J-A10042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA


                        v.

    SAROEUN CHHAB

                             Appellant               No. 1499 EDA 2017


                    Appeal from the PCRA Order April 11, 2017
              In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0006511-2011, CP-51-CR-0006512-
                          2011, CP-51-CR-0006513-2011


BEFORE: GANTMAN, P.J., MCLAUGHLIN, J., and RANSOM, J.*

MEMORANDUM BY RANSOM, J.:                              FILED JUNE 25, 2018

        Appellant, Saroeun Chhab, appeals from the order entered April 11,

2017, denying his petition for collateral relief filed under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        We adopt the following statement of facts from the PCRA court opinion,

which in turn is supported by the record. See PCRA Court Opinion (PCO),

7/18/17, at 1-6. On March 12, 2011, Appellant was arrested in connection

with an April 2010 shooting that resulted in the death of one man and the

injury of two other men. He was charged with murder, generally, as well as

related charges.1        Bail was set at $250,000.00; Appellant remained

incarcerated until trial. Id.

____________________________________________


1   See MC-51-CR-0001457-2011, 18 Pa.C.S. § 2502.


*    Retired Senior Judge assigned to the Superior Court.
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        On March 21, 2013, following a jury trial, Appellant was convicted of

third degree murder, two counts of aggravated assault, and a violation of the

uniform firearm act (“VUFA”).2 On July 9, 2013, Appellant was sentenced to

twenty to forty years of incarceration for murder, one consecutive term of five

to ten years of incarceration for aggravated assault, and one concurrent term

of five to ten years of incarceration for aggravated assault. He received no

further penalty for the VUFA charge. This amounted to an aggregate sentence

of twenty-five to fifty years of incarceration.

        Appellant timely appealed his sentence, and this Court affirmed his

judgment of sentence. See Commonwealth v. Chhab, 108 A.3d 109 (Pa.

Super. 2014) (unpublished memorandum). Appellant did not seek allowance

of appeal with the Pennsylvania Supreme Court.

        In October 2015, Appellant pro se timely filed a PCRA petition. In his

petition, he raised allegations of ineffective assistance of counsel, averring

that counsel were ineffective for failing to file a motion to dismiss pursuant to

Pa.R.Crim.P. 600 and for failing to ensure that Appellant’s jury was impartial

and unbiased. See PCRA Petition, 10/13/15, at 1-41. Appellant filed a motion

seeking appointment of counsel in February 2016. He then filed a second

PCRA petition in April 2016. Counsel was finally appointed to represent him

and, in December 2016, filed a Turner/Finley3 letter and accompanying
____________________________________________


2   18 Pa.C.S. §§ 2502(c), 2702, 6106, respectively.

3Commonwealth v. Turner, 544 A.2d 927 (1988), and Commonwealth v.
Finley, 550 A.2d 213 (1988) (en banc).

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motion to withdraw as counsel. Appellant filed a response to the Finley letter

in February 2017.

      In March 2017, the court granted counsel’s motion to withdraw and sent

Appellant notice pursuant to Pa.R.Crim.P. 907 that his petition would be

dismissed without a hearing. Appellant pro se filed a response to the notice.

In April 2017, the court formally dismissed the petition.

      Appellant timely appealed.    Both the PCRA court and Appellant have

complied with Pa.R.A.P. 1925.

      Appellant raises the following questions for our review:

      1. Whether [t]he lower court abused its discretion [in] accepting
      court appointed PCRA counsel’s “no-merit” letter where the record
      demonstrates PCRA counsel failed to competently present a
      meritorious violations of a strictly construed presentation of a
      violation of Pa.R.Crim.P. Rule 600 prejudicing [Appellant] in that
      this meritorious claim would have resulted in the discharge of
      [Appellant]?

      2. Whether the lower court abused its discretion in accepting court
      appointed counsel’s “no-merit” letter in not finding ineffective
      assistance of counsel where trial counsel was ineffective in failing
      to ensure that [Appellant’s] jury was unbiased, impartial, and
      unprejudiced where such ineffective assistance of counsel resulted
      in a structural error not subjected to harmless error analysis and
      [Appellant] was prejudiced by PCRA counsel’s unreasonable
      failure to litigate a meritorious claim?

      3. Whether the lower court abused its discretion in failing to
      conduct an evidentiary hearing where genuine issues of material
      fact exist necessitating a hearing?

Appellant’s Brief at 4 (verbatim, except as noted).

      We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of

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record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007). We afford the court's findings deference unless there is no

support for them in the certified record. Commonwealth v. Brown, 48 A.3d

1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson, 995

A.2d 1184, 1189 (Pa. Super. 2010)).

        In this case, the PCRA court dismissed Appellant's petition without a

hearing.    See PCRA Court Order, 4/12/17 (citing in support Pa.R.Crim.P.

907).      There   is   no   absolute    right   to    an    evidentiary    hearing.

See Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008).

