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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
VICTOR SIMMONS :
:
Appellant : No. 1797 EDA 2022
Appeal from the PCRA Order Entered June 21, 2022
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0007266-2016
BEFORE: DUBOW, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY DUBOW, J.: FILED MAY 30, 2023
Appellant, Victor Simmons, appeals pro se from the June 21, 2022 order
entered in the Delaware County Court of Common Pleas denying his first
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-46. After careful review, we affirm.1
The relevant facts and procedural history are as follows. On November
10, 2016, the Commonwealth charged Appellant with one count each of
Robbery—Threatening Immediate Serious Injury, Possession of an Instrument
of Crime, Terroristic Threats, Theft by Unlawful Taking, Harassment,
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1 In light of our disposition, we deny Appellant’s February 24, 2023 “Motion
for Relief to Preserve Discovered Facts,” March 13, 2023 “Motion for Relief to
Add Newly Discovered Facts to this Appeal,” April 27, 2023 “Motion for Relief,”
May 2, 2023 “Motion of Relief to Add Ineffective Assistance from Newly
Discovered Fact from Sentencing 9714 D Violation,” and May 17, 2023 “Motion
of Relief to Disqualify Prior Record Based on Gideon v. Wainwright Violation.”
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Disorderly Conduct, and Receiving Stolen Property in connection with his
robbery of a Wells Fargo Bank in Lansdowne, Delaware County.
Appellant waived his preliminary hearing and his jury trial commenced
on January 8, 2019.
Immediately prior to the commencement of jury selection, Appellant
informed the court that he wished to represent himself and completed a
colloquy and waiver of counsel to that effect.2 The court ordered Appellant’s
appointed counsel, Robert A. Turco, Esquire, to act as stand-by counsel.
Appellant proceeded to conduct jury selection, after which he withdrew his
request to represent himself and the court ordered Attorney Turco to
represent Appellant for the remainder of trial.3 Following the three-day trial,
the jury convicted Appellant of one count of Robbery—Threatening Serious
Bodily Injury with respect to one victim, James Carr.
On March 4, 2019, the trial court sentenced Appellant to a mandatory
minimum sentence of 10 to 20 years of incarceration.4 On July 31, 2020, this
Court affirmed Appellant’s judgment of sentence,5 and on May 10, 2021, the
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2 N.T. Trial, 1/8/19, at 12-30.
3 N.T. Trial, 1/9/19, at 8.
4The court imposed a mandatory minimum sentence pursuant to 42 Pa.C.S.
§ 9714 because Appellant had a prior conviction of a crime of violence.
5 Relevant to the instant appeal, we affirmed Appellant’s judgment after
finding meritless his claims that: (1) he was prejudiced when the trial court
permitted the Commonwealth to amend the criminal information to add the
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Pennsylvania Supreme Court denied Appellant’s petition for allowance of
appeal. See Commonwealth v. Simmons, No. 800 EDA 2019, 2020 WL
4383666 (Pa Super. filed July 31, 2020) (non-precedential decision), appeal
denied, 253 A.3d 216 (Pa. 2021). Appellant did not seek further review of his
judgment of sentence.
On June 8, 2021, Appellant pro se filed the instant PCRA petition raising
claims pertaining to his preliminary hearing waiver, alleged defects in, and the
Commonwealth’s amendment of, the criminal information, and his counsel’s
alleged ineffectiveness, including, inter alia, counsel’s failure to file a motion
to restore Appellant’s right to a preliminary hearing.6 On June 23, 2021,
August 12, 2021, and August 13, 2021, Appellant filed a “PCRA
Supplementary Amendment,” an “Amended Motion for Relief under the
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victim’s name or to conform to the evidence; (2) the trial court abused its
discretion permitting the amendments; (3) he did not knowingly and
voluntarily waive his preliminary hearing; and (4) his sentence of 10 to 20
years of incarceration, based on his status as a second strike offender, is
illegal. Commonwealth v. Simmons, No. 800 EDA 2019, 2020 WL 4383666
at *1 (Pa. Super. filed July 31, 2020) (non-precedential decision).
