J-S27034-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O. P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. JERMAINE PALMER Appellant No. 1640 WDA 2013

Appeal from the PCRA Order dated September 13, 2013 In the Court of Common Pleas of Allegheny County Criminal Division at No: CP-02-CR-0009376-1993
BEFORE: GANTMAN, P.J., ALLEN, and STABILE, JJ. MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 22, 2014 Appellant Jermaine Palmer, 1 pro se , appeals from the September 13, 2013, order of the Court of Common Pleas of Alleghen y County (PCRA court), which denied his request for collateral relief u nder the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46 . Upon review, we dismiss this appeal because Appellant is not eligible for relief under the
PCRA. On June 13, 2013, Appellant filed his second motion f or postconviction DNA testing, 2 requesting DNA testing for the victim’s fingernail

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1 It is uncontested that on June 1, 1994, following a b ench trial, Appellant was convicted of third degree murder in Allegheny Cou nty and on July 25, 1994, sentenced to 10 to 20 years’ imprisonment. 2 On January 20, 2005, Appellant filed his first motio n for post-conviction DNA testing. Commonwealth v. Palmer , 903 A.2d 49, 1622 WDA 2005, (Footnote Continued Next Page)J-S27034-14

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clippings, earrings, clothing, hair follicles recovered fr om the vehicle, and any and all linen recovered from the Sleepy Hollow m otel. PCRA motion for DNA testing, 6/13/13, at 2. On September 13, 2013, the PCRA court denied the motion. The PCRA court did not require Appellan t to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Noting that Appellant “continues to raise the same issues that were addressed” pr eviously, the PCRA court by order dated October 24, 2013, adopted i ts four previous opinions “as its [o]pinion in the currently pending a ppeal” in support of its

(Footnote Continued) _______________________ at 3 (Pa. Super. filed May 18, 2006) (unpublished me morandum). Appellant sought DNA testing for: a) the victim’s clothing[;] b) the carpet and all other items which were collected f rom the impounded vehicle [by homicide detectives;] c) the blanket collected by [homicide detectives; and] d) any and all those items collected as evidence from t he crime scene, the impounded vehicle, and Petition, including those items having been previously tested but where the resul ts have not been introduced at trial. Id. at 3; see also PCRA motion for DNA testing, 1/20/05, at ¶ 7(a)-(d) . We affirmed the trial court’s order denying Appellant’s m otion for DNA testing on the basis that the absence of Appellant’s DNA on the req uested items would not demonstrate a prima facie case of innocence. Id. at 7. This Court also authored at least four memoranda addressing Appellant’ s multiple PCRA petitions. See Commonwealth v. Palmer , 819 A.2d 117, 596 WDA 2002 (Pa. Super. filed Jan. 15, 2003) (unpublished memora ndum); Commonwealth v. Palmer , 928 A.2d 1127, 1458 WDA 2006 (Pa. Super. filed Apr. 12, 2007) (unpublished memorandum); Commonwealth v. Palmer , 964 A.2d 946, 311 WDA 2008 (Pa. Super. filed Nov. 5. 2008) (unpublished memorandum); Commonwealth v. Palmer , 26 A.3d 1200, 1228 WDA 2010 (Pa. Super. filed Mar. 21, 2011) (unp ublished memorandum).J-S27034-14

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order denying his second motion for DNA testing. Trial Court Order, 10/24/13. On appeal, 3 Appellant raises two issues for our review. First, he argues that the PCRA court erred in concluding “there i s no reasonable possibility that DNA testing could prove [his] actual in nocence.” Appellant’s

