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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
NATHANIEL J. JONES, :
:
Appellant : No. 1640 EDA 2014
Appeal from the PCRA Order May 16, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0810731-2005
BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MARCH 20, 2015
Appellant, Nathanial L. Jones, appeals pro se from the order entered in
the Philadelphia County Court of Common Pleas dismissing without a hearing
his first, timely Post Conviction Relief Act1 (“PCRA”) petition.2 Appellant
avers the PCRA court erred in denying relief on his claim that trial counsel
provided ineffective assistance because she was inexperienced and not
versed in the rules of procedure. We affirm.
On September 22, 2007, a jury found Appellant guilty of rape, sexual
assault, incest, and endangering the welfare of a child for offenses
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
2
The Commonwealth did not file an appellee’s brief.
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committed against his fifteen-year old daughter, as well as aggravated
indecent assault and corruption of the morals of a minor for acts committed
against his daughter’s fifteen-year old friend.3 On March 7, 2008, the trial
court imposed an aggregate sentence of thirty-one to sixty-two years.
Appellant took a direct appeal with this Court, arguing the trial court
erred in: (1) permitting each complainant to provide hearsay testimony in
bolstering the testimony of each other; (2) allowing evidence of a prior bad
act that occurred more than ten years earlier; (3) denying a motion for a
mistrial because jurors discussed the case outside of the courtroom; (4)
excluding the complainant’s; testimony that they wanted Appellant to be
incarcerated, which would have showed their motive; and (5) imposing an
allegedly excessive sentence. This Court denied relief on all claims and
affirmed the judgment of sentence on January 22, 2010. The Pennsylvania
Supreme Court denied allowance of appeal on December 20, 2010.4
Appellant filed the instant pro se, timely PCRA petition on December
14, 2011.5 The PCRA court appointed counsel to represent him. On March
3
The judge at trial, the Honorable Genece E. Brinkley, also presided over
the instant PCRA proceedings.
4
Commonwealth v. Jones, 979 EDA 2008 (unpublished memorandum)
(Pa. Super. Jan. 22, 2010), appeal denied, 83 EAL 2010 (Pa. Dec. 14, 2010).
5
Appellant’s judgment of sentence became final on Monday, March 21,
2011, when the ninety-day period for filing a writ of certiorari with the
United States Supreme Court expired. See Sup. Ct. R. 13; 1 Pa.C.S. §
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4, 2014, counsel filed a petition to withdraw from representation pursuant to
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). The
PCRA court received an objection from Appellant, which was not filed nor
entered on the docket. PCRA Ct. Op., 7/30/14, at 2. On April 9th, the court
issued Pa.R.Crim.P. 907 notice of intent to dismiss the petition without a
hearing. The PCRA court received an objection from Appellant, which
likewise was not filed. Id. On May 16, 2014, the court entered the instant
order, dismissing Appellant’s petition and allowing PCRA counsel to
withdraw. Appellant took this timely pro se appeal and complied with the
court’s order to file a Pa.R.A.P. 1925(b) statement of errors complained of
on appeal.
At this juncture we summarize the claims advanced in Appellant’s
PCRA petition. He averred trial counsel provided ineffective assistance
because he “did not possess the skill and knowledge to meet the charges
and did not know proper court rules and procedure to represent” him.
Appellant’s Mot. for Post Conviction Collateral Relief, 12/14/11, at 3. In his
supporting brief, Appellant added that at trial, “there were at least eighty-
two . . . instances where the district Attorney objected[,] the Trial Court
immediately sustained the objection and [trial counsel] did not know the
basis of the objection and/or how to proceed after the objection was
1908; 42 Pa.C.S. § 9545(b)(3). Appellant then generally had one year, or
until March 21, 2012, to file a PCRA petition. See 42 Pa.C.S. § 9545(b)(1).
