J.S52007/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
                                            :
TELLY WILLIAMS,                             :
                                            :
                          Appellant         :     No. 274 EDA 2013


                Appeal from the PCRA Order December 28, 2012
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0602041-2005

BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 18, 2014

        Appellant, Telly Williams, appeals from the order entered in the

Philadelphia County Court of Common Pleas denying his first Post Conviction

Relief Act1 (“PCRA”) petition.    Appellant asserts that the PCRA court erred

when denying his claims that direct appeal counsel was ineffective for failing

to challenge: (1) the pretrial court’s denial of the motion to suppress

physical evidence and the (2) denial of his Pa.R.Crim.P. 600 motion to

dismiss. We affirm.

        The PCRA court summarized the facts of this case as follows:



*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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         On May 25, 2005 shortly after midnight, there was an
         undercover drug investigation at the corner of 21st and
         Titan Streets in South Philadelphia.       The undercover
         officers observed Appellant outside a corner bar engaged
         in a drug related transaction with an unidentified male who
         was on a bicycle.         When the plainclothes officers
         approached to investigate, both males fled. The man on
         the bike got away. The officers caught Appellant after a
         foot pursuit during which they observed him discard a
         loaded semi-automatic handgun which was later found to
         have an obliterated serial number.       This weapon was
         seized by a police officer from the vacant lot onto which it
         had been thrown by Appellant. When [Appellant] was
         searched the police seized two green and five clear ziplock
         packets containing cocaine. Evidence was also introduced
         that [Appellant] had no license, nor permit to carry the
         gun.

PCRA Ct. Op., 3/26/14, at 2.

      Prior to trial, the court denied Appellant’s motions to suppress

evidence and to dismiss pursuant to Pa.R.Crim.P. 600.2         The jury found

Appellant guilty of persons not to possess firearms, carrying a concealed

firearm without a license, carrying firearms on public streets in Philadelphia,

and possession of controlled substances.     Appellant was sentenced to an

aggregate term of six to twelve years’ imprisonment. He filed a timely post-

sentence motion which was denied on November 16, 2006.

      On direct appeal, this Court affirmed his judgment of sentence.

Commonwealth v. Williams, 3530 EDA 2006 (unpublished memorandum)

(Pa. Super. Sept. 5, 2008).    The Pennsylvania Supreme Court denied his


2
 The motions were litigated before the Honorable William J. Mazzolla on
March 16, 2006 and July 31, 2006 respectively.



                                     -2-
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petition for allowance of appeal.    Commonwealth v. Williams, 524 EAL

2008 (Pa. 2010).    Appellant filed a timely pro se PCRA petition.3 Counsel

was appointed to represent him and was permitted to withdraw prior to filing

an amended petition. Current counsel was appointed and filed an amended

PCRA petition.   The PCRA court dismissed the petition without a hearing.

This timely appeal followed.      Appellant filed a court-ordered Pa.R.A.P.

1925(b) statement of errors complained of on appeal and the trial court filed

a responsive opinion.4

      Appellant raises the following issues for our review:

            Is [Appellant] entitled to post-conviction relief in the
         form of a new trial or a remand for an evidentiary hearing
         since the trial court erred when it denied relief in the
         absence of an evidentiary hearing?

            A. Is [Appellant] entitled to post-conviction relief in the
         form of a new trial as a result of the ineffectiveness of
         appellate counsel for failing to raise in the direct appeal


3
   Appellant’s judgment of sentence became final on June 16, 2010, ninety
days after the Pennsylvania Supreme Court denied his petition for allowance
of appeal. See 42 Pa.C.S. § 9545(b)(3) (providing “a judgment becomes
final at the conclusion of direct review, including discretionary review in the
Supreme Court of the United States and the Supreme Court of Pennsylvania,
or at the expiration of time for seeking the review[ ]”). Appellant had until
June 16, 2011, to file his PCRA petition. See 42 Pa.C.S. § 9545(b)(1)
(providing PCRA petition must be filed within one year of date judgment
becomes final). Therefore, because he filed his PCRA petition on June 28,
2010, his petition is timely.
4
  We note with disapproval the Commonwealth’s reliance in the argument
section of its brief upon its previously filed motion to dismiss and the PCRA
court’s opinion. See Commonwealth v. Dodge, 77 A.3d 1263, 1274-75
(Pa. Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014).



