J-S68022-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                  Appellee                 :
                                           :
            v.                             :
                                           :
RON LARKIN,                                :
                                           :
                  Appellant                :     No. 1487 EDA 2014

                 Appeal from the PCRA Order April 9, 2014,
                Court of Common Pleas, Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0016013-2010
                           CP-51-CR-0016014-2010

BEFORE: BENDER, P.J.E., DONOHUE and MUNDY, JJ.

MEMORANDUM BY DONOHUE, J.:                         FILED NOVEMBER 12, 2015

      Ron Larkin (“Larkin”) appeals pro se from the April 9, 2014 order

entered by the Philadelphia County Court of Common Pleas dismissing his

petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§

9541-9546 (“PCRA”). Upon review, we affirm.

      The facts of the case, as summarized by the Commonwealth during

Larkin’s guilty plea colloquy, are as follows:

               If the Commonwealth were to proceed on this
            matter, the Commonwealth would call Julius Irvin,
            who would testify that on August 1, 2010, at
            approximately 1:17 a.m., he was inside of his [a]unt
            Dorothy Flora’s residence at 4667 Leiper Street. … At
            that time, [Larkin] was also inside. … [Larkin] was
            arguing with [Flora]. … Shane Ferguson, who was
            the son of [Flora], was saying that [“Larkin] was
            starting his shit again.[”]
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             [] Irvin observed [Larkin] with a gun standing at
          the porch that connects to the bedroom of …
          Ferguson. [Flora] arrived on location and told her
          boyfriend[, Larkin,] to leave.

             [Larkin] wanted money before he left, and []
          Flora told [] Irvin where the money was to give to
          [Larkin]. Irvin then drove [Larkin] away from the
          area and dropped him off at [the corner of] Charles
          [Street] and Pratt [Street].

             Before exiting, [Larkin] gave the money to Irvin
          to give back to [] Flora. Irvin went back to Leiper
          Street and helped clean up the house with []
          Ferguson and [] Flora.

             [] Flora told Irvin that [Larkin] threatened to kill
          her and everyone in the house. [Flora] told [] Irvin
          that [Larkin] called and was coming back to get his
          money.

             Approximately two minutes later, Irvin was in the
          bathroom when he heard five [gunshots], a pause,
          then another five gunshots. He exited 4667 Leiper
          Street through the bathroom window. [] Irvin tried
          to contact both decedents by cell phone with
          negative results. He then went to the side door of
          the house and observed [] Ferguson on the first floor
          in a pool of blood. [] Irvin then called 911, and he
          positively identified [] Larkin as the [perpetrator].

             The police responded, 15th District, to the
          location, where they observed the dead bodies of
          Shane Ferguson, [age twenty-five], and Dorothy
          Flora [age fifty-four], inside of the property. Both
          victims were suffering from multiple gunshot wounds
          and were pronounced dead at the scene by Medic
          47-B at 1:25 a.m.

             On August 1, 2010, the Norristown Police
          Department    contacted    [Philadelphia] Homicide
          Division and stated that they had [] Larkin, who
          stated that the Philadelphia Police Department was



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             looking for him. He was picked up by Philadelphia
             Homicide Detectives, and he was transported back to
             Philadelphia, where he was read his constitutional
             warnings and gave an inculpatory statement
             admitting to shooting both Shane Ferguson and
             Dorothy Flora after a previous argument with []
             Flora, his girlfriend.

                Medical Examiner Chase Blanchard would testify
             that … [for both victims,] the cause of death was
             multiple gunshot wounds and the manner of death
             was homicide.

                Detective Steven Buckley would testify that he
             took a statement from [] Larkin on August 1, 2010,
             beginning at approximately 8:39 p.m. and ending at
             approximately 8:52 p.m., during which time [Larkin]
             did admit to the shooting death of Dorothy Flora and
             Shane Ferguson.

                 In addition, the Commonwealth would submit a
             certificate of non[-]licensure, which would show that
             a record check for [Larkin] on August 1, 2010 would
             show that he did not have a valid license to carry
             firearms issued under the provisions of Section 6109
             of the Crimes Code, nor did he have a valid
             sportsman’s firearms permit issued under the
             provision of Section 6106[(c)] of the Crimes Code.

N.T., 1/3/12, at 15-21.

