J-S81001-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

JUSTIN TYRONE BAXTER

Appellant No. 1339 MDA 2018

Appeal from the PCRA Order Entered July 23, 2018

In the Court of Common Pleas of Dauphin County

Criminal Division at Nos: CP-22-CR-0000913-2014 

CP-22-CR-0005089-2014

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

JUSTIN TYRONE BAXTER

Appellant No. 1340 MDA 2018

Appeal from the PCRA Order Entered July 23, 2018

In the Court of Common Pleas of Dauphin County

Criminal Division at Nos: CP-22-CR-0005089-2014

BEFORE: STABILE, DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.: FILED APRIL 04, 2019

____________________________________________

* Former Justice specially assigned to the Superior Court.
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Appellant, Justin Tyrone Baxter, appeals from the July 23, 2018 order 

dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”), 42 

Pa.C.S.A. §§ 9541-46. We affirm. 

The record reflects that the victims, Joseph Payne-Casiano and Michael

Gelsinger, were in a car together when Gelsinger reached out of the passenger 

side window and fired three gunshots at Appellant. Appellant returned fire at 

the car, missing both Payne-Casiano and Gelsinger but killing a bystander. 

The Commonwealth arrested Appellant and charged him with, inter alia, 

aggravated assault of Gelsinger.1 The Commonwealth’s criminal complaint 

did not contain a charge for the aggravated assault of Payne-Casiano, who 

was seated next to Gelsinger in the vehicle. Two weeks before trial, the 

Commonwealth filed its information, in which it included a charge for the

aggravated assault of Payne-Casiano. The jury found Appellant guilty of 

aggravated assault of Payne-Casiano but failed to reach a verdict as to the 

aggravated assault of Gelsinger. On March 24, 2015, the trial court imposed 

an aggregate 9 1⁄2 to 19 years of incarceration for aggravated assault and 

related offenses. This Court affirmed the judgment of sentence on August 26, 

2016. Appellant did not seek allowance of appeal in the Pennsylvania 

Supreme Court. He filed this timely first PCRA petition on March 23, 2017. 

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1

 Gelsinger and Payne-Casiano stood charges for the homicide of the 

bystander victim. 
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The PCRA court conducted a hearing on June 1, 2018, and the PCRA court 

entered the order on appeal on July 23, 2018. This timely appeal followed. 

Appellant raises three issues for our review: 

I. Whether Appellant’s Due Process rights were violated 

and trial counsel was ineffective for proceeding to trial 

when the Commonwealth amended the criminal 

information to include count 1 at docket 5089 CR 2014 

when Appellant was never charged by way of criminal 

complaint or by grand jury indictment [includes failing 

to object to the justification jury instruction because 

it did not mention Joseph Payne-Casiano]? 

II. Whether trial counsel was ineffective for failing to 

perfect a direct appeal? 

III. Whether trial counsel was ineffective for failing to call 

witnesses that could have provided mitigating 

testimony to be considered during sentencing? 

Appellant’s Brief at 8 (brackets in original). 

“In PCRA proceedings, an appellate court’s scope of review is limited by 

the PCRA’s parameters; since most PCRA appeals involve mixed questions of 

fact and law, the standard of review is whether the PCRA court’s findings are 

supported by the record and free of legal error.” Commonwealth v. Pitts, 

981 A.2d 875, 878 (Pa. 2009). In order to establish that trial counsel rendered 

constitutionally ineffective assistance, a PCRA petitioner must plead and prove 

1) that the underlying claim is of arguable merit; 2) that counsel had no 

reasonable strategic basis in support of the disputed action or inaction; and 

3) that but for counsel’s error, the outcome of the proceeding would have 

been different. Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 
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(Pa. Super. 2015) (en banc). We presume counsel was effective; the 

petitioner bears the burden of proving otherwise. Id. 

Here, Appellant claims counsel was ineffective for failing to object when 

the Commonwealth’s information charged him with the aggravated assault of 

Payne-Casiano and Gelsinger even though the criminal complaint only 

referenced a charge against the latter. That is, the Commonwealth filed a 

criminal complaint at docket number 5089 of 2014 charging one count of 

aggravated assault against Gelsinger. On December 24, 2014, the 

Commonwealth filed its information at number 5089 alleging two counts of 

aggravated assault—one against Gelsinger and another against PayneCasiano. Appellant argues the Commonwealth proceeded in error because the 

complaint contained no charge for the assault of Payne-Casiano, and because 

the December 24, 2014 information—which was the original and not an 

amended information—contained a charge not referenced in the complaint. 

