Pennsylvania Supreme Court Reports

COMMONWEALTH v. JONES, 409 CAP (Pa. 12-29-2006)
Appellant. COMMONWEALTH OF PENNSYLVANIA, Cross-Appellant v.
DAMON JONES, Cross-Appellee. Nos. 409 CAP, 425 CAP.
Supreme Court of Pennsylvania, Eastern District. Submitted:
November 18, 2004. Decided: December 29, 2006.

Appeal from the Order entered on March 13, 2003 in the
Court of Common Pleas of Philadelphia County, Criminal
Division, denying PCRA relief for a new trial at Nos.
8209-714, 716, 718, 721, 723, 725, 727 & 739.

Cross appeal from the Order entered on March 13, 2003 in
the Court of Common Pleas of Philadelphia County, Criminal
Division, granting new penalty proceeding on PCRA at Nos.
8209-0712 1/1.




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”).[fn1]
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,
610 A.2d 931 (Pa. 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,[fn2] and six others were seriously
wounded.[fn3] 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.[fn4] After finding two
aggravating circumstances and no mitigating circumstances,
the jury sentenced Jones to death for both murders.[fn5]
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.[fn6] 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, 610 A.2d 931 (Pa. 1992).[fn7]

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.[fn8] 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 handwritten 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,
802 A.2d 1232 (Pa. 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


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

(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

(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

(7) The trial court’s instructions to the jury were

(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

(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 (1970);

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

(13) Jones’ conviction violated Beck v. Alabama, 447 U.S.
625 (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

(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, 661 A.2d 352, 356 n. 4 (Pa. 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).[fn9] 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, 610 A.2d 931, 939-40 (Pa. 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, 888 A.2d 564, 573 (Pa. 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

An allegation is waived “if the petitioner could have
raised it but failed to do so before trial, at trial,
during unitary review, on appeal or in a prior state
post-conviction proceeding.” 42 Pa.C.S. § 9544(b).
In the instant matter, Jones brings several such
claims.[fn11] Jones concedes that most of the issues he
raises are waived. He contends, however, that this Court
should review these claims as they are brought under the
rubric of ineffective assistance of counsel and are thus
reviewable in the current context. The Commonwealth avers
that the versions of all of Jones’ claims sounding in trial
court error, prosecutorial error, and trial counsel
ineffectiveness were available to him on direct appeal,
where he was represented by counsel other than trial
counsel. Since these claims could have been raised on
appeal, the Commonwealth argues that these claims are now
waived pursuant to the PCRA.

In his brief to this Court, Jones includes a section
asserting the overall ineffective assistance of prior
counsel, and a brief paragraph, at the most, at the
conclusion of each substantive argument averring that
counsel was ineffective for failing to raise the issues
discussed in the claim. In none of these claims, however,
does Jones offer more than a conclusory assertion of error
— failing to mention or discuss any lack of a
reasonable basis for the actions taken by prior counsel or
any resultant prejudice.

At the time that Jones filed his consolidated Petition for
Post-Conviction Relief, the jurisprudence of this Court was
not clear regarding whether claims, otherwise waived for
failure of the defendant to raise them, were reviewable
where boilerplate language was used to re-frame them as
ones of ineffective assistance of counsel. See Commonwealth
v. McGill, 832 A.2d 1014, 1022 (Pa. 2003) (“The manner by
which a petitioner preserves, through pleading and
presentation in his briefs, and proves a claim of layered
ineffectiveness sufficient to warrant relief in a
meritorious case . . . has been a source of disagreement
and confusion.”). Consistent with the approach we took in
our decisions during the time period when Jones filed his
consolidated PCRA Petition, in the instant case we will
review his ineffective assistance of counsel claims,
despite the cursory language utilized in his brief to
overcome waiver.[fn12] We assume that Jones intended the
portion of his brief entitled “Appellant’s Statement
Regarding Cognizability” (Brief of Jones at ii) to apply to
all of his succeeding arguments. As such, claims 1, 2, 5,
8, 10, 11, 14, 15, 16, 17, and portions of issue 3 are not
deemed unreviewable because of the manner in which Jones
presented them.

Further, an issue is waived where it was not presented in
the original or amended PCRA petition below. See
Commonwealth v. Albrecht, 720 A.2d 693, 706 (Pa. 1998)
(noting that a claim for post-conviction relief cannot be
raised for the first time on appeal to this Court);
Commonwealth v. Laird, 726 A.2d 346, 354 (Pa. 1999). With
this in mind, we now dismiss claims 12 and 13, and a
portion of claim 3, deeming them waived as they were not
raised below.

In summary, we conclude that the following claims of Jones
are properly reviewable by this Court: 1, 2, portions of
issue 3, 5, 8, 10, 11, 14, 15, 16, and 17.


