J-S14014-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                    Appellee               :
                                           :
            v.                             :
                                           :
GEORGE SWISHER,                            :
                                           :
                    Appellant              : No. 687 EDA 2014

                  Appeal from the PCRA Order February 5, 2014,
                   Court of Common Pleas, Philadelphia County,
                 Criminal Division at No. CP-51-CR-0401801-1999

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                            FILED MARCH 02, 2015

      Appellant, George Swisher (“Swisher”), appeals from the order

denying his petition for relief, filed pursuant to the Post Conviction Relief Act,

42 Pa.C.S.A. §§ 9541-46 (“PCRA”), for DNA testing.         For the reasons that

follow, we affirm the order of the PCRA court.

      In this Court’s memorandum decision dated December 30, 2003, we

set forth the following statement of the facts established at trial in support of

Swisher’s convictions for two counts of second-degree murder, 18 Pa.C.S.A.

§ 2502, two counts of robbery, 18 Pa.C.S.A. § 3701, and one count each of

conspiracy, 18 Pa.C.S.A. § 903, and possession of an instrument of crime,

18 Pa.C.S.A. § 907:

            On the night of December 30, 1990, Swisher picked
            up his neighbor, Hector Alicea, from Alicea’s house,
            and the pair went to pick up a third friend, Jose
            Pagan. (N.T., 11/29/00, at 104). The trio then went
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          to pick up a black male at Frankford and Ontario
          Streets. (Id. at 105). Alicea did not know the black
          males’ full name but he knew him as “Mod.” “Mod”
          is a nickname for Jamod Rohn. (Id. at 106, 120).
          Alicea thought that the four were going to the 400
          block of Dauphin Street to retrieve Pagan’s gold
          chain. (Id. at 106-07). The men parked at Orkney
          and Dauphin Streets, around the corner from their
          destination of 429 W. Dauphin Street. (Id. at 108).
          The four walked up to the house, and Swisher stood
          next to the house in a vacant lot. (Id. at 108).
          Pagan knocked, and one of the victims, Luis
          Bermudez, came to the second-floor window. (Id. at
          108). Some words were exchanged and Bermudez
          came downstairs and opened the door. (Id. at 108).
          Bermudez walked upstairs, followed by Pagan,
          Swisher, Mod, and Alicea. (Id. at 109).

          When Alicea arrived at the second floor, he stood in
          the doorway and saw all of the others inside of the
          apartment, with Pagan and Bermudez speaking
          loudly in Spanish. Alicea testified that he did not
          know what they were saying because he does not
          speak Spanish. (Id. at 109). Alicea then heard a
          woman’s voice call out “June,” which is Pagan’s
          street name. (Id. at 110). Alicea then walked
          further into the apartment and saw Pagan with a
          small, black gun in his hand. Pagan was waiving the
          gun in the air, and when Alicea walked further into
          the apartment, Pagan waived the gun toward Alicea
          and directed Alicea to watch the door. (Id. at 111).
          Alicea served as the “look-out” and guarded the
          door. Pagan, Swisher, Rohn, and the victims, Luis
          Bermudez and Ivelisse Gonzalez, remained in the
          front bedroom. (Id. at 111). Alicea looked back
          from his front door post, and saw Bermudez in a
          facedown position, being tied up by Swisher. (Id. at
          112). Alicea resumed his look-out duties, then he
          turned around again and saw Rohn having sexual
          intercourse with Ivelisse Gonzalez. (Id. at 112-
          114). While Rohn was raping Ms. Gonzalez, Swisher
          fondled her breasts. (N.T., 11/30/00, at 14). Alicea
          turned back towards the front door, after which he



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               heard a gunshot in the front bedroom.          (N.T.,
               11/29/00, at 115).

