Com. v. Jones, R. ( 2015 )

J. S40013/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
RAYSHAWN TAQUAN JONES, : No. 1312 WDA 2014
:
Appellant :
Appeal from the PCRA Order, June 30, 2014,
in the Court of Common Pleas of Westmoreland County
Criminal Division at No. CP-65-CR-0003475-2009
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 9, 2015
Rayshawn Taquan Jones appeals from the order dismissing his pro se
petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. We affirm.
Appellant and his accomplice, Kalell McCord, were involved in a
“shoot-out” with the victim, Matthew Johnson, on a public street in
New Kensington, Pennsylvania on July 21, 2009. Appellant was arrested and
charged with criminal attempt-criminal homicide, aggravated assault, and
simple assault.1 Timothy Dawson, Esq., was appointed as counsel for
appellant. A five-day jury trial was held on June 20-24, 2011.
* Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 901(a), 2702(a)(1), 2701(a)(1), respectively.
J. S40013/15
At trial, Johnson testified that he was visiting his girlfriend’s brother’s
house. Johnson left the house to sell a 9mm gun. As he was walking, he
saw appellant and McCord on Catalpa Street. Both men were armed. (Trial
transcript, at 176-186.) Johnson testified that he made eye contact with
both men who went behind a yellow Hummer and then fired shots at him.
Johnson hid behind the car and fired two shots back. Johnson then got up,
fired two shots, and started to run. Johnson had no bullets left and tried to
run back to the house but his leg bones were shattered and he fell on the
sidewalk against a fence. McCord fled the scene. Appellant approached
Johnson and, ignoring Johnson’s plea not to shoot him, fired two bullets into
him at point blank range, hitting him in the neck and stomach. Appellant
then fled the scene. Johnson survived and identified appellant as the man
who shot him.
McCord also testified. He testified that he and appellant were involved
in a shootout with Johnson. McCord did not know who fired first. He
testified that once he saw Johnson go down, he “took off running.” (Id. at
246.)
An eyewitness testified that she observed a man laying down
screaming “don’t shoot me. Please don’t kill me.” (Id. at 467.) She saw
another person walk up and fire several rounds into him. (Id. at 468.) The
witness was able to identify appellant as the shooter.
-2-
J. S40013/15
The jury heard evidence that the victim, Johnson, had pending felony
charges for allegedly selling $20 in crack cocaine, and that the
Commonwealth offered him a deal on his pending charges in exchange for
his testimony against appellant. (Id. at 192, 200, 206.) The jury also
heard that appellant’s accomplice, McCord, received a deal in exchange for
his testimony against appellant whereby he would be permitted to plead
guilty to aggravated assault instead of attempted homicide and that he
would receive a sentence of one year less one day to two years less two
days instead of fifteen years and would be paroled at the time when he
entered his guilty plea. (Id. at 220, 266-267, 270.)
The jury found appellant guilty of all charges. Appellant was
sentenced to a term of imprisonment of 18 years to 36 years. Thereafter,
appellant filed timely post-sentence motions challenging the weight and
sufficiency of the evidence and seeking modification of his sentence. The
trial court denied the motions, and appellant appealed to this court which
affirmed the judgment of sentence on October 19, 2012. Commonwealth
v. Jones, No. 343 WDA 2012, unpublished memorandum per curiam
(Pa.Super. filed October 19, 2012). Appellant filed a petition for allowance
of appeal which was denied on September 26, 2013.
Appellant filed a pro se PCRA petition on December 13, 2013.
(Docket #101.) In it, he set forth the following two grounds: (1) the
Commonwealth committed selective prosecution; and (2) the
-3-
J. S40013/15
Commonwealth failed to provide the defense with reasonable notice prior to
trial of its intention to present character evidence of “other crimes, wrongs,
or acts.”2
On December 31, 2013, the trial court appointed PCRA counsel,
James H. Robinson, Esq., and directed him to either file an amended PCRA
petition or a Turner/Finley3 “No Merit” letter. (Docket #102.)
On May 21, 2014, Attorney Robinson filed a Turner/Finley “No Merit”
letter and a petition to withdraw. PCRA counsel addressed both issues
appellant raised in his pro se PCRA petition. PCRA counsel set forth in detail
the nature of his review (which included interviews of prior counsel, review
of the transcripts, appellant’s case file, and the pleadings), cited appropriate
case law, provided an issue-by-issue analysis of why each issue lacked merit
and a conclusion that there were no viable issues under the PCRA which
would afford relief. Counsel sent appellant a copy of the petition and the
brief and advised him of his right to continue pro se or hire a private
attorney. On June 30, 2014, the PCRA court, after conducting its own
independent evaluation of the record, agreed that appellant raised no
genuine issues and granted Attorney Robinson permission to withdraw from
representation. (Docket #109.)
2
Appellant did not pursue the second issue in this appeal.
