J-S51006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ORRIN JONES
Appellant No. 558 EDA 2016
Appeal from the PCRA Order January 29, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009935-2008
BEFORE: BOWES, J., SHOGAN, J., AND STEVENS, P.J.E.,*
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 27, 2017
Orrin Jones appeals from the January 29, 2016 order denying him
PCRA relief. We affirm.
Appellant was charged with possession of a firearm by a prohibited
person, carrying an unlicensed firearm, and possession of a controlled
substance. He proceeded to a jury trial on the charges of possession of an
unlicensed firearm and possession of a controlled substance, and was
represented by Ronald Greenblatt, Esquire. The Commonwealth presented
the following proof. At midnight on June 14, 2008, Philadelphia Police
Officers Craig Perry and Dennis Johnson were in uniform and patrolling on
Frankford Avenue, Philadelphia, where there is a high volume of drug
dealing activity. Officer Johnson observed Appellant speaking with a female
* Former Justice specially assigned to the Superior Court.
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at the intersection of Frankford Avenue and Fulkrod Street while
manipulating objects in his right hand. The officers parked and approached
Appellant, and Officer Perry saw that the objects consisted of a bag
containing an off-white chunky substance and two loose pieces of an off-
white chunky substance. Officer Perry believed that the substance in
question was crack cocaine, but subsequent testing revealed that it was
cocaine base.
When he saw the two police officers, Appellant dropped the items in
his hand. Officer Perry detained Appellant, patted him down, and discovered
a silver .357 Magnum firearm tucked in Appellant’s belt. The parties
stipulated that Appellant did not have a valid license to carry a firearm.
At trial, Appellant presented the testimony of Darnell Ervine. Ervine
stated that he was a drug dealer in June 2008, and, on June 14, 2008, he
saw Officers Perry and Johnson park their car in the vicinity of Frankford
Avenue and Fulkrod Street. Ervine continued that, once he saw the police,
he immediately discarded his silver .357 Magnum under a vehicle. He then
observed the officers recover that gun from underneath the vehicle while
arresting Appellant. Ervine testified that he was the owner of the weapon in
question.
Rejecting Ervine’s testimony, a jury convicted Appellant of carrying a
firearm without a license. It acquitted him of possession of a controlled
substance. The trial court thereafter convicted Appellant of possession of a
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firearm by a prohibited person. N.T. Trial, 5/11/09, at 121. On August 13,
2009, the trial court imposed an aggregate term of incarceration of eight
and one-half to seventeen years in this action.
Mr. Greenblatt filed the notice of appeal, and, after being ordered to
do so, he also filed the Pa.R.A.P. 1925(b) statement. Appellant then asked
to proceed pro se for purposes of appeal. After conducting a hearing, see
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), the trial court granted
Appellant’s petition to proceed pro se, and he filed a pro se brief claiming
that the trial court erred in denying his motion to suppress the weapon. We
affirmed. Commonwealth v. Jones, 23 A.3d 1087 (Pa.Super. 2011)
(unpublished memorandum). On December 15, 2011, our Supreme Court
denied Appellant’s petition for leave to file a petition for allowance of appeal
nunc pro tunc. Commonwealth v. Jones, 36 A.3d 24 (Pa. 2011).
On April 13, 2012, Appellant filed a timely PCRA petition, counsel was
appointed, and Appellant thereafter moved to proceed pro se. The PCRA
court then conducted another Grazier colloquy to ensure that Appellant’s
waiver of his right to counsel was knowing and voluntary. Appellant
proceeded to file, without permission, additional PCRA petitions on May 16,
2012, October 2, 2013, January 7, 2014, November 19, 2014, and January
13, 2015. Appellant also filed a motion for an evidentiary hearing in
response to the Commonwealth’s motion to dismiss the PCRA petition.
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Appellant then retained counsel, Michael L. Doyle, Esquire, who
entered his appearance on April 9, 2015. Mr. Doyle filed a supplemental
PCRA petition seeking a hearing on whether trial counsel was ineffective for
failing to call a witness, Gregory Brown, at trial. The PCRA court conducted
two hearings, where Mr. Greenblatt and Mr. Brown testified. Mr. Brown
reported the following. At around midnight on June 14, 2008, he was riding
in a car with Appellant. Appellant spied a woman whom he knew standing at
the intersection of Frankford Avenue and Foulkrod Street, so Appellant
parked his car, exited it, and began to speak with her. Mr. Brown remained
in the car.
