J-S81001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    JUSTIN TYRONE BAXTER

                             Appellant                No. 1339 MDA 2018


               Appeal from the PCRA Order Entered July 23, 2018
                In the Court of Common Pleas of Dauphin County
               Criminal Division at Nos: CP-22-CR-0000913-2014
                            CP-22-CR-0005089-2014




    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    JUSTIN TYRONE BAXTER

                             Appellant                No. 1340 MDA 2018


               Appeal from the PCRA Order Entered July 23, 2018
                In the Court of Common Pleas of Dauphin County
               Criminal Division at Nos: CP-22-CR-0005089-2014


BEFORE: STABILE, DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                             FILED APRIL 04, 2019



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*   Former Justice specially assigned to the Superior Court.
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        Appellant, Justin Tyrone Baxter, appeals from the July 23, 2018 order

dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-46. We affirm.

        The record reflects that the victims, Joseph Payne-Casiano and Michael

Gelsinger, were in a car together when Gelsinger reached out of the passenger

side window and fired three gunshots at Appellant. Appellant returned fire at

the car, missing both Payne-Casiano and Gelsinger but killing a bystander.

The Commonwealth arrested Appellant and charged him with, inter alia,

aggravated assault of Gelsinger.1         The Commonwealth’s criminal complaint

did not contain a charge for the aggravated assault of Payne-Casiano, who

was seated next to Gelsinger in the vehicle.           Two weeks before trial, the

Commonwealth filed its information, in which it included a charge for the

aggravated assault of Payne-Casiano.             The jury found Appellant guilty of

aggravated assault of Payne-Casiano but failed to reach a verdict as to the

aggravated assault of Gelsinger. On March 24, 2015, the trial court imposed

an aggregate 9 ½ to 19 years of incarceration for aggravated assault and

related offenses. This Court affirmed the judgment of sentence on August 26,

2016.     Appellant did not seek allowance of appeal in the Pennsylvania

Supreme Court. He filed this timely first PCRA petition on March 23, 2017.




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1  Gelsinger and Payne-Casiano stood charges for the homicide of the
bystander victim.

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The PCRA court conducted a hearing on June 1, 2018, and the PCRA court

entered the order on appeal on July 23, 2018. This timely appeal followed.

      Appellant raises three issues for our review:

            I.     Whether Appellant’s Due Process rights were violated
                   and trial counsel was ineffective for proceeding to trial
                   when the Commonwealth amended the criminal
                   information to include count 1 at docket 5089 CR 2014
                   when Appellant was never charged by way of criminal
                   complaint or by grand jury indictment [includes failing
                   to object to the justification jury instruction because
                   it did not mention Joseph Payne-Casiano]?

            II.    Whether trial counsel was ineffective for failing to
                   perfect a direct appeal?

            III.   Whether trial counsel was ineffective for failing to call
                   witnesses that could have provided mitigating
                   testimony to be considered during sentencing?

Appellant’s Brief at 8 (brackets in original).

      “In PCRA proceedings, an appellate court’s scope of review is limited by

the PCRA’s parameters; since most PCRA appeals involve mixed questions of

fact and law, the standard of review is whether the PCRA court’s findings are

supported by the record and free of legal error.” Commonwealth v. Pitts,

981 A.2d 875, 878 (Pa. 2009). In order to establish that trial counsel rendered

constitutionally ineffective assistance, a PCRA petitioner must plead and prove

1) that the underlying claim is of arguable merit; 2) that counsel had no

reasonable strategic basis in support of the disputed action or inaction; and

3) that but for counsel’s error, the outcome of the proceeding would have

been different. Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779



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(Pa. Super. 2015) (en banc).        We presume counsel was effective; the

petitioner bears the burden of proving otherwise. Id.

      Here, Appellant claims counsel was ineffective for failing to object when

the Commonwealth’s information charged him with the aggravated assault of

Payne-Casiano and Gelsinger even though the criminal complaint only

referenced a charge against the latter. That is, the Commonwealth filed a

criminal complaint at docket number 5089 of 2014 charging one count of

aggravated assault against Gelsinger.          On December 24, 2014, the

Commonwealth filed its information at number 5089 alleging two counts of

aggravated assault—one against Gelsinger and another against Payne-

Casiano. Appellant argues the Commonwealth proceeded in error because the

complaint contained no charge for the assault of Payne-Casiano, and because

the December 24, 2014 information—which was the original and not an

amended information—contained a charge not referenced in the complaint.

