J-S37032-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                             Appellee

                       v.

CARLOS LAMONT JONES

                             Appellant                        No. 1700 WDA 2015


                  Appeal from the PCRA Order October 7, 2015
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0000534-2006


BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                                       FILED JUNE 3, 2016

     Carlos Lamont Jones appeals from the order of the Court of Common

Pleas of Allegheny County. After our review, we affirm based on the opinion

authored by the Honorable Edward J. Borkowski.

     A jury convicted Jones of one count of possession with intent to deliver

(cocaine) (“PWID”), 35 P.S. § 780-113(a)(30), possession (cocaine), 35 P.S.

§ 780–113(a)(16), and possession of drug paraphernalia. 35 P.S. § 780–

113(a)(32).      The        court   sentenced   Jones    to    five   to   fifteen   years’

incarceration. This Court affirmed the judgment of sentence on March 16,

2012, and the Supreme Court of Pennsylvania denied allowance of appeal.

Commonwealth v. Jones, 47 A.3d 1247 (Pa. Super. 2012) (unpublished

memorandum), appeal denied, 51 A.3d 838 (Pa. 2012).
J-S37032-16



       On September 7, 2012, Jones filed a pro se petition under the Post

Conviction Relief Act, 42 Pa.C.S. §§ 9541-46, (“PCRA”), and the PCRA court

appointed counsel.       On October 31, 2012, PCRA counsel filed a motion to

withdraw and a Turner/Finley1 no-merit letter.             The PCRA court granted

counsel’s    motion    to   withdraw      and    gave   Jones   notice,   pursuant   to

Pennsylvania Rule of Criminal Procedure 907, of its intent to dismiss the

PCRA petition.       Jones filed a response to the court’s Rule 907 notice.

Thereafter, the PCRA court dismissed Jones’ PCRA petition by order entered

December 4, 2012.         Jones filed a timely pro se notice of appeal, and the

PCRA court issued an order on January 16, 2013, directing Jones to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). Jones complied, and the PCRA court entered a Statement in Lieu

of Opinion pursuant to Rule 1925(a) on March 8, 2013.

       On October 22, 2013, this Court directed the PCRA court to appoint

new counsel to represent Jones and to conduct a hearing on his layered

ineffectiveness of counsel/Rule 600 claim. See Commonwealth v. Jones,

79 WDA 2013 (unpublished memorandum, filed Oct. 22, 2013). On remand,

the court appointed new counsel, conducted two hearings, and denied Jones’

claim for collateral relief. This appeal followed. Jones raises the following

issues for our review:

____________________________________________


1
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988).



                                           -2-
J-S37032-16


        1. Whether [Jones’] trial counsel, David Shrager, Esquire,
           was ineffective for failing to raise a Rule 600 claim, which
           in the circumstances of the particular case, so undermined
           the truth-determining process that no adjudication of guilt
           or innocence could have taken place?

        2. Whether [Jones’] PCRA counsel, Robert Carey, Esquire,
           was ineffective for failing to pursue and investigate a Rule
           600 claim, 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?

        3. Whether there was a violation of the constitution of this
           Commonwealth or the Constitution of the United States
           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?

     We review an order dismissing a petition under the PCRA in the light

most favorable to the prevailing party at the PCRA level. Commonwealth

v. Burkett, 5 A.3d 1260, 1267 (Pa. Super. 2010). This review is limited to

the findings of the PCRA court and the evidence of record. Id. We will not

disturb a PCRA court’s ruling if it is supported by evidence of record and is

free of legal error. Id. This Court may affirm a PCRA court’s decision on

any grounds if the record supports it. Id. Further, we grant great deference

to the factual findings of the PCRA court; we will not disturb those findings

unless they have no support in the record. Commonwealth v. Carter, 21

A.3d 680, 682 (Pa. Super. 2011).

     It is well-settled that “our review of a post-conviction court’s grant or

denial of relief is limited to determining whether the court’s findings are

supported by the record and the court’s order is otherwise free of legal



                                    -3-
J-S37032-16



error.”   Commonwealth v. Gadsden, 832 A.2d 1082, 1085 (Pa. Super.