About two to five minutes later, Mr. Brown saw Officers Perry and
Johnson arrive on the scene and approach Appellant. While one officer
placed Appellant under arrest, the other officer started searching under cars
parked on the street, found the silver .357 Magnum, and walked with it in
his hand to the scene of Appellant’s arrest. Trial counsel, Ronald Greenblatt,
Esquire, testified that he did not present Mr. Brown as a trial witness
because his testimony was inconsistent with that of Ervine in some respects,
Mr. Brown appeared either hungover or drunk when he arrived at trial to
testify, and Ervine was a better witness.
After the PCRA hearings, Mr. Doyle authored a no-merit letter and
petitioned to withdraw pursuant to Commonwealth v. Turner, 544 A.2d
927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.
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1988) (en banc ). The PCRA court granted that petition and denied relief.
This pro se appeal followed. Appellant raises these issues for our review:
I. Did the P.C.R.A. Court commit an error of law and fact when it
held trial counsel was not ineffective for failing to object and
intervene when several witnesses were not properly sworn in to
testify?
II. Did the P.C.R.A. commit an error of law and fact when it held,
appellate Counsel was not ineffective for failing to properly raise
and preserve a sufficiency of the evidence issue on appeal by
waiving this issue in his Pa.R.A.P. Rule 1925(b) Statement of
Matters Complained of on Appeal?
III. Did the P.C.R.A. Court commit an error of law and fact when
it held, trial Counsel was not ineffective for failing to call Gregory
Brown as a witness?
IV. Did the P.C.R.A. Court commit an error of law and fact when
it held, trial counsel was not ineffective for failing to properly
investigate and present the N.C.I.C. report which would have
been helpful in establishing the asserted defense?
V. Did the P.C.R.A. Court commit an error of law and fact when it
held, the prosecution did not violate Brady v. Maryland by failing
to turn over an N.C.I.C, report to the defense where the report
would have been helpful in establishing the asserted defense?
Appellant’s brief at 5-6.
Initially, we observe, “Our standard of review of a PCRA court's
dismissal of a PCRA petition is limited to examining whether the PCRA
court's determination is supported by the record evidence and free of legal
error.” Commonwealth v. Whitehawk, 146 A.3d 266, 269 (Pa.Super.
2016). In his first issue, Appellant notes that the transcript fails to contain
the notation that two witnesses were sworn-in, and that an unsworn
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witness’s testimony is considered meaningless. Appellant insists that trial
counsel was ineffective for failing to object to this procedural irregularity.
The two witnesses in question were Detective James McReynolds, who
established that the .357 Magnum was operable, and Ervine, Appellant’s
defense witness. We examine allegations of ineffective assistance of counsel
under the following standards:
Counsel is presumed effective, and to rebut
that presumption, the PCRA petitioner must
demonstrate that counsel's performance was
deficient and that such deficiency prejudiced him.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). This Court has
described the Strickland standard as tripartite by
dividing the performance element into two distinct
components. Commonwealth v. Pierce, 515 Pa.
153, 527 A.2d 973, 975 (1987). Accordingly, to
prove counsel ineffective, the petitioner must
demonstrate that (1) the underlying legal issue has
arguable merit; (2) counsel's actions lacked an
objective reasonable basis; and (3) the petitioner
was prejudiced by counsel's act or omission. Id. A
claim of ineffectiveness will be denied if the
petitioner's evidence fails to satisfy any one of these
prongs.
Commonwealth v. Busanet, 618 Pa. 1, 54 A.3d 34, 35, 45
(2012). Furthermore, “in accord with these well-established
criteria for review, an appellant must set forth and individually
discuss substantively each prong of the Pierce test.”
Commonwealth v. Fitzgerald, 979 A.2d 908, 910 (Pa.Super.
2009).
Commonwealth v. Roane, 142 A.3d 79, 88 (Pa. Super. 2016).
In the present case, the trial court indicated that the transcript of
Appellant’s trial was incorrect to the extent that it neglected to mention that
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the two witnesses were given an oath. It took judicial notice that all
witnesses at Appellant’s trial were administered an oath, stating: “In the
instant case, given the common knowledge of this Court’s routine practice
and the Court’s personal memory and observation of the proceedings, [the
fact that all witnesses were sworn in] was appropriately judicially noticed.
This Court explained that the witnesses were sworn-in unfailingly at every
case over which this Court had presided.” Trial Court Opinion, 6/23/16, at
5. While we do not believe that the fact in question was appropriate for the
application of judicial notice,1 we will accept the trial court’s indication that
all witnesses were properly sworn-in during Appellant’s trial.
