J-S43042-15

 2015 PA Super 222

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

THOMAS A. WALSH

Appellant No. 366 EDA 2015

Appeal from the PCRA Order January 9, 2015

In the Court of Common Pleas of Chester County

Criminal Division at No(s): CP-15-CR-0004964-2003

BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.

OPINION BY GANTMAN, P.J.: FILED OCTOBER 23, 2015

Appellant, Thomas A. Walsh, appeals pro se from the order entered in 

the Chester County Court of Common Pleas, which denied his motion for 

DNA testing pursuant to Section 9543.1 of the Post Conviction Relief Act 

(“PCRA”).1 We affirm. 

The relevant facts of this case are as follows. On October 9, 2003, 

Appellant was released from prison on parole following his convictions for 

terroristic threats and harassment against his wife, Dinah Walsh (“Victim”). 

A condition of Appellant’s sentence prohibited Appellant from having contact 

with Victim. Additionally, on the date of his release, Appellant signed a form 

describing the rules and regulations of parole, which precluded Appellant 

____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546. 
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from having contact with Victim. Victim also had a protection from abuse 

(“PFA”) order against Appellant at this time prohibiting Appellant from 

having any contact with her. On or about October 12, 2003, neighbors 

informed Victim they had seen Appellant driving through her neighborhood. 

Victim subsequently contacted the police and Appellant’s parole officer to 

report Appellant’s actions. 

On October 15, 2003, at approximately 8:30 p.m., Appellant went to 

Victim’s home and waited outside for her arrival. When Victim pulled into 

her driveway, Appellant opened her car door and said: “Go to my [parole] 

officer, will you, fucking bitch. You’re going to die.” (N.T. Trial, 5/6/04, at 

87-88). Appellant then raised a claw hammer and began striking Victim as 

she screamed for help. In addition to striking Victim with the hammer, 

Appellant broke all of the windows and the sunroof of Victim’s vehicle. 

Appellant and Victim’s daughter, Amber Walsh, heard Victim’s screams and 

ran outside to help her mother. Ms. Walsh saw Appellant strike her mother 

with the hammer on her eyebrow bone. Michael Carpenter, Ms. Walsh’s 

boyfriend, came outside to help Victim as well and observed Appellant hitting 

her with a hammer. One of Victim’s neighbors also intervened to help 

Victim. Ultimately, Victim was able to free herself from the vehicle and ran 

up the porch toward her home. As Victim climbed the steps to her porch, 

Appellant grabbed her shirt and struck Victim in the back of the head with 

the hammer. The assault continued until Ms. Walsh’s dog came outside and 
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bit Appellant’s arm. 

Appellant left Victim’s home and waited on the porch of a neighbor’s 

home. Appellant was bleeding; and he informed his neighbor, Julie Jilek, 

that his daughter’s dog had bitten him. Appellant also told Ms. Jilek he had 

an argument with Victim and beat her up. Appellant said he was upset 

because Victim had called his parole officer, and he “messed up big” and 

smashed the windows of Victim’s car. (Id. at 4). Ms. Jilek informed 

Appellant that he could wait on her porch until the police came, but 

Appellant fled the scene before police arrived. 

Trooper Aaron Botts arrived on the scene and pursued Appellant on 

foot. A neighbor spotted Appellant and alerted the police to his 

whereabouts. When Trooper Botts apprehended Appellant, Appellant 

disclosed that his injuries were the result of a dog bite. Appellant admitted 

he had “roughed [Victim] up a bit.” (Id. at 24). Appellant also said he 

smashed the windows of Victim’s vehicle with a hammer because he was 

angry that she had called his parole officer. Trooper Barry Searfoss also 

responded to the scene. Trooper Searfoss located the hammer in a 

neighbor’s yard, secured it, and placed it into evidence. 

