J-A02023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

TYRONE JOHNSTON

                        Appellant                   No. 3271 EDA 2013


            Appeal from the PCRA Order of November 25, 2013
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No.: CP-51-CR-1300475-2006


BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                           FILED MARCH 20, 2015

     Tyrone Johnston appeals from the order of November 25, 2013,

denying his petition pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A §§ 9541-46. We affirm.

     The underlying facts of this case are not in dispute. On February 7,

2006, Johnston shot and killed Jamel Conner on the 2800 block of

Kensington Avenue in North Philadelphia. Johnston shot Conner six times in

the head and chest at close range over a drug dispute. Subsequently, on

May 15, 2006, Johnston shot Stephanie Labance twice in the head at 2933

Ruth Street in North Philadelphia. Johnston also killed Labance over a drug

dispute, using the same gun with which he shot Conner. See PCRA Court

Opinion (“P.C.O.”), 4/28/2014, at 3-6 (record citations omitted).
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     In the Conner case, Johnston was arrested by warrant and charged on

June 22, 2006. Johnston subsequently was charged in the Labance case on

July 14, 2006. On July 13, 2007, the Labance and Conner cases were listed

together, and, after several continuances, a bench trial commenced on

February 17, 2009.

     On February 26, 2009, following a non-jury trial . . . , [Johnston]
     was found guilty of two counts of murder of the first degree (H-
     1), criminal conspiracy (F-1), and two counts of possessing
     instruments of crime (PIC) (M-1).1 Sentencing was deferred
     until March 4, 2009, on which date [the c]ourt sentenced
     [Johnston] to the mandatory term of life imprisonment2 for both
     counts of murder of the first degree.3 On March 12, 2009,
     [Johnston] filed post-sentence motions, which [the c]ourt denied
     on July 8, 2009.
        1
           In connection with the killing of Jamel Conner (Conner),
        CP-51-CR-0004489-2007, [Johnston] was convicted of
        murder of the first degree, criminal conspiracy, and PIC.
        In connection with the killing of Stephanie Labance
        (Labance), CP-51-CR-1300475-2006, [Johnston] was
        convicted of murder of the first degree and PIC.
        [Johnston] was represented by Steven Laver, Esquire on
        the Conner case, and by Bernard Siegel, Esquire, on the
        Labance case.
        2
            18 Pa.C.S.A. § 1102(a)(1).
        3
           As to the conviction for criminal conspiracy in
        connection with the Conner murder, [Johnston] was
        sentenced to a consecutive term of not less than 20 nor
        more than 40 years[’] imprisonment. As to the conviction
        for PIC in connection with the Conner murder, [Johnston]
        was sentenced to a consecutive term of not less than two-
        and-a-half years nor more than five years[’] imprisonment.
        As to the conviction for murder of the first degree in
        connection with the Labance murder, [Johnston] was
        sentenced to a consecutive term of life imprisonment. And
        finally, as to the conviction for PIC in connection with the
        Labance murder, [Johnston] was sentenced to a


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        consecutive term of not less than two-and-a-half nor more
        than five years[’] imprisonment.

     On July 20, 2009, [Johnston] filed a timely notice of appeal as to
     both cases.4 On December 9, 2009, [the trial c]ourt filed an
     opinion pursuant to Pa.R.A.P. 1925(a) . . . .5         Thereafter,
     [Johnston’s] counsel failed to comply with the briefing schedule
     as set forth by the Superior Court. On June 17, 2010, the
     Superior Court dismissed the appeal arising out of the Labance
     murder. On July 13, 2010, the Superior Court dismissed the
     appeal arising out of the Conner murder. [Johnston’s] counsel
     petitioned the Superior Court to reinstate both appeals. On July
     14, 2010, the Superior Court reinstated the appeal arising out of
     the Labance murder; on August 11, 2010, the Superior Court
     reinstated the appeal arising out of the Conner murder.
     [Johnston’s] counsel submitted briefs in connection with the
     Labance appeal, allowing that case to progress forward; on
     March 20, 2011, the Superior Court affirmed [Johnston’s]
     judgments of sentence on that case.         On April 11, 2011,
     [Johnston] petitioned our Supreme Court for allowance of
     appeal, which was denied on September 20, 2011.
        4
           The Superior Court docket number assigned to the case
        associated with the Conner murder was 2105 EDA 2009.
        The Superior Court docket number assigned to the case
        associated with the Labance murder was 2116 EDA 2009.
        5
           This [Pa.R.A.P.] 1925(a) Opinion addressed issues
        raised with respect to both the Conner and Labance
        appeals—2105 EDA 2009 and 2116 EDA 2009.

