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March 3, 2026 Get Citation Alerts Download PDF Add Note

Com. v. Gibson, J.

Superior Court of Pennsylvania

• Citations: None known
• Docket Number: 50 WDA 2025
• Precedential Status: Non-Precedential

• Judges: Bowes

• Opinion

• Authorities (10)

• Cited By (0)

• Summaries (0)

• Similar Cases (616)

• PDF

Combined Opinion

                        by [Mary Janes Bowes](https://www.courtlistener.com/person/8225/mary-janes-bowes/)

J-S46010-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JALEN DEMERE GIBSON :
:
Appellant : No. 50 WDA 2025

Appeal from the PCRA Order Entered December 16, 2024
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0001051-2017

BEFORE: BOWES, J., NICHOLS, J., and KING, J.

MEMORANDUM BY BOWES, J.: FILED: March 3, 2026

Jalen Demere Gibson appeals from the order that dismissed his petition

filed pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.

Appellant is serving a sentence of life imprisonment for the first-degree

murder of Tevin Sitton (“Victim”), who was shot in the head three times from

the back seat of a white Chevy Malibu in Johnstown, Pennsylvania on April 3,

1. At his trial, Appellant was identified as the shooter by Clifford Eddins,

the driver of the vehicle; Dennis Manson, Eddins’s brother and the Malibu’s

front seat passenger; Million Smith, Victim’s stepbrother who witnessed the

shooting; and Elmo Smith, Victim’s stepfather, who saw Appellant in the back

seat of the Malibu as it left the scene. Surveillance footage corroborated their

testimony.
J-S46010-25

Appellant’s defense was misidentification. He wished to suggest to the

jury that Victim was a drug dealer, providing the motivation for whomever

perpetrated the murder, by offering evidence that a postmortem search of

Victim’s home yielded narcotics and firearms. However, the trial court granted

the Commonwealth’s motion in limine and excluded that evidence.

Appellant chose not to testify in his defense, a decision that was

confirmed by an on-the-record colloquy. That colloquy did not delve into

whether Appellant desired the court to give a jury instruction explaining that

no adverse inference may be taken from his failure to testify. While the trial

court omitted the standard suggested jury instruction on that topic, it did

charge that Appellant was presumed innocent and had no burden to offer any

evidence.

On direct appeal, Appellant did not challenge the absence of the no-

adverse-inference instruction. However, he did contest the trial court’s

exclusion of evidence ostensibly establishing that Victim dealt illicit drugs. We

declined to award relief, opining that his theory was speculative since “there

was no evidence presented that Victim was a drug dealer.” Commonwealth

v. Gibson, 229 A.3d 384, 2020 WL 1518056, at *4 (Pa.Super. 2020) (non-

precedential decision). We continued:

[T]he threshold inquiry with respect to the admission of evidence
is whether the evidence is relevant. Evidence is relevant if it has
any tendency to make a fact more or less probable than it would
be without the evidence. The fact that police found marijuana and
firearms in Victim’s residence the day after the homicide did not
make it more probable or not that Appellant shot Victim or that

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J-S46010-25

Victim was a drug dealer, in the absence of an indication of the
amount of marijuana. Finally, there was extensive evidence
establishing that Appellant was the shooter. We agree with the
trial court that “Appellant’s purpose for attempting to introduce
this evidence . . . to support the allegation that the victim was a
drug dealer and thus may have been killed by an unnamed person
is hypothetical and irrelevant.” Moreover, the evidence that
Appellant was the shooter was overwhelming.

Id. (cleaned up).

Finding no merit in any of Appellant’s issues, this Court affirmed his

judgment of sentence. Id. at *7. On December 9, 2020, our Supreme Court

declined his petition for allowance of appeal. See Commonwealth v.

Gibson, 243 A.3d 3 (Pa. 2020). Since Appellant did not seek review in the

Supreme Court of the United States, his judgment of sentence became final

ninety days later, on March 9, 2021. See 42 Pa.C.S. § 9545(b)(3);

U.S.Sup.Ct.R. 13(1).

Appellant initiated the instant PCRA proceedings by filing a timely,

counseled petition on January 3, 2022. Counsel amended the petition before

obtaining leave to withdraw in favor of substitute counsel, who filed a second

amended petition in July 2023. The PCRA court held a hearing over two days.

