J. S06034/20

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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 EDA 2019

:

 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-1206701-1981

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 (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, and his motion for 

post-conviction DNA testing. After careful review, we affirm.

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

and 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 murder1 and related offenses in 

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

 

1 18 Pa.C.S.A. 2501(a).
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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, 1985. 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481 A.2d 1376 (Pa.Super. 1984) (unpublished memorandum), appeal 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, appellant filed a pro se motion 

for post-conviction DNA testing, pursuant to 42 Pa.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 notice 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.
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day, the PCRA court dismissed both appellant’s untimely serial PCRA petition 

and his motion for post-conviction DNA testing. This timely appeal followed.

4

Appellant’s argument on appeal is two-fold. Appellant first contends 

that he is entitled to collateral relief because of an unspecified constitutional 

violation, the ineffectiveness of his counsel, and the unavailability 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 actual 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.Super. 2002) (citation 

omitted). Additionally, 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 appeal, in accordance with Pa.R.A.P. 1925(b). The PCRA

court filed its Rule 1925(a) opinion on June 4, 2019.
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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 omitted).

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.Super. 2014) (citation 

omitted). All PCRA petitions, including 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, appellant’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 Supreme 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 and 
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proves that one of the following three statutory exceptions to the one-year 

jurisdictional time-bar applies.

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 this 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 constitutional 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). 

Instantly, 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 jurisdiction to review the merits of any of the claims 

appellant raised in his untimely petition. See 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).
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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. (Appellant’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 omitted).

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 

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

affirm.

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

citations omitted), appeal denied, 50 A.3d 121 (Pa. 2012).
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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 available for testing on the date of 

the motion; (2) if the evidence was discovered prior 

to the applicant’s conviction, it was not already DNA 

tested because (a) technology for testing did not exist 

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. 

Additionally, . . . [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]ection 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. From 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 testing 

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.
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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 court 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 

produce exculpatory evidence that . . . would establish the applicant’s actual 

innocence of the offense for which 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 demonstrated by 

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

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

A.3d at 556 (citation and internal quotation marks 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 innocence.” 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 contentions.

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

that the items he desired to be DNA tested still exist more than 30 years after 
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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 favorable, would establish his actual 

innocence. See id. 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 proving 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 disprove he killed 

Zaks. Although [appellant] was wearing the jacket at 

the time of his arrest, there is no evidence that he was 

wearing it when he shot Zaks. Once again, the 

absence of evidence is not evidence of absence and 

cannot prove 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 type was B. [Appellant] cites Dr. Charles 

Tumosa’s testimony at trial where he testified that he 

never received a sample of the deceased’s blood. 
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[Appellant] claims that if Zaks’ blood were analyzed 

for blood type, it would not match the Type B blood 

found on [appellant’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 jeans, which indeed 

matched Zaks’ blood type, belonged to anyone else 

other than Zaks. Rather, his entire argument rests 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 analysis at this time would 

only duplicate analysis already performed and which

showed that Zaks’ blood type matched the blood 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 murder 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 participated in some way in Zaks’ 

murder. There are no known samples of DNA material 

from these two unnamed individuals and [appellant]

does not even specify which evidence 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 is 
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insufficient to establish the prima facie case that 

[appellant] needs for relief.

PCRA court opinion, 6/4/19 at 8-11 (footnote and citations to notes 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 

for 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