J-A31044-17

                                   2017 Pa Super 374


    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    BERTIL HOLT                                :
                                               :   No. 85 EDA 2017
                       Appellant

                Appeal from the PCRA Order November 30, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0003371-2013


BEFORE:      PANELLA, J., OLSON, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.:                          FILED NOVEMBER 27, 2017


        Appellant Bertil Holt appeals from the Order entered in the Court of

Common Pleas of Philadelphia County on November 30, 2016, dismissing

without a hearing his first petition filed pursuant to the Post Conviction Relief

Act (PCRA).1 Appellant contends collective trial counsel had been ineffective

in failing to file a motion to dismiss pursuant to Pennsylvania Rule of Criminal

Procedure 600 (hereinafter “Rule 600”).2 We affirm.




____________________________________________


1 42 Pa.C.S.A. §§ 9541-9546.
2 See Pa.R.Crim.P. 600(A)(2)(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.”). See also Pa.R.Crim.P. 600(C)
(computation of time).

____________________________________
* Former Justice specially assigned to the Superior Court.
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        In a Criminal Information initially filed on December 28, 2012, and later

amended on March 20, 2013, Appellant, who was age seventy-two at the time,

was charged with one count each of Tampering with public records or

information, Sale or transfer of firearms, Unsworn Falsification to authorities,

and Persons not to possess, use, manufacture, control, sell or transfer

firearms.3    As the case proceeded, several mental health evaluations were

scheduled and performed, the trial court appointed Appellant three separate

attorneys due to various conflicts, and numerous new judges were assigned

to hear the matter. On June 8, 2015, the trial court ordered Appellant to

undergo a final mental health evaluation to determine his competency to stand

trial. On June 12, 2015, the Mental Health Unit determined Appellant was

capable of taking part in his legal proceedings, and the case was brought to

trial on July 14, 2015.

        On July 15, 2015, Appellant became belligerent with the trial court

when the court indicated it would not grant Appellant a continuance to enable

Appellant to obtain another attorney or to represent himself.                Appellant

proceeded to complain of serious chest pains and asked to be taken to the VA

Hospital.    N.T. Trial, 7/15/15, at 9.          An ambulance was called, and trial

resumed on July 20, 2015. At that time, Appellant was not present, and after

making calls to Jefferson Hospital and the VA, the trial court was informed


____________________________________________


3  18 Pa.C.S.A.       §§   4911(a)(1);         6111(G)(4);   4904(a)(1);   6105(c)(4),
respectively.

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Appellant had been released from Jefferson Hospital, and he never had visited

the VA hospital. N.T. Trial, 7/20/15, at 4. Trial proceeded in absentia, and

on July 20, 2015, a jury found Appellant guilty of the Sale or transfer of

firearms and Unsworn falsification to authorities charges and one count of

Criminal Attempt, 18 Pa.C.S.A. § 901(a). On that same date, the trial court

sentenced him to an aggregate term of two and one-half (2 ½) years to five

(5) years in prison to be followed by seven (7) years of probation. Appellant

did not file a post-sentence motion or a direct appeal.

      On August 16, 2016, Appellant filed a PCRA petition pro se. Counsel

was appointed and filed an amended petition on August 18, 2016, alleging

trial counsel had been ineffective for failing to ensure Appellant was mentally

competent to stand trial and for failing to file a motion for dismissal for lack

of a speedy trial under Rule 600. The PCRA court provided Appellant with

proper notice of its intent to dismiss the PCRA petition without a hearing

pursuant to Pa.R.Crim.P. 907, and on November 29, 2016, Appellant filed his

“Petition in Objection to Pa.R.Crim.Proc., Rule 907, 42 Pa.C.S.A.”

      In its Order entered on November 30, 2016, dismissing the petition, the

PCRA court stated that following its independent review of Petitioner’s pro se

PCRA petition, the counselled, Amended Petition, the Commonwealth’s Motion

to Dismiss and Appellant’s answer thereto, it found the petition lacked merit.

Appellant filed a timely notice of appeal on December 28, 2016.