Appellant further alleges that his counsel was ineffective for failing to object. 

Although we are considering an original information at variance with the 

criminal complaint rather than an amended information, both parties analyze 

this case under Rule 564 of the Rules of Criminal Procedure: 

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. Upon 

amendment, the court may grant such postponement of trial or 

other relief as is necessary in the interests of justice.
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Pa.R.Crim.P. 564. A violation of Rule 564 does not necessarily merit relief to 

the defendant. Commonwealth v. Brown, 727 A.2d 541, 543 (Pa. 1999). 

Since the purpose of the information is to apprise the 

defendant of the charges against him so that he may have a fair 

opportunity to prepare a defense, relief is warranted for a violation 

of Rule 229[2] only when the variance between the original and the 

new charges prejudices appellant by, for example, rendering 

defenses which might have been raised against the original 

charges ineffective with respect to the substituted charges.

Id. (citations omitted). Appellant acknowledges that no relief is due unless 

the Commonwealth’s erroneous procedure prejudiced him. Appellant’s Brief 

at 23. Appellant claims he was prejudiced because the information added a 

felony charge against a different victim two weeks prior to trial. The PCRA 

court rejected that argument: 

In the instant matter, [Appellant] had a preliminary hearing 

where the Commonwealth presented evidence that [Appellant] 

fired into a car wherein both Mr. Payne-Casiano and Mr. Gelsinger 

were sitting next to each other. As such, [Appellant’s] defense 

and trial strategy would not change regardless of which of the 

victims was named in the complaint. Furthermore, [Appellant] 

was on notice at his preliminary hearing that the Commonwealth 

was alleging that he fired into a car in which two separate people 

were sitting. The fact that the criminal complaint only named one 

of those people does not mean that [Appellant] suffered unfair 

surprise when the Commonwealth amended the information to 

include the second person that was sitting in the vehicle that 

[Appellant] shot at. 

PCRA Court Opinion, 7/17/18, at 4. 

The PCRA court’s analysis is in accord with the governing law. In adding 

a charge of aggravated assault of Payne-Casiano, the Commonwealth did not 

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2

 The Rule has since been renumbered. 
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charge Appellant with an offense arising out of a different set of events, nor 

was the new charge materially different from the one alleged in the complaint. 

The information simply added a count of aggravated assault against a victim 

who was sitting in a car alongside Gelsinger when Appellant opened fire into 

that car. Appellant does not explain how any defense or defenses he prepared 

for the charge of assaulting Gelsinger was rendered ineffective by adding a 

count for the assault of Payne-Casiano. Appellant argues that trial counsel’s 

inability to prepare a defense for the Payne-Casiano charge is evidenced by 

the jury’s guilty verdict on that charge and by counsel’s failure to object to 

the trial court’s jury charge on justification, which apparently applied only to 

Gelsinger. Appellant’s Brief at 24. The difference in the jury’s verdicts on the 

aggravated assault charges—guilty as to Payne-Casiano but not guilty as to 

Gelsinger—is a matter of speculation. We observe, however, that it was 

Gelsiger, and not Payne-Casiano—who opened fire on Appellant. In any event, 

Appellant offers no concrete basis upon which we can conclude that the 

verdicts were the result of counsel’s inability to prepare a defense. Regarding 

a potential justification defense to the Payne-Casiano charge, Appellant fails 

to develop the issue with citation to pertinent legal authority and facts of 

record. We therefore cannot consider it as a basis for granting relief.3 In 

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3

 Failure to develop an argument with citation to pertinent facts and legal 

authorities results in waiver. Pa.R.A.P. 2119(b), (c); Commonwealth v. 

Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014), appeal denied, 95 A.3d 
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summary, Appellant’s first claim of ineffective assistance of counsel fails 

because Appellant has not established the arguable merit of the underlying 

claim. 

Next, Appellant claims counsel was ineffective for failing to file a 

Pa.R.A.P. 2119(f)4 statement in support of his challenge to the discretionary 

aspects of his appeal. Because Appellant omitted the Rule 2119(f) statement

in his direct appeal brief and the Commonwealth objected, this Court held that 

Appellant waived his challenge to the discretionary aspects of his sentence. 

