J-S28008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                        v.

JOVON DATON JONES,

                        Appellant                    No. 1315 MDA 2014


                 Appeal from the PCRA Order July 14, 2014
               In the Court of Common Pleas of York County
            Criminal Division at No(s): CP-67-CR-0005974-2011


BEFORE: BOWES, ALLEN, and LAZARUS, JJ.

MEMORANDUM BY BOWES, J.:                              FILED JUNE 05, 2015

      Jovon Daton Jones appeals from the order entered July 14, 2014, by

the court denying his petition filed pursuant to the Post-Conviction Relief Act

(“PCRA”). We affirm.

      The underlying facts of this matter involve the killing of Alesia Martin,

whose body was discovered in her home on May 16, 2011. Appellant lived

in a row home next door to the victim. Family members became concerned

when they were unable to contact Ms. Martin. One of her family members,

Bryce Bennett, entered into her home by going through a crawl space

between Appellant’s attic and the victim’s residence. Appellant allowed Mr.

Bennett to use the crawl space but did not accompany him.         Mr. Bennett

found the victim in a state of undress in her bedroom with blood on the

walls. Her bed had been stripped of the bedding and a large bloodstain was
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on the bed.    Mr. Bennett opened the front door and telephoned 911 with

Appellant’s cell phone but was too distraught to speak.

      Appellant volunteered for an interview with police on May 18, 2011.

Appellant initially indicated that, after Mr. Bennett opened the door to the

victim’s home, Appellant went upstairs into the victim’s room. According to

him, the 911 dispatcher asked him to touch the body and see if it was cold.

However, two other family members of the victim who were at the house

when the body was discovered contacted police after seeing Appellant

provide media outlets with graphic descriptions of the scene. These family

members insisted that Appellant had not entered the victim’s bedroom. Mr.

Bennett also confirmed that Appellant had not gone into the bedroom, as did

several other witnesses who had been present.

      Based on this information, police secured a search warrant for

Appellant’s home, and requested Appellant to come in for a second

interview.    Appellant did volunteer to be interviewed and he was given

Miranda warnings.      The interview was both audio and video recorded.

Police interviewed Appellant from 10:51 p.m. until 5:31 a.m., with various

breaks in between.    Ultimately, Appellant admitted to stealing the victim’s

cell phone and implicated himself in the killing.         Police then arrested

Appellant. After a preliminary hearing, Appellant’s charges were amended to




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include first-degree murder, third-degree murder, burglary, theft by unlawful

taking, abuse of corpse, tampering with evidence, and unsworn falsification.

      Appellant litigated a suppression motion and proceeded to trial. The

Commonwealth and defense counsel agreed that portions of Appellant’s May

19-20 video interview would be redacted.       Defense counsel notified the

prosecution via email of the portions of the video he believed should be

redacted.   The parties agreed that a portion of the video that referenced

other burglary allegations would not be played for the jury. However, during

the trial, the Commonwealth played that section before stopping the video.

The section of the video where Appellant admitted to being inside the house

had not yet been played. Defense counsel requested a mistrial, which the

trial court granted.

      Following the mistrial, the Commonwealth obtained additional DNA

evidence implicating Appellant. The parties entered into plea negotiations.

The Commonwealth sought a plea to third-degree murder and the other

charges in exchange for a twenty-five to fifty year sentence.       Although

represented by counsel, Appellant filed with the court a pro se motion to

dismiss based on double jeopardy grounds. Defense counsel received that

motion but did not pursue it.       Thereafter, Appellant entered a nolo

contendere plea to third-degree murder, theft by unlawful taking, abuse of

corpse, tampering with evidence, and unsworn falsification in exchange for a


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sentence of twenty-five to fifty years. The court imposed sentence on May

6, 2014.

      Appellant, acting pro se, wrote to the court complaining of counsel’s

representation and requested new counsel.       That motion was docketed on

May 21, 2014. A similar motion was docketed on June 4, 2014. However,

prior to that, the court, on May 30, 2014, appointed new counsel. Counsel

did not file a direct appeal but submitted a petition for post-conviction relief.

Therein, Appellant asserted that counsel rendered ineffective assistance by

not moving to dismiss the charges on double jeopardy grounds, which

improperly induced him to enter the guilty plea.     The PCRA court conducted

an evidentiary hearing on July 14, 2014.

      The PCRA court denied Appellant’s petition, and this timely appeal

ensued. The court directed Appellant to file and serve a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal.        Appellant complied,

and the PCRA court authored its Rule 1925(a) decision. The matter is now

ready for this Court’s review.        Appellant presents one issue for our

consideration.

