Commonwealth v. Jones

Decision Date03 December 2002
Citation571 Pa. 112,811 A.2d 994
PartiesCOMMONWEALTH of Pennsylvania, Appellee v. Aaron JONES, Appellant.
CourtPennsylvania Supreme Court

Daniel Silverman, Philadelphia, for Aaron Jones, appellant.

Catherine Marshall, Philadelphia, for the Com.

Robert A. Graci, Harrisburg, for Office of Atty. Gen., appellee.




This is an appeal from the denial of appellant's petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa. C.S. § 9541 et seq. Appellant alleges various claims of trial court error, prosecutorial misconduct, and ineffective assistance of counsel. For the reasons set forth herein, we find that appellant is not entitled to relief and, accordingly, we affirm the order of the PCRA court.

On January 19, 1993, appellant was convicted of first degree murder and criminal conspiracy to commit murder in connection with the August 18, 1990, shooting death of Brian Kennedy. Following a penalty hearing, the jury determined that the one aggravating circumstance it unanimously found outweighed the one mitigating circumstance it found and returned a verdict of death on the murder charge.1

The facts underlying appellant's conviction were set forth at length in this Court's opinion on direct appeal. See Commonwealth v. Jones, 542 Pa. 464, 668 A.2d 491 (1995)

. In brief, the trial evidence showed that appellant was the leader of the "Junior Black Mafia" (JBM), an organization which distributed drugs within Philadelphia. Appellant orchestrated the murder of Brian Kennedy in order to avenge the death of Leroy Davis, another high-ranking member of the JBM, who was believed by the organization to have been murdered by Brian Thornton. However, Thornton was incarcerated when appellant planned his revenge. Thus, appellant and his co-defendants decided to "hit" Thornton's cousin, Kennedy, in order to avenge Davis' death and to send a message to Thornton that killing a fellow JBM member would not go unpunished. Appellant facilitated Kennedy's murder by inter alia: instructing his co-defendants on where and how to murder Kennedy, arranging for the car that was used in the murder, and supplying funds to help his co-defendants abscond after the murder.

Appellant was represented by Gerald Stein, Esquire, both at trial and on direct appeal. On November 25, 1995, this Court affirmed appellant's convictions and sentence of death. Id. On January 16, 1996, reargument was denied. The United States Supreme Court denied certiorari on October 7, 1996. Jones v. Pennsylvania, 519 U.S. 826, 117 S.Ct. 89, 136 L.Ed.2d 45 (1996).

On October 18, 1996, appellant filed a PCRA petition pro se. Presently retained counsel entered his appearance and, on September 22, 1997, counsel filed an amended PCRA petition. A supplemental petition was filed on October 23, 1997. On January 12, 1998, the PCRA court, per the Honorable John J. Poserina, Jr., dismissed the petition without a hearing. This appeal followed.

After filing the notice of appeal, appellant filed a series of substantive motions in this Court, including: (1) a Motion for Remand to the PCRA Court on the Basis of Newly Discovered Evidence—specifically, a superficial review of the Philadelphia criminal justice system by professors David Baldus and George Woodworth (the "Baldus Woodworth study"), and a 1987 videotape made by an assistant district attorney (the "McMahon tape"); (2) a Motion to Supplement the Record with Evidence Obtained after the Lower Court Record Closed-specifically, alleged after-discovered evidence that one of the trial jurors knew appellant and his family, was aware of his involvement in the JBM, and had had a dispute with appellant's nephew; and (3) a Motion for Remand for Meaningful Judicial Review and Disqualification of PCRA Judge or, in the alternative, for an Order that Lower Court Draft an Opinion. On December 23, 1999, this Court issued per curiam orders denying the first two motions, and granting the third motion in part, as we directed the PCRA judge to produce an opinion addressing the issues raised in appellant's appellate brief.2 The trial court has since complied with our directive.

Since the PCRA petition in this case was filed after January 17, 1996, it is governed by the current, amended version of the PCRA. To be eligible for relief under the PCRA, an appellant must prove by a preponderance of the evidence that the conviction or sentence he is collaterally attacking resulted from one of seven specifically enumerated circumstances. 42 Pa.C.S. § 9543(a)(2) (as amended effective January 17, 1996).3 In addition, an appellant must prove that the issues he raises have not been previously litigated or have not been waived. Id. § 9543(a)(3).

