Commonwealth v. Jones

258 A.3d 512 (Table)

COMMONWEALTH of Pennsylvania

v.Terrance JONES, Appellant

No. 537 EDA 2020

Superior Court of Pennsylvania.

Filed June 09, 2021

MEMORANDUM BY PELLEGRINI, J.:

Terrance Jones (Jones) appeals from the order denying his first petition filed pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541 - 9546, filed in the Court of Common Pleas of Philadelphia County (PCRA court). Jones alleges the ineffective assistance of counsel for failing to protect him from the prejudicial impact of trial references to his past possession of a firearm. We affirm.

We take the following factual background and procedural history from our independent review of the record and the PCRA court's July 17, 2020 opinion.

I.

The trial court set forth the underlying factual background as follows:

This case arises from an incident on June 8, 2013 on the 4800 block of North 7^th Street in Philadelphia. On that date, the victim, Wayne Oliver, attended a party across the street from his home. Several other houses on the block had people outside drinking as well. While hanging out on the porch at the party, Marlon Jones, [defendant Jones’] brother, and Oliver began arguing. The argument escalated when Marlon and Oliver threw punches back and forth until others jumped in and broke up the fight. Oliver then walked down the street and Marlon followed him. The two met in the middle of the street and began to fight again. After about a minute of fighting, Oliver's son pulled him from Marlon and Oliver went to his porch. After going inside his house for about fifteen minutes, Oliver returned to his porch where he was approached by Marlon's son. The two began arguing on the porch and then they moved into the street where they began to fight. They were in the middle of the street fighting while others watched. During this time, [Jones] was leaning on a car on the other side of the two-lane street watching the fight. Oliver stated that Jones was only about six to eight feet away from them.

At trial, Oliver explained how [Jones] then became involved:

Well, we went at it for maybe 30 seconds and I heard a noise, [Marlon's son] ran towards [Jones]. I went to cut them off and when [Marlon's son] ran past [Jones], I was in their face. [Jones’] hands came up, I tried to swing, a shot went off, and blew my leg from under me, I went down, I couldn't get up. So what [Jones] was doing at that time I don't know because I didn't see him. I was just on the ground trying to get up and couldn't get up.

(N.T. Trial, 11/23/15, at 24-25).

(PCRA Court Opinion, 7/17/20, at 2-3) (pagination provided; most record citations omitted).

Jones, who was not licensed to carry a firearm and was prohibited from owning one due to a prior conviction, was arrested for Aggravated Assault, Carrying a Firearm without a License, Carrying a Firearm on Public Streets in Philadelphia, Recklessly Endangering Another Person (REAP), Possession of a Firearm Prohibited, Possessing an Instrument of Crime (PIC) and Simple Assault.¹

Trial commenced on November 20, 2015. In its opening instructions, the court advised the jury, inter alia :

Statements by counsel are not evidence. The questions that counsel ask are not in themselves evidence. It is the answers to the questions that provide the evidence to you. Don't speculate or guess that a fact is true just because they ask a question that assumes the fact is true.

(N.T. Trial, 11/20/15, at 16).

During defense counsel's opening statement, he asserted:

Now, defendant sitting before you is an innocent man. He wasn't the individual that shot the victim, he didn't have a gun that night. He is too old for that stuff. He is 54 years old. He is not running around the city with guns. He sits before you as an innocent man and he was not the individual that shot the victim.

(Id. at 37-38).

The Commonwealth requested a side bar and argued that the above remark opened the door to admission of prior bad acts evidence that Jones previously had threatened Oliver with a gun. The court put the contents of the sidebar on record, and stated:

I just don't know how in good faith you can say what you said to the jury knowing that out there are allegations that your client pointed a gun. There is no strategic reason to do what [you] did. It wasn't done in bad faith. I think it was a mistake. He said something sort of off the cuff that he shouldn't have said[.] ...

(Id. at 73-77).²

The court told defense counsel:

I will say this warning that if there is any even remote closely going to—this kind of argument [by defense counsel] I will let [the prosecutor] reopen his case ... to put this evidence on if you say anything about my guy is not the kind of guy who carries a gun or is too old to be running around the neighborhood. Any reference to he is not the kind of person and I am going to literally let him reopen his case after you close and put on that evidence. It is character.

(Id. at 79-80).

