J-S70032-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
               Appellee                :
                                       :
         v.                            :
                                       :
CURTIS TILDON,                         :
                                       :
               Appellant               :    No. 1201 EDA 2014

          Appeal from the PCRA Order Entered January 28, 2014
            in the Court of Common Pleas of Delaware County
           Criminal Division at No(s): CP-23-CR-0005867-2010

BEFORE: LAZARUS, MUNDY, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:               FILED NOVEMBER 19, 2014

     Curtis Tildon (Appellant) appeals pro se from an order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546. We affirm.

     A prior panel of this Court summarized the underlying facts as follows.

           On August 24, 2010 at approximately 6:30 a.m.,
     [Appellant] drove his brother, Irvin Tildon, and another male,
     Antwone Johnson, to a Wachovia Bank.             [Appellant] had
     indicated to Johnson the previous day that he and Irvin needed
     him to do some construction work; however, when they arrived
     at the bank, [Appellant] told Johnson that they actually wanted
     him to rob it.    [Appellant] explained to Johnson that they
     planned to use duct-tape to restrain the female teller and they
     would steal money from the bank vault. Johnson was initially
     hesitant, but [Appellant] showed him the clothes in the trunk for
     Johnson to change into during the robbery, including a blue
     button-down shirt, white hat and gloves. Eventually [Appellant]
     and Irvin convinced Johnson to participate in the robbery.

           [Appellant] walked up to the door of the Wachovia Bank
     with Johnson, but Johnson hesitated when he saw a guard. The


* Retired Senior Judge assigned to the Superior Court.
J-S70032-14


     three men left and drove to find another bank. During the ride,
     [Appellant] explained that the plan was simply for Johnson to
     ask the teller for money and that most banks’ procedure in a
     robbery is to hand the money over.        [Appellant] also told
     Johnson that he had a gun in the trunk, but Johnson did not
     want to use it.

            [Appellant] eventually stopped at a Sovereign Bank in
     Media[, PA]. Johnson went inside and told the teller, John Guy,
     to give him money and no one would get hurt. Surprised, Guy
     asked Johnson if he was being robbed and Johnson responded
     that he was. Guy handed the money in his desk to Johnson,
     who left with [Appellant] and Irvin in the Mercedes. Guy pulled
     the silent alarm and told police that the bank had been robbed.

            Officer Jacob [Bielering] received a police report of the
     incident and a description of the men involved. The report
     stated that the robber was wearing a blue security guard shirt
     with a flag on the sleeve and a white baseball cap and that he
     was travelling with two other men in a black Mercedes. Officer
     Bielering saw [Appellant’s] Mercedes, which matched the
     description, travelling at a high rate of speed and pulled it over.

           Officer Bielering determined that [Appellant’s] driver’s
     license was suspended. Other officers arrived and saw that
     Johnson had a blue shirt and white hat by his feet that matched
     the description. Believing that the men were the same ones who
     had robbed the bank, the officers asked them to step out of the
     vehicle and patted them down for weapons. During the patdown
     search, Officer DiTrolio recognized that Johnson had stacks of
     money in his pockets and removed them. Johnson stated that
     he had just robbed a bank. Guy later identified Johnson as the
     man who had robbed the Sovereign Bank, although he was
     unable to identify [Appellant] or Irvin.

           After the Mercedes was secured and towed, police
     searched the vehicle and recovered hoodie sweatshirts, duct
     tape, gloves and a starter pistol from the trunk. The baseball
     hat and blue shirt were secured from inside the vehicle at the
     time of the car stop. Police subsequently arrested [Appellant]
     and Irvin and charged them with [robbery, conspiracy to commit
     robbery, and theft by unlawful taking].




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            [Appellant] and Irvin were tried jointly by a jury on May
      11, 2011. Johnson entered a guilty plea and testified at trial.

Commonwealth v. Tildon, 55 A.3d 124 (Pa. Super. 2012) (unpublished

memorandum at 1-3).

      The jury found Appellant guilty of robbery, conspiracy to commit

robbery, theft by unlawful taking, conspiracy to commit theft by unlawful

taking, and possession of instruments of crime.         The Commonwealth

requested an aggravated range sentence because at the time of this

robbery, Appellant was being supervised by the federal government for his

role in a 2001 robbery. The trial court agreed and imposed a sentence in

the aggravated range.     Appellant was sentenced to three to six years’

incarceration for the robbery and a consecutive three to six years’

incarceration for the conspiracy to commit robbery.1

      Appellant filed a direct appeal, and on July 6, 2012, a panel of this

Court affirmed Appellant’s judgment of sentence. Id.       Appellant filed a

petition for allowance of appeal in our Supreme Court.     The Court denied

that petition on January 9, 2013. Commonwealth v. Tildon, 63 A.2d 1247

(Pa. 2013) (table).