Appellant raises nineteen claims for review. The majority of these claims are procedurally barred, i.e., they are previously litigated, they are waived under the PCRA, or they are waived for failure to raise them in the PCRA court below. For purposes of clarity, this Court will not address appellant's claims seriatim, but instead will address those claims that are procedurally barred under Pennsylvania law first.

Appellant raises a number of claims, the underlying substances of which were addressed by this Court on direct appeal. A claim is previously litigated under the terms of the PCRA if, inter alia, the highest appellate court in which the petitioner could have had review of the claim as a matter of right has ruled on the merits of the issue. 42 Pa.C.S. § 9544(a)(2). As a result of the PCRA's previous litigation bar, this Court will not address the following five claims:

(1) whether trial counsel was ineffective at the penalty phase for failing to object to the testimony of a Commonwealth witness, State Police Officer Ansel, regarding other homicides, which was both irrelevant and hearsay (Argument III);
(2) whether trial counsel was ineffective at the guilt phase for failing to object to the trial court's allegedly inadequate curative instruction regarding Christopher Anderson's testimony, which was issued in response to a defense objection (Argument XIV);
(3) whether trial counsel was ineffective at the guilt phase for failing to object to the trial court's allegedly inadequate curative instruction regarding the trial prosecutor's closing argument, which was issued in response to a defense objection (Argument XV);
(4) whether the trial court erred in advising trial counsel before closing arguments in the guilt phase that it would issue an instruction describing a Commonwealth witness as an admitted accomplice/polluted source, thereby causing counsel to rely on that instruction, and then refusing to give that instruction (Argument XVI); and
(5) whether direct appeal counsel was ineffective for failing to properly argue on appeal his claim that the trial court erred in denying severance (Argument XVIII).

Appellant attempts to avoid the PCRA's previous litigation bar by couching these claims in terms of ineffective assistance of counsel or by slightly altering the focus or contours of the claims. It is well-settled, however, that a PCRA petitioner cannot obtain review of claims that were previously litigated by presenting new theories of relief, including allegations of ineffectiveness. See, e.g., Commonwealth v. Bond, ___ Pa. ___, ___ A.2d ___, ___, 2002 WL 1958492, at * 3-4 (Pa. Aug.23, 2002); Commonwealth v. Bracey, 568 Pa. 264, 795 A.2d 935, 939 n. 2 (2001); Commonwealth v. McCall, 567 Pa. 165, 786 A.2d 191, 196 (2001); Commonwealth v. Michael, 562 Pa. 356, 755 A.2d 1274, 1277 (2000); Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167, 1183 (1999). Accordingly, these five claims are procedurally barred from review.

In Argument VIII, appellant claims that his sentence of death was disproportionate to the penalty imposed in similar cases, in violation of § 9711(h)(3)(iii),4 because he is the only "mob-type boss" who did not himself deliver the fatal blow occupying Pennsylvania's death row. The fact that there is no other death row prisoner in his precise circumstances leads appellant to argue that the proportionality review conducted by this Court on direct appeal was "flawed." Since, as appellant necessarily concedes, the proportionality of his sentence was actually decided by this Court on direct appeal, this claim is previously litigated. Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 708 (1998) ("This court has already fulfilled its statutory obligation to review Appellant's sentence for proportionality and ruled against him on this issue. This issue is now beyond the purview of the PCRA because it was previously litigated.") In any event, the notion that "proportionality" review requires exact factual equivalence between cases to approve a sentence of death is obviously meritless.

With respect to this same claim, appellant also requests access to the sentencing data employed by this Court in its proportionality review, which he claims is necessary to properly brief his claim. We rejected a similar such claim in Albrecht, noting that the records were fully accessible to the public, thus giving appellant access to the data. Id. at 708 n. 16 (citing Commonwealth v. DeHart, 512 Pa. 235, 516 A.2d 656, 669 (1986)). Thus, appellant is not entitled to additional or collateral proportionality review of his sentence.

Appellant raises an additional seven claims that are procedurally barred under the PCRA's waiver provision. See 42 Pa.C.S. § 9544(b) (issue is waived if petitioner failed to raise it and the issue could have been raised, inter alia, before trial, at trial, or on appeal). The seven statutorily waived claims are:

(1) whether the trial court's manner of conducting voir dire violated Pennsylvania and federal law because it resulted in the exclusion of jurors who merely "may" or "might" have difficulty imposing a death sentence (Argument

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