After the parties submitted post-hearing briefs, the court denied Appellant’s

petition by an opinion and order entered December 16, 2024.1

---

1 The order was filed on December 13, 2024, but service upon the parties was

noted on the docket on December 16, 2024. Hence, the latter is its date of
entry. See Pa.R.A.P. 108(a)(1).

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J-S46010-25

Appellant timely appealed, and both Appellant and the PCRA court

complied with Pa.R.A.P. 1925. Appellant presents the following questions for

our consideration:

1. A. Did trial counsel perform deficiently when he failed to [e]nsure that his client was subject to a colloquy as to whether he wished to request that the court provide a no- adverse inference instruction, even though counsel discussed related topics with his client?

B. Did counsel’s deficient performance cause structural
error related to Appellant’s right against self-incrimination,
such that prejudice need not be shown? Alternatively, does
Appellant show prejudice arising from counsel’s error?

1. Did trial counsel perform ineffectively when he failed to properly litigate the Commonwealth’s motion in limine related to the presence of a cache of drugs and weapons located in a secret vault in the Victim’s home?

Appellant’s brief at 1-2 (cleaned up).

We begin with the applicable legal principles. “[W]e review an order

dismissing or denying a PCRA petition as to whether the findings of the PCRA

court are supported by the record and are free from legal error.”

Commonwealth v. Howard, 285 A.3d 652, 657 (Pa.Super. 2022) (cleaned

up). Ultimately, “[i]t is an appellant’s burden to persuade us that the PCRA

court erred and that relief is due.” Commonwealth v. Stansbury, 219 A.3d

157, 161 (Pa.Super. 2019) (cleaned up).

This Court has summarized the law pertinent to challenges to counsel’s

performance as follows:

[T]o establish a claim of ineffective assistance of counsel, a
defendant must show, by a preponderance of the evidence,

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J-S46010-25

ineffective assistance of counsel which, 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. The burden is on the defendant to prove all three of the
following prongs: (1) the underlying claim is of arguable merit;
(2) that counsel had no reasonable strategic basis for his or her
action or inaction; and (3) but for the errors and omissions of
counsel, there is a reasonable probability that the outcome of the
proceedings would have been different.

We have explained that a claim has arguable merit where the
factual averments, if accurate, could establish cause for relief.
Whether the facts rise to the level of arguable merit is a legal
determination.

Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019)

(cleaned up). The petitioner’s failure to sustain any prong of the test defeats

the claim. See, e.g., Commonwealth v. Rivera, 199 A.3d 365, 374 (Pa.

2018).

Appellant first claims that trial counsel failed to protect his rights

concerning the no-adverse-inference jury instruction. That charge “directs

the jurors that they may not draw any derogatory insinuation from a

defendant’s failure to testify on his own defense, because the defendant has

the unqualified right not to take the stand if he so chooses.” Commonwealth

v. Perez, 103 A.3d 344, 348 (Pa.Super. 2014).

Our Supreme Court has ruled that, “as a matter of Pennsylvania

constitutional law, as under the United States Constitution, criminal

defendants in this Commonwealth are entitled to a ‘no-adverse-inference’ jury

instruction, when a timely request is made to the trial court.” Id. (cleaned

up); see also Carter v. Kentucky, 450 U.S. 288, 300 (1981) (“[T]he Fifth

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J-S46010-25

Amendment requires that a criminal trial judge must give a ‘no-adverse-

inference’ jury instruction when requested by a defendant to do so.”). Further,

our High Court held in Commonwealth v. Thompson, 674 A.2d 217 (Pa.

1996), that “the no adverse inference instruction shall be given absent an

express on[-]the[-]record colloquy by the defendant waiving the charge.” Id.

at 222.

In this Court, Appellant does not assert that he is entitled to relief

because his trial counsel was ineffective in failing to request the instruction.

Indeed, he concedes that such a claim must fail because “counsel had a

reasonable tactic” in deciding not to draw the jury’s attention to the fact that

Appellant opted not to testify. See Appellant’s brief at 9. Accord

Commonwealth v. Koehler, 36 A.3d 121, 146 (Pa. 2012) (observing that

counsel in some circumstances may forgo objections and instructions to avoid

highlighting the issue for the jury); Commonwealth v. Milliard, 260 A.3d

143, 2021 WL 2936745, at *6 (Pa.Super. 2021) (non-precedential decision)

(rejecting ineffectiveness challenge where, inter alia, counsel omitted the no-

adverse-inference instruction as a matter of trial strategy to avoid “drawing

focus to the fact the defendant did not testify”).

