J-S46027-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

DONALD L. LAMEY 

 Appellant No. 30 MDA 2014 

Appeal from the Order November 22, 2013 

In the Court of Common Pleas of Centre County 

Criminal Division at No(s): CP-14-CR-0000842-1994 

BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 11, 2014 

 Donald L. Lamey appeals, pro se, from the order of the Court of 

Common Pleas of Centre County that denied his petition for post-conviction 

DNA testing. After careful review, we affirm. 

 On direct appeal, this Court set forth the relevant underlying facts of 

this case as follows: 

On January 17, 1995, a jury found . . . Lamey . . . guilty of one 

hundred and ninety-five (195) separate criminal offenses, 

including sixty-two (62) counts of involuntary deviate sexual 

intercourse, forty-four (44) counts of statutory rape, forty (40) 

counts of aggravated indecent assault, forty (40) counts of 

indecent assault, one (1) count of endangering welfare of 

children, seven (7) counts of corruption of minors, and (1) count 

of incest. These convictions stem from Lamey’s numerous and 

varied sexual encounters with his daughter, B.L., and her minor 

friends. On June 8, 1995, the Honorable Charles C. Brown, Jr., 

sentenced Lamey to an aggregate of thirty-three and one-half 

(33 1⁄2) to sixty-seven (67) years’ imprisonment. 
J-S46027-14

- 2 - 

Commonwealth v. Lamey, 685 A.2d 1044 (Pa. Super. 1996) (unpublished 

memorandum). 

At trial, the Commonwealth established that Lamey is listed as B.L.’s 

father on her birth certificate, that Lamey cared for the child since birth and 

that he was married to B.L.’s biological mother at the time of her birth. N.T. 

Trial, 1/16/95 at 24, 26; N.T. Trial 1/17/15 at 51-52. B.L., who was thirteen 

years old at the time of trial, testified that Lamey was not her biological 

father, although she believed he was at the time the offenses occurred. N.T. 

Trial, 1/16/15, at 26. 

At the conclusion of the Commonwealth’s case in chief, Lamey moved 

for judgment of acquittal on the one count of incest based on B.L.’s assertion 

that Lamey was not her biological father. Id. at 287. The court denied the 

motion, id. at 290, and on January 17, 1995, Lamey was convicted of incest 

and the other offenses cited above. 

 On July 16, 1997, Lamey filed a timely petition under the Post 

Conviction Relief Act (PCRA),1

 which the court denied on April 22, 2003. 

This Court affirmed the PCRA court’s order. Commonwealth v. Lamey, 

850 A.2d 10 (Pa. Super. 2004) (unpublished memorandum). The 

Pennsylvania Supreme Court denied Lamey’s petition for allowance of 

appeal. Commonwealth v. Lamey, 858 A.2d 109 (Pa. 2004). In 2007, 

____________________________________________ 

1

 42 Pa.C.S. §§ 9541-9546.
J-S46027-14

- 3 - 

Lamey filed a second PCRA petition, which the PCRA court dismissed on 

September 15, 2010. On appeal, we affirmed. Commonwealth v. Lamey, 

32 A.3d 837 (Pa. Super. 2011) (unpublished memorandum). 

 On August 1, 2013, Lamey filed a motion under section 9543.1 of the 

PCRA,2

 seeking DNA testing of B.L. in order to establish that he is not her 

biological father. The PCRA court denied the motion on November 22, 2013, 

and this timely appeal followed. 

 Lamey raises the following issues for our review: 

1. Whether the lower court erred in denying [Lamey’s] motion 

for postconviction DNA testing. 

2. Whether the lower court erred by stating [Lamey] has failed 

to meet the requirements of 42 Pa.C.S. § 9543.1(a), as the 

verdict was rendered after January 1, 1995. 

3. Whether the lower court erred by not acknowledging that 

[Lamey] meets [the] above-state[d] section for DNA testing, 

which would prove he is not the biological father thus the 

charge of 18 [Pa.C.S.] § 4302 (incest) does not apply making 

[Lamey] innocent of said charge, and which he was 

prejudiced for, at this trial. 

Appellant’s Brief, at 7.

“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” Commonwealth v. Williams, B., 

35 A.3d 44, 47 (Pa. Super. 2011) (citation omitted).

____________________________________________ 

2

 42 Pa.C.S. § 9543.1 (Postconviction DNA testing). 
J-S46027-14

- 4 - 

 Section 9543.1(a) of the PCRA provides, in relevant part: 

(a) Motion- 

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

court of this Commonwealth and serving a term of 

imprisonment . . . may apply by making a written 

motion to the sentencing court for the performance 

of forensic DNA testing of 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 a 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.

42 Pa.C.S. § 9543.1(a). 

 Lamey argues that he is entitled to compare his DNA to that of his 

victim, B.L., because it will establish that he is not B.L.’s biological father, 

and thus his “actual innocence of the offense of incest.” Appellant’s Brief, at 

11. While an assertion of actual innocence is required under section 

9543.1(c) (“In any motion under subsection (a) . . . the applicant shall . . . 

assert the applicant’s actual innocence of the offense for which the applicant 

was convicted”), no relief can be granted where the threshold requirements 

of section 9543.1(a)(2) have not been met. Williams, B., supra at 51 
J-S46027-14

- 5 - 

(appellant did not meet threshold elements of section 9543.1 because DNA 

technology existed at time of trial, verdict rendered after January 1, 1995, 

and trial court did not refuse request for funds to perform DNA testing; 

Commonwealth v. Williams, R., 899 A.2d 1060 (Pa. 2006) (appellant 

could not establish threshold elements because DNA technology existed at 

time of trial, verdict was rendered after January 1, 1995, and trial court did 

not refuse request by appellant to provide funding for DNA testing). 

 As in Williams, B., supra and Williams, R., supra, testing is not 

available here because the technology for DNA testing existed at the time of 

Lamey’s trial, trial occurred after January 1, 1995, and defense counsel 

never sought funding from the court to allow Lamey to seek DNA testing. 

 Because the trial court properly held that Lamey did not meet the 

threshold requirements of section 9543.1(2), he is not entitled to further 

review. 

 Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/11/2014