J-S34024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                             Appellee

                        v.

    JAMIL LUTE JONES

                             Appellant                 No. 1726 WDA 2017


             Appeal from the PCRA Order entered October 18, 2017
                 In the Court of Common Pleas of Erie County
               Criminal Division at No: CP-25-CR-0002076-2015


BEFORE: BOWES, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                            FILED AUGUST 29, 2018

        Appellant, Jamil Lute Jones, appeals from the October 18, 2017 order

dismissing his timely first petition pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. § 9541-9546. We affirm.

        A prior panel of this Court summarized the pertinent facts:

               During her shift on July 5, 2015, Officer [Cheryl] Frey saw
        Appellant, two other adults and a small child crossing the street
        on foot. Appellant was wearing a red vest. Officer Frey recognized
        Appellant’s face but could not recall his name. She thought his
        name might be Laquan Martin. During the roll call prior to her
        shift, the names of Appellant and Laquan Martin were listed as
        having active warrants. Officer Frey got out of her vehicle and
        asked Appellant for his identification. Appellant asked Officer Frey
        why she was stopping him, and Officer Frey responded that she
        believed there was a warrant for his arrest. Appellant took off his
        vest and handed it to a friend before giving Officer Frey his
        identification. After confirming through dispatch that there was a
        warrant, Officer Frey handcuffed Appellant and retrieved
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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      Appellant’s vest from his friend, who still had the vest over his
      arm.

             While Officer Frey was walking Appellant back to the vehicle,
      Appellant asked Officer Frey why she took the vest, claiming it
      belonged to his friend. Officer Frey told him she was suspicious
      of why he would hand it to his friend when all she wanted was his
      identification. Appellant then told Officer Frey there was a firearm
      in the vest. According to Officer Frey, she did not ask Appellant
      any questions to prompt this statement. Officer Frey placed
      Appellant in the back of her vehicle and laid the vest on the
      ground. When back-up officers arrived, they retrieved a .380
      automatic Ruger from the vest and unloaded it.

Commonwealth v. Jones, 1329 WDA 2016 (Pa. Super. June 16, 2017),

unpublished memorandum, at 1-2 (record citations omitted).

      On September 18, 2015, the Commonwealth filed a criminal information

charging Appellant with, among other things, firearms not to be carried

without a license, 18 Pa.C.S.A. § 6106. Appellant filed a pre-trial motion to

suppress evidence. The trial court denied the motion on March 3, 2016. The

trial court conducted a jury trial on March 21 and 22, 2016, at the conclusion

of which the jury found Appellant guilty under § 6106. Following a July 27,

2016 sentencing hearing, the trial court imposed two and one-half to six years

of incarceration.   On June 16, 2017, this Court affirmed the judgment of

sentence, rejecting Appellant’s challenges to the denial of his suppression

motion and the trial court’s sentencing discretion. Appellant filed his timely

first pro se PCRA petition on June 29, 2017.        Appointed counsel filed a

supplemental petition on August 14, 2017. On September 22, 2017, the PCRA

court issued its Pa.R.Crim.P. 907 notice of intent to dismiss the petition



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without a hearing.   On October 18, 2017, the PCRA court entered its final

order dismissing the petition. This timely appeal followed.

      Appellant   claims   trial   counsel    was   ineffective,   pursuant   to

§ 9543(a)(2)(ii) of the PCRA, for failing to preserve a challenge to the

sufficiency of the evidence during trial and on direct appeal. Appellant’s Brief

at 2. “On appeal from the denial of PCRA relief, an appellate court’s standard

of review is whether the ruling of the PCRA court is free of legal error and

supported by the record.” Commonwealth v. Jones, 932 A.2d 179, 181

(Pa. Super. 2007). To establish that counsel was ineffective, a petitioner must

plead and prove that (1) the underlying issue is of arguable merit; (2) counsel

had no reasonable strategic basis for the action or inaction; and (3) counsel’s

error prejudiced the petitioner. Commonwealth v. Travaglia, 661 A.2d 352

(Pa. 1995), cert. denied, 516 U.S. 1121 (1996). Failure to establish all three

prongs results in failure of the claim. Id.

      Appellant argues that trial counsel should have challenged the

sufficiency of the evidence because the Commonwealth’s case rested entirely

on the testimony of Officer Frey, and no other evidence confirmed his

possession of a concealed firearm. As noted above, Officer Frey testified that

she observed Appellant wearing a vest; that Appellant removed the vest and

handed it to his friend; and that back-up officers retrieved a firearm from

inside the vest after Officer Frey retrieved it from Appellant’s friend. Where a

defendant challenges the sufficiency of the evidence in support of a conviction,


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the reviewing court must view the evidence in the light most favorable to the

Commonwealth as verdict winner, and the court cannot reweigh the evidence

or make credibility determinations. Commonwealth v. Kane, 10 A.3d 327,

332 (Pa. Super. 2010), appeal denied, 29 A.3d 796 (Pa. 2011). Given the

strictures governing a sufficiency of the evidence challenge, the reviewing

court would not have been free to discredit Officer Frey’s testimony or reweigh

it in light of any other relevant evidence. Because Officer Frey’s testimony

was more than sufficient to establish that Appellant was in possession of a

concealed firearm, any challenge to the sufficiency of the evidence was

doomed to failure. We reject Appellant’s assertion of ineffective assistance of

counsel because the underlying issue lacks arguable merit.

      Discerning no error in the PCRA court’s decision, we affirm the order

dismissing Appellant’s petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/2018




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