J-S26037-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
               v.                           :
                                            :
                                            :
    VINCENT JACKSON                         :
                                            :
                     Appellant              :   No. 2155 EDA 2018

              Appeal from the PCRA Order Entered June 15, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0010976-2014


BEFORE:      PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                          FILED JUNE 27, 2019

       Vincent Jackson (Jackson) appeals pro se from the order of the Court of

Common Pleas of Philadelphia County (PCRA court) dismissing his petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

We affirm.

                                       I.

       The relevant procedural history of this case is taken from the PCRA

court’s opinion and our independent review of the certified record.   In 2015,

a jury found Jackson guilty of aggravated assault with attempted serious

bodily injury (18 Pa.C.S. § 2702); promoting prostitution (18 Pa.C.S. § 5902);

firearms not to be carried without a license (18 Pa.C.S. § 6106); corruption of

the morals of a minor (18 Pa.C.S. § 6301); carrying firearms on public streets
____________________________________

*    Retired Senior Judge assigned to the Superior Court.
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(18 Pa.C.S. § 6108); and possession of an instrument of crime (18 Pa.C.S. §

907).

        He was sentenced on October 13, 2015, as follows: 7.5 to 15 years as

to the aggravated assault count; 2.5 to 5 years as to the promoting

prostitution count, to run consecutively; and 5 years of probation as to the

firearm possession count, to run concurrently. He was not sentenced on the

remaining counts.

        Jackson appealed and on April 5, 2017, this Court affirmed his judgment

of sentence in Commonwealth v. Jackson, No. 215 EDA 2016 (Pa. Super.

April 5, 2017).     Jackson did not seek review in the Pennsylvania Supreme

Court and the judgment of sentence became final on May 5, 2017.

        Jackson timely filed his PCRA petition on October 16, 2017. His counsel

then filed a Turner/Finley no merit letter,1 which the PCRA court accepted

allowing counsel to withdraw. The PCRA court then issued a notice of intent

to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907.

Jackson filed a response to the Rule 907 Notice on April 27, 2018, and on June

15, 2018, the PCRA court formally dismissed his PCRA petition.




____________________________________________


1Finley v. Pennsylvania, 481 U.S. 551 (1987), and Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988).


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       Jackson filed a timely appeal with this Court and then complied with

Pa.R.A.P. 1925(b).       The PCRA court entered its opinion on September 26,

2018. See PCRA Court 1925(a) Opinion, 9/27/2018.

       Jackson now presents the following issues for our review:

       I.     Ineffective assistance of counsel for failing . . . to request a
       competency hearing for Commonwealth witness M.M., who was a
       minor; failing to investigate the telephone records used as
       evidence against [Jackson]; [and] failing to impeach
       Commonwealth witnesses, M.M. and Adonis Fountain with their
       prior inconsistent statements.

       II.   Abuse of discretion where the [PCRA] court assumed the
       role of an advocate during the direct examination of Adonis
       Fountain.

Appellant’s Brief, at 4. None of Jackson’s claims have merit.2

                                        II.

       Previously, in Jackson’s direct appeal, this Court summarized the

pertinent case facts:

       Adonis Fountain rented a hotel room at the Roosevelt Inn with his
       friend “D” and an unknown female around midnight on March 31,
       2014. Trial Transcript, 8/5/2015, at 50–54. While walking to their
       room on the second floor, Fountain got a “weird vibe” from a male,
       later identified as [Jackson], who was walking towards them from
       the other end of the hallway. [Jackson] was staring at Fountain
       as if he knew him. [Jackson] and Fountain crossed paths.
       Fountain realized that his room was at the other end of the hallway
       and turned around. [Jackson] and Fountain crossed paths a


____________________________________________


2 “When reviewing the denial of a PCRA petition, our standard of review is
limited to examining whether the PCRA court’s determination is supported by
evidence of record and whether it is free of legal error.” Commonwealth v.
Pew, 189 A.3d 486, 488 (Pa. Super. 2018) (citation omitted).


