J-S74022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                      v.                       :
                                               :
                                               :
    FRANK J. SCHAEFFER                         :
                                               :
                       Appellant               :   No. 3077 EDA 2016

                Appeal from the PCRA Order September 23, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0001360-2011


BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.

MEMORANDUM BY LAZARUS, J.:                           FILED FEBRUARY 06, 2018

        Frank J. Schaeffer appeals from the order, entered in the Court of

Common Pleas of Philadelphia County, denying his petition seeking relief

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541-46. After

our review, we affirm.

        On March 14, 2012, a jury found Schaeffer guilty of conspiracy to

commit burglary,1 theft by unlawful taking2 and receiving stolen property.3

The Honorable Michael Erdos sentenced Schaeffer to seven and one-half (7½)



____________________________________________


1   18 Pa.C.S. §§ 903(a)(1), 3502(a)(2).

2   18 Pa.C.S. § 3921(a).

3   18 Pa.C.S. § 3925(a).
J-S74022-17



to sixteen (16) years’ imprisonment.4 Schaeffer filed post-sentence motions,

which were denied, and a notice of appeal. On February 2, 2013, this Court

affirmed his judgment of sentence. Commonwealth v. Schaffer, 1459 EDA

2012 (unpublished memorandum, filed February 12, 2013).

       On January 27, 2014, Schaeffer filed a pro se PCRA petition. The PCRA

court appointed counsel, and counsel filed an amended and a supplemental

amended petition.       The Commonwealth filed an answer to the petition and a

motion to dismiss.          On September 23, 2016, Judge Erdos dismissed

Schaeffer’s petition. This appeal followed.

       Schaeffer raises the following issues for our review:

            I.   Whether the court erred in denying [Schaeffer’s]
                 PCRA petition without an evidentiary hearing on the
                 issues raised in the amended PCRA petition regarding
                 trial counsel’s ineffectiveness.[5]

           II.   Whether the court erred in not granting relief on the
                 PCRA petition alleging counsel was ineffective.

Appellant’s Brief, at 8.

       Pennsylvania Rule of Criminal Procedure 907 provides that



____________________________________________


4 Schaeffer had ten prior burglary convictions. See Commonwealth v.
Schaeffer, 1459 EDA 2012 (unpublished memorandum, filed February 12,
2013), at *2.

5 In his PCRA petition, Schaeffer raised seven claims of trial counsel’s
ineffectiveness. On appeal, he raises three, claiming counsel was ineffective
for failing to: clarify the object of the conspiracy; file a motion to dismiss the
charges; and object to the sentencing procedures. See Appellant’s Brief, at
18-22.

                                           -2-
J-S74022-17


      [i]f the judge is satisfied . . . that there are no genuine issues
      concerning any material fact and that the defendant is not entitled
      to post-conviction collateral relief, and no purpose would be
      served by any further proceedings, the judge shall give notice to
      the parties of the intention to dismiss the petition and shall state
      in the notice the reasons for the dismissal.

Pa.R.Crim.P. 907(1). “[T]he PCRA court can decline to hold a hearing if there

is no genuine issue concerning any material fact and the petitioner is not

entitled to post-conviction collateral relief, and no purpose would be served

by any further proceedings.” Commonwealth v. Taylor, 933 A.2d 1035,

1040 (Pa. Super. 2007). See also Commonwealth v. Morrison, 878 A.2d

102, 109 (Pa. Super. 2005) (“A PCRA hearing is not a matter of right, and the

PCRA court may decline to hold a hearing if there is no genuine issue

concerning any material fact and the defendant is not entitled to relief as a

matter of law.”); Commonwealth v. Payne, 794 A.2d 902, 906 (Pa. Super.

2002) (“The right to an evidentiary hearing on a post-conviction petition is not

absolute. A PCRA court may decline to hold a hearing if the petitioner’s claim

is patently frivolous and is without a trace of support in either the record or

from other evidence.”).   A PCRA court’s decision to deny a request for an

evidentiary hearing will not be overturned absent an abuse of discretion.

Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).

      As noted above, Schaeffer claimed counsel was ineffective for failing to:

(1) clarify the object of the conspiracy; (2) file a motion to dismiss the

charges; and (3) object to the sentencing procedures. The underlying issue

in Schaeffer’s first claim was previously litigated. 42 Pa.C.S. § 9544(a). The


                                     -3-
J-S74022-17



evidence presented at trial, arguments made by both attorneys, and the trial

court’s instruction made it clear Schaeffer was charged with, and convicted of,

conspiracy to commit burglary. On direct appeal, this Court stated that the

trial court “provided clear jury instructions specifying the charge of conspiracy

to commit burglary, made no mention of any other type of conspiracy, and

the jury issued [an] unambiguous verdict.” Commonwealth v. Schaeffer,

supra at *2.

      Schaeffer’s claim that counsel was ineffective for failing to file a motion

for directed verdict on conspiracy charge was also previously litigated as a

challenge to the sufficiency of the evidence on direct appeal. Id.

