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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

GEORGE R. JONES, : No. 210 MDA 2014

:

 Appellant :

Appeal from the PCRA Order, January 8, 2014

in the Court of Common Pleas of York County

Criminal Division at No. CP-67-CR-0007300-2009

BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND FITZGERALD,* JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 23, 2015

Appellant, George R. Jones, appeals from the January 8, 2014 order 

dismissing his first petition filed pursuant to the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. The PCRA court denied and 

dismissed appellant’s request for collateral relief without an evidentiary 

hearing. Upon review, we affirm. 

Appellant was charged with one count of aggravated assault on 

June 25, 2009, in relation to the beating of Michael Barton at 33 South Penn 

Street. The following facts were presented at appellant’s jury trial. On 

June 23, 2009, police responded to a call that Barton had been struck in the 

head and was bleeding. Upon arrival, the officer observed Barton seated in 

a lawn chair bleeding profusely from his head. A black duffle bag on the 

ground near the victim contained appellant’s Pennsylvania State 
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Identification Card and a paystub bearing his name; appellant was not 

present. John Collington was at the house on the night in question, but was 

in the bathroom at the time the victim was struck. Collington stated he had 

seen appellant before going to the bathroom and testified appellant left after 

having words with his girlfriend. 

The victim testified that when he arrived at 33 South Penn Street, he 

saw people drinking beers and socializing on the porch. Appellant pulled up 

in a van, came over, and started talking to everyone. A woman jumped out 

of the van and began chasing appellant. She then drove off in the van and 

returned with a butcher knife and a pipe which she threw down on the 

ground and left again. The victim stated that appellant asked if he could use 

someone’s cellphone, and proceeded to take the phone out of the victim’s 

hand without permission. The victim took his phone back and decided to 

leave. As he looked for his keys, the victim stated that he saw appellant 

behind him with the pipe, and that appellant struck him in the side of his 

face and knocked him out.1 The victim suffered multiple facial fractures and 

has been unable to work due to a decrease in memory, balance, and motor 

skills. 

Following a jury trial, appellant was found guilty of aggravated assault, 

18 Pa.C.S.A. § 2702(a)(1). On February 9, 2011, appellant was sentenced 

 

1 Appellant was able to establish, through the testimony of the victim and 

the officer, that the victim had never before indicated that he saw appellant 

with the pipe prior to being struck. 
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to a term of 6 to 12 years’ incarceration. No post-sentence motions were 

filed. Following the filing of a timely notice of appeal, a panel of this court 

affirmed judgment of sentence on January 18, 2012. Appellant filed a 

pro se PCRA petition on August 27, 2012. Counsel was appointed and an 

amended petition was filed on February 15, 2013. On June 7, 2013, the 

PCRA court issued its notice of intent to dismiss the petition without a 

hearing. Appellant filed a response on June 26, 2013. Subsequently, the 

PCRA court dismissed the petition on January 8, 2014. This timely appeal 

followed. Appellant complied with the trial court’s order to file a concise 

statement of errors complained of on appeal within 21 days pursuant to 

Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an 

opinion.

Two claims are presented in appellant’s brief. First, appellant 

contends that the PCRA court erred in dismissing, without conducting an 

evidentiary hearing, his claim that prior counsel was ineffective for failing to 

preserve a challenge to the weight of the evidence. Second, appellant 

claims that the trial court erred when it dismissed his PCRA petition without 

a hearing concerning his claim that trial counsel failed to investigate the 

case and call certain witnesses; appellant alleges that he submitted 

certifications regarding each potential witness he intended to call. 

This Court’s standard of review regarding an order 

denying a petition under the PCRA is whether the 

determination of the PCRA court is supported by the 

evidence of record and is free of legal error. 
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Commonwealth v. Halley, 582 Pa. 164, 870 A.2d 

795, 799 n. 2 (2005). The PCRA court’s findings will 

not be disturbed unless there is no support for the 

findings in the certified record. Commonwealth v. 

Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007), 

appeal denied, 940 A.2d 365 (Pa. 2007).

[T]he right to an evidentiary hearing on a 

post-conviction petition is not absolute. 

Commonwealth v. Jordan, 772 A.2d 1011, 1014 

(Pa.Super.2001). It is within the PCRA court’s 

discretion to decline to hold a hearing if the 

petitioner’s claim is patently frivolous and has no 

support either in the record or other evidence. Id. 

It is the responsibility of the reviewing court on 

appeal to examine each issue raised in the PCRA 

petition in light of the record certified before it in 

order to determine if the PCRA court erred in its 

determination that there were no genuine issues of 

material fact in controversy and in denying relief 

without conducting an evidentiary hearing. 

Commonwealth v. Hardcastle, 549 Pa. 450, 454, 

701 A.2d 541, 542-543 (1997).

Id. at 882, quoting Commonwealth v. Khalifah, 852 A.2d 1238, 

1239-1240 (Pa.Super. 2004).

To prevail on a claim alleging counsel’s 

ineffectiveness under the PCRA, Appellant must 

demonstrate (1) that the underlying claim is of 

arguable merit; (2) that counsel’s course of conduct 

was without a reasonable basis designed to 

effectuate his client’s interest; and (3) that he was 

prejudiced by counsel’s ineffectiveness, i.e. there is 

a reasonable probability that but for the act or 

omission in question the outcome of the proceeding 

would have been different. Commonwealth v. 

Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999); 

Commonwealth v. Douglas, 537 Pa. 588, 645 

A.2d 226, 230 (1994).
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Commonwealth v. Bracey, 795 A.2d 935, 942 (Pa. 2001).

We begin with appellant’s first issue; again, whether trial counsel was 

ineffective for failing to file post-sentence motions challenging the verdict as 

being against the weight of the evidence. Appellant essentially contends 

that the testimony given by the victim is not credible. We note our standard 

of review for weight of the evidence claims:

Appellate review of a weight claim is a review of the 

exercise of discretion, not of the underlying question 

of whether the verdict is against the weight of the 

evidence. Because the trial judge has had the 

opportunity to hear and see the evidence presented, 

an appellate court will give the gravest consideration 

to the findings and reasons advanced by the trial 

judge when reviewing a trial court’s determination 

that the verdict is against the weight of the 

evidence. One of the least assailable reasons for 

granting or denying a new trial is the lower court’s 

conviction that the verdict was or was not against 

the weight of the evidence and that a new trial 

should be granted in the interest of justice. 

This does not mean that the exercise of discretion by 

the trial court in granting or denying a motion for a 

new trial based on a challenge to the weight of the 

evidence is unfettered. In describing the limits of a 

trial court’s discretion, we have explained[,] [t]he 

term ‘discretion’ imports the exercise of judgment, 

wisdom and skill so as to reach a dispassionate 

conclusion within the framework of the law, and is 

not exercised for the purpose of giving effect to the 

will of the judge. Discretion must be exercised on 

the foundation of reason, as opposed to prejudice, 

personal motivations, caprice or arbitrary actions. 

Discretion is abused where the course pursued 

represents not merely an error of judgment, but 

where the judgment is manifestly unreasonable or 

where the law is not applied or where the record 
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shows that the action is a result of partiality, 

prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis 

omitted) (citations omitted).

The PCRA court found appellant failed to satisfy the requirement for 

establishing ineffectiveness as it concluded the weight claim was meritless. 

The crucial evidence against appellant came in the form of testimony from 

the victim. The jury heard that the victim had not previously reported to the 

police seeing appellant with the pipe in his hand or testified to such at the 

preliminary hearing. While the victim might not have previously stated that 

he had seen appellant with the pipe, he never wavered in his identification of 

appellant as the attacker. The jury chose to credit the testimony of the 

victim whose testimony supports the decision to find appellant guilty of 

aggravated assault. A mere conflict in testimony does not justify the grant 

of a new trial on a weight of the evidence claim. Commonwealth v. 

Fisher, 47 A.3d 155, 158 (Pa.Super. 2012).

In its order denying the PCRA petition, the court conducted a weight of 

the evidence review and found appellant’s convictions did not shock the 

judicial conscience given the evidence. (Docket #39.) We find no abuse of 

discretion. Since there was no merit to appellant’s claim of ineffective 

assistance, the PCRA court did not err when it denied appellant’s petition 

without a hearing. See Commonwealth v. Jones, 942 A.2d 903 

(Pa.Super. 2008), appeal denied, 956 A.2d 433 (Pa. 2008) (post-
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conviction court did not err by failing to hold an evidentiary hearing with 

regard to defendant’s claims of ineffective assistance of counsel as such a 

claim must meet all three prongs of the test for ineffectiveness, and the 

court determined, without a hearing, that one of the prongs could not be 

met; thus, there was no purpose for a hearing). As counsel cannot be held 

ineffective for failing to raise a meritless claim, we conclude that appellant 

has failed to establish a claim of ineffectiveness on this basis.

Next, appellant argues that the PCRA court erred when the court 

dismissed appellant’s petition without a hearing on the claim that trial 

counsel was ineffective for failing to call four specific witnesses. (Appellant’s 

brief at 8.) “[W]here a[n appellant] claims that counsel was ineffective for 

failing to call a particular witness, we require proof of that witness’s 

availability to testify, as well as an adequate assertion that the substance of 

the purported testimony would made a difference in the case.” 

Commonwealth v. Clark, 961 A.2d 80, 90 (Pa. 2008) (emphasis added). 

With respect to such claims, our court has explained that the appellant must 

show:

(1) the witness existed; (2) the witness was 

available to testify for the defense; (3) counsel knew 

of, or should have known of, the existence of the 

witness; (4) the witness was willing to testify for the 

defense; and (5) the absence of the testimony of the 

witness was so prejudicial as to have denied the 

defendant a fair trial.
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Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007). Thus, 

trial counsel will not be found ineffective for failing to investigate or call a 

witness unless there is some showing by appellant that the witness’s 

testimony would have been helpful to the defense. Commonwealth v. 

Auker, 681 A.2d 1305, 1319 (Pa. 1996). 

Instantly, the amended PCRA petition merely provides a bald assertion 

that the witnesses could have been called. The initial pro se PCRA petition 

merely lists the witnesses’ names, addresses, dates of birth, and conclusory 

statements such as “rebuttal -- conclusive evidence of innocence -- direct 

evidence.” (Docket #35.) Consequently, we agree with the PCRA court that 

appellant fails to prove that, at the time of trial, these witnesses were 

available and willing to testify or detail the testimony that would have been 

helpful to his defense. As appellant cannot demonstrate how any of the 

proposed witnesses’ testimony would have assisted him, or that those 

witnesses would have testified on his behalf, counsel cannot be ineffective 

for failing to interview them. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/23/2015