J-S29007-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ART DAWSON                                 :
                                               :
                       Appellant               :   No. 749 EDA 2019

             Appeal from the PCRA Order Entered February 7, 2019
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0007756-2012


BEFORE:      PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY PANELLA, P.J.:                              FILED JULY 17, 2020

        Appellant, Art Dawson, appeals from the order entered in the

Philadelphia County Court of Common Pleas on February 7, 2019, which

dismissed his petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546, without a hearing. We affirm.

        The facts underlying Dawson’s conviction are not germane to the

disposition of the instant appeal, however a brief summary of the facts and

procedural history follows in order to provide context to Dawson’s claims.

        On March 13, 2015, after a jury trial, Dawson was found guilty of

aggravated assault and simple assault related to an incident in which he

attacked the mother of his three-month-old son. He was sentenced to six to


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S29007-20


fifteen years’ incarceration. Dawson did not file a post sentence motion. He

did, however, file a direct appeal, challenging the sufficiency of the evidence

underlying his conviction for aggravated assault. This Court affirmed his

judgment of sentence.

      Dawson timely filed a pro se PCRA petition. Counsel was appointed, who

filed an amended PCRA petition, raising a single assertion of ineffectiveness

of trial counsel. Dawson faulted trial counsel for failing to file a motion to

dismiss pursuant to Pa.R.Crim.P. 600 (providing that when a defendant is not

brought to trial within a particular timeframe, he or she is entitled to have the

case dismissed with prejudice). The PCRA court issued notice of its intent to

dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907 and

subsequently dismissed the petition. This timely appeal followed.

      Dawson contends the PCRA court erred by dismissing his claim that his

trial counsel was ineffective for failing to file and argue a motion to dismiss

based on a violation of his speedy trial rights under Pa.R.Crim.P. 600. We

consider this issue mindful of the following.

      Our review of a PCRA court's decision is limited to examining
      whether the PCRA court's findings of fact are supported by the
      record, and whether its conclusions of law are free from legal
      error. We view the findings of the PCRA court and the evidence of
      record in a light most favorable to the prevailing party. With
      respect to the PCRA court's decision to deny a request for an
      evidentiary hearing, or to hold a limited evidentiary hearing, such
      a decision is within the discretion of the PCRA court and will not
      be overturned absent an abuse of discretion.




                                      -2-
J-S29007-20


Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (internal citations

and quotation marks omitted).

     As Dawson’s Rule 600 claim implicates the ineffective assistance of

counsel, we keep the following in mind.

     Counsel is presumed effective, and an appellant has the burden
     of proving otherwise. In order for Appellant 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.

     To prevail on his ineffectiveness claims, Appellant 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) Appellant suffered
     prejudice because of counsel's action or inaction.

Commonwealth v. Presley, 193 A.3d 436, 442 (Pa. Super. 2018) (internal

citations and quotation marks omitted).

     Pursuant to Rule 600, a criminal trial must “commence within 365 days

from the date on which the complaint is filed.” Pa.R.Crim.P. 600(A)(2)(a).

After 365 days have passed, a defendant “may file a written motion requesting

that the charges be dismissed with prejudice.” Id. at 600(D)(1).

     Rule 600 provides the following for computing the time within which a

trial must commence.

     [P]eriods 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).

                                    -3-
J-S29007-20


      As this Court has stated:

      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.

Commonwealth v. Hunt, 858 A.2d 1234, 1239 (Pa. Super. 2004) (en banc)

(citation omitted; brackets in original). Furthermore,

      Rule 600 “provides for dismissal of charges only in cases in which
      the defendant has not been brought to trial within the term of the
      adjusted run date, after subtracting all excludable and excusable
      time.” The adjusted run date is calculated by adding to the
      mechanical run date, i.e., the date 365 days from the complaint,
      both excludable time and excusable delay. “Excludable time” is
      classified as periods of delay caused by the defendant. “Excusable
      delay” occurs where the delay is caused by circumstances beyond
      the Commonwealth's control and despite its due diligence. “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.” Due
      diligence includes, inter alia, listing a case for trial prior to the run
      date, preparedness for trial within the run date, and keeping
      adequate records to ensure compliance with Rule 600. Periods of
      delay caused by the Commonwealth's failure to exercise due
      diligence must be included in the computation of time within which
      trial must commence.

Commonwealth v. Moore, 214 A.3d 244, 248-249 (Pa. Super. 2019)

(citations omitted).

      The Pennsylvania Supreme Court has noted that “time attributable to

the normal progression of a case simply is not ‘delay’ for purposes of Rule


                                        -4-
J-S29007-20


600.” Commonwealth v. Mills, 162 A.3d 323, 325 (Pa. 2017). The Mills

Court rejected a bright-line rule that “ordinary trial preparation” is “excludible

as a matter of course.” Id. at 325, n.1. Instead, the Mills Court emphasized

that “courts of original jurisdiction must apply judgment in distinguishing

between delay attributable to the court and that which should be allocated to

a party.” Id. at 325.

