J.S13036/16 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF 

 : PENNSYLVANIA 

 : 

 v. : 

 : 

SHONTEE D. LATHAM, : 

 : 

 Appellant : 

: No. 1234 WDA 2015 

Appeal from the PCRA Order June 12, 2015 

in the Court of Common Pleas of Lawrence County Criminal Division 

at No(s): CP-37-CR-0001332-2007 

BEFORE: LAZARUS, STABILE, and FITZGERALD,* JJ. 

MEMORANDUM BY FITZGERALD, J.: FILED MARCH 29, 2016 

Appellant, Shontee D. Latham, appeals from the order entered in the 

Lawrence County Court of Common Pleas denying his first Post Conviction 

Relief Act1 (“PCRA”) petition after a hearing. Appellant contends his trial 

counsel was ineffective by not informing him that the Commonwealth 

amended the information prior to trial. We affirm.

We adopt the facts and procedural history set forth in the PCRA court’s 

opinion. PCRA Ct. Op., 6/12/15, at 1-4. The affidavit of probable cause 

stated Appellant used a firearm to rob the victims. Aff. of Probable Cause, 

11/26/07, at 4. We quote the original information as follows: 

Count: 1 Robbery-Take Property Fr Other/Force – (F3) 

 

*

 Former Justice specially assigned to the Superior Court. 

1

 42 Pa.C.S. §§ 9541-9546. 
J.S13036/16 

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Offense Date: 11/14/2007 18 §3701 §§A1V 

In the course of committing a theft, inflicted serious bodily 

injury upon another; and/or threatened another with, or 

intentionally put another in fear of, immediate serious 

bodily injury; and/or committed or threatened to 

immediately to commit a felony of the first or second 

degree; and/or inflicted bodily injury upon another, or 

threatened another with or intentionally put another in fear 

of immediate serious bodily injury; and/or physically took 

or removed property from the person of another by force 

however slight, namely [victims]. 

Information, 12/11/07, at 1. 

At Appellant’s January 8, 2008 arraignment, the court charged 

Appellant with third-degree robbery, and essentially reiterated the above 

information. N.T. Arraignment Hr’g, 1/8/08, at 2-3. Appellant filed an 

omnibus motion to, inter alia, suppress evidence. At the June 5, 2008 

hearing on Appellant’s motion, one of the victims identified Appellant as 

carrying two firearms during the robbery. N.T. Suppression Hr’g, 6/5/08, at 

6. 

At some point prior to October 31, 2008, the Commonwealth made a 

plea offer to Appellant: plead guilty to 18 Pa.C.S. § 3701(a)(ii) robbery, a 

first-degree felony, in exchange for a sentence of four to eight years’ 

imprisonment. N.T. PCRA Hr’g, 1/29/15, at 16. Appellant’s counsel 

presented the plea offer to Appellant, who rejected it on the basis that he 

was not the culprit. Id. at 15. 
J.S13036/16 

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On October 31, 2008, the Commonwealth filed an amended 

information: 

The actor did intentionally, knowingly or recklessly in the 

course of committing theft, threaten or intentionally put in 

fear of immediately serious bodily injury [the victims] in 

that he did, namely during an armed ronbbery [sic] the 

actor went inside the Dollar General store with a loaded 

gun, pointed the gun at the victim’s [sic] who are 

employees at the said store and demanded money, all of 

which constitutes robbery, a felony of the first degree, in 

violation of Section 3701(a)(1)(ii) of the Crimes Code [18 

Pa.C.S.A. 3701(a)(1)(ii)]. 

First Am. Information, 10/31/08, at 1 (some capitalization omitted and 

second alteration in original). Trial counsel testified she did not recall 

whether she discussed the amended information with Appellant. 

A jury trial commenced on November 12, 2008. Appellant’s defense 

was that he was not the culprit. See, e.g., N.T. PCRA Hr’g, 1/29/15, at 13; 

N.T. Trial, 11/12/08, at 123-25. Appellant was found guilty, and this Court 

affirmed on direct appeal. The Pennsylvania Supreme Court denied 

Appellant’s petition for allowance of appeal on November 24, 2010. 

Appellant, pro se, timely filed his first PCRA petition on September 1, 

2011. Counsel was appointed, who filed an amended petition on September 

7, 2012. After an evidentiary hearing at which Appellant’s trial counsel, 

among others, testified, the PCRA court denied Appellant’s petition on June 

12, 2015. Appellant timely appealed on Monday, July 13, 2015. See 1 

Pa.C.S. § 1908. 
J.S13036/16 

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On July 17, 2015, the court ordered Appellant to comply with Pa.R.A.P. 

