Com. v. Jones, A. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AKI JONES :
:
Appellant : No. 3853 EDA 2017
Appeal from the PCRA Order November 2, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003683-2014
BEFORE: OTT, J., NICHOLS, J., and STRASSBURGER, J.
MEMORANDUM BY OTT, J.: FILED FEBRUARY 27, 2019
Aki Jones appeals pro se1 from the order entered November 2, 2017, in
the Court of Common Pleas of Philadelphia County, that dismissed without a
hearing his first petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Jones seeks relief from the judgment of
sentence to serve an aggregate term of 25 to 50 years’ imprisonment,
imposed upon his convictions for attempted murder, aggravated assault,
witness intimidation, and conspiracy.2 Jones claims (1) trial counsel was
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 Retired Senior Judge assigned to the Superior Court.
1 The PCRA court granted counsel’s request to withdraw from representation
after appointed counsel filed a no merit letter.
2 18 Pa.C.S. §§ 901, 2702, 4952, and 903, respectively.
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ineffective in failing to call Jacque Walker3 as a witness, (2) trial counsel was
ineffective for failing to present a handwriting expert as a witness, (3) trial
counsel was ineffective in failing to file a motion in limine concerning “prior
bad acts” evidence, and (4) the indicting grand jury process improperly
restricted his access to discovery. See Jones’s pro se Brief at 1-2. Based
upon the following, we affirm.
The facts underlying Jones’s convictions are summarized in a prior
memorandum decision of this Court, and we need not recite them here. See
Commonwealth v. Aki Jones, 159 A.3d 55 (Pa. Super. 2016), appeal
denied, 169 A.3d 527 (Pa. 2017). On May 25, 2017, Jones timely filed a pro
se PCRA petition. PCRA counsel was appointed, and filed a no merit letter
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
Thereafter, on September 28, 2017, the PCRA court issued Pa.R.Crim.P. 907
notice of intent to dismiss, and on October 17, 2017, Jones filed a response
to the Rule 907 notice. On November 2, 2017, the PCRA Court dismissed the
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3 In his brief, Jones refers to this witness as “Jaqua Walker.”
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petition and granted appointed counsel leave to withdraw. This timely appeal
followed.4
The principles that guide our review are well settled.
We review the denial of PCRA relief to decide whether the PCRA
court’s factual determinations are supported by the record and are
free of legal error. When supported by the record, the PCRA
court's credibility determinations are binding on this Court, but we
apply a de novo standard of review to the PCRA court's legal
conclusions. We must review the PCRA court's findings and the
evidence of record in a light most favorable to the Commonwealth
as the winner at the trial level.
****
With respect to claims of ineffective assistance of counsel, counsel
is presumed to be effective, and the petitioner bears the burden
of proving to the contrary. To prevail, the petitioner must plead
and prove, by a preponderance of the evidence, the following
three elements: (1) the underlying claim has arguable merit; (2)
counsel had no reasonable basis for his or her action or inaction;
and (3) the petitioner suffered prejudice as a result of counsel’s
action or inaction. With regard to the second prong (reasonable
basis), we do not question whether there were other more logical
courses of action which counsel could have pursued; rather, we
must examine whether counsel’s decisions had any reasonable
basis. We will hold that counsel’s strategy lacked a reasonable
basis only if the petitioner proves that a foregone alternative
offered a potential for success substantially greater than the
course actually pursued. Our review of counsel’s performance
must be highly deferential. To establish the third element
(prejudice), the petitioner must show that there is a reasonable
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4 Although the PCRA court did not order Jones to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal, Jones filed a concise statement
on November 22, 2017, after the PCRA court issued its opinion on November
2, 2017. See Jones’s Concise Statement, 11/22/2017.
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probability that the outcome of the proceedings would have been
different but for counsel’s action or inaction.
Because a petitioner’s failure to satisfy any of the above-
mentioned elements is dispositive of the entire claim, [a] court is
not required to analyze the elements of an ineffectiveness claim
in any particular order of priority; instead, if a claim fails under
any necessary element of the ineffectiveness test, the court may
proceed to that element first.
