J-S16022-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

WILLIAM GEORGE THOMPSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 935 WDA 2016

Appeal from the PCRA Order May 16, 2016

In the Court of Common Pleas of Allegheny County 

Criminal Division at No(s): CP-02-CR-0002610-2002

BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY RANSOM, J.: FILED MAY 31, 2017

Appellant, William George Thompson, appeals from the order entered 

May 16, 2016, denying his petition for post-conviction DNA testing filed 

pursuant to 42 Pa.C.S. § 9543.1. We affirm.

On September 16, 2005, Appellant was convicted by a jury of three 

counts of criminal homicide, one count of aggravated assault, five counts of 

recklessly endangering another person, one count of possession of a firearm 

without a license, and one count of criminal conspiracy.1 On December 12, 

2005, Appellant received an aggregate sentence of life without the possibility 

of parole. Appellant’s post-trial motion for a new trial was denied. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Respectively, 18 Pa.C.S. §§ 2502(a), 2702(a), 2705, 6106 , 903(a).
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In February 2006, Appellant timely filed a notice of appeal and courtordered 1925(b) statement. The trial court issued a responsive opinion in 

January 2010. This Court affirmed his judgment of sentence on February 

22, 2012. Commonwealth v. Thompson, 46 A.3d 824 (Pa. Super. 2012) 

(unpublished memorandum). Appellant did not petition the Supreme Court 

for allowance of appeal.

In May 2013, Appellant pro se filed a PCRA petition seeking 

reinstatement of his right to file a petition for allowance of appeal to the 

Supreme Court nunc pro tunc. New counsel was appointed. In August 

2013, appointed counsel filed a petition for leave to withdraw and 

Turner/Finley “no merit” letter.2 In September 2013, the PCRA court 

issued Rule 907 notice of intent to dismiss Appellant’s petition without a 

hearing and granted counsel permission to withdraw. While his first petition 

was pending, Appellant pro se filed a petition for post-conviction DNA 

testing. In January 2014, Appellant’s first petition was denied and dismissed 

as untimely by the PCRA court. 

Appellant timely appealed. In September 2015, this Court affirmed 

the denial of Appellant’s PCRA petition, concluding that it was untimely and 

Appellant had failed to plead any exception to the time bar. See 

Commonwealth v. Thompson, 467 WDA 2014 (Pa. Super. 2015) 

____________________________________________

2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth 

v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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(unpublished memorandum). This Court did not address Appellant’s petition 

for DNA testing as “it appear[ed] that the petition [was] still pending in the 

court below” and that “the PCRA court [had] not disposed of [A]ppellant’s 

post-conviction petition for DNA testing filed pursuant to 42 Pa.C.S. § 

9543.1.” Id. at *8.

In November 2015, the PCRA court issued Rule 907 notice of intent to 

dismiss Appellant’s pro se petition for DNA testing. On May 24, 2016, this 

Court granted Appellant’s application to compel the PCRA court to dismiss 

his petition and ordered the PCRA court to dispose of any pending PCRA’s. 

See Superior Ct. Order, 46 WDM 2016 (Pa. Super. May 24, 2016). Before 

that order issued, however, the PCRA court entered an order dismissing 

Appellant’s petition for DNA testing on May 16, 2016.

On June 28, 2016, Appellant pro se filed a notice of appeal. On August 

3, 2015, Appellant timely filed a court-ordered 1925(b) statement. The 

PCRA court issued a responsive opinion.

The record reveals that the instant pro se petition was denied by order 

on May 16, 2016. Generally, Appellant would have been required to file a 

notice of appeal by Thursday, June 16, 2016. See Pa.R.A.P. 903(a) (notice 

of appeal shall be filed within 30 days after the entry of the order from which 

the appeal is taken). However, Appellant’s notice of appeal was not 
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docketed by the court until June 28, 2016.3 Nevertheless, the docket entries 

do not indicate the date of service. See Pa.R.Crim.P. 114(C). The certified 

record does not reveal whether the clerk of courts complied with 

Pa.R.Crim.P. 114(B), as there is no evidence of the method of service.4 

There is no indication that Appellant received proper notice of the PCRA 

court’s May 16, 2016 order. 

