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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
NATHANIEL J. JONES,                         :
                                            :
                          Appellant         :     No. 1640 EDA 2014


                   Appeal from the PCRA Order May 16, 2014
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0810731-2005

BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED MARCH 20, 2015

        Appellant, Nathanial L. Jones, appeals pro se from the order entered in

the Philadelphia County Court of Common Pleas dismissing without a hearing

his first, timely Post Conviction Relief Act1 (“PCRA”) petition.2     Appellant

avers the PCRA court erred in denying relief on his claim that trial counsel

provided ineffective assistance because she was inexperienced and not

versed in the rules of procedure. We affirm.

        On September 22, 2007, a jury found Appellant guilty of rape, sexual

assault, incest, and endangering the welfare of a child for offenses

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    The Commonwealth did not file an appellee’s brief.
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committed against his fifteen-year old daughter, as well as aggravated

indecent assault and corruption of the morals of a minor for acts committed

against his daughter’s fifteen-year old friend.3 On March 7, 2008, the trial

court imposed an aggregate sentence of thirty-one to sixty-two years.

     Appellant took a direct appeal with this Court, arguing the trial court

erred in: (1) permitting each complainant to provide hearsay testimony in

bolstering the testimony of each other; (2) allowing evidence of a prior bad

act that occurred more than ten years earlier; (3) denying a motion for a

mistrial because jurors discussed the case outside of the courtroom; (4)

excluding the complainant’s; testimony that they wanted Appellant to be

incarcerated, which would have showed their motive; and (5) imposing an

allegedly excessive sentence.   This Court denied relief on all claims and

affirmed the judgment of sentence on January 22, 2010. The Pennsylvania

Supreme Court denied allowance of appeal on December 20, 2010.4

     Appellant filed the instant pro se, timely PCRA petition on December

14, 2011.5 The PCRA court appointed counsel to represent him. On March



3
  The judge at trial, the Honorable Genece E. Brinkley, also presided over
the instant PCRA proceedings.
4
  Commonwealth v. Jones, 979 EDA 2008 (unpublished memorandum)
(Pa. Super. Jan. 22, 2010), appeal denied, 83 EAL 2010 (Pa. Dec. 14, 2010).
5
  Appellant’s judgment of sentence became final on Monday, March 21,
2011, when the ninety-day period for filing a writ of certiorari with the
United States Supreme Court expired. See Sup. Ct. R. 13; 1 Pa.C.S. §



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4, 2014, counsel filed a petition to withdraw from representation pursuant to

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). The

PCRA court received an objection from Appellant, which was not filed nor

entered on the docket. PCRA Ct. Op., 7/30/14, at 2. On April 9th, the court

issued Pa.R.Crim.P. 907 notice of intent to dismiss the petition without a

hearing.     The PCRA court received an objection from Appellant, which

likewise was not filed. Id. On May 16, 2014, the court entered the instant

order, dismissing    Appellant’s   petition and allowing   PCRA counsel to

withdraw.    Appellant took this timely pro se appeal and complied with the

court’s order to file a Pa.R.A.P. 1925(b) statement of errors complained of

on appeal.

      At this juncture we summarize the claims advanced in Appellant’s

PCRA petition.    He averred trial counsel provided ineffective assistance

because he “did not possess the skill and knowledge to meet the charges

and did not know proper court rules and procedure to represent” him.

Appellant’s Mot. for Post Conviction Collateral Relief, 12/14/11, at 3. In his

supporting brief, Appellant added that at trial, “there were at least eighty-

two . . . instances where the district Attorney objected[,] the Trial Court

immediately sustained the objection and [trial counsel] did not know the

basis of the objection and/or how to proceed after the objection was

1908; 42 Pa.C.S. § 9545(b)(3). Appellant then generally had one year, or
until March 21, 2012, to file a PCRA petition. See 42 Pa.C.S. § 9545(b)(1).




