Com. v. Jones, K.

J-S02012-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KAREEM JONES
Appellant No. 3114 EDA 2013
Appeal from the PCRA Order September 13, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0309721-2004
BEFORE: MUNDY, J., OLSON, J., and WECHT, J.
MEMORANDUM BY MUNDY, J.: FILED FEBRUARY 17, 2015
Appellant, Kareem Jones, appeals pro se from the September 13, 2013
order, dismissing his first petition for relief filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful
review, we affirm.
A prior panel of this Court summarized the relevant factual and
procedural history of this case as follows.
At approximately 7:00 p.m. on
November 30, 2003, Clarence Davis and
Jessica Treadway were seated in a vehicle
parked on the 200 block of East Albanus Street
in Philadelphia. Mr. Davis was in [the] driver’s
seat and Ms. Treadway was next to Davis in
the front passenger seat. [Appellant]
approached, knocked on the window, and
asked Davis “Do you have that?”[] When
Davis responded “yes”, [Appellant] entered the
rear of the vehicle.
J-S02012-15
Ms. Treadway had known Davis for
several months and had known [Jones] for
approximately ten years. A minute or two
after [Appellant] got into the vehicle, Treadway
heard a single gunshot go off. Although she
did not see the gun, the firearm was so close
that she felt the heat from the muzzle on the
left side of her face.[FN] Indeed, the medical
examiner testified that Davis suffered a contact
wound to the right back side of his head that
was so close as to cause the victim’s skin to
burn. [] Davis died as a result of the gunshot
wound to his head.
[Footnote]: Following the shooting, Ms.
Treadway contacted Philadelphia Police Officer
Dierdre Still, a friend of the family, and told
her about the shooting. At Officer Still’s
direction, Ms. Treadway later gave a statement
to homicide detectives. Treadway also testified
at a preliminary hearing a couple of months
following the murder, and gave a trial
deposition video approximately two years after
the murder.
Police found [Appellant’s] cell phone in
the rear of the vehicle in which the victim was
killed. The cell phone showed calls between
[Appellant] and the victim. Additionally, Ms.
Treadway turned over a letter sent to her from
[Appellant] postmarked February 23, 2004[,]
in which he denied involvement in the
shooting, but advised her not to cooperate with
authorities or to implicate him in the incident.
Trial Court Opinion, 1/3/07, at 2-3 (citations
omitted).
A jury subsequently found [Appellant] guilty of
[one count each of first-degree murder and firearms
-2-
J-S02012-15
not to be carried without a license.1] Thereafter, [on
December 19, 2005,] the trial court sentenced
[Appellant] to life in prison for his conviction of first[-
]degree murder. The trial court imposed no further
sentence for [Appellant]’s conviction of the firearms
charge. [Appellant]’s counsel failed to file a timely
direct appeal of the judgment of sentence. However,
the trial court subsequently reinstated [Appellant]’s
direct appeal rights, nunc pro tunc.
Commonwealth v. Jones, 938 A.2d 1115 (Pa. Super. 2007) (unpublished
memorandum at 1-2). On September 25, 2007, this Court affirmed
Appellant’s judgment of sentence. Id. Appellant did not file a petition for
allowance of appeal in our Supreme Court.
On August 15, 2008, Appellant filed a timely pro se PCRA petition.
The PCRA court appointed counsel. On October 14, 2010, PCRA counsel filed
a petition to withdraw as counsel along with a “no-merit” letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and their progeny. On
January 20, 2012, this case was reassigned to a new judge due to the
former judge’s retirement. On April 23, 2012, PCRA counsel resubmitted his
Turner/Finley letter. On June 11, 2012, the PCRA court entered an order
notifying Appellant of its intent to dismiss his PCRA petition without a
hearing pursuant to Pennsylvania Rule of Criminal Procedure 907. On June
27, 2012, Appellant filed a pro se response to the PCRA court’s Rule 907
____________________________________________
1
18 Pa.C.S.A. §§ 2502(a) and 6106, respectively.
-3-
J-S02012-15
notice.2 On September 13, 2013, the PCRA court entered an order
dismissing Appellant’s PCRA petition and granting PCRA counsel’s petition to
withdraw. On November 6, 2013, Appellant filed a pro se notice of appeal.3
On appeal, Appellant raises the following four issues for our review.