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     second time. Within seconds, [Jackson] fired multiple
     shots at Fountain, but missed. Id. at 55–58.

     Fountain dove around a corner and ran down a flight of stairs to
     the first floor of the hotel. As he ran towards the lobby exit, he
     saw [Jackson] running towards him with a gun from the other end
     of the hallway. Fountain ran back around a corner towards the
     stairs, crouched down in a “defensive position,” and fired a single
     shot into the wall directly across from him. [Jackson] continued
     to run towards Fountain, firing shots in his direction. Fountain ran
     back up the stairs to the second floor and eventually exited the
     hotel. Id. at 59–62, 89–95; Trial Transcript, 8/6/2015 at 2–17.

     Video surveillance from the Roosevelt Inn captured the
     incident. Portions of the video were broadcasted on the news.
     Fountain had dreadlocks in the video and testified that he cut them
     off after he saw himself on television. He was arrested at his home
     in June 2014 with the firearm that he used on the night of the
     shooting. Trial Transcript, 8/5/2015 at 64–66.

     On May 15, 2015, Fountain entered into a negotiated guilty plea
     to [two firearm possession charges]. In the memorandum of
     agreement attached to the written guilty plea colloquy, Fountain
     identified [Jackson] as the person who shot at him at the
     Roosevelt Inn. Id. at 76–82; Trial Transcript, 8/6/2015 at 18–25.
     Fountain identified himself, the shooter, and his friend “D” on the
     video at trial.    Trial Transcript, 8/5/2015 at 89–95; Trial
     Transcript, 8/6/2015 at 6–18.

                                    ....

     MM (age 16) testified that she met [Jackson] while
     working as a prostitute at the Roosevelt Inn in the fall or
     winter of 2013. Trial Transcript, 8/6/2015 at 108–13, 122. MM
     thought [Jackson] was “nice” and “didn't seem like a bad
     person”—she “thought he was just a drug dealer.” Id. at 114.
     [Jackson] and MM smoked marijuana together the first time they
     met. After they smoked, [Jackson] and some of the guys he was
     with asked her to come to another room in the hotel with them.
     MM understood that to mean she would be working for them as a
     prostitute. Id. at 115–17.

     The next morning, MM agreed to work for [Jackson] as a
     prostitute—she told him that she would give him all of the money

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     she earned from prostituting as long as he gave her cigarettes,
     drugs, and food in return. Id. at 117. [Jackson] agreed. He then
     took MM to a Target . . . and told her that he would buy her
     whatever she needed.

                                      ....

     [Jackson] and MM went to the [Roosevelt Inn] next door to the
     Target. [Jackson] posted an ad offering MM for sex on “Back
     Page,” a website similar to Craigslist, and MM started receiving
     calls from men who wanted to have sex with her—she called them
     “dates.” Id. at 118–20. [Jackson] and MM continued to work
     together at different hotels. She testified that she stopped
     working for [Jackson] for a short period of time and went to work
     for another pimp, but started working for him again shortly
     thereafter. Id. at 120–21.

                                   ....

     MM testified that [Jackson] and she stopped going to the
     Roosevelt Inn in early March 2014 because [Jackson] shot
     somebody in the leg during a shootout at the hotel. Id. at 125–
     26, 163–64. They worked out of hotels near the airport instead.
     However, MM, [Jackson], and two other girls who worked for him
     . . . went to the Roosevelt Inn on the night of the shooting
     “because the money was supposed to be good there that day.”
     Id. at 126–28.

