Commonwealth v. Sarvey

J-A06016-18

2018 PA Super 307

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MELISSA A. SARVEY :
:
Appellant : No. 284 WDA 2017

Appeal from the PCRA Order January 27, 2017
In the Court of Common Pleas of Jefferson County Criminal Division at
No(s): CP-33-CR-0000014-2012

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MELISSA ANN SARVEY :
:
Appellant : No. 285 WDA 2017

Appeal from the PCRA Order January 27, 2017
In the Court of Common Pleas of Jefferson County Criminal Division at
No(s): CP-33-CR-0000605-2007

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER*, J.

OPINION BY SHOGAN, J.: FILED NOVEMBER 16, 2018

Melissa Ann Sarvey (“Appellant”) appeals from the January 27, 2017

order denying her petition for relief filed pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546.1 After careful review, we reverse

____________________________________________

1 While there are two separate captions, the PCRA court drafted a single order,
entered on January 27, 2017.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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the order of the PCRA court. Additionally, although we will not disturb the

verdict, we vacate the judgment of sentence and remand for re-sentencing.

The relevant facts and procedural history are as follows: On July 26,

2011, while Appellant was incarcerated at the Jefferson County Correctional

Facility, she attempted to deliver one-half of a tablet of Oxycodone and one

tablet of Zolpidem (Ambien) to another inmate. The incident was recorded on

video. Appellant hid the pills under a commissary form and slid them under

her cell door toward another inmate’s cell. N.T. (Trial), 4/16/12, at 126–133.

A corrections officer noticed the papers being pushed underneath Appellant’s

cell door and attempted to pick them up. Id. at 94–97. Appellant refused to

release the papers, and after a struggle, the officer was able to take the papers

away from Appellant. Id. at 95. The officer handed the commissary form

back to Appellant, and as the officer walked away, she noticed a baggie

containing two pills in the place where the paper had been. Id. at 96. The

officer confiscated the baggie, and following an investigation, Appellant was

initially charged with two counts of possession with intent to deliver (“PWID”)

and two counts of possession of a controlled substance by an inmate

(“possession by an inmate”).2

On April 13, 2012, the Friday before trial began, the Commonwealth

filed a motion to amend the information, seeking to add two counts of

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2 35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 5123(a.2), respectively.

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controlled substance contraband to confined persons prohibited (“controlled

substance to prison”) and two counts of criminal attempt.3 The motion also

sought to change the names of the drugs in the information from Ambien to

Zolpidem and Vicodin to Oxycodone. Appellant objected to the

Commonwealth adding additional charges, but she did not object to the

changes in the drug names. The trial court granted the Commonwealth’s

motion on April 16, 2012; Appellant was ultimately charged with two counts

of PWID, two counts of possession by an inmate, two counts of controlled

substance to prison, and two counts of criminal attempt.

On April 16, 2012, a jury found Appellant guilty on all charges. On

May 17, 2012, the trial court sentenced Appellant to consecutive terms of

incarceration of one to three years for one PWID count and one and one-half

years to three years for the second PWID count. The court further imposed

consecutive terms of incarceration of one and one-half years to three years

for each count of possession by an inmate, and a term of incarceration of two

to five years for each count of controlled substance to prison. Finding that the

criminal attempt convictions merged with the controlled substance to prison

convictions, the sentencing court did not impose a sentence for the criminal

attempt convictions. The trial court also revoked Appellant’s probation on a

single count of hindering apprehension at Docket CP-33-CR-605-2007 and

____________________________________________

3 18 Pa.C.S. §§ 5123(a) and 901, respectively.

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sentenced her to an additional term of confinement of one to two years.

Finally, the trial court revoked Appellant’s probation at Dockets CP-33-CR-

662-2008, CP-33-CR-387-2008, and CP-33-CR-388-2008, and resentenced

Appellant to five years of probation at each docket, running concurrent to each

other. Appellant’s total period of incarceration was ten and one-half to

twenty-four years of incarceration followed by five years of probation.

Appellant filed a timely direct appeal, arguing that the trial court erred

when it allowed the Commonwealth to amend the charges immediately before

trial. On direct appeal, she argued that the amendment did not allow her

sufficient time to adjust her defense strategy and subjected her to mandatory

minimum sentences that increased the severity of her penalty. This Court

found that Appellant’s appeal was without merit because the new charges did

not arise from different facts nor would they have required her to alter her

trial or defense strategy; thus, she was not prejudiced by the amendment.

See Commonwealth v. Sarvey, 68 A.3d 368, 968 WDA 2012 (Pa. Super.

filed February 21, 2013) (unpublished memorandum) (“Sarvey I”). Appellant

sought Supreme Court review, which was denied on September 14, 2013.

Commonwealth v. Sarvey, 74 A.3d 1031 (Pa. 2013).

Appellant sought timely collateral review, and the PCRA court appointed

counsel. Counsel filed a no merit letter/petition to withdraw as counsel

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), on

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February 14, 2014. After receiving notice of the PCRA court’s intent to dismiss

the PCRA petition without a hearing, Appellant sent the court a letter in which

she stated she wanted to continue the appeal. Ultimately, and after a

convoluted path and a change of counsel, this Court directed the PCRA court

to order Appellant to file an amended PCRA petition within thirty days from

the date of our memorandum.

Appellant filed her timely amended petition, and following an extensive

hearing, the PCRA court denied her petition. Both Appellant and the PCRA

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

Appellant presents the following questions for our review, which we have

reordered for purposes of our analysis:

I. Were [Appellant’s] constitutional rights to due process and
to a trial by jury violated when she was punished for taking
her case to trial by the District Attorney filing a Motion to
Amend the Information the last business day before
[Appellant’s] trial and two charges being added the day of
trial that carried mandatory minimum sentences of two
years each?