[1]. Whether [Appellant] was denied his right to
effective assistance of counsel in [PCRA]
proceedings, and lawful evaluation of his
[PCRA] petition[?]
2. Whether trial counsel was ineffective for failing
to object to and preserving for appeal[,] the
testimony of [O]fficer Still, [D]etective Lynch
and [D]etective Bova, of which none of these
____________________________________________
2
On July 27, 2012, Appellant filed a notice of appeal to this Court from the
PCRA court’s Rule 907 notice, which this Court quashed as interlocutory.
Superior Court Order, 2494 EDA 2012, 1/11/13, at 1.
3
We note that Appellant’s notice of appeal was filed 54 days after the PCRA
court entered its order dismissing Appellant’s PCRA petition. Ordinarily, this
would subject the appeal to immediate quashal. See Pa.R.A.P. 903(a)
(stating that all “notice[s] of appeal … shall be filed within 30 days after the
entry of the order from which the appeal is taken[]”). However, the PCRA
court notes in its opinion that the PCRA court’s dismissal order “was not
mailed to Appellant in accordance with Pennsylvania Rule of Criminal
Procedure 114(b)(3)(a)(v).” PCRA Court Opinion, 6/30/14, at 3-4. This
Court has held that a failure to serve the underlying order on an appellant
constitutes a breakdown in court operations. See, e.g., Commonwealth v.
Khalil, 806 A.2d 415, 420-421 (Pa. Super. 2002) (concluding a breakdown
in court operations occurred, excusing late notice of appeal, where the trial
court failed to issue an order informing the defendant that his post-sentence
motion had been denied by operation of law), appeal denied, 818 A.2d 503(Pa. 2003). As a result, we conclude that we possess appellate jurisdiction
in this case, and we will address the merits of Appellant’s claims. We further
note the PCRA court did not direct Appellant to file a concise statement of
errors complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). The PCRA court filed its Rule 1925(a) opinion on June
30, 2014.
-4-
J-S02012-15
witnesses submitted an offering of proof[,] no
pre-trial statement of testimony[?]
3. Whether trial counsel was ineffective for failing
to object to and or file a motion to have any
and all evidence obtained at the crime scene
suppressed, due to the fact that the crime
scene was tampered with, [due to m]issing
evidence, [and a] tampered phone[?]
4. Whether trial counsel was ineffective for failing
to object to the failure of the [C]ommonwealth
to produce its key witness at the time of
trial[?]
Appellant’s Brief at 3.
We begin by noting our well-settled standard of review. “In reviewing
the denial of PCRA relief, we examine whether the PCRA court’s
determination is supported by the record and free of legal error.”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation
marks and citation omitted). “The scope of review is limited to the findings
of the PCRA court and the evidence of record, viewed in the light most
favorable to the prevailing party at the trial level.” Commonwealth v.
Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). “It is well-settled
that a PCRA court’s credibility determinations are binding upon an appellate
court so long as they are supported by the record.” Commonwealth v.
Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this
Court reviews the PCRA court’s legal conclusions de novo. Commonwealth
v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).
-5-
J-S02012-15
The Sixth Amendment to the Federal Constitution provides in relevant
part that, “[i]n all criminal prosecutions, the accused shall enjoy the right …
to have the Assistance of Counsel for his defence.”4 U.S. Const. amend. VI.
The Supreme Court has long held that the Counsel Clause includes the right
to the effective assistance of counsel. See generally Strickland v.
Washington, 466 U.S. 668, 686 (1984); Commonwealth v. Pierce, 527
A.2d 973, 975 (Pa. 1987).
In analyzing claims of ineffective assistance of counsel, “[c]ounsel is
presumed effective, and [appellant] bears the burden of proving otherwise.”