     Whereas the Labance appeal reached our Commonwealth’s
     appellate courts on its merits, the Conner appeal was again
     dismissed by the Superior Court on September 22, 2010 for
     counsel’s failure to file a brief.    On November 22, 2010,
     [Johnston] filed a pro se petition pursuant to the Post[
     ]Conviction Relief Act (PCRA)6 seeking reinstatement of his direct
     appeal rights on the Conner case. Due to an administrative
     error, the Clerk of Courts failed to appoint an attorney to
     represent [Johnston] on collateral attack for more than two
     years.7 On July 31, 2013, in response to an inquiry in that Court
     by [Johnston], our Supreme Court issued an order, directing [the
     PCRA c]ourt to resolve [Johnston’s] pending PCRA petition within
     90 days of the date of the order. On August 6, 2013, John P.
     Cotter, Esquire, having been appointed, entered his appearance


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       on [Johnston’s] behalf. On September 3, 2013, he filed an
       amended petition, to which the Commonwealth responded on
       September 27, 2013. In his amended petition, [Johnston] raised
       two issues: (1) [Johnston] requested reinstatement of [his]
       direct appeal rights on the Conner case, and (2) [Johnston]
       claimed that [his] trial counsel was ineffective for failing to
       litigate a speedy trial motion on the Labance case. On October
       4, 2013, without objection from the Commonwealth, [the PCRA
       c]ourt reinstated [Johnston’s] appellate rights on the Conner
       case nunc pro tunc. On November 25, 2013, [the PCRA c]ourt
       held an evidentiary hearing pursuant to Pa.R.Crim.P. 908 . . . to
       address [Johnston’s] claim that trial counsel was ineffective for
       failing to litigate a speedy trial motion on the Labance case. At
       the conclusion of the [Rule] 908 Hearing, [the PCRA c]ourt
       denied at dismissed [Johnston’s] petition.
          6
              42 Pa.C.S. §§ 9541-[]46.
          7
              Ordinarily, the Clerk of Courts receives PCRA petitions
          and alerts chambers when a new PCRA petition has been
          filed. In this situation, [the PCRA c]ourt first became
          aware that [Johnston] had filed his November 22, 2010
          petition upon receiving our Supreme Court’s July 31, 2013
          order.

Id. at 1-3 (record citations omitted).           On July 27, 2013, Johnston timely

appealed the denial of his PCRA petition as to his ineffective assistance of

counsel claim.1 On December 9, 2013, pursuant to the PCRA court’s order,

Johnston filed a statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). The PCRA court entered its Pa.R.A.P. 1925(a) opinion on

April 28, 2014.



____________________________________________


1
      Johnston filed a separate appeal nunc pro tunc from the judgment of
sentence in the Conner case, which we address at Docket No. 2929 EDA
2013.



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      In the instant appeal from the court’s denial in part of his PCRA

petition, Johnston raises one question for our review:           “Was trial defense

counsel ineffective in failing to file and litigate a pre-trial motion to dismiss

the charges with prejudice for lack of speedy trial?” Johnston’s Brief at 2.

      Specifically, Johnston argues that the PCRA court erred in failing to

grant relief where counsel failed to litigate a speedy trial claim, despite “524

days of unexcused delay in bringing the case to trial.”             Id. at 5.   We

disagree.

      Our standard of review on appeal from an order denying a PCRA

petition is whether the determination of the PCRA court is supported by the

evidence of record and is free of legal error.          See Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA court’s findings will not

be disturbed unless there is no support for them in the certified record. See

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

“Further, the PCRA court’s credibility determinations are binding on this

Court,   where   there    is   record   support   for    those     determinations.”

