J-S23036-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

*Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA, 

 Appellee

v.

RONALD A. WILLIAMS,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 1933 EDA 2014

Appeal from the PCRA Order Entered May 23, 2014, 

in the Court of Common Pleas of Philadelphia County, 

Criminal Division, at No(s): CP-51-CR-1201001-2002

BEFORE: DONOHUE, SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED MAY 29, 2015

Ronald A. Williams (Appellant) appeals from the order entered on May 

23, 2014, which denied his motion for post-conviction DNA testing under 

Section 9543.1 of the Post Conviction Relief Act (PCRA), 42 Pa.C.S. 

§§ 9541-9546.1 Upon review, we affirm.

This Court previously summarized the background underlying this 

matter as follows:

 

1 On December 29, 2014, the Commonwealth of Pennsylvania 

(Commonwealth) filed a petition requesting an extension of time to file a 

brief. This Court granted the Commonwealth’s petition and directed that the 

brief be filed on or before March 2, 2015. On March 2, 2015, the 

Commonwealth filed a second petition requesting an extension of time to file 

its brief, and the Court denied that petition. The Commonwealth did not file 

its brief until May 1, 2015, and, as a consequence, this Court did not 

consider it in disposing of this appeal. On May 8, 2015, Appellant filed a 

motion requesting an extension of time to file a reply brief. Because this 

Court did not consider the Commonwealth’s brief in disposing of this appeal, 

we deny Appellant’s motion as moot.
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On March 12, 2002, Beverly and Solomon Sacks were 

working together at Best Deal Discount Footwear (“the sneaker 

store”) in Philadelphia. At approximately 6:30 p.m., a man, 

later identified as Appellant, entered the store, stood silently, 

and then exited. Ten minutes later, Appellant again entered the 

store, and this time pulled a gun from his jacket and pointed it 

at Mr. Sacks. Mr. Sacks told his wife to leave the store and call 

the police. Mrs. Sacks quickly exited the store and screamed for 

help. When police arrived, Mrs. Sacks and the officers entered 

the store to find Mr. Sacks suffering from a gunshot wound to 

the chest. Mr. Sacks told his wife that the intruder shot him and 

that he believed he was going to die. Mr. Sacks was transported 

to the University of Pennsylvania Hospital where he was 

pronounced dead at 7:14 p.m.

Police began their investigation, and interviewed several 

eyewitnesses. During the investigation, the eyewitnesses, Mrs. 

Sacks, Pedro Genas, and Edward Iezzi, all identified Appellant 

from photo arrays, but with various degrees of certainty. 

However, when the witnesses were asked to view a line-up on 

November 6, 2002, all of them identified Appellant as the man 

they had seen on the night in question.

Appellant was subsequently arrested, and the matter 

proceeded to a jury trial where Appellant was found guilty of 

second degree murder and robbery. The trial court sentenced 

Appellant to a term of life in prison on the murder bill, and the 

robbery conviction merged for sentencing purposes.

Commonwealth v. Williams, 909 A.2d 890 (Pa. Super. 2006) 

(unpublished memorandum at 1-2). Appellant filed a direct appeal, and this 

Court affirmed Appellant’s judgment of sentence on August 24, 2006. Id.

On February 28, 2007, our Supreme Court denied Appellant’s petition for 

allowance of appeal. Commonwealth v. Williams, 918 A.2d 745 (Pa. 

2007). 
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Appellant filed a PCRA petition on July 2, 2007, and a motion for postconviction DNA testing on September 22, 2008. The PCRA court formally 

dismissed the petition on December 12, 2008, and Appellant timely filed an 

appeal.2 On February 9, 2010, this Court affirmed, and the Supreme Court 

denied Appellant’s petition for allowance of appeal on September 15, 2010. 

Commonwealth v. Williams, 996 A.2d 18 (Pa. Super. 2010) (unpublished 

memorandum), appeal denied, 8 A.3d 345 (Pa. 2010). 

Appellant filed the instant motion for post-conviction DNA testing on 

November 14, 2013. Therein, Appellant sought “testing of the black jacket 

worn by the perpetrator which was recovered and subjected to DNA analysis 

by the Commonwealth, but not [through the use of] ‘Touch DNA’ analysis.”3 

Appellant’s Motion for Post-Conviction DNA Testing at 2. Appellant thus 

requested testing of the jacket using “the new, more advanced ‘Touch DNA’” 

analysis. Id. On March 17, 2014, the Commonwealth filed a motion to 

dismiss. On May 1, 2014, the PCRA court issued notice pursuant to 

Pa.R.Crim.P. 907 of its intent to dismiss Appellant’s motion without a 

hearing. Appellant filed a response on May 20, 2014, and on May 23, 2014, 

 

2

It appears that the PCRA court also denied Appellant’s motion for postconviction DNA testing, but that Appellant did not seek appellate review of 

that decision.