      Finally, Schaeffer claims that counsel was ineffective for failing to object

to sentencing procedures because the court did not specify whether his

sentence would run concurrently with, or consecutive to, the sentence of

parole he was currently serving. It is not clear here whether Schaeffer had

been recommitted by the parole board when he was sentenced in this case,

however, in any event the court had no authority to impose its sentence

concurrently with the time remaining on the older sentence.                  See

Commonwealth v. Zuber, 353 A.2d 441, 457 (Pa. 1976) (“[T]he law is quite

clear that a parole violator convicted and sentenced to prison for another

offense must serve his or her back time and the new sentence in consecutive

order.”); McCaskill v. Pennsylvania Bd. of Probation and Parole, 631

A.2d 1092 (Pa. Commw. 1993); see also 61 Pa.C.S. § 6138(a)(5) (“If a new

sentence is imposed on the parolee, the service of the balance of the term

                                      -4-
J-S74022-17



originally imposed by a Pennsylvania court shall precede the commencement

of the new term imposed[.]”).

      After our review, we conclude that the PCRA court correctly concluded

that Schaeffer’s proffer, even if believed, failed to establish ineffectiveness of

trial counsel, and thus the court correctly determined there were no genuine

issues of material fact. Accordingly, we affirm the order denying Schaeffer’s

PCRA petition without a hearing, and we do so on the basis of Judge Erdos’

opinion. See PCRA Court Opinion, 4/5/17, at 9-11, 13-14, 18.           See also

Commonwealth v. Ligons, 971 A.2d 1125, 1146 (Pa. 2009).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/6/18




                                      -5-
                                                                                              Circulated 01/10/2018 10:37 AM




               IN THE COURT OF COMMON PLEAS OF PHILADELPHIA
                                                                                                                  FILE
                   FIRST JUDICIAL DISTRICT OF PENNSYLVANIA                                                           APR 0 5 2011-
                                CRIMINAL TRIAL DIVISION
                                                                                                         Criminal Appoals unit
                                                                                                      First Judicial Distnct of PA
COMMONWEALTH OF PENNSYLVANIA                          :



v.                                                           CP-51-CR-0001360-2011


FRANK JOSEPH SCHAEFFER                                       3077 EDA 2016
                                                                    CP-51-CR-000f360-.2011
                                                                                             Comm.   Schaeffer. Frank Joseph
                                                                                             Opoon




                                            OPINION                      111111191124110111111111

ERDOS, J.                                                    April 5, 2017

       Frank Joseph Schaeffer (hereinafter "Appellant") appeared before this Court on March

13, 2012 and a jury found him guilty   of conspiracy to commit burglary, theft and receiving stolen

property. The jury found Appellant not guilty of burglary. On April 25, 2012, Appellant was

sentences to a total term of incarceration of seven and one half to sixteen years.

       Appellant subsequently appealed his sentence, which was affirmed by the Superior Court

on February 12, 2013. He was subsequently denied PCRA relief by this Court on September 23,

2016. Appellant files the instant appeal alleging he should have been granted PCRA relief for

because his trial counsel rendered ineffective assistance of counsel. For the reasons stated below,

Appellant's argument is without merit.

PROCEDURAL POSTURE

       On October 7, 2010, Appellant was arrested and charged with burglary, conspiracy to

commit burglary, criminal trespass, theft by unlawful taking, and receiving stolen property. On

February 2, 2010, Appellant appeared before the Honorable Craig Washington for a Preliminary

Hearing and the charges were held for court. On February 11, 2011, Appellant filed a Motion to
Quash; this was denied. He next filed a Motion to Dismiss pursuant to Rule 600 which this Court

denied on March 8, 2012. On that same date, this Court denied the Commonwealth's Motion in

Limine to Include Prior Bad Acts.

       On March 13, 2012, Appellant appeared before this Court for a jury trial where he was

represented by Liam Riley, Esquire of the Defender Association of Philadelphia. On March 14,

2012, the jury found Appellant guilty of conspiracy to commit burglary, theft by unlawful taking,

and receiving stolen property. Appellant was found not guilty of burglary. On April 24, 2012,

Appellant by and through his counsel of record filed a Motion to Clarify the Verdict and a

Motion for Extraordinary Relief, which were denied the day after. Appellant was then sentenced

by this Court to seven and half to sixteen years of incarceration. Appellant filed a post-sentence

motion that was denied by this Court on May 8, 2012.

       Appellant, represented by Scott Diclaudio, Esquire, subsequently filed an appeal to the

Superior Court alleging that (1) the court abused its discretion when it denied Appellant's motion

to clarify the verdict because the verdict was ambiguous with respect to the criminal conspiracy

charge because of the failure to include with specificity on the verdict sheet the charge he

allegedly conspired to commit; (2) the evidence was insufficient to sustain the charge of

conspiracy to commit burglary; (3) the Court erred in grading the theft charges as misdemeanors

of the second degree; and (4) the Court committed an abuse of discretion by imposing a

sentence outside the suggested guidelines range. The Superior Court denied Appellant's appeal

on February 12, 2013.

   On January 27, 2014, Appellant filed apro se petition under the Post Conviction Relief Act

(hereinafter "PCRA"), pursuant to 42 Pa.C.S. §§ 9641-9546 alleging that (1) appellate counsel

rendered ineffective assistance of counsel by failing to allege that trial counsel rendered



                                                  2
ineffective assistance of counsel and (2) trial counse rendered ineffective assistance of counsel

by "failing to object to the District Attorney eliciting testimony from Commonwealth witnesses

which falsely portrayed Joseph Korhan as a co-defendant / co-conspirator of the defendant by

two dozen references, failing to object to the admission of a mug shot of Joseph Korhan, and

failing to request an in -camera hearing as to the authentication of the mug shot."

