J.S13036/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
SHONTEE D. LATHAM,                          :
                                            :
                          Appellant         :
                                            :     No. 1234 WDA 2015

                    Appeal from the PCRA Order June 12, 2015
       in the Court of Common Pleas of Lawrence County Criminal Division
                        at No(s): CP-37-CR-0001332-2007

BEFORE: LAZARUS, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED MARCH 29, 2016

        Appellant, Shontee D. Latham, appeals from the order entered in the

Lawrence County Court of Common Pleas denying his first Post Conviction

Relief Act1 (“PCRA”) petition after a hearing.     Appellant contends his trial

counsel was ineffective by not informing him that the Commonwealth

amended the information prior to trial. We affirm.

        We adopt the facts and procedural history set forth in the PCRA court’s

opinion.    PCRA Ct. Op., 6/12/15, at 1-4.      The affidavit of probable cause

stated Appellant used a firearm to rob the victims. Aff. of Probable Cause,

11/26/07, at 4. We quote the original information as follows:

           Count: 1 Robbery-Take Property Fr Other/Force – (F3)

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
J.S13036/16



         Offense Date: 11/14/2007          18 §3701 §§A1V

         In the course of committing a theft, inflicted serious bodily
         injury upon another; and/or threatened another with, or
         intentionally put another in fear of, immediate serious
         bodily injury; and/or committed or threatened to
         immediately to commit a felony of the first or second
         degree; and/or inflicted bodily injury upon another, or
         threatened another with or intentionally put another in fear
         of immediate serious bodily injury; and/or physically took
         or removed property from the person of another by force
         however slight, namely [victims].

Information, 12/11/07, at 1.

      At Appellant’s January 8, 2008 arraignment, the court charged

Appellant with third-degree robbery, and essentially reiterated the above

information.    N.T. Arraignment Hr’g, 1/8/08, at 2-3.      Appellant filed an

omnibus motion to, inter alia, suppress evidence.       At the June 5, 2008

hearing on Appellant’s motion, one of the victims identified Appellant as

carrying two firearms during the robbery. N.T. Suppression Hr’g, 6/5/08, at

6.

      At some point prior to October 31, 2008, the Commonwealth made a

plea offer to Appellant: plead guilty to 18 Pa.C.S. § 3701(a)(ii) robbery, a

first-degree felony, in exchange for a sentence of four to eight years’

imprisonment.     N.T. PCRA Hr’g, 1/29/15, at 16.         Appellant’s counsel

presented the plea offer to Appellant, who rejected it on the basis that he

was not the culprit. Id. at 15.




                                     -2-
J.S13036/16

     On     October   31,   2008,    the   Commonwealth    filed   an   amended

information:

          The actor did intentionally, knowingly or recklessly in the
          course of committing theft, threaten or intentionally put in
          fear of immediately serious bodily injury [the victims] in
          that he did, namely during an armed ronbbery [sic] the
          actor went inside the Dollar General store with a loaded
          gun, pointed the gun at the victim’s [sic] who are
          employees at the said store and demanded money, all of
          which constitutes robbery, a felony of the first degree, in
          violation of Section 3701(a)(1)(ii) of the Crimes Code [18
          Pa.C.S.A. 3701(a)(1)(ii)].

First Am. Information, 10/31/08, at 1 (some capitalization omitted and

second alteration in original).      Trial counsel testified she did not recall

whether she discussed the amended information with Appellant.

     A jury trial commenced on November 12, 2008. Appellant’s defense

was that he was not the culprit. See, e.g., N.T. PCRA Hr’g, 1/29/15, at 13;

N.T. Trial, 11/12/08, at 123-25. Appellant was found guilty, and this Court

affirmed on direct appeal.          The Pennsylvania Supreme Court denied

Appellant’s petition for allowance of appeal on November 24, 2010.

     Appellant, pro se, timely filed his first PCRA petition on September 1,

2011. Counsel was appointed, who filed an amended petition on September

7, 2012.    After an evidentiary hearing at which Appellant’s trial counsel,

among others, testified, the PCRA court denied Appellant’s petition on June

12, 2015.      Appellant timely appealed on Monday, July 13, 2015.        See 1

Pa.C.S. § 1908.




                                       -3-
J.S13036/16

      On July 17, 2015, the court ordered Appellant to comply with Pa.R.A.P.

1925(b) within twenty-one days. The court served the order on Appellant’s

counsel via fax on July 17, 2015, at 10:36 a.m.      Appellant filed his Rule

1925(b) statement on Tuesday, August 11, 2015, at 2:12 p.m., four days

after the twenty-one day deadline lapsed.      The Rule 1925(b) statement

includes a certificate of service averring that it was mailed via U.S. mail on

August 5, 2015, to the PCRA judge and the district attorney.      The docket

also includes an entry stating counsel faxed his Rule 1925(b) statement to

the court on August 5, 2015.       The certified record, however, does not

include that fax or any “United States Postal Service Form 3817, Certificate

of Mailing, or other similar United States Postal Service form,” as referenced

in Pa.R.A.P. 1925(b)(1). Also on August 11, 2015, at 2:12 p.m., the court

filed an order indicating it reviewed Appellant’s Rule 1925(b) statement and

relied on its prior opinions as satisfying the requirements of Rule 1925(a).