Fears, supra at 804 (brackets in original; citation omitted). As established
by Strickland and Pierce, to prevail on a claim of ineffective assistance of
counsel, a PCRA petitioner must allege and prove “(1) the underlying legal
claim was of arguable merit; (2) counsel had no reasonable strategic basis
for his action or inaction; and (3) the petitioner was prejudiced—that is, but
for counsel’s deficient stewardship, there is a reasonable likelihood the
outcome of the proceedings would have been different.” Commonwealth
v. Simpson, 66 A.3d 253, 260 (Pa. 2013). “A claim of ineffectiveness will
be denied if the petitioner’s evidence fails to satisfy any one of these
____________________________________________
4
Likewise, Article I, Section 9 of the Pennsylvania Constitution states in
relevant part, “[i]n all criminal prosecutions the accused hath a right to be
heard by himself and his counsel ….” Pa. Const. art. I, § 9. Our Supreme
Court has held that the Pennsylvania Constitution does not provide greater
protection than the Sixth Amendment. Pierce, supra at 976.
-6-
J-S02012-15
prongs.” Commonwealth v. Elliott, 80 A.3d 415, 427 (Pa. 2013) (citation
omitted), cert. denied, Elliott v. Pennsylvania, 135 S. Ct. 50 (2014).
We also note that a PCRA petitioner is not automatically entitled to an
evidentiary hearing. We review the PCRA court’s decision dismissing a
petition without a hearing for an abuse of discretion. Commonwealth v.
Roney, 79 A.3d 595, 604 (Pa. 2013) (citation omitted), cert. denied, Roney
v. Pennsylvania, 135 S. Ct. 56 (2014).
[T]he right to an evidentiary hearing on a post-
conviction petition is not absolute. It is within the
PCRA court’s discretion to decline to hold a hearing if
the petitioner’s claim is patently frivolous and has no
support either in the record or other evidence. It is
the responsibility of the reviewing court on appeal to
examine each issue raised in the PCRA petition in
light of the record certified before it in order to
determine if the PCRA court erred in its
determination that there were no genuine issues of
material fact in controversy and in denying relief
without conducting an evidentiary hearing.
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (internal
citations omitted). “[A]n evidentiary hearing is not meant to function as a
fishing expedition for any possible evidence that may support some
speculative claim of ineffectiveness.” Roney, supra at 605 (citation
omitted).
In his first issue, Appellant avers that PCRA counsel was ineffective in
not acting diligently with regards to his PCRA petition. Appellant’s Brief at 8-
11. Specifically, Appellant argues that PCRA counsel did not meet with or
consult him during PCRA proceedings, and that PCRA counsel should have
-7-
J-S02012-15
raised trial counsel’s ineffectiveness for not objecting to hearsay testimony
by Detective Bova regarding a phone call from Nicole Speeks. Id. at 8, 11.
Upon review of Appellant’s brief, we deem Appellant’s claims waived for
failure to preserve them for our review.
Generally, appellate briefs are required to conform to the Rules of
Appellate Procedure. See Pa.R.A.P. 2101. “This Court may … dismiss an
appeal if the appellant fails to conform to the requirements set forth in the
Pennsylvania Rules of Appellate Procedure.” In re Ullman, 995 A.2d 1207,
1211 (Pa. Super. 2010) (citation omitted), appeal denied, 20 A.3d 489 (Pa.
2011). This Court is willing to construe pro se materials liberally, but “pro
se status confers no special benefit on an appellant.” Id. at 1211-1212.
Pennsylvania Rule of Appellate Procedure 2119(a) requires that the
argument section of an appellate brief include “citation of authorities as are
deemed pertinent.” Pa.R.A.P. 2119(a). This Court will not consider an
argument where an appellant fails to cite to any legal authority or otherwise
develop the issue. Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa.
2009), cert. denied, Johnson v. Pennsylvania, 131 S. Ct. 250 (2010); see
also, e.g., In re Estate of Whitley, 50 A.3d 203, 209 (Pa. Super. 2012)
(stating, “[f]ailure to cite relevant legal authority constitutes waiver of the
claim on appeal[]”) (citation omitted), appeal denied, 69 A.3d 603 (Pa.