       On January 3, 2012, Larkin entered a negotiated guilty plea to two

counts of first-degree murder and one count of carrying a firearm without a

license.1 In return for Larkin’s guilty plea, the Commonwealth nol prossed

charges of burglary, criminal trespass, carrying firearms on the public




1
    18 Pa.C.S.A. §§ 2502(a), 6106.


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streets in Philadelphia, and possessing an instrument of crime.2         The

Commonwealth further agreed not to seek the death penalty in connection

with Larkin’s murder convictions.    Following an extensive colloquy, during

which Larkin admitted the above facts as recited by the Commonwealth, the

trial court accepted his guilty plea. It sentenced him on the murder charges

pursuant to the plea agreement to life in prison without the possibility of

parole. It further sentenced him to a concurrent term of three and a half to

seven years of imprisonment for the firearms violation.

       Larkin did not file a direct appeal. On November 9, 2012, he filed a

timely pro se PCRA petition.        Therein, he raised claims of ineffective

assistance of counsel based upon plea counsel’s failure to: (1) file a motion

to dismiss the charges pursuant to Rule 600 of the Pennsylvania Rules of

Criminal Procedure; (2) provide Larkin with all discovery; (3) advise Larkin

of grounds upon which to suppress the statement he gave to police; (4)

investigate or advise Larkin of potential defenses, including self-defense,

voluntary intoxication and diminished capacity; and (5) object to what Larkin

believed was a defective guilty plea colloquy. PCRA Petition, 11/9/12, at 7.

The PCRA court appointed counsel, who, on February 22, 2014, filed a no-

merit letter and petition to withdraw pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550

A.2d 213 (Pa. Super. 1988).


2
    18 Pa.C.S.A. §§ 3502(a), 3503(a)(1)(i), 6108, 907(a).


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      On February 26, 2014, the PCRA court issued notice of its intent to

dismiss Larkin’s PCRA petition without a hearing pursuant to Rule 907 of the

Pennsylvania Rules of Criminal Procedure based upon its conclusion that the

issues raised in Larkin’s PCRA petition had no merit. On March 19, 2014,

Larkin filed a pro se request for an extension of time to file his response to

the PCRA court’s Rule 907 notice. On March 20, 2014, Larkin filed a pro se

request for the production of discovery material and the transcript of his

guilty plea and sentencing proceeding.

      On April 9, 2014, the trial court denied his request for production,

granted PCRA counsel’s petition to withdraw, and dismissed Larkin’s PCRA

petition. Larkin filed a timely pro se notice of appeal. He raises two issues

for our review:

            [1.] Whether the PCRA court erred as a matter of law
            and/or abused its discretion in denying and/or
            otherwise dismissing without a hearing [Larkin]’s
            claim that trial counsel was ineffective for failing to
            move for dismissal of the charges against [Larkin]
            based upon violation of Pa.R.Crim.P. 600?

            [2.] Whether the PCRA court erred as a matter of law
            and/or abused its discretion in denying and/or
            otherwise dismissing without a hearing [Larkin]’s
            claim that trial counsel was ineffective for failing to
            advise [Larkin] of grounds to suppress incriminating
            evidence, namely an inculpatory statement allegedly
            given to police by [Larkin]?

Larkin’s Brief at 4.

      We review a PCRA court’s decision according to the following standard:




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               In conducting review of a PCRA matter, we
            consider the record in the light most favorable to the
            prevailing party at the PCRA level. Our review is
            limited to the evidence of record and the factual
            findings of the PCRA court. This Court will afford
            great deference to the factual findings of the PCRA
            court and will not disturb those findings unless they
            have no support in the record. Thus, when a PCRA
            court’s ruling is free of legal error and is supported
            by record evidence, we will not disturb its decision.
            Of course, if the issue pertains to a question of law,
            our standard of review is de novo and our scope of
            review is plenary.

Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 2015) (internal

citations, quotation marks and italicization omitted).

      Both of the issues Larkin raises on appeal are claims of plea counsel’s

ineffectiveness. To prevail, Larkin had the burden of pleading and proving

before the PCRA court that (1) the claim is of arguable merit; (2) in

acting/failing to act, plea counsel had no reasonable basis designed to

protect the defendant’s interest; and (3) the defendant suffered prejudice by

counsel’s ineffectiveness – in other words, but for counsel’s act or omission,

there is a reasonable probability that the outcome of the proceeding would

have been different. Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa.

2014).