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      The trial court did not order Appellant to file a concise statement of the

matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant

did not do so. On January 27, 2017, the trial court filed its Opinion pursuant

to Pa.R.A.P. 1925(a).

      In his brief, Appellant presents the following issue for our review:

            Did the [l]ower [c]ourt err in its November 30, 2016[,]
      Order which DISMISSDED Appellant’s PCRA Petition which alleged
      a violation of Appellant’s Pa.R.Crim.P. 600 Prompt Trial rights
      wherein the trial did not commence (July 14, 2015) until 925 days
      from the date the criminal complaint was filed (December 28,
      2012) so egregious that a constitutional right has been
      impaired[?]

Brief of Appellant at 4 (brackets and capitalization in original).

      Our standard of review of an order denying a PCRA petition is limited to

an examination whether the PCRA court's determination is supported by the

evidence of record and free of legal error.    We grant great deference to the

PCRA court’s findings, and we will not disturb those findings unless they are

unsupported by the certified record. Commonwealth v. Walters, 135 A.3d

589, 591 (Pa.Super. 2016).

      The PCRA court has discretion to dismiss a petition without a hearing

when the court is satisfied that there are no genuine issues concerning any

material fact, the petitioner is not entitled to post-conviction collateral relief,

and no legitimate purpose would be served by further proceedings.

Commonwealth v. Blakeney, 631 Pa. 1, 20, 108 A.3d 739, 750 (2014). To

obtain a reversal of a PCRA court's decision to dismiss a petition without a


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hearing, an appellant must show that he or she raised a genuine issue of fact

which, if resolved in his favor, would have entitled him to relief, or that the

court otherwise abused its discretion in denying a hearing. Id.

      Herein, Appellant challenges the effectiveness of his various trial counsel

for failure to file a Rule 600 motion prior to his trial. The law presumes counsel

has rendered effective assistance, and the burden of demonstrating

ineffectiveness rests with an appellant. Commonwealth v. Rivera, 10 A.3d

1276, 1279 (Pa.Super. 2010). To satisfy this burden, an appellant must plead

and prove by a preponderance of the evidence that: “(1) his underlying claim

is of arguable merit; (2) the particular course of conduct pursued by counsel

did not have some reasonable basis designed to effectuate his interests; and,

(3) but for counsel's ineffectiveness, there is a reasonable probability that the

outcome    of   the   challenged   proceeding    would    have   been    different.”

Commonwealth v. Fulton, 574 Pa. 282, 291, 830 A.2d 567, 572 (2003).

Failure to satisfy any prong of the test will result in rejection of the appellant's

ineffective assistance of counsel claim. Commonwealth v. Jones, 571 Pa.

112, 126, 811 A.2d 994, 1002 (2002).

      In addition, we review Appellant’s Rule 600 argument pursuant to the

following, well-settled principles:

            In evaluating Rule [600] issues, our standard of review of a
      trial court's decision is whether the trial court abused its
      discretion. Judicial discretion requires action in conformity with
      law, upon facts and circumstances judicially before the court, after
      hearing and due consideration. An abuse of discretion is not
      merely an error of judgment, but if in reaching a conclusion the

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     law is overridden or misapplied or the judgment exercised is
     manifestly unreasonable, or the result of partiality, prejudice,
     bias, or ill will, as shown by the evidence or the record, discretion
     is abused. . . .
              Additionally, when considering the trial court's ruling, 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. Armstrong, 74 A.3d
     228, 234–35 (Pa.Super. 2013) (quotation omitted).
               Rule 600 provides in pertinent part: “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.” Pa.R.Crim.P. 600(A)(2)(a). The Rule further states:
            (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.
     Pa.R.Crim.P. 600(C)(1).
              To summarize, the courts of this Commonwealth employ
     three steps ... in determining whether Rule 600 requires dismissal
     of charges against a defendant. First, Rule 600(A) provides the
     mechanical run date. Second, we determine whether any
     excludable time exists pursuant to Rule 600(C). We add the
     amount of excludable time, if any, to the mechanical run date to
     arrive at an adjusted run date.