      1. Whether the PCRA court erred in denying the Petition for
         Post-Conviction Relief which argued that the Appellant’s trial
         counsel rendered constitutionally ineffective assistance of
         counsel in violation of the Sixth and Fourteenth Amendments
         to the United States Constitution, and under Article 1, Section
         9 of the Pennsylvania Constitution, by improperly inducing the
         Appellant into entering a no contest plea on May 6, 2014 to
         the charges of Theft by Unlawful Taking, Murder of the Third

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         Degree, Abuse of Corpse, Tampering with Physical Evidence,
         and Unsworn Falsification, by failing to move to dismiss the
         charges because of a violation of the Double Jeopardy clauses
         of the Fifth and Fourteenth Amendments to the United States
         Constitution, and under Article 1, Section 10 of the
         Pennsylvania Constitution, following the mistrial declaration at
         the conclusion of his June 2013 jury trial.

Appellant’s brief at 3.

      In reviewing a PCRA appeal, we consider the record “in the light most

favorable to the prevailing party at the PCRA level.”     Commonwealth v.

Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).         In performing this

review, we consider the evidence of record and the factual findings of the

PCRA court. Id. We afford “great deference to the factual findings of the

PCRA court and will not disturb those findings unless they have no support in

the record.”   Id.   Accordingly, so long as a PCRA court’s ruling is free of

legal error and is supported by record evidence, we will not disturb its

decision. Id. Where the issue presents a question of law, “our standard of

review is de novo and our scope of review is plenary.” Id.

      Appellant’s position relates to the effectiveness of plea counsel.    “To

plead and prove ineffective assistance of counsel a petitioner must establish:

(1) that the underlying issue has arguable merit; (2) counsel's actions

lacked an objective reasonable basis; and (3) actual prejudice resulted from

counsel's act or failure to act.” Commonwealth v. Stewart, 84 A.3d 701,




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706 (Pa.Super. 2013) (en banc). The failure to meet any of these aspects of

the ineffectiveness test results in the claim failing. Id.

      A claim has arguable merit where the factual predicate is accurate and

“could establish cause for relief.”    Id.    at 707.   A determination as to

whether the facts asserted present a claim of arguable merit is a legal one.

Id.   In considering whether counsel acted reasonably we do not use a

hindsight analysis; rather, an attorney’s decision is considered reasonable if

it effectuated his client’s interests. Id. Only where “no competent counsel

would have chosen that action or inaction, or, the alternative, not chosen,

offered a significantly greater potential chance of success[,]” will counsel’s

strategy be considered unreasonable. Id. Finally, actual prejudice exists if

“there is a reasonable probability that, but for counsel's errors, the result of

the proceeding would have been different.” Id.

      Appellant argues that, based on Commonwealth v. Smith, 615 A.2d

321 (Pa. 1992), and Commonwealth v. Wood, 803 A.2d 217 (Pa.Super.

2002), the Commonwealth’s actions herein should have precluded a retrial.

In Smith, the defendant was convicted of murdering a woman and her

children but was granted a new trial based upon the erroneous admission of

hearsay.    After the award of the new trial, Smith discovered that the

Commonwealth      deliberately   withheld    material   exculpatory   evidence.

Specifically, the prosecutor intentionally did not inform the defendant about


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a plea agreement that it reached with its chief witness, who had actually lied

on the witness stand when he denied that the Commonwealth had promised

him favorable treatment in return for his testimony.         Furthermore, the

district attorney deliberately withheld physical evidence that he knew was

exculpatory to the defendant because it supported the defendant’s theory of

the case. Indeed, when a police officer testified about the existence of the

evidence, the prosecutor presented testimony from other police witnesses

suggesting that the first officer was fabricating his testimony.

      The Pennsylvania Supreme Court in Smith characterized the actions of

the district attorney as egregious and clearly undertaken in bad faith.     It

discharged the defendant and ruled that “the double jeopardy clause bars

retrial following intentional prosecutorial misconduct designed to secure a

conviction through the concealment of exculpatory evidence” as well as

when a prosecutor intentionally induces a mistrial in order to secure a

second chance at conviction when a trial appears to be headed toward

acquittal. Id. at 322. It concluded that, when the record demonstrates the

presence of “prosecutorial misconduct undertaken in bad faith to prejudice

or harass the defendant,” as opposed to “prosecutorial error,” double

jeopardy prevents a second trial because there is a “breakdown of the

integrity of the judicial proceeding[.]” Id. at 324. Under Smith, discharge

is warranted only when “the conduct of the prosecutor is intentionally


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undertaken to prejudice the defendant to the point of the denial of a fair

trial.” Id. at 325.

