Com. v. Baxter, J. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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* 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 ½ 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 Payne-
Casiano. 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
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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 9½ 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 ½ 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
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