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[U] Commonwealth v. Royster

Superior Court of Pennsylvania

March 6, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
MICHAEL ROYSTER Appellant

NON-PRECEDENTIAL DECISION

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.

MEMORANDUM

STABILE, J.

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).[1] 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.[2] 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 Commonwealth v. Royster, 988 A.2d 729 (Pa.Super. 2009) (unpublished memorandum).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[3] 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, [4] Appellant argues that the trial court erred in dismissing his amended PCRA petition.[5] 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.[6]
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 ...


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