     MM had three “dates” on the night of the shooting. She testified
     that when she opened the door to her room for the first date
     around 7 p.m., she saw [Jackson] and a male with dreadlocks give
     each other “dirty looks.” Id. at 128–30. Within seconds of closing
     the door to her room when the third date arrived, she heard “a
     lot” of gunshots in the hallway. Id. at 129–34. MM finished her
     date and tried to call [Jackson] on his cell phone. He would not
     answer, so she called and texted his brother, John. Id. at 135.
     MM testified that she met John through [Jackson], and that she
     had been to John’s apartment near[.] Id. at 127. She also
     reached out to [Jackson’s] friend “Fat Boy”. Fat Boy told MM that
     he would call her if he heard from [Jackson]. Id. at 136–37.

     [Jackson] called MM from John’s phone around 5 a.m. and said
     that he was “in pain from running.” MM testified that [Jackson]
     told her that he dropped and shattered his phone while he

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     was running on Bustleton Avenue, and that he threw his
     gun in a trashcan and the clip in a nearby yard. Id. at 136–
     37. He told MM to retrieve the gun and meet him at 31 st and
     Tasker Street. MM retrieved the gun, clip, and SIM card
     exactly where he told her it would be. Id. at 175–77. She
     then took a cab to 31st and Tasker Street. Id. at 137–43.
     [Jackson] and John picked MM up and drove to John’s house.
     [Jackson] put the SIM card into a new phone. Id.

     On April 5, 2014, MM and another girl who was working for
     [Jackson] as a prostitute went to the Four Points Sheraton in
     Northeast Philadelphia.    A few hours after they arrived, an
     undercover officer posing as a client asked to have a “date” with
     both of them. They agreed. Seconds later, police entered the
     room and arrested MM and the other girl. Id. at 144–47.

     MM told officers that she had information about the instant case.
     Officers showed MM a video of the shooting at the
     Roosevelt Inn—she identified [Jackson] as the person in
     the baggy hoodie and jeans who is seen shooting at
     Fountain on the first and second floors of the hotel. Id. at
     148–53.

     [An officer] testified that MM provided detectives with
     [Jackson’s] cell phone number[.]             Based on that
     information, he prepared and served a search warrant on
     T–Mobile for call detail records. Trial Transcript, 8/6/2015 at
     186–89. He also obtained an arrest warrant for [Jackson].

     On June 18, 2014, [Jackson] was arrested at his brother’s home[.]
     [Jackson’s] brother, John Gamble, was home at the time of the
     arrest. A search warrant was prepared and executed for his
     cell phone[.]      Id. at 195–99.        Cell phone records
     corroborated MM’s testimony that text messages were
     exchanged between John Gamble and MM on March 31, 2014.
     Id. at 199–201. Gamble had the same phone number stored for
     [Jackson] that MM provided. Id.

     Records for [Jackson’s] cell phone showed that he called
     MM approximately one hour prior to the shooting at 11:05
     p.m. on March 30, 2014. GPS coordinates placed the phone
     in close proximity to the Roosevelt Inn. The last outgoing call
     with GPS data was made to an unknown person at 11:29 p.m. in
     the same location. The next traceable calls were made on March

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      31, 2014 at 6:41 p.m. near 65th Street and Haverford Avenue;
      6:44 p.m. near 63rd and Walnut Street; and 1:03 a.m. and 8:02
      a.m. near 33rd and Wharton Street, less than two blocks from
      [Jackson’s] brother’s home. Id. at 201–16.

Jackson, No. 215 EDA 2016 (footnotes omitted, emphases added).

                                     III.

      To prevail on an ineffective assistance of counsel claim, the petitioner

must prove:

      (1) the underlying legal claim was of arguable merit; (2) counsel
      had no reasonable strategic basis for his action or inaction; and
      (3) the petitioner was prejudiced – that is, but for counsel’s
      deficient stewardship, there is a reasonable likelihood the outcome
      of the proceedings would have been different.

Commonwealth v. Pier, 182 A.3d 476, 478-79 (Pa. Super. 2018) (citations

omitted).   “[F]ailure to prove any of these prongs is sufficient to warrant

dismissal of the claim without discussion of the other two.” Commonwealth

v. Robinson, 877 A.2d 433, 439 (Pa. 2005) (citation omitted).

