J-S51006-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

ORRIN JONES

                          Appellant                 No. 558 EDA 2016


               Appeal from the PCRA Order January 29, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0009935-2008


BEFORE: BOWES, J., SHOGAN, J., AND STEVENS, P.J.E.,*

MEMORANDUM BY BOWES, J.:                     FILED SEPTEMBER 27, 2017

     Orrin Jones appeals from the January 29, 2016 order denying him

PCRA relief. We affirm.

     Appellant was charged with possession of a firearm by a prohibited

person, carrying an unlicensed firearm, and possession of a controlled

substance. He proceeded to a jury trial on the charges of possession of an

unlicensed firearm and possession of a controlled substance, and was

represented by Ronald Greenblatt, Esquire. The Commonwealth presented

the following proof.    At midnight on June 14, 2008, Philadelphia Police

Officers Craig Perry and Dennis Johnson were in uniform and patrolling on

Frankford Avenue, Philadelphia, where there is a high volume of drug

dealing activity. Officer Johnson observed Appellant speaking with a female


* Former Justice specially assigned to the Superior Court.
J-S51006-17



at   the    intersection   of   Frankford   Avenue   and   Fulkrod   Street    while

manipulating objects in his right hand. The officers parked and approached

Appellant, and Officer Perry saw that the objects consisted of a bag

containing an off-white chunky substance and two loose pieces of an off-

white chunky substance.          Officer Perry believed that the substance in

question was crack cocaine, but subsequent testing revealed that it was

cocaine base.

      When he saw the two police officers, Appellant dropped the items in

his hand. Officer Perry detained Appellant, patted him down, and discovered

a silver .357 Magnum firearm tucked in Appellant’s belt.              The parties

stipulated that Appellant did not have a valid license to carry a firearm.

      At trial, Appellant presented the testimony of Darnell Ervine.          Ervine

stated that he was a drug dealer in June 2008, and, on June 14, 2008, he

saw Officers Perry and Johnson park their car in the vicinity of Frankford

Avenue and Fulkrod Street. Ervine continued that, once he saw the police,

he immediately discarded his silver .357 Magnum under a vehicle. He then

observed the officers recover that gun from underneath the vehicle while

arresting Appellant. Ervine testified that he was the owner of the weapon in

question.

      Rejecting Ervine’s testimony, a jury convicted Appellant of carrying a

firearm without a license.       It acquitted him of possession of a controlled

substance. The trial court thereafter convicted Appellant of possession of a

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firearm by a prohibited person. N.T. Trial, 5/11/09, at 121. On August 13,

2009, the trial court imposed an aggregate term of incarceration of eight

and one-half to seventeen years in this action.

      Mr. Greenblatt filed the notice of appeal, and, after being ordered to

do so, he also filed the Pa.R.A.P. 1925(b) statement. Appellant then asked

to proceed pro se for purposes of appeal. After conducting a hearing, see

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), the trial court granted

Appellant’s petition to proceed pro se, and he filed a pro se brief claiming

that the trial court erred in denying his motion to suppress the weapon. We

affirmed.   Commonwealth v. Jones, 23 A.3d 1087 (Pa.Super. 2011)

(unpublished memorandum).       On December 15, 2011, our Supreme Court

denied Appellant’s petition for leave to file a petition for allowance of appeal

nunc pro tunc. Commonwealth v. Jones, 36 A.3d 24 (Pa. 2011).

      On April 13, 2012, Appellant filed a timely PCRA petition, counsel was

appointed, and Appellant thereafter moved to proceed pro se. The PCRA

court then conducted another Grazier colloquy to ensure that Appellant’s

waiver of his right to counsel was knowing and voluntary. Appellant

proceeded to file, without permission, additional PCRA petitions on May 16,

2012, October 2, 2013, January 7, 2014, November 19, 2014, and January

13, 2015.     Appellant also filed a motion for an evidentiary hearing in

response to the Commonwealth’s motion to dismiss the PCRA petition.




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      Appellant then retained counsel, Michael L. Doyle, Esquire, who

entered his appearance on April 9, 2015.     Mr. Doyle filed a supplemental

PCRA petition seeking a hearing on whether trial counsel was ineffective for

failing to call a witness, Gregory Brown, at trial. The PCRA court conducted

two hearings, where Mr. Greenblatt and Mr. Brown testified.        Mr. Brown

reported the following. At around midnight on June 14, 2008, he was riding

in a car with Appellant. Appellant spied a woman whom he knew standing at

the intersection of Frankford Avenue and Foulkrod Street, so Appellant

parked his car, exited it, and began to speak with her. Mr. Brown remained

in the car.

