J-S10015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
            v.                           :
                                         :
                                         :
RONALD EDWARD ROSS                       :
                                         :
                     Appellant           :   No. 2156 EDA 2017

                 Appeal from the PCRA Order June 1, 2017
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0003194-2014


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

MEMORANDUM BY BOWES, J.:                             FILED JUNE 18, 2018

     Ronald Edward Ross appeals pro se from the June 1, 2017 order

dismissing his PCRA petition without an evidentiary hearing. After thorough

review, we affirm.

     We glean the facts giving rise to the charges from the preliminary

hearing transcript.     Sergeant Gary Smith of the Aston Township Police

Department located in Delaware County, Pennsylvania, conducts online

undercover investigations with the Internet Crimes Against Children Task

Force (“ICAC”).      In that capacity, he goes to various internet sites and

answers ads of individuals looking for younger males. On March 3, 2014, he

responded to such a Craigslist post, posing as a fifteen-year-old male named

Sam. The exchange turned sexual when the solicitor offered to perform oral

sex, and requested that Sam perform oral sex on him in return.          The

solicitor forwarded photographs of his face to Sam, whom the Sergeant
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identified as Appellant. He then sent sexually explicit photographs of himself

and asked Sam to reciprocate. After further discussion, Appellant arranged

to meet in the parking lot of an ice skating rink on April 7, 2014.

      The ICAC task force was deployed to the parking lot at the pre-

arranged time.     Appellant texted Sam that he was in the area and

approaching.     Another member of the task force was directly behind

Appellant’s vehicle as he pulled into a parking lot facing the ice skating rink

parking lot. Sergeant Smith recognized Appellant from his photograph and

pulled his vehicle next to Appellant’s vehicle.    The officers took Appellant

into custody and transported him to the Aston Township Police station. After

Miranda warnings were issued, Appellant voluntarily gave a statement that

was audio recorded.

      Appellant told them that he met Sam on Craigslist, and that he knew

Sam was fifteen years old. Appellant was planning to meet Sam in the ice

skating rink parking lot.   He told the police officers that he intended to

perform oral sex, and permit Sam to reciprocate. Appellant initialed printed

out copies of the texts he sent to Sam, and he admitted sending the

pictures.   The officer also verified from Comcast, Appellant’s internet

provider, that Appellant was the subscriber of the internet address used.

      On October 28, 2014, Appellant entered a negotiated guilty plea to

criminal solicitation to commit involuntary deviate sexual intercourse with a

person under the age of sixteen, unlawful contact with a minor, and criminal

use of communication facility.    The remaining twelve charges filed against

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him were dismissed.        He was sentenced to an aggregate term of

imprisonment of fifteen to forty years.

        At the guilty plea hearing, the Commonwealth represented to the court

that all of the original charges, with the exception of criminal use of a

communication facility, carried mandatory minimum sentences of twenty-

five years imprisonment, due to the fact that it was Appellant’s second

conviction for a registration offense.     The court conducted a guilty plea

colloquy during which Appellant acknowledged that, together with counsel,

he had reviewed, signed, and initialed the guilty plea statement. Id. at 7.

He stated that he understood his rights and the offenders’ addendum, and

verified that he discussed the negotiated plea with counsel and all of his

questions had been answered to his satisfaction.      The court explained to

Appellant what the Commonwealth would have to prove in order to sustain a

conviction for each of the offenses, and Appellant pled guilty to each offense.

The factual basis for the guilty plea was supplied by the affidavit of probable

cause that was made part of the record by stipulation. Appellant advised the

court that he was satisfied with his counsel’s performance throughout his

representation.   Based on the written and oral colloquies, the court found

Appellant’s guilty plea to be knowing, intelligent, and voluntary, and he was

subsequently sentenced pursuant to the plea agreement on January 27,

2015.

        Appellant did not file a post-sentence motion or a direct appeal. On

January 11, 2016, he filed the instant timely pro se PCRA petition, and

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counsel was appointed. After numerous extensions of time, counsel filed an

application to withdraw, 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), which were served upon Appellant. In

the no-merit letter, counsel addressed the issues raised by Appellant in his

pro se petition, to wit, the voluntariness of his plea, the legality of his

sentence, ineffective assistance of counsel in inducing guilty plea, and

counsel’s failure to file a direct appeal.

        On May 9, 2017, the PCRA court, following review of counsel’s no-

merit letter and its own independent examination of the record, granted

counsel’s application to withdraw. The court also issued Pa.R.A.P. 907 notice

to Appellant of its intent to dismiss his petition without a hearing in twenty

days.    Appellant filed an objection to the Rule 907 notice that focused on

alleged deficiencies in the criminal information, which Appellant argued

deprived the court of subject matter jurisdiction and failed to apprise him of

the nature of the charges.      In addition, he alleged that trial counsel was

ineffective for failing to file a motion to quash the information, and in

advising Appellant to enter a guilty plea, and that PCRA counsel was

ineffective for failing to assert this claim of plea counsel ineffectiveness.

