J-S78004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 RUDOLPH SMITH                             :
                                           :
                     Appellant             :   No. 16 WDA 2017

              Appeal from the PCRA Order December 5, 2016
    In the Court of Common Pleas of Allegheny County Criminal Division
       at No(s): CP-02-CR-0007049-2014, CP-02-CR-0014207-2014


BEFORE:    OLSON, DUBOW and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                           FILED FEBRUARY 13, 2018

      Appellant, Rudolph Smith, appeals from the December 5, 2016 order

granting in part and denying in part his first petition filed pursuant to the Post-

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

      The factual background of this case is as follows.       On April 8, 2014,

Ivana Hetrick (“Hetrick”) was retrieving something from her car when

Appellant approached her while brandishing a firearm. Appellant grabbed her

purse, wrestled it away, and then fled the scene.

      On the evening of April 15, 2014, Krystal Krieger (“Krieger”) and David

Wilkerson (“Wilkerson”) were preparing to enter Krieger’s residence when

Appellant approached them. Appellant fired a single gunshot into the ground.

Krieger and Wilkerson then dropped all of their belongings.             Appellant




* Retired Senior Judge assigned to the Superior Court
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instructed Wilkerson to run and Krieger to enter her residence. After gathering

their belongings, Appellant fled the scene.

        The procedural history of this case is as follows.    On May 28, 2014,

Appellant was charged via criminal complaint with robbery,1 simple assault,2

recklessly endangering another person,3 and theft by unlawful taking4 in

relation to the Hetrick robbery.      After a preliminary hearing, the issuing

authority held Appellant for court on all four counts. On August 12, 2014, the

Commonwealth charged Appellant via criminal information with the same four

offenses; however, the robbery charge was changed from a violation of 18

Pa.C.S.A. § 3701(a)(1)(v) (physically take or remove property from victim by

force however slight) to a violation of section 3701(a)(1)(i) (inflicts serious

bodily injury upon another) or (a)(1)(ii) (threatens another or intentionally

places another in fear of immediate serious bodily injury).

        On May 28, 2014, Appellant was charged via criminal complaint with

robbery,5 recklessly endangering another person, and making terroristic

threats6 in relation to the Krieger/Wilkerson robbery.       After a preliminary


1   18 Pa.C.S.A. § 3701(a)(1)(v).

2   18 Pa.C.S.A. § 2701(a)(3).

3   18 Pa.C.S.A. § 2705.

4   18 Pa.C.S.A. § 3921(a).

5   18 Pa.C.S.A. § 3701(a)(1)(iii).

6   18 Pa.C.S.A. § 2706.


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hearing, the issuing authority held Appellant for court on all three counts. On

August 12, 2014, the Commonwealth charged Appellant via criminal

information with two counts each of the three offenses charged in the criminal

complaint;   however,    the   robbery   charges   were   filed   under   section

3701(a)(1)(i) or (a)(1)(ii) instead of section 3701(a)(1)(iii) (commits or

threatens immediately to commit any felony of the first or second degree).

      On May 20, 2015, Appellant pleaded guilty to two counts of robbery –

one count in each case. Pursuant to the terms of a negotiated plea agreement,

the trial court sentenced Appellant to an aggregate term of four to twelve

years’ imprisonment.     The judgment of sentence showed that Appellant

pleaded guilty to, and was sentenced for, violating section 3701(a)(1)(i).

Appellant filed no direct appeal.

      On March 16, 2016, Appellant filed a pro se PCRA petition. Counsel was

appointed and twice amended the petition. On December 5, 2016, the PCRA

court granted in part and denied in part Appellant’s PCRA petition. The PCRA

court held that Appellant pleaded guilty to violating section 3701(a)(1)(ii) in

both cases. Thus, the judgment of sentence that listed section 3701(a)(1)(i)

was incorrect and was corrected to reflect that Appellant pleaded guilty to

violating section 3701(a)(1)(ii). The PCRA court denied relief on Appellant’s

claim that his plea counsel rendered ineffective assistance by advising him to




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plead guilty to offenses not substantially the same as, or cognate to, the

offenses charged in the criminal complaints. This timely appeal followed.7

      Appellant presents one issue for our review:

      [Did plea counsel render ineffective assistance by advising
      Appellant to plead guilty to offenses that were not substantially
      the same as, or cognate to, the offenses charged in the criminal
      complaints?]

Appellant’s Brief at 4.

      “We review the denial of a PCRA [p]etition to determine whether the

record supports the PCRA court’s findings and whether its [o]rder is otherwise

free of legal error.”     Commonwealth v. McGarry, 172 A.3d 60, 65 (Pa.

Super. 2017) (citation omitted).      Appellant’s lone issue challenges the

effectiveness of his plea counsel.