3

Importantly, the DNA testing that was conducted either excluded Appellant 

or yielded no DNA results or inconclusive DNA results. Williams, 996 A.2d 

18 (unpublished memorandum at 12).
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the PCRA court formally dismissed Appellant’s motion. Appellant timely filed 

a notice of appeal.

Appellant presents the following issues for our consideration: 

I. Whether the [PCRA court] applied the wrong standard of 

review to Appellant’s motion for post-conviction DNA testing?

II. Whether the [PCRA court] erred in finding that [Appellant] 

was not entitled to post-conviction DNA testing when he was 

prepared to pay for the DNA testing and to have the results 

run through [the Combined DNA Index System (CODIS)] and 

the Pennsylvania data bank when there was a reasonable 

probability the testing would produce exculpatory evidence?

III. Whether the [PCRA court] erred in finding that there were no 

issues of material fact when the DNA testing, assuming 

exculpatory results, would make out a prima faci[e] case that 

[Appellant] is actually innocent of all charges?

IV. Whether the motion for post-conviction DNA testing was 

timely and the denial of the motion was a denial of 

Appellant’s rights guaranteed by the Eighth and Fourteenth 

Amendments of the United States Constitution and Article 1, 

Section 13 of the Pennsylvania Constitution?

Appellant’s Brief at 2 (unnecessary capitalization omitted).

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

thus, ‘[o]ur 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.’” Commonwealth v. Conway, 14 A.3d 101, 108 

(Pa. Super. 2011) (footnote and citation omitted) (quoting Commonwealth 

v. Brooks, 875 A.2d 1141, 1144 (Pa. Super. 2005)).

Section 9543.1 of the PCRA provides, in relevant part, as follows:
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(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.

***

(c) Requirements.--In any motion under subsection (a), under 

penalty of perjury, the applicant shall:

***

(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 
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(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.--

***

(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 

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. § 9543.1. 

“Thus, ... on its face, the prima facie requirement set forth in 

§ 9543.1(c)(3) and reinforced in § 9543.1(d)(2) requires that an appellant 

demonstrate that there is a reasonable possibility[] that favorable results of 

the requested DNA testing would establish the appellant’s actual innocence 

of the crime of conviction.” Conway, 14 A.3d at 109 (internal quotation 

marks omitted) (emphasis in original) (quoting Brooks, 875 A.2d at 1147). 

This Court has observed that the “actual innocence” standard mandates that 
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“newly discovered evidence ... make it ‘more likely than not that no

reasonable juror would have found [an applicant] guilty beyond a reasonable 

doubt.’ Thus, this standard requires a reviewing court ‘to make a 

probabilistic determination about what reasonable, properly instructed jurors 

would do,’ if presented with the new evidence.” Conway, 14 A.3d at 109 

(quoting Schlup v. Delo, 513 U.S. 298, 327, 329 (1995)). Accordingly, the 

PCRA court must “review not only the motion [for DNA testing], but also the 

trial record, and then make a determination as to whether there is a 

reasonable possibility that DNA testing would produce exculpatory evidence 

that would establish petitioner’s actual innocence.” Commonwealth 

v. Williams, 35 A.3d 44, 50 (Pa. Super. 2011) (emphasis in original) 

(quoting Commonwealth v. Smith, 889 A.2d 582, 584 (Pa. Super. 2005)).

Notwithstanding the various arguments Appellant presents on appeal, 

we conclude that he is not entitled to relief. Put simply, Appellant has failed 

to establish that there is a reasonable possibility that favorable results of the 

requested DNA testing would establish his actual innocence. In this regard, 

Appellant alleged in his motion as follows:

The Commonwealth should be ordered to perform “Touch DNA” 

testing. In the alternative, [Appellant] will pay for the testing to 

rule himself out as a contributor to DNA found on the jacket and 

to make clear that the samples that have previously been 

determined to be inconclusive, in fact, rule out [Appellant] as a 

contributor. He also requests that the DNA results obtained from 

the new, advanced testing and the old results be run through 

CODIS. [Appellant] believes that those results would exclude 
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him but might now identify the contributor of the DNA found on 

the coat. He is requesting that the fingerprints found at the 

murder scene also be run through CODIS. [Appellant] believes 

that there is a reasonable probability that the contributor of both 

the DNA and the source of the fingerprints would be found to be 

the same perso[n, but not Appellant,] and that person could be 

identified by running the new and old evidence through CODIS. 