                                     -3-
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         the issue of the pretrial court’s denial of the motion to
         suppress physical evidence?

            B. Is [Appellant] entitled to post-conviction relief in the
         form of an arrest of judgment or a remand for an
         evidentiary hearing as a result of the ineffectiveness of
         appellate counsel for failing to raise in the direct appeal
         the issue of the pretrial court’s denial of the motion to
         dismiss under Pa.R.Crim.P. 600?

Appellant’s Brief at 4.

      “Our standard of review of the denial of a PCRA petition is limited to

examining whether the court’s determination is supported by the evidence of

record and free of legal error.     This Court grants great deference to the

findings of the PCRA court if the record contains any support for those

findings.” Commonwealth v. Lane, 81 A.3d 974, 977 (Pa. Super. 2013)

(citations omitted), appeal denied, 92 A.3d 811 (Pa. 2014).

         [C]ounsel is presumed to have provided effective
         representation unless the PCRA petitioner pleads and
         proves that: (1) the underlying claim is of arguable merit;
         (2) counsel had no reasonable basis for his or her conduct;
         and (3) Appellant was prejudiced by counsel’s action or
         omission. To demonstrate prejudice, an appellant must
         prove that a reasonable probability of acquittal existed but
         for the action or omission of trial counsel. A claim of
         ineffective assistance of counsel will fail if the
         petitioner does not meet any of the three prongs.
         Further, a PCRA petitioner must exhibit a concerted effort
         to develop his ineffectiveness claim and may not rely on
         boilerplate allegations of ineffectiveness.

Commonwealth        v.    Perry,   959   A.2d   932,   936   (Pa.   Super.   2008)

(punctuation marks and citations omitted) (emphasis added).




                                         -4-
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      Additionally, a PCRA petitioner must demonstrate that the issues

raised by his petition have not been waived.      Commonwealth v. Steele,

961 A.2d 786, 796 (Pa. 2008).       “A PCRA claim is waived if the petitioner

could have raised it but failed to do so before trial, at trial, during unitary

review, on appeal or in a prior state post-conviction proceeding. 42 Pa.C.S.

§ 9544(b).”    Id. (quotation marks omitted).     A PCRA claim of trial error,

which was not raised in a direct appeal, is generally not a basis for relief

unless an independent ineffective assistance of counsel claim is presented.

See id. at 799.

         [T]he right to an evidentiary hearing on a post-conviction
         petition is not absolute. It is within the PCRA court’s
         discretion to decline to hold a hearing if the petitioner’s
         claim is patently frivolous and has no support either in the
         record or other evidence. It is the responsibility of the
         reviewing court on appeal to examine each issue raised in
         the PCRA petition in light of the record certified before it in
         order to determine if the PCRA court erred in its
         determination that there were no genuine issues of
         material fact in controversy and in denying relief without
         conducting an evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations

omitted).

      First, Appellant contends appellate counsel was ineffective for failing to

raise in the direct appeal the trial court’s denial of his motion to suppress

physical evidence.    Appellant avers “undercover officers observed [him]

outside a corner bar engaged in what they believed to be a drug transaction

with an unidentified male on a bicycle. . . . When the plainclothes police



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officers approached to investigate, both males fled.” Appellant’s Brief

at 21 (emphasis added).     Appellant concedes he was apprehended by the

police officers “after a foot pursuit during which they observed him

discard a loaded semi-automatic handgun which was later found to

have an obliterated serial number.”    Id. at 21-22 (emphasis added).         He

avers that the “police lacked reasonable suspicion to justify chasing,

stopping and searching” him. Id. at 40. Appellant argues that “[t]he mere

fact that a commercial transaction was observed does not mean that

criminal activity was afoot.” Id. at 41 (emphasis added). Appellant claims

that “[e]ven if the [transaction] occurred in a high crime area,” that fact is

not determinative. Id. (emphasis added). He states “any neighborhood in a

large urban environment such as Philadelphia will have a fair share of crime

and can be characterized as a ‘high crime area.’”    Id. Appellant contends

the police lacked probable cause to arrest or search him.        Id. at 42.   He

avers that an exchange of items “between citizens in a public place, even a

place known to be frequented by drug traffickers, does not, without more,

establish probable cause to arrest those citizens.” Id. at 43.

