Com. v. Jackson, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAMALL JACKSON :
:
Appellant : No. 1337 WDA 2021
Appeal from the PCRA Order Entered October 13, 2021
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0007067-2015
BEFORE: LAZARUS, J., OLSON, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: JUNE 14, 2023
Appellant, Jamall Jackson, appeals from the order entered in the
Allegheny County Court of Common Pleas, which denied his first petition filed
under the Post Conviction Relief Act (“PCRA”).1 We affirm.
A prior panel of this Court summarized some of the relevant facts and
procedural history of this case as follows:
At approximately 1:30 p.m. on May 8, 2015, Pittsburgh
Police received several 911 calls indicating that a firearm
had been discharged multiple times near the intersection of
Sacramento Avenue and Minton Street. The shooter was
described as a bearded African–American man, who had
fired shots at the feet of a woman just before they entered
a red car, which the assailant was driving.
Police Officer Jeffrey Brock arrived at the scene. Officer
Brock found no one and did not see blood, but he did
retrieve eight shell casings from the sidewalk and a grassy
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1 42 Pa.C.S.A. §§ 9541-9546.
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area near the described intersection, as well as a cell phone
owned by Jenna Cox, Appellant’s girlfriend. While Officer
Brock was investigating the area, a bearded African-
American male drove a red Impala along Minton Street.
Police unsuccessfully attempted to stop the vehicle in
question, which was found parked about .2 miles from the
scene of the shooting. The Impala was registered to Ms.
Cox.
Several days later, Officer Brock called Ms. Cox, who was
evasive and appeared frightened. On May 13, 2015,
Detective Dawn Mercurio called Appellant, who agreed to
come to the police station for an interview. After being
given his Miranda[2] warnings, Appellant made a
statement, which the trial court described:
Appellant told Detective Mercurio that he had been in
a romantic relationship with Jenna Cox and that he
had acted as a surrogate father for her five-year-old
son. The natural father was incarcerated so he was
acting in that individual’s place. Appellant told
Detective Mercurio that on the 8 of May, he was
th
angry at Cox because he had learned that Cox and the
natural father of her five-year-old had been talking
behind his back and that the natural father had
recently been released from incarceration. Appellant
found out that Cox had taken her son’s natural father
to his son’s school so that he could meet with the
teachers and become more involved in his son’s life.
Appellant called Cox’s cell phone and confirmed the
fact that Cox was at her son’s school with the child’s
natural father and he demanded that she leave him
there and that she come pick him up at the 300 block
of Minton Street.
When Cox arrived, Appellant got in the passenger seat
and he was very angry and pulled out a gun from his
right pocket and set it on his lap while he was talking
with her. The gun was a nine-millimeter Ruger
handgun. He was yelling at her, telling her that he
did not appreciate how deceitful she was and he
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2 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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demanded to know where the natural father was living
because he needed to die. Cox then got out of the car
and was walking down the street when Appellant
followed her, telling her to get back in the car. When
she refused to listen to him, he fired several rounds
at her feet and she took off running. Appellant then
got into the driver’s side of the vehicle and was
pursuing her down Minton Street. He told her to get
back into the car and if she did not, he was going to
harm her. She got back into the car and then they
drove away. Appellant then drove to his father’s
house in McKees Rocks so that he could dispose of the
firearm. After giving the firearm to his father, they
drove back to Minton Street to look for the cell phone
that Cox had dropped. Appellant told Detective
Mercurio that his father still had the gun and then
agreed to call his father to tell him that they at least
wanted to obtain the weapon. His father agreed and
then they rode to his father’s house and his father
came out to the police car with the gun and magazine
in a bag and gave it to Detective Mercurio.
Trial Court Opinion, 4/13/17, at 4-5. The Commonwealth
also presented evidence that Appellant was previously
convicted of three counts of robbery [and one count of
aggravated assault].
In response to this Commonwealth evidence, Appellant’s
father denied receiving the gun from Appellant and claimed
that he found it in some bushes. Appellant also denied the
entirety of the statement that he gave to Detective
Mercurio.
The jury rejected Appellant’s proof and convicted him of
[persons not to possess firearms per 18 Pa.C.S.A. §
6105(a)(1), on March 29, 2016].
Commonwealth v. Jackson, No. 1599 WDA 2016 at 1-3 (Pa.Super. filed
Nov. 16, 2017) (unpublished memorandum). The court sentenced Appellant
on June 27, 2016, to four to eight years’ imprisonment plus two years’
probation. This Court affirmed the judgment of sentence on November 16,
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2017. See id. Appellant subsequently filed a petition for allowance of appeal
following reinstatement of his appellate rights nunc pro tunc, but he
discontinued that filing on May 21, 2019.
