J-S73011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA         :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
               v.                        :
                                         :
                                         :
    ALVIN WASHINGTON                     :
                                         :
                     Appellant           :   No. 638 MDA 2017

                 Appeal from the PCRA Order March 30, 2017
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0005006-2013


BEFORE:      OLSON, DUBOW and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                         FILED DECEMBER 21, 2017

        Appellant, Alvin Washington, appeals pro se from the March 30, 2017

order dismissing his first petition filed pursuant to the Post-Conviction Relief

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

        The factual background and procedural history of this case are as

follows. On September 28, 2013, Appellant struck Lisa Ganns (“Ganns”) with

a machete. Ganns suffered a significant knee injury because of this attack.

On January 6, 2014, the Commonwealth charged Appellant via an amended

criminal information with two counts of attempted murder,1 two counts of




1   18 Pa.C.S.A. §§ 901, 2502.



* Retired Senior Judge assigned to the Superior Court
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aggravated assault,2 two counts of simple assault,3 making terroristic threats,4

recklessly endangering another person,5 possessing an instrument of crime,6

and criminal trespassing.7 On January 20, 2015, Appellant pled guilty to one

count of aggravated assault and was immediately sentenced to 9 to 20 years’

imprisonment.      On direct appeal, this Court affirmed the judgment of

sentence.      Commonwealth v. Washington, 131 A.3d 107, 2015 WL

6087392 (Pa. Super. 2015) (unpublished memorandum).

        On November 12, 2015, Appellant filed a pro se PCRA petition. Counsel

was appointed and filed a petition to withdraw as counsel 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). On

September 30, 2016, the PCRA court granted counsel’s petition to withdraw.

On November 2, 2016, Appellant filed a pro se amended PCRA petition. On

March 9, 2017, the PCRA court issued notice of its intent to dismiss the

petition.    See Pa.R.Crim.P. 907.    On March 24, 2017, Appellant filed a




2   18 Pa.C.S.A. §§ 2702(a)(1), 2702(a)(4).

3   18 Pa.C.S.A. §§ 2701(a)(1), 2701(a)(2).

4   18 Pa.C.S.A. § 2706(a)(1).

5   18 Pa.C.S.A. § 2705.

6   18 Pa.C.S.A. § 907(b).

7   18 Pa.C.S.A. § 3503(a)(1)(ii).


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response to the Rule 907 notice.       On March 30, 2017, the PCRA court

dismissed the petition. This timely appeal followed.8

      Appellant presents four issues for our review:9

      1. Was the trial court devoid of subject-matter jurisdiction over
         []Appellant’s criminal proceedings due to the Commonwealth’s
         failure to file a valid bill of information?

      2. Was [Appellant’s] guilty plea knowing[], intelligent[], and
         voluntar[y ] where trial counsel [failed to advise Appellant of
         the jurisdictional defect?]

      3. [Was trial counsel ineffective for failing to raise a claim under
         Apprendi v. New Jersey, 530 U.S. 466 (2000) and its
         progeny?]

      4. [Was PCRA counsel ineffective for failing to raise trial counsel’s
         ineffectiveness in these respects?]

Appellant’s Brief at 2 (complete capitalization omitted).

      When reviewing a trial court’s order denying PCRA relief, our standard

of review is whether the record supports the trial court’s findings and its

conclusions are legally correct. Commonwealth v. Brown, 161 A.3d 960,

964 (Pa. Super. 2017) (citation omitted). In his first issue, Appellant argues

that the trial court lacked subject-matter jurisdiction over his criminal case.




8 On April 17, 2017, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On April 27, 2017, Appellant filed his concise statement.
On June 12, 2017, the PCRA court issued its Rule 1925(a) opinion. All of
Appellant’s issues were included in his concise statement.

9 Although Appellant only lists two issues in the statement of questions
presented section of his brief, one of those issues is actually three issues. For
clarity, we list those three issues separately.


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According to Appellant, the amended information was fatally flawed because

it failed to place him on notice of the conduct for which he was being charged.

