J-S47025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

HENRY DIAZ

                            Appellant                No. 2093 EDA 16


                   Appeal from the PCRA Order June 17, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0014222-2010


BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MOULTON, J.:                       FILED OCTOBER 10, 2017

       Henry Diaz appeals from the June 17, 2016 order entered in the

Philadelphia County Court of Common Pleas dismissing his petition filed

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. We

affirm.

       On August 24, 2010, Diaz was arrested and charged with possession

with intent to deliver a controlled substance (“PWID”), possession of a

controlled substance, and criminal conspiracy to commit PWID.1 On August

14, 2012, the trial court conducted a non-jury trial and, on November 29,

2012, convicted Diaz of the aforementioned charges. On February 15, 2013,

the trial court sentenced Diaz to an aggregate term of 4 to 8 years’
____________________________________________


       135 P.S. §§ 780-113(a)(16), (a)(30), and 18 Pa.C.S. § 903(a),
respectively.
J-S47025-17



incarceration, followed by 5 years’ probation. On March 5, 2013, Diaz timely

filed a notice of appeal.     On June 19, 2013, Diaz’s trial counsel withdrew the

appeal.

       On June 27, 2013, Diaz filed a pro se PCRA petition. The PCRA court

appointed counsel, who filed an amended PCRA petition on August 5, 2015.

On November 19, 2015, the Commonwealth filed a motion to dismiss the

PCRA petition. On May 10, 2016, the PCRA court filed a notice of intent to

dismiss Diaz’s PCRA petition under Pennsylvania Rule of Criminal Procedure

907. On June 17, 2016, the PCRA court dismissed Diaz’s PCRA petition. On

June 29, 2016, Diaz timely filed a notice of appeal.

       Diaz raises two2 interrelated issues on appeal:

           Whether the PCRA court abused its discretion by
           incorrectly calculating the time pursuant to a Rule 600
           motion where more than 721 days passed prior to trial
           with 560 days attributable to the Commonwealth, and in
           failing to find that trial counsel was ineffective for failing to
           raise a Rule 600 challenge prior to the trial in this matter,
           and that appellate counsel provided ineffective assistance
           of counsel by failing to raise the challenge on appeal, all in
           violation of U.S. Const. Amend., V, VI, and XIV; and see,
           PA.Const. art. I, sec. 9[.]

Diaz’s Br. at 4.

____________________________________________


       2We recognize that Diaz may be attempting to raise a claim that he is
entitled to PCRA relief because his speedy trial rights under the United
States and Pennsylvania Constitutions were violated by the Commonwealth’s
alleged violation of Rule 600(A).         Because we conclude that the
Commonwealth did not violate Rule 600(A), any such argument, regardless
of whether it is cognizable under the PCRA, is meritless.



                                           -2-
     J-S47025-17



           “Our standard of review from the grant or denial of post-conviction

     relief is limited to examining whether the PCRA court’s determination is

     supported by the evidence of record and whether it is free of legal error.”

     Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).

           Diaz raises ineffective assistance of counsel claims.

              To prevail on . . . [ineffective assistance of counsel] claims,
              [the PCRA petitioner] must plead and prove, by a
              preponderance of the evidence, three elements: (1) the
              underlying legal claim has arguable merit; (2) counsel had
              no reasonable basis for his action or inaction; and (3) [the
              petitioner] suffered prejudice because of counsel’s action
              or inaction.

     Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011).                    “The law

     presumes counsel was effective[,]” Commonwealth v. Miner, 44 A.3d 684,

     687 (Pa.Super. 2012), and PCRA petitioners “bear[] the burden of pleading

     and proving each of the three . . . factors by a preponderance of the

     evidence,” Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa.Super.

     2015), app. denied, 141 A.3d 479 (Pa. 2016). “A claim of ineffectiveness

     will be denied if the petitioner’s evidence fails to meet any of these prongs.”

     Commonwealth v. Williams, 980 A.2d 510, 520 (Pa. 2009).

