NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
KENYETTA WILKERSON :
Appellant : No. 895 EDA 2020
Appeal from the Order Entered February 24, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
BEFORE: PANELLA, P.J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: JANUARY 11, 2021
Appellant, Kenyetta Wilkerson, appeals from the order entered in the
Court of Common Pleas of Philadelphia County dismissing her “Motion to
Compel Discovery of DNA and Biological Sample Evidence” for lack of
jurisdiction. Because Appellant’s motion failed to articulate a request for DNA
testing under 42 Pa.C.S.A. § 9543.1, infra, we affirm.
The lower court sets forth the relevant facts and procedural history, as
On April 21, 2014, defendant Kenyetta Wilkerson [hereinafter
“Appellant”] pled guilty to one count of murder of the third degree
(18 Pa.C.S. § 2502) and one count of possession of an instrument
of a crime (18 Pa.C.S. § 907). That same day, the court imposed
an aggregate sentence of 22 ½ to 45 years’ incarceration in state
prison. No post-sentence motions were filed and Appellant did not
file an appeal.
* Former Justice specially assigned to the Superior Court.
Nearly six years later, on February 21, 2020, Appellant filed a
motion entitled, “Motion to Compel Production of Discovery of DNA
and Biological Sample Evidence” (hereinafter, “Motion to Compel
DNA Discovery”). In that motion, Appellant sought production of
various documents related to DNA and biological samples
allegedly pertaining to her case. By order dated February 24,
2020, the court denied the motion on the ground that there were
no proceedings pending before the court in Appellant’s case, and
therefore, the court was without authority to grant the requested
Appellant has now appealed from [the lower] court’s order
denying her Motion to Compel DNA Discovery on the ground that
“any person convicted of a crime may at any time even after
sentencing file a motion to request the DNA testing to prove actual
innocence.” See Concise Statement of Reasons Complained of on
Appeal, Pa.R.A.P. 1925(b) (“Statement of Errors”) at ¶¶ 4-8.
Lower Court Opinion, 6/10/20, at 1-2.
The lower court acknowledged that Section 9543.1 of the Post
Conviction Relief Act (“PCRA”), §§ 9541-9546, provides a means by which a
defendant may file a motion for DNA testing, regardless of the PCRA’s one-
year time bar, and imposes several threshold requirements to obtain testing.
According to the lower court, however, Appellant “has not, at any time, filed
a motion for DNA testing under section 9543.1[,]” and it denied relief on this
basis. This timely appeal followed.
On appeal, Appellant raises the following issues for our consideration:
1. Did the Court of Common Pleas Philadelphia County err in the
denial of Appellant's Motion to Compel Production of DNA and
Biological Sample Evidence?
2. Did Trial Court err in not allowing Appellant to establish actual
innocence as her guilty plea was not knowingly and intelligently
Appellant’s brief at 4.
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 basis to support it, even if we rely on different grounds to
Commonwealth v. Walsh,
125 A.3d 1248
, 1252-53 (Pa. Super. 2015).
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
(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
(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.
(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. § 9543.1(d)(2)(i).
In reviewing the certified record, we observe that Appellant’s “Motion to
Compel Production of Discovery” neither refers to nor requests the
performance of forensic DNA testing, nor does it cite to Section 9543.1.
Significantly, the motion is also without any accompanying discussion at all,
let alone one explaining what evidence Appellant seeks and how the testing
of such evidence, even assuming exculpatory results, would be prove her
The lower court therefore recognized Appellant’s motion not as one
requesting the performance of DNA testing under Section 9543.1, but as one
requesting production of discovery evidence already in the Commonwealth’s
possession. The court reasoned, therefore, that it was without jurisdiction to
enter an order granting the discovery request where Appellant had not filed a
PCRA petition seeking collateral relief. Accordingly, it entered its order
denying relief. For its part, the Commonwealth essentially adopts the court’s
opinion that Appellant’s motion for discovery fails to secure the court’s
Under Section 9543.1(a)(1), it was Appellant’s obligation to “make 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(a)(1) (emphasis added). Appellant’s
motion, however, neither requested the performance of DNA testing nor
identified what specific evidence related to her case was to be tested.
Only now, in her appellate brief, does Appellant articulate for the first
time that she is seeking to compel DNA testing of evidence pursuant to Section
9543.1. It is well-settled, however, that an appellant may not gain relief on
issues raised for the first time on appeal. See Pa.R.A.P. 302(a) (appellant
may not raise issues for the first time on appeal). Because Appellant’s “Motion
to Compel Production of Discovery” before the lower court never made the
discrete request for DNA testing under Section 9543.1, we discern no error
with the court’s order denying Appellant’s discovery motion.
Even if we were to find that Appellant’s motion facially requested Section
9543.1 testing, we would still find it inadequate under the statute.
Specifically, the motion made not so much as a bare assertion, let alone the
requisite prima facie case, that Appellant’s role in the crime was at issue or
that exculpatory results from DNA testing would establish her actual
innocence. See Section 9543.1(c)(3). For this reason, the present appeal
merits no relief.1
Judgment of sentence affirmed.
1 In Appellant’s second issue, she contends the trial court erred in failing to
allow her to establish her actual innocence with proof that her confession was
coerced and her guilty plea unknowingly and unintelligently made. It was
Appellant’s obligation, however, to incorporate this allegation in a prima facie
case presentation accompanying her motion for DNA testing.
Moreover, to the considerable extent Appellant dedicates her second issue to
assailing her confession and guilty plea as involuntary, we observe that such
an issue may not stand alone as a claim for appellate relief. Only the issue
involving DNA testing is properly before this Court. See
Walsh, 125 A.3d at 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”).
Joseph D. Seletyn, Esq.