6 Because this was Appellant’s first PCRA petition, the PCRA court appointed
counsel. However, shortly thereafter, Appellant pro se filed a motion to
proceed pro se and for a hearing pursuant to Commonwealth v. Grazier,
713 A.2d 81 (Pa. 1998). On August 3, 2021, the PCRA court held a hearing
after which it granted Appellant’s motion to proceed pro se. See N.T., 8/3/21,
at 6.
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[PCRA],” and a “Supplemental Amend[ed] Motion for Relief Under [the
PCRA,]” respectively.7
On October 5, 2021, the PCRA court issued a notice of intent to dismiss
Appellant’s PCRA petition as meritless without a hearing pursuant to
Pa.R.Crim.P. 907. On October 22, 2021, Appellant filed a response to the
court’s Rule 907 notice.
On June 21, 2022, the PCRA court dismissed Appellant’s petition as
meritless. This timely pro se appeal followed. Both Appellant and the PCRA
court complied with Pa.R.A.P. 1925.
In his pro se brief, Appellant raises the following issues for our review:
1. Did the Commonwealth violate [] Appellant[’]s right to due
process by breaching the negotiated waiver of [] Appellant[’]s
preliminary hearing and changing the description of the
robbery charge from a threatens immediate bodily injury to one
that threatens serious bodily injury[?]
2. Did the Commonwealth breach the terms of the negotiated
waiver and violate [] Appellant[’]s right to due process by
adding James Carr to the robbery count after the negotiated
waiver of the preliminary hearing[?]
3. Is the sentence illegal, the trial court did not have before it the
allege[d] prior conviction or provide the record with the
allege[d] prior conviction as required by [42 Pa.C.S. §]
9714[(d)?]
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7 Appellant also filed on August 13, 2021, a “Motion to Except Amendments
and Supplemental Amendment that were Filed.” Although the court did not
expressly grant Appellant’s request for leave to file any amended petitions, in
its Pa.R.Crim.P. 907 notice, the PCRA court indicated that it considered the
three above-listed amendments prior to determining that Appellant’s claims
lacked merit.
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4. Was counsel ineffective for not objecting to the incorrect
instruction by the trial court reg[]arding the victims on the
single count of robbery and for counsel providing erroneous
information in his closing argument to the jury reg[]arding the
victims on the single count of robbery[?]
5. Was counsel ineffective for not enforcing the negotiated
agreement from the preliminary hearing or filing a petition to
have [] Appellant[’]s preliminary rights restored[?]
6. Was trial counsel ineffective for not having the jur[]or number
8 removed or requesting a mistrial, the jur[]or was seen at the
bank moments before the robbery on the security video the
Commonwealth presented for trial[?]
7. Did the PCRA court err[] in law and abuse his discretion when
he denied [] Appellant[’]s PCRA [petition] because he thought
that [] Appellant had represented himself at trial and []
Appellant has shown that he rescinded his desire to proceed
pro se before the trial started[?]
Appellant’s Brief at 13-14 (unpaginated).8
A.
We review the denial of a PCRA Petition to determine whether the record
supports the PCRA court’s findings and whether its order is otherwise free of
legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This
Court grants great deference to the findings of the PCRA court if they are
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8 Although Appellant has included 7 issues in his statement of questions, our
review of his pro se Brief indicates that it does not include any argument
corresponding with his sixth and seventh issues in violation of Pa.R.A.P.
2119(a) (requiring that “[t]he argument shall be divided into as many parts
as there are questions to be argued.”). Accordingly, we will not consider
Appellant’s sixth and seventh issues. Furthermore, Appellant’s Brief includes
a section of argument concerning the constitutionality of 18 Pa.C.S. §
3701(a)(ii); however, Appellant did not include this issue in his statement of
questions involved in violation of Pa.R.A.P. 2116(a) (explaining that “[n]o
question will be considered unless it is stated in the statement of questions
involved or is fairly suggested thereby.”). We, likewise, will not consider this
argument.
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supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.
Super. 2007). “We give no such deference, however, to the court’s legal
conclusions.” Commonwealth v. Smith, 167 A.3d 782, 787 (Pa. Super.