“Pennsylvania Rule of Criminal Procedure 114(C)(2) provides that all 

orders and court notices must be docketed, and the docket must contain the 

date the clerk received the order, the date of the order, and the date and 

manner of service of the order or court notice.” Commonwealth v. Davis, 

867 A.2d 585, 586 (Pa. Super. 2005). The notice and service requirements 

of Rule 114 are mandatory. Commonwealth v. Hess, 810 A.2d 1249, 

1253 (Pa. 2002). As we cannot properly conclude that there was proper 

notice, we decline to quash the appeal based on the untimely filing of his 

notice of appeal. See Pa.R.A.P. 105(b); Commonwealth v. Braykovich, 

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3 Notwithstanding, the postmark on the envelope containing Appellant’s 

notice of appeal was June 17, 2016. See Commonwealth v. Chambers, 

35 A.3d 34 (Pa.Super. 2011), appeal denied, 46 A.3d 715 (2012) (explaining 

prisoner mailbox rule provides that pro se prisoner’s document is deemed 

filed on date he delivers it to prison authorities for mailing); see also 

Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (an appeal by a 

pro se prisoner is deemed filed on the date the prisoner deposits the appeal 

with prison authorities and/or places it in the prison mailbox). 

4 A copy of the docket does not appear in the certified record. Further, this 

Court issued a motion to compel after the date on the order, further 

suggesting that Appellant did not receive proper notice. 
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664 A.2d 133 (Pa. Super. 1995) (noting we may permit extensions of the 

filing period in extraordinary circumstances, such as a breakdown in the 

processes of the court).

On appeal, Appellant raises one overarching issue for our 

consideration, that is, whether the trial court erred in denying his petition for 

DNA testing filed pursuant to 42 Pa.C.S. § 9543.1.5 

Our standard of review is as follows:

Post-conviction DNA testing falls under the aegis of the 

Pennsylvania Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 

9541–9546, 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.’ 

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5 Appellant raises several extraneous issues numbered as issues 4-6 in his 

brief. First, he asserts that counsel was ineffective. Second, Appellant 

asserts that he was not permitted to challenge the Commonwealth witness’ 

testimony and that they did not tell the truth when they testified. Third, he 

suggests the Commonwealth improperly withheld a letter dated January 27, 

2006, from the Department of Justice containing “crucial information.” See

Appellant's Br. at 8-9. 

“‘Section 9543.1 cannot be used to raise extraneous issues not related to 

DNA testing in an effort to avoid the one-year [PCRA] time bar.’” 

Commonwealth v. Walsh, 125 A.3d 1248, 1252 (Pa. Super. 2015) 

(quoting Commonwealth v. Gandy, 38 A.3d 889, 905 (Pa. Super. 2012), 

appeal denied, 49 A.3d 442 (Pa. 2012)). As these issues, including 

ineffective assistance of counsel, are beyond the scope of his petition, they 

are unreviewable at this juncture. Thus, we will review only Appellant’s 

challenge to the court’s denial of his request for DNA testing, which is the 

sole matter properly before us.
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Commonwealth v. Conway, 14 A.3d 101, 108 (Pa. Super. 2011), appeal 

denied, 29 A.2d 795 (Pa. 2011) (quoting Commonwealth v. Brooks, 875 

A.2d 1141, 1144 (Pa.Super.2005)). “Though brought under the general

rubric of the PCRA, motions for post-conviction DNA testing are ‘clearly 

separate and distinct from claims brought pursuant to other sections of the 

PCRA.’” In re Payne, 129 A.3d 546, 553 n.11 (Pa. Super. 2015) (en banc), 

appeal denied, 145 A.3d 167 (Pa. 2016) (quoting Commonwealth v. 

Williams, 35 A.3d 44, 50 (Pa. Super. 2011) (citation omitted)). Further, 

“[t]he one year jurisdictional time bar that exists under the [PCRA] does not 

apply to motions for the performance of forensic DNA testing under Section 

9543.1.” Conway, 14 A.3d at 108 n.2 (citing Brooks, 875 A.2d at 1146).6 

As always in our review of the PCRA court’s decision, this Court is bound by 

the PCRA court’s credibility findings where those determinations are 

supported by the record. Commonwealth v. Small, 980 A.2d 549, 569 

(Pa. 2009) (citing Commonwealth v. Moore, 860 A.2d 88, 99 (Pa. 2004)).

We summarize the issues presented by Appellant’s petition as follows. 