II. Did the trial court err in granting the District Attorney’s
Motion to Amend the Information which added four new
charges to [Appellant’s] Information, two of which carried
mandatory minimum sentences of at least two years each?

III. Was [Appellant’s] sentence illegal?

A. Was [Appellant’s] sentence illegal because several of
[Appellant’s] charges should have merged;

B. Did the sentencing court’s failure to merge the charges
result in a violation of [Appellant’s] rights to due process
and against double jeopardy?

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C. Were [Appellant’s] prior counsel ineffective for failing to
raise the issue of merger?

IV. Did the trial court err in imposing a sentence greater than
the lawful maximum as [Appellant] was re-sentenced on a
probation violation to two counts of Hindering Apprehension
to docket number 605-2007, when in fact she only pled
guilty to one count and the other count of Hindering
Apprehension was nolle prossed?

V. [Questions raising the ineffectiveness of Appellant’s
counsel:]

[a.] Was [Appellant’s] trial counsel ineffective in failing to
object to the District Attorney’s Motion to Amend the
Information, which changed the controlled substances that
[Appellant] is alleged to have possessed?

[b.] Was [Appellant’s] trial counsel ineffective in failing to
object at sentencing to [Appellant] being sentenced to
consecutive sentences for offenses which should have
merged?

[c.] Was trial counsel ineffective for failing to take
sufficient time to discuss the consequences of the
amendment of the Information with [Appellant] after the
trial court granted the Motion to Amend to enable
[Appellant] to make an informed decision about whether to
take her case to trial?

[d.] Was trial counsel ineffective for failing to ask for a
continuance of the trial after additional charges were added
on the day of trial to allow him more time to discuss the
consequences of the amendment with [Appellant] and to
give him additional time to prepare for trial?

[e.] Was trial counsel ineffective for failing to request that
Judge Foradora recuse himself from [Appellant’s] case after
he made derogatory statements which demonstrated the
Judge’s bias against the [Appellant], her family and her

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fiancé during [Appellant’s] sentencing hearing and her PCRA
hearing?

[f.] Was trial counsel ineffective for failing to point out to
the Court errors in the pre-sentence investigation report,
including that: (1) charges that should have been Nolle
Prossed (one of 2 Hindering charges at 605-2007) were
incorrectly included in the report; (2) the report included a
Theft by Unlawful Taking charge which appears as dated 10-
25-07 and shows that she received 5 years concurrent
probation to Receiving Stolen Property (RSP), although the
RSP charge would have merged for sentencing purposes?

[g.] Was trial counsel ineffective for failing to raise on
appeal the discretionary aspects of the lower court’s
sentence?

Appellant’s Brief at 6–8 (reorganized for ease of disposition).

When reviewing the propriety of the denial of a PCRA petition, we apply

the following standard and scope of review: “[A]n appellate court reviews the

PCRA court’s findings to see if they are supported by the record and free from

legal error. The court’s scope of review is limited to the findings of the PCRA

court viewed in the light most favorable to the prevailing party.”

Commonwealth v. Fitzgerald, 979 A.2d 908, 910 (Pa. Super. 2009)

(quoting Commonwealth v. Hammond, 953 A.2d 544, 556 (Pa. Super.

2008) (citation omitted)). “Because most PCRA appeals involve questions of

fact and law, we employ a mixed standard of review. We defer to the PCRA

court’s factual findings and credibility determinations supported by the record.

In contrast, we review the PCRA court’s legal conclusions de novo.”

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)

(citations omitted).

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In support of her first issue, Appellant avers that her constitutional

rights to due process were “violated when she was punished for taking her

case to trial by the District Attorney filing a Motion to Amend the Information”

on the Friday before trial started and that her counsel was ineffective for failing

to raise the issue.4 Appellant’s Brief at 22. Specifically, Appellant alleges that

the addition of the two charges constitutes prosecutorial vindictiveness. As

an initial matter, we find that Appellant waived this issue by failing to raise it

on direct appeal. See 42 Pa.C.S. § 9544(b) (“For purposes of this subchapter,

an issue is waived if the petitioner could have raised it but failed to do so

before trial, at trial, during unitary review, on appeal or in a prior state

postconviction proceeding.”). However, even if the issue was preserved, we

would conclude that it lacks merit.

In order to show prosecutorial vindictiveness, “the defendant must

prove that: (1) others who are similarly situated to the defendant are not

generally prosecuted for similar conduct; and (2) the defendant has been

intentionally and purposefully singled out for prosecution for an invidious

reason.” Commonwealth v. Butler, 533 A.2d 105, 109 (Pa. Super. 1987)

(citation omitted). In support of her argument, Appellant cites only a single

case setting forth two circumstances in which prosecutorial vindictiveness can

occur. Appellant’s Brief at 22 (citing Commonwealth v. Rocco, 544 A.2d

____________________________________________

4 We address the merits of Appellant’s ineffective assistance of counsel claim
relating to this issue infra.

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496, 498 (Pa. Super. 1987) (stating that prosecutorial vindictiveness occurs

where a prosecutive decision is based on race, religion, or other impermissible

classification or where the accused is treated harshly because he has chosen

to exercise a lawful right)). Appellant then engages in speculation regarding

the Commonwealth’s motivation for moving to amend the information before

trial, and she makes conclusory statements regarding the same with little

factual support. Indeed, Appellant’s only factual statement, as opposed to

suppositions about the Commonwealth’s motivation, is in the form of

testimony from Appellant’s trial counsel. Counsel testified that he had not

litigated another case where the charges were amended the day of trial. 5

Appellant’s Brief at 23 (quoting N.T. (PCRA), 01/08/16, at 57–58).

