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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                :     IN THE SUPERIOR COURT OF
                                             :           PENNSYLVANIA
                   Appellee                  :
                                             :
                      v.                     :
                                             :
DAVON JONES,                                 :
                                             :
                   Appellant                 :      1759 WDA 2017

               Appeal from the PCRA Order November 3, 2017
                 in the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0000530-2015

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

MEMORANDUM BY STRASSBURGER, J.:             FILED JULY 24, 2018

      Davon Jones (Appellant) appeals from the order entered November 3,

2017, denying his petition filed pursuant to the Post Conviction Relief Act

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

      We provide the following background. Appellant’s convictions stem from

an incident that occurred in the early morning hours of December 25, 2014,

near Juliet’s Gentleman’s Club, which is located in the 2000 block of West 8 th

Street in Erie. Surveillance video from Juliet’s showed Appellant, along with

several others, entering Juliet’s around 12:44 a.m. that morning. The victim,

DeAngelo Troop, entered about 45 minutes later. Both men left when Juliet’s

closed at 2:00 a.m. Troop and a female got into a vehicle, a Kia Sportage,

with Troop driving, and sped away. Appellant and either one or two other

individuals got into their vehicle, with Appellant driving, and pulled out directly


*Retired Senior Judge assigned to the Superior Court.
J-S34032-18


behind Troop. Subsequently, Troop was shot five times1 from that car, and

Troop proceeded to drive himself to Hamot Hospital.

        Police received a call at around 2:15 a.m. that shots were fired around

the 1800 block of West 8th Street. When police arrived, they found the area

devoid of activity and proceeded to conduct a canvas of the area on foot. They

found some houses with bullet fragments in them and broken glass in the

middle of the street.

        After several attempts to interview Troop while he was hospitalized,

detectives were finally able to interview him on December 30, 2014. During

that interview,2 Troop identified Appellant as the shooter.3      Appellant was

interviewed by Detective Paul Bizzarro on December 30, 2014.            Appellant

denied his involvement in shooting Troop.4




1 Specifically, Troop was shot in his head and neck, which included one bullet
that lodged in his jaw.

2   That interview was recorded and played for the jury during trial.

3  Subsequently, at the preliminary hearing, Troop wavered on this
identification, and testified that he “didn’t see the shooter.” N.T., 2/17/2015,
at 7. He also testified that he did not see who was in the vehicle from where
the shots came. Id. at 24. Furthermore, at a hearing on a petition for writ of
habeas corpus, Troop maintained that Appellant did not shoot him. At trial,
Troop testified that his statement to police was incorrect, and that Appellant
was not the shooter. See N.T., 7/22/2015, at 31-32.

4 That interview was recorded and played for the jury during trial. See N.T.,
7/23/2015, at 26-30. During that interview, Appellant stated that he went to
Juliet’s that night with his cousin and had a few drinks. Appellant
acknowledged knowing Troop, but claims he did not see him that night. When

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      Based on the foregoing, Appellant was charged with numerous offenses,

including attempted murder, conspiracy to commit murder, and aggravated

assault.   A jury trial was held from July 22 to July 24, 2015.        The jury

deadlocked on the count for attempted murder, acquitted Appellant of

conspiracy to commit murder, and convicted Appellant of aggravated assault

and recklessly endangering another person (REAP). The Commonwealth then

filed notice of its intent to seek a mandatory-minimum sentence on the

aggravated assault charge pursuant to 42 Pa.C.S. § 9714(a)(1) (providing

that an individual who is convicted of a crime of violence who has been

convicted previously of a crime of violence shall be sentenced to mandatory

minimum sentence of 10 years of incarceration).

      On September 2, 2015, Appellant was sentenced to a term of 10 to 20

years of incarceration. Appellant timely filed a post-sentence motion, which

was denied. Appellant timely filed a notice of appeal to this Court. On August

30,   2016,   this   Court   affirmed    Appellant’s   judgment   of   sentence.

Commonwealth v. Jones, 156 A.3d 353 (Pa. Super. 2016) (unpublished

memorandum). Appellant did not file a petition for allowance of appeal to our

Supreme Court.

      On June 22, 2017, Appellant, through counsel, filed timely a PCRA

petition asserting several instances of ineffective assistance of trial counsel.



told that Troop identified Appellant as the shooter, Appellant asked police that
both he and Troop take lie detector tests. Police denied that request.

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The Commonwealth filed a response, and on August 26, 2017, the PCRA court

issued notice pursuant to Pa.R.Crim.P. 907 of its intent to dismiss Appellant’s

petition without a hearing. Appellant filed a response, and on November 3,

2017, the PCRA court entered an order and opinion dismissing Appellant’s

petition. Appellant timely filed an appeal to this Court, and the PCRA court

directed this Court to its November 3, 2017 order in lieu of filing an opinion

pursuant to Pa.R.A.P. 1925(a).

