J. S33014/14

NON-PRECEDENTIAL DECISION            SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                   v.                   :
                                        :
JONATHAN SANTIAGO,                      :         No. 1598 EDA 2013
                                        :
                        Appellant       :


                 Appeal from the PCRA Order, May 8, 2013,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0505311-2005


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STABILE, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED SEPTEMBER 19, 2014

      Appellant appeals from the denial of his petition filed pursuant to the



affirm.

      Appellant was arrested on April 27, 2005, following an incident on

Lycoming Street in Philadelphia in which appellant shot and killed a

compatriot while attempting to shoot another individual.     The trial court

accurately summarized the procedural history:

                 On April 27, 2005, defendant, Johnathan [sic]
           Santiago, was arrested and charged with murder,
           generally, possession of instruments of crime,
           carrying a firearm on a public street, and carrying a
           firearm without a license.      Defendant was tried
           before this Court, sitting without a jury, on June 21,
           2006, and convicted of murder of the third degree,
           possession of instruments of crime, carrying a
           firearm without a license, and carrying a firearm on a
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            public street.    Subsequent thereto, defendant
            received concurrent sentences of incarceration of ten
            to twenty years, two-and-a-half to five years,
            three-and-a-half to seven years, and no further
            punishment, respectively on the above four
            convictions.

                  Following   the   imposition   of   thesentence,
                                                         -sentence
            motion, which was never ruled upon. No appeal was
            filed. However, defendant filed a pro se petition
            under the Post-Conviction Relief Act, 42 Pa.C.S.
            § 9541 et seq. (PCRA), after which, defendant was
            granted the right to file a notice of appeal nunc pro
            tunc. Subsequently, defendant filed a notice of
            appeal as well as a requested 1925(b) statement.
            Said appeal was discontinued on November 10,
            2011.

                  On January 26, 2012, defendant filed a timely
            pro se PCRA petition. Counsel was appointed to
            represent defendant and on November 6, 2012,
            counsel filed a no-merit letter. Subsequent thereto,
            after defendant was sent a Pa.R.Crim.P. 907 notice,
            to which he filed a response, this Court dismissed

            permitted PCRA counsel to withdraw.         Defendant
            thereafter filed a timely notice of appeal as well as a
            requested 1925(b) statement.

Trial court opinion, 10/1/13 at 1-2.

      Appellant raises two issues on appeal:

            WHETHER THE PCRA COURT ERRED AS A MATTER
            OF LAW AND/OR ABUSED ITS DISCRETION IN
            DENYING  AND/OR   OTHERWISE   DISMISSING

            TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
            MOVE FOR DISMISSAL OF THE CHARGES AGAINST
            APPELLANT     BASED  UPON    VIOLATION    OF
            PA.R_CRIM.P. 600?




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             WHETHER THE PCRA COURT ERRED AS A MATTER
             OF LAW AND/OR ABUSED ITS DISCRETION IN
             DENYING     AND/OR    OTHERWISE   DISMISSING
             WITHOUT A H
             TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
             FILE A TIMELY POST-SENTENCE MOTION?



      Our standard of review for an order denying post-conviction relief is

                                                      rmination, and whether

                                                          Commonwealth v.

Franklin

will not be disturbed unless there is no support for the findings in the

certified record. Id.



of counsel, we also note that appellant is required to make the following

showing in order to succeed with such a claim: (1) that the underlying claim

is of arguable merit; (2) that counsel had no reasonable strategic basis for

his or her action or inaction; and (3) that, but for the errors and omissions

of counsel, there is a reasonable probability that the outcome of the

proceedings would have been different.       Commonwealth v. Rivera, 10

A.3d 1276, 1279 (Pa.Super. 2010). The failure to satisfy any prong of this

test will cause the entire claim to fail.   Commonwealth v. Daniels, 947

A.2d 795, 798 (Pa.Super. 2008).         Finally, counsel is presumed to be

effective,   and   appellant   has   the    burden   of   proving   otherwise.

Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super. 2003).


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erred in not conducting an evidentiary hearing.

            [T]he right to an evidentiary hearing on a
            post-conviction petition is   not   absolute.
            Commonwealth v. Jordan, 772 A.2d 1011, 1014

            discretion to decline to hold a hearing if the

            support either in the record or other evidence. Id.
            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. Hardcastle, 549 Pa. 450, 454,
            701 A.2d 541, 542-543 (1997).

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

Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa.Super. 2007),

appeal denied, 940 A.2d 365 (Pa. 2007).



counsel.   Where the issue concerns ineffective assistance of counsel, an

evi

to act was an oversight or some kind of tactical decision.     The other two

prongs of the test for ineffectiveness, underlying merit of the claim and

prejudice to the defendant, can usually be determined from the record.

Because an appellant must prove all three prongs, the failure to prove a

single prong results in a finding of no ineffectiveness. Thus, an evidentiary

hearing need not be held where it can be determined from the record that


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the underlying claim has no merit or that there has been no prejudice to

appellant. That is the situation here and we find no error in failing to hold

an additional evidentiary hearing.

      Appellant first asserts that counsel was ineffective in failing to file a

motion to dismiss charges pursuant to the speedy trial rule, Pa.R.Crim.P.,

Rule 600, 42 Pa.C.S.A. Rule 600 provides, in pertinent part:

            Rule 600. Prompt Trial

            (A)   Commencement of Trial; Time for Trial

                  (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)   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

                        that the defendant could not be
                        apprehended because his or her
                        whereabouts were unknown and


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                        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


                        (b)   any         continuance
                              granted at the request
                              of the defendant or the


Rule 600 (A) and (C), in pertinent part.

      Appellant was arrested on April 27, 2005, and was not brought to trial

until June 21, 2006, facially in violation of the mechanical Rule 600 run date

of April 27, 2006. An examination of the record, however, in particular the

quarter-panel continuance sheets used by the Philadelphia Court of Common

Pleas, reveals a number of defense requests for continuances. Specifically,

we note defense requested continuances from 7/5/05 to 7/27/05 (22 days),

7/29/05 to 8/30/05 (32 days), 9/13/05 to 9/28/05 (15 days), 9/28/05 to

10/27/05 (29 days), and 10/26/05 to 11/01/05 (5 days1).          Pursuant to

Rule 600(C)(3)(a), these continuances, totaling 103 days, must be excluded

from the elapsed time.    This results in an adjusted Rule 600 run date of


1
  October 26 and 27, 2005, were already counted under the preceding
continuance.


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August 8, 2006.    Thus, appellant was brought to trial within the Rule 600

period, and trial counsel had no reason for filing a Rule 600 motion. There is

no ineffectiveness on this basis.

      Appellant also claims that trial counsel was ineffective in failing to file

a timely post-sentence motion requesting reconsideration of his sentence.

We may quickly dispose of this argument on the basis that appellant cannot

satisfy the prejudice prong of the test for ineffectiveness:

            No relief is due on this claim because this Court
            would have summarily dismissed a motion for
            reconsideration of sentence had one been filed. The
            sentence imposed on defendant was the result of
            careful consideration of the facts of the case, the
            contents    of  the    pre-sentence   reports,  and

            Consequently, there was nothing either counsel or
            defendant could have said to convince this Court to
            impose a lesser sentence than the one imposed on
            him, which, it is noted was within the standard range
            of the applicable Sentencing Guidelines.

Trial court opinion, 10/1/13 at 8-9.



court would not have granted a motion to reconsider sentence. There is no

ineffectiveness here.

      Accordingly, having found no merit in any issue on appeal, we will

affirm the order below.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/19/2014




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