It is well established that “[a] pre-trial charging decision is less likely to

be improperly motivated than a decision made after trial.” Commonwealth

v. Chamberlain, 30 A.3d 381, 418–419 (Pa. 2011) (citation omitted); see

also United States v. Goodwin, 457 U.S. 368 (1982) (presumption

of prosecutorial vindictiveness not warranted where defendant charged with a

felony after refusing to plead guilty to misdemeanor charges; prosecutor’s

charging decision made before trial less likely to be improperly motivated than

decision made after trial). Moreover, in its motion to amend the information,

____________________________________________

5 The Motion to Amend the information was filed on Friday, April 13, 2012,
and the trial court granted the motion on Monday, April 16, 2012, the same
day Appellant’s trial began.

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the Commonwealth stated that following the “recent investigation of the

Pennsylvania State Police as requested by the District Attorney’s Office, it is

believed that [Appellant] brought the subject controlled substances into the

prison.” Motion to Amend Information, 4/13/12, at unnumbered 3. Further,

Appellant’s trial attorney testified during the PCRA hearing that he did not

believe the Commonwealth’s amendment of the information was punitive in

nature. N.T. (PCRA), 1/8/16, at 57. Given the above, Appellant has failed to

show she was subjected to prosecutorial vindictiveness. Consequently, no

relief is due.

In her second issue, Appellant argues that the trial court erred when it

granted the Commonwealth’s motion to amend the information to add four

new charges. Appellant’s Brief at 28. In her brief, Appellant acknowledges

that she raised this exact issue in her direct appeal in this case, Sarvey I,

and this Court found Appellant’s claim to be of no merit. Appellant’s Brief at

28.

Pursuant to 42 Pa.C.S. § 9543(a)(3), which governs eligibility for PCRA

relief, a petitioner must prove that the issue raised in the PCRA petition is one

that “has not been previously litigated or waived.” Section 9544 of the PCRA

states that an issue has been previously litigated if “the highest court in which

the petitioner could have had review as a matter of right has ruled on the

merits of the issue. . . .” 42 Pa.C.S. § 9544(a)(2). The Superior Court of

Pennsylvania is the highest court with review as a matter of right in this case,

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and this issue was previously litigated in this Court.6 To the extent Appellant

is attempting to reframe the prejudice she allegedly suffered to avoid the bar

on previously litigated issues, she is not entitled to relief. See

Commonwealth v. Roane, 142 A.3d 79, 94 (Pa. Super. 2016) (“The fact

that a petitioner presents a new argument or advances a new theory in

support of a previously litigated issue will not circumvent the previous

litigation bar.”).

Appellant next asserts that the sentencing court erred when it failed to

merge several of her convictions. Appellant’s Brief at 14. Specifically,

Appellant claims that the sentencing court erred when it failed to merge the

PWID convictions in counts one and two with the delivery to prison convictions

at counts five and six. Id. at 16. She also alleges that the possession by an

inmate convictions at counts three and four should have merged either with

the PWID convictions at counts one and two or the controlled substance to

prison convictions at counts five and six. Id. Appellant alleges that this failure

resulted in an illegal sentence, which also violated her right to due process

and against double jeopardy. Id.

Preliminarily, we note that “articulating the contours and application of

the merger doctrine has proven a complex task for courts across this country,

____________________________________________

6 The sole issue Appellant raised on appeal was “[w]hether the trial court
erred in allowing the Commonwealth, over objection, to amend the charges
against the defendant, which amendment was done just prior to trial.”
Sarvey I, at *1.

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and this Court has been no exception.” Commonwealth v. Baldwin, 985

A.2d 830, 832 (Pa. 2009). Whether Appellant’s crimes should have merged

for sentencing implicates the legality of sentencing and not the discretionary

aspects of sentencing. Id. at 833. Unlike the discretionary aspects of

sentencing, a challenge to the legality of sentence is not subject to waiver and

may be raised at any time. Commonwealth v. Kitchen, 814 A.2d 209, 214

(Pa. Super. 2002). Our standard of review is de novo, and our scope of review

is plenary. Baldwin, 985 A.2d at 833.

Our Supreme Court extensively addressed the merger issue in Baldwin.

In that decision, the Court found that a conviction for possession of a firearm

without a license, 18 Pa.C.S. § 6106, did not merge with a conviction for

possession of a firearm on public streets of Philadelphia, 18 Pa.C.S. § 6108.

Baldwin, 985 A.2d at 834. In reaching that decision, the Court analyzed 42

Pa.C.S. § 9765, which contains the following language:

No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the other
offense. Where crimes merge for sentencing purposes, the court
may sentence the defendant only on the higher graded offense.

42 Pa.C.S. § 9765. The Baldwin Court concluded that merger is prohibited

unless the following two-pronged test is satisfied: “1) the crimes arise from a

single criminal act; and 2) all of the statutory elements of one of the offenses

are included in the statutory elements of the other.” Baldwin, 985 A.2d at

833.

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In reaching that holding, the Court noted that although each crime

contains a shared element, namely the lack of a license to carry the gun, each

offense contained a requirement the other did not. Baldwin, 985 A.2d at

834. Specifically, to violate Section 6106, a defendant must carry a weapon

in his vehicle or about his person; to violate Section 6108, the weapon must

be carried on the streets of Philadelphia. Id. Thus, the Court found that

because each offense contained an element the other did not, merger would

be inappropriate. Id.

There have been a number of cases analyzing the merger doctrine in

the context of other offenses since Baldwin. In Commonwealth v.