Instead, Appellant asks us to grant him relief based upon counsel’s

failure to ensure that the court conducted a Thompson colloquy before

proceeding without the instruction. The PCRA court rejected this claim upon

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J-S46010-25

determining that Appellant suffered no prejudice. See PCRA Court Opinion,

12/13/24, at 9-10; PCRA Court Opinion, 2/19/25, at 3.

Appellant acknowledges that Thompson expressly declined to “place

the burden on counsel to discuss” the no-adverse-inference instruction with a

non-testifying defendant in every case. See Appellant’s brief at 19 (quoting

Thompson, 674 A.2d at 222) He also correctly observes that this Court has

held that, “[i]f counsel fails to request a Thompson colloquy, the standard

three-part ineffectiveness test governs the ineffectiveness analysis.” Id.

(citing Commonwealth v. Stanley, 830 A.2d 1021, 1027 (Pa.Super. 2003)).

Nonetheless, Appellant argues that he does not have to establish that

he suffered prejudice from counsel’s failure to discuss the pros and cons of a

Thompson instruction with him and record his decision in a colloquy

conducted on the record. He maintains that the Thompson Court’s “carve-

out of the type of information that a trial lawyer must discuss with a non-

testifying client,” and its “refusal to consider the failure to discuss this valuable

constitutional right as structural error,” have been undermined by subsequent

decisions. See Appellant’s brief at 21.

Specifically, Appellant emphasizes that, in eschewing a mandate that

attorneys discuss the no-adverse-inference instruction with their clients in all

cases, the Thompson Court cited authority holding that counsel is not

ineffective for failing to advise a defendant about the collateral consequences

of a guilty plea. However, in Padilla v. Kentucky, 559 U.S. 356 (2010), the

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J-S46010-25

United States Supreme Court held that “counsel must inform her client

whether his plea carries a risk of deportation.” Id. at 374 (remanding for a

determination of whether the defendant was prejudiced by counsel’s

omission).

Appellant also suggests that Thompson was undercut by our High

Court’s decision in Commonwealth v. Taylor, 309 A.3d 754 (Pa. 2024),

holding that structural error was present where, in adjudicating a petition to

have a juvenile’s case transferred to adult criminal court, the court violated

his “Fifth Amendment right by, in effect, conditioning its ultimate finding of

the juvenile’s amenability to treatment, supervision, and rehabilitation upon

a requirement that the juvenile admit guilt for the offenses he is alleged to

have committed.” Id. at 783. Since the right to a no-adverse-inference

instruction is also grounded in the Fifth Amendment, Appellant argues that a

waiver of the right to include it in the jury charge in the absence of a colloquy

likewise is a structural error requiring no proof of prejudice. See Appellant’s

brief at 22.

Finally, Appellant posits that even if counsel’s omission was not

ineffective per se, he is able to demonstrate prejudice. Although admitting

that “there was certainly ample evidence against Appellant,” he insists that

“the Commonwealth’s case was far from overwhelming.” Id. at 22. He points

to the lack of a motive for him to kill Victim, the unreliability of the

identifications of Eddins and Manson given their presence in the vehicle from

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J-S46010-25

which the shots were fired and motivation to point the blame elsewhere, along

with raising the overall “vagaries of eyewitness identification” to question the

identifications made by Victim’s family members. Id. at 23-24.

We are unpersuaded that the lack of a Thompson colloquy was a

structural error entitling Appellant to relief in the absence of a showing that

he was prejudiced by the omission. The Padilla decision, concerning how

changes to immigration law have impacted the knowing element of guilty

pleas, simply bears no relation to the issue before us. Further, as noted

above, a Padilla violation is not per se ineffectiveness. Nor do we see how

the Taylor ruling that a Fifth Amendment violation in the form of a forced

admission of guilt irredeemably tarnished a juvenile certification proceeding

undermines the holdings of Thompson and its progeny, namely that a

defendant who has not been compelled to give evidence against himself must

establish that the jury’s verdict was likely to be different if it had heard the

no-adverse-inference instruction.

