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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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 his petition pursuant to 

the Post Conviction Relief Act (PCRA).1 After careful review, we affirm. 

 The trial court summarized the facts underlying Wagner’s convictions 

for aggravated indecent assault and indecent assault as follows: 

On August 9, 1996, [Wagner] met Chelsea Whitney, a woman 

with whom he had been conversing by telephone for the 

previous two weeks, at Station Square in the City of 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 became violent 

when [Wagner] ignored Ms. Whitney’s requests that he stop[.] 

[Wagner] pinned Ms. Whitney to the sofa, ripped off her 

____________________________________________ 

1

 42 Pa.C.S. §§ 9541-9546. 
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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 following. 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 to Megan’s Law2 and 

sentenced him to a term of five years’ to life imprisonment. Wagner filed a 

direct appeal, which resulted in Wagner receiving a new sentence due to the 

unconstitutionality of portions of Megan’s Law. Wagner 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(unpublished memorandum).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 petition 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, alleging 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 registration 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 Registration and Notification Act 

(SORNA). See 42 Pa.C.S. §§ 9799.10-9799.41. 
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PCRA court’s order on July 2, 2003, and the Pennsylvania 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-conviction DNA testing was 

filed on May 18, 2006. On November 13, 2006, the PCRA court dismissed 

the motion without a hearing. A panel of this Court 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 statement made by the victim 

to a Pittsburgh Action Against Rape (“PAAR”) representative. 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 PCRA court entered a 

Pa.R.Crim.P. 907 notice of intent to dismiss without a hearing on February 

22, 2011, and dismissed the PCRA petition on March 21, 2011. The 
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dismissal was affirmed on appeal to this Court. See Commonwealth v. 

Wagner, 46 A.3d 812 (Pa. Super. 2012) (unpublished memorandum). 

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 October 11, 2012. Wagner 

did not file an appeal. 

 On September 9, 2015, Wagner filed the instant, counseled 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 petition 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 our consideration: 

Did the trial court err in denying [Wagner’s] motion for 

performance of forensic DNA testing pursuant to 42 Pa.C.S. § 

9543.1 since the request for DNA testing has not been properly 

previously litigated since [Wagner] respectfully avers that the 

trial court and Superior Court had relied upon the erroneous 

assumption that [Wagner] admitted to sexual activities, other 

than kissing, with the victim, but the record indicates 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 at the tear 

hole in the crotch area of the pantyhose would exonerate him of 

the crime of aggravated indecent assault since his conviction was 

based up[on] the alleged insertion of two of [Wagner’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 not yet been 

implicated. . . . Post[-]conviction DNA testing does not directly 

create an exception to § 9545’s one-year time bar. Rather[,] it 

allows for a convicted individual to first obtain DNA testing which 

could then be used within a PCRA petition to establish new facts 

in order to satisfy the requirements of an exception under 42 

Pa.C.S. § 9545(b)(2). 

Id. (citations omitted). Indeed, “[t]his Court has consistently held the oneyear jurisdictional time bar of the PCRA does not apply 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 does 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 of rules which 

embody the concept that a court involved in the later phases of 

a litigated matter should not reopen questions decided by 

another judge of that same court or by a higher court in the 
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earlier phases of the matter. . . . [W]hen an appellate court has 

considered and decided a question submitted to it upon appeal, 

it will not, upon a subsequent appeal on another phase 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 was denied review by the 

Pennsylvania Supreme Court. Likewise, Wagner’s second DNA testing 

request was dismissed by the PCRA court, and the dismissal 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