1925(b) within twenty-one days. The court served the order on Appellant’s 

counsel via fax on July 17, 2015, at 10:36 a.m. Appellant filed his Rule 

1925(b) statement on Tuesday, August 11, 2015, at 2:12 p.m., four days 

after the twenty-one day deadline lapsed. The Rule 1925(b) statement 

includes a certificate of service averring that it was mailed via U.S. mail on 

August 5, 2015, to the PCRA judge and the district attorney. The docket 

also includes an entry stating counsel faxed his Rule 1925(b) statement to 

the court on August 5, 2015. The certified record, however, does not 

include that fax or any “United States Postal Service Form 3817, Certificate 

of Mailing, or other similar United States Postal Service form,” as referenced 

in Pa.R.A.P. 1925(b)(1). Also on August 11, 2015, at 2:12 p.m., the court 

filed an order indicating it reviewed Appellant’s Rule 1925(b) statement and 

relied on its prior opinions as satisfying the requirements of Rule 1925(a). 

Assuming that Appellant filed his Rule 1925(b) statement late, we decline to 

find waiver; we additionally note the court indicated it reviewed the Rule 

1925(b) statement. See Pa.R.A.P. 1925(c)(3); Commonwealth v. Burton, 

973 A.2d 428, 432-33 (Pa. Super. 2009) (en banc) (holding untimely filing 

of Rule 1925(b) statement by counsel is per se ineffective assistance of 

counsel). The PCRA court’s Rule 1925(a) decision adopted its prior June 12, 

2015 opinion. 

Appellant raises the following issue: 
J.S13036/16 

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Whether Appellant is entitled to post-conviction collateral 

relief where trial and post-trial counsel were ineffective in 

failing to object to the unlawful amendment of the 

information at the lower court proceedings, and that 

ineffectiveness in the truth-determining process was such 

that no reliable adjudication of guilt or innocence could 

have taken place? 

Appellant’s Brief at 2. 

Appellant argues that if he was informed of the amended information, 

“he would have approached the case differently.” Id. at 5. He contends the 

amendment changed the charges of robbery and conspiracy as third-degree 

felonies to first-degree felonies. Appellant insists he was not aware of the 

amended information until the day of sentencing. He submits that the 

district attorney never moved the court for permission to amend the 

information, the court never granted permission, and he was never 

arraigned on the amended charges. Appellant maintains that trial counsel’s 

failure to object to the amended information or notify him of the change 

affected the outcome of the case. We hold Appellant is due no relief. 

“On appeal from the denial of PCRA relief, our standard and scope of 

review is limited to determining whether the PCRA court’s findings are 

supported by the record and without legal error.” Commonwealth v. AbuJamal, 941 A.2d 1263, 1267 (Pa. 2008) (citation omitted). 

[C]ounsel is presumed to have provided effective 

representation unless the PCRA petitioner pleads and 

proves that: (1) the underlying claim is of arguable merit; 

(2) counsel had no reasonable basis for his or her conduct; 

and (3) Appellant was prejudiced by counsel’s action or 

omission. To demonstrate prejudice, an appellant must 
J.S13036/16 

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prove that a reasonable probability of acquittal existed but 

for the action or omission of trial counsel. A claim of 

ineffective assistance of counsel will fail if the petitioner 

does not meet any of the three prongs. Further, a PCRA 

petitioner must exhibit a concerted effort to develop his 

ineffectiveness claim and may not rely on boilerplate 

allegations of ineffectiveness. 

Commonwealth v. Perry, 959 A.2d 932, 936 (Pa. Super. 2008) 

(punctuation marks and citations omitted). We can affirm on any basis. 

Commonwealth v. Clouser, 998 A.2d 656, 661 n.3 (Pa. Super. 2010). 

With respect to amending the information, we are guided by the 

following: 

Rule [564] of the Pennsylvania Rules of Criminal Procedure 

provides: 

The court may allow an information to be amended 

when there is a defect in form, the description of the 

offense[(s)], the description of any person or any 

property, or the date charged, provided the 

information as amended does not charge an 

additional or different offense. Upon amendment[,]

the court may grant such postponement of trial or 

other relief as is necessary in the interests of justice. 

Pa.R.Crim.P. [564]. 

The purpose of Rule [564] is to ensure that a defendant 

is fully apprised of the charges, and to avoid prejudice by 

prohibiting the last minute addition of alleged criminal acts 

of which the defendant is uninformed. In reaching this 

goal, this court has held: 

The courts of this Commonwealth employ the test of 

whether the crimes specified in the original 

indictment or information involve the same basic 

elements and evolved out of the same factual 

situation as the crimes specified in the amended 

indictment or information. If so, then the defendant 
J.S13036/16 

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is deemed to have been placed on notice regarding 

his alleged criminal conduct. If, however, the 

amended provision alleges a different set of events, 

or the elements or defenses to the amended crime 

are materially different from the elements or 

defenses to the crime originally charged, such that

the defendant would be prejudiced by the change, 

then the amendment is not permitted. 

Commonwealth v. Davalos, 779 A.2d 1190, 1194 (Pa. Super. 2001) 

(some citations omitted). 