Assuming that Appellant filed his Rule 1925(b) statement late, we decline to

find waiver; we additionally note the court indicated it reviewed the Rule

1925(b) statement. See Pa.R.A.P. 1925(c)(3); Commonwealth v. Burton,

973 A.2d 428, 432-33 (Pa. Super. 2009) (en banc) (holding untimely filing

of Rule 1925(b) statement by counsel is per se ineffective assistance of

counsel). The PCRA court’s Rule 1925(a) decision adopted its prior June 12,

2015 opinion.

      Appellant raises the following issue:



                                     -4-
J.S13036/16

         Whether Appellant is entitled to post-conviction collateral
         relief where trial and post-trial counsel were ineffective in
         failing to object to the unlawful amendment of the
         information at the lower court proceedings, and that
         ineffectiveness in the truth-determining process was such
         that no reliable adjudication of guilt or innocence could
         have taken place?

Appellant’s Brief at 2.

      Appellant argues that if he was informed of the amended information,

“he would have approached the case differently.” Id. at 5. He contends the

amendment changed the charges of robbery and conspiracy as third-degree

felonies to first-degree felonies. Appellant insists he was not aware of the

amended information until the day of sentencing.        He submits that the

district attorney never moved the court for permission to amend the

information, the court never granted permission, and he was never

arraigned on the amended charges. Appellant maintains that trial counsel’s

failure to object to the amended information or notify him of the change

affected the outcome of the case. We hold Appellant is due no relief.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v. Abu-

Jamal, 941 A.2d 1263, 1267 (Pa. 2008) (citation omitted).

         [C]ounsel is presumed to have provided effective
         representation unless the PCRA petitioner pleads and
         proves that: (1) the underlying claim is of arguable merit;
         (2) counsel had no reasonable basis for his or her conduct;
         and (3) Appellant was prejudiced by counsel’s action or
         omission. To demonstrate prejudice, an appellant must


                                     -5-
J.S13036/16

         prove that a reasonable probability of acquittal existed but
         for the action or omission of trial counsel. A claim of
         ineffective assistance of counsel will fail if the petitioner
         does not meet any of the three prongs. Further, a PCRA
         petitioner must exhibit a concerted effort to develop his
         ineffectiveness claim and may not rely on boilerplate
         allegations of ineffectiveness.

Commonwealth v. Perry,            959   A.2d   932,   936   (Pa.   Super.   2008)

(punctuation marks and citations omitted).        We can affirm on any basis.

Commonwealth v. Clouser, 998 A.2d 656, 661 n.3 (Pa. Super. 2010).

      With respect to amending the information, we are guided by the

following:

         Rule [564] of the Pennsylvania Rules of Criminal Procedure
         provides:

             The court may allow 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. Upon amendment[,]
             the court may grant such postponement of trial or
             other relief as is necessary in the interests of justice.

         Pa.R.Crim.P. [564].

             The purpose of Rule [564] is to ensure that a defendant
         is fully apprised of the charges, and to avoid prejudice by
         prohibiting the last minute addition of alleged criminal acts
         of which the defendant is uninformed. In reaching this
         goal, this court has held:

             The courts of this Commonwealth employ the test of
             whether the crimes specified in the original
             indictment or information involve the same basic
             elements and evolved out of the same factual
             situation as the crimes specified in the amended
             indictment or information. If so, then the defendant


                                        -6-
J.S13036/16

            is deemed to have been placed on notice regarding
            his alleged criminal conduct. If, however, the
            amended provision alleges a different set of events,
            or the elements or defenses to the amended crime
            are materially different from the elements or
            defenses to the crime originally charged, such that
            the defendant would be prejudiced by the change,
            then the amendment is not permitted.

Commonwealth v. Davalos, 779 A.2d 1190, 1194 (Pa. Super. 2001)

(some citations omitted).

            Since the purpose of the information is to apprise the
         defendant of the charges against him so that he may have
         a fair opportunity to prepare a defense, our Supreme Court
         has stated that following an amendment, relief is
         warranted only when the variance between the original
         and the new charges prejudices an appellant by, for
         example, rendering defenses which might have been
         raised against the original charges ineffective with respect
         to the substituted charges. Factors that we must consider
         in determining whether a defendant was prejudiced by an
         amendment include: (1) whether the amendment changes
         the factual scenario supporting the charges; (2) whether
         the amendment adds new facts previously unknown to the
         defendant; (3) whether the entire factual scenario was
         developed during a preliminary hearing; (4) whether the
         description of the charges changed with the amendment;
         (5) whether a change in defense strategy was necessitated
         by the amendment; and (6) whether the timing of the
         Commonwealth’s request for amendment allowed for
         ample notice and preparation.

