J-S37045-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. LEE HERBERT WAGNER Appellant No. 103 WDA 2016

Appeal from the Order January 5, 2016 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0011280-1996

BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J. MEMORANDUM BY LAZARUS, J.: FILED JUNE 28, 2016 Lee Herbert Wagner appeals from the order, entered in the Court of Common Pleas of Allegheny County, which dismissed h is petition pursuant to the Post Conviction Relief Act (PCRA). 1 After careful review, we affirm. The trial court summarized the facts underlying Wa gner’s convictions for aggravated indecent assault and indecent assaul t as follows: On August 9, 1996, [Wagner] met Chelsea Whitney, a woman with whom he had been conversing by telephone for t he previous two weeks, at Station Square in the City o f Pittsburgh. After having dinner, [Wagner] and Ms. Whitney went to Mt. Washington and then to Ms. Whitney’s apartment. At the apartment, the parties engaged in kissing, which be came violent when [Wagner] ignored Ms. Whitney’s requests that h e stop[.] [Wagner] pinned Ms. Whitney to the sofa, ripped off her

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1 42 Pa.C.S. §§ 9541-9546.J-S37045-16

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pantyhose, and touched her vagina. After doing so, he left and Ms. Whitney reported the incident to the police two days later. Trial Court Opinion, 2/1/16, at 4. The procedural history leading to the instant PCRA petition, the latest in a series of such petitions, involves the followi ng. On May 7, 1996, after a jury found Wagner guilty of the above offenses, the trial court determined Wagner to be a sexually violent predator pursuant t o Megan’s Law 2 and sentenced him to a term of five years’ to life impr isonment. Wagner filed a direct appeal, which resulted in Wagner receiving a new sentence due to the unconstitutionality of portions of Megan’s Law. Wa gner was resentenced on December 16, 1998, to a term of five to ten years’ imprisonment. Wagner’s judgment of sentence was affirmed on appeal on July 21, 2000. See Commonwealth v. Wagner , 761 A.2d 1240 (Pa. Super. 2000) (unpublished memorandum). Wagner did not file a pe tition for allowance of appeal in the Pennsylvania Supreme Court. Wagner filed a pro se PCRA petition on August 3, 2000. Counsel was appointed and an amended petition was filed, allegi ng ineffective assistance of counsel. After an evidentiary hearing was held on March 22, 2002, the PCRA court dismissed the petition on April 4, 2002. This Court affirmed the

____________________________________________ 2 Megan’s Law previously provided for the registrati on of sexual offenders and was codified at 42 Pa.C.S § 9791 et seq . Megan’s Law was replaced with the current law, the Sexual Offender Registrat ion and Notification Act (SORNA). See 42 Pa.C.S. §§ 9799.10-9799.41.J-S37045-16

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PCRA court’s order on July 2, 2003, and the Pennsyl vania Supreme Court denied Wagner’s petition for allowance of appeal on December 16, 2003.
See Commonwealth v. Wagner , 832 A.2d 545 (Pa. Super. 2003) (unpublished memorandum), appeal denied , 841 A.2d 531 (Pa. 2003). On January 28, 2006, Wagner filed a second pro se PCRA petition, in which he requested DNA testing of certain evidence produced at trial. New counsel was appointed, and a motion for post-convic tion DNA testing was filed on May 18, 2006. On November 13, 2006, the P CRA court dismissed the motion without a hearing. A panel of this Cour t affirmed the dismissal. See Commonwealth v. Wagner , 945 A.2d 771 (Pa. Super. 2007) (unpublished memorandum), appeal denied , 952 A.2d 677 (Pa. 2008). On July 17, 2008, Wagner filed a third pro se PCRA petition, in which he argued that the Commonwealth withheld a statemen t made by the victim to a Pittsburgh Action Against Rape (“PAAR”) repres entative. Wagner asserted that this failure to disclose amounted to a violation of his constitutional rights. On September 18, 2008, the PCRA court dismissed the petition without a hearing. Wagner did not file an appeal following the dismissal. On January 27, 2011, Wagner filed a fourth pro se PCRA petition, including a second motion for DNA testing. The PCR A court entered a Pa.R.Crim.P. 907 notice of intent to dismiss withou t a hearing on February 22, 2011, and dismissed the PCRA petition on March 21, 2011. TheJ-S37045-16