2003) (citing Commonwealth v. Yager, 685 A.2d 1000, 1003 (Pa. Super.

1996) (en banc)); Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa.

Super. 2003).     To prevail on a petition for PCRA relief, a petitioner must

plead and prove by a preponderance of the evidence that his conviction or

sentence resulted from one or more of the circumstances enumerated in 42

Pa.C.S. § 9543(a)(2).     See Commonwealth v. Spotz, 18 A.3d 244, 259

(Pa. 2011).     These circumstances include the ineffectiveness of counsel,

which “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).

      Jones’ first two issues comprise a layered ineffectiveness claim that

PCRA counsel and trial counsel were ineffective for failing to investigate and

pursue a Rule 600 claim. As we set forth in Burkett, supra,

      Counsel is presumed effective and will only be deemed
      ineffective if the petitioner demonstrates that counsel’s
      performance was deficient and he was prejudiced by that
      deficient performance. Prejudice is established if there is a
      reasonable probability that, but for counsel’s errors, the result of
      the proceeding would have been different. A reasonable
      probability is a probability sufficient to undermine confidence in
      the outcome.

      To properly plead ineffective assistance of counsel, a petitioner
      must plead and prove: (1) that the underlying issue has
      arguable merit; (2) counsel’s actions lacked an objective
      reasonable basis; and (3) actual prejudice resulted from
      counsel’s act or failure to act. If a petitioner fails to plead or
      meet any elements of the above-cited test, his claim must fail.



                                     -4-
J-S37032-16



Burkett, supra at 1271–1272 (internal citations and quotations omitted).

       We conclude that the opinion authored by Judge Borkowski in support

of the order denying Jones’ PCRA petition thoroughly and comprehensively

addresses the issues he raises on appeal. Counsel were not ineffective for

failing to investigate or pursue a Rule 600 claim; the PCRA court correctly

determined that, considering the sixteen postponements, fourteen of which

were requested by Jones, and the properly excludable time, Jones was

brought to trial within the time period required by Rule 600.2 The underlying

claim lacks merit and, therefore, neither trial counsel nor PCRA counsel was

ineffective.   See Trial Court Opinion, 12/11/15, at 8-15.       Additionally, the

court determined, as a separate matter, that there was no violation of Jones’

constitutional right to a speedy trial.          See id. at 15-19 (court weighed

factors to be considered, noting that despite lengthy delay, Jones and his

counsel were primarily responsible for delays, government was not primarily

responsible, and Jones neither raised the issue timely nor established

prejudice as a result of delay).

       Based upon our review, we agree with Judge Borkowski’s assessment

and analysis of Jones’ claims on appeal.             The court’s determination is

supported in the record and we find no legal error. See Burkett, supra.
____________________________________________


2
  See Pa.R.Crim.P. 600(A)(2)(a) (“Trial in a court case in which a written
complaint is filed against the defendant shall commence within 365 days
from the date on which the complaint is filed.”). See also Pa.R.Crim.P.
600(C) (computation of time).



                                           -5-
J-S37032-16



We, therefore, affirm the order denying Jones’ PCRA petition based upon

Judge Borkowski’s opinion.    We direct the parties to attach a copy of the

opinion in the event of further proceedings.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/3/2016




                                    -6-
'   :•
                                                                     Circulated 05/12/2016 02:25 PM




                       IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY,
                                          PENNSYLVANIA

                COMMONWEALTH OF PENNSYLVANIA,          CRIMINAL DIVISION

                         APPELLEE,

                           v.
                CARLOS JONES,                    CC NO.: 200600534

                       APPELLANT.

                                                  1700 \¥DA 2015


                                                 OPINION

                                                 FILED BY:
                  0-
                  ..
     0                                          THE HONORABLE
         UJ
         _J                                     EDWARD J. BORKOWSKI
         -·U-
                                                COPIES TO:
                                                Christy Foreman, Esq.
                                                220 Grant Street
                                                Fifth Floor
                                                Pittsburgh, PA 15219

                                                 Michael Streily, Esq.
                                                 Office of the District Attorney
                                                401 Allegheny County Courthouse
                                                -436 Grant Street
                                                Pittsburgh, PA 15219
        IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY,
                           PENNSYLVANIA

  COMMONWEALTH            OF PENNSYLVANIA,             CRIMINAL DIVISION

    APPELLEE

               v.                                      CC NO.: 200600534

  CARLOS JONES,

        APPELLANT.



