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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

RAYSHAWN TAQUAN JONES, : No. 1312 WDA 2014

:

 Appellant :

Appeal from the PCRA Order, June 30, 2014,

in the Court of Common Pleas of Westmoreland County

Criminal Division at No. CP-65-CR-0003475-2009

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND STRASSBURGER,* JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 9, 2015

Rayshawn Taquan Jones appeals from the order dismissing his pro se

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 

42 Pa.C.S.A. §§ 9541-9546. We affirm.

Appellant and his accomplice, Kalell McCord, were involved in a 

“shoot-out” with the victim, Matthew Johnson, on a public street in 

New Kensington, Pennsylvania on July 21, 2009. Appellant was arrested and 

charged with criminal attempt-criminal homicide, aggravated assault, and 

simple assault.1 Timothy Dawson, Esq., was appointed as counsel for 

appellant. A five-day jury trial was held on June 20-24, 2011.

 

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 901(a), 2702(a)(1), 2701(a)(1), respectively.
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At trial, Johnson testified that he was visiting his girlfriend’s brother’s 

house. Johnson left the house to sell a 9mm gun. As he was walking, he 

saw appellant and McCord on Catalpa Street. Both men were armed. (Trial 

transcript, at 176-186.) Johnson testified that he made eye contact with 

both men who went behind a yellow Hummer and then fired shots at him. 

Johnson hid behind the car and fired two shots back. Johnson then got up, 

fired two shots, and started to run. Johnson had no bullets left and tried to 

run back to the house but his leg bones were shattered and he fell on the 

sidewalk against a fence. McCord fled the scene. Appellant approached 

Johnson and, ignoring Johnson’s plea not to shoot him, fired two bullets into 

him at point blank range, hitting him in the neck and stomach. Appellant 

then fled the scene. Johnson survived and identified appellant as the man 

who shot him. 

McCord also testified. He testified that he and appellant were involved 

in a shootout with Johnson. McCord did not know who fired first. He 

testified that once he saw Johnson go down, he “took off running.” (Id. at 

246.) 

An eyewitness testified that she observed a man laying down 

screaming “don’t shoot me. Please don’t kill me.” (Id. at 467.) She saw 

another person walk up and fire several rounds into him. (Id. at 468.) The 

witness was able to identify appellant as the shooter.
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The jury heard evidence that the victim, Johnson, had pending felony 

charges for allegedly selling $20 in crack cocaine, and that the 

Commonwealth offered him a deal on his pending charges in exchange for 

his testimony against appellant. (Id. at 192, 200, 206.) The jury also 

heard that appellant’s accomplice, McCord, received a deal in exchange for 

his testimony against appellant whereby he would be permitted to plead 

guilty to aggravated assault instead of attempted homicide and that he 

would receive a sentence of one year less one day to two years less two 

days instead of fifteen years and would be paroled at the time when he 

entered his guilty plea. (Id. at 220, 266-267, 270.)

The jury found appellant guilty of all charges. Appellant was 

sentenced to a term of imprisonment of 18 years to 36 years. Thereafter, 

appellant filed timely post-sentence motions challenging the weight and 

sufficiency of the evidence and seeking modification of his sentence. The 

trial court denied the motions, and appellant appealed to this court which 

affirmed the judgment of sentence on October 19, 2012. Commonwealth 

v. Jones, No. 343 WDA 2012, unpublished memorandum per curiam

(Pa.Super. filed October 19, 2012). Appellant filed a petition for allowance 

of appeal which was denied on September 26, 2013.

Appellant filed a pro se PCRA petition on December 13, 2013. 

(Docket #101.) In it, he set forth the following two grounds: (1) the 

Commonwealth committed selective prosecution; and (2) the 
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Commonwealth failed to provide the defense with reasonable notice prior to 

trial of its intention to present character evidence of “other crimes, wrongs, 

or acts.”2

On December 31, 2013, the trial court appointed PCRA counsel, 

James H. Robinson, Esq., and directed him to either file an amended PCRA 

petition or a Turner/Finley3“No Merit” letter. (Docket #102.)

On May 21, 2014, Attorney Robinson filed a Turner/Finley “No Merit” 

letter and a petition to withdraw. PCRA counsel addressed both issues 

appellant raised in his pro se PCRA petition. PCRA counsel set forth in detail 

the nature of his review (which included interviews of prior counsel, review 

of the transcripts, appellant’s case file, and the pleadings), cited appropriate 

case law, provided an issue-by-issue analysis of why each issue lacked merit 

and a conclusion that there were no viable issues under the PCRA which 

would afford relief. Counsel sent appellant a copy of the petition and the 

brief and advised him of his right to continue pro se or hire a private 

attorney. On June 30, 2014, the PCRA court, after conducting its own 

independent evaluation of the record, agreed that appellant raised no 

genuine issues and granted Attorney Robinson permission to withdraw from 

representation. (Docket #109.) 

