J-S70032-14

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

CURTIS TILDON,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 1201 EDA 2014

Appeal from the PCRA Order Entered January 28, 2014

in the Court of Common Pleas of Delaware County 

Criminal Division at No(s): CP-23-CR-0005867-2010

BEFORE: LAZARUS, MUNDY, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 19, 2014

Curtis Tildon (Appellant) appeals pro se from an order dismissing his 

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. 

§§ 9541-9546. We affirm.

A prior panel of this Court summarized the underlying facts as follows.

On August 24, 2010 at approximately 6:30 a.m., 

[Appellant] drove his brother, Irvin Tildon, and another male, 

Antwone Johnson, to a Wachovia Bank. [Appellant] had 

indicated to Johnson the previous day that he and Irvin needed 

him to do some construction work; however, when they arrived 

at the bank, [Appellant] told Johnson that they actually wanted 

him to rob it. [Appellant] explained to Johnson that they 

planned to use duct-tape to restrain the female teller and they 

would steal money from the bank vault. Johnson was initially 

hesitant, but [Appellant] showed him the clothes in the trunk for 

Johnson to change into during the robbery, including a blue 

button-down shirt, white hat and gloves. Eventually [Appellant] 

and Irvin convinced Johnson to participate in the robbery.

[Appellant] walked up to the door of the Wachovia Bank 

with Johnson, but Johnson hesitated when he saw a guard. The 
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three men left and drove to find another bank. During the ride, 

[Appellant] explained that the plan was simply for Johnson to 

ask the teller for money and that most banks’ procedure in a 

robbery is to hand the money over. [Appellant] also told 

Johnson that he had a gun in the trunk, but Johnson did not 

want to use it.

[Appellant] eventually stopped at a Sovereign Bank in 

Media[, PA]. Johnson went inside and told the teller, John Guy, 

to give him money and no one would get hurt. Surprised, Guy 

asked Johnson if he was being robbed and Johnson responded 

that he was. Guy handed the money in his desk to Johnson, 

who left with [Appellant] and Irvin in the Mercedes. Guy pulled 

the silent alarm and told police that the bank had been robbed.

Officer Jacob [Bielering] received a police report of the 

incident and a description of the men involved. The report 

stated that the robber was wearing a blue security guard shirt 

with a flag on the sleeve and a white baseball cap and that he 

was travelling with two other men in a black Mercedes. Officer 

Bielering saw [Appellant’s] Mercedes, which matched the 

description, travelling at a high rate of speed and pulled it over.

Officer Bielering determined that [Appellant’s] driver’s 

license was suspended. Other officers arrived and saw that 

Johnson had a blue shirt and white hat by his feet that matched 

the description. Believing that the men were the same ones who 

had robbed the bank, the officers asked them to step out of the 

vehicle and patted them down for weapons. During the patdown 

search, Officer DiTrolio recognized that Johnson had stacks of 

money in his pockets and removed them. Johnson stated that 

he had just robbed a bank. Guy later identified Johnson as the 

man who had robbed the Sovereign Bank, although he was 

unable to identify [Appellant] or Irvin.

After the Mercedes was secured and towed, police 

searched the vehicle and recovered hoodie sweatshirts, duct 

tape, gloves and a starter pistol from the trunk. The baseball 

hat and blue shirt were secured from inside the vehicle at the 

time of the car stop. Police subsequently arrested [Appellant] 

and Irvin and charged them with [robbery, conspiracy to commit 

robbery, and theft by unlawful taking].
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[Appellant] and Irvin were tried jointly by a jury on May 

11, 2011. Johnson entered a guilty plea and testified at trial. 

Commonwealth v. Tildon, 55 A.3d 124 (Pa. Super. 2012) (unpublished 

memorandum at 1-3).

The jury found Appellant guilty of robbery, conspiracy to commit 

robbery, theft by unlawful taking, conspiracy to commit theft by unlawful 

taking, and possession of instruments of crime. The Commonwealth 

requested an aggravated range sentence because at the time of this 

robbery, Appellant was being supervised by the federal government for his 

role in a 2001 robbery. The trial court agreed and imposed a sentence in 

the aggravated range. Appellant was sentenced to three to six years’ 

incarceration for the robbery and a consecutive three to six years’ 

incarceration for the conspiracy to commit robbery.1

Appellant filed a direct appeal, and on July 6, 2012, a panel of this 

Court affirmed Appellant’s judgment of sentence. Id. Appellant filed a 

petition for allowance of appeal in our Supreme Court. The Court denied 

that petition on January 9, 2013. Commonwealth v. Tildon, 63 A.2d 1247 

(Pa. 2013) (table).

