Commonwealth v. Jones

• Decision Date: 01 November 2021
• Docket Number: 278 MDA 2021
• Parties: COMMONWEALTH OF PENNSYLVANIA v. CALVIN LABRON JONES JR. Appellant
• Court: Pennsylvania Superior Court

COMMONWEALTH OF PENNSYLVANIA
v.
CALVIN LABRON JONES JR. Appellant

No. 278 MDA 2021

Superior Court of Pennsylvania

November 1, 2021

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered February 17, 2021 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0000451-2018.

Joseph D. Seletyn, Esq.

BEFORE: PANELLA, P.J., McCAFFERY, J., and PELLEGRINI, J.^[*]

MEMORANDUM

McCAFFERY, J.

Calvin Labron Jones Jr. (Appellant) appeals from the order entered February 17, 2021 in the Dauphin County Court of Common Pleas dismissing his initial, timely petition filed under the Post Conviction Relief Act (PCRA).^[1]We affirm.

The trial court summarized the factual history as follows:

On the evening of December 8, 2017, Officer Chad McGowan of the Harrisburg Bureau of Police was working as a [s]treet [c]rimes [u]nit [o]fficer with Probation Officer Dan Kinsinger. They came across an individual by the name of Curtis Hall [("Curtis")] in the 1300 block of Swatara Street, a high crime/drug area of Harrisburg[ Pennsylvania]. Officer McGowan testified that the initial reason why they stopped in that area was because his partner recognized Curtis[, who] was standing next to a silver

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minivan. Officer Kinsinger initiated contact with Curtis, who was with his brother Donell Hall [ ("Donell") ] at the time

Officer McGowan exited his vehicle to assist Officer Kinsinger. As he walked over to the minivan, he observed a male, later identified as [Appellant], sitting in the driver's seat. As Officer McGowan approached, [Appellant] got out of the vehicle and started to walk towards him According to Officer McGowan, while Curtis and Donell did not appear to be at all affected by the police presence, [Appellant] appeared very nervous, talkative, excited, and looked as though he was trying to distance himself from the [minivan]. [Appellant] asked to talk to [Officer McGowan] in private, away from [Curtis and Donell], and told him that he was actually working undercover for the [Pennsylvania] State Police, and had previously done work for former Chief Deputy District Attorney Johnny Baer. [Appellant] told Officer McGowan that the officers' presence was [interfering with] the undercover operation. It appeared to Officer McGowan that [Appellant] was [attempting to use] various [distraction techniques to avoid inquiry by the officer].

Through the [minivan's] lowered window, Officer McGowan saw an open, partially consumed bottle of brandy on the front passenger seat. He asked for and [received Appellant's identification card] and asked if [Appellant] had anything illegal on his person. [Appellant] said he did not, and then consented to a search of his person. The only thing found by Officer McGowan was a folded stack of lottery tickets. Officer McGowan then asked for permission to search the minivan. [Appellant] said yes, but then told the officer that it was his girlfriend Khailah Layton's vehicle, and he would feel better if they called her first to get her consent. When asked if there were any drugs or firearms inside the [minivan], [Appellant] told Officer McGowan that he believed his girlfriend left a [gun] in the [minivan]. Officer McGowan asked exactly where [the] gun was located, and [Appellant] told him Ms. Layton left the gun inside her purse on the second[-]row bench seat. They made contact with Ms. Layton and received her consent to search the vehicle. During the search of the [minivan], Officer McGowan found the [gun] directly underneath the second[-]row bench seat, within arm's reach of the driver's seat. There was no purse, only the gun. It was a nine-millimeter semi-automatic Smith and Wesson pistol and was fully-loaded, with a round in the chamber. The firearm was registered to Ms. Layton. [Appellant's] explanation for the gun being in the [minivan] was

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that he, Ms. Layton, and their children had been grocery shopping and Ms. Layton had left her purse inside the [minivan]. [Appellant] was subsequently arrested by Officer McGowan.

When asked who owned the [minivan], Ms. Layton testified that it was not owned by her; rather, it was a loaner [vehicle] given to her from the dealership after she experienced car trouble. At trial Ms. Layton testified that she, [Appellant], and their daughter had gone grocery shopping on the evening in question, although the statement given to the police that night indicated that [Appellant] had not gone shopping with them. Ms. Layton testified that the gun was in her purse, as she had forgotten to take it out, and when they got to the grocery store[, ] she did not want it with her. She claimed to have put it under the [front] passenger seat. Ms. Layton testified that she was carrying a loaded gun because a woman[, ] who [Appellant] had a relationship with[, ] was stalking and harassing her.

[Appellant] took the stand and first admitted that he had [ ]a prior conviction for false identification to law enforcement. He asserted that he had already been in the process of getting out of the minivan when the officers [arrived on] the evening in question, and [he] had been at that location to speak to Curtis. He testified that he did not know that the firearm was in the [minivan] when he gave Officer McGowan consent to search the [vehicle]. Contrary to Officer McGowan's testimony, he claimed that Officer McGowan never asked if there was anything illegal in the vehicle and that [Appellant] never revealed that he knew there was a gun in the [minivan]. Rather,

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