 

2 Appellant did not pursue the second issue in this appeal.

3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Pennsylvania 

v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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Appellant raises the following issues on appeal:

A. WHETHER APPELLANT IS BEING HELD IN 

CUSTODY AT THE STATE CORRECTIONAL 

INSTITUTION AT ALBION IN VIOLATION OF 

THE CONSTITUTION AND LAWS OF THE 

UNITED STATES AND THE COMMONWEALTH 

OF PENNSYLVANIA BY THE COMMONWEALTH 

ENGAGING IN SELECTIVE PROSECUTION BY 

SOLELY CHARGING THE PETITIONER?

B. WHETHER APPELLANT WAS DENIED 

MEANINGFUL PARTICIPATION IN THE PCRA 

PROCESS?

Appellant’s brief at 4.

Our standard of review for an order denying post-conviction relief is 

whether the record supports the PCRA court’s determination, and whether 

the PCRA court’s determination is free from error. Commonwealth v. 

Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings 

will not be disturbed unless there is no support for the findings in the 

certified record. Id.

To prevail on a petition for PCRA relief, a petitioner must plead and 

prove, by a preponderance of the evidence, that his or her conviction or 

sentence resulted from one or more of the circumstances enumerated in 

42 Pa.C.S.A. § 9543(a)(2). These circumstances include a constitutional 

violation or ineffectiveness of counsel which “so undermined the 

truth-determining process that no reliable adjudication of guilt or innocence 

could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(i) and (ii). The 

petitioner must also plead and prove by a preponderance of the evidence 
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that the claims of error have not been previously litigated or waived and that 

“the failure to litigate the issue prior to or during trial, during unitary review 

or on direct appeal could not have been the result of any rational, strategic 

or tactical decision by counsel.” 42 Pa.C.S.A. § 9543(a)(3) and (4). An 

issue has been waived “if the petitioner could have raised it but failed to do 

so before trial, at trial, on appeal or in a prior state post-conviction 

proceeding.” 42 Pa.C.S.A. § 9544(b). An issue has been previously litigated 

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.A. 

§ 9544(a)(2).

First, appellant complains that his rights of due process and equal 

protection of law were violated by the disparate treatment that he received 

vis-à-vis that afforded to McCord and Johnson. He contends that all three 

men were involved in the shootout but he was the only one who was 

selected to be prosecuted. He argues that McCord and Johnson all faced 

similar charges based on the same facts and evidence; yet, the 

Commonwealth permitted them to enter plea bargains in exchange for their 

testimony. Appellant asserts that the disparate treatment by the 

prosecution constituted an arbitrary act and violated his constitutional 

entitlement to fundamental fairness, due process, and equal protection of 

the law. 
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A selective prosecution claim is an independent assertion that the 

prosecutor has brought a charge for reasons forbidden by the equal 

protection clause of the Constitution. U.S. v. Armstrong, 517 U.S. 456 

(1996). The pre-trial motion to dismiss has been the accepted procedure for 

raising this claim. Commonwealth v. Butler, 601 A.2d 268 (Pa. 1991). 

Appellant did not raise this claim before the trial court, and he has not raised 

it in the rubric of ineffective assistance of counsel. Thus, it has been waived. 

Assuming arguendo the issue was not waived, appellant has failed to 

allege that the Commonwealth’s discriminatory selection of him for 

prosecution was based on any “impermissible grounds” such as race, 

religion, the exercise of some constitutional right, or any other such 

arbitrary classification. Commonwealth v. Mulholland, 702 A.2d 1027, 

1034 (Pa. 1997). Appellant’s conduct was clearly more culpable than that of 

the other two participants. After the initial exchange of gunfire, Johnson lay 

gravely injured on the sidewalk, and appellant’s co-defendant, McCord, fled 

the scene. Instead of fleeing, appellant approached Johnson, and despite 

Johnson’s pleas “don’t shoot me” and “please don’t kill me,” shot him at 

close range in the neck and stomach. (Trial transcript, 6/23/11 at 467.) 

The Commonwealth has the prerogative to recommend leniency in exchange 

for truthful testimony. Commonwealth v. Childress, 799 A.2d 805 
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(Pa.Super. 2002). Johnson’s and McCord’s agreement to testify against 

appellant was a valid reason for offering them leniency.4

Next, appellant contends that he was denied due process because the 

PCRA court permitted counsel to withdraw without first amending appellant’s 

“inarticulately drafted [pro se] PCRA petition.” (Appellant’s brief at 11.) 

This issue is also waived. Pa.R.Crim.P. 907(1) requires the petitioner 

to respond to the PCRA court’s proposed dismissal within 20 days. The 

PCRA court issued its notice of dismissal on June 10, 2014, in which it 

concluded that appellant failed to raise any meritorious claims and the issues 

raised lacked genuine arguable merit. The PCRA court notified appellant 

that he had 20 days to respond to the Rule 907 notice. (Docket #7.) If 

appellant wished to challenge counsel’s failure to amend his PCRA petition, 

appellant was required to respond to the proposed dismissal within 20 days 

of the dismissal notice. Because he did not, the issue was waived. 

Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009).

Order affirmed.

 

4 Unlike appellant herein, the appellant in Childress framed his selective 

prosecution claim as a claim of ineffective assistance of counsel under 

§ 9543(a)(2)(ii).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/9/2015