J. S 0 6 0 34 /20

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

COMMONWEALTH OF PENNSYLVANIA : : IN THE SUPERIOR COURT OF

PENNSYLVANIA
v. : : ERIC ROBINSON , : No. 25 E DA 20 19
: Appellant :

Appeal from the Order Dated November 27, 2018, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP

- 51

- CR

- 1206701

- 1 9 81

BEFORE: LAZARUS , J. , McLAUGHLIN , J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: Filed: March 16, 2020

Eric Robinson appeals pro se from the November 27 , 2018 order
dismissing his untimely serial petition filed pursuant to the Post Conviction
Relief Act (“PC RA”), 42 Pa.C.S.A. §§ 9541

- 9546, and his motion for
post

- conviction DNA testi ng. After careful review, we affirm.

The relevant facts of this case were set forth in the PCRA court’s opinion

an d need not be reiterated here. ( See PCRA court opinion, 6/4/19 at 1

- 3.)
The pertinent procedural history of this case, as gleaned from the certified
record, is as follows: On February 8, 1982 , appellant was found guilty
following a bench trial of first

- degree murder 1 and related offenses in

connection with the shooting death of Yefim Zaks in West Philadelphia. The

1 18 Pa.C.S.A. 2501(a).J . S06 0 34 /20

- 2

-

trial court sentenced appellant to a mandatory term of life imprisonment. On
August 31, 1984 , a panel of this court affirmed appellant’s judgment of

sentence in part and vacated it in part , and our supreme court denied
allowance of appeal on January 7, 19 85

. See Commonwealth v. Robinson ,
481 A.2d 1376 (Pa.Super. 1984 ) (unpublished memorandum), appeal

denied , A.2d (Pa. 1985). 2 Appellant did not file a petition for writ of

certiorari with the Supreme Court of the United States. From 1986 to 2012,
appellant filed five unsuccessful PCRA petitions.
Appellant filed the instant pro se PCRA petition , his sixth , on March 8 ,
2016

. Contemporaneously with this petition, a ppellant filed a pro se motion
for post

- conviction DNA testi ng, pu rsuant to 42 P a.C.S.A. § 9543.1

. On
July 31 , 2018, the PCRA court appointed counsel, 3 who subsequently filed a

“no merit” letter and petition to withdraw in accordance with Commonwealth

v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550

A.2d 213 (Pa.Super. 1988) ( en banc ). On October 22, 2018 , the PCRA court
provided appellant with notice of its intention to dismiss his petition without a
hearing, pursuant to Pa.R.Crim.P. 907(1). Appellant filed a pro se response

to the PCRA court’s Rule 907 not ice on November 15, 2018 . On November 27,

2018 , the PCRA court granted counsel permission to withdraw. That same

2 We were unable to locate our supreme court’s denial of appellant’s allocator petition in our search of the Atlantic Reporter.

3 George S. Yacoubian , Esq.J . S06 0 34 /20

- 3

-

day, the PCRA court dismissed both appellant’s untimely serial PCRA petition

and his motion for post

- conviction DNA testing. This timely app eal followed

. 4
Appellant’s argument on appeal is two

- fold. A ppellant first contends
that he is entitled to collateral relief because of an unspec ified constitutional
violation, the ineffectiveness of his counsel , and the unavailabilit y of
exculpatory DNA evidence. ( See pro se PCRA petition, 3/8/16 at ¶¶ 4

- 5.)
Appellant also contends that “ the [PCRA court] erred as a matter of law in
determining that DNA testing would not produce exculpatory evidence that

would establish appellant’s a ctual innocence.” ( Appellant’ s brief at 14
(extraneous capitalization omitted) )

.

I. Dismissal of PCRA petition
Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “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). “This Court grants
great deference to the findings of the PCRA court, and we will not disturb those
findings merely because the record could support a contrary holding.”

Commonwealth v. Hickman , 799 A.2d 136, 140 (Pa.S uper. 2002) (citation
omitted). Addit ionally, we note that, “[a]lthough this Court is willing to

4 The PCRA court did not order appellant to file a concise statement of errors complained of on appe al, in accordance with Pa.R.A.P. 1925(b). The PCRA court f iled its Rule 1925(a) opinion on June 4, 2019.J . S06 0 34 /20

- 4

-

liberally construe materials filed by a pro se litigant, pro se status confers no
special benefit upon the appellant[.]” Commonwealth v. Adams , 882 A.2d
496, 498 (Pa.Super. 2005) (citation omitte d).
Preliminarily , we must consider the timeliness of appellant’s PCRA
petition because it implicates the jurisdiction of this court and the PCRA court.

Commonwealth v. Davis , 86 A.3d 883, 887 (Pa.Su per. 2014) (citation
omitted). All PCRA petitions, inc luding second and subsequent petitions, must
be filed within one year of when a defendant’s judgment of sentence becomes
final. 42 Pa.C.S.A. § 9545(b)(1). “A judgment becomes final at the conclusion
of direct review, including discretionary review in the Supreme Court of the
United States and the Supreme Court of Pennsylvania, or at the expiration of
the time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). If a PCRA
petition is untimely, a court lacks jurisdiction over the petition.

