J-S51041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    RAHEEM COLLINS                             :
                                               :
                      Appellant                :   No. 2522 EDA 2016

                    Appeal from the PCRA Order June 3, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0511331-2006


BEFORE:      BOWES, SHOGAN, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                      FILED SEPTEMBER 08, 2017

        Appellant, Raheem Collins, appeals from the order entered in the Court

of Common Pleas of Philadelphia County dismissing his first petition filed

under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. We affirm,

but we remand this matter to the PCRA court with instructions to correct the

written judgment of sentence to indicate that Appellant was, in fact,

convicted of the felony offense at 18 Pa.C.S.A. § 6106, Firearms Not to be

Carried Without a License, and not the misdemeanor offense at 18 Pa.C.S.A.

§ 6108, Carrying Firearms on Public Street/Property in Philadelphia.

        This Court has previously recited the pertinent factual history of the

case as follows:
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     In the early evening of January 28, 2006, a Pontiac Bonneville
     driven by Benjamin Wright and owned by his nephew was in the
     2900 block of Westmont Street in North Philadelphia. Benjamin
     Wright and his wife, Lahronda Wright, had taken their ten-year-
     old daughter, Aneena Wright, their six-year-old grandson, Jabar
     Wright, two young granddaughters and two young cousins to the
     movies that afternoon. They dropped off the two young cousins
     and were returning to the Westmont Street residence of
     Lahronda Wright’s mother to drop off the two young
     granddaughters.

     Benjamin Wright parked the car in front of the home of Lahronda
     Wright’s mother. Benjamin Wright remained in the car with
     Jabar while Lahronda Wright accompanied by Aneena took the
     two young granddaughters into the house.           At that time,
     Lahronda Wright observed Co-Defendant Chriss Powell in the
     vicinity. After a few moments, Lahronda Wright and Aneena
     returned to the car.     At this point, Powell was walking or
     “creeping,” as it was described, up the block wearing a “hoodie.”
     Appellant went by the Pontiac Bonneville where Benjamin
     Wright, Lahronda Wright, Aneena, and Jabar were seated and
     looked into the car. Appellant began to jog and then ran into the
     residence at 2916 Westmont Street, described as a “hangout
     house.”

     At this time, there was a car on Westmont Street positioned in
     front of Benjamin Wright’s Pontiac Bonneville. The driver of that
     car appeared to be talking on a cell phone. The driver seemed in
     some measure intentionally to be delaying the passage of the
     Pontiac Bonneville. That car ultimately pulled off and the Pontiac
     Bonneville containing Benjamin Wright, Lahronda Wright,
     Aneena, and Jabar proceeded to the intersection of 29 th and
     Westmont.

     Appellant Raheem Collins, Co-Defendant Donte Rollins, Co-
     Defendant Chriss Powell, and Co-Defendant Kevin Norris were
     standing on the corner. Lahronda Wright considered the men
     friends. She had known Raheem Collins for over eighteen years,
     Donte Rollins for over thirteen years, Chriss Powell for over five
     years, and Kevin Norris for five years. She also knew they
     “hung out” together. There was no one else on the street.
     Benjamin Wright had on ongoing dispute with all four men
     stemming from threats or attempts made on the life of Benjamin
     Wright’s nephew and on Benjamin Wright himself. There had

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     been a confrontation between Benjamin Wright and all four men
     approximately one month before and difficulties continued even
     after that confrontation.       The confrontation consisted of
     Benjamin Wright speaking directly to all four men about the
     problem. Benjamin Wright told all four men that he was not
     going to allow them to kill his nephew or do anything to him or
     his family. Additional dispute stemmed from the fact that the
     residents of the 32nd Street neighborhood where Benjamin
     Wright resided had some history of differences with residents of
     the 29th Street or 30th Street neighborhood where these four
     men resided.

     Suddenly, shots were fired at the Pontiac Bonneville. The shots
     came from the direction where Appellant, Rollins, Powell, and
     Norris were standing. Appellant was seen reaching into his
     pants as if to pull something out as the shots were fired.

     Lahronda Wright screamed to those in the car to get down.
     Benjamin Wright and Aneena Wright both testified that she also
     screamed to those in the car that “Donte and Mook” were
     shooting.  “Donte” referred to Rollins.   “Mook” referred to
     Appellant. As the shots were ringing out the four men never
     ducked for cover and never ran for cover. Because Jabar was
     shot, Benjamin Wright sped off to nearby Temple University
     Hospital.