Commonwealth v. Sinclair, 897 A.2d 1218, 1223 (Pa. Super. 2006)

(citations omitted).

      To the extent the amended information charges an offense “carrying a

greater potential penalty and whose elements are theoretically different,”

our courts nonetheless apply Rule 564



                                    -7-
J.S13036/16

           with an eye toward its underlying purposes and with a
           commitment to do justice rather than be bound by a literal
           or narrow reading of procedural rules. Therefore, this
           court had stressed that “we look more to substantial
           justice than to technicalities” when reviewing the validity
           of an amended information.

Commonwealth v. Grekis, 601 A.2d 1284, 1288-89 (Pa. Super. 1992)

(footnote and citation omitted).

      In Commonwealth v. Brown, 727 A.2d 541 (Pa. 1999), our

Supreme Court examined whether a defendant suffered prejudice when the

original information charged rape and involuntary deviate sexual intercourse

(“IDSI”)    by    forcible   compulsion   and   the   amended   information—filed

immediately prior to trial—charged rape and IDSI with an unconscious

person. Id. at 542. The Brown Court initially concluded that the amended

information introduced new offenses because the new charges of rape and

IDSI with an unconscious person did not require proof of force by the

defendant.       Id. at 544.   Therefore, our Supreme Court held the amended

information violated Rule 564. Id.

      Our Supreme Court next examined whether the violation of Rule 564

prejudiced the defendant

           by, for example, rendering defenses which might have
           been raised against the original charges ineffective with
           respect to the substituted charges. At the outset of this
           analysis, we note that, based on the original charges, [the
           defendant] had every reason to expect that the
           Commonwealth would be attempting to establish that the
           victim was conscious during the sexual encounter. It
           would be virtually impossible for the Commonwealth to
           meet its burden of establishing that [the defendant] used


                                          -8-
J.S13036/16

        physical force, a threat of physical force, or psychological
        coercion against the victim if the Commonwealth did not
        first establish that the victim was conscious. Assuming the
        Commonwealth could establish that the victim was
        conscious, [the defendant’s] primary line of defense would
        have been that she consented to the encounter. When the
        Commonwealth shifted the focus of its case to proving that
        the victim was unconscious, the Commonwealth vitiated
        [the defendant’s] primary line of defense, since consent is
        not a defense to the charges of Rape and/or IDSI with an
        unconscious person. Therefore, by varying the information
        at the eleventh hour, the Commonwealth rendered [the
        defendant’s] primary defense a nullity.

Id. (citations omitted).   The Brown Court thus reversed the defendant’s

convictions of rape and IDSI of an unconscious person. Id. at 545.

     The relevant subsections of the robbery statute follow:

        (a) Offense defined.—

           (1) A person is guilty of robbery if, in the course of
           committing a theft, he:

                                 *    *    *

              (ii) threatens another with or intentionally puts him
              in fear of immediate serious bodily injury;

                                 *    *    *

              (v) physically takes or removes property from the
              person of another by force however slight; . . . .

18 Pa.C.S. § 3701.

     Assuming, without holding, that subsection (ii) robbery carries a

greater penalty and requires proof different from subsection (v) robbery,

see Grekis, 601 A.2d at 1288-89, and that counsel failed to apprise

Appellant of the amended information, we ascertain whether Appellant


                                     -9-
J.S13036/16

suffered prejudice. See Brown, 727 A.2d at 544. Initially, the crimes in

Appellant’s original and amended information derive from the same facts.

See Davalos, 779 A.2d at 1194. Appellant, moreover, has been aware of

his alleged use of a firearm since the inception of this case.     See Aff. of

Probable Cause at 4; N.T. Suppression Hr’g at 6. Unlike the defendant in

Brown, the amended information did not prompt Appellant to change his

defense, as his sole defense was that he was not the culprit, which, if

successful, would have exculpated him on both the original and substituted

charges.   See, e.g., N.T. Trial at 123-25; cf. Brown, 727 A.2d at 544;

Sinclair, 897 A.2d at 1223.       Also unlike Brown, the Commonwealth’s

request for amendment occurred twelve days prior to trial, which provided

sufficient pretrial notice and preparation.   Cf. Brown, 727 A.2d at 543;

Sinclair, 897 A.2d at 1223.     Finally, Appellant, prior to trial, rejected an

offer to plead guilty to robbery, graded as a first-degree felony, which belies

his protestation that he was unaware of the first-degree grading.         See

generally Sinclair, 897 A.2d at 1223. After careful consideration of all the

Sinclair factors, and recognizing our commitment to do justice, we discern

no basis for relief assuming counsel erred by not objecting to the amended

information. See Sinclair, 897 A.2d at 1223; Grekis, 601 A.2d at 1288-89.

Similarly, assuming counsel failed to apprise Appellant of the amended

information, Appellant failed to establish prejudice based on the foregoing.

