J-S74030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                          Appellee

                    v.

CLIFFORD WAY

                          Appellant                      No. 239 EDA 2018


             Appeal from the PCRA Order December 18, 2017
           In the Court of Common Pleas of Philadelphia County
             Criminal Division at No: CP-51-CR-0708111-2006

BEFORE: LAZARUS, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY STABILE, J.:                        FILED FEBRUARY 28, 2019

     Appellant, Clifford Way, appeals from an order dismissing his petition

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We

vacate and remand for further proceedings.

     The PCRA court described the factual history of this case as follows:

     On the morning of June 2, 2006, [Appellant], Clifford Way, had a
     verbal confrontation with the victim, an ex-girlfriend, which
     devolved into a physical altercation. [Appellant] pulled the victim
     into his vehicle, where he used a knife to cut the victim’s neck and
     stab her in her left shoulder. Then he threatened to kill her. The
     victim managed to persuade [Appellant] to spare her life and take
     her to Temple University Hospital, where she informed the trauma
     room staff of her ordeal. Police arrested [Appellant] outside the
     hospital.

PCRA Court Opinion, 3/16/18, at 1.

     Appellant   was     charged     with   aggravated   assault   (18   Pa.C.S.A.

§2702(a)), kidnapping for ransom (18 Pa.C.S.A. § 2901(a)(1)), attempted
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murder (18 Pa.C.S.A. § 901(a)), possession of an instrument of crime (18

Pa.C.S.A. § 907(a)), terroristic threats (18 Pa.C.S.A. § 2706(a)(1)), unlawful

restraint causing serious bodily injury (18 Pa.C.S.A. § 2902(a)(1)), simple

assault (18 Pa.C.S.A. § 2701(a)), recklessly endangering another person

(“REAP”) (18 Pa.C.S.A. § 2705) and false imprisonment (18 Pa.C.S.A.

§ 2903(a)). On July 20, 2006, Appellant was held for court on all charges

following a preliminary hearing.

      On March 10, 2009, over two and half years after his arrest, and after

many continuances, Appellant waived his right to a jury trial and proceeded

to a bench trial.   The court found Appellant guilty of aggravated assault,

kidnapping, terroristic threats, simple assault, possession of an instrument of

crime, unlawful restraint, REAP and false imprisonment. On May 20, 2009,

the court sentenced Appellant to 10-20 years’ imprisonment for both

aggravated assault and kidnapping, to be served concurrently, followed by

consecutive terms of five years’ probation for possession of an instrument of

crime, terroristic threats and unlawful restraint.   The court did not impose

further punishment for simple assault, REAP or false imprisonment.

      No direct appeal followed. On January 21, 2010, Appellant filed a PCRA

petition alleging ineffective assistance of counsel for failure to file a direct

appeal.   On October 12, 2012, the court granted Appellant’s petition and

reinstated his appellate rights nunc pro tunc. Appellant filed a timely notice

of appeal.


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      On direct appeal, Appellant argued that the trial court erred in denying

his motion to dismiss under Pa.R.Crim.P. 600 and abused its discretion in

imposing the maximum sentence for aggravated assault and kidnapping. On

May 9, 2014, this Court affirmed his judgment of sentence at 3152 EDA 2012.

With regard to his Rule 600 motion, we reasoned:

      [Appellant] filed a pro se motion to dismiss pursuant to Rule 600.
      However, the motion is not contained in the certified record, and
      the court did not hold an evidentiary hearing with respect to the
      motion or rule upon it. Moreover, it appears that [Appellant] was
      represented by counsel at the time. Therefore, this document was
      a legal nullity . . . Furthermore, neither [Appellant] nor his counsel
      subsequently raised the Rule 600 motion with the trial court.
      Accordingly, [Appellant’s] claim based upon a Rule 600 violation
      is waived.