     At trial, Lahronda Wright testified that she did not see a gun and
     did not actually see anyone shooting. However, at the hospital,
     when Lahronda Wright met with police, [she] exclaimed to
     Officer Quianna Wharton that Donte and Raheem shot her
     grandson. Captain Anthony Washington testified that he was at
     the hospital on the evening in question and that he “obtained
     information in reference to what happened.” N.T. 11/21/07 at 7.
     Captain Washington stated that “[t]he information I received
     consisted of a male by the name of Donte, and also another
     male, which was his cousin, identified or named Raheem, along
     with two other males had shot at the vehicle several times while
     they were in the 2900 block of Westmont Street.” Id. Also at
     the hospital, Lahronda Wright told Officer Christine McGinley that
     Donte and Raheem shot her grandson. It is the case that
     Lahronda Wright testified at trial that she did not see a gun and
     did not actually see anyone shooting.




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     Jabar was shot once in the back of the neck. Injuries from the
     wound have left him paralyzed from the neck down. No one else
     was injured in the shooting.

     Cartridge casings found at the scene evidenced that at least
     eight shots were fired from at least two guns; there was one 9
     millimeter gun for certain, one .380 caliber gun for certain, and
     the physical evidence yielded the possibility that a third gun,
     also a .380 caliber, was involved. No weapon was recovered.

     Appellant was tried jointly by a jury with Rollins, Powell, and
     Norris. The jury convicted Appellant of attempted homicide as to
     Jabar Wright, four counts of aggravated assault, conspiracy, and
     firearms not to be carried without a license. Rollins and Powell
     were likewise convicted. Norris was completely acquitted.

     Appellant was sentenced to consecutive statutory maximum
     sentences for each offense as follows: 20 to 40 years on the
     attempted homicide; 10 to 20 years for each of three aggravated
     assaults (the aggravated assault for Jabar Wright was
     determined to merge with the attempted homicide); 10 to 20
     years for conspiracy; and 2 ½ to 5 years for the firearms
     offense. The aggregate sentence was 62 ½ to 125 years.

     On July 1, 2008, new counsel was appointed for appeal. On July
     3, 2008, more than 10 days after imposition of sentence, new
     counsel filed post-sentence motions raising a weight of the
     evidence claim and a discretionary aspects of sentencing claim.
     The post-sentence motions were immediately denied that same
     day.

     Direct appeal was taken by notice of appeal filed July 23, 2008.
     [Appellant raised issues asserting prosecutorial misconduct, a
     weight of the evidence claim, and a discretionary aspects of
     sentencing claim.]

Commonwealth       v.   Collins,   No.   2240   EDA    2008,    unpublished

memorandum at 1-6 (Pa.Super. filed October 18, 2010).

     By this Court’s order and memorandum decision of October 18, 2010,

we affirmed judgment of sentence. Appellant filed no petition for allowance



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of appeal (PAA), but he secured reinstatement of his right to file a PAA nunc

pro tunc through a PCRA petition.        On August 26, 2014, however, the

Pennsylvania Supreme Court denied allocatur.

      On September 9, 2014, Appellant filed a counseled PCRA petition. On

June 29, 2015, he attempted, pro se, to add several issues to his counseled

petition. On November 2, 2015, the court conducted a hearing pursuant to

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) and permitted

Appellant to proceed pro se as he desired. Subsequently, Appellant filed a

pro se amended PCRA petition claiming that trial counsel ineffectively failed

to object to the lower court’s instructions to a jury that first indicated it was

deadlocked after one day’s deliberations but had since resumed discussing

the case. The amended petition also asserted that the court lacked subject

matter jurisdiction for supposed defects in the bills of information and that

he was wrongly convicted and sentenced on an uncharged firearms offense.

      On May 6, 2016, the PCRA issued notice of its intent to dismiss

Appellant’s claims under Pa.R.Crim.P. 907.      Appellant filed a response on

May 26, 2016, but the PCRA court dismissed his petition on June 3, 2016.

This timely appeal followed.

      Appellant raises the following questions for our review:

      1. WHETHER THE PCRA COURT ERRED WHEN THE COURT
         DETERMINED THAT DEFENSE COUNSEL DID NOT
         PROVIDE DEFICIENT PERFORMANCE FOR FAILING TO
         REGISTER AN OBJECTION TO THE TRIAL COURT’S
         FAILURE TO COMPLY WITH RULE 7.05 (MANDATORY
         INSTRUCTIONS TO THE JURORS) WHEREAS THE


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         INSTRUCTIONS CHARGED WAS [SIC] DEFICIENT AND
         VIOLATED THE DEFENDANT’S RIGHTS TO DUE PROCESS
         OF LAW; AND THAT THIS CLAIM IS MERITLESS?