See Sinclair, 897 A.2d at 1223; Grekis, 601 A.2d at 1288-89.               The



                                    - 10 -
J.S13036/16

underlying claim lacks arguable merit and thus we affirm the PCRA court,

albeit on other grounds.   See Clouser, 998 A.2d at 661 n.3; Perry, 959

A.2d at 936.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/29/2016




                                  - 11 -
                                                                                                                      Circulated 03/03/2016 02:28 PM




                                   COMMON\<!E.ALTH OF PENNSYLVANIA                             IN        THE   COURT OF COMMON PLEAS
                                                   vs.                                         LAWRENCE COUNTY,           PENNSYLVANIA
                                                                                                                                   !"'\

                                             SHONTEE LATHAM                                    NO. 1332 OF 2007, CR.Jl~!,(
                                                                                                                                           ,l

                                                                                               OTN:
                                                               ORDER OF COURT
                                        AND NO~J, this I)     pday o;- J un~OlS,                                for the reasons set
                                  forth i11 the accompanying Opini6n of even date herewith                                     1          it is
                                  ORDERED, ADJUDGED and DECREED that Defendant's Motion for Post-
                                  conviction collateral Relief is DENIED in its entirety.
                                        The Defendant is advised that he has the right of appeal

                                  from this decision and any appeal must be filed within 30 days
                                  of this date or the right to file wil I be lost.                                     The Defendant
                                  is a 1 so advi sed that he has the r i ght to counse 1 in fi 1 i ng such
                                  appeal and if he is financially unable t0 employ counsel,
                                  counse l wi 11 be aopoi nt ed to rep resent                              the Defendant at no cost
                                  to h: m.
                                                                                         BY THE           COURT:



                                                                                     )1~~&
                                                                                     nonri nick Motto, Pd.
                                  med




           '.)3HD
       JUDIC!Al_
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                                 , COMMONWEALTH OF PENNSYLVANIA             IN THE COURT OF COMMON PLEAS
                                                vs.                            LAWRENCE COUNTY, PENNSYLVANIA
                                          SHONTEE LATHAM                       NO. 1332 OF 2007, CR.
                                                                               OTN:               K662932-4
                                                             APPEARANCES
                                  For the co~nonwealth:                             Jonathan R. Miller, Esquire
                                                                                    Assistant District Attorney
                                                                                    430 court street
                                                                                    New castle, PA 16101
                                  For the Defendant:                                Ross T. smith, Esquire
                                                                                    Huntington Bank Building
                                                                                    26 Market st., suite 610
                                                                                    Youngstown, OH 44503
                                                              OPINION
                                  MOTTO, P.J.                                                                 June 12, 2015


                                       Before the court for disposition is the Defendant's Amended
                                  Petition for Post-conviction collateral Relief brought pursuant
                                  to the Post-Conviction Collateral Relief Act, 42 Pa.C.S.A. §9541
                                  et.seq., ("PCRA").   In this amended petition Defendant asserts
                        I
                             i    that he was denied effective assistance of counsel where prior
                                  trial and post-trial counsel failed to raise the issue of police
                        I.
                        11        not having probable cause to stop Defendant's vehicle or arrest
                                  Defendant; failed to present evidence during the trial that when
                                  the police arrived at the Dollar General Store the robbery was
                                  still in progress; failed to suppress the identification
                             , testimony of witness Ashley Kahne; and failed to object to the
                                 commonwealth amending the information prior to trial.                                The sole
        53RD                     issue before the court for is whethef both trial counsel and
     JUDICIAL
     DISTRICT
                                 post-trial counsel were in~ifective                   it1       failing to object to the
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                                           commonwealth amending the information prior to trial.            The court
                                           will deny Defendant s
                                                               1    Amended Petition for Post-Conviction
                                           collateral Relief because the court finds the issue is totally
                                     . devoid of merit and trial counsel and post-trial counsel cannot
                                     !
                                     II', therefore be held to have been ineffective for failure to raise
                                           such issue.
                                                Following a Jury trial, Defendant was found guilty of and
                                     11
                                     111
                                           sentenced on charges of Robbery, a violation of §3702(a)(l)(ii)
                                         . of the crimes code, conspiracy to commit Robbery, a violation of
                                           §903 of the crimes code and two counts of Recklessly Endangering
                                           Another Person, a violation of §2705 of the crimes code.
                                           Defendant was sentenced on the above charges to an aggregate
                                           term of imprisonment of not less than 9 years nor more than 18
                                           years in a state correctional institution.        Following
                                 ! sentencing,           and with substitute counsel, Defendant timely filed
                                 ,
                                 I

                                           a Motion for Post-Sentence Relief in the form of a Motion ,n
                                           Arrest of Judgment, Motion for Judgment of Acquittal and a
                                           Motion for a New Trial in which he presented eighteen issues of
                                           alleged error, many of which involved allegations of ineffective
                                           assistance of counsel.    The ineffective assistance claims were