      About two to five minutes later, Mr. Brown saw Officers Perry and

Johnson arrive on the scene and approach Appellant.         While one officer

placed Appellant under arrest, the other officer started searching under cars

parked on the street, found the silver .357 Magnum, and walked with it in

his hand to the scene of Appellant’s arrest. Trial counsel, Ronald Greenblatt,

Esquire, testified that he did not present Mr. Brown as a trial witness

because his testimony was inconsistent with that of Ervine in some respects,

Mr. Brown appeared either hungover or drunk when he arrived at trial to

testify, and Ervine was a better witness.

      After the PCRA hearings, Mr. Doyle authored a no-merit letter and

petitioned to withdraw pursuant to Commonwealth v. Turner, 544 A.2d

927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.

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1988) (en banc ). The PCRA court granted that petition and denied relief.

This pro se appeal followed. Appellant raises these issues for our review:

      I. Did the P.C.R.A. Court commit an error of law and fact when it
      held trial counsel was not ineffective for failing to object and
      intervene when several witnesses were not properly sworn in to
      testify?

      II. Did the P.C.R.A. commit an error of law and fact when it held,
      appellate Counsel was not ineffective for failing to properly raise
      and preserve a sufficiency of the evidence issue on appeal by
      waiving this issue in his Pa.R.A.P. Rule 1925(b) Statement of
      Matters Complained of on Appeal?

      III. Did the P.C.R.A. Court commit an error of law and fact when
      it held, trial Counsel was not ineffective for failing to call Gregory
      Brown as a witness?

      IV. Did the P.C.R.A. Court commit an error of law and fact when
      it held, trial counsel was not ineffective for failing to properly
      investigate and present the N.C.I.C. report which would have
      been helpful in establishing the asserted defense?

      V. Did the P.C.R.A. Court commit an error of law and fact when it
      held, the prosecution did not violate Brady v. Maryland by failing
      to turn over an N.C.I.C, report to the defense where the report
      would have been helpful in establishing the asserted defense?

Appellant’s brief at 5-6.

      Initially, we observe, “Our standard of review of a PCRA court's

dismissal of a PCRA petition is limited to examining whether the PCRA

court's determination is supported by the record evidence and free of legal

error.”   Commonwealth v. Whitehawk, 146 A.3d 266, 269 (Pa.Super.

2016). In his first issue, Appellant notes that the transcript fails to contain

the notation that two witnesses were sworn-in, and that an unsworn



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witness’s testimony is considered meaningless.     Appellant insists that trial

counsel was ineffective for failing to object to this procedural irregularity.

The two witnesses in question were Detective James McReynolds, who

established that the .357 Magnum was operable, and Ervine, Appellant’s

defense witness. We examine allegations of ineffective assistance of counsel

under the following standards:

                   Counsel is presumed effective, and to rebut
            that presumption, the PCRA petitioner must
            demonstrate that counsel's performance was
            deficient and that such deficiency prejudiced him.
            Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
            2052, 80 L.Ed.2d 674 (1984).            This Court has
            described the Strickland standard as tripartite by
            dividing the performance element into two distinct
            components. Commonwealth v. Pierce, 515 Pa.
            153, 527 A.2d 973, 975 (1987). Accordingly, to
            prove counsel ineffective, the petitioner must
            demonstrate that (1) the underlying legal issue has
            arguable merit; (2) counsel's actions lacked an
            objective reasonable basis; and (3) the petitioner
            was prejudiced by counsel's act or omission. Id. A
            claim of ineffectiveness will be denied if the
            petitioner's evidence fails to satisfy any one of these
            prongs.

      Commonwealth v. Busanet, 618 Pa. 1, 54 A.3d 34, 35, 45
      (2012). Furthermore, “in accord with these well-established
      criteria for review, an appellant must set forth and individually
      discuss substantively each prong of the Pierce test.”
      Commonwealth v. Fitzgerald, 979 A.2d 908, 910 (Pa.Super.
      2009).

Commonwealth v. Roane, 142 A.3d 79, 88 (Pa. Super. 2016).

      In the present case, the trial court indicated that the transcript of

Appellant’s trial was incorrect to the extent that it neglected to mention that

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the two witnesses were given an oath.            It took judicial notice that all

witnesses at Appellant’s trial were administered an oath, stating: “In the

instant case, given the common knowledge of this Court’s routine practice

and the Court’s personal memory and observation of the proceedings, [the

fact that all witnesses were sworn in] was appropriately judicially noticed.

This Court explained that the witnesses were sworn-in unfailingly at every

case over which this Court had presided.” Trial Court Opinion, 6/23/16, at

5.   While we do not believe that the fact in question was appropriate for the

application of judicial notice,1 we will accept the trial court’s indication that

all witnesses were properly sworn-in during Appellant’s trial.

