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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANNY RAY SWIFT :
:
Appellant : No. 1094 WDA 2021
Appeal from the PCRA Order Entered August 18, 2021
In the Court of Common Pleas of Erie County
Criminal Division at CP-25-CR-0003503-2016
BEFORE: NICHOLS, J., MURRAY, J., and KING, J.
MEMORANDUM BY MURRAY, J.: FILED: July 12, 2022
Danny Ray Swift (Appellant) appeals from the order dismissing his first
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
In June 2017, a jury found Appellant guilty of seven counts of cruelty to
animals, three counts of animal fighting, and one count each of possession of
animal fighting paraphernalia and possession of an instrument of crime.1
Appellant’s retained trial counsel was Anthony H. Rodrigues, Esquire (Attorney
Rodrigues or trial counsel).
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1See 18 Pa.C.S.A. § 5511(c)(1), repealed by Act of June 28, 2017, P.L. 215,
No. 10 (Act 10), § 3; 18 Pa.C.S.A. § 5511(h.1), repealed by Act 10, § 3; 18
Pa.C.S.A. § 5511(h.2), repealed by Act 10, § 3; 18 Pa.C.S.A. § 907(a).
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At trial, the Commonwealth presented evidence that after receiving a
report of pit bull dogs fighting in Appellant’s back yard, police seized 14 dogs
from Appellant’s property; each dog required considerable veterinary care.
After executing a search warrant, police discovered dog fighting paraphernalia
on Appellant’s property. The Commonwealth also presented testimony from
an expert witness in the field of animal fighting/animal cruelty, Deborah
Jugan, Esquire (Jugan). She opined that the evidence indicated Appellant was
engaged in dog fighting. Finally, according to a separate Commonwealth
expert in the field of computer forensics, Erie County Detective Anne Styn
(Detective Styn), Appellant had previously uploaded comments on an internet
website that inculpated him in dog fighting.
Appellant presented the testimony of several witnesses, including
Thomas Guffey (Guffey), who the trial court qualified as an expert in animal
fighting.2 Guffey disagreed with Jugan’s testimony. Guffey stated he had
viewed Appellant’s property, and opined that Appellant’s dogs were
appropriately cared for, and Appellant engaged them in agility training, not
fighting.
Following his conviction on August 3, 2017, the trial court sentenced
Appellant to an aggregate of 10 – 20 months of incarceration, followed by
____________________________________________
2 Guffey, a resident of the State of Virginia, had previously worked as a
confidential informant for several law enforcement agencies, and testified in
animal fighting cases. See N.T., 6/22/17, at 10-13.
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eight years of probation. The court also ordered Appellant to pay restitution
of approximately $54,700. This Court affirmed Appellant’s judgment of
sentence, and the Supreme Court of Pennsylvania denied allowance of appeal.
Commonwealth v. Swift, 195 A.3d 996 (Pa. Super. 2018) (unpublished
memorandum), appeal denied, 202 A.3d 40 (Pa. 2019).
On February 12, 2020, Appellant timely filed the instant, counseled
PCRA petition. Appellant raised numerous claims of trial counsel’s
ineffectiveness, including the following:
Trial counsel erred in failing to object to the information that was
taken from the internet, purported to be comments posted by
[Appellant (hereinafter, the internet posts)], and failed to cross
examine the Commonwealth’s witness[, i.e., Detective Styn,]
regarding how the Commonwealth decided that the screen name
[under which the internet posts were submitted] belonged to
[Appellant].
PCRA Petition, 2/12/20, ¶ 20.
Pertinently, the PCRA court explained:
At an in camera pretrial hearing held at [Appellant’s] behest to
address the authentication of the internet posts, the
Commonwealth presented the testimony of Detective [] Styn as
an expert witness in the field of computer forensics. See [N.T.,
6/19/17, at] 38-60. Detective Styn explained her method for
authenticating computer documents:
Specifically with user names online, I would go onto a
website, be able to look for indicators and identifiers that
relate directly to the individual that I believe is posting
these. I would look at user names specifically, the posts
that were created, … [and] what kind of material was found
within the post itself to be able to link them to an individual.
