Com. v. Jones, D. ( 2022 )

J-S07008-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DEANDRE PAYTON JONES, JR. :
:
Appellant : No. 631 WDA 2021
Appeal from the PCRA Order Entered April 20, 2021
In the Court of Common Pleas of Indiana County Criminal Division at
No(s): CP-32-CR-0000621-2016
BEFORE: OLSON, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED: May 3, 2022
Appellant, Deandre Payton Jones, Jr., appeals from the order entered
on April 20, 2021, which denied his petition filed pursuant to the
Post-Conviction Relief Act.1 We affirm.
A prior panel of this Court summarized the facts of Appellant’s
underlying convictions for second-degree murder, robbery, and conspiracy to
commit robbery2 as follows:
On September 29, 2014, Michael Eades, Jr., drove Appellant,
Kevin King, and Stanley Boynton from Altoona to [the victim’s]
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
218 Pa.C.S.A. §§ 2502(B), 3701(A)(1)(ii), and 903, respectively. Appellant
was also charged with conspiracy to commit murder, however the jury
acquitted him of that charge.
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apartment in Blairsville. Eades told the others that he was going
to pick up some cash that [the victim] owed to him in connection
with their work in the illicit drug trade.2 While en route, Eades told
them all to turn off their cell phones.
When they arrived at the victim’s apartment, Eades told the victim
he was there for the money he owed him and proceeded to gather
up money that was laying around the living room in banded
bundles. An argument ensued between Eades and the victim, and
King pulled out a gun, pointing it at the victim while demanding
that he give Eades the money he owed him. The victim gave
Eades money that was under the cushion of a chair. King and
Eades then directed Appellant and Boynton to get cash from the
bedroom. Appellant found the money in the bedroom, put it in a
bag, and handed the bag to Boynton. Boynton and Appellant then
returned to the living room, and Eades directed Appellant to tie
up the victim with an extension cord while the men gathered more
money from around the living room and put it into the bag. After
Appellant tied the victim’s ankles with an extension cord and his
wrists with a black USB cable, as ordered by Eades, he tried to
remove his DNA from the cords with his saliva.
Soon thereafter, King grabbed a sword from the victim’s collection
held in a bin in the living room and began stabbing the victim.
Boynton ran out of the house with the bag of money and jumped
into the back of the car. Eades directed Appellant to go find
Boynton, and King and Eades continued stabbing the victim.
King and Eades shortly thereafter returned to Eades’s vehicle
where Appellant and Boynton were waiting. They all drove back
to Altoona, stopping at a Sheetz in Ebensburg along the way.
When they got to King’s apartment, Eades and King split up the
money, giving Appellant $10,000[.00].
Police officers found the victim’s body three days later lying on his
living room floor. An electric cord bound the victim’s feet, another
cord bound his hands, and a sock was in his mouth. The body had
nearly 40 stab wounds, and a sword impaled the victim’s skull to
the floor.
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2 King and Eades are brothers; Appellant is [their] cousin and was visiting
from Baltimore at the time. Eades and the victim were allegedly best friends.
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After extensive investigation by the Pennsylvania State Police, the
Commonwealth charged the four men [in connection with the
incident]. With respect to Appellant, the Commonwealth charged
him with second-degree murder, conspiracy to commit criminal
homicide, robbery, and conspiracy to commit robbery. [The trial
court appointed trial counsel to represent Appellant.]
On August 21, 2017, Appellant proceeded to a [multi-day] jury
trial, where the Commonwealth presented testimony from
numerous police officers, investigators, forensic experts, and
Boynton. The Commonwealth did not call King as a witness[,
however Appellant called King to testify on his behalf concerning
Appellant’s purported unwillingness to be a part of the incident.
King also revealed that, as part of his plea agreement, he agreed
to testify against Eades but not against Appellant].
Appellant testified on his own behalf. He stated that he has known
Eades and King his entire life and that they could be violent men,
so he was afraid of them when they got upset. He stated that he
did not know during the drive to Blairsville that they were going
to rob the victim. He stated that because he was afraid of Eades,
he turned off his cell phone, gathered money in the victim’s
apartment, and tied up the victim when Eades told him to do so.
He also said that, although he heard commotion in the living room
while he was collecting money from the bedroom, he did not see
the victim getting stabbed before Eades told him to leave the
house to find Boynton. He stated that he took the money from
Eades after the robbery because Eades and King gave it to him [to
make him a participant in] the robbery. Appellant also testified
that he did not know about the victim’s death until three days later
when he ran into Eades’s mother in a mall in Baltimore.