Appellant further alleges that his counsel was ineffective for failing to object.

      Although we are considering an original information at variance with the

criminal complaint rather than an amended information, both parties analyze

this case under Rule 564 of the Rules of Criminal Procedure:

            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. A violation of Rule 564 does not necessarily merit relief to

the defendant. Commonwealth v. Brown, 727 A.2d 541, 543 (Pa. 1999).

             Since the purpose of the information is to apprise the
       defendant of the charges against him so that he may have a fair
       opportunity to prepare a defense, relief is warranted for a violation
       of Rule 229[2] only when the variance between the original and the
       new charges prejudices appellant by, for example, rendering
       defenses which might have been raised against the original
       charges ineffective with respect to the substituted charges.

Id. (citations omitted). Appellant acknowledges that no relief is due unless

the Commonwealth’s erroneous procedure prejudiced him. Appellant’s Brief

at 23. Appellant claims he was prejudiced because the information added a

felony charge against a different victim two weeks prior to trial. The PCRA

court rejected that argument:

              In the instant matter, [Appellant] had a preliminary hearing
       where the Commonwealth presented evidence that [Appellant]
       fired into a car wherein both Mr. Payne-Casiano and Mr. Gelsinger
       were sitting next to each other. As such, [Appellant’s] defense
       and trial strategy would not change regardless of which of the
       victims was named in the complaint. Furthermore, [Appellant]
       was on notice at his preliminary hearing that the Commonwealth
       was alleging that he fired into a car in which two separate people
       were sitting. The fact that the criminal complaint only named one
       of those people does not mean that [Appellant] suffered unfair
       surprise when the Commonwealth amended the information to
       include the second person that was sitting in the vehicle that
       [Appellant] shot at.

PCRA Court Opinion, 7/17/18, at 4.

       The PCRA court’s analysis is in accord with the governing law. In adding

a charge of aggravated assault of Payne-Casiano, the Commonwealth did not

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2   The Rule has since been renumbered.

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charge Appellant with an offense arising out of a different set of events, nor

was the new charge materially different from the one alleged in the complaint.

The information simply added a count of aggravated assault against a victim

who was sitting in a car alongside Gelsinger when Appellant opened fire into

that car. Appellant does not explain how any defense or defenses he prepared

for the charge of assaulting Gelsinger was rendered ineffective by adding a

count for the assault of Payne-Casiano. Appellant argues that trial counsel’s

inability to prepare a defense for the Payne-Casiano charge is evidenced by

the jury’s guilty verdict on that charge and by counsel’s failure to object to

the trial court’s jury charge on justification, which apparently applied only to

Gelsinger. Appellant’s Brief at 24. The difference in the jury’s verdicts on the

aggravated assault charges—guilty as to Payne-Casiano but not guilty as to

Gelsinger—is a matter of speculation.            We observe, however, that it was

Gelsiger, and not Payne-Casiano—who opened fire on Appellant. In any event,

Appellant offers no concrete basis upon which we can conclude that the

verdicts were the result of counsel’s inability to prepare a defense. Regarding

a potential justification defense to the Payne-Casiano charge, Appellant fails

to develop the issue with citation to pertinent legal authority and facts of

record. We therefore cannot consider it as a basis for granting relief. 3 In

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3 Failure to develop an argument with citation to pertinent facts and legal
authorities results in waiver. Pa.R.A.P. 2119(b), (c); Commonwealth v.
Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014), appeal denied, 95 A.3d



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summary, Appellant’s first claim of ineffective assistance of counsel fails

because Appellant has not established the arguable merit of the underlying

claim.

       Next, Appellant claims counsel was ineffective for failing to file a

Pa.R.A.P. 2119(f)4 statement in support of his challenge to the discretionary

aspects of his appeal. Because Appellant omitted the Rule 2119(f) statement

in his direct appeal brief and the Commonwealth objected, this Court held that

Appellant waived his challenge to the discretionary aspects of his sentence.

