Com. v. Jones, No. J. A21020/07.

• Court: Superior Court of Pennsylvania
• Writing for the Court: Ford Elliott
• Citation: 942 A.2d 903
• Decision Date: 06 February 2008
• Docket Number: No. J. A21020/07.
• Parties: COMMONWEALTH of Pennsylvania v. Jonathan Paul JONES, Appellant.

942 A.2d 903 COMMONWEALTH of Pennsylvania
v.
Jonathan Paul JONES, Appellant. No. J. A21020/07. Superior Court of Pennsylvania. Argued June 12, 2007. Filed February 6, 2008.

[942 A.2d 905]

Kenneth A. Snarey, Pittsburgh, for appellant.

Sandra Pheuhs, Asst. Dist. Atty. and Michael W. Sreily, Deputy Dist. Atty., for Com., appellee.

BEFORE: FORD ELLIOTT, P.J., MUSMANNO and PANELLA, JJ.

OPINION BY FORD ELLIOTT, P.J.:

¶ 1 Appellant appeals the order entered August 15, 2006, denying his first collateral petition, brought pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. §§ 9541-9546. The petition was denied on the merits without hearing, following proper notice under Pa.R.Crim.P. 907, 42 Pa.C.S.A. We affirm.

¶ 2 On October 18, 2000, a jury found appellant guilty of three counts of burglary, two counts of rape, two counts of aggravated indecent assault, two counts of robbery, and one count of simple assault. The convictions resulted from three separate home invasions in three different Allegheny County municipalities on September 15, 1994, April 4, 1998, and April 19, 1998, respectively. In each instance, an elderly woman was robbed and sexually assaulted. We also note that the crimes echoed the modus operandi of a series of similar home invasions that occurred in eastern Allegheny County and western Westmoreland County beginning in 1993. Ultimately, compelling DNA evidence led to appellant's conviction.

¶ 3 Judgment of sentence was imposed on February 13, 2001, with appellant receiving an aggregate term of 80 to 160 years' imprisonment. On November 22, 2002, this court affirmed the judgment of sentence; and on September 16, 2003, our supreme court denied appeal. Commonwealth v. Jones, 811 A.2d 1057 (Pa.Super.2002), appeal denied, 574 Pa. 765, 832 A.2d 435 (2003).

¶ 4 On April 5, 2004, appellant timely filed a pro se PCRA petition. Counsel was appointed and an amended petition was filed. As noted, appellant's petition was ultimately denied on the merits. On appeal, appellant raises four issues: (1) a claim that the PCRA court erred in not conducting an evidentiary hearing; (2) a layered claim that direct appeal and trial counsel were ineffective for failing to challenge the discretionary aspects of appellant's sentence;¹ (3) a layered claim that

942 A.2d 906

direct appeal counsel was ineffective for not arguing that trial counsel was ineffective for not seeking to suppress the blood and saliva samples taken from appellant; and (4) a claim that direct appeal counsel was ineffective for not arguing that the Commonwealth failed to prove by clear and convincing evidence that appellant was a sexually violent predator. We begin our analysis with our standard of review.

¶ 5 Our standard of review for an order denying post-conviction relief is whether the record supports the PCRA court's determination, and whether the PCRA court's determination is free of legal error. Commonwealth v. Allen, 557 Pa. 135, 732 A.2d 582 (1999). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164 (Pa.Super.2001). Moreover, as three of appellant's four issues on appeal are stated in terms of ineffective assistance of counsel, we also note that appellant is required to make the following showing in order to succeed with such a claim: (1) that the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) that, but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999). The failure to satisfy any prong of this test will cause the entire claim to fail. Commonwealth v. Mallory, 888 A.2d 854 (Pa.Super.2005). Finally, counsel is presumed to be effective, and appellant has the burden of proving otherwise. Commonwealth v. Pond, 846 A.2d 699 (Pa.Super.2004).

¶ 6 We turn first to appellant's argument that the PCRA court erred in not conducting an evidentiary hearing. We find no error here. There is no absolute right to an evidentiary hearing on a PCRA petition, and if the PCRA court can determine from the record that no genuine issues of material fact exist, then a hearing is not necessary. Commonwealth v. Barbosa, 819 A.2d 81 (Pa.Super.2003). All of appellant's PCRA claims pertained to ineffective assistance of counsel. Since such a claim must meet all three prongs of the test for ineffectiveness, if the court can determine without an evidentiary hearing that one of the prongs cannot be met, then no purpose would be advanced by holding an evidentiary hearing. Such is the case instantly.

¶ 7 Appellant contends that counsel was ineffective in failing to challenge the discretionary aspects of his sentence. However, if the PCRA court can determine from the record that the sentence was not excessive, or that adequate reasons were placed on the record for exceeding the sentencing guidelines, then there is no underlying merit to the ineffectiveness claim and the claim must fail. Moreover, whether the sentence is manifestly excessive or whether adequate reasons were placed on the record for exceeding the guidelines are not matters subject to further clarification by the taking of evidence; rather, they are determined, as matters of law, upon a review of the record as it already exists.

¶ 8 Likewise, appellant's challenge that counsel was ineffective for not seeking suppression of the blood and saliva evidence on the basis of a faulty search warrant does not require the taking of further evidence if the court can determine that there is no underlying merit. This assessment can again be made as a matter of law, based upon the face of the warrant.²

942 A.2d 907

¶ 9 Similarly, appellant's final assertion of ineffectiveness, that appellate counsel was ineffective for failing to contest on appeal whether the Commonwealth proved that appellant was a sexually violent predator by clear and convincing evidence may be resolved without taking additional evidence, if the PCRA court can determine that there is no underlying merit to this issue because clear and convincing evidence was offered. Again, however, this decision is a matter of law based upon the evidence that was already presented at the sexually violent predator hearing conducted pursuant to 42 Pa.C.S.A. § 9795.4(e).

¶ 10 In the final analysis, because a claim of ineffectiveness must meet three prongs, and because one of those prongs can often be found wanting from a simple examination of the record as it exists, a PCRA evidentiary hearing based solely on such a claim will often be rendered unnecessary by an examination of the record as it exists. Thus, while an appellant may need a hearing to explore the validity of counsel's trial strategy pursuant to the second prong, such a hearing will be rendered superfluous if the court can determine from the existing record that there has been no prejudice to the appellant under the third prong. In light of these considerations, we find no error on the part of the PCRA court.

¶ 11 Appellant next presents a layered claim that appellate and trial counsel were ineffective in not challenging the discretionary aspects of his sentence. Appellant presents essentially three arguments in this regard. First, appellant complains that the trial court indicated on some of the Guideline Sentence forms that a mandatory minimum sentence applied under 42 Pa.C.S.A. § 9717 because the...