Com. v. Brown, R.

J-S41005-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

ROBERT WAYNE BROWN :

:

Appellant : No. 1972 MDA 2019

Appeal from the Order Entered November 6, 2019,

in the Court of Common Pleas of Cumberland County,

Criminal Division at No(s): CP-21-CR-0003516-2010.

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

ROBERT WAYNE BROWN :

:

Appellant : No. 1973 MDA 2019

Appeal from the Order Entered November 6, 2019,

in the Court of Common Pleas of Cumberland County,

Criminal Division at No(s): CP-21-CR-0000029-2011.

BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STRASSBURGER, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED DECEMBER 01, 2020

Robert Wayne Brown appeals pro se from the order denying his motion

for post-conviction DNA testing filed pursuant to section 9543.1 of the Post

Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-9546. We affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

J-S41005-20

Brown’s convictions are the result of forty-one charges he faced at two

different criminal dockets. Previously, this Court has detailed the pertinent

facts and procedural history as to each docket as follows:

Brown’s convictions arise from his sexual abuse of his

grandchildren and step grandchildren. On December 1,

2010, Brown was babysitting his granddaughters, T.W. (age

three) and K.W. (age four). When T.W. and K.W.’s mother,

T.N. went to Brown’s home in Newville, Pennsylvania to pick

up the girls, she observed Brown with his pants unbuttoned

and unzipped. T.W. was standing between Brown’s legs

with her pants undone, and K.W., was facing the wall with

her pants around her ankles. T.N. immediately removed the

children from Brown’s home, and took them to Carlisle

Regional Medical Center.

At the hospital, Joey Wisner, PA, examined the children

and noticed three “warty lesions” near K.W.’s upper lip.

Wisner took external mouth swabs from both children,

which Pennsylvania State Police Corporal Bryan Henneman

took into evidence along with K.W.’s pants. Laboratory

testing later revealed the presence of seminal fluid on K.W.’s

pants, and the swab from K.W.’s mouth contained

spermatozoa. However, due to the breakdown and mixing

of genetic material, the lab could not conclusively match

those samples with Brown’s DNA.

On the same evening, Corporal Henneman went to

Brown’s residence, identified himself, and asked to speak

with Brown. Corporal Henneman was dressed in formal

business attire. Corporal Henneman told Brown that he was

not under arrest. Brown agreed to speak with Corporal

Henneman, and invited him inside the home.

Corporal Henneman digitally recorded the audio of his

ensuing conversation with Brown. In that conversation,

Brown admitted that K.W. and T.W. had touched his penis

on multiple occasions. He also stated that both K.W. and

T.W. had performed oral sex on him, and that he had

performed oral sex on K.W. on one occasion. Brown told

Corporal Henneman that he had a wart-like growth on [his]

penis, but did not know what it was. At the conclusion of

the interview, Corporal Henneman left Brown’s home.

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On December 2, 2010, Corporal Henneman arrested

Brown and charged him with two counts each of involuntary

deviate sexual intercourse (“IDSI”), IDSI with a child less

than thirteen years of age, unlawful contact with a minor,

sexual assault, indecent assault, indecent assault of a child

less than thirteen years of age, and corruption of minors.

Those charges were filed and docketed at CP-21-CR-3516-

2010.

Commonwealth v. Brown, 135 A.3d 652 (Pa. Super. 2015), unpublished

memorandum at 2-4 (footnote and citation to the record omitted).

This Court summarized the pertinent facts and procedural history

regarding the remaining docket number as follows:

On December 6, 2010, Brown’s step grandchildren,

[siblings] J.H. and M.H, after hearing about Brown’s arrest

and the sexual abuse allegations against him, reported to

[the] police that Brown had sexually assaulted them as well.

On that same day, Corporal Henneman interviewed J.H. and

M.H. J.H. told Corporal Henneman that, on multiple

occasions when he was approximately ten to twelve years

old, Brown performed oral sex on J.H. Brown also forced

J.H. to perform oral sex on him. J.H. told Corporal

Henneman that Brown had inserted his fingers, various sex

toys, and his penis into J.H.’s anus.

M.H. corroborated her brother’s allegations. She told

Corporal Henneman that, on multiple occasions when she

was approximately eight to ten years old, Brown performed

oral sex on her. Brown also forced M.H. to perform oral sex

on him. Brown penetrated M.H.’s vagina and anus with his

fingers and with various sex toys. M.H. also told Corporal

Henneman that, on one occasion, Brown inserted his penis

into her anus. On December 9, 2010, Corporal Henneman

filed a second criminal complaint, charging Brown with rape

of a child, IDSI, IDSI with a child less than thirteen years of

age, indecent assault, aggravated indecent assault,

unlawful contact with a minor, and corruption of minors.