After a thorough analysis of the issues, and consideration of Appellant’s

objection to the notice to dismiss, the PCRA court dismissed the petition on

June 1, 2017.




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      Appellant timely appealed and filed an unsolicited Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal, and the PCRA court

authored its Rule 1925(a) opinion. On appeal, Appellant presents five issues

for our review:

      A. Did the State’s Attorney violate Pa.R.Crim.P. 560(B),(5) and
         (C)?

      B. Was Appellant deprived [of] pre-trial notice of offenses to be
         pursued at trial, consistent with Pa.R.Crim.P. 560 (D), when
         the Bills of Information do not cite any law/criminal statute,
         consistent with three court decisions in this Commonwealth
         concerning proper citations and Pa.R.Crim.P. 560(C), which
         also deprived Appellant notice of penalties, all of which was in
         derogation of the Four Corners Doctrine, and Due Process?

      C. Did the PCRA court err in concluding as a matter of law, that
         the Bills of Information met the plain and concise statement
         pursuant to Pa.R.Crim.P. 560(B), (5) and not ruling on proper
         citation at all, pursuant to Pa.R.Crim.P. 560(C)?

      D. Did the PCRA court err in not applying the Rule of the Last
         Antecedent, upon review of Pa.R.Crim.P. 560(C) disclaimer to
         proper citation requisite?

      E. Does Appellant’s conviction rest upon entry of non-positive
         law as evidence, i.e., the Bills of Information defective as they
         are, and does non-positive law require reversal of conviction
         to permit Appellant to plead anew, or stand trial, or does non-
         positive law, become positive law after conviction?

Appellant’s brief at v.

      In reviewing the denial of PCRA relief, we must ascertain “whether the

PCRA court’s determination is supported by the evidence of record and free

of legal error.” Commonwealth v. Holt, 175 A.3d 1014, 1017 (Pa.Super.

2017). Our scope of review “is limited to the findings of the PCRA court and



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the evidence of record, viewed in the light most favorable to the prevailing

party at the trial level.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.

2014) (citation omitted). “We are bound by the PCRA court’s credibility

determinations so long as they are supported by the record, but we review

the court’s legal conclusions de novo.” Commonwealth v. Miller, 102 A.3d

988, 992 (Pa.Super. 2014).

        On appeal, Appellant has abandoned the claims that he initially raised

in his pro se PCRA petition. Instead, he pursues issues that he articulated

for the first time in his objection to the Rule 907 notice to dismiss.           The

Commonwealth contends that Appellant’s response to the Rule 907 notice,

as well as his unsolicited Pa.R.A.P. 1925(b) concise statement of errors,

raise    “issues   that   have   been    waived,   are     frivolous,     or   wholly

incomprehensible.” Commonwealth’s brief at 5. It further characterizes as

meritless Appellant’s claim that counsel should have challenged the criminal

information, and insists that such a challenge would not have altered the

outcome of the proceedings.

        The   PCRA   court   described   Appellant’s     claims   as     “confusingly

generalized and largely indiscernible assertions.”          Trial Court Opinion,

9/27/17, at 6.     It agreed with the Commonwealth that the issues of plea

counsel ineffectiveness for failure to challenge the criminal information were

waived because they were not raised in the lower court.                See Pa.R.A.P.

302(a) (providing that issues not preserved in the trial court are waived on

appeal). The court found that Appellant did not, “by any fair reading of his

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self-represented, collateral filing[,] assert any allegation that the criminal

information was in some manner unlawful and/or otherwise invalid.” PCRA

Court Opinion, 9/29/17, at 9.

       Moreover, the PCRA court concluded that Appellant’s assertion of these

new claims in his objection to the notice to dismiss was improper, as a Rule

907 response is not a petition. See Pa.R.Crim.P. 907(1); Commonwealth

v. Rykard, 55 A.3d 1177, 1189 (Pa.Super. 2012) (holding “the ‘second or

subsequent petition’ language in the PCRA, at the time of its adoption, did

not include a response to a notice of intent to dismiss”).     The PCRA court

noted that the purpose of Rule 907 notice “is to allow a petitioner an

opportunity to seek leave to amend his petition and correct any material

defects.” Id. Such amendments are only permitted, however, by direction

or leave of the PCRA court. Commonwealth v. Mason 130 A.3d 601, 621

n.19 (Pa. 2015).       Appellant did not seek permission to amend his PCRA

petition to include these additional claims. Thus, having failed to raise the

issues in his PCRA petition, or request leave of court to amend his original

petition, the PCRA court found waived all issues regarding trial counsel’s

treatment of the criminal information. See Pa.R.A.P. 302(a).1
____________________________________________


1 We note that the trial court granted PCRA counsel’s application to withdraw
prior to issuing Rule 907 notice of its intent to dismiss the petition without a
hearing. The problem with that timing is that the petitioner is deprived of
the assistance of counsel at a time when he “bears the onus of informing the
PCRA court that he or she seeks to add claims through an amended petition,
and, in response, the court shall freely grant leave to amend where doing so
(Footnote Continued Next Page)


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      We agree with the PCRA court that Appellant’s allegations of trial

counsel’s ineffectiveness for failing to challenge the criminal information

were waived under Pa.R.A.P. 302(a), since they were not preserved below.