            Our standard of review in addressing a challenge to a
            trial court’s denial of a suppression motion is
            whether the factual findings are supported by the
            record and whether the legal conclusions drawn from
            those facts are correct. When reviewing the ruling of
            a suppression court, we must consider only the
            evidence of the prosecution and so much of the
            evidence of the defense as remains uncontradicted
            when read in the context of the record as a whole.
            Where the record supports the findings of the


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            suppression court, we are bound by those facts and
            may reverse only if the legal conclusions drawn
            therefrom are in error.

         “It is within the suppression court’s sole province as
         factfinder to pass on the credibility of witnesses and the
         weight to be given their testimony.”        Moreover, with
         respect to our scope of review on suppression issues, our
         Supreme Court has held: “it is appropriate to consider all
         of the testimony, not just the testimony presented at the
         suppression hearing, in determining whether evidence was
         properly admitted.”

Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa. Super. 2013)

(citations omitted).

      In Clemens, this Court opined:

         As we have explained, “[t]he Fourth Amendment to the
         [United States] Constitution and Article I, Section 8 of [the
         Pennsylvania]     Constitution    protect     citizens   from
         unreasonable searches and seizures. To safeguard this
         right, courts require police to articulate the basis for their
         interaction with citizens in [three] increasingly intrusive
         situations.” Our Supreme Court has categorized these
         three situations as follows:

            The first category, a mere encounter or request for
            information, does not need to be supported by any
            level of suspicion, and does not carry any official
            compulsion to stop or respond.           The second
            category, an investigative detention, derives from
            Terry v. Ohio[, 392 U.S. 1 (1968)] and its progeny:
            such a detention is lawful if supported by reasonable
            suspicion because, although it subjects a suspect to
            a stop and a period of detention, it does not involve
            such coercive conditions as to constitute the
            functional equivalent of an arrest.         The final
            category, the arrest or custodial detention, must be
            supported by probable cause.

         Commonwealth v. Smith, [ ] 836 A.2d 5, 10 ([Pa.]
         2003).


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        . . . As noted above, an investigative detention is valid
        when it is supported by reasonable suspicion. In the
        words of the Pennsylvania Supreme Court:

           Reasonable suspicion is a less stringent standard
           than probable cause necessary to effectuate a
           warrantless arrest, and depends on the information
           possessed by police and its degree of reliability in
           the totality of the circumstances. In order to justify
           the seizure, a police officer must be able to point to
           specific and articulable facts leading him to suspect
           criminal activity is afoot. In assessing the totality of
           the circumstances, courts must also afford due
           weight to the specific, reasonable inferences drawn
           from the facts in light of the officer’s experience
           and acknowledge that innocent facts, when
           considered collectively, may permit the investigative
           detention.

Id. at 378-79 (citation omitted) (emphasis added).

     In Clemens, the defendant contended the police lacked reasonable

suspicion to believe he engaged in a drug transaction arguing the officer

“saw nothing more than two men greet each other with a handshake or a

fistbump[, which is an action that is] completely consistent with innocent

behavior.” Id. at 379. This Court disagreed and opined:

        [T]he record clearly supports the suppression court’s
        conclusion that, at the time of the investigative detention,
        [the officer] possessed reasonable suspicion to believe that
        [the defendant] had just sold narcotics. First, although
        [the officer] testified that he did not see the
        particular objects that were being passed between
        [the defendant] and the unidentified man, [he]
        plainly testified that, based upon his experience and
        training, he witnessed [the defendant] engage in a
        hand-to-hand narcotics transaction with the other
        individual. Thus, [the defendant] is factually incorrect to



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          claim that “[the officer] saw nothing more than two men
          greet each other with a handshake or a fistbump.”

             Further, viewing the totality of the circumstances
          surrounding the hand-to-hand transaction, we agree with
          the suppression court that “an objectively reasonable
          police officer would have reasonably suspected
          criminal activity was afoot.”         Indeed, during the
          suppression hearing, [the officer] testified that he was
          extremely familiar with the [area where the
          transaction occurred] and was extremely experienced
          in narcotics investigations. According to [the officer],
          his years of experience and training had taught him
          that the hand-to-hand transaction he witnessed was
          most likely a narcotics transaction. . . . [S]ee also
          [Commonwealth v. Holmes, 14 A.3d 89, 95 (Pa. 2011)]
          (“In assessing the totality of the circumstances, courts
          must afford due weight to the specific, reasonable
          inferences drawn from the facts in light of the officer’s
          experience”).     [The officer] also testified that the
          surrounding area was home to “nonstop” open-air
          narcotics sales. [See also] Illinois v. Wardlow, 528
          U.S. 119, 124, [ ] (2000) (holding “the fact that the stop
          occurred in a ‘high crime area’ [is] among the relevant
          contextual considerations in a Terry analysis”).

