J-S31042-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANDREW JONES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1527 EDA 2017

Appeal from the PCRA Order May 3, 2017

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0002562-2009

BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.: FILED OCTOBER 24, 2018

Appellant, Andrew Jones, appeals from the May 3, 2017 Order, entered 

in the Philadelphia County Court of Common Pleas, dismissing his first Petition 

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9546. After careful review, we affirm.

The relevant facts and procedural history are, briefly, as follows. On 

August 31, 2009, Appellant shot and killed Bruce Lassiter outside a bar located 

at Bridge and Johnson Streets in Philadelphia. Two eye witnesses—Ashley 

Crump, who had known Appellant from the neighborhood for years, and 

Rodney Johnson—identified Appellant at the scene of the crime as the person 

who shot Lassiter.1 

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1 These witnesses also gave statements to the police after the crime.
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The Commonwealth charged Appellant with First-Degree Murder, 

Firearms Not to be Carried Without a License, Carrying Firearms in Public in 

Philadelphia, Possession of an Instrument of Crime (“PIC”), and Prohibited 

Offensive Weapons.

2

At Appellant’s jury trial, Johnson and Crump testified. In addition, Police 

Officer Brian Stark of the Crime Scene Unit testified that when he processed 

the crime scene he recovered several items, including a bicycle; two spent

shotgun shells; and a shotgun slug. Notably, the police did not recover a 

shotgun at the scene. The Commonwealth did not offer any shotgun, or other 

weapon, as evidence at trial.

Ballistician Kenneth Lay testified that the two fired shotgun shells 

recovered from the scene came from the same weapon—a 12 gauge shotgun. 

The shotgun shells had insufficient microscopic markings to permit 

identification.

Counsel stipulated that police submitted a DNA swab taken from the 

bicycle and the shotgun shells found at the scene to the DNA laboratory 

resulting in a finding of insufficient information to make any definitive 

conclusions. 

On November 23, 2011, a jury convicted Appellant of First-Degree 

Murder and PIC. That same day, the court sentenced Appellant to life 

imprisonment on the First-Degree Murder conviction with a concurrent term 

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2 18 Pa.C.S. §§ 2502(a); 6106(a)(1); 6108; 907(a); and 908(a), respectively. 
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of 21⁄2 to 5 years’ incarceration for the PIC conviction. Appellant filed a timely 

Post-Sentence Motion, which the trial court denied on January 5, 2012. This 

Court affirmed Appellant’s Judgment of Sentence on December 20, 2012,3 and 

the Pennsylvania Supreme Court denied Appellant’s Petition for Allowance of 

Appeal on June 7, 2013.4 

On April 15, 2014, Appellant filed a timely pro se first PCRA Petition, in 

which he alleged that his counsel was ineffective for failing to investigate the 

DNA evidence taken from a shotgun discovered by police at 5221 Glenloch 

Street.5 He averred that the Commonwealth withheld such evidence from him 

that would have been exculpatory if he had known of it at the time of his trial. 

He further contended that the trial court abused its discretion when it informed 

the jury that Rodney Johnson had identified Appellant as the shooter. Pro Se 

PCRA Petition, 4/15/14, at 4. 

The PCRA court appointed counsel. On June 1, 2015, counsel filed a 

Motion for Post Conviction DNA Testing Pursuant to 42 Pa.C.S. § 9543.1.6 

Appellant requested DNA testing of the butt of the shotgun recovered at 5221 

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3 See Commonwealth v. Jones, 64 A.3d 29 (Pa. Super. 2012) (unpublished 

memorandum).

4 See Commonwealth v. Jones, 68 a3d 907 (Pa. 2013).

5 Police recovered a shotgun from a second-floor closet in a home at 5221 

Glenloch Street. Upon his arrest, Appellant told the police that he lived next 

door, at 5219 Glenloch Street. 

6 The PCRA court docketed this Motion as a Supplemental Amended PCRA 

Petition. It did not enter a separate Order disposing of this Motion.
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Glenloch Street and a bandana found wrapped around it, as well as the 

shotgun shells recovered from the scene of the crime. He alleged that there 

was no physical evidence connecting Appellant to the crime and that “should 

the testing of the above material reveal DNA from someone other than 

[Appellant], the innocence of [Appellant] would be established at a prima facia 

[sic] level.” Motion-DNA Testing, 6/1/15, at 2 (unpaginated) (emphasis in 

original). 

On May 10, 2016, the Commonwealth filed a Motion to Dismiss,

asserting that Appellant was ineligible for relief pursuant to 42 Pa.C.S. § 

9543.1(a)(1) because DNA technology existed at the time of his 2012 trial. 

In the alternative, the Commonwealth averred that Appellant was not entitled 

to DNA testing because neither the absence of his DNA from this shotgun and 

the shells, nor the presence of someone else’s DNA would have exculpated 

him. 

On May 11, 2016, Appellant filed a counseled Amended PCRA Petition, 

alleging that trial counsel was ineffective for failing to secure a DNA test of 

certain evidence, including a bandana, shotgun, and shotgun shells recovered 

at the scene. Amended PCRA Petition, 5/11/16, at 2 (unpaginated). He 

further alleged that the Commonwealth had provided trial counsel with this 
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evidence, and that “a DNA test would have given [Appellant] strong proof of 

innocence of the offenses.”7 Id. 