Furthermore, the objection to Rule 907 notice was not the proper vehicle in

which to raise new issues of trial counsel ineffectiveness.       However, the

PCRA court found, and we agree, that the response to Rule 907 notice was a

viable means of preserving a claim of PCRA counsel’s ineffectiveness.       See

Commonwealth v. Henkel, 90 A.3d 16 (Pa.Super. 2014) (en banc);

Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009) (mandating that

petitioner raising allegation of PCRA counsel ineffectiveness do so in

response to Rule 907 twenty-day response period). Thus, the PCRA court

properly found no waiver with regard to Appellant’s claim of PCRA counsel

ineffectiveness, and examined whether “PCRA counsel was ineffective in

failing to challenge the effectiveness of trial counsel, which requires as a

threshold matter that trial counsel was ineffective in the first instance.”

Mason, supra at 619. It concluded that plea counsel was not ineffective in

failing to challenge an information that complied in all material respects with



(Footnote Continued) _______________________

achieves substantial justice consistent with the dictates of Pa.R.C[rim.].P.
905(A).” Commonwealth v. Mason, 130 A.3d 601, 627 (Pa. 2015). The
better practice is to refrain from ruling on counsel’s petition to withdraw until
the court rules on dismissal of the petition. PCRA counsel would be available
to seek leave to supplement the PCRA petition, or to supplement the petition
at the court’s direction.



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Pa.R.Crim.P. 560.2         The information was signed by the Delaware County

District Attorney, and the prosecution was carried on under the authority of

the Commonwealth of Pennsylvania.              Appellant’s name appeared on each

page. The information contained the dates of the offenses and the county
____________________________________________


2 Rule 560. Information: Filing, Contents, Function, provides in pertinent
part:

       (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:

                     ....

                     (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;

                     ...

       (C)    The information shall contain the official or customary
              citation of the statute and section thereof, or other
              provision of law that the defendant is alleged therein to
              have violated; but the omission of or error in such citation
              shall not affect the validity or sufficiency of the
              information.

       (D)    In all court cases tried on an information, the issues at trial
              shall be defined by such information.

Pa.R.Crim.P. 560.




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where they occurred. There were citations to the appropriate sections of the

Crimes Code, and, with regard to the offenses to which Appellant pled guilty,

the information contained references to the elements of the offenses and the

facts. Based on the foregoing, the PCRA court concluded that plea counsel

was not ineffective for failing to file a pretrial motion to quash the valid

criminal information, and consequently, PCRA counsel was not ineffective for

failing to pursue the meritless claim. Commonwealth v. Kelley, 136 A.3d

323, 327 (Pa.Super. 2016) (“Counsel cannot be found ineffective for failing

to pursue a baseless or meritless claim.”). Since the PCRA court found no

genuine issues of material fact, it dismissed the petition without an

evidentiary hearing.

      We have examined the criminal information to determine whether the

PCRA court’s view of its adequacy is supported by the record.     Appellant’s

reliance upon In Re Appeal of Tenet Health Systems Bucks County,

LLC, 880 A.2d 721 (Pa.Cmwlth. 2005) (finding that appellant could not rely

upon a misprint in an unofficial version of the statutes to render his appeal

timely), as the basis for his contention that the information contained

citations to “non-legal evidence” is misplaced.      The criminal information

herein contained citations to the official Crimes Code.

      Nor do we find any merit in Appellant’s claim that the descriptions of

the offenses in the criminal information failed to provide him with specific

notice of all of the charges, and thus deprived the court of subject matter


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jurisdiction. A flaw does not automatically deprive a court of subject matter

jurisdiction.   See Commonwealth v. Khorey, 555 A.2d 100, 108 (Pa.

1989) (holding that absence of proper signature in information did not divest

the court of jurisdiction, especially where defect was curable); see also

Commonwealth v. Jones, 929 A.2d 205 (Pa. 2007) (generally discussing

subject matter jurisdiction in relation to criminal information). Had counsel

challenged the information for lack of specificity of the charges, the

Commonwealth could have remedied any deficiency. See Pa.R.Crim.P. 564

(permitting an information to be amended when there is a defect in form,

the description of the offense(s), the description of any person or any

property, or the date charged, provided the information as amended does

not charge an additional or different offense.)

      Finally, Appellant’s sole claim of prejudice is that he would not have

pled guilty to offenses that the Commonwealth did not properly cite or

describe in the criminal information. We agree with the PCRA court that the

criminal information sufficiently stated the essential elements of the crimes

to which Appellant pled guilty. Thus, there is no “reasonable probability that

but for counsel's act or omission, the outcome of the proceeding would have

been different.”   Commonwealth v. Wholaver, 177 A.3d 136, 159 (Pa.

2018). Having failed to demonstrate arguable merit or prejudice from any

purported ineffectiveness on the part of trial counsel, Appellant’s claim that




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PCRA counsel was ineffective for failing to raise that meritless claim

necessarily fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/18




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