Commonwealth v. Baxter, 1752 MDA 2015 (Pa. Super. August 26, 2016), 

unpublished memorandum at 4-5. This Court also held that Appellant’s 

argument would have failed even if preserved. Id. at 5 n.5. Appellant was 

challenging the trial court’s imposition of consecutive sentences, an issue that 

does not raise a substantial question for discretionary review except in 

____________________________________________

275 (Pa. 2014); Commonwealth v. Truong, 36 A.3d 592, 598-99 (Pa. 

Super. 2012), appeal denied, 57 A.3d 70 (Pa. 2012). 

4

 That Rule provides: 

(f) Discretionary aspects of sentence. An appellant who 

challenges the discretionary aspects of a sentence in a criminal 

matter shall set forth in a separate section of the brief a concise 

statement of the reasons relied upon for allowance of appeal with 

respect to the discretionary aspects of a sentence. The statement 

shall immediately precede the argument on the merits with 

respect to the discretionary aspects of the sentence.

Pa.R.A.P. 2119(f). 
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extreme circumstances. Id. (citing Commonwealth v. Austin, 66 A.3d 798, 

808 (Pa. Super. 2013), appeal denied, 77 A.3d 1258 (Pa. 2013)). 

This Court’s pronouncement on the merits of Appellant’s sentencing 

issue was dicta, and therefore not binding on this panel. “Dicta is an ‘opinion 

by a court on a question that is directly involved, briefed, and argued by 

counsel, and even passed on by the court, but that is not essential to the 

decision. Dicta has no precedential value.’” Castellani v. Scranton Times, 

L.P., 124 A.3d 1229, 1243 n.11 (Pa. 2015) (quoting Valley Twp. V. City of 

Coatesville, 894 A.2d 885, 889 (Pa. Commw. 2006)). 

Nonetheless, we conclude the prior panel’s conclusion was correct. The 

Austin Court explained, “the imposition of consecutive, rather than 

concurrent, sentences may raise a substantial question in only the most 

extreme circumstances, such as where the aggregate sentence is unduly 

harsh, considering the nature of the crimes and the length of imprisonment.” 

Austin, 66 A.3d at 808 (quoting Commonwealth v. Lamonda, 52 A.3d 365, 

372 (Pa. Super. 2012) (en banc)). The question is whether the aggregate 

sentence appears to be excessive in light of the criminal conduct at issue. Id. 

Instantly, as noted above, Appellant received an aggregate 91⁄2 to 19 

years of incarceration. The sentencing court imposed 6 to 12 years for the 

aggravated assault of Payne-Casiano; a concurrent sentence of 1 to 2 years

of incarceration for persons not to possess a firearm (18 Pa.C.S.A. § 6105); a 

consecutive sentence of 3 1⁄2 to 7 years for carrying a firearm without a license 
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(18 Pa.C.S.A. § 6106); and a concurrent 1 to 2 years of incarceration for the 

simple assault of Gelsinger.5

Appellant limits his argument to counsel’s failure to file a 2119(f) 

statement. Appellant’s Brief at 25-28. He does not attempt to explain how 

he would have raised a substantial question even if counsel complied with 

2119(f). We agree with our prior panel’s assessment that Appellant’s 

aggregate sentence is not extreme in relation to the crimes he committed. 

Appellant cannot establish that sentencing counsel was ineffective because 

the underlying issue lacks arguable merit. 

Finally, Appellant claims counsel was ineffective for failing to present 

mitigating witnesses at sentencing. At the PCRA hearing, Appellant presented 

the testimony of two relatives. The PCRA court wrote as follows: 

After hearing the testimony of Patricia Allen and Jamieka 

Ross, we do not believe that their testimony would have been 

beneficial to [Appellant]. Both witnesses are related to 

[Appellant] and stated that they loved him very much, so their 

testimony was biased in favor of [Appellant]. Additionally, neither 

witness offered any testimony that was particularly compelling so 

as to change this court’s mind as to [Appellant’s] sentence. 

PCRA Court Opinion, 7/17/18, at 5. Given the PCRA court’s analysis—that the 

witnesses were biased and had no significant evidence to offer— it is clear 

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5

 The charges other than aggravated assault were filed at docket number 913 

of 2014. We have consolidated the appeals from docket numbers 913 and 

5089 of 2014. 
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that counsel’s failure to call these witnesses at sentencing did not prejudice 

Appellant. For that reason, his ineffective assistance claim fails. 

Because we have found no merit to any of Appellant’s arguments, we 

affirm the order dismissing his petition. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/04/2019