Commonwealth v. Jones, 2019 WL 1096542 at *1-*2 (Pa. Super. 2019)
(unpublished memorandum) (record citation, some footnotes, and extraneous
capitalization omitted). The jury convicted Appellant of the aforementioned
charges, and on September 8, 2017, the trial court sentenced Appellant to a
term of incarceration of life without the possibility of parole. This Court
affirmed Appellant’s judgment of sentence on March 3, 2019, and our
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Supreme Court denied review on September 17, 2019. Jones, 2019 WL
1096542 at *9, appeal denied, 217 A.3d 1210 (Pa. 2019).
Appellant, through counsel, filed the instant timely petition, his first, on
September 16, 2020.3 Within his petition, Appellant asserted that his trial
counsel was ineffective for failing to request a curative instruction or have
certain testimony about his incarceration stricken from the record. The PCRA
court held an evidentiary hearing on April 1, 2021, at which trial counsel
testified. On April 20, 2021, the PCRA court denied Appellant’s petition. This
appeal followed.4
Appellant raises the following issue for our review:
Did the PCRA court commit an error of law by finding that [trial
counsel] was not ineffective in the course of his representation of
[Appellant] during [Appellant’s] jury trial?
Appellant’s Brief at 5 (extraneous capitalization omitted).
Our standard of review for challenges to the denial and dismissal of
petitions filed pursuant to the PCRA is well-settled.
We must determine whether the findings of the PCRA court are
supported by the record and whether the court's legal conclusions
are free from error. The findings of the PCRA court and the
evidence of record are viewed in a light most favorable to the
prevailing party. The PCRA court's credibility determinations,
when supported by the record, are binding; however, this [C]ourt
applies a de novo standard of review to the PCRA court's legal
conclusions. We must keep in mind that the petitioner has the
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3 Appellant’s PCRA counsel in the case sub judice also represented him on
his direct appeal and at his preliminary hearing.
4 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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burden of persuading this Court that the PCRA court erred and
that such error requires relief. Finally, this Court may affirm a
valid judgment or order for any reason appearing of record.
Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa. 2019) (citations
omitted).
Appellant claims that his trial counsel was ineffective when, after
co-defendant Boynton testified that Appellant was in Cambria County Jail,
counsel requested a sidebar but then refused the trial court’s offer to give a
curative instruction or strike Boynton’s non-responsive answer. Appellant’s
Brief at 16. Specifically, the following exchange occurred during trial counsel’s
cross-examination of Boynton:
Q: Getting back to my point, you didn’t tell the truth?
A: That first interview I was afraid to even say I was involved.
Q: Then you have a conversation with them, Kevin King after
that?
A: After what?
Q: After that first interview?
A: I don’t know. I probably did, no, before that first interview I
was told to, you know, don’t say anything.
Q: Yeah, but after that first interview you talked to Kevin King at
the jail; didn’t you?
A: What jail?
Q: Whatever jail you were housed in at the time and Kevin told
you Mike lied about the story?
A: When I first got arrested in Indiana, yes.
Q: Okay. So you talked to Kevin there?
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A: Yes.
Q: Then you were transported down to Cambria County?
A: Yes.
Q: With Kevin?
A: No.
Q: Not in the same car but he ended up in the same jail?
A: No. I was there with [Appellant].
N.T. Jury Trial,5 8/21/17, at 68-69. At that point, trial counsel requested a
sidebar:
Trial Counsel: If I may approach?
Court: Yes.
[At sidebar, outside the jury’s hearing]
Trial Counsel: Judge, that wasn’t in response to my question. He
made a reference to my guy being in jail and I am going to move
for a mistrial. I don’t think a curative instruction would help.
Commonwealth: I think he opened the door to that. He was
asking who he was housed with.
Trial Counsel: I said you were housed with King; weren’t you.
Commonwealth: He said, he answered, I think the defense opened
the door to that line of questioning.
Court: Okay. I am going to deny the motion for mistrial and do
you want me to try to give a curative inruction?
Trial Counsel: I think that is going to call more attention to it. I
would rather not.
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5 The notes of testimony for Appellant’s jury trial, spanning four days, is
contained within one volume.
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Court: Would you want me to tell them I am striking that
testimony?
Trial Counsel: I don’t think, your Honor.
Court: All right. Okay. I am going to deny the motion.
Id. at 69-70. At the conclusion of the sidebar, trial counsel continued his
cross-examination, specifically targeting Boynton’s untruthfulness in his
interviews with police. See id. at 70-72.
In Appellant’s view, Boynton’s reference to Appellant being in a different
county jail created a perception before the jury that Appellant was facing
separate criminal charges and an impression of a general criminal disposition.
Id. at 20. Appellant argues that trial counsel’s sidebar confused the jury and
his decision to decline both a curative instruction and the court’s offer to strike
the testimony “amplified the prejudice” against Appellant. Id. at 19.
Counsel is presumed to be effective and “the burden of demonstrating
ineffectiveness rests on [the] appellant.” Commonwealth v. Rivera, 10
A.3d 1276, 1279 (Pa. Super. 2010).