      On appeal, Appellant sets forth several issues for our review, which we

consider mindful of the following.   “Our standard of review of a trial court

order granting or denying relief under the PCRA calls upon us to determine

‘whether the determination of the PCRA court is supported by the evidence of

record and is free of legal error.’” Commonwealth v. Barndt, 74 A.3d 185,

192 (Pa. Super. 2013) (quoting Commonwealth v. Garcia, 23 A.3d 1059,

1061 (Pa. Super. 2011)).

      With respect to claims involving ineffective assistance of counsel, we

observe that counsel is presumed to be effective. Commonwealth v.

Washington, 927 A.2d 586, 594 (Pa. 2007). To overcome this presumption

and establish the ineffective assistance of counsel, a PCRA petitioner must

prove, by a preponderance of the evidence: “(1) the underlying legal issue

has arguable merit; (2) that counsel’s actions lacked an objective reasonable

basis; and (3) actual prejudice befell the [appellant] from counsel’s act or

omission.” Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009)


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(citations    omitted).   “[A   petitioner]   establishes   prejudice   when   he

demonstrates that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Id. A claim will be denied if the petitioner fails to meet any one of these

requirements. Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa.

Super. 2008).

      We consider first Appellant’s contention that trial counsel was ineffective

for “not objecting to or making an argument against a charge on accomplice

liability.” Appellant’s Brief at 13. According to Appellant, the Commonwealth

maintained during the entire trial that Appellant was responsible for shooting

Troop, and therefore permitting the trial court to instruct the jury on an

accomplice liability theory was prejudicial. Id. Furthermore, Appellant

suggests that to the extent that the accomplice liability charge was

appropriate, counsel was ineffective for failing to request a “mere presence”

charge. Id.

      At trial, the Commonwealth asked for an accomplice liability charge,

arguing that even if Appellant himself did not shoot Troop, the evidence

established that Appellant was driving the vehicle from where the shots came,

which was sufficient to establish accomplice liability. See N.T., 7/23/2015, at

38. The trial court agreed with this assessment and instructed the jury

accordingly:




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      Now, the Commonwealth alleges that if the defendant did not
      himself commit these crimes, he was an accomplice in their
      commission. You may find the defendant guilty of a crime without
      finding that he personally engaged in the conduct required for the
      commission of that crime.

            A defendant is guilty of a crime if he is an accomplice of
      another person who actually commits the crime. A defendant
      does not become an accomplice merely by being present at
      the scene of a crime or even by knowing about the crime.
      He is an accomplice if, with the intent of facilitating the crime, he
      aids another person in committing it.

N.T., 7/23/2015, at 90 (emphasis added).

      Based on the foregoing, any argument that counsel was ineffective for

failing to request a “mere presence” charge is without merit because the trial

court did provide such a charge. See id. Moreover, we discern no error in

the   trial   court’s    providing   the    accomplice   liability   charge.   The

Commonwealth’s theory of the case, which was supported by the evidence

presented at trial, was that Appellant either shot Troop or was driving the car

from which the shots came. Thus, we conclude there is no arguable merit to

Appellant’s contention that trial counsel was ineffective in failing to object to

this jury instruction.

      Appellant next argues that trial counsel was ineffective for failing to

object to the Commonwealth’s references in its closing statement to

Appellant’s request to take a lie detector test, as well as referring to Appellant

as a liar. Appellant’s Brief at 16. In considering this issue, we point out the

following.



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            The Commonwealth is entitled to comment during closing
      arguments on matters that might otherwise be objectionable or
      even outright misconduct, where such comments constitute fair
      response to matters raised by the defense, or where they are
      merely responsive to actual evidence admitted during a trial.
      Furthermore, prosecutorial misconduct will not be found where
      comments were based on the evidence or proper inferences
      therefrom or were only oratorical flair.

Commonwealth v. Culver, 51 A.3d 866, 876 (Pa. Super. 2012) (citations

omitted).

      Instantly,   Appellant   directs   us    to   the   Commonwealth’s   closing

argument, where the district attorney quotes Appellant as saying during his

interview with police, “Yeah, give me a lie detector test because maybe

[Troop] knows. If I’m asked did I shoot [Troop]? No. And that’s not a lie.”

N.T., 7/23/2015, at 78.     According to Appellant, trial counsel should have

objected to this reference to a lie detector test.

      It is well settled that “the results of lie detector tests are inadmissible

at trial due to their unreliable nature. Therefore, any reference to a lie detector

test which raises an inference concerning the guilt or innocence of a defendant

is inadmissible. The mere mention of a lie detector test, however, does not

constitute reversible error.” Commonwealth v. Stanley, 629 A.2d 940, 942

(Pa. Super. 1993) (internal citation omitted). Our review of the record shows

that Appellant’s counsel stated the following in her closing argument in

reference to Appellant’s interview with police: “What does [Appellant] finally




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say? He didn’t shoot him. Why can’t we all just take lie detector tests?” N.T.,

7/23/2015, at 57.