      2. WHETHER THE PCRA COURT ERRED WHEN THE COURT
         DETERMINED THAT DEFENSE COUNSEL DID NOT FAIL
         TO MOTION THE COURT TO QUASH THE INFORMATION
         WHEREAS THREE OF THE CHARGING BILLS OF
         INFORMATION     FAILED  TO    DESCEND  TO   THE
         PARTICULARS[;] FAILED TO STATE THE SPECIES;
         FAILED TO IDENTIFY A VICTIM; AND WAS NOT SIGNED
         BY THE COMMONWEALTH; THE CHARGING BILLS OF
         INFORMATION WAS DEFECTIVE AND VAGUE; DEFENSE
         COUNSEL FAILED TO MOTION THE COURT TO QUASH
         THE BILLS OF INFORMATION; AND WHETHER THE PCRA
         COURT ERRED IN DETERMINING THAT THIS ISSUE IS
         MERITLESS?


      3. WHETHER THE PCRA COURT ERRED WHEN THE COURT
         DETERMINED THAT DEFENSE COUNSEL DID NOT
         PROVIDE DEFICIENT PERFORMANCE WHEREAS THE
         CHARGING BILL OF INFORMATION DID NOT CHARGE
         AN OFFENSE OF FIREARMS NOT TO BE CARRIED
         WITHOUT A LICENSE; THE COURT TRIED, CONVICTED,
         AND SENTENCED THE DEFENDANT FOR AN OFFENSE
         THAT HE WAS NOT CHARGED WITH ; AND DEFENSE
         COUNSEL PROVIDED DEFICIENT PERFORMANCE FOR
         ALLOWING THE DEFENDANT TO BE TRIED AND
         CONVICTED FOR AN OFFENSE THAT THE CHARGING
         BILL OF INFORMATION DID NOT CONTAIN WHICH
         VIOLATED THE DEFENDANT’S RIGHTS TO DUE PROCESS
         OF LAW; AND THAT THIS CLAIM IS MERITLESS?

Appellant’s brief at 3.

      Initially, we outline our standard of review of a PCRA order.

      Under the applicable standard of review, we must determine
      whether the ruling of the PCRA court is supported by the record
      and is free of legal error. Commonwealth v. Marshall, 596
      Pa. 587, 947 A.2d 714, 719 (2008). The PCRA court's credibility
      determinations, when supported by the record, are binding on
      this Court. Commonwealth v. Johnson, 600 Pa. 329, 966


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      A.2d 523, 532, 539 (2009). However, this Court applies a de
      novo standard of review to the PCRA court's legal conclusions.
      Commonwealth v. Rios, 591 Pa. 583, 920 A.2d 790, 810
      (2007).

Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011).                       Accord

Commonwealth v. Bardo, 105 A.3d 678, 685 (Pa. 2014) (“If supported by

the record, the PCRA court's credibility determinations and factual findings

are binding on this Court; however, we apply a de novo standard of review

to the PCRA court's legal conclusions.”).

      Appellant’s averments all relate to his insistence that he received

ineffective assistance from trial counsel. In this respect, we observe:

      Counsel is presumed effective, and in order to overcome that
      presumption a PCRA petitioner must plead and prove that: (1)
      the legal claim underlying the ineffectiveness claim has arguable
      merit; (2) counsel's action or inaction lacked any reasonable
      basis designed to effectuate petitioner's interest; and (3)
      counsel's action or inaction resulted in prejudice to petitioner.
      With regard to reasonable basis, the PCRA court does not
      question whether there were other more logical courses of action
      which counsel could have pursued; rather, the court must
      examine whether counsel's decisions had any reasonable basis.
      ... To demonstrate prejudice, a petitioner must show that there
      is a reasonable probability that, but for counsel's actions or
      inactions, the result of the proceeding would have been different.
      Failure to establish any prong of [this test, which is known as
      the] Strickland/Pierce test will defeat an ineffectiveness claim.

Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015) (citations,

quotation marks and footnote omitted). Failure to meet any prong of this

test will result in the claim failing.   Commonwealth v. Stewart, 84 A.3d

701 (Pa.Super. 2013).




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       In Appellant’s first issue, he contends that trial counsel ineffectively

failed to object when the trial court decided not to give a Spencer1 charge

to the jury after the foreperson had indicated after the first day of

deliberations that it was deadlocked.            The record does not support

Appellant’s claim.