Appellant sought medical treatment for his injuries. Trooper Joanne 

Dragotta spoke with Appellant at the hospital. Appellant told her: “I just lost 

it. I had enough of this shit.” (Id. at 33). Appellant also stated: “[Y]ou 

know why I did this, because she called my PO and I knew that I was going 
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back to prison. I just want to go to prison now. Take me now.” (Id. at 33-

34). Appellant later said: “I just went off. You know why? Because she 

called my PO when I drove by the house. And my sister told me, she was 

looking for me, so I went there and boom, just went off. ... I don’t care if I 

get the lethal injection for this. I just flipped when I heard that bitch called 

my PO.” (Id. at 34). Appellant made similar statements to Trooper David 

Kennedy the following morning at the police barracks. 

The Commonwealth charged Appellant with attempted murder, 

aggravated assault, simple assault, possessing instruments of crime, 

terroristic threats, and related offenses. Appellant proceeded to a jury trial 

on May 6, 2004. The Commonwealth presented testimony/evidence from, 

inter alia, Victim, Amber Walsh, Michael Carpenter, Julie Jilek, the 

responding police officers, and Victim’s medical providers. The 

Commonwealth also introduced the hammer as evidence. Appellant testified 

in his own defense that he felt “mania” and “up rise” on the night in question 

and simply lost control. Appellant claimed his actions were the result of 

withdrawal symptoms from medication he had been taking while he was in 

prison. Appellant admitted smashing all the windows and the sunroof in 

Victim’s vehicle, but he denied that he ever struck Victim with the hammer. 

Procedurally: 

On May 7, 2004, a jury found [Appellant] guilty of 

aggravated assault and multiple other crimes. [Appellant] 

is currently serving a thirteen (13) to thirty-seven (37) 

year prison sentence imposed on July 14, 2004. On 
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September 13, 2005, the Superior Court affirmed his 

judgment of sentence. On November 10, 2005, Appellant 

filed his first petition under the [PCRA]. [The PCRA court] 

dismissed this petition on August 14, 2006. The Superior 

Court affirmed on August 27, 2007. The Supreme Court 

denied Appellant’s petition for allowance of appeal on May 

27, 2008. 

On July 16, 2008, Appellant filed a second petition under 

the [PCRA]. [The PCRA court] dismissed this petition on 

September 3, 2008. The Superior Court affirmed on April 

7, 2009, and the Supreme Court denied Appellant’s 

petition for allowance of appeal on November 2, 2009. 

On September 24, 2012, Appellant filed his third PCRA 

petition. On October [4], 2012, after finding the petition 

to be untimely, [the PCRA] court issued an order informing 

Appellant of [the PCRA court’s] intent to dismiss his 

petition without a hearing. Instead of responding to this 

notice in court, Appellant filed a notice of appeal in the 

Superior Court. On July 1, 2013, the Superior Court 

quashed his appeal.... Upon remand of the record to [the 

PCRA] court, [the court] again reviewed Appellant’s PCRA 

petition. Finding his petition untimely, and no timeliness 

exception applicable, [the PCRA court] dismissed 

Appellant’s third petition on August 27, 2013. The 

Superior Court affirmed on April 28, 2014.

Failing to obtain relief through these petitions, Appellant 

then turned to 42 Pa.C.S.A. § 9543.1 “Postconviction DNA 

Testing,” and on November 7, 2014, filed a motion 

requesting that the hammer used in the attack on his wife 

be tested to see if [V]ictim’s blood was present. The 

Commonwealth responded to Appellant’s request on 

December 9, 2014, and Appellant filed his rebuttal to the 

Commonwealth’s answer on December 18, 2014. On 

January 9, 2015, after finding that Appellant had failed to 

establish entitlement to DNA testing, [the court] denied his 

request. 

(PCRA Court Opinion, filed on March 13, 2015, at 1-3) (internal citations 

omitted). Appellant timely filed a notice of appeal on January 29, 2015. On 
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February 3, 2015, the court ordered Appellant to file a concise statement of 

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant 

timely complied on February 13, 2015. 

Appellant raises the following issues for our review:

SHOULD TRIAL COUNSEL HAVE REQUESTED DNA RESULTS 

THAT WOULD ESTABLISH [APPELLANT’S] INNOCENCE?