               It is clear that a criminal defendant’s right to
            effective counsel extends to the plea process, as well
            as    during    trial.  However,     [a]llegations    of
            ineffectiveness in connection with the entry of a
            guilty plea will serve as a basis for relief only if the
            ineffectiveness caused the defendant to enter an
            involuntary or unknowing plea. Where the defendant



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            enters his plea on the advice of counsel, the
            voluntariness of the plea depends on whether
            counsel’s advice was within the range of competence
            demanded of attorneys in criminal cases.

               The law does not require that the defendant be
            pleased with the outcome of his decision to enter a
            plea of guilty: All that is required is that his decision
            to plead guilty be knowingly, voluntarily, and
            intelligently made. Moreover, with regard to the
            prejudice prong, where an appellant has entered a
            guilty plea, the appellant must demonstrate it is
            reasonably probable that, but for counsel’s errors, he
            would not have pleaded guilty and would have gone
            to trial.

Commonwealth v. Timchak, 69 A.3d 765, 769-70 (Pa. Super. 2013)

(internal citations, quotation marks and formatting omitted).

      Larkin’s first issue challenges plea counsel’s failure to file a motion to

dismiss the charges pursuant to Pa.R.Crim.P. 600.        The PCRA court found

this issue to be meritless, because “[a]lthough [Larkin]’s case was called for

trial approximately 519 days after his arrest, only sixty-five days were

chargeable to the Commonwealth.”        PCRA Court Opinion, 5/27/14, at 7-8.

Larkin contends that the PCRA court’s conclusion is not supported by the

record, as the notes of testimony from the continued proceedings are not

contained in the certified record on appeal, which required the PCRA court to

hold an evidentiary hearing on this issue.     Larkin’s Brief at 13-14.   Larkin

further asserts that although it appears that many of the continuances in the

case were at defense counsel’s request, the continuances were predicated

upon the Commonwealth’s failure to provide defense counsel with discovery,



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rendering this time not excludable for Rule 600 purposes.        Id. at 16-17.

Because a successful motion pursuant to Rule 600 would result in the

dismissal of the charges, Larkin states that counsel could have had no

reasonable basis for failing to file the motion and that he necessarily was

prejudiced by counsel’s failings in this regard. Id. at 18-19.

      The version of Rule 600 that was in place at the time of Larkins’ plea

hearing stated,3 in relevant part:

            [(A)](3) Trial in a court case in which a written
            complaint is filed against the defendant, when the
            defendant is at liberty on bail, shall commence no
            later than 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 the defendant’s arrest,
               provided that the defendant could not be
               apprehended because his or her whereabouts
               were unknown and 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
                  defendant’s attorney;


3
   A new version of Rule 600 was adopted October 1, 2012, and became
effective on July 1, 2013.


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                  (b) any continuance granted at the request of
                  the defendant or the defendant’s attorney.

                                 *    *    *

            (G) For defendants on bail after the expiration of
            365 days, at any time before trial, the defendant or
            the defendant’s attorney may apply to the court for
            an order dismissing the charges with prejudice on
            the ground that this rule has been violated. A copy of
            such motion shall be served upon the attorney for
            the Commonwealth, who shall also have the right to
            be heard thereon.

            If the court, upon hearing, shall determine that the
            Commonwealth exercised due diligence and that the
            circumstances occasioning the postponement were
            beyond the control of the Commonwealth, the
            motion to dismiss shall be denied and the case shall
            be listed for trial on a date certain. If, on any
            successive listing of the case, the Commonwealth is
            not prepared to proceed to trial on the date fixed,
            the    court     shall   determine     whether     the
            Commonwealth exercised due diligence in attempting
            to be prepared to proceed to trial. If, at any time, it
            is determined that the Commonwealth did not
            exercise due diligence, the court shall dismiss the
            charges and discharge the defendant.

Pa.R.Crim.P. 600(A)(3), (C), (G) (rescinded October 1, 2012, effective July

1, 2013).

            [T]he courts of this Commonwealth employ three
            steps – corresponding to Rules 600(A), (C), and (G)
            – 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(G). As we have explained, Rule 600(G)
            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(G) 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.

Commonwealth v. Ramos, 936 A.2d 1097, 1103 (Pa. Super. 2007)

(internal citations and footnote omitted).

      Our review of the certified record reveals that, as stated by Larkin, it

does not contain transcripts from the continued proceedings. The criminal

docket, however, contains the text of the trial court’s orders granting the

continuance requests, including the basis for the continuance and whether or

not the time was ruled to be excludable under Rule 600. Thus, we disagree

with Larkin that remand is necessary to determine whether the time was

excludable for Rule 600 purposes.

