J-S16006-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

VICTOR SIMMONS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1797 EDA 2022

Appeal from the PCRA Order Entered June 21, 2022

In the Court of Common Pleas of Delaware County Criminal Division at 

No(s): CP-23-CR-0007266-2016

BEFORE: DUBOW, J., MURRAY, J., and McCAFFERY, J.

MEMORANDUM BY DUBOW, J.: FILED MAY 30, 2023

Appellant, Victor Simmons, appeals pro se from the June 21, 2022 order 

entered in the Delaware County Court of Common Pleas denying his first 

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

§§ 9541-46. After careful review, we affirm.1

The relevant facts and procedural history are as follows. On November 

10, 2016, the Commonwealth charged Appellant with one count each of 

Robbery—Threatening Immediate Serious Injury, Possession of an Instrument 

of Crime, Terroristic Threats, Theft by Unlawful Taking, Harassment, 

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1

In light of our disposition, we deny Appellant’s February 24, 2023 “Motion 

for Relief to Preserve Discovered Facts,” March 13, 2023 “Motion for Relief to 

Add Newly Discovered Facts to this Appeal,” April 27, 2023 “Motion for Relief,” 

May 2, 2023 “Motion of Relief to Add Ineffective Assistance from Newly 

Discovered Fact from Sentencing 9714 D Violation,” and May 17, 2023 “Motion 

of Relief to Disqualify Prior Record Based on Gideon v. Wainwright Violation.”
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Disorderly Conduct, and Receiving Stolen Property in connection with his 

robbery of a Wells Fargo Bank in Lansdowne, Delaware County. 

Appellant waived his preliminary hearing and his jury trial commenced 

on January 8, 2019. 

Immediately prior to the commencement of jury selection, Appellant 

informed the court that he wished to represent himself and completed a 

colloquy and waiver of counsel to that effect.2 The court ordered Appellant’s 

appointed counsel, Robert A. Turco, Esquire, to act as stand-by counsel. 

Appellant proceeded to conduct jury selection, after which he withdrew his 

request to represent himself and the court ordered Attorney Turco to 

represent Appellant for the remainder of trial.3 Following the three-day trial, 

the jury convicted Appellant of one count of Robbery—Threatening Serious 

Bodily Injury with respect to one victim, James Carr. 

On March 4, 2019, the trial court sentenced Appellant to a mandatory 

minimum sentence of 10 to 20 years of incarceration.

4

 On July 31, 2020, this 

Court affirmed Appellant’s judgment of sentence,

5 and on May 10, 2021, the 

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2 N.T. Trial, 1/8/19, at 12-30. 

3 N.T. Trial, 1/9/19, at 8. 

4 The court imposed a mandatory minimum sentence pursuant to 42 Pa.C.S. 

§ 9714 because Appellant had a prior conviction of a crime of violence.

5 Relevant to the instant appeal, we affirmed Appellant’s judgment after 

finding meritless his claims that: (1) he was prejudiced when the trial court 

permitted the Commonwealth to amend the criminal information to add the 

(Footnote Continued Next Page)
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Pennsylvania Supreme Court denied Appellant’s petition for allowance of 

appeal. See Commonwealth v. Simmons, No. 800 EDA 2019, 2020 WL 

4383666 (Pa Super. filed July 31, 2020) (non-precedential decision), appeal 

denied, 253 A.3d 216 (Pa. 2021). Appellant did not seek further review of his 

judgment of sentence.

On June 8, 2021, Appellant pro se filed the instant PCRA petition raising 

claims pertaining to his preliminary hearing waiver, alleged defects in, and the 

Commonwealth’s amendment of, the criminal information, and his counsel’s

alleged ineffectiveness, including, inter alia, counsel’s failure to file a motion 

to restore Appellant’s right to a preliminary hearing.

6

 On June 23, 2021, 

August 12, 2021, and August 13, 2021, Appellant filed a “PCRA 

Supplementary Amendment,” an “Amended Motion for Relief under the 

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victim’s name or to conform to the evidence; (2) the trial court abused its 

discretion permitting the amendments; (3) he did not knowingly and 

voluntarily waive his preliminary hearing; and (4) his sentence of 10 to 20 

years of incarceration, based on his status as a second strike offender, is 

illegal. Commonwealth v. Simmons, No. 800 EDA 2019, 2020 WL 4383666 

at *1 (Pa. Super. filed July 31, 2020) (non-precedential decision).

