March 6, 2014
COMMONWEALTH OF PENNSYLVANIA Appellee
MICHAEL ROYSTER Appellant
Appeal from the PCRA Order dated May 20, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-1005161-2004
BEFORE: ALLEN, STABILE, and STRASSBURGER, [*] JJ.
Appellant Michael Royster appeals from an order of the Court of Common Pleas of Philadelphia County (trial court), which dismissed his request for collateral relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-46. For the reasons set forth below, we affirm.
The facts and procedural history underlying this appeal are undisputed. On September 29, 2004, Appellant was arrested and charged with, inter alia, stalking in violation of the former Section 2709(b) of the Crimes Code (Code). On June 15, 2007, following a jury trial, Appellant was convicted of, inter alia, stalking. Subsequently, the trial court sentenced him to two and a half to five years in prison on the stalking count. Appellant then appealed to this Court. We ultimately affirmed the trial court's judgment of sentence. Commonwealth v. Royster, 988 A.2d 729 (Pa.Super. 2009) (unpublished memorandum). Following our affirmance, Appellant petitioned our Supreme Court for allowance of appeal, which the Court denied. Commonwealth v. Royster, 996 A.2d 492 (Pa. 2010).
On May 25, 2011, Appellant, pro se, filed a request for post-conviction relief. The trial court appointed PCRA counsel, who subsequently filed an amended PCRA petition, alleging ineffective assistance of counsel.
Specifically, Appellant alleged in the amended PCRA petition that his back-up trial counsel and appellate counsel failed to challenge the bill of information that incorrectly cited to the former Section 2709(b) of the Code, pursuant to which Appellant was tried, convicted and sentenced. On May 20, 2013, the trial court dismissed Appellant's amended PCRA petition without a hearing for lack of merit.
On appeal,  Appellant argues that the trial court erred in dismissing his amended PCRA petition. In particular, he essentially argues that his trial counsel, prior to becoming stand-by trial counsel, was ineffective for failing to challenge the information containing a citation to the former Section 2709(b) of the Code. Similarly, he argues that his appellate counsel was ineffective for failing to challenge the resulting conviction and sentence. We disagree.
At the outset, we note:
It is well-settled that counsel 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. Strickland v. Washington, 466 U.S. 668, 687–91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This Court has described the Strickland standard as tripartite by dividing the performance element into two distinct components.
Commonwealth v. Pierce,  527 A.2d 973, 975 ([Pa.] 1987). Accordingly, to prove trial counsel ineffective, the petitioner must demonstrate that: (1) the underlying legal issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) the petitioner was prejudiced by counsel's act or omission. Id.
Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012); see also Commonwealth v. Philistin, 53 A.3d 1, 10 (Pa. 2012) ("[C]ounsel is presumed effective, and [appellant] bears the burden of proving otherwise").
[f]ailure to prove any prong of [the Pierce] test will defeat an ineffectiveness claim. Commonwealth v. Basemore,  744 A.2d 717, 738 n. 23 ([Pa.] 2000). Counsel cannot be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Jones,  912 A.2d 268, 278 ([Pa.] 2006). Additionally, we only inquire whether counsel had any reasonable basis for his actions, not if counsel pursued the best available option. [Commonwealth v.] Steele, [961 A.2d 786, ] 797 [(Pa.Super. 2008)].
Philistin, 53 A.3d at 10. Also, as our Supreme Court has explained:
With regard to the second, i.e., the "reasonable basis" prong, we will conclude that counsel's chosen strategy lacked a reasonable basis only if Appellant proves that "an alternative not chosen offered a potential for success substantially greater than the course actually pursued." [Commonwealth v.] Cox, [983 A.2d 666, ] 678 [(Pa. 2009)] (quoting Commonwealth v. Williams,  899 A.2d 1060, 1064 (2006)). To establish the third prong, Appellant must show that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel's action or inaction. Commonwealth v. Dennis,  950 A.2d 945, 954 (2008).
Commonwealth v. Hutchinson, 25 A.3d 277, 285 (Pa. 2011).
Here, Appellant argues that the bill of information contained citations to the former Section 2709(b) of the Code that was no longer in effect at the time when the Commonwealth charged him with stalking. As a result, he argues that the bill of information was defective and any conviction and sentence resulting therefrom illegal.
Preliminarily, we observe that Pa.R.Crim.P. 560(B) provides in relevant part that "[t]he information . . . shall be valid and sufficient in law if it contains: . . . . (5) a plain and concise statement of the essential elements of the offense substantially in the same as or cognate to the offense alleged in the complaint." Additionally, Pa.R.Crim.P. 560(C) provides that "[t]he information shall contain the official or customary citation of the statute and section thereof, or other provision of law that the defendant is alleged therein to have violated; but the omission of or error in such citation shall not affect the validity or sufficiency of the information." (Emphasis added).
Here, the trial court was correct in concluding that Appellant's claim of ineffective counsel lacked merit. As the trial court found, Appellant was aware of the underlying charge of stalking, despite the Commonwealth's failure to cite in the information to the new Section 2709.1 of the Code. Indeed, the trial court found that "[t]here was no substantive change to the elements of the crime charged . . . . [and] the description of the charge was a cognate offense to the charge filed in the original information." Trial Court Opinion, 8/12/2013, at 10-11. We agree. The new Section 2709.1 of the Code contains the crime of stalking as listed in the former Section 2709(b) of the Code. Put differently, the former Section 2709(b) of the Code was simply renumbered. We note that the information contained all statutory elements for stalking. In fact, the information provided in pertinent part:
The District Attorney of Philadelphia by this information charges that on or about 8/18/04 in Philadelphia, [Appellant:]
1.Engaged in a course of conduct, or repeatedly committed acts toward another person, which demonstrated either an intent to place the person in reasonable fear of bodily injury, or an intent to cause substantial emotional distress to the person, or both.
2.Furthermore, [Appellant] has been convicted under 18 Pa.C.S. § 2709(b) at least once before[.]
Information, 10/20/04. Although the information contained an incorrect citation to the Code, it nonetheless contained all necessary elements of stalking. We, therefore, conclude that the Commonwealth's error in citation did not affect the validity or sufficiency of the information and Appellant should have deemed any reference or citation to the former Section 2709(b) as a reference or citation to the new Section 2709.1. Appellant's conviction and sentence, therefore, were without error. Based on the foregoing conclusion, Appellant fails to meet the first prong of the Pierce test. Thus, his argument that he was charged, tried, convicted and sentenced under a deleted statute is without merit. Accordingly, the trial court did not err in dismissing his ineffectiveness of counsel claim.