                             11 addressed by this court on Defendant's Motion for a New Trial.
                                The supreme Court of Pennsylvania has held that generally ''a
                                           practitioner should wait to raise claims of ineffective
                                           assistance of trial counsel until collateral review."
                                           commonwealth v. Grant, 813 A.2d 726. 738 (Pa.2002); however, 1n
        53F<P                              commonwealth v. Watson, 835 A.2d 786 (Pa.super. 2003), the
     JUDICIAL
     DISTRICT
                                           Superior court held that on a direct apre~18t1G1R1j_neffective

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 P~NNSYLVAN!A                                                                     20l5 JUr1 l 2 P I: 4 Lt
                                    !Ii


                                    i
                                    I assistance of counsel claim, where the issues were presented to
                                            and addressed by the trial court, the appellate court will apply
                                            the same standard used to review ineffective assistance of
                                            counsel claims under the Post-Conviction Relief Act (PCRA).
                                            Here, following a hearing on Defendant's Post-Trial Motions with
                                            new counsel in which pre-trial and trial counsel testified, the
                                            court issued an order and opinion dated May 12, 2009, in which
                                            this court analyzed the record and denied all of Defendant's
                                            Motions for Post-sentence Relief and all supplements thereto.
                                            The Defendant appealed.    The Pennsylvania superior court
                                            affirmed the decision of this court by Memorandum opinion dated
                                'I May 21, 2010.
                                        I        on September 6, 2011 Defendant filed a Motion for Post-
                                        I conviction Collateral Relief, resulting in appointment of new

                                I           counsel to represent the Defendant.           court appointed counsel
                                I filed an Amended Petition for Post-Conviction collateral Relief
                                1,

                                I!'
                                            on September 7, 2012 raising fours claims of ineffective
                                            assistance of counsel.    The amended petition raised the
                                            identical claims of ineffectiveness of prior counsel for failing
                                            to raise the issue of police not having probable cause to stop
                                            Defendant's vehicle or arrest Defendant, failing to present
                                            evidence during the trial that when the police arrived at the
                                            Dollar General Store the robbery was still in progress, and
                                            fa~ling to suppress the identification testimony of witness
                                            Ashley Kahne as well as the additional issue of ineffectiveness
              53RD                          for failing to object to the commonwealth amending the
          JUDfCIAL
          DfSTRICT                          information prior to trial.   The commonwealth moved to dismiss
                                                                                .
                                                                                 '-   ' '.- '1 I () ["' i   G   ! U 11. j
                                                                                      ., , . i.• / <...,I\ I .J i r1 i v r ,


I   l'"<WR'E:NCE     COUNT'\'
     PENNSYLVANIA
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                                                                                    ?rW ANO CLERK
                                   the amended petition on the basis that all of the Defendant's
                                   claims have been previously litigated.
                                         Post conviction review is not available as to issues which
                                   had been previously litigated on direct review.                    commonwealth v.
                              [,
                                   Hutchins, 760 A.2d 50 (Pa.super. 2000).                A petitioner is not
                                   entitled to post-conviction relief on an issue that was finally
                              I!   litigated in direct appeal. commonwealth v. McGriff, 432
                              II   Pa.super. 467, 638 A.2d 1032 (1994).               In commonwealth v. Eaddy,
                                   419 Pa.super. 48, 614 A.2d 1203 (1992), app. Den. 534 Pa. 636,
                                   626 A.2d 1155, the superior court held that the Defendant was
                              11   not eligible for relief under the PCRA on the issue of the
                                   sufficiency of evidence to support an aggravated assault
                                   conviction where the issue had previously been litigated in the
                                   superior court, which is the highest appellate court in which
                                   the defendant has review as a matter of right.                    The burden of
                          1
                          I,       proof is on the defendant to show that the issues raised in his
                                   PCRA petition have not been previously 1itigated. commonwealth
                                   ~.Ragan, 560 Pa. 106, 743 A.2d 390 (1999).
                          I
                          Ii            By order dated April 30, 2014, this court granted
                                   commonwealth's motion to dismiss all issues except counsel's
                          I        failure to object to the commonwealth amending the Information
                          i
                          I
                                   prior to trial because the issues were previously litigated on
                                   Defendant's Motion for a Post-sentence Relief and subsequent
                                   appeal to the superior court, and cannot be re-litigated as part
                                   of the Defendant's post--convi cti on proceeding.                 The sole
        53HO                       remaining issue of whether Defendant is entitled to post-conviction
      JUDICIAL
      Dl5TR!CT                     collateral relief because trial.and post-trial counsel were
                                                                     :~· : . Ff)/ 0 r~ I G ! H 1\ L
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                                 ineffective in failing to object to the commonwealth amending
                                 the information prior to trial must be denied because the claim
                                 is without merit.
                                      In order to be eligible for relief, Defendant must prove
                                 that the conviction resulted from the ineffective assistance of
                                 counsel, which in the circumstances of the particular case, so
                             I
                          11     undermined the truth-determining process that no reliable
                          !'