On June 24, 2019, Appellant timely filed a pro se PCRA petition. The
court subsequently appointed PCRA counsel. Following a change of counsel,
newly-appointed PCRA counsel filed an amended PCRA petition on February
8, 2021. The court held a PCRA hearing on October 5, 2021. On October 13,
2021, the court denied PCRA relief. Appellant timely filed a notice of appeal
on November 10, 2021. On December 3, 2021, the court ordered Appellant
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b) by January 3, 2022. Appellant timely complied.
Appellant raises two issues for our review:
Whether appellate counsel gave ineffective assistance for
failing to raise an issue regarding prior bad acts in violation
of Pa.R.E. 404(b)?
Whether trial counsel provided ineffective assistance for
failing to properly object to admission of prior bad acts
evidence in violation of Pa.R.E. 404(b)?
(Appellant’s Brief at 4).
“Our standard of review of [an] order granting or denying relief under
the PCRA calls upon us to determine whether the determination of the PCRA
court is supported by the evidence of record and is free of legal error.”
Commonwealth v. Parker, 249 A.3d 590, 594 (Pa.Super. 2021) (quoting
Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa.Super. 2013)). “The
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PCRA court’s factual findings are binding if the record supports them, and we
review the court’s legal conclusions de novo.” Commonwealth v. Prater,
256 A.3d 1274, 1282 (Pa.Super. 2021), appeal denied, ___ Pa. ___, 268 A.3d
386 (2021).
For purposes of disposition, we combine Appellant’s issues. Appellant
argues appellate counsel was ineffective for failing to challenge on direct
appeal the Commonwealth’s introduction of improper “prior bad acts”
evidence. Appellant claims that the Commonwealth sought to introduce
evidence of his prior 2003 conviction for aggravated assault under Rule
404(b)(2) to demonstrate modus operandi and/or to identify Appellant as
someone who previously possessed a firearm, alleged to be the same one
used in the instant case. Appellant maintains that trial counsel objected to
introduction of this evidence. Appellant claims the court permitted the
Commonwealth to introduce evidence of the prior conviction but only to show
that Appellant was a person prohibited from possessing a firearm based on
the prior conviction, as a required element for the charge on trial of persons
not to possess firearms. Appellant contends that the court did not admit such
evidence under Rule 404(b)(2).
Appellant insists that Commonwealth witness, Deputy District Attorney
Jan Necessary, then testified not only that Appellant was previously convicted
of aggravated assault, but also regarding the facts of that underlying
conviction. Appellant emphasizes that the underlying facts of his prior
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conviction involved Appellant firing shots at his former girlfriend while she was
in her car driving away with her four-year-old son in the back seat. Appellant
contends that Ms. Necessary’s testimony should have been limited to “what
Ms. Necessary tried Appellant for, what the verdict of the case was, and a
certified copy of the conviction.” (Appellant’s Brief at 26). Appellant suggests
that Ms. Necessary’s testimony went beyond what was required to establish
an element of the offense on trial and, instead, demonstrated that Appellant
was a person with the propensity to commit crimes as prohibited by Rule
404(b)(1). Appellant avers that such testimony was inadmissible under a Rule
404(b)(2) exception, as made clear by the court’s ruling.
Appellant acknowledges that the court gave a cautionary instruction, but
he complains that the instruction did not ameliorate the prejudicial effect of
the testimony. Appellant concedes that the instruction informed the jury to
consider Appellant’s prior aggravated assault conviction solely as it pertained
to establishing an element of the offense of persons not to possess firearms.
Nevertheless, Appellant suggests that the instruction did not remove “the
passions of the jury regarding the fact that Appellant shot at a former girlfriend
while a child was in the car, and ultimately, it did not cure the deliberate
violation of [the court’s] ruling to limit the admissibility of the previous
conviction to satisfy the element of” the firearms offense on trial. (Id. at 34).
Appellant asserts that appellate counsel had no reasonable basis for failing to
raise this issue on direct appeal, and that the failure to do so deprived
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Appellant of receiving a new trial.
Alternatively, Appellant argues that trial counsel was ineffective in
failing to raise a proper and timely objection to Ms. Necessary’s testimony.
