J-S07028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 CLARENCE ROHADES                          :
                                           :
                    Appellant              :   No. 1708 EDA 2017

                 Appeal from the PCRA Order May 11, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0406261-2004
                                        CP-51-CR-0406311-2004
                                        CP-51-CR-0406331-2004


BEFORE: BENDER, P.J.E., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.                           FILED AUGUST 08, 2018

      Clarence Rohades appeals from the order dismissing his petition

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546, without a hearing. We vacate and remand for further proceedings.

      We assume the parties’ familiarity with the facts and procedural history

underlying this appeal. We provide the following brief recitation of the

pertinent factual and procedural background. On March 2, 2004, Appellant

was arrested and charged with offenses stemming from the robberies of

several different businesses in Philadelphia. Appellant’s cases did not proceed

to a jury trial until July 2008. Following trial, the jury convicted Appellant of

three counts of robbery, three counts of possessing instruments of crime and

one count of simple assault. Additionally, the trial court convicted Appellant of

three violations of the Uniform Firearms Act. The trial court sentenced
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Appellant to an aggregate term of 77½ to 155 years’ imprisonment. A panel

of this Court affirmed his judgment of sentence and our Supreme Court denied

his subsequent petition for allocatur.

      On November 17, 2011, Appellant filed a timely pro se PCRA petition.

The PCRA court appointed counsel who later filed an amended petition. The

PCRA court issued notice of its intent to dismiss Appellant’s petition without a

hearing, and ultimately dismissed the petition. This timely appeal follows.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). On questions of

law, our scope of review is de novo. See id.

      “The right to an evidentiary hearing on a post-conviction petition is not

absolute.” Commonwealth v. Walls, 993 A.2d 289, 295 (Pa. Super. 2010)

(citations and brackets omitted). A PCRA court may decline to hold a hearing

where it can determine, from the record, that there are no genuine issues of

material fact. See Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.

2008). “With respect to the PCRA court’s decision to deny a request for an

evidentiary hearing … such a decision is within the discretion of the PCRA court

and will not be overturned absent an abuse of discretion.” Commonwealth

v. Mason, 130 A.3d 601, 617 (Pa. 2015) (citation omitted).

      Appellant’s sole issue on appeal asserts the ineffective assistance of trial

counsel. We presume counsel provided effective assistance; Appellant has the

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burden of proving otherwise. See Commonwealth v. Pond, 846 A.2d 699,

708 (Pa. Super. 2004). “In order for [an a]ppellant to prevail on a claim of

ineffective assistance of counsel, he must show, by a preponderance of the

evidence, ineffective assistance of counsel which … so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place.” Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa.

Super. 2005) (citation omitted). Further,

      [an a]ppellant must plead and prove by a preponderance of the
      evidence that: (1) the underlying legal claim has arguable merit;
      (2) counsel had no reasonable basis for his action or inaction; and
      (3) [a]ppellant suffered prejudice because of counsel’s action or
      inaction.

Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011) (citations omitted).

      “Arguable merit exists when the factual statements are accurate and

could establish cause for relief. Whether the facts rise to the level of arguable

merit is a legal determination.” Commonwealth v. Barnett, 121 A.3d 534,

540 (Pa. Super. 2015) (citations and internal quotation marks omitted).

“Prejudice is established if there is a reasonable probability that, but for

counsel’s errors, the result of the proceedings would have been different. A

reasonable probability is probability sufficient to undermine confidence in the

outcome.” Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013)

(en banc) (citations and internal quotation marks omitted).

      Appellant claims trial counsel rendered ineffective assistance by failing

to raise a Rule 600 claim prior to trial. Because Appellant believes that this

motion would have resulted in dismissal of his charges, he contends that trial

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counsel could not have had a reasonable basis for failing to do so and that he

was prejudice by trial counsel’s failure.

       Rule 600 of our Rules of Criminal Procedure requires the Commonwealth

bring a defendant to trial within 365 days of the filing of the criminal complaint.

See Pa.R.Crim.P. 600(A)(2)(a). This time period is calculated after taking into

account both excludable time and excusable delay. See Commonwealth v.

Ramos, 936 A.2d 1097, 1103 (Pa. Super. 2007). Excludable time includes

delays attributable to a defendant or his counsel. See Commonwealth v.

Matis, 710 A.2d 12, 16 (Pa. 1998). Excusable time includes delays that occur

despite the due diligence of the Commonwealth and beyond its control. See

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

must be dismissed for failure to abide by Rule 600 only where the

Commonwealth fails to bring a defendant to trial within 365 days, calculated

after taking into account all excusable delays and excludable time. See id., at

880.

       Because a successful Rule 600 motion would have resulted in dismissal

of charges, prejudice in a PCRA context will be established upon a showing of

a meritorious claim. See Commonwealth v. Lynn, 815 A.2d 1053, 1056 (Pa.

Super. 2003). Therefore, in order to determine if trial counsel was indeed

ineffective, we must obviously assess if Appellant’s Rule 600 motion would

been successful.

       Here, based upon our review of the record, we are unable to determine

whether Appellant’s Rule 600 motion would have been meritorious. While the

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PCRA court concludes in its opinion that the Rule 600 motion is baseless, it

fails to undertake any analysis of which party occasioned the repeated delays

in this case. Our independent review of the docket also fails to illuminate this

issue. For instance, the docket indicates many of the delays, but without

reference to which party requested them. Therefore, we lack the necessary

information to determine if a Rule 600 motion would have been successful.

      As such, we are constrained to vacate the PCRA court’s order and

remand this case to the PCRA court to conduct an evidentiary hearing.

Specifically, we direct the PCRA court to review the docket entries in

conjunction with the evidentiary hearing to determine whether Appellant, the

Commonwealth, or the court occasioned the repeated delays. The PCRA court

shall then render the necessary findings of fact and conclusions of law with

respect to the merits of the underlying Rule 600 claim. The court shall then

reassess the validity of the PCRA petition.

      Order     vacated.   Case   remanded    with   instructions.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/8/18




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