This would be prima facie evidence of [Appellant’s] actual 

innocence.

Appellant’s Motion for Post-Conviction DNA Testing at 11.4 Moreover, 

Appellant argues in his brief, inter alia, that “he is a victim of cross-racial 

misidentification,” that the requested DNA testing will show his DNA is not 

on the jacket, and that “[t]he absence of DNA would surely create 

reasonable doubt in the mind of a juror.” Id. at 24-25. We disagree.

In this Court’s memorandum disposing of Appellant’s first PCRA 

petition, wherein we rejected Appellant’s claim that trial counsel was 

 

4 Appellant continued by asserting the same theories relied upon by the 

applicant in Conway in arguing that he is entitled to DNA testing, namely: 

(1) a “redundancy” theory, which postulates that if the individual 

DNA tests reveal evidence of a third person on multiple items 

connected with the crime, then those “redundant” results would 

give rise to an inference of a separate assailant; (2) a “data 

bank” theory, which postulates that any DNA results that are 

obtained from DNA testing that prove the presence of an 

unknown person could be run through state and federal data 

banks for a match, which, if successful, would lead to the 

identification of a separate assailant; and (3) a “confession” 

theory, which postulates that an assailant who is discovered by 

using the data bank theory could, when confronted with the DNA 

evidence, confess to the crime. 

Conway, 14 A.3d at 110.
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ineffective for failing to request additional DNA testing, we explained as 

follows:

Appellant contends trial counsel’s failure to request funds 

for additional DNA testing constitutes deficient performance as 

there was no reasonable basis for not making the request. To 

the contrary, trial testimony revealed that twelve samples had 

been taken from the jacket and submitted for DNA testing. 

While six of those samples returned no DNA results or 

inconclusive DNA results, Appellant was excluded from the 

remaining six samples. As the complained of tests were 

inconclusive, there was strength in the argument that the 

prosecution’s own DNA testing did not positively identify 

Appellant as the killer. Furthermore, there is just as reasonable 

a probability that additional testing would have revealed 

Appellant’s DNA on the jacket as there is that it would have 

excluded him from the source of the samples. Also, assuming, 

arguendo, new DNA testing would have positively excluded 

Appellant, this fact alone does not necessarily lead to a not guilty 

verdict. As has been noted previously, three eyewitnesses 

identified Appellant as the shooter.

Williams, 996 A.2d 18 (unpublished memorandum at 12) (citations 

omitted). 

We find the observations above to be particularly apt in the context of 

this matter and conclude that Appellant provides us no reason to reach a 

different conclusion. Appellant was convicted primarily on the basis of three 

eyewitness identifications in the face of DNA testing that failed to identify 

Appellant. Thus, even if the results of the requested DNA testing definitively 

excluded Appellant’s DNA from the jacket, further confirmation of this 

absence does not enable Appellant to meet his burden. See 

Commonwealth v. Heilman, 867 A.2d 542, 547 (Pa. Super. 2005) (“In 
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DNA as in other areas, an absence of evidence is not evidence of 

absence.”).5 Moreover, even if the results of the requested DNA testing 

positively identified someone else’s DNA on the jacket, Appellant fails to 

explain how that necessarily points to a different assailant. Thus, it would 

not exculpate Appellant. See Commonwealth v. Smith, 889 A.2d 582, 

585 (Pa. Super. 2005) (“Merely 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.”). 

As Appellant has failed to meet his prima facie burden under 

Section 9543.1 of the PCRA, the PCRA court did not err in denying his 

motion for post-conviction DNA testing. Accordingly, we affirm the court’s 

order.

Order affirmed.

 

5

In fact, Appellant acknowledges that the forensic expert who performed the 

original DNA testing testified on behalf of the Commonwealth “that the fact 

that [Appellant’s] DNA was not present in the samples did not mean that he 

did not touch the coat, but only that his DNA was not detected.” Appellant’s 

Motion for Post-Conviction DNA Testing at 7 (emphasis omitted); Appellant’s 

Brief at 9 (emphasis omitted).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/29/2015