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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                         :
JONATHAN F. HARRIS,                      :          No. 2693 EDA 2015
                                         :
                        Appellant        :


               Appeal from the PCRA Order, August 20, 2015,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0409431-2002


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED JULY 21, 2016

      Jonathan F. Harris appeals pro se from the order entered in the Court

of Common Pleas of Philadelphia County that dismissed his petition filed

pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546

(“PCRA”). We affirm.

      A previous panel of this court aptly recognized the complicated

procedural history of this case and set forth the following:

                  The facts of this case are not nearly as
            complicated as its procedural history.         The
            Commonwealth alleged that Appellant, a.k.a.
            “Johnny Cane,” and his coconspirator, Shaun “Boo”
            Cherry, confronted victims Leon Bryant and
            Joseph “Mackie” Pratt outside the Gold Coast bar in
            West Philadelphia during the early morning hours of
            September 23, 2001. Appellant believed that Pratt
            had sucker-punched his friend.      He approached
            Bryant’s vehicle, where Bryant sat in the driver’s
            seat and Pratt sat in the passenger seat. After a
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          brief verbal exchange, Appellant jumped on top of
          the hood of the car and fired numerous shots from a
          .357-caliber semiautomatic handgun into the vehicle.
          Simultaneously,     Cherry    fired  his    .45-caliber
          semiautomatic handgun at the vehicle from the side.
          Seven shots struck Bryant. The vehicle rolled slowly
          down Lancaster Avenue until a witness, Antwain Ball,
          reached into the vehicle and turned off the engine.
          Ball and his sister tried unsuccessfully to speak with
          Bryant but he soon lost consciousness. Bryant was
          pronounced dead upon his arrival at the hospital.
          Both Cherry and Pratt were shot and killed in
          separate incidents before they were questioned by
          police regarding this shooting.

                Appellant was initially tried on August 4, 2003,
          for the murder of Bryant, the attempted murder of
          Pratt, and several other lesser crimes including
          possessing an instrument of crime (PIC), recklessly
          endangering Pratt (REAP), and criminal conspiracy.
          Appellant’s first trial, in which he acted pro se with
          the assistance of back-up counsel, resulted in his
          acquittals for first degree murder and voluntary
          manslaughter. However, the jury failed to reach a
          verdict on attempted murder, third degree murder,
          PIC, criminal conspiracy, and REAP.

                 Appellant was retried on December 15, 2003,
          when he again acted pro se with the assistance of
          back-up counsel.        The second jury convicted
          Appellant of PIC and criminal conspiracy and
          acquitted him of REAP and attempted murder.
          However, the second jury deadlocked on third
          degree murder. Following that verdict, the trial court
          sentenced Appellant to 10 - 20 years’ incarceration
          for criminal conspiracy and a consecutive term of 2½
          - 5 years’ incarceration for PIC, and also granted the
          Commonwealth’s motion to nolle pros the third
          degree murder charge.

                Appellant appealed and, in a memorandum
          decision, this Court awarded Appellant a new trial
          after determining that the trial court had conducted
          an inadequate colloquy regarding Appellant’s


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          decision to represent himself at the second trial.
          Commonwealth v. Harris, 885 A.2d 576 (Pa.
          Super. 2005) (unpublished memorandum)[, appeal
          denied, 987 A.2d 451 (Pa. 2006)]. In response to
          this Court’s granting Appellant a new trial and
          vacating    the  judgment    of   sentence,   the
          Commonwealth successfully moved to withdraw the
          nolle pros regarding the charge of third degree
          murder.

                 Thus, Appellant’s third trial concerned the
          reinstituted charge of third degree murder, PIC, and
          criminal conspiracy. On January 25, 2007, the jury
          convicted Appellant of all three offenses.        On
          January 30, 2007, the trial court sentenced Appellant
          to 20 - 40 years’ incarceration for third degree
          murder, a consecutive term of 20 - 40 years’
          incarceration for criminal conspiracy, and a
          consecutive term of 2½ - 5 years’ incarceration for
          PIC. Appellant filed a counseled appeal, and this
          Court affirmed his judgment of sentence on
          August 11, 2009. Commonwealth v. Harris, 979
          A.2d 387 (Pa.Super. 2009). Appellant filed a petition
          for allowance of appeal to our Supreme Court but
          ultimately abandoned that appeal when he withdrew
          his petition before it was decided.