2017).
To be eligible for relief under the PCRA, a petitioner must establish that
his conviction or sentence resulted from one or more of the enumerated errors
or defects found in 42 Pa.C.S. § 9543(a)(2): a constitutional violation;
ineffective assistance of counsel; an unlawfully induced plea; improper
obstruction by governmental officials; a case where exculpatory evidence has
been discovered; an illegal sentence has been imposed; or the tribunal
conducting the proceeding lacked jurisdiction. See 42 Pa.C.S. §§
9543(a)(2)(i)-(viii). In addition, a petitioner must establish that the issues
raised in the PCRA petition have not been previously litigated or waived, and
that “the failure to litigate the issue prior to or during trial, during unitary
review or on direct appeal could not have been the result of any rational,
strategic or tactical decision by counsel.” Id. at § 9543(a)(3), (a)(4). See
also id. at § 9544 (relating to previous litigation and waiver).
B.
In his first two issues, Appellant asserts that the Commonwealth
violated the terms of his negotiated waiver of his preliminary hearing and his
due process rights by amending the criminal information to include the
appropriate subsection of robbery and the victim’s name. Appellant’s Brief at
16-18, 57 (unpaginated).
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In its opinion, the PCRA court explained that Appellant previously
litigated both of these issues. See PCRA Ct. Op, 11/15/22, at 4 (noting that
Appellant raised issues on direct appeal challenging the Commonwealth’s
amendment of the criminal information and the Commonwealth’s alleged
“breach of terms of agreement”). Following our review of the certified record,
we agree. As noted above, a prior panel of this court affirmed Appellant’s
judgment of sentence after concluding, inter alia, that the Commonwealth’s
amendment of the criminal information to add the victim’s name and change
the robbery subsection to conform to the evidence did not prejudice Appellant.
Simmons, 2020 WL 4383666 at *1. Because Appellant previously litigated
these issues, the record supports the trial court’s conclusion that Appellant is
not entitled to relief on these claims.
In his third issue, Appellant claims that his mandatory minimum
sentence is illegal because the trial court did not have proof at sentencing that
Appellant had committed a prior crime of violence. Appellant’s Brief at 80
(unpaginated). Appellant also raised this issue on direct appeal, and this Court
found that it lacked merit. See id. at *2 (“Appellant’s sentence of 120 to 240
months’ imprisonment, based on his status as a second-strike offender, is not
illegal.”).9 He is, likewise, ineligible for relief on this claim.
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9 Moreover, even if Appellant had not previously litigated this issue, it would
fail. The Notes of Testimony from Appellant’s sentencing hearing reflect that
the Commonwealth provided a copy of the certified conviction which
constituted Appellant’s first crime of violence to the court, stating “this is a
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C.
In his fourth issue, Appellant asserts that his counsel was ineffective for
not objecting when the trial court provided the jury with an allegedly
erroneous instruction. Appellant’s Brief at 49 (unpaginated). Appellant claims
that the court’s instruction was erroneous because “there were 2 victims on
this single count of robbery and the [t]rial [c]ourt should have explained to
the jury that in[]order to be guilty of this crime [Appellant] would have had
to have threatened both victims [in] the same manner.” Id. Appellant avers
that counsel was also ineffective for repeating this error in his closing
argument when he stated that the jury “need[s] to make sure that you believe
he put these people or one of these people in fear of [s]erious [b]odily
[i]njury.” Id. Appellant baldly claims that these alleged errors have arguable
merit, that counsel had no reasonable basis for his conduct, and that had
these errors not occurred the jury would not have convicted him. Id. He
asserts that he was prejudiced by the “wrong instruction” and the “wrong
closing argument” because it confused the jury and led to his conviction
“based on this misinformation.” Id. at 49-50
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certified criminal history from Allentown, from Lehigh County and this is just
confirming that [Appellant] was previously convicted of a qualifying crime of
violence. The original signatures and seals are on this document. Defense
does have a copy.” N.T., 3/4/19, at 4-5. Furthermore, the sentencing court
also noted that Appellant’s pre-sentence investigation report reflected a prior
conviction of a crime of violence. It is, thus, evident from the record that the
trial court had a copy of Appellant’s prior conviction at the time of sentencing.
