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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
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.
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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.
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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.
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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:
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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. Abu-
Jamal, 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
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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
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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
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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
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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
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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
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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
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Circulated 03/03/2016 02:28 PM
COMMON\i
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The purpose of the above Rule is to ensure that a defendant
I 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
I
!i A.2d 1190, 1194 (Pa.super. 2001). The test to be applied is:
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.
Id. (citing commonwealth v. Stanley, 265 Pa.super. 194, 401 A.2d
1166, 1175 (1979)).
! In reviewing a grant to amend an information, this court
'1
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
53RD A.2d 642 (1982). Finally, the mere possibility amendment of an
JUDICIAL
DISTR !CT
information may resu1 t ; n a more ·se~-~rtc~i~1G~fhrue to the
: t\V..JRENCt;,- COUN'T'Y
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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
53HO
included on the original information did not change when the
JUDICIAL.. -
DISTRICT
i ntormati on was amended, therefore, i t1_~fr_1rPa;~icR~}Jef that even
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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
scenario and involved the identical victims. Amendment of the
53HD
information in this case did not change the basis of the Robbery
JUDICIAL
DfSTR !CT
and criminal cons pi racy charges (W1~~mt~H9~fendant, Here'
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PENNSYL,VAN!A ZOIS JUN I 2 P I: 4 LI
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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.
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
ii counsel and counsel had no objection to the amended information
this court finds that there was no need to personally provide
I!1 defendant with an amended information because he was represented
by counsel, and, therefore, there was no prejudice to defendant.
I Furthermore, the plea offer tendered by the commonwealth before
I the trial was for a plea of guilty to Robbery §3701(a)(l)(ii), a
felony of the first degree. Trial counsel testified that she
was aware that the plea offer was made to a subsection not
I
listed on the information but the factual basis for the plea was
I identical to that on the information. Trial counsel testified
I
that she was aware the plea offer was actually based on
1.
§3701(a)(l)(ii) which is a first degree felony and she had no
1· objection because the factual basis for the charge did not
change. Trial counsel stated that the information was formally
I amended after the plea offer was made by the commonwealth and
I
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
53RD prior to trial he would have approached the case differently.
JUDICIAL
DISTR IC'r
The Court finds that even if the ~~:r/'5\-fJ?;:iirformation had not
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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
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
11
was not the person who robbed the Dollar General store and he
., did not conspire with anyone who did. Because the defendant has
maintained his innocence throughout this case he has not shown
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
to be without merit. The Defendant has tailed to show that
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.
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
53RO ineffective for failing to pursue meritless claims. The court
JUDICIAL
DISTRICT
has found that trial counsel was not ineffective in her
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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.
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
DENIED.
f .
53RO
JUDICIAL
DISTRICT
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