Com. v. Jones

Decision Date29 December 2006
Docket NumberNo. 425 CAP.,No. 409 CAP.,409 CAP.,425 CAP.
Citation912 A.2d 268
PartiesCOMMONWEALTH of Pennsylvania, Appellee v. Damon JONES, Appellant Commonwealth of Pennsylvania, Cross-Appellant v. Damon Jones, Cross-Appellee.
CourtPennsylvania Supreme Court

Amy Zapp, Harrisburg, Hugh J. Burns, Jr., Philadelphia Dist. Attorney's Office, for the Com. of PA.

Billy Horatio Nolas (No. 409), Michael Wiseman (No. 425), Philadelphia, for Damon Jones.



Justice NEWMAN.

Damon Jones ("Jones") appeals from the Order of the Court of Common Pleas of Philadelphia County ("PCRA court") denying portions of his Petition for Post-Conviction Relief pursuant to the Post Conviction Relief Act ("PCRA").1 The Commonwealth cross-appeals the Order of the PCRA court granting relief in the form of a new penalty hearing. For the reasons set forth herein, we affirm the Order of the PCRA court insofar as it denied a new trial and vacate the Order to the extent that it granted a new penalty hearing.


The facts and procedural history herein recapitulated are taken in large part from Chief Justice Emeritus Flaherty's Majority Opinion on direct appeal, Commonwealth v. Jones, 530 Pa. 591, 610 A.2d 931 (1992). In August 1982, Sylvester Williams ("Williams") confronted Ernest Wright ("Wright") in the courtyard of a housing project in Philadelphia. He demanded that Wright stop selling drugs in that location and took $200.00 from Wright. Williams later spoke with Isaiah Givens ("Givens"), who assured Williams that there would be no acts of reprisal from himself, Jones, or Portie Robertson ("Robertson"). Nevertheless, on the following day, Jones, accompanied by Givens and Robertson, entered the courtyard; each of the three men then began to fire their weapons at Williams who was near the steps of a building that fronted the courtyard. In total, the perpetrators fired approximately twenty shots towards Williams. Numerous people were also in the courtyard; two of them were killed by the gunshots,2 and six others were seriously wounded.3 Williams was not hit. Jones, Givens, and Robertson fled but were soon apprehended by the police.

The three defendants were tried jointly. The jury found Jones guilty of two counts of first-degree murder and six counts each of aggravated assault, criminal conspiracy, and possessing an instrument of a crime.4 After finding two aggravating circumstances and no mitigating circumstances, the jury sentenced Jones to death for both murders.5 Jones filed post-verdict motions and supplemental post-verdict motions totaling ninety claims of error. During the course of three months in 1987, the trial court held an evidentiary hearing on Jones' allegations that trial counsel was ineffective.6 These claims were denied, and the trial court formally imposed the death sentence compelled by the jury. This Court affirmed the conviction and sentence of Jones on direct appeal. Commonwealth v. Jones, 530 Pa. 591, 610 A.2d 931 (1992).7

In July of 1994, Jones filed a pro se Petition for a Writ of Habeas Corpus in the United States District Court for the Eastern District of Pennsylvania. Jones v. Love, 94-CV-4257 (E.D.Pa.1994). Michael Wiseman, Esq., ("Wiseman") who is current counsel, entered an appearance on behalf of Jones. Following litigation in the district court, the United States Court of Appeals for the Third Circuit remanded the Petition to the district court for dismissal without prejudice to permit exhaustion of claims in the state courts. Jones v. Love, (C.A. No. 96-9005) (Order of May 14, 1999).

On January 16, 1997, while his habeas Petition was pending, Jones filed a timely Petition pursuant to the PCRA. After assigning the matter to a different judge, the PCRA court gave defense counsel until March 15, 2000, to file a supplemental amended Petition. The PCRA court heard argument on whether to grant a hearing on the issues raised by the supplemental and amended Petition on July 26, 2000.8 The court granted a hearing on three issues and dismissed all other claims.

Prior to the hearing, Jones filed a discovery Motion requesting the hand-written notes of the trial prosecutor taken during voir dire. He alleged that the prosecutor engaged in racial discrimination during the jury selection process. The PCRA court granted the Motion on July 26, 2001. The Commonwealth filed a Motion for Reconsideration, and the PCRA court subsequently ordered the Commonwealth to produce the prosecutor's hand-written jury selection notes in all cases tried before 1983 that ended in a guilty verdict for first-degree murder. At the request of the Commonwealth, the PCRA court certified the matter for interlocutory appeal. On June 21, 2002, this Court reversed the PCRA court's Order, holding that Jones' claim of racial discrimination was not cognizable. Commonwealth v. Jones, 569 Pa. 229, 802 A.2d 1232 (2002). We remanded the case on November 5, 2002.