               When he heard the gunshot, Alicea looked into the
               front bedroom again, and he saw Pagan turn toward
               Ivelisse Gonzalez with a gun in his hand and fire.
               (Id. at 115).     Shocked, Alicea stood frozen as
               Swisher, Rohn and Pagan ran past him to exit the
               building. (Id. at 116). Alicea followed and fled the
               building. (Id. at 116). The four got into [Swisher’s]
               vehicle and Swisher sped away.        (Id. at 116).
               Swisher drove Alicea home, but before arriving
               there, Mr. Pagan gave him one $100 [bill] and told
               him not to say anything about the night’s events or
               Pagan would kill Alicea or Alicea’s family. (Id. at
               116). Although first denying having any information
               about the shootings, on September 19, 1997, Alicea
               finally admitted to police that he has served as a
               look-out during the incident on December 20, 1990.

Commonwealth v. George Swisher, No. 2120 EDA 2002 (Pa. Super.

December 30, 2003) (unpublished memorandum).

      A jury convicted Swisher of the above-referenced crimes in November

2000, and in February 2001, the trial court sentenced him to a term of life in

prison on the murder convictions and two and one half to five years of

imprisonment on the possession of an instrument of crime and conspiracy

convictions.     This Court affirmed the judgment of sentence in December

2003 and our Supreme Court denied his petition for allocatur in May 2004.

Swisher has filed two previous petitions for PCRA relief, which the PCRA

court denied in 2005 and 2011, and these decisions were affirmed on

appeal.




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      The present PCRA petition, Swisher’s third, seeks relief in the form of

DNA testing of certain items of physical evidence from the crime scene,

including cigarette filters or butts, bed sheets, and the ligatures used to bind

the victims. In his pro se PCRA petition, Swisher contends that “had [he]

participated in the crimes alleged[,] his DNA would have [] saturated the

crime scene according to the testimony presented at trial.” PCRA Petition,

6/15/2012, at 5. As such, Swisher argues that the absence of his DNA on

the crime scene items “would exclude him of such participation that may

have been alleged.” Id. at 5a. The PCRA court dismissed Swisher’s present

PCRA petition without an evidentiary hearing, and this appeal followed.

      Post-conviction DNA testing falls under section 9543.1 of the PCRA,

and thus “[o]ur standard of review permits us to consider only whether the

PCRA court's determination is supported by the evidence of record and

whether it is free from legal error.” Commonwealth v. Brooks, 875 A.2d

1141, 1144 (Pa. Super. 2005). Section 9543.1 of the PCRA, governing post-

conviction DNA testing, provides in relevant part as follows:

      § 9543.1. Postconviction DNA testing

      (a) Motion.--

            (1) An individual convicted of a criminal offense in a
            court of this Commonwealth and serving a term of
            imprisonment or awaiting execution because of a
            sentence of death may apply by making a written
            motion to the sentencing court for the performance
            of forensic DNA testing on specific evidence that is




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          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 a verdict was rendered on or before
          January 1, 1995, or the applicant's 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.

                               *     *        *

     (c) Requirements.--In any motion under subsection (a), under
     penalty of perjury, the applicant shall:

          (1) (i) specify the evidence to be tested;

          (ii) state that the applicant consents to provide
          samples of bodily fluid for use in the DNA testing;
          and

          (iii) acknowledge that the applicant understands
          that, if the motion is granted, any data obtained
          from any DNA samples or test results may be
          entered into law enforcement databases, may be
          used in the investigation of other crimes and may be
          used as evidence against the applicant in other
          cases.

          (2) (i) assert the applicant's actual innocence of the
          offense for which the applicant was convicted;

                               *     *    *




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              (3) 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 of the offense
              for which the applicant was convicted;

                                   *     *      *

      (d) Order.--

                                   *     *      *

              (2) The 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 possibility that the
              testing would produce exculpatory evidence that:

              (i) would establish the applicant's actual innocence of
              the offense for which the applicant was convicted;

42 Pa.C.S.A. § 9543.1

      Sections 9543.1(c)(3) and (d)(2) require that a petitioner demonstrate

that there is a “reasonable possibility” that “favorable results of the

requested DNA testing ‘would establish’ the [petitioner’s] actual innocence of

the   crime    of   conviction.”    Brooks,     875   A.2d   at   1147   (quoting

Commonwealth v. Heilman, 867 A.2d 542, 546–547 (Pa. Super. 2005),

appeal denied, 583 Pa. 669, 876 A.2d 393 (2005). On prior occasions, this




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Court has held that the definition of “actual innocence” to be applied in this

context is that articulated by the United States Supreme Court in its opinion

in Schlup v. Delo, 513 U.S. 298 (1995), namely, that the newly discovered

evidence must make it “more likely than not that no reasonable juror would

have found him guilty beyond a reasonable doubt.”           Id. at 327; see

Commonwealth v. Conway, 14 A.3d 101, 109 (Pa. Super. 2011).               This

standard requires a reviewing court “to make a probabilistic determination

about what reasonable, properly instructed jurors would do,” if presented

with the new evidence. Schlup, 513 U.S. at 329.