      In order for a trial court to exercise subject-matter jurisdiction over a

criminal case, it must be competent to hear the case and the defendant must

be put on notice of the crimes charged. See Commonwealth v. Jones, 929

A.2d 205, 210 (Pa. 2007) (citation omitted).            In this case, both of those

requirements were satisfied. First, the courts of common pleas have statewide

jurisdiction   to   hear   criminal   cases   arising   under   the   Crimes   Code.

Commonwealth v. Bethea, 828 A.2d 1066, 1074 (Pa. 2003). Hence, the

Court of Common Pleas of Berks County was competent to hear this case as

it arose under the Crimes Code.

      Second, in order to satisfy the notice requirement, the Commonwealth

is only required to “provide a formal and specific accusation of the” charges.

Jones, 929 A.2d at 212. Failure to include the specific acts constituting an

offense is a procedural requirement that does not divest a trial court of

subject-matter jurisdiction.     See id. & n.9.         The Commonwealth is only

required to specify the criminal charge. See id. In this case, the amended

criminal information specifically charged Appellant with aggravated assault.

Accordingly, the trial court properly exercised subject-matter jurisdiction over

Appellant’s criminal case.

      In his second issue, Appellant argues that trial counsel was ineffective

for failing to advise him of the jurisdictional defect. “[T]he Sixth Amendment



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to the United States Constitution and Article I, [Section] 9 of the Pennsylvania

Constitution, [entitle a defendant] to effective counsel. This right is violated

where counsel’s performance so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.”

Commonwealth v. Simpson, 112 A.3d 1194, 1197 (Pa. 2015) (internal

quotation marks and citation omitted).       “Counsel is presumed to have been

effective.” Commonwealth v. Andrews, 158 A.3d 1260, 1263 (Pa. Super.

2017). To prevail on an ineffective assistance of counsel claim, a “petitioner

must plead and prove that: (1) the underlying legal claim is of arguable merit;

(2) counsel’s action or inaction lacked any objectively reasonable basis

designed to effectuate his [or her] client’s interest; and (3) prejudice, to the

effect that there was a reasonable probability of a different outcome if not for

counsel’s error.”     Commonwealth v. Grove, 170 A.3d 1127, 1138 (Pa.

Super. 2017) (citation omitted). “Failure to satisfy any prong of the test will

result in rejection of the [petitioner’s] ineffective assistance of counsel claim.”

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

(citation omitted).

      As noted above, in this case the trial court had subject-matter

jurisdiction over Appellant’s case.    Therefore, Appellant’s underlying claim

lacks arguable merit. Accordingly, Appellant’s trial counsel was not ineffective

for failing to advise Appellant about the alleged jurisdictional defect of the

amended criminal information.



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      In his third issue, Appellant argues that trial counsel was ineffective for

failing to raise an Apprendi claim. Specifically, Appellant notes that the trial

court applied the deadly weapons enhancement when calculating his advisory

sentencing guidelines.     He contends that counsel was ineffective for not

advising him that he had a right to have a jury determine whether the deadly

weapons enhancement was applicable in this case and that counsel’s failure

to do so constituted ineffective assistance.

      This argument fails because this Court has held that Apprendi and its

progeny do not apply to the deadly weapons enhancement. Commonwealth

v. Buterbaugh, 91 A.3d 1247, 1270 n.10 (Pa. Super. 2014) (en banc), appeal

denied, 104 A.3d 1 (Pa. 2014); Commonwealth v. Lowery, 784 A.2d 795,

800 (Pa. Super. 2001), appeal denied, 796 A.2d 980 (Pa. 2002). Accordingly,

Appellant’s underlying claim lacks arguable merit and trial counsel was not

ineffective for failing to advise him of his Apprendi rights.

      Finally, Appellant argues that PCRA counsel was ineffective for failing to

raise trial counsel’s ineffectiveness with respect to the subject-matter

jurisdiction claim and the Apprendi claim. As noted above, trial counsel was

not ineffective in these respects.        Accordingly, PCRA counsel was not

ineffective for failing to raise trial counsel’s ineffectiveness in these respects.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/21/2017




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