                                       OPINION

  BORKOWSKI, J.



                              PROCEDURAL HISTORY

       Appellant was charged by criminal information (CC 200600534) with one

 count each of: possession with intent to deliver, conspiracy, possession, possession

of drug paraphernalia, person not to possess a firearm, and altering identification.

       On June 29, 2010, following several postponements, Appellant proceeded to

a jury trial before the Honorable Donald Machen. Following the jury trial,

Appellant was found guilty of possession with intent to deliver, possession, and

possession   of drug paraphernalia.     On September 30, 2010, Appellant was

sentenced by the Trial Court to five to fifteen years incarceration at the charge of

possession with intent to deliver.



                                                                                       2
          · On October 29, 2010, Appellant   filed a timely notice of appeal to the

  Superior Court. Appellant's judgment of sentence was affirmed on March 16,

  2012, and his petition for allowance of appeal was denied on August 23, 2012.

           On September 7, 2012, Appellant filed a timely prose PCRA Petition. The

 PCRA Court appointed Robert Carey to represent Appellant. Attorney Carey filed

 a Turner/Finley no-merit letter on October 31, 2012. On November 5, 2012, the

 PCRA Court granted Attorney Carey's motion to withdraw, and issued a notice of

 intent to dismiss Appellant's PCRA petition. On November 27, 2012, Appellant

 filed a response to the notice of intent to dismiss, including an argument that

Attorney Carey should have raised an ineffective assistance of trial counsel claim

for failure to file a Rule 600 motion prior to trial. On December 4, 2012, the PCRA

Court dismissed Appellant's PCRA petition.

          Appellant filed a timely prose notice of appeal on December 27, 2012. On

October 22, 2013, the Superior Court remanded Appellant's PCRA petition to the

PCRA Court for it to address Petitioner's Rule 600 claim. The Superior Court

stated:

      While Appellant's contention that no time is excludable from
      the running of Rule 600 as attributable to him is incorrect, we
      conclude genuine questions of material fact exist concerning
      whether the Commonwealth violated Rule 600 and whether
      trial counsel and PCRA counsel were ineffective for failing to
      pursue a Rule 600 claim at their respective stages of the
      proceedings.                                         ·



                                                                                  3
                                                                                        ,




               In light of the foregoing, we conclude the PCRA court
         erred in determining Appellant failed to raise a cognizable
         claim under the PCRA and that the record belied his claim.
         Rather, we conclude Appellant properly raised sufficient
        averments to warrant an opportunity to prove his claims.
        Accordingly, we vacate the PCRA court's December 4, 2012
        order dismissing Appellant's PCRA petition without a hearing.
        We direct the PCRA court to appoint new counsel to represent
        Appellant and to conduct a hearing on Appellant's layered
        ineffectiveness of counsel/Rule 600 claim.

 Superior Court Opinion, October 22, 2013, pp. 13-14.

        Notably missing from the certified record on appeal was any documentation

 explaining the delay between the denial of Appellant's omnibus pretrial motion on

 July 25, 2007, and the first day of trial on June 29, 2010.

        Following remand, the PCRA Court appointed Attorney Christy Foreman to

 represent Appellant. On February 25, 2014, the PCRA Court held a hearing,

 wherein the PCRA Court heard testimony from Assistant District Attorney

Thaddeus Dutkowski and Appellant's trial counsel Attorney David Shrager. At that

hearing, several original postponement forms, which had been missing from the

court file, were introduced into evidence. For the first time, Appellant alleged that

he did not sign the postponement forms that bore what appeared to be his

signature. As such, the PCRA Court continued the matter to allow a handwriting

expert to examine the documents that formed the basis of Appellant's new claim.