      “[T]he Sixth Amendment to the United States Constitution and Article I,

[Section] 9 of the Pennsylvania Constitution, [entitle a defendant] to effective

counsel. This right is violated where counsel’s performance so undermined

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

innocence could have taken place.” Commonwealth v. Simpson, 112 A.3d

1194, 1197 (Pa. 2015) (internal quotation marks and citation omitted).       “In

the context of a plea, a claim of ineffectiveness may provide relief only if the




7 On January 5, 2017, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On January 25, 2017, Appellant filed a concise statement.
On June 23, 2017, the PCRA court issued its Rule 1925(a) opinion. Appellant
included his lone issue in his concise statement.


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alleged    ineffectiveness   caused   an   involuntary    or    unknowing     plea.”

Commonwealth v. Orlando, 156 A.3d 1274, 1281 (Pa. Super. 2017)

(citation omitted).

        “Counsel is presumed to have been effective.”          Commonwealth v.

Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017).                 To prevail on an

ineffective assistance of counsel claim, a “petitioner must plead and prove

that: (1) the underlying legal claim is of arguable merit; (2) counsel’s action

or inaction lacked any objectively reasonable basis designed to effectuate his

[or her] client’s interest; and (3) prejudice, to the effect that there was a

reasonable probability of a different outcome if not for counsel’s error.”

Commonwealth v. Grove, 170 A.3d 1127, 1138 (Pa. Super. 2017) (citation

omitted). “Failure to satisfy any prong of the test will result in rejection of the

[petitioner’s] ineffective assistance of counsel claim.”       Commonwealth v.

Smith, 167 A.3d 782, 787-788 (Pa. Super. 2017) (citation omitted).

        To understand Appellant’s argument, it is necessary to review the

contours of the robbery section of the Crimes Code. Section 3701 provides

that:

        (1) A person is guilty of robbery if, in the course of committing a
        theft, he:

                                      ***

        (ii) threatens another with or intentionally puts him in fear of
        immediate serious bodily injury;

        (iii) commits or threatens immediately to commit any felony of
        the first or second degree;


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                                      ***

      (v) physically takes or removes property from the person of
      another by force however slight[.]

18 Pa.C.S.A. § 3701(a).

      Appellant argues that he was prejudiced by pleading guilty to two counts

of robbery under section 3701(a)(1)(ii) instead of one count under section

3701(a)(1)(iii) and a second count under section 3701(a)(1)(v). Appellant

explains that while both sections 3701(a)(1)(ii) and (a)(1)(iii) constitute first-

degree felonies, section 3701(a)(1)(ii) carries an offense gravity score

(“OGS”) of ten while section 3701(a)(1)(iii) carries an OGS of nine.         204

Pa.Code § 303.15.      Appellant also points out that section 3701(a)(1)(v)

constitutes a third-degree felony, unlike the first-degree felony classification

that attaches to section 3701(a)(1)(ii). 18 Pa.C.S.A. § 3701(b)(1).

      Next, we review the rules governing the filing of a criminal information

after a defendant has been held for court by the issuing authority.

Pennsylvania Rule of Criminal Procedure 560 provides that:

      (A) After the defendant has been held for court following a
      preliminary hearing or an indictment, the attorney for the
      Commonwealth shall proceed by preparing an information and
      filing it with the court of common pleas.

      (B) The information shall be signed by the attorney for the
      Commonwealth and shall be valid and sufficient in law if it
      contains:

                                      ***




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      (5) a plain and concise statement of the essential elements of the
      offense substantially the same as or cognate to the offense alleged
      in the complaint.

Pa.R.Crim.P. 560. Thus, “[a] defendant cannot be required to answer a charge

different from or unrelated to the one for which he was arrested and held to

bail.” Commonwealth v. Taylor, 471 A.2d 1228, 1232 (Pa. Super. 1984).

Even so, Rule 560, “does not require that the crime charged in the

[i]nformation be identical to that charged in the [c]omplaint as long as the

charge is [substantially the same as, or] cognate to the one laid in the

[c]omplaint.” Commonwealth v. Jacobs, 640 A.2d 1326, 1329 (Pa. Super.

1994), appeal denied, 668 A.2d 1125 (Pa. 1995) (citations omitted).

      We focus our attention on the first prong of the ineffectiveness inquiry,

i.e., whether Appellant’s claim is of arguable merit. In order to decide whether

Appellant’s underlying claim is of arguable merit, we must determine whether

robbery under section 3701(a)(1)(ii) is substantially the same as, or cognate

to, robbery under sections 3701(a)(1)(iii) and (a)(1)(v). When making this

determination, “we must analyze the essential elements of each of the crimes

and determine whether they share several elements and are of the same class

or category.” Commonwealth v. Weigle, 949 A.2d 899, 905 (Pa. Super.

2008), abrogated on other grounds, Commonwealth v. Dantzler, 135 A.3d

1109 (Pa. Super. 2016) (en banc).

      Appellant argues that section 3701(a)(1)(ii) is not substantially the

same as, or cognate to, sections 3701(a)(1)(iii) and (a)(1)(v) because “each



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subpart ha[s] different elements and require[s] a different level of proof of

facts.” Appellant’s Brief at 17. Appellant is correct that the three offenses

have somewhat different elements and require the Commonwealth to prove

different facts. Section 3701(a)(1)(ii) requires the Commonwealth prove that

the defendant threatened immediate serious bodily injury, or intentionally

placed the victim in fear of immediate serious bodily injury, during a theft.