6 Because this was Appellant’s first PCRA petition, the PCRA court appointed 

counsel. However, shortly thereafter, Appellant pro se filed a motion to 

proceed pro se and for a hearing pursuant to Commonwealth v. Grazier, 

713 A.2d 81 (Pa. 1998). On August 3, 2021, the PCRA court held a hearing 

after which it granted Appellant’s motion to proceed pro se. See N.T., 8/3/21, 

at 6.
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[PCRA],” and a “Supplemental Amend[ed] Motion for Relief Under [the 

PCRA,]” respectively.

7

On October 5, 2021, the PCRA court issued a notice of intent to dismiss 

Appellant’s PCRA petition as meritless without a hearing pursuant to 

Pa.R.Crim.P. 907. On October 22, 2021, Appellant filed a response to the 

court’s Rule 907 notice. 

On June 21, 2022, the PCRA court dismissed Appellant’s petition as 

meritless. This timely pro se appeal followed. Both Appellant and the PCRA 

court complied with Pa.R.A.P. 1925.

In his pro se brief, Appellant raises the following issues for our review:

1. Did the Commonwealth violate [] Appellant[’]s right to due 

process by breaching the negotiated waiver of [] Appellant[’]s 

preliminary hearing and changing the description of the 

robbery charge from a threatens immediate bodily injury to one 

that threatens serious bodily injury[?]

2. Did the Commonwealth breach the terms of the negotiated 

waiver and violate [] Appellant[’]s right to due process by 

adding James Carr to the robbery count after the negotiated 

waiver of the preliminary hearing[?]

3. Is the sentence illegal, the trial court did not have before it the 

allege[d] prior conviction or provide the record with the 

allege[d] prior conviction as required by [42 Pa.C.S. §] 

9714[(d)?]

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7 Appellant also filed on August 13, 2021, a “Motion to Except Amendments 

and Supplemental Amendment that were Filed.” Although the court did not 

expressly grant Appellant’s request for leave to file any amended petitions, in 

its Pa.R.Crim.P. 907 notice, the PCRA court indicated that it considered the 

three above-listed amendments prior to determining that Appellant’s claims 

lacked merit.
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4. Was counsel ineffective for not objecting to the incorrect 

instruction by the trial court reg[]arding the victims on the 

single count of robbery and for counsel providing erroneous 

information in his closing argument to the jury reg[]arding the 

victims on the single count of robbery[?]

5. Was counsel ineffective for not enforcing the negotiated 

agreement from the preliminary hearing or filing a petition to 

have [] Appellant[’]s preliminary rights restored[?]

6. Was trial counsel ineffective for not having the jur[]or number 

8 removed or requesting a mistrial, the jur[]or was seen at the 

bank moments before the robbery on the security video the 

Commonwealth presented for trial[?]

7. Did the PCRA court err[] in law and abuse his discretion when 

he denied [] Appellant[’]s PCRA [petition] because he thought 

that [] Appellant had represented himself at trial and [] 

Appellant has shown that he rescinded his desire to proceed 

pro se before the trial started[?]

Appellant’s Brief at 13-14 (unpaginated).8

A.

We review the denial of a PCRA Petition to determine whether the record 

supports the PCRA court’s findings and whether its order is otherwise free of 

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This 

Court grants great deference to the findings of the PCRA court if they are 

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8 Although Appellant has included 7 issues in his statement of questions, our 

review of his pro se Brief indicates that it does not include any argument 

corresponding with his sixth and seventh issues in violation of Pa.R.A.P. 

2119(a) (requiring that “[t]he argument shall be divided into as many parts 

as there are questions to be argued.”). Accordingly, we will not consider 

Appellant’s sixth and seventh issues. Furthermore, Appellant’s Brief includes 

a section of argument concerning the constitutionality of 18 Pa.C.S. § 

3701(a)(ii); however, Appellant did not include this issue in his statement of 

questions involved in violation of Pa.R.A.P. 2116(a) (explaining that “[n]o 

question will be considered unless it is stated in the statement of questions 

involved or is fairly suggested thereby.”). We, likewise, will not consider this 

argument.
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supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. 