Commonwealth v. Baxter, 1752 MDA 2015 (Pa. Super. August 26, 2016),

unpublished memorandum at 4-5.                 This Court also held that Appellant’s

argument would have failed even if preserved. Id. at 5 n.5. Appellant was

challenging the trial court’s imposition of consecutive sentences, an issue that

does not raise a substantial question for discretionary review except in




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275 (Pa. 2014); Commonwealth v. Truong, 36 A.3d 592, 598-99 (Pa.
Super. 2012), appeal denied, 57 A.3d 70 (Pa. 2012).

4   That Rule provides:

       (f) Discretionary aspects of sentence. An appellant who
       challenges the discretionary aspects of a sentence in a criminal
       matter shall set forth in a separate section of the brief a concise
       statement of the reasons relied upon for allowance of appeal with
       respect to the discretionary aspects of a sentence. The statement
       shall immediately precede the argument on the merits with
       respect to the discretionary aspects of the sentence.

Pa.R.A.P. 2119(f).

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extreme circumstances. Id. (citing Commonwealth v. Austin, 66 A.3d 798,

808 (Pa. Super. 2013), appeal denied, 77 A.3d 1258 (Pa. 2013)).

      This Court’s pronouncement on the merits of Appellant’s sentencing

issue was dicta, and therefore not binding on this panel. “Dicta is an ‘opinion

by a court on a question that is directly involved, briefed, and argued by

counsel, and even passed on by the court, but that is not essential to the

decision. Dicta has no precedential value.’” Castellani v. Scranton Times,

L.P., 124 A.3d 1229, 1243 n.11 (Pa. 2015) (quoting Valley Twp. V. City of

Coatesville, 894 A.2d 885, 889 (Pa. Commw. 2006)).

      Nonetheless, we conclude the prior panel’s conclusion was correct. The

Austin Court explained, “the imposition of consecutive, rather than

concurrent, sentences may raise a substantial question in only the most

extreme circumstances, such as where the aggregate sentence is unduly

harsh, considering the nature of the crimes and the length of imprisonment.”

Austin, 66 A.3d at 808 (quoting Commonwealth v. Lamonda, 52 A.3d 365,

372 (Pa. Super. 2012) (en banc)). The question is whether the aggregate

sentence appears to be excessive in light of the criminal conduct at issue. Id.

      Instantly, as noted above, Appellant received an aggregate 9½ to 19

years of incarceration. The sentencing court imposed 6 to 12 years for the

aggravated assault of Payne-Casiano; a concurrent sentence of 1 to 2 years

of incarceration for persons not to possess a firearm (18 Pa.C.S.A. § 6105); a

consecutive sentence of 3 ½ to 7 years for carrying a firearm without a license


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(18 Pa.C.S.A. § 6106); and a concurrent 1 to 2 years of incarceration for the

simple assault of Gelsinger.5

       Appellant limits his argument to counsel’s failure to file a 2119(f)

statement. Appellant’s Brief at 25-28. He does not attempt to explain how

he would have raised a substantial question even if counsel complied with

2119(f).     We agree with our prior panel’s assessment that Appellant’s

aggregate sentence is not extreme in relation to the crimes he committed.

Appellant cannot establish that sentencing counsel was ineffective because

the underlying issue lacks arguable merit.

       Finally, Appellant claims counsel was ineffective for failing to present

mitigating witnesses at sentencing. At the PCRA hearing, Appellant presented

the testimony of two relatives. The PCRA court wrote as follows:

             After hearing the testimony of Patricia Allen and Jamieka
       Ross, we do not believe that their testimony would have been
       beneficial to [Appellant].     Both witnesses are related to
       [Appellant] and stated that they loved him very much, so their
       testimony was biased in favor of [Appellant]. Additionally, neither
       witness offered any testimony that was particularly compelling so
       as to change this court’s mind as to [Appellant’s] sentence.

PCRA Court Opinion, 7/17/18, at 5. Given the PCRA court’s analysis—that the

witnesses were biased and had no significant evidence to offer— it is clear




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5 The charges other than aggravated assault were filed at docket number 913
of 2014. We have consolidated the appeals from docket numbers 913 and
5089 of 2014.

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that counsel’s failure to call these witnesses at sentencing did not prejudice

Appellant. For that reason, his ineffective assistance claim fails.

      Because we have found no merit to any of Appellant’s arguments, we

affirm the order dismissing his petition.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/04/2019




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