The PCRA court completed the evidentiary hearing and subsequently granted a new penalty hearing, finding that trial counsel was ineffective for failing to present: (1) mental health mitigation evidence, pursuant to 18 Pa.C.S. § 9711(e)(3) ("Section 9711(e)(3)"); and (2) other evidence of mitigation, pursuant to 18 Pa.C.S. § 9711(e)(8) ("Section 9711(e)(8)") (known as the "catch-all mitigator"). On July 31, 2003, the PCRA court filed an Opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) denying several of Jones' claims and explaining the reasoning behind its grant of a new penalty hearing.


Both Jones and the Commonwealth appealed the decision of the PCRA court. Jones presents the following seventeen claims:

(1) The jury instructions violated Due Process of Law because they reduced the prosecutor's burden of proof;

(2) The admission at trial of the hearsay identification of Nassia Ford violated various of the rights of Jones;

(3) Prosecutorial misconduct pervaded the trial;

(4) The Commonwealth discriminated against African-American venirepersons in its exercise of preemptory jury challenges;

(5) The failure to provide Jones with trial transcripts denied him rights under the state and federal constitutions;

(6) Jones' rights were violated by the prosecution's concealment of an agreement made with Sylvester Williams and the trial court's subsequent failure to strike his testimony.

(7) The trial court's instructions to the jury were improper;

(8) Jones' constitutional rights were violated by the trial court's constant criticisms of co-defense counsel;

(9) Jones' rights to a fair capital trial under the Sixth and Fourteenth Amendments and his rights under the confrontation clause were abridged when the trial court admitted a newscast from the evening of the murder;

(10) The reasonable doubt instruction violated due process;

(11) The trial court failed to instruct the jury properly on all of the elements of first-degree murder and aggravated assault in violation of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970);

(12) The trial court's instructions on aggravated assault violated Commonwealth v. Nichols, 692 A.2d 181 (Pa.Super.1997);

(13) Jones' conviction violated Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980);

(14) Jones is entitled to relief from his conviction and death sentence because the information and jury instruction omitted essential elements of the offense, namely a specific intent;

(15) Cumulatively, the myriad errors in Jones' trial violated his rights under the Pennsylvania and United States constitutions;

(16) Jones is entitled to an evidentiary hearing; and

(17) Discovery.

(Brief of Jones at iii-v). The Commonwealth, in its cross-appeal, raises two issues:

(1) Did the PCRA court abuse its discretion when it granted an evidentiary hearing and did the PCRA court err when it granted Jones a new penalty hearing?

(2) Did the PCRA court properly dismiss Jones' claims that were not cognizable under the Post Conviction Relief Act?

(Brief of Commonwealth at 3).

Our standard of review of the grant or denial of post-conviction relief is limited to examining whether the lower court's determination is supported by the evidence of record and whether it is free of legal error. Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352, 356 n. 4 (1995). In order to be eligible for PCRA relief, a defendant must plead and prove by a preponderance of the evidence that his conviction or sentence arose from one or more of the errors listed at 42 Pa.C.S. § 9543(a)(2).9 Further, these issues must be neither previously litigated nor waived. 42 Pa.C.S. § 9543(a)(3).

A claim is previously litigated under the PCRA if the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue. 42 Pa.C.S. § 9544(a)(2). On review of Jones's conviction and Judgment of Sentence, we denied relief on the underlying claims that he now raises in issues 6, 7, and 9 and in portions of issue 3. See Commonwealth v. Jones, 530 Pa. 591, 610 A.2d 931, 939-40 (1992) (issue 6); id. at 944 (issue 7); id. at 942 (issue 9); id. at 939, 940-42, 942-44 (portions of issue 3). As we recently held in Commonwealth v. Collins, 585 Pa. 45, 888 A.2d 564, 573 (2005), an allegation of ineffective assistance of counsel is not previously litigated within the meaning of the PCRA merely because its underlying claim was raised on direct appeal. Nevertheless, the above issues are not cognizable notwithstanding Collins because Jones fails to argue that this Court erred in denying relief with respect to any of the underlying claims upon which the issues are premised.10

An allegation is waived "if the petitioner could have raised it but failed to do so before...

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