J-S57020-15


COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

KELLY SPILLMAN

                            Appellant                       No. 3366 EDA 2014


                 Appeal from the PCRA Order November 7, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0808261-2006


BEFORE: MUNDY, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                                   FILED JANUARY 12, 2016

       Kelly Spillman1 appeals from the order entered on November 7, 2014,

in the Court of Common Pleas of Philadelphia County, denying him relief on

portions of his petition filed pursuant to the Post-Conviction Relief Act

(PCRA), 42 Pa.C.S. § 9541 et seq.              In this timely appeal, Spillman raises

four issues, all of which arise from his claim that he was improperly

convicted and sentenced on a charge of criminal mischief, 18 Pa.C.S. §

3304(a)(4). Following a thorough review of the submissions by the parties,

relevant law, and the certified record, we affirm.

       The relevant factual and procedural history is as follows:


____________________________________________


1
  Throughout the certified record, the spelling of Spillman’s name changes
from ‘Spilman’ to ‘Spillman.’ Spillman himself uses both spellings. We will
use Spillman because that is the spelling he used in his pro se appellant’s
brief.
J-S57020-15



     On June 10, 2006, Philadelphia Police Officer Jeffrey Rabinovitch,

mistakenly believed that Spillman was a husband who was reportedly

violating a PFA. This mistaken belief was based upon the officer’s personal

knowledge of the domestic disturbance and the fact that Spillman was

occupying a similar vehicle, a Dodge pickup truck, which the offending

husband regularly drove. Based upon the belief that the truck belonged to

the husband, Officer Rabinovitch ran the license plates. Officer Rabinovitch

learned the truck did not belong to the husband, but that the truck Spillman

was driving had been stolen some months before.       As Officer Rabinovitch

approached the stolen truck, Spillman looked out of the driver’s side

window, looked at the officer, said “goodbye” and fled. A high-speed chase

ensued, involving police officers from Philadelphia, Tinicum Township, and

Ridley Park. Spillman eventually drove in speeds of excess of 100 m.p.h. on

I-95 and eventually drove the wrong way on I-95. The chase ended when

Spillman intentionally crashed the truck head-on into the police car occupied

by Tinicum Township Police Officer Adam Barraclough.      The crash caused

more than $8,000.00 in damages to the police car and injured Officer

Barraclough.   Spillman represented himself at a bench trial before the

Honorable Thomas Dempsey. Spillman was convicted of aggravated assault,

resisting arrest, criminal mischief, simple assault, recklessly endangering




                                    -2-
J-S57020-15



another person (REAP), and fleeing or attempting to elude a police officer.

He received an aggregate sentence of three to ten years’ incarceration on

December 17, 2007.2

       A counseled direct appeal, in which Spillman challenged the sufficiency

of the evidence regarding aggravated assault, as well as the allegedly

excessive     nature    of   his   sentence,       afforded     him    no    relief.   See

Commonwealth           v.    Spilman      [sic],    47   A.3d         1253    (unpublished

memorandum) (Pa. Super. March 12, 2012). Spillman then filed a pro se

PCRA petition raising, in relevant part, his current claims regarding his

conviction of criminal mischief. Appointed counsel filed an amended PCRA

petition that alleged Spillman’s sentences for REAP and simple assault

should have merged with aggravated assault. The amended petition did not

address Spillman’s claim regarding criminal mischief.                   The PCRA court

agreed that the simple assault and aggravated assault charges should have

merged, but denied merger regarding REAP.                Accordingly, the PCRA court

vacated Spillman’s sentence for simple assault, although the sentence was

already concurrent with the three to ten year sentence for aggravated

assault.

       Spillman then filed this pro se appeal, in which he claimed PCRA

counsel was ineffective for failing to raise his claim regarding criminal

____________________________________________


2
  All underlying facts of this matter have been taken from the notes of
testimony from the trial, held on June 15, 2007, October 9 and 11, 2007.



                                           -3-
J-S57020-15



mischief, as well as restating his substantive arguments regarding criminal

mischief.    We initially remanded this matter for a Grazier3 hearing to

determine whether Spillman had knowingly and voluntarily chosen to

represent himself.           The PCRA court has determined Spillman’s self-

representation is proper and this matter has been returned to us for

substantive review.

       Spillman raises four claims, all of which are based upon the same,

untenable allegation, that he was charged and convicted of criminal

mischief, under 18 Pa.C.S. § 3304(a)(4), regarding defacing or damaging

tangible property with graffiti. Pursuant to Section 3304(b), that crime is a

summary offense unless the Commonwealth proves the graffiti caused a

pecuniary loss in excess of $150.00, in which case the crime is graded as a

third-degree misdemeanor. As such, he claims: (1) there was no evidence

of graffiti, therefore, there was insufficient evidence to support the

conviction; (2) his three-to-seven year term of incarceration for criminal

mischief    was    illegal   for   either   a   summary   offense   or   third-degree

misdemeanor; (3) the order for restitution for $8,959.00 damage to Police

Officer Barraclough’s car was illegal; and (4) his PCRA counsel was

ineffective for failing to raise these issues.




____________________________________________


3
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



                                            -4-
J-S57020-15


        Our standard of review of the denial of a petition is limited to
        examining whether the evidence of record supports the court's
        determination and whether its decision is free of legal error.

Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa. Super. 2015)

(citation omitted).

        Preliminarily, we note the Commonwealth has asserted that Spillman

is no longer serving his sentence for criminal mischief, and therefore, is not

eligible for PCRA relief regarding that conviction. See Commonwealth v.

