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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RAHEEM COLLINS :
:
Appellant : No. 2522 EDA 2016
Appeal from the PCRA Order June 3, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0511331-2006
BEFORE: BOWES, SHOGAN, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 08, 2017
Appellant, Raheem Collins, appeals from the order entered in the Court
of Common Pleas of Philadelphia County dismissing his first petition filed
under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. We affirm,
but we remand this matter to the PCRA court with instructions to correct the
written judgment of sentence to indicate that Appellant was, in fact,
convicted of the felony offense at 18 Pa.C.S.A. § 6106, Firearms Not to be
Carried Without a License, and not the misdemeanor offense at 18 Pa.C.S.A.
§ 6108, Carrying Firearms on Public Street/Property in Philadelphia.
This Court has previously recited the pertinent factual history of the
case as follows:
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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In the early evening of January 28, 2006, a Pontiac Bonneville
driven by Benjamin Wright and owned by his nephew was in the
2900 block of Westmont Street in North Philadelphia. Benjamin
Wright and his wife, Lahronda Wright, had taken their ten-year-
old daughter, Aneena Wright, their six-year-old grandson, Jabar
Wright, two young granddaughters and two young cousins to the
movies that afternoon. They dropped off the two young cousins
and were returning to the Westmont Street residence of
Lahronda Wright’s mother to drop off the two young
granddaughters.
Benjamin Wright parked the car in front of the home of Lahronda
Wright’s mother. Benjamin Wright remained in the car with
Jabar while Lahronda Wright accompanied by Aneena took the
two young granddaughters into the house. At that time,
Lahronda Wright observed Co-Defendant Chriss Powell in the
vicinity. After a few moments, Lahronda Wright and Aneena
returned to the car. At this point, Powell was walking or
“creeping,” as it was described, up the block wearing a “hoodie.”
Appellant went by the Pontiac Bonneville where Benjamin
Wright, Lahronda Wright, Aneena, and Jabar were seated and
looked into the car. Appellant began to jog and then ran into the
residence at 2916 Westmont Street, described as a “hangout
house.”
At this time, there was a car on Westmont Street positioned in
front of Benjamin Wright’s Pontiac Bonneville. The driver of that
car appeared to be talking on a cell phone. The driver seemed in
some measure intentionally to be delaying the passage of the
Pontiac Bonneville. That car ultimately pulled off and the Pontiac
Bonneville containing Benjamin Wright, Lahronda Wright,
Aneena, and Jabar proceeded to the intersection of 29 th and
Westmont.
Appellant Raheem Collins, Co-Defendant Donte Rollins, Co-
Defendant Chriss Powell, and Co-Defendant Kevin Norris were
standing on the corner. Lahronda Wright considered the men
friends. She had known Raheem Collins for over eighteen years,
Donte Rollins for over thirteen years, Chriss Powell for over five
years, and Kevin Norris for five years. She also knew they
“hung out” together. There was no one else on the street.
Benjamin Wright had on ongoing dispute with all four men
stemming from threats or attempts made on the life of Benjamin
Wright’s nephew and on Benjamin Wright himself. There had
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been a confrontation between Benjamin Wright and all four men
approximately one month before and difficulties continued even
after that confrontation. The confrontation consisted of
Benjamin Wright speaking directly to all four men about the
problem. Benjamin Wright told all four men that he was not
going to allow them to kill his nephew or do anything to him or
his family. Additional dispute stemmed from the fact that the
residents of the 32nd Street neighborhood where Benjamin
Wright resided had some history of differences with residents of
the 29th Street or 30th Street neighborhood where these four
men resided.
Suddenly, shots were fired at the Pontiac Bonneville. The shots
came from the direction where Appellant, Rollins, Powell, and
Norris were standing. Appellant was seen reaching into his
pants as if to pull something out as the shots were fired.
Lahronda Wright screamed to those in the car to get down.
Benjamin Wright and Aneena Wright both testified that she also
screamed to those in the car that “Donte and Mook” were
shooting. “Donte” referred to Rollins. “Mook” referred to
Appellant. As the shots were ringing out the four men never
ducked for cover and never ran for cover. Because Jabar was
shot, Benjamin Wright sped off to nearby Temple University
Hospital.
