J-S12035-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANGEL EMANUEL IRIZARRY, :
:
Appellant : No. 1386 MDA 2018
Appeal from the Order Entered August 7, 2018
in the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001243-2000
BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 16, 2019
Angel Emanuel Irizarry (“Irizarry”) appeals, pro se, from the Order
dismissing his Motion for DNA testing filed pursuant to Section 9543.1 of the
Post Conviction Relief Act (“PCRA”).1, 2 We affirm.
The PCRA court provided the following relevant factual and procedural
history as follows:
On September 12, 2000, a jury found Irizarry guilty of two counts
of attempted first-degree murder, five counts of aggravated
assault, one count of criminal attempt to commit robbery, criminal
conspiracy to commit robbery, and three counts of reckless
endangerment of another person ....[3] The testimony at trial
established that Irizarry was involved with three other individuals
in planning and attempting to commit an armed robbery of a store
in Lancaster City on February 16, 2000, during the lunch hour.
____________________________________________
1 See 42 Pa.C.S.A. §§ 9541-9546.
2 We note that this is Irizarry’s third request for relief under the PCRA.
3See 18 Pa.C.S.A. §§ 901, 2502(a), 2702(a)(1)-(4), 3701(a)(1)(iii), 903,
2705.
J-S12035-19
When the police interrupted their attempted robbery, Irizarry
pulled out a .223 caliber semi-automatic rifle and unloaded 19 of
the 30 bullets from his clip, firing directly at a Lancaster City police
officer and a Lancaster County deputy sheriff. The police officer
and several bystanders sustained injuries. Irizarry was seen by
numerous witnesses as he engaged in this rampage, and was
caught behind the Lancaster County Courthouse still in possession
of the rifle.
…
On November 6, 2000, Irizarry was sentenced to a total aggregate
term of … 39 years, 3 months to 78 years, 6 months [in prison].
PCRA Court Opinion, 10/15/18, at 1-2 (footnote added). Irizarry did not file
any post-sentence motions. This Court affirmed a direct appeal of Irizarry’s
judgment of sentence. See Commonwealth v. Irizarry, 797 A.2d 373, (Pa.
Super. 2002) (unpublished memorandum). Irizarry did not seek allowance of
appeal. Thereafter, Irizarry filed several unsuccessful PCRA Petitions.
On May 29, 2018, Irizarry filed the instant Motion, contending that if
hair samples allegedly in the possession of the Lancaster Bureau of Police were
tested for DNA, the results would prove his innocence. The Commonwealth
filed a Response to lrizarry's Motion, stating that the alleged hair evidence
does not exist. The PCRA court, after appropriate notice, subsequently
dismissed Irizarry’s Motion without a hearing. Irizarry filed a timely appeal
and a Pa.R.A.P. 1925(b) Concise Statement.
Irizarry raises the following, sole issue for our review:
1. [Did] [t]he lower court abuse[] its discretion when it dismissed the
Motion for DNA testing that was filed under 42 Pa.C.S.A. § 9543.1[,]
[where] [Irizarry] filed the Motion for DNA testing of hairs that were
previously tested by a microscopic testing method now found to be
unreliable by the [Federal Bureau of Investigation] and the [United
-2-
J-S12035-19
States Department] of Justice[,] [and where] [Irizarry] filed the
Motion for DNA testing of those hairs[?]
Brief for Appellant at 3.
We review an order denying a motion for post-conviction DNA testing
as follows:
[T]he [PCRA] 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 [of the PCRA]. 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).
As we explained in Williams, supra,
[Section 9543.1] 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; [] (c) [the evidence was subject to the testing,
but newer technology could provide substantially more accurate
and substantially more probative results]; or [(d)] 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 [S]ection 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 [S]ection 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 [the] petitioner’s actual
-3-
J-S12035-19
innocence. From the clear words and plain meaning of 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 [the] 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).
In his brief, Irizarry baldly asserts that he complied with all requirements
of Section 9543.1(c), and, therefore, is entitled to relief. Brief for Appellant
at 9. However, our review of the record discloses that Irizarry failed to make
the requisite showing that the results of the testing would establish his
innocence. To this point, we agree with the sound reasoning of the PCRA
court:
Hair evidence played no role in lrizarry's conviction and was
clearly not an issue at trial.[6] The Lancaster Bureau of Police and
the District Attorney's Office have confirmed that they are not
presently in possession of any hair evidence pertaining to this
case, nor have they ever been in possession of hair evidence. Hair
samples simply never factored into this case as evidenced by a
thorough review of the record.
Even assuming, arguendo, that the hair evidence existed,
Irizarry failed to satisfy the prima facie requirements set forth in
[Section] 9543.1 necessary to entitle him to the requested DNA
testing. The PCRA statute [states that] … “DNA testing ‘shall not'
be ordered by the PCRA court if there is ‘no reasonable possibility
that the testing would produce exculpatory evidence' that ‘would
establish ... actual innocence of the offense for which the applicant
was convicted.'" In re Payne, 129 A.3d 546, 555-56 (Pa. Super.
2015). Irizarry claims that DNA testing of alleged hair evidence
-4-
J-S12035-19
will establish his actual innocence of the attempted murder for
which he was convicted. This bald assertion is entirely [without
merit,] as it would require this [c]ourt to ignore the overwhelming
evidence of his guilt and conclude that DNA testing would have
changed the jury's verdict. At trial, the Commonwealth presented
over half a dozen eye-witnesses who positively identified Irizarry
as the shooter. See, [e.g.], N.T., Trial, Vol. 1 at 84; Vol. 2 at
258, 304, 326; Vol. 3 at 359-60, 38 1-82, 388. Additionally,
Irizarry, when captured just moments after the shooting, was still
in possession of the rifle used to shoot the officer. Id. at Trial,
Vol. 3 at 387-88, 394-95. It is evident that even a perfunctory
review of the overwhelming evidence of guilt in the present case
reveals that there is no reasonable possibility that the testing
requested would produce exculpatory evidence that would
establish lrizarry's actual innocence in this case[,] as required by
[S]ection 9543.1.
[FN 6] The word ‘‘hair'' is used exactly three times during
lrizarry's four-day trial. The first mention is by an eye-
witness, Iris Bello, who twice referred to the shooter as
having ‘‘short hair." N.T., Vol. 2 at 154, 156. The only
other reference to the word ‘‘hair'' was in the prosecutor's
closing statement to the jury. When discussing the fact
that the shooter consciously fired [multiple] rounds from
the assault rifle at a police officer[,] which required six and
three-quarter pounds of pressure to pull the trigger, the
assistant district attorney noted this was not a ‘‘hair''
trigger situation. Id. at Vol.4 at 654.
PCRA Court Opinion, 10/15/18, at 5-6 (footnote in original).
Accordingly, we discern no error or abuse of discretion by the PCRA court
and conclude that the PCRA court properly dismissed Irizarry’s Motion.
Order affirmed.
-5-
J-S12035-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/16/2019
-6-