****
To prove that trial counsel provided ineffective assistance for
failing to call a witness, a petitioner must demonstrate:
(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 absence of
the testimony of the witness was so prejudicial as to have
denied the defendant a fair trial.
****
With respect to [a petitioner’s] claim that he should have been
provided a full evidentiary hearing on all of his PCRA claims, the
law in this area is clear:
[T]he PCRA court has the discretion to dismiss a petition
without a hearing when the court is satisfied that there are
no genuine issues concerning any material fact, the
defendant is not entitled to post-conviction collateral relief,
and no legitimate purpose would be served by further
proceedings. To obtain reversal of a PCRA court’s decision
to dismiss a petition without a hearing, an appellant must
show that he raised a genuine issue of fact which, if
resolved in his favor, would have entitled him to relief, or
that the court otherwise abused its discretion in denying a
hearing. We stress that an evidentiary hearing is not meant
to function as a fishing expedition for any possible evidence
that may support some speculative claim of
ineffectiveness.
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Commonwealth v. Brown, 196 A.3d 130, 150-151, 167, 192-193 (Pa.
2018) (citations and internal citations omitted)
In the first two issues, Jones claims trial counsel’s representation was
deficient because he did not call certain witnesses. We discuss these issues
together. In his first issue, Jones contends trial counsel was ineffective for
failing to call Jacque Walker as a witness. In his second issue, Jones asserts
trial counsel was ineffective for failing to present a handwriting expert.
The PCRA court rejected both claims, as follows:
[Jones’s] claim that trial counsel was ineffective for not presenting
Walker as a witness is without merit. First, [Jones] does not state
whether Walker was available to testify; nor does [Jones] assert
the nature of Walker’s testimony. Second, the ATF [Department
of Alcohol, Tobacco and Firearms] interviewed Walker on
December 17, 2014. Walker, who was imprisoned with [Jones] at
CFCF [Curran-Fromhold Correctional Facility] when the letter was
post-marked, admitted to the ATF in a signed affidavit that he had
placed his name and PP number on the envelope at the request of
[Jones’s] associate. N.T., 6/11/2015 at 64. Because Walker’s
testimony would have been inculpatory, supporting the
Commonwealth’s theory that [Jones]-not Walker-had authored
the letter to Reid, counsel cannot be deemed ineffective for failing
to call Walker as a witness.
In his 907 response, in addition to reiterating his claims, [Jones]
alleges that PCRA counsel failed to address that trial counsel was
ineffective for not hiring a handwriting expert to prove that
[Jones] did not write the threatening letter to Reid. PCRA counsel
did not address this issue in his Finley Letter. Nonetheless, the
issue is without merit as [Jones] does not offer any expert witness
to support his claim; nor does [Jones] assert what a handwriting
expert would testify to. [Jones] also cannot demonstrate prejudice
for trial counsel’s inaction. Irrespective of whose handwriting was
used to write the letter, the contents of the letter proves that
[Jones] was the source. Reid and her mother both testified with
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relevant knowledge that, based on the contents of the letter,
[Jones] was its author. The letter’s author not only made several
references to his son, Zaire - [Jones] and Reid’s son - but also
referenced, by name, several of Reid’s family members.8 N.T.,
6/10/2015 at 61-63; N.T., 6/11/2015 at 28-31,216-21. [Jones’s]
nickname (“A.DoTTTTTT”) was also signed at the letter’s
conclusion. N.T., 6/10/2015 at 59-61. Accordingly, no relief is
due.
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8 In the letter, the author stated that, “I started to let my
man set your house on fire at 4:00 in the a.m.[,] but I
didn’t know if my son was in there … I have two n[*]ggas
already on deck and waiting on my green light and they
know all y’all [sic]. You, Carla, little Carla, and Tone[;] and
there won’t be no wrong house sh[*]t or none of that.”
N.T., 6/11/2015, at 216-21; see also Commonwealth “Trial
Exhibit 48(A).”
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PCRA Court Opinion, 11/2/2017, at 8-9 (footnote omitted).
Based on our review, we agree with the PCRA court’s analysis of Jones’s
first two ineffectiveness claims, and its conclusion that these claims warrant
no relief. Accordingly, Jones’s first two issues fail.
