J-S37037-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

WILLIE EARL MCCLELLAN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 782 EDA 2022

Appeal from the Order Entered February 22, 2022

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0208241-1998

BEFORE: BOWES, J., LAZARUS, J., and OLSON, J.

MEMORANDUM BY OLSON, J.: FILED DECEMBER 6, 2022

Appellant, Willie Earl McClellan, appeals pro se from the order entered 

on February 22, 2022, dismissing his petition for DNA testing under the 

Post-Conviction Relief Act (PCRA).1 We affirm.

A prior panel of this Court previously set forth the facts and procedural 

history of this case as follows:

On January 7, 1998, police were called to [a residence located 

along North] 16th Street in Philadelphia, [Pennsylvania] where 

they found [A]ppellant's wife standing outside crying hysterically. 

They entered the residence, where they found [A]ppellant's two 

children who had been stabbed to death. They also found 

[A]ppellant in his bed under covers. He had stab wounds, but was 

not in danger of death. On the interior walls of the house were 

magic marker messages directed to [A]ppellant's wife. The first 

message read: "Shy Butch, you can be. (sic) Love, Earl." The 

second message read: "I always gave you what you wanted, now 

you are free. Love, Earl." The reference in the first message to 

"Shy Butch'' was a reference to an internet screen name that 

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1 42 Pa.C.S.A. § 9543.1.
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[A]ppellant's wife allegedly used when conversing in a 

homosexually oriented chat room. Based on the evidence and the 

information provided by [A]ppellant’s wife, [A]ppellant was 

arrested, and charged with multiple homicide[s]. 

Following [A]ppellant‘s arrest, he provided the police with a 

confession, which was ultimately reduced to writing and signed. 

Subsequent attempts to have this confession suppressed were 

unsuccessful, and by the time of trial the Commonwealth was 

prepared to introduce this confession as part of its case[-]in[-]

chief. 

The case proceeded to trial, with the Commonwealth pursuing the 

death penalty. The trial began and the Commonwealth, during 

the first day, produced three witnesses including the two police 

officers who were first on the scene, and the paramedic who first 

attended to [A]ppellant’s stab wounds. 

On the second day of trial[,] the paramedic completed his 

testimony before the lunch break. Following the lunch break 

[A]ppellant’s counsel and the Commonwealth’s attorney advised 

the trial court that a plea agreement had been reached, under the 

terms of which [A]ppellant would plead guilty to two homicides 

and the weapons offense in return for a sentence of two 

consecutive life sentences. Thereafter, the trial court presided 

over a colloquy in which [A]ppellant‘s counsel explained to 

[A]ppellant the full ramifications of his decision to plead guilty. 

This colloquy alone encompasse[d] eleven pages of the transcript. 

The trial judge accepted the guilty plea and imposed the 

consecutive life sentences that were discussed, but not without 

conducting his own inquiry into the voluntariness of [A]ppellant’s 

plea. The trial judge then ended the proceedings, which meant 

the jury was dismissed as were the Commonwealth’s witnesses. 

The following day [A]ppellant called his attorney and stated his 

desire to withdraw his guilty plea and proceed to another trial. The 

trial attorney complied with [A]ppellant’s wishes to file a motion 

to withdraw the guilty plea, but simultaneously filed a motion to 

withdraw as counsel due to the apparent conflict arising from the 

complaint of [A]ppellant that trial counsel was ineffective in 

advising him to plead guilty. The petition to withdraw as counsel 

was granted, new counsel was appointed, and an evidentiary 

hearing was held in which the circumstances surrounding 

[A]ppellant’s decision to plead guilty were explored. The presiding 

judge found no support for [A]ppellant’s claim of ineffective 
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assistance of counsel and ultimately denied [A]ppellant’s request 

to withdraw his guilty plea. 

Commonwealth v. McClellan, 776 A.2d 1007 (Pa. Super. 2001)

(unpublished memorandum) at *1-3.

On direct appeal to this Court, Appellant argued the ineffective 

assistance of counsel constituted manifest injustice which permitted the 

withdraw of his guilty plea. More specifically, as we explained:

Appellant’s argument to this Court [was] that the circumstances 

under which [A]ppellant agreed to accept his attorney’s advice 

were so “volatile and emotional” that his plea could not “be viewed 

as voluntarily, willingly, and intelligently made.” Our response to 

this argument [was] twofold. First, in any proceeding where the 

issue is whether the defendant murdered his children, we would 

expect that there would be a certain amount of volatility and 

emotion. Secondly, although counsel argue[d] that [A]ppellant 

asserted his “innocence“ prior to agreeing to plead guilty, counsel 

[made] no claim that [A]ppellant ha[d] a defense to the charges. 