On July 12, 2013, Appellant pro se filed a PCRA petition, which 

asserted no specific grounds for relief, but did assert Appellant’s desire to 

amend the petition with the assistance of counsel. Counsel was appointed 

 

1 The trial court subsequently vacated Appellant’s sentence, and on August 

24, 2011, the same term of incarceration was imposed, but the probation 

tails for each offense were shortened. N.T., 8/24/2011.
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on Appellant’s behalf. On January 13, 2014, counsel filed a petition to 

withdraw and no-merit letter pursuant to Commonwealth v. Turner, 544 

A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. 

Super. 1988) (en banc). In that letter, counsel detailed his review of the 

record, transcripts, and letters from Appellant wherein Appellant set forth 

issues he wished counsel to raise. According to counsel, those issues 

included assertions of ineffective assistance of trial counsel for failing to 

argue to the jury that mere presence is not sufficient to convict Appellant; 

for failing to request a false in one, false in all jury instruction; and, for 

failing to request an instruction about inconsistent statements of 

Commonwealth witnesses. No-Merit Letter, 1/14/2013, at 2 (unnumbered). 

Upon counsel’s review of the jury charge, both instructions were included. 

Furthermore, upon counsel’s review of trial counsel’s opening and closing 

statements, trial counsel did argue to the jury essentially that Appellant’s 

mere presence at the scene was not enough to convict him. Finally, counsel 

concluded that his review of the record did not reveal any other arguments 

to present in a PCRA petition. Id. at 3.

On January 28, 2014, the PCRA court granted counsel’s application to 

withdraw and issued notice of its intent to dismiss the petition without a 

hearing pursuant to Pa.R.Crim.P. 907. Appellant responded timely to Rule 

907 notice. In that response, Appellant set forth a number of issues he had 

with trial counsel’s representation of him. Appellant asserted that counsel 
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did not ask the trial court to give certain jury instructions, did not argue 

properly in his opening and closing arguments, and also that counsel was 

ineffective for failing to raise a discretionary aspects of sentencing claim. 

On February 19, 2014, the PCRA court formally dismissed Appellant’s 

PCRA petition. In doing so, the PCRA court analyzed only the allegations of 

error set forth in counsel’s no-merit letter. Appellant timely filed a notice of 

appeal, and both Appellant and the PCRA court satisfied the requirements of 

Pa.R.A.P. 1925.

On appeal, Appellant sets forth several issues, which we consider 

mindful of our well-settled standard of review from the denial of a PCRA 

petition.

 [A]n appellate court reviews the PCRA court’s findings of 

fact to determine whether they are supported by the record, and 

reviews its conclusions of law to determine whether they are free 

from legal error. The scope of review is limited to the findings of 

the PCRA court and the evidence of record, viewed in the light 

most favorable to the prevailing party at the trial level. 

In this appeal, all of Appellant’s claims challenge the 

effectiveness of trial counsel. [A] PCRA petitioner will be granted 

relief only when he proves, by a preponderance of the evidence, 

that his conviction or sentence resulted from the 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. Counsel is presumed effective, and to rebut that 

presumption, the PCRA petitioner must demonstrate that 

counsel’s performance was deficient and that such deficiency 

prejudiced him. In Pennsylvania, we have refined the Strickland

[v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 

(1984)] performance and prejudice test into a three-part inquiry. 

Thus, to prove counsel ineffective, the petitioner must show 

that: (1) his underlying claim is of arguable merit; (2) counsel 
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had no reasonable basis for his action or inaction; and (3) the 

petitioner suffered actual prejudice as a result. If a petitioner 

fails to prove any of these prongs, his claim fails. Generally, 

counsel’s assistance is deemed constitutionally effective if he 

chose a particular course of conduct that had some reasonable 

basis designed to effectuate his client’s interests. Where matters 

of strategy and tactics are concerned, a finding that a chosen 

strategy lacked a reasonable basis is not warranted unless it can 

be concluded that an alternative not chosen offered a potential 

for success substantially greater than the course actually 

pursued. To demonstrate prejudice, the petitioner must show 

that there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceedings would have 

been different. A reasonable probability is a probability that is 

sufficient to undermine confidence in the outcome of the 

proceeding. 

Our Supreme Court added: As a general and practical 

matter, it is more difficult for a defendant to prevail on a claim 

litigated through the lens of counsel ineffectiveness, rather than 

as a preserved claim of trial court error. This Court has 

addressed the difference as follows: [A] defendant [raising a 

claim of ineffective assistance of counsel] is required to show 

actual prejudice; that is, that counsel's ineffectiveness was of 

such magnitude that it could have reasonably had an adverse 

effect on the outcome of the proceedings. This standard is 

different from the harmless error analysis that is typically 

applied when determining whether the trial court erred in taking 

or failing to take certain action. The harmless error standard, as 

set forth by this Court in Commonwealth v. Story, 476 Pa. 