Id. at 44. Detective Styn then testified step-by-step how she had
used the method to connect [Appellant] to the user name
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“swiftnhbfighter” and the internet posts at issue. Id. at 44-59;
66-70. Detective Styn explained she had located an online
account with the user name “swiftnhbfighter” on the website
mixedmartialarts.com, a/k/a The Underground. Id. at 45.
Detective Styn reviewed the [internet] posts made by
swiftnhbfighter, one of which included a thread titled “Dan Swift
versus Kenny Savercool.” Id. at 46. In the thread, user
swiftnhbfighter posted, “Dan Swift versus Kenny Savercool, this
was my last tournament as a purple belt. This was a sub only
tourney in West Virginia.” Id. Swiftnhbfighter also included a link
to a YouTube video of a mixed martial arts (MMA) fight between
[Appellant] and Kenny Savercool. Id. Another post by
swiftnhbfighter contained a reference to the fighter name of
“Pennsylvania Hitman,” which led Detective Styn to [Appellant’s]
MMA biography. Id. at 50. The information on the biography
included [Appellant’s] birthdate, height, weight, and hometown of
Erie, Pennsylvania. Id. This information was corroborated on
another MMA website, sherdog.com. Id. Detective Styn testified
the information on the biographies matched [Appellant’s]
biographical information. Id.
Further searching led Detective Styn to four separate
posts related to dog fighting made by the user
swiftnhbfighter in 2014. Id. at 52-59. Detective Styn testified
the [internet] posts referencing dog fighting were deleted
on August 8, 2016, less than a week after [Appellant] was
arrested. Id. at 55-59[; see also id. at 56, 61-62 (explaining a
website user must enter their username and password to edit or
delete a post; the website owner cannot).] Detective Styn
concluded:
Based on my training and experience, my conclusion is that
swiftnhbfighter is [Appellant] based off the posts from
December 2, 2011, at 5:55 p.m. where a video was provided
of [Appellant] … in a fight with Kenny Savercool …, and
another post where swiftnhbfighter refers to a fighter name
of Pennsylvania Hitman, and then finding out that
Pennsylvania Hitman is the fighter name for [Appellant.]
Id. at 59.
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Notice of Intent to Dismiss PCRA Petition, 9/23/20, at 19-20 (emphasis
added). The trial court had found the internet posts possessed an indicia of
reliability and admitted them.
Appellant’s PCRA counsel filed a supplemental PCRA petition on March
30, 2020, raising additional claims of ineffectiveness related to trial counsel
and Appellant’s direct appeal counsel. The Commonwealth filed a brief in
opposition on June 8, 2020.
On September 23, 2020, the PCRA court issued its 22-page Pa.R.Crim.P.
907 notice of intent to dismiss, opining that all of Appellant’s claims lacked
merit. On October 13, 2020, Appellant filed objections to the Rule 907 notice.
Appellant successfully requested that the PCRA court grant him additional time
to “obtain[] an affidavit from his expert witness, [] Guffey, that would prove
[Guffey] made the comments on the internet,” i.e., under the username
“swiftnhbfighter.” Objections, 10/13/20, at ¶ 4.
On March 12, 2021, Appellant filed a supplement to his PCRA petition
with an attached affidavit signed by Guffey (the Affidavit). The Affidavit
provided, in relevant part, as follows:
In connection with my employment, I worked on a sting in
West Virginia that lead [sic] me to find [Appellant] as a person
who could give me assistance with finding individuals who were
participating in dog fighting. As part of that sting, [Appellant]
agreed to give me his login information for [the website
mixedmartialarts.com.] …
At [Appellant’s] trial, the prosecution provided certain
postings from that website that were posted under [Appellant’s]
login information, but I was the person that posted the
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comments regarding dog fighting and, in fact, [Appellant]
specifically told me he didn’t want anything to do with dog
fighting. I personally posted the information referred to at trial
that was alleged to be [Appellant’s] postings.
