves once again, the pair of scissors used as the murder 

weapon. Since Appellant was obviously aware of the 

availability of DNA testing when he made his initial request 

to test the gloves, and he was aware that all of the evidence 

regarding which he now seeks testing was available when 

he made that request almost a decade ago, he could have 

presumably identified and requested testing of all items 

involved in [Victim]’s death that could provide potentially 

exculpatory evidence, including those scissors, at that time 

in 2010. 

Appellant’s request for DNA testing of the gloves, however, 

had the appearance of a fishing expedition designed solely 

to sow doubt over his conviction based upon the possible 

involvement of [Victim]’s daughter, Sharon..., in the murder 

of her mother, [Victim]. Now, nine years later, Appellant is 

apparently attempting to expand that fishing expedition, as 

well as his evolving theory involving the participation of 

Sharon...in the murder of her mother, by requesting 

additional items be tested. Obviously, with the passage of 

time, it may well be difficult and perhaps impossible to 

ascertain or recreate the circumstances involving the 

collection and observation of those items sought to be 

tested.

Although Appellant has been sentenced to incarceration for 

life without parole, and therefore his request cannot delay 

the execution of his sentence, we are nevertheless, in 

accordance with Edmiston, supra, extremely skeptical of 

Appellant’s request. Accordingly, we find his request 

untimely, and apparently made in furtherance of an evolving 

and unpersuasive theory in support of a claim of actual 

innocence. 

(PCRA Court Opinion at 6-7) (internal footnote omitted). We agree with the 

PCRA court’s analysis. 
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The jury convicted Appellant of first-degree murder in 1992. Nearly 

twenty years later, in 2010, Appellant filed his first motion for DNA testing, 

listing only a pair of gloves. After the PCRA court denied that motion, 

Appellant waited another nine years before he filed the current DNA testing 

motion, listing an additional eighteen items, all of which Appellant has known 

about for years. Thus, we agree with the PCRA court’s determination that 

Appellant’s DNA testing motion is untimely. See 42 Pa.C.S.A. § 

9543.1(d)(1)(iii); Edmiston, supra. 

As for Appellant’s second issue concerning whether DNA testing would 

produce exculpatory results, the PCRA court further reasoned:

In his most current version of the events surrounding the 

murder of [Victim], Appellant now admits that he was 

present at the murder scene, but alleges that he observed 

Sharon...murder her mother. He therefore requests that the 

nineteen items he has identified in his petition for DNA 

testing be examined for traces of Sharon’s DNA, and/or the 

absence of his DNA. What is striking about Appellant’s 

request, and what he fails to acknowledge, is that it 

represents an attempt to cast suspicion upon another 

individual who may or may not have been involved in 

[Victim]’s murder, and does absolutely nothing to dispel or 

repudiate the overwhelming evidence upon which 

Appellant’s guilt and subsequent conviction were based.

* * *

Despite the zealous advocacy of Appellant’s counsel and his 

strenuous arguments concerning the recent advancements 

in DNA testing technology, this [c]ourt is constrained to 

conclude, based upon review of the factual record, that the 

requested DNA testing of the nineteen items identified in 

Appellant’s petition will not produce exculpatory evidence 

that would establish his actual innocence. It is clear that 

even if the requested testing did produce evidence of 
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Sharon...’s DNA on those items, as he suggests in his 

petition and supporting briefs, it would still not be sufficient 

to dispel or repudiate the evidence...which the jury 

undoubtedly relied upon when it concluded that Appellant 

was guilty of First Degree Murder.

In other words, we recognize that if the testing requested 

by Appellant did produce evidence of Sharon...’s DNA on 

those particular items, that, in and of itself, would not be 

sufficient to establish Appellant’s actual innocence, or even 

prove that Sharon...was in fact the murderer. As the 

Commonwealth observed, it would not be surprising to 

discover DNA of [Victim]’s daughter on items belonging to 

[Victim] since it was acknowledged, and expected, that 

Sharon...frequently visited her mother in her apartment, 

even if for the sole purpose of extracting money from her 

for drugs. 

It is apparent that Appellant’s request for DNA testing is also 

based upon the presumption that his DNA would be absent 

from the items he seeks to be tested. The Superior Court 

of Pennsylvania, however, has routinely held that the 

absence of the accused’s DNA, by itself, cannot satisfy 

Section 9543.1(d)(2)(i)’s actual innocence standard. We 

accordingly determined that the absence of Appellant’s DNA 

on the subject items, by itself, would not demonstrate his 

actual innocence or negate the substantial circumstantial 

and physical evidence presented at his trial which the jury 

presumably relied upon in convicting him of [Victim]’s

murder.

Appellant’s expressed strategy in these post-conviction 

proceedings has been to attempt to cast doubt upon the 

jury’s verdict and his conviction, with the ultimate objective 

of achieving a new trial, by suggesting that [Victim]’s 

daughter was the actual murderer while he coincidentally 

happened upon the crime scene. He therefore posits that if 

the jury has been exposed to any such evidence even 

remotely supporting his theory, then the jury would have 

been infused with sufficient reasonable doubt to render it 

incapable of finding him guilty of murder. It is clear, 

however, that Appellant’s theory does not present a prima 

facie case wherein favorable results from the requested DNA 

testing would establish Appellant’s actual innocence. 
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Accordingly, we do not find Appellant’s DNA proffer to be a 

sufficient or appropriate basis for granting his request for 

DNA testing.

(PCRA Court Opinion at 7-10) (internal citations and quotation marks 

omitted). Again, we agree with the PCRA court’s analysis of this issue. Even 

if testing revealed the presence of Sharon’s DNA on the items, that would not 

necessarily prove Appellant’s innocence. Furthermore, a lack of Appellant’s 

DNA would not prove his innocence either, given the other evidence presented 

at trial. Thus, the PCRA court correctly denied Appellant’s request for DNA 

testing, as he failed to present a prima facie case of actual innocence. See

42 Pa.C.S.A. § 9543.1(c)(3)(ii)(A); Walsh, supra; Smith, supra. 

Accordingly, we affirm the order denying Appellant’s motion. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/27/2020