At trial, Lahronda Wright testified that she did not see a gun and
did not actually see anyone shooting. However, at the hospital,
when Lahronda Wright met with police, [she] exclaimed to
Officer Quianna Wharton that Donte and Raheem shot her
grandson. Captain Anthony Washington testified that he was at
the hospital on the evening in question and that he “obtained
information in reference to what happened.” N.T. 11/21/07 at 7.
Captain Washington stated that “[t]he information I received
consisted of a male by the name of Donte, and also another
male, which was his cousin, identified or named Raheem, along
with two other males had shot at the vehicle several times while
they were in the 2900 block of Westmont Street.” Id. Also at
the hospital, Lahronda Wright told Officer Christine McGinley that
Donte and Raheem shot her grandson. It is the case that
Lahronda Wright testified at trial that she did not see a gun and
did not actually see anyone shooting.
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Jabar was shot once in the back of the neck. Injuries from the
wound have left him paralyzed from the neck down. No one else
was injured in the shooting.
Cartridge casings found at the scene evidenced that at least
eight shots were fired from at least two guns; there was one 9
millimeter gun for certain, one .380 caliber gun for certain, and
the physical evidence yielded the possibility that a third gun,
also a .380 caliber, was involved. No weapon was recovered.
Appellant was tried jointly by a jury with Rollins, Powell, and
Norris. The jury convicted Appellant of attempted homicide as to
Jabar Wright, four counts of aggravated assault, conspiracy, and
firearms not to be carried without a license. Rollins and Powell
were likewise convicted. Norris was completely acquitted.
Appellant was sentenced to consecutive statutory maximum
sentences for each offense as follows: 20 to 40 years on the
attempted homicide; 10 to 20 years for each of three aggravated
assaults (the aggravated assault for Jabar Wright was
determined to merge with the attempted homicide); 10 to 20
years for conspiracy; and 2 ½ to 5 years for the firearms
offense. The aggregate sentence was 62 ½ to 125 years.
On July 1, 2008, new counsel was appointed for appeal. On July
3, 2008, more than 10 days after imposition of sentence, new
counsel filed post-sentence motions raising a weight of the
evidence claim and a discretionary aspects of sentencing claim.
The post-sentence motions were immediately denied that same
day.
Direct appeal was taken by notice of appeal filed July 23, 2008.
[Appellant raised issues asserting prosecutorial misconduct, a
weight of the evidence claim, and a discretionary aspects of
sentencing claim.]
Commonwealth v. Collins, No. 2240 EDA 2008, unpublished
memorandum at 1-6 (Pa.Super. filed October 18, 2010).
By this Court’s order and memorandum decision of October 18, 2010,
we affirmed judgment of sentence. Appellant filed no petition for allowance
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of appeal (PAA), but he secured reinstatement of his right to file a PAA nunc
pro tunc through a PCRA petition. On August 26, 2014, however, the
Pennsylvania Supreme Court denied allocatur.
On September 9, 2014, Appellant filed a counseled PCRA petition. On
June 29, 2015, he attempted, pro se, to add several issues to his counseled
petition. On November 2, 2015, the court conducted a hearing pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) and permitted
Appellant to proceed pro se as he desired. Subsequently, Appellant filed a
pro se amended PCRA petition claiming that trial counsel ineffectively failed
to object to the lower court’s instructions to a jury that first indicated it was
deadlocked after one day’s deliberations but had since resumed discussing
the case. The amended petition also asserted that the court lacked subject
matter jurisdiction for supposed defects in the bills of information and that
he was wrongly convicted and sentenced on an uncharged firearms offense.
On May 6, 2016, the PCRA issued notice of its intent to dismiss
Appellant’s claims under Pa.R.Crim.P. 907. Appellant filed a response on
May 26, 2016, but the PCRA court dismissed his petition on June 3, 2016.
This timely appeal followed.
Appellant raises the following questions for our review:
1. WHETHER THE PCRA COURT ERRED WHEN THE COURT
DETERMINED THAT DEFENSE COUNSEL DID NOT
PROVIDE DEFICIENT PERFORMANCE FOR FAILING TO
REGISTER AN OBJECTION TO THE TRIAL COURT’S
FAILURE TO COMPLY WITH RULE 7.05 (MANDATORY
INSTRUCTIONS TO THE JURORS) WHEREAS THE
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INSTRUCTIONS CHARGED WAS [SIC] DEFICIENT AND
VIOLATED THE DEFENDANT’S RIGHTS TO DUE PROCESS
OF LAW; AND THAT THIS CLAIM IS MERITLESS?