SHOULD TRIAL COUNSEL HAVE REQUESTED DNA RESULTS 

TO VERIFY AN INJURY UNKNOWN TO THE DEFENSE AND 

PRESENTED TO A JURY?

SHOULD TRIAL COUNSEL HAVE REQUESTED [A] PRETRIAL [CONFERENCE]/SUPPRESSION HEARING 

CONCERNING TESTIMONY REGARDING INJURIES TO THE 

VICTIM, IN ORDER TO ESTABLISH INCONSISTENT 

STATEMENTS ON HOW THE VICTIM ACQUIRED [HER] 

INJURIES?

SHOULD TRIAL COUNSEL HAVE REQUESTED DNA RESULTS 

THAT WOULD [HAVE] ESTABLISHED THAT THE VERDICT 

IS AGAINST THE WEIGHT OF THE EVIDENCE?

IS THE PROSECUTION COMMITTING A BRADY[2]

VIOLATION BY CONCEALING DNA RESULTS?

(Appellant’s Brief at 4). 

“[T]he PCRA’s one-year time bar does not apply to motions for the 

performance of forensic DNA testing under Section 9543.1.” 

Commonwealth v. Brooks, 875 A.2d 1141, 1146 (Pa.Super. 2005) 

(emphasis in original). Importantly, however, “Section 9543.1 cannot be 

used to raise extraneous issues not related to DNA testing in an effort to 

____________________________________________

2 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). 
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avoid the one-year [PCRA] time bar.” Commonwealth v. Gandy, 38 A.3d 

899, 905 (Pa.Super. 2012), appeal denied, 616 Pa. 651, 49 A.3d 442 (2012) 

(internal citations omitted). See also Brooks, supra (explaining petitioner 

must raise claims unrelated to motion for post-conviction DNA testing 

separately in timely filed PCRA petition). 

Instantly, the order on appeal implicates only the court’s denial of 

Appellant’s post-conviction request for DNA testing pursuant to Section 

9543.1. Nevertheless, Appellant attempts to advance on appeal new issues 

outside his request for DNA testing. These issues, including Appellant’s 

claims that trial counsel was ineffective for failing to request DNA testing 

sooner, are unreviewable at this juncture. See Gandy, supra; Brooks, 

supra. See also Commonwealth v. B. Williams, 35 A.3d 44, 50-51 

(Pa.Super. 2011), appeal denied, 616 Pa. 467, 50 A.3d 121 (2012) (stating 

petitioner who is unable to obtain DNA testing under Section 9543.1 can still 

pursue ineffective assistance of counsel claim based on failure to request 

DNA testing of evidence at trial, but only if PCRA petition is timely filed or 

otherwise meets statutory exception to timeliness requirements).3 Thus, we 

will review only Appellant’s challenge to the court’s denial of his request for 

DNA testing, which is the sole issue properly before us for review. 

____________________________________________

3 More than one year has elapsed since Appellant’s judgment of sentence 

became final. Consequently, Appellant must satisfy one of the PCRA’s 

enumerated timeliness exceptions to obtain review of a future PCRA petition. 

See 42 Pa.C.S.A. § 9545(b)(1). 
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Appellant argues the jury convicted him of two counts of aggravated 

assault based on the Commonwealth’s theory that Appellant struck Victim in 

the head with a hammer. Appellant denies striking Victim with the hammer 

and maintains that he struck only the vehicle sunroof with the hammer, 

causing the glass to shatter and inflict Victim’s injuries. Appellant claims 

Victim’s testimony that Appellant struck her directly with the hammer is 

inconsistent with the medical records produced at trial showing Victim 

suffered only minimal wounds.4 Appellant insists Victim’s DNA is not present 

on the hammer. Appellant suggests the absence of Victim’s DNA on the 

hammer would establish Appellant’s actual innocence for aggravated assault. 

Appellant concludes the court erred by denying his request for postconviction DNA testing, and this Court must reverse. We disagree. 

Our standard of review in this case 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. 