        On March 2, 2015, Appellant filed an Amended PCRA petition by and through his

attorney Peter Levin, Esquire. Appellant's amended petition alleged that trial counsel's failed to

"request to charge the jury on the criminal conspiracy charge for which Petition was convicted

of, trial counsel failed to ask the judge to charge the jury on 'underlying crimes,' trial attorney

failed to object to the verdict sheet, and failed to request a directed verdict in that Joseph Kohran

had charges withdrawn."

        On February 9, 2016, Appellant filed a supplemental PCRA petition adding the additional

argument that trial counsel was ineffective for failing to object when the "offense for which he

was charged with was wrongfully changed by the trial court," failing to file a motion to quash or

dismiss the charges, and failing to object to sentencing procedures.

        The Commonwealth filed an Answer to the Petition for PCRA relief and a Motion to

Dismiss on March 7, 2016 and July 25, 2016, respectively. On September 23, 2016, Appellant's

PCRA petition was dismissed without a hearing and on September 30, 2016, Appellant filed the

instant appeal.

FACTS

        Appellant entered a plea of not guilty to all charges against him and asserted his right to

trial by jury. The sum and substance of the evidence at trial was as follows:

        On October 7, 2010 at around 12:30 p.m., Colleen Sharp exited through the back door of

4716 Convent Lane, the residence that she shares with her husband Michael, to take her dog for a
                                                  3
walk. NOTES   OF TESTIMONY,   Trial, 3/13/2012, at 38. At about the same time, Jason Harrison, a

resident of that block, noticed a gray, four -door SUV parked in the driveway of the Sharp

residence. Id. at 56. Harrison noticed a male with olive complexion, or possibly Hispanic, get

out of the passenger side of the SUV, walk up to the residence, knock on the front door, and look

through the glass on the front door and windows. Id. at 56-57. Harrison did not see the man's

face. Id. A few minutes later, he observed the man walk towards the driveway of the house and

make a waving gesture towards the backyard. Id. at 58. He then observed the SUV drive

eastbound on Convent Lane, but did not see whether the man he had been watching got into the

vehicle before it left. Id. Harrison followed the SUV in his own vehicle and wrote down its

license plate number. Id. at 59-61. He observed it make a U-turn back toward Convent Lane,

and drive towards the direction of Convent Lane, and was able to notice that the driver of the

SUV was a male with a tattoo on his arm. Id. at 60-61. He then drove approximately five

minutes to get gas, at which point he decided to drive back to the Sharp residence. Id. at 63.

       Sharp returned to her home approximately seven minutes after she had left with her dog.

Id at 39. Upon entering the house, she noticed her husband's green gym bag by the back door

that was not there before she left. Id. She called her husband on the telephone as she walked up

the stairs to the second floor. Id. at 40. When she was approximately halfway up the stairs, she

noticed her husband's sports officiating equipment strewn across the upstairs hallway. Id. at 41.

Sharp immediately left her residence and called the police. Id. When the police arrived, Officer

Gallagher accompanied Sharp into her residence and upstairs to the master bedroom. Id. Sharp

indicated that her jewelry was missing. Id. at 41, 71. Michael Sharp traveled from his work to

the house after getting off the phone with his wife. Id. at 46.




                                                  4
        When Harrison returned to Convent Lane, he informed police about what he had seen and

provided them with the vehicle's license plate numbers. Id. at 63-64. Officer Gallagher then

broadcast the description of the SUV over police radio. Id. at 72.

       Officer Shaw was with Officer McNicholas parked in an unnmarked patrol car at a

Lowe's store on the 3700 block of Aramingo Avenue when he noticed an SUV matching the

description traveling southbound on the 3600 block of Aramingo Avenue. Id. at 81. The officers

pursued the vehicle and followed it as it turned into the parking lot of a Wendy's restaurant at the

corner of Aramingo and Venango Avenues, approximately five to eight miles from the Sharp's

residence. Id. at 81-82. Officer Shaw approached the passenger side front door of the parked

SUV. Id. at 83. He observed movement in the back seat area, opened the back door, and

observed Appellant sitting in the back passenger -side seat. Id. Appellant was in possession of a

small black bag approximately twelve inches in length in his left hand and a piece of gold

jewelry in his right hand. Id. Shaw took Appellant into custody and recovered the black bag,

which contained various pieces of jewelry. Id. Responding officers arrived at the scene shortly

after Officer Shaw placed Appellant into custody. Officer McNicholas found the driver of the

SUV, identified as Joseph Kohran, inside of the Wendy's bathroom. Id. at 91, 115.

       Harrison and Michael Sharp traveled to the Wendy's. Id at 47, 64. There, Harrison

positively identified the SUV and Kohran, whom he recognized by the tattoo on his arm. Id. at

65. Michael Sharp positively identified his and his wife's jewelry, consisting of dozens of

pieces, and one of his suitcases that were in the SUV. Id. at 47, 50.

       On October 8, 2012 around 1:35 p.m., a search warrant was executed on the SUV.

NOTES OF TESTIMONY, Trial, 3/14/2011, at 11. Detectives recovered a jewelry box from within a

suitcase in the rear seat and other jewelry from the vehicle. Id. The vehicle, a bottle of



                                                 5
Mountain Dew in a front cup holder, and the recovered jewelry box were fingerprinted. Id. The

fingerprint analysis on the jewelry box and exterior door revealed that the prints were from

Appellant. Id. at 35. The fingerprints recovered from the soda bottle and the driver door came

back to Kohran. Id.