Prior to trial, I told [trial counsel] … that I made those
postings and that he could ask me questions pertaining to my
postings at trial. He did not ask me any questions regarding this
issue at [Appellant’s] trial.
Supplement to PCRA Petition, 3/12/21, Ex. 1 (the Affidavit) (emphasis added;
paragraph numbering and some breaks omitted). The Commonwealth filed a
brief in opposition on June 24, 2021.
On July 16, 2021, the PCRA court issued a second Rule 907 notice. The
court rejected all of Appellant’s claims, including the claim related to Guffey.
Appellant did not file a response. On August 18, 2021, the PCRA court denied
relief. This timely appeal followed. Appellant and the PCRA court complied
with Pa.R.A.P. 1925. Appellant presents the following question for our review:
[Whether] the [PCRA] court erred in failing to find that trial
counsel was ineffective in failing to object to and/or challenge the
internet message board postings purported to be made by
[Appellant,] especially in light of the Affidavit presented to the
court signed by Thomas Guffey[?]
Appellant’s Brief at 1.
When reviewing an order dismissing a PCRA petition, we examine
whether the determination of the PCRA court is supported by the record and
free of legal error. Commonwealth v. Maxwell, 232 A.3d 739, 744 (Pa.
Super. 2020) (en banc). We review the PCRA court’s decision for an abuse of
discretion. Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013). We
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“view the evidence of record in a light most favorable to the Commonwealth,
as the prevailing party below.” Commonwealth v. Flor, 259 A.3d 891, 902
(Pa. 2021) (citation omitted).
Appellant argues trial counsel was ineffective for “failing to object to
and/or challenge the internet … postings purported to be made by
[Appellant].” Appellant’s Brief at 6. The Pennsylvania Supreme Court has
explained that to be
entitled to relief on an ineffectiveness claim, a PCRA petitioner
must establish: (1) the underlying claim has arguable merit; (2)
no reasonable basis existed for counsel’s action or failure to act;
and (3) he suffered prejudice as a result of counsel’s error, with
prejudice measured by whether there is a reasonable probability
the result of the proceeding would have been
different. Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d
1111, 1127 (Pa. 2011) (employing ineffective assistance of
counsel test from Commonwealth v. Pierce, 515 Pa. 153, 527
A.2d 973, 975-76 (Pa. 1987)). Counsel is presumed to have
rendered effective assistance. Additionally, counsel cannot be
deemed ineffective for failing to raise a meritless claim. Finally,
because a PCRA petitioner must establish all the Pierce prongs to
be entitled to relief, we are not required to analyze the elements
of an ineffectiveness claim in any specific order; thus, if a claim
fails under any required element, we may dismiss the claim on
that basis.
Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015) (some internal
citations omitted).
Appellant emphasizes Guffey’s statement in the Affidavit that he, not
Appellant, uploaded the internet posts to the MMA website. Appellant’s Brief
at 7-8; see also Supplement to PCRA Petition, 3/12/21, Ex. 1 (the Affidavit).
Appellant complains that at trial, counsel “did not specifically ask Mr. Guffey
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about whether he had made any posts under [Appellant’s] name.” Appellant’s
Brief at 7. Appellant claims:
If [trial] counsel had elicited the information included by Mr.
Guffey in his [A]ffidavit, it would not have been cumulative, it
would not have been used solely to impeach Mr. Guffey’s
credibility, and clearly could have changed the jury’s decision in
this case.
Id. at 8.