On June 23, 2016, Appellant filed a Response to the Commonwealth’s 

Motion to Dismiss his Petition for Post-Conviction DNA Testing. He disputed 

the Commonwealth’s claim that the shotgun found at 5221 Glenloch Street 

was not the shotgun used in the crime. That same day, Appellant also filed a 

Supplemental Amended PCRA Petition, claiming his trial counsel was 

ineffective for failing to cross-examine firearms expert witness Kenneth Lay 

as to his opinion about whether the shotgun recovered by police was the one 

used in the crime, and the fact that the DNA examination of the shotgun 

showed that Appellant’s DNA was not on it. In the alternative, Appellant 

averred that his counsel was ineffective for failing to call Lay as a defense 

witness. 

On February 6, 2017, the Commonwealth filed a Motion to Dismiss 

Appellant’s Supplemental Amended PCRA Petition. The Commonwealth 

argued that Appellant’s trial counsel was not ineffective because he had an 

objectively reasonable basis for not questioning the firearms expert about 

whether the shotgun recovered from 5221 Glenloch Street was the one used 

to kill the victim. Additionally, the Commonwealth noted that the 

Commonwealth did not present the shotgun as evidence at trial because it 

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7 On May 31, 2016, in response to Appellant’s May 11, 2016 Amended PCRA 

Petition, the Commonwealth filed a Motion to Dismiss [Appellant’s] Petition for 

Post-Conviction DNA Testing that appears to be identical to its May 10, 2016 

filing of the same name.
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could not be connected to the instant crime, so there would have been no 

reason for Appellant’s trial counsel to question the expert about it. Motion to 

Dismiss, 2/6/17, at 4-5.

On April 5, 2017, the PCRA court issued a Pa.R.Crim.P. 907 Notice of 

Intent to Dismiss Appellant’s PCRA Petition without a hearing. Appellant did 

not file a Response to the PCRA court’s Rule 907 Notice. On May 3, 2017, the 

PCRA court dismissed Appellant’s PCRA Petition.

Appellant filed this timely appeal. Both Appellant and the PCRA court 

complied with Pa.R.A.P. 1925.

Appellant raises the following issue on appeal:

[] Did the [PCRA] court err in denying [A]ppellant an evidentiary 

hearing when [A]ppellant raised a material issue of fact that trial 

defense counsel was ineffective in failing to introduce physical and 

DNA evidence proving [A]ppellant’s innocence of the crimes?

Appellant’s Brief at 2.

We review the denial of a PCRA Petition to determine whether the record 

supports the PCRA court’s findings and whether its order is otherwise free of 

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This 

Court grants great deference to the findings of the PCRA court if the record 

supports them. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super. 

2007). We give no such deference, however, to the court’s legal conclusions. 

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012). 

To be eligible for relief pursuant to the PCRA, Appellant must establish, 

inter alia, that his conviction or sentence resulted from one or more of the 
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enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2): a 

constitutional violation; ineffective assistance of counsel; an unlawfully 

induced plea; improper obstruction by governmental officials; a case where 

exculpatory evidence has been discovered; an illegal sentence has been 

imposed; or the tribunal conducting the proceeding lacked jurisdiction. See 

42 Pa.C.S. § 9543(a)(2)(i)-(viii). Appellant must also establish that the issues 

raised in the PCRA petition have not been previously litigated or waived. 42 

Pa.C.S. § 9543(a)(3). 

Appellant claims his trial counsel was ineffective for failing to introduce 

evidence at trial that the shotgun recovered by police from a residence on the 

block where the murder occurred did not contain his DNA. Appellant’s Brief 

at 7. In particular, Appellant avers that there was strong circumstantial 

evidence that the shotgun found in 5221 Glenloch Street was the gun used to 

kill the victim, and direct evidence that his DNA was not present on it. He 

further avers the absence of his DNA on the shotgun proves that he did not 

kill the victim. He concludes, therefore, that his trial counsel was ineffective 

for not offering this evidence to show that he did not kill the victim. We 

disagree.

The law presumes counsel has rendered effective assistance. 

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he 

burden of demonstrating ineffectiveness rests on [A]ppellant.” Id. To satisfy 

this burden, Appellant must plead and prove by a preponderance of the 

evidence that: “(1) his underlying claim is of arguable merit; (2) the particular 
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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.” Commonwealth v. Fulton, 830 A.2d 

567, 572 (Pa. 2003). Failure to satisfy any prong of the test will result in 

rejection of the appellant’s ineffective assistance of counsel claim. 

Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).

Appellant’s claim that his trial counsel was ineffective lacks merit. 

Appellant does not offer any proof in support of his claim that the shotgun 

found at 5221 Glenloch Street was the murder weapon. Further, the 

Commonwealth did not introduce that weapon because it could not show that 

that particular shotgun was the murder weapon. See Commonwealth’s Motion 

to Dismiss, 2/6/17, at 4-5; Commonwealth’s Brief at 11. 

Significant to this ineffectiveness claim, trial counsel’s strategy rested 

on the absence of any murder weapon or other physical evidence linking 

Appellant to the murder. Thus, it was objectively reasonable for Appellant’s 

counsel not to bring up the existence of the shotgun found at the house next 

to Appellant’s. 

Moreover, two eyewitnesses, one of whom had known Appellant for four 

years, identified him at the scene, in subsequent statements to police, and at 

trial, as the shooter. Even if Appellant had proven that his trial counsel’s 

strategy lacked an objectively reasonable basis, Appellant has failed to prove 
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that, but for counsel’s alleged ineffectiveness, the outcome of Appellant’s trial 

would have been different. Thus, Appellant’s claim fails.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/24/18