                                 adjudication of guilt or innocence could have taken place. 42
                                 Pa.C.S.A. §9543(a)(2)(ii).      The burden of proof lies with the
                                 Defendant to establish by a preponderance of the evidence a
                                 basis for relief under the Post-conviction Relief Act, 42
                                 Pa.C.S.A. §9541, et.seq. commonwealth v. Rowe, 411 Pa.super.
                                 363, 601 A.2d 833 (1992).     There is a presumption that counsel
                                 has acted effectively. commonwealth v. Miller, 494 Pa. 229, 431
                                 A.2d 233 (1981).     In order to show ineffective assistance of
                                 counsel which has so undermined the truth determining process
                                 that no reliable adjudication of guilt or innocence could have
                                 taken place. a post-conviction petition must show: (1) that the
                                 claim is of arguable merit; (2) that counsel had no reasonable
                                 strategic basis    for his action or inaction; and (3) that, but
                                 for the errors and omissions of counsel, there is reasonable
                                 probability that the outcome of the proceedings would have been
                                 different. commonwealth v~ Rivers, 567 Pa. 239, 786 A.2d 923
                                 (2001).
                                      Defendant argues that trial and post-trial counsel were
         siRo
                                 ineffective in failing to object to amending the information
      .JUDICIAL
      DISTRICT                   prior to trial.     More specifically, Defendant argues that he was
                                                                     ,-- ! : _ f-~ 0 / 0 Rf G l 1-J /,_I_
· AWF?ENCE       COUNTY
   PENN~..iYl.V.AN~A                                               2~15 JUN i 2 P I: 4 ~

                                                                     !\[L[t1 l. MDHGt-d,
                                                                      F r~O t"'NO CL Ef\K
                                  not notified about the amended information until the time of
                                  sentencing.      Defendant contends that he suffered prejudice from
                                  the amendment and had he been advised that the information was
                                  amended he would have approached the case differently.         on
                                  December 11, 2007 the original information was filed charging
                                  Defendant with Robbery, 18 Pa.c.s. §3701(a)(l)(v), criminal
                                  conspiracy, 18 Pa.C.S, §903(a)(l), and three counts of
                                  Recklessly Endangering Another Person, 18 Pa.c.s. §2705. on
                                  January 23, 2008 Defendant's counsel filed an omnibus Pre-trial
                                  motion and Petition for Habeas corpus.         After a hearing, the
                                  court denied Defendant's Motion for omnibus Pre-trial Relief and
                                  Petition for Habeas corpus by opinion and order dated September
                                  25, 2008.      on October 31, 2008 the commonwealth filed an amended
                                  information with the clerk of courts.         The amended information
                                  changed the original charge of Robbery, 18 Pa.c.s.
                             r    §3701(a)(l)(v), a felony of the third degree, to Robbery, 18
                             fJ
                             11   Pa.c.s. §3701 (a)(l)(ii), a felony of the first degree, and also
                             i
                                  changed the charge of criminal conspiracy, 18 Pa.c.s.
                                  §903(a)(l), from a felony of the third degree to a felony of the
                             i' first degree.       Defendant was found guilty on all charges after a
                                  trial by jury on November 12, 2008.        Defendant contends that he
                                  was not made aware of the amended information until the
                         I
                         11       sentencing hearing on January 7, 2009.         Defendant argues that
                                  the commonwealth never motioned the court at any time for
                                  permission to amend the information nor is there an order of
        53HD
                                  court granting the commonwealth permission to amend the
    JUDICIAL
    DISTRICT                      information.

AV/RENCE.      COUNTY!
 Pf-,NNSYl   .. VANIA    I                                               2015 JUH I 2 P I: IH~
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                         I
                                 these charges on the amended 'i nformat t on was a direct result of
                                 trial counsel's ineffectiveness.       More specifically, Defendant
                                 argues that prior trial and post-trial counsel failed to object
                                 to the amended information and failed to notify Defendant that
                                 the information was amended.     Defendant contends that prior
                                 counsel's ineffectiveness in failing to object to or notify the
                                 Defendant of the amended information would have affected the
                                 outcome of the case because Defendant would have made an
                                 informed decision about whether to accept a negotiated plea
                                 agreement or proceed to trial.     Therefore, Defendant is entitled
                                 to post-conviction collateral relief.
                                      Pennsylvania Rule of criminal Procedure 560 provides:
                                 Rule 560. Information: Filing, contents      1       Function.
                                   (A)   After the defendant has been held for court following a
                                         preliminary hearing or an ind·ictment, the attorney for
                            I            the commonwealth shall proceed by preparing an
                                         information and filing it with the court of common pleas.
                            1.

                                   (C)   The information shall contain the official or customary
                                         citation of the statue and section thereof, or other
                                         provision of 1 aw that the defendant is a.11 eged therein to
                                         have violated; but the omission of or error in such
                                         citation shall not affect the validity or sufficiency of
                                         the information.