We are guided by our Supreme Court’s decision in Commonwealth
ex rel. Spencer v. Ashe, 71 A.2d 799 (Pa. 1950), where the defendant
brought a habeas corpus petition claiming a denial of due process based
upon the fact that the jury was impaneled without him being present. Our
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1
As we observed in Commonwealth v. Brown, 839 A.2d 433 (Pa.Super.
2003), the concept of judicial notice is outlined in Pa.R.E. 201(b). That rule
states: “A judicially noticed fact must be one not subject to reasonable
dispute in that it is either (1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be
questioned.” Pa.R.E. 201(b) (emphasis added). In this case, it could be
reasonably disputed that a witness might testify without being given an
oath. Furthermore, the issue of whether a particular juror was sworn-in
cannot be ascertained by resorting to indisputably accurate sources. Thus,
the fact at issue cannot be established by judicial notice.
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High Court rejected the position because there was a notation on the docket
that the defendant was present during the trial proceedings. It also applied
the precept that, “A judgment cannot be lightly set aside by collateral
attack, even on habeas corpus. When collaterally attacked, the judgment of
a court carries with it a presumption of regularity” Id. at 800 (quoting
Johnson v. Zerbst, 304 U.S. 458, 468 (1938); see also Commonwealth
v. Wolfe, 605 A.2d 1271, 1273 (Pa.Super. 1992) (there is a “presumption
of regularity” that follows a entry of the judgment of sentence). Given the
trial court’s indication that it ensured that each witness at every trial over
which it presided had been administered the oath and in light of the
presumption that judicial proceedings were properly conducted, we accept
the trial court’s finding that the court reporter inadvertently failed to place
the words “sworn-in” before the two witnesses in question testified.
In addition, we conclude that Appellant was not prejudiced by trial
counsel’s failure to object. Simply put, even if the two witnesses were not
sworn-in, the fact that their testimony was a nullity would have had no
effect on these proceedings. See Commonwealth v. Daniels, 104 A.3d
267, 281 (Pa. 2014) (with respect to the prejudice aspect of the
ineffectiveness test, the defendant must show that there was “a reasonable
probability that the outcome of the proceeding would have been different but
for counsel's constitutionally deficient performance.”) Ervine’s testimony
was favorable to Appellant as he represented that he owned the gun
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recovered by police. The absence of Ervine’s proof would not have resulted
in an verdict favorable to Appellant.
Detective Reynold’s testimony merely went to the operability of the
.357 Magnum. Appellant was convicted under 18 Pa.C.S. § 6105, which
prohibits certain persons from possessing a firearm. That statute provides
that firearms are defined as “any weapons which are designed to or may
readily be converted to expel any projectile by the action of an explosive or
the frame or receiver of any such weapon.” 18 Pa.C.S. § 6105(i). The silver
.357 Magnum was a weapon designed to expel a projectile by an internal
explosive mechanism. Regardless of whether the .357 Magnum was
operable, it was a firearm under the definition in question. Thus, Detective
Reynold’s testimony was irrelevant in this case, and the absence of
Detective Reynold’s testimony would not have altered the trial court’s verdict
as to the § 6105 charge.
Appellant was convicted by the jury of carrying an unlicensed firearm,
which carries the same definition, i.e., a firearm is any weapon designed or
readily capable of being converted to expel a projectile by means of an
explosive device. 18 Pa.C.S. § 6106(e)(1). Under the definition of firearm
in § 6106, it is no longer required that the Commonwealth prove that the
gun is operable to obtain a conviction thereunder. Commonwealth v.
Gainer, 7 A.3d 291 (Pa.Super. 2010). Detective Reynold’s testimony
pertained to operability and, even if a nullity, would have not have changed
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the outcome at trial as to the §6106 conviction. Thus, we conclude that the
fact that trial counsel did not object to the fact that Detective Reynolds and
Ervine were not sworn-in did not prejudice Appellant.
Appellant’s second complaint is that counsel was ineffective for failing
to preserve a challenge to the sufficiency of the evidence in his Pa.R.A.P.
1925(b) statement. Initially, we note that, while Mr. Greenblatt filed the
Pa.R.A.P. 1925(b) statement, Appellant proceeded pro se after that point.
In his brief, he elected to forego a sufficiency challenge, and he did not
attempt to file a supplemental Pa.R.A.P. 1925(b) statement after he was
permitted to represent himself. A defendant cannot obtain PCRA relief based
upon allegations of ineffectiveness that pertain to his own actions or
inactions when proceeding pro se. Commonwealth v. Blakeney, 108 A.3d
739, 749 (Pa. 2014) (“a defendant who knowingly and intelligently waives
his right to counsel and represents himself at trial cannot later seek to revive
defaulted trial claims by alleging his own ineffectiveness”); see also
Commonwealth v. Fletcher, 986 A.2d 759 (Pa. 2009).
