J-S30036-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BRUCE MURRAY,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3157 EDA 2018

Appeal from the Order Dated September 18, 2018

in the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-1111091-1982

BEFORE: PANELLA, P.J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 23, 2019

Bruce Murray (“Murray”) appeals, pro se, from the Order denying his 

Motion for DNA testing filed pursuant to Section 9543.1 of the Post Conviction 

Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

On June 24, 1983, following a jury trial, Murray was convicted of various 

crimes, including second-degree murder, related to the killing and robbery of 

Eric DeLegal (“DeLegal”). The trial court sentenced Murray to life in prison. 

This Court affirmed Murray’s judgment of sentence, and the Pennsylvania 

Supreme Court denied Murray’s Petition for allowance of appeal. See 

Commonwealth v. Murray, 505 A.2d 1035 (Pa. Super. 1985) (unpublished 

memorandum), appeal denied, 1872 EAL 1985 (Pa. Nov. 26, 1986). 

Thereafter, Murray filed numerous unsuccessful PCRA Petitions.
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On January 3, 2018,

1 Murray filed the instant pro se Motion for DNA 

testing of various pieces of evidence purportedly collected at the scene of the 

crime. On September 18, 2018, the PCRA court dismissed the Motion without 

a hearing. Murray filed a timely Notice of Appeal2 and a Pa.R.A.P. 1925(b) 

Concise Statement of matters complained of on appeal.

On appeal, Murray raises the following questions for our review:

A. DID PCRA Court Err For Failure To Comply To 42 Pa.C.S.A. 

§9543.1 For DNA Testing Of Items And Clothing Collected From 

The Alleged Crime Scene By Forensic Investigatiion, PCRA Court 

Has Failed To Serve Notice As Required To The Commonwealth 

Upon Receipt Of A Motion Under Subsection (a) The Shall Notify 

The Commonwealth and Shall Afford The Commonwealth An 

Opportunity To Respond To The Motion, PCRA Court Rubber 

Sampled Her Order, Is PCRA Judges At The Criminal Justice 

Center, 1301 Flbert Street Granting DNA Hearing To Obtain 

Forensic Evidence For Testing If Available? Defendant Wll Cite 

Those Cases On appeal For A Remain Requesting For, Is The 

Leading Case To Obtain Forensic Evidence From The Crime Scene? 

Is Commonwealth v. Anthony Wright, 609 A.3d 2011 Pa. Lexis 

38172 A.L.R. 6th No. EAP 2008[?]

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1 We note that Murray’s Motion is date-stamped January 3, 2017. However, 

the envelope accompanying Murray’s Motion is postmarked January 3, 2018, 

and Murray’s letter accompanying the Motion is dated December 30, 2017. 

Accordingly, we believe the January 3, 2017 date stamp was an error, and the 

Motion was actually docketed on January 3, 2018.

2 Murray’s pro se Notice of Appeal was received by the trial court on October 

19, 2018, 31 days after the entry of the Order denying Murray’s Motion. See

Pa.R.A.P. 903(a) (stating that a notice of appeal shall be filed within 30 days 

after the entry of the order from which the appeal is taken). However, Murray 

certified that his Notice of Appeal was deposited with the prison mailing 

system on October 16, 2018. See Pa.R.A.P. 121(a). In accordance with the 

prisoner mailbox rule, see Commonwealth v. Jones, 700 A.2d 423, 426 

(Pa. 1997), we find Murray’s Notice of Appeal to be timely filed.
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B. Does PCRA Genece Brinkley Must Recusal Herself Once Case 

Be Remanded For Forensic DNA Testing? Does Appellant Have 

Evidnece To Support His Argument For Recusal Of Judge Brinkley? 

See, Commonwealth v. Amir Hakim McCain, Judge Denied

McCain’s PCRA Petition For An Evidnetiary Hearing Regarding Trial 

Counsel Ineffectiveness For Failure To Communicate Information 

During His Absence Of Venireperson In -Chambers Of Juror 19 

Alam Hampton, The PCRA Judge Brinkley Stated that [ii] seems 

Obvious That The Purpose Of The Meeting Was To Discuss That 

Specific Juror And To Use A Peremptory Challenge To Strike Her, 

On August 7, 2000, The Superior Court Of Pennsylvania 

Remanded Appellant’s Case For An Evidentiary Hearing Stating In 

Light Of The Fact That No Hearing Was Held On Appellant’s PCRA 

Petition, They Do Not Have A Sufficient Factual That Basis Of 

Record To Review The PCRA Court’s Determinatioin, Due To The 

State of The Record.

Brief for Appellant at 1 (errors included).3

In his first issue, Murray alleges that the trial court erred in denying his 

Motion for DNA testing. Id. at 2-5. Murray states that the results of DNA 

testing of certain pieces of evidence that were collected by police investigators

would prove his innocence. Id. at 2. Specifically, Murray requests that the 

following items be tested: “(1) victim[’s] clothing, (2) victim[’s] blood, (3) 

[Murray’s] blood, (4) [Murray’s] finger print [on] front door, (5) furnitures as 

(a) table, (b) chairs and desk, (6) hair, (7) skin cells, (8) fibers, (9) bullets, 

(10) pistol, (11) sawed off shotgun and (12) multiple gunshot of 38’s and 32 

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3 Murray’s second claim raises issues unrelated to his request for DNA testing. 

See Commonwealth v. Walsh, 125 A.3d 1248, 1252 (Pa. Super. 2015)

(stating that “Section 9543.1 cannot be used to raise extraneous issues not 

related to DNA testing in an effort to avoid the one-year PCRA time bar.”

(quotation marks and brackets omitted)). Accordingly, Murray must raise this 

issue in a timely-filed PCRA petition, and we will solely review Murray’s first 

claim regarding the denial of his Motion for DNA testing.
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that caused wounds of the body and the manner of death to be homicide.” 

Id.

Initially, we note that

[m]otions for post-conviction DNA tests, while considered postconviction 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) (quotation 

marks and citations omitted).

We review an order denying a motion for post-conviction DNA testing 

as follows:

[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). 

As we 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; [] (c) [the evidence was subject to the testing, 
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but newer technology could provide substantially more accurate 

and substantially more probative results]; or [(d)] 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 [the] 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 [the] 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 

exculpatory evidence that would establish petitioner’s actual 

innocence. We find no ambiguity in the standard established by 

the legislature with the words of this statute.

Id. at 49-50 (citation omitted; emphasis in original).

Here, Murray baldly asserts that police investigators collected numerous 

pieces of evidence, which, if tested for DNA, would prove his innocence. 

Although Murray claims that these items are being held by the Philadelphia 

Police Department, Murray has failed to indicate whether these items were 

discovered prior to his conviction, and if so, why they were not tested at that 

time. Additionally, Murray does not explain how the DNA testing of these 

items would prove his innocence. Thus, Murray has failed to meet the 

threshold requirements for obtaining DNA testing, and to present a prima facie

case that the requested testing would establish his innocence. See id., 
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supra. Accordingly, Murray has not satisfied the requirements of Section 

9543.1, and the trial court properly denied Murray’s Motion for DNA testing.4

Order affirmed. Motion for Correction to Appellee Errors Within Brief 

denied.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/23/2019

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4 Murray has filed a pro se “Motion for Correction to Appellee Errors Within 

Brief,” which was deferred for disposition by this panel. After consideration, 

we find the Motion to be frivolous and lacking any merit. Accordingly, we deny 

Murray’s “Motion for Correction to Appellee Errors Within Brief.”