Opinion
J-S20003-16 No. 630 WDA 2015
04-15-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. KEITH CALDWELL Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order March 3, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0006929-2007 BEFORE: PANELLA, J., OLSON, J., and PLATT, J. MEMORANDUM BY PANELLA, J.
Retired Senior Judge assigned to the Superior Court.
Appellant, Keith Caldwell, appeals pro se from the order entered March 3, 2015, which denied his second motion for post-conviction DNA testing under Section 9543.1 of the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On March 12, 2008, a jury convicted Appellant of first-degree murder for the shooting death of his grandfather. This Court affirmed the judgment of sentence on appeal, and the Supreme Court denied allocatur on April 25, 2012. See Commonwealth v. Caldwell , 38 A.3d 919 (Pa. Super., filed Nov. 14, 2011) (unpublished memorandum), appeal denied , 44 A.3d 1160 (Pa. 2012). Since that time, Appellant has sought relief from his judgment of sentence by filing three petitions for post-conviction relief, each of which have been unsuccessful. The instant motion is Appellant's second motion for DNA testing. The PCRA court denied Appellant's motion. This timely appeal followed.
Appellant raises the following issues for our review.
1. Judge Randal Todd abused his discretion and erred when he denied the petitioner's motion seeking DNA testing (profiling) based off erroneous, baseless assumption that the Commonwealth conceded through the testimony of Detective Myers that the substance found on evidence in question was in fact the blood of the victim, when in reality the record shows that DNA profiling was never conducted on the sample in question therefore the Commonwealth could not have conceded to a fact that was not yet a fact, and could not/and was not argued to be factual by either party or any expert witness.
2. Judge Randal Todd abused his discretion and erred when he denied the petitioner's motion for DNA testing (profiling) based off erroneous, baseless assumption that the Commonwealth conceded through the testimony of Detective Myers that the substance found on evidence in question was in fact the blood of the victim, when in reality the record show[s] that the Commonwealth never conceded (before the jury), argued or agreed with Detective Myer[']s testimony of blood/saliva being "expelled" when the victim was shot, and in fact later on argued the opposite of Detective Myer[']s testimony arguing quote, blood does not "splatter" or "spurt(ing)" in instant death cases.
3. Judge Randal Todd abused his discretion and erred when he denied the petitioner's motion for DNA testing (profiling) without taken [sic] into consideration that DNA testing would disprove the Commonwealth's baseless theory that, "in instant death cases", "you don't have the splatter or spurting of blood", a theory used to directly discredit th[e] petitioner's trial defense while wearing long-sleeved baggy clothing and did not get a drop of blood of the victim[']s DNA splatter on any of said clothing, which if guilty would have been in the
closest proximity to the wound, literally inches away. DNA testing would scientifically/factually disprove the Commonwealth's rebuttal to this defense, thus proven [sic] actual/factual innocence.Appellant's Brief at 3.
4. Judge Randal Todd abused his discretion and erred when he denied the petitioner's motion for DNA testing (profiling) ruling testing was not "relevant" without taken [sic] into consideration the triers of facts/ the jury, thought said testing was extremely relevant during deliberations when they stopped to ask the court, "where was the envelope, exhibit 23, in relation to the victim's body. Also, were items moved on the table/cooler to pick up the envelope. Was there DNA testing on the envelope and if so, what were the conclusions, if not wouldn't there be further testing." Questions that proved said evidence and testing were not only relevant but very important in the outcome of this case.
Because post-conviction DNA testing is provided for under the PCRA, "[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 omitted). We additionally recognize that the PCRA's one-year jurisdictional time bar does not apply to motions for the performance of forensic DNA testing under Section 9543.1. See Commonwealth v. Brooks , 875 A.2d 1141, 1146 (Pa. Super. 2005). As such, there is no jurisdictional impediment to our review.
We review an order denying a motion for post-conviction DNA testing as follows.
[T]he trial court's application of a statute is a question of law that compels plenary review to determine whether the court committed an error of law. 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. We can affirm the court's decision if there is any basis to support it, even if we rely on different grounds to affirm.Commonwealth v. Williams , 35 A.3d 44, 47 (Pa. Super. 2011) (internal citations omitted).
Regarding the post-conviction DNA statute, we observe that
[t]he statute sets forth several threshold requirements to obtain DNA testing: (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, ... [u]nder 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 these provisions, there can be no mistake that the burden lies with the petitioner to 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. We find no ambiguity in the standard established by the legislature with the words of this statute.Id. at 49-50 (citation omitted; emphasis in original).
Instantly, Appellant has failed to meet the threshold requirements for DNA testing under Section 9543.1(a)(2). The blood sample on the envelope at issue was discovered before Appellant's trial in 2008, the DNA testing technology was available at the time of Appellant's trial in 2008, the verdict was rendered after January 1, 1995, and there is no evidence that the trial court refused funds for DNA testing. See 42 Pa.C.S.A. § 9543.1(a)(2).
We further note that the PCRA court assessed Appellant'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 Appellant's actual innocence. See 42 Pa.C.S.A. § 9543.1(c)(3) and (d)(2). The PCRA court ultimately concluded that Appellant failed to set forth a prima facie case that the requested DNA testing would establish his actual innocence. See PCRA Court Opinion, 7/20/15. After reviewing the briefs of the parties, the certified record and the applicable law, we agree.
Having concluded that the PCRA court's July 20, 2015 opinion ably and comprehensively disposes of Appellant's issues raised on appeal, with appropriate reference to the record and without legal error, we will affirm on the basis of that opinion. See id. (finding that Appellant failed to set forth a prima facie case that the requested DNA testing would establish his actual innocence).
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/15/2016
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