Section   3701(a)(1)(iii),   on   the   other   hand,   only   requires   that   the

Commonwealth prove the defendant committed, or threatened to commit, a

first- or second-degree felony during a theft. Section 3701(a)(1)(v) requires

the Commonwealth prove the defendant took property with physical force,

however slight, during a theft.         This fact, however, is inapposite when

determining whether the offenses are substantially the same as, or cognate

to, each other.

      This Court’s driving under the influence of alcohol (“DUI”) jurisprudence

supports our conclusion that the offenses at issue are sufficiently similar for

purposes of Rule 560(B)(5). In Commonwealth v. Sinclair, 897 A.2d 1218

(Pa. Super. 2006), this Court reaffirmed its prior holding that the

Commonwealth may charge a violation of 75 Pa.C.S.A. §§ 3802(a)(1), (b), or

(c) in a criminal information as long as one of those offenses was charged in

the criminal complaint. See id. at 1222. This Court relied on Jacobs in which,

like this case, the crime charged in the criminal information was more serious

than that charged in the criminal complaint. The defendant was charged with



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DUI-general impairment (an ungraded misdemeanor) in the criminal

complaint and DUI-higher rate (a first-degree misdemeanor) in the criminal

information. See Jacobs, 640 A.2d at 1329-1330.

      As Sinclair and Jacobs suggest, our inquiry does not end at the fact

that the criminal informations charged more serious offenses which required

the Commonwealth to prove different facts. Instead, we must examine the

elements that the Commonwealth must prove under sections 3701(a)(1)(iii)

and (a)(1)(v) and determine if they “are of the same class or category” of the

elements the Commonwealth must prove under section 3701(a)(1)(ii).

Weigle, 949 A.2d at 905.

      Appellant’s reliance on Commonwealth v. Neal, 418 A.2d 378 (Pa.

Super 1980)8 is also misplaced.      In Neal, this Court held that sections

3701(a)(1)(ii) and (a)(1)(iii) are not “interchangeable.” Id. at 380. In Neal,

however, the issue was not whether the two crimes are substantially the

same. Instead, the issue in Neal was whether the one offense was a lesser

included offense. Specifically, the trial court realized after the close of the


8 It is unclear whether Neal was an opinion announcing the judgment of the
court for a three-judge panel or a majority opinion for an en banc panel.
Westlaw, Lexis, the print edition of the Atlantic Second Reporter, and the print
edition of the Pennsylvania Superior Court Reporter all omit information
regarding the panel composition. Moreover, this Court’s Reporter was unable
to locate a copy of the slip opinion in the case or other information that would
prove the panel composition. Our extensive research indicates that Neal was
likely an opinion announcing the judgment of the court for a three-judge panel
and, therefore, not binding precedent.             As we cannot make this
pronouncement with certainty, we analyze Neal as though it were binding
precedent.


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Commonwealth’s case that it had only produced evidence supporting a

conviction under section 3701(a)(1)(ii) while the information charged a

violation of section 3701(a)(1)(iii). Therefore, the trial court charged the jury

only on section 3701(a)(1)(ii). Id. at 379. As Appellant correctly argues in

this case, section 3701(a)(1)(ii) is not a lesser included offense of section

3701(a)(1)(iii) because all the elements of section 3701(a)(1)(ii) are not

included within the definition of section 3701(a)(1)(iii). Thus, this Court held

that the trial court erred in instructing the jury on that section. See id. at

379-380.    Hence, this Court did not address whether the offenses are

substantially the same as that term is used in Rule 560. Rule 560 does not

set as high a bar as the concept of lesser included offenses. Offenses can be

substantially the same under Rule 560 if they are in the same class or

category. There is no need to show identity of elements.

      We conclude that offenses defined at sections 3701(a)(1)(iii) and

(a)(1)(v) are of the same class or category as set forth in section

3701(a)(1)(ii).   Under all three subparts of the robbery statute, the

Commonwealth must prove that a theft occurred. The second element of each

of the three robbery offenses discourages thieves from engaging in conduct

that would risk injury to the victim or threaten to risk injury to the victim. As

noted above, section 3701(a)(1)(ii) prohibits a thief from threatening the

victim with serious bodily injury. Section 3701(a)(1)(iii) prohibits a thief from

engaging in a first- or second-degree felony during the theft. By their nature,



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first- and second-degree felonies risk injury to the victim of the theft or

threaten to injure the victim of the theft.         Finally, section 3701(a)(1)(v)

prohibits a thief from using force during a theft. The use of force ipso facto

risks injury to the victim. Thus, we conclude that sections 3701(a)(1)(iii) and

3701(a)(1)(v)   are     substantially   the      same   as   section   3701(a)(1)(ii).

Therefore, Appellant’s underlying claim lacks arguable merit and the trial court

properly denied relief on his ineffective assistance of counsel claim.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/13/2018




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