Super. 2007). “We give no such deference, however, to the court’s legal 

conclusions.” Commonwealth v. Smith, 167 A.3d 782, 787 (Pa. Super. 

2017).

To be eligible for relief under the PCRA, a petitioner must establish that 

his conviction or sentence resulted from one or more of the enumerated errors 

or defects found in 42 Pa.C.S. § 9543(a)(2): a constitutional violation; 

ineffective assistance of counsel; an unlawfully induced plea; improper 

obstruction by governmental officials; a case where exculpatory evidence has 

been discovered; an illegal sentence has been imposed; or the tribunal 

conducting the proceeding lacked jurisdiction. See 42 Pa.C.S. §§ 

9543(a)(2)(i)-(viii). In addition, a petitioner must establish that the issues 

raised in the PCRA petition have not been previously litigated or waived, and 

that “the failure to litigate the issue prior to or during trial, during unitary 

review or on direct appeal could not have been the result of any rational, 

strategic or tactical decision by counsel.” Id. at § 9543(a)(3), (a)(4). See 

also id. at § 9544 (relating to previous litigation and waiver).

B.

In his first two issues, Appellant asserts that the Commonwealth 

violated the terms of his negotiated waiver of his preliminary hearing and his 

due process rights by amending the criminal information to include the 

appropriate subsection of robbery and the victim’s name. Appellant’s Brief at 

16-18, 57 (unpaginated). 
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In its opinion, the PCRA court explained that Appellant previously 

litigated both of these issues. See PCRA Ct. Op, 11/15/22, at 4 (noting that

Appellant raised issues on direct appeal challenging the Commonwealth’s 

amendment of the criminal information and the Commonwealth’s alleged 

“breach of terms of agreement”). Following our review of the certified record, 

we agree. As noted above, a prior panel of this court affirmed Appellant’s 

judgment of sentence after concluding, inter alia, that the Commonwealth’s 

amendment of the criminal information to add the victim’s name and change 

the robbery subsection to conform to the evidence did not prejudice Appellant. 

Simmons, 2020 WL 4383666 at *1. Because Appellant previously litigated 

these issues, the record supports the trial court’s conclusion that Appellant is 

not entitled to relief on these claims.

In his third issue, Appellant claims that his mandatory minimum 

sentence is illegal because the trial court did not have proof at sentencing that 

Appellant had committed a prior crime of violence. Appellant’s Brief at 80 

(unpaginated). Appellant also raised this issue on direct appeal, and this Court 

found that it lacked merit. See id. at *2 (“Appellant’s sentence of 120 to 240 

months’ imprisonment, based on his status as a second-strike offender, is not 

illegal.”).9 He is, likewise, ineligible for relief on this claim.

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9 Moreover, even if Appellant had not previously litigated this issue, it would 

fail. The Notes of Testimony from Appellant’s sentencing hearing reflect that 

the Commonwealth provided a copy of the certified conviction which 

constituted Appellant’s first crime of violence to the court, stating “this is a 

(Footnote Continued Next Page)
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C.

In his fourth issue, Appellant asserts that his counsel was ineffective for 

not objecting when the trial court provided the jury with an allegedly 

erroneous instruction. Appellant’s Brief at 49 (unpaginated). Appellant claims 

that the court’s instruction was erroneous because “there were 2 victims on 

this single count of robbery and the [t]rial [c]ourt should have explained to 

the jury that in[]order to be guilty of this crime [Appellant] would have had 

to have threatened both victims [in] the same manner.” Id. Appellant avers 

that counsel was also ineffective for repeating this error in his closing 

argument when he stated that the jury “need[s] to make sure that you believe 

he put these people or one of these people in fear of [s]erious [b]odily 

[i]njury.” Id. Appellant baldly claims that these alleged errors have arguable 

merit, that counsel had no reasonable basis for his conduct, and that had 

these errors not occurred the jury would not have convicted him. Id. He 

asserts that he was prejudiced by the “wrong instruction” and the “wrong 

closing argument” because it confused the jury and led to his conviction 

“based on this misinformation.” Id. at 49-50

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certified criminal history from Allentown, from Lehigh County and this is just 

confirming that [Appellant] was previously convicted of a qualifying crime of 

violence. The original signatures and seals are on this document. Defense 

does have a copy.” N.T., 3/4/19, at 4-5. Furthermore, the sentencing court 

also noted that Appellant’s pre-sentence investigation report reflected a prior 

conviction of a crime of violence. It is, thus, evident from the record that the 

trial court had a copy of Appellant’s prior conviction at the time of sentencing.
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Preliminarily, we observe that counsel is presumed to be effective and 

the petitioner bears the burden of proving otherwise. Commonwealth v. 

