J-S35012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 ROBERT ALVAREZ                            :
                                           :
                    Appellant              :    No. 2799 EDA 2017

                  Appeal from the PCRA Order July 25, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0010755-2010


BEFORE:    OLSON, J., STABILE, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                         FILED SEPTEMBER 09, 2019

      Appellant, Robert Alvarez, appeals pro se from an order entered on July

25, 2017, which dismissed his petition for collateral relief filed pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      On a previous appeal, we summarized the facts and procedural history

of this case as follows:

      Louis Colon was walking at the Frankford High School football field
      in Philadelphia with his friend Vanessa Gonzalez on July 3, 2010.
      While walking he became suspicious of a van in the area with a
      New York license plate. Accordingly, he approached and peered
      inside. He saw a young boy inside the van sitting atop a mattress.
      Mr. Colon also witnessed Appellant exit the van before reentering.
      The van began to shake a little bit and Mr. Colon heard whispering
      inside. Concerned, Mr. Colon telephoned the police.

      Two officers, Officer Ryan Pownall and Officer Joanne Bondiskey
      responded in separate vehicles. Mr. Colon alerted the officers to
      the van and informed them that a small boy was being sexually
      assaulted. Officer Pownall opened the side door of the van and,
      upon tearing down a curtain, he observed the victim kneeling on
      a mattress pulling up his pants. Behind the victim, also attempting
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* Retired Senior Judge assigned to the Superior Court.
J-S35012-19


       to pull up his pants, was Appellant. Officer Bondiskey confirmed
       that both Appellant and the victim had their pants down and
       unzipped and that Appellant was attempting to pull up his pants.

       Officer Pownall pulled Appellant from the vehicle, who resisted and
       the officer struck him three times in the face. The police arrested
       Appellant, whose pants, according to Mr. Colon and Ms. Gonzalez,
       were still below his waist when he was removed from the van. Mr.
       Colon related that the victim was crying, scared, and barefoot
       when police removed him from the van. Officers Bondiskey and
       Pownall also provided that the victim was hysterical and crying.
       Semen was found on the victim's clothing, but DNA testing on that
       evidence was not completed.

       The victim indicated to police that he knew Appellant, who was a
       family friend. According to the victim, he was playing basketball
       when Appellant drove up and asked him if he wanted to go buy
       fireworks. The victim then asked his mother if he could go with
       Appellant. Appellant then took the victim to McDonald's, where
       they ate. Thereafter, Appellant drove to the Frankford High School
       football field area and parked his van. Appellant entered the back
       of the van and put his penis in the victim's mouth. Additionally,
       the victim maintained that Appellant placed [his mouth on the
       victim’s penis]. In addition, [the victim] stated that Appellant
       licked his anus and offered him $50[.00] to have anal sex. [See
       N.T. Trial, 10/19/12 (Volume II), at 109-111 and 114-120].

       The Commonwealth charged Appellant in its criminal complaint
       with general charges of rape, [involuntary deviate sexual
       intercourse (“IDSI”), and lesser charges].

                                           ***

       At the conclusion of the preliminary hearing, the court held over
       charges of rape by forcible compulsion [and] IDSI by forcible
       compulsion. . . . Subsequently, the Commonwealth filed a thirteen
       count criminal information.1


____________________________________________


1 In the bills of information, the Commonwealth included both the charges of
rape and IDSI by forcible compulsion and rape and IDSI with a child. See
Criminal Information, 9/1/10, at 1.


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                                           ***

        Appellant represented himself at trial, with the assistance of
        stand-by counsel. Following [] trial, the jury found Appellant guilty
        of rape of a child, [IDSI] of a child who is less than [13] years of
        age, unlawful contact with a minor, sexual assault, and corruption
        of a minor.2 The court then imposed sentence on June 28,
        2013. . . . Appellant did not file a post-sentence motion, but [with
        court appointed counsel] timely appealed on July 9, 2013.

Commonwealth v. Alvarez, __A.2d__, 1967 EDA 2013 (Pa. Super. 2015)

(unpublished memorandum), at 1-12 (citation omitted).

        This Court affirmed Appellant’s judgment of sentence on April 10, 2015.

Id. Appellant did not appeal this Court’s decision. On May 6, 2016, Appellant

filed the current pro se petition.3 The court appointed counsel to review the

matter.    See PCRA Court Order, 3/20/17, at 1.         On June 5, 2017, court-

appointed counsel filed a motion to withdraw as counsel and a no-merit letter

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On


____________________________________________


2   The remaining charges were nolle prossed and did not go to the jury.

3 Appellant’s judgment of sentence became final on May 10, 2015 (30 days
after this Court affirmed his judgment of sentence). Thus, Appellant had until
May 10, 2016, to file a timely petition under the PCRA. See 42 Pa.C.S.A.
§9545(b)(1) (“any petition. . . shall be filed within one year of the date the
judgment becomes final”). Here, the Office of Judicial Records received
Appellant’s petition on May 6, 2016. Thus, although the PCRA court stated in
its opinion that Appellant filed his petition on June 8, 2016, the record confirms
that Appellant’s petition is timely, and this Court has jurisdiction to reach the
merits.