2. WHETHER THE PCRA COURT ERRED WHEN THE COURT
DETERMINED THAT DEFENSE COUNSEL DID NOT FAIL
TO MOTION THE COURT TO QUASH THE INFORMATION
WHEREAS THREE OF THE CHARGING BILLS OF
INFORMATION FAILED TO DESCEND TO THE
PARTICULARS[;] FAILED TO STATE THE SPECIES;
FAILED TO IDENTIFY A VICTIM; AND WAS NOT SIGNED
BY THE COMMONWEALTH; THE CHARGING BILLS OF
INFORMATION WAS DEFECTIVE AND VAGUE; DEFENSE
COUNSEL FAILED TO MOTION THE COURT TO QUASH
THE BILLS OF INFORMATION; AND WHETHER THE PCRA
COURT ERRED IN DETERMINING THAT THIS ISSUE IS
MERITLESS?
3. WHETHER THE PCRA COURT ERRED WHEN THE COURT
DETERMINED THAT DEFENSE COUNSEL DID NOT
PROVIDE DEFICIENT PERFORMANCE WHEREAS THE
CHARGING BILL OF INFORMATION DID NOT CHARGE
AN OFFENSE OF FIREARMS NOT TO BE CARRIED
WITHOUT A LICENSE; THE COURT TRIED, CONVICTED,
AND SENTENCED THE DEFENDANT FOR AN OFFENSE
THAT HE WAS NOT CHARGED WITH ; AND DEFENSE
COUNSEL PROVIDED DEFICIENT PERFORMANCE FOR
ALLOWING THE DEFENDANT TO BE TRIED AND
CONVICTED FOR AN OFFENSE THAT THE CHARGING
BILL OF INFORMATION DID NOT CONTAIN WHICH
VIOLATED THE DEFENDANT’S RIGHTS TO DUE PROCESS
OF LAW; AND THAT THIS CLAIM IS MERITLESS?
Appellant’s brief at 3.
Initially, we outline our standard of review of a PCRA order.
Under the applicable standard of review, we must determine
whether the ruling of the PCRA court is supported by the record
and is free of legal error. Commonwealth v. Marshall, 596
Pa. 587, 947 A.2d 714, 719 (2008). The PCRA court's credibility
determinations, when supported by the record, are binding on
this Court. Commonwealth v. Johnson, 600 Pa. 329, 966
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A.2d 523, 532, 539 (2009). However, this Court applies a de
novo standard of review to the PCRA court's legal conclusions.
Commonwealth v. Rios, 591 Pa. 583, 920 A.2d 790, 810
(2007).
Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011). Accord
Commonwealth v. Bardo, 105 A.3d 678, 685 (Pa. 2014) (“If supported by
the record, the PCRA court's credibility determinations and factual findings
are binding on this Court; however, we apply a de novo standard of review
to the PCRA court's legal conclusions.”).
Appellant’s averments all relate to his insistence that he received
ineffective assistance from trial counsel. In this respect, we observe:
Counsel is presumed effective, and in order to overcome that
presumption a PCRA petitioner must plead and prove that: (1)
the legal claim underlying the ineffectiveness claim has arguable
merit; (2) counsel's action or inaction lacked any reasonable
basis designed to effectuate petitioner's interest; and (3)
counsel's action or inaction resulted in prejudice to petitioner.
With regard to reasonable basis, the PCRA court does not
question whether there were other more logical courses of action
which counsel could have pursued; rather, the court must
examine whether counsel's decisions had any reasonable basis.
... To demonstrate prejudice, a petitioner must show that there
is a reasonable probability that, but for counsel's actions or
inactions, the result of the proceeding would have been different.
Failure to establish any prong of [this test, which is known as
the] Strickland/Pierce test will defeat an ineffectiveness claim.
Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015) (citations,
quotation marks and footnote omitted). Failure to meet any prong of this
test will result in the claim failing. Commonwealth v. Stewart, 84 A.3d
701 (Pa.Super. 2013).
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In Appellant’s first issue, he contends that trial counsel ineffectively
failed to object when the trial court decided not to give a Spencer1 charge
to the jury after the foreperson had indicated after the first day of
deliberations that it was deadlocked. The record does not support
Appellant’s claim.
