Com. v. Jones, S.

J-S37012-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHARIFF JONES
Appellant No. 775 EDA 2014
Appeal from the PCRA Order March 7, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0402231-2006
BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 30, 2015
Appellant, Shariff Jones,1 appeals from the order entered in the
Philadelphia County Court of Common Pleas, which denied his first petition
brought pursuant to the Post Conviction Relief Act (“PCRA”).2 We affirm.
The PCRA court set forth the relevant facts and procedural history of
this case as follows:
On August 21, 2005, at approximately 1:45 A.M., the
victim, Mitchell George, was at the corner of 53rd and
Market Streets in Philadelphia with his friend Latasha
Davis, her cousin Terra Davis, and their friend Michele
Abney. The group was walking to the victim’s car after
Latasha Davis’ birthday party when they were approached
____________________________________________
1
We note Appellant’s first name is variously spelled as “Shariff,” “Sharif,”
and “Sharieff” throughout the certified record.
2
42 Pa.C.S.A. §§ 9541-9546.
J-S37012-15
by Appellant and his brother, Ramarr Jones. Appellant had
been in a relationship with Terra Davis that ended in 2004.
Appellant began an argument with the group, and the
victim urged his friends to get in the car. Appellant began
to walk away but then turned back and struck Terra Davis
in the face. A physical altercation ensued and Appellant
pinned the victim down on the driver’s seat of the car.
Appellant then took out a gun wrapped in a sock, and
when Latasha Davis attempted to reach for the gun,
Appellant struck her in the face.1 Appellant then fatally
shot the victim twice in the back of the head. Appellant
and his brother then fled from the scene. Appellant was a
fugitive until his apprehension on January 31, 2006.
1
Appellant’s statement to police and Appellant’s
brother’s trial testimony alleged that the victim also
had a gun, but this patently self-serving allegation
was contrary to all evidence presented at trial and
rejected by the factfinder.
Appellant was tried by jury before [the court] from
February 6 through 8, 2007 and was convicted of first-
degree murder, possessing an instrument of crime, and
possessing a firearm not to be carried without a license.
This [c]ourt imposed the mandatory sentence of life in
prison without the possibility of parole for first-degree
murder and prison sentences of one to two years each for
the two additional charges, all to run concurrently.
Appellant appealed to the Superior Court, which affirmed
Appellant’s conviction on February 24, 2009. The Supreme
Court denied allocatur on July 28, 2009.
Appellant then filed a timely pro se petition under the Post-
Conviction Relief Act on June 24, 2010. Counsel filed two
Amended Petitions on May 31, 2012 and June 27, 2012,
each alleging a specific instance of ineffective assistance of
counsel. The Commonwealth filed a Motion to Dismiss.
After review by [the court] and after sending notice
pursuant to a [Pa.R.Crim.P.] 907(1), [the court] dismissed
Appellant’s petitions without hearing on March 7, 2014.
(PCRA Court Opinion, filed December 22, 2014, at 1-2). Appellant filed a
timely notice of appeal on March 12, 2014. The court ordered Appellant to
-2-
J-S37012-15
file a concise statement of errors complained of on appeal, pursuant to
Pa.R.A.P. 1925(b); Appellant timely complied.
Appellant raises two issues for our review:
DID THE [PCRA] COURT ERR IN DENYING APPELLANT AN
EVIDENTIARY HEARING ON THE ISSUE THAT HIS TRIAL
DEFENSE COUNSEL PREVENTED HIM FROM TESTIFYING IN
HIS OWN DEFENSE AT TRIAL, WHICH IS A DENIAL OF
APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL
RIGHT TO TESTIFY AT HIS TRIAL?
DID THE [PCRA] COURT ERR IN DENYING…APPELLANT AN
EVIDENTIARY HEARING ON THE ISSUE THAT TRIAL
DEFENSE COUNSEL WAS INEFFECTIVE WHEN HE ARGUED
THAT THIS WAS A CASE OF VOLUNTARY MANSLAUGHTER
NOT MURDER WHEN EVIDENCE WAS PRESENTED THAT
APPELLANT ACTED IN SELF-DEFENSE AND THE TRIAL
COURT GAVE AN INSTRUCTION TO THE JURY ON SELF-
DEFENSE?
(Appellant’s Brief at 2).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error. Commonwealth v.
Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959
A.2d 319 (2008). This Court grants great deference to the findings of the
PCRA court if the record contains any support for those findings.
Commonwealth v. Carr, 768 A.2d 1164 (Pa.Super. 2001). A petitioner is
not entitled to a PCRA hearing as a matter of right; the PCRA court can
decline to hold a hearing if there is no genuine issue concerning any material
fact, the petitioner is not entitled to PCRA relief, and no purpose would be
-3-
J-S37012-15
served by any further proceedings. Commonwealth v. Hardcastle, 549
Pa. 450, 701 A.2d 541 (1997).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Shelley
Robins New, we conclude Appellant’s first issue merits no relief. The PCRA
court opinion comprehensively addresses and properly disposes of the
question presented. (See PCRA Court Opinion at 5-6) (finding: trial court
gave Appellant thorough colloquy on his decision not to testify; Appellant
acknowledged his right to testify; Appellant stated during colloquy that
counsel did not force, threaten, intimidate, or promise Appellant anything to
induce him to give up his right to testify; Appellant confirmed his decision
was voluntary and of his own free will; court determined, based on
Appellant’s answers, that Appellant knowingly, intelligently, and voluntarily
waived his right to testify; Appellant’s ineffective assistance of counsel claim
in this regard lacks merit). Accordingly, as to Appellant’s first issue we
affirm on the basis of the PCRA court opinion.
In his second issue, Appellant argues his post-arrest statement to
detectives, along with his brother’s testimony at trial, corroborated the
theory that Appellant acted in justifiable self-defense. Appellant contends
the jury heard evidence that the victim had a gun at the time of the
shooting. Appellant asserts the trial court’s instruction to the jury on
justifiable self-defense demonstrates Appellant’s claim had arguable merit.
-4-
J-S37012-15
Appellant claims trial counsel was ineffective when he failed to pursue a
justifiable self-defense theory and instead argued before the jury that
Appellant committed voluntary manslaughter or “imperfect self-defense” and
lacked the mens rea for first-degree murder. Appellant concludes he is
entitled to an evidentiary hearing before the PCRA court on this issue. We
cannot agree.
The law presumes counsel has rendered effective assistance.
Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When
asserting a claim of ineffective assistance of counsel, a petitioner is required
to make the following showing: (1) the underlying claim is of arguable merit;
(2) counsel had no reasonable strategic basis for his action or inaction; and
(3) but for the errors and omissions of counsel, there is a reasonable
probability that the outcome of the proceedings would have been different.
Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999).
The failure to satisfy any prong of the test for ineffectiveness will cause the
claim to fail. Williams, supra.
“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit…” Commonwealth
v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot
be found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Taylor, 933 A.2d 1035, 1042 (Pa.Super. 2007), appeal
-5-
J-S37012-15
denied, 597 Pa. 715, 951 A.2d 1163 (2008) (quoting Commonwealth v.
Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004)).
Once this threshold is met we apply the “reasonable basis”
test to determine whether counsel’s chosen course was
designed to effectuate his client’s interests. If we conclude
that the particular course chosen by counsel had some
reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective.
Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).
Prejudice is established when [a defendant] demonstrates
that counsel’s chosen course of action had an adverse
effect on the outcome of the proceedings. The defendant
must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome. In [Kimball, supra], we held
that a “criminal defendant alleging prejudice must show
that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.”
Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883
(2002) (some internal citations and quotation marks omitted).
The Pennsylvania Crimes Code governs self-defense in relevant part as
follows:
§ 505. Use of force in self-protection
(a) Use of force justifiable for protection of the
person.―The use of force upon or toward another person
is justifiable when the actor believes that such force is
immediately necessary for the purpose of protecting
himself against the use of unlawful force by such other
person on the present occasion.
(b) Limitations on justifying necessity for use of
force.—
-6-
J-S37012-15
* * *
(2) The use of deadly force is not justifiable under
this section unless the actor believes that such force is
necessary to protect himself against death, serious
bodily injury, kidnapping or sexual intercourse
compelled by force or threat; nor is it justifiable if:
(i) the actor, with the intent of causing death or
serious bodily injury, provoked the use of force
against himself in the same encounter; or
(ii) the actor knows that he can avoid the necessity
of using such force with complete safety by
retreating…
* * *
18 Pa.C.S.A. § 505(a), (b).3 The justified use of deadly force requires
several elements:
[It] must be shown that a) the actor was free from fault in
provoking or continuing the difficulty which resulted in the
use of deadly force; b) the actor must have reasonably
believed that he was in imminent danger of death or
serious bodily injury, and that there was a necessity to use
such force in order to save himself or others therefrom;
and c) the actor did not violate any duty to retreat or to
avoid the danger.