In addition, Appellant’s sufficiency argument lacks merit. Appellant
suggests that the evidence was insufficient to establish that he did not have
a license to carry the .357 Magnum on June 14, 2008. Appellant contends
that his name is Preston Jones, not Orrin Jones, and that there was no
stipulation that Preston Jones did not have a license. First, Appellant
acknowledged at trial that his name was Preston Orrin Jones. N.T. Trial Vol.
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3, 5/11/09, at 74. Second, the stipulation was that the person on trial did
not have a license to carry a gun, and there was no mention of a name.
See N.T. Trial, 5/11/09, at 5 (counsel indicating that he was “stipulating to
the non-licensure”). The jury thus was told that there was stipulation that
“the defendant didn’t have a valid sportsmen permit . . . . and he did not
have a valid firearms permit to carry a gun[.]” Id. at 8 (emphasis added).
Since the stipulation was that the defendant was not licensed and since
Appellant was the defendant at trial, the evidence was not only sufficient but
conclusive to establish that he did not own a gun license. Appellant’s claim
thus lacks merit.
In his third contention on appeal, Appellant assails the PCRA court’s
determination that Mr. Greenblatt was not ineffective for failing to present
Mr. Brown as a witness. The court found that counsel offered a reasonable
explanation for that decision. Mr. Greenblatt noted inconsistencies between
what Mr. Brown told him and what Ervine told him. Mr. Brown indicated that
there were hardly any people around at the time of Appellant’s arrest while
Ervine reported that there were numerous persons ridding themselves of
items on the street when police arrived. Secondly, Mr. Greenblatt reported
that he concluded that Mr. Brown’s testimony would have been of limited
value since he remained seated in the car during the course of the incident
and had a limited view. Finally, Mr. Greenblatt testified that, when Mr.
Brown arrived for trial, he appeared intoxicated or hung over. Counsel
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simply decided to present Ervine, a stronger and more favorable witness. As
Mr. Greenblatt articulated a reasonable strategic basis for not presenting Mr.
Brown, we uphold the PCRA court’s finding that he was not ineffective in this
respect.
Appellant’s final two allegations on appeal concern a National Crime
Information Center (“NCIC”) report that indicated that the silver .357
Magnum discovered on Appellant’s person was stolen in Pottstown,
Pennsylvania sometime prior to 2008. Appellant claims that Ervine testified
that he lived in Pottstown and admitted that he dealt in stolen guns.
Appellant maintains that the NCIC report information that the gun was
stolen in Pottstown supported Appellant’s position that it belonged to Ervine
on June 14, 2008.
In his fourth averment, Appellant suggests that trial counsel was
ineffective for failing to discover the information in the NCIC report.2 In his
final position, Appellant characterizes the evidence as favorable evidence
that should have been disseminated to him pursuant to Brady v. Maryland,
373 U.S. 83 (1963) (prosecution has a constitutional duty to turn over to the
defendant evidence that has a tendency to exculpate the defendant).
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2
The Commonwealth indicates that the NCIC report was discussed at the
preliminary hearing, and that the information in it was given to Appellant.
However, the transcript of that proceeding is not in the record, and we
cannot verify these events.
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However, the record belies Appellant’s position that the NCIC report
supported his defense. Ervine testified that he lived on the streets of
Philadelphia in 2008, that he was arrested and jailed for burglary in
September 2008, and that he did not go to live in Pottstown until after he
was released from prison following his 2008 arrest. N.T. Trial, 5/11/19, at
48 (Ervine stating that when he went to live with an uncle in Pottstown after
he was released from jail following his 2008 arrest, and that he had never
gone to his uncle for help before that time). At trial, Ervine said that he
obtained the gun in exchange for drugs while he was in Kensington and not
that he obtained it in Pottstown. Accordingly, the fact that the gun was
stolen in Pottstown prior to 2008 did not lend support to Ervine’s trial
testimony. Thus, counsel was not ineffective for failing to track down the
NCIC report, and the Commonwealth did not violate Brady by failing to
disseminate it to Appellant prior to trial.
Appellant’s averments on appeal do not entitle him to post-conviction
relief, and, accordingly, we conclude that the PCRA court’s decision to deny
the PCRA petitions is supported by the record and free of legal error.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/2017
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