       We are guided by our Supreme Court’s decision in Commonwealth

ex rel. Spencer v. Ashe, 71 A.2d 799 (Pa. 1950), where the defendant

brought a habeas corpus petition claiming a denial of due process based

upon the fact that the jury was impaneled without him being present. Our

____________________________________________


1
   As we observed in Commonwealth v. Brown, 839 A.2d 433 (Pa.Super.
2003), the concept of judicial notice is outlined in Pa.R.E. 201(b). That rule
states: “A judicially noticed fact must be one not subject to reasonable
dispute in that it is either (1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be
questioned.” Pa.R.E. 201(b) (emphasis added). In this case, it could be
reasonably disputed that a witness might testify without being given an
oath. Furthermore, the issue of whether a particular juror was sworn-in
cannot be ascertained by resorting to indisputably accurate sources. Thus,
the fact at issue cannot be established by judicial notice.




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High Court rejected the position because there was a notation on the docket

that the defendant was present during the trial proceedings. It also applied

the precept that, “A judgment cannot be lightly set aside by collateral

attack, even on habeas corpus. When collaterally attacked, the judgment of

a court carries with it a presumption of regularity” Id. at 800 (quoting

Johnson v. Zerbst, 304 U.S. 458, 468 (1938); see also Commonwealth

v. Wolfe, 605 A.2d 1271, 1273 (Pa.Super. 1992) (there is a “presumption

of regularity” that follows a entry of the judgment of sentence). Given the

trial court’s indication that it ensured that each witness at every trial over

which it presided had been administered the oath and in light of the

presumption that judicial proceedings were properly conducted, we accept

the trial court’s finding that the court reporter inadvertently failed to place

the words “sworn-in” before the two witnesses in question testified.

      In addition, we conclude that Appellant was not prejudiced by trial

counsel’s failure to object. Simply put, even if the two witnesses were not

sworn-in, the fact that their testimony was a nullity would have had no

effect on these proceedings. See Commonwealth v. Daniels, 104 A.3d

267, 281 (Pa. 2014) (with respect to the prejudice aspect of the

ineffectiveness test, the defendant must show that there was “a reasonable

probability that the outcome of the proceeding would have been different but

for counsel's constitutionally deficient performance.”)    Ervine’s testimony

was favorable to Appellant as he represented that he owned the gun

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recovered by police. The absence of Ervine’s proof would not have resulted

in an verdict favorable to Appellant.

      Detective Reynold’s testimony merely went to the operability of the

.357 Magnum.     Appellant was convicted under 18 Pa.C.S. § 6105, which

prohibits certain persons from possessing a firearm. That statute provides

that firearms are defined as “any weapons which are designed to or may

readily be converted to expel any projectile by the action of an explosive or

the frame or receiver of any such weapon.” 18 Pa.C.S. § 6105(i). The silver

.357 Magnum was a weapon designed to expel a projectile by an internal

explosive mechanism.       Regardless of whether the .357 Magnum was

operable, it was a firearm under the definition in question. Thus, Detective

Reynold’s testimony was irrelevant in this case, and the absence of

Detective Reynold’s testimony would not have altered the trial court’s verdict

as to the § 6105 charge.

      Appellant was convicted by the jury of carrying an unlicensed firearm,

which carries the same definition, i.e., a firearm is any weapon designed or

readily capable of being converted to expel a projectile by means of an

explosive device. 18 Pa.C.S. § 6106(e)(1). Under the definition of firearm

in § 6106, it is no longer required that the Commonwealth prove that the

gun is operable to obtain a conviction thereunder.       Commonwealth v.

Gainer, 7 A.3d 291 (Pa.Super. 2010).          Detective Reynold’s testimony

pertained to operability and, even if a nullity, would have not have changed

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the outcome at trial as to the §6106 conviction. Thus, we conclude that the

fact that trial counsel did not object to the fact that Detective Reynolds and

Ervine were not sworn-in did not prejudice Appellant.

      Appellant’s second complaint is that counsel was ineffective for failing

to preserve a challenge to the sufficiency of the evidence in his Pa.R.A.P.

1925(b) statement.    Initially, we note that, while Mr. Greenblatt filed the

Pa.R.A.P. 1925(b) statement, Appellant proceeded pro se after that point.