Stultz, 114 A.3d 865, 872 (Pa. Super. 2015) (petitioner must be serving

sentence for relevant crime to obtain PCRA relief).4              Spillman was

sentenced in December 2007.               The maximum sentence for Spillman’s

criminal mischief conviction was seven years. Even though Spillman is still

serving a sentence for aggravated assault, he has completed his sentence

for criminal mischief and is no longer eligible for PCRA relief regarding that

conviction. Accordingly, the instant claims are not cognizable. In any event,
____________________________________________


4
    See also, 42 Pa.C.S. § 9543(a)(1)(i), which states:

        a) General rule.--To be eligible for relief under this subchapter,
        the petitioner must plead and prove by a preponderance of the
        evidence all of the following:

           (1) That the petitioner has been convicted of a crime under
           the laws of this Commonwealth and is at the time relief is
           granted:

              (i)  currently  serving             a  sentence     of
              imprisonment, probation            or parole for   the
              crime;

42 Pa.C.S.§ 9543(a)(1)(i) (emphasis added).



                                           -5-
J-S57020-15



assuming arguendo, Spillman cam be considered to be still serving the

criminal mischief sentence because it was concurrent with the sentence on

aggravated assault, no relief is due.

      Spillman has raised his issues both individually and under the umbrella

of ineffective assistance of counsel.     Regarding ineffective assistance of

counsel, the PCRA court did not address any of Spillman’s issues in its

Pa.R.A.P. 1925(a) opinion, claiming they were not raised in the amended

PCRA petition, and were therefore waived. A similar issue was presented to

our Court in Commonwealth v. Ford, 44 A.3d 1190 (Pa. super. 2012).

After Ford was provided an evidentiary hearing on his PCRA claims, which

were denied, he claimed in his Pa.R.A.P. 1925(b) statement of matters

complained of on appeal that PCRA counsel was ineffective for failing to raise

certain issues. A panel of our Court determined that such claims could not

be raised for the first time on appeal:

      Therefore, we hold that, absent recognition of a constitutional
      right to effective collateral review counsel, claims of PCRA
      counsel ineffectiveness cannot be raised for the first time after a
      notice of appeal has been taken from the underlying PCRA
      matter.

Commonwealth v. Ford, 44 A.3d 1190, 1201 (Pa. Super. 2012).

      Regarding the individual claims, the PCRA court also recognized the

general prohibition against raising arguments for the first time on appeal.

See 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.”) The PCRA court aptly noted

that PCRA counsel was aware of the issues regarding the grading of criminal

                                        -6-
J-S57020-15



mischief and opted not to raise them. Rather, PCRA counsel properly raised

a meritorious merger issue.

      Because Spillman did not raise the instant claims until he filed his

1925(b) statement of matters complained of an appeal, he did not raise

them in a timely manner. Accordingly, the instant claims are waived.

      Finally, we note that even if we were to address the merits of

Spillman’s claims, he would not be entitled to relief. Spillman argues he was

charged with and convicted of criminal mischief under Section 3304(a)(4),

regarding damaging or defacing tangible property with graffiti. Pursuant to

Section 3304(b), a conviction under Section 3304(a)(4) cannot rise above a

third–degree misdemeanor. Our review of the certified record confirms that

this argument is based wholly upon a scrivener’s error found in sentencing

documents. The criminal complaint, relevant Bill of Information, and notes

of testimony all confirm that Spillman was charged with criminal mischief as

a third degree felony, specifically, that he intentionally or recklessly caused

more than $5,000.00 in damages to Police Officer Barraclough’s police car.

The certified record is bereft of any mention of damage caused to any

property by graffiti.

      Although both the Trial Disposition and Dismissal Form, dated

10/11/2007, and the Court Commitment Form, dated 12/17/2007, make

reference to 18 Pa.C.S.§ 3304(a)(4), both documents also refer to the




                                     -7-
J-S57020-15



criminal mischief charge as a third-degree felony. The grading of the crime

is consistent with all charging documents and with notes of testimony.5



____________________________________________


5
    The Bill of Information stated, in relevant part:

        The District Attorney of Philadelphia by this information charges
        that on or about 6/10/06 in Philadelphia, Kelly Spilman [sic]

           1. Damaged tangible property of another intentionally,
           recklessly, or by negligence in the employment of fire,
           explosives, or other dangerous means listed in 18 Pa.C.S.
           3302(a)

           2. Intentionally or recklessly tampered with tangible
           property of another so as to endanger person or property

           3. Intentionally or recklessly caused another to suffer
           pecuniary loss by deception or threat

           4. Furthermore, the actor intentionally caused pecuniary
           loss in excess of $5,000 or a substantial interruption or
           impairment of public communication, transportation,
           supply of water, gas or power, or other public service.

                                           ....

        Owner or custodian P/O Barrowclough [sic]

Bill of Information, 9/1/2006, at 2.

      The first three paragraphs of the Bill of Information mirror the
statutory language of the first three paragraphs of 18 Pa.C.S. § 3304(a)(1)-
(3). Paragraph (4) of the Bill of Information mirrors the grading language
found at 18 Pa.C.S. § 3304(b), and is the basis for grading the crime as a
third degree felony. Paragraph (4) of the Bill of Information does NOT
charge Spillman with damaging property with graffiti. Most likely the error
in the sentencing documents is simply a mistaken reference to paragraph
(4) of the Bill of Information, not a reference to 18 Pa.C.S. § 3304(a)(4).



                                           -8-
J-S57020-15



Accordingly, even if we addressed the substance of Spillman’s claims, he

would not be entitled to relief.

      Order affirmed. Motion to amend denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2016




                                   -9-