____________________________________________ 3 With respect to our standard of review, we have noted : Post conviction DNA testing falls under the aegis of the [PCRA] . . . and thus, our standard of review permits us to co nsider only whether the PCRA court’s determination is supported by the evidence of record and whether it is free from legal e rror. Moreover, because the resolution of this appeal involve s statutory construction, which involves a pure question o f law, we review that aspect of the trial court’s decision de novo and our scope of review is plenary. Commonwealth v. Conway , 14 A.3d 101, 108 (Pa. Super. 2011) (internal citation, quotation marks and footnotes omitted), appeal denied , 29 A.3d 795 (Pa. 2011). When interpreting a statute, this Court is guided by the Statutory Construction Act (Act) of 1972, 1 Pa.C.S.A. §§ 1501–199 1, which provides that “[t]he object of all interpretation and constructi on of statutes is to ascertain and effectuate the intention of the General Assembly.” 1 Pa.C.S.A. § 1921(a). “The clearest indication of legislative int ent is generally the plain language of a statute.” Walker v. Eleby , 842 A.2d 389, 400 (Pa. 2004). “When the words of a statute are clear and free from a ll ambiguity, the letter of it is not to be disregarded under the pretext of p ursuing its spirit.” Commonwealth. v. Cahill , __A.3d__, 2014 PA Super 129, 2014 WL 2921806, at *3 (filed June 24, 2014) (citing to Sect ion 1921(b) of the Act, 1 Pa.C.S.A. § 1921(b)). Only “[w]hen the words of the statute are not explicit” may this Court resort to statutory constructi on. 1 Pa.C.S.A. § 1921(c). Moreover, “[e]very statute shall be construed , if possible, to give effect to all its provisions.” 1 Pa.C.S.A. § 1921(a). It is presumed “[t]hat the General Assembly intends the entire statute to be effective and certain.” 1 Pa.C.S.A. § 1922(2). Thus, no provision of a statu te shall be “reduced to mere surplusage.” Walker , 842 A.2d at 400. Finally, it is presumed “[t]hat the General Assembly does not intend a result that is ab surd, impossible of execution or unreasonable.” 1 Pa.C.S.A. § 1922(1).J-S27034-14

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Brief at 4. Second, Appellant challenges the PCRA cour t’s finding that “exceptional circumstances did not warrant the Commonwea lth’s disclosure of the registration records for Sleepy Hollow Motel Ro om #24.” Id. Before we address the merits of this appeal, we must determine whether Appellant is eligible for relief under the P CRA. In this regard, we observe that “[a] motion for DNA testing, while separa te and distinct from claims pursuant to other sections of the PCRA, nonethele ss constitutes a post[-]conviction petition under the PCRA.” Commonwealth v. Williams , 909 A.2d 383, 384 n.1 (Pa. Super. 2006). Instantly, Appellant filed a motion for DNA testing pursuant to Section 9543.1 of the PCRA. 4 Under Section 9543.1, an individual convicted of a

____________________________________________ 4 Section 9543.1 of the PRCA provides in pertinent par t: (a) Motion.-- (1) An individual convicted of a criminal offense in a court of this Commonwealth and serving a term of imprisonment or aw aiting execution because of a sentence of death may apply by ma king a written motion to the sentencing court for the perf ormance of forensic DNA testing on specific evidence that is related to the investigation or prosecution that resulted in the judgm ent 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 evid ence was discovered prior to the applicant’s conviction, the evide nce shall not have been subject to the DNA testing requested becau se 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 in digent and the court refused the request despite the client’s i ndigency.

. . . . (Footnote Continued Next Page)J-S27034-14

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(Footnote Continued) _______________________ (c) Requirements.-- In any motion under subsection (a), under penalty of perjury, the applicant shall:

. . . . (2) (i) assert the applicant’s actual innocence of the of fense for which the applicant was convicted[.]

. . . . (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.--

. . . . (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 e vidence that: (i) would establish the applicant’s actual innocence of t he offense for which the applicant was convicted;

. . . . (f) Posttesting procedures.-- (1) After the DNA testing conducted under this section h as been completed, the applicant may, pursuant to section 9545(b )(2) (relating to jurisdiction and proceedings), during the 60-day period beginning on the date on which the applicant is notified of the test results, petition to the court for postconviction relief pursuant to section 9543(a)(2)(vi) (relating to eligib ility for relief). (2) Upon receipt of a petition filed under paragraph (1), the court shall consider the petition along with any answer filed by the Commonwealth and shall conduct a hearing thereon. (3) In any hearing on a petition for postconviction r elief filed under paragraph (1), the court shall determine whethe r the exculpatory evidence resulting from the DNA testing con ducted under this section would have changed the outcome of th e trial as required by section 9543(a)(2)(vi). (Footnote Continued Next Page)J-S27034-14