Specifically, the jury began deliberations on Friday, November 30,
2007 at 12:43 p.m. N.T., 11/30/07, at 60-61. On the following Monday,
the jury delivered a note to the trial court indicating it was deadlocked after
one vote at 10:30 a.m. and two more votes at 1:15 p.m. N.T., 12/3/07, at
18-19. The court convened a meeting with counsel to inform them of the
jury’s message and the court’s intention to give a Spencer charge on
Tuesday morning before the jury resumes deliberations. Defense counsel
agreed with the court’s plan, stating “I ask for a standard Spencer charge
tomorrow morning.” N.T. at 19.
Next morning, the court brought the jury into the courtroom to discuss
the status of its deliberations. The following exchange took place:
COURT: I received a note yesterday, dated 12/3/07, I will
read it. It says, “We are deadlocked,” exclamation point, one
vote at 10:30 A.M. second vote at 1:15 P.M. still no decision,
____________________________________________
1
A Spencer charge, guided by our Supreme Court's decision in
Commonwealth v. Spencer, 275 A.2d 299 (Pa. 1971), instructs a
deadlocked jury “to continue to deliberate, with an open mind to
reconsideration of views, without giving up firmly held convictions.”
Commonwealth v. Greer, 951 A.2d 346, 361 (Pa. 2008).
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exclamation point, Joan Anderson Ball. Ms. Ball, you are the
foreperson, did I read the note correctly?
FOREPERSON: Yes. That was of yesterday.
COURT: Are you telling me you are no longer in this mode?
FOREPERSON: We’re still discussing it.
COURT: You are still discussing the case?
FOREPERSON: Yes.
COURT: If you are still discussing the case, I release you.
You go back and continue to discuss the case.
N.T., 12/4/07, at 6.
After the jury exited, the court explained that it was prepared to read
a Spencer charge to the jury until the foreperson said it no longer
considered itself deadlocked and had resumed deliberations. N.T. at 6. The
court noted that, in its experience, where a jury moves forward from a
claimed state of deadlock and resumes deliberations, a Spencer charge
“may plant in their mind their ability not to reach a verdict.” N.T. at 7. The
jury returned a verdict of guilty later that day.
Whether to give a Spencer charge is a matter for the exercise of
discretion by the trial court, which will not be reversed absent an abuse of
that discretion. Commonwealth v. Porter, 446 A.2d 605, 608 (1982)
(citing Commonwealth v. Santiago, 424 A.2d 870 (Pa. 1981). Here, we
discern no arguable merit to Appellant’s “failure to object” ineffectiveness
claim where there is no evidence that the court’s decision to refrain from
issuing a Spencer charge resulted in a coerced verdict.
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As noted above, a Spencer charge applies when a jury is deadlocked.
Greer, supra. See also Porter, supra (recognizing the Spencer
instruction serves “as a “guideline for courts to follow when a jury is
deadlocked.”). While the jury indicated it was deadlocked after just one day
of deliberations, it had unilaterally resumed deliberations by the following
morning and denied being deadlocked when the trial court asked the
foreperson for an update. Both the relatively short time that the jury had
deliberated up to that point and the foreperson’s report that the jury was,
once again, discussing the case, therefore, supported the court’s election to
allow the jury to continue in its deliberations without a Spencer instruction.
Accordingly, counsel cannot be deemed ineffective for failing to renew his
earlier request for a Spencer charge when the jury had announced it was no
longer deadlocked but was, instead, freely discussing the case again.
In Appellant’s second claim, Appellant asserts that trial counsel
ineffectively failed to seek quashal of the bills of information because they
failed to state the specifics of the crime, identify a victim, or bear a
signature by a Commonwealth agent. The Commonwealth responds that
Appellant has waived this claim by failing to present it first for the PCRA
court’s review. The only challenge Appellant’s amended PCRA petition
levelled against his charging documents was one to the trial court’s subject
matter jurisdiction, but such a challenge never included a related ineffective
assistance of counsel claim.
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“It is well-settled that issues not raised in a PCRA petition cannot be
considered on appeal.” Commonwealth v. Ousley, 21 A.3d 1238, 1242
(Pa.Super. 2011) (quotation marks and citations omitted)); 42 Pa.C.S.A. §
9544(b). See also Pa.R.A.P. 302(a) (“Issues not raised in the lower court
are waived and cannot be raised for the first time on appeal.” Our review of
the record substantiates the Commonwealth’s waiver position. Therefore,
we deem waived Appellant’s allegation of trial counsel’s ineffectiveness.