Therefore, we apply our controlling precedent which provides that,

“when counsel fails to have [a Thompson] colloquy conducted, the standard

three-part ineffectiveness test should govern the ineffectiveness analysis.”

Stanley, 830 A.2d at 1027; see also Commonwealth v. Nichols, 328 A.3d

522, 2024 WL 479297 (Pa.Super. 2024) (non-precedential decision), appeal

denied, 338 A.3d 109 (Pa. 2025) (applying Stanley to require proof of

-9-
J-S46010-25

prejudice where the defendant did not expressly waive the right to the no-

adverse-inference instruction).

In so doing, we readily discern that the PCRA court did not err in finding

an absence of prejudice in this case. As it observed: “In Perez, the Superior

Court concluded that where the evidence of a homicide defendant’s guilt is so

compelling such that there is no realistic likelihood that a jury would reach a

not guilty verdict [if the instruction were given], the defendant cannot

establish prejudice for purposes of the PCRA’s ineffective assistance of counsel

test.” PCRA Court Opinion, 2/19/25, at 2-3 (citing Perez, 103 A.3d at 351 -

52). Appellant’s argument that the evidence against him was not sufficiently

forceful is belied by this Court’s express finding in his direct appeal that “the

evidence that Appellant was the shooter was overwhelming.” Gibson, 2020

WL 1518056, at *4. As detailed at the outset, this was not a case of

circumstantial evidence or stranger eyewitness identification. Here, four

people familiar with Appellant identified him as the man in the back of the

Malibu who shot Victim, and their testimony was not only consistent with one

another, but corroborated by surveillance footage. We have declined to find

prejudice under similar circumstances. See Perez, 103 A.3d at 352 (holding

ineffectiveness claim concerning absence of no-adverse-inference instruction

failed due to lack of prejudice where multiple eyewitnesses identified Perez

and forensic evidence corroborated their testimony).

• 10 - J-S46010-25

Furthermore, Appellant’s jury was charged on many of the key elements

of the no-adverse-inference instruction. The standard Thompson instruction

is as follows:

It is entirely up to the defendant in every criminal trial whether or
not to testify. [He] [She] has an absolute right founded on the
Constitution to remain silent. You must not draw any inference of
guilt, or any other inference adverse to the defendant, from the
fact that [he] [she] did not testify.

PCRA Court Opinion, at 8 (quoting Pa. S.S.J.I. (Crim) 3.10). While that was

not given, the jury nonetheless heard:

A fundamental principle of our system of criminal law is a
defendant is presumed to be innocent. The mere fact he was
arrested and is charged with crimes is not evidence of his guilt.
Furthermore, a defendant is presumed to remain innocent
throughout the trial unless and until you conclude, based upon
careful and impartial consideration of the evidence, that the
Commonwealth has proven him guilty beyond a reasonable doubt
of the charges made against him. It’s not the defendant’s burden
to prove that he is not guilty. Instead, it is the Commonwealth
that always has the burden of proving each and every element of
the crimes charged and that the defendant is guilty of those
crimes beyond a reasonable doubt. A person accused of a crime
is not required to present evidence or to prove anything in his own
defense.

Id. (citing N.T. Trial, 8/7/18, at 44-45).

This Court has ruled that instructions like the one given in Appellant’s

case defeated the prejudice prong of a Thompson-based ineffectiveness

claim. See Commonwealth v. Stevenson, 313 A.3d 157, 2024 WL 48289,

at *5 (Pa.Super. 2024) (non-precedential decision) (“Although the trial court

did not expressly give a no adverse inference charge, its instructions were

• 11 - J-S46010-25

sufficiently equivalent. ... [Stevenson’s] claim fails because he failed to

establish prejudice to a degree that would have altered the outcome of trial.”).

Overall, we are not convinced that there was a reasonable likelihood of

a different result had Appellant been given a colloquy and elected to have the

no-adverse instruction in the jury charge. Given the compelling evidence of

Appellant’s guilt and the jury’s awareness of the Commonwealth’s exclusive

burden to produce evidence sufficient to overcome the presumption of his

innocence, we have no basis to conclude that the verdict would have been

anything other than guilty. Therefore, no relief is due.

