J-S54036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 ISAAC JONES                               :
                                           :
                    Appellant              :    No. 398 WDA 2018

              Appeal from the PCRA Order February 16, 2018
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0002958-2012


BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                        FILED SEPTEMBER 13, 2018

      Isaac Jones (Appellant) appeals from the order denying his petition filed

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

After careful consideration, we affirm.

      A prior panel of this Court summarized the relevant factual and

procedural history of this case as follows:

      At trial, the victim, Alvester Clay, testified that during the morning
      of December 24, 2011, he was preparing to open the bar and
      restaurant he owned. At around noon, the door buzzer rang, and
      he allowed a young, tall man into the bar. The man requested a
      drink, and as Clay turned to get one, the man produced a gun.

      The young man pointed the gun at Clay and told him to get on the
      floor. As Clay complied with the order, the young man opened
      the door and allowed another man to enter. This man had his face
      partially covered, but at some point the covering shifted, and Clay
      was able to recognize him as a former employee and regular
      patron at the bar: [Appellant].
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     [Appellant] demanded that Clay give him the keys to Clay’s
     upstairs apartment. When Clay refused, [Appellant] retrieved a
     knife from the kitchen and held it to Clay’s neck. Clay relented
     and opened the door to the upstairs apartment.

     The two assailants escorted Clay upstairs to his apartment, where
     they bound Clay’s hands and feet with duct tape, before locking
     him in a closet. [Appellant] and his accomplice then proceeded to
     ransack Clay’s apartment. After over an hour in the closet, Clay
     was able to free himself and contacted police. He immediately
     identified [Appellant] as one of his assailants.

     In contrast, two alibi witnesses testified that [Appellant] was
     otherwise occupied at the time of the robbery.              Tracee
     Russell, [Appellant’s] girlfriend and mother of his child, testified
     that [Appellant] was home all day playing a video game. Marcus
     Lewis, a friend of [Appellant], testified that he was playing a
     videogame over the internet with [Appellant] from approximately
     8:30 that morning until noon or 1:00 p.m.

     The jury subsequently returned a guilty verdict on charges of
     robbery—serious bodily injury and conspiracy to commit robbery.
     The trial court sentenced [Appellant] to a term of imprisonment of
     five to ten years. [Appellant] filed post-sentence motions, which
     the trial court denied. . . .

Commonwealth v. Jones, 729 WDA 2013, at *1 (Pa. Super. June 1, 2015)

(unpublished memorandum)

     Appellant filed a direct appeal with this Court; we affirmed Appellant’s

judgment of sentence on June 1, 2015. See id. Our Supreme Court denied

Appellant’s petition for allowance of appeal on December 16, 2015.

     On January 23, 2017, Appellant filed a timely pro se PCRA petition.

Counsel was appointed and filed an amended petition on Appellant’s behalf on

July 24, 2017.   On February 15, 2018, the PCRA court held a hearing on

Appellant’s petition. The PCRA court denied Appellant’s petition on February

16, 2018. Appellant filed a timely appeal with this Court. On March 21, 2018,

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the PCRA court ordered Appellant to file a statement of matters complained of

on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate

Procedure.    On April 11, 2018, Appellant timely filed his Rule 1925(b)

statement.

      On appeal, Appellant presents one issue for our review: “Did the PCRA

[c]ourt err in concluding that Appellant did not suffer prejudice as a result of

trial counsel’s omissions at trial and failure to take available reasonable

measures to undermine the credibility of the Commonwealth’s key witness?”

Appellant’s Brief at 3 (PCRA court and suggested answers omitted).

      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quotations and

citations omitted).   “To be entitled to PCRA relief, [an] appellant must

establish, by a preponderance of the evidence, [that] his conviction or

sentence resulted from one or more of the enumerated errors in 42

Pa.C.S.[A.] § 9543(a)(2)[.]” Id.

      In deciding ineffective assistance of counsel claims, we begin with the

presumption that counsel rendered effective assistance. Commonwealth v.

Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that presumption,

the petitioner must establish: “(1) the underlying claim has arguable merit;

(2) no reasonable basis existed for counsel’s action or failure to act; and (3)

the petitioner suffered prejudice as a result of counsel’s error, with prejudice

measured by whether there is a reasonable probability that the result of the

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proceeding would have been different.”              Id. (citation omitted).      To

demonstrate prejudice in an ineffective assistance of counsel claim, “the

petitioner must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). If an

appellant fails to prove by a preponderance of the evidence any of the three

prongs, the Court need not address the remaining prongs of the test.

