Com. v. Stills, M.

• Court: Superior Court of Pennsylvania
• Decided: March 31, 2020
• Docket: 1266 EDA 2018
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 MARCH 31, 2020

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 J-S52020-19

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).

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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’ 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’ PCRA] petition without an evidentiary hearing?

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

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

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6. Did the [PCRA] court err when it dismissed as meritless [Stills’] 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?

7. Did the [PCRA] court err when it dismissed as meritless [Stills’] 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 (issues reordered for ease of disposition).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

2 Regarding Stills’ 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’ counsel misapprehended the correct subsection of the robbery statute that was indicated on the criminal information. See Stills’ 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’ issues of trial counsel ineffectiveness are related, we will

address them together. In his second, third, fourth and fifth issues, Stills

contends that trial counsel was ineffective for misapprehending the specific

subsection of the robbery statute under which Stills was charged. According

to Stills, the criminal information, trial disposition form, order of sentence, and

all dockets indicate that he was charged with three counts of robbery under

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18 Pa.C.S.A. § 3701(a)(1)(i), 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[.]” Yet, trial counsel proceeded as if Stills

had been charged under subsection (a)(1)(ii), which provides “[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[.]” In other words, Stills was charged with actually committing serious

bodily injury during the theft, yet his counsel proceeded as if he was charged

with only threatening serious bodily injury during the theft.

Stills claims that trial 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 under § 3701(a)(1)(i) 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’ 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.

For the same reasons, Stills contends that trial counsel was ineffective

for failing to apprehend that the conspiracy charge brought against him was

linked to the charges of robbery with infliction of serious bodily injury under

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§ 3701(a)(1)(i). He 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. Stills therefore claims

that trial counsel was ineffective for failing to move for an acquittal because

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’ crimes did not match the subsection of the

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

However, it nevertheless determined that Stills’ 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:

3 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

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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’] 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 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 ____________________________________________

are not so materially different from the original charge that the defendant would be unfairly prejudiced.”

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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.

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

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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’ 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. According to Stills, direct

appeal counsel continued to identify and argue the wrong subsection of the

robbery statute in his appellate filings. Stills claims that, had appellate

counsel argued sufficiency under the correct robbery subsection on direct

appeal, this Court would have recognized that the evidence was insufficient to

support Stills’ robbery and conspiracy convictions due to a lack of serious

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

denied Stills appellate review of his convictions.5

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’ Brief at 15. Stills does not identify in his PCRA appellate brief, the second issue raised in his direct appeal; however, our review discloses that the second issue that appellate counsel raised in Stills’ 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’ 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

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Notably, the certified record does not contain copies of the filings

authored by appellate counsel in Stills’ direct appeal. 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 claim is dependent upon materials

not provided in the certified record, that claim is considered waived. Id. Here,

Stills failed to present the filings made by direct appeal counsel to the PCRA

court, and to ensure that those filings were made part of the PCRA court

record. Accordingly, his ineffectiveness claim pertaining to direct appeal

counsel is waived.6

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.”).

6 Importantly, the appellate brief filed by direct appeal counsel was only filed in this Court in connection with Stills’ direct appeal. It had never been filed in the lower court, and thus was not reflected on the lower court docket. As such, it was incumbent upon Stills to present that filing to the PCRA court in support of his ineffectiveness claim when he filed his PCRA petition, and then to ensure that that a copy of that filing was made a part of the PCRA court record below. Notably, Stills belatedly recognized this omission after filing an appeal of the PCRA court’s denial of relief. During the pendency of this appeal, he requested leave to supplement the certified record with a copy of the brief filed by direct appeal counsel. We properly denied his request because the brief had never been presented to the PCRA court, nor made a part of the PCRA court record. See Pa.R.A.P. 1921 (providing that “[t]he original papers and exhibits filed in the lower court . . . and a certified copy of the docket entries prepared by the clerk of the lower court shall constitute the record on appeal in all cases.”). Because direct appeal counsel’s brief was not presented to the PCRA court, or included in any filing in the PCRA court, we may not consider it in this appeal. See id.; see also Commonwealth v.

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Order affirmed.

Judge McLaughlin joins this memorandum.

Judge Ott did not participate in this memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/31/2020

Bracalielly, 658 A.2d 755, 763 (Pa. 1995) (holding that “appellate courts may only consider facts which have been duly certified in the record on appeal”).

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