B. Williams, supra at 47 (internal citations omitted). 

Requests for post-conviction DNA testing are governed by statute at 

____________________________________________

4 Nothing in the record supports Appellant’s contention that Victim’s injuries 

were “minimal.” 
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42 Pa.C.S.A. § 9543.1, which provides in pertinent part:

§ 9543.1. Postconviction DNA testing

(a) Motion.−

(1) An individual convicted of a criminal offense in a 

court of this Commonwealth and serving a term of 

imprisonment or awaiting execution because of a 

sentence of death may apply by making a written 

motion to the sentencing court 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.

(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 evidence was discovered prior to the 

applicant’s conviction, the evidence shall not have been 

subject to the DNA testing requested because 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 indigent and the 

court refused the request despite the client’s indigency. 

* * *

(c) Requirements.−In any motion under subsection (a), 

under penalty of perjury, the applicant shall:

(1)(i) specify the evidence to be tested; 

(ii) state that the applicant consents to provide 

samples of bodily fluid for use in the DNA testing; 

and 

(iii)acknowledge that the applicant 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 
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investigation of other crimes and may be used as 

evidence against the applicant in other cases. 

(2)(i) assert the applicant’s actual innocence of the 

offense for which the applicant was convicted; and 

* * *

(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.−

(1) Except as provided in paragraph (2), the court 

shall order the testing requested in a motion under 

subsection (a) under reasonable conditions designed to 

preserve the integrity of the evidence and the testing 

process upon a determination, after review of the 

record of the applicant's trial, that the: 

(i) requirements of subsection (c) have been met; 

(ii) evidence to be tested has been subject to a chain 

of custody sufficient to establish that it has not been 

altered in any material respect; and 

(iii)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. 
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(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 evidence that:

(i) would establish the applicant’s actual innocence of 

the offense for which the applicant was convicted; 

* * *

(f) Posttesting procedures.−

(1) After the DNA testing conducted under this 

section has 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 eligibility 

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 

relief filed under paragraph (1), the court shall 

determine whether the exculpatory evidence resulting 

from the DNA testing conducted under this section 

would have changed the outcome of the trial as 

required by section 9543(a)(2)(vi). 

* * *

42 Pa.C.S.A. § 9543.1. 

Thus, under Section 9543.1(a):

The statute 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, 
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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. 

B. Williams, supra at 49 (citing 42 Pa.C.S.A. § 9543.1(a)(2)). See also 

Commonwealth v. Perry, 959 A.2d 932 (Pa.Super. 2008) (holding PCRA 

counsel was not ineffective for declining to pursue post-conviction DNA 

testing where technology for testing existed at time of trial, verdict came 

after January 1, 1995, and court had not refused request for funds for 

testing; consequently, appellant could not have met his threshold burden 

under Section 9543.1(a)(2)).

Additionally: 

The text of the statute set forth in Section 9543.1(c)(3) 

and reinforced in Section 9543.1(d)(2) 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. 

B. Williams, supra (emphasis added). See also Commonwealth v. G. 

Williams, 909 A.2d 383 (Pa.Super. 2006) (affirming dismissal of request for 

post-conviction DNA testing where appellant’s identity as perpetrator was 

not at issue in rape case; appellant’s theory of case at trial was that he had 

consensual sex with victim; because appellant’s participation was confirmed, 
J-S43042-15

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DNA testing would not establish his innocence). 

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

evidence of absence.” Commonwealth v. Heilman, 867 A.2d 542, 547 

(Pa.Super. 2005). See also B. Williams, supra (affirming trial court’s 

denial 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), appeal denied, 588 Pa. 769, 905 A.2d 500 

(2006) (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). 