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             If the trial takes place after the adjusted run date, we apply
     the due diligence analysis set forth in Rule 600( [D] ). As we have
     explained, Rule 600[ ] encompasses a wide variety of
     circumstances under which a period of delay was outside the
     control of the Commonwealth and not the result of the
     Commonwealth's lack of diligence. Any such period of delay
     results in an extension of the run date. Addition of any Rule 600[
     ] extensions to the adjusted run date produces the final Rule 600
     run date. If the Commonwealth does not bring the defendant to
     trial on or before the final run date, the trial court must dismiss
     the charges.
             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. Armstrong, 74 A.3d at 236 (quotation marks and
     quotations omitted). . . .
           Most significantly, both Rule [600] and the cases in
           which we have applied it proceed from the premise that
           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. Thus, we do not apply
           the Rule mechanically nor will we affirm its application
           where the trial court's construction of it fails to
           acknowledge the policies it serves. The Commonwealth's
           stewardship therefore must be judged by what was done
           ... rather than by what was not done.
     Commonwealth v. Selenski, 919 A.2d 229, 232 (Pa. Super.
     2007).

Commonwealth v. Wendel, 165 A.3d 952, 955–57, 60 (Pa.Super. 2017).

     Initially, we must first determine the mechanical run date under Rule

600. “As the text of Rule 600(A) makes clear, the mechanical run date comes

365 days after the date the complaint is filed.” Commonwealth v. Ramos,

936 A.2d 1097, 1101 (Pa.Super. 2007) (en banc). Here, as the parties agree




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J-A31044-17


and the trial court found, the complaint was filed on December 28, 2012, and

the mechanical run date was December 28, 2013.

         In the argument portion of his appellate brief, which is unsupported by

any citation to relevant authority and fails to address the PCRA court’s

adjusted run date calculation, Appellant baldly maintains that in addition to

the 365 days, the Commonwealth had only 85 additional excusable days in

which to bring him to trial.        Brief for Appellant at 8.       In reaching this

conclusion, Appellant merely lists dates and numbers of days followed by

either     “Credit   to   Commonwealth     (number    of   days)”    or   “Credit   to

Commonwealth 0.”          The latter designation follows all listed time periods

followed by “New Judge” or time associated with the appointment of new

counsel, as well as other general periods of time. Id. at 7-8. The crux of

Appellant’s argument is as follows:

                Total credit to the Commonwealth against the 365 days for
         trial to begin under Rule 600 is only 85 days. The total period of
         time from December 28, 2012 to July 14, 2015 is 925 days. Under
         Rule 600 the Commonwealth had 450 days to bring the case to
         trial which included 365 in addition to the 85 excusable days of
         delay exceeded this allowable period of time under Rule 600 by
         475 days. During that period of 925 days the case went to 5
         different judges:
                Hayden, Niefeld, Patrick, Lane and Brinkley. Three court
         appointed attorneys were involved in this case for which the
         Commonwealth has received credit. Two instances of mental
         health evaluations were also excused for which the
         Commonwealth has received credit. Mr. Holt at the time of the
         events was 72 years old. He was not successful in obtaining a gun.
         His actions resulted in no one being injured. Clearly in the overall
         scheme of things in the Philadelphia Criminal Justice System this
         case was probably not viewed as a high priority matter. The
         purpose of Rule 600 is to eliminate the protracted uncertainty of

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J-A31044-17


      criminal litigation. Accommodations have been made by the
      precedent case law for excusable delay. However an excess of 475
      days is inexcusable and an abuse of the privilege. Two and a half
      years to prosecute this case equates to having no Rule 600 at all
      and violates the mandate and is imperative for speedy trials. After
      450 days a Motion should have been filed by court appointed
      counsel to dismiss the case for failure to commence a trial within
      the parameters of Rule 600. Failure to do so equates to a clear
      manifestation of intent to violate the mandate of Rule 600. The
      charges against [Appellant] should be dismissed with prejudice as
      the prosecution has failed to bring the case to trial within the
      permissible limits of Rule 600.