      On July 12, 2013, Appellant pro se filed a PCRA petition, which

asserted no specific grounds for relief, but did assert Appellant’s desire to

amend the petition with the assistance of counsel. Counsel was appointed

1
  The trial court subsequently vacated Appellant’s sentence, and on August
24, 2011, the same term of incarceration was imposed, but the probation
tails for each offense were shortened. N.T., 8/24/2011.


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on Appellant’s behalf.        On January 13, 2014, counsel filed a petition to

withdraw and 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).        In that letter, counsel detailed his review of the

record, transcripts, and letters from Appellant wherein Appellant set forth

issues he wished counsel to raise.           According to counsel, those issues

included assertions of ineffective assistance of trial counsel for failing to

argue to the jury that mere presence is not sufficient to convict Appellant;

for failing to request a false in one, false in all jury instruction; and, for

failing   to   request   an    instruction   about   inconsistent   statements   of

Commonwealth witnesses. No-Merit Letter, 1/14/2013, at 2 (unnumbered).

Upon counsel’s review of the jury charge, both instructions were included.

Furthermore, upon counsel’s review of trial counsel’s opening and closing

statements, trial counsel did argue to the jury essentially that Appellant’s

mere presence at the scene was not enough to convict him. Finally, counsel

concluded that his review of the record did not reveal any other arguments

to present in a PCRA petition. Id. at 3.

      On January 28, 2014, the PCRA court granted counsel’s application to

withdraw and issued notice of its intent to dismiss the petition without a

hearing pursuant to Pa.R.Crim.P. 907. Appellant responded timely to Rule

907 notice. In that response, Appellant set forth a number of issues he had

with trial counsel’s representation of him.      Appellant asserted that counsel



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did not ask the trial court to give certain jury instructions, did not argue

properly in his opening and closing arguments, and also that counsel was

ineffective for failing to raise a discretionary aspects of sentencing claim.

      On February 19, 2014, the PCRA court formally dismissed Appellant’s

PCRA petition. In doing so, the PCRA court analyzed only the allegations of

error set forth in counsel’s no-merit letter. Appellant timely filed a notice of

appeal, and both Appellant and the PCRA court satisfied the requirements of

Pa.R.A.P. 1925.

      On appeal, Appellant sets forth several issues, which we consider

mindful of our well-settled standard of review from the denial of a PCRA

petition.

              [A]n appellate court reviews the PCRA court’s findings of
      fact to determine whether they are supported by the record, and
      reviews its conclusions of law to determine whether they are free
      from legal error. The scope of review is limited to the findings of
      the PCRA court and the evidence of record, viewed in the light
      most favorable to the prevailing party at the trial level.

             In this appeal, all of Appellant’s claims challenge the
      effectiveness of trial counsel. [A] PCRA petitioner will be granted
      relief only when he proves, by a preponderance of the evidence,
      that his conviction or sentence resulted from the ineffective
      assistance of counsel which, in the circumstances of the
      particular case, so undermined the truth-determining process
      that no reliable adjudication of guilt or innocence could have
      taken place. Counsel is presumed effective, and to rebut that
      presumption, the PCRA petitioner must demonstrate that
      counsel’s performance was deficient and that such deficiency
      prejudiced him. In Pennsylvania, we have refined the Strickland
      [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
      (1984)] performance and prejudice test into a three-part inquiry.
      Thus, to prove counsel ineffective, the petitioner must show
      that: (1) his underlying claim is of arguable merit; (2) counsel


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     had no reasonable basis for his action or inaction; and (3) the
     petitioner suffered actual prejudice as a result. If a petitioner
     fails to prove any of these prongs, his claim fails. Generally,
     counsel’s assistance is deemed constitutionally effective if he
     chose a particular course of conduct that had some reasonable
     basis designed to effectuate his client’s interests. Where matters
     of strategy and tactics are concerned, a finding that a chosen
     strategy lacked a reasonable basis is not warranted unless it can
     be concluded that an alternative not chosen offered a potential
     for success substantially greater than the course actually
     pursued. To demonstrate prejudice, the petitioner must show
     that there is a reasonable probability that, but for counsel’s
     unprofessional errors, the result of the proceedings would have
     been different. A reasonable probability is a probability that is
     sufficient to undermine confidence in the outcome of the
     proceeding.

            Our Supreme Court added: As a general and practical
     matter, it is more difficult for a defendant to prevail on a claim
     litigated through the lens of counsel ineffectiveness, rather than
     as a preserved claim of trial court error. This Court has
     addressed the difference as follows: [A] defendant [raising a
     claim of ineffective assistance of counsel] is required to show
     actual prejudice; that is, that counsel's ineffectiveness was of
     such magnitude that it could have reasonably had an adverse
     effect on the outcome of the proceedings. This standard is
     different from the harmless error analysis that is typically
     applied when determining whether the trial court erred in taking
     or failing to take certain action. The harmless error standard, as
     set forth by this Court in Commonwealth v. Story, 476 Pa.
     [391], 409, 383 A.2d [155], 164 [(1978)] (citations omitted),
     states that “[w]henever there is a ‘reasonable possibility’ that an
     error ‘might have contributed to the conviction,’ the error is not
     harmless.” This standard, which places the burden on the
     Commonwealth to show that the error did not contribute to the
     verdict beyond a reasonable doubt, is a lesser standard than the
     Pierce prejudice standard, which requires the defendant to show
     that counsel’s conduct had an actual adverse effect on the
     outcome of the proceedings. This distinction appropriately arises
     from the difference between a direct attack on error occurring at
     trial and a collateral attack on the stewardship of counsel. In a
     collateral attack, we first presume that counsel is effective, and
     that not every error by counsel can or will result in a



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      constitutional violation of a defendant’s Sixth Amendment right
      to counsel.

