J-S42002-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DEREK RUSSELL JONES,

                            Appellant                 No. 117 WDA 2015


                    Appeal from the PCRA Order June 15, 2011
               In the Court of Common Pleas of Allegheny County
    Criminal Division at No(s): CP-02-CR-0000266-2003, CP-02-CR-0001438-
                                      2003

BEFORE: SHOGAN, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                               FILED JUNE 14, 2016

        Appellant, Derek Russell Jones, appeals from the order denying his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We affirm.

        The relevant facts underlying Appellant’s convictions were set forth by

the trial court as follows:

        On December 15, 2002, three (3) men, including [Appellant],
        entered Big Dawg’s bar in the Beechview section of Pittsburgh
        and proceeded to play pool, at approximately 11:00 p.m.
        Moments later, an argument was heard by Timothy Fritz, a
        patron of Big Dawg’s that night. One of the person[s] identified
        as being involved in the heated argument was [Appellant]. The
        bartender, Jessica Foster, testified to receiving a complaint from
        Rashad Jackson, another patron at the bar, that one of the three
        men was carrying a gun. A witness Daniel Espy testified to
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     seeing [Appellant] carrying a gun in his waistband at this time. A
     witness named Dorian Fancher identified Rashad Jackson and
     Daniel Espy as the two others involved in the argument. Two
     men identified only as ‘Joe’ and ‘Tank’ entered the bar and broke
     up the argument in the pool room. The group of men, which
     included [Appellant], w[as] asked to leave the establishment by
     ‘Joe’ and ‘Tank’. Pittsburgh Police came in response to a call by
     the manager and shortly, thereafter, left [a]s the disturbance
     had ended.

           The group of men left the bar and went to the residence of
     Corey Thomas in the Beechview neighborhood of Pittsburgh.
     Keith Neil Ferguson testified that Jason Bottoms, [Appellant],
     Alphonzo Peoples, and another person were also present in the
     residence. Ferguson testified that they all made a decision to go
     back to Big Dawg’s and fight. Ferguson also testified to hearing
     [Appellant] say that he wanted to get a ‘burner’ (gun). Later that
     same evening a group of people including [Appellant], Alphonzo
     Peoples and another person w[as] seen entering Big Dawg’s bar
     a second time.

            A second argument ensued, which involved the same
     people as earlier in the evening. Again, ‘Joe’ and ‘Tank’
     proceeded to the pool room in the bar to break up the argument.
     A fight then broke out which involved ‘Joe’ and ‘Tank’ along with
     those participating in the argument. Fists were thrown and ‘Joe’
     was knocked to the ground. Timothy Fritz then attempted [to]
     grab ‘Joe’ but fell against a wall. Timothy Fritz heard a gunshot
     fired. Timothy Fritz then identified a man standing on a barstool
     with a gun. This man was identified as [Appellant]. At this time,
     Jason Bottoms heard the deceased Rashad Jackson say ‘I’m Hit’.
     Timothy Fritz then ran behind the other end of the bar, heard
     another shot and moments later saw [Appellant] sweeping the
     gun across the room. Mr. Fritz then saw [Appellant] fire a couple
     shots into the ceiling. Fritz felt his arm fall to his side and
     realized he had been shot. Timothy Fritz testified that it is
     unlikely if he will ever get complete physical use of his hand back
     as a result of the gunshot wound. [Appellant] fled the bar before
     police arrived.

           City of Pittsburgh police officer Richard Colaizzi arrived on
     the scene of the shooting and found Dorian Fancher with a graze
     wound on his head. Later, Pittsburgh Police Detective Magee
     found two (2) copper jacket bullet fragments, five (5) 9mm

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J-S42002-16


      casings, and one (1) .22 caliber casing. There were two bullet
      holes in the ceiling but the officer was not able to retrieve any
      bullet fragments from those holes. Jason Bottoms testified that
      [Appellant] was known to carry a .22 caliber gun in his
      waistband.

            On December 17, Wanda Fitzgerald gave permission to
      Pittsburgh police officer George Trosky to search her residence.
      During the search [Appellant] was found hiding in the basement.
      In the search of Wanda Fitzgerald’s residence a .22 revolver was
      found behind the furnace in the basement by Officer Jesse
      Meyers. Deborah Chalkos, a criminalist at the Allegheny County
      Crime Lab, testified that the gun found at Mrs. Fitzgerald’s home
      matched the .22 cartridge fired at Big Dawg’s. Also, she testified
      that the bullet recovered from Rashad Jackson’s body had the
      same rifling characteristics as the type of gun recovered when
      [Appellant] was arrested. The bullet examined by Deborah
      Chalkos had a distinctive brass-wash as did the .22 cartridge
      that was recovered at the scene of Big Dawg’s.

Trial Court Opinion, 12/30/05, at 2-5 (internal citations omitted).

