J-S52020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 MELVIN STILLS                            :
                                          :
                   Appellant              :   No. 1266 EDA 2018

                 Appeal from the PCRA Order April 2, 2018,
           in the Court of Common Pleas of Philadelphia County,
           Criminal Division at No(s): CP-51-CR-0004532-2013.

BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY KUNSELMAN, J.:                    FILED DECEMBER 17, 2019

     Melvin Stills appeals from the order dismissing his petition filed pursuant

to the Post Conviction Relief Act (“PCRA”). We affirm.

     The PCRA court summarized the relevant factual history as follows:

            On January 29, 2013, around 6:00 p.m., Tahir Jackson was
     walking on Fisher Street in Philadelphia with his girlfriend, Dereka
     Sowell, and friend James Hargrove when he saw two men riding
     toward them on bikes. Mr. Jackson testified that one man was
     tall, wearing a black jacket and red hoodie, riding a black and
     silver Mongoose bike, and the other man was shorter, wearing a
     black hoodie, black jacket and riding a pink and purple child’s bike.
     Mr. Jackson identified the shorter man as [Stills], and the taller
     man as codefendant Corey Battle. [Stills] jumped off his bike,
     pulled out a black gun, and pointed it at Mr. Hargrove. Corey
     Battle approached Mr. Jackson from behind and began to choke
     him so hard that he was lifted off the ground and couldn’t breathe.
     Ms. Sowell also testified that [Stills] was the one with the gun and
     Corey Battle choked Mr. Jackson from behind. [Stills] told Mr.
     Hargrove, “whatever you got in your pocket, give it up,” then took
     Mr. Hargrove’s cell phone. [Stills] then pointed the gun at Ms.
     Sowell and said, “you need to back up before you get shot.” Corey
     Battle checked Mr. Jackson’s pockets, and finding nothing, pushed
     him to the ground, and grabbed Ms. Sowell. Mr. Jackson tried to
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        get up to defend his girlfriend, but [Stills] pointed the gun at him
        and said, “Stay there. You don't want to get shot.” [Stills] stood
        over Mr. Jackson, a few feet away while pointing the gun directly
        at him. Both Mr. Jackson and Ms. Sowell testified that [Stills] did
        not have anything covering his face. After not finding any items
        on Ms. Sowell, [Stills] and Corey Battle got back on their bikes
        and rode off.

               Mr. Jackson called the police who arrived minutes later.
        While the victims met with police, [Stills] rode past on his pink
        and purple child’s bike, along with another male.           Officer
        Rosenbaum noticed a bulge on [Stills’s] right hip area. Both men
        fled after the officer tried to stop them, and during the chase,
        Officer Rosenbaum saw [Stills] discard a firearm from his right hip
        area, the same area he saw the bulge. Police later recovered the
        weapon, and identified it as a black Beretta handgun. Mr. Jackson
        and Ms. Sowell identified [Stills] as the man who robbed them.
        [Stills] later gave a statement to detectives in which he admitted
        that he and Corey Battle had robbed the victims at gunpoint.

PCRA Court Opinion, 3/13/19, at 3-4 (citations to the record omitted).

        Following a non-jury trial, Stills was found guilty of three counts each of

robbery, terroristic threats, and theft by unlawful taking, and one count each

of criminal conspiracy, firearms not to be carried without a license, carrying

firearms on public streets or public property in Philadelphia, and persons not

to possess firearms.1 On August 7, 2014, Stills was sentenced to an aggregate

sentence of fifteen to thirty years of incarceration, followed by twelve years

of probation.       This Court affirmed the judgment of sentence.              See

Commonwealth v. Stills, 136 A.3d 1026 (Pa. Super. 2016) (unpublished

memorandum).



____________________________________________


1   See 18 Pa.C.S.A. §§ 3701, 2706, 3921, 903, 6106, 6108, 6105.

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      On September 9, 2016, Stills filed a pro se PCRA petition. The PCRA

court appointed Stills counsel, who filed an amended petition.               The

Commonwealth filed a motion to dismiss, after which Stills filed a supplement

to his petition. The PCRA court filed a Pa.R.Crim.P. 907 notice of its intent to

dismiss the petition without a hearing, to which Stills filed a response. On

April 2, 2018, the PCRA court entered an order dismissing Stills’s PCRA

petition. Stills filed a timely notice of appeal, and both Stills and the PCRA

court complied with Pa.R.A.P. 1925.

      Stills raises the following issues for our review:

      1. Did the [PCRA] court err when it dismissed Stills’s [PCRA]
         petition without an evidentiary hearing?

      2. Did the [PCRA] court err when it dismissed as meritless Stills’s
         claim that trial/appellate counsel was ineffective for failing to
         identify the correct subsection of the robbery statute that
         formed the basis of the charge and conviction?

