J-S37012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

SHARIFF JONES

                            Appellant                No. 775 EDA 2014


                   Appeal from the PCRA Order March 7, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0402231-2006


BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

MEMORANDUM BY GANTMAN, P.J.:                          FILED JULY 30, 2015

        Appellant, Shariff Jones,1 appeals from the order entered in the

Philadelphia County Court of Common Pleas, which denied his first petition

brought pursuant to the Post Conviction Relief Act (“PCRA”).2 We affirm.

        The PCRA court set forth the relevant facts and procedural history of

this case as follows:

          On August 21, 2005, at approximately 1:45 A.M., the
          victim, Mitchell George, was at the corner of 53rd and
          Market Streets in Philadelphia with his friend Latasha
          Davis, her cousin Terra Davis, and their friend Michele
          Abney. The group was walking to the victim’s car after
          Latasha Davis’ birthday party when they were approached
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1
  We note Appellant’s first name is variously spelled as “Shariff,” “Sharif,”
and “Sharieff” throughout the certified record.
2
    42 Pa.C.S.A. §§ 9541-9546.
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        by Appellant and his brother, Ramarr Jones. Appellant had
        been in a relationship with Terra Davis that ended in 2004.
        Appellant began an argument with the group, and the
        victim urged his friends to get in the car. Appellant began
        to walk away but then turned back and struck Terra Davis
        in the face. A physical altercation ensued and Appellant
        pinned the victim down on the driver’s seat of the car.
        Appellant then took out a gun wrapped in a sock, and
        when Latasha Davis attempted to reach for the gun,
        Appellant struck her in the face.1 Appellant then fatally
        shot the victim twice in the back of the head. Appellant
        and his brother then fled from the scene. Appellant was a
        fugitive until his apprehension on January 31, 2006.
           1
              Appellant’s statement to police and Appellant’s
           brother’s trial testimony alleged that the victim also
           had a gun, but this patently self-serving allegation
           was contrary to all evidence presented at trial and
           rejected by the factfinder.

        Appellant was tried by jury before [the court] from
        February 6 through 8, 2007 and was convicted of first-
        degree murder, possessing an instrument of crime, and
        possessing a firearm not to be carried without a license.
        This [c]ourt imposed the mandatory sentence of life in
        prison without the possibility of parole for first-degree
        murder and prison sentences of one to two years each for
        the two additional charges, all to run concurrently.
        Appellant appealed to the Superior Court, which affirmed
        Appellant’s conviction on February 24, 2009. The Supreme
        Court denied allocatur on July 28, 2009.

        Appellant then filed a timely pro se petition under the Post-
        Conviction Relief Act on June 24, 2010. Counsel filed two
        Amended Petitions on May 31, 2012 and June 27, 2012,
        each alleging a specific instance of ineffective assistance of
        counsel. The Commonwealth filed a Motion to Dismiss.
        After review by [the court] and after sending notice
        pursuant to a [Pa.R.Crim.P.] 907(1), [the court] dismissed
        Appellant’s petitions without hearing on March 7, 2014.

(PCRA Court Opinion, filed December 22, 2014, at 1-2).       Appellant filed a

timely notice of appeal on March 12, 2014. The court ordered Appellant to

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file a concise statement of errors complained of on appeal, pursuant to

Pa.R.A.P. 1925(b); Appellant timely complied.

      Appellant raises two issues for our review:

         DID THE [PCRA] COURT ERR IN DENYING APPELLANT AN
         EVIDENTIARY HEARING ON THE ISSUE THAT HIS TRIAL
         DEFENSE COUNSEL PREVENTED HIM FROM TESTIFYING IN
         HIS OWN DEFENSE AT TRIAL, WHICH IS A DENIAL OF
         APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL
         RIGHT TO TESTIFY AT HIS TRIAL?

         DID THE [PCRA] COURT ERR IN DENYING…APPELLANT AN
         EVIDENTIARY HEARING ON THE ISSUE THAT TRIAL
         DEFENSE COUNSEL WAS INEFFECTIVE WHEN HE ARGUED
         THAT THIS WAS A CASE OF VOLUNTARY MANSLAUGHTER
         NOT MURDER WHEN EVIDENCE WAS PRESENTED THAT
         APPELLANT ACTED IN SELF-DEFENSE AND THE TRIAL
         COURT GAVE AN INSTRUCTION TO THE JURY ON SELF-
         DEFENSE?

