Com. v. Stills, M. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MELVIN STILLS :
:
Appellant : No. 1266 EDA 2018
Appeal from the PCRA Order April 2, 2018,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0004532-2013.
BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 31, 2020
Melvin Stills appeals from the order dismissing his petition filed pursuant
to the Post Conviction Relief Act (“PCRA”). We affirm.
The PCRA court summarized the relevant factual history as follows:
On January 29, 2013, around 6:00 p.m., Tahir Jackson was
walking on Fisher Street in Philadelphia with his girlfriend, Dereka
Sowell, and friend James Hargrove when he saw two men riding
toward them on bikes. Mr. Jackson testified that one man was
tall, wearing a black jacket and red hoodie, riding a black and
silver Mongoose bike, and the other man was shorter, wearing a
black hoodie, black jacket and riding a pink and purple child’s bike.
Mr. Jackson identified the shorter man as [Stills], and the taller
man as codefendant Corey Battle. [Stills] jumped off his bike,
pulled out a black gun, and pointed it at Mr. Hargrove. Corey
Battle approached Mr. Jackson from behind and began to choke
him so hard that he was lifted off the ground and couldn’t breathe.
Ms. Sowell also testified that [Stills] was the one with the gun and
Corey Battle choked Mr. Jackson from behind. [Stills] told Mr.
Hargrove, “whatever you got in your pocket, give it up,” then took
Mr. Hargrove’s cell phone. [Stills] then pointed the gun at Ms.
Sowell and said, “you need to back up before you get shot.” Corey
Battle checked Mr. Jackson’s pockets, and finding nothing, pushed
him to the ground, and grabbed Ms. Sowell. Mr. Jackson tried to
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get up to defend his girlfriend, but [Stills] pointed the gun at him
and said, “Stay there. You don't want to get shot.” [Stills] stood
over Mr. Jackson, a few feet away while pointing the gun directly
at him. Both Mr. Jackson and Ms. Sowell testified that [Stills] did
not have anything covering his face. After not finding any items
on Ms. Sowell, [Stills] and Corey Battle got back on their bikes
and rode off.
Mr. Jackson called the police who arrived minutes later.
While the victims met with police, [Stills] rode past on his pink
and purple child’s bike, along with another male. Officer
Rosenbaum noticed a bulge on [Stills’s] right hip area. Both men
fled after the officer tried to stop them, and during the chase,
Officer Rosenbaum saw [Stills] discard a firearm from his right hip
area, the same area he saw the bulge. Police later recovered the
weapon, and identified it as a black Beretta handgun. Mr. Jackson
and Ms. Sowell identified [Stills] as the man who robbed them.
[Stills] later gave a statement to detectives in which he admitted
that he and Corey Battle had robbed the victims at gunpoint.
PCRA Court Opinion, 3/13/19, at 3-4 (citations to the record omitted).
Following a non-jury trial, Stills was found guilty of three counts each of
robbery, terroristic threats, and theft by unlawful taking, and one count each
of criminal conspiracy, firearms not to be carried without a license, carrying
firearms on public streets or public property in Philadelphia, and persons not
to possess firearms.1 On August 7, 2014, Stills was sentenced to an aggregate
sentence of fifteen to thirty years of incarceration, followed by twelve years
of probation. This Court affirmed the judgment of sentence. See
Commonwealth v. Stills, 136 A.3d 1026 (Pa. Super. 2016) (unpublished
memorandum).
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1 See 18 Pa.C.S.A. §§ 3701, 2706, 3921, 903, 6106, 6108, 6105.
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On September 9, 2016, Stills filed a pro se PCRA petition. The PCRA
court appointed Stills counsel, who filed an amended petition. The
Commonwealth filed a motion to dismiss, after which Stills filed a supplement
to his petition. The PCRA court filed a Pa.R.Crim.P. 907 notice of its intent to
dismiss the petition without a hearing, to which Stills filed a response. On
April 2, 2018, the PCRA court entered an order dismissing Stills’ PCRA petition.
Stills filed a timely notice of appeal, and both Stills and the PCRA court
complied with Pa.R.A.P. 1925.
Stills raises the following issues for our review:
1. Did the [PCRA] court err when it dismissed [Stills’ PCRA]
petition without an evidentiary hearing?
2. Did the [PCRA] court err when it dismissed as meritless [Stills’]
claim that trial/appellate counsel was ineffective for failing to
identify the correct subsection of the robbery statute that
formed the basis of the charge and conviction?