Commonwealth v. Harris, 542 Pa. 134, 137, 665 A.2d 1172, 1174 (1995).
Additionally, under the law of the case doctrine, “a court involved in
the later phases of a litigated matter should not reopen questions decided by
____________________________________________
3
Section 505 was amended, effective August 29, 2011, to add
Pennsylvania’s “stand your ground” law. The amendment took effect after
the date of the incident (August 21, 2005). Therefore, the 2011 amendment
to Section 505 does not apply to this case.
-7-
J-S37012-15
another judge of that same court or by a higher court in the earlier phases
of the matter.” Commonwealth v. Starr, 541 Pa. 564, 574, 664 A.2d
1326, 1331 (1995).
Among the related but distinct rules which make up the
law of the case doctrine are that: (1) upon remand for
further proceedings, a trial court may not alter the
resolution of a legal question previously decided by the
appellate court in the matter; (2) upon a second appeal,
an appellate court may not alter the resolution of a legal
question previously decided by the same appellate court;
and (3) upon transfer of a matter between trial judges of
coordinate jurisdiction, the transferee trial court may not
alter the resolution of a legal question previously decided
by the transferor trial court.
The various rules which make up the law of the case
doctrine serve not only to promote the goal of judicial
economy (as does the coordinate jurisdiction rule) but also
operate (1) to protect the settled expectations of the
parties; (2) to insure uniformity of decisions; (3) to
maintain consistency during the course of a single case;
(4) to effectuate the proper and streamlined administration
of justice; and (5) to bring litigation to an end.
Id. (internal citations omitted). Nevertheless, “the law of the case doctrine
might not apply under exceptional circumstances, including: an intervening
change in the law, a substantial change in the facts, or if the prior ruling was
clearly erroneous and would create a manifest injustice if followed.”
Commonwealth v. McCandless, 880 A.2d 1262, 1268 (Pa.Super. 2005)
(en banc) (quoting Starr, supra at 1332).
Instantly, on his direct appeal, Appellant argued insufficient evidence
supported his murder conviction, in part because the Commonwealth failed
-8-
J-S37012-15
to disprove beyond a reasonable doubt Appellant’s claim of justifiable self-
defense. This Court addressed Appellant’s argument as follows:
The trial court rejected [Appellant’s] claim of self-defense
on the basis that “the jury chose to accept the
Commonwealth’s version of the facts and reject the
version of the facts presented by [Appellant].” Under the
Commonwealth’s version of the facts, unlike the defense
version, the victim did not possess a gun. After reviewing
the record, we agree with the trial court’s determination
and affirm on the basis of the Supplemental Trial Court
Opinion with regard to this issue.
Commonwealth v. Jones, No. 666 EDA 2007, unpublished memorandum
at 6 (Pa.Super. filed February 24, 2009) (internal citations omitted).
Appellant fails to suggest any exceptional circumstances to compel
reconsideration of this Court’s prior decision regarding the substantive merit
of Appellant’s claim that he acted in justifiable self-defense. Absent
exceptional circumstances, we decline to alter this Court’s previous
resolution of that issue.4 See Starr, supra. Therefore, Appellant’s
underlying claim lacks arguable merit in the context of ineffective assistance
____________________________________________
4
Moreover, the record supports this Court’s previous resolution of
Appellant’s self-defense claim. The evidence was undisputed that Appellant
initiated the confrontation with the victim and shot the victim in the back of
the head. No evidence supported a justifiable self-defense claim other than
the self-serving statements of Appellant and his brother that the victim
“possessed” a gun. The police, however, recovered no gun from the victim;
and no other witnesses observed the victim with a gun. Additionally, our
disposition is unaffected by the trial court’s decision to issue a self-defense
jury instruction out of an abundance of caution.
-9-
J-S37012-15
of trial counsel. See Williams, supra; Kimball, supra. Accordingly, we
affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/30/2015
- 10 -