J-S52020-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MELVIN STILLS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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). 

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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’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 truthdetermining 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. 564.4In 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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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 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

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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).