3. Did the [PCRA] court err when it dismissed as meritless [Stills’]
claim that trial/appellate counsel was ineffective for failing to
move for an acquittal due to the evidence not being sufficient
to meet the burden of robbery with infliction of serious bodily
injury?
4. Did the [PCRA] court err when it dismissed as meritless [Stills’]
claim that trial/appellate counsel was ineffective for failing to
identify the correct subsection of robbery that the conspiracy
reflected?
5. Did the [PCRA] court err when it dismissed as meritless [Stills’]
claim that trial/appellate counsel was ineffective for failing to
move for an acquittal due to the evidence not being sufficient
[to] show a conspiracy to commit a robbery with the infliction
of serious bodily injury?
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6. Did the [PCRA] court err when it dismissed as meritless [Stills’]
claim that trial/appellate counsel was ineffective for failing to
properly execute the direct appeal due to misunderstanding his
client’s robbery charge and conviction, among other errors?
7. Did the [PCRA] court err when it dismissed as meritless [Stills’]
claim that trial/appellate counsel was ineffective for failing to
properly execute the direct appeal due to misunderstanding his
client’s conspiracy charge and conviction?
Stills’s Brief at 2-3 (issues reordered for ease of disposition).2
When addressing a challenge to the dismissal of a PCRA petition, our
standard of review is as follows:
We review an order dismissing a petition under the PCRA in
the light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of record. We will not disturb a PCRA court’s ruling if it
is supported by evidence of record and is free of legal error. This
Court may affirm a PCRA court’s decision on any grounds if the
record supports it. Further, we grant great deference to the
factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we
afford no such deference to its legal conclusions. Where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted)
Additionally, when a petitioner alleges trial counsel’s ineffectiveness in
a PCRA petition, he must prove by a preponderance of the evidence that his
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2 Regarding Stills’ first issue, he concedes that the PCRA court did not err in
determining that no evidentiary hearing was warranted since there is no
dispute that Stills’ counsel misapprehended the correct subsection of the
robbery statute that was indicated on the criminal information. See Stills’
Brief at 11. Thus, we need not address the issue.
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conviction or sentence resulted from 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.” 42 Pa.C.S.A. § 9543(a)(2)(ii). The petitioner must
demonstrate:
(1) that the underlying claim has arguable merit; (2) that no
reasonable basis existed for counsel’s actions or failure to act; and
(3) that the petitioner suffered prejudice as a result of counsel’s
error. To prove that counsel’s chosen strategy lacked a
reasonable basis, a petitioner must prove that an alternative not
chosen offered a potential for success substantially greater than
the course actually pursued. Regarding the prejudice prong, a
petitioner must demonstrate that there is a reasonable probability
that the outcome of the proceedings would have been different
but for counsel’s action or inaction. Counsel is presumed to be
effective; accordingly, to succeed on a claim of ineffectiveness[,]
the petitioner must advance sufficient evidence to overcome this
presumption.
Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (internal
citations and quotation marks omitted). A failure to satisfy any prong of the
test for ineffectiveness will require rejection of the claim. Commonwealth
v. Martin, 5 A.3d 177, 183 (Pa. 2010).
As all of Stills’ issues of trial counsel ineffectiveness are related, we will
address them together. In his second, third, fourth and fifth issues, Stills
contends that trial counsel was ineffective for misapprehending the specific
subsection of the robbery statute under which Stills was charged. According
to Stills, the criminal information, trial disposition form, order of sentence, and
all dockets indicate that he was charged with three counts of robbery under
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18 Pa.C.S.A. § 3701(a)(1)(i), which provides, in relevant part, that “[a]
person is guilty of robbery if, in the course of committing a theft, he . . . inflicts
serious bodily injury upon another[.]” Yet, trial counsel proceeded as if Stills
had been charged under subsection (a)(1)(ii), which provides “[a] person is
guilty of robbery if, in the course of committing a theft, he . . . threatens
another with or intentionally puts him in fear of immediate serious bodily
injury[.]” In other words, Stills was charged with actually committing serious
bodily injury during the theft, yet his counsel proceeded as if he was charged
with only threatening serious bodily injury during the theft.