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, our Supreme Court 

has stated that following an amendment, relief is 

warranted only when the variance between the original 

and the new charges prejudices an appellant by, for

example, rendering defenses which might have been 

raised against the original charges ineffective with respect 

to the substituted charges. Factors that we must 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. 

Commonwealth v. Sinclair, 897 A.2d 1218, 1223 (Pa. Super. 2006) 

(citations omitted). 

To the extent the amended information charges an offense “carrying a 

greater potential penalty and whose elements are theoretically different,” 

our courts nonetheless apply Rule 564 
J.S13036/16 

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with an eye toward its underlying purposes and with a 

commitment to do justice rather than be bound by a literal 

or narrow reading of procedural rules. Therefore, this 

court had stressed that “we look more to substantial 

justice than to technicalities” when reviewing the validity 

of an amended information. 

Commonwealth v. Grekis, 601 A.2d 1284, 1288-89 (Pa. Super. 1992) 

(footnote and citation omitted). 

In Commonwealth v. Brown, 727 A.2d 541 (Pa. 1999), our 

Supreme Court examined whether a defendant suffered prejudice when the 

original information charged rape and involuntary deviate sexual intercourse 

(“IDSI”) by forcible compulsion and the amended information—filed 

immediately prior to trial—charged rape and IDSI with an unconscious 

person. Id. at 542. The Brown Court initially concluded that the amended 

information introduced new offenses because the new charges of rape and 

IDSI with an unconscious person did not require proof of force by the 

defendant. Id. at 544. Therefore, our Supreme Court held the amended 

information violated Rule 564. Id. 

Our Supreme Court next examined whether the violation of Rule 564 

prejudiced the defendant 

by, for example, rendering defenses which might have 

been raised against the original charges ineffective with 

respect to the substituted charges. At the outset of this 

analysis, we note that, based on the original charges, [the 

defendant] had every reason to expect that the 

Commonwealth would be attempting to establish that the 

victim was conscious during the sexual encounter. It 

would be virtually impossible for the Commonwealth to 

meet its burden of establishing that [the defendant] used 
J.S13036/16 

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physical force, a threat of physical force, or psychological 

coercion against the victim if the Commonwealth did not 

first establish that the victim was conscious. Assuming the 

Commonwealth could establish that the victim was 

conscious, [the defendant’s] primary line of defense would 

have been that she consented to the encounter. When the 

Commonwealth shifted the focus of its case to proving that 

the victim was unconscious, the Commonwealth vitiated 

[the defendant’s] primary line of defense, since consent is 

not a defense to the charges of Rape and/or IDSI with an 

unconscious person. Therefore, by varying the information 

at the eleventh hour, the Commonwealth rendered [the 

defendant’s] primary defense a nullity. 

Id. (citations omitted). The Brown Court thus reversed the defendant’s 

convictions of rape and IDSI of an unconscious person. Id. at 545. 

The relevant subsections of the robbery statute follow: 

(a) Offense defined.— 

(1) A person is guilty of robbery if, in the course of 

committing a theft, he: 

* * * 

(ii) threatens another with or intentionally puts him 

in fear of immediate serious bodily injury; 

* * * 

(v) physically takes or removes property from the 

person of another by force however slight; . . . . 

18 Pa.C.S. § 3701. 

Assuming, without holding, that subsection (ii) robbery carries a 

greater penalty and requires proof different from subsection (v) robbery, 

see Grekis, 601 A.2d at 1288-89, and that counsel failed to apprise 

Appellant of the amended information, we ascertain whether Appellant 
J.S13036/16 

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suffered prejudice. See Brown, 727 A.2d at 544. Initially, the crimes in 

Appellant’s original and amended information derive from the same facts. 

See Davalos, 779 A.2d at 1194. Appellant, moreover, has been aware of 

his alleged use of a firearm since the inception of this case. See Aff. of 

Probable Cause at 4; N.T. Suppression Hr’g at 6. Unlike the defendant in 

Brown, the amended information did not prompt Appellant to change his 

defense, as his sole defense was that he was not the culprit, which, if 

successful, would have exculpated him on both the original and substituted 

charges. See, e.g., N.T. Trial at 123-25; cf. Brown, 727 A.2d at 544;

Sinclair, 897 A.2d at 1223. Also unlike Brown, the Commonwealth’s 

request for amendment occurred twelve days prior to trial, which provided 

sufficient pretrial notice and preparation. Cf. Brown, 727 A.2d at 543;

Sinclair, 897 A.2d at 1223. Finally, Appellant, prior to trial, rejected an 

offer to plead guilty to robbery, graded as a first-degree felony, which belies 

his protestation that he was unaware of the first-degree grading. See 

generally Sinclair, 897 A.2d at 1223. After careful consideration of all the 

Sinclair factors, and recognizing our commitment to do justice, we discern 

no basis for relief assuming counsel erred by not objecting to the amended 

information. See Sinclair, 897 A.2d at 1223; Grekis, 601 A.2d at 1288-89. 