Appellant petitioned the court for DNA testing to be performed on black,

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6 This Court has explained that a petition for post conviction DNA testing 

does not directly create an exception to 42 Pa.C.S. § 9545’s one year time 

bar; however, if granted, 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.A. § 9545(b)(2).” Commonwealth v. Weeks, 831 A.2d 1194, 1196 

(Pa. Super. 2003) (citing 42 Pa.C.S. § 9543.1(f)(1)). 
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Nike sneakers seized from his apartment and admitted into evidence against 

him at trial.7 According to Appellant, DNA testing of the sneakers would 

reveal that they did not belong to him. Therefore, Appellant concludes, the 

DNA testing of the sneakers would be exculpatory evidence and establish his 

actual innocence. See, generally, Appellant's Br.

An applicant for post-conviction DNA testing shall (1) specify the 

evidence to be tested, (2) assert the applicant’s actual innocence of the 

offense for which he or she 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... the applicant's actual 

innocence of the offense for which the applicant was convicted[.]

42 Pa.C.S. § 9543.1(c)(1)-(3). “[T]he prima facie requirement set forth in § 

9543.1(c)(3) and reinforced in § 9543.1(d)(2) requires that an appellant 

demonstrate that there is a reasonable possibility that favorable results of 

the requested DNA testing would establish the appellant's actual innocence 

of the crime of conviction.” Conway, 14 A.3d at 109 (footnote and internal 

quotation marks omitted) (citations omitted). Thus, Appellant has the 

burden of showing that the DNA testing requested pertains to specific 

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7 The sneakers seized in Appellant’s apartment matched the description 

provided by an eyewitness of those worn by one of the assailants.
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evidence related to the investigation or prosecution that resulted in his 

conviction and that exculpatory results of testing would establish his ‘actual 

innocence’ of the crime of which he was convicted. 42 Pa.C.S. § 

9543.1(a)(1), (c)(3)(ii); Commonwealth v. Smith, 889 A.2d 582, 583 (Pa. 

Super. 2005). 

Here, the PCRA court found DNA testing of the sneakers would only 

prove the identity of the individual who might have worn them and not the 

identity of the perpetrator. As to the second prong of the prima facie test, 

the PCRA court found that the DNA testing, assuming exculpatory results, 

would not establish a reasonable possibility of Appellant’s actual innocence 

of the offenses of which he was convicted. See 42 Pa.C.S. § 9543.1(2), 

(3)(ii)(A). The Commonwealth presented ample other evidence to suggest 

Appellant was one of the two shooters in the killings, including the 

statements of Brian Shealy, Octavio Rodriguez, and Melissa Cox. See PCRA 

Ct. Op., 9/16/2016, at 8. Shealy provided eyewitness identification of 

Appellant as being present at the scene of the crime and this information led 

police to arrest him as a suspect. See id. at 5. Rodriguez testified that 

while lodged in the same cell unit as Appellant, Appellant admitted that he 

shot his gun once before it jammed and that one of the victims was 

murdered because he owed money for drugs. See id. at 6. In addition, 

police obtained Appellant’s cellphone records and learned that Appellant had 

exchanged several calls with a number belonging to Melissa Cox on the date 

of the incident. See id. When interviewed, Cox told police that 
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“approximately two hours after the shooting, she received a phone call from 

[Appellant] in which he said he had killed some people in Homewood and 

that he sounded scared.” Id. Given the evidence of record, the PCRA court 

correctly concluded that DNA testing of the sneakers would not establish 

Appellant’s innocence. 

In light of the evidence amassed in support of Appellant’s conviction in 

this case, Appellant has failed to establish a reasonable possibility that DNA 

testing of the sneakers would produce exculpatory evidence that would 

establish his actual innocence. See Smith, 889 A.2d at 584.8 Accordingly, 

we discern no error in the PCRA court’s denial of Appellant’s petition for 

post-conviction DNA testing. 

Order affirmed.

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8

In finding the evidence sufficient to support Appellant’s convictions, this 

Court affirmed Appellant’s sentences on direct appeal based on the weight 

and sufficiency of the evidence. Commonwealth v. Thompson, 46 A.3d 

824, at *4 (Pa. Super. 2012) (unpublished memorandum) (adopting trial 

court opinion). Based on the evidence summarized previously, the proposed 

DNA testing, assuming exculpatory results, would not change our conclusion 

that “the evidence was more than sufficient to establish that Thompson was 

one of the two shooters who killed three people in Mr. Tommy’s restaurant.” 

Trial Ct. Op., 1/15/2010, at 84-85.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/31/2017