      The PCRA Court appointed Khody Detwiler as a handwriting expert, and

Detwiler filed an expert report on October 29, 2014.

                                                                                   4
           Appellant's case was reassigned to the Honorable Edward J. Borkowski on

  November 19, 2014.

           During the pendency of the PCRA and following reassignment, Appellant

 visited     Judge     Borkowski's    courtroom   several   times   requesting   of Judge

 Borkowski's         staff that Attorney   Foreman   be removed as counsel. Attorney

 Foreman was notified by Judge Borkowski's staff that Appellant wanted Attorney

 Foreman removed as counsel, but she was unable to make contact with Appellant

 to discuss this. Attorney Foreman filed a motion to withdraw on December 12,

 2014, based on Appellant's request to courtroom staff that she withdraw.

       On February 24, 2015, a Grazier hearing was held. At the hearing, Attorney

 Foreman explained that she had only discovered that the case had been reassigned

to Judge Borkowski when his courtroom staff notified her of Appellant's request

for her to withdraw as counsel. Following private discussions between Attorney

Foreman and Appellant on February 24, 2015, Appellant notified the PCRA Court

that he wanted Attorney Foreman to continue representing him.

       On July 22, 2015, a second PCRA hearing was held. At that time, the

Commonwealth and Attorney Foreman stipulated to and introduced into evidence

the handwriting expert report, the transcript from the prior PCRA proceeding

before Judge Machen, and Commonwealth Exhibit 1, which consisted of nine

postponement forms.



                                                                                      5
            The PCRA Court took the matter under advisement and conducted an

  independent      review of the record and testimony.       On September     11, 2015, the

  PCRA Court issued detailed findings of fact and conclusions of law within its

  notice of intent to dismiss Appellant's       PCRA petition. The PCRA Court denied

  Appellant's PCRA petition on October 7, 2015.

           This timely appeal follows.

                          STATEMENT OF ERRORS ON APPEAL

           Appellant's claims are set forth below exactly as Appellant presented them:

           1) Appellant's      trial counsel, David Shrager, Esquire, was
                ineffective for failing to raise a Rule 600 claim, 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.
           2) Appellant's PCRA Counsel, Robert Carey, Esquire, was
               ineffective for failing to pursue and investigate a Rule 600
               claim, 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.
          3) There was a violation of the Constitution of this
              Commonwealth· or the Constitution of the United States
              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.
          4) The Trial Court erred in denying Appellant's PCRA
             Petition.

                                   FINDINGS OF FACT

          The underlying facts of the case are not germane to the disposition of this

appeal.



                                                                                       6
                                       DISCUSSION

           An appellate   court's   role in reviewing   PCRA appeals    is "limited       to

 determining whether the findings of the PCRA court are supported by the record

 and free from legal error." Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa.

 2009). The scope of review is limited to the PCRA court's findings and the

 evidence of record, which are to be viewed in the light most favorable to the

Commonwealth. Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012). A denial

will not be disturbed unless it is found that the certified record does not support the

PCRA court's findings. Commonwealth v. Gandy, 38 A3d 899, 902 Pa. Super.

2012).

         The standard of review for ineffective assistance of counsel claims is well

settled:

        Counsel is presumed effective, and the appellant has the burden
        of proving otherwise. Appellant establishes ineffectiveness of
       counsel with a demonstration that: (1) the underlying claim is
       of arguable merit; (2) counsel's action or inaction was not
       grounded on any reasonable basis designed to effectuate
       Appellant's interest; and (3) there is a reasonable probability
       that the act or omission prejudiced Appellant in such a way that
       the outcome of the proceeding would have been different. If the
      issue underlying the charge of ineffectiveness is not of arguable
      merit, counsel will not be deemed ineffective for failing to
      pursue a meritless issue. Also, if the prejudice prong of the
      ineffectiveness standard is not met, the claim may be dismissed
      on that basis alone and there is no need to determine whether
      the arguable merit and client's interests prongs have been met.




                                                                                      7
  Commonwealth v. D 'Collanfield, 805 A.2d 1244, 1246-1247 (Pa. Super. 2002)

  (citations and quotations omitted).