I.      Ineffective Assistance of Trial Counsel Claim

           Diaz argues that the PCRA court erred in determining that his

     ineffective assistance of trial counsel claim lacked arguable merit because it

     incorrectly concluded that the Commonwealth complied with Rule 600.

     When considering Rule 600 issues



                                           -3-
J-S47025-17


         this Court is not permitted to ignore the dual purpose
         behind Rule [600].       Rule [600] serves two equally
         important functions: (1) the protection of the accused’s
         speedy trial rights, and (2) the protection of society. In
         determining whether an accused’s right to a speedy trial
         has been violated, consideration must be given to society’s
         right to effective prosecution of criminal cases, both to
         restrain those guilty of crime and to deter those
         contemplating it. However, the administrative mandate of
         Rule [600] was not designed to insulate the criminally
         accused from good faith prosecution delayed through no
         fault of the Commonwealth.

            So long as there has been no misconduct on the part of
         the Commonwealth in an effort to evade the fundamental
         speedy trial rights of an accused, Rule [600] must be
         construed in a manner consistent with society’s right to
         punish and deter crime. In considering [these] matters . .
         ., courts must carefully factor into the ultimate equation
         not only the prerogatives of the individual accused, but the
         collective right of the community to vigorous law
         enforcement as well.

Commonwealth v. Thompson, 93 A.3d 478, 486 (Pa.Super. 2014)

(quoting Commonwealth v. Ramos, 936 A.2d 1097, 1097 (Pa.Super.

2007)) (alterations in original).

      Rule 600 provides in pertinent part:

         (A) Commencement of Trial; Time for Trial

                                     ...

            (2)   Trial shall commence within the following time
                  periods.

               (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.

                                     ...

         (C) Computation of Time


                                     -4-
J-S47025-17


            (1) For purposes of paragraph (A), periods of delay at
                any stage of the proceedings caused by the
                Commonwealth when the Commonwealth has
                failed to exercise due diligence shall be included in
                the computation of the time within which trial must
                commence. Any other periods of delay shall be
                excluded from the computation.

                                       ...

            (3)(a) When a judge or issuing authority grants or
                   denies a continuance:

               (i)    the issuing authority shall record the identity of
                      the party requesting the continuance and the
                      reasons    for   granting     or   denying    the
                      continuance; and

               (ii)   the judge shall record the identity of the party
                      requesting the continuance and the reasons for
                      granting or denying the continuance.        The
                      judge also shall record to which party the
                      period of delay caused by the continuance shall
                      be attributed, and whether the time will be
                      included in or excluded from the computation
                      of the time in within which trial must
                      commence in accordance with this rule.

Pa.R.Crim.P. 600.

      While “Rule 600 requires the Commonwealth to try a defendant within

365 days of the filing of a criminal complaint[,] . . . [a] defendant . . . is not

automatically entitled to discharge under Rule 600 where trial starts more

than 365 days after the filing of the complaint.” Commonwealth v. Roles,

116 A.3d 122, 125-26 (Pa.Super.), app. denied, 128 A.3d 220 (Pa. 2015).

“Rather, Rule 600 ‘provides for dismissal of charges only in cases in which

the defendant has not been brought to trial within the term of the adjusted

run date, after subtracting all excludable and excusable time.’” Id. at 126



                                      -5-
J-S47025-17



(quoting Commonwealth v. Goldman, 70 A.3d 874, 879 (Pa.Super.

2013)). “The adjusted run date is calculated by adding to the mechanical

run date, i.e., the date 365 days from the complaint, both excludable and

excusable delay.” Id.

      “Excludable time includes delay caused by the defendant or his

lawyer[,] . . . [whereas] excusable delay occurs where the delay is caused

by ‘circumstances beyond the Commonwealth’s control and despite its due

diligence.’”   Id. (quoting Goldman, 70 A.3d at 879).      “Due diligence is a

fact-specific concept that must be determined on a case-by-case basis. Due

diligence does not require perfect vigilance and punctilious care, but rather a

showing by the Commonwealth that a reasonable effort has been put forth.”