The PCRA, 42 Pa.C.S.A. § 9543(a)(2)(vi), permits relief where the
petitioner proves by a preponderance of the evidence that the conviction or
sentence resulted from the “unavailability at the time of trial of exculpatory
evidence that has subsequently become available and would have changed
the outcome of the trial if it had been introduced.” Id.; see also
Commonwealth v. Small, 189 A.3d 961, 968 (Pa. 2018). Here, the record
reveals Detective Styn detailed to the jury at trial her investigation of the
internet posts. See N.T., 6/20/17, at 200-15, 224-28. One of the posts,
uploaded by user “swiftnhbfighter” and admitted as Commonwealth Exhibit
35, stated:
That’s awesome you owned [a certain dog’s] mother. My bitch off
Geachiman is a straight murdered. Killed three already everyone
of the rolls didn’t even go ten minutes. She looks a lot like Geach.
I’m sending her out of the country to be shown soon. Hopefully it
goes good. She’s a big bitch though. She’s 50-52 on the chain.
Looking like we will have to show her at 46 or 47, maybe 45. My
man … that’s showing her is a beast at conditioning, so I’m gonna
let him make the final call.
Id. at 212. Detective Styn testified this post, like the other internet posts
implicating dog fighting, were edited by user swiftnhbfighter merely six days
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after Appellant’s arrest, and replaced with three periods. Id. at 209, 212,
215; see also id. at 203, 214, 218-19 (Detective Styn explaining that only a
website user, in possession of a username and password, can upload, edit, or
delete posts).
Trial counsel vigorously challenged authentication of the internet posts,
and cross-examined Detective Styn regarding them. See N.T., 6/19/17, at
60-66; N.T., 6/20/17, at 215-224, 228-31; see also Notice of Intent to
Dismiss PCRA Petition, 9/23/20, at 16 (“Trial counsel objected to and
thoroughly challenged the authentication of the internet [posts]”), and 17
(“During cross-examination, trial counsel exhaustively questioned Detective
Styn regarding how she had connected [Appellant] to the internet posts.”).
Detective Styn also agreed with trial counsel’s hypothetical that “someone
could have opened an account [on the MMA website] other than [Appellant]
under the name swiftnhbfighter[.]” N.T., 6/20/17, at 217; but see also id.
(Detective Styn clarifying: “[B]ut they would also have to open the account
back in 2011 and post that information in … 2014”).
Guffey testified for the defense regarding the internet posts. See N.T.,
6/22/17, at 72-88. On cross-examination concerning the meaning of the
language used in the internet post at Commonwealth Exhibit 35 (see supra),
Guffey responded: “I didn’t write it. I don’t know … what [swiftnhbfighter’s]
exact intentions were.” Id. at 64 (emphasis added); but see also id. (Guffey
stating on direct: “I’ve never seen any proof … that [Appellant] is the one
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that wrote those posts.”). The following exchange then occurred on cross-
examination, regarding the language of the internet post at Commonwealth
Exhibit 35:
Q. Schooling is dog fighting, correct?
A. Yes.
***
Q. So when a sentence says killed three already, every one of the
rolls didn’t even go ten minutes, that means that the dog
Geachiman killed three other dogs in a schooling exhibition,
correct?
A. Yes, sir.
Id. at 64-65.
The prosecutor also questioned Guffey about a separate internet post
by swiftnhbfighter, admitted as Commonwealth Exhibit 36:
Q. Okay. Let’s go to 36. Another post[, which states: “M]y
kennel had a few that we got out of the classified section that
people were giving … for free cause it was aggressive for whatever
the reason. We tried a few out and they won a match or two.[”]
Winning a match or two … [means] dog fighting, correct?
A. Could be, yes, sir.
Q. Could be? … Well, what else if it’s not dog fighting[;] … what
do you want to tell the jury it is now?
A. I … have no idea. I didn’t write the post.
Id. at 66-67 (emphasis added).