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June 9, 2017, the PCRA court issued notice that it intended to dismiss

Appellant’s PCRA petition in 20 days without holding a hearing in view of

counsel’s Turner/Finley letter. PCRA Court Order, 6/9/17, at 1; see also

Pr.R.Crim.P. 907(1). Appellant filed a response to the Turner/Finley letter

and the Rule 907 notice. The PCRA court dismissed Appellant’s petition and

granted counsel’s leave to withdraw on July 25, 2017. Appellant filed a timely

notice of appeal.4

        Appellant raises the following issue on appeal:5

        Whether counsel was ineffective for failing to move to vacate the
        trial court’s judgment of sentence for rape and IDSI of a child on
        the basis that the trial court impermissibly substituted those
        charges in place of their forcible compulsion counterparts in
        violation of Appellant’s constitutional rights of due process, notice,
        and a fair trial?

See Appellant’s Brief at 1-2.

        Our standard of review is as follows:

        As a general proposition, an appellate court reviews the PCRA
        court's findings to see if they are supported by the record and free
        from legal error. The court's scope of review is limited to the
        findings of the PCRA court and the evidence on the record of the


____________________________________________


4 Appellant raised several issues in his pro se PCRA petition and Rule 1925(b)
Statement of Matters Complained of on Appeal. However, Appellant failed to
develop these arguments in his appellate brief. As such, the issues are waived.
See Commonwealth v. Luktisch, 680 A.2d 877, 879 n.1 (Pa. 1996) (holding
that an issue is waived where the defendant failed to develop an argument in
his appellate brief and cited no authority).

5   This Court has simplified Appellant’s issue for ease of discussion.


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       PCRA court's hearing, viewed in the light most favorable to the
       prevailing party.

                                          ***

       To prevail on a claim that counsel was constitutionally ineffective,
       the [petitioner] must overcome the presumption of competence
       by showing that: (1) his underlying claim is of arguable merit; (2)
       the particular 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 proceedings would
       have been different. A failure to satisfy any prong of the test for
       ineffectiveness will require rejection of the claim.

Commonwealth v. Hammond, 953 A.2d 544, 556 (Pa. Super. 2008)

(citations and quotations omitted) (emphasis added).

       Appellant argues that counsel6 was ineffective for failing to make a

motion in arrest of judgment7 alleging that the trial court violated his

constitutional rights of due process, notice, and a fair trial. According to

Appellant, the trial court violated his constitutional rights by, in his words,

“switching” the bills of information to charge Appellant with rape and IDSI of

a victim under 13 years of age as opposed to rape and IDSI by forcible

____________________________________________


6 On March 16, 2012, Appellant moved to proceed pro se at his jury trial. See
Appellant’s Petition for Waiver of Counsel, 3/16/12, at 1-5. The trial court
granted the motion on March 27, 2012. See Trial Court’s Order 3/27/12, at 1.
Thus, at trial, Appellant proceeded pro se, with court-appointed stand-by
counsel. However, at sentencing, Appellant elected to be represented by
counsel. See N.T. Trial, 10/23/12 (Volume I), at 56. On his direct appeal to
this Court, Appellant was also represented by counsel after the trial court
denied his motion to proceed pro se. See Trial Court’s Order, 7/21/14, at 1.

7 See Pa.R.Crim. P. 704(b) (explaining that in “extraordinary circumstances”
a trial judge may hear, before sentencing, “an oral motion in arrest of
judgement”).

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compulsion.      See Appellant’s Brief at 25-26. Appellant claims that the

substitution of charges undermined his defense, which would have asserted

that the victim was not sexually assaulted by force. Appellant’s complaints are

meritless and, as such, his claim of ineffective assistance of counsel does not

entitle him to relief.

       Factually, Appellant’s contention that the trial court “surreptitiously

switched” the bills of information is erroneous. See Appellant’s Brief at 26.

The Commonwealth charged Appellant in its criminal complaint with the

general charges of rape, IDSI, and various other offenses. See Criminal

Complaint, 7/4/10, at 2.8 On September 1, 2010, the Commonwealth filed a

thirteen-count criminal information, which explicitly stated:

____________________________________________


8 In a previous appeal, this Court stated that the criminal complaint specified
the allegations as follows:

       At or near 5000 Rutland Street [Appellant] engaged in deviate
       sexual intercourse by forcible compulsion or threat of same with
       [B.R.] (12 years old) by luring the complainant into the back of
       his van for the purpose of engaging in a sexual offense with a
       minor. Once [Appellant] had the complainant in the back of his
       van, [Appellant] pulled down his pants and forced the complainant
       to perform oral sex on him (complainant’s mouth on [Appellant’s]
       penis). [Appellant] then pulled down the complainant’s pants and
       put his mouth on the complainant’s penis. [Appellant] then
       inserted his tongue inside of the complainant’s anus and
       attempted to insert his penis inside of the complainant’s anus (at
       which time [Appellant] was interrupted by police discovery of
       [Appellant’s] actions).