                 On March 4, 2010, Appellant filed a timely
          PCRA petition, his first, alleging his appellate counsel
          (following his third trial), Attorney Joseph S.
          O’Keefe, provided ineffective[] assistance of counsel
          (IAC).     Appellant again sought to act pro se.
          Therefore,     the    PCRA      court    conducted     a
          Grazier[Footnote 1] hearing on March 4, 2010. The
          court    determined      that    Appellant    knowingly,
          voluntarily, and intelligently decided to represent
          himself. The PCRA court then conducted a hearing
          on November 27, 2012. However, that hearing was
          limited    to    argument      concerning    Appellant’s
          satisfaction of the prejudice prong pertaining to one
          of his IAC claims. No evidence was admitted and
          Attorney O’Keefe did not provide testimony. On
          January 11, 2013, the PCRA court issued an order
          denying Appellant’s petition for relief. Appellant filed


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          a timely appeal from that order, and now presents
          the following questions for our review:

               [Footnote    1]   Commonwealth         v.
               Grazier, 713 A.2d 81, 82 (Pa. 1998)
               (“When a waiver of the right to counsel is
               sought at the post-conviction and
               appellate   stages,  an    on-the-record
               determination should be made that the
               waiver is a knowing, intelligent, and
               voluntary one.”).

               [1]. WAS APPELLANT DENIED HIS
               SIXTH    AMENDMENT     RIGHT      TO
               EFFECTIVE [ASSISTANCE OF] COUNSEL,
               DUE TO APPELLATE COUNSEL’S FAILURE
               TO RAISE ON DIRECT APPEAL THE ISSUE
               OF COLLATERAL ESTOPPEL PURSUANT
               TO ASHE V. SWENSON,[Footnote 2]
               DENYING    APPELLANT    HIS    FIFTH
               AMENDMENT . . . DOUBLE JEOPARDY
               [RIGHT]?

                     [Footnote    2]  Ashe  v.
                     Swenson,     397 U.S. 436
                     (1970).

               2.   WAS APPELLANT DENIED HIS
               SIXTH    AMENDMENT     RIGHT      TO
               EFFECTIVE [ASSISTANCE OF] COUNSEL,
               DUE TO APPELLATE COUNSEL’S FAILURE
               TO RAISE ON DIRECT APPEAL . . . THAT
               APPELLANT WAS DENIED HIS SPEEDY
               TRIAL RIGHTS?

               3.   DID THE PCRA COURT ERR BY
               CONCLUDING THAT THE EVIDENCE WAS
               OVERWHELMING TO DENY APPELLANT
               RELIEF THAT HIS DUE PROCESS RIGHTS
               WERE VIOLATED, WHEN THE TRIAL
               COURT    DENIED    APPELLANT   THE
               OPPORTUNITY TO PRESENT PORTIONS
               OF APPELLANT’S PRIOR TESTIMONY . . .
               [THAT WOULD] . . . REBUT THE


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                  MISLEADING PORTIONS READ IN BY THE
                  COMMONWEALTH?

                  4.   DID THE PCRA COURT ERR BY
                  FAILING TO ADDRESS APPELLANT’S
                  THIRD AMENDED PETITION?

            Appellant’s Brief [filed August 28, 2013] at 4.

Commonwealth v. Harris, No. 357 EDA 2013, unpublished memorandum

at 2-5 (Pa.Super. filed April 15, 2014).