To warrant relief based on a claim of ineffective
assistance of counsel, a defendant must show that such
ineffectiveness “in the circumstances of the particular
case, so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have
taken place.” 42 Pa.C.S. § 9543(a)(2)(ii). We have
interpreted this standard to require a petitioner to prove
that: (1) the underlying claim is of arguable merit; (2)
counsel’s performance lacked a reasonable basis; and (3)
the ineffectiveness of counsel caused appellant prejudice.
Commonwealth v. Todaro, 701 A.2d 1343, 1346 (Pa. 1997).
Counsel will not be deemed ineffective for failing to raise
a meritless claim. Commonwealth v. Darrick Hall, 701 A.2d
190, 203 (Pa. 1997).


We begin our discussion of each claim as did Jones, by
presenting the underlying claim directly, without couching
it in terms of ineffective assistance. Because we find that
each claim lacks arguable merit, we conclude our analysis
of each issue at that point, pursuant to our decision in
Hall, supra.


Jones contends that his first-degree murder convictions
were obtained in violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution and
Article 1, Section 9 of the Pennsylvania Constitution
because the trial court’s instructions were flawed in two
respects.[fn13] First, Jones avers that the trial court
erred when it permitted the jury to infer his specific
intent to kill from his alleged use of a deadly weapon on
the vital organs of unintended victims. Second, he believes
that the trial court improperly permitted the jury to find
that he possessed a specific intent to kill based upon the
acts of his co-conspirators. Jones charges that these
errors violated the mandate of In re Winship, 397 U.S. 358,
361 (1970), that the prosecution prove each element of the
crime charged beyond a reasonable doubt. Contrary to the
contention of Jones, when reviewed as a whole, the trial
court properly instructed the jurors.

Jones begins his initial argument by agreeing that, because
the prosecution’s theory was that Jones intended to kill
Sylvester Williams, instead killing two bystanders, the
trial court properly instructed the jury on the principle
of transferred intent.[fn14] Jones argues, however, that
the instruction given violated his due process right as
there was no rational connection between the proven facts
and the ultimate fact presumed by the jury. (Brief of Jones
at 17-18).

In order to find a defendant guilty of first-degree murder,
a jury must find: (1) a specific intent to kill; and (2)
malice. Pa. Suggested Standard Criminal Jury Instructions
15.2502A (1979). Pursuant to the doctrine of transferred
intent, the intent to murder may be transferred where the
person actually killed is not the intended victim. 18
Pa.C.S. § 303(b)(1). Where the prosecution is arguing
transferred intent, as it did in the instant matter, the
instructions to the jury are considered proper if they
merely “suggest [] to the jury a possible conclusion to be
drawn if the State proves predicate facts, but do[] not
require the jury to draw that conclusion.” Frances v.
Franklin, 471 U.S. 307, 314 (1985).

The suggested conclusion, however, violates due process
where it is not one that reason and common sense justify
based on the facts of the specific case. Id. at 314-15
(citing Ulster County Court v. Allen, 442 U.S. 140, 157-63
(1979)). In order to satisfy due process, there must be a
“rational connection” between the proven facts and the
ultimate fact that the instruction permits the jury to
presume, and the latter must be more likely than not to
flow from the former. Ulster County Court, 442 U.S. at 165.

In the present case, the trial court instructed the jury
that it could “infer legal malice from the intentional use
without legal excuse or legal justification of a deadly
weapon on a vital part of the body of a victim,” (N.T.,
5/18/83, at 6020), and that it could also find specific

As to [the facts of this case] the law holds, with
respect to that type of evidence, for your consideration
that, where anyone, without sufficient cause or
provocation, unlawfully kills another person by using a
deadly weapon upon a vital part of the body with a
manifest intention to so use it, an inference may be drawn
in the absence of qualifying circumstances by common
knowledge that such use of a deadly weapon is likely to
cause death.

Thus, as was the case with malice, previously explained
to you, further under Pennsylvania law, an intent to kill
may be inferred by reason of the killer’s use of a deadly
weapon to a vital part of the body of his victim.

(Id. at 6027-28).

Jones believes that where the killing of the bystanders was
accidental, it is irrational to infer malice and specific
intent from the fact that the bullet struck a vital portion
of the unintended victim’s body. This argument fails. The
very purpose of the transferred intent instruction is to
permit appropriate inferences of malice and specific intent
to flow to an unintended victim. Thus, the only question
before us is whether the inference described by the trial
court in the instant case met the requirements of due
process. The trial court specifically stated that the
jurors “may” draw an inference and that an intent to kill
“may” be transferred. The instructions clearly permitted
the jury to reach these conclusions, but nothing in the
language used demanded or in any other way required the
jury to make this finding. The instructions, therefore,
were proper because they were in the nature of a “permissive

The remaining question is whether the permissive inference
is justifiable in light of the proven facts. The facts
establish that Jones intended to kill Williams and that he
possessed both the malice and the specific intent to do so.
Transferring this intent to an unintended victim is
permitted by statute and easily meets the requirement of a
rational connection between the proven facts and the
inference. Thus, this claim fails.

Second, Jones contends that the trial court’s instructions
regarding “conspiratorial liability” violated due process
because they permitted the jury to convict him of
first-degree murder without a separate finding that he,
rather than his co-conspirators, possessed a specific
intent to kill.