      “[A] PCRA petitioner will be granted relief only when he proves, by a

preponderance of the evidence, that his conviction or sentence resulted from

the [i]neffective assistance of counsel which, in the circumstances of the

particular case, so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place.” Commonwealth

v. Johnson, 966 A.2d 523, 532 (Pa. 2009) (quoting 42 Pa.C.S. §

9543(a)(2)(ii)).   “Generally, counsel’s performance is presumed to be

constitutionally adequate, and counsel will only be deemed ineffective upon a

sufficient showing by the petitioner.” Johnson, 966 A.2d at 532.

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      A PCRA claim may be denied without a hearing at the court’s discretion

when “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.”      Commonwealth v. Roney, 79

A.3d 595, 604 (Pa. 2013). “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.” Commonwealth v. Blakeney, 108 A.3d 739, 749-50 (Pa. 2014)

(quoting Roney, 79 A.3d at 604-05).

                                       A.

      As to his claim of ineffective assistance of counsel for failing to request

a competency hearing for M.M., we hold that trial counsel was not ineffective

by declining to challenge her competence to testify. She was 16 years and

eleven months old at the time of the trial and was presumed to be competent

as a matter of law. See generally Rosche v. McCoy, 156 A.2d 307, 309-10

(Pa. 1959) (competency hearing is only required where witness is under the

age of fourteen); see also Commonwealth v. Pena, 31 A.3d 704 (Pa. Super.

2011). The burden is on the party asserting incompetence to establish it.

Rosche, 156 A.2d at 309-10.

      M.M. testified at length during the trial, demonstrating her capacity to

relate what she had experienced. Much of her account was also corroborated


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by other evidence. Jackson identifies no facts which would put in doubt M.M.’s

ability to answer questions truthfully and coherently.

       Rather, Jackson’s brief seems to conflate the concepts of credibility and

competence, suggesting that M.M. should not have been able to testify due to

her youth, motive to lie and inability to recall events. See Appellant’s Brief,

at 10-14. He argues that the inconsistencies in her testimony and the roles

of other parties are evidence that she was not competent.        Id. However,

these factors go to the weight of her testimony, not to her competence to

testify. See Rosche, 156 A.2d 307.3

       Accordingly, Jackson’s trial counsel had no basis to request a

competency hearing, and had it been sought, there was no reasonable

probability that it would have been granted. See PCRA Court 1925(a) Opinion,

9/27/2018, at 9 (“Had counsel requested a competency hearing, it would not

have been granted.”). Where an issue is clearly without merit, counsel does

not perform ineffectively by failing to assert it.    See Commonwealth v.




____________________________________________


3 Jackson similarly conflated weight with admissibility when arguing in his brief
that defense counsel should have sought to suppress M.M.’s statements to
police because she was not represented by counsel at the time they were
given. See Appellant’s Brief, at 19. If M.M.’s right to counsel was violated
when she spoke to police and implicated Jackson, then that fact went to the
weight of her testimony, and Jackson lacked standing to challenge the
admission of the statement based on that violation. This specific claim is also
waived because it was not presented in Jackson’s PCRA petition. See 42
Pa.C.S. §§ 9543(a)(3), 9544(b); Pa.R.A.P. 302(a).

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Spotz, 896 A.2d 1191 (Pa. 2006). Thus, the PCRA court correctly found no

merit in this ineffectiveness claim.

                                        B.

      Nor did the PCRA court err in denying Jackson’s claim of ineffectiveness

based on the supposed failure to impeach M.M. and Fountain.          Jackson’s

argument here is that the two witnesses could have been discredited if pressed

on their motive to testify in the Commonwealth’s favor. The certified record

of their respective testimony shows that defense counsel, in fact, did confront

them with their pending criminal charges and motives to assist the prosecution

in exchange for a plea deal. See Trial Transcript, 8/6/2015, at 29-42, 139,

156-68, 179-80.       A PCRA petitioner cannot prevail on a claim of

ineffectiveness by asserting that counsel failed to do something that counsel

actually did.