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sustained.”      Appellant’s Brief in Support of Post Conviction Relief Act Pet.,

12/14/11, at 4. Appellant claimed that “[o]ften times the objections were

sustained for [trial counsel’s] failure to lay a proper foundation,” and in one

instance, counsel improperly attempted to have a witness read from a

document. Id. Appellant further asserted that during a lunch recess, the

trial court instructed trial counsel, on the record, “to take a refresher course

in Rules of Procedure.” Id. Appellant contended, “At that point a mistrial

should have been granted but of course, there was nobody to ask for a

mistrial due to counsel’s [lack] of knowledge of court procedure.” Id. at 5.

      In the instant appeal, Appellant’s argument is a verbatim reproduction

of the claims set forth above. See Appellant’s Brief at 13-16. We find no

relief is due.

      “Our standard of review of the denial of a PCRA petition is limited to

examining whether the court's determination is supported by the evidence of

record and free of legal error.” Commonwealth v. Lane, 81 A.3d 974, 977

(Pa. Super. 2013), appeal denied, 92 A.3d 811 (Pa. 2014). This Court has

stated:

             The law presumes counsel has rendered effective
          assistance.     Generally, when asserting a claim of
          ineffective assistance of counsel, the petitioner is required
          to show: (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. The failure
          to satisfy any prong of the test for ineffectiveness will
          cause the claim to fail. . . .


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Id. at 978 (citations omitted).

      In the instant matter, the PCRA court considered Appellant’s claim

about the eighty-two instances of the trial court’s sustaining the prosecutor’s

objections. It opined that Appellant failed to establish prejudice “as there is

nothing to suggest ‘that the outcome of the proceedings would have been

different’ had trial counsel’s performance been otherwise.” PCRA Ct. Op. at

4. The court found Appellant failed to point “to any specific instance where

trial counsel’s actions prejudiced him so greatly that the outcome of the trial

would have been different.” Id. at 4-5.

      We agree. Appellant’s PCRA petition and accompanying brief failed to

establish any of the ineffectiveness prongs. See Lane, 81 A.3d at 978. His

assertion, that “[o]ften times the objections were sustained for . . . failure to

lay a proper foundation,” does not identify any specific ruling or explain how

these rulings prejudiced him.      See Appellant’s Brief in Support of Post

Conviction Relief Act Pet. at 4.   Appellant also contended that at trial, his

counsel “attempted to have a witness read from a document,” but altered

her question when the Commonwealth objected, although the court had not

ruled on it. Id. Appellant then quoted an exchange at trial, wherein trial

counsel stated, “I’d like to make an objection although it’s after the

question.   Why wasn’t I allowed to let her read this?       Never mind.”    Id.

(quoting N.T., 9/19/07, at 215).      Counsel then stated she withdrew the

objection, and the court responded, “That’s right.”         Appellant’s Brief in


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Support of Post Conviction Relief Act Pet. at 4 (quoting N.T. at 215).

Appellant provides no explanation of how counsel’s questioning of the

witness or her subsequent exchange with the trial court amounted to

ineffective assistance.

      Finally, although Appellant emphasized that the trial court told

counsel, out of the jury’s presence, “to take a refresher course in Rules of

Procedure,” he ignored the context of that remark.             Appellant’s Brief in

Support of Post Conviction Relief Act Pet. at 4. Our review of the transcript

reveals the following. The court stated to counsel, “[Y]ou need to brush up

on   your   rules   of   procedure   and   the   appropriate   way   to   use   any

document[ or] get what you’re trying to get out to a witness.” N.T. at 217.

The court also advised, “If you want to go back and rephrase your question

or try to do it over again, you can.” Id. at 218. We conclude that without

any further discussion in Appellant’s PCRA petition, the PCRA court properly

found he failed to establish: (1) his underlying claim—that counsel was

inexperienced and not versed in the rules of procedure—had arguable merit;

(2) counsel had a reasonable basis for her actions or inaction; and (3) there

is a reasonable probability that the outcome of his trial would have been

different. Appellant’s arguments on appeal fail to overcome the deficiencies

in his PCRA petition. Accordingly, we affirm the order dismissing Appellant’s

petition without a hearing.

      Order affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/20/2015




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