Johnson, 236 A.3d 63, 68 (Pa. Super. 2020) (en banc). To do so, he must 

establish the following three elements: 

(1) the underlying claim has arguable merit; (2) no reasonable 

basis existed for counsel’s action or failure to act; and (3) the 

petitioner suffered prejudice as a result of counsel’s error, with 

prejudice measured by whether there is a reasonable probability 

that the result of the proceeding would have been different. 

Id. Failure to prove any of the three elements will result in dismissal of the 

ineffectiveness claim. Id. In addition, “counsel cannot be deemed ineffective 

for failing to raise a meritless issue.” Commonwealth v. Wilson, 861 A.2d 

919, 932 (Pa. 2004).

Here the trial court instructed the jury on the offense of Robbery—

Threatens Serious Bodily Injury, in relevant part, as follows:

To find [Appellant] guilty of this [offense], you must find that the 

following two elements have been proven beyond a reasonable 

doubt. First that [Appellant] threatened the victim with serious 

bodily injury of intentionally put the victim in fear of immediate 

serious bodily injury. Second that [Appellant] did this during the 

course of committing a theft. 

N.T., 1/9/19, at 212.

This instruction comports with the Pennsylvania Suggested Standard 

Criminal Jury Instruction for this offense. See Pa.S.S.J.I.(Crim). 15.3701A

(2019). Because the trial court provided an accurate charge, any objection to 

it by Appellant’s counsel would have been meritless. Accordingly, the record 
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supports the PCRA court’s conclusion that counsel was not ineffective for not 

objecting to the court’s accurate instruction to the jury. 

We further agree with the PCRA court that trial counsel was not 

ineffective when he stated in his closing argument that the jury needed to find 

that Appellant put at least one of the victims in fear of serious bodily injury in 

order to convict Appellant of that offense. This was an accurate statement of 

law and Appellant has, thus, failed to prove that this ineffective assistance of 

counsel claim has merit.

In his final issue, Appellant claims that the PCRA court erred in finding 

that his counsel was not ineffective for failing to file a motion to enforce the 

“negotiated agreement from [] Appellant’s preliminary hearing” or to restore 

Appellant’s preliminary hearing rights. Appellant’s Brief at 32-34. 

The certified record indicates that, at the preliminary hearing the 

Commonwealth explained to the court that it had agreed to withdraw the

Receiving Stolen Property charge and Appellant had agreed to waive his right 

to the preliminary hearing “in a non-trial disposition.” N.T., 11/17/16, at 3. 

At that time, Appellant admitted that he “did the crime.” Id. at 6. 

Subsequently, however, Appellant elected to proceed to trial on the charges, 

which, notably, did not include the Receiving Stolen Property charge the 

Commonwealth had withdrawn. Accordingly, there is no basis for Appellant’s 

assertion that the Commonwealth violated the terms of the “negotiated 

agreement.” Thus, any motion that counsel would have filed to enforce the 

“negotiated agreement” would have lacked merit. We, therefore, agree with 
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the PCRA court that counsel was not ineffective for failing to file a motion to 

enforce the “negotiated agreement.” 

With respect to Appellant’s claim that his counsel was ineffective for 

failing to file a motion to restore his right to a preliminary hearing, we observe 

that, on direct appeal, a panel of this Court affirmed the trial court’s finding 

that Appellant had knowingly and voluntarily waived his right to the 

preliminary hearing. Simmons, 2020 WL 4383666 at *2. Moreover, beyond 

baldly claiming that counsel’s conduct prejudiced him, Appellant has not 

demonstrated that had a preliminary hearing occurred, this case would have 

likely had a different outcome. This claim, therefore, also lacks merit.

D.

In sum, we conclude that the trial court did not abuse its discretion in 

finding that Appellant had either previously litigated the claims raised in his 

PCRA petition or that they lacked merit. Accordingly, we affirm the PCRA 

court’s order dismissing Appellant PCRA petition as meritless.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/30/2023