(Appellant’s Brief at 2).

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

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v.

Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959

A.2d 319 (2008). This Court grants great deference to the findings of the

PCRA court if     the   record contains any support for      those   findings.

Commonwealth v. Carr, 768 A.2d 1164 (Pa.Super. 2001). A petitioner is

not entitled to a PCRA hearing as a matter of right; the PCRA court can

decline to hold a hearing if there is no genuine issue concerning any material

fact, the petitioner is not entitled to PCRA relief, and no purpose would be


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served by any further proceedings.     Commonwealth v. Hardcastle, 549

Pa. 450, 701 A.2d 541 (1997).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Shelley

Robins New, we conclude Appellant’s first issue merits no relief. The PCRA

court opinion comprehensively addresses and properly disposes of the

question presented.   (See PCRA Court Opinion at 5-6) (finding: trial court

gave Appellant thorough colloquy on his decision not to testify; Appellant

acknowledged his right to testify; Appellant stated during colloquy that

counsel did not force, threaten, intimidate, or promise Appellant anything to

induce him to give up his right to testify; Appellant confirmed his decision

was voluntary and of his own free will; court determined, based on

Appellant’s answers, that Appellant knowingly, intelligently, and voluntarily

waived his right to testify; Appellant’s ineffective assistance of counsel claim

in this regard lacks merit).    Accordingly, as to Appellant’s first issue we

affirm on the basis of the PCRA court opinion.

      In his second issue, Appellant argues his post-arrest statement to

detectives, along with his brother’s testimony at trial, corroborated the

theory that Appellant acted in justifiable self-defense.    Appellant contends

the jury heard evidence that the victim had a gun at the time of the

shooting.   Appellant asserts the trial court’s instruction to the jury on

justifiable self-defense demonstrates Appellant’s claim had arguable merit.


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Appellant claims trial counsel was ineffective when he failed to pursue a

justifiable self-defense theory and instead argued before the jury that

Appellant committed voluntary manslaughter or “imperfect self-defense” and

lacked the mens rea for first-degree murder.        Appellant concludes he is

entitled to an evidentiary hearing before the PCRA court on this issue. We

cannot agree.

      The   law   presumes    counsel   has   rendered   effective   assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008).               When

asserting a claim of ineffective assistance of counsel, a petitioner is required

to make the following showing: (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.

Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999).

The failure to satisfy any prong of the test for ineffectiveness will cause the

claim to fail. Williams, supra.

      “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. 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. Taylor, 933 A.2d 1035, 1042 (Pa.Super. 2007), appeal


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denied, 597 Pa. 715, 951 A.2d 1163 (2008) (quoting Commonwealth v.

Poplawski, 852 A.2d 323, 327 (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. If we conclude
           that the particular course chosen by counsel had some
           reasonable basis, our inquiry ceases and counsel’s
           assistance is deemed effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

           Prejudice is established when [a defendant] demonstrates
           that counsel’s chosen course of action had an adverse
           effect on the outcome of the proceedings. The defendant
           must show that there is a reasonable probability that, but
           for counsel’s unprofessional errors, the result of the
           proceeding would have been different.             A reasonable
           probability is a probability sufficient to undermine
           confidence in the outcome. In [Kimball, supra], we held
           that 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.”

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883

(2002) (some internal citations and quotation marks omitted).

      The Pennsylvania Crimes Code governs self-defense in relevant part as

follows:

           § 505. Use of force in self-protection

           (a) Use of force justifiable for protection of the
           person.―The use of force upon or toward another person
           is justifiable when the actor believes that such force is
           immediately necessary for the purpose of protecting
           himself against the use of unlawful force by such other
           person on the present occasion.

           (b) Limitations on justifying necessity for use of
           force.—

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                                       *       *   *

              (2) The use of deadly force is not justifiable under
              this section unless the actor believes that such force is
              necessary to protect himself against death, serious
              bodily injury, kidnapping or sexual intercourse
              compelled by force or threat; nor is it justifiable if:

                 (i) the actor, with the intent of causing death or
                 serious bodily injury, provoked the use of force
                 against himself in the same encounter; or

                 (ii) the actor knows that he can avoid the necessity
                 of using such force with complete safety by
                 retreating…

                                       *       *   *

18 Pa.C.S.A. § 505(a), (b).3           The justified use of deadly force requires

several elements:

          [It] must be shown that a) the actor was free from fault in
          provoking or continuing the difficulty which resulted in the
          use of deadly force; b) the actor must have reasonably
          believed that he was in imminent danger of death or
          serious bodily injury, and that there was a necessity to use
          such force in order to save himself or others therefrom;
          and c) the actor did not violate any duty to retreat or to
          avoid the danger.