Similarly, assuming counsel failed to apprise Appellant of the amended 

information, Appellant failed to establish prejudice based on the foregoing. 

See Sinclair, 897 A.2d at 1223; Grekis, 601 A.2d at 1288-89. The 
J.S13036/16 

- 11 -

underlying claim lacks arguable merit and thus we affirm the PCRA court, 

albeit on other grounds. See Clouser, 998 A.2d at 661 n.3; Perry, 959 

A.2d at 936. 

Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 3/29/2016 
i···, [.NI MOf")f:AII 

:L· .. LL . 1 \di-\1\ 

n.•,r. A I.In f'I [:-DI.( 

20!5 JUN l 2 P I: 4 4 

)1~~& 

med nonri nick Motto, Pd. 

BY THE COURT: 

to h: m. 

ORDER OF COURT 

AND NO~J, this I) pday o;- J un~OlS, for the reasons set 

forth i11 the accompanying Opini6n of even date herewith1 it is 

ORDERED, ADJUDGED and DECREED that Defendant's Motion for Postconviction collateral Relief is DENIED in its entirety. 

The Defendant is advised that he has the right of appeal 

from this decision and any appeal must be filed within 30 days 

of this date or the right to file wil I be lost. The Defendant 

is a 1 so advi sed that he has the r i ght to counse 1 in fi 1 i ng such 

appeal and if he is financially unable t0 employ counsel, 

counse l wi 11 be aopoi nt ed to rep resent the Defendant at no cost 

OTN: 

!"'\ 

NO. 1332 OF 2007, CR.Jl~!,( 

,l 

SHONTEE LATHAM 

vs. 

IN THE COURT OF COMMON PLEAS 

LAWRENCE COUNTY, PENNSYLVANIA 

COMMON\<!E.ALTH OF PENNSYLVANIA 

/\VlF?FNc:·r CC)UNTY 

;;c NN'..:; y i .. \/ fl.. N: A 

'.)3HD 

JUDIC!Al_ 

DlSTF?!C:T 

Circulated 03/03/2016 02:28 PM
2015 JUN l 2 p I: 4 4 

AV.fHE"NCE COUNTY 

PENNSYLVANlA 

Before the court for disposition is the Defendant's Amended 

Petition for Post-conviction collateral Relief brought pursuant 

to the Post-Conviction Collateral Relief Act, 42 Pa.C.S.A. §9541 

et.seq., ("PCRA"). In this amended petition Defendant asserts 

I 

i that he was denied effective assistance of counsel where prior 

trial and post-trial counsel failed to raise the issue of police 

I. 

11 not having probable cause to stop Defendant's vehicle or arrest 

Defendant; failed to present evidence during the trial that when 

the police arrived at the Dollar General Store the robbery was 

still in progress; failed to suppress the identification 

, testimony of witness Ashley Kahne; and failed to object to the 

commonwealth amending the information prior to trial. The sole 

issue before the court for is whethef both trial counsel and 

post-trial counsel were in~ifective it1 failing to object to the 

'.: '. '.~ r·, / (\ o I('!~! ! f 

,. ,_ ... 1 u r, 1 , i ; , u-. ,_ 

53RD 

JUDICIAL 

DISTRICT 

MOTTO, P.J. June 12, 2015 

OPINION 

Ross T. smith, Esquire 

Huntington Bank Building 

26 Market st., suite 610 

Youngstown, OH 44503 

For the Defendant: 

Jonathan R. Miller, Esquire 

Assistant District Attorney 

430 court street 

New castle, PA 16101 

For the co~nonwealth: 

APPEARANCES 

SHONTEE LATHAM 

LAWRENCE COUNTY, PENNSYLVANIA 

NO. 1332 OF 2007, CR. 

OTN: K662932-4 

, COMMONWEALTH OF PENNSYLVANIA 

vs. 

IN THE COURT OF COMMON PLEAS 
20l5 JUr1 l 2 P I: 4 Lt 

commonwealth v. Grant, 813 A.2d 726. 738 (Pa.2002); however, 1n 

commonwealth v. Watson, 835 A.2d 786 (Pa.super. 2003), the 

Superior court held that on a direct apre~18t1G1R1j_neffective 

11 addressed by this court on Defendant's Motion for a New Trial. 

The supreme Court of Pennsylvania has held that generally ''a 

practitioner should wait to raise claims of ineffective 

assistance of trial counsel until collateral review." 

Arrest of Judgment, Motion for Judgment of Acquittal and a 

Motion for a New Trial in which he presented eighteen issues of 

alleged error, many of which involved allegations of ineffective 

assistance of counsel. The ineffective assistance claims were 

a Motion for Post-Sentence Relief in the form of a Motion ,n 

11 

Following a Jury trial, Defendant was found guilty of and 

111 sentenced on charges of Robbery, a violation of §3702(a)(l)(ii) 

. of the crimes code, conspiracy to commit Robbery, a violation of 

§903 of the crimes code and two counts of Recklessly Endangering 

Another Person, a violation of §2705 of the crimes code. 