Martinez, 153 A.3d 1025, 1033 (Pa. Super. 2016), this Court found that

charges of robbery and terroristic threats should have merged. Specifically,

we held:

The relevant elements of terroristic threats comprise the
communication of a threat to commit a crime of violence with the
intent to cause terror. Robbery, as charged in this case, requires
threatening serious bodily injury or intending to place a victim in
fear of serious bodily injury. Though the two statutes do not
employ identical words, it would be championing a distinction
without a difference to conclude that threatening serious bodily
injury or intending to cause fear of serious bodily injury was not
the functional equivalent of a threat of violence intended to cause
terror. Particularly where, as here, both offenses arose from the
same act, we do not discern from these statutes the legislative
intent to permit separate sentences.

Id. at 1032–1033.

In the same opinion, this Court found that the conviction for robbery did

not merge with the convictions for recklessly endangering another person

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(“REAP”) and simple assault. Martinez, 153 A.3d at 1033. In making that

determination, this Court noted that each conviction required proof that the

others did not. Id. Specifically, the REAP conviction required a showing that

the defendant had the “actual present ability to inflict harm, which is absent

in the elements of robbery and a conviction for robbery requires a showing

that the victim was placed in fear of serious bodily injury,” an element not

required in REAP. Id. Similarly, simple assault requires a showing that that

the defendant caused or attempted to cause bodily injury, whereas robbery

requires only a threat of injury, and the proscribed conduct must occur during

the course of a theft. Id. Thus, merger was not appropriate. See also

Commonwealth v. Calhoun, 52 A.3d 281, 287 (Pa. Super. 2012) (finding

that simple assault and REAP did not merge because “the mischiefs to be

remedied” were not identical); Commonwealth v. Nero, 58 A.3d 802 (Pa.

Super. 2012) (finding that conviction for owning a chop shop did not merge

with receiving stolen property as receiving stolen property required a higher

mens rea than owning a chop shop); Commonwealth v. Rhoades, 8 A.3d

912 (Pa. Super. 2010) (holding that two convictions for aggravated assault,

18 Pa.C.S. § 2702(a)(1) and (a)(4), did not merge because subsection four

requires the use of a deadly weapon and subsection one does not). But see

Commonwealth v. Hill, 140 A.3d 713 (Pa. Super. 2016) (finding that

convictions for home improvement fraud and deceptive business practices

merged because all of the elements of deceptive business practices are

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included within the elements of home improvement fraud, and home

improvement fraud has an additional element); Commonwealth v. Tanner,

61 A.3d 1043 (Pa. Super. 2013) (finding, sua sponte, that convictions for

homicide while driving under the influence and driving under the influence

should merge); Commonwealth v. Lomax, 8 A.3d 1264 (Pa. Super. 2010)

(finding that indecent assault and rape of a child should merge for sentencing

purposes because indecent assault requires indecent contact, which is

satisfied by the sexual intercourse requirement of the latter).

Preliminarily, we note it appears that the instant crimes did not

necessarily arise from a single act. In this case, the Commonwealth moved

to amend the information and add the controlled substance to prison and

criminal attempt charges after an investigation revealed “that [Appellant]

brought the subject controlled substances into the prison.” Motion to Amend

Information, 4/13/12, at unnumbered 3. Further, the Commonwealth

presented evidence, in the form of testimony from Appellant’s cellmate at the

time Appellant attempted to pass the pills to another inmate, that Appellant

brought the controlled substances into prison in a body cavity.7 The crime of

controlled substance to prison does not require delivery of the controlled

substance to another person or inmate; rather, it can be satisfied solely by

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7 Specifically, Appellant’s cellmate testified that she noticed movement and a
foul odor coming from Appellant’s bunk, which her cellmate identified as
coming from Appellant’s vagina, prior to her attempt to pass the controlled
substance. N.T. (Trial), 4/16/12, at 61, 82.

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the act of bringing the controlled substance into a prison. See

Commonwealth v. Williams, 579 A.2d 869, 871–872 (Pa. 1990) (“Hence,

in dismissing the present charge on the ground that there was no evidence

that [the appellant] entered the State Correctional Institute at Camp Hill with

an intention to transfer marijuana [to a] person confined there, the courts

below erred.”). Pursuant to the language of the controlled substance to prison

statute, the jury could have found Appellant guilty based upon the fact that

she brought the controlled substances into the prison or that she put them in

a place where they could have been secured by an inmate.

Furthermore, the second prong of the merger analysis requires that the

statutory elements of one offense be included in the other. Appellant also

fails to meet this prong. Appellant was convicted of two counts of PWID, which

is defined as follows:

Except as authorized by this act, the manufacture, delivery, or
possession with intent to manufacture or deliver, a controlled
substance by a person not registered under this act, or a
practitioner not registered or licensed by the appropriate State
board, or knowingly creating, delivering or possessing with intent
to deliver, a counterfeit controlled substance.

35 P.S. § 780-113(a)(30) (emphases added). In addition, she was convicted

of two counts of possession by an inmate, pursuant to 18 Pa.C.S. § 5123(a.2),

which provides that:

A prisoner or inmate commits a felony of the second degree if
he unlawfully has in his possession or under his control any
controlled substance in violation of section 13(a)(16) of The
Controlled Substance, Drug, Device and Cosmetic Act. For

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purposes of this subsection, no amount shall be deemed de
minimis.