      This court then disposed of the fourth issue that appellant raised as

follows:

                  Appellant asserts that the PCRA court erred
            when it failed to address matters raised in his third
            amended      PCRA    petition   (hereinafter   “third
            amendment”). Appellant believes that, because he
            filed his third amendment before the PCRA court
            entered the order denying him PCRA relief, the PCRA
            court was obligated to address the additional matters
            raised therein. However, the record indicates that
            this issue was not presented in Appellant’s
            Pa.R.A.P. 1925(b) statement of errors complained of
            on appeal. As such, we conclude that Appellant has
            waived this claim. See Commonwealth v. Lord,
            719 A.2d 306, 309 (Pa. 1998) (“Any issues not
            raised in a 1925(b) statement will be deemed
            waived.”).

Id. at 6.

      This court then determined that appellant’s three remaining issues

raised ineffective assistance of direct appeal counsel claims. Because direct

appeal counsel did not testify at the November 27, 2012 PCRA hearing, this

court vacated the PCRA court’s January 11, 2013 order denying appellant




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PCRA relief on his ineffective assistance claims and remanded for an

evidentiary hearing so that direct appeal counsel could testify. See id.

      In accordance with this court’s instructions, the PCRA court held an

evidentiary hearing on July 22, 2014, during which direct appeal counsel,

Scott O’Keefe, testified.1

      The record further reflects that on August 20, 2015, the PCRA court

dismissed appellant’s PCRA petition for lack of merit. On August 28, 2015,

appellant filed a notice of appeal to this court. On September 2, 2015, the

PCRA court ordered appellant to file a Pa.R.A.P. 1925(b) statement.           On

September 26, 2015, appellant filed a timely Rule 1925(b) statement.

      At this point, we note that the appeal of the January 11, 2013 order

was docketed in this court at No. 357 EDA 2013. After this court vacated

that order and remanded for an evidentiary hearing on April 15, 2014, the

prothonotary of this court remitted the record to the PCRA court and closed

docket No. 357 EDA 2013. The fact that this court vacated the January 11,

2013 order and remanded for an evidentiary hearing so that direct appeal

counsel could testify regarding appellant’s ineffective assistance claims did

not, however, result in appellant being given the opportunity to raise new

issues or to re-litigate the issue that the previous panel of this court decided.




1
 We note that in November 2013, direct appeal counsel was elected to the
Philadelphia Court of Common Pleas and is now Judge Scott O’Keefe.


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      Therefore, prior to addressing the issues properly before us, we note

that appellant has reframed his issues as follows:

            1.    WAS    APPELLANT  DENIED   HIS  SIXTH
                  AMENDMENT RIGHT TO EFFECTIVE COUNSEL,
                  DUE TO APPELLATE COUNSEL’S FAILURE TO
                  PROPERLY RAISE ON DIRECT APPEAL THE
                  ISSUE OF COLLATERAL ESTOPPEL PURSUANT
                  TO ASHE V. SWENSON DENYING APPELLANT
                  HIS FIFTH AMENDMENT RIGHT TO DOUBLE
                  JEOPARDY?

            2.    WAS     APPELLANT   DENIED   HIS   SIXTH
                  AMENDMENT RIGHT TO EFFECTIVE COUNSEL,
                  DUE TO APPELLATE COUNSEL’S FAILURE TO
                  RAISE ON DIRECT APPEAL, THAT APPELLANT
                  WAS DENIED HIS SPEEDY TRIAL RIGHTS,
                  WHEN THE COMMONWEALTH NOLLE PROSSE
                  [sic] THE CHARGE OF THIRD DEGREE MURDER
                  AFTER A MISTRIAL ON THE CHARGE THEN RE-
                  OPENED IT THREE YEARS LATER?

            3.    WAS    APPELLANT   DENIED    HIS   SIXTH
                  AMENDMENT RIGHT TO EFFECTIVE COUNSEL,
                  DUE TO APPELLATE COUNSEL’S FAILURE TO
                  RAISE ON DIRECT APPEAL THE TRIAL COURT’S
                  FAILURE TO ALLOW APPELLANT TO READ
                  CERTAIN PORTIONS OF PRIOR TESTIMONY TO
                  REBUT    PORTIONS     READ     BY    THE
                  COMMONWEALTH?