In Appellant’s final issue, he argues that trial counsel ineffectively
failed to object when the trial court amended the criminal information on the
day of trial to reinstate the charge of Firearms Not to be Carried Without a
License, 18 Pa.C.S. § 6106, after the charge was, apparently, inadvertently
discharged during arraignment. As part of this argument, however,
Appellant segues into an assertion that the PCRA court rejected his claim
upon the erroneous conclusion that Appellant was never actually charged
and convicted under Section 6106 but was, instead, charged, convicted, and
sentenced under 18 Pa.C.S. § 6108, Carrying Firearms on Public
Street/Property in Philadelphia.
To this latter argument, the Commonwealth agrees that the PCRA
court misconstrued the record, as Appellant was clearly charged with and
convicted of committing a felony VUFA offense at Section 6106 but, as the
result of a clerical error, was inadvertently sentenced under the guidelines
applicable to a misdemeanor VUFA violation at Section 6108. As such, the
Commonwealth posits that Appellant cannot prove he was prejudiced by
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receiving a lesser sentence than he would have received under the felony
conviction under Section 6106. As for the clerical error appearing on
Appellant’s sentencing order, the Commonwealth proposes that this Court
modify the sentencing order, without disturbing the existing sentence,
simply to reflect the correct firearms conviction.
A defendant is due relief when the trial court exercises its discretionary
power to allow amendment of the information only if the amendment
prejudices the defendant. Commonwealth v. Veon, 109 A.3d 754, 768
(Pa.Super. 2015). Factors for a court to consider in determining the
existence of prejudice 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.
Id.
Here, Appellant provides no argument that the amendment prejudiced
him. Instead, he simply recounts the sequence of events that led to the trial
court amending the bill of information to include the Section 6106 VUFA
violation that originally appeared on Appellant’s criminal complaint filed on
January 29, 2006. Appellant then cites to the trial transcript where the trial
court both confirmed that Appellant had been charged under Section 6106
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and instructed the jury on the elements necessary to prove the offense, and
where the jury convicted him of violating Section 6106. See Appellant’s
brief at 11-13.
Nowhere in Appellant’s brief does he explain on what grounds trial
counsel should have objected, nor does our review of the record in light of
the six factors to be considered when confronted with an amended bill of
information reveal any prejudice here. The record shows that the criminal
complaint against Appellant charged him with a Section 6106 offense arising
out of the same factual scenario that was central to his criminal trial, and
Appellant does not allege the amendment caused unfair surprise or
necessitated a change in trial strategy. Therefore, having failed to establish
prejudice from the amendment, Appellant cannot prevail on his
ineffectiveness claim herein. See Commonwealth v. Witmayer, 144 A.3d
939 (Pa.Super. 2016) (finding no prejudice from amendment of information
on day of trial where amendment involved no new facts and had no effect on
the prepared defense).
Finally, as noted above, the Commonwealth asks this Court to modify
what it deems a clerical error with Appellant’s sentencing order to reflect the
jury’s verdict of guilty on the VUFA felony violation at Section 6106, without
altering the existing firearms sentence. We agree that correction of the
written judgment is appropriate where a clerical error has created a
discrepancy between it and the offense for which Appellant was, in fact,
convicted.
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The power to modify a judgment of sentence to amend records, to
correct mistakes of court officers or counsel's inadvertencies is inherent in
our court system, even after the thirty-day time limit set forth in 42
Pa.C.S.A. § 5505, has expired. See Commonwealth v. Young, 695 A.2d
414, 420 (Pa.Super. 1997) (correcting clerical error which had permitted
judgment of sentence to indicate that defendant was sentenced on incorrect
subsection of indecent assault statute). Thus, we remand this matter to the
PCRA court so that it may rectify the clerical error which appears on the face
of Appellant’s written judgment of sentence by setting forth the correct
section of the VUFA statute, Section 6106, in place of the erroneous entry
for Section 6108. Cf., Commonwealth v. Simmons, 336 A.2d 624
(Pa.Super. 1975) (where judgment was incorrectly entered for receiving
stolen property and unlawful taking, Superior Court could correct
judgments).
Order is AFFIRMED. Case remanded to the PCRA court for proceedings
consistent with this decision. Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2017
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