18 Pa.C.S. § 5123(a.2) (emphases added). Finally, Appellant was convicted

of two counts of controlled substance to prison, which is defined as follows:

A person commits a felony of the second degree if he sells,
gives, transmits or furnishes to any convict in a prison, or
inmate in a mental hospital, or gives away in or brings into
any prison, mental hospital, or any building appurtenant thereto,
or on the land granted to or owned or leased by the
Commonwealth or county for the use and benefit of the prisoners
or inmates, or puts in any place where it may be secured by a
convict of a prison, inmate of a mental hospital, or employee
thereof, any controlled substance included in Schedules I
through V of the act of April 14, 1972 (P.L. 233, No. 64), known
as The Controlled Substance, Drug, Device and Cosmetic
Act, (except the ordinary hospital supply of the prison or mental
hospital) without a written permit signed by the physician of such
institution, specifying the quantity and quality of the substance
which may be furnished to any convict, inmate, or employee in
the prison or mental hospital, the name of the prisoner, inmate,
or employee for whom, and the time when the same may be
furnished, which permit shall be delivered to and kept by the
warden or superintendent of the prison or mental hospital.

18 Pa.C.S. § 5123(a) (emphases added).8

In order to convict a defendant of PWID, the Commonwealth must

prove that the defendant “possessed a controlled substance and did so with

the intent to deliver it.” Commonwealth v. Bricker, 882 A.2d 1008, 1015

(Pa. Super. 2005). Pursuant to the controlled substance to prison statute, 18

Pa.C.S. § 5123(a), a conviction is proper, inter alia, where an individual sells,

gives, or furnishes contraband to an inmate. However, a conviction of

____________________________________________

8 Appellant was also convicted of two counts of criminal attempt; however,
those convictions merged with the controlled substance to prison convictions.

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controlled substance to prison also is proper if an individual brings contraband

into prison, regardless of whether he intended to distribute it to an inmate.

See Williams, 579 A.2d at 870. Thus, PWID contains an element—namely

the intent to deliver—that is absent in the crime of controlled substance to

prison. Similarly, the elements of controlled substance to prison are satisfied

when an individual brings a controlled substance into a prison, without a

permit, regardless of whether they intended to deliver said substance to an

inmate. Under a Baldwin analysis, merger is improper because PWID

requires intent to deliver a controlled substance, and controlled substance to

prison has no intent requirement but does require that the controlled

substance be brought into, sold, or given away in prison or mental hospital.

Moreover, the “mischiefs sought to be remedied” by the two statutes

are readily distinguishable. See Calhoun, 52 A.3d at 287 (“The plain

language of the statutes establishes that the mischiefs to be remedied are

readily distinguishable and independent of each other[,] and the elements of

the crimes are distinct. The sentences do not merge, and Appellant is not

entitled to a ‘volume discount.’”). Pursuant to the plain language of the

controlled substance to prison statute, the legislature was seeking to prevent,

inter alia, controlled substances from entering a prison, regardless of whether

they were brought in with intent to deliver them to an inmate or prisoner.

See 18 Pa.C.S. § 5123(a) (stating that an individual commits a felony of the

second degree if an individual brings a controlled substance into any prison or

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mental hospital). PWID seeks to prevent any individual from possessing a

controlled substance with the intent to deliver that substance. See 35 P.S.

§ 780-113(a)(30). Finally, we note that merger is improper because it is

possible for an individual to commit the crime of controlled substance to prison

and not PWID and vice versa. See e.g. Commonwealth v. Cianci, 130 A.3d

780, 782 (Pa. Super. 2015) (finding that conviction for aggravated assault did

not merge with REAP, and stating that the “relevant question in merger

analysis is whether [a] person can commit one crime without also committing

the other crime” and if elements differ, merger is improper) (emphasis in

original).

Similarly, possession by an inmate does not merge with PWID or

controlled substance to prison because possession by an inmate requires that

the individual possessing the contraband is an inmate or prisoner, a

requirement absent from both PWID and controlled substance to prison. This

disparate element, absent from both of the other statutes, renders merger

improper. Baldwin, 985 A.2d at 834. We find the PCRA did not err when it

found merger was not proper.

In her next issue, Appellant asserts that the trial court imposed a

sentence greater than the lawful maximum. Appellant’s Brief at 48. Appellant

alleges that the trial court erred when it revoked her probation at Docket CP-

33-CR-605-2007 because it revoked her probation on two counts of hindering

apprehension when one of the two counts had been nol prossed. Id. This

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implicates the legality of Appellant’s sentence, which, as discussed supra,

cannot be waived.

Appellant’s claim that she was sentenced for two hindering

apprehension convictions is belied by the record. During Appellant’s

sentencing, the trial court incorrectly stated that it was revoking Appellant’s

probation on two counts of hindering apprehension. N.T. (Sentencing and

Gagnon9 Hearing), 5/16/12, at 14. Pursuant to the Gagnon order, however,

which was filed on May 24, 2012, Appellant’s probation was properly revoked

for a single count of hindering apprehension, and a total of one to two years

of incarceration was added to her sentence. Gagnon Order, 5/24/12. “In

Pennsylvania, the text of the sentencing order, and not the statements a trial

court makes about a defendant’s sentence, is determinative of the court’s

sentencing intentions and the sentence imposed.” Commonwealth v.

Borrin, 80 A.3d 1219, 1226 (Pa. 2013). As such, the trial court properly re-

sentenced Appellant for a single count of hindering apprehension. Thus, the

trial court’s misstatement of Appellant’s sentence is not controlling, Appellant

has suffered no harm or prejudice due to the misstatement, and Appellant is

due no relief.

The remainder of Appellant’s claims relate to ineffective assistance of

her trial and appellate counsel. In her brief, Appellant asserts her trial counsel

____________________________________________

9 Gagnon v. Scarpelli, 411 U.S. 778 (1973).

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and/or appellate counsel were ineffective for failing to: (1) object to the

Commonwealth’s motion to amend the information; (2) raise the issue of

merger/object to the sentence on those grounds; (3) take sufficient time to

discuss the amendment with Appellant; (4) seek a continuance after the trial

court granted the motion to amend; (5) request the trial court recuse itself

from the case; (6) point out errors in the pre-sentence investigative report;

and (7) raise the discretionary aspects of sentence on appeal. Appellant also

included claims of ineffectiveness of counsel in her arguments regarding

prosecutorial vindictiveness and illegal sentence as it related to the hindering

apprehension probation revocation.

