J-S22039-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

 Appellee

v.

ERNEST H. PRIOVOLOS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3490 EDA 2017

Appeal from the PCRA Order October 6, 2017

in the Court of Common Pleas of Montgomery County 

Criminal Division at No.: CP-46-CR-0000603-1989

BEFORE: BENDER, P.J.E., STABILE, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.: FILED AUGUST 27, 2018

Appellant, Ernest H. Priovolos, appeals pro se, from the order of October 

6, 2017, dismissing, without a hearing, his serial petition filed pursuant to the 

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

We take the underlying facts and procedural history in this matter from 

our independent review of the certified record. On January 19, 1990, a jury 

convicted Appellant of murder in the third degree and related offenses. On 

January 28, 1991, the trial court sentenced Appellant to an aggregate term of 

incarceration of not less than twelve nor more than twenty-seven years. This 

Court affirmed the judgment of sentence and the Pennsylvania Supreme Court 

denied leave to appeal. (See Commonwealth v. Priovolos, 609 A.2d 585 

(Pa. Super. 1992) (unpublished memorandum), appeal denied, 617 A.2d 1273
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(Pa. 1992)). Since 1992, Appellant has filed approximately seven PCRA 

petitions, as well as numerous filings in federal court.

Appellant filed the instant petition for post-conviction DNA testing 

pursuant to 42 Pa.C.S.A. § 9543.1 on June 23, 2017. On August 24, 2017, 

the PCRA court issued notice of its intent to dismiss the petition pursuant to 

Pennsylvania Rule of Criminal Procedure 907(1). Appellant filed a response 

on September 12, 2017. On October 6, 2017, the PCRA court dismissed the 

petition as untimely. The instant, timely appeal followed. The PCRA court did 

not order Appellant to file a concise statement of errors complained of on 

appeal; the court did file an opinion on October 30, 2017. See Pa.R.A.P. 1925.

On appeal, Appellant raises the following questions for our review.

Whether [the PCRA] court improperly dismissed Appellant[‘]s 

pending DNA petition[,] in violation of [42 Pa.C.S.A. § 9543.1] by 

failing to conduct additional DNA testing, and whether it violate[d] 

Judge Drayer[‘s] [c]ourt [o]rder who mandated additional DNA 

testing including an [e]videntiary [hearing?]

Whether the District Attorney’s Office Montgomery County Pa. 

Case 603-89 has obstructed justice by failing to forward [c]ourt 

[o]rdered [c]hain of [c]ustody [r]ecords from Judge Drayer[‘s] 

order, an[d/]or documents from the [a]rresting [o]fficer Carl 

Molt[, which] would lead to the whereabouts of the [d]eceased 

clothes (sic) for additional DNA testing, and whether they violated 

a [f]ederal [s]ubpoena issued from case 17-985[, i]n which the 

documents and records should have been submitted to the 

[Appellant?]

(Appellant’s Brief, at 3).

Appellant first claims that the PCRA court erred in dismissing his petition 

for post-conviction DNA testing as untimely. (See id. at 7-9). For the reasons 
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discussed below, we hold that the PCRA court erred in dismissing the petition 

as untimely, however, we find that Appellant is not eligible for PCRA relief.1

Initially, we note that motions for post-conviction DNA testing, while 

considered post-conviction petitions under the PCRA are “separate and distinct 

from claims pursuant to other sections of the PCRA” thus, the one-year time 

bar does not apply to them. Commonwealth v. Perry, 959 A.2d 932, 938 

(Pa. Super. 2008) (citation omitted). When reviewing a PCRA court’s order 

denying a petitioner’s request for post-conviction DNA testing, we employ the 

same standard of review as when reviewing the denial of PCRA relief, which

is, we must 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).

42 Pa.C.S.A. § 9543.1 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 or awaiting execution because of a sentence 

of death may apply by making a written motion to the 

sentencing court 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. 

