J. S40013/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                     v.                     :
                                            :
RAYSHAWN TAQUAN JONES,                      :          No. 1312 WDA 2014
                                            :
                          Appellant         :


                   Appeal from the PCRA Order, June 30, 2014,
             in the Court of Common Pleas of Westmoreland County
                Criminal Division at No. CP-65-CR-0003475-2009


BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED OCTOBER 9, 2015

        Rayshawn Taquan Jones appeals from the order dismissing his pro se

petition   filed   pursuant   to   the   Post   Conviction   Relief   Act   (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546. We affirm.

        Appellant and his accomplice, Kalell McCord, were involved in a

“shoot-out” with the victim, Matthew Johnson, on a public street in

New Kensington, Pennsylvania on July 21, 2009. Appellant was arrested and

charged with criminal attempt-criminal homicide, aggravated assault, and

simple assault.1      Timothy Dawson, Esq., was appointed as counsel for

appellant. A five-day jury trial was held on June 20-24, 2011.




* Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 901(a), 2702(a)(1), 2701(a)(1), respectively.
J. S40013/15


        At trial, Johnson testified that he was visiting his girlfriend’s brother’s

house. Johnson left the house to sell a 9mm gun. As he was walking, he

saw appellant and McCord on Catalpa Street. Both men were armed. (Trial

transcript, at 176-186.)     Johnson testified that he made eye contact with

both men who went behind a yellow Hummer and then fired shots at him.

Johnson hid behind the car and fired two shots back. Johnson then got up,

fired two shots, and started to run. Johnson had no bullets left and tried to

run back to the house but his leg bones were shattered and he fell on the

sidewalk against a fence.      McCord fled the scene.      Appellant approached

Johnson and, ignoring Johnson’s plea not to shoot him, fired two bullets into

him at point blank range, hitting him in the neck and stomach. Appellant

then fled the scene. Johnson survived and identified appellant as the man

who shot him.

        McCord also testified. He testified that he and appellant were involved

in a shootout with Johnson.        McCord did not know who fired first.         He

testified that once he saw Johnson go down, he “took off running.” (Id. at

246.)

        An eyewitness testified that she observed a man laying down

screaming “don’t shoot me. Please don’t kill me.” (Id. at 467.) She saw

another person walk up and fire several rounds into him. (Id. at 468.) The

witness was able to identify appellant as the shooter.




                                        -2-
J. S40013/15


     The jury heard evidence that the victim, Johnson, had pending felony

charges   for   allegedly   selling    $20   in   crack   cocaine,    and   that   the

Commonwealth offered him a deal on his pending charges in exchange for

his testimony against appellant.         (Id. at 192, 200, 206.)       The jury also

heard that appellant’s accomplice, McCord, received a deal in exchange for

his testimony against appellant whereby he would be permitted to plead

guilty to aggravated assault instead of attempted homicide and that he

would receive a sentence of one year less one day to two years less two

days instead of fifteen years and would be paroled at the time when he

entered his guilty plea. (Id. at 220, 266-267, 270.)

     The jury found appellant guilty of all charges.                  Appellant was

sentenced to a term of imprisonment of 18 years to 36 years. Thereafter,

appellant filed timely post-sentence motions challenging the weight and

sufficiency of the evidence and seeking modification of his sentence.              The

trial court denied the motions, and appellant appealed to this court which

affirmed the judgment of sentence on October 19, 2012. Commonwealth

v. Jones, No. 343 WDA 2012, unpublished memorandum per curiam

(Pa.Super. filed October 19, 2012). Appellant filed a petition for allowance

of appeal which was denied on September 26, 2013.

     Appellant filed a pro se PCRA petition on December 13, 2013.

(Docket #101.)     In it, he set forth the following two grounds:             (1) the

Commonwealth        committed         selective   prosecution;       and    (2)    the



                                         -3-
J. S40013/15


Commonwealth failed to provide the defense with reasonable notice prior to

trial of its intention to present character evidence of “other crimes, wrongs,

or acts.”2

        On December 31, 2013, the trial court appointed PCRA counsel,

James H. Robinson, Esq., and directed him to either file an amended PCRA

petition or a Turner/Finley3 “No Merit” letter. (Docket #102.)

        On May 21, 2014, Attorney Robinson filed a Turner/Finley “No Merit”

letter and a petition to withdraw.       PCRA counsel addressed both issues

appellant raised in his pro se PCRA petition. PCRA counsel set forth in detail

the nature of his review (which included interviews of prior counsel, review

of the transcripts, appellant’s case file, and the pleadings), cited appropriate

case law, provided an issue-by-issue analysis of why each issue lacked merit

and a conclusion that there were no viable issues under the PCRA which

would afford relief.    Counsel sent appellant a copy of the petition and the

brief and advised him of his right to continue pro se or hire a private

attorney.     On June 30, 2014, the PCRA court, after conducting its own

independent evaluation of the record, agreed that appellant raised no

genuine issues and granted Attorney Robinson permission to withdraw from

representation. (Docket #109.)



2
    Appellant did not pursue the second issue in this appeal.
3
 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Pennsylvania
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).