Appellant acknowledges that trial counsel objected pre-trial to introduction of
Ms. Necessary’s testimony and again at trial. Nevertheless, Appellant
suggests that trial counsel failed to lodge a proper objection to Ms. Necessary
testifying about the underlying facts of the prior aggravated assault
conviction during or after Ms. Necessary’s testimony. Appellant highlights trial
counsel’s testimony at the PCRA hearing that there would have been no
strategic basis for failing to object to such testimony. Appellant maintains
that the Commonwealth improperly presented the facts of a prior case under
the guise of proving an element of the crime for persons not to possess
firearms. Appellant insists that had trial counsel made a timely objection, the
facts of the previous conviction would have been stricken from the record,
removing it from consideration for the jury when rendering a verdict.
Appellant concludes that trial and appellate counsel were ineffective, and this
Court must grant him a new trial. We disagree.
“Counsel is presumed to have rendered effective assistance.”
Commonwealth v. Hopkins, 231 A.3d 855, 871 (Pa.Super. 2020), appeal
denied, 663 Pa. 418, 242 A.3d 908 (2020).
[T]o establish a claim of ineffective assistance of counsel, a
defendant must show, by a preponderance of the evidence,
ineffective assistance of counsel which, in the circumstances
of the particular case, so undermined the truth-determining
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process that no reliable adjudication of guilt or innocence
could have taken place. The burden is on the defendant to
prove all three of the following prongs: (1) the underlying
claim is of arguable merit; (2) that counsel had no
reasonable strategic basis for his or her 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. Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019),
appeal denied, 654 Pa. 568, 216 A.3d 1029 (2019) (internal citations and
quotation marks omitted). The failure to satisfy any prong of the test for
ineffectiveness will cause the claim to fail. Commonwealth v. Chmiel, 612
Pa. 333, 30 A.3d 1111 (2011).
“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. Smith, 167 A.3d 782, 788 (Pa.Super. 2017), appeal denied, 645 Pa. 175,
179 A.3d 6 (2018) (quoting 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. Poplawski,
852 A.2d 323, 327 (Pa.Super. 2004) (quoting Commonwealth v. Geathers,
847 A.2d 730, 733 (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.” Commonwealth v. Kelley, 136 A.3d 1007, 1012
(Pa.Super. 2016) (quoting Pierce, supra at 524, 645 A.2d at 194-95).
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The test for deciding whether counsel had a reasonable
basis for his action or inaction is whether no competent
counsel would have chosen that action or inaction, or, the
alternative, not chosen, offered a significantly greater
potential chance of success. Counsel’s decisions will be
considered reasonable if they effectuated his client’s
interests. We do not employ a hindsight analysis in
comparing trial counsel’s actions with other efforts he may
have taken.
Commonwealth v. King, 259 A.3d 511, 520 (Pa.Super. 2021) (quoting
Sandusky, supra at 1043-44).
“To demonstrate prejudice, the petitioner must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceedings would have been different. [A] reasonable probability is a
probability that is sufficient to undermine confidence in the outcome of the
proceeding.” Commonwealth v. Spotz, 624 Pa. 4, 33-34, 84 A.3d 294, 312
(2014) (internal citations and quotation marks omitted). “[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.”
Hopkins, supra at 876 (quoting Commonwealth v. Chambers, 570 Pa. 3,
22, 807 A.2d 872, 883 (2002)).
Pennsylvania Rule of Evidence 404 provided at the time of Appellant’s
offense: “Evidence of a crime, wrong, or other act is not admissible to prove
a person’s character in order to show that on a particular occasion the person
acted in accordance with the character.” Pa.R.E. 404(b)(1) (effective March
18, 2013 to March 31, 2022). Nevertheless, the Commonwealth may
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introduce such evidence for another purpose, “such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” Pa.R.E. 404(b)(2) (effective March 18, 2013 to
March 31, 2022). “When ruling upon the admissibility of evidence under the
common plan exception, the trial court must examine the details and
surrounding circumstances of each criminal incident to assure that the
evidence reveals criminal conduct which is distinctive[.]” Commonwealth v.
Green, 271 A.3d 393, 402 (Pa.Super. 2021), appeal denied, ___ Pa. ___, 280
A.3d 329 (2022). “Additionally, in order to use Rule 404(b) evidence to
establish identity, the crimes must be so similar that logically the same person
has committed both acts.” Id. (emphasis and internal quotation marks
omitted). Moreover, Rule 404(b) evidence is admissible only if the probative
value of the evidence outweighs its potential for unfair prejudice. Pa.R.E.
404(b)(2) (effective March 18, 2013 to March 31, 2022).3
We further note that “[a]n appellate court will not attribute error when
the [t]rial [j]udge provides a [cautionary] instruction that fully explains the
purpose for which the jury may consider specific evidence.” Commonwealth
v. Dargan, 897 A.2d 496, 502 (Pa.Super. 2006), appeal denied, 591 Pa. 671,
916 A.2d 1101 (2007). “[U]nless evidence to the contrary is shown, a
presumption exists that the jury will obey the trial court’s instructions.” Id.____________________________________________
3The current version of Rule 404(b) contains almost identical language as the
previous version. See Pa.R.E. 404(b)(1)-(2) (effective April 1, 2022).