       Specifically, the jury began deliberations on Friday, November 30,

2007 at 12:43 p.m. N.T., 11/30/07, at 60-61. On the following Monday,

the jury delivered a note to the trial court indicating it was deadlocked after

one vote at 10:30 a.m. and two more votes at 1:15 p.m. N.T., 12/3/07, at

18-19. The court convened a meeting with counsel to inform them of the

jury’s message and the court’s intention to give a Spencer charge on

Tuesday morning before the jury resumes deliberations.        Defense counsel

agreed with the court’s plan, stating “I ask for a standard Spencer charge

tomorrow morning.” N.T. at 19.

       Next morning, the court brought the jury into the courtroom to discuss

the status of its deliberations. The following exchange took place:

       COURT:      I received a note yesterday, dated 12/3/07, I will
       read it. It says, “We are deadlocked,” exclamation point, one
       vote at 10:30 A.M. second vote at 1:15 P.M. still no decision,
____________________________________________


1
   A Spencer charge, guided by our Supreme Court's decision in
Commonwealth v. Spencer, 275 A.2d 299 (Pa. 1971), instructs a
deadlocked jury “to continue to deliberate, with an open mind to
reconsideration of views, without giving up firmly held convictions.”
Commonwealth v. Greer, 951 A.2d 346, 361 (Pa. 2008).




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      exclamation point, Joan Anderson Ball. Ms. Ball, you are the
      foreperson, did I read the note correctly?

      FOREPERSON:        Yes. That was of yesterday.

      COURT:       Are you telling me you are no longer in this mode?

      FOREPERSON:        We’re still discussing it.

      COURT:       You are still discussing the case?

      FOREPERSON:        Yes.

      COURT:     If you are still discussing the case, I release you.
      You go back and continue to discuss the case.

N.T., 12/4/07, at 6.

      After the jury exited, the court explained that it was prepared to read

a Spencer charge to the jury until the foreperson said it no longer

considered itself deadlocked and had resumed deliberations. N.T. at 6. The

court noted that, in its experience, where a jury moves forward from a

claimed state of deadlock and resumes deliberations, a Spencer charge

“may plant in their mind their ability not to reach a verdict.” N.T. at 7. The

jury returned a verdict of guilty later that day.

      Whether to give a Spencer charge is a matter for the exercise of

discretion by the trial court, which will not be reversed absent an abuse of

that discretion.   Commonwealth v. Porter, 446 A.2d 605, 608 (1982)

(citing Commonwealth v. Santiago, 424 A.2d 870 (Pa. 1981). Here, we

discern no arguable merit to Appellant’s “failure to object” ineffectiveness

claim where there is no evidence that the court’s decision to refrain from

issuing a Spencer charge resulted in a coerced verdict.


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      As noted above, a Spencer charge applies when a jury is deadlocked.

Greer, supra.      See also Porter, supra (recognizing the Spencer

instruction serves “as a “guideline for courts to follow when a jury is

deadlocked.”). While the jury indicated it was deadlocked after just one day

of deliberations, it had unilaterally resumed deliberations by the following

morning and denied being deadlocked when the trial court asked the

foreperson for an update. Both the relatively short time that the jury had

deliberated up to that point and the foreperson’s report that the jury was,

once again, discussing the case, therefore, supported the court’s election to

allow the jury to continue in its deliberations without a Spencer instruction.

Accordingly, counsel cannot be deemed ineffective for failing to renew his

earlier request for a Spencer charge when the jury had announced it was no

longer deadlocked but was, instead, freely discussing the case again.

      In Appellant’s second claim, Appellant asserts that trial counsel

ineffectively failed to seek quashal of the bills of information because they

failed to state the specifics of the crime, identify a victim, or bear a

signature by a Commonwealth agent.           The Commonwealth responds that

Appellant has waived this claim by failing to present it first for the PCRA

court’s review.   The only challenge Appellant’s amended PCRA petition

levelled against his charging documents was one to the trial court’s subject

matter jurisdiction, but such a challenge never included a related ineffective

assistance of counsel claim.




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      “It is well-settled that issues not raised in a PCRA petition cannot be

considered on appeal.”    Commonwealth v. Ousley, 21 A.3d 1238, 1242

(Pa.Super. 2011) (quotation marks and citations omitted)); 42 Pa.C.S.A. §

9544(b). See also Pa.R.A.P. 302(a) (“Issues not raised in the lower court

are waived and cannot be raised for the first time on appeal.” Our review of

the record substantiates the Commonwealth’s waiver position.          Therefore,

we deem waived Appellant’s allegation of trial counsel’s ineffectiveness.

