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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMIE LYNN SWICK
Appellant No. 1776 MDA 2014
Appeal from the PCRA Order of September 17, 2014
In the Court of Common Pleas of Bradford County
Criminal Division at No.: CP-08-CR-0000310-2008
BEFORE: WECHT, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY WECHT, J.: FILED AUGUST 25, 2015
Jamie Lynn Swick appeals the September 17, 2014 order denying her
petition for relief pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-46. Because Swick has failed adequately to apply the
governing legal standards, we affirm.
On August 20, 2008, Swick was convicted by a jury of two counts each
of involuntary deviate intercourse (18 Pa.C.S. § 3123(a)) and statutory
sexual assault (18 Pa.C.S. § 3222.1). The charges arose after law
enforcement authorities discovered that Swick, who was twenty-seven
years-old at the time, was having a sexual relationship with a B.J.M., a
fourteen-year-old boy. On direct appeal, a panel of this Court briefly
summarized the facts presented at Swick’s jury trial as follows:
Between August 2006 and January 2008[,] Swick (born
5/14/1980) was having sexual relations with B.J.M. (born
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[1/1993]). One of B.J.M.’s friends told B.J.M.’s father that he
saw B.J.M. and Swick having sex. Trooper Peter Shiposh
interviewed B.J.M. about Swick and B.J.M. admitted that the two
had oral sex approximately 90 times, vaginal intercourse about
100 times and hundreds of other sexual encounters. Trooper
Shiposh interviewed Swick and she admitted to having a sexual
relationship with B.J.M. and agreed to the number of incidents
with B.J.M. Misty Ackley, a Bradford County Children and Youth
Services (CYS) employee, also interviewed Swick about her
contact with B.J.M. and asked Swick for more specifics and
details that she had not disclosed to the officer.
* * *
[At trial,] Swick testified in her own defense and denied having
sex with B.J.M. She stated that she had no recollection of any
interviews between her and Trooper Shiposh and Ackley, stating
that she has a bad memory because of multiple medications she
was prescribed by a careless doctor.
Commonwealth v. Swick, No. 106 MDA 2009, slip op. at 2-3 (Pa. Super.
May 3, 2010.
On December 15, 2008, the trial court sentenced Swick to an
aggregate sentence of two hundred and six to four hundred and twelve
months’ incarceration. However, on direct appeal, the panel concluded that
some of the sentences should have merged, and remanded for resentencing.
On July 19, 2010, the trial court resentenced Swick to an aggregate of one
hundred and eighty to three hundred and sixty months’ incarceration.
On August 12, 2011, Swick filed a timely PCRA petition. Counsel was
appointed to represent Swick. Following multiple extensions of time, counsel
filed an amended PCRA petition on Swick’s behalf, in which counsel alleged
at least twelve instances of ineffective assistance of counsel. The PCRA
court dismissed all but two of the claims. On August 29, 2014, the PCRA
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court held a hearing on the remaining two claims: (1) ineffective assistance
of counsel for failing to engage in effective adversarial conduct; and (2)
ineffective assistance of counsel for failing to properly pursue a motion to
suppress. See Amended PCRA petition, 1/6/2014, at 2-5, 5-9. Swick, her
trial attorney, and Trooper Shiposh all testified at the hearing. On
September 17, 2014, the PCRA court issued an order dismissing Swick’s
PCRA petition, as well as a corresponding memorandum opinion setting forth
the court’s rationale for dismissing the petition.
On October 17, 2014, Swick filed a notice of appeal. On November 10,
2014, the PCRA court directed Swick to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). On December 1,
2014, Swick filed a timely concise statement. On December 11, 2014, the
PCRA court issued a statement in lieu of a Pa.R.A.P. 1925(a) opinion, in
which the court directed our attention to the rationale that the court set
forth in its September 17, 2014 memorandum opinion.
Swick presents the following issue and supporting statement for our
consideration:
Whether the [PCRA] court’s denial and dismissal of [Swick’s
PCRA] petition is supported by the record and otherwise free of
legal error?
The [PCRA] court’s denial and dismissal of [Swick’s PCRA]
petition is not supported by the record and constitutes legal
error as [Swick’s] trial counsel was ineffective due to his failure
to engage in effective adversarial conduct; failure to file a
motion to suppress alleged inculpatory statements; failure to
make timely objections; failure to move for a mistrial after the
alleged victim and eyewitness were discussing testimony during
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a court recess; failure to move for a mistrial following the failure
of the Commonwealth to disclose inculpatory evidence; failure to
move for a continuance following the failure of the
Commonwealth to disclose inculpatory evidence; failure to file a
motion in limine [to] allow for argument prior to trial date;
failure to present character witnesses; failure to present alibi
defense; failure to explore accuser’s motive for false allegations;
failure to request mental evaluation despite a documented
mental impairment; general ineffective assistance of counsel;
violations of the United States Constitution on grounds of
ineffective assistance of counsel and violations of the
Pennsylvania Constitution on grounds of ineffective assistance of
counsel.
Brief for Swick at 8.
Our “standard of review for an order denying post-conviction relief is
limited to whether the record supports the post-conviction court’s
determination, and whether that decision is free of legal error.”
Commonwealth v. Allen, 732 A.2d 582, 586 (Pa. 1999). The PCRA court’s
findings “will not be disturbed unless there is no support for the findings in
the certified record.” Commonwealth v. Johnson, 945 A.2d 185, 188
(Pa. Super. 2008).