      The Commonwealth filed the criminal complaint in this case on August

3, 2010, making the mechanical run date under Rule 600(A)(3) August 3,

2011. See Pa.R.Crim.P. 600(A)(3). On February 15, 2011, and again at the

rescheduled date    of March 16, 2011, counsel for Larkin requested

continuances to further investigate the matter. Criminal Docket at 5-6. The




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trial court rescheduled the trial for May 25, 2011 and in both instances ruled

the time excludable under Rule 600. Id.

      The defense requested a continuance on May 25, 2011 “for further

negotiations with the Commonwealth.” Id. The trial court rescheduled the

matter for June 28, 2011 and deemed the time excludable under Rule 600.

Id.

      On June 28, 2011, lead counsel for Larkin requested permission to

withdraw, which the trial court granted, appointed another attorney as lead

counsel and concomitantly granted the defense motion for a continuance to

permit further investigation.    Id. at 7.    The trial court rescheduled the

matter for July 27, 2011 and ruled the time excludable under Rule 600. Id.

      Both the July 27, 2011 and subsequently scheduled August 24, 2011

hearings were continued at defense counsel’s request to allow for “further

penalty phase investigation.” Id. The trial court rescheduled the matter for

September 22, 2011 and ruled the time excludable under Rule 600. Id.

      Prior to the next scheduled date, on September 20, 2011, counsel for

Larkin filed a motion for a continuance, indicating that counsel was ill. Id. at

8. The trial court granted the motion, rescheduled the matter for October

18, 2011, and deemed the time excludable under Rule 600. Id.

      Both the October 18, 2011 and subsequently scheduled November 15,

2011 dates were continued for the Commonwealth to determine whether it




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would seek to impose the death penalty. Id. In both instances, the time

was “ruled excludable by agreement.” Id.

     At the next scheduled date, December 15, 2011, defense counsel

requested a continuance to determine whether Larkin would accept the

Commonwealth’s offer and enter a guilty plea. Id. The trial court ruled the

time excludable and set the hearing date for January 3, 2012, which was the

date Larkin ultimately pled guilty, as described hereinabove. Id.

     The record reflects that of the 518 days that passed from the filing of

the complaint to the date of the guilty plea hearing, 322 days were

excludable under Rule 600, bringing the adjusted run date from August 3,

2011 to June 20, 2012. See Pa.R.Crim.P. 600(C)(3); Ramos, 936 A.2d at

1103. As Williams’ guilty plea hearing occurred on January 3, 2012, there

was no Rule 600 violation.    We therefore agree with the PCRA court that

Larkin’s claim that counsel was ineffective for failing to file a motion to

dismiss his charges pursuant to Rule 600 is meritless.

     In his second issue on appeal, Larkin asserts that plea counsel was

ineffective for failing to inform him that he could have filed a motion to

suppress his statement to police.    Larkin’s Brief at 19-21.    According to

Larkin, counsel was aware that at the time Larkin spoke to police, he “had

been in custody for a number of hours, was not advised of his rights as

required by Miranda v. Arizona, 384 U.S. 436 (1966), and was severely

sleep deprived.”   Larkin’s Brief at 19.     Larkin further states that he was



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“induced” to plead guilty because of the confession he gave to the police.

Id. at 19-20. The PCRA court found this argument to be meritless. PCRA

Court Opinion, 5/27/14, at 6.

      Our review of the record once again supports the PCRA court’s

decision.   There is nothing in the record to support a finding that Larkin’s

statement was not voluntarily given.     He never contended below – either

before the trial court or the PCRA court – that he was sleep deprived, had

been in custody for an excessive amount of time, or not provided his

Miranda warnings prior to giving his statement to the police.          To the

contrary, during his guilty plea colloquy, he admitted that prior to giving the

inculpatory statement to Philadelphia Homicide Detectives, “he was read his

constitutional warnings[.]” N.T., 1/3/12, at 17, 23. We reiterate that Larkin

had the burden to plead and prove the grounds for counsel’s ineffectiveness.

See Bomar, 104 A.3d at 1188. He failed to do so. As such, counsel cannot

be found to have rendered ineffective assistance on this basis.

      Order affirmed.

      Bender, P.J.E. joins the Memorandum.

      Mundy, J. concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/12/2015




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