On appeal, we examine the issues raised in light of the record “to determine

whether the PCRA court erred in concluding that there were no genuine issues

of material fact and denying relief without an evidentiary hearing.” Springer,

961 A.2d at 1264.

        We presume counsel is effective. Commonwealth v. Washington,

927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish

the ineffective assistance of counsel, a PCRA petitioner must prove, by a

preponderance of the evidence: “(1) the underlying legal issue has arguable

merit; (2) that counsel's actions lacked an objective reasonable basis; and (3)

actual     prejudice    befell   the    petitioner    from     counsel's    act    or

omission.”     Commonwealth        v.   Johnson,      966    A.2d   523,   533    (Pa.

2009) (citations omitted).       “A petitioner establishes prejudice when he

demonstrates that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been

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different.” Id. A claim will be denied if the petitioner fails to meet any one of

these requirements.     Springer, 961 A.2d at 1267 (citing Commonwealth

v. Natividad, 938 A.2d 310, 322 (Pa. 2007)); Commonwealth v. Jones,

942 A.2d 903, 906 (Pa. Super. 2008).

      First, Appellant claims that all prior counsel were ineffective for failing

to make a motion pursuant to Pa.R.Crim.P. Rule 600 and request that

Appellant’s case be dismissed due to its untimeliness and his pretrial

incarceration. See Appellant’s Brief at 10. Appellant argues that his trial was

held beyond the permissible run date and that the Commonwealth did not

show that it had exercised due diligence in bringing the matter to trial in a

speedy fashion. Id. at 11-12. Appellant argues that he did not waive his right

to a speedy trial, and that defense counsel requested continuances without

his permission. Id. at 11-14.

      At the time the criminal complaint against Appellant was filed,

Pa.R.Crim.P. Rule 600 stated in relevant part:

      Rule 600. Prompt Trial

      ***

            (A)(2) Trial in a court case in which a written complaint is
            filed against the defendant, when the defendant is
            incarcerated on that case, shall commence no later than 180
            days from the date on which the complaint is filed.

            (3) Trial in a court case in which a written complaint is filed
            against the defendant, when the defendant is at liberty on
            bail, shall commence no later than 365 days from the date
            on which the complaint is filed.



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         ***

               (B) For the purpose of this rule, trial shall be deemed to
               commence on the date the trial judge calls the case to trial,
               or the defendant tenders a plea of guilty or nolo contendere.

See Pa.R.Crim.P. 600.4

         Regarding the calculation of time for the commencement of a speedy

trial,

         [t]he mechanical run date is the date by which the trial must
         commence under Rule 600. It is calculated by adding 365 days
         (the time for commencing trial under Rule 600) to the date on
         which the criminal complaint is filed. The mechanical run date can
         be modified or extended by adding to the date any periods of time
         in which delay is caused by the defendant. Once the mechanical
         run date is modified accordingly, it then becomes an adjusted run
         date.

Commonwealth v. Lynn, 815 A.2d 1053, 1056 (Pa. Super. 2003). Time

may be excluded for 1) any period of time between the filing of the complaint

and the defendant’s arrest; 2) any period of time for which the defendant

expressly waives Rule 600; or 3) any period of time for which the delay results

from the unavailability of the defendant or his attorney, or any continuance

granted at the request of the defendant or his attorney. See Lynn, 815 A.2d

at 1056-57.      Dismissal is only required where the Commonwealth fails to

exercise due diligence to bring the defendant to trial within 365 days, after




____________________________________________


4 A new version of Rule 600 was adopted, effective July 1, 2013. See
Pa.R.Crim.P. 600 cmt. In the instant case, the criminal complaint was filed
March 12, 2011, prior to the effective date of the new rule. Accordingly, we
will apply the former version of Rule 600.

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taking into account any excludable time and excusable delay.              See

Commonwealth v. Frye, 909 A.2d 853, 858 (Pa. Super. 2006).

     The PCRA court noted that:

     In the instant matter, [Appellant] was arrested on March 12,
     2011, thus the mechanical run date was March 13, 2012. The trial
     commenced on March 18, 2013. The first in court status listing
     was July 26, 2011. Defense counsel requested continuances on
     that date, August 17, 2011, September 22, 2011, October 12,
     2011, November 8, 2011, December 13, 2011, and February 21,
     2012. On April 4, 2012, there was a joint request for continuance,
     and on August 20, 2012, a trial date was scheduled for March 18,
     2013, consistent with the [c]ourt’s calendar. On April 20, 2012,
     the case was listed for status on September 14, 2012; on that
     date defense requested another status for possible non-trial
     disposition. On January 24, 2013, defense again requested a
     continuance for possible non-trial disposition. February 7, 2013,
     was the last status listing prior to trial.

     The time from July 26, 2011 to February 7, 2013 is excludable
     time, which adds up to 563 days. If one adds 563 days to the
     mechanical run date of March 13, 2012, the adjusted run date is
     September 26, 2013. The case falls within the 365 day maximum
     for a trial to commence. It is clear that a Rule 600 motion would
     not have been granted because the majority of the continuance
     requests were made by defense counsel.