Brief of Appellant at 8-9.

      In light of the foregoing, we could deem this issue waived for Appellant’s

failure to properly develop it.    See Pa.R.A.P. 2119(a) (mandating that an

appellant develop an argument with citation to and discussion of relevant legal

authority); Commonwealth v. Wise, 2017 WL 4079782, at *5 (Pa.Super.

Sept. 15, 2017) (finding waiver where the appellant provided only a vague,

undeveloped argument in support of her claim and did not cite to the record

or relevant and controlling case law); see also Commonwealth v. Knox, 50

A.3d 732, 748 (Pa.Super. 2012) (“[T]he argument portion of an appellate brief

must be developed with a pertinent discussion of the point which includes

citations to the relevant authority”). Notwithstanding, absent the waiver, we

find Appellant’s claim is meritless.

      The   PCRA    court    concisely   addressed   Appellant’s   ineffectiveness

challenge regarding counsels’ failure to file a Rule 600 Motion in its Rule

1925(a) Opinion, and properly determined that because Appellant’s right to a

speedy trial under Rule 600 had not been violated, trial counsel could not have

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J-A31044-17


been ineffective for failing to file a Rule 600 Motion. Trial Court Opinion, filed

1/27/17, at 8-10.       In addressing and rejecting Appellant’s claim of

ineffectiveness for failure to file a Rule 600 motion, the PCRA court explained:

      In the case at bar, the criminal complaint was filed against
      [Appellant] on December 28, 2012. Thus, [Appellant’s]
      mechanical run date was December 28, 2013. However, there
      were several excludable and excusable delays which extended the
      adjusted run date to well beyond [Appellant’s] trial. On January
      7, 2013, 10 days after the complaint was filed, the Honorable
      Charles Hayden appointed Patrick Link, Esquire, as counsel and
      ordered that [Appellant] receive a mental health evaluation
      forthwith to determine his competency to stand trial. On February
      6, 2013, 30 days later, the Honorable Marsha Neifield found that
      [Appellant] was competent to stand trial and listed the case for a
      preliminary hearing on March 12, 2013. The time between this
      hearing and the preliminary hearing, a period of 34 days, was
      ruled excludable.
      On March 12, 2013, the charges were held for court and
      [Appellant] was formally arraigned on April 3, 2013. Thus,
      between the filing of the criminal complaint on December 28, 2012
      and [Appellant’s] formal arraignment on April 3, 2012, there was
      a total of 74 days attributable to excludable or excusable delay.
             On May 1, 2013, Mr. Link withdrew from the case due to a
      conflict and Todd Fiore, Esquire, was appointed as counsel. On
      that same day, the case was continued to May 22, 2013, a period
      of 21 days, and the time was ruled excludable. On May 22, 2013,
      [Appellant] rejected the Commonwealth's offer and requested a
      jury trial. The case was then continued for a pre-trial conference
      on June 6, 2013. On June 6, 2013, the case was listed for a jury
      trial before the Honorable Paula Patrick on May 8, 2014. There is
      no indication or allegation that the Commonwealth requested this
      length of time to schedule the trial. On May 5, 2014, 333 days
      after the case was listed for a jury trial, Mr. Fiore was removed as
      counsel following a breakdown in the attorney-client relationship
      and the court ordered that new counsel be appointed. On June 4,
      2014, 30 days later, David Belmont, Esquire, was confirmed as
      [Appellant’s] new counsel and the case was listed for trial before
      the Honorable Timika Lane on February 12, 2015. On January 13,
      2015, 224 days after the case was listed for trial, Courtroom
      Administration reassigned the case to the Honorable Carolyn
      Nichols and continued the case to April 8, 2015, a period of 84