                                 *    *    *

             Given these “specific and articulable facts,” we agree
          that “an objectively reasonable police officer would have
          reasonably suspected” that [the defendant] had sold
          narcotics to the unidentified man. As such, we agree that
          the investigatory detention was properly supported by
          reasonable suspicion.

Id. at 380 (footnote and some citations and alterations omitted) (emphases

added).

          Probable cause exists where the facts and circumstances
          within the knowledge of the officer are based upon
          reasonably trustworthy information and are sufficient to
          warrant a man of reasonable caution in the belief that the
          suspect “has committed or is committing a crime.”


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         “In determining whether probable cause exists, we apply a
         totality of the circumstances test.”

Commonwealth v. Delvalle, 74 A.3d 1081, 1085 (Pa. Super. 2013)

(citations omitted) (emphasis added).

      Instantly, the trial court opined:

            Appellant’s first claim is that Appellate Counsel was
         ineffective for failing to challenge, on appeal, the pre-trial
         denial of his motion to suppress. Prior to trial Appellant
         sought to suppress evidence of drugs, money and a gun
         seized during the incident. A hearing on the motion was
         conducted on March 16, 2006 before the Honorable
         William Mazzolla. At the conclusion of the hearing Judge
         Mazzolla denied the motion.

                                  *     *      *

            Clearly, based upon [the] facts, [the court] properly
         denied the motion to suppress. After observing what he
         reasonably believed to be a drug transaction, the officer
         ha[d] reasonable suspicion to stop and detain Appellant.

            Additional facts of Appellant’s subsequent flight and his
         discarding a gun gave rise to probable cause to arrest
         Appellant, retrieve the gun and search Appellant incident
         to the arrest.

Trial Ct. Op. at 4-5. We agree no relief is due.

      Officer Glen Keenan testified at the suppression hearing that he had

been employed by the Philadelphia Police Department for almost nineteen

years as an officer in the 17th Police District.    N.T., 3/16/06, at 8.   His

present assignment was narcotics enforcement. Id. He had the plainclothes

assignment for twelve years. Id. at 9. On the day of the incident he was




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assigned a detail with Officer Charles Wells, Officer Greg Stevens, and

Officer Lewis Gregg in the location of 21st and Titan Streets. Id. at 9-10.

         [Commonwealth]: Did you go towards that location by
         accident, or was that intentional based upon earlier
         reports?

         A: We go by the 12-52 Bar most likely 10 to 12 times in
         the evening because it’s very heavy drug sales outside
         there, along with gambling and weapons. . . .

         Q: Generally speaking, is that bar located in what you
         would define as a high crime area?

         A: High drug and crime, yes.

         Q: And is that primarily why you were patrolling there in
         your plainclothes?

         A: That’s correct.

                                  *     *      *

         Q: What was [Appellant] doing as you observed him for
         the first time?

         A: He was standing on the corner right outside the bar
         talking to a male on a bicycle.

         Q: Could you generally describe the male on the bicycle?

         A: He was an older gentleman . . . .

            I didn’t get a really good look at him.

             My partner slowed the car up as we came down 21st
         Street because we always looked to the left. They sell
         drugs off the porch there, and right in front of the
         bar, which would be directly in front of me, they sell right
         in front of the bar.

            And also right to the─to the right of the bar in the little
         street we always slow down. . . . At which time I saw


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          [Appellant] receive money from a male on the bike.
          He reached into his pocket and pulled out a clear
          plastic baggie, handed the money [sic5] to that male.

             I told my partners, “Grab them guys,” at which
          time─Officer Stevens was driving─he stopped right at the
          corner.

             [Appellant] went westbound down Titan Street.

             The male on the bike went southbound on 21st Street─

          Q: . . . At the point where the two men left the area,
          [Appellant] on foot and the older gentleman on the
          bicycle─

          A: Right.

          Q: ─had you or any of your partners said anything to
          either or both of those two men?

