J-S31042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANDREW JONES                               :
                                               :
                       Appellant               :   No. 1527 EDA 2017

                    Appeal from the PCRA Order May 3, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0002562-2009

BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.:                              FILED OCTOBER 24, 2018

        Appellant, Andrew Jones, appeals from the May 3, 2017 Order, entered

in the Philadelphia County Court of Common Pleas, dismissing his first Petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9546. After careful review, we affirm.

        The relevant facts and procedural history are, briefly, as follows. On

August 31, 2009, Appellant shot and killed Bruce Lassiter outside a bar located

at Bridge and Johnson Streets in Philadelphia.        Two eye witnesses—Ashley

Crump, who had known Appellant from the neighborhood for years, and

Rodney Johnson—identified Appellant at the scene of the crime as the person

who shot Lassiter.1



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1   These witnesses also gave statements to the police after the crime.
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        The Commonwealth charged Appellant with First-Degree Murder,

Firearms Not to be Carried Without a License, Carrying Firearms in Public in

Philadelphia, Possession of an Instrument of Crime (“PIC”), and Prohibited

Offensive Weapons.2

        At Appellant’s jury trial, Johnson and Crump testified. In addition, Police

Officer Brian Stark of the Crime Scene Unit testified that when he processed

the crime scene he recovered several items, including a bicycle; two spent

shotgun shells; and a shotgun slug.            Notably, the police did not recover a

shotgun at the scene. The Commonwealth did not offer any shotgun, or other

weapon, as evidence at trial.

        Ballistician Kenneth Lay testified that the two fired shotgun shells

recovered from the scene came from the same weapon—a 12 gauge shotgun.

The     shotgun   shells   had    insufficient   microscopic   markings   to   permit

identification.

        Counsel stipulated that police submitted a DNA swab taken from the

bicycle and the shotgun shells found at the scene to the DNA laboratory

resulting in a finding of insufficient information to make any definitive

conclusions.

        On November 23, 2011, a jury convicted Appellant of First-Degree

Murder and PIC.        That same day, the court sentenced Appellant to life

imprisonment on the First-Degree Murder conviction with a concurrent term

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2   18 Pa.C.S. §§ 2502(a); 6106(a)(1); 6108; 907(a); and 908(a), respectively.

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of 2½ to 5 years’ incarceration for the PIC conviction. Appellant filed a timely

Post-Sentence Motion, which the trial court denied on January 5, 2012. This

Court affirmed Appellant’s Judgment of Sentence on December 20, 2012,3 and

the Pennsylvania Supreme Court denied Appellant’s Petition for Allowance of

Appeal on June 7, 2013.4

       On April 15, 2014, Appellant filed a timely pro se first PCRA Petition, in

which he alleged that his counsel was ineffective for failing to investigate the

DNA evidence taken from a shotgun discovered by police at 5221 Glenloch

Street.5 He averred that the Commonwealth withheld such evidence from him

that would have been exculpatory if he had known of it at the time of his trial.

He further contended that the trial court abused its discretion when it informed

the jury that Rodney Johnson had identified Appellant as the shooter. Pro Se

PCRA Petition, 4/15/14, at 4.

       The PCRA court appointed counsel. On June 1, 2015, counsel filed a

Motion for Post Conviction DNA Testing Pursuant to 42 Pa.C.S. § 9543.1.6

Appellant requested DNA testing of the butt of the shotgun recovered at 5221

____________________________________________


3See Commonwealth v. Jones, 64 A.3d 29 (Pa. Super. 2012) (unpublished
memorandum).

4   See Commonwealth v. Jones, 68 a3d 907 (Pa. 2013).

5Police recovered a shotgun from a second-floor closet in a home at 5221
Glenloch Street. Upon his arrest, Appellant told the police that he lived next
door, at 5219 Glenloch Street.

6 The PCRA court docketed this Motion as a Supplemental Amended PCRA
Petition. It did not enter a separate Order disposing of this Motion.

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Glenloch Street and a bandana found wrapped around it, as well as the

shotgun shells recovered from the scene of the crime. He alleged that there

was no physical evidence connecting Appellant to the crime and that “should

the testing of the above material reveal DNA from someone other than

[Appellant], the innocence of [Appellant] would be established at a prima facia

[sic] level.” Motion-DNA Testing, 6/1/15, at 2 (unpaginated) (emphasis in

original).

       On May 10, 2016, the Commonwealth filed a Motion to Dismiss,

asserting that Appellant was ineligible for relief pursuant to 42 Pa.C.S. §

9543.1(a)(1) because DNA technology existed at the time of his 2012 trial.

In the alternative, the Commonwealth averred that Appellant was not entitled

to DNA testing because neither the absence of his DNA from this shotgun and

the shells, nor the presence of someone else’s DNA would have exculpated

him.

       On May 11, 2016, Appellant filed a counseled Amended PCRA Petition,

alleging that trial counsel was ineffective for failing to secure a DNA test of

certain evidence, including a bandana, shotgun, and shotgun shells recovered

at the scene.   Amended PCRA Petition, 5/11/16, at 2 (unpaginated).         He

further alleged that the Commonwealth had provided trial counsel with this




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evidence, and that “a DNA test would have given [Appellant] strong proof of

innocence of the offenses.”7 Id.