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J-A31044-17


      days. Thus, between the withdrawal of Mr. Link and the
      reassignment of the case to Judge Nichols, there was a total of 51
      days that were excludable due to [Appellant’s] inability to obtain
      counsel. Furthermore, there was a period of 641 days that were
      excusable due to the heavy caseload of the court system.
      Moreover, the court system exercised due diligence in attempting
      to bring the case to trial, as it reassigned the case multiple times
      once it became clear that the caseload of the assigned judge had
      become too heavy.
             On April 8, 2015, Judge Nichols continued the case to June
      8, 2015, a period of 61 days, for the status of [Appellant’s] mental
      health. On June 8, 2015, Judge Nichols ordered a mental health
      evaluation forthwith to determine [Appellant’s] competency to
      stand trial. On June 12, 2015, the Mental Health Unit determined
      that [Appellant] was competent to stand trial. At the next court
      hearing on July 7, 2015, 29 days after the mental health
      evaluation was ordered for [Appellant], Judge Nichols listed the
      case for trial on July 8, 2015. On July 8, 2015, the case was
      relisted for trial on July 13, 2015. On July 13, 2015, the case was
      reassigned to this Court. On July 14, 2015, [Appellant’s] jury trial
      began. Thus, between the reassignment of [Appellant’s] case to
      Judge Nichols and the start of [Appellant’s] trial, there was a total
      of 90 days that were excludable due to the status of [Appellant’s]
      competency to stand trial. In total, there 856 days attributable to
      excusable or excludable delays caused by [Appellant’s] inability to
      obtain counsel, the court systems heavy caseload and
      concomitant reassignments of [Appellant’s] case, and the status
      of [Appellant’s] competency to stand trial. When added to
      [Appellant’s] mechanical run date of December 28, 2013, this
      number yields an adjusted run date of May 2, 2016. Therefore,
      [Appellant’s] trial began well within the period of the his [sic]
      adjusted run date and trial counsel could not have been ineffective
      for failing to file a Rule 600 motion.

Trial Court Opinion, filed 1/27/17, at 8-10.

      Our Supreme Court in Commonwealth v. Mills, ___ Pa. ____, 162

A.3d 323 (2017) differentiated between the normal progression of a criminal

case and judicial delay for purposes of Rule 600. Therein, the Commonwealth

had requested a continuance of a previously set trial date because it would


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J-A31044-17


have been unable to proceed to trial on that date for several reasons. The trial

court continued trial for 174 days to the earliest possible date. In its analysis,

the Mills Court said, “[T]ime attributable to the normal progression of a case

simply is not ‘delay’ for purposes of Rule 600.” Id. at ___, 162 A.3d at 325.

The Court also noted that “where a trial-ready prosecutor must wait several

months due to a court calendar, the time should be treated as ‘delay’ for which

the Commonwealth is not accountable.” Id. Ultimately, the Supreme Court

held the 174–day continuance was delay attributable to the Commonwealth

as Commonwealth was unprepared for trial. Id.

      Unlike in Mills, the Commonwealth herein did not request a continuance

of a previously set trial date, and its trial readiness was not at issue. Based

on Appellant's request for a jury trial, on June 6, 2013, the trial court

scheduled Appellant's trial for the earliest possible date of May 8, 2014,

although it was later continued for the aforementioned reasons until July of

2015. The conflicts with counsel and changes in judicial assignment caused

the court to reschedule Appellant’s trial as it did. Therefore, because there is

no indication in the record that the Commonwealth requested this length of

time in which to bring Appellant to trial, and the delay occurred despite its due

diligence, these days are excusable for purposes of Rule 600. Id. see also,

Commonwealth v. Hunt, 858 A.2d 1234, 1244 (Pa.Super. 2004) (en banc)

(finding the record demonstrated the Commonwealth had put forth reasonable

efforts to bring the defendant to trial within the limits set by Rule 600 and


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most of the circumstances occasioning the postponement were beyond the

control of the Commonwealth).

      Upon our independent review, we conclude the PCRA court's findings

are supported by the record and we find no error in its determination that

Appellant’s ineffectiveness claim lacks merit. As the record reflects, Appellant

has failed to meet his initial burden of pleading and proving his underlying

Rule 600 has arguable merit. Having failed to meet that initial burden,

Appellant cannot succeed in a claim of ineffectiveness of counsel for their

failure to file a Rule 600 motion to dismiss his case.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/27/2017




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