Defendant was sentenced on the above charges to an aggregate 

term of imprisonment of not less than 9 years nor more than 18 

years in a state correctional institution. Following 

! sentencing, and with substitute counsel, Defendant timely filed 

I ,, 

such issue. 

commonwealth amending the information prior to trial. The court 

will deny Defendant1s Amended Petition for Post-Conviction 

collateral Relief because the court finds the issue is totally 

. devoid of merit and trial counsel and post-trial counsel cannot 

! 

I, therefore be held to have been ineffective for failure to raise 

I' 

If 

/:,VIRENCE c o u rsrv 

P~NNSYLVAN!A 

53F<P 

JUDICIAL 

DISTRICT 
i015 JUH I 2 P J: uu 

i ,l': LU~ I. MORGAt~ 

?rW ANO CLERK 

The commonwealth moved to dismiss 

' - ' '.- '1 I () ["' i G ! U 11. j 

. ., , . i.• / <...,I\ I .J i r1 i v r , 

information prior to trial. 

assistance of counsel. The amended petition raised the 

identical claims of ineffectiveness of prior counsel for failing 

to raise the issue of police not having probable cause to stop 

Defendant's vehicle or arrest Defendant, failing to present 

evidence during the trial that when the police arrived at the 

Dollar General Store the robbery was still in progress, and 

fa~ling to suppress the identification testimony of witness 

Ashley Kahne as well as the additional issue of ineffectiveness 

for failing to object to the commonwealth amending the 

on September 7, 2012 raising fours claims of ineffective 

I counsel to represent the Defendant. court appointed counsel 

I filed an Amended Petition for Post-Conviction collateral Relief 1, 

I! 

' 

conviction Collateral Relief, resulting in appointment of new 

on September 6, 2011 Defendant filed a Motion for Post- 

'I May 21, 2010. 

I 

I 

counsel claims under the Post-Conviction Relief Act (PCRA). 

Here, following a hearing on Defendant's Post-Trial Motions with 

new counsel in which pre-trial and trial counsel testified, the 

court issued an order and opinion dated May 12, 2009, in which 

this court analyzed the record and denied all of Defendant's 

Motions for Post-sentence Relief and all supplements thereto. 

The Defendant appealed. The Pennsylvania superior court 

affirmed the decision of this court by Memorandum opinion dated 

and addressed by the trial court, the appellate court will apply 

the same standard used to review ineffective assistance of 

i 

I assistance of counsel claim, where the issues were presented to 

!i I 

I l'"<WR'E:NCE COUNT'\' 

PENNSYLVANIA 

53RD 

JUDfCIAL 

DfSTRICT 
, AV/HENCE COUN1'"Y 

~·ENNSYL..VANIA 

remaining issue of whether Defendant is entitled to post-conviction 

collateral relief because trial.and post-trial counsel were 

:~· : . Ff)/ 0 r~ I G ! H 1\ L 

Defendant's Motion for a Post-sentence Relief and subsequent 

appeal to the superior court, and cannot be re-litigated as part 

of the Defendant's post--convi cti on proceeding. The sole 

prior to trial because the issues were previously litigated on 

20!5 JUH i 2 P I: 44 

,,;.·L r:·N I ~-U"'PG ,_ ~' ',, ... L • l'IU,\ i,,,, 

?RO ANO CLEf\K 

53HO 

JUDICIAL 

Dl5TR!CT 

I failure to object to the commonwealth amending the Information 

ii 

I 

~.Ragan, 560 Pa. 106, 743 A.2d 390 (1999). 

I 

Ii By order dated April 30, 2014, this court granted 

commonwealth's motion to dismiss all issues except counsel's 

entitled to post-conviction relief on an issue that was finally 

I! litigated in direct appeal. commonwealth v. McGriff, 432 

II Pa.super. 467, 638 A.2d 1032 (1994). In commonwealth v. Eaddy, 

419 Pa.super. 48, 614 A.2d 1203 (1992), app. Den. 534 Pa. 636, 

626 A.2d 1155, the superior court held that the Defendant was 

11 not eligible for relief under the PCRA on the issue of the 

sufficiency of evidence to support an aggravated assault 

conviction where the issue had previously been litigated in the 

superior court, which is the highest appellate court in which 

the defendant has review as a matter of right. The burden of 

1 I, proof is on the defendant to show that the issues raised in his 

PCRA petition have not been previously 1itigated. commonwealth 

Hutchins, 760 A.2d 50 (Pa.super. 2000). A petitioner is not 

had been previously litigated on direct review. 

[, commonwealth v. 

the amended petition on the basis that all of the Defendant's 

claims have been previously litigated. 