            4.    DID THE PCRA COURT ERR BY FAILING TO
                  CONSIDER THAT IT WAS “GOVERNMENTAL
                  INTERFERENCE” THAT PRECLUDED APPELLANT
                  FROM RAISING IN THE PRIOR 1925(b) THAT IT
                  WAS ERROR FOR THE PCRA COURT TO NOT
                  CONSIDER APPELLANT’S THIRD AMENDED
                  PETITION?

Appellant’s brief filed 10/26/15 at 4.




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     In PCRA appeals, our scope of review “is limited to the findings of the

PCRA court and the evidence on the record of the PCRA court’s hearing,

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

Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008) (internal quotation

omitted). Because most PCRA appeals involve questions of fact and law, we

employ a mixed standard of review.       Commonwealth v. Pitts, 981 A.2d

875, 878 (Pa. 2009).      We defer to the PCRA court’s factual findings and

credibility determinations supported by the record.         Commonwealth v.

Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).             In contrast, we

review the PCRA court’s legal conclusions de novo. Id.

     Appellant’s issues assert ineffective assistance of appellate counsel.

              In evaluating claims of ineffective assistance of
              counsel, we presume that counsel is effective.
              Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d
              435, 441 (Pa. 1999).            To overcome this
              presumption, Appellant must establish three factors.
              First, that the underlying claim has arguable merit.
              See Commonwealth v. Travaglia, 541 Pa. 108,
              661 A.2d 352, 356 (Pa. 1995). Second, that counsel
              had no reasonable basis for his action or inaction.
              Id. In determining whether counsel’s action was
              reasonable, we do not question whether there were
              other more logical courses of action which counsel
              could have pursued; rather, we must examine
              whether counsel’s decisions had any reasonable
              basis.       See Rollins, 738 A.2d at 441;
              Commonwealth v. (Charles) Pierce, 515 Pa. 153,
              527 A.2d 973, 975 (Pa. 1987). Finally, “Appellant
              must establish that he has been prejudiced by
              counsel’s ineffectiveness; in order to meet this
              burden, he must show that ‘but for the act or
              omission in question, the outcome of the proceedings
              would have been different.’” See Rollins, 738 A.2d


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           at 441 (quoting Travaglia, 661 A.2d at 357). A
           claim of ineffectiveness may be denied by a showing
           that the petitioner’s evidence fails to meet any of
           these prongs.       Commonwealth v. (Michael)
           Pierce, 567 Pa. 186, 786 A.2d 203, 221-22 (Pa.
           2001); Commonwealth v. Basemore, 560 Pa. 258,
           744     A.2d    717,    738      n.23    (Pa.    2000);
           Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d
           693, 701 (Pa. 1998) (“If it is clear that Appellant has
           not demonstrated that counsel’s act or omission
           adversely affected the outcome of the proceedings,
           the claim may be dismissed on that basis alone and
           the court need not first determine whether the first
           and second prongs have been met.”). In the context
           of a PCRA proceeding, Appellant must establish that
           the ineffective assistance of counsel was of the type
           “which, in the circumstances of the particular case,
           so undermined the truth-determining process that no
           reliable adjudication of guilt [or] innocence could
           have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii). See
           also (Michael) Pierce, 786 A.2d at 221-22;
           Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d
           326, 333 (Pa. 1999).

Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007).

     At the outset, we direct appellant’s attention to the Pennsylvania Rules

of Appellate Procedure which limit a principal brief to 14,000 words, unless

the brief does not exceed 30 pages. Pa.R.A.P. 2135(a)(1). Where the brief

exceeds 30 pages, a certificate of compliance with the 14,000 word-count

limit must be filed. Id. Here, appellant’s brief spans 79 pages, exclusive of

attachments, and fails to include a certificate of compliance. Pa.R.A.P. 2101

underscores the seriousness with which this court takes deviations from

procedural rules, as it permits us to quash or dismiss an appeal for

procedural noncompliance. Although we will address appellant’s issues, we



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admonish appellant for his failure to follow the rules set forth by our

supreme court. A pro se defendant is subject to the same procedural rules

as a counseled defendant. Commonwealth v. Harris, 979 A.2d 387, 397

(Pa.Super. 2009).