                                             I.

        Appellant alleges in his first claim that trial counsel was ineffective for

 failing to raise a Rule 600 claim prior to trial. This claim is without merit.

        The Pennsylvania Rules of Criminal Procedure provide that a defendant

 must be brought to trial within 365 days after the complaint is filed. Pa. R. Crim. P.

 600. Excludable time and excusable delay are taken into account when calculating

 the deadline within which a defendant must be brought to trial. Excludable time

 includes delays attributable to a defendant or his counsel. Excusable delay includes

 delays that occur beyond the control of the Commonwealth and despite its due

 diligence. Commonwealth v. Goldman, 70 A.3d 874, 879 (Pa. Super. 2013).

Dismissal is required only when the Commonwealth fails to bring a defendant to

trial within 365 days, with the deadline calculated after taking into account all

excludable time and excusable delay. Goldman, 70 A.3d at 880.

      The relevant procedural history regarding the prosecution of Appellant's

case is somewhat convoluted and lengthy, and was discussed in detail in the PCRA

Court's findings of fact and conclusions of law on September 11, 2015. Recounted

here, Appellant was charged by criminal complaint on July 7, 2005, making his




                                                                                    8
  mechanical    run date July 7, 2006. However, the Commonwealth withdrew all

  charges on November 9, 2005.

         Charges against Appellant were re-filed on November 28, 2005. A Rule 600

  run date is calculated   from the second filing date if the withdrawal and re-filing of

  charges was necessitated by factors outside the Commonwealth's control, the

 Commonwealth exercised due diligence, and the re-filing was not an attempt to

 circumvent the limitations of Rule 600. Goldman, 70 A.3d at 880. Here, nothing of

 record indicated that the Commonwealth withdrew Appellant's charges in an

 attempt to circumvent the requirements of Rule 600, or did not act with due

 diligence. The Superior Court determined that Appellant's Rule 600 claim should

 begin on November 28, 2005, the date of the second complaint, although the

 Superior Court did not indicate why. Superior Court Opinion, October 22, 2013, at

p. 13. Absent evidence that the Commonwealth withdrew the charges in an attempt

to thwart the requirements of Rule 600, and after not exercising due diligence, the

PCRA Court calculated Appellant's Rule 600 claim to begin on November 28,

2005. Thus, his mechanical run date was November 28, 2006.

       Appellant was scheduled for a preliminary hearing, but Appellant requested

continuances from December 13, 2005 to December 20, 2005, and then again to

January 10, 2006. While there is no reason apparent from the record for the

postponements, they were defense postponements and were considered excludable



                                                                                     9
  time for purposes of calculating Appellant's Rule 600 deadline. Thus, Appellant's

  adjusted run date became December 26, 2006.

        On January 10, 2006, Appellant's case was held for court, and he received a

 subpoena for March 24, 2006, at which time he was formally arraigned.

        On June 21, 2006, Appellant filed an omnibus pretrial motion. The motion

 was not ruled on until July 25, 2007, 399 days later. While the time from the filing

 of an omnibus     pretrial   motion   to its disposition   can usually be considered

 excludable time, the PCRA Court was not convinced that the entire period should

 be considered excludable time because it was not obvious that the motion itself

 required a delay of over one year. Commonwealth v. Hill, 736 A.2d 578, 587 (Pa.

 1999) (filing a pretrial motion will not render a defendant unavailable; delay only

excludable where it caused delay in commencement of trial and Commonwealth

exercised due diligence in opposing or responding to the motion). Instead, the

PCRA Court only excluded specific instances of excludable time and excusable

delay during that period from June 21, 2006 until July 25, 2007.

      On September 28, 2006, the Commonwealth filed a postponement because

one of its key witnesses for disposition of the pretrial motion, and trial, was

unavailable. A postponement was granted until December 13, 2006. This was an

excusable delay as it delayed the trial and disposition of the motion, and the




                                                                                  10
     Commonwealth was acting in due diligence in attempting to secure the witness.1

     On December 14, 2006, the defense filed a postponement until January 29, 2007,

     because the trial court was unavailable. On January 30, 2007, the defense filed a

     postponement until April 10, 2007, because counsel needed more time to prepare.