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Further, during Guffey’s testimony on direct examination, trial counsel
asked him: “Anything else you want to tell this jury, Mr. Guffey?” Id.
at 45 (emphasis added). Guffey responded:
I have testified against dog fighters numerous times. I’ve taken
down … Ed Faron. … He actually wrote books on how to repair
dogs after dog fighting. One of the biggest names in the game,
took him down. You know, 144 dogs seized. … They used my
testimony in court. I cannot stand a dog fighter. … They’re the
lowest form of person on earth.
Id. at 45.
Guffey never testified he authored any of the internet posts,
which is directly contrary to his statement in the Affidavit. Compare
id. at 64 (Guffey stating he “didn’t write” the post at Commonwealth Exhibit
35), and id. at 67 (Guffey stating he “didn’t write the post” at Commonwealth
Exhibit 36), with Supplement to PCRA Petition, 3/12/21, Ex. 1 (the Affidavit)
(Guffey claiming, “I was the person that posted the comments regarding dog
fighting.”). Accordingly, we are unpersuaded that Appellant was entitled to
relief under 42 Pa.C.S.A. § 9543(a)(2)(vi). To the contrary, we are persuaded
by the Commonwealth’s argument:
Throughout his arguments, Attorney Rodrigues routinely brought
up and argued that the [internet] postings the Commonwealth
intended to present could have been posted by another. Despite
this recurring argument, Attorney Rodrigues did not indicate once
that Mr. Guffey was in fact the poster. The Commonwealth would
argue that it is hard to believe that in over 100 pages of advocacy
associated with authentication of [the internet] posts that
Attorney Rodrigues did not indicate, hint at, or opine that he had
such knowledge if he in fact did. … If, in fact, [Guffey] had told
Attorney Rodrigues that he, not Appellant, made the postings,
[Guffey] could have disclosed that when asked fairly open ended
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questions about them. … Attorney Rodrigues could not have been
ineffective for failing to question Mr. Guffey regarding false
statements about which he was unaware.
Commonwealth Brief at 10-11.
Even if Appellant’s ineffectiveness claim had merit, he cannot prove he
was prejudiced by trial counsel’s failure to adequately question Guffey. The
Commonwealth presented such overwhelming evidence of Appellant’s guilt
that any resulting prejudice would not have altered the outcome of the trial.
See, e.g., Commonwealth v. Molina, 897 A.2d 1190, 1195 (Pa. Super.
2006) (a claim of defense counsel’s ineffectiveness fails to establish the
prejudice prong where evidence of defendant’s guilt was overwhelming
(citation omitted)); see also Treiber, supra (a petitioner cannot prevail on
a claim of ineffectiveness unless they prove all three prongs of the test). As
the PCRA court concluded,
Based upon a thorough review of the record, assuming Guffey had
testified at trial consistent with the recently-produced Affidavit,
[Appellant] failed to establish a reasonable probability that any
failure to present such testimony would have resulted in a
different outcome. There was no prejudice to [Appellant] in any
failure to present testimony of Guffey along the lines of the
contents of the Affidavit.
Second Notice of Intent to Dismiss, 7/16/21, at 6 (some capitalization
altered). We agree. Indeed, in previously affirming Appellant’s judgment of
sentence on direct appeal, this Court held the “evidence proving
[Appellant] guilty of the crimes charged was overwhelming.” Swift,
195 A.3d 996, at *15 (emphasis added; citation omitted). We adopt our prior
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reasoning here. See id. at **16-19 (emphasizing evidence of (a) the poor
condition and injuries of the 14 dogs found on Appellant’s property; (b)
Detective Styn’s testimony that Appellant authored the internet posts at issue
and deleted them shortly after his arrest, evidencing his consciousness of
guilt; (c) Appellant’s neighbors’ testimony describing seeing him train dogs by
having them jump and bite onto a rope hanging from a tree; and (d) Jugan’s
expert opinion that Appellant was engaged in dog fighting).
Based on the foregoing, the PCRA court did not abuse its discretion in
denying relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/12/2022
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