It is well settled that:

[c]ounsel 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 (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 had no reasonable basis for his action or inaction; and (3)
the petitioner suffered actual prejudice as a
result. See Commonwealth v. Pierce, 527 A.2d 973 (Pa.
1987). 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

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sufficient to undermine confidence in the outcome of the
proceeding.

Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. Super. 2016)

(internal brackets and some internal citations omitted). Moreover, “[a] court

is not required to analyze the elements of an ineffectiveness claim in any

particular order of priority; instead, if a claim fails under any necessary

element of the ineffectiveness test, the court may proceed to that element

first.” Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citation

omitted).

Appellant first alleges that trial counsel was ineffective for failing to

object to the amendment seeking to change one of the controlled substances

from Vicodin to Oxycodone in the information in this case. Appellant’s Brief

at 24. Appellant fails to cite a single case in support of this argument, and

instead relies on suppositions and bald statements of fact; thus, Appellant has

waived this issue. See Commonwealth v. Williams, 959 A.2d 1252, 1258

(Pa. Super. 2008) (finding waiver where appellant’s argument on an issue

consisted of two pages of discussion and lacked citation to legal authority).

Even if we were to reach the merits of this ineffective-assistance-of-

counsel claim, we would not grant relief. Pursuant to the version of

Pa.R.Crim.P. 564 in effect at the time of the trial, “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.” Correcting the

name of the illicit drug from Vicodin to Oxycodone falls within the purview of

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that rule. Moreover, “[t]he 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.”

Commonwealth v. Sinclair, 897 A.2d 1218, 1221 (Pa. Super. 2006)

(citation omitted). The amendment of the information to correct the name of

the controlled substance Appellant was charged with possessing does not

impact the charges of which she was convicted nor the sentence she received.

Appellant would be unable to show this issue has merit and therefore would

not be entitled to relief.

Next, Appellant avers that her prior counsel was ineffective for failing

to raise the issue of merger. Appellant’s Brief at 20. In support of her

argument, Appellant asserts that the first prong of the test, namely that the

underlying claim has merit, is satisfied. Id. Given our finding that merger

was not appropriate in this case, supra, Appellant’s ineffectiveness claim does

not have merit and fails for that reason.

Appellant next asserts that her trial counsel was ineffective for failing to

seek a continuance after the trial court granted the motion to amend and for

failing to discuss the consequences of the amendment. Appellant’s Brief at

28–31. Once again, Appellant has failed to cite a single case in support of her

claim. Instead, she cites a rule of professional conduct, Pa.R.P.C. 1.1. That

rule states, “A lawyer shall provide competent representation to a client.

Competent representation requires the legal knowledge, skill, thoroughness

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and preparation reasonably necessary for the representation.” Pa.R.P.C. 1.1.

Appellant fails to set forth any legal authority as to what constitutes competent

representation. Thus, this issue is waived. Commonwealth v. Rhodes, 54

A.3d 908 (Pa. Super. 2012); Pa.R.A.P. 2119.

Even if we did not find waiver, this ineffective-assistance-of-counsel

claim lacks merit. Preliminarily, as discussed supra, on direct appeal this

Court specifically found that Appellant was not prejudiced by the amendment;

thus, she fails to satisfy the prejudice requirement of an ineffective assistance

of counsel claim. Further, Appellant’s counsel testified during the PCRA

hearing that his main concern was the changes that he would need to make

to his opening statement, but his defense strategies remained the same. N.T.

(PCRA) 1/8/16, at 55. Counsel was unable to say how Appellant was

prejudiced, and he testified that in hindsight, there was nothing he would have

done differently. Id. at 69, 79.

Appellant also argues that her trial counsel was ineffective for failing to

take the time to discuss the consequences of the amendment; however, this

argument is belied by the record. Specifically, Appellant’s trial counsel testified

that after he learned the trial court had granted the Commonwealth’s motion

to amend the information, he informed Appellant that she potentially could

face significant jail time if she were convicted of the additional charges. N.T.

(PCRA), 1/8/16, at 53, 56. He further testified that Appellant wanted to take

the case to trial because she was concerned about the effect the probation

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revocations would have on her total sentence and because Appellant believed

she was innocent. Id. at 79–80, 91. Moreover, we note that despite

Appellant’s attempt to establish prejudice by claiming she was not given an

opportunity to reconsider a plea deal she previously had refused, there is

nothing in the record reflecting that a plea deal had been offered following the

amendment. Finally, Appellant testified unequivocally that she would not have

accepted an open plea. Id. at 110. Thus, Appellant has failed to show that

her counsel was ineffective for failing to request a continuance on any

grounds. No relief is due.

Appellant next asserts that that her trial counsel was ineffective for

failing to request that the trial judge recuse himself. Appellant’s Brief at 36.

Appellant argues that the judge’s behavior during her sentencing and PCRA

hearing demonstrates bias and that her trial counsel was ineffective for failing

to request a recusal. Id. Appellant relies on statements made by the judge

during sentencing, which included referencing Appellant’s ex-husbands’ and

children’s contact with the court system and stating that he hoped she would

be a productive citizen when she completed her sentence, but if not, she was

not going to get another chance. Id. at 38.

“The party who asserts a trial judge must be disqualified bears the

burden of producing evidence establishing bias, prejudice, or unfairness

necessitating recusal, and the decision by a judge against whom a plea of

prejudice is made will not be disturbed except for an abuse of discretion.”