Alvarez, __A.2d__, 1967 EDA 2013 (Pa. Super. 2015) (unpublished
memorandum), at 4 (citation omitted). Based on the description of the



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       In count one, the Commonwealth charged Appellant pursuant to
       18 Pa.C.S.A. § 3121(A)(l), and asserted that Appellant engaged
       in sexual intercourse with a complainant by forcible compulsion or
       "[w]here the complainant was less than 13 years of age." It
       further stated,

          Rape of a Child: Notice is hereby given that the
          Commonwealth further intends to proceed under 18
          Pa.C.S.A. §§ 3121 (c), (d) & (e).

                                           ***

       Similarly, in count two, the Commonwealth averred that Appellant
       engaged in IDSI by forcible compulsion or with a complainant less
       than [13] years of age and further alleged,

          Involuntary Deviate Sexual Intercourse with a Child.
          Notice is hereby given that the Commonwealth
          further intends to proceed under 18 Pa.C.S.A.
          §§ 3123(b), (c) & (d).

Alvarez, __A.2d__, 1967 EDA 2013 (Pa. Super. 2015) (unpublished

memorandum), at 4-5 (citation omitted) (emphasis added). Accordingly, the

original bills of information clearly charged Appellant with rape of a child and

IDSI with a child.      See Criminal Information, 9/1/10, at 1. Hence, as of

September 1, 2010, Appellant had notice of such charges. Therefore,

Appellant’s assertion that the trial court violated his constitutional rights of

due process, notice, and a fair trial by substituting new charges is belied by

the record. It follows, therefore, that his claim of ineffective assistance of

counsel is meritless.



____________________________________________


episode, this Court observed that “Appellant was placed on notice that he
was being accused of engaging in improper sexual relations with a
child less than thirteen.” Id. (emphasis added).

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      Appellant’s claim that counsel failed to make a motion to arrest the

judgment is also inconsistent with the record. To the contrary, on the date of

Appellant’s sentencing, his counsel made the following oral motions: a motion

in arrest of judgment, a motion for a mistrial, and a motion for extraordinary

relief. See N.T. Sentencing, 6/28/13 (Volume I), at 11. Notably, the motions

were substantively based upon Appellant’s current assertions. See id. The

trial court denied each motion. See id. at 14. In addition, sentencing counsel

explicitly reiterated Appellant’s contention that the Commonwealth “switched”

his charges. See id. at 21-25. Furthermore, the court allowed Appellant to

explain each claim at the sentencing hearing. See id. at 59-77. Accordingly,

any claim that counsel was ineffective for failing to make the requested motion

is disingenuous.

      Lastly, even if this Court were to assume that the Commonwealth

amended the original bills of information and that a motion to arrest the

judgment challenging such an amendment was not made – both of which are

factually inconsistent with the record - Appellant’s argument still fails.

Pursuant to Rule 564 of the Pennsylvania Rules Criminal Procedure, a court

may permit the amendment of the bills of information. In particular, Rule 564

provides:

      The court may allow an information to be amended, provided that
      the information as amended does not charge offenses arising from
      a different set of events and that the amended charges are not so
      materially different from the original charge that the defendant
      would be unfairly prejudiced. Upon amendment, the court may
      grant such postponement of trial or other relief as is necessary in
      the interests of justice.

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Pa. R. Crim. P. 564. To determine if Rule 564 is met, a court considers

      whether the crimes specified in the original indictment or
      information involve the same basic elements and evolved out
      of the same factual situation as the crimes specified in the
      amended indictment or information. If so, then the defendant
      is deemed to have been placed on notice regarding his
      alleged criminal conduct. If however, the amended provision
      alleges a different set of events, or the elements or defenses to
      the amended crime are materially different from the elements or
      defenses to the crime originally charged, such that the defendant
      would be prejudiced by the change, then the amendment is not
      permitted.

Commonwealth v. Bricker, 882 A.2d 1008, 1019 (Pa. Super. 2005)

(emphasis added).

      In this case, if the Commonwealth amended the bills of information from

rape and IDSI by forcible compulsion to rape and IDSI of a victim under 13

years of age, such a substitution would meet the Bricker test. Indeed, each

crime involves the same basic elements and arises out of the same factual

circumstances.   See id. at 1019.      Thus, Appellant’s contention is without

merit. Consequently, his claim of ineffective assistance of counsel fails

because counsel “is not required to pursue motions which have no arguable

merit.” Commonwealth v. Bradley, 473 A.2d 1082, 1084 (Pa. Super. 1984).

      Therefore, because Appellant did not demonstrate that his underlying

claim is of arguable merit, Appellant’s ineffective assistance claim fails.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/19




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