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dismissal was affirmed on appeal to this Court. See Commonwealth v. Wagner , 46 A.3d 812 (Pa. Super. 2012) (unpublished memora ndum). Wagner filed a fifth pro se PCRA petition on August 7, 2012. Following the entry of a notice of intent to dismiss without a hearing pursuant to Rule 907, the PCRA court dismissed the petition on Octob er 11, 2012. Wagner did not file an appeal. On September 9, 2015, Wagner filed the instant, co unseled petition requesting post-conviction DNA testing pursuant to the PCRA. The PCRA court issued a Rule 907 notice of intent to dismiss the petition without a hearing and entered a final order dismissing the pe tition on January 5, 2016. Wagner filed a timely notice of appeal and concise statement of issues raised on appeal pursuant to Pa.R.A.P. 1925(b). On appeal, Wagner raises the following issue for o ur consideration: Did the trial court err in denying [Wagner’s] motio n for performance of forensic DNA testing pursuant to 42 Pa.C.S. § 9543.1 since the request for DNA testing has not be en properly previously litigated since [Wagner] respectfully av ers that the trial court and Superior Court had relied upon the erroneous assumption that [Wagner] admitted to sexual activit ies, other than kissing, with the victim, but the record indic ates that he never admitted to anyt[h]ing more than kissing, and never admitted to ripping her pantyhose and inserting his fingers into her vagina. Hence, the absence of [Wagner’s] DNA a t the tear hole in the crotch area of the pantyhose would exon erate him of the crime of aggravated indecent assault since his conviction was based up[on] the alleged insertion of two of [Wagne r’s] fingers into the victim’s vagina, but to have accomplished that he would have had to first have forcibly ripped through the victim’s pantyhose (and that action would have deposited his skin follicles on the pantyhose)?J-S37045-16

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Brief for Appellant, at 3. We note that, when examining the propriety of an order resolving a request for DNA testing, we employ the PCRA standard of review. On appeal from the denial of PCRA relief, our standard of review calls for us to determine whether the ruling of the PCRA court is supported by the record and free of legal error. Commonwealth v. Gacobano , 65 A.3d 416, 419 (Pa. Super. 2013) (citations omitted). Where we are considering the PCRA court’s denial of a request for DNA testing, we note that the filing requirements of 42 Pa.C.S. § 9545 have n ot yet been implicated. . . . Post[-]conviction DNA testing doe s not directly create an exception to § 9545’s one-year time bar. Rather[,] it allows for a convicted individual to first obtain D NA testing which could then be used within a PCRA petition to establ ish new facts in order to satisfy the requirements of an exceptio n under 42 Pa.C.S. § 9545(b)(2).

Id. (citations omitted). Indeed, “[t]his Court has co nsistently held the oneyear jurisdictional time bar of the PCRA does not a pply to motions for DNA testing under Section 9543.1.” Commonwealth v. Williams , 35 A.3d 44, 50 (Pa. Super. 2011). Although Wagner’s petition seeking DNA testing doe s not fall under the timeliness requirements of typical PCRA petitions, the instant request is nevertheless barred by the law of the case doctrine . As we noted in Gacobano , [t]he law of the case doctrine refers to a family o f rules which embody the concept that a court involved in the lat er phases of a litigated matter should not reopen questions deci ded by another judge of that same court or by a higher cou rt in theJ-S37045-16

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earlier phases of the matter. . . . [W]hen an appel late court has considered and decided a question submitted to it u pon appeal, it will not, upon a subsequent appeal on another ph ase of the case, reverse its previous ruling. Gacobano , supra at 419-20. Instantly, Wagner has submitted a petition for DNA testing for the third time. Wagner has made substantially the same argument in each petition. Wagner’s initial DNA testing request was dismissed by the PCRA court, was rejected by a panel of this Court, and w as denied review by the Pennsylvania Supreme Court. Likewise, Wagner’s sec ond DNA testing request was dismissed by the PCRA court, and the di smissal was affirmed by a panel of this Court. Accordingly, Wagner’s claim has been fully litigated and under the law of the case, we will not reverse our previous rulings. Gacobano , supra . Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/28/2016