Id. (quoting Commonwealth v. Armstrong, 74 A.3d 228, 236 (Pa.Super.

2013)). Further, “judicial delay is a justifiable basis for an extension of time

if the Commonwealth is ready to proceed.” Commonwealth v. Hunt, 858

A.2d 1234, 1241 (Pa.Super. 2004) (quotation omitted).

      According to Diaz, of the 721 days between his arrest and trial, 560

days were attributable to the Commonwealth.        Diaz primarily argues that

two time periods – (1) from February 23, 2011 through September 23,

2011, and (2) from February 9, 2012 through August 13, 2012 – were

attributable to the Commonwealth.

      A.       Time Between Scheduling Conference and First Listed
               Trial Date




                                     -6-
J-S47025-17



      On February 23, 2011, the trial court attempted to hold a status

conference, but a co-defendant’s counsel failed to appear.       Thus, the trial

court continued the matter to March 2, 2011 and ruled the time excusable.

      On March 2, 2011, the trial court held a status conference, at which it

noted that the earliest possible pre-trial motion date was September 19,

2011, but scheduled the pre-trial motion date for four days later, September

23, 2011, because a necessary police officer witness was not available until

September 21, 2011.         The trial court also listed the matter for trial on

October 7, 2011. The trial court did not make a contemporaneous ruling on

whether any portion of this time was attributable to the Commonwealth.

      Diaz argues that the period between February 23, 2011 and

September 23, 2011 is attributable to the Commonwealth because the trial

court did not rule the time excludable. The Commonwealth asserts that this

time is excusable because the delay was “due to the trial court’s busy

schedule, not the Commonwealth’s lack of diligence.” Cmwlth.’s Br. at 14.

      We agree with the Commonwealth and conclude that the trial court

correctly concluded that this time was excusable from the Rule 600

calculation.   Opinion, 1/12/16, at 7.   First, with respect to the seven-day

period between February 23, 2011 and March 2, 2011, it is well settled that

a co-defendant’s continuance is excusable from the defendant’s Rule 600

calculation    when   the   defendant    acquiesces   to   the   delay.    See

Commonwealth v. Kearse, 890 A.2d 388, 394 (Pa.Super. 2005) (holding

that “the fact that co-defendant’s counsel did not appear was a circumstance

                                      -7-
J-S47025-17



beyond the control of the Commonwealth”).        Because the Commonwealth

was prepared to proceed, and nothing in the record shows Diaz did not

acquiesce to the continuance, we conclude that the trial court was correct in

concluding that the Commonwealth acted with due diligence and in ruling

that the seven-day period between February 23, 2011 and March 2, 2011

was excusable from the Rule 600 calculation.

       The period between March 2, 2011 and September 23, 2011 is also

excusable from the Rule 600 calculation. The docket entry for the March 2,

2011 scheduling conference states “earliest possible date – 9/19/11;

necessary police officer on vacation until 9/21/11[; m]otions date 9/23/11.” 3

Under these circumstances, we conclude that this 201-day period between

March 2, 2011 and September 19, 2011 was judicial delay based on the trial

court’s schedule, and, thus, not attributable to any lack of due diligence by

the Commonwealth. See Commonwealth v. Brown, 875 A.2d 1128, 1135

(Pa.Super. 2005) (holding that judicial delay is appropriate where due to

congested court dockets and trial court establishes that “it has devoted a

____________________________________________


       3Diaz does not discuss whether the period between September 19,
2012 and September 23, 2012 was attributable to the Commonwealth
because its witness was on vacation. Because these four days do not affect
the outcome of our Rule 600 analysis, we need not address this issue;
instead, we will assume without deciding that these days are attributable to
the Commonwealth. But cf. Commonwealth v. Hunt, 858 A.2d 1234,
1243 (Pa.Super. 2004) (concluding that “victim’s absence from the country
and unavailability was a circumstance beyond the Commonwealth’s control”
and not attributable to Commonwealth).