      Appellant first complains that direct appeal counsel was ineffective for

failing to raise collateral estoppel on direct appeal.   Specifically, appellant

complains that because he was acquitted in his second trial of attempted

murder and REAP pertaining to Joseph Pratt, the Commonwealth was

precluded from using any evidence relating to Pratt, including evidence that

Pratt was in the vehicle when appellant shot the victim to death.2


2
  The record reflects, and appellant admits, that the trial court precluded the
Commonwealth from presenting evidence or arguing that appellant
attempted to murder Pratt.        (Appellant’s brief at 15.)      Nevertheless,
appellant claims that his acquittals of attempted murder and REAP with
respect to Pratt mean that “the jury found that Pratt wasn’t in the car, or at
the scene of the crime,” and therefore, evidence of Pratt being in the car
was barred by collateral estoppel. (Id. at 18.) Appellant is mistaken.

            In the criminal law arena, the difficulty in applying
            collateral estoppel typically lies in deciding whether
            or to what extent an acquittal can be interpreted in a
            manner that affects future proceedings, that is,
            whether it reflects a definitive finding respecting a
            material element of the prosecution’s subsequent
            case. We ask whether the fact-finder, in rendering
            an acquittal in a prior proceeding, could have
            grounded its verdict upon an issue other than that
            which the defendant seeks to foreclose from
            consideration. If the verdict must have been based
            on resolution of an issue in a manner favorable to
            the defendant with respect to a remaining charge,
            the Commonwealth is precluded from attempting to
            relitigate that issue in an effort to resolve it in a


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           contrary way. Conversely, where an acquittal cannot
           be definitively interpreted as resolving an issue in
           favor of the defendant with respect to a remaining
           charge, the Commonwealth is free to commence with
           trial as it wishes.

           The court is not, however, required to sanitize the
           trial to eliminate all unpleasant facts from the jury’s
           consideration where those facts are relevant to the
           issues at hand and form part of the history and
           natural development of the events and offenses for
           which the defendant is charged, as appellant would
           have preferred.

Commonwealth v. Rolan, 964 A.2d 398, 412 (Pa.Super. 2008) (internal
citations omitted).

      At that third trial, the trial court precluded the Commonwealth from
introducing evidence or arguing that appellant attempted to kill Pratt
because appellant was acquitted of the attempted murder and reckless
endangerment of Pratt. (Notes of testimony, 1/22/07 at 5-10.) The trial
court, however, permitted the prosecution to present evidence that Pratt
was in the car with the victim at the time appellant killed the victim in the
form of appellant’s prior testimony.

      The issues to be resolved by the fact-finder at the third trial were
whether appellant murdered the victim with the requisite malice, whether
appellant engaged in a criminal conspiracy, and whether appellant possessed
an instrument of crime. “Third degree murder occurs when a person
commits a killing which is neither intentional nor committed during the
perpetration of a felony, but             contains the    requisite  malice.”
Commonwealth v. Kling, 731 A.2d 145, 147 (Pa. Super. 1999), appeal
denied, 745 A.2d 1219 (1999), citing 18 Pa.C.S.A.§ 2502(c). “Malice exists
where there is a wickedness of disposition, hardness of heart, cruelty,
recklessness of consequences, and a mind regardless of social duty,
although a particular person may not be intended to be injured.” Id. at
147-148 (citation and quotation marks omitted).         Commonwealth v.
Tielsch, 934 A.2d 81, 94 (Pa.Super. 2007).          “A person is guilty of
conspiracy with another person or persons to commit a crime if with the
intent of promoting or facilitating its commission he . . . agrees with such
other person or persons that they or one or more of them will engage in
conduct which constitutes such crime or an attempt or solicitation to commit