Commonwealth v. Way, 3152 EDA 2012, at 5 (Pa. Super., filed May 9,

2014) (unpublished memorandum). We also held that Appellant waived his

sentencing issue by failing to challenge the length of his sentence at his

sentencing hearing or in a post-sentence motion.           Id. at 6.    Appellant

subsequently filed a petition for allowance of appeal to the Supreme Court,

which denied his petition on October 23, 2014.

      On February 3, 2015, Appellant timely filed a PCRA petition. The court

appointed PCRA counsel, who filed an amended PCRA petition on April 25,

2016. On December 18, 2017, the PCRA court denied Appellant’s petition

without holding a hearing. Appellant filed a timely appeal, and both Appellant

and the PCRA court complied with Pa.R.A.P. 1925.




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      Appellant raises three issues on appeal: (1) trial counsel was ineffective

for failing to file a motion for dismissal under Pa.R.Crim.P. 600, (2) trial

counsel was ineffective for failing to file a post-sentence motion for

reconsideration of Appellant’s sentence, and (3) the trial court erred by failing

to hold an evidentiary hearing on Appellant’s PCRA petition.       We combine

issues (1) and (3) and hold that further factfinding is necessary on Appellant’s

Rule 600 claim.

      This Court’s standard of review regarding an order dismissing a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.      Commonwealth v.

Halley, 870 A.2d 795, 799 n.2 (Pa. 2005).        We will not disturb the PCRA

court’s findings unless there is no support for the findings in the certified

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

      To obtain PCRA relief for ineffective assistance of counsel, the petitioner

must establish (1) that the 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. Zook, 887 A.2d 1218, 1227 (Pa. 2005). The petitioner bears the burden

of proving all three prongs of this test. Commonwealth v. Meadows, 787

A.2d 312, 319–20 (Pa. 2001).       “Counsel is presumed to be effective and

Appellant has the burden of proving otherwise.”            Commonwealth v.


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Holloway, 739 A.2d 1039, 1044 (Pa. 1999). “A defendant’s failure to satisfy

even one of the three requirements results in the denial of relief.”

Commonwealth v. Miller, 987 A .2d 638, 649 (Pa. 2009).

        When the PCRA petition or the Commonwealth’s answer raises material

issues of fact, the PCRA court shall order a hearing. Pa.R.Crim.P. 908(A)(2).

The court should hold an evidentiary hearing when the petitioner sets forth

sufficient facts upon which the court can conclude that trial counsel may have

been ineffective.   Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa.

1981).

        Rule 600 was amended extensively in 2013, so we will apply the version

of Rule 600 in effect during pre-trial and trial proceedings in Appellant’s case.

It would be improper to examine trial counsel’s performance under standards

not yet in force. Commonwealth v. Smith, 675 A.2d 1221, 1233 (Pa. 1996)

(attorney will not be deemed ineffective for failing to predict change in the

law).

        Our Supreme Court observed that the pre-2013 version of Rule 600 “has

the dual purpose of both protecting a defendant's constitutional speedy trial

rights and protecting society’s right to effective prosecution of criminal cases.”

Commonwealth v. Bradford, 46 A.3d 693, 701 (Pa. 2012). To protect the

defendant’s speedy trial rights, Rule 600 requires dismissal of all charges if

the Commonwealth fails to bring him to trial within 365 days of the filing of

the complaint (the “mechanical run date”), subject to certain exclusions for


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delays attributable to the defendant, e.g., the unavailability of the defendant

or defense counsel. Pa.R.Crim.P. 600(A)(3), (G). However,

      even when the defendant has not been tried within the aforesaid
      365 days, and even when those days appear to be attributable to
      the Commonwealth, a Rule 600 motion shall nevertheless be
      denied if the Commonwealth proves that it acted with due
      diligence in attempting to try the defendant timely and that the
      circumstances occasioning the delay were beyond the
      Commonwealth's control . . . .

      Because the Commonwealth cannot control the calendar of a trial
      court, delay occasioned by the court's unavailability is usually
      excusable.    However, the Commonwealth may, under some
      circumstances (e.g. a prolonged judicial absence), have a duty to
      seek other courtrooms to try the case. The extent of this duty
      depends on the specifics of each case. The guiding principle is ...
      that the Commonwealth must exercise due diligence by putting
      forth a reasonable effort in light of the particular case facts.