                                 According to the Pennsylvania Rule of criminal Procedure 564,
                                 after the Information is issued:
                                      The court may allow 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. Upon amendment, the court may
          53HD
                                 grant such postponement of trial or other relief as is necessary
        JUDIC!A     L            1n the interest of justice.
        DISTRICT

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AV/F~    EN CE     COUNTY
 PENNSYLVANlA
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                                                                          ZOIS JUN \ 2 P I: 4 u
                                    i,
                                              The purpose of the above Rule is to ensure that a defendant
                                    I    is fully apprised of the charges, and to avoid prejudice by
                                         prohibiting the last minute addition of alleged criminal acts of
                                   I     which the defendant is un-informed. commonwealth v. Davalos, 779
                                   I
                                   !i    A.2d 1190, 1194 (Pa.super. 2001).            The test to be applied is:
                                              whether the crimes specified in the original indictment or
                                              information involve the same basic elements and evolved out
                                              of the same factual situation as the crimes specified in
                                              the amended indictment or information.  If so, the
                                              defendant is deemed to have been placed on notice regarding
                                              his alleged criminal conduct. If, however, the amended
                                              provision alleges a different set of events, or the
                                              elements or defenses to the amended crime are materially
                                              different from the elements or defenses to the crime
                                              originally charged, such that the defendant would be
                                              prejudiced by the change, then the amendment is not
                                              permitted.

                                         Id. (citing commonwealth v. Stanley, 265 Pa.super.                    194, 401 A.2d
                                         1166, 1175 (1979)).

                               !              In reviewing a grant to amend an information, this court
                               '1
                                         will look to determine whether the defendant is fully apprised
                                         of the charges against him.          where the crimes specified in the
                                         original information involve the same basic elements and arose
                                         out of the same factual situation as the crimes specified in the
                                         amended information, the defendant is deemed to have been placed
                                         on notice regarding his alleged criminal conduct and no
                                         prejudice to defendant results. commonwealth v. Stanley, supra.
                                         Further, if there is no showing of prejudice, amendment of an
                                         information to add an additional charge is proper even on the
                                         day of trial. commonwealth v. Womack, 307 Pa.super. 396, 453
             53RD                        A.2d 642 (1982).   Finally, the mere possibility amendment of an
         JUDICIAL
         DISTR      !CT
                                         information may resu1   t   ;   n a more ·se~-~rtc~i~1G~fhrue to the

: t\V..JRENCt;,-    COUN'T'Y
    PENNSYLVANIA                                                                     2015 JUN 12   P I: ltLt
                                                                                 8
                           f
                           !'
                                addition of charges is not, of i t se l f, prejudice. commonwealth
                                v. Lawton, 272 Pa.Super. 40, 414 A.2d 658 (1979); commonwealth
                                v. Jones, 319 Pa.super. 570, 466 A.2d 691 (1983).
                                      In the present case, neither additional charges nor a
                                different set of events were added to the information.                     Rather,
                                the offenses set forth in the amendments involved the same basic
                                elements and the same factual situations as specified in the
                                original information. The original information charged the
                                defendant with Robbery, 18 Pa.c.s. §3701(a)(l)(v),                  physically
                                takes or removes property from that person of another by force
                                however slight, a felony of the third degree.                  The amended
                                information changed the Robbery charge to subsection
                                3701(a)(l)(ii), threatens another with or intentionally puts him
                                in fear of immediate serious bodily injury, and changed the
                                grading for a third degree felony to a felony of the first
                                degree.   As a result of the grading change on the Robbery
                                charge, the amended information changed the grading of the
                                criminal conspiracy charge from a third degree felony to a
                                felony of the first degree.       At the evidentiary hearing on
                                Defendant's Motion for Post-conviction collateral Relief, trial
                                counsel testified that while the amended information changed the
                                subsection under which the defendant was changed that the
                                language of the charge on the original information reflected the
                                elements of the offense under §3701(a)(l)(ii)                 rather than
                                §3701(a)(l)(v).     According to trial counsel, the language
          53HO
                                included on the original information did not change when the
       JUDICIAL..                                                         -
       DISTRICT
                                i ntormati on was amended, therefore, i t1_~fr_1rPa;~icR~}Jef            that even

''\\VliENcv;      COUNTY
   Pf;:NN'.·\YLVANIA                                                          20\S JUN I   2 P I: lilt
                                                                     9
                              though the original information charged the defendant with a
                              third degree felony under §3701(a)(l)(v), the factual basis for
                              the offense on the original information were actually the
                              language of a first degree felony under §3701(a)(l)(ii) which
                              includes threatening to inflict serious bodily injury.            As a
                              result, when the Commonwealth made the oral motion to amend the
                              information to reflect the new subsection and grading on the
                              Robbery and criminal conspiracy charges trial counsel did not
                              object because in her op+nion it was a formality to change the
                              subsection under which defendant was charged and had no effect
                              on the language used in describing the factual basis of the
                              offense since the elements of §3701(a)(l)(ii) were included 1n
                              the original information and defendant was on notice of what the
                              commonwealth intended to prove at trial.          Trial counsel
                              testified that she was aware that the commonwealth made an oral
                              motion to amend the information and that she had no objection to
                              the amendment because the language put forth in the amended
                              information outlining the factual basis of what the commonwealth
                              intended to prove was identical to that used in the original
                              information, therefore, her client was not prejudiced by the
                              amendment.   Following the standards enunciated in commonwealth
                              v. Stanley, supra. this court finds no prejudice to defendant
                              where the amended information reflects the identical factual
                              basis and the elements thereof arose out of the identical
                              scenario and involved the identical victims.           Amendment of the
            53HD
                              information in this case did not change the basis of the Robbery
         JUDICIAL
         DfSTR      !CT
                              and criminal cons pi racy charges (W1~~mt~H9~fendant,        Here'

