J-S60029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANTHONY DARNELL SAMUELS                    :
                                               :
                       Appellant               :   No. 690 MDA 2018

                   Appeal from the PCRA Order April 30, 2018
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0001232-2016


BEFORE:       SHOGAN, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                          FILED FEBRUARY 26, 2019

        Appellant Anthony Darnell Samuels appeals pro se from the order

dismissing his timely first petition pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant challenges the validity of the

warrant for his arrest, the sufficiency of the evidence, and trial counsel’s

effectiveness. We affirm.

        The trial court previously summarized the underlying facts of this case

as follows:

        Larita Brown [(the victim)] testified to the events that took place
        on the night of February 16, 2016. [The victim] was with her
        boyfriend waiting for the bus at the train station in Harrisburg,
        Pennsylvania when [Appellant, the victim’s ex-boyfriend,] went
        over to [the victim] and demanded twenty ($20) dollars from her.
        [The victim] said “no” and [Appellant] followed her around the
        train station. [The victim] testified that this was an ongoing
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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     occurrence (where [Appellant] would demand money from her)
     and that [the victim] finally had enough and told [Appellant] “no
     more.” [The victim] (who had a PFA against Appellant) felt
     threatened and sought out an Amtrak officer.

     When the Amtrak [o]fficer approached [Appellant] to ask him
     what was going on, [Appellant] took off and dropped his wallet
     and identification. Shortly thereafter, [Appellant] called [the
     victim] and again demanded money from her. At this time, [the
     victim] and her boyfriend got on the bus and two stops later,
     [Appellant] got on the bus. [Appellant] “charged to the back of
     the bus” and once again demanded money from [the victim].
     While visibly shaking, [the victim] gave [Appellant] twenty ($20)
     and [Appellant] left the bus. [The victim] went home and
     [Appellant] continued to call her and demand money. [The victim]
     testified that she feels so threatened that if she does not answer
     the phone, something terrible is going to happen to her. [The
     victim] testified that during this phone call, [Appellant] once again
     threatened to kill her [as he had done earlier that evening on the
     bus]. Finally, on direct examination, [the victim] testified that she
     lives in fear of [Appellant].

     The Commonwealth also introduced the testimony of Ben Stewart,
     a patrolman with the Swatara Township Police Department, who
     identified the phone number that had been calling [the victim] as
     [Appellant’s].

Trial Court Op., 12/27/16, at 2-3 (footnotes and record citations omitted).

     Following a bench trial, Appellant was convicted of terroristic threats and

sentenced to twenty-four to sixty months’ incarceration.      Appellant timely

appealed and raised a challenge to the discretionary aspects of his sentence

and the sufficiency of the evidence. Specifically, Appellant argued that the

Commonwealth failed to prove the intent element and that the statements he

made to the victim were said “in the heat of the moment.” Commonwealth

v. Samuels, 1758 MDA 2016, at 3 (Pa. Super. filed Nov. 9, 2017)

(unpublished mem.). This Court rejected Appellant’s argument reasoning:


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       Appellant’s actions . . . involved a series of events spanning a
       several-hour period. Appellant harassed and threatened [the
       victim] at the train station and on the bus. Those threats
       continued by phone after [the victim] returned to her
       home, even though [the victim] had acceded to Appellant’s
       demand for money, which she surrendered to him on the
       bus.

       . . . [W]e conclude—as did the trial court—that the evidence was
       sufficient to prove that Appellant made a threat to commit a crime
       of violence against [the victim] and that the threat was
       communicated with the intent to terrorize her.

Id. at 5-6 (emphasis added). This Court affirmed Appellant’s judgment of

sentence on November 9, 2017.             Id.    Appellant did not file a petition for

allowance of appeal with the Pennsylvania Supreme Court.

       Appellant’s timely pro se PCRA petition was docketed on January 16,

2018.1 On January 22, 2018, the PCRA court appointed counsel. On March

29, 2018, appointed counsel filed a motion to withdraw along with a

Turner/Finley2 letter. On April 3, 2018, the PCRA court issued a notice of its

intent to dismiss the petition without a hearing pursuant to Pa.R.A.P. 907, and

a memorandum opinion addressing Appellant’s pro se claims. The court also

granted counsel’s motion to withdraw.
____________________________________________


1 Appellant’s pro se PCRA petition included the following claims: (1) the victim
never swore or subscribed to the complaint in front of the issuing authority;
(2) Fifth Amendment violation of the right to confront the accuser, in that the
officer signed the complaint and the victim never came to the preliminary
hearing, and therefore the victim’s testimony was hearsay; (3) no jurisdiction
for incidents outside the affidavit of probable cause, which were the basis for
Appellant’s conviction; and (4) Fourteenth Amendment Due Process Clause
violation. See Appellant’s Pro Se PCRA Pet., 1/22/18, at 4.