Commonwealth v. Williams, 863 A.2d 505, 513 (Pa. 2004).

         Appellant argues that the PCRA court erred in concluding that trial

counsel was not ineffective when counsel failed to discredit the testimony of

Clay or implicate Clay’s stepdaughter, Linda Freeman, in the robbery.

Appellant’s Brief at 10-25.        Appellant asserts that Clay’s testimony was

contradictory and that his age impacted his credibility. Likewise, Appellant

contends that Freeman “was similarly aware that there was substantial cash

in the apartment” and was a person-of-interest during the police investigation.

Id. at 15. Appellant submits that trial counsel was ineffective because he

failed to implicate Freeman in the robbery or attack Clay’s testimony during

trial.

         In rejecting Appellant’s ineffective assistance of counsel claim, the PCRA

court concluded that Appellant failed to establish that he suffered actual

prejudice as a result of trial counsel’s alleged omissions. The court explained:

         8) Initially, the court notes that it retains a clear recollection of
         the trial. The court vividly recalls that trial counsel fiercely and
         zealously represented his client, conducted a detailed and

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      thorough cross-examination of [Clay], and delivered a passionate
      argument to the jury as to why [Appellant] should not be
      convicted.

      9) However, as noted in this court’s Opinion issued on September
      15, 2014, [Clay] in this case provided clear, consistent, and
      compelling identification testimony, which was believed by the
      jury. (Trial Court Opinion (“TCO”), 9/15/14, pp. 5-8). [Clay]
      maintained at all times that [Appellant] was one of the two male
      perpetrators of the robbery. Significantly, [Clay] was well familiar
      with [Appellant] and he identified [Appellant] to the police
      immediately following the incident.        [Clay] then identified
      [Appellant] when the authorities presented him with a photo
      array, and subsequently identified [Appellant] in court at trial.
      (TCO, pp. 3-4). Despite PCRA Counsel’s attempt to cast doubt
      over [Clay’s] testimony, [Clay] never wavered in his identification
      of [Appellant] as one of the robbers, and this court, as well as the
      jury, found the victim’s identification testimony to be highly
      credible.

      10) Considering the thorough and zealous cross-examination of
      [Clay] by trial counsel, and considering the credibility of [Clay],
      the court finds that there is no reasonable probability that the
      outcome of the trial would have been different if trial counsel had
      attempted to point the finger at a female as an additional
      accomplice, badgered [Clay] regarding his timeline of events, or
      exploited [Clay’s] initial difficulty in remembering exactly what
      happened to his eyeglasses at the time of the struggle.

      11) To be sure, [Clay] clearly identified the two perpetrators of
      the robbery as males, and the fact that a woman named Linda
      Freeman may somehow have been involved as an accomplice does
      not exonerate [Appellant] in any way or increase the probability
      of an acquittal or hung jury.

PCRA Court Opinion, 2/16/18, at 3-4.

      In advancing his argument, Appellant essentially asks this Court to

reconsider the evidence in the light most favorable to him and deem his

version of the facts credible. However, the PCRA court, who also sat as the

trial court, discredited Appellant. Indeed, as discussed above, the PCRA court


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found Clay’s testimony to be credible and determined that there was no

reasonable probability that the outcome of Appellant’s trial would have been

different if trial counsel had implicated Freeman in the robbery.        In cases

where a PCRA court passes on witness credibility, its credibility determinations

should be provided great deference by reviewing courts.                See, e.g.,

Commonwealth v. (Damon) Jones, 912 A.2d 268, 293 (Pa. 2006);

Commonwealth v. Santiago, 855 A.2d 682, 694 (Pa. 2004) (Opinion

Announcing the Judgment of the Court) (“[W]e are bound by the PCRA court’s

credibility   determinations   where   there   is   record   support   for   those

determinations.”); Commonwealth v. Abu-Jamal, 720 A.2d 79, 99 (Pa.

1998) (“Just as with any other credibility determination, where the record

supports the PCRA court’s credibility determinations, those determinations are

binding on this [C]ourt.”).

      In sum, the record evinces ample support for the PCRA court’s

determination that Appellant failed to present a meritorious ineffective

assistance of counsel claim.    We therefore discern no basis upon which to

reverse the order denying PCRA relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/13/2018

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