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at 501.
The Crimes Code defined the offense of persons not to possess firearms
at the time Appellant committed the crime at issue as follows:
§ 6105. Persons not to possess, use, manufacture,
control, sell or transfer firearms
(a) Offense defined.—
(1) A person who has been convicted of an offense
enumerated in subsection (b), within or without this
Commonwealth, regardless of the length of sentence or
whose conduct meets the criteria in subsection (c) shall not
possess, use, control, sell, transfer or manufacture or obtain
a license to possess, use, control, sell, transfer or
manufacture a firearm in this Commonwealth.
18 Pa.C.S.A. § 6105(a)(1) (effective December 16, 2008 to January 2, 2017).
Aggravated assault is an enumerated offense under subsection (b). 18
Pa.C.S.A. § 6105(b) (effective December 16, 2008 to January 2, 2017).
Instantly, the Commonwealth filed a motion in limine on March 23,
2016, seeking to present evidence of Appellant’s prior bad acts. Specifically,
the Commonwealth sought to admit evidence that Appellant previously
possessed a 9mm firearm and fired approximately three rounds at Naomi King
on or around September 6, 2001.4 The Commonwealth claimed, generally,
that such evidence was admissible under Rule 404(b)(2).
On the first day of trial before opening arguments, the parties discussed
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4 These were the underlying facts of Appellant’s 2003 aggravated assault
conviction. We note that the victim in that matter, Naomi King, has no familial
relationship to this authoring jurist.
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the Commonwealth’s motion in limine. The Commonwealth claimed that the
handgun Appellant used in the 2001 incident was the same handgun Appellant
possessed in the instant case. The Commonwealth claimed the similarities
between the past incident and the facts of the instant case demonstrated a
modus operandi such that the evidence was admissible under Rule 404(b)(2).
Appellant’s trial counsel refuted the Commonwealth’s position, arguing that
the proffered evidence did not satisfy any exception under Rule 404(b)(2),
and would be more prejudicial than probative in any event. Trial counsel
further acknowledged that the Commonwealth would already be introducing
the fact that Appellant was previously convicted of aggravated assault to
establish an element of the firearms offense on trial; thus, to introduce
evidence of the underlying facts of that case would be “in the nature of piling
on” and prejudicial. (N.T. Trial, 3/28/16, at 9).
After hearing argument from the parties, the following exchange took
place:
THE COURT: What conviction disqualifies him
[from possessing a firearm]?
[THE COMMONWEALTH]: Aggravated assault.
THE COURT: Arising out of what?
[THE COMMONWEALTH]: This incident, these 404(b).
THE COURT: You will be permitted to put it in.
[THE COMMONWEALTH]: Thank you, Judge.
THE COURT: It is part of elements of the
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crime now. It is not 404.
[TRIAL COUNSEL]: Understood.
THE COURT: Anything else?
[THE COMMONWEALTH]: Yes, Your Honor. I would just
submit to the [c]ourt, and I have explained to defense
counsel, that I will be calling Deputy District Attorney Jan
Necessary to testify to the facts underlying that prior
conviction. I think we were in agreement that rather than
go through the process of using a transcript, with the
[c]ourt’s permission I will be calling Deputy Jan Necessary
because she prosecuted the case and she is available to
testify.
THE COURT: [Trial counsel].
[TRIAL COUNSEL]: I don’t agree. I don’t disagree.
I’m not sure there is any better way to introduce that
testimony but I’m not giving up any objection to hearsay or
any others as the case may be.
[THE COURT]: You will be permitted to do so.
(Id. at 11-12) (emphasis added).
Just prior to Ms. Necessary’s testimony, trial counsel “renew[ed his]
objection to this line of questioning to preserve the record for purposes of
appeal.” (Id. at 137). Ms. Necessary testified that she prosecuted Appellant
in 2003 for aggravated assault based on an incident that occurred in
September of 2001. Ms. Necessary confirmed that Appellant was convicted
of aggravated assault at the conclusion of trial, and that a conviction of
aggravated assault renders you unable to possess a firearm in Pennsylvania.
(Id. at 139). Ms. Necessary identified a trial exhibit as a certified copy of the
conviction and judgment of sentence for Appellant in the aggravated assault
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case. (Id. at 140). The Commonwealth then asked Ms. Necessary to explain
the underlying facts of Appellant’s aggravated assault conviction. Ms.