Moreover, appellate counsel admit[ted] that trial counsel’s legal 

advice to [A]ppellant was sound. Therefore, there is nothing 

contained in [A]ppellant’s arguments that persuade[d] this Court 

that the trial judge was incorrect in his conclusion that [A]ppellant 

failed to demonstrate “manifest injustice.” By extension, [we 

determined] there [was] no basis upon which to overrule the 

judge’s determination that counsel was not ineffective. 

Consequently, we [] affirm[ed] the judgment of sentence.

Id. at *6-7. Appellant did not seek an allowance of appeal from our Supreme 

Court.

On January 29, 2020,2 Appellant filed a petition for DNA testing under 

the PCRA. “An individual convicted of a criminal offense in a court of this 

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2

 Appellant unsuccessfully litigated several PCRA petitions between his direct 

appeal and his current claim.
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Commonwealth may apply by making a written motion to the sentencing court 

at any time 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.” 42 Pa.C.S.A.. § 9543.1(a)(1). “DNA testing may be sought at 

any time if the motion is made in a timely manner and for the purpose of 

demonstrating the applicant's actual innocence and not to delay the execution 

of sentence or administration of justice.” 42 Pa.C.S.A. § 9543.1(a)(4).

“Notwithstanding any other provision of law, a plea of guilty to a crime of 

violence[...] or a confession given by an applicant concerning the offense for 

which the applicant was convicted, shall not prohibit the applicant from 

asserting actual innocence [...] or the court from making a determination and 

ordering DNA testing[.]” 42 Pa.C.S.A. § 9543.1(a)(5).3 “The motion shall 

explain how [...] after review of the record of the applicant's guilty plea there 

is a reasonable probability, that the testing would produce exculpatory 

evidence that would establish: (i) the applicant's actual innocence of the 

offense for which the applicant was convicted[.]” 42 Pa.C.S.A. 

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3

 Under the prior version of Section 9543.1 adopted in 2002, “[w]e found 

that the language of § 9543.1 clearly preclude[d] that section's application to 

petitioners seeking to challenge convictions resulting in guilty pleas by 

reference to DNA evidence.” Williams v. Erie Cnty. Dist. Attorney's Off., 

848 A.2d 967, 972 (Pa. Super. 2004). We note that Section 9543.1 was 

amended in 2018 to include, inter alia, Section (a)(5). While this case involves 

a guilty plea and Section 9543.1(a)(5) permits Appellant’s request for testing, 

as discussed at length below, the purported results of DNA testing on the 

specific items requested simply would not exculpate Appellant. As such, we 

need not examine the factual, evidentiary record supporting Appellant’s plea 

to decide this case. 
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§ 9543.1(a)(6)(i). The applicant must specify the evidence to be tested, 

consent to provide samples of bodily fluid for use in the DNA testing, 

acknowledge that any data obtained from any DNA samples or test results 

may be entered into law enforcement databases for investigation of other 

crimes and may be used as evidence in other cases, and specifically request

DNA testing for the purpose of demonstrating actual innocence. See 42 

Pa.C.S.A. § 9543.1(c)(1)(i-iii)-(c)(2). Finally, an applicant “must 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 [] the applicant's 

actual innocence of the offense for which the applicant was convicted[.]” 42 

Pa.C.S.A. § 9543.1(c)(3).

On February 22, 2022, the PCRA court denied relief by order and 

opinion, determining that Appellant failed to meet his initial burden under 

Section 9543.1:

Specifically, [Appellant] failed to state that he consented to 

provide samples of bodily fluid for use in DNA testing and to 

acknowledge that he understands that, if the motion is granted, 

any data obtained from any DNA samples or test results may be 

entered into law enforcement databases, may be used in the 

investigation of other crimes and may be used as evidence against 

him in other cases.

Furthermore, even if [Appellant] satisfied the threshold 

requirements under [Section] 9543.1(a), he failed to provide any 

meaningful analysis to demonstrate that DNA testing would 

establish his innocence. Although [Appellant] referenced his 

burden of proof, by requesting that specific articles, namely a pair 
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of underwear, a T-shirt, and a knife be tested, it is unclear how 

the absence of [Appellant’s] DNA or the detection of distinct DNA 

on those items would establish his innocence. Accordingly, 

[Appellant’s] request for DNA testing is denied.

PCRA Court Opinion, 2/22/2022, at 1.

On appeal pro se, Appellant raises the following issue for our review:

Whether the [PCRA] court judge erred in the denial of Appellant’s 

motion [for DNA testing], rather than allow Appellant to correct 

the deficiencies in the motion filed[?]

Appellant’s Pro Se Brief at 2 (complete capitalization omitted). 

Appellant argues that he can satisfy the requirements of Section 9543.1 

if given the chance to cure the deficiencies of the motion he originally filed. 