Commonwealth v. Callahan , 101 A.3d 118, 120

- 121 (Pa.Super. 2014).
Here, a ppellant’s judgment of sentence became final on April 8 , 1985 , 90 days after our supreme court denied allowance of appeal and the deadline
for filing a petition for writ of certiorari with the Supr eme Court of the United

States expired. See 42 Pa.C.S.A. § 9545(b)(3). Accordingly, appellant had

until April 8 , 1986 , to file a timely PCRA petition. See 42 Pa.C.S.A.
§ 9545(b)(1). Appellant’s instant petition was filed on March 8, 2016 , almost

30 years past the deadline, and is patently untimely. As a result, the PCRA
court lacked jurisdiction to review appellant’s petition, unless he pleads andJ . S06 0 34 /20

- 5

-

proves that one of the following three statutory exceptions to the one

- year jurisdictional time

- bar app lies.
The three statutory exceptions to the PCRA time

- bar are as follows:
(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of t his Commonwealth or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or
(iii) the right asserted is a con stitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.
42 Pa.C.S.A. § 9545(b)(1).

Instan tly, the record reveals that appellant has failed to invoke any of

the three statutory exceptions to the one

- year jurisdictional time

- bar

. On the
contrary, appellant’s brief makes no argument whatsoever with respect to

timeliness of his petition and does not even cite Section 9545(b) (1).
Accordingly, we lack jur isdiction to review the merits of any of the claims
appellant raised in his untimely petition

. S ee Callahan , 101 A.3d at 123
(holding, if a PCRA petition is untimely on its face, or fails to meet one of the
three statutory exceptions to the time

- bar, we lack jurisdiction to review it on

the merits ).J . S06 0 34 /20

- 6

-

II. Denial of motion for post
- conviction DNA testing
We now turn to appellant’s claim that the PCRA court erred in denying

his pro se motion for post

- conviction DNA testing

. ( A ppellant’ s brief at

14

- 27 .)
Motions for post

- conviction DNA tests, while

considered post

- conviction petitions under the PCRA, are clearly separate and distinct from claims pursuant to other sections of the PCRA. It is well

- recognized that the one

- year time bar proscribed under the PCRA does not apply to petitions for post

- conviction DNA testing under Section 9543.1.
Commonwealth v. Perry , 959 A.2d 932, 938 (Pa.Super. 2008) (citations
and internal quotation marks omitte d).

Our standard of review of an order denying a motion for post

- conviction
DNA testing is well settled :

[T]he [PCRA] 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 9543.1 [of the PCRA]. We can affirm the court’ s decision if there is any basis t o support it, even if we rely on different grounds to affirm.

Commonwealth v. Williams , 35 A.3d 44, 47 (Pa. Super. 201 1) (internal
citations omitted), appeal denied , 50 A.3d 121 (Pa. 2012).J . S06 0 34 /20

- 7

-

The requirements for obtaining post

- conviction DNA testing are set forth

in 42 Pa.C.S.A. § 9543.1(c). 5 As a panel of this court explained in Williams ,

[Section 9543.1] sets forth several threshold requirements to obtain DNA testing: (1) the evidence specified must be av ailable for testing on the date of the motion; (2) if the evidence was di scovered prior to the applicant’ s conviction, it was not already DNA tested because (a) technology for testing did not exi st at the time of the applicant’s trial; (b) the applicant’ s counsel did not request testing in a case that went to verdict before January 1, 1995; or (c) 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.

Ad ditionally,

. . . [u]nder [S]ection 9543.1(c)(3), the petitioner is required to present a prima facie case that the requested DNA testing, assuming it gives exculpatory results, would establish the petitioner’ s actual innocence of the crime. Under [S] ecti on 9543.1(d)(2), the court is directed not to order the testing if it determines, after review of the trial record, that there is no reasonable possibility that the testing would produce exculpatory evidence to establish petitioner’ s actual innocence. Fro m the clear words and plain meaning of these provisions, there can be no mistake that the burden lies with the petitioner to make a prima facie case that favorable results from the requested DNA testing would establish his innocence. We note that the statute does not require petitioner to show that the DNA test ing results would be favorable. However, the court is required to 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

5 We note that Section 9543.1 was amended and the new language became effective December 24, 2018. See Act 2018, Oct. 24, P.L. 896, No. 147, § 1. Because appellant filed his motion on March 8, 2016 , this amended language does not apply.J . S06 0 34 /20

- 8

- exculpatory evidence that would establish petitioner’s actual innocence.

Williams , 35 A.3d at 49

- 50 (citation omitted; emphasis in original) ; see also

42 Pa.C.S. A. § 9543.1(d)(2)(i) (stating, “[t] he c ourt shall not order the testing
requested

. . . if, after review of the record of the applicant’ s trial, the court
determines that there is no reasonable possibility that the testing would

pr oduce exculpatory evidence that

. . . would establish the applic ant’ s actual

innocence of the offense for whic h the applicant was convicted[.]”).