      In his appellate brief, Jackson raises additional arguments as to defense

counsel’s failure to impeach these witnesses with inconsistent statements. He

contends, for example, that Fountain lied about when he discharged his

weapon during the shoot-out and whether he had previously been to the hotel

where it occurred. See Appellant’s Brief, at 16-17. Jackson waived those

grounds by not including them in his PCRA petition and they cannot be

considered here on appeal. See 42 Pa.C.S. § 9543(a)(3) (a PCRA petition

must prove that a claim has not been waived or previously litigated); see also

Pa.C.S. § 9544(b) (“[A]n issue is waived if the petitioner could have raised it


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but failed to do so before trial, at trial, during unitary review, on appeal or in

a prior state postconviction proceeding.”); Pa.R.A.P. 302(a) (“Issues not

raised in the lower court are waived and cannot be raised for the first time on

appeal.”).

                                           C.

      Jackson next argues that trial counsel was ineffective by failing to

investigate the telephone records used against him at trial. See Appellant’s

Brief, at 19-21.    He asserts that had counsel been more thorough by

investigating those records, M.M. and one of the investigating officers could

have been impeached. He also argues for the first time on appeal that trial

counsel was ineffective by not seeking to suppress the telephone records as

the fruit of an illegal search. See Appellant’s Brief, at 19-20.

      The PCRA court did not err in denying these claims because Jackson

failed to establish any of the elements of ineffectiveness. Jackson did not

specify what more trial counsel could have done to investigate the phone

records and how such an investigation would have benefited his defense. He

did not assert how he was prejudiced and there is no indication from the record

that the outcome of the proceedings would have been different had some

additional step been taken.

      As outlined in the record facts above, the police used the telephone

number provided by M.M. to identify calls between her and Jackson.            The

police executed a search warrant to retrieve Jackson’s phone and obtain his


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call logs. The information stored in the phone and the call logs linked Jackson

to the shooting. Nothing in the record calls into question the veracity or weight

of that evidence. His role in the shooting was also proven independently by

surveillance video showing him discharging a weapon in the Roosevelt Inn.

      Further, Jackson’s suppression claim is waived because he did not raise

it in his petition. See 42 Pa.C.S. § 9543(a)(3); 42 Pa.C.S. § 9544(b). Even

if the claim were preserved, it would be denied because Jackson did not specify

the factual or legal basis for such a motion nor any of the elements of

ineffective assistance of counsel.   Nothing in the record suggests that the

phone or the call logs were illegally obtained by police.

                                       D.

      Finally, as the PCRA court correctly determined, Jackson waived his

claim that the trial judge assumed the role of an advocate. Jackson did not

assert this claim in his PCRA petition. See PCRA Petition, 10/16/2017, at 3-

4. By raising the issue for the first time in his rule 1925(b) Statement, he

failed to preserve it for appeal. See 42 Pa.C.S. §§ 9543(a)(3); 9544(b).

      The issue is waived for an additional reason – Jackson vaguely asserts

that the trial court had improperly advocated for his co-defendant, Fountain,

during the witness’s examination. This issue is framed purely in terms of trial

court error rather than a claim that defense counsel performed ineffectively.

As such, the issue is not cognizable under the PCRA and had to be raised

instead on direct appeal. See Commonwealth v. Santiago, 855 A.2d 682,


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691 (Pa. 2004) (“We have stressed that a claim not raised in a PCRA petition

cannot be raised for the first time on appeal.”); see also Commonwealth v.

Lambert, 797 A.2d 232, 240 (Pa. 2001) (holding that claims which could have

been raised on direct appeal but were not are waived under the PCRA). Thus,

for all of the aforementioned reasons, the dismissal of Jackson’s PCRA petition

must proper.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/27/19




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