2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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      The PCRA court docketed Appellant’s premature pro se notice of appeal

on April 23, 2018. The PCRA court subsequently dismissed Appellant’s PCRA

petition without a hearing on April 30, 2018. The PCRA court also issued an

opinion incorporating its April 3, 2018 memorandum and requested that this

Court treat Appellant’s premature appeal as timely. The PCRA court did not

order Appellant to file a Pa.R.A.P. 1925(b) statement.

      Appellant, in his pro se brief, raises three issues for review, which we

have reordered as follows:

      1. Is trial court in error of [sic] violation of Pa.R.Crim.P. 513 Part
         (B) were [sic] no element of the crime exist were constitution
         right violated inconsistent statement were made [sic] [?]

      2. Whether the trial court abused its discretion in finding Appellant
         guilty when their [sic] no witness and no evidence[.]

      3. Was counsel ineffective for refused [sic] to file motion[?]

Appellant’s Brief at 13 (some capitalization omitted).

      Initially, we must address the Commonwealth’s claim that the appeal

should be quashed because Appellant appealed from the PCRA court’s Rule

907 notice, and not a final order dismissing his petition. See Commonwealth’s

Brief at 2 (unpaginated).    The Commonwealth contends that because the

underlying PCRA petition “has not been dismissed yet,” there is no final order

from which to appeal. Id. We disagree.

      Although Appellant’s notice of appeal was premature when filed, the

PCRA court formally dismissed Appellant’s petition on April 30, 2018. See

PCRA Ct. Order, 4/30/18. This Court may regard a premature notice of appeal


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as timely when a final order has been subsequently entered. See Pa.R.A.P.

905(a)(5) (“A notice of appeal filed after the announcement of a determination

but before the entry of an appealable order shall be treated as filed after such

entry and on the day thereof.”); see also Commonwealth v. Swartzfager,

59 A.3d 616, 618 n.3 (Pa. Super. 2012) (accepting a premature notice of

appeal filed after the entry of Rule 907 notice but before the entry of a final

order dismissing a PCRA petition). Therefore, we decline to quash this appeal.

       We summarize Appellant’s three issues together.         As to the arrest

warrant, Appellant appears to argue that “the warrant was executed falsely

and is therefore defective” because the victim did not “swear under oath or

affirmation to the events she said transpired” and the officer who signed the

affidavit did not personally witness the alleged crime.3 Appellant’s Brief at 27.

Further, he claims that he was convicted for an alleged incident that was not

mentioned in the affidavit of probable cause. Id. Finally, Appellant suggests

that he did not have an opportunity to confront the officer who signed the

arrest warrant “as a complaining witness” at the preliminary hearing. Id. at

29 & Ex. D.

       Regarding his challenge to the sufficiency of the evidence, Appellant

argues that “no actual evidence was presented[,] no exhibits[,] no factual

testimony.” Id. He claims that he was ultimately convicted for events that
____________________________________________


3 In support of his claim, Appellant cites to State v. Bobo, which held that
under New Jersey law, a complaint must be signed “under oath in the presence
of the deputy court clerk.” State v. Bobo, 535 A.2d 983, 985 (N.J. App. Div.
1987). However, the case is non-binding on this Court.

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transpired at the bus station, although the affidavit of probable cause attached

to the criminal complaint centered on phone calls that Appellant allegedly

made to the victim after the incident at the bus station. Id. He suggests

there was no evidence to prove that he made the alleged phone calls to the

victim.

      Lastly, Appellant asserts that he did not receive a fair trial because

counsel “failed to file [a] pretrial motion and cross examine the inconsistencies

resulting in the verdict of guilty.” Id. at 25. Appellant’s assertion of trial

counsel’s ineffectiveness appears to relate to his previous issues regarding the

arrest warrant and the variance between the criminal complaint and the trial

evidence.

      Our standard of review from the dismissal of a PCRA petition “is limited

to examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted). “The PCRA

court’s credibility determinations, when supported by the record, are binding

on this Court; however, we apply a de novo standard of review to the PCRA

court’s legal conclusions.”   Commonwealth v. Mitchell, 105 A.3d 1257,

1265 (Pa. 2014) (citation omitted).

