Com. v. Jones, D. ( 2016 )

J-S42002-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DEREK RUSSELL JONES,
Appellant No. 117 WDA 2015
Appeal from the PCRA Order June 15, 2011
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0000266-2003, CP-02-CR-0001438-
2003
BEFORE: SHOGAN, OTT, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED JUNE 14, 2016
Appellant, Derek Russell Jones, appeals from the order denying his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. We affirm.
The relevant facts underlying Appellant’s convictions were set forth by
the trial court as follows:
On December 15, 2002, three (3) men, including [Appellant],
entered Big Dawg’s bar in the Beechview section of Pittsburgh
and proceeded to play pool, at approximately 11:00 p.m.
Moments later, an argument was heard by Timothy Fritz, a
patron of Big Dawg’s that night. One of the person[s] identified
as being involved in the heated argument was [Appellant]. The
bartender, Jessica Foster, testified to receiving a complaint from
Rashad Jackson, another patron at the bar, that one of the three
men was carrying a gun. A witness Daniel Espy testified to
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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seeing [Appellant] carrying a gun in his waistband at this time. A
witness named Dorian Fancher identified Rashad Jackson and
Daniel Espy as the two others involved in the argument. Two
men identified only as ‘Joe’ and ‘Tank’ entered the bar and broke
up the argument in the pool room. The group of men, which
included [Appellant], w[as] asked to leave the establishment by
‘Joe’ and ‘Tank’. Pittsburgh Police came in response to a call by
the manager and shortly, thereafter, left [a]s the disturbance
had ended.
The group of men left the bar and went to the residence of
Corey Thomas in the Beechview neighborhood of Pittsburgh.
Keith Neil Ferguson testified that Jason Bottoms, [Appellant],
Alphonzo Peoples, and another person were also present in the
residence. Ferguson testified that they all made a decision to go
back to Big Dawg’s and fight. Ferguson also testified to hearing
[Appellant] say that he wanted to get a ‘burner’ (gun). Later that
same evening a group of people including [Appellant], Alphonzo
Peoples and another person w[as] seen entering Big Dawg’s bar
a second time.
A second argument ensued, which involved the same
people as earlier in the evening. Again, ‘Joe’ and ‘Tank’
proceeded to the pool room in the bar to break up the argument.
A fight then broke out which involved ‘Joe’ and ‘Tank’ along with
those participating in the argument. Fists were thrown and ‘Joe’
was knocked to the ground. Timothy Fritz then attempted [to]
grab ‘Joe’ but fell against a wall. Timothy Fritz heard a gunshot
fired. Timothy Fritz then identified a man standing on a barstool
with a gun. This man was identified as [Appellant]. At this time,
Jason Bottoms heard the deceased Rashad Jackson say ‘I’m Hit’.
Timothy Fritz then ran behind the other end of the bar, heard
another shot and moments later saw [Appellant] sweeping the
gun across the room. Mr. Fritz then saw [Appellant] fire a couple
shots into the ceiling. Fritz felt his arm fall to his side and
realized he had been shot. Timothy Fritz testified that it is
unlikely if he will ever get complete physical use of his hand back
as a result of the gunshot wound. [Appellant] fled the bar before
police arrived.
City of Pittsburgh police officer Richard Colaizzi arrived on
the scene of the shooting and found Dorian Fancher with a graze
wound on his head. Later, Pittsburgh Police Detective Magee
found two (2) copper jacket bullet fragments, five (5) 9mm
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casings, and one (1) .22 caliber casing. There were two bullet
holes in the ceiling but the officer was not able to retrieve any
bullet fragments from those holes. Jason Bottoms testified that
[Appellant] was known to carry a .22 caliber gun in his
waistband.
On December 17, Wanda Fitzgerald gave permission to
Pittsburgh police officer George Trosky to search her residence.
During the search [Appellant] was found hiding in the basement.
In the search of Wanda Fitzgerald’s residence a .22 revolver was
found behind the furnace in the basement by Officer Jesse
Meyers. Deborah Chalkos, a criminalist at the Allegheny County
Crime Lab, testified that the gun found at Mrs. Fitzgerald’s home
matched the .22 cartridge fired at Big Dawg’s. Also, she testified
that the bullet recovered from Rashad Jackson’s body had the
same rifling characteristics as the type of gun recovered when
[Appellant] was arrested. The bullet examined by Deborah
Chalkos had a distinctive brass-wash as did the .22 cartridge
that was recovered at the scene of Big Dawg’s.
Trial Court Opinion, 12/30/05, at 2-5 (internal citations omitted).
On October 22, 2003, Appellant pled nolo contendere to one count of
criminal homicide, which, following a degree-of-guilt hearing, was graded as
third-degree murder. Appellant pled guilty to one count of persons not to
possess a firearm and one count of firearms not to be carried without a
license. Appellant then proceeded to a bench trial on two charges of
aggravated assault and one count of conspiracy to commit third-degree
murder. At the conclusion of the bench trial, Appellant was found guilty of
one count of aggravated assault and one count of conspiracy. Following all
of these convictions, the trial court sentenced Appellant to an aggregate
term of thirty-one to sixty-two years of incarceration.