      3. Did the [PCRA] court err when it dismissed as meritless Stills’s
         claim that trial/appellate counsel was ineffective for failing to
         move for an acquittal due to the evidence not being sufficient
         to meet the burden of robbery with infliction of serious bodily
         injury?

      4. Did the [PCRA] court err when it dismissed as meritless Still’s
         claim that trial/appellate counsel was ineffective for failing to
         properly execute the direct appeal due to misunderstanding his
         client’s robbery charge and conviction, among other errors?

      5. Did the [PCRA] court err when it dismissed as meritless Still’s
         claim that trial/appellate counsel was ineffective for failing to
         identify the correct subsection of robbery that the conspiracy
         reflected?

      6. Did the [PCRA] court err when it dismissed as meritless Stills’s
         claim that trial/appellate counsel was ineffective for failing to

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           move for an acquittal due to the evidence not being sufficient
           [to] show a conspiracy to commit a robbery with the infliction
           of serious bodily injury?

       7. Did the [PCRA] court err when it dismissed as meritless Stills’s
          claim that trial/appellate counsel was ineffective for failing to
          properly execute the direct appeal due to misunderstanding his
          client’s conspiracy charge and conviction?

Stills’s Brief at 2-3.2

       When addressing a challenge to the dismissal of a PCRA petition, our

standard of review is as follows:

              We review an order dismissing a petition under the PCRA in
       the light most favorable to the prevailing party at the PCRA level.
       This review is limited to the findings of the PCRA court and the
       evidence of record. We will not disturb a PCRA court’s ruling if it
       is supported by evidence of record and is free of legal error. This
       Court may affirm a PCRA court’s decision on any grounds if the
       record supports it. Further, we grant great deference to the
       factual findings of the PCRA court and will not disturb those
       findings unless they have no support in the record. However, we
       afford no such deference to its legal conclusions. Where the
       petitioner raises questions of law, our standard of review is de
       novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted)

       Additionally, when a petitioner alleges trial counsel’s ineffectiveness in

a PCRA petition, he must prove by a preponderance of the evidence that his



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2 Regarding Stills’s first issue, he concedes that the PCRA court did not err in
determining that no evidentiary hearing was warranted since there is no
dispute that Stills’s counsel misapprehended the correct subsection of the
robbery statute that was indicated on the criminal information. See Stills’s
Brief at 11. Thus, we need not address the issue.

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conviction or sentence resulted from 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.”     42 Pa.C.S.A. § 9543(a)(2)(ii).      The petitioner must

demonstrate:

      (1) that the underlying claim has arguable merit; (2) that no
      reasonable basis existed for counsel’s actions or failure to act; and
      (3) that the petitioner suffered prejudice as a result of counsel’s
      error.    To prove that counsel’s chosen strategy lacked a
      reasonable basis, a petitioner must prove that an alternative not
      chosen offered a potential for success substantially greater than
      the course actually pursued. Regarding the prejudice prong, a
      petitioner must demonstrate that there is a reasonable probability
      that the outcome of the proceedings would have been different
      but for counsel’s action or inaction. Counsel is presumed to be
      effective; accordingly, to succeed on a claim of ineffectiveness[,]
      the petitioner must advance sufficient evidence to overcome this
      presumption.

Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (internal

citations and quotation marks omitted). A failure to satisfy any prong of the

test for ineffectiveness will require rejection of the claim. Commonwealth

v. Martin, 5 A.3d 177, 183 (Pa. 2010).

      As all of Stills’s issues are related, we will address them together. In

his second, third and fourth issues, Stills contends that his trial counsel was

ineffective for misapprehending the specific subsection of the robbery statute

under which Stills was charged.      According to Stills, the information, trial

disposition form, order of sentence, and all dockets indicate that he was

charged with three counts of robbery under 18 Pa.C.S.A. § 3701(a)(1)(i),



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which provides, in relevant part, that “[a] person is guilty of robbery if, in the

course of committing a theft, he . . . inflicts serious bodily injury upon

another[.]”   Stills claims that his counsel failed to read the docket or the

information to ascertain the specific robbery charge lodged against him, and

never raised the issue of a lack of serious bodily injury at the preliminary

hearing. Stills argues that his conviction is not supported by the evidence

because no one was ever seriously injured. He claims that one complainant

stated that she was not injured, and the other complainant testified that he

was briefly put in a choke hold by Stills’s co-defendant, but never stated that

he was seriously injured. Stills contends that trial counsel was ineffective for

failing to move for an acquittal when the evidence failed to show serious bodily

injury.