In his brief, he elected to forego a sufficiency challenge, and he did not

attempt to file a supplemental Pa.R.A.P. 1925(b) statement after he was

permitted to represent himself. A defendant cannot obtain PCRA relief based

upon allegations of ineffectiveness that pertain to his own actions or

inactions when proceeding pro se. Commonwealth v. Blakeney, 108 A.3d

739, 749 (Pa. 2014) (“a defendant who knowingly and intelligently waives

his right to counsel and represents himself at trial cannot later seek to revive

defaulted trial claims by alleging his own ineffectiveness”); see also

Commonwealth v. Fletcher, 986 A.2d 759 (Pa. 2009).

      In addition, Appellant’s sufficiency argument lacks merit.      Appellant

suggests that the evidence was insufficient to establish that he did not have

a license to carry the .357 Magnum on June 14, 2008. Appellant contends

that his name is Preston Jones, not Orrin Jones, and that there was no

stipulation that Preston Jones did not have a license.         First, Appellant

acknowledged at trial that his name was Preston Orrin Jones. N.T. Trial Vol.

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3, 5/11/09, at 74. Second, the stipulation was that the person on trial did

not have a license to carry a gun, and there was no mention of a name.

See N.T. Trial, 5/11/09, at 5 (counsel indicating that he was “stipulating to

the non-licensure”). The jury thus was told that there was stipulation that

“the defendant didn’t have a valid sportsmen permit . . . . and he did not

have a valid firearms permit to carry a gun[.]” Id. at 8 (emphasis added).

Since the stipulation was that the defendant was not licensed and since

Appellant was the defendant at trial, the evidence was not only sufficient but

conclusive to establish that he did not own a gun license. Appellant’s claim

thus lacks merit.

      In his third contention on appeal, Appellant assails the PCRA court’s

determination that Mr. Greenblatt was not ineffective for failing to present

Mr. Brown as a witness. The court found that counsel offered a reasonable

explanation for that decision. Mr. Greenblatt noted inconsistencies between

what Mr. Brown told him and what Ervine told him. Mr. Brown indicated that

there were hardly any people around at the time of Appellant’s arrest while

Ervine reported that there were numerous persons ridding themselves of

items on the street when police arrived. Secondly, Mr. Greenblatt reported

that he concluded that Mr. Brown’s testimony would have been of limited

value since he remained seated in the car during the course of the incident

and had a limited view.     Finally, Mr. Greenblatt testified that, when Mr.

Brown arrived for trial, he appeared intoxicated or hung over.        Counsel

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simply decided to present Ervine, a stronger and more favorable witness. As

Mr. Greenblatt articulated a reasonable strategic basis for not presenting Mr.

Brown, we uphold the PCRA court’s finding that he was not ineffective in this

respect.

       Appellant’s final two allegations on appeal concern a National Crime

Information Center (“NCIC”) report that indicated that the silver .357

Magnum discovered on Appellant’s person            was stolen   in Pottstown,

Pennsylvania sometime prior to 2008. Appellant claims that Ervine testified

that he lived in Pottstown and admitted that he dealt in stolen guns.

Appellant maintains that the NCIC report information that the gun was

stolen in Pottstown supported Appellant’s position that it belonged to Ervine

on June 14, 2008.

       In his fourth averment, Appellant suggests that trial counsel was

ineffective for failing to discover the information in the NCIC report.2 In his

final position, Appellant characterizes the evidence as favorable evidence

that should have been disseminated to him pursuant to Brady v. Maryland,

373 U.S. 83 (1963) (prosecution has a constitutional duty to turn over to the

defendant evidence that has a tendency to exculpate the defendant).

____________________________________________


2
   The Commonwealth indicates that the NCIC report was discussed at the
preliminary hearing, and that the information in it was given to Appellant.
However, the transcript of that proceeding is not in the record, and we
cannot verify these events.



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      However, the record belies Appellant’s position that the NCIC report

supported his defense. Ervine testified that he lived on the streets of

Philadelphia in 2008, that he was arrested and jailed for burglary in

September 2008, and that he did not go to live in Pottstown until after he

was released from prison following his 2008 arrest. N.T. Trial, 5/11/19, at

48 (Ervine stating that when he went to live with an uncle in Pottstown after

he was released from jail following his 2008 arrest, and that he had never

gone to his uncle for help before that time).     At trial, Ervine said that he

obtained the gun in exchange for drugs while he was in Kensington and not

that he obtained it in Pottstown.      Accordingly, the fact that the gun was

stolen in Pottstown prior to 2008 did not lend support to Ervine’s trial

testimony.   Thus, counsel was not ineffective for failing to track down the

NCIC report, and the Commonwealth did not violate Brady by failing to

disseminate it to Appellant prior to trial.

      Appellant’s averments on appeal do not entitle him to post-conviction

relief, and, accordingly, we conclude that the PCRA court’s decision to deny

the PCRA petitions is supported by the record and free of legal error.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/27/2017




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