Mention of the gun that Jones had been seen with prior to the incident in question came up three times during trial. First, during Oliver's direct examination, the Commonwealth asked him if he could see what was in Jones’ hands when he approached him that day, and Oliver stated that he knew what was in Jones’ hands because he "brought the same gun on me before." (N.T. Trial, 11/23/20, at 27). Shortly after, during Oliver's cross-examination, defense counsel asked him:

[Defense Counsel]: And you never saw the firearm?

[Oliver]: I saw the one that shot me.

[Defense Counsel]: You did see it?

[Oliver]: I saw it. How you think I did to move out of the way?

[Defense Counsel]: You did see the firearm?

[Oliver]: I got a good enough look at the gun he drew on me before.

(Id. at 57-58). Finally, during the Commonwealth's cross-examination of Jones’ brother, Marlon, the following interaction occurred:

[Commonwealth]: Now, has your brother ever met [Oliver] before?

[Marlon]: Yes.

[Commonwealth]: The two of [them] don't get along; is that fair to say?

[Marlon]: I wouldn't know.

[Commonwealth]: Were you there?

[Marlon]: I know they met.

[Commonwealth]: But that's the extent of your knowledge they have on the relationship?

[Marlon]: Yes.

[Commonwealth]: And you never once heard about them having problems?

[Defense counsel]: Objection.

THE COURT: Overruled.

[Marlon]: No, no problems.

[ ]

[Commonwealth]: How often do you think that [Oliver] and your brother seen each other?

[Marlon]: Once a year, as far as I know.

[Commonwealth]: Did you know your brother to carry a gun?

[Marlon]: No.

[Commonwealth]: Would it surprise you to hear that [Oliver] said your brother pointed a gun at him?

[Marlon]: Yes.

(Id. at 166-67).

The Commonwealth introduced evidence that at the hospital, Oliver identified Jones as the shooter. He also testified that immediately after the shooting, he told his daughters that Jones shot him. His daughters similarly testified that during the altercation, they heard a gunshot, their father came into the house with a gunshot wound and he identified Jones as the shooter. (See N.T. Trial, 11/20/15, at 51-54, 97-102).

In its closing instructions, the court reminded the jury that it was their recollection of the evidence that guided their deliberations, (see N.T. Trial, 11/24/15, at 16), and advised the jury, in pertinent part, that:

You heard evidence tending to show that the defendant was in possession of a firearm on an earlier occasion for which he's not on trial. I'm talking about Mr. Oliver talking about he had seen the defendant with a gun in the past. This evidence is before you for a very limited purpose. And that is for the purpose of showing that the defendant had access to a firearm and that the complainant was able to identify the firearm because he had seen it in the past. This evidence must not be considered by you in any way other than for the purposes I just said. You must not regard this evidence as tending to show that the defendant is a person of bad character or with criminal tendancies from which you may infer guilt.

(Id. at 71-72).

The jury found Jones not guilty of Aggravated Assault and convicted him of all other charges and he was later sentenced to an aggregate term of imprisonment of not less than six and one-half nor more than seventeen years. On direct appeal, Jones challenged the weight of the evidence, and a panel of this Court affirmed the judgment of sentence on March 29, 2018. (See Commonwealth v. Jones , 188 A.3d 586 (Pa. Super. filed March 29, 2018) (unpublished memorandum)).

Jones filed a timely pro se first PCRA petition and appointed counsel filed an amended petition, arguing that trial counsel was ineffective for making statements in his opening statement that Jones was old and not running around the city with guns, and for failing to object to testimony that Jones had pointed a gun at the victim on prior occasions or raise such complaint on appeal. The court denied the petition on January 20, 2020, and Jones timely appealed. He and the court have complied with Rule 1925. See Pa.R.A.P. 1925.

II.

Jones argues that "Trial counsel's failure to move for a mistrial or otherwise protect [him] at trial after several references to his having possessed and pointed a firearm in the past constituted ineffective assistance of counsel." (Jones’ Brief, at 12); (see id. at 8, 11).^{3 ,4}

To prevail on a claim of ineffective assistance of counsel, a PCRA petitioner must prove each of the following:

(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. Pier , 182 A.3d 476, 478-79 (Pa. Super. 2018) (citations omitted). An ineffectiveness claim must be denied if any of those prongs are not met. See Commonwealth v. Postie , 200 A.3d 1015, 1022 (Pa. Super. 2018). "To satisfy the reasonable basis prong, the defendant must demonstrate...