      Ordinarily, upon the proper and timely filing of a Rule 600 motion, it

would be the Commonwealth's burden to establish that due diligence was

exercised in bringing an appellant to trial. See Commonwealth v. Colon, 87

A.3d 352, 359 (Pa. Super. 2014). The procedural posture of this case,

however, is such that Dawson, upon collateral review, is attempting to

demonstrate trial counsel was ineffective for failing to pursue a Rule 600 claim.

Thus, Dawson bears both the burden of demonstrating that there was

arguable merit to his motion, and he was prejudiced by the failure of trial

counsel to pursue the motion. See Commonwealth v. Natividad, 938 A.2d

310, 322 (Pa. 2007).

      By June 30, 2014, when the Commonwealth requested a continuance

due to the unavailability of the assigned prosecutor, seven hundred and fifty

one days had passed since the Commonwealth had filed its complaint against

Dawson. However, much of this time is excusable or excludable. This includes

the time between the scheduling conference and the first trial date, time

attributable to a joint request for continuance for possible non-trial disposition,


                                       -5-
J-S29007-20


a defense continuance due to rejecting a pre-trial offer and requesting a jury

trial, a joint request for continuance to analyze DNA evidence, and time

attributable to a defense motion to introduce evidence of past sexual conduct

of the victim.

      Here, the record reflects that the Commonwealth filed its complaint

against Dawson on June 9, 2012. The mechanical run date, per Rule

600(A)(3), was June 9, 2013.

      First, we consider the 322-day period between August 28, 2012 and July

16, 2013. On August 28, 2012, a scheduling conference was held and the trial

court scheduled the case for trial on July 16, 2013. It is uncontested that this

was the earliest possible date on which the trial could be held. This period is

attributable to the trial court's full calendar and not to the Commonwealth's

lack of diligence. Therefore, the 322-day period between the scheduling

conference and the original trial date is excusable pursuant to Rule 600(G).

Addition of 322 days of excludable time results in an adjusted run date of April

27, 2014.

      On July 16, 2013, the date scheduled for trial, both parties requested a

continuance to attempt to negotiate a possible non-trial disposition. This Court

has previously held that a joint continuance is excludable delay. See Hunt,

858 A.2d at 1241. On July 19, 2013, Dawson rejected the Commonwealth’s

pre-trial offer and requested a jury trial. The court set the new trial date for

March 18, 2014. The 3-day delay between the court granting a continuance,


                                     -6-
J-S29007-20


and Dawson rejecting the offer is excludable as it was due to a joint request

for continuance. The 242-day period between July 19, 2013 and March 18,

2014 is also excludable as the defense requested a new trial be set, and the

court set the next possible date. Addition of 245 days brings the adjusted run

date to December 28, 2014.

      On March 18, 2014, after a trial readiness conference, there was another

joint request for a continuance to analyze DNA evidence. The continuance was

granted and trial was set for June 2, 2014. Again, joint requests for

continuance are excludable. See id.

      On May 23, 2014, Dawson filed a motion to introduce evidence of past

sexual conduct. On May 27, 2014, the Commonwealth filed a response. On

May 29, 2014, the court held a trial readiness conference and determined that

both sides were ready, but took the defense motion under advisement and

continued the trial until June 6, 2014. On June 6, 2014, the court granted the

Commonwealth a continuance to supplement its brief in opposition to

Dawson’s motion. The court set a new trial date of June 30, 2014.

      Delay caused by Dawson’s motion is generally excludable. However, the

Commonwealth must still exercise due diligence in responding to the motion.

See Pa.R.Crim.P. 600(C)(1); see also Commonwealth v. Wallace, 804

A.2d 675, 679 (Pa. Super. 2002) (addressing prior Rule 1100). Dawson has

failed to establish that the Commonwealth did not utilize due diligence in

responding to his motion. Absent some extreme circumstance, we cannot


                                      -7-
J-S29007-20


conclude that taking four days to file a brief opposing the defense motion

constituted a lack of due diligence. Nor can we conclude that the

Commonwealth was responsible for the time between the filing of its initial

brief and its request to supplement its brief; the court had taken the motion

under advisement and had not yet issued a ruling.

      Even if we were to assume the Commonwealth’s request to supplement

its brief is indicative of a lack of due diligence, this would only apply to the 24

days between June 6 and June 30, when the Commonwealth requested a

continuance due to the unavailability of the assigned prosecutor. This would

result in 80 days between March 18, 2014, and June 6, 2014, being

excludable. Addition of 80 days to the adjusted run date dictates that the final

run date in this matter could not have come earlier than March 18, 2015.

Since Dawson’s trial took place on March 13, 2015, a Rule 600 motion would

have been meritless.

      As a Rule 600 motion would have been meritless, we find Dawson’s

underlying claim is without merit since counsel cannot be deemed ineffective

for failing to pursue a meritless claim. See Commonwealth v. Loner, 836

A.2d 125, 132 (Pa. Super. 2003) (en banc).

      In light of the foregoing, our review of this matter demonstrates that

the record supports the PCRA court’s denial of relief and is free from legal

error and abuse of discretion.

      Order affirmed.


                                       -8-
J-S29007-20


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/20




                          -9-