Appellate review of a charge must be based on an
examination of the instruction in its entirety to determine
whether it was fair or prejudicial. Commonwealth v. Ohle,
470 A.2d 61, 70 (Pa. 1983), cert. denied, Ohle v.
Pennsylvania, 474 U.S. 1083 (1986). Pursuant to the
Pennsylvania Standard Jury Instructions, the trial court
instructed the jurors that in order to convict a defendant
of criminal conspiracy they must find beyond a reasonable
doubt that he acted with the intent of promoting or
facilitating the commission of a crime. (N.T., 5/18/83, at
5983-84). The jurors were further instructed that to find
that a defendant was in fact an accomplice, they must
conclude that he acted with the intent of promoting or
facilitating the commission of a crime. (Id. at 5993). The
trial court then instructed the jury that “in order to find
the defendant guilty of murder of the first degree, you
must find that the killing was a willful, deliberate, and
premeditated act. You must ask yourselves the question, did
the defendant have the willful, deliberate, premeditated
specific intent to kill at the time of the killing?” (Id.
at 6023-24 (spacing modified)).

When the instructions are properly read as a whole, it is
clear that the trial court correctly instructed the jury
without violating the due process rights of Jones. In
Commonwealth v. Huffman, 638 A.2d 961 (Pa. 1994), we found
this type of argument persuasive. However, this Court
ultimately concludes, like the PCRA court below, that the
instant claim is sufficiently distinguishable from Huffman
and lacks merit. In Huffman, the trial court charged the
jury as follows:

Thus, in order to find a Defendant guilty of murder in
the first degree, you must find that the Defendant caused
the death of another person, or that an accomplice or
co-conspirator caused the death of another person. That
is, you must find that the Defendant’s act or the act of
an accomplice or co-conspirator is the legal cause of
death of [the victim], and thereafter you must determine
if the killing was intentional.

Id. at 962 (alteration in original). In stark contrast to
the Huffman instruction, in the case sub judice the
instructions of the trial court stated:

[Y]ou may find the defendant guilty of the crime without
finding that he personally and individually performed the
acts or engaged in the conduct required for the commission
of that crime, or instances which are not here applicable
so that I won’t get into them.

As stated, a defendant is guilty of the crime if he is an
accomplice of another person who commits that crime. He is
an accomplice if, with the intent of promoting or
facilitating the commission of a crime, he solicits,
commands, encourages, or requests the other person to
commit it, or aids, agrees to aid, or attempts to aid the
other person in planning or committing it.

What is meant by the words in this definition of
accomplice “with the intent of promoting or facilitating
the commission of a crime”?

This means that the intent or mental state of the
defendant at the time he acted was to advance a criminal
end or purpose.

Bear in mind that mere physical presence at a crime scene
without more does not make him an accomplice. Rather, the
facts and circumstances must be closely examined in order
to establish that the defendant through his words, acts,
deeds or conduct became a partner in the criminal intent
of the actual active perpetrator, and encourages or
assists him or engages in comparable overt behavior.

For a person to be an accomplice in the commission of a
crime, he must be an active partner in the intent to
commit it. That is, he must have prior knowledge of the
criminal intent or criminal purpose of his accomplice or
accomplices, and then counsel or participate in such a

(N.T., 5/18/83, at 5992-94). Unlike the jury instructions
in Huffman, here the trial court explained that a defendant
must promote the occurrence of the crime. The trial court
detailed that the defendant must have the mental state of
advancing a criminal end, and further explained what acts
were insufficient. The legally correct and well-explained
instructions in the instant case make clear that the trial
court did not err in giving these instructions. The jury
was sufficiently aware of what was necessary in order to
find Jones guilty of criminal conspiracy. As such, counsel
cannot be ineffective for failing to challenge legally
proper instructions. See Hall, supra.


Next, Jones asserts that the statements Nassia Ford
(“Ford”) made at the crime scene that identified Jones as
one of the shooters (N.T., 5/3/83, at 4362-63) were
inadmissible hearsay. He claims that the trial court erred
in admitting them because Ford’s written declaration to
Detective Douglas Culbreth (“Detective Culbreth”) taken at
the hospital about forty minutes after the shooting
arguably contradicted them. Jones argues that Ford’s
statements, made moments after the shooting, could have
been colored by outside influences and “do[] not contain
the hallmarks of reliability that mark a contemporaneous
excited utterance.” (Brief of Jones at 21).

A trial court’s rulings on evidentiary questions are
controlled by the discretion of the trial court and will
not be reversed absent a clear abuse of that discretion.
Commonwealth v. Cargo, 444 A.2d 639, 644 (Pa. 1982).
Pennsylvania Rule of Evidence 803(2) provides that an
excited utterance is a statement that is not excluded by
the hearsay rule, even if the declarant is available to
testify. A statement meets the requirement of this hearsay
exception if it is:

A spontaneous declaration by a person whose mind has been
suddenly made subject to an overpowering emotion caused by
some unexpected and shocking occurrence, which that person
had just participated in or closely witnessed, and made
in reference to some phase of that occurrence which he
perceived, and this declaration must be made so near the
occurrence both in time and place as to exclude the
likelihood of its having emanated in whole or in part from
his reflective faculties.