Id. at 6-7. Appellant “gives consent to provide samples of bodily fluid” and 

“understand[s] that, if the motion is granted, any data obtained from the DNA 

samples or test results may be entered into law enforcement databases, and

may be used in the investigation of other crimes and may be used as evidence 

against [Appellant.]” Id. at 7. Appellant also “asserts that he will provide the 

meaningful analysis to demonstrate how the DNA testing will establish 

Appellant’s innocence.” Id. Appellant argues that DNA testing of the clothes 

he was wearing at the time of the crimes, white underwear briefs and a white 

t-shirt, “will demonstrate Appellant’s perspiration around the neck and 

Appellant’s blood” but that “there will be no blood of the victims on these 

clothes[.]” Id. Appellant also contends that DNA testing of the knife found 

on his nightstand will reveal “Appellant’s blood and fingerprints on it, as well 

as Appellant’s ex-wife’s fingerprints.” Id. at 8. Finally, for the first time on 
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appeal, Appellant “realizes that there is a fourth piece of evidence that needs 

to be tested[,]” specifically his ex-wife’s t-shirt that “when tested will have 

[her] perspiration on the collar and Appellant’s blood on it[.]” Id. at 7-8. 

Our standard of review is as follows:

Generally, the trial 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. 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. Walsh, 125 A.3d 1248, 1252–1253 (Pa. Super. 2015) 

(citation omitted).

This Court has stated that the statutory text of Section 9543.1

requires the applicant to demonstrate that favorable results of the 

requested DNA testing would establish the applicant's actual 

innocence of the crime of conviction. The statutory standard to 

obtain testing requires more than conjecture or speculation; it 

demands a prima facie case that the DNA results, if 

exculpatory, would establish actual innocence.

Id. at 1254–1255 (citation omitted; emphasis in original). “[A]ctual 

innocence” is defined as making it “more likely than not that no reasonable 

juror would find him guilty beyond a reasonable doubt.” Commonwealth v. 

Payne, 129 A. 3d 546, 556 (Pa. Super. 2015).

“Significantly, in DNA testing cases, ‘an absence of evidence is not 

evidence of absence.’” Walsh, 125 A.3d at 1255, citing Commonwealth v. 

Heilman, 867 A.2d 542, 547 (Pa. Super. 2005); Commonwealth v. B. 

Williams, 35 A.3d 44, 50–51 (Pa. Super. 2011) (affirming trial court's denial 
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of DNA testing where appellant failed to meet threshold requirements for DNA 

testing, under Section 9543.1(a)(2), and did not demonstrate prima facie case 

of “actual innocence”; even if appellant's DNA were not found on hat/wig, 

record contained overwhelming evidence of appellant's guilt including three 

unshakable eyewitnesses, appellant's confession, and appellant's access to 

weapon used in crimes); Commonwealth v. Smith, 889 A.2d 582 (Pa. 

Super. 2005) (affirming denial of request for post-conviction DNA testing 

where absence of appellant's DNA from victim's fingernails would not establish 

appellant's innocence of victim's murder; nothing in record supported 

appellant's claim that victim would have scratched her assailant leaving DNA 

evidence under her fingernails).

Upon review, we agree with the PCRA court that Appellant failed to 

provide any meaningful analysis to demonstrate that DNA testing would 

establish his innocence. The absence of the victims’ DNA on the underwear 

and t-shirt Appellant was wearing at the time of the crimes would not establish 

Appellant’s absence from the scene. Walsh, supra. Moreover, the presence 

of Appellant’s DNA on his own clothing and the knife found near him would 

not exculpate him. Furthermore, Section 9543.1 only pertains to DNA testing 

and does not provide testing for fingerprints. Therefore, the PCRA court 

properly denied relief regarding Appellant’s request to test the knife found at 

the scene for ex-wife’s fingerprints. See Commonwealth v. Matthews, 256 
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A.3d 29 (Pa. Super. 2021) (unpublished memorandum4 at *3) 

(“[I]mportantly, a request for fingerprint testing is not the same thing as a 

request for DNA testing.”). Finally, in his PCRA motion, Appellant failed to 

request DNA testing of the t-shirt worn by his ex-wife and, as a result, waived 

that claim for our review. See Pa.R.A.P. 302(a) (“Issues not raised in the trial 

court are waived and cannot be raised for the first time on appeal.). 

Regardless, Appellant has not demonstrated how the presence of his DNA if 

found on his ex-wife’s t-shirt, would exonerate him. Because Appellant failed 

to demonstrate that DNA testing would establish his innocence, correcting the 

deficiencies in his motion regarding his consent to provide samples of bodily 

fluid and to allow data obtained be entered into law enforcement databases 

for other crimes would not afford Appellant relief. Accordingly, we discern no 

abuse of discretion or error of law in denying Appellant’s request for DNA 

testing under the PCRA.

Order affirmed. 

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4 See Pa.R.A.P. 126(b) (unpublished non-precedential decisions of the 

Superior Court filed after May 1, 2019, may be cited for their persuasive 

value).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/6/2022