      In his remaining issues, Stills contends that the conspiracy charge

brought against him was linked to the charges of robbery with infliction of

serious bodily injury.    He therefore claims that the Commonwealth was

required to prove that he and his co-defendant had a shared criminal objective

to inflict serious bodily injury during the course of a theft. Stills argues that,

based on the complainants’ testimony, no one was seriously injured. From

this perspective, Stills claims that the evidence was insufficient to prove the

conspiracy charge.

      Here, the PCRA court acknowledged that trial counsel failed to recognize

that the facts surrounding Stills’s crimes did not match the subsection of the


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robbery statute listed on the criminal information (i.e., § 3701(a)(1)(i)).

However, it nevertheless determined that Stills’s claims of trial counsel’s

ineffectiveness lack merit because he failed to establish the prejudice prong

of the ineffectiveness test. The PCRA court determined that, had trial counsel

recognized the error at any time prior to the rendering of a verdict, the trial

court would have permitted the Commonwealth to amend the information to

list the correct subsection of the robbery statute (i.e., § 3701(a)(1)(ii)),3

pursuant to Pa.R.Crim.P. 564.4 In reaching that conclusion, the PCRA court

reasoned as follows:

          Keeping in mind that the purpose of Rule 564 is to place a
       defendant on notice regarding his alleged criminal conduct so he
       has a fair opportunity to prepare a defense, [Stills’s] arguments
       of ineffectiveness fail. Yes, a mistake was made as to the
       subsection of the robbery statute, but to offer [Stills] relief on that
       basis, under the facts of this case, would be to elevate form over
       substance.

          Factors to 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
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3Pursuant to subsection 3701(a)(1)(ii), “A person is guilty of robbery if, in the
course of committing a theft, he . . . threatens another with or intentionally
puts him in fear of immediate serious bodily injury[.]” Both subsections
3701(a)(1)(i) and 3701(a)(1)(ii) are graded as felonies of the first-degree.

4 Rule 564 provides, in relevant part: “The court may allow an information to
be amended, provided that the information as amended does not charge
offenses arising from a different set of events and that the amended charges
are not so materially different from the original charge that the defendant
would be unfairly prejudiced.”


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        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.

     Com. v. Grekis, 411 Pa. Super. 513, 601 A.2d 1284, 1292
     (1992).

            Applying the instant set of facts to the above factors it is
     clear that [Stills] was not prejudiced by the error of subsection
     because (1) the factual scenario supporting the charges never
     changed; (2) no new facts were added that were previously
     unknown to [Stills]; (3) the entire factual scenario was developed
     not only during a preliminary hearing, but also through the
     discovery that was turned over to [Stills] on May 21, 2013 and
     included police interviews with each of the three victims, in
     addition to Corey Battle and [Stills]; (5) the Commonwealth tried
     the case, and [Stills] defended the case as if the bills of
     information had already been amended to reflect [18 Pa.C.S.A. §
     3701(a)(1)(ii), which is the subsection of the robbery statute
     which requires] a threat of serious bodily injury; and (6) it is
     immaterial that the Commonwealth failed to amend the
     information, as [Stills] had ample notice and preparation that the
     case was about him threatening serious bodily harm, as not only
     were those the facts at the preliminary hearing, and in the
     discovery, but he was also charged with terroristic threats. So
     even if the court found that subsection (a)(1)(i) was materially
     different than subsection(a)(1)(ii), [Stills] still cannot show
     prejudice because he was placed on notice regarding his alleged
     criminal conduct, and had a fair opportunity to prepare a defense.

            In this instance, had counsel caught the error in subsection,
     this [c]ourt would have allowed the Commonwealth to change the
     information based on the above analysis. This would have
     corrected a technical error, but would not have changed the
     outcome of the trial. If defense counsel had moved for an
     acquittal on that basis, this [c]ourt would have denied that
     motion, and allowed the Commonwealth to amend the
     information, based on the above analysis.




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PCRA Court Opinion, 3/13/19, at 7-9. The PCRA court similarly determined

that any pre-verdict challenge by trial counsel to the conspiracy charge would

have failed since Stills “was not misled as to the charges against him, not

precluded from anticipating the Commonwealth’s proof, and no substantial

right was impaired.” Id. at 9-10.

      The record supports the PCRA court’s determination that Stills failed to

demonstrate that he was prejudiced by trial counsel’s failure to seek an

acquittal on the basis that the evidence did not establish that he inflicted

serious bodily injury or conspired to inflict serious bodily injury. The record

also supports the PCRA court’s determination that, had trial counsel raised the

issue, the trial court would have permitted the Commonwealth to amend the

criminal information to reflect the correct subsection of the robbery statute.