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        The record, however, belies appellant’s claim. The record reflects that

direct appeal counsel raised the collateral estoppel claim by alleging and

arguing that the trial court erred when it permitted the Commonwealth to

read appellant’s prior testimony concerning Joseph Pratt to the jury, as well

as when it permitted the Commonwealth to present evidence that Pratt was

in the victim’s vehicle when appellant shot the victim to death.        (Docket

#53.)    On direct appeal, this court found that because appellant failed to

support his collateral estoppel claim with citation to the record, appellant

waived the issue. Harris, 979 A.2d at 396. The fact that this court found

waiver of that issue, however, in no way supports the conclusion that direct

appeal counsel never raised the issue.        At the evidentiary hearing, direct




such crime.” 18 Pa.C.S.A. § 903(a)(1). Finally, a person is guilty of PIC “if
he possesses any instrument of crime with intent to employ it criminally.”
18 Pa.C.S.A. § 907(a).

       Here, the fact that Pratt was sitting in the car with the victim when
appellant shot the victim to death had no bearing on the issues of whether
appellant killed the victim with the requisite malice, engaged in a conspiracy
with Shaun “Boo” Cherry to kill victim, and/or possessed a firearm with
intent to use it to shoot the victim to death. Moreover, evidence concerning
Pratt’s presence in the vehicle at the time appellant shot the victim to death
was part of the history and natural development of the case.              See
Commonwealth v. Lark, 543 A.2d 491, 501 (Pa. 1988) (recognizing that,
despite a defendant’s preference to the contrary, courts are not required to
sanitize the trial to eliminate all unpleasant facts from the jury’s
consideration where those facts are relevant to the issues to be decided and
where they form part of the history and natural development of the events
and offenses for which the defendant is charged). Therefore, even assuming
that direct appeal counsel did not raise this issue on direct appeal, it would
nevertheless fail for lack of arguable merit.


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appeal counsel testified that he raised the collateral estoppel issue because

appellant “demanded” it be raised, but that he did not believe it would be

successful on appeal. (Notes of testimony, 7/22/14 at 6-8). We agree and,

therefore, find no prejudice to appellant.

      Appellant next complains that direct appeal counsel was ineffective for

failing to raise a claim that appellant was denied his right to a speedy trial

when the Commonwealth nolle prossed the third-degree murder charge

and re-opened it three years later.

      A nolle prosequi is the Commonwealth’s voluntary withdrawal of a

particular bill of information. Pa.R.Crim.P. 585; see also Commonwealth

v. Goldman, 70 A.3d 874, 878 (Pa.Super. 2013).

      The relevant portion of the speedy trial rule requires that,

            [e]xcept in cases in which the defendant is not
            entitled to release on bail as provided by law, no
            defendant shall be held in pretrial incarceration in
            excess of . . . 120 days from the date of the written
            notice from the appellate court to the parties that
            the record was remanded.

Pa.R.Crim.P. 600(B)(5).

      When determining whether Rule 600 requires dismissal of charges

against a defendant, courts utilize a three-step analysis.

            The first step in determining whether a technical
            violation of Rule 600 [. . .] has occurred is to
            calculate the “mechanical run date.” The mechanical
            run date is the date by which trial must commence
            under the relevant procedural rule.          [T]he
            mechanical run date is ascertained by counting the
            number of days from the triggering event -- e.g.,


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           the date on which . . . the criminal complaint was
           filed -- to the date on which trial must commence
           under Rule [600].

Commonwealth v. Preston, 904 A.2d 1, 11 (Pa.Super. 2006) (internal

citations omitted), appeal denied, 916 A.2d 632 (Pa. 2007). In the second

step, we must “determine whether any excludable time exists pursuant to

Rule 600(C).” Commonwealth v. Ramos, 936 A.2d 1097, 1103 (Pa.Super.

2007), appeal denied, 948 A.2d 803 (Pa. 2008). Then, in the third step,

we add all excludable or excusable time to the mechanical run date, which

provides the adjusted run date. Id.

