J-S73021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

EDWARD FOWLER,

                          Appellant                  No. 539 WDA 2018


            Appeal from the PCRA Order Entered March 21, 2018
             In the Court of Common Pleas of Allegheny County
                         Criminal Division at No(s):
                          CP-02-CR-0012800-2015
                          CP-02-CR-0012801-2015
                          CP-02-CR-0012808-2015
                          CP-02-CR-0014452-2015

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED JANUARY 23, 2019

      Appellant, Edward Fowler, appeals from the post-conviction court’s

March 21, 2018 order denying his timely-filed petition under the Post

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

      Appellant was charged with various offenses in four separate cases,

which were consolidated prior to trial. Ultimately, he entered guilty pleas in

each case and was sentenced to an aggregate term of 2 to 10 years’

incarceration, followed by 5 years’ probation. He did not file a direct appeal.

      Appellant thereafter filed a timely PCRA petition and counsel was

appointed. Counsel filed an amended petition on Appellant’s behalf, alleging

that Appellant’s trial counsel acted ineffectively by not filing a Pa.R.Crim.P.
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600 motion to dismiss. The Commonwealth filed an answer to Appellant’s

petition. On February 27, 2018, the PCRA court issued a Pa.R.Crim.P. 907

notice of its intent to dismiss the petition without a hearing. Appellant did not

respond, and on March 21, 2018, the court issued an order dismissing his

petition.

      Appellant filed a timely notice of appeal, and he also timely complied

with the court’s order to file a Pa.R.A.P. 1925(b) statement. The court issued

a Rule 1925(a) opinion on July 5, 2018. Herein, Appellant raises one question

for our review:

      1. Did the [PCRA] court err in denying Appellant’s PCRA petition
         without an evidentiary hearing since trial counsel was
         ineffective for failing to move for dismissal after the
         Commonwealth violated the Rules of Criminal Procedure?

Appellant’s Brief at 3 (unnecessary capitalization omitted).

      First, “[t]his Court’s standard of review from the grant or denial of post-

conviction   relief   is   limited   to   examining   whether   the   lower   court’s

determination is supported by the evidence of record and whether it is free of

legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997)

(citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)).

Where, as here, a petitioner claims that he received ineffective assistance of

counsel, our Supreme Court has directed that the following standards apply:

      [A] PCRA petitioner will be granted relief only when he proves, by
      a preponderance of the evidence, that his conviction or sentence
      resulted from the “[i]neffective assistance of counsel which, in the
      circumstances of the particular case, so undermined the truth-
      determining process that no reliable adjudication of guilt or
      innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii).

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     “Counsel is presumed effective, and to rebut that presumption,
     the PCRA petitioner must demonstrate that counsel’s performance
     was deficient and that such deficiency prejudiced him.”
     [Commonwealth v.] Colavita, 606 Pa. [1,] 21, 993 A.2d [874,]
     886 [(Pa. 2010)] (citing Strickland[ v. Washington, 104 S.Ct.
     2053 (1984)]). In Pennsylvania, we have refined the Strickland
     performance and prejudice test into a three-part inquiry. See
     [Commonwealth v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa.
     1987)]. Thus, to prove counsel ineffective, the petitioner must
     show that: (1) his underlying claim is of arguable merit; (2)
     counsel had no reasonable basis for his action or inaction; and (3)
     the petitioner suffered actual prejudice as a result.
     Commonwealth v. Ali, 608 Pa. 71, 86, 10 A.3d 282, 291 (2010).
     “If a petitioner fails to prove any of these prongs, his claim fails.”
     Commonwealth v. Simpson, [620] Pa. [60, 73], 66 A.3d 253,
     260 (2013) (citation omitted). Generally, counsel’s assistance is
     deemed constitutionally effective if he chose a particular course of
     conduct that had some reasonable basis designed to effectuate his
     client’s interests. See Ali, supra. Where matters of strategy and
     tactics are concerned, “[a] finding that a chosen strategy lacked
     a reasonable basis is not warranted unless it can be concluded
     that an alternative not chosen offered a potential for success
     substantially greater than the course actually pursued.” Colavita,
     606 Pa. at 21, 993 A.2d at 887 (quotation and quotation marks
     omitted). To demonstrate prejudice, the petitioner must show
     that “there is a reasonable probability that, but for counsel’s
     unprofessional errors, the result of the proceedings would have
     been different.” Commonwealth v. King, 618 Pa. 405, 57 A.3d
     607, 613 (2012) (quotation, quotation marks, and citation
     omitted). “‘[A] reasonable probability is a probability that is
     sufficient to undermine confidence in the outcome of the
     proceeding.’” Ali, 608 Pa. at 86–87, 10 A.3d at 291 (quoting
     Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237, 244
     (2008) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052)).

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).

     Appellant contends that his trial counsel acted ineffectively by not filing

a motion to dismiss under Rule 600. That rule states, in pertinent part:

     (A) Commencement of Trial; Time for Trial




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        (1) 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.

        (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

        (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.