Commonwealth v. Stokes, 615 A.2d 704, 712 (Pa. 1992)
(internal quotation marks omitted). There is no clearly
defined limit as to the time sequence required for a
statement to qualify as an excited utterance; instead, a
fact-specific inquiry is made for each case to determine
whether the utterance and the event are in close enough
proximity. See Commonwealth v. Boczkowski, 846 A.2d 75,
95-96 (Pa. 2004).

In the case before us, seven minutes and forty seconds
after being shot in the leg, and in a hysterical state,
Ford told his uncle, Timothy Ford, that Jones had shot him
and that “Damien Jones” and “Buttons” had been shooting.
(N.T., 5/3/83, at 4359-63). Thirty-five to forty minutes
after the shooting, Detective Lamont Anderson (“Detective
Anderson”) arrived at the hospital and spoke with Ford.
(N.T., 3/22/83, at 494-95). Detective Anderson asked Ford
who shot him, and Ford responded that “Coop and Damon was
[sic] with him.” (N.T., 3/25/83, at 976). At trial, Jones
called Detective Culbreth who testified that, when asked
what happened, Ford reported “they shot me” and that “it
was Coop and a lot of other guys.” (N.T., 4/6/83, at

We find no error on the part of the trial court. Less than
ten minutes after being shot, Ford identified Jones as one
of the shooters. He did so while bleeding from his gunshot
wound and awaiting transport to the hospital. Approximately
thirty minutes later, Ford confirmed this fact when
responding to questions posed by the police officers, by
stating that Jones was one of the shooters.

This Court often has held similar statements admissible
under the excited utterance exception to the prohibition on
hearsay statements. See, e.g., Commonwealth v. Douglas, 737
A.2d 1188, 1194-95 (Pa. 1999) (upholding the admission of
the victim’s declaration to a police officer as an excited
utterance because he identified the shooter while being
transported to the hospital eleven minutes after the
shooting); Commonwealth v. Penn, 439 A.2d 1154, 1159 (Pa.),
cert. denied, Penn v. Pennsylvania, 456 U.S. 980 (1982). We
conclude, therefore, that the statements of Ford were
admitted properly pursuant to the excited utterance
exception to the hearsay rule. Because Jones cannot
establish that his underlying claim has merit, he has
failed to argue successfully that counsel was ineffective
with regard to this claim.

Further, Jones argues that Ford’s statement to his uncle
cannot be admitted pursuant to the excited utterance
exception to the hearsay rule because the statements were
made in response to questioning, rather than being purely
spontaneous. (Brief of Jones at 21). This argument fails.
The jurisprudence of this Commonwealth makes it clear that a
statement, which otherwise qualifies as an excited
utterance, is not precluded from falling within the excited
utterance exception to the hearsay rule when made in
response to questioning. See Commonwealth v. Banks, 311
A.2d 576, 580 (Pa. 1973); Commonwealth v. Edwards, 244 A.2d
683, 685 (Pa. 1968). Accordingly, in the instant matter,
the fact that Ford identified Jones and Buttons after his
uncle asked who shot him does not disqualify his statement
from the excited utterance exception to the hearsay rule.

Relying on Crawford v. Washington, 541 U.S. 36 (2004)
(holding that out-of-court statements that are testimonial
are barred unless the witness is unavailable and the
defendant had prior opportunity to cross-examine), Jones
contends that the admission of Ford’s out-of-court
statement violated the confrontation clause of the Sixth
Amendment to the United States Constitution.[fn15] Contrary
to Jones’ contention, Crawford did not abolish the excited
utterance exception to the hearsay rule when the declarant
is unavailable. Id. at 61 (declining to overrule White v.
Illinois, 502 U.S. 346 (1992), which held, inter alia, that
the admission at trial of a spontaneous declaration by an
unavailable declarant did not violate the Confrontation

Thus, the above alleged errors of the trial court in
admitting the out-of-court statements of Ford lack merit.
Having failed to establish the underlying merit of these
issues, Jones’ claim of ineffective assistance of counsel
for failing to challenge the statements of Ford must also
fail. See Hall, supra.

Finally, Jones argues that the trial court’s admission of
Ford’s statements without first holding a competency
hearing “violated state law regarding witness competency.”
(Brief of Jones at 21). To begin with, it is not altogether
clear that a competency hearing was required. See
Commonwealth v. Pronkoskie, 383 A.2d 858, 861 n. 5 (Pa.
1978) (suggesting, albeit in dicta, that “an otherwise
properly qualifying excited utterance is not rendered
inadmissible by a ruling that the declarant is incompetent
to testify”); Penn, supra (upholding an out-of-court
excited utterance of a child eyewitness without discussing
the relevance of his age). Even assuming a hearing was
required, however, Jones has failed to show that the
admission of the statement of this one eyewitness
prejudiced him. Given that, at trial, the Commonwealth
produced testimony from at least six eyewitnesses who saw
Jones commit the crime, Jones’ failure to show prejudice is
not surprising.