     Furthermore, delays not attributable to a defendant but where the

Commonwealth is found to have acted with due diligence in attempting to

commence a timely trial but was prevented by circumstances beyond its

control, are considered excusable time and likewise added to the mechanical

run date. Commonwealth v. Hunt, 858 A.2d 1234, 1241 (Pa.Super. 2004)

(en banc), appeal denied, 875 A.2d 1073 (Pa. 2005).           Periods of delay

caused by the defendant, however, are excludable from the adjusted run

date calculation. See id.; see also Pa.R.Crim.P. 600(C)(2).

     Here, the record reflects that the Commonwealth nolle prossed the

third-degree murder charge after appellant’s convictions of conspiracy and

PIC in his second trial because it was satisfied with the sentence imposed.

Appellant then filed a direct appeal to this court.    This court vacated

appellant’s judgment of sentence and remanded for a new trial on



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September 1, 2005. The Commonwealth then filed a petition for allowance

of appeal to our supreme court, which was denied on March 8, 2006. The

record further reflects that on April 5, 2006, the trial court took jurisdiction

and conducted a pre-trial hearing on April 25, 2006.      At that hearing, the

trial court set a June 5, 2006 trial date with an alternative, next-available

date of January 16, 2007. (Notes of testimony, 4/25/06 at 29-31.)

      The record further reflects that on May 1, 2006, appellant filed a

motion for recusal of the trial court.   On May 17, 2006, appellant filed a

motion to bar the Commonwealth by collateral estoppel from advancing any

theory or evidence of a dispute between appellant and Pratt.        On June 1,

2006, appellant filed a motion to qualify an expert. Also on June 1, 2006,

appellant filed a memorandum of law in support of bail, a motion to proceed

pro se, and a motion for informal defense request for discovery.             On

June 21, 2006, appellant filed a motion for a court-appointed expert witness.

In order to address all of appellant’s motions, the trial court rescheduled the

trial to begin on January 16, 2007. (PCRA court opinion, 6/27/13 at 9-10.)

      At the PCRA evidentiary hearing, and consistent with the record, direct

appeal counsel testified that there was no speedy trial rule violation under

Rule 600.    (Notes of testimony, 7/22/14 at 8.)        Direct appeal counsel

explained that the Commonwealth withdrew the nolle pros, not to violate

any speedy trial rules, but because this court granted appellant a new trial.

(Id. at 9.) Additionally, when asked by the PCRA court what he had done to



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determine the non-viability of a speedy trial violation claim, direct appeal

counsel testified:

            I reviewed all of the docket entries and the Quarter
            Sessions file and determined that he was tried within
            the amount of time, excluding -- originally this was
            set for trial, I believe, in July and then -- I’m not --
            then [appellant] filed several motions that had to be
            resolved and the case was given the next available
            date in front of Judge Hughes, which was January. It
            was not a lack of due diligence on the part of the
            Commonwealth.

Id. at 10-11.

      Consequently, direct appeal counsel then concluded that no evidence

existed to support the conclusion that the Commonwealth violated the

speedy trial rule, and therefore, the claim was frivolous because the delay

was the result of appellant’s “own doing.” (Id. at 34-36.) Therefore, this

claim lacks arguable merit.

      Appellant next complains that direct appeal counsel was ineffective for

failing to challenge the trial court’s ruling to exclude a portion of appellant’s

prior testimony from being read to the jury in order to rebut portions of

appellant’s testimony that the Commonwealth was permitted to present.

      At the PCRA hearing, direct appeal counsel explained the issue and his

strategy, as follows:

            THE WITNESS:          At the rebuttal stage, after
            [appellant] had finished his case, the Commonwealth
            went to put in part of a bail petition and also prior
            testimony, I believe, from the second trial. I’m not
            sure if it was the second or the first. [Appellant]
            objected, but there was a long and lengthy argument


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            on the record about [the Commonwealth] putting in
            only a portion of the bail petition and not all of it. It
            was a very short and brief argument by [appellant]
            concerning his prior testimony at an earlier trial and
            whether or not the assistant district attorney was
            only going to put in a portion of it, rather than all of
            it. The judge ruled that none of it was coming in,
            unless [appellant] took the stand in his own defense.