      Based on the foregoing, because Appellant’s trial counsel utilized

Appellant’s request to take a lie detector test to bolster his credibility and

mentioned it first in her closing argument, it was clearly “fair response” for

the district attorney to mention the same in his closing argument. Culver, 51

A.3d at 876. Furthermore, the Commonwealth’s reference did not “raise[] an

inference concerning the guilt or innocence of” Appellant. Stanley, 629 A.2d

at 942. Thus, any objection made by counsel would have been overruled by

the trial court, and therefore this issue is devoid of arguable merit.

      Appellant also complains his trial counsel should have objected to the

district attorney’s repeatedly referring to Appellant as a liar. Appellant’s Brief

at 16. For example, the district attorney stated the following, in referring to

Appellant’s interview with Detective Bizzarro, during his closing argument:

“Ladies and gentlemen of the jury, that’s a lie. That’s a bold-faced lie. How

do we know that’s a lie? Because on the video in black and white is just the

opposite.” N.T., 7/23/2015, at 76. Appellant argues that it was prejudicial

error for Appellant’s trial counsel not to object to this characterization of

Appellant.

      In this case, the Commonwealth presented surveillance video showing

Appellant in Juliet’s talking to Troop, Appellant getting into his car, Troop

getting into his car, and both driving away. The evidence also showed that


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Troop initially named Appellant as the shooter, then subsequently changed his

mind. Appellant denied involvement in the incident, despite being seen in the

video with Troop in Juliet’s that night. Thus, these comments made by the

district attorney were “based on the evidence or proper inferences therefrom.”

Culver, 51 A.3d at 876; see also Commonwealth v. Busanet, 54 A.3d 35,

64 (Pa. 2012) (stating “reversible error arises from a prosecutor’s comments

only where their unavoidable effect is to prejudice the jurors, forming in their

minds a fixed bias and hostility toward the defendant such that they could not

weigh the evidence objectively and render a fair verdict”).

      Furthermore, Appellant’s entire interview with Detective Bizzarro, which

was played for the jury, focused on whether Appellant was lying to police when

he claimed he was not involved with this incident.      The district attorney’s

summation merely continued that train of thought to its logical conclusion by

suggesting to the jury that Appellant was lying during this interview.

Accordingly, we conclude that any objection made by counsel would have been

overruled; thus, this argument lacks arguable merit and Appellant is not

entitled to relief.

      Appellant also contends that trial counsel was ineffective for failing to

object to the imposition of a 10-year mandatory minimum sentence.

Appellant’s Brief at 10-12. According to Appellant, “the Pennsylvania Supreme

Court in Commonwealth v. Hopkins, 117 A.3d 247 ([Pa.] 2015), struck




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down mandatory sentences in a case such as this,” thus; counsel should have

objected. Appellant’s Brief at 10.

      In Hopkins, this Court held that 18 Pa.C.S. § 6317 (providing for

enhanced penalties for certain crimes committed near schools), was

unconstitutional.    Instantly, Appellant was given a 10-year mandatory

minimum sentence pursuant to 42 Pa.C.S. § 9714 for having been convicted

of a prior crime of violence. Thus, Hopkins is not relevant to this case.

Moreover, this Court has held that sentences such as Appellant’s are legal.

See Commonwealth v. Furness, 153 A.3d 397, 406 (Pa. Super. 2016)

(holding that 10-year mandatory minimum sentence pursuant to 42 Pa.C.S.

§ 9714 for having been convicted of a prior crime of violence was not

unconstitutional). Thus, counsel was not ineffective for failing to object to this

sentence.

      Finally, Appellant contends he was entitled to an evidentiary hearing on

these issues. Appellant’s Brief at 6-9. However, “[t]here is no absolute right

to an evidentiary hearing on a PCRA petition, and if the PCRA court can

determine from the record that no genuine issues of material fact exist, then

a hearing is not necessary.” Commonwealth v. Jones, 942 A.2d 903, 906

(Pa. Super. 2008). “A reviewing court on appeal must examine each of the

issues raised in the PCRA petition in light of the record in order to determine

whether the PCRA court erred in concluding that there were no genuine issues

of material fact and denying relief without an evidentiary hearing.”


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Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001). Based

on the foregoing, having concluded that Appellant has not presented any issue

that required the PCRA court to make a factual determination, we agree with

the PCRA court that Appellant was not entitled to a hearing. Accordingly, he

is not entitled to relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




Date: 7/24/2018




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