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sustained.” Appellant’s Brief in Support of Post Conviction Relief Act Pet.,
12/14/11, at 4. Appellant claimed that “[o]ften times the objections were
sustained for [trial counsel’s] failure to lay a proper foundation,” and in one
instance, counsel improperly attempted to have a witness read from a
document. Id. Appellant further asserted that during a lunch recess, the
trial court instructed trial counsel, on the record, “to take a refresher course
in Rules of Procedure.” Id. Appellant contended, “At that point a mistrial
should have been granted but of course, there was nobody to ask for a
mistrial due to counsel’s [lack] of knowledge of court procedure.” Id. at 5.
In the instant appeal, Appellant’s argument is a verbatim reproduction
of the claims set forth above. See Appellant’s Brief at 13-16. We find no
relief is due.
“Our standard of review of the denial of a PCRA petition is limited to
examining whether the court's determination is supported by the evidence of
record and free of legal error.” Commonwealth v. Lane, 81 A.3d 974, 977
(Pa. Super. 2013), appeal denied, 92 A.3d 811 (Pa. 2014). This Court has
stated:
The law presumes counsel has rendered effective
assistance. Generally, when asserting a claim of
ineffective assistance of counsel, the petitioner is required
to show: (1) the underlying claim is of arguable merit; (2)
counsel had no reasonable strategic basis for his action or
inaction; and, (3) but for the errors and omissions of
counsel, there is a reasonable probability that the outcome
of the proceedings would have been different. The failure
to satisfy any prong of the test for ineffectiveness will
cause the claim to fail. . . .
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Id. at 978 (citations omitted).
In the instant matter, the PCRA court considered Appellant’s claim
about the eighty-two instances of the trial court’s sustaining the prosecutor’s
objections. It opined that Appellant failed to establish prejudice “as there is
nothing to suggest ‘that the outcome of the proceedings would have been
different’ had trial counsel’s performance been otherwise.” PCRA Ct. Op. at
4. The court found Appellant failed to point “to any specific instance where
trial counsel’s actions prejudiced him so greatly that the outcome of the trial
would have been different.” Id. at 4-5.
We agree. Appellant’s PCRA petition and accompanying brief failed to
establish any of the ineffectiveness prongs. See Lane, 81 A.3d at 978. His
assertion, that “[o]ften times the objections were sustained for . . . failure to
lay a proper foundation,” does not identify any specific ruling or explain how
these rulings prejudiced him. See Appellant’s Brief in Support of Post
Conviction Relief Act Pet. at 4. Appellant also contended that at trial, his
counsel “attempted to have a witness read from a document,” but altered
her question when the Commonwealth objected, although the court had not
ruled on it. Id. Appellant then quoted an exchange at trial, wherein trial
counsel stated, “I’d like to make an objection although it’s after the
question. Why wasn’t I allowed to let her read this? Never mind.” Id.
(quoting N.T., 9/19/07, at 215). Counsel then stated she withdrew the
objection, and the court responded, “That’s right.” Appellant’s Brief in
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Support of Post Conviction Relief Act Pet. at 4 (quoting N.T. at 215).
Appellant provides no explanation of how counsel’s questioning of the
witness or her subsequent exchange with the trial court amounted to
ineffective assistance.
Finally, although Appellant emphasized that the trial court told
counsel, out of the jury’s presence, “to take a refresher course in Rules of
Procedure,” he ignored the context of that remark. Appellant’s Brief in
Support of Post Conviction Relief Act Pet. at 4. Our review of the transcript
reveals the following. The court stated to counsel, “[Y]ou need to brush up
on your rules of procedure and the appropriate way to use any
document[ or] get what you’re trying to get out to a witness.” N.T. at 217.
The court also advised, “If you want to go back and rephrase your question
or try to do it over again, you can.” Id. at 218. We conclude that without
any further discussion in Appellant’s PCRA petition, the PCRA court properly
found he failed to establish: (1) his underlying claim—that counsel was
inexperienced and not versed in the rules of procedure—had arguable merit;
(2) counsel had a reasonable basis for her actions or inaction; and (3) there
is a reasonable probability that the outcome of his trial would have been
different. Appellant’s arguments on appeal fail to overcome the deficiencies
in his PCRA petition. Accordingly, we affirm the order dismissing Appellant’s
petition without a hearing.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/20/2015
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