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Appellant filed a timely appeal and on October 24, 2006, this Court
affirmed Appellant’s judgment of sentence, and the Pennsylvania Supreme
Court denied further review on April 3, 2007. Commonwealth v. Jones,
80 WDA 2004, 913 A.2d 942 (Pa. Super. filed October 24, 2006)
(unpublished memorandum), appeal denied, 591 Pa. 724 (Pa. 2007).
Appellant filed a timely PCRA petition on May 12, 2008.1 The PCRA court
appointed counsel who filed a Turner/Finley2 no-merit letter and requested
to withdraw. The PCRA court permitted counsel to withdraw and dismissed
Appellant’s PCRA petition June 15, 2011.
Appellant filed a timely pro se notice of appeal on July 12, 2011.
However, Appellant’s pro se appeal form was deemed incomplete, and the
Allegheny County Clerk of Records, Criminal Division, directed Appellant to
amend his notice of appeal and add the information that was missing.
Letter, 7/13/11. The Superior Court Office of the Prothonotary directed the
Allegheny County Clerk of Records to return the appeal to Superior Court
once Appellant made the requested amendments. Letter, 10/5/11.
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1
As noted, the Pennsylvania Supreme Court denied Appellant’s petition for
allowance of appeal on April 3, 2007. Appellant’s judgment of sentence
became final ninety days later on July 2, 2007, when the time for pursuing a
writ of certiorari in the United States Supreme Court expired. 42 Pa.C.S. §
9545(b)(3); United States Supreme Court Rule 13. Appellant then had one
year, until July 2, 2008, to file a timely PCRA petition. 42 Pa.C.S. §
9545(b)(1).
2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Appellant avers that he never received notice that his appeal form was
incomplete. Appellant’s Brief at 6. Appellant subsequently filed a second
notice of appeal on March 21, 2012, and a second PCRA petition on August
14, 2014. The PCRA court appointed counsel, and it appears that the
duplicative PCRA petition and appeal were dismissed. Order, 4/28/15. This
enabled Appellant to amend and proceed with his timely-filed July 12, 2011
appeal that had never been disposed of and remained pending before this
Court. While this procedural history is convoluted, we are satisfied that
Appellant filed a timely appeal from the June 15, 2011 order denying his first
PCRA petition. The matter is now ripe for disposition.
On appeal, Appellant raises the following issues for this Court’s
consideration:
1. Did the trial court err in denying Appellant’s PCRA petition
since Appellant’s nolo contendere plea to homicide at 266-2003
was involuntary since trial counsel [Robert] Foreman was
ineffective for misrepres[e]nting the factual circumstances of the
case and failing to inform Appellant that there was no evidence
which would have supported voluntary or involuntary
manslaughter verdicts; if Appellant had been so informed, he
would not have pled to the homicide charge?
2. Did the trial court err in denying Appellant’s PCRA petition
since trial counsel [Robert] Foreman was ineffective for coercing
Appellant to waive his right to a jury trial?
Appellant’s Brief at 3 (full capitalization omitted).
Our standard of review of a PCRA court’s denial of a petition for
collateral relief is set forth as follows:
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“Our review of a PCRA court’s decision is limited to
examining whether the PCRA court’s findings of fact are
supported by the record, and whether its conclusions of law are
free from legal error.” Commonwealth v. Hanible, 612 Pa.
183, 204, 30 A.3d 426, 438 (2011) (citing Commonwealth v.
Colavita, 606 Pa. 1, 21, 993 A.2d 874, 886 (2010)). We view
the findings of the PCRA court and the evidence of record in a
light most favorable to the prevailing party. Id. . . . “The PCRA
court’s credibility determinations, when supported by the record,
are binding on this Court; however, we apply a de novo standard
of review to the PCRA court’s legal conclusions.”
Commonwealth v. Roney, 622 Pa. 1, 16, 79 A.3d 595, 603
(2013).
Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).
To plead and prove ineffective assistance of counsel, a petitioner must
establish: (1) that the underlying issue has arguable merit; (2) counsel’s
actions lacked an objective reasonable basis; and (3) actual prejudice
resulted from counsel’s act or failure to act. Commonwealth v. Stewart,
84 A.3d 701, 706 (Pa. Super. 2013) (en banc). Failure to establish any one
of these prongs will defeat an ineffectiveness claim. Mason, 130 A.3d at
618.
Appellant first argues that his nolo contendere plea to homicide was
involuntary because his plea counsel never informed him that the evidence
would not support a conviction for voluntary or involuntary manslaughter.
Appellant’s Brief at 23. We find that Appellant’s argument is speculative and
unsupported by the record.
As noted above, Appellant and his cohorts engaged in a heated
altercation with another group at Big Dawg’s bar. N.T., 10/22-23/03, at 46-
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50. The altercation became physical and shots were fired. Id. at 50.