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Commonwealth v. Kearney, 92 A.3d 51, 60 (Pa. Super. 2014) (quoting

Commonwealth v. Druce, 848 A.2d 104, 108 (Pa. 2004) (citation omitted)).

As the PCRA Court noted in its opinion, “[J]udges in the smaller counties

commonly preside over multiple proceedings involving a given defendant and

his or her friends and family, and that fact, in and of itself, is not indicative of

bias.” PCRA Court Opinion, 1/27/17, at 2. A jurist, when a motion for recusal

is filed, must “consider whether his or her involvement in the case creates an

appearance or impropriety and/or would tend to undermine public confidence

in the judiciary.” Kearney, 92 A.3d at 60. The trial judge’s comments

regarding Appellant’s children and former spouses do not rise to the level of

undermining public confidence. As such, Appellant’s trial counsel was not

ineffective for failing to request recusal.

Next, Appellant alleges that trial counsel was ineffective for failing to

alert the court to issues in the Pre-Sentence Investigation Report (“PSI”).

Appellant’s Brief at 41. Specifically, she alleges the PSI improperly stated that

she pled guilty to two counts of hindering apprehension, when in fact she pled

guilty to one count of hindering and the other count was nol prossed. Id. She

further alleges that there is an error in the PSI because it reflected that

Appellant had been convicted of receiving stolen property and theft when

those two charges should have merged for sentencing. Appellant’s claims do

not have merit.

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In this case, the attendant order correctly reflected that Appellant pled

guilty to only one count and the other count was nol prossed. As discussed

supra, Appellant’s probation was revoked on a single count, and Appellant did

not receive any additional time on the nol prossed charge; thus, she has failed

to establish she was prejudiced by the alleged ineffectiveness of her counsel.

Appellant also alleges that trial counsel was ineffective for failing to point

out an error in the PSI, namely, that it reflected that she received five years

of probation for a charge of receiving stolen property because that conviction

should have merged with her theft conviction. Appellant’s Brief at 42. As the

PCRA court correctly found, Appellant makes a bald allegation that the two

crimes, which she committed in 2007, should have merged, but fails to provide

any background or factual support for that claim. PCRA Court Opinion,

1/27/17, at 7. We agree. Appellant has failed to show the underlying claim

has merit, and her ineffective assistance of counsel claim fails for that reason.

Appellant next argues that trial counsel was ineffective for failing to

appeal the discretionary aspects of her sentence. Appellant’s Brief at 44. Our

court has held that claims implicating the discretionary aspects of sentencing

raised in the context of an ineffectiveness claim are cognizable under the

PCRA. Commonwealth v. Whitmore, 860 A.2d 1032, 1036 (Pa. Super.

2004), reversed in part on other grounds, 912 A.2d 827 (Pa. 2006) (“[A] claim

that counsel was ineffective for failing to perfect a challenge to the

discretionary aspects of sentencing is cognizable under the PCRA.” (citations

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omitted)); Commonwealth v. Watson, 835 A.2d 786, 801 (Pa. Super. 2003)

(“[A] claim regarding the discretionary aspects of [the defendant’s] sentence,

raised in the context of an ineffectiveness claim, would be cognizable under

the PCRA”) (discussing Commonwealth ex. rel. Dadario v. Goldberg, 773

A.2d 126 (Pa. 2001)) (footnote omitted).

Appellant was convicted of two counts of PWID, two counts of

possession by an inmate, two counts of controlled substance to prison, and

two counts of criminal attempt based upon her attempt to pass one and one-

half pills to another inmate.10 Individually, the sentences imposed at each

count were within the guidelines. However, her aggregate sentence of

incarceration for these one and one-half pills was ten and one-half to twenty-

four years because the sentencing court decided to impose the sentences

consecutively. The court justified its decision in part by referring to “the

breadth of the judge’s sentencing discretion in the arenas of both original and

revocation sentences,” as well as Appellant’s “extensive history with the

court.” PCRA Opinion, 1/27/17, at 10. Considering that the individual

sentences were within the guidelines and below the statutory maximums, the

sentencing court concluded that Appellant’s counsel was not ineffective for

declining to appeal the discretionary aspects of Appellant’s sentence. Id.

____________________________________________

10 35 P.S. § 780-113(a)(30), 18 Pa.C.S. §§ 5123(a.2), § 5123(a), and 901,
respectively. At sentencing, the sentencing court found the criminal attempt
convictions merged.

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It is well-settled that a challenge to the discretionary aspects of a

sentence must present a substantial question.11 A sentencing court’s decision

to impose consecutive as opposed to concurrent sentences generally does not

present a substantial question. See Commonwealth v. Zirkle, 107 A.3d

127, 133 (Pa. Super. 2014) (noting that the decision to impose consecutive

or concurrent sentences lies within the discretion of the trial court). However,

“the imposition of consecutive, rather than concurrent, sentences may raise a

substantial question . . . where the aggregate sentence is unduly harsh,

considering the nature of the crimes and length of imprisonment.”

Commonwealth v. Moury, 992 A.2d 162, 171–172 (Pa. Super. 2010).

Accord Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa. Super.

2010) (“[A substantial question is presented when] the decision to sentence

consecutively raises the aggregate sentence to, what appears upon its face to

be, an excessive level in light of the criminal conduct at issue.”).

Although we are cognizant of the danger of any amount of drugs in a

prison setting and realize the sentencing court was familiar with Appellant’s

history, we opine that the sentence was unquestionably harsh.12 Technically,

____________________________________________

11 We note that Appellant complied with Pa.R.A.P. 2119(f) and included a
concise statement of her reasons relied upon for the allowance of her appeal,
albeit within the argument section of her brief.

12 If the sentencing court had ordered Appellant’s sentences to run
concurrently, the aggregate sentence would have been two to five years of
incarceration.