      On October 22, 2003, Appellant pled nolo contendere to one count of

criminal homicide, which, following a degree-of-guilt hearing, was graded as

third-degree murder. Appellant pled guilty to one count of persons not to

possess a firearm and one count of firearms not to be carried without a

license.   Appellant then proceeded to a bench trial on two charges of

aggravated assault and one count of conspiracy to commit third-degree

murder. At the conclusion of the bench trial, Appellant was found guilty of

one count of aggravated assault and one count of conspiracy. Following all

of these convictions, the trial court sentenced Appellant to an aggregate

term of thirty-one to sixty-two years of incarceration.




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       Appellant filed a timely appeal and on October 24, 2006, this Court

affirmed Appellant’s judgment of sentence, and the Pennsylvania Supreme

Court denied further review on April 3, 2007. Commonwealth v. Jones,

80 WDA 2004, 913 A.2d 942 (Pa. Super. filed October 24, 2006)

(unpublished memorandum), appeal denied, 591 Pa. 724 (Pa. 2007).

Appellant filed a timely PCRA petition on May 12, 2008.1    The PCRA court

appointed counsel who filed a Turner/Finley2 no-merit letter and requested

to withdraw. The PCRA court permitted counsel to withdraw and dismissed

Appellant’s PCRA petition June 15, 2011.

       Appellant filed a timely pro se notice of appeal on July 12, 2011.

However, Appellant’s pro se appeal form was deemed incomplete, and the

Allegheny County Clerk of Records, Criminal Division, directed Appellant to

amend his notice of appeal and add the information that was missing.

Letter, 7/13/11. The Superior Court Office of the Prothonotary directed the

Allegheny County Clerk of Records to return the appeal to Superior Court

once Appellant made the requested amendments.              Letter, 10/5/11.
____________________________________________


1
  As noted, the Pennsylvania Supreme Court denied Appellant’s petition for
allowance of appeal on April 3, 2007. Appellant’s judgment of sentence
became final ninety days later on July 2, 2007, when the time for pursuing a
writ of certiorari in the United States Supreme Court expired. 42 Pa.C.S. §
9545(b)(3); United States Supreme Court Rule 13. Appellant then had one
year, until July 2, 2008, to file a timely PCRA petition. 42 Pa.C.S. §
9545(b)(1).
2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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Appellant avers that he never received notice that his appeal form was

incomplete.    Appellant’s Brief at 6.       Appellant subsequently filed a second

notice of appeal on March 21, 2012, and a second PCRA petition on August

14, 2014.     The PCRA court appointed counsel, and it appears that the

duplicative PCRA petition and appeal were dismissed. Order, 4/28/15. This

enabled Appellant to amend and proceed with his timely-filed July 12, 2011

appeal that had never been disposed of and remained pending before this

Court.   While this procedural history is convoluted, we are satisfied that

Appellant filed a timely appeal from the June 15, 2011 order denying his first

PCRA petition. The matter is now ripe for disposition.

      On appeal, Appellant raises the following issues for this Court’s

consideration:

      1. Did the trial court err in denying Appellant’s PCRA petition
      since Appellant’s nolo contendere plea to homicide at 266-2003
      was involuntary since trial counsel [Robert] Foreman was
      ineffective for misrepres[e]nting the factual circumstances of the
      case and failing to inform Appellant that there was no evidence
      which would have supported voluntary or involuntary
      manslaughter verdicts; if Appellant had been so informed, he
      would not have pled to the homicide charge?

      2. Did the trial court err in denying Appellant’s PCRA petition
      since trial counsel [Robert] Foreman was ineffective for coercing
      Appellant to waive his right to a jury trial?

Appellant’s Brief at 3 (full capitalization omitted).

      Our standard of review of a PCRA court’s denial of a petition for

collateral relief is set forth as follows:




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              “Our review of a PCRA court’s decision is limited to
       examining whether the PCRA court’s findings of fact are
       supported by the record, and whether its conclusions of law are
       free from legal error.” Commonwealth v. Hanible, 612 Pa.
       183, 204, 30 A.3d 426, 438 (2011) (citing Commonwealth v.
       Colavita, 606 Pa. 1, 21, 993 A.2d 874, 886 (2010)). We view
       the findings of the PCRA court and the evidence of record in a
       light most favorable to the prevailing party. Id. . . . “The PCRA
       court’s credibility determinations, when supported by the record,
       are binding on this Court; however, we apply a de novo standard
       of    review    to    the   PCRA    court’s  legal   conclusions.”
       Commonwealth v. Roney, 622 Pa. 1, 16, 79 A.3d 595, 603
       (2013).

Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).

       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, 706 (Pa. Super. 2013) (en banc). Failure to establish any one

of these prongs will defeat an ineffectiveness claim.    Mason, 130 A.3d at

618.

       Appellant first argues that his nolo contendere plea to homicide was

involuntary because his plea counsel never informed him that the evidence

would not support a conviction for voluntary or involuntary manslaughter.

Appellant’s Brief at 23. We find that Appellant’s argument is speculative and

unsupported by the record.