         The jury convicted Appellant of theft by unlawful taking, receiving stolen property, and

conspiracy to commit burglary, and acquitted him of burglary. The jury also found that the total

value of the stolen jewelry was greater than $2000, making the theft offenses felonies of the third

degree. Prior to sentencing, the Court downgraded the thefts to second degree misdemeanors --

with a value between $50 and $200 -- because it did not believe the jury's finding as to valuation

was supported by the record. The Court then sentenced Appellant to seven and one-half to

sixteen years incarceration. The sentencing guidelines for his felony offense, with an offense

gravity of 6 and a prior score of REFEL, was 27-40 months    +1- 6.



DISCUSSION

Appellant raises the following issues on appeal:

    1)Whether this Court erred in denying the amended PCRA petition for the alleged
      ineffective representation of trial counsel for failure to:
          a. file a motion to quash or dismiss the charges
          b. failing to object to the verdict sheet
          c. failing to request a jury charge for conspiracy with multiple objectives
          d. failing to object when this Court allegedly changed the charge Appellant had been
              charged with
          e. failing to move for a directed verdict
          f. failing to object to the characterization of Joseph Kohran as a co-conspirator
          g. failing to object to sentencing procedures
   2) Whether this Court erred in denying Defendant's PCRA petition without an evidentiary
      hearing.

   In order to succeed on an ineffective assistance of counsel claim, Appellant must demonstrate

that (1) his underlying claim has substantive merit; (2) counsel did not have a reasonable basis

for his actions and (3) he was prejudiced as a result of counsel's deficient performance.

                                                   6
Commonwealth       v.   Pierce, 527 A.2d 973, 975, 977 (Pa. 1987); see also Strickland   v.   Washington,

466 U.S. 668, 694 (1984). It is well settled law in this Commonwealth that counsel is presumed

to have been acting effectively. Pierce, 527 A.2d at 975 (citing Commonwealth v. Miller, 431

A.2d 233, 235 (Pa. 1981)). "An evaluation of counsel's performance is highly deferential, and the

reasonableness of counsel's decisions cannot be based upon the distorting effects of hindsight."

Commonwealth v. Saranchak, 866 A.2d 292, 304 (Pa. Super. 2005). Counsel's chosen strategy

will only be found to be unreasonable if Appellant can demonstrate that "an alternative not

chosen offered a potential for success substantially greater than the course actually pursued."

Commonwealth       v.   Spot:, 47 A. 3d 63, 76 (Pa. 2012) (quoting Commonwealth   v.   Williams, 899

A.2d 1060, 1064 (Pa. 2006) (emphasis added).

      The Pennsylvania Supreme Court has continually reiterated that an ineffectiveness claim

cannot be satisfied simply by establishing that counsel had no reasonable basis or was

ineffective. Id. Appellant must also satisfy the prejudice inquiry, namely that he was prejudiced

as a result   of counsel's inadequate performance. Id.; see also Commonwealth     v.   Buhl, 508 A. 2d

1167 (Pa. 1986). He must show that it is a reasonable probability that but for counsel's

challenged act or omission the outcome of the proceedings would have been different.

Commonwealth       v.   Malloy, 856 A. 2d 931, 855 (Pa. 2003), cert. denied, 540 U.S. 1115 (2004).

Failure to satisfy any prong will result in the failure of the ineffectiveness claim. Commonwealth

v.   Gonzalez, 858 A.2d 1219, 1222 (Pa.Super.2004), appeal denied, 582 Pa. 695. 871 A.2d 189

(2005).

      I.      Trial counsel was not ineffective for failing to file a motion to quash or dismiss
              the charges.

      Appellant contends that he asked trial counsel to file a motion to quash and a motion to

dismiss after the preliminary hearing and counsel never responded. Appellant filed his own

                                                     7
motion to quash which trial counsel failed to address or preserve for appeal, and the issue was

subsequently not included in his 1925(b) statement on direct appeal. For the reasons stated

below, Appellant cannot demonstrate that he suffered prejudice as a result of counsel's omission

and his claim on collateral review was rightly dismissed without an evidentiary hearing.

   A petitioner must establish that the alleged ineffectiveness in the wake of the preliminary

hearing undermined the truth -determining process essentially making the adjudication of guilt

unreliable. Commonwealth     v.   Lyons, 568 A.2d 1266, 1269 (Pa. Super. 1989). In Lyons, the

Commonwealth was granted leave of court to file an information without a preliminary hearing.

Id. at 1267. The defendant filed a motion requesting a preliminary hearing which was

subsequently denied by the trial court. Id. Trial counsel did not file a motion to quash the

information. Id. After a bench trial, the defendant was found guilty of robbery and conspiracy.

Id. The defendant alleged on collateral review that counsel was ineffective for failing to quash

the information and failing to preserve the issue for direct appeal. Id.

   The Superior Court found that the lack of a preliminary hearing did not impair the truth -

determining process because "the case was tried and the evidence was submitted to the court

which, as trier of the facts, found ... that the Commonwealth had established ... guilt ... beyond

a reasonable doubt." Id. at 1268. The Superior Court, therefore, dismissed Appellant's claim

because he could not demonstrate that he suffered prejudice as a result of counsel's omission. Id.