             Similarly, this Court has explained: To overcome the
      presumption of effectiveness, Appellant must establish three
      factors: first that the underlying claim has arguable merit;
      second, that counsel had no reasonable basis for his action or
      inaction; and third, that Appellant was prejudiced. Counsel’s
      assistance is deemed constitutionally effective once this Court
      determines that the defendant has not established any one of
      the prongs of the ineffectiveness test. This Court has also
      explained: The Pennsylvania Superior Court has held that
      Appellant’s claims must meet all three prongs of the test for
      ineffectiveness, if the court can determine without an evidentiary
      hearing that one of the prongs cannot be met, then no purpose
      would be advanced by holding an evidentiary hearing.

Commonwealth v. Charleston, 94 A.3d 1012, 1019-20 (Pa. Super. 2014)

(internal quotations and citations omitted).

      First, Appellant contends that trial counsel was ineffective because he

never called Appellant’s alibi witness to testify at trial. Appellant’s Brief at 8-

9. This issue was raised for the first time in Appellant’s response to the Rule

907 notice. “Where the petitioner does not seek leave to amend his petition

after counsel has filed a Turner/Finley no-merit letter, the PCRA court is

under no obligation to address new issues.” Commonwealth v. Rigg, 84

A.3d 1080, 1085 (Pa. Super. 2014).        Accordingly, to the extent Appellant

wished to raise this issue on appeal, he first had to request permission from

the PCRA court to amend his petition. He did not do so; thus, we may not

consider this issue now. Pa.R.A.P. 302(a) (“Issues not raised in the lower

court are waived and cannot be raised for the first time on appeal.”).




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      Next, Appellant contends inartfully that trial counsel was ineffective for

failing to appeal Appellant’s sentence as being excessive. Appellant’s Brief at

9.   In his brief, with respect to this argument, Appellant references a

potential violation of Alleyne v. United States, 133 S.Ct. 2151 (2013).2 In

Alleyne, the United States Supreme Court held that “any fact that increases

the mandatory minimum sentence for a crime is an element that must be

submitted   to   the   jury   and   found   beyond    a   reasonable   doubt[.]”

Commonwealth v. Munday, 78 A.3d 661, 665 (Pa. Super. 2013) (internal

quotations omitted). Although the Alleyne issue is being raised for the first

time on appeal, we may address it as it relates to the legality of Appellant’s

sentence. Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013)

(“As long as the reviewing court has jurisdiction, a challenge to the legality

of the sentence is non-waivable and the court can even raise and address it

sua sponte.”).

      Nonetheless, there is no merit to this argument.       Our review of the

transcript and record reveals there is no indication that the Commonwealth

asked for or Appellant received a mandatory minimum sentence in potential

violation of Alleyne. Thus, Appellant is not entitled to relief.

      Next, Appellant contends Johnson lied under oath in his testimony.

Appellant’s Brief at 10-11.    Unfortunately for Appellant, even if this claim


2
 Alleyne was decided on June 17, 2013, which was prior to the filing of his
pro se PCRA petition.



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were cognizable under the PCRA, we cannot discern a coherent argument in

this portion of the brief. Furthermore, this issue is being raised for the first

time on appeal. Thus, this argument is without merit.

      Finally, Appellant contends the trial court should have included the

“mere presence” jury instruction. Appellant’s Brief at 11.3      This issue was

raised by counsel at the PCRA court level, and the PCRA court addressed it in

its opinion as follows. “[T]he court’s instruction to the jury accurately and

thoroughly set forth the law regarding accomplice liability, including the

following: ‘It is important to understand that a person is not an accomplice

merely because he is present when the crime is committed or knows that a

crime is committed.’” PCRA Court Opinion, 5/22/2014, at 5 (citation to notes

of testimony omitted).      Because the instruction Appellant requested was

given to the jury, counsel could not be ineffective for failing to request it and

Appellant is not entitled to relief on this basis.

      For the foregoing reasons, we affirm the order of the PCRA Court

dismissing Appellant’s PCRA petition without a hearing.

      Order affirmed.

      Judge Lazarus joins the memorandum.

      Judge Mundy concurs in the result.




3
  In his no-merit letter, counsel presented this issue properly as one of trial
counsel’s ineffective assistance for failing to request this instruction.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/19/2014




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