    On April 10, 2007, the defense filed a postponement until July 2, 2007, because the

    court was unavailable and a Commonwealth witness was unavailable. On July 2,

    2007, the defense filed a postponement until July 25, 2007, because counsel had a

    scheduling conflict. These postponements were either excusable delay by the trial

    court or excludable time attributable to Appellant or counsel. On July 25, 2007,

    Appellant's pretrial motion to suppress was denied. Thus, at that point, Appellant's

    adjusted run date became October 20, 2007.

          It is unclear what occurred from the denial of the pretrial motion on July 25,

    2007, and the court date of September 6, 2007. Attorney Foreman and the

 Commonwealth had assumed it was a judicial delay. However, without concrete

reasoning for the delay, the PCRA Court did not consider it excludable time. Thus,

Appellant's adjusted run date remained as October 20, 2007, despite the delay

following disposition of the pretrial motion.

1
  Appellant alleged that his signature on that postponement form was not his, and the expert
report agreed. The PCRA Court noted, however, after careful examination of the postponement
form, that this form did not contain a purported signature by Appellant. Strangely, the only
signature on the line provided for the defendant's signature on the postponement form is for
Appellant's co-defendant, and reads: James DePasquale (for Thelma Jones). Thus, no forged
signature for Appellant appears on that postponement. The PCRA Court found no reason to
ignore this postponement in calculating Appellant's excludable time.


                                                                                           11
           On September 6, 2007, the Commonwealth requested and was granted a

     postponement until September 19, 2007, because a witness was unavailable. This

    was an excusable delay as the Commonwealth was acting in due diligence in

    attempting to secure witnesses for the trial. Appellant's adjusted run date became

    November 2, 2007.

           On September 19, 2007, the defense filed a postponement because counsel

    was in the process of negotiating a plea agreement with the Commonwealth. A

    new trial date was set for January 14, 2008. This delay was attributable to the

    defense, and was excludable time. Appellant's adjusted run date became February

    27, 2008.

          On January 14, 2008, the defense filed a postponement because Appellant

 had not been transported to the courthouse from SCI Greene.2 A new trial date was

 set for May 19, 2008. This delay was excusable as the Commonwealth was acting

in due diligence and Appellant's non-transport was outside its control. As a result,

Appellant's adjusted run date became July 2, 2008.


2
   Appellant alleged that his signature on this postponement form was not his own signature, and
 the expert agreed. The postponement form contains the following signature: Carlos Jones by
 [illegible]. Notably, the postponement was requested and granted because Appellant was not
 transported to the courthouse from SCI Greene. Thus, Appellant could not have been there to
sign the postponement form, and therefore it was signed on his behalf by his attorney or someone
from his attorney's office. The file indicates that a subpoena for the rescheduled trial date was
mailed to Appellant. Appellant was subsequently released from SCI Greene, and appeared at the
rescheduled trial date of May 19, 2008, indicating that Appellant was aware of and did not object
to the 'rescheduled date. The PCRA Court found no reason to ignore this postponement in
calculating Appellant's excludable time.


                                                                                              12
         On May 19, 2008, the defense filed a postponement for more time to prepare

  for trial. A new trial date was set for September       22, 2008. This delay was

  excludable as attributable to the defense. Thus, Appellant's     adjusted run date

  became November 5, 2008.

         On September 22, 2008, the defense filed a postponement because the trial

 court was unavailable,    and a new trial date was set for January 27, 2009. This

 delay was excusable, and Appellant's adjusted run date became March 12, 2009.

         On January 27, 2009, the defense filed a postponement   because of potential

 witness problems. A new trial date was set for May 11, 2009. This delay was

 excludable as attributable to the defense, and Appellant's adjusted run date became

June 24, 2009.

        On May 8, 2009, defense filed a postponement for more time to prepare for

trial. A new trial date was set for September      15, 2009. Again, this time was

excludable as attributable to the defense, and Appellant's adjusted run date became

October 29, 2009.