3
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Pennsylvania
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
-4-
J. S40013/15
Appellant raises the following issues on appeal:
A. WHETHER APPELLANT IS BEING HELD IN
CUSTODY AT THE STATE CORRECTIONAL
INSTITUTION AT ALBION IN VIOLATION OF
THE CONSTITUTION AND LAWS OF THE
UNITED STATES AND THE COMMONWEALTH
OF PENNSYLVANIA BY THE COMMONWEALTH
ENGAGING IN SELECTIVE PROSECUTION BY
SOLELY CHARGING THE PETITIONER?
B. WHETHER APPELLANT WAS DENIED
MEANINGFUL PARTICIPATION IN THE PCRA
PROCESS?
Appellant’s brief at 4.
Our standard of review for an order denying post-conviction relief is
whether the record supports the PCRA court’s determination, and whether
the PCRA court’s determination is free from error. Commonwealth v.
Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings
will not be disturbed unless there is no support for the findings in the
certified record. Id.To prevail on a petition for PCRA relief, a petitioner must plead and
prove, by a preponderance of the evidence, that his or her conviction or
sentence resulted from one or more of the circumstances enumerated in
42 Pa.C.S.A. § 9543(a)(2). These circumstances include a constitutional
violation or ineffectiveness of counsel which “so undermined the
truth-determining process that no reliable adjudication of guilt or innocence
could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(i) and (ii). The
petitioner must also plead and prove by a preponderance of the evidence
-5-
J. S40013/15
that the claims of error have not been previously litigated or waived and that
“the failure to litigate the issue prior to or during trial, during unitary review
or on direct appeal could not have been the result of any rational, strategic
or tactical decision by counsel.” 42 Pa.C.S.A. § 9543(a)(3) and (4). An
issue has been waived “if the petitioner could have raised it but failed to do
so before trial, at trial, on appeal or in a prior state post-conviction
proceeding.” 42 Pa.C.S.A. § 9544(b). An issue has been previously litigated
if “the highest appellate court in which the petitioner could have had review
as a matter of right has ruled on the merits of the issue.” 42 Pa.C.S.A.
§ 9544(a)(2).
First, appellant complains that his rights of due process and equal
protection of law were violated by the disparate treatment that he received
vis-à-vis that afforded to McCord and Johnson. He contends that all three
men were involved in the shootout but he was the only one who was
selected to be prosecuted. He argues that McCord and Johnson all faced
similar charges based on the same facts and evidence; yet, the
Commonwealth permitted them to enter plea bargains in exchange for their
testimony. Appellant asserts that the disparate treatment by the
prosecution constituted an arbitrary act and violated his constitutional
entitlement to fundamental fairness, due process, and equal protection of
the law.
-6-
J. S40013/15
A selective prosecution claim is an independent assertion that the
prosecutor has brought a charge for reasons forbidden by the equal
protection clause of the Constitution. U.S. v. Armstrong, 517 U.S. 456(1996). The pre-trial motion to dismiss has been the accepted procedure for
raising this claim. Commonwealth v. Butler, 601 A.2d 268 (Pa. 1991).
Appellant did not raise this claim before the trial court, and he has not raised
it in the rubric of ineffective assistance of counsel. Thus, it has been waived.
Assuming arguendo the issue was not waived, appellant has failed to
allege that the Commonwealth’s discriminatory selection of him for
prosecution was based on any “impermissible grounds” such as race,
religion, the exercise of some constitutional right, or any other such
arbitrary classification. Commonwealth v. Mulholland, 702 A.2d 1027,
1034 (Pa. 1997). Appellant’s conduct was clearly more culpable than that of
the other two participants. After the initial exchange of gunfire, Johnson lay
gravely injured on the sidewalk, and appellant’s co-defendant, McCord, fled
the scene. Instead of fleeing, appellant approached Johnson, and despite
Johnson’s pleas “don’t shoot me” and “please don’t kill me,” shot him at
close range in the neck and stomach. (Trial transcript, 6/23/11 at 467.)
The Commonwealth has the prerogative to recommend leniency in exchange
for truthful testimony. Commonwealth v. Childress, 799 A.2d 805-7-
J. S40013/15
(Pa.Super. 2002). Johnson’s and McCord’s agreement to testify against
appellant was a valid reason for offering them leniency.4
Next, appellant contends that he was denied due process because the
PCRA court permitted counsel to withdraw without first amending appellant’s
“inarticulately drafted [pro se] PCRA petition.” (Appellant’s brief at 11.)
This issue is also waived. Pa.R.Crim.P. 907(1) requires the petitioner
to respond to the PCRA court’s proposed dismissal within 20 days. The
PCRA court issued its notice of dismissal on June 10, 2014, in which it
concluded that appellant failed to raise any meritorious claims and the issues
raised lacked genuine arguable merit. The PCRA court notified appellant
that he had 20 days to respond to the Rule 907 notice. (Docket #7.) If
appellant wished to challenge counsel’s failure to amend his PCRA petition,
appellant was required to respond to the proposed dismissal within 20 days
of the dismissal notice. Because he did not, the issue was waived.
Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009).
Order affirmed.
4
Unlike appellant herein, the appellant in Childress framed his selective
prosecution claim as a claim of ineffective assistance of counsel under
§ 9543(a)(2)(ii).
-8-
J. S40013/15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/9/2015
-9-