J-S67009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________


   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




____________________________________________


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.
          ___________________________________

          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).”
          ___________________________________

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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