            THE COURT: And this was the underlying nature of
            this testimony, was used by [the Commonwealth] in
            an attempt to show that [appellant] had been
            threatening a witness or intimidating a witness, so
            that that witness would not continue to offer
            testimony against him, right?

            THE WITNESS: Correct.

            THE COURT: Okay.

                   That is an issue which, of course, was covered
            in this Court’s opinion, originally, dismissing the
            petition.

                  Let me ask you this, if I may:

                   Based on your review of the record of the third
                  3
            trial,[ ] if [the trial court] had done the right thing by
            either excluding all of the bail petition and all of
            [appellant’s] prior testimony or if she was going to
            admit it by admitting it all in total, admitting the
            entire bail petition and everything he said about the
            subject we were just talking about, do you have a
            view, as an experienced criminal -- formally an
            experienced criminal defense lawyer,[4] now a
            criminal trial judge, as to the likelihood of whether or

3
  In its initial opinion prior to this court’s remand, the PCRA court determined
that the trial court’s exclusion of the prior testimony constituted harmless
error. (PCRA court opinion, 6/27/13 at 15-16.)
4
 Direct appeal counsel testified that he practiced criminal defense law for
34 years before his election to the bench. (Notes of testimony, 7/22/14 at
28.)


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            not that correct ruling would have resulted in a
            different verdict?

                  THE WITNESS: I do not believe it would have
            been a different verdict. I believe if all the materials
            had gone in, that he would have been convicted
            quicker.

                  One of the things the bail petition specifically
            would have had that he previously [had] been
            charged of first-degree murder, which the jury did
            not know and also would have been in jail the entire
            time, since the time of his arrest, which the jury did
            not know.

                  As to the other testimony, I believe that the
            testimony he presented, the defense had presented
            at the second trial, was substantially different than
            the defense he presented at the third trial.

                  I think if all of that would have come in, the
            jury would have dismissed his argument as frivolous
            from the beginning.

Notes of testimony, 7/22/14 at 36-39.

      Direct appeal counsel further explained that although he could have

raised this issue separately, he determined that the strongest issue on direct

appeal was the trial court’s refusal to recuse itself. (Id. at 22.) As such,

direct appeal counsel included the trial court’s adverse evidentiary rulings

within the recusal issue that he raised on direct appeal.       After a careful

review of the record, we conclude that direct appeal counsel had a

reasonable basis for including adverse evidentiary rulings in the issue that

he determined was the most likely to prevail, which was recusal. Although

our inquiry ends there, we note that appellant claims that he suffered



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prejudice because if not for direct appeal counsel’s failure to raise this issue

on direct appeal, “the outcome on [d]irect [a]ppeal would’ve been different.”

(Appellant’s brief at 76.) Appellant, however, entirely fails to demonstrate

how counsel’s strategy so undermined the truth-determining process so that

no reliable adjudication of his guilt or innocence could have taken place.

        Appellant finally complains that the PCRA court erred in refusing to

address matters raised in his third PCRA petition.               This court previously

determined that appellant waived this issue for failing to include it in his

Rule 1925(b) statement.           Harris, 102 A.3d at 532.         Although appellant

attempts to resuscitate this issue by claiming that his failure to do so

resulted from “government interference” in that “once [the Superior Court]

vacated the PCRA court’s order and remanded the case for an evidentiary

hearing,     and   jurisdiction    was   relinquished[,]   the    PCRA   [court]   had

jurisdiction to consider the Third Amended Petition,” 5 the issue was decided

against appellant and is legally incapable of resuscitation.6

        Order affirmed.




5
    Appellant’s brief at 78.
6
  We further note that appellant cites no legal support for his erroneous
contention that remand gave the PCRA court jurisdiction to entertain a claim
that this court determined that appellant waived.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/21/2016




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