Stills claims that trial counsel failed to read the docket or the information
to ascertain the specific robbery charge lodged against him, and never raised
the issue of a lack of serious bodily injury at the preliminary hearing. Stills
argues that his conviction under § 3701(a)(1)(i) is not supported by the
evidence because no one was ever seriously injured. He claims that one
complainant stated that she was not injured, and the other complainant
testified that he was briefly put in a choke hold by Stills’ co-defendant, but
never stated that he was seriously injured. Stills contends that trial counsel
was ineffective for failing to move for an acquittal when the evidence failed to
show serious bodily injury.
For the same reasons, Stills contends that trial counsel was ineffective
for failing to apprehend that the conspiracy charge brought against him was
linked to the charges of robbery with infliction of serious bodily injury under
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§ 3701(a)(1)(i). He claims that the Commonwealth was required to prove
that he and his co-defendant had a shared criminal objective to inflict serious
bodily injury during the course of a theft. Stills argues that, based on the
complainants’ testimony, no one was seriously injured. Stills therefore claims
that trial counsel was ineffective for failing to move for an acquittal because
the evidence was insufficient to prove the conspiracy charge.
Here, the PCRA court acknowledged that trial counsel failed to recognize
that the facts surrounding Stills’ crimes did not match the subsection of the
robbery statute listed on the criminal information (i.e., § 3701(a)(1)(i)).
However, it nevertheless determined that Stills’ claims of trial counsel’s
ineffectiveness lack merit because he failed to establish the prejudice prong
of the ineffectiveness test. The PCRA court determined that, had trial counsel
recognized the error at any time prior to the rendering of a verdict, the trial
court would have permitted the Commonwealth to amend the information to
list the correct subsection of the robbery statute (i.e., § 3701(a)(1)(ii)),3
pursuant to Pa.R.Crim.P. 564.4 In reaching that conclusion, the PCRA court
reasoned as follows:
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3 Both subsections 3701(a)(1)(i) and 3701(a)(1)(ii) are graded as felonies of
the first-degree.
4 Rule 564 provides, in relevant part: “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
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Keeping in mind that the purpose of Rule 564 is to place a
defendant on notice regarding his alleged criminal conduct so he
has a fair opportunity to prepare a defense, [Stills’] arguments of
ineffectiveness fail. Yes, a mistake was made as to the subsection
of the robbery statute, but to offer [Stills] relief on that basis,
under the facts of this case, would be to elevate form over
substance.
Factors to 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.
Com. v. Grekis, 411 Pa. Super. 513, 601 A.2d 1284, 1292
(1992).
Applying the instant set of facts to the above factors it is
clear that [Stills] was not prejudiced by the error of subsection
because (1) the factual scenario supporting the charges never
changed; (2) no new facts were added that were previously
unknown to [Stills]; (3) the entire factual scenario was developed
not only during a preliminary hearing, but also through the
discovery that was turned over to [Stills] on May 21, 2013 and
included police interviews with each of the three victims, in
addition to Corey Battle and [Stills]; (5) the Commonwealth tried
the case, and [Stills] defended the case as if the bills of
information had already been amended to reflect [18 Pa.C.S.A. §
3701(a)(1)(ii), which is the subsection of the robbery statute
which requires] a threat of serious bodily injury; and (6) it is
immaterial that the Commonwealth failed to amend the
information, as [Stills] had ample notice and preparation that the
case was about him threatening serious bodily harm, as not only
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are not so materially different from the original charge that the defendant
would be unfairly prejudiced.”
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were those the facts at the preliminary hearing, and in the
discovery, but he was also charged with terroristic threats. So
even if the court found that subsection (a)(1)(i) was materially
different than subsection(a)(1)(ii), [Stills] still cannot show
prejudice because he was placed on notice regarding his alleged
criminal conduct, and had a fair opportunity to prepare a defense.
In this instance, had counsel caught the error in subsection,
this [c]ourt would have allowed the Commonwealth to change the
information based on the above analysis. This would have
corrected a technical error, but would not have changed the
outcome of the trial. If defense counsel had moved for an
acquittal on that basis, this [c]ourt would have denied that
motion, and allowed the Commonwealth to amend the
information, based on the above analysis.
PCRA Court Opinion, 3/13/19, at 7-9. The PCRA court similarly determined
that any pre-verdict challenge by trial counsel to the conspiracy charge would
have failed since Stills “was not misled as to the charges against him, not
precluded from anticipating the Commonwealth’s proof, and no substantial
right was impaired.” Id. at 9-10.