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the counts of which Appellant was convicted do not merge, as discussed supra,

but it is undeniable that there is substantial overlap among PWID, possession

by an inmate, and controlled substance to prison. We also note that

Appellant’s crime did not involve violence. Further, we reiterate that

Appellant’s crime involved one episode of attempting to pass a very small

quantity of prescription pills. We thus conclude that Appellant’s challenge

presents a substantial question.

Pursuant to 42 Pa.C.S. § 9781(c)(2), this Court shall vacate a sentence

where “the sentencing court sentenced within the sentencing guidelines but

the case involves circumstances where the application of the guidelines would

clearly be unreasonable.” Pursuant to Section 9781(d), “the appellate courts

must review the record and consider the nature and circumstances of the

offense, the sentencing court’s observations of the defendant, the findings

that formed the basis of the sentence, and the sentencing guidelines[,]” with

particular concern for whether the defendant received an individualized

sentence. Commonwealth v. Bowen, 975 A.2d 1120, 1123–1124 (Pa.

Super. 2009).

Where, as here, Appellant’s individual sentences were within the

guideline range, we must “determine whether the trial court’s [aggregate]

sentence is ‘clearly unreasonable.’” Commonwealth v. Dodge, 957 A.2d

1198, 1200 (Pa. Super. 2008) (quoting 42 Pa.C.S. § 9781(c)(2)). “An

unreasonable decision from the sentencing court would be one that is

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‘irrational’ or ‘not guided by sound judgment.’” Dodge, 957 A.2d at 1200. As

we concluded in Commonwealth v. Williams, 69 A.3d 735, 742 (Pa. Super.

2013),13 “by any measure employed by a civilized society, the severity of

[a]ppellant’s sentence was disproportional to her conduct” and, thus, clearly

unreasonable. See also Dodge, 957 A.2d 1198 (finding that imposition of

consecutive sentences for thirty-seven counts of receiving stolen property,

which resulted in an aggregate sentence of fifty-two and one-half to one

hundred and eleven years of incarceration, was unreasonable where none of

the offenses involved violence against a person and the property received was

of little monetary value). Given our finding that Appellant’s sentence was

unduly harsh and clearly unreasonable given the nature and circumstances of

the offenses, the claim underlying her claim of ineffective assistance of counsel

for failing to appeal her sentence has merit.

Next, we must determine whether Appellant’s claim satisfies the two

remaining prongs of the ineffectiveness test. Charleston, 94 A.3d at 1019.

We first look to whether Appellant’s counsel had a reasonable basis for failing

to appeal the discretionary aspect of Appellant’s sentence. “In determining

____________________________________________

13 In Williams, the appellant was sentenced to a minimum aggregate term
of incarceration of over thirty years following her guilty plea to three counts
of burglary and subsequent revocation of probation following several
violations of her probation. Id. at 738. The appellant’s crimes did not involve
violence, except using physical force when she fled on two occasions, and at
no point did she possess a weapon or cause or risk causing serious bodily
injury. Id. at 743.

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whether counsel’s performance lacked a reasonable basis, a court will not find

counsel to be ineffective if the particular course chosen by counsel had some

reasonable basis designed to effectuate his client’s interest.”

Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006).

During Appellant’s May 23, 2016 PCRA hearing, trial counsel, Attorney

Knaresboro, testified that, although he was aware that Appellant was

sentenced to consecutive sentences for each of the six counts, he did not

object to the sentence, nor did he file a motion to reconsider the sentence or

a direct appeal raising that issue. N.T. (PCRA), 5/23/16, at 11. When asked

why he failed to raise the issue on direct appeal, trial counsel testified that,

although he believed Appellant was given a significant sentence, he did not

believe the issue to be of merit. Id. at 29. He further testified that by failing

to file post-sentence motions, he believed the issue had been waived, and

even if it had not been waived, he believed it was sufficient that the sentencing

court stated its reasons for Appellant’s sentence on the record. Id. Given the

factual circumstances of the crimes of which Appellant was convicted and the

length of the aggregate sentence she received, this Court is unable to find a

reasonable basis for counsel’s failure to file a post-sentence motion and appeal

the discretionary aspect of Appellant’s sentence.

Having determined that Appellant’s claim satisfies the first two prongs

of the ineffectiveness test, we must look to whether Appellant was prejudiced

by her counsel’s failure to appeal the discretionary aspect of her sentence.

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Commonwealth v. Johnson, 966 A.2d 523, 532–533 (Pa. 2009). An

appellant “establishes prejudice when he demonstrates that there is a

reasonable probability that but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Id. at 533 (quoting Strickland,

466 U.S. at 694) (internal quotation marks omitted).

Here, counsel’s failures deprived Appellant of this Court’s direct review

of the claim. Given our finding that Appellant’s sentence of over ten years of

incarceration for attempting to pass one and one-half pills was clearly

unreasonable, the outcome of Appellant’s case—specifically the length of her

term of incarceration—likely would have been different but for counsel’s

failures. Appellant’s counsel was thus ineffective for failing to preserve and

appeal the discretionary aspects of Appellant’s sentence.

In her final issue, Appellant raised ineffectiveness-of-counsel claims

within her argument relating to prosecutorial vindictiveness and her argument

that her sentence was illegal because she was sentenced for two counts of

hindering apprehension when one count had been nol prossed. Appellant’s

Brief at 23, 48. We addressed the merits of each of these issues supra and

found them to be lacking; therefore, Appellant has failed to prove the merit

underlying these claims.

For the reasons set forth above, we reverse the order of PCRA court,

vacate the judgment of sentence, and remand for resentencing consistent with

this opinion.

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Order reversed. Judgment of sentence vacated. Case remanded with

instructions. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/16/2018

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