Post conviction review is not available as to issues which 
2~15 JUN i 2 P I: 4 ~ 

!\[L[t1 l. MDHGt-d, 

F r~O t"'NO CL Ef\K 

More specifically, Defendant argues that he was 

,-- ! : __ f-~ 0 / 0 Rf G l 1-J /,_I_ prior to trial. 

Defendant argues that trial and post-trial counsel were 

ineffective in failing to object to amending the information 

Defendant to establish by a preponderance of the evidence a 

basis for relief under the Post-conviction Relief Act, 42 

Pa.C.S.A. §9541, et.seq. commonwealth v. Rowe, 411 Pa.super. 

363, 601 A.2d 833 (1992). There is a presumption that counsel 

has acted effectively. commonwealth v. Miller, 494 Pa. 229, 431 

A.2d 233 (1981). In order to show ineffective assistance of 

counsel which has so undermined the truth determining process 

that no reliable adjudication of guilt or innocence could have 

taken place. a post-conviction petition must show: (1) that the 

claim is of arguable merit; (2) that counsel had no reasonable 

strategic basis for his action or inaction; and (3) that, but 

for the errors and omissions of counsel, there is reasonable 

probability that the outcome of the proceedings would have been 

different. commonwealth v~ Rivers, 567 Pa. 239, 786 A.2d 923 

(2001). 

Pa.C.S.A. §9543(a)(2)(ii). The burden of proof lies with the 

adjudication of guilt or innocence could have taken place. 42 

counsel, which in the circumstances of the particular case, so 

I 

11 undermined the truth-determining process that no reliable 

!' 

In order to be eligible for relief, Defendant must prove 

that the conviction resulted from the ineffective assistance of 

ineffective in failing to object to the commonwealth amending 

the information prior to trial must be denied because the claim 

is without merit. 

· AWF?ENCE COUNTY 

PENN~..iYl.V.AN~A 

siRo 

.JUDICIAL 

DISTRICT 
2015 JUH I 2 P I: IH~ 

6 

information. 

I 

11 sentencing hearing on January 7, 2009. Defendant argues that 

the commonwealth never motioned the court at any time for 

permission to amend the information nor is there an order of 

court granting the commonwealth permission to amend the 

changed the original charge of Robbery, 18 Pa.c.s. 

r §3701(a)(l)(v), a felony of the third degree, to Robbery, 18 

f J 

11 Pa.c.s. §3701 (a)(l)(ii), a felony of the first degree, and also 

i 

changed the charge of criminal conspiracy, 18 Pa.c.s. 

§903(a)(l), from a felony of the third degree to a felony of the 

i' first degree. Defendant was found guilty on all charges after a 

trial by jury on November 12, 2008. Defendant contends that he 

was not made aware of the amended information until the 

Petition for Habeas corpus by opinion and order dated September 

25, 2008. on October 31, 2008 the commonwealth filed an amended 

information with the clerk of courts. The amended information 

not notified about the amended information until the time of 

sentencing. Defendant contends that he suffered prejudice from 

the amendment and had he been advised that the information was 

amended he would have approached the case differently. on 

December 11, 2007 the original information was filed charging 

Defendant with Robbery, 18 Pa.c.s. §3701(a)(l)(v), criminal 

conspiracy, 18 Pa.C.S, §903(a)(l), and three counts of 

Recklessly Endangering Another Person, 18 Pa.c.s. §2705. on 

January 23, 2008 Defendant's counsel filed an omnibus Pre-trial 

motion and Petition for Habeas corpus. After a hearing, the 

court denied Defendant's Motion for omnibus Pre-trial Relief and 

AV/RENCE. COUNTY! 

Pf-,NNSYl .. VANIA I 

I 

53HD 

JUDICIAL 

DISTRICT 
ZOIS JUN \ 2 P I: 4 u 7 

,. · , r r1 I n R 1' (; ! >i .\ 1 i l ;,_ L, L_) I u \.,.1 I+ { ··~ 

According to the Pennsylvania Rule of criminal Procedure 564, 

after the Information is issued: 

The court may allow an information to be amended when there 

is a defect in form, the description of the offense(s), the 

description of any person or any property, or the date charged, 

provided the information as amended does not charge an 

additional or different offense. Upon amendment, the court may 

grant such postponement of trial or other relief as is necessary 

1n the interest of justice. 

(C) The information shall contain the official or customary 

citation of the statue and section thereof, or other 

provision of 1 aw that the defendant is a.11 eged therein to 

have violated; but the omission of or error in such 

citation shall not affect the validity or sufficiency of 

the information. 

I 

1. 

these charges on the amended 'i nformat t on was a direct result of 

trial counsel's ineffectiveness. More specifically, Defendant 

argues that prior trial and post-trial counsel failed to object 

to the amended information and failed to notify Defendant that 

the information was amended. Defendant contends that prior 

counsel's ineffectiveness in failing to object to or notify the 

Defendant of the amended information would have affected the 

outcome of the case because Defendant would have made an 

informed decision about whether to accept a negotiated plea 

agreement or proceed to trial. Therefore, Defendant is entitled 

to post-conviction collateral relief. 