Further, Section 9543.1(d) requires the petitioner to make a timely

request for DNA testing. See 42 Pa.C.S.A. § 9543.1(d)(1)(iii). In analyzing 

timeliness for purposes of Section 9543.1(d)(1)(iii), the court must consider 

the facts of each case to determine whether the applicant’s request for postconviction DNA testing is to demonstrate his actual innocence or to delay the 

execution of sentence or administration of justice. Commonwealth v. 
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Edmiston, 619 Pa. 549, 578, 65 A.3d 339, 357 (2013), cert. denied, ___ 

U.S. ___, 134 S.Ct. 639, 187 L.Ed.2d 423 (2013). In Edmiston, the court 

convicted the defendant of first-degree murder, rape, statutory rape and 

involuntary deviate sexual intercourse. The defendant’s convictions 

stemmed from events that occurred on October 5, 1988, after the defendant 

kidnapped the two-year-old victim and inflicted gruesome injuries on her 

before ultimately murdering her and leaving her body in a wooded area. On 

October 5, 1989, a jury imposed a sentence of death for the defendant’s 

crimes. On September 30, 2009, the defendant filed a motion for postconviction DNA testing. In analyzing whether the defendant’s request for 

DNA testing was timely under Section 9543.1(d)(1)(iii), our Supreme Court 

stated: 

Although the PCRA court did not make the requisite finding 

of timeliness, we see no need to remand for the court to 

do so because, as explained below, our own review of the 

record and circumstances surrounding [the defendant’s] 

post-conviction DNA testing request leads to the 

conclusion that this motion was untimely as a matter of 

law and was forwarded only to delay further the execution 

of the sentence. Notably, at the time of trial, [the 

defendant] indicated that he was satisfied with the DNA 

testing that had been conducted, and declined further 

testing. Following conviction, as noted, the postconviction 

DNA testing provision was enacted on September 8, 2002. 

Thereafter, [the defendant’s] review as of right under the 

PCRA concluded in 2004 with our decision in Edmiston 

II,

[5] without [his] seeking DNA testing. Moreover, he did 

____________________________________________

5 See Commonwealth v. Edmiston, 578 Pa. 284, 851 A.2d 883 (2004) 

(“Edmiston II”). 
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not seek such testing as part of his second PCRA petition 

(which caused his federal habeas corpus petition to be held 

in stasis, thereby causing further delay), or as part of the 

amendment or supplement to that petition. It was not 

until after his second PCRA petition was nearing 

completion that [the defendant] finally sought DNA testing.

[The defendant] has known of the existence of 

physical evidence he now seeks to test since his trial 

over twenty years ago. From that time to the 

present he has been represented by counsel, who 

knew of the statute, the technology, and the 

evidence, and who were vigorously pursuing postconviction relief on his behalf. Under such 

circumstances, courts should exercise a healthy 

skepticism when faced with requests for DNA 

testing.

This is especially true when, as here, careful 

examination of the record reveals that [the 

defendant] is not a likely candidate to be exonerated 

by DNA testing. 

* * *

Given [the vast] evidence [against the defendant], it is not 

surprising [he] declined DNA testing at the time of trial, 

following the inability of the preliminary, pre-trial DNA 

tests to identify or inculpate [the defendant]; a decision to 

seek further testing, of course, could have sealed [the 

defendant’s] fate. That fact, in turn, is probative of the 

delay and purpose of [the defendant’s] belated request for 

DNA testing, forwarded only as his serial PCRA petition 

was approaching conclusion. ... 

The statute limits post-trial testing for very salient 

reasons: If post-trial testing were routinely available, 

few would seek pre-trial testing; it would behoove 

counsel to go to trial without testing, then seek DNA 

testing if convicted, there being nothing but an upside to a convicted client. DNA testing that is 

available cannot become after-discovered evidence, 

and cannot be treated as a second chance lottery 

ticket. 
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* * *

The PCRA court also spoke of “advances in technology,” 

but as the Commonwealth notes, the statute does not 

make advances in technology an excuse for failing timely 

to request DNA testing. The statute recognized that the 

testing available at the time of its enactment was of 

sufficient reliability that defendants could seek DNA 

testing, in cases where good faith claims of innocence were 

timely raised. [The defendant’s] guilty status has not 

changed since his 1989 conviction; advances in technology 

allegedly occurring after that date do not explain why he, if 

truly innocent, did not seek immediate testing, or, at the 

very least, testing available as technology improved during 

the intervening years, rather than languishing on death 

row, all the while being supposedly innocent. 

