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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JAMIL LUTE JONES
Appellant No. 1726 WDA 2017
Appeal from the PCRA Order entered October 18, 2017
In the Court of Common Pleas of Erie County
Criminal Division at No: CP-25-CR-0002076-2015
BEFORE: BOWES, STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 29, 2018
Appellant, Jamil Lute Jones, appeals from the October 18, 2017 order
dismissing his timely first petition pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. § 9541-9546. We affirm.
A prior panel of this Court summarized the pertinent facts:
During her shift on July 5, 2015, Officer [Cheryl] Frey saw
Appellant, two other adults and a small child crossing the street
on foot. Appellant was wearing a red vest. Officer Frey recognized
Appellant’s face but could not recall his name. She thought his
name might be Laquan Martin. During the roll call prior to her
shift, the names of Appellant and Laquan Martin were listed as
having active warrants. Officer Frey got out of her vehicle and
asked Appellant for his identification. Appellant asked Officer Frey
why she was stopping him, and Officer Frey responded that she
believed there was a warrant for his arrest. Appellant took off his
vest and handed it to a friend before giving Officer Frey his
identification. After confirming through dispatch that there was a
warrant, Officer Frey handcuffed Appellant and retrieved
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* Retired Senior Judge assigned to the Superior Court.
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Appellant’s vest from his friend, who still had the vest over his
arm.
While Officer Frey was walking Appellant back to the vehicle,
Appellant asked Officer Frey why she took the vest, claiming it
belonged to his friend. Officer Frey told him she was suspicious
of why he would hand it to his friend when all she wanted was his
identification. Appellant then told Officer Frey there was a firearm
in the vest. According to Officer Frey, she did not ask Appellant
any questions to prompt this statement. Officer Frey placed
Appellant in the back of her vehicle and laid the vest on the
ground. When back-up officers arrived, they retrieved a .380
automatic Ruger from the vest and unloaded it.
Commonwealth v. Jones, 1329 WDA 2016 (Pa. Super. June 16, 2017),
unpublished memorandum, at 1-2 (record citations omitted).
On September 18, 2015, the Commonwealth filed a criminal information
charging Appellant with, among other things, firearms not to be carried
without a license, 18 Pa.C.S.A. § 6106. Appellant filed a pre-trial motion to
suppress evidence. The trial court denied the motion on March 3, 2016. The
trial court conducted a jury trial on March 21 and 22, 2016, at the conclusion
of which the jury found Appellant guilty under § 6106. Following a July 27,
2016 sentencing hearing, the trial court imposed two and one-half to six years
of incarceration. On June 16, 2017, this Court affirmed the judgment of
sentence, rejecting Appellant’s challenges to the denial of his suppression
motion and the trial court’s sentencing discretion. Appellant filed his timely
first pro se PCRA petition on June 29, 2017. Appointed counsel filed a
supplemental petition on August 14, 2017. On September 22, 2017, the PCRA
court issued its Pa.R.Crim.P. 907 notice of intent to dismiss the petition
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without a hearing. On October 18, 2017, the PCRA court entered its final
order dismissing the petition. This timely appeal followed.
Appellant claims trial counsel was ineffective, pursuant to
§ 9543(a)(2)(ii) of the PCRA, for failing to preserve a challenge to the
sufficiency of the evidence during trial and on direct appeal. Appellant’s Brief
at 2. “On appeal from the denial of PCRA relief, an appellate court’s standard
of review is whether the ruling of the PCRA court is free of legal error and
supported by the record.” Commonwealth v. Jones, 932 A.2d 179, 181
(Pa. Super. 2007). To establish that counsel was ineffective, a petitioner must
plead and prove that (1) the underlying issue is of arguable merit; (2) counsel
had no reasonable strategic basis for the action or inaction; and (3) counsel’s
error prejudiced the petitioner. Commonwealth v. Travaglia, 661 A.2d 352
(Pa. 1995), cert. denied, 516 U.S. 1121 (1996). Failure to establish all three
prongs results in failure of the claim. Id.
Appellant argues that trial counsel should have challenged the
sufficiency of the evidence because the Commonwealth’s case rested entirely
on the testimony of Officer Frey, and no other evidence confirmed his
possession of a concealed firearm. As noted above, Officer Frey testified that
she observed Appellant wearing a vest; that Appellant removed the vest and
handed it to his friend; and that back-up officers retrieved a firearm from
inside the vest after Officer Frey retrieved it from Appellant’s friend. Where a
defendant challenges the sufficiency of the evidence in support of a conviction,
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the reviewing court must view the evidence in the light most favorable to the
Commonwealth as verdict winner, and the court cannot reweigh the evidence
or make credibility determinations. Commonwealth v. Kane, 10 A.3d 327,
332 (Pa. Super. 2010), appeal denied, 29 A.3d 796 (Pa. 2011). Given the
strictures governing a sufficiency of the evidence challenge, the reviewing
court would not have been free to discredit Officer Frey’s testimony or reweigh
it in light of any other relevant evidence. Because Officer Frey’s testimony
was more than sufficient to establish that Appellant was in possession of a
concealed firearm, any challenge to the sufficiency of the evidence was
doomed to failure. We reject Appellant’s assertion of ineffective assistance of
counsel because the underlying issue lacks arguable merit.
Discerning no error in the PCRA court’s decision, we affirm the order
dismissing Appellant’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2018
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