In In re Payne , 129 A.3d 546 (Pa.Super. 2015) ( en banc ) , appeal

denied , 145 A.3d 167 (Pa. 2016), a panel of this court explained that actual

innocence in the context of Section 9543.1(d)(2)(i) is demonstra ted by

evidence that “make [ s ] it more likely than not that no reasonable juror would

have found [ the applicant] guilt y beyond a reasonable doubt.” Payne , 129

A.3d at 556 ( citation and internal quotation m arks omitted ). The Payne court
explained that, “[t] he threshold question is, therefore, not the likelihood of
proof of innocence, but whether it is within the realm of reason that some
result(s) could prove innocenc e.” Id. at 563.
Herein, appellant argues that he complied with all requirements of
Section 9543.1(c) and baldly contends that the PCRA court failed to apply the

aforementioned standard set forth in Payne

. (Appellant’ s brief at 4, 17

- 20 .)

The record belies these contenti ons

. Preliminarily, we note that appellant has failed to proffer any evidence

that the items he desired to be DNA teste d still exist more than 30 years afterJ . S06 0 34 /20

- 9

-

his convictions , as he was required to do. See 42 Pa.C.S.A. § 9543.1(a)(2)
(stating, “[t] he evidence shall be available for testing as of the date of the

motion.” )

. While he asserted his actual innocence in his PCRA petition,
appellant also failed to present a prima facie case demonstrating that the
results of the DNA testing, even if favorab le, would establish his actu al

innocence. See i

d. at § 9543.1(c)(2), (3)(i) , and (3) (ii)(A). To this point, we
agree with the sound reasoning of the PCRA court:

The evidence adduced at trial overwhelmingly established that [appellant] was responsible for the murder of Yefim Zaks and DNA testing would not have changed the verdict.

. . . . First, the absence of [appellant’s] DNA on Zaks’ body or on the seat cover used to wrap the deceased would not exculpate him by pro ving that he never handled the body, as he suggests. The lack of [appellant’s] DNA material on the seat cover or corpse would neither prove nor disprove that [appellant] killed Zaks

. . . . Similarly, lack of gunshot residue on [appellant’s] jacket would neither prove nor disp rove he killed Zaks. Although [appellant] was wearing the jacket at the time of his arrest, there is no evidence that he wa s wearing it when he shot Zaks. Once again, the absence of evidence is not evidence of absence and cannot pro ve actual innocence. Therefore, a lack of gunshot residue on [appellant’s] jacket would not serve to prove his actual innocence.
Third, [appellant] claims that Zaks’ blood type was never tested and that there was no evidence that Zaks’ blood ty pe was B. [ Appellant ] cites Dr. Charles Tumosa’ s testimony at trial where he testified that he
never re ceived a sample of the deceased’s blood.J . S06 0 34 /20

- 10

- [Appellant] claims that if Zaks’ blood were analyzed for blood type, it would not match the Type B blood found on [appel lant’s] jeans. This claim is easily belied by the record. Earlier on the same day that Dr. Tumosa testified at trial, the Deputy Medical Examiner Dr. Robert L. Catherman testified that he examined Zaks’ body, determined the cause and approximate time of death, and performed an autopsy. As part of the autopsy, Dr. Catherman performed a blood [] typing test on Zaks’ blood and determined that it was Type B. After Dr. Catherman testified, Dr. Frank Thompson, Jr., a Histologist in the Office of the Medical Examiner, testified that he also performed blood[] typing analysis on a sample from Zaks’ body and determined that it was Type B. [Appellant] has provided no evidentiary basis to suggest that the blood on the j eans, which indeed matched Zaks’ blood type, belonged to anyone else other than Zaks. Rather, his entire argument rest s on the false belief that Zaks’ blood type was never determined, and he believes that performing a blood typing test would show they do not match. Since performing a blood type ana lysis at this time would only duplicate analysis already performed and which showed that Zaks’ blood type matched the bloo d on [appellant’s] jeans, this would in no way prove actual innocence.
Last, [appellant] claims that DNA testing will prove that the two individuals he claims used Zaks’ credit cards at a bank on the day of the mu rder are the true perpetrators. This claim is wholly without merit. First, there is nothing in the trial record regarding these two individuals or the incident at the bank. Second, DNA testing would neither prove nor disprove whether two unknown individuals p articipated in some way in Zaks’ murder. There are no known samples of DNA material from these two u nnamed individuals and [appellant] does not even specify which eviden ce in connection with the alleged bank incident he believes should be subjected to DNA evidence or how it would establish his actual innocence. He simply baldly claims that these two people are the true murderers. This isJ . S06 0 34 /20

- 11

- insufficient to establish the pr ima facie case that [appellant] needs for relief.
PCRA court opinion, 6/4/19 at 8

- 11 ( footnote and citations to note s of
testimony omitted)

. Contrary to appellant’s contention, it is clear from the PCRA court’s
analysis that it applied the appropriate standard in this matter. Accordingly , we discern no error on the part of the PCRA court and conclude the PCRA court
properly dismissed appellant ’s untimely serial PCRA petition and his motion

fo r post

- conviction DNA testing.

Order affirmed.

Lazarus, J. joins this Memorandum.
McLaughlin, J. concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: March 16, 2020