        On September 15, 2009, the defense filed a postponement because the court

was unavailable due to another jury trial. A new trial date was set for February 22,

2010. This delay was excusable, and Appellant's adjusted run date became April 7,

2010.




                                                                                  13
           On February 4, 2010, the defense filed a postponement because defense

     counsel was going to be out of town for the scheduled trial date. 3 A new trial date

     was set for June 28, 2010. This delay was excludable as attributable to the defense,

    and Appellant's adjusted run date became August 11, 2010.

           Appellant proceeded to jury selection on June 28, 2010, and his trial began.

    on June 29, 2010, over one month before his adjusted run date of August 11, 2010.

          In evaluating the procedural history of Appellant's case, the PCRA Court

    acknowledges that numerous postponements were filed and granted. However,

    based on the record before the PCRA Court, they were not due to the

    Commonwealth's lack of diligence to bring Appellant to trial. In fact, only two of

    the sixteen postponements in this case were Commonwealth postponements, and

 those were not due to a lack of due diligence on the part of the Commonwealth.

 The PCRA Court found that there was no Rule 600 violation, and the underlying

 claim lacked merit, and this finding was supported by the record. Thus, the PCRA

 Court properly denied Appellant's PCRA claim. See Commonwealth v. Fowler,




3
  This postponement form was submitted prior to the scheduled trial date of February 22, 2010.
The signature on the form reads: Carlos Jones by DSS. Appellant's counsel (David Shrager)
likely signed the form on his behalf because Appellant was not there. Appellant subsequently
signed the subpoena for the rescheduled trial date, and also updated his address on the subpoena.
Thus, Appellant had notice of and did not object to the postponement at the time it was made.
The PCRA Court found no reason to ignore this postponement in calculating Appellant's
excludable time.


                                                                                              14
  703 A.2d 1027, 1029 (Pa. 1997) (counsel will not be deemed ineffective for failing

  to raise a meritless claim).

         Appellant's claim is without merit.

                                            II.

        Appellant alleges in his second claim that PCRA counsel Robert Carey was

 ineffective for failing to raise the ineffective assistance of trial counsel for failing

 to pursue a Rule 600 claim. The PCRA Court incorporates by reference its lengthy

 discussion hereinabove of trial counsel's effectiveness in not pursuing a Rule 600

 claim. See supra, pp. 8-15. As the underlying Rule 600 claim lacked merit, and

 trial counsel was not ineffective for failing to raise it, the PCRA Court found that

 PCRA counsel likewise was not ineffective for failing to raise trial counsel's

ineffectiveness on that basis, and this finding is supported by the record. Thus, the

PCRA Court properly denied Appellant's PCRA claim. See Commonwealth v.

Fears, 86 A.3d 795, 820 (Pa. 2014) (appellate counsel was not ineffective for

failing to raise a meritless claim of trial counsel's ineffectiveness). Appellant's

claim is without merit.

                                          III.

      Appellant alleges in his third claim that there was a violation of the United

States and/or Pennsylvania constitutions, which undermined the truth-determining




                                                                                     15
  process in this case such that no reliable adjudication of guilt or innocence could

  have taken place. This claim is without merit.

         A claim that a defendant's Rule 600 right to a speedy trial was violated is

  distinct from a claim that his constitutional right to a speedy trial was violated.

  Commonwealth v. Preston, 904 A.2d 1, 10 (Pa. Super. 2006) (constitutional claim

 provides a separate and broader basis for asserting that a defendant's speedy trial

 rights were violated in appropriate cases). Here, Appellant did not allege in his

 PCRA that his constitutional right to a speedy trial was violated, and thus the

 PCRA Court did not examine this claim previously. Appellant still does not

 specifically allege that his constitutional right to a speedy trial was violated, and

 thus such claim does not need to be addressed. Commonwealth v. Colon, 87 A.3d

 352, 357 n.2 (Pa. Super. 2014) (where defendant does not raise the separate

constitutional issue in addition to a Rule 600 claim, there is no need for the court to

evaluate the constitutional claim).