Commonwealth v. Harris, 542 Pa. 134, 137, 665 A.2d 1172, 1174 (1995).

       Additionally, under the law of the case doctrine, “a court involved in

the later phases of a litigated matter should not reopen questions decided by
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3
   Section 505 was amended, effective August 29, 2011, to add
Pennsylvania’s “stand your ground” law. The amendment took effect after
the date of the incident (August 21, 2005). Therefore, the 2011 amendment
to Section 505 does not apply to this case.



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another judge of that same court or by a higher court in the earlier phases

of the matter.”   Commonwealth v. Starr, 541 Pa. 564, 574, 664 A.2d

1326, 1331 (1995).

         Among the related but distinct rules which make up the
         law of the case doctrine are that: (1) upon remand for
         further proceedings, a trial court may not alter the
         resolution of a legal question previously decided by the
         appellate court in the matter; (2) upon a second appeal,
         an appellate court may not alter the resolution of a legal
         question previously decided by the same appellate court;
         and (3) upon transfer of a matter between trial judges of
         coordinate jurisdiction, the transferee trial court may not
         alter the resolution of a legal question previously decided
         by the transferor trial court.

         The various rules which make up the law of the case
         doctrine serve not only to promote the goal of judicial
         economy (as does the coordinate jurisdiction rule) but also
         operate (1) to protect the settled expectations of the
         parties; (2) to insure uniformity of decisions; (3) to
         maintain consistency during the course of a single case;
         (4) to effectuate the proper and streamlined administration
         of justice; and (5) to bring litigation to an end.

Id. (internal citations omitted). Nevertheless, “the law of the case doctrine

might not apply under exceptional circumstances, including: an intervening

change in the law, a substantial change in the facts, or if the prior ruling was

clearly erroneous and would create a manifest injustice if followed.”

Commonwealth v. McCandless, 880 A.2d 1262, 1268 (Pa.Super. 2005)

(en banc) (quoting Starr, supra at 1332).

      Instantly, on his direct appeal, Appellant argued insufficient evidence

supported his murder conviction, in part because the Commonwealth failed




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to disprove beyond a reasonable doubt Appellant’s claim of justifiable self-

defense. This Court addressed Appellant’s argument as follows:

          The trial court rejected [Appellant’s] claim of self-defense
          on the basis that “the jury chose to accept the
          Commonwealth’s version of the facts and reject the
          version of the facts presented by [Appellant].” Under the
          Commonwealth’s version of the facts, unlike the defense
          version, the victim did not possess a gun. After reviewing
          the record, we agree with the trial court’s determination
          and affirm on the basis of the Supplemental Trial Court
          Opinion with regard to this issue.

Commonwealth v. Jones, No. 666 EDA 2007, unpublished memorandum

at 6 (Pa.Super. filed February 24, 2009) (internal citations omitted).

Appellant    fails   to   suggest   any    exceptional   circumstances   to   compel

reconsideration of this Court’s prior decision regarding the substantive merit

of Appellant’s claim that he acted in justifiable self-defense.               Absent

exceptional circumstances, we decline to alter this Court’s previous

resolution of that issue.4          See Starr, supra.        Therefore, Appellant’s

underlying claim lacks arguable merit in the context of ineffective assistance



____________________________________________


4
    Moreover, the record supports this Court’s previous resolution of
Appellant’s self-defense claim. The evidence was undisputed that Appellant
initiated the confrontation with the victim and shot the victim in the back of
the head. No evidence supported a justifiable self-defense claim other than
the self-serving statements of Appellant and his brother that the victim
“possessed” a gun. The police, however, recovered no gun from the victim;
and no other witnesses observed the victim with a gun. Additionally, our
disposition is unaffected by the trial court’s decision to issue a self-defense
jury instruction out of an abundance of caution.



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of trial counsel.   See Williams, supra; Kimball, supra.   Accordingly, we

affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/30/2015




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