       Here, Appellant alleges that he "suffered actual prejudice" for trial counsel's failure to (1)

file the motion to quash or dismiss (2) failure to address his pro se motion and (3) failure of

Appellant counsel to include the error in his 1925(b) statement on direct appeal. Appellant does

not expand upon this notion in any detail nor does he provide any insight as to how the result of

the proceeding would have been different but for trial counsel's omission. The case was tried and



                                                   8
the evidence was submitted to a jury who found, as the triers of fact, the Commonwealth proved

Appellant's guilt on conspiracy to commit burglary, theft by unlawful taking, and receiving

stolen property beyond a reasonable doubt. Therefore, the failure to file a motion to quash or a

motion to dismiss did not impair the truth -determining process and Appellant has failed to

demonstrate how he suffered prejudice as a result of counsel's omission.

    II.    Appellant was not prejudiced as a result of trial counsel's failure to object to the
           verdict sheet.

    Appellant's next alleges in his Amended Petition that "counsel was ineffective for failing to

examine the verdict sheet regarding the conspiracy charge." This claim is baseless and must fail.

Even assuming Appellant can satisfy the first two prongs of the Pierce -Strickland test, he is

unable to demonstrate that counsel's inaction directly resulted in prejudice to him such that the

outcome of the trial would have been different. The evidence presented, the argument made by

both attorneys, and the instructions of this Court made it clear that Appellant was charged and

subsequently found guilty of conspiracy to commit burglary.

    Appellant was charged by information with various offenses on February 2, 2011 and

February 7, 2011. Of the various offenses listed, the only inchoate crime charged was conspiracy

to commit burglary. Beyond the specificity of the Bills of Information, both Appellant's attorney

and the prosecution made argument demonstrating that the object of the conspiracy was burglary.

Defense counsel stated that "they are charging him with burglarizing a home, with going into a

home and stealing objects from people, and stealing objects from people, with conspiring with

people to do that." (N.T., 3/14/12 at 66).

    As the Superior Court noted in Appellant's direct appeal, this Court "provided clear jury

instructions specifying the charge of conspiracy to commit burglary, made no mention of any

other type of conspiracy, and the jury issued [an] unambiguous verdict." This Court charged the


                                                 9
                                                                                                                      Fie




jury on the elements of Conspiracy generally but only after introducing the charge with "[t]he


defendant has been charged with Conspiracy to commit Burglary."                                 NOTES OF TESTIMONY, Trial,

3/14/2011,     at   16 (emphasis added). At the end of the general charge, the Court reiterated that


"No      be proven guilty of being a conspirator, the defendant must have intended to act jointly with


the other    members of the conspiracy and must have intended                           that the crimes, in this case


burglary, alleged to be the goal of the conspiracy would be committed."                                   Id. at   19 (emphasis


added).     The Court    specifically     mentioned burglary two times when explaining the elements of

conspiracy to commit burglary, and then explicitly stated the overt act in furtherance of


conspiracy to commit burglary:


          In terms of conspiracy as        is       charged in this case,      in   order to find the defendant guilty
          of conspiracy      to   commit burglary, you must be                        satisfied the       following three
          elements have been proved beyond a reasonable doubt;                              first,   that the defendant

          agreed with another person or persons that one or more of them would engage in
          conduct for the planning and/or commission of the                          crime of burglary;        second, that

          the defendant    and the other person or persons intended to promote or                             facilitate the

          committing of a burglary              .   .   .   In this case the   Commonwealth          is   alleging that the

          overt act in furtherance of the conspiracy was entering the properly on Convent
          Lane and actually taking the property of the residents there.


Id. at   20 (emphasis added).


           These    specific instructions left the jury              no room    to speculate or       choose between          "theft,


receiving stolen property, or burglary." Although the verdict slip charged only Conspiracy


generally, the Court specified burglary as the object of the conspiracy four times and                                      made no

mention of any other type of conspiracy.

       In support of his contention that Appellant suffered prejudice as a result of trial counsel's


failure to object to the verdict sheet,                 Appellant simply states that he "suffered actual prejudice as


a result of counsel's failure to properly represent him."                      (Amended      Petition at 12).        Simply    stating


that   he suffered prejudice      is   not enough for Appellant to overcome his burden. "Unsupported

                                                                     10
speculation does not establish reasonable probability." Commonwealth v. Charleston, 94 A.3d

1012, 1025 (Pa. Super. 2014).

   Appellant also incorrectly states that "all of this confusion arose because trial counsel did not

seek to clarify the court's ambiguous jury charge and the failure of counsel to clarify the object

of the conspiracy on the verdict sheet." (Amended Petition at 12). For the reasons stated above,

the instructions provided by this court were not ambiguous. Further, trial counsel placed on the

record his concern that the verdict sheet did not contain the objective of the conspiracy.

           MR. RILEY: I don't know if now is the correct time to put something on the record
           about that. I know that the Bills of Information do say criminal conspiracy to commit
           burglary, F 1 The juror's form says criminal conspiracy generally. It does not say any
                        .

           specific objective. I know Your Honor did instruct that the overt act was a commission
           of the burglary, but other than that, I am not so sure Your Honor said in your instructions
           ever criminal conspiracy to commit burglary.