[391], 409, 383 A.2d [155], 164 [(1978)] (citations omitted), 

states that “[w]henever there is a ‘reasonable possibility’ that an 

error ‘might have contributed to the conviction,’ the error is not 

harmless.” This standard, which places the burden on the 

Commonwealth to show that the error did not contribute to the 

verdict beyond a reasonable doubt, is a lesser standard than the 

Pierce prejudice standard, which requires the defendant to show 

that counsel’s conduct had an actual adverse effect on the 

outcome of the proceedings. This distinction appropriately arises 

from the difference between a direct attack on error occurring at 

trial and a collateral attack on the stewardship of counsel. In a 

collateral attack, we first presume that counsel is effective, and 

that not every error by counsel can or will result in a 
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constitutional violation of a defendant’s Sixth Amendment right 

to counsel. 

Similarly, this Court has explained: To overcome the 

presumption of effectiveness, Appellant must establish three 

factors: first that the underlying claim has arguable merit; 

second, that counsel had no reasonable basis for his action or 

inaction; and third, that Appellant was prejudiced. Counsel’s 

assistance is deemed constitutionally effective once this Court 

determines that the defendant has not established any one of 

the prongs of the ineffectiveness test. This Court has also 

explained: The Pennsylvania Superior Court has held that 

Appellant’s claims must meet all three prongs of the test for 

ineffectiveness, if the court can determine without an evidentiary 

hearing that one of the prongs cannot be met, then no purpose 

would be advanced by holding an evidentiary hearing. 

Commonwealth v. Charleston, 94 A.3d 1012, 1019-20 (Pa. Super. 2014) 

(internal quotations and citations omitted).

First, Appellant contends that trial counsel was ineffective because he 

never called Appellant’s alibi witness to testify at trial. Appellant’s Brief at 8-

9. This issue was raised for the first time in Appellant’s response to the Rule 

907 notice. “Where the petitioner does not seek leave to amend his petition 

after counsel has filed a Turner/Finley no-merit letter, the PCRA court is 

under no obligation to address new issues.” Commonwealth v. Rigg, 84 

A.3d 1080, 1085 (Pa. Super. 2014). Accordingly, to the extent Appellant 

wished to raise this issue on appeal, he first had to request permission from 

the PCRA court to amend his petition. He did not do so; thus, we may not 

consider this issue now. Pa.R.A.P. 302(a) (“Issues not raised in the lower 

court are waived and cannot be raised for the first time on appeal.”).
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Next, Appellant contends inartfully that trial counsel was ineffective for 

failing to appeal Appellant’s sentence as being excessive. Appellant’s Brief at 

9. In his brief, with respect to this argument, Appellant references a 

potential violation of Alleyne v. United States, 133 S.Ct. 2151 (2013).2 In 

Alleyne, the United States Supreme Court held that “any fact that increases 

the mandatory minimum sentence for a crime is an element that must be 

submitted to the jury and found beyond a reasonable doubt[.]” 

Commonwealth v. Munday, 78 A.3d 661, 665 (Pa. Super. 2013) (internal 

quotations omitted). Although the Alleyne issue is being raised for the first 

time on appeal, we may address it as it relates to the legality of Appellant’s 

sentence. Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013) 

(“As long as the reviewing court has jurisdiction, a challenge to the legality 

of the sentence is non-waivable and the court can even raise and address it 

sua sponte.”).

Nonetheless, there is no merit to this argument. Our review of the 

transcript and record reveals there is no indication that the Commonwealth 

asked for or Appellant received a mandatory minimum sentence in potential 

violation of Alleyne. Thus, Appellant is not entitled to relief.

Next, Appellant contends Johnson lied under oath in his testimony. 

Appellant’s Brief at 10-11. Unfortunately for Appellant, even if this claim 

 

2 Alleyne was decided on June 17, 2013, which was prior to the filing of his 

pro se PCRA petition. 
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were cognizable under the PCRA, we cannot discern a coherent argument in 

this portion of the brief. Furthermore, this issue is being raised for the first 

time on appeal. Thus, this argument is without merit.

Finally, Appellant contends the trial court should have included the 

“mere presence” jury instruction. Appellant’s Brief at 11.3 This issue was 

raised by counsel at the PCRA court level, and the PCRA court addressed it in 

its opinion as follows. “[T]he court’s instruction to the jury accurately and

thoroughly set forth the law regarding accomplice liability, including the 

following: ‘It is important to understand that a person is not an accomplice 

merely because he is present when the crime is committed or knows that a 

crime is committed.’” PCRA Court Opinion, 5/22/2014, at 5 (citation to notes 

of testimony omitted). Because the instruction Appellant requested was 

given to the jury, counsel could not be ineffective for failing to request it and 

Appellant is not entitled to relief on this basis.

For the foregoing reasons, we affirm the order of the PCRA Court 

dismissing Appellant’s PCRA petition without a hearing.

Order affirmed.

Judge Lazarus joins the memorandum.

Judge Mundy concurs in the result.

 

3

In his no-merit letter, counsel presented this issue properly as one of trial 

counsel’s ineffective assistance for failing to request this instruction.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/19/2014