Necessary responded:
The victim in this case was a woman named Naomi King.
She was 24-years-old. She was the former girlfriend of
[Appellant]. She was, on the date of the incident, she was
in her car driving away from her home with her 4-year-old
son in the back seat when [Appellant] emerged from some
bushes or trees near the street where she was driving near
her home and fired several shots at her vehicle while she
was driving.
(Id. at 140-41). Ms. Necessary identified the gun involved in the aggravated
assault case as a 9mm handgun. (Id. at 141). Trial counsel did not object at
any point during Ms. Necessary’s testimony.
Following the close of all testimony, trial counsel had the following
exchange with the court:
[TRIAL COUNSEL]: I have one additional matter to
raise with the [c]ourt. Your Honor allowed the 404(b)
evidence to come in. We respect the decision. That ship
sailed to keep it out. What I respectfully request Your Honor
to do is give a limiting or cautioning instruction that they
only consider that 404(b) for the purpose laid out in Rule
404(b)[(2)] knowledge, mistake, the litany that I’m sure
Your Honor is familiar with.
[THE COMMONWEALTH]: I have no objection to that, Your
Honor.
THE COURT: It will be covered in the
information given to them with respect to prior conviction is
given to them for two purposes with respect to the 404(b)
violation where it was a disqualification for the weapon but
part of the elements for a particular crime and use it for that
purpose to see if, in fact, the Commonwealth met its burden
of proving the elements of that particular crime. …
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(Id. at 178-79).
When instructing the jury, the court stated:
Now you have heard evidence of the fact that [Appellant]
has convictions for the crimes of aggravated assault and
robbery. These pieces of information have been given to
you for a very limited purpose. With respect to the charge
of aggravated assault, it is an element of the offense that
has been charged, that is a person not to possess a firearm.
…
(N.T. Trial, 3/29/16, at 196). Following the instructions, the court asked the
parties if there were any additions or corrections, to which both parties
responded negatively.
Significantly, regardless of whether trial counsel lodged a specific
enough objection at trial, we cannot agree with Appellant’s assertion that any
failure to properly object to Ms. Necessary’s testimony regarding the
underlying facts of the aggravated assault conviction resulted in prejudice. As
this Court explained on direct appeal when analyzing Appellant’s challenge to
the sufficiency of the evidence:
Herein, Appellant does not contest that he was convicted of
an enumerated offense… On appeal, Appellant challenges
that the Commonwealth proved, beyond a reasonable
doubt, that he was in possession of a firearm. Although
Appellant confessed to Detective Mercurio that he had a gun
in possession on the day in question, Appellant suggests
that his confession must be discounted since it was not
written or recorded, even though it could have been. [T]he
jury assesses the credibility of the trial witnesses. Detective
Mercurio outlined the contents of Appellant’s statement, and
the jury was free to credit her testimony, regardless of
whether Appellant’s statement was written or recorded.
Hence, we reject Appellant’s first position.
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Jackson, supra at 6. (See also N.T. Trial, 3/28/16, at 86-107) (discussing
Appellant’s interview with Detective Mercurio).5 Additionally, Officer Jason
Farrell testified at trial that a 911 caller had reported that a vehicle of interest
involved in the crime was a red Chevy Impala with a black male wearing all
black. (Id. at 75). When the officer was at the crime scene collecting shell
casings, he observed a vehicle fitting that same description driving by the
officers. The officer identified the driver as Appellant. Because the vehicle
drove off at a high rate of speed, however, the officers were unable to make
contact with the driver that day. (Id. at 75-76).
Further, the court gave a cautionary instruction to the jury to consider
the aggravated assault conviction for the “limited purpose” of analyzing “an
element of the offense that has been charged, that is a person not to possess
a firearm.” (See N.T. Trial, 3/29/16, at 196). We can presume the jury
followed the court’s instruction. See Dargan, supra. In light of the
overwhelming evidence of Appellant’s guilt, and the court’s issuance of a
cautionary instruction in this case, we cannot say that the results of
Appellant’s trial would have been different had Ms. Necessary not testified
about the underlying facts of Appellant’s aggravated assault conviction, to
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5 Appellant testified in his own defense at trial and denied implicating himself
in any statement to Detective Mercurio. (See id. at 158-59). The jury
obviously rejected this testimony in favor of testimony from the
Commonwealth’s witnesses.
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establish prejudice on Appellant’s ineffectiveness claims. See Spotz, supra.Accordingly, we affirm the order denying PCRA relief.
Order affirmed.
Judge Lazarus joins this memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/2023
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