       On June 23, 2016, Appellant filed a Response to the Commonwealth’s

Motion to Dismiss his Petition for Post-Conviction DNA Testing. He disputed

the Commonwealth’s claim that the shotgun found at 5221 Glenloch Street

was not the shotgun used in the crime. That same day, Appellant also filed a

Supplemental Amended PCRA Petition, claiming his trial counsel was

ineffective for failing to cross-examine firearms expert witness Kenneth Lay

as to his opinion about whether the shotgun recovered by police was the one

used in the crime, and the fact that the DNA examination of the shotgun

showed that Appellant’s DNA was not on it.       In the alternative, Appellant

averred that his counsel was ineffective for failing to call Lay as a defense

witness.

       On February 6, 2017, the Commonwealth filed a Motion to Dismiss

Appellant’s Supplemental Amended PCRA Petition.          The Commonwealth

argued that Appellant’s trial counsel was not ineffective because he had an

objectively reasonable basis for not questioning the firearms expert about

whether the shotgun recovered from 5221 Glenloch Street was the one used

to kill the victim.         Additionally, the Commonwealth noted that the

Commonwealth did not present the shotgun as evidence at trial because it
____________________________________________


7  On May 31, 2016, in response to Appellant’s May 11, 2016 Amended PCRA
Petition, the Commonwealth filed a Motion to Dismiss [Appellant’s] Petition for
Post-Conviction DNA Testing that appears to be identical to its May 10, 2016
filing of the same name.

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could not be connected to the instant crime, so there would have been no

reason for Appellant’s trial counsel to question the expert about it. Motion to

Dismiss, 2/6/17, at 4-5.

      On April 5, 2017, the PCRA court issued a Pa.R.Crim.P. 907 Notice of

Intent to Dismiss Appellant’s PCRA Petition without a hearing. Appellant did

not file a Response to the PCRA court’s Rule 907 Notice. On May 3, 2017, the

PCRA court dismissed Appellant’s PCRA Petition.

      Appellant filed this timely appeal. Both Appellant and the PCRA court

complied with Pa.R.A.P. 1925.

      Appellant raises the following issue on appeal:

      [] Did the [PCRA] court err in denying [A]ppellant an evidentiary
      hearing when [A]ppellant raised a material issue of fact that trial
      defense counsel was ineffective in failing to introduce physical and
      DNA evidence proving [A]ppellant’s innocence of the crimes?

Appellant’s Brief at 2.

      We review the denial of a PCRA Petition to determine whether the record

supports the PCRA court’s findings and whether its order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This

Court grants great deference to the findings of the PCRA court if the record

supports them. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super.

2007). We give no such deference, however, to the court’s legal conclusions.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).

      To be eligible for relief pursuant to the PCRA, Appellant must establish,

inter alia, that his conviction or sentence resulted from one or more of the


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enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2): a

constitutional violation; ineffective assistance of counsel; an unlawfully

induced plea; improper obstruction by governmental officials; a case where

exculpatory evidence has been discovered; an illegal sentence has been

imposed; or the tribunal conducting the proceeding lacked jurisdiction. See

42 Pa.C.S. § 9543(a)(2)(i)-(viii). Appellant must also establish that the issues

raised in the PCRA petition have not been previously litigated or waived. 42

Pa.C.S. § 9543(a)(3).

        Appellant claims his trial counsel was ineffective for failing to introduce

evidence at trial that the shotgun recovered by police from a residence on the

block where the murder occurred did not contain his DNA. Appellant’s Brief

at 7.    In particular, Appellant avers that there was strong circumstantial

evidence that the shotgun found in 5221 Glenloch Street was the gun used to

kill the victim, and direct evidence that his DNA was not present on it. He

further avers the absence of his DNA on the shotgun proves that he did not

kill the victim. He concludes, therefore, that his trial counsel was ineffective

for not offering this evidence to show that he did not kill the victim.        We

disagree.

        The   law   presumes    counsel   has   rendered    effective   assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he

burden of demonstrating ineffectiveness rests on [A]ppellant.” Id. To satisfy

this burden, Appellant must plead and prove by a preponderance of the

evidence that: “(1) his underlying claim is of arguable merit; (2) the particular

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course of conduct pursued by counsel did not have some reasonable basis

designed to effectuate his interests; and, (3) but for counsel’s ineffectiveness,

there is a reasonable probability that the outcome of the challenged

proceeding would have been different.” Commonwealth v. Fulton, 830 A.2d

567, 572 (Pa. 2003). Failure to satisfy any prong of the test will result in

rejection   of    the   appellant’s   ineffective   assistance   of   counsel   claim.

Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).

      Appellant’s claim that his trial counsel was ineffective lacks merit.

Appellant does not offer any proof in support of his claim that the shotgun

found at 5221 Glenloch Street was the murder weapon.                    Further, the

Commonwealth did not introduce that weapon because it could not show that

that particular shotgun was the murder weapon. See Commonwealth’s Motion

to Dismiss, 2/6/17, at 4-5; Commonwealth’s Brief at 11.

      Significant to this ineffectiveness claim, trial counsel’s strategy rested

on the absence of any murder weapon or other physical evidence linking

Appellant to the murder. Thus, it was objectively reasonable for Appellant’s

counsel not to bring up the existence of the shotgun found at the house next

to Appellant’s.

      Moreover, two eyewitnesses, one of whom had known Appellant for four

years, identified him at the scene, in subsequent statements to police, and at

trial, as the shooter.     Even if Appellant had proven that his trial counsel’s

strategy lacked an objectively reasonable basis, Appellant has failed to prove




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that, but for counsel’s alleged ineffectiveness, the outcome of Appellant’s trial

would have been different. Thus, Appellant’s claim fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/18




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