Following the initial gunshots, Rashad Jackson suffered a fatal gunshot
wound. Id. at 53, 185. More shots were fired, and witness Timothy Fritz
saw Appellant firing his weapon into the ceiling. Id. at 56. Thus, while the
witness saw Appellant fire his weapon, he did not see Appellant shoot
Rashad Jackson.
In arguing the degree of guilt issue, Appellant’s counsel asserted that
Appellant’s conduct was in self-defense or at worst, it was reckless; i.e., he
had no intent to kill. N.T., 10/22-23/03, at 377. Thus, contrary to
Appellant’s argument on appeal, the defense strategy had the potential to
cause the trial court to grade the homicide as voluntary manslaughter. See
Commonwealth v. Bracey, 795 A.2d 935, 947 (Pa. 2001) (discussing lack
of intent to kill and imperfect self-defense resulting in a voluntary
manslaughter verdict). Simply stated, a verdict of manslaughter was
possible. The fact that the trial court ultimately graded the homicide as
third-degree murder does not render counsel ineffective. See
Commonwealth v. Barnett, 121 A.3d 534, 540 (Pa. Super. 2015)
(explaining that counsel’s decisions will be considered reasonable if they
effectuated his client’s interests, and this Court does not employ a hindsight
analysis in comparing trial counsel’s actions with other efforts he may have
taken).
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Moreover, Appellant stated on the record that he was aware the
homicide charge could be graded at levels that varied from involuntary
manslaughter to first-degree murder. N.T., 10/22-23/03, at 5. Therefore,
Appellant knew that he was subject to a wide range of criminal culpability
and possible sentences. Id. at 5-9. Appellant cannot reasonably argue that
a conviction for voluntary or involuntary manslaughter was impossible and
that he was induced into entering an involuntary plea on this basis.
Appellant’s argument that counsel was ineffective for failing to inform him
that he had “no chance” of the trial court grading the homicide as voluntary
or involuntary manslaughter is meritless. Appellant’s Brief at 29.
Accordingly, Appellant’s first claim of ineffective assistance of counsel fails.
Stewart, 84 A.3d at 706.
Next, Appellant argues that trial counsel was ineffective because he
coerced Appellant into waiving his right to a jury trial. Appellant’s Brief at
29. Appellant claims that his trial counsel told him that counsel was friends
with the judge. Id. at 31. Appellant avers that counsel represented to him
that if he pled guilty, he would receive a lesser sentence, but if he opted for
trial, he would be sentenced to life in prison. Id. After review, we conclude
this issue lacks merit.
When a criminal defendant opts to waive his right to a jury trial:
The judge shall ascertain from the defendant whether this is a
knowing and intelligent waiver, and such colloquy shall appear
on the record. The waiver shall be in writing, made a part of the
record, and signed by the defendant, the attorney for the
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Commonwealth, the judge, and the defendant's attorney as a
witness.
Pa.R.Crim.P. 620.
As noted above, Appellant waived his right to a jury trial by pleading
nolo contendere on the homicide charge, pleading guilty to the firearms
violations, and selecting a bench trial on the aggravated assault and
conspiracy charges. However, the trial court explained Appellant’s rights,
the charges, and potential sentences, and the trial court carefully inquired
into the voluntary nature of Appellant’s waiver of his right to a jury trial.
N.T., 10/22-23/03, at 3-30. During this colloquy, the trial court also asked
Appellant whether he was waiving his right to a jury trial voluntarily or if he
had been promised a particular result:
THE COURT: Did anybody say there would be a particular result
from the Court or from the Commonwealth or from anyone with
regard to the disposition of these charges by your giving up your
right to a jury trial on all these charges?
[Appellant]: No, sir.
Id. at 20.
Appellant is bound by the statements he made.
The longstanding rule of Pennsylvania law is that a defendant
may not challenge his guilty plea by asserting that he lied while
under oath, even if he avers that counsel induced the lies. A
person who elects to plead guilty is bound by the statements he
makes in open court while under oath and he may not later
assert grounds for withdrawing the plea which contradict the
statements he made at his plea colloquy. A criminal defendant
who elects to plead guilty has a duty to answer questions
truthfully. We cannot permit a defendant to postpone the final
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disposition of his case by lying to the court and later alleging
that his lies were induced by the prompting of counsel.
Commonwealth v. Turetsky, 925 A.2d 876, 881 (Pa. Super. 2007)
(citations omitted).
After review, we conclude that Appellant voluntarily waived his right to
a jury trial. Moreover, Appellant specifically stated that his waiver was
voluntary; he may not now rescind that testimony or assert that he lied
about the veracity of his statement. Accordingly, Appellant’s claim that he
was coerced into waiving his right to a jury trial is meritless.
For the reasons set forth above, we discern no error in the PCRA
court’s denial of Appellant’s PCRA petition. Therefore, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/2016
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