As noted, Swick makes one overarching claim of ineffective assistance
of counsel. However, within that claim, Swick asserts multiple additional
substantive claims that implicate trial counsel’s effectiveness. “[T]rial
counsel is presumed to be effective and the burden to show otherwise lies
with the [appellant].” Commonwealth v. Singley, 868 A.2d 403, 411
(Pa. 2005) (citing Commonwealth v. Jones, 683 A.2d 1181, 1188 (Pa.
1996)). The test for ineffectiveness of counsel is as follows:
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[T]he appellant must overcome the presumption of competence
by showing that: (1) his underlying claim is of arguable merit;
(2) the particular course of conduct pursued by counsel did not
have some reasonable basis designed to effectuate his interests;
and (3) but for counsel’s ineffectiveness, there is a reasonable
probability that the outcome of the challenged proceeding would
have been different.
Commonwealth v. Bomar, 826 A.2d 831, 855 (Pa. 2003) (citing
Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999)). Failure to
satisfy any prong of the test will result in the rejection of the underlying
claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002). If an
appellant is unable to demonstrate prejudice, the other two elements need
not be addressed. Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa.
1998). Additionally, a PCRA appellant must set forth and individually discuss
substantively each prong of the ineffective assistance of counsel test. See
Commonwealth v. Jones, 876 A.2d 380, 386 (Pa. 2005);
Commonwealth v. Wharton, 811 A.2d 978, 988 (Pa. 2002) (“Claims of
ineffective assistance of counsel are not self-proving. . . .”).
Additionally, in one of her ineffective assistance of counsel claims,
Swick alleges that trial counsel was ineffective for failing to call certain
witnesses on her behalf at trial. The standard governing such a claim is as
follows:
When raising a claim of ineffectiveness for the failure to call a
potential witness, a petitioner satisfies the performance and
prejudice requirements of the [ineffective assistance of counsel]
test by establishing that: (1) the witness existed; (2) the witness
was available to testify for the defense; (3) counsel knew of, or
should have known of, the existence of the witness; (4) the
witness was willing to testify for the defense; and (5) the
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absence of the testimony of the witness was so prejudicial as to
have denied the defendant a fair trial. [Commonwealth v.
Johnson, 966 A.2d 523, 536 (Pa. 2009)]; Commonwealth v.
Clark, 961 A.2d 80, 90 (Pa. 2008). To demonstrate []
prejudice, a petitioner “must show how the uncalled witnesses’
testimony would have been beneficial under the circumstances of
the case.” Commonwealth v. Gibson, 951 A.2d 1110, 1134
(Pa. 2008). Thus, counsel will not be found ineffective for failing
to call a witness unless the petitioner can show that the witness’
testimony would have been helpful to the defense.
Commonwealth v. Auker, 681 A.2d 1305, 1319 (Pa. 1996).
“A failure to call a witness is not per se ineffective assistance of
counsel for such decision usually involves matters of trial
strategy.” Id.
Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012).
Swick pays only lip-service to the legal standards governing claims of
ineffective assistance of counsel. Swick cites the three-part test, see Brief
for Swick at 27, but makes no substantive attempt to apply the test to her
individual claims, except for her claim pertaining to counsel’s purported
failure to file a suppression motion. With that exception, in every other
claim, Swick cites no case law in support of the arguable merit prong, nor
does she present any argument beyond bald allegations of merit. She
presents similarly bare arguments regarding the other two prongs, if at all.
Similarly, with regard to her claim that counsel was ineffective for failing to
call certain witnesses, Swick does not identity the witnesses or even proffer
that they were willing and available to testify on her behalf with any degree
of specificity. Consequently, these issues are waived. See
Commonwealth v. Steele, 961 A.2d 786, 797 (Pa. 2008) (“[U]ndeveloped
claims, based on boilerplate allegations, cannot satisfy [the appellant’s]
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burden of establishing ineffectiveness.”) (citing Jones, 876 A.2d at 386;
Commonwealth v. Bracey, 795 A.2d 935, 940 n.4 (Pa. 2001)).
As to her claim that counsel was ineffective for failing to file a
suppression motion, Swick adequately addresses the arguable merit prong
and the prejudice prong of the governing test. See Brief for Swick at 33-37.
Swick contends, with the support of valid case law, that she was in custody
and was coerced into making an inculpatory statement without being
administered her rights pursuant to Miranda v. Arizona, 384 U.S. 436
(1966). She also cogently argues that the admission of the inculpatory
statements prejudiced her at trial. See Brief for Swick at 37. However, she
fails to engage in any meaningful or substantive discussion of the reasonable
basis prong of the ineffective assistance of counsel test. At the beginning of
her argument, she addresses the prong in a single sentence, baldly noting
that counsel could have no reasonable basis for not pursing the motion. Id.
at 32. One undeveloped sentence does not equate to a substantive
discussion of the prong, and is insufficient to satisfy Swick’s burden of
proving that counsel was ineffective and that the PCRA court’s decision was
not supported by the record. Thus, like her other claims, Swick’s cursory
argument not only does not entitled her to relief, but results in waiver of the
claim in its entirety.
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Swick has failed to present her claims in compliance with our well-
settled standards. As such, she has waived her arguments, and has not
demonstrated that the PCRA court’s order was not supported by the record.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2015
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