* * *

Taking into consideration the strength of the 

evidence proffered against [the defendant] at trial, 

as the DNA testing provision explicitly requires, [the 

defendant’s] deliberate decision at the time of trial 

not to seek further scientific testing, his counsel’s 

apparent decision not to seek DNA testing 

throughout these lengthy post-conviction 

proceedings, and the belated timing of the current 

claim, it cannot reasonably be concluded that his 

DNA testing motion was 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.” 

Id. at 579-81, 65 A.3d at 357-59 (internal citations omitted) (emphasis 

added). Thus, our Supreme Court affirmed the order denying postconviction DNA testing.6

 Id. at 581-82, 65 A.3d at 359. 

____________________________________________

6 The PCRA court denied the DNA testing request on different grounds.
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Instantly, Appellant’s trial took place on May 6-7, 2004. At trial, the 

Commonwealth introduced testimony concerning Appellant’s assault on 

Victim using a claw hammer and admitted into evidence the hammer used in 

the attack. Thus, the evidence Appellant seeks to have DNA tested was 

discovered and available before Appellant’s trial. Additionally, DNA testing 

technology was available at the time of Appellant’s trial in 2004, the jury 

reached its verdict after January 1, 1995, and the court did not refuse a 

request for funds for DNA testing. Consequently, Appellant is unable to 

satisfy the threshold requirements necessary to obtain post-conviction DNA 

testing. See 42 Pa.C.S.A. § 9543.1(a)(2); B. Williams, supra; Perry, 

supra. 

Appellant has also failed to present a prima facie case demonstrating 

his actual innocence. Appellant does not contest on appeal that he swung 

the hammer at issue. Instead, Appellant claims he hit only the windows and 

sunroof of Victim’s car with the hammer, but he did not strike Victim. The 

trial court addressed Appellant’s claim of actual innocence as follows: 

Appellant was found guilty of aggravated assault under 

two subsections of 18 Pa.C.S.A. § 2702, (a)(1) and (a)(4). 

A person is guilty of aggravated assault under 18 Pa.C.S.A. 

§ 2702(a)(1) if he “attempts to cause serious bodily injury 

to another, or causes such injury intentionally, knowingly 

or recklessly....” Thus, a person can be found guilty of 

aggravated assault if the Commonwealth proves, beyond a 

reasonable doubt, that the defendant attempted to cause 

the victim serious bodily injury. Aggravated assault does 

not require proof that serious bodily injury was inflicted 

but only that an attempt was made to cause such injury. 
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A person is guilty of aggravated assault under 18 Pa.C.S.A. 

§ 2702(a)(4) if he “attempts to cause or intentionally or 

knowingly causes bodily injury to another with a deadly 

weapon.” Thus, one can be guilty under this statute if one 

attempts to cause bodily injury with a deadly weapon. 

At trial, [V]ictim testified that on the evening of October 

15, 2003, she pulled into her driveway and turned off her 

car. She felt someone grab the car door and rip it open. 

She then heard Appellant say: “Go to my probation officer, 

will you, fucking bitch. You’re going to die.” Appellant 

raised the claw hammer and [struck V]ictim in the area of 

her left brow bone. Appellant then continued with his 

attack on [V]ictim and on her car. 

[V]ictim (and Appellant’s) daughter testified that on the 

day of the incident she saw her father swing a hammer at 

her mother and hit her mother on the eyebrow bone. She 

also saw her father hitting her mother’s car with the 

hammer and breaking the car’s windows while her mother 

was still in the car. 

Appellant himself testified that on the night of the incident 

he felt a “mania...up rise,” and that he took the hammer 

and smashed every window of [V]ictim’s car while [V]ictim 

remained in the automobile. The last thing he struck was 

the car’s sunroof, and then “all the glass fell on top of her. 

It was like big chunks of it just busted right down in the 

head.” 

