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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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



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         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

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      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

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     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.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 04/16/2019




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