Jones next presents several claims of prosecutorial
misconduct, none of which is properly before this Court.
First, he alleges that the prosecutor committed misconduct
when he smeared defendant by implied associations during
cross-examination of a witness. (Brief of Jones at 28).
However, Jones has waived review of this claim because he
failed to raise it in his PCRA Petition in violation of
Commonwealth v. Albrecht, 720 A.2d 693 (Pa. 1998).

Next, Jones brings claims that are waived because they were
previously litigated that the prosecutor committed
misconduct: (1) in the form of the questions he asked
during trial (Brief of Jones at 24-30), see Commonwealth v.
Jones, 610 A.2d 931, 940 (Pa. 1992); (2) by improperly
cross-examining two alibi witnesses (Brief of Jones at
28-30), see Jones, 610 A.2d at 941; (3) by introducing a
tape of television news coverage of the crime (Brief of
Jones at 30-31), see Jones, 610 A.2d at 942; (4) by
improperly rebutting his alibi defense (Brief of Jones at
31), see Jones, 610 A.2d at 942-43; and (5) during his
closing argument (Brief of Jones at 32-39), see Jones, 610
A.2d at 943-44.

Additionally, Jones adds a one-sentence allegation that the
prosecutor committed misconduct by attempting to introduce
inadmissible evidence. (Brief of Jones 30). Jones fails to
offer any context for this assertion and provides no legal
support for it. He has therefore failed to establish the
merits of this claim. Absent such a showing, he has not
demonstrated ineffective assistance of counsel. See Hall,

Finally, Jones beseeches this Court to view the prosecutor
as a “career offender,” citing several cases where he
asserts that the prosecutor’s performance amounted to
misconduct. (Brief of Jones at 41). This attack concerning
how the prosecutor conducted the other cases is irrelevant
and not cognizable. No further review is warranted.


Jones has never had transcripts of the voir dire
proceedings in this matter. He asserts that the absence of
these transcripts: (1) deprived him of his right to a
direct appeal; (2) constituted a constructive denial of
counsel; and (3) amounted to ineffective assistance of
counsel. Because his claim of a deprivation of a direct
appeal cannot be recast as a claim of ineffective
assistance of counsel, as is necessary for our review, it
fails on that basis alone. We further note that, as a
practical matter, Jones’ lack of voir dire transcripts could
not have denied him direct review, as this Court provided
such review in 1992. See Commonwealth v. Jones, 610 A.2d
931 (Pa. 1992).

Jones’ second claim lacks substantive merit, as well. He
presents two separate theories to support his argument. The
first is that he was denied access to the transcripts and
therefore was effectively denied counsel. Noting that state
and federal law afford an indigent defendant an absolute
right to the production of the record in his case (Brief of
Jones at 56), Jones argues that he is entitled to a new
trial. To support this position he cites Commonwealth v.
Goldsmith, 304 A.2d 478 (Pa. 1973), which stated that
“meaningful appellate review is impossible absent a full
transcript. . . . If a meaningful appellate review is
impossible, for whatever reason, and the appellant is not at
fault, he is entitled to a new trial.” Id. at 480 (emphasis
omitted). Jones notes that federal law provides similar
protections. See Hardy v. United States, 375 U.S. 277, 282
(1964). He further relates that the denial of transcripts
violated his due process right to access to courts. See
Bounds v. Smith, 430 U.S. 817, 822-23 (1977) (noting that it
is established beyond a doubt that prisoners have a
constitutional right of access to the courts, and that such
access must be meaningful; “meaningful access” in this
regard includes not having the availability of appeal
foreclosed because of the costs associated therewith).

Although Jones makes a cogent argument that where an
appellant has been denied access to his transcripts
constitutional protections come into play, he fails to
demonstrate sufficiently that these protections should
apply to this case. In making this claim to the lower
courts, Jones presented no evidence that he requested the
transcription of the voir dire proceedings. In fact, the
trial court explained that the tapes from the voir dire
never were transcribed because none of the three attorneys
for the three co-defendants requested transcription.
Commonwealth v. Jones, Nos. 712-14, 716, 718, 721, 723, 725,
727, 730 E.D. 1998, at 15-16 (C.P. Pa. Philadelphia Nov.
21, 1989) (hereinafter “trial ct. Op.”).

Pennsylvania Rule of Appellate Procedure 1911(a) states
that “[t]he appellant shall request any transcript required
under this chapter in the manner and make any necessary
payment or deposit therefor in the amount and within the
time prescribed by Rules 5000.1 et seq. of the Pennsylvania
Rules of Judicial Administration (court reporters).” See
also Pa.R.J.A. 5000.2(g) (“The voir dire examination of
jurors, opening or closing statements of counsel . . .
shall be recorded, but not transcribed, unless otherwise
ordered.”); Commonwealth v. Stokes, 839 A.2d 226, 229-30
(Pa. 2003) (holding that it is the appellant’s
responsibility to secure a complete record for review).
Jones cannot blame the trial court or the Commonwealth for
his own failure to obtain transcripts of voir dire as they
were not responsible for providing him with such
transcripts. Only where a defendant establishes that such a
request was made and denied, which is not the case here,
might an argument like the one Jones professes here
succeed. As currently presented, his theory that the courts
or the Commonwealth “constructively denied” him counsel is
without merit.