The record supports the PCRA court’s determination that Stills failed to
demonstrate that he was prejudiced by trial counsel’s failure to seek an
acquittal on the basis that the evidence did not establish that he inflicted
serious bodily injury or conspired to inflict serious bodily injury. The record
also supports the PCRA court’s determination that, had trial counsel raised the
issue, the trial court would have permitted the Commonwealth to amend the
criminal information to reflect the correct subsection of the robbery statute.
Such an amendment would have been appropriate because Stills was afforded
abundant notice from the outset of the criminal proceedings that the evidence
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supported a finding that he had conspired with his co-defendant to threaten
the victims with serious bodily injury and had, in fact, threatened them with
serious bodily injury. Thus, Stills’ claims pertaining to trial counsel’s
ineffectiveness entitle him to no relief.
However, Stills additionally disputes the PCRA court’s dismissal of his
claims that appellate counsel was ineffective. Stills points out that his trial
counsel also represented him in his direct appeal. According to Stills, direct
appeal counsel continued to identify and argue the wrong subsection of the
robbery statute in his appellate filings. Stills claims that, had appellate
counsel argued sufficiency under the correct robbery subsection on direct
appeal, this Court would have recognized that the evidence was insufficient to
support Stills’ robbery and conspiracy convictions due to a lack of serious
bodily injury. Thus, Stills claims that his direct appeal counsel effectively
denied Stills appellate review of his convictions.5
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5 Stills also argues that appellate counsel offered no argument on the second
issue he raised on direct appeal, resulting in waiver of that issue. Stills’ Brief
at 15. Stills does not identify in his PCRA appellate brief, the second issue
raised in his direct appeal; however, our review discloses that the second issue
that appellate counsel raised in Stills’ direct appeal challenged the identity of
the perpetrator. See Stills, 136 A.3d 1026 (unpublished memorandum at
*1). This particular claim of ineffectiveness is not properly before us in this
appeal, as it was not raised in Stills’ concise statement or identified in his
statement of questions presented. See Commonwealth v. Lord, 719 A.2d
306, 309 (Pa. 1998) (holding that if an appellant is directed to file a concise
statement of matters to be raised on appeal pursuant to Pa.R.A.P. 1925(b),
any issues not raised in that statement are waived); see also Pa.R.A.P.
302(a) (providing that issues not raised in the lower court are waived and
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Notably, the certified record does not contain copies of the filings
authored by appellate counsel in Stills’ direct appeal. See Commonwealth
v. Muntz, 630 A.2d 51, 55 (Pa. Super. 1993) (for the purposes of an appeal,
it is the responsibility of the appellant to offer a complete record for our
review). Based on our precedent, where a claim is dependent upon materials
not provided in the certified record, that claim is considered waived. Id. Here,
Stills failed to present the filings made by direct appeal counsel to the PCRA
court, and to ensure that those filings were made part of the PCRA court
record. Accordingly, his ineffectiveness claim pertaining to direct appeal
counsel is waived.6
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cannot be raised for the first time on appeal); See Pa.R.A.P 2116(a) (providing
that “[n]o question will be considered unless it is stated in the statement of
questions involved or is fairly suggested thereby.”).
6 Importantly, the appellate brief filed by direct appeal counsel was only filed
in this Court in connection with Stills’ direct appeal. It had never been filed in
the lower court, and thus was not reflected on the lower court docket. As
such, it was incumbent upon Stills to present that filing to the PCRA court in
support of his ineffectiveness claim when he filed his PCRA petition, and then
to ensure that that a copy of that filing was made a part of the PCRA court
record below. Notably, Stills belatedly recognized this omission after filing
an appeal of the PCRA court’s denial of relief. During the pendency of this
appeal, he requested leave to supplement the certified record with a copy of
the brief filed by direct appeal counsel. We properly denied his request
because the brief had never been presented to the PCRA court, nor made a
part of the PCRA court record. See Pa.R.A.P. 1921 (providing that “[t]he
original papers and exhibits filed in the lower court . . . and a certified copy of
the docket entries prepared by the clerk of the lower court shall constitute the
record on appeal in all cases.”). Because direct appeal counsel’s brief was not
presented to the PCRA court, or included in any filing in the PCRA court, we
may not consider it in this appeal. See id.; see also Commonwealth v.
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Order affirmed.
Judge McLaughlin joins this memorandum.
Judge Ott did not participate in this memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/31/2020
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Bracalielly, 658 A.2d 755, 763 (Pa. 1995) (holding that “appellate courts
may only consider facts which have been duly certified in the record on
appeal”).
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