           THE COURT: I did several times.

           MR. RILEY: I just wanted to be clear about that.

           THE COURT: I understand. I am crystal clear in my mind that I did do that.

N.T., 3/14/12 at 115.

   Therefore, Appellant cannot demonstrate that the proceedings would have been different had

trial counsel requested the word "burglary" next to the conspiracy charge on the verdict sheet nor

that counsel was ineffective because he recognized that the verdict sheet did not state the specific

objective of the conspiracy.

   III.      Trial counsel was not effective for failing to request a charge on Conspiracy with
             multiple objectives and for failing to object when the "offense for which he was
             convicted as wrongfully changed by the trial court."

          Appellant next alleges that trial counsel was ineffective for failing to request a jury

charge -in accordance with the appropriate elements of the criminal conspiracy statute with

multiple criminal objectives" and for failing to object "when the offense for which he was


                                                    11
convicted was wrongfully changed by the trial court.- (Amended Petition, at 10) (Supplemental

Petition at 1).

        First, this Court never changed or amended the crimes which Appellant was charged

with. The jury unambiguously found Appellant guilty of conspiracy to commit burglary, theft by

unlawful taking, and receiving stolen property. N.T., 3/14/12 at 107-108. Between the date

Appellant was charged and the date that the jury rendered their verdict, no charges were

amended or otherwise changed.

    Appellant believes that Commonwealth     v.   Neal is analogous to the present case. 418 A.2d

378 (Pa. Super. 1980). In Neal, the defendant was indicted by grand jury pursuant to 18 Pa.C.S.A

Section 3701(a)(1)(iii). Id. at 379. The evidence at trial produced by the Commonwealth would

have supported a verdict under 18 Pa.C.S.A Section 3701(a)(1)(ii), but not the section under

which the grand jury had indicted the defendant. Id. The trial judge sua sponte charged the jury

to match the evidence that was produced at trial and defense counsel unsuccessfully objected. Id.

The Superior Court found that the original and amended indictments charged different offenses

which would require the proof of different elements. Id. at 380. The defendant's sentence was

reversed and the robbery conviction was vacated. Id.

    Here, there is absolutely nothing in the record to support Appellant's contention that this

Court sua sponte changed the crime that he was subsequently convicted of. Charges were

initiated against Appellant by Bills of Information. Of the numerous charges listed therein, the

only inchoate crime was Count 2, conspiracy as a felony in the first degree. Listed on the Bill of

Information as the criminal objective of the conspiracy is burglary. No other crime is listed as the

criminal objective. Unlike Neal, where the judge charged the jury on a different subsection of the

robbery statute, this court unambiguously charged the jury on conspiracy to commit burglary.



                                                   12
Similarly, Appellant's allegation that this Court amended the indictment to conform to the

evidence presented at trial is baseless.

    Similarly, trial counsel was not ineffective for failing to request a charge of conspiracy with

multiple objectives. Appellant was charged only with conspiracy to commit burglary. As

articulated supra, this Court's instructions, the evidence presented at trial, and counsels'

arguments made clear to the jury that they were only supposed to consider whether Appellant

had conspired with another person to commit burglary. Trial counsel was not required to request

a jury instruction concerning criminal conspiracy "with multiple criminal objectives" when it

was clear that the specific objective of the conspiracy was burglary.

    IV.       Trial counsel was not ineffective for failing to move for a directed verdict as to
              the conspiracy charge

          Appellant's next contention is that the evidence presented at trial was insufficient to

support his conspiracy conviction. Appellant's argument seems to be two-fold: (1) that the

evidence was insufficient because there was no testimony about an agreement and (2) that

because the charges against Joseph Kohran were dismissed at the preliminary hearing level,

Appellant could not have been tried and convicted of conspiracy. For both these reasons,

Appellant alleges ineffective assistance because trial counsel failed to move for a directed

verdict. He is incorrect.

          A motion for directed verdict, i.e., a motion for judgment of acquittal, is warranted if "the

prosecution's evidence, and all inferences arising therefrom, considered in the light most

favorable to the prosecution are insufficient to prove beyond a reasonable doubt that the accused

is guilty   of the crimes charged." Commonwealth v. Finley,    383 A.2d 1259, 1260 (Pa. 1978).

When the evidence is sufficient to prove a defendant's guilt, trial counsel cannot be ineffective

for failure to move for a directed verdict. The standard for a directed verdict is identical to a

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determination of sufficiency of the evidence. See Commonwealth v. Hall, 701 A.2d 190, 195 (Pa.

1997), cert denied, 523 U.S. 1082 (1998) (reviewing sufficiency of the evidence is a

determination of whether the evidence, and all reasonable inferences arising therefrom, viewed

in the light most favorable to the verdict winner are sufficient to establish all the elements of the

crime charged).

   A. The dismissal of charges against Joseph Kohran had no hearing on Appellant's
       subsequent prosecution

       Appellant contends that there was insufficient evidence because -there was no co-

conspirator....[because] the charges against Joseph Korhan had been dismissed at the

preliminary hearing." However, simply because Korhan was not tried or there was not a finding

of guilt as to his participation in the conspiracy does not mean that the relief requested by

Appellant is due.

