J-S38015-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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