          A: No. I didn’t hear anybody say anything.

             I didn’t have a chance (sic) say a word because by the
          time we got the car stopped, he ran in front of the car, he
          was running down the sidewalk on Titan Street.

             I saw him reach into his waistband, at which point
          he threw a gun, it hit a wall, it fell into an empty lot. I
          yelled, “Gun.” I heard Officer Gregg yelling, “I’m coming
          back; I’m coming back.”

             Officer Stevens and Officer Wells went straight down
          Titan Street. They passed [Appellant], which is something
          we normally do so we can box him in, at which time I
          stayed with the gun because it’s right across from the bar;
          I was afraid somebody was going to come from the bar
          and go over and get it.

            I saw [Appellant] trying to get into a door, and
          the people inside this house were pushing him back

5
    We presume the officer meant handed the baggie to the male.



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       out, at which time Officer Wells and Officer Stevens
       stopped him. I went and recovered the weapon.

          I went down, and I saw Officer Wells recover a clear
       plastic baggie from [Appellant], two green-tinted packets
       containing a large chunky off-white substance, and five
       smaller packs of crack cocaine.

       And then he also recovered $20.00 in U.S. currency.

       I cleared the weapon, and we took [Appellant] to 24th and
       Wolf for processing.

                              *     *      *

        Q: And as a result of your previous experience and
       training as a law enforcement officer, did you have
       reason to suspect that illegal activity was taking
       place in this transaction between the two men?

       A: From my belief from that area I believe there was a
       narcotics sale being made.

          As we stopped the vehicle they both fled. Then I-I
       believed more thoroughly that there was something going
       on. And then he threw the gun against the wall.

                              *     *      *

       Q: You said that two of your partners made the
       apprehension as [Appellant] was endeavoring to get into a
       house?

                              *     *      *

       A: It was-I was looking down the street. [Appellant] was
       banging on the door to try to get in.      People were-
       something stopped him from getting through the door, and
       my partners grabbed him.

                              *     *      *

       Q: At that point did you have the gun in your possession?



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         A: I was looking. I wanted to make sure he didn’t come
         back towards us and get by my partner, Officer Gregg. As
         soon as I saw them physically grab him, I went over the
         fence, got the gun, and came back out.

         Q: Was the gun loaded?

         A: Yes, it was.

         It was loaded with 11 live rounds; ten in the magazine,
         one in the chamber.

Id. at 10, 11-13, 14-15, 17, 18 (emphases added).

      Officer Keenan, referring to the property receipt, indicated there was

one clear plastic baggie containing ”two large green tinted plastic packets

and five clear plastic packets with red dots, all containing an off-white

chunky substance, alleged crack-cocaine.”    Id. at 21. The plastic bag was

consistent with the way narcotics are packaged for sale. Id. at 61. The trial

court denied the motion to suppress. Id. at 63.

      As in Clemens, in the case sub judice, the officer explained that based

upon his experience, he saw a drug transaction between Appellant and

another male.    He was experienced in narcotics investigations and was

familiar with the high crime area where the transaction took place.

Additionally, the officer saw Appellant discard a gun and flee. We agree with

the PCRA court that the officers had reasonable suspicion to suspect

Appellant had sold narcotics to the unidentified male.    See Clemens, 66

A.3d at 378-80. Based upon the totality of the circumstances in the instant

case, the officers had a sufficient basis upon which to believe that Appellant



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had committed a crime, and thus, there was probable cause to arrest him.

See Delvalle, 74 A.3d at 1085.      The record supports the findings of the

suppression court. See Lane, 81 A.3d at 977. Appellate counsel cannot be

deemed ineffective for failing to raise a meritless claim.    See Perry, 959

A.2d at 936.

      Lastly, Appellant contends appellate counsel was ineffective for failing

to raise the issue of the pretrial court’s denial of his motion to dismiss

pursuant to Pa.R.Crim.P. 600.    Appellant’s Brief at 52.    He avers that the

Commonwealth failed to exercise due diligence. Id. at 53. Appellant claims

the July 31, 2006 trial date was beyond the amended run date of June 26,

2006.6 Id.

      “The proper scope of review is limited to the evidence on the record of

the Rule [600] evidentiary hearing, and the findings of the [trial] court. An

appellate court must view the facts in the light most favorable to the

prevailing party.”   Commonwealth v. Ramos, 936 A.2d 1097, 1100 (Pa.