Such an amendment would have been appropriate because Stills was afforded

abundant notice from the outset of the criminal proceedings that the evidence

supported a finding that he had conspired with his co-defendant to threaten

the victims with serious bodily injury and had, in fact, threatened them with

serious bodily injury.     Thus, Stills’s claims pertaining to trial counsel’s

ineffectiveness entitle him to no relief.

      However, Stills additionally disputes the PCRA court’s dismissal of his

claims that appellate counsel was ineffective. Stills points out that his trial

counsel also represented him in his direct appeal. In that capacity, counsel

continued to identify and argue the wrong subsection of the robbery statute.


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Stills claims that, had appellate counsel argued sufficiency under the correct

robbery subsection on direct appeal, this Court would have recognized that

the evidence did not support Stills’s robbery convictions due to a lack of

serious bodily injury.       Thus, Stills claims that his direct appeal counsel

effectively denied Stills appellate review of his robbery convictions. 5          He

additionally claims that, had counsel challenged the sufficiency of the

conspiracy charge on direct appeal, the charges may have been overturned.

       Notably, Stills has not included in the certified record copies of the filings

authored by appellate counsel in Stills’s direct appeal; thus, we are unable to

evaluate them. See Commonwealth v. Muntz, 630 A.2d 51, 55 (Pa. Super.

1993) (for the purposes of an appeal, it is the responsibility of the appellant

to offer a complete record for our review). Based on our precedent, where a




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5 Stills also argues that appellate counsel offered no argument on the second
issue he raised on direct appeal, resulting in waiver of that issue. Stills’s Brief
at 15. Stills does not identify in his PCRA Appellate brief, the second issue
from his direct appeal; however, our review discloses that the second issue
that appellate counsel raised in Stills’s direct appeal challenged the identity of
the perpetrator. See Stills, 136 A.3d 1026 (unpublished memorandum at
*1). This particular claim of ineffectiveness is not properly before us in this
appeal, as it was not raised in Stills’s concise statement or identified in his
statement of questions presented. See Commonwealth v. Lord, 719 A.2d
306, 309 (Pa. 1998) (holding that if an appellant is directed to file a concise
statement of matters to be raised on appeal pursuant to Pa.R.A.P. 1925(b),
any issues not raised in that statement are waived); see also Pa.R.A.P.
302(a) (providing that issues not raised in the lower court are waived and
cannot be raised for the first time on appeal); See Pa.R.A.P 2116(a) (providing
that “[n]o question will be considered unless it is stated in the statement of
questions involved or is fairly suggested thereby.”).

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claim is dependent upon materials not provided in the certified record, that

claim is considered waived. Id.

       However, since we have the benefit of this Court’s disposition of Stills’s

direct appeal, Stills, 136 A.3d 1026 (unpublished memorandum), we will

address this issue.       In our prior decision, this Court indicated that Stills

challenged “[w]hether the evidence was sufficient to convict [Stills] of three

counts of Robbery F(1), Conspiracy and related charges when the

Commonwealth failed to prove beyond a reasonable doubt that there

was a threat of serious bodily injury and/or any serious injury to any

of the victims.” Id. (unpublished memorandum at *1) (emphasis added).

Based on the framing of this issue, it is clear that appellate counsel challenged

both the robbery and conspiracy convictions on the basis that the evidence

was insufficient to establish that Stills either threatened the victims with

serious bodily injury, or inflicted serious bodily injury. See id.6 Accordingly,

Stills’s claims that appellate counsel was ineffective warrant no relief.

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6 Moreover, in considering Stills direct appeal, this Court expressly determined
that the evidence of record was sufficient to establish that Stills threatened
the victims with serious bodily injury during the course of a theft, noting as
follows:

       The trial court’s opinion comprehensively discusses and properly
       disposes of the questions presented. (See Trial Court Opinion,
       filed May 1, 2015, at 4-9 (un-paginated)) (finding: (1) Victims Mr.
       Jackson and Ms. Sowell testified that [Stills] pointed gun at third
       victim, Mr. Hargrove, and took Mr. Hargrove’s cell phone; then,
       [Stills] pointed gun at Mr. Jackson and Ms. Sowell and threatened



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       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/17/19




____________________________________________


       to shoot them; evidence was sufficient to sustain [Stills’s] robbery
       convictions related to all three Victims, where [Stills]
       threatened Mr. Jackson and Ms. Sowell during course of
       theft and intentionally put all Victims in fear of serious
       bodily injury.

Id. (unpublished memorandum at *2-3) (emphasis added, footnote omitted).

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