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Preliminarily, we observe that counsel is presumed to be effective and
the petitioner bears the burden of proving otherwise. Commonwealth v.
Johnson, 236 A.3d 63, 68 (Pa. Super. 2020) (en banc). To do so, he must
establish the following three elements:
(1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel’s action or failure to act; and (3) the
petitioner suffered prejudice as a result of counsel’s error, with
prejudice measured by whether there is a reasonable probability
that the result of the proceeding would have been different.
Id. Failure to prove any of the three elements will result in dismissal of the
ineffectiveness claim. Id. In addition, “counsel cannot be deemed ineffective
for failing to raise a meritless issue.” Commonwealth v. Wilson, 861 A.2d
919, 932 (Pa. 2004).
Here the trial court instructed the jury on the offense of Robbery—
Threatens Serious Bodily Injury, in relevant part, as follows:
To find [Appellant] guilty of this [offense], you must find that the
following two elements have been proven beyond a reasonable
doubt. First that [Appellant] threatened the victim with serious
bodily injury of intentionally put the victim in fear of immediate
serious bodily injury. Second that [Appellant] did this during the
course of committing a theft.
N.T., 1/9/19, at 212.
This instruction comports with the Pennsylvania Suggested Standard
Criminal Jury Instruction for this offense. See Pa.S.S.J.I.(Crim). 15.3701A
(2019). Because the trial court provided an accurate charge, any objection to
it by Appellant’s counsel would have been meritless. Accordingly, the record
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supports the PCRA court’s conclusion that counsel was not ineffective for not
objecting to the court’s accurate instruction to the jury.
We further agree with the PCRA court that trial counsel was not
ineffective when he stated in his closing argument that the jury needed to find
that Appellant put at least one of the victims in fear of serious bodily injury in
order to convict Appellant of that offense. This was an accurate statement of
law and Appellant has, thus, failed to prove that this ineffective assistance of
counsel claim has merit.
In his final issue, Appellant claims that the PCRA court erred in finding
that his counsel was not ineffective for failing to file a motion to enforce the
“negotiated agreement from [] Appellant’s preliminary hearing” or to restore
Appellant’s preliminary hearing rights. Appellant’s Brief at 32-34.
The certified record indicates that, at the preliminary hearing the
Commonwealth explained to the court that it had agreed to withdraw the
Receiving Stolen Property charge and Appellant had agreed to waive his right
to the preliminary hearing “in a non-trial disposition.” N.T., 11/17/16, at 3.
At that time, Appellant admitted that he “did the crime.” Id. at 6.
Subsequently, however, Appellant elected to proceed to trial on the charges,
which, notably, did not include the Receiving Stolen Property charge the
Commonwealth had withdrawn. Accordingly, there is no basis for Appellant’s
assertion that the Commonwealth violated the terms of the “negotiated
agreement.” Thus, any motion that counsel would have filed to enforce the
“negotiated agreement” would have lacked merit. We, therefore, agree with
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the PCRA court that counsel was not ineffective for failing to file a motion to
enforce the “negotiated agreement.”
With respect to Appellant’s claim that his counsel was ineffective for
failing to file a motion to restore his right to a preliminary hearing, we observe
that, on direct appeal, a panel of this Court affirmed the trial court’s finding
that Appellant had knowingly and voluntarily waived his right to the
preliminary hearing. Simmons, 2020 WL 4383666 at *2. Moreover, beyond
baldly claiming that counsel’s conduct prejudiced him, Appellant has not
demonstrated that had a preliminary hearing occurred, this case would have
likely had a different outcome. This claim, therefore, also lacks merit.
D.
In sum, we conclude that the trial court did not abuse its discretion in
finding that Appellant had either previously litigated the claims raised in his
PCRA petition or that they lacked merit. Accordingly, we affirm the PCRA
court’s order dismissing Appellant PCRA petition as meritless.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/30/2023
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