Super. 2007) (en banc) (punctuation omitted).

         Rule 600 of the Pennsylvania Rules of Criminal Procedure
         provides, in relevant part, as follows:

         (A) (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.


6
 We note that Appellant refers to the amended run date as June 26, 2007,
which we presume is a typographical error.



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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.

                              *    *       *

       (C) In determining the period for commencement of trial,
       there shall be excluded therefrom:

          (1) the period of time between the filing of the written
          complaint and the defendant’s arrest, provided that the
          defendant could not be apprehended because his or her
          whereabouts were unknown and could not be
          determined by due diligence;

          (2) any period of time for which the defendant
          expressly waives Rule 600;

          (3) such period of delay at any stage of the proceedings
          as results from:

               (a) the unavailability of the defendant or the
               defendant’s attorney;

               (b) any continuance granted at the request of
               the defendant or the defendant’s attorney.

                              *   *    *

       (G) For defendants on bail after the expiration of 365 days,
       at any time before trial, the defendant or the defendant’s
       attorney may apply to the court for an order dismissing the
       charges with prejudice on the ground that this rule has
       been violated. A copy of such motion shall be served upon
       the attorney for the Commonwealth, who shall also have
       the right to be heard thereon.

           If the court, upon hearing, shall determine that the
       Commonwealth exercised due diligence and that the
       circumstances occasioning the postponement were beyond
       the control of the Commonwealth, the motion to dismiss
       shall be denied and the case shall be listed for trial on a
       date certain. If, on any successive listing of the case, the


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          Commonwealth is not prepared to proceed to trial on the
          date fixed, the court shall determine whether the
          Commonwealth exercised due diligence in attempting to be
          prepared to proceed to trial.   If, at any time, it is
          determined that the Commonwealth did not exercise due
          diligence, the court shall dismiss the charges and
          discharge the defendant.

          Pa.R.Crim.P. 600[7]

              As the text of Rule 600(A) makes clear, the mechanical
          run date comes 365 days after the date the complaint is
          filed. We then calculate an adjusted run date pursuant to
          Rule 600(C). . . .

            Pursuant to Rule 600(A) and (C), we calculate the
          mechanical and adjusted run dates as follows:

              The 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. As discussed herein, 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.

Id. at 1101-02 (footnote and citations omitted) (emphases added).

        Instantly, the PCRA court opined:

             The instant criminal complaint was filed on May 25,
          2005. Trial should have commenced pursuant to Rule 600
          within 365 days: on or before May 25, 2006.            Trial
          commenced on August 1, 2006, sixty-eight (68) days after
          that mechanical run date. The record demonstrated that
          the case previously was called for trial on August 8, 2005,
          well before the 365 day deadline. Appellant’s counsel,
          however, was unavailable and requested a continuance.
          The case was continued until February 13, 2006. Pursuant

7
    We note that Rule 600 was rescinded in 2012 and new Rule 600 adopted.



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           to Pa.R.Crim.P. 600(c)(3)(b) this entire 189 day period,
           from August 8, 2005 until February 13, 2006 was
           excludable from the Rule 600 computation. Excluding that
           period of time from the Rule 600 computation
           demonstrated that Appellant was tried timely.

PCRA Ct. Op. at 5. We agree no relief is due.

         We   find   the    record   belies   Appellant’s    contention   that   the

Commonwealth did not act with due diligence. As the PCRA court opined,

the 189 day period resulting from counsel’s request for a continuance is

excludable from the Rule 600 computation; therefore, Appellant was timely

tried.    See Pa.R.Crim.P. 600(C)(3)(a)-(b).       Accordingly, we find the trial

court did not abuse its discretion in denying the motion to dismiss pursuant

to Rule 600. See Ramos, 936 A.2d at 1100. Because the underlying claim

has no merit, appellate counsel was not ineffective for failing to raise the

issue on direct appeal. See Perry, 959 A.2d at 936.

         We hold the PCRA court’s findings are supported by the record and

without legal error.       See Lane, 81 A.3d at 977.        We discern no abuse of

discretion in dismissing the PCRA petition without an evidentiary hearing.

See Wah, 42 A.3d at 338. Accordingly, we affirm the order dismissing the

PCRA petition.

         Order affirmed.




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J. S52007/14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/18/2014




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