Jones’ second theory supporting his constructive denial
argument is based upon United States v. Cronic, 466 U.S.
648 (1984). Here, the United States Supreme Court
recognized an exception to the general requirement that an
appellant prove prejudice from counsel’s substandard
performance before he can receive relief for ineffective
assistance of counsel. The Court ruled that prejudice is
presumed when a defendant is denied counsel totally or at a
critical stage of the proceedings. Id. at 659. Jones now
avers that because his counsel was unable to “even begin to
represent” him given the absence of the transcripts, a
violation of Cronic occurred. (Brief of Jones at 60). This
claim is entirely baseless. Nothing in the facts of this
matter demonstrates that Jones was denied counsel
completely or at a critical stage of the proceedings. That
counsel chose to forego requesting the transcripts of voir
dire does not in any way indicate that the courts or the
Commonwealth compelled such an outcome. We conclude that
Cronic is inapplicable to the instant matter because the
decision not to request the voir dire transcripts was made
by counsel and was not a decision by the court that would
have prevented counsel from providing effective
representation to Jones.

Jones’ argument, that prior counsel were ineffective for
failing to secure these transcripts, is not persuasive. As
noted supra, in order to present a successful ineffective
assistance claim, a defendant must demonstrate that the
underlying issue has arguable merit, that counsel’s
performance lacked a reasonable basis, and that the
defendant suffered prejudice because of counsel’s failure.
Todaro, supra. Jones is unable to meet this standard.

Jones contends that his underlying claim has merit because,
if he had access to the transcripts, he would have been
able to bring a successful Witherspoon claim.[fn16] In
Witherspoon v. Illinois, 391 U.S. 510 (1968), the United
States Supreme Court held that a sentence of death cannot
be carried out if the jury that imposed it was chosen by
excluding venirepersons for cause simply because they voiced
general objections to the death penalty.[fn17] Jones now
cites the testimony and affidavit of venireperson Brenda E.
Pollard (“Pollard”) as evidence that she was excluded for
having such generalized objections. The testimony that
Pollard gave, however, does not meet the Witherspoon
standard. She testified that she was unable to impose the
death penalty. (N.T., 12/19/01, at 9-11 (emphasis added)).

This evidence supporting Jones’ Witherspoon argument is
insufficient to meet the first prong of the Todaro
ineffective assistance of counsel standard. Pollard’s
testimony, rather than establishing a Witherspoon
violation, does the opposite. It demonstrates that she was
excluded properly from the jury. “It is well settled that a
prospective juror may be excluded for cause when his views
on capital punishment are such as would prevent or
substantially impair the performance of his duties as a
juror in accordance with his instructions and his oath.”
Commonwealth v. Speight, 854 A.2d 450, 459 (Pa. 2004)
(internal quotation marks omitted). Pollard admitted that
she was unable to impose death. Thus, she was not qualified
to serve on the jury, and her dismissal was appropriate.
Counsel cannot be deemed ineffective for failing to
challenge a proper dismissal. See Hall, supra.


Jones avers that the trial court repeatedly and improperly
criticized co-defense counsel, both in front of and away
from the jury. Arguing that many of co-defense counsel’s
actions were improper, Jones believes that these
condemnations prejudiced the jury against him, violating
his right to a fair trial as secured by the federal and
Pennsylvania Constitutions. Jones references nearly seventy
instances of trial court misconduct. (Brief of Jones at
69-73). However, Jones focuses on one specific event as the
driving force of his argument. He notes that Juror Number
One, Laura McEwen (“McEwen”), was frustrated with the pace
of the trial and believed that the defense (referring
generally to all three co-defendants) was partly
responsible for the delay. (Brief of Jones at 73-74 (citing
N.T., 5/11/83, at 5215-16)). Jones asserts that this
comment is proof that, notwithstanding the trial court’s
instruction that criticism of one defendant’s counsel
should not be taken as an admonition of all of the defense
counsel, the jury blamed all defense counsel for the length
of the trial and that he was prejudiced thereby.

A judge’s remarks to counsel do not warrant reversal unless
the remarks so prejudice the jurors against the defendant
that “it may reasonably be said [that the remarks] deprived
the defendant of a fair and impartial trial.” Commonwealth
v. England, 375 A.2d 1292, 1300 (Pa. 1977) (stating that a
judge’s critical remarks to defense counsel did not deprive
appellant of a fair and impartial trial because the remarks
were directed to counsel, not appellant).

We hold that Jones cannot establish the underlying merit of
this claim. First, the comment was not directed at Jones;
it was not even directed at his counsel. Thus, pursuant to
our holding in England, no prejudice resulted. Further,
McEwen did not state that she would be unable to perform
her duties as a juror because of the frustration she felt
towards counsel. Without such a demonstration, we fail to
see that Jones was prejudiced by this particular comment.
Where Jones suffered no harm, counsel cannot be ineffective
for failing to bring a claim. Therefore, Jones cannot
successfully establish any ineffective assistance of
counsel with respect to this issue. See Hall, supra.