       As noted above, Appellant and his cohorts engaged in a heated

altercation with another group at Big Dawg’s bar. N.T., 10/22-23/03, at 46-


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J-S42002-16


50.   The altercation became physical and shots were fired.         Id. at 50.

Following the initial gunshots, Rashad Jackson suffered a fatal gunshot

wound. Id. at 53, 185. More shots were fired, and witness Timothy Fritz

saw Appellant firing his weapon into the ceiling. Id. at 56. Thus, while the

witness saw Appellant fire his weapon, he did not see Appellant shoot

Rashad Jackson.

      In arguing the degree of guilt issue, Appellant’s counsel asserted that

Appellant’s conduct was in self-defense or at worst, it was reckless; i.e., he

had no intent to kill.    N.T., 10/22-23/03, at 377.       Thus, contrary to

Appellant’s argument on appeal, the defense strategy had the potential to

cause the trial court to grade the homicide as voluntary manslaughter. See

Commonwealth v. Bracey, 795 A.2d 935, 947 (Pa. 2001) (discussing lack

of intent to kill and imperfect self-defense resulting in a voluntary

manslaughter verdict).     Simply stated, a verdict of manslaughter was

possible.   The fact that the trial court ultimately graded the homicide as

third-degree   murder    does   not    render   counsel   ineffective.    See

Commonwealth v. Barnett, 121 A.3d 534, 540 (Pa. Super. 2015)

(explaining that counsel’s decisions will be considered reasonable if they

effectuated his client’s interests, and this Court does not employ a hindsight

analysis in comparing trial counsel’s actions with other efforts he may have

taken).




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      Moreover, Appellant stated on the record that he was aware the

homicide charge could be graded at levels that varied from involuntary

manslaughter to first-degree murder. N.T., 10/22-23/03, at 5. Therefore,

Appellant knew that he was subject to a wide range of criminal culpability

and possible sentences. Id. at 5-9. Appellant cannot reasonably argue that

a conviction for voluntary or involuntary manslaughter was impossible and

that he was induced into entering an involuntary plea on this basis.

Appellant’s argument that counsel was ineffective for failing to inform him

that he had “no chance” of the trial court grading the homicide as voluntary

or   involuntary   manslaughter   is   meritless.   Appellant’s   Brief   at   29.

Accordingly, Appellant’s first claim of ineffective assistance of counsel fails.

Stewart, 84 A.3d at 706.

      Next, Appellant argues that trial counsel was ineffective because he

coerced Appellant into waiving his right to a jury trial. Appellant’s Brief at

29. Appellant claims that his trial counsel told him that counsel was friends

with the judge. Id. at 31. Appellant avers that counsel represented to him

that if he pled guilty, he would receive a lesser sentence, but if he opted for

trial, he would be sentenced to life in prison. Id. After review, we conclude

this issue lacks merit.

      When a criminal defendant opts to waive his right to a jury trial:

      The judge shall ascertain from the defendant whether this is a
      knowing and intelligent waiver, and such colloquy shall appear
      on the record. The waiver shall be in writing, made a part of the
      record, and signed by the defendant, the attorney for the

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      Commonwealth, the judge, and the defendant's attorney as a
      witness.

Pa.R.Crim.P. 620.

      As noted above, Appellant waived his right to a jury trial by pleading

nolo contendere on the homicide charge, pleading guilty to the firearms

violations, and selecting a bench trial on the aggravated assault and

conspiracy charges.   However, the trial court explained Appellant’s rights,

the charges, and potential sentences, and the trial court carefully inquired

into the voluntary nature of Appellant’s waiver of his right to a jury trial.

N.T., 10/22-23/03, at 3-30. During this colloquy, the trial court also asked

Appellant whether he was waiving his right to a jury trial voluntarily or if he

had been promised a particular result:

      THE COURT: Did anybody say there would be a particular result
      from the Court or from the Commonwealth or from anyone with
      regard to the disposition of these charges by your giving up your
      right to a jury trial on all these charges?

      [Appellant]: No, sir.

Id. at 20.

      Appellant is bound by the statements he made.

      The longstanding rule of Pennsylvania law is that a defendant
      may not challenge his guilty plea by asserting that he lied while
      under oath, even if he avers that counsel induced the lies. A
      person who elects to plead guilty is bound by the statements he
      makes in open court while under oath and he may not later
      assert grounds for withdrawing the plea which contradict the
      statements he made at his plea colloquy. A criminal defendant
      who elects to plead guilty has a duty to answer questions
      truthfully. We cannot permit a defendant to postpone the final


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J-S42002-16


      disposition of his case by lying to the court and later alleging
      that his lies were induced by the prompting of counsel.

Commonwealth v. Turetsky, 925 A.2d 876, 881 (Pa. Super. 2007)

(citations omitted).

      After review, we conclude that Appellant voluntarily waived his right to

a jury trial.   Moreover, Appellant specifically stated that his waiver was

voluntary; he may not now rescind that testimony or assert that he lied

about the veracity of his statement. Accordingly, Appellant’s claim that he

was coerced into waiving his right to a jury trial is meritless.

      For the reasons set forth above, we discern no error in the PCRA

court’s denial of Appellant’s PCRA petition. Therefore, we affirm.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/14/2016




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