                                           -8-
J-S47025-17



reasonable amount of resources to the criminal docket and that it scheduled

the criminal trial at the earliest possible date consistent with the court’s

business”) (quoting Commonwealth v. Williams, 726 A.2d 389, 392

(Pa.Super. 1999)) (emphasis omitted).

       B.      Time Between the Second Listed Trial Date and the Actual
               Trial

       Following a series of continuances by the trial court because it was

presiding over a trial in a separate matter, on February 9, 2012, the trial

court relisted Diaz’s case for the earliest possible trial date of August 13,

2012. On August 13, 2012, Diaz’s counsel requested a one-day continuance

to assess a possible plea or waiver trial, which the trial court granted. 4 On

August 14, 2012, Diaz proceeded to trial.

       Diaz argues that the period between February 9, 2012 and August 13,

2012 was attributable to the Commonwealth.              The Commonwealth asserts

that this time is excusable, as the delay “could [not] be attributed to the

Commonwealth.” Cmwlth.’s Br. at 16.

       We agree with the Commonwealth.                The docket entry granting a

continuance on February 9, 2012 has multiple notes, stating “Defense

attorney attached – must be tried.”            Because the trial court was presiding

over a trial in another matter, the trial court rescheduled the matter for the

earliest possible date. There is no indication that the Commonwealth did not

____________________________________________


       4   Diaz concedes that this one-day delay is excludable.



                                           -9-
  J-S47025-17



  exercise due diligence in attempting to bring Diaz to trial. Thus, this 186-

  day period was excusable from the Rule 600 calculation. See Brown, 875

  A.2d at 1135.

        C.     Conclusion

        Diaz’s mechanical run date was 365 days from his arrest, or August

  15, 2011. Of the 721 days between Diaz’s arrest and trial, he admits that

  157 days are excludable due to his actions. When we add those 157 days

  and the 387 excusable days discussed above to the mechanical run date, we

  conclude that, at the earliest, Diaz’s adjusted run date is February 9, 2013.

  Because the Commonwealth brought Diaz to trial on August 14, 2012, we

  conclude that the Commonwealth complied with Rule 600(A).

        Because the Commonwealth complied with Rule 600(A), we further

  conclude that Diaz’s ineffective assistance of trial counsel claim lacks

  arguable merit. Therefore, we conclude that the PCRA court appropriately

  dismissed his ineffectiveness claim.

II.   Ineffective Assistance of Appellate Counsel Claim

        Next, Diaz argues that his “appellate counsel was ineffective for failing

  to argue [a] violation of his speedy trial rights on appeal.” Diaz’s Br. at 18.

  Diaz argues that “[w]hile appellate counsel would be unaware that trial

  counsel told [Diaz] that [trial counsel] had filed a speedy trial motion, clearly

  upon review of this matter, a reasonable attorney would have noticed that

  [Diaz] was arrested on August 24, 2010 and not tried until August 24,

  2012.” Id.

                                         - 10 -
J-S47025-17



      Diaz waived this claim by not including it in his PCRA petition.           See

Commonwealth v. Washington, 927 A.2d 586, 601 (Pa. 2007) (holding

that claims not raised in PCRA petition are “waived and not cognizable on

appeal”). Even if Diaz had preserved this claim, we have already concluded

that trial counsel was not ineffective. Thus, Diaz’s ineffective assistance of

appellate counsel claim fails. See Commonwealth v. Paddy, 15 A.3d 431,

443 (Pa. 2011) (“To establish the arguable merit prong of a claim of

appellate counsel ineffectiveness for failure to raise a claim of trial counsel

ineffectiveness,    the   petitioner   must     prove   that   trial   counsel   was

ineffective[.]”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/2017




                                       - 11 -