Pennsylvania Rule of criminal Procedure 560 provides: 

Rule 560. Information: Filing, contents1 Function. 

(A) After the defendant has been held for court following a 

preliminary hearing or an ind·ictment, the attorney for 

the commonwealth shall proceed by preparing an 

information and filing it with the court of common pleas. 

AV/F~ EN CE COUNTY 

PENNSYLVANlA 

53HD 

JUDIC!A L 

DISTRICT 
2015 JUN 12 P I: ltLt 

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In reviewing a grant to amend an information, this court 

will look to determine whether the defendant is fully apprised 

of the charges against him. where the crimes specified in the 

original information involve the same basic elements and arose 

out of the same factual situation as the crimes specified in the 

amended information, the defendant is deemed to have been placed 

on notice regarding his alleged criminal conduct and no 

prejudice to defendant results. commonwealth v. Stanley, supra. 

Further, if there is no showing of prejudice, amendment of an 

information to add an additional charge is proper even on the 

day of trial. commonwealth v. Womack, 307 Pa.super. 396, 453 

A.2d 642 (1982). Finally, the mere possibility amendment of an 

information may resu1 t ; n a more ·se~-~rtc~i~1G~fhrue to the 

! 

'1 

Id. (citing commonwealth v. Stanley, 265 Pa.super. 194, 401 A.2d 

1166, 1175 (1979)). 

whether the crimes specified in the original indictment or 

information involve the same basic elements and evolved out 

of the same factual situation as the crimes specified in 

the amended indictment or information. If so, the 

defendant is deemed to have been placed on notice regarding 

his alleged criminal conduct. If, however, the amended 

provision alleges a different set of events, or the 

elements or defenses to the amended crime are materially 

different from the elements or defenses to the crime 

originally charged, such that the defendant would be 

prejudiced by the change, then the amendment is not 

permitted. 

The purpose of the above Rule is to ensure that a defendant 

is fully apprised of the charges, and to avoid prejudice by 

prohibiting the last minute addition of alleged criminal acts of 

I which the defendant is un-informed. commonwealth v. Davalos, 779 

II !i A.2d 1190, 1194 (Pa.super. 2001). The test to be applied is: 

i, 

I 

: t\V..JRENCt;,- COUN'T'Y 

PENNSYLVANIA 

53RD 

JUDICIAL 

DISTR !CT 
20\S JUN I 2 P I: lilt 

9 

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i ntormati on was amended, therefore, i t1_~fr_1rPa;~icR~}Jef that even 

addition of charges is not, of i t se l f, prejudice. commonwealth 

v. Lawton, 272 Pa.Super. 40, 414 A.2d 658 (1979); commonwealth 

v. Jones, 319 Pa.super. 570, 466 A.2d 691 (1983). 

In the present case, neither additional charges nor a 

different set of events were added to the information. Rather, 

the offenses set forth in the amendments involved the same basic 

elements and the same factual situations as specified in the 

original information. The original information charged the 

defendant with Robbery, 18 Pa.c.s. §3701(a)(l)(v), physically 

takes or removes property from that person of another by force 

however slight, a felony of the third degree. The amended 

information changed the Robbery charge to subsection 

3701(a)(l)(ii), threatens another with or intentionally puts him 

in fear of immediate serious bodily injury, and changed the 

grading for a third degree felony to a felony of the first 

degree. As a result of the grading change on the Robbery 

charge, the amended information changed the grading of the 

criminal conspiracy charge from a third degree felony to a 

felony of the first degree. At the evidentiary hearing on 

Defendant's Motion for Post-conviction collateral Relief, trial 

counsel testified that while the amended information changed the 

subsection under which the defendant was changed that the 

language of the charge on the original information reflected the 

elements of the offense under §3701(a)(l)(ii) rather than 

§3701(a)(l)(v). According to trial counsel, the language 

included on the original information did not change when the 

f !' 

''\\VliENcv; COUNTY 

Pf;:NN'.·\YLVANIA 

53HO 

JUDICIAL.. 

DISTRICT 
ZOIS JUN I 2 P I: 4 LI 

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information in this case did not change the basis of the Robbery 

and criminal cons pi racy charges (W1~~mt~H9~fendant, Here' 