We deem Jones’ seventy-plus claims waived because he failed
to: (1) properly develop these claims by explaining the
circumstances and context of each trial court statement;
(2) identify whether the comments were made in front of the
jury; or (3) explain how each statement prejudiced him.


Noting that “[ ] due process prohibits the conviction of
any person ‘except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime with which he
is charged,'” Jones submits that the jury instruction in
the instant case relieved the Commonwealth of the full
measure of its burden. (Brief of Jones at 78 (quoting In re
Winship, 397 U.S. 358, 364 (1970)). He specifically claims
that the reasonable doubt charge deprived him of his rights
under the Sixth and Fourteenth Amendments to the United
States Constitution and Article 1, Section 9 of the
Pennsylvania Constitution.

Pennsylvania’s Standard Jury Instruction for reasonable
doubt provides in pertinent part that: “[a] reasonable
doubt is a doubt that would cause a reasonably careful and
sensible person to hesitate before acting upon a matter of
importance in his own affairs.” Pa. Suggested Standard
Criminal Jury Instruction 7.01(3) (1979). In the instant
case, the trial court instructed the jury as follows: “A
reasonable doubt is such a doubt as would cause a
reasonably prudent, careful, and sensible person to pause,
hesitate, and restrain himself or herself before acting upon
a matter of highest importance in his or her own affairs.”
(N.T., 5/17/83, at 5885). Jones argues that the addition of
the words “pause” and “restrain” unconstitutionally reduced
the prosecution’s burden of proof as it improperly elevated
the level of doubt required before a juror would find
reasonable doubt. (Brief of Jones at 79).

Jones’ claim is entirely baseless. This Court has
“explicitly approved of instructions containing the word
‘restrain’ for nearly five decades.” Commonwealth v.
Marshall, 810 A.2d 1211, 1225 (Pa. 2002), cert. denied,
Marshall v. Pennsylvania, 1540 U.S. 833 (2003) (collecting
cases); see also Commonwealth v. Fisher, 813 A.2d 761,
769-70 (Pa. 2002) (upholding the trial court’s instructions
that defined reasonable doubt as both “a doubt that would
cause a reasonably careful and sensible person to pause and
hesitate before acting upon a matter of importance in his
or her own affairs” as well as “the kind of doubt that
would restrain a reasonable man from acting in a matter of
importance to himself”); Commonwealth v. Hawkins, 787 A.2d
292, 301-02 (Pa. 2001) (upholding the trial court’s
instructions where it defined reasonable doubt using the
terms “hesitate” and “restrain”); Commonwealth v. Rodney
Jones, 602 A.2d 820, 822 (Pa. 1992) (approving of language
in trial court’s instructions that defined reasonable doubt
as “doubt of such substance that if it occurs [sic] in a
matter of importance in your own affairs, it would restrain
you from acting”). Clearly, the trial court’s instructions
on reasonable doubt were entirely proper, and counsel
cannot be deemed ineffective for failing to raise such a
baseless claim. See Hall, supra.


In a brief, one-paragraph argument, Jones argues that,
pursuant to In re Winship, 397 U.S. 358 (1978), he was
unconstitutionally convicted of first-degree murder and
aggravated assault. Winship states that a defendant cannot
be convicted of a crime unless every element of the offense
is charged and the jury finds the defendant guilty of each
element of the charge beyond a reasonable doubt. Id. at 364.
Jones asserts that the trial court failed to instruct the
jury on transferred intent, see 18 Pa.C.S. § 303(b),
and thus ran afoul of the requirement of Winship.

This claim utterly fails. The trial court’s instruction on
the doctrine of transferred intent stated:

The principle of transferred intent, really, simply
stated, applies to a situation in which a mistake of fact
may be made, under the facts and circumstances.

* * *

Where one kills the wrong person or inflicts serious
bodily harm upon the wrong person by shots which were
intended to seriously harm or kill another, third person,
is guilty of criminal homicide and the same degree of
criminal offense with respect to inflicting serious bodily
injury as if the shots had killed or seriously harmed
his intended victim.

(See N.T., 5/18/83, at 6005-07). These instructions were
proper. See Commonwealth v. Thompson, 739 A.2d 1023,
1029-30 (Pa. 1999) (approving of the instructions, which
advised that “if the intent to commit a crime exists, this
intent can be transferred for the purpose of finding the
intent element of another crime.”). Where the trial court
gave proper instructions to the jury it cannot be in
violation of Winship. As the underlying claim is meritless,
Jones cannot succeed on his associated claim of ineffective
assistance of counsel. See Hall, supra.


Pursuant to Pennsylvania law, first-degree murder requires
the specific intent to kill the victim. 18 Pa.C.S. §
2502. This specific intent may be transferred to an
unintended victim. 18 Pa.C.S. § 303(b). Jones states
that because the Commonwealth proceeded under the theory of
transferred intent, it was required to show that Jones
specifically intended to kill Sylvester Williams in order
to have that intent transferred to eventual victims. He
avers that because this element of the crime was not set
forth in the criminal information against him, the
information violated the Due Process Clause of the
Fourteenth Amendment to the United States Constitution and
Article 1, Section 9 of the Pennsylvania Constitution.