        In Wood, this Court remanded for an evidentiary hearing on the

defendant’s double jeopardy claim. Therein, the victim of a purse snatching

died as the result of injuries suffered during the robbery.        The trial court

granted a mistrial after the defendant alleged that the Commonwealth had

failed to disclose both exculpatory and inculpatory evidence.         Specifically,

the defendant alleged that the prosecutor withheld witness identifications of

other     potential   assailants,   conducted   unconstitutional     identification

procedures of Wood, and did not inform him of a witness identification of

him as the attacker until that person testified in court. Prior to retrial, the

defendant filed a double jeopardy motion, which the trial court denied. As

noted, this Court did not resolve the merits of the double jeopardy claim.

        In this case, the Commonwealth responds that the prosecutor testified

that the playing of the portion of the video that should have been redacted

was accidental, and the court credited that testimony.         In addition, the

Commonwealth contends that trial counsel provided a reasonable basis for

not forwarding a double jeopardy challenge.         It maintains that counsel

testified that he had no basis to conclude the Commonwealth acted

intentionally since the strongest part of its case had yet to be presented.

Further, the Commonwealth posits that counsel set forth that such a motion


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may have inhibited plea negotiations. Thus, it argues that Appellant’s claim

is meritless.

      Prosecutorial misconduct can implicate the double jeopardy clause.

Under the federal constitution, the double jeopardy clause prevents a

defendant from being retried when a prosecutor deliberately provokes the

defendant into moving for a mistrial. See Oregon v. Kennedy, 456 U.S.

667 (1982). In the seminal Smith decision, our Supreme Court, pursuant to

the strictures of the Pennsylvania Constitution, expanded a defendant’s

double jeopardy protection.     See Commonwealth v. Simone, 712 A.2d

770, 773 (Pa.Super. 1998).

      In Commonwealth v. Martorano, 741 A.2d 1221 (Pa. 1999), the

Court applied the Smith standard and ruled that double jeopardy prevented

retrial of the defendants in that case.    Therein, the prosecutor engaged in

misconduct intentionally undertaken to prejudice defendants to the point of

denial of a fair trial.   Specifically, during trial, the district attorney was

“consistently making reference to evidence that the trial court had ruled

inadmissible, continually defying the trial court's rulings on objections, and,

in a tactic that can only be described as Machiavellian, repeatedly insisting

that there was fingerprint evidence linking [defendants] to the crime when

the prosecutor knew for a fact that no such evidence existed.” Id. at 1227.




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Thus, our Supreme Court concluded that the defendants were entitled to

discharge under the precepts of Smith.

     On the other hand, in Commonwealth v. Burke, 781 A.2d 1136 (Pa.

2001), our Supreme Court made it clear that prosecutorial conduct does not

warrant a new trial unless it is deliberate and egregious and that even gross

negligence by the prosecutor does not mandate dismissal of the charges

against a defendant. Therein, during the course of the defendant’s trial, the

Commonwealth learned of evidence in the file of a police detective that was

subject to mandatory pretrial discovery. The materials included a statement

that the defendant made to police, which was subject to mandatory

discovery under the rules of criminal procedure, as well as a statement that

the Commonwealth’s chief witness had given to police that was exculpatory

to the defendant, which must also be automatically revealed to a defendant

under the due process clause pursuant to Brady v. Maryland, 373 U.S. 83

(1963).

     By the time the evidence was given to the defendant, the witness in

question had testified and was discharged.    The trial court noted that the

prosecutor, with a minimal amount of effort, could have uncovered the

statements and concluded that the problem was created by circumstances

under the Commonwealth’s control.      The trial court dismissed the action.

We reversed, and the Supreme Court “granted allocatur to clarify the duty of


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prosecutors in securing discovery materials and to examine whether and

when dismissal is an appropriate sanction for a discovery violation.” Id. at

1140.

        In that case, the trial court found the Commonwealth to be grossly

negligent and lacking in due diligence in failing to uncover the evidence. We

concluded that since the district attorney asked police for the evidence and

the police claimed the evidence did not exist, the prosecutor’s conduct was

innocent.     The Supreme Court ruled that, regardless of whether the

prosecutor had exhibited gross negligence, such conduct was insufficient to

warrant the remedy of dismissal under the Smith standard. It reaffirmed

that    discharge   is   permitted   only   when   the   prosecutor’s   conduct   is

deliberately designed to deprive the defendant of a fair trial.          See also

Commonwealth v. Kearns, 70 A.3d 881 (Pa.Super. 2013).

        Here, the PCRA court determined that the prosecutor’s playing of the

tape was accidental. There is support in the record for that position based

on the prosecutor’s testimony that the PCRA court deemed credible. Since

the prosecution’s actions herein were not the type of egregious misconduct

that occurred in Smith, supra or Mastorano, supra, counsel cannot be

ineffective for failing to pursue a double jeopardy motion. Appellant’s claim

is without merit.




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        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/2015




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