J-A28014-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BERNARD FIELDING 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2315 EDA 2021

Appeal from the PCRA Order Entered October 15, 2021

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-1036801-1992

BEFORE: PANELLA, P.J., LAZARUS, J., and SULLIVAN, J.

MEMORANDUM BY PANELLA, P.J.: FILED APRIL 4, 2023

Bernard Fielding appeals pro se from the order denying his motion for 

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

(“PCRA”)1. After review, under the circumstances presented, including the 

current state of the record, we vacate the order and remand with instructions.

Briefly, we note that after a jury trial in April 1994, Fielding was found 

guilty of second-degree murder, burglary, robbery, possessing instruments of 

crime, and criminal conspiracy in connection with the robbery and fatal 

stabbing of Louise Thomas in her home.2 The trial court sentenced Fielding to 

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1 42 Pa.C.S.A. §§ 9541-9546. 

2 According to detectives, Fielding confessed to the crime when interviewed at 

the police station. Fielding filed a pre-trial motion to suppress the alleged 

(Footnote Continued Next Page)
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an aggregate term of life imprisonment. We affirmed the judgment of 

sentence on direct appeal and the Pennsylvania Supreme Court subsequently 

denied allowance of appeal. See Commonwealth v. Fielding, 676 A.2d 280 

(Pa. Super., filed December 26, 1995) (unpublished memorandum), appeal 

denied, 681 A.2d 1341 (Pa. 1996). Over the next two decades, Fielding filed 

numerous unsuccessful petitions for collateral relief. 

On April 28, 2019, Fielding filed a pro se motion for DNA testing 

pursuant to 42 Pa.C.S.A. § 9543.1. On October 15, 2021, the PCRA court 

denied the motion, finding Fielding “failed to meet his burden of establishing 

a prima facie case of actual innocence” pursuant to Section 9543.1. PCRA 

Court Opinion, 10/15/21, at 2. This timely appeal followed. 

Fielding argues the PCRA court erred in denying his motion for postconviction DNA testing. “Post-conviction DNA testing falls under the aegis of 

the [PCRA], and thus, [o]ur standard of review permits us to consider only 

whether the PCRA court’s determination is supported by the evidence of record 

and whether it is free from legal error.” Commonwealth v. Conway, 14 A.3d 

101, 108 (Pa. Super. 2011) (citation, internal quotation marks, and footnote 

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confession, which was denied. Despite the lack of a full record before us, the 

Commonwealth concedes that the challenged-but-upheld confession was the 

sole evidence supporting Fielding’s convictions. See Commonwealth’s Brief, 

at 7-8. Fielding has continuously maintained that his confession was mentally 

and physically coerced. Notably, the Commonwealth labels the confession as 

“questionable”, and concedes the confession was not audio or video recorded, 

and the written statement was not written or signed by Fielding. Id. 
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omitted). Since the resolution of this appeal involves statutory construction, 

which involves a pure question of law, we apply a de novo standard and a 

plenary scope of review. See id. 

Section 9543.1 of the PCRA controls post-conviction requests for DNA 

testing. 

An individual convicted of a criminal offense in a court of this 

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 (emphasis added). Section 9543.1 sets forth several 

threshold requirements to obtain DNA testing. Summarily, those requirements 

are as follows: 

(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, 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. Additionally, 

[t]he legislature delineated a clear standard—and in fact 

delineated certain portions of the standard twice. Under 

section 9543.1(c)(3), the petitioner is required to present a 

prima facie case that the requested DNA testing, assuming 

it gives exculpatory results, would establish the petitioner's 

actual innocence of the crime. Under section 9543.1(d)(2), 

the court is directed not to order the testing if it determines, 

after review of the trial record, that there is no reasonable 

possibility that the testing would produce exculpatory 

evidence to establish petitioner's actual innocence. From the 

clear words and plain meaning of these provisions, there can 

be no mistake that the burden lies with the petitioner to 
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make a prima facie case that favorable results from the 

requested DNA testing would establish his innocence. We 

note that the statute does not require petitioner to show 

that the DNA testing results would be favorable. However, 

the court is required to review not only the motion [for DNA 

testing], but also the trial record, and then make a 

determination as to whether there is a reasonable possibility 

that DNA testing would produce exculpatory evidence that 

would establish petitioner's actual innocence. 

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.

Commonwealth v. Williams, 35 A.3d 44, 49-50 (Pa. Super. 2011) (citations 

omitted; emphasis added). 

Preliminarily, Fielding contends the PCRA court erred in relying 

exclusively on the information contained in Fielding’s motion to support its 

decision to deny Fielding’s request for DNA testing.

In its opinion denying Fielding’s motion, the PCRA court fails to cite to 

any portion of the record in making its decision, nor does it indicate that it 

reviewed the record in any form. Rather, the court references the motion alone 

in making its decision. See PCRA Court Opinion, 10/15/21, at 1-2 (stating the 

court determined that Fielding failed to present a prima facie case of actual 

innocence based on the court’s review of the instant motion for DNA testing; 

and stating the allegations in the petition bely Fielding’s claims for DNA 

testing). 
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In support of its finding that Fielding failed to present a prima facie case 

of “actual innocence” pursuant to Section 9543(c)(3)(ii)(A), the PCRA court 

relies only on a portion of Fielding’s motion dedicated to Section 9543(c)(3)(i), 

and specifically Fielding’s confession to the crimes.3

The PCRA court fails to address Fielding’s claims that DNA testing 

performed “on the knife recovered at the crime scene with an unidentified 

fingerprint on the handle, assuming exculpatory results” would not only show 

the absence of his DNA on the murder weapon, but would also show the 

presence of the actual perpetrator’s DNA. 