Commonwealth v. Timchak, 69 A.3d 765, 769 (Pa. Super. 2013) (citation

omitted).

      The governing legal standard of review of ineffective assistance of

counsel claims is well-settled:

      [C]ounsel 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. Strickland v. Washington, 466 U.S. 668 (1984). This
      Court has described the Strickland standard as tripartite by

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      dividing the performance element into two distinct components.
      Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).
      Accordingly, to prove [trial] counsel ineffective, the petitioner
      must demonstrate that: (1) the underlying legal issue has
      arguable merit; (2) counsel’s actions lacked an objective
      reasonable basis; and (3) the petitioner was prejudiced by
      counsel’s act or omission. Id. A claim of ineffectiveness will be
      denied if the petitioner’s evidence fails to satisfy any one of
      these prongs.

Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012) (citations

formatted).

      We review Johnston’s ineffectiveness claim by proceeding to the

arguable merit prong of his argument.      We consider Johnston’s underlying

Rule 600 claim according to the following 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 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.

      The proper scope of review is limited to the evidence on the
      record of the Rule [600] evidentiary hearing, and the findings of
      the [trial] court. An appellate court must view the facts in the
      light most favorable to the prevailing party.

      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


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      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. Ramos, 936 A.2d 1097, 1099 (Pa. Super. 2007)

(citation omitted).

      Rule 600 provides, in pertinent part:

      (A) Commencement of Trial; Time for Trial

                                *     *       *

            (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.

                                *     *       *


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           (3)(a) When a judge or issuing authority grants or denies a
     continuance:

                 (i) the issuing authority shall record the identity
           of the party requesting the continuance and the reasons
           for granting or denying the continuance; and

                  (ii) the judge shall record the identity of the party
           requesting the continuance and the reasons for granting
           or denying the continuance. The judge also shall record
           to which party the period of delay caused by the
           continuance shall be attributed, and whether the time
           will be included in or excluded from the computation of
           the time within which trial must commence in
           accordance with this rule.

            (b) The determination of the judge or issuing authority
        is subject to review as provided in paragraph (D)(3).

     (D) Remedies

           (1) When a defendant has not been brought to trial within
     the time periods set forth in paragraph (A), at any time before
     trial, the defendant’s attorney, or the defendant if
     unrepresented, may file a written motion requesting that the
     charges be dismissed with prejudice on the ground that this rule
     has been violated. A copy of the motion shall be served on the
     attorney for the Commonwealth concurrently with filing. The
     judge shall conduct a hearing on the motion.

           (2) Except in cases in which the defendant is not entitled
     to release on bail as provided by law, when a defendant is held
     in pretrial incarceration beyond the time set forth in paragraph
     (B), at any time before trial, the defendant’s attorney, or the
     defendant if unrepresented, may file a written motion requesting
     that the defendant be released immediately on nominal bail
     subject to any nonmonetary conditions of bail imposed by the
     court as permitted by law. A copy of the motion shall be served
     on the attorney for the Commonwealth concurrently with filing.
     The judge shall conduct a hearing on the motion.

          (3) Any requests for review of the determination in
     paragraph (C)(3) shall be raised in a motion or answer filed
     pursuant to paragraph (D)(1) or paragraph (D)(2).

Pa.R.Crim.P. 600(A), (C)-(D).

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     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.

     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.

Ramos, 936 A.2d at 1103 (footnote and citations omitted). “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.” Id. at 1102 (citation and emphasis omitted).

     Because Johnston’s trial included the joinder of two separate criminal

charges, there are two adjusted run dates to consider. First, the complaint

charging Johnston with Conner’s murder was filed on June 22, 2006,

resulting in a mechanical run date of June 22, 2007.       See Pa.R.Crim.P.

600(A); Ramos, 936 A.2d at 1103. Pursuant to the municipal docket in the

Conner case, on June 28, 2006, the court continued proceedings until July

12, 2006, for appointment of private counsel due to Johnston’s conflict with

the Public Defender, resulting in fourteen days’ excusable time. Thereafter,

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Johnston’s preliminary hearing was continued until October 3, 2006, with the

court ruling the time excusable from September 13, 2006, to October 3, or

twenty days. Therefore, the adjusted run date for the Conner case was July

26, 2007.