        (2) For purposes of paragraph (B), only periods of delay
        caused by the defendant shall be excluded from the
        computation of the length of time of any pretrial
        incarceration. Any other periods of delay shall be included
        in the computation.

Pa.R.Crim.P. 600.

     In regard to this rule, our Court has clarified that:

     To determine whether dismissal is required under Rule 600, a
     court must first calculate the “mechanical run date,” which is 365
     days after the complaint was filed. Commonwealth v. McNear,
     852 A.2d 401 (Pa. Super. 2004). Rule 600(C) addresses situations
     where time can be excluded from the computation of the deadline.
     Pa.R.Crim.P. 600(C). Case law also provides that a court must
     account for any “excludable time” and “excusable delay.”
     Excludable time is delay that is attributable to the defendant or
     his counsel. Commonwealth v. Matis, 551 Pa. 220, 710 A.2d
     12, 16 (1998). Excusable delay is delay that occurs as a result of
     circumstances beyond the Commonwealth’s control and despite
     its due diligence. Commonwealth v. Ramos, 936 A.2d 1097,
     1102 (Pa. Super. 2007).

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


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       Here, in arguing that Rule 600 was violated and, thus, his trial counsel

should have moved to dismiss the charges on that basis, Appellant initially

explains:

       The Sentencing Order specifically refers to OTN G722879-3 and
       G724032-1, or CP-02-CR-0012801-2015 (hereinafter “12801”)
       and CP-02-CR-0014452-2015 (hereinafter “14452”). The written
       criminal complaint at “12801” was filed on September 21[], 2015.
       Its 365-day limit ended September 21[], 2016. The written
       criminal complaint at “14452” was filed on October 6[], 2015. Its
       365-day limit ended October 6[], 2016. The final disposition took
       place on December 6[], 2016. As December 6th takes place after
       either September 21st or October 6th, the rule was violated, and
       the Commonwealth was estopped from proceeding.

Appellant’s Brief at 12.1 Appellant then goes on to claim that certain defense

continuances — which typically constitute excludable time — should be

attributed to the Commonwealth instead of the defense, thus demonstrating



____________________________________________


1 Notably, Appellant makes no mention of his cases docketed at CP-02-CR-
0012800-2015 and CP-02-CR-0012808-2015. He also did not specifically
address either of these two cases in his counseled, amended PCRA petition,
instead setting forth language identical to that quoted supra. See Amended
PCRA Petition, 1/19/18, at 12. The Commonwealth contends that Appellant
has therefore waived any Rule 600 issue pertaining to the two cases docketed
at    CP-02-CR-0012800-2015        and     CP-02-CR-0012808-2015.       See
Commonwealth’s Brief at 10. We agree. See Pa.R.Crim.P. 902(B) (“Each
ground relied upon in support of the relief requested shall be stated in the
petition. Failure to state such a ground in the petition shall preclude the
defendant from raising that ground in any proceeding for post-conviction
collateral relief.”); Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super.
2007) (“This Court will not act as counsel and will not develop arguments on
behalf of an appellant. Moreover, when defects in a brief impede our ability
to conduct meaningful appellate review, we may dismiss the appeal entirely
or find certain issues to be waived.”) (citations omitted).



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that Rule 600 was violated and his trial counsel should have moved to dismiss.

Id. at 12-18.

       We need not address Appellant’s specific arguments regarding the

excludable time, as the record demonstrates that there was no violation of the

mechanical run dates in cases 12801 and 14452.          Contrary to Appellant’s

argument, the “final disposition” in those cases for Rule 600 purposes did not

occur on December 6, 2016; instead, in both cases, Appellant pled guilty on

August 9, 2016, and was merely sentenced on December 6, 2016.2              See

Pa.R.A.P. 600(A)(1) (stating that the “trial shall be deemed to commence on

the date … the defendant tenders a plea of guilty”).    Consequently, because

Appellant pled guilty before the mechanical run dates in both of the cases that

he challenges herein, there was no violation of Rule 600. As “[c]ounsel will

not be deemed ineffective for failing to raise a meritless claim,” the PCRA court

did not err in denying Appellant’s petition.3 Commonwealth v. Spotz, 896

A.2d 1191, 1210 (Pa. 2006) (citation omitted).


____________________________________________


2 Appellant did plead guilty on December 6, 2016, in one of his four cases -
specifically, CP-02-CR-0012800-2015. Again, however, he fails to raise any
Rule 600 issue regarding that case; instead, his petition asserted - and he
reiterates herein - Rule 600 issues only in cases 12801 and 14452.

3While the PCRA court denied Appellant’s petition on different grounds, “this
Court may affirm the decision of the PCRA [c]ourt if it is correct on any basis.”
Commonwealth v. Hutchins, 760 A.2d 50, 54 (Pa. Super. 2000) (citing
Commonwealth v. Pursell, 749 A.2d 911, 917 (Pa. 2000); Commonwealth
v. Ahlborn, 683 A.2d 632, 641 n.14 (Pa. Super. 1996)).



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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/2019




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