scenario and involved the identical victims. Amendment of the 

though the original information charged the defendant with a 

third degree felony under §3701(a)(l)(v), the factual basis for 

the offense on the original information were actually the 

language of a first degree felony under §3701(a)(l)(ii) which 

includes threatening to inflict serious bodily injury. As a 

result, when the Commonwealth made the oral motion to amend the 

information to reflect the new subsection and grading on the 

Robbery and criminal conspiracy charges trial counsel did not 

object because in her op+nion it was a formality to change the 

subsection under which defendant was charged and had no effect 

on the language used in describing the factual basis of the 

offense since the elements of §3701(a)(l)(ii) were included 1n 

the original information and defendant was on notice of what the 

commonwealth intended to prove at trial. Trial counsel 

testified that she was aware that the commonwealth made an oral 

motion to amend the information and that she had no objection to 

the amendment because the language put forth in the amended 

information outlining the factual basis of what the commonwealth 

intended to prove was identical to that used in the original 

information, therefore, her client was not prejudiced by the 

amendment. Following the standards enunciated in commonwealth 

v. Stanley, supra. this court finds no prejudice to defendant 

where the amended information reflects the identical factual 

basis and the elements thereof arose out of the identical 

I .'-\\VF-'~ENCE COL.JN!Y 

PENNSYL,VAN!A 

53HD 

JUDICIAL 

DfSTR !CT 
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she had no objection to the amendment because although the 

grading changed, the factual basis remained the same and she 

believed the amendment did not legally prejudice the defendant. 

Defendant argues that had he known about the amendment 

prior to trial he would have approached the case differently. 

The Court finds that even if the ~~:r/'5\-fJ?;:iirformation had not 

amended after the plea offer was made by the commonwealth and 

change. Trial counsel stated that the information was formally 

objection because the factual basis for the charge did not 

§3701(a)(l)(ii) which is a first degree felony and she had no 

that she was aware the plea offer was actually based on 

identical to that on the information. Trial counsel testified 

listed on the information but the factual basis for the plea was 

was aware that the plea offer was made to a subsection not 

felony of the first degree. Trial counsel testified that she 

I the trial was for a plea of guilty to Robbery §3701(a)(l)(ii), a 

I 

I 

I 

1. 

1· 

I 

I 

Furthermore, the plea offer tendered by the commonwealth before 

by counsel, and, therefore, there was no prejudice to defendant. 

defendant with an amended information because he was represented 

this court finds that there was no need to personally provide 

ii counsel and counsel had no objection to the amended information 

I 

!1 

I 

Defendant also claims he was prejudiced by the failure of 

the commonwealth to provide a written amendment directly to him. 

Given the foregoing facts that defendant was represented by 

defendant had ample no ti CE: of the f'ac tua l basis tor the charges 

against him. As such, defendant's claim of ineffective 

assistance of counsel on this basis is without merit. 

II 

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1 .-:-.V/HENCE COUNTY 

PENNSYLVA NjA 

53RD 

JUDICIAL 

DISTR IC'r 
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ineffective for failing to pursue meritless claims. The court 

has found that trial counsel was not ineffective in her 

Defendant also asserts that post-trial counsel was 

ineffective for failing to object to the amended information at 

the time of sentencing and failing to raise an ineffective 

counsel claim against trial counsel when he began representing 

Defendant. Post-trial counsel will not be considered 

counsel was ineffectiveJ that the underlying r.laim possessed 

legal merit or that he was prejudiced as the result of counsel's 

action or inaction. 

to be without merit. The Defendant has tailed to show that 

how he was prejudiced by the amendment to the information. As 

stated in Commonwealth v. Taylor, 933 A.2d 1035 (Pa.super. 2007) 

reargument denied, appeal denied, 951 A.2d 1163, 597 Pa. 715, 

counsel cannot be found ineffective for failing to pursue a 

baseless or meritless claim. The court finds defendant's claim 

Because the defendant has 

11 

was not the person who robbed the Dollar General store and he 

., did not conspire with anyone who did. 

maintained his innocence throughout this case he has not shown 

crimes he was charged with and he was not willing to accept any 

plea offer. Throughout the proceedings in this case the 

'I defendant always maintained his innocence and claimed that he 

been communicated to defendant, the defendant was not prejudiced 

because he was not in a position to plead guilty, having 

consistently maintained his innocence of the crimes charged. At 

the hearing, trial counsel stated that from the beginning of the 

case defendant informed her that that he did not commit the 

, ·~1/YRENCE COUNTY 

PENNSYLVANIA 

53RO 

JUDICIAL 

DISTRICT 
f . 

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DENIED. 

For the foregoing reasons, the court concludes that the 

defendant has failed to prove ineffective assistance of trial 

and post-trial counsel and that the underlying claims asserted 

by the defendant are in fact meritless. Therefore, Defendant's 

Amended Petition for Post-conviction collateral Relief will be 

representation of the Defendant and, therefore, subsequent 

counsel cannot be found ineffective for failing to pursue a 

meritless claim. Accordingly, Defendant's claim that post-trial 

counsel was ineffective for failing to file an ineffective 

assistance of counsel claim against prior counsel is without 

merit. Thus, defendant is not entitled to Post-conviction 

collateral Relief based on prior trial and post trial counsel's 

ineffective assistance. 

1 1,\"JFt.ENCf:'. COUNTY 

PENNSYLVANIA 

53RO 

JUDICIAL 

DISTRICT