J-S12001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                    v.

JOVON DATON JONES

                         Appellant                    No. 1339 MDA 2016


                 Appeal from the PCRA Order July 12, 2016
               In the Court of Common Pleas of York County
            Criminal Division at No(s): CP-67-CR-0005974-2011


BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                            FILED MARCH 10, 2017

      Appellant, Jovon Jones, appeals from the order dismissing his second

petition pursuant to the Post Conviction Relief Act (“PCRA”) as untimely.

Additionally, Jones’s counsel, Heather A. Reiner, Esq., has filed a petition to

withdraw. We affirm the order denying Jones post-conviction relief and grant

counsel leave to withdraw.

      A prior panel of this Court set forth the following factual history of this

case while addressing Jones’s appeal from the denial of his first PCRA

petition:

      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
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     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 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 include first-degree murder, third-degree murder, burglary,
     theft by unlawful taking, abuse of a 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.

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

Commonwealth v. Jones, No. 1315 MDA 2014, at 1-4 (Pa. Super., filed

6/5/15) (unpublished memorandum). The PCRA court denied Jones relief on

his petition, and this Court affirmed that decision. The Supreme Court of

Pennsylvania denied Jones’s petition for allowance of appeal on December

31, 2015. See Commonwealth v. Jones, 130 A.3d 1288 (Table).

      On May 23, 2016, Jones filed the instant PCRA petition pro se,

asserting that the search warrant of his home had been secured by police

through the use of knowingly false testimony. Thereafter, the PCRA court

notified Jones of its intent to dismiss the petition as untimely, to which Jones


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filed a handwritten response detailing his medical history in jail. The PCRA

court proceeded to dismiss the petition as untimely, and Jones filed this

timely pro se appeal. The PCRA court subsequently appointed counsel to

represent Jones during this appeal.

      In   lieu   of   an   advocate’s   brief,   Attorney   Reiner   has   filed   a

Turner/Finley no-merit letter. Thus, we must assess counsel’s assertion

that the issue Jones wishes to raise has no merit pursuant to the following

standards.

      The Turner/Finley decisions provide the manner for post[-]
      conviction counsel to withdraw from representation. The holdings
      of those cases mandate an independent review of the record by
      competent counsel before a PCRA court or [an] appellate court
      can authorize an attorney’s withdrawal. The necessary
      independent review requires counsel to file a “no-merit” letter
      detailing the nature and extent of his [or her] review and list
      each issue the petitioner wishes to have examined, explaining
      why those issues are meritless. The PCRA court, or an appellate
      court if the no-merit letter is filed before it, see Turner, supra,
      then must conduct its own independent evaluation of the record
      and agree with counsel that the petition is without merit[.]

      [T]his Court [has] imposed additional requirements on counsel
      that closely track the procedure for withdrawing on direct
      appeal. . . . [C]ounsel is required to contemporaneously serve
      upon his [or her] client his [or her] no merit letter and
      application to withdraw along with a statement that if the court
      granted counsel’s withdraw request, the client may proceed pro
      se or with a privately retained attorney[.]

Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014) (citation

omitted). Attorney Reiner has served Jones with a copy of her no-merit

letter, and the letter informs Jones of his right to retain private counsel or

proceed pro se, and that he did not need to wait for this Court to rule on

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counsel’s petition to act. Jones has not filed a response. We therefore turn to

the merits of the issue Jones wishes to raise on appeal.

       Jones contends that the PCRA court erred in dismissing his petition.

Jones’s counsel believes that the PCRA court correctly determined that it did

not have jurisdiction over the instant PCRA petition. See Turner/Finley

Letter Brief, at 6-8.1 We review challenges to an order dismissing a petition

under the PCRA to determine whether the order is supported by the

evidence of record and is free of legal error. See Commonwealth v.

Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not

be disturbed unless there is no support for the findings in the certified

record. See Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001).

       Because this is Jones’s second petition for post-conviction relief, he

must meet a more stringent standard. “A second or any subsequent post-

conviction request for relief will not be entertained unless a strong prima

facie showing is offered to demonstrate that a miscarriage of justice may

have occurred.” Commonwealth v. Burkhardt, 833 A.2d 233, 236 (Pa.

Super. 2003) (en banc) (citations and internal quotation marks omitted). “A

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1
  Jones’s counsel also agrees with the PCRA court that the issue raised by
Jones in this petition, the validity of the search warrant authorizing a search
of his home, was previously litigated and waived. See Turner/Finley Letter
Brief, at 8-10. Given that we agree that the PCRA court lacked jurisdiction
over Jones’s petition, we need not reach these issues.



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petitioner makes a prima facie showing if he demonstrates that either the

proceedings which resulted in his conviction were so unfair that a

miscarriage of justice occurred which no civilized society could tolerate, or

that he was innocent of the crimes for which he was charged.” Id. (citations

and internal quotation marks omitted).

      The timeliness of a post-conviction petition is jurisdictional.    See

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

is final, see 42 Pa.C.S.A. § 9545(b)(1), unless the petition alleges, and the

petitioner proves, that an exception to the timeliness requirement exists,

see 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      Jones’s judgment of sentence became final on June 5, 2014, when the

thirty-day period for filing a direct appeal to this Court expired. See 42

Pa.C.S.A. § 9545(b)(3). Thus, Jones had until June 5, 2015, to file a timely

PCRA petition. As Jones filed the instant petition in May 2016, it is patently

untimely unless he has satisfied his burden of pleading and proving that one

of the enumerated exceptions applies.

      Jones did not plead any exceptions to the time bar in his petition. In

his response to the PCRA court’s notice of intent to dismiss, Jones asserts

that he was hospitalized for physical and emotional reasons while in jail, and

this prevented him from filing this petition earlier. However, he did not make


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any attempt to link these facts to any of the statutory exceptions. Most likely

this is because none of the exceptions can be satisfied by his allegations.

      The only exception that could arguably apply to Jones’s allegations is

the governmental interference exception. See 42 Pa.C.S.A. §9545(b)(1)(i).

In order for Jones to obtain relief from the PCRA’s time bar based upon

government interference, he must plead that the “failure to raise the claim

[or claims] previously was the result of interference by government officials

with the presentation of the claim [or claims] in violation of the Constitution

or laws of this Commonwealth or the Constitution or laws of the United

States.” Id. Jones makes no allegation that any prison or hospital official

interfered with his ability to present his claims in a timely manner. We

therefore agree with counsel’s assessment that the PCRA court lacked

jurisdiction over Jones’s petition.

      Order affirmed. Petition to withdraw granted. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/10/2017




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