                                       -4-
J. S40013/15


      Appellant raises the following issues on appeal:

             A.     WHETHER APPELLANT IS BEING HELD IN
                    CUSTODY AT THE STATE CORRECTIONAL
                    INSTITUTION AT ALBION IN VIOLATION OF
                    THE CONSTITUTION AND LAWS OF THE
                    UNITED STATES AND THE COMMONWEALTH
                    OF PENNSYLVANIA BY THE COMMONWEALTH
                    ENGAGING IN SELECTIVE PROSECUTION BY
                    SOLELY CHARGING THE PETITIONER?

             B.     WHETHER    APPELLANT    WAS   DENIED
                    MEANINGFUL PARTICIPATION IN THE PCRA
                    PROCESS?

Appellant’s brief at 4.

      Our standard of review for an order denying post-conviction relief is

whether the record supports the PCRA court’s determination, and whether

the PCRA court’s determination is free from error.            Commonwealth v.

Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

certified record. Id.

      To prevail on a petition for PCRA relief, a petitioner must plead and

prove, by a preponderance of the evidence, that his or her conviction or

sentence resulted from one or more of the circumstances enumerated in

42 Pa.C.S.A. § 9543(a)(2).          These circumstances include a constitutional

violation   or    ineffectiveness    of   counsel   which   “so   undermined   the

truth-determining process that no reliable adjudication of guilt or innocence

could have taken place.”        42 Pa.C.S.A. § 9543(a)(2)(i) and (ii).         The

petitioner must also plead and prove by a preponderance of the evidence


                                          -5-
J. S40013/15


that the claims of error have not been previously litigated or waived and that

“the failure to litigate the issue prior to or during trial, during unitary review

or on direct appeal could not have been the result of any rational, strategic

or tactical decision by counsel.”        42 Pa.C.S.A. § 9543(a)(3) and (4).           An

issue has been waived “if the petitioner could have raised it but failed to do

so before trial, at trial, on appeal or in a prior state post-conviction

proceeding.” 42 Pa.C.S.A. § 9544(b). An issue has been previously litigated

if “the highest appellate court in which the petitioner could have had review

as a matter of right has ruled on the merits of the issue.”              42 Pa.C.S.A.

§ 9544(a)(2).

      First, appellant complains that his rights of due process and equal

protection of law were violated by the disparate treatment that he received

vis-à-vis that afforded to McCord and Johnson. He contends that all three

men were involved in the shootout but he was the only one who was

selected to be prosecuted.        He argues that McCord and Johnson all faced

similar    charges   based   on    the    same    facts   and     evidence;    yet,   the

Commonwealth permitted them to enter plea bargains in exchange for their

testimony.      Appellant    asserts     that   the   disparate    treatment    by    the

prosecution constituted an arbitrary act and violated his constitutional

entitlement to fundamental fairness, due process, and equal protection of

the law.




                                          -6-
J. S40013/15


         A selective prosecution claim is an independent assertion that the

prosecutor has brought a charge for reasons forbidden by the equal

protection clause of the Constitution.     U.S. v. Armstrong, 517 U.S. 456

(1996). The pre-trial motion to dismiss has been the accepted procedure for

raising this claim.    Commonwealth v. Butler, 601 A.2d 268 (Pa. 1991).

Appellant did not raise this claim before the trial court, and he has not raised

it in the rubric of ineffective assistance of counsel. Thus, it has been waived.

         Assuming arguendo the issue was not waived, appellant has failed to

allege    that the    Commonwealth’s discriminatory     selection of him for

prosecution was based on any “impermissible grounds” such as race,

religion, the exercise of some constitutional right, or any other such

arbitrary classification.   Commonwealth v. Mulholland, 702 A.2d 1027,

1034 (Pa. 1997). Appellant’s conduct was clearly more culpable than that of

the other two participants. After the initial exchange of gunfire, Johnson lay

gravely injured on the sidewalk, and appellant’s co-defendant, McCord, fled

the scene.     Instead of fleeing, appellant approached Johnson, and despite

Johnson’s pleas “don’t shoot me” and “please don’t kill me,” shot him at

close range in the neck and stomach.       (Trial transcript, 6/23/11 at 467.)

The Commonwealth has the prerogative to recommend leniency in exchange

for truthful testimony.      Commonwealth v. Childress, 799 A.2d 805




                                     -7-
J. S40013/15


(Pa.Super. 2002).    Johnson’s and McCord’s agreement to testify against

appellant was a valid reason for offering them leniency.4

      Next, appellant contends that he was denied due process because the

PCRA court permitted counsel to withdraw without first amending appellant’s

“inarticulately drafted [pro se] PCRA petition.” (Appellant’s brief at 11.)

      This issue is also waived. Pa.R.Crim.P. 907(1) requires the petitioner

to respond to the PCRA court’s proposed dismissal within 20 days.             The

PCRA court issued its notice of dismissal on June 10, 2014, in which it

concluded that appellant failed to raise any meritorious claims and the issues

raised lacked genuine arguable merit.      The PCRA court notified appellant

that he had 20 days to respond to the Rule 907 notice.        (Docket #7.)     If

appellant wished to challenge counsel’s failure to amend his PCRA petition,

appellant was required to respond to the proposed dismissal within 20 days

of the dismissal notice.     Because he did not, the issue was waived.

Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009).

      Order affirmed.




4
  Unlike appellant herein, the appellant in Childress framed his selective
prosecution claim as a claim of ineffective assistance of counsel under
§ 9543(a)(2)(ii).


                                     -8-
J. S40013/15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/9/2015




                          -9-