“Indictments must be read in a common-sense manner, and are
not to be construed in an overly technical sense.”
Commonwealth v. Pope, 317 A.2d 887, 890 (Pa. 1974). “At an
earlier stage of legal development, indictments were
strictly and technically construed, and the slightest
imprecision in wording was often considered incurable error.
Today, however, such arguments are unpersuasive.” Id.
(internal citations omitted). This Court has upheld
criminal indictments possessing a flaw and found them to be
constitutional because they put the defendant on sufficient
notice of the charge against him or her. See, e.g.,
Commonwealth v. Kelly, 409 A.2d 21 (Pa. 1979) (upholding
indictment that charged defendant with possession of heroin
when the controlled substance in fact was methamphetamine
because defendant was well advised of the nature of the
offense charged).

Jones admits that the challenged criminal information in
this matter separately charged that Jones did “feloniously,
willfully, and of his malice aforethought kill and murder”
Maurice Jones and Reginald Hines, pursuant to 18 Pa.C.S.
§ 2502. (See Brief of Jones at 87). Both criminal
informations charged Jones with violating the statutory
section for first-degree murder. A criminal information is
not constitutionally infirm if it notified the defendant of
the crime with which he is charged. We believe that when
properly read in a common sense manner, the indictments in
this case gave Jones adequate notice of the charges against
him, regardless of the fact that the criminal information
did not specify the specific intent element as to Williams.

`Moreover, this Court does not view the alleged
unconstitutional variance as material or prejudicial to
Jones. It is well settled that a purported variance will
not be deemed fatal “unless it could mislead the defendant
at trial, involves an element of surprise prejudicial to
the defendant’s efforts to prepare his defense, precludes
the defendant from anticipating the prosecution’s proof, or
impairs a substantial right.” Pope, 317 A.2d at 890
(footnotes omitted). In the case sub judice, Jones knew
that he was charged with killing Maurice Jones and Reginald
Hines. He further knew that the charge was for an
intentional killing pursuant to 18 Pa.C.S. § 2502.
The variance in the charge did not hinder his ability to
prepare a defense or impair a substantial right. Jones’
state and federal constitutional rights were not violated
by the form of the criminal information in this instance.
Counsel cannot be deemed ineffective for failing to bring
an issue that has no merit. See Hall, supra. No relief is


Jones avers that the cumulative effect of the errors
alleged herein denied him a fair trial. We have held that
“no number of failed claims may collectively attain merit
if they could not do so individually.” Commonwealth v.
Craig Williams, 615 A.2d 716, 722 (Pa. 1992) (emphasis
omitted). Because we have determined that there were no
errors warranting relief, Jones’ allegation of cumulative
error fails.


Although the trial court granted an evidentiary hearing
with regard to “several specific claims” of Jones, he now
avers that the trial court erred in denying an evidentiary
hearing as to his remaining claims. (Brief of Jones at 95).
Pennsylvania Rule of Criminal Procedure 909(b) requires a
court to hold an evidentiary hearing on all genuine issues
of material fact raised in a capital PCRA petition. The
foregoing review of Jones’ claims sufficiently establishes
that no material issues of fact remain. Further, aside from
making a blanket statement that his “other claims” warrant
a hearing, Jones fails to identify or argue with
specificity what issues of fact remain in contention. Thus,
this claim too does not succeed.


Jones notes that he has repeatedly “requested discovery in
his PCRA petition and his renewed motion for discovery.”
(Brief of Jones at 95). He argues that the claims raised
herein would be buttressed by material subject to discovery
pursuant to Pennsylvania Rule of Criminal Procedure 902.
Rule 902(E)(2) states that “[o]n the first counseled
petition in a death penalty case, no discovery shall be
permitted at any stage of the proceedings, except upon
leave of court after a showing of good cause.” Pa.R.Crim.P.
902(E)(2). Here, Jones has failed to offer any reason, let
alone one demonstrating “good cause,” why further discovery
in this matter is warranted. Thus, this claim is also


We now turn to the cross-appeal filed by the Commonwealth.
It claims that the PCRA court erred where it: (1) granted
an evidentiary hearing; and (2) found that trial counsel
was ineffective for failing to investigate available
information that “would have produced evidence to support
the [following] statutory mitigating circumstances:” (a)
the capacity of the defendant to appreciate the criminality
of his conduct or to conform his conduct to the
requirements of law was substantially impaired, 42 Pa.C.S.
§ 9711(e)(3); and (b) other evidence of mitigation
concerning the character and record of the defendant and
the circumstances of his offense, 42 Pa.C.S. §
9711(e)(8). Commonwealth v. Jones,

No. 0172 E.D. 2003, at 25 (C.P. Pa. Philadelphia July 31,
2003) (hereinafter “PCRA ct. Op.”).