      Moreover, “[t]o be entitled to PCRA relief, [the defendant] must

establish, by a preponderance of the evidence, that his conviction or sentence

resulted from one or more of the circumstances enumerated in 42 Pa.C.S. §

9543(a)(2), and that the allegation of error has not been previously litigated

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or waived.”    Id. at 1265-66.      “Generally, an appellant may not raise

allegations of error in an appeal from the denial of PCRA relief as if he were

presenting the claims on direct appeal.” Commonwealth v. Price, 876 A.2d

988, 995 (Pa. Super. 2005); see also 42 Pa.C.S. § 9544(b) (“For purposes of

this subchapter, an issue is waived if the petitioner could have raised it but

failed to do so before trial, at trial, . . . [or] on appeal or in a prior state

postconviction proceeding.”).

      With respect to ineffectiveness claims, we note that counsel is presumed

effective, and the appellant bears the burden of proving otherwise.

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013). To prevail

on an ineffectiveness claim, the appellant must establish:

         (1) the underlying claim has arguable merit; (2) no
         reasonable basis existed for counsel’s actions or failure to
         act; and (3) the [appellant] suffered prejudice as a result of
         counsel’s error such that there is a reasonable probability
         that the result of the proceeding would have been different
         absent such error.

Commonwealth v. Lesko, 15 A.3d 345, 373 (Pa. 2011) (citation omitted).

      Moreover,

      [f]ailure to prove any prong of this test will defeat an
      ineffectiveness claim. Commonwealth v. Basemore, 744 A.2d
      717, 738 n. 23 (2000) (citation omitted). “[I]f a claim fails under
      any necessary element of the Strickland test, the court may
      proceed to that element first.” Lesko, at 374 (citations omitted).
      When an appellant fails to meaningfully discuss each of the three
      ineffectiveness prongs, he is not entitled to relief, and we are
      constrained to find such claims waived for lack of development.




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Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. Super. 2014) (some

citation and quotation marks omitted).

      At the outset, we note that standing alone, Appellant’s challenges to the

arrest warrant, the preliminary hearing, and the sufficiency of the evidence

are direct appeal claims that are not cognizable under PCRA. See Price, 876

A.2d at 995. Moreover, Appellant did not raise his challenge to the sufficiency

of the evidence in his initial pro se PCRA petition, in a response to the counsel’s

Turner/Finley letter or the PCRA court’s Rule 907 notice, or in an amended

petition.   See Commonwealth v. Mason, 130 A.3d 601, 627 (Pa. 2015)

(concluding that the appellant failed to preserve an appellate claim by raising

it in a PCRA petition or in an authorized amended PCRA petition); accord

Pa.R.A.P. 302(a). Lastly, Appellant asserts that trial counsel was ineffective

without developing any arguments that trial counsel lacked a strategic basis

or that the alleged ineffectiveness resulted in prejudice. See Appellant’s Brief

at 23; Fears, 86 A.3d at 804.        In short, we could find all of Appellant’s

arguments waived under the PCRA or the Rules of Appellate Procedure.

      Nevertheless, we note that the PCRA court, as well as appointed PCRA

counsel, separately addressed the merits of Appellant’s claims regarding the

validity of the arrest and trial counsel’s ineffectiveness. For example, in its

memorandum opinion accompanying its Rule 907 notice, the PCRA court

reasoned:

      Initially, we note that it is not necessary for the officer to have
      direct, personal knowledge of the relevant facts and
      circumstances on whether a crime has been committed.

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      Commonwealth v. Walker, 501 A.2d 1143, 1148 ([Pa. Super.]
      1985). The belief may, instead, rest solely upon facts and
      information supplied by another person, so long as there is a
      “substantial basis” for trusting the source and credibility of the
      information. Id. Here, the police officer, based upon the totality
      of the circumstances, had probable cause to believe that a crime
      had been committed when he received a call regarding a violation
      from a Protection from Abuse (PFA). At the time of the call, a
      routine warrant check indicated that [Appellant] had an active
      warrant dating from October 2015 for a previous violation of the
      same PFA. As such, the officer had sufficient probable cause to
      support [Appellant’s] arrest. Accordingly, this issue is without
      merit.

                                   *    *    *

      It appears that [Appellant] alleges that since the officer who
      signed the complaint did not testify at his preliminary hearing, he
      was somehow denied his right to confrontation.            However,
      [Appellant] had a full and fair opportunity to confront both the
      officer and the victim at the subsequent bench trial. Additionally,
      as the officer who was the affiant in this case was relying on the
      information from the victim, the victim’s testimony was all that
      [was] required to meet the prima facie burden at such a hearing.
      Finally, the absence of the officer/affiant at the preliminary
      hearing in no way renders the direct testimony of the victim
      inadmissible. As such, this claim is without merit.

PCRA Ct. Op., 4/3/18, at 2-3. The PCRA court further opined that Appellant

failed to “establish any allegations of error by trial counsel.” Id. at 4.