2013).
-8-
J-S02012-15
In this case, Appellant’s brief is devoid of any citations to any legal
authority in support of his claims that would entitle him to an evidentiary
hearing.5 Further, we note that in this issue, Appellant has raised the
argument of PCRA counsel’s ineffectiveness for the first time on appeal. This
Court recently explicitly reiterated, “claims of PCRA counsel’s ineffectiveness
may not be raised for the first time on appeal.” Commonwealth v.
Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc), appeal denied, 101
A.3d 785 (Pa. 2014). Based on these considerations, we deem Appellant’s
first issue waived. See Johnson, supra; Whitley, supra.
In his second issue on appeal, Appellant avers that trial counsel was
ineffective for not objecting to the testimony of Detective Bova, Detective
Lynch and Officer Still in their entirety because the Commonwealth did not
provide “pre-trial statements” concerning the testimony of these witnesses.
Appellant’s Brief at 12. In support of his argument, Appellant cites to
Commonwealth v. Mejia-Arias, 734 A.2d 870 (Pa. Super. 1999), for the
proposition that “the law is clear that a criminal defendant is entitled to
know about any information that may affect the reliability of the witnesses
____________________________________________
5
Appellant’s brief as to PCRA counsel’s diligence has one citation to
Commonwealth v. Hill, 549 A.2d 199 (Pa. Super. 1988), for the
proposition that if a defendant’s claim has arguable merit, then an
evidentiary hearing is in order to determine whether counsel had a
reasonable basis for his or her action. Id. at 201; Appellant’s Brief at 10.
What we find lacking, however, is that Appellant has not cited to any legal
authority to show this Court that his claim has arguable merit in the first
instance.
-9-
J-S02012-15
against him.” Id. at 876; Appellant’s Brief at 14. Mejia-Arias pertained to
the scope of a defendant’s subpoena to inspect certain files in possession of
the Attorney General. Mejia-Arias, supra at 876. Appellant also cites to
Commonwealth v. Ulen, 650 A.2d 1416 (Pa. 1994), and Commonwealth
v. Grayson, 353 A.2d 428 (Pa. 1976), which concerned the Commonwealth
denying a defense request to examine existing pre-trial statements. Ulen,
supra at 418; Grayson, supra at 428. However, Appellant does not allege
a Brady6 or discovery rule violation. Instead, Appellant argues that trial
counsel was ineffective for not objecting to these witnesses because they did
not give any pre-trial statement as a prerequisite to testifying. Appellant’s
Brief at 12.
None of the cases Appellant cites in his brief support his assertion that
the Commonwealth must secure and turn over a “pre-trial statement” as a
prerequisite to a witness testifying. The PCRA court could not find any law
requiring such statements, nor can this Court. See PCRA Court Opinion,
6/30/14, at 5. As Appellant has not given any legal authority in support of
his argument, Appellant cannot show that it has arguable merit. Therefore,
Appellant is not entitled to relief on this issue.
Next, Appellant avers in his third issue that trial counsel was
ineffective for failing to file a motion to suppress all evidence obtained at the
____________________________________________
6
Brady v. Maryland, 373 U.S. 83 (1963).
- 10 -
J-S02012-15
crime scene. Appellant’s Brief at 19. In Appellant’s view, all crime scene
evidence should have been suppressed because “the complete crime scene
was tampered with and corrupted.” Id. It was allegedly tampered with
because the first officer on the scene noticed “a pair of white latex gloves
laying on the body of the deceased[.]” Id. Apparently, this supposed pair
of gloves disappeared. Id. Appellant also argues that the crime scene was
“corrupted” by Detective Lynch when he removed a mobile phone that he
found from the crime scene and took it with him back to the police station.
Id. at 22.