      Accordingly, the mandates in sections 9543.1(c)(3) and (d)(2) require

the PCRA court to assess a petitioner’s request for DNA testing in light of the

trial record to see if there is a reasonable possibility that the testing could

produce exculpatory evidence to establish Appellant's actual innocence.

Commonwealth v. Williams, 35 A.3d 44, 49-50 (Pa. Super. 2012)

(quoting Commonwealth v. Smith, 831 A.2d 1194, 1196 (Pa. Super.

2005), appeal denied, 905 A.2d 500 (Pa. 2006)).       In this case, the PCRA

court made the required assessment, reviewing the evidence presented at

trial, including the testimony of two of his co-conspirators (Rohn and Alicea)

detailing Swisher’s involvement and participation in the events leading to

and following the two murders. Trial Court Opinion, 6/25/2014, at 4. Based

upon its review, the PCRA court indicated that “it seems as though [Swisher]

has mistakenly presumed that there was not an overwhelming amount of



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evidence in the record to otherwise tie him to the crime,”        Id.    The PCRA

court concluded that Swisher “has made no averments which might

demonstrate any possibility that favorable DNA testing results would

establish his innocence.” Id. at 5.

      Based upon our own review of the certified record, we agree with the

PCRA court that Swisher has not presented a prima facie case by

demonstrating   that   the   DNA   testing   of   specific   evidence,   assuming

exculpatory results, would establish his actual innocence. In Heilman, this

Court rejected a petitioner’s argument that the absence of his DNA at the

scene of a crime could conclusively absolve him of culpability, stating that

“[i]n DNA as in other areas, an absence of evidence is not evidence of

absence.”   Heilman, 867 A.2d at 547.        Whether or not this maxim holds

true in all instances, it is certainly the case with respect to the cigarette

filters/butts found at the crime scene – since the absence of Swisher’s DNA

on them would prove, at most, that he did not smoke at the crime scene.

Similarly, with respect to the bed sheets, there is no direct testimony that

Swisher ever came into contact with them, and thus the absence of his DNA

would not prove his absence from the crime scene.             Even if the testing

revealed the bed sheets had on them the DNA of some unknown third party

(i.e., other than the conspirators or the victims), such evidence would not be




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exculpatory for Swisher, since it would not establish the presence of this

other person at the time of the crimes.1

     Finally, with respect to the ligatures used to tie up the victims, there

was testimony at trial (from Alicea) that Swisher tied up Luis Bermudez,

N.T., 11/29/2000, at 112, and thus the absence of Swisher’s DNA on those

ligatures could possibly provide some evidence that would contradict Alicea’s

testimony on this point. Even if Swisher could demonstrate that he did not

tie up Bermudez, however, this would fall far short of establishing a prima

facie case of his actual innocence – since there is considerable other

evidence in the record to prove Swisher’s participation in the conspiracy to

rob and kill the victims.   Two participants in the conspiracy (Alicea and

Rohn) testified at trial that Swisher drove the four conspirators to and from

the crime scene, that he was in the bedroom during the rape and murders,

that he fondled the breasts of Ivelisse Gonzalez while Rohn raped her, and

that he agreed to keep quiet about the entire episode (in exchange for

$100).

     In sum, the trial record in its entirety demonstrates that DNA testing

could not result in any reasonable possibility of exculpatory evidence to

prove Swisher’s actual innocence.

     Order affirmed.


1
  In his PCRA Petition, Swisher indicates that there was a stain on the bed
sheets that did not match the DNA of any known samples. PCRA Petition,
6/15/2012, at 5.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/2/2015




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