Appellant’s remaining claim is that trial counsel failed to properly contest

the Commonwealth’s motion in limine regarding the contraband found at

Victim’s home after the murder. More particularly, a search warrant executed

at Victim’s home the day after the murder revealed an underground vault

containing marijuana in bulk, packaging materials, and a horde of firearms

including assault rifles with extended clips. See Appellant’s brief at 12-14. A

smaller bag of marijuana was recovered from outside the residence not far

from where Victim was killed. Id. at 14. The Commonwealth moved to

exclude the evidence because it was impermissible other-bad-acts evidence

that had no relation “to any defense that could possibly be raised by

[Appellant].” N.T. Pretrial Hearing, 4/17/18, at 3. To oppose the motion, trial

counsel pointed to a photograph showing Victim with similarly-packaged

marijuana and argued that “[b]eing a drug dealer brings violence, and this

• 12 - J-S46010-25

man could have had a number of people who wanted him for whatever reason

related to the drugs.” Id. at 4. Citing the marijuana found outside the home,

counsel questioned: “[C]ould there have been a drug deal?” Id. at 5.

In appealing the exclusion of the evidence, Appellant maintained “that

Victim was a drug dealer and as such, would have many enemies with a motive

to kill him.” Gibson, 2020 WL 1518056, at *4 (cleaned up). As noted above,

we rejected Appellant’s challenge, observing that the certified record lacked

evidence that Victim was in fact a drug dealer given “the absence of an

indication of the amount of marijuana.” Id. He seizes upon this statement

to contest counsel’s performance in litigating the appellate claim.

Specifically, Appellant assails counsel’s failure to proffer the available

evidence depicting the full extent of the narcotics operation at Victim’s

residence. Appellant stresses that counsel acknowledged that he had no

strategic basis for not producing the photographic evidence to support his

argument that he should be permitted to offer them to the jury to support

“the theory that [V]ictim was shot as part of a drug deal, or related to his drug

business.” Appellant’s brief at 14. Finally, Appellant asserts that he was

prejudiced because, were it not for counsel’s omissions, the result of the in

limine hearing and the trial would have been different. Id. at 27.

The PCRA court observed that this Court’s rejection of the challenge on

Appellant’s direct appeal was based upon relevancy as much as the

speculative nature of Victim’s involvement with illicit drug sales. As we noted

• 13 - J-S46010-25

supra, we expressly agreed with the trial court that “[t]he fact that police

found marijuana and firearms in Victim’s residence the day after the homicide

did not make it more probable or not that Appellant shot Victim,” and opined

that, in any event, “the evidence that Appellant was the shooter was

overwhelming.” Gibson, 2020 WL 1518056, at *4.

The PCRA court also found that no prejudice resulted from counsel’s

failure to contest the Commonwealth’s motion utilizing the full extent of the

evidence that Victim was a drug dealer. The court explained:

Evidence as to the quantity of marijuana or the number of
weapons found would not impact or alter: the identification of
[Appellant] as the shooter by Eddins, Manson, and Million; Elmo’s
identification of [Appellant] as being the back seat passenger in
the Malibu immediately after he heard gunshots; [and] the video
footage showing [Appellant] wearing a sweatshirt that appeared
to be the same as worn by the shooter. In short [Appellant] failed
to establish that anything in the evidence from inside [Victim’s]
home would have exonerated him or made it probable that
[Victim] was killed by a third party.

PCRA Court Opinion, 12/13/24, at 11-12. Therefore, the court would have

excluded the evidence even if counsel performed as Appellant claims he should

have done.

Upon this record, we agree with the PCRA court that the claim is

meritless. Victim’s purported drug dealing, possibly during the incident that

resulted in his death, may have suggested a motive for the murder, but it did

not make it more or less likely that Appellant was the person who killed him.

Since the evidence was thus properly excluded as irrelevant, Appellant’s claim

fails the arguable merit prong. Further, Appellant has not proven prejudice

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because the outcome of the motions hearing and the trial are not likely to

have been different had counsel more thoroughly established the existence of

a narcotics operation run out of Victim’s residence. Therefore, Appellant has

failed to meet his burden. See Stansbury, 219 A.3d at 161.

In sum, since Appellant has not convinced us that the PCRA court’s order

is the result of an error of law or abuse of discretion, we have no cause to

disturb it.

Order affirmed.

3/3/2026

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