Those charges were filed and docketed at CP-21-CR-29-

2011.

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Brown, unpublished memorandum at 4-5 (footnotes omitted).

Prior to trial, the Commonwealth filed notice of its intent to seek

mandatory minimum sentences if a jury convicted Brown of several of the sex

offenses. The Commonwealth consolidated the two dockets for trial, which

began on August 20, 2012. Two days later, the jury convicted Brown on all

of the charges. On April 4, 2013, the trial court sentenced Brown to an

aggregate term of 40 to 120 years of imprisonment. Brown did not file a

direct appeal, however, after he filed a PCRA petition, his right to appeal was

reinstated nunc pro tunc.

On appeal, Brown’s counsel filed a petition to withdraw and a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that

Brown’s appeal was wholly frivolous. This Court disagreed, concluding that

Brown’s aggregate sentence included mandatory minimums, which this Court

in Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014), had declared

unconstitutional. See Brown, unpublished memorandum at 15-19. Thus,

this Court vacated Brown’s judgment of sentence and remanded for

resentencing. On August 23, 2016, our Supreme Court denied the

Commonwealth’s petition for allowance of appeal. Commonwealth v.

Brown, 145 A.3d 723 (Pa. 2016).

Following remand, at resentencing, the trial court expressly stated that

it had not imposed any mandatory minimums as part of its original aggregate

sentence. See Resentencing Order, 11/15/16, at 1. The court therefore

reimposed its 40 to 120 year sentence. Brown filed a timely appeal to this

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Court in which he challenged the discretionary aspects of his sentence. In an

unpublished memorandum filed on August 23, 2017, we concluded that

Brown’s failure to file a post-sentence motion waived his sentencing claim.

We therefore affirmed his judgment of sentence. Commonwealth v. Brown,

175 A.3d 1107 (Pa. Super. 2017). On February 5, 2018, our Supreme Court

denied Brown’s petition for allowance of appeal. Commonwealth v. Brown,

181 A.3d 284 (Pa. 2018).

On August 26, 2019, Brown filed the petition at issue, titled a “Petition

to Retest DNA.” In his one-page petition, Brown requested that the DNA in

his case be retested pursuant to Section 9543.1 of the PCRA because “certain

results were deemed inconclusive,” and the newly amended statute allowed

for testing “with Newer Technology that could produce [substantially] more

Accurate and Probative results.” Petition, 8/26/19, at 1. The Commonwealth

filed a response. By order entered November 5, 2019, the PCRA court denied

the petition. On October 7, 2019, Brown filed an amended petition, in which

he specified the evidence to be retested and asserted his innocence. This pro

se appeal followed.1 Both Brown and the PCRA court have complied with

Pa.R.A.P. 1925.

____________________________________________

1No violation of our Supreme Court’s decision in Commonwealth v. Walker,

185 A.3d 969 (Pa. 2018) occurred in this case. Brown filed separate notices

of appeal for each docket, and, although he included both docket numbers on

each appeal, this fact is no longer a basis for quashal. See generally,

Commonwealth v. Jerome Johnson, 236 A.3d 1141 (Pa. Super. 2020) (en

banc).

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Brown raises the following issues:

1) Did [Brown] state his request under [Section] 9543.1

clearly?

2) Was the original DNA test inconclusive?

3) Does [Brown] have [the] right to DNA testing?

4) Did [Brown’s] trial counsel consult [an] expert in the case

or seek comparative testing?

5) Did [Brown] receive[a] raw data report and DNA original

test results with his discovery?

6) Did the [victims] in the case make a complaint or

statement saying they were abused?

7) Are there conflicting statements and interviews and

property records regarding evidence collected?

8) Did the trial court [err] in denying motion to test DNA?

Brown’s Brief at 2 (excess capitalization omitted).

As noted by the Commonwealth, only the issues involving the DNA

testing are properly before this Court. See Commonwealth’s Brief at 6-10.

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

(explaining, “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”).

Thus, we limit our review to the denial of Brown’s petition for DNA testing.

Our standard of review is well settled:

Generally, the 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 [applicant]

satisfied the statutory requirements listed in Section

9543.1. We can affirm the court’s decision if there is any

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basis to support it, even if we rely on different grounds to

affirm.

Walsh, 125 A.3d at 1252-53.

Petitions for post-conviction DNA testing are governed by statute.

Section 9543.1 of the PCRA provides, in pertinent part:

§ 9543.1. Postconviction DNA testing

(a) Motion.—

(1) 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.

(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 the trial in a case where

the verdict was rendered on or before January 1,

1995, or the evidence was subject to testing, but

newer technology could provide substantially more

accurate and substantively probative results, or the

applicant’s counsel sought funds from the court to

pay for the testing because he was indigent and the

court refused the request despite the client’s

indigency.