      In Appellant’s final issue, he argues that trial counsel ineffectively

failed to object when the trial court amended the criminal information on the

day of trial to reinstate the charge of Firearms Not to be Carried Without a

License, 18 Pa.C.S. § 6106, after the charge was, apparently, inadvertently

discharged during arraignment.          As part of this argument, however,

Appellant segues into an assertion that the PCRA court rejected his claim

upon the erroneous conclusion that Appellant was never actually charged

and convicted under Section 6106 but was, instead, charged, convicted, and

sentenced   under   18   Pa.C.S.   §    6108,   Carrying   Firearms   on   Public

Street/Property in Philadelphia.

      To this latter argument, the Commonwealth agrees that the PCRA

court misconstrued the record, as Appellant was clearly charged with and

convicted of committing a felony VUFA offense at Section 6106 but, as the

result of a clerical error, was inadvertently sentenced under the guidelines

applicable to a misdemeanor VUFA violation at Section 6108. As such, the

Commonwealth posits that Appellant cannot prove he was prejudiced by

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receiving a lesser sentence than he would have received under the felony

conviction under Section 6106.       As for the clerical error appearing on

Appellant’s sentencing order, the Commonwealth proposes that this Court

modify the sentencing order, without disturbing the existing sentence,

simply to reflect the correct firearms conviction.

      A defendant is due relief when the trial court exercises its discretionary

power to allow amendment of the information only if the amendment

prejudices the defendant.    Commonwealth v. Veon, 109 A.3d 754, 768

(Pa.Super. 2015).     Factors for a court to consider in determining the

existence of prejudice include:

         (1)whether the amendment changes the factual scenario
         supporting the charges; (2) whether the amendment adds
         new facts previously unknown to the defendant; (3) whether
         the entire factual scenario was developed during a preliminary
         hearing; (4) whether the description of the charges changed
         with the amendment; (5) whether a change in defense
         strategy was necessitated by the amendment; and (6)
         whether the timing of the Commonwealth’s request for
         amendment allowed for ample notice and preparation.

Id.

      Here, Appellant provides no argument that the amendment prejudiced

him. Instead, he simply recounts the sequence of events that led to the trial

court amending the bill of information to include the Section 6106 VUFA

violation that originally appeared on Appellant’s criminal complaint filed on

January 29, 2006. Appellant then cites to the trial transcript where the trial

court both confirmed that Appellant had been charged under Section 6106



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and instructed the jury on the elements necessary to prove the offense, and

where the jury convicted him of violating Section 6106.       See Appellant’s

brief at 11-13.

      Nowhere in Appellant’s brief does he explain on what grounds trial

counsel should have objected, nor does our review of the record in light of

the six factors to be considered when confronted with an amended bill of

information reveal any prejudice here. The record shows that the criminal

complaint against Appellant charged him with a Section 6106 offense arising

out of the same factual scenario that was central to his criminal trial, and

Appellant does not allege the amendment caused unfair surprise or

necessitated a change in trial strategy. Therefore, having failed to establish

prejudice    from   the   amendment,    Appellant   cannot   prevail   on   his

ineffectiveness claim herein. See Commonwealth v. Witmayer, 144 A.3d

939 (Pa.Super. 2016) (finding no prejudice from amendment of information

on day of trial where amendment involved no new facts and had no effect on

the prepared defense).

      Finally, as noted above, the Commonwealth asks this Court to modify

what it deems a clerical error with Appellant’s sentencing order to reflect the

jury’s verdict of guilty on the VUFA felony violation at Section 6106, without

altering the existing firearms sentence.     We agree that correction of the

written judgment is appropriate where a clerical error has created a

discrepancy between it and the offense for which Appellant was, in fact,

convicted.

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      The power to modify a judgment of sentence to amend records, to

correct mistakes of court officers or counsel's inadvertencies is inherent in

our court system, even after the thirty-day time limit set forth in 42

Pa.C.S.A. § 5505, has expired. See Commonwealth v. Young, 695 A.2d

414, 420 (Pa.Super. 1997) (correcting clerical error which had permitted

judgment of sentence to indicate that defendant was sentenced on incorrect

subsection of indecent assault statute). Thus, we remand this matter to the

PCRA court so that it may rectify the clerical error which appears on the face

of Appellant’s written judgment of sentence by setting forth the correct

section of the VUFA statute, Section 6106, in place of the erroneous entry

for Section 6108.      Cf., Commonwealth v. Simmons, 336 A.2d 624

(Pa.Super. 1975) (where judgment was incorrectly entered for receiving

stolen   property   and   unlawful   taking,   Superior   Court   could   correct

judgments).

      Order is AFFIRMED. Case remanded to the PCRA court for proceedings

consistent with this decision. Jurisdiction is relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/8/2017




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