See PCO, 7/18/17, at 11-12.            Accordingly, the court concluded that

Appellant’s claim was without merit.

     However, Appellant argues that he was never released on bail and

remained incarcerated prior to trial and accordingly, that the Commonwealth

had 180 days to bring him to trial. See Appellant’s Brief at 10-11. Appellant

argues that, as a result of this interpretation, his run date should have been

September 8, 2011. Id. at 12. He also argues that the defense continuances

should not count, because he did not authorize them. Id. at 12.

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        Appellant was arrested on March 12, 2011, and bail was set at

$250,000.00.     He was unable to post the required amount.         One hundred

eighty days from Appellant’s arrest would be September 7, 2011. However,

he is not entitled to relief for two reasons.     First, counsel is authorized to

request a continuance on behalf of his client, Appellant’s additional argument

that the continuances were not authorized on the record, cannot overcome

this fact.   See Commonwealth v. Wells, 521 A.2d 1388, 1390-91 (Pa.

1987).

        Second, Rule 600 does not work in the manner in which Appellant

contends it does. The Pennsylvania Supreme Court has observed that:

        Rule 600(A)(2) provides that when a defendant is incarcerated,
        trial shall commence no later than 180 days from the date the
        criminal complaint is filed. Rule 600(E), which lies at the heart of
        the controversy herein, is a corollary to Rule 600(A)(2), providing
        that no defendant shall be held in pretrial incarceration for a
        period exceeding 180 days. If a defendant is so held, he shall be
        entitled to immediate release on nominal bail upon petition. Rule
        600(E), however, provides for excludable time in accord with Rule
        600(C). This Rule allows that in computing the running of the 180
        days, delays resulting from defendant's actions or requests shall
        be     excluded.    The     sum     of   these    rules    is  that
        an incarcerated defendant must be tried within 180 days of a
        written complaint, and if such trial does not timely occur,
        the defendant is     entitled    to    immediate      release    on
        nominal bail after spending 180 days in confinement, exclusive of
        delays occasioned by defendant.

Commonwealth v. Dixon, 907 A.2d 468, 473–74 (Pa. 2006).

        Here, Appellant did not petition for release on nominal bail as he should

have.     Id. (noting that defendant is entitled to immediate release upon

petition). Further, the 180-day period is still calculated with the exclusion of


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delays occasioned by the defendant.      Id. at 474.    Here, the PCRA court

appropriately found 563 days of delay, from July 26, 2011, to February 7,

2013, were attributable to the defendant. Thus, the 180-day period would

expire Saturday, March 23, 2013. Appellant’s trial was commenced on March

18, 2013, prior to the adjusted run date. Accordingly, Appellant’s issue is

meritless, and he is not entitled to relief. Springer, 961 A.2d at 1267.

      Next, Appellant claims that counsel was ineffective for failing to ensure

that the jury panel was unbiased.     See Appellant’s Brief at 22.    Appellant

argues that because many of the jurors had been victims of crime or had

known someone who was a victim of crime, some involving guns, they could

not have given him a fair and impartial trial. Id. at 22-27.

      A trial court’s decision regarding whether to disqualify a juror for cause

will not be reversed in the absence of an abuse of discretion.             See

Commonwealth v. Briggs, 12 A.3d 291, 332-33 (Pa. 2011). If a juror can

put aside his biases on the proper instruction of the court and is willing and

able to render a verdict according to the evidence, disqualification is not

proper. Id. at 333. Further, the Appellant must show that the jury was not

impartial. See Commonwealth v. Noel, 104 A.3d 1156, 1169 (Pa. 2014).

      Here, the PCRA court noted that all of the jurors with whom Appellant

takes issue indicated that the crimes either they or their loved ones had

witnessed or experienced would not affect their ability to be fair. See PCO at

12-14. Further, beyond bare assertions that the jurors could not have been

fair based on their experiences, Appellant has not met his burden to establish

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that the jury was biased.     See, e.g., Appellant’s Brief at 30.      The court

instructed the jury that they were to be fair and impartial, and jurors are

presumed to follow the instructions of the court. See Commonwealth v.

Chmiel, 30 A.3d 1111, 1147 (Pa. 2011). Appellant has not pointed to any

specific facts to indicate that he was not given a fair and impartial trial.

Accordingly, Appellant’s issue is without merit, and he is not entitled to relief.

Springer, 961 A.2d at 1267.

      Finally, Appellant argues that the court erred in failing to conduct an

evidentiary hearing where genuine issues of material fact existed that would

necessitate such a hearing. See Appellant’s Brief at 32. As we have noted,

supra, there is no absolute right to an evidentiary hearing, and we examine

the issues raised to determine whether the court erred in concluding there

were no genuine issues of material fact. Springer, 961 A.2d at 1264. Based

upon our resolution of the issues raised above, we cannot conclude that the

court erred in denying Appellant a hearing. Id.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/25/18




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