To satisfy this burden, an appellant must plead and prove by a
preponderance of the evidence that[] (1) his underlying claim is
of arguable merit; (2) the particular course of conduct pursued by
counsel did not have some reasonable basis designed to effectuate
his interests; and, (3) but for counsel's ineffectiveness, there is a
reasonable probability that the outcome of the challenged
proceeding would have been different. Failure to satisfy any prong
of the test will result in rejection of the appellant's ineffective
assistance of counsel claim.
Commonwealth v. Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017) (internal
citations and quotation marks omitted).
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A claim has arguable merit where the factual averments, if
accurate, could establish [grounds] for relief. See
Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005) (“if a
petitioner raises allegations, which, even if accepted as true, do
not establish the underlying claim . . . , he or she will have failed
to establish the arguable merit prong related to the claim”).
Whether the facts rise to the level of arguable merit is a legal
determination.
The test for deciding whether counsel had a reasonable basis for
his action or inaction is whether no competent counsel would have
chosen that action or inaction, or, [whether an unchosen
alternative] offered a significantly greater potential chance of
success. Counsel’s decisions will be considered reasonable if they
effectuated his client's interests. We do not employ a hindsight
analysis in comparing trial counsel's actions with other efforts he
may have taken.
Prejudice is established if there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some
quotations and citations omitted). If a claim fails under any necessary
element of the applicable test, the court may proceed to that element first.
Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014).
Here, upon review, we conclude that Appellant cannot demonstrate that
he was prejudiced by the challenged statement. See Commonwealth v.
Jones, 811 A.2d 1057, 1062 (Pa. Super. 2002) (where it is clear that an
appellant fails to meet the prejudice prong of an ineffective assistance of
counsel claim, the claim may be disposed of on that basis alone without a
determination on the first two prongs). The Commonwealth presented a
breadth of evidence, including the testimony of co-defendant Boynton and
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several investigating officers, Appellant’s DNA found on the extension cord
used to bind the victim, and cell phone records and various video surveillance
recordings placing Appellant at the scene with Eades, King, and Boynton.
Moreover, the jury considered Appellant’s own inculpatory statements in his
trial testimony and in recorded interviews with investigators wherein Appellant
admitted to: (1) his understanding that they traveled to the victim’s house for
the purpose of getting drug money that the victim owed to Eades; (2)
Appellant’s personal actions in furtherance of the robbery in taking money
from the victim’s home, tying the victim with cords, and attempting to remove
his DNA from the bindings; (3) Appellant directing Boynton not to say anything
about the incident; (4) his later receipt and use of $10,000.00 of the stolen
money; and (5) his admitted knowledge both during and after the incident
that a robbery was committed in which he was a part. See, e.g., id. at 313-
323. Besides conclusory statements, Appellant fails to articulate how he was
prejudiced by a single passing reference to his alleged incarceration in a
different county jail, made on the first of a multi-day trial and during an
exchange demonstrating a witness’s untruthfulness, particularly in light of the
overwhelming evidence of guilt presented by the Commonwealth.6
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6 The trial court also opined, within its opinion denying Appellant’s post-trial
motion, that Appellant was not prejudiced by Boynton’s statement. See Trial
Court Opinion, 2/12/18, at 5-6. Specifically, the trial court concluded, “[t]he
testimony elicited showed that both co-defendants, King and Boynton[,] were
incarcerated. It would not be unreasonable for the jury to conclude that all
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Consequently, Appellant’s ineffective assistance of counsel claim fails and the
PCRA court properly denied the instant petition.7
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/3/2022
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the defendants charged with [h]omicide were incarcerated on those charges.”
Id. at 6.
7 Appellant also failed to establish that trial counsel lacked a reasonable basis
for his actions. At issue is one single reference to Appellant’s incarceration at
a separate county jail in the context of a multiple day jury trial involving four
perpetrators and a victim who was killed for owing money to an acquaintance
within the drug trading business. At the PCRA evidentiary hearing, trial
counsel explained that, after his motion for a mistrial was denied, he refused
the trial court’s offer of a curative instruction or to strike the testimony
because he did not want to call more attention to the statement. Counsel also
explained that he considered further references to Appellant’s incarceration
throughout the trial as a basis for appeal. See Trial Court Opinion, 4/20/21,
at 3. As the trial court opined, “[t]o request a curative instruction or
alternatively seek to have the testimony stricken would only highlight it for
the jurors. Attempting to limit the attention given to the statement was a
strategic, tactical decision in providing a defense, and [trial counsel] cannot
be deemed ineffective on that basis.” Id. at 4; see also Commonwealth v.
Spotz, 870 A.2d 822, 832 (Pa. 2005) (“Objections sometimes highlight the
issue for the jury, and curative instructions always do.”). Appellant cannot
demonstrate that no competent counsel would have chosen trial counsel’s
course of action. Stewart, supra.- 10 -