As noted above, to obtain PCRA relief, a defendant must prove his or
her underlying legal claim has arguable merit. See Simpson, supra. As to
the mobile phone found inside the vehicle, Appellant freely admits that he
does not own the vehicle in question. Appellant’s Brief at 23. This alone
would preclude suppression of the mobile phone as Appellant cannot show a
reasonable expectation of privacy in a vehicle that he does not possess.
See Commonwealth v. Enimpah, --- A.3d ---, 2014 WL 7369744, *1 (Pa.
2014) (stating, “a defendant must show a legitimate privacy interest to
prevail upon a suppression motion[]”) (internal quotation marks and citation
omitted; emphasis in original); Commonwealth v. Millner, 888 A.2d 680,
692 (Pa. 2005) (rejecting suppression argument where the defendant
“produced no evidence that he owned the vehicle, nor did he produce
evidence which remotely suggested that he had any other connection to the
- 11 -
J-S02012-15
vehicle which could form the basis for so much as a subjective expectation of
privacy[]”). Therefore, regarding the mobile phone, Appellant cannot show
that his claim would have arguable merit. See Elliott, supra.
Turning to the latex gloves, assuming arguendo that the latex gloves
were part of the crime scene and were exculpatory, Appellant does not
explain how the lack of gloves renders any of the other evidence of the
crime scene inadmissible. Suppression motions are proper vehicles to
challenge the admissibility of “evidence alleged to have been obtained in
violation of the defendant’s rights.” Pa.R.Crim.P. 581(A). Appellant argues
that there were “all kinds of inconsistencies in regard to the agents of the
[C]ommonwealth’s testimonies [sic] regards to these gloves ….” Appellant’s
Brief at 19-20. However, it is axiomatic that testimonial inconsistencies go
to the weight of the evidence, not its admissibility. Commonwealth v.
Taylor, 876 A.2d 916, 929-930 (Pa. 2005) (citations omitted). Based on
these considerations, we conclude Appellant has not shown that his claim
has arguable merit. As a result, the PCRA court properly denied Appellant
relief on this claim.
In his fourth issue, Appellant avers that trial counsel was ineffective
for failing to object to the Commonwealth’s failure to produce its key
witness, Ms. Treadway, live at trial. Appellant’s Brief at 25. Treadway gave
previously recorded testimony on videotape, she was subject to cross-
examination, and said tape was played for the jury. PCRA Court Opinion,
- 12 -
J-S02012-15
6/30/14, at 8. However, Appellant claims that after Treadway’s testimony
was recorded, it came to light that Officer Still had several private
conversations with Treadway, and he was denied the opportunity to cross-
examine her as to those conversations. Appellant’s Brief at 25.
It is axiomatic that to be entitled to PCRA relief, a defendant must be
able to show how he or she was prejudiced from trial counsel’s alleged
ineffectiveness.
Relating to the prejudice prong of the
ineffectiveness test, the PCRA petitioner must
demonstrate that there is a reasonable probability
that, but for counsel’s error or omission, the result of
the proceeding would have been different.
Particularly relevant herein, it is well-settled that 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 Strickland test, the court may
proceed to that element first.
Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012).
In this case, Appellant avers that he would have wished to cross-
examine Treadway on additional conversations she had with Officer Still.
However, Appellant does not explain how cross-examining her on these
conversations would have so undermined her credibility as to create “a
reasonable probability that … the result of the proceeding would have been
different.” Id. Based on these considerations, we conclude Appellant is not
entitled to relief on this issue. See Spotz, supra at 319 (stating,
“remanding for the PCRA court to make factual findings and credibility
- 13 -
J-S02012-15
determinations as to the ‘reasonable basis’ prong will be unnecessary if we
determine there is no reasonable probability that an objection to the
challenged jury instruction at trial would have led to a more favorable
outcome for [the defendant]”); Elliott, supra; Commonwealth v. Steele,
961 A.2d 786, 797 (Pa. 2008) (stating, “a petitioner must set forth and
individually discuss substantively each prong of the Pierce test[]”).
Based on the foregoing, we conclude all of Appellant’s issues are either
waived or devoid of merit. Accordingly, the PCRA court’s September 13,
2013 order is affirmed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2015
- 14 -