J

- S52020

- 19

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

COMMONWEALTH OF PENNSYLVANIA

v.

MELVIN STILLS

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1266 EDA 2018 Appeal from the PCRA Order April 2, 2018 , i n 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 1 7 , 2019
Melvin Stills appeals from the order d ismiss ing 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, aroun d 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 gu n 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 toJ

- S52020

- 19

- 2

-

get up to defend his girlfriend, but [Stills] poi nted 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 f ace. 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 h e 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

. Th is 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

.J

- S52020

- 19

- 3

-

O n Septemb er 9, 2016 , Stills filed a pro se PCRA p etition. The PCRA
court appointed Stills counsel, who filed a n a mended petition

. The
Commonwealth filed a motion to dismiss, after which Stills filed a s upplement
to his petition. T h e PCRA c ourt filed a Pa.R.Crim.P. 907 n otice of its i ntent to

d ismiss the petition without a hearing , to which Stills filed a response. On
April 2, 2018, the PCRA c ourt entered an order dismiss ing Stills’s PCRA

p etition. Stills filed a timely notice of appeal , and both Still s 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 whe n i t 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 toJ

- S52020

- 19

- 4

- 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 dism issed 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, w hen a petitioner alleges trial counsel ’ s ineffe ctiveness in
a PCRA petition, he must prove by a preponderance of the evidence that his

_________________ __________ ______ ____ _______

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 crimin al information. See Stills’s Brief at 11. Thus, we need not address the issue.J

- S52020

- 19

- 5

-

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 f ailure 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 substan tially 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. Couns el 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 quotatio n 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 issue s , 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),J

- S52020

- 19

- 6

-

which provides, in relevant part, that “[a] person is guilty of robbery if, in the
course of committing a theft, he . . . inflicts se rious 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 m ove for an acquittal when the evidence failed to show serious bodily
injury.
In his remaining issues, Still s contends that the conspiracy charge
brought against him w as linked to the charge s 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 obj ective
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 theJ

- S52020

- 19

- 7

-

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

. However, it neve rtheless determined that Stills’s claim s 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 am endment 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

_________________ __________ ______ ____ _______

3 Pursuant 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 f ear 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.”J

- S52020

- 19

- 8

- 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, 201 3 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 w as 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 differen t 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 basi s, this [c] ourt would have denied that motion, and allowed the Commonwealth to amend the information, based on the above analysis.J

- S52020

- 19

- 9

-

PCRA Court Opinion, 3/13/19, at 7

- 9

. The PCRA court similarly determined
that any pre

- verdict challenge by trial counsel t o 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 deter mination 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 r ecord
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

s up ported a finding that he had conspired with his co

- defendant to threaten

the victims with serious bo dily injury and had, in fact, threatened them with
serious bodily injury. Thus, Stills’s claim s pertaining to trial counsel’s

ineffectiveness entitle him to no relief.
However, Stills additionally disputes the PCRA court’s dismissal of his

claims that app ellate counsel was ineffective . Stills points out that his trial
counsel also represented him in his direct appeal . I n that capacity , counsel
continued to identify and argue the wrong subsection of the robbery statute

.J

- S52020

- 19

- 10

-

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 H e additionally claims that, had counsel challenged the sufficiency of the
conspiracy charge on direct appeal, the charges may have been overturned.
Notably, Stills ha s not included in the certified record copies of the filings
authored by appellate counsel in Stills’s direct appeal ; th u s, 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 , w here a

_________________ __________ ______ ____ _______

5 Stills also argues that appe llate 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 challenge d 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 i f an appellant is directed to file a concise statement of m atters 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.”).J

- S52020

- 19

- 11

-

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

claim is considered waived. Id

. However, since we have the bene fit 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 , thi s 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 a ny

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 esta blish that Stills either threatened the victims with
serious bodily injury , or inflicted serious bodily injury

. See id

. 6 Accordingly,

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

_________________ __________ ______ ____ _______

6 Moreover, in considering Stills direct appeal, this Court expressly determined that the e vidence 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 threatenedJ

- S52020

- 19

- 12

-

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] threate ned 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).