Next, Jones contends trial counsel was ineffective for failing to file a
motion in limine concerning “bad acts” evidence. See Pa.R.E. 404(b)(1).
In Jones’s direct appeal, a panel of this Court addressed the issue of
whether the trial court abused its discretion by permitting the Commonwealth
to elicit testimony at trial that Jones was arrested on November 22, 2010 after
Michael Vessels observed Jones holding a gun to a female’s head and called
police. The panel rejected Jones’s argument that the evidence was
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inadmissible pursuant Pennsylvania Rule of Evidence 404(b)(1), and explained
that “the testimony at issue was admissible because it was part of the
sequence of events that formed the history of this case and was relevant to
establish [Jones’s] underlying motive for the witness intimidation charge.”
Commonwealth v. Aki Jones, 159 A.3d 55 (Pa. Super. 2016) (unpublished
memorandum, at *12). Moreover, Jones concedes in his brief that trial
counsel did object to this evidence at trial. See Jones’s Brief at 8, citing N.T.,
6/8/2015, at 46-47; 6/9/2015, at 34-36).
Jones’s attempt to now recast the issue of “bad acts evidence” as an
ineffectiveness claim fails since “it is well settled that a PCRA petitioner cannot
obtain additional review of previously litigated claims by presenting new
theories of relief including allegations of ineffectiveness.” Commonwealth
v. Sneed, 45 A.3d 1096, 1112 (2012). Under the circumstances of this case,
Jones’s claim is previously litigated and frivolous. Therefore, no relief is due.
Finally, Jones maintains his constitutional rights were violated because
the grand jury process improperly restricted his right to discovery. Jones
argues he did not know Flora McMillan gave a grand jury statement, nor did
he know Jacque Walker gave police statements until trial. See Jones’s Brief,
at 11-12. He insists this procedure violated his confrontation rights under the
state and federal constitutions. He further argues he was not allowed to read
or study his discovery outside the presence of his attorney. See id. at 12.
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Jones maintains “the grand jury process created an inadequate course of
preparation which contributed to the three (3) ineffective [a]ssistance of
[c]ounsel claim(s) within the instant appeal.” Id. We find this issue fails for
several reasons.
First, waiver applies under the PCRA. The PCRA requires issues to be
raised at the first opportunity or be considered waived. See 42 Pa.C.S. §
9544(b) (“An issue is waived if the petitioner could have raised it but failed to
do so before trial, at trial, during unitary review, on appeal or in a prior state
postconviction proceeding.”); Commonwealth v. Turetsky, 925 A.2d 876,
879 (Pa. Super. 2007) (“An issue is waived if it could have been raised prior
to the filing of the PCRA petition, but was not.") (citation and quotations
omitted). Here, because Jones did not raise this issue on direct appeal, it has
been waived.
Further, in his PCRA petition, Jones only asserted, “Grand Jury process
did not allow Defendant access to discovery, trial counsel was not prepared.”
Jones’s PCRA petition, 5/25/2017, at 4. In his response to the PCRA court’s
Rule 907 notice, Jones reiterated, “the indicting grand jury process improperly
restricted defendant’s right to discovery.” Jones’s Response to Rule 907
Notice, at 2, ¶3/4. It bears emphasis that Jones’s PCRA petition and Rule 907
response do not state the specifics of his claim or how the claim was
cognizable under the PCRA. Accordingly, this claim fails because Jones did
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not plead eligibility for post-conviction relief. See 42 Pa.C.S. § 9543(a)
(petitioner has initial burden to plead and prove he is entitled to PCRA relief).
Moreover, in this appeal, Jones cites no legal authority in his brief to
support his bald claim that the grand jury process violated his constitutional
rights. Therefore, this claim is also waived on appeal for lack of development.
See Pa.R.A.P. 2119(a) (requiring discussion and citation of legal authority to
support issue raised); Commonwealth v. Spotz, 18 A.3d 244, 282 (Pa.
2011) (“A constitutional claim is not self-proving, and we will not divine an
argument on Appellant’s behalf.”). Hence, this final claim affords Jones no
relief.
Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/19
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