Commonwealthv.Jackson

SUPERIOR COURT OF PENNSYLVANIAJul 10, 2019
J-S24030-19 (Pa. Super. Ct. Jul. 10, 2019)

J-S24030-19 No. 3540 EDA 2018

07-10-2019

COMMONWEALTH OF PENNSYLVANIA v. JERMAINE MICHAEL JACKSON Appellant


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered November 15, 2018
In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0003598-2012 BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS, P.J.E. MEMORANDUM BY McLAUGHLIN, J.:

Former Justice specially assigned to the Superior Court. --------

Jermaine Michael Jackson appeals from the order denying his petition for relief filed under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. Jackson asserts his trial counsel was ineffective for failing to properly meet with Jackson in preparation for trial and for failing to present alibi witnesses at trial. We affirm on the basis of the PCRA court's opinion.

In 2013, a jury convicted Jackson of second-degree murder, conspiracy to commit criminal homicide, robbery, and conspiracy to commit burglary. The trial court sentenced Jackson to life imprisonment on the murder conviction, and a concurrent term of 10 to 20 years' imprisonment on the conspiracy to commit robbery charge. The court imposed no further penalty on the remaining convictions. This Court affirmed Jackson's judgment of sentence on April 7, 2016 and our Supreme Court denied Allowance of Appeal in August 2016. In July 2017, Jackson, pro se, filed the instant timely PCRA petition. The trial court appointed counsel, who filed an amended petition.

18 Pa.C.S.A. §§ 2502(b), 903(c), 3701(a)(1)(i), and 903(c), respectively.

The PCRA court held a hearing in September 2018, at which trial counsel testified that he had met with Jackson, at the Northhampton County Correctional Facility, on a weekly basis between April and September of 2012. Further, even after he was no longer being paid, trial counsel met with Jackson another 15 to 20 times between October 2012 and the start of trial in May 2013. Trial counsel further indicated that he felt in person communication was more effective than phone calls or letters in this particular case. Trial counsel also testified regarding his strategic decision not to present the testimony of alibi witnesses because Jackson admitted he had been at the scene of the murder and corroborating evidence placed him there. The PCRA court denied relief.

The PCRA court's opinion recounts the evidence presented at Jackson's trial, and we need not restate it here. See PCRA Court Opinion, filed 1/22/19, at 1-4 (quoting Tr. Ct. Opinion, 3/17/15). Suffice it to say, that cell phone records and cooperating witnesses placed Jackson at the scene of the victim's murder at the time of the crime. However, Jackson claims that trial counsel was ineffective for failing to adequately prepare for trial and by failing to present alibi witnesses.

On appeal, Jackson presents the following issues for our review:

A. Did the PCRA court properly deny [Jackson's] claim that trial counsel was ineffective for failing to "properly" prepare him for trial and/or consult with him and personally meet with him?
B. Did the PCRA court properly deny [Jackson's] claim that counsel was ineffective for failing to advise him and discuss with him the fact that counsel would not present an alibi defense at trial?

Jackson's Br. at 1.

Our review of the denial of PCRA relief "is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the PCRA court level." Commonwealth v. Medina , 92 A.3d 1210, 1214 (Pa.Super. 2014) (en banc) (quoting Commonwealth v. Koehler , 36 A.3d 121, 131 (Pa. 2012)). We are bound by any credibility determinations made by the PCRA court and supported by the record, but apply a de novo standard of review to the PCRA court's legal conclusions. Id. at 1214-15.

"Counsel is presumed effective, and [a petitioner] has the burden of proving otherwise." Commonwealth v. Brown , 161 A.3d 960, 965 (Pa.Super. 2017). To overcome this presumption, a petitioner must plead and prove that: "(1) the underlying claim has arguable merit; (2) counsel had no reasonable basis for his or her action or inaction; and (3) the petitioner suffered prejudice because of counsel's ineffectiveness." Commonwealth v. Paddy , 15 A.3d 431, 442 (Pa. 2011) (citation omitted). Specifically, the volume and length of consultations a trial counsel has with a client prior to trial cannot serve as the sole factor considered in an ineffective assistance of counsel determination. Commonwealth v. Johnson , 51 A.3d 237, 244 (Pa.Super. 2012) (en banc).

Furthermore, when an ineffectiveness claim is premised on counsel's failure to present a witness, the petitioner must demonstrate that: "(1) the witness existed; (2) counsel was either aware of or should have been aware of the witness's existence; (3) the witness was willing and able to cooperate on behalf of the defendant; and (4) the proposed testimony was necessary to avoid prejudice to the defendant." Commonwealth v. Tharp , 101 A.3d 736, 757 (Pa. 2014) (quoting Commonwealth v. Bryant , 855 A.2d 726, 746 (Pa. 2004)). To establish prejudice, a petitioner must prove that "there is a reasonable probability that the outcome of the proceedings would have been different had counsel not been ineffective in the relevant regard." Commonwealth v. Dennis , 950 A.2d 945, 954 (Pa. 2008). Failing to satisfy even one of these factors requires this Court to reject the ineffectiveness claim. Id.

In its Rule 1925(a) opinion, the PCRA court explained that Jackson's claim that trial counsel failed to adequately prepare for trial is baseless. Not only did trial counsel consistently meet with Jackson, Jackson could not provide any credible examples of where any lack of preparation by trial counsel negatively affected his case. See PCRA Ct. Op. at 8-10. Further, the PCRA court aptly determined that trial counsel had a credible strategic basis for concluding that alibi witnesses would not be helpful to Jackson's defense. Specifically, the PCRA court noted that police interviews revealed that the proposed witnesses would not have furthered an alibi defense and corroborating witnesses and cell phone records placed Jackson at the scene of the crime. See id. at 10-12.

After a review of the parties' briefs, the certified record, and the relevant law, we find no abuse of discretion or error in the PCRA court's analysis. We thus affirm on the basis of the well-reasoned opinion of the Honorable Rea B. Boylan, which we adopt and incorporate herein. See PCRA Ct. Op. at 6-12.

Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/10/19

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