       In the Labance case, the municipal docket indicates that Johnston was

charged on July 14, 2006 for a mechanical run date of July 16, 2007.2 The

docket reflects one excusable delay, when proceedings were continued from

July 17, 2006 to August 7, 2006 for appointment of private counsel,

resulting in twenty-two days’ excusable time. Therefore, the adjusted run

date for the Labance case was August 7, 2007.

       Because trial, which commenced on February 17, 2009, took place

after both adjusted run dates, we proceed to the due diligence analysis set

forth in Rule 600(D). See Ramos, 936 A.2d at 1103.

       The two complaints were consolidated after a hearing on July 13,

2007, and initially listed for trial on August 6, 2007, which was the first

available trial date, resulting in twenty-one days excusable delay attributable

to the court. See Notes of Testimony (“N.T.”), 11/25/2013, at 25; see also

Commonwealth v. Jones, 886 A.2d 689, 701-02 (Pa. Super. 2005)

(holding that period between defendant’s arraignment and scheduled trial




____________________________________________


2
       July 14, 2007 fell on a Saturday.



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J-A02023-15



was excusable because the trial court determined the date assigned for trial

was the earliest possible trial date).

      Defense counsel requested a continuance and the next available trial

date was May 5, 2008, resulting in 273 days’ excludable delay attributable to

Johnston.    See N.T., 11/25/2013, at 34; see also Commonwealth v.

Aaron, 804 A.2d 39, 43 (Pa. Super. 2002) (en banc) (“Any delay caused by

the need to reschedule a trial because of a continuance attributable to the

defense constitutes excludable time, even if the defendant was prepared to

go to trial at an earlier date.”).

      On April 23, 2008, the court rescheduled trial due to the Honorable M.

Teresa Sarmina needing to undergo surgery and the case was continued

until November 10, 2008, resulting in 189 days’ excusable delay attributable

to the court. See N.T., 11/25/2013, at 35; see also Commonwealth v.

Preston, 904 A.2d 1, 14 (Pa. Super. 2006) (en banc), (“It is long-

established that judicial delay may serve as a basis for extending the period

of time within which the Commonwealth may commence trial[.]”). Due to

the unavailability of the defense mitigation specialist on that date, trial was

rescheduled for November 24, 2008, with evidence to begin on December 1,

2008, which caused 14 days’ excludable delay attributable to Johnston. See

N.T., 11/25/2013, at 35; see also Aaron, 804 A.2d at 43.

      However, due to a scheduling error, the court previously had a

different trial scheduled on that date, and continued Johnston’s trial to the

next available trial date, on February 17, 2009, resulting in eighty-five days’

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excusable delay attributable to the court. See N.T., 11/25/2013, at 51-52;

see also Jones, 886 A.2d at 701-02.          Ultimately, trial commenced on

February 17, 2009.

      After careful review, we conclude that Johnston is responsible for 287

days of excludable delay and the trial court is responsible for 295 days of

excusable delay, for a total of 582 days of delay not attributable to the

Commonwealth.     Therefore, the 573-day delay between the adjusted run

date of July 25, 2007 for the murder of Jamel Connel and the date on which

trial commenced, February 17, 2009, and the 561-day delay from the

adjusted run date of August 7, 2007 for the murder of Stephanie Labance is

excusable pursuant to Rule 600, and not a failure of due diligence on the

part of the Commonwealth. See Pa.R.Crim.P. 600(C)(1); Ramos, 936 A.2d

at 1103.

      There is no merit to Johnston’s underlying Rule 600 claim. Busanet,

54 A.3d at 45.    Therefore, trial counsel was not ineffective for failing to

litigate a claim that would not succeed. See Commonwealth v. Holloway,

739 A.2d 1039, 1044 (Pa. 1999) (holding that counsel cannot be considered

ineffective for failing to raise a claim that lacks merit).   Accordingly, the

record supports the PCRA court’s denial of Johnston’s ineffective assistance

of counsel motion on the basis of a failure to litigate a Rule 600 claim. See

Ragan, 923 A.2d at 1170. Johnston’s issue does not merit relief.

      Order affirmed.




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J-A02023-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/2015




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