(2) The evidence may have been discovered either prior to 

or after the applicant’s conviction. The evidence shall be 

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1 An appellate court may affirm an order of the trial court on any basis if the 

decision is correct. See Commonwealth v. Hernandez, 886 A.2d 231, 240 

(Pa. Super. 2004), appeal denied, 899 A.2d 1122 (Pa. 2006).
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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 the 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. 

* * *

(c) Requirements.—In any motion under subsection (a), under 

penalty of perjury, the applicant shall:

(1) (i) specify the evidence to be tested;

* * * 

(2) (i) assert the applicant’s actual innocence of the offense 

for which the applicant 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: 

(A) the applicant’s actual innocence of the offense for which 

the applicant was convicted. . . 

42 Pa.C.S.A. § 9543.1(a), (c)(1)(i), (c)(2)(i), (c)(3)(i), (c)(ii)(a) (emphasis 

added).

Appellant has not complied with these requirements. (See Motion for 

DNA Testing, 6/23/17, at unnumbered page 1). Firstly, Appellant has not 
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alleged that he is serving a term of imprisonment; rather the Commonwealth 

contends, and Appellant’s address reflects, that he is no longer incarcerated. 

(See Commonwealth’s Brief, at 10 n.2; Appellant’s Reply Brief,2 at cover).3 

Thus, he is not eligible for post-conviction DNA testing pursuant to 42 

Pa.C.S.A. § 9543.1. See Commonwealth v. Frederick, 929 A.2d 214, 219 

(Pa. Super. 2007). Secondly, Appellant did not file a proper petition pursuant 

to 42 Pa.C.S.A. § 9543.1. (See Motion for DNA Testing, at unnumbered page 

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2 This Court granted Appellant’s request to file a reply brief, which he did on 

April 3, 2018. 

3

 The majority of the reply brief consists of a photocopy of the transcript from 

a July 13, 2017 hearing on a motion to dismiss his second amended complaint 

in a Section 1983 action against the Montgomery County District Attorney’s 

Office and various individuals either in that office or related to the instant 

criminal litigation. (See Appellant’s Reply Brief, at attached exhibit, N.T. 

Hearing, 7/13/17; see also Priovolos v. Montgomery Cty. District 

Attorney Office, 2018 WL 92520 (E.D. Pa. filed 2/16/18)). Interestingly, 

these notes of testimony reflect that Appellant’s sentence of incarceration 

“maxed out” in March 2017. (See Appellant’s Reply Brief, at attached exhibit, 

N.T. Hearing, at 4-5). Therefore, Appellant filed his June 23, 2017 motion for 

DNA testing approximately three months after he completed serving his 

twelve to twenty-seven year sentence of incarceration in the underlying 

litigation. Not only was Appellant no longer incarcerated, but he was not 

serving any other sentence that would make him eligible for PCRA relief. See 

42 Pa.C.S.A. § 9543(a)(1); Commonwealth v. Williams, 977 A.2d 1174, 

1176 (Pa. Super. 2009), appeal denied, 990 A.2d 730 (Pa. 2010) (“[T]o be 

eligible for relief under the PCRA, the petitioner must be currently serving a 

sentence of imprisonment, probation or parole for the crime.”) (citation and 

internal quotation marks omitted). Furthermore, Appellant failed to note in 

his reply brief that, on February 15, 2018, the District Court dismissed his 

second amended complaint, and, on May 2, 2018, the Third Circuit Court of 

Appeals dismissed his appeal of that decision for failing to file a brief and 

appendix. 
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1). Accordingly, his claim that the PCRA court erred in denying his request 

for post-conviction DNA testing fails.4

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/27/18

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4 Moreover, we note that Appellant’s brief on appeal is undeveloped. Rather 

than discussing the merits of his petition, he complains about the alleged 

failure of the Montgomery County District Attorney’s Office to comply with 

various unspecified orders and subpoenas of the federal court. (See 

Appellant’s Brief, at 7-8). “[I]t is a well settled principle of appellate 

jurisprudence that undeveloped claims are waived and unreviewable on 

appeal.” Commonwealth v. McDermitt, 66 A.3d 810, 814 (Pa. Super. 

2013) (citation omitted).