       Nonetheless, Appellant's Concise Statement of Matters does allege that

there was "a violation" of the constitution, and bis claims as a whole are all related

to the Rule 600 claim. Thus, in the interests of thoroughly examining and disposing

of all of Appellant's claims, this Court will now examine whether the delay

violated Appellant's constitutional right to a speedy trial.




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         As discussed at length hereinabove, Appellant's right to a speedy trial under

  Rule 600 was not violated. See supra, pp. 8-15. Having found no Rule 600

  violation, the court must next determine whether a constitutional violation

  occurred. Colon, 87 A.3d at 356. There are four factors to be considered in

  determining whether an unconstitutional speedy trial violation has occurred:

         (1) whether the pretrial delay was uncommonly long; (2)
        whether the government or the criminal defendant is more to
        blame for that delay; (3) whether, in due course, the defendant
        asserted his right to a speedy trial; and (4) whether the
        defendant suffered prejudice because of the delay. A finding in
        the defendant's favor of any one of the four factors, standing
        alone, does not constitute a speedy trial violation. Rather, each
        of the four factors are related and each must be weighed
        carefully in the court's evaluation of a criminal defendant's
        claim that his speedy trial rights were violated.

 Commonwealth v. DeBlase, 665 A.2d 427, 432 (Pa. 1995) (citations omitted).

       Here, as to the first factor, the Court acknowledges that there was an

uncommonly long pretrial delay in bringing Appellant's case to trial.

       The second factor examines the responsibility. for the delay. As noted

hereinabove, there were sixteen postponements in this case. The Commonwealth

requested two postponements, due to the unavailability of a key witness for trial.

Appellant's counsel requested fourteen postponements: four requests because

counsel was unavailable, one request because Appellant was not transferred, five

requests for more time to prepare for trial, and four requests because the trial court

was unavailable on the scheduled date. While four of Appellant's postponements

                                                                                   17
 were due to the trial court's unavailability, ten of the sixteen postponements were

 due to counsel's need to prepare for trial, and for the unavailability of counsel or

 Appellant. The delay was notably not due to a lack of diligence on the part of the

 Commonwealth. As such, under the second factor, Appellant is more to blame than

 the Commonwealth for the delay.

        As to the third factor, Appellant did not assert a Rule 600 claim relating to

 his speedy trial rights until the PCRA Court filed a notice of intent to dismiss in

 November 2012, well after the commencement of his jury trial, and after his first

 appeal to the Superior Court.

       As to the fourth factor, prejudice to the defendant, the court must assess this

factor within the context of the interests that the speedy trial right is meant to

protect. Namely, those rights are:

       (1) preventing oppressive pretrial incarceration; (2) minimizing
       the accused's anxiety and concern; and (3) limiting the
       impairment of the defense. The last 'consideration [. . .]
       represents the most serious of these three concerns, because the
       inability of a defendant to adequately prepare his case for trial
       skews the fairness of the entire system.

DeBlase, 665 A.2d at 436 (citations omitted). Here, Appellant's counsel

specifically asked for five of the sixteen postponements in order to better prepare

for trial. At no point did counsel claim that the delay prejudiced his client or his

preparation for trial, nor has Appellant indicated how he was prejudiced by the

delay in this case.

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        Considering and weighing all four factors, this Court finds that while there

 was a lengthy delay, the government was not primarily to blame for that delay,

 Appellant   and Appellant's    counsel were primarily to blame for the delay,

 Appellant did not timely raise a speedy trial violation claim, and Appellant was not

prejudiced by the delay. As such, Appellant's constitutional right to a speedy trial

was not violated, and Appellant's claim is without merit.

                                         IV.

        Appellant alleges in his final claim that the PCRA Court erred in denying

Appellant's PCRA Petition. As discussed at length hereinabove, Appellant's

layered ineffective assistance of counsel claim was without merit, and the PCRA

Court properly denied Appellant's PCRA petition. See supra, pp. 8-15. Appellant's

claim is without merit.



                                  CONCLUSION

      Based upon the foregoing, the judgment of sentence imposed by this Court

should be affirmed.


                                               By the Court,



DATE:




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