Appellant claims that DNA testing would reveal that the 

blood on the hammer was his own, caused by a dog bite, 

and thus he could be not guilty of the crime of aggravated 

assault. Appellant is incorrect. The presence or absence 

of [V]ictim’s blood on the hammer is immaterial to the 

issue of whether Appellant attempted to cause serious 

bodily injury, or attempted to cause bodily injury with a 

deadly weapon. Accordingly, in the unlikely event that 

DNA testing actually revealed the absence of [V]ictim’s 

blood on the hammer, such evidence could not establish 

Appellant’s actual innocence of the crime of aggravated 

assault. 

(PCRA Court Opinion at 3-5) (internal citations and some quotation marks 
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omitted). We accept the court’s reasoning and conclusion that the absence 

of Victim’s DNA on the hammer would not establish Appellant’s actual 

innocence for aggravated assault. See 42 Pa.C.S.A. § 9543.1(c)(3); B. 

Williams, supra; G. Williams, supra; Smith, supra; Heilman, supra. 

Further, Appellant did not seek DNA testing of the hammer at the time 

of his trial in 2004. Between 2005 and 2014, Appellant unsuccessfully 

litigated three PCRA petitions, none of which requested DNA testing of the 

hammer used in the attack. Appellant did not file the current request for 

DNA testing of the hammer until November 7, 2014. In light of the 

overwhelming evidence of Appellant’s guilt at trial (including Victim’s 

testimony and testimony from several eyewitnesses who saw Appellant 

strike Victim with the hammer), Appellant’s decision not to seek DNA testing 

at the time of trial, Appellant’s failure to seek DNA testing throughout the 

post-conviction proceedings in this case, and the belated timing of 

Appellant’s current request for DNA testing, the record demonstrates that 

Appellant’s motion for DNA testing is untimely for purposes of Section 

9543.1(d). See 42 Pa.C.S.A. § 9543.1(d)(1)(iii); Edmiston, supra. 

Based upon the foregoing, Appellant failed to satisfy the threshold 

requirements to obtain DNA testing pursuant to Section 9543.1(a)(2); he did 

not present a prima facie case of actual innocence pursuant to Section 

9543.1(c)(3); and he failed to make his request for DNA testing in a timely 

manner pursuant to Section 9543.1(d)(1)(iii). Therefore, the PCRA court 
J-S43042-15

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properly denied Appellant’s motion for post-conviction DNA testing.7 

Accordingly, we affirm. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/23/2015

____________________________________________

7 On April 22, 2015, Appellant filed a pro se motion in this Court for 

transmission of the record pursuant to Pa.R.A.P. 1931, seeking a pre-trial 

transcript dated May 5, 2004, trial transcripts dated May 6, 2004 and May 7, 

2004, the sentencing transcript dated July 14, 2004, and all exhibits, 

including photographs presented at trial. We have obtained the trial 

transcripts necessary to dispose of Appellant’s claim on appeal. Regarding 

the other transcripts/exhibits Appellant wants, Appellant fails to explain how 

these documents are relevant to disposition of his appeal and their exclusion 

from the certified record has not hampered our review. Thus, we deny 

Appellant’s motion for transmission of the record. 

Appellant filed another pro se motion with this Court on May 7, 2015, to 

supplement an exhibit, in rebuttal to the Commonwealth’s brief. Appellant 

contends the Commonwealth’s statement on appeal that Appellant 

previously litigated his request for DNA testing is belied by the record. In 

support of his position, Appellant seeks to supplement the record with the 

PCRA court’s March 7, 2013 order dismissing an earlier request for DNA 

testing (filed August 28, 2012) based on the pendency of Appellant’s appeal 

from the order denying his third PCRA petition. The court’s March 7, 2013 

order is absent from the certified record. Nevertheless, nothing in the 

record supports the Commonwealth’s assertion that Appellant previously 

litigated his request for DNA testing on the merits; and we do not deny 

Appellant relief on this basis. Thus, we deny Appellant’s motion to 

supplement the record.