(3) A request for DNA testing under this section shall be

by written petition and shall be filed with the clerk of

courts of the judicial district where the sentence is

imposed.

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(4) DNA testing may be sought at any time if the motion

is made in a timely manner and for the purpose of

demonstrating the applicant’s actual innocence and

not to delay the execution of sentence or

administration of justice.

42 Pa.C.S.A. § 9543.1(a).

Section 9543.1(c)(3), provides, in pertinent part, that, when filing a

motion for post-conviction DNA testing, an applicant must 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 for which the

applicant was convicted[.]

42 Pa.C.S.A. § 9543.1(c)(3).

Finally, as provided in Section 9543.1(d)(2)(i), the PCRA “court shall not

order the testing requested in a motion under subsection (a) if, after review

of the record of the applicant’s trial, . . . the court determines that there is no

reasonable probability, that the testing would produce exculpatory evidence

that . . . would establish the applicant’s actual innocence of the offense for

which the applicant was convicted[.]” 42 Pa.C.S.A. § 9543(d).

Here, the PCRA court found that Brown failed completely to establish a

prima facie case in his one-page motion. Initially, the court explained:

The facts leading to the obtaining of the original samples

alone were incriminatory before any testing. Specifically,

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[Brown] was caught in his home office with his pants undone

and a four year old child, who[se] pants were also undone,

standing between his legs and with a three year old child in

the same room standing facing a wall with her pants down

to her ankles and those children were immediately taken to

a hospital where the samples were collected and

subsequently tested for DNA. Now, [Brown] untimely

requests the DNA evidence used in his cases be re-tested;

without legal foundation he claims newer DNA technology

can produce substantially more accurate and probative

results.

PCRA Court Opinion, 1/3/20, at 1-2.

The PCRA court then cited the relevant provisions of Section 9543.1 and

concluded:

Instantly, [Brown] fails to meet the requirements of

subsection (a)(2) because his convictions are well after

January 1, 1995, DNA testing was available and performed

in his case, and he provides no explanation how DNA testing

now is any different than the testing performed less than

ten (10) years ago. The one sample collected was too

diluted for viable DNA results and the second could not

exclude [Brown] from the pool of sample genetic material

found.

Further, after considering the credible testimony of the

eyewitness who discovered [Brown] in the act of sexually

assaulting his grandchildren, and review of the record of

[Brown’s] trial, there is no reasonable probability that the

requested testing would produce exculpatory evidence

establishing [Brown’s] actual innocence.

[Brown’s] request is merely to delay the execution of a

lawful sentence and administration of justice. As [Brown’s]

appeal is meritless, it should be denied.

Id. at 3.

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Our review of the record supports the PCRA court’s conclusions that

Brown’s post-conviction DNA testing is untimely and that he cannot meet the

requirements of Section 9543.1(a).

Section 9543.1(d)(iii) requires the applicant to make a timely request

for DNA testing. “In analyzing timeliness for purposes of Section

9543(d)(1)(iii), the court must consider the facts of each case to determine

whether the applicant’s request for post-conviction DNA testing is to

demonstrate his actual innocence or to delay the execution of sentence or

administration of justice.” Walsh, 125 A.3d at 1255 (citation omitted). Here,

our review of testimony from Brown’s trial amply supports the PCRA court’s

conclusion that the purpose of Brown’s petition was only to delay further the

execution of his sentence.

An applicant for post-conviction DNA testing “does not meet the

requirements of § 9543.1(a)(2) [if] the technology existed at the time of trial,

the verdict was rendered after January 1, 1995, and the court never refused

funds for the testing.” Commonwealth v. Perry, 959 A.2d 932, 938-39 (Pa,

Super. 2008) (citation omitted). We agree with the PCRA court that all of

these conditions are satisfied in this case. As noted by the PCRA court, Brown

was convicted well after 1995, and DNA testing was actually performed in his

case. In essence, Brown mistakenly believes the newly amended section’s

reference to “newer technology” permits him to seek retesting without

establishing a prima facie case.

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Finally, we agree with the PCRA court that, given the eyewitness

testimony regarding the sexual offenses, as well as Brown’s own statements

to Corporal Brenneman, see supra, “there is no reasonable probability that

the requested testing would produce exculpatory evidence establishing

[Brown’s] actual innocence.” PCRA Court Opinion, 1/3/20, at 3.

In sum, our review of the record supports the PCRA court’s conclusion

that Brown’s petition for post-conviction DNA testing is untimely, and Brown

failed to allege a prima facie case to support the DNA test he requested. We

therefore affirm the order denying the petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/1/2020

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