        A co-conspirator does not need to be convicted for the Commonwealth to introduce

evidence at a subsequent trial against the other co-conspirator. In Commonwealth       v.   Phillips, the

defendant was tried by jury and found guilty of robbery, criminal conspiracy to commit robbery,

and aggravated assault. 601 A.2d 816, 819 (Pa. Super. 1992). On appeal, the defendant alleged

that the trial court erred by denying his motion for directed verdict on criminal conspiracy

because his co-conspirator was previously acquitted on the charge of conspiracy. Id. The

Superior Court disagreed with Appellant and held that a prior acquittal of a co-conspirator does

not automatically afford relief to the co-conspirator that has yet to be tried. Id. at 337. Nor does

the prior acquittal of a co-conspirator preclude a finding of guilt against him. Id.

        Although Phillips dealt with a co-conspirator that had been previously acquitted, the

same logic must flow to a case in which a co-conspirator's case is dismissed at the preliminary

hearing stage. An acquittal is a legal finding that the evidence is insufficient to convict.

                                                  14
Commonwealth     v.   Bell, 146 A.3d 755, 764 (Pa. 2016). An acquittal serves as an absolute bar to

any subsequent prosecution for the same offense. Id. The dismissal of charges at a preliminary

hearing lacks finality and is not subject to the protection of double jeopardy. Charges are

dismissed at preliminary hearings for various reasons, only one of which might be insufficiency

of the evidence. If a co-conspirator can be found culpable after his co-conspirator is acquitted

then certainly a co-conspirator can be found culpable after his charges at dismissed at a

preliminary hearing. Therefore, trial counsel cannot be ineffective for failing to move for a

directed verdict based on the fact that the charges against Joseph Kohran were dismissed at the

preliminary hearing level.

   B.   There was sufficient evidence for a jury to find that Appellant conspired to commit
        burglary

        Appellant next alleges that there was "no testimony that [he] entered into an agreement

with anyone" and therefore the evidence was insufficient. (Amended Petition at 11). Appellant's

contention is misguided. The Commonwealth sufficiently proved through circumstantial

evidence that there was an agreement between Appellant and Joseph Kohran to burglarize the

Sharpe residence. Even though Appellant raised a similar sufficiency of the evidence argument

on direct appeal, the PCRA court is still required to determine whether this claim had arguable

merit on collateral appeal. Appellant's claim fails on collateral review for the identical reasons

set forth in Appellant's direct appeal.

        When an issue alleged on PCRA appeal has been previously litigated on direct appeal the

claim may fail under the merit or prejudice prongs of the Pierce -Strickland test. See

Commonwealth v. Collins, 888 A.2d 564, 573 (Pa. 2005). On direct appeal, Appellant argued

that the evidence was insufficient to support the charge of conspiracy to commit burglary. The




                                                   15
Superior Court found no merit to this argument and noted that there was sufficient evidence

presented by the Commonwealth to establish the crime of conspiracy to commit burglary.

       Appellant claims that the "jury found him not guilty of burglary which would indicate

that he did not participate in that crime at all." (Second Amended Petition at 12). This statement

is completely unfounded because the jury was not required to find Appellant guilty of both

conspiracy to commit burglary and burglary. A person commits the crime of conspiracy if, with

the intent of promoting or facilitating its commission, he agrees to aid another person in the

planning or commission of a crime. 18 Pa. C.S.A. Section 903(a)(2). The agreement may be

"inferred from a variety of circumstances." Commonwealth      v.   Perez, 931 A.2d 703, 708 (Pa.

Super. 2007). An agreement to support a conspiracy conviction can be sustained solely through

circumstantial evidence. Id.

       As affirmed by the Superior Court, the circumstantial evidence presented a trial

established a sufficient basis for the jury to conclude that Appellant conspired with Joseph Koran

to burglarize the Sharp residence. In the short amount   of time that the burglary was committed,

an SUV parked at the house, and a passenger alit from the vehicle and appeared to scope out the

residence and signal to another person in the backyard. The SUV then left the location only to

return a few moments later. A few hours later, the vehicle is located several miles away: the

previous driver is on location and Appellant is found in the back seat inspecting the proceeds of

the burglary. The driver's and Appellant's fingerprints were found on the car and the proceeds.

Therefore, there was sufficient evidence to demonstrate that Appellant conspired to commit

burglary. Because there was sufficient evidence presented to demonstrate that Appellant

conspired to commit burglary, trial counsel was not ineffective for failing to move for a directed

verdict on the conspiracy charge.



                                                 16
   V.      Trial counsel was not ineffective for failing to object to the characterization of
           Joseph Kohran as a co-conspirator

   Appellant's next contention regarding trial counsel is that he failed to object to the

prosecutor eliciting testimony from Commonwealth witnesses that portrayed Joseph Kohran as a

co-defendant/co-conspirator." (Amended Petition at 12). Appellant does not expound upon his

claim in any way and fails to explain how the testimony elicited was improper.

   In support of this underdeveloped statement, Appellant cites to various portions of the record.

It should be noted that nearly all   of these portions where the Commonwealth elicited testimony

to demonstrate the relationship between Appellant and Joseph Kohran. The Commonwealth was

required to establish that Appellant conspired with Joseph Kohran to burglarize the Sharpe

residence. In order to prove beyond a reasonable doubt that Appellant committed the crime of

conspiracy to commit burglary, the Commonwealth had the burden to demonstrate that Appellant

participated in the crime with another person. Commonwealth      v.   Campbell, 651 A.2d 1096, 1099

(Pa. 1994). Characterizing Joseph Kohran as Appellant's co-conspirator was not only proper, but

was necessary in order for the Commonwealth to sustain their burden.