      Therefore, the PCRA court and counsel did not refer to the need to

reframe Appellant’s direct appeal claims as claims of ineffective assistance of

counsel. See Price, 876 A.2d at 995. In light of this procedural history and

the requirement that we construe a pro se brief liberally, we decline to find

waiver under the PCRA. Commonwealth v. Lyons, 833 A.2d 245, 251-52

(Pa. Super. 2003) (stating that although the appellant’s pro se brief contained


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substantial defects, in the interest of justice, the Court would “address the

arguments that can reasonably be discerned.”).        Instead, we consider the

PCRA court’s implicit determinations that Appellant failed to establish arguable

merit to his claims based on the arrest warrant, the preliminary hearing, and

the alleged differences in the conduct described in the charging documents,

at the preliminary hearing, and at trial.

      With respect to the arrest warrant, Pa.R.Crim.P. 513(B)(2) provides that

“[n]o arrest warrant shall issue but upon probable cause supported by one or

more affidavits sworn to before the issuing authority in person or using

advanced communication technology. The issuing authority, in determining

whether probable cause has been established, may not consider any evidence

outside the affidavits.” Pa.R.Crim.P. 513(B)(2).

      “The test in this Commonwealth for determining whether probable cause

exists for the issuance of an arrest warrant is the ‘totality of the

circumstances.’”   Commonwealth v. Taylor, 850 A.2d 684, 686-87 (Pa.

Super. 2004). We have explained that “[t]he totality of the circumstances

test requires a Court to determine whether the facts and circumstances which

are within the knowledge of the officer at the time of the arrest, and of which

he has reasonably trustworthy information, are sufficient to warrant a man of

reasonable caution in the belief that the suspect has committed or is

committing a crime.” Commonwealth v. Smith, 979 A.2d 913, 916 (Pa.

Super. 2009) (citation omitted).       Further, probable cause is based on

probability, not a prima facie showing of criminal activity; therefore, deference

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should   be   afforded   to    the   magistrate’s   finding   of   probable   cause.

Commonwealth v. Housman, 986 A.2d 822, 843 (Pa. 2009).

      As to Appellant’s claims regarding the preliminary hearing, Pa.R.Crim.P.

542(E) states: “Hearsay as provided by law shall be considered by the issuing

authority in determining whether a prima facie case has been established.

Hearsay evidence shall be sufficient to establish any element of an offense . .

. .” Pa.R.Crim.P. 542(E). In Commonwealth v. Ricker, 120 A.3d 349 (Pa.

Super. 2015), this Court held that “an accused does not have the right to

confront the witnesses against him at his preliminary hearing under those

provisions.” Ricker, 120 A.3d at 362.

      As to variances between the charging documents and the evidence at

trial, this Court has noted:

      A criminal complaint need simply contain “facts sufficient to advise
      the defendant of the nature of the offense charged, but neither
      the evidence nor the statute allegedly violated need be cited . . .
      .” It follows, then, that the Commonwealth may introduce at trial
      evidence not specified within the four corners of the criminal
      complaint, provided that such evidence is material and competent
      to the charge and presents no other reason, evidentiary or
      otherwise, for its preclusion. The factfinder, in turn, may properly
      convict on such evidence as long as each element of the charge
      was proven beyond a reasonable doubt.

Commonwealth v. Snell, 737 A.2d 1232, 1234 (Pa. Super. 1999) (citations

omitted); see also Pa.R.Crim.P. 504(6)(a) (formerly numbered Rule

104(6)(a)). Furthermore, “[a] variance is not fatal unless it could mislead the

defendant at trial, impairs a substantial right or involves an element of

surprise that would prejudice the defendant’s efforts to prepare his defense.”

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Commonwealth v. Einhorn, 911 A.2d 960, 978 (Pa. Super. 2006) (citation

omitted).

      Following our review of the record, the PCRA court’s opinion, and the

relevant legal principles, we find no error in the PCRA court’s dismissal of

Appellant’s PCRA claims. As indicated by the court, the arrest warrant was

properly executed and based on probable cause. Further, there was no error

in the trial court’s consideration of evidence outside the four corners of the

criminal complaint.     Finally, because we agree with the PCRA court that

Appellant’s underlying issues have no merit, Appellant cannot claim that trial

counsel was ineffective for failing to raise them. See Basemore, 744 A.2d at

738 n.23. Having discerned no abuse of discretion or legal error, we affirm

the PCRA court’s dismissal of Appellant’s PCRA petition. See Ousley, 21 A.3d

at 1242; see also Fears, 86 A.3d at 804.

      Order affirmed.

      Judge Shogan joins the memorandum.

      Judge Strassburger concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/26/2019




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