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                                               defendant had ample no ti   CE:   of the f'ac tua l basis tor the charges
                                               against him.   As such, defendant's claim of ineffective
                                               assistance of counsel on this basis is without merit.
                                                    Defendant also claims he was prejudiced by the failure of
                                               the commonwealth to provide a written amendment directly to him.
                                               Given the foregoing facts that defendant was represented by
                                  ii counsel and counsel had no objection to the amended information
                                               this court finds that there was no need to personally provide
                                  I!1          defendant with an amended information because he was represented
                                               by counsel, and, therefore, there was no prejudice to defendant.
                                  I            Furthermore, the plea offer tendered by the commonwealth before
                                      I    the trial was for a plea of guilty to Robbery §3701(a)(l)(ii), a
                                               felony of the first degree.        Trial counsel testified that she
                                               was aware that the plea offer was made to a subsection not
                                 I
                                               listed on the information but the factual basis for the plea was
                                 I             identical to that on the information.                Trial counsel testified
                                 I
                                               that she was aware the plea offer was actually based on
                                 1.
                                               §3701(a)(l)(ii) which is a first degree felony and she had no
                                 1· objection because the factual basis for the charge did not

                                           change.      Trial counsel stated that the information was formally
                             I             amended after the plea offer was made by the commonwealth and
                             I
                                           she had no objection to the amendment because although the
                                           grading changed, the factual basis remained the same and she
                                           believed the amendment did not legally prejudice the defendant.
                                                   Defendant argues that had he known about the amendment
            53RD                           prior to trial he would have approached the case differently.
         JUDICIAL
         DISTR     IC'r
                                           The Court finds that even if the ~~:r/'5\-fJ?;:iirformation had not
    .-:-.V/HENCE   COUNTY
1

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                                                                                                     - t.r.r,
                               been communicated to defendant,    the defendant was not prejudiced
                               because he was not in a position to plead guilty, having
                               consistently maintained his innocence of the crimes charged.          At
                               the hearing, trial counsel stated that from the beginning of the
                               case defendant informed her that that he did not commit the
                               crimes he was charged with and he was not willing to accept any
                               plea offer.    Throughout the proceedings in this case the
                          'I defendant always maintained his innocence and claimed that he

                          11
                               was not the person who robbed the Dollar General store and he
                          ., did not conspire with anyone who did.      Because the defendant has
                               maintained his innocence throughout this case he has not shown
                               how he was prejudiced by the amendment to the information.       As
                               stated in Commonwealth v. Taylor, 933 A.2d 1035 (Pa.super. 2007)
                               reargument denied, appeal denied, 951 A.2d 1163, 597 Pa.      715,
                               counsel cannot be found ineffective for failing to pursue a
                               baseless or meritless claim.    The court finds defendant's claim
                               to be without merit.    The Defendant has tailed to show that
                               counsel was ineffectiveJ that the underlying r.laim possessed
                               legal merit or that he was prejudiced as the result of counsel's
                               action or inaction.
                                    Defendant also asserts that post-trial counsel was
                               ineffective for failing to object to the amended information at
                               the time of sentencing and failing to raise an ineffective
                               counsel claim against trial counsel when he began representing
                               Defendant.    Post-trial counsel will not be considered
         53RO                  ineffective for failing to pursue meritless claims.       The court
      JUDICIAL
      DISTRICT
                               has found that trial counsel was not ineffective in her

, ·~1/YRENCE     COUNTY
   PENNSYLVANIA

                                                                 12
                                representation of the Defendant and, therefore, subsequent
                                counsel cannot be found ineffective for failing to pursue a
                                meritless claim.    Accordingly, Defendant's claim that post-trial
                                counsel was ineffective for failing to file an ineffective
                                assistance of counsel claim against prior counsel is without
                                merit.    Thus, defendant is not entitled to Post-conviction
                                collateral Relief based on prior trial and post trial counsel's
                                ineffective assistance.
                                     For the foregoing reasons, the court concludes that the
                                defendant has failed to prove ineffective assistance of trial
                                and post-trial counsel and that the underlying claims asserted
                                by the defendant are in fact meritless.    Therefore, Defendant's
                                Amended Petition for Post-conviction collateral Relief will be
                                DENIED.
                                                                                                 f .




                53RO
           JUDICIAL
            DISTRICT




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      PENNSYLVANIA
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