    Appellant is correct in his contention that Joseph Kohran was referenced as a co-defendant

during Appellant's jury trial. (N.T. 3/13/12 at 28, 30; N.T. 3/14/12 at 16, 27, 74, 75). However,

even assuming, arguendo, that trial counsel should have objected to the characterization of

Joseph Kohran as a co-defendant, Appellant does not develop his claim any further. He does not

formulate any semblance of an argument to demonstrate by a preponderance of the evidence that

the failure to object means that trial counsel's performance fell below the required standard. Trial

counsel could have failed to object to object to this characterization for a number of reasons.




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   Further, given the plethora of evidence presented there is no reasonable probability that the

outcome of the proceeding would have been different but for counsel's failure to object to Joseph

Kohran being called a co-defendant. Appellant's claim must fail.

   VI.     Trial Counsel was Not Ineffective to Failing to Object to Proper Sentencing
           Procedures

   In his Supplemental Amended PCRA Petition, Appellant alleges that trial counsel failed to

object to this court's sentencing procedures and his failure to object was ineffective assistance of

counsel. Appellant claims that his sentence was made in violation of Pennsylvania Rule of

Criminal Procedure 705 because "the court never stated the date when the sentence would

commence" and "the court never stated whether it would run concurrently or consecutively to a

prior offense- that he was already serving time on.

   On April 25, 2012, Appellant was sentenced to a period of incarceration in the state of seven

and half to 16 years on the conspiracy to commit burglary and no further penalty on the theft by

unlawful taking and receiving stolen property charges. N.T. 4/25/12 at 30-31. At the time that he

was arrested for this incident he was on state parole. N.T. 4/25/12 at 20. It is therefore unclear

what Appellant's ineffective assistance of counsel claim is based on if Appellant was not serving

time on another case at the time that he was sentenced. Further, Appellant cannot demonstrate

that but for trial counsel's failure to object sentencing would have had a different outcome.



    VII.   Trial counsel was not ineffective for failing to object to the admission of Joseph
           Kohran's photograph.

    Similar to Appellant's previous underdeveloped claims, he declares that trial counsel was

ineffective for failing to object to the introduction of Joseph Kohran's "mug shot" and for not

requesting authentication of the photograph in camera. (Amended Petition at 12). Appellant



                                                  18
states broadly that there was "no reasonable basis" but fails to articulate how he suffered

prejudice as a result of trial counsel's failure to object. Appellant makes no claim that the photo

was not authentic nor does explain why its admission was improper.

   During the Commonwealth's case in chief, a photograph of Joseph Kohran was shown to

Detective Antony Krebs and was marked as Exhibit C-19.

         MS. McHALE: Did you see the co-defendant?

         DETECTIVE KREBS: I did.

         MS. McHALE: If the witness can please be shown C-19, please.

         THE COURT CRIER: Previously marked C-19. Showing C-19 to the witness.

         MS. McHALE: Detective, does C-19, the photograph of the codefendant, does that
         accurately reflect what the codefendant looked like the day you saw him on October 7,
         2010?

         DETECTIVE KREBS: Yes, Joseph Korhan.

N.T., 3/14/12 at 16.

       At the conclusion of its case, the Commonwealth moved C-19 into evidence. The picture

of the co-defendant was never shown to the jury. Without more than the two -sentence statement

by Appellant in his Amended PCRA Petition, this Court is left to speculate as to how the

admission of the photograph into evidence was improper and how counsel was ineffective for

failing to object to its admission. Further, there is nothing in the Pennsylvania Rules of Evidence

nor the Pennsylvania Rules of Criminal Procedure that requires an in camera hearing to

determine the authentication of a photograph of an alleged co-conspirator.

    VIII. This Court did not err in failing to hold a PCRA evidentiary hearing.

    Appellant claims that this Court erred in failing to hold a PCRA evidentiary hearing. This

claim, like the others asserted in Appellant's Amended and Supplemental PCRA petitions, is

unfounded and must fail.
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   Under Pennsylvania Rule of Criminal Procedure 907, the court has discretion to dismiss a

PCRA petition without a hearing when "the judge is satisfied from...review that there are no

genuine issues of material fact and that the defendant is not entitled to post -collateral relief and

no purpose would be served by any further proceedings." Pa.R.Crim.Pro. 907(1). It is well

established that `Where is no absolute right to an evidentiary hearing on a PCRA petition, and if

the PCRA court can determine from the record that no genuine issue of material fact exists then a

hearing is not necessary." Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008)

(citing Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008), appeal denied, 956 A.2d

433 (Pa. 2008). A petition is rightly dismissed when "the pleadings are insufficient to state a

claim for post -conviction relief." Commonwealth v. Clark, 961 A.2d 880 (Pa. 2008). As such,

this Court properly determined, based on the assertions contained in Appellant's petitions that

the pleadings were insufficient to state a claim for post -conviction relief.

CONCLUSION

        Given the applicable statutes, testimony, case law, and law of this case, the PCRA

petition was properly dismissed. Accordingly, this Court's decision should be affirmed.



                                                                                      BY THE COURT:
                                                                                  a




                                                                                MICHAEL ERDOS, J.

Date: April 5, 2017




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