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crime in Pennsylvania, who is serving a term of imprisonment or awaiting execution because of a sentence of death, may file a mot ion with the sentencing court to have forensic DNA testing conducted on specific evidence that is related to the investigation or prosecu tion of that individual which resulted in his or her conviction. 42 Pa.C.S.A. § 9543.1(a). As the basic requirements for DNA testing under Section 9543.1(a) indicate, to request DNA testing an individual must ei ther be serving a sentence or awaiting execution for the challenged conviction. Here, our review of the record reveals that Appellant is doing neither. In fact, it is undisputed that, on July 25, 1994, Appellant was sent enced to 10 to 20 years’ imprisonment for third degree murder, and his se ntence for that conviction has expired. More than 20 years have passed si nce the imposition of his sentence. Thus, based on our interpre tation of Section 9543.1(a), Appellant is not eligible for DNA testing, because he no longer is serving a sentence for third degree murder. 5

(Footnote Continued) _______________________ 42 Pa.C.S.A. § 9543.1(a), (c), (d), and (f). 5 We note that Appellant may be serving another senten ce for a separate homicide conviction in Philadelphia. See Palmer v. Pa. State Police , 928 A.2d 1165, 1166 (Pa. Cmwlth. 2007). Regardless, becau se Appellant challenges only his conviction for third degree murder in Allegheny County for which he has served his sentence, it is not relevant whether he also currently is serving a sentence for another conviction. See Commonwealth v. Martin , 832 A.2d 1141, 1142-43 (Pa. Super. 2003) (concluding although Appellant was serving a sentence for a different conviction, the fact the he served his sentence for the ch allenged conviction rendered him ineligible for PCRA relief).J-S27034-14

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Our interpretation of Section 9543.1 is consistent with Section 9543(a) of the PCRA, which governs when a person is eligible fo r PCRA relief. To be eligible for relief under the Section 9543(a) of the PCRA, a petitioner must either be “currently serving a sentence of imprisonment . . . for the crime” or “ awaiting execution of a sentence of death for the crime” or “ serving a sentence which must expire before the person may commence serving the disputed sentence.” 42 Pa.C.S.A. § 9543(a)(1)(i)-(iii ) (emphasis added). In other words, a petitioner who has served his or her sen tence is ineligible for relief under Section 9543(a) of the PCRA. Our Supreme Court addressed the requirements of Sectio n 9543(a) in Commonwealth v. Ahlborn , 699 A.2d 718 (Pa. 1997). In Ahlborn , the appellant finished his sentence after he filed his PCRA petition. Id. at 719. The Court denied him relief under the PCRA on the b asis that he was not currently serving a sentence. Id. at 721. The Court specifically reasoned: The denial of relief for a petitioner who has finishe d serving his sentence is required by the plain language of the [PCR A]. To be eligible for relief a petitioner must be currently serving a sentence of imprisonment, probation or parole. To gra nt relief at a time when appellant is not currently serving such a sentence would be to ignore the language of the statute.
Id. at 720 (emphasis in original); see also Commonwealth v. Hart , 911 A.2d 939, 942 (Pa. Super. 2006) (noting that “[a]s so on as his sentence is completed, the petitioner becomes ineligible for relie f, regardless of whether he was serving his sentence when he filed the petition” ). The similarity between Sections 9543.1(a) and 9543(a) of the PCRA is bolstered by the fact that, under Section 9543.1(f)(1 ), after DNA testing hasJ-S27034-14

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been ordered by the court and the individual obtains the results from that DNA testing, he or she may then petition the court for post-conviction relief, pursuant to Section 9543(a)(2)(vi) (relating to eligi bility for relief). 42 Pa.C.S.A. § 9543.1(f)(1). Applying our Supreme Cou rt’s reasoning in Ahlborn , upon receiving the results of DNA testing, an individ ual may not petition the trial court under Section 9543(a) for col lateral relief if he or she has finished serving his or her sentence. Therefore, a p erson who obtains DNA test results for a challenged conviction necessarily mu st be serving a sentence for that conviction to petition the trial court for post-conviction relief under Sections 9543.1(f)(1) and 9543(a)(2)(vi) . Instantly, even if Appellant were to be granted DNA testing, or if he o btained the results of the same, he would not be able to petition the court for collateral relief under 9543.1(f)(1) and 9543(a)(2)(vi), because, as stated ear lier, he has finished serving his sentence for the challenged conviction, i.e. , third degree murder. In light of our interpretation of Section 9543.1, an d consistent with Ahlborn , we conclude that Appellant’s instant appeal must be d ismissed. Appellant fails to meet the PCRA’s eligibility requir ements because he has completed his sentence. Appeal dismissed. Judge Allen joins the majority. President Judge Gantman concurs in the result.J-S27034-14

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/22/2014