Accordingly, it does not appear the PCRA court followed the mandate in 

42 Pa.C.S.A. § 9543.1(c)(3) and (d)(2) to assess Fielding’s request for DNA 

testing in light of the trial record to see if there were a reasonable possibility 

that the testing would produce exculpatory evidence to establish Fielding’s 

actual innocence. 

Notably, it is unclear whether or not the PCRA court even had access to 

the trial record at the time it drafted the order and opinion. In correspondence 

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3 The Pennsylvania Supreme Court has held that with respect to Section 

9543.1's requirement for a showing of actual innocence, “a confession, even 

if previously and finally adjudicated as voluntary, does not constitute a per se

bar to establishing a prima facie case [of actual innocence], and the convicted 

person may, therefore, obtain DNA testing under Section 9543.1 if he or she 

meets all of this statute's pertinent requirements.” Commonwealth v. 

Wright, 14 A.3d 798, 800 (Pa. 2011). 
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filed along with the PCRA court opinion on February 25, 2022,4the PCRA court 

informed our prothonotary’s office that the instant trial record is missing from 

the Office of Judicial Records. The correspondence states that a reconstructed 

record of available scanned court documents has been provided, and that once 

the original file is located, it will be filed as a supplemental record. It is clear 

from a review of the truncated record supplied to us that a significant amount 

of documentation is missing. Further, no supplemental record had been 

provided prior to our review. 

We therefore have no way of knowing what record, if any, was available 

to the PCRA court when it issued its order and opinion denying Fielding’s 

request for DNA testing. In any event, it is clear that if the PCRA court 

reviewed a record at all, it is not the one currently before us. 

Accordingly, we must address the incomplete nature of the certified 

record. Generally, it is an appellant’s responsibility to ensure the record 

certified on appeal is complete. See Commonwealth v. Preston, 904 A.2d 

1, 7 (Pa. Super. 2006). However, we are mindful of the following:

Under [Pa.R.A.P.] 1926, an appellate court may direct that an 

omission or misstatement shall be corrected through the filing of 

a supplemental certified record. However, this does not alter the 

fact that the ultimate responsibility of ensuring that the 

transmitted record is complete rests squarely upon the appellant 

and not the appellate courts. Pa.R.A.P. 1931.

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4 No new opinion was filed in response to Fielding’s appeal. Instead, the PCRA 

court refiled its October 15, 2021 opinion on February 25, 2022. 
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With regard to missing transcripts, the Rules of Appellate 

Procedure require an appellant to order and pay for any transcript 

necessary to permit resolution of the issues raised on appeal. 

Pa.R.A.P. 1911(a). ... When the appellant ... fails to conform to 

the requirements of 1911, any claims that cannot be resolved in 

the absence of the necessary transcript or transcripts must be 

deemed waived for the purpose of appellate review. It is not 

proper for either the Pennsylvania Supreme Court or the Superior 

Court to order transcripts nor is it the responsibility of the 

appellate courts to obtain the necessary transcripts.

In the absence of specific indicators that a relevant document 

exists but was inadvertently omitted from the certified record, it 

is not incumbent upon this Court to expend time, effort and 

manpower scouring around judicial chambers or the various 

prothonotaries’ offices of the courts of common pleas for the 

purpose of unearthing transcripts, ... that may well have been 

presented to the trial court but were never formally introduced 

and made part of the certified record. If, however, a copy of a 

document has been placed into the reproduced record, or if notes 

of testimony are cited specifically by the parties or are listed in 

the record inventory certified to this Court, then we have reason 

to believe that such evidence exists. In this type of situation, we 

might well make an informal inquiry to see if there was an error 

in transmitting the certified record to this Court. We might also 

formally remand the matter to the trial court to ascertain whether 

notes of testimony or other documentation can be located and 

transmitted. If a remand is necessary, it is appropriate to direct 

the trial court to determine why the necessary documentation was 

omitted from the certified record. An appellant should not be 

denied appellate review if the failure to transmit the entire record 

was caused by an “extraordinary breakdown in the judicial 

process.” However, if the appellant caused a delay or other 

problems in transmitting the certified record, then he or she is not 

entitled to relief and the judgment of the court below should be 

affirmed.

Id. at 6–8 (some citations omitted).

Here, the PCRA court does not cite to the record at all. However, Fielding 

cites the notes of testimony using the reproduced record pages in his appellate 

brief. Additionally, the Commonwealth relies on the notes of testimony in its 
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brief, in which the Commonwealth agrees with Fielding that his petition for 

DNA testing should have been granted. Because the Commonwealth and 

Fielding cite to the notes of testimony, these circumstances led us to conclude 

the jury trial transcripts were excluded inadvertently or by error from the 

certified record. We have since located the jury trial transcripts, which are 

now available as a supplemental record. 

Given the state of the current record, we vacate the order denying 

Fielding’s motion for DNA testing and remand this matter to the PCRA court 

to finish recreating the record to the best of its ability. See Pa.R.A.P. 

1926(b)(1) (“If anything material to a party is omitted from the record by 

error, breakdown in processes of the court, or accident or is misstated therein, 

the omission or misstatement may be corrected by ... the appellate court upon 

application or on its own initiative at any time....”). After which, the PCRA 

court shall issue a new order and opinion addressing Fielding’s motion for DNA 

testing that complies with the dictates of 42 Pa.C.S.A. § 9543.1. 

Accordingly, we vacate and remand this matter to the PCRA court with 

instructions. The PCRA court shall address the state of the record and 

supplement as necessary. The PCRA court will supplement the record, and 

make its findings in a new order and opinion. 

Order vacated. Case remanded with instructions. Jurisdiction 

relinquished. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/4/2023