      Along similar lines, delays caused by administrative decisions of
      the court, decisions over which the Commonwealth has no control,
      are generally excused.

Commonwealth v. Riley, 19 A.3d 1146, 1148–49 (Pa. Super. 2011).

      Here, the complaint against Appellant was filed on June 2, 2006, making

the mechanical run date June 2, 2007. The PCRA court wrote:

      959 days elapsed from the date the complaint was filed against
      [Appellant] on July 7, 2006 until the trial commenced on March
      11, 2009. [Appellant] admits that only 80 days of this delay are
      directly attributable to the Commonwealth, while 356 are
      attributable to the defense. Memorandum of Law, Amended
      PCRA, 4/25/2016, at 11. The remaining 523 days are attributable
      to this Court.      Thus, the question becomes whether the
      Commonwealth exercised due diligence in bringing the case to
      trial. [Appellant] argues that the Commonwealth did not exercise
      due diligence because it was required to request that the case be
      reassigned to a different judge when this Court's calendar caused
      a delay. This assertion is incorrect. Due diligence “includes,
      among other things, listing a case for trial prior to the run date,

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      preparedness for trial within the run date, and keeping adequate
      records to ensure compliance with Rule 600,” all of which the
      Commonwealth did in the instant case. [Commonwealth v.]
      Ramos, 936 A.2d [1096,] 1102 [(Pa. Super. 2007)].                 The
      Commonwealth is only required to seek reassignment to a
      different judge when extraordinary circumstances are present.
      [Riley], 19 A.3d at 1149 . . . [Appellant] does not allege or show
      any such extraordinary circumstances here. Instead, he implies
      that the Commonwealth is required to seek reassignment of a case
      every time the trial court is busy.         Such a rule would be
      impracticable, and undermine the very concept of “extraordinary
      circumstances.” The Commonwealth consistently requested the
      earliest possible trial date, and exercised due diligence in bringing
      this case to trial.

PCRA Court Opinion, 3/16/18, at 6.

      We recognize that this is a serious case, and that Appellant does not

dispute committing reprehensible acts of violence.           Even so, we are

constrained to conclude that further proceedings are necessary on Appellant’s

Rule 600 argument. The PCRA court summarily declared that 523 days of

judicial delay—almost 1½ years—did not violate Appellant’s speedy trial rights

because the trial court was “busy” and the Commonwealth “consistently

requested the earliest possible [trial] date.”   Id.   In its present state, the

record does not support this finding. Trial was continued over twenty times

without any explanation on the docket for the vast majority of these

continuances or any mention whether the Commonwealth requested the

earliest possible trial date or acted with due diligence. Thus, we are unable

to engage in a meaningful appellate review of Appellant’s PCRA claim. The

PCRA court’s Rule 1925(a) opinion here lacks the necessary findings of fact

with respect to the Rule 600 claim. Specifically, its Rule 1925(a) opinion does

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not address all relevant periods in analyzing the merits of Appellant’s Rule 600

claim. The docket here reveals a lot of docket activity, including continuances,

from the time the criminal complaint was filed until the time of trial. Given

the current posture of this case, on collateral review, we are constrained to

vacate the PCRA court’s order and remand this case to the PCRA court to

conduct an evidentiary hearing to render the necessary findings of fact with

respect to the merits, if any, of Appellant’s Rule 600 claim. In particular, we

direct the PCRA court to review thoroughly the docket in this case to resolve

all delays from the time of the filing of the complaint until the time of trial.

Specifically, the PCRA court shall determine whether the delay was occasioned

by Appellant, the Commonwealth, or the judiciary.

      Because we remand for further proceedings on the Rule 600 issue, we

need not address Appellant’s claim of ineffectiveness relating to the length of

his sentence.

      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/28/19




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