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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    v.                    :
                                          :
DANIEL GRAFT JACKSON,                     :         No. 2716 EDA 2018
                                          :
                         Appellant        :


             Appeal from the PCRA Order Entered August 24, 2018,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0006149-2015


BEFORE: BENDER, P.J.E., LAZARUS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED JULY 25, 2019

        Daniel Graft Jackson appeals, pro se, from the August 24, 2018 order

entered by the Court of Common Pleas of Philadelphia County dismissing his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. After careful review, we affirm.

        The PCRA court set forth the following procedural history:

              On December 18, 2014, [appellant] was arrested and
              charged with burglary and related offenses.     On
              August 17, 2016, [appellant] appeared before [the
              trial] court and elected to be tried by a jury. On
              August 18, 2016, the jury convicted [appellant] of
              burglary, criminal trespass, and theft by unlawful
              taking.[Footnote 1][1] On October 21, 2016, [the
              trial] court sentenced [appellant] to ten to twenty
              years[’] imprisonment for burglary and a concurrent
              sentence of two to four years for theft by unlawful


1   18 Pa.C.S.A. §§ 3502(a), 3503(a), and 3921(a), respectively.
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             taking.[Footnote 2]     [Appellant] did not file a
             post-sentence motion.

                   [Footnote 1] The jury found [appellant]
                   not guilty of simple assault.[2]   The
                   remaining receiving stolen property[3]
                   charge was nolle prossed.

                   [Footnote   2]    [Appellant’s] robbery
                   conviction constituted a second strike
                   carrying a mandatory ten to twenty year
                   minimum sentence. The criminal trespass
                   charge merged with burglary for the
                   purpose of sentencing.

             [Appellant] appealed an[d] on July 11, 2017, the
             Superior Court affirmed his judgment of sentence.[4]
             [Appellant] did not seek allowance of appeal with the
             Supreme Court of Pennsylvania.

             On March 8, 2018, [appellant] filed a timely pro se
             [PCRA] petition. On July 11, 2018, appointed PCRA
             counsel filed a no-merit letter pursuant to
             Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.
             1988) [(en banc)].       On July 18, 201[8], after
             independent review, [the PCRA] court agreed that the
             pro se petition was meritless and filed a notice of
             intent to dismiss pursuant to Pa.R.Crim.P. 907. On
             August 3, 2018, [appellant] mailed his timely
             response     to     [the   PCRA]      court’s   907
             notice.[Footnote 3]

                   [Footnote 3] In his response, [appellant]
                   claims that dismissal is improper because
                   each of his claims are meritorious, but
                   raises no new issues for review.


2   18 Pa.C.S.A. § 2701(a).

3   18 Pa.C.S.A. § 3925(a).

4Commonwealth v. Jackson, 175 A.3d 370 (Pa.Super. 2017) (unpublished
memorandum).


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PCRA court order and opinion, 8/24/18 at 1-2 (extraneous capitalization

omitted).

      The PCRA court dismissed appellant’s petition on August 24, 2018. On

September 14, 2018, appellant filed a timely notice of appeal to this court.

The PCRA court did not order appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b) and filed an opinion

pursuant to Pa.R.A.P. 1925(a) in which the PCRA court incorporated its opinion

filed on August 14, 2018.

      On December 5, 2018, we dismissed appellant’s appeal for failing to file

a brief with this court. Appellant filed an application to reinstate his appeal in

which he claimed that he did not receive this court’s order setting the briefing

schedule. We reinstated appellant’s appeal on December 28, 2018.

      Appellant raises the following issue for our review:

            Did the Honorable PCRA [c]ourt err when it dismissed
            the [a]ppellant’s PCRA petition, where the [a]ppellant
            did pled [sic] and prove that trial counsel was
            ineffective for failing to file a motion to dismiss all
            charges pursuant [to] Pa.R.Crim.P. 600?

Appellant’s brief at 3.

      PCRA petitions are subject to the following standard of review:

            “[A]s a general proposition, we review a denial of
            PCRA relief to determine whether the findings of the
            PCRA court are supported by the record and free of
            legal error.” Commonwealth v. Dennis, [] 17 A.3d
            297, 301 ([Pa.] 2011) (citation omitted). A PCRA
            court’s credibility findings are to be accorded great
            deference, and where supported by the record, such
            determinations are binding on a reviewing court. Id.,


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           at 305 (citations omitted). To obtain PCRA relief,
           appellant must plead and prove by a preponderance
           of the evidence: (1) his conviction or sentence
           resulted from one or more of the errors enumerated
           in 42 Pa.C.S.[A.] § 9546(a)(2); (2) his claims have
           not been previously litigated or waived, id.,
           § 9543(a)(3); and (3) “the failure to litigate the issue
           prior to or during trial . . . or on direct appeal could
           not have been the result of any rational, strategic or
           tactical decision by counsel[,]” id., § 9543(a)(4). An
           issue is previously litigated if “the highest appellate
           court in which [appellant] could have had review as a
           matter of right has ruled on the merits of this issue[.]”
           Id., § 9544(a)(2). “[A]n issue is waived if [appellant]
           could have raised it but failed to do so before trial, at
           trial, . . . on appeal or in a prior state postconviction
           proceeding.” Id., § 9544(b).

Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).

     Under the PCRA, an individual is eligible for post-conviction relief if the

conviction was the result of “ineffective assistance of counsel which, in the

circumstances of the particular case, so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). When considering whether counsel was

ineffective, we are governed by the following standard:

                 [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
                 dividing the performance element into two
                 distinct components. Commonwealth v.
                 Pierce, [] 527 A.2d 973, 975 (Pa. 1987).
                 Accordingly, to prove counsel ineffective,


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                  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 34, 45 (Pa.
            2012) (citations formatted).      Furthermore, “[i]n
            accord with these well-established criteria for review,
            [an appellant] must set forth and individually discuss
            substantively each prong of the Pierce test.”
            Commonwealth v. Fitzgerald, 979 A.2d 908, 910
            (Pa.Super. 2010).

Commonwealth v. Perzel, 116 A.3d 670, 671-672 (Pa.Super. 2015), order

vacated on other grounds, 166 A.3d 1213 (Pa. 2017).

      In his sole issue on appeal,5 appellant contends that the PCRA court

erred when it found that appellant’s trial counsel was not ineffective for failing

to seek a dismissal pursuant to Pa.R.Crim.P. 600. (Appellant’s brief at 9.)

Preliminarily, we note that the Pennsylvania Rules of Criminal Procedure

require a defendant to be brought to trial within 365 days from the date the

complaint is filed. Pa.R.Crim.P. 600(A)(2)(a).




5 In his summary of the argument, appellant also asserts that his trial counsel
rendered ineffective assistance for advising him not to testify in his own
defense. (Appellant’s brief at 6.) Appellant does not identify this issue in his
statement of questions presented, nor does he pursue this issue further in the
argument session of his brief. To the extent appellant raises this issue for
appellate review, we find this issue waived on appeal. See Pa.R.A.P. 2116(a)
(stating that “[n]o question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby.”).


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            In assessing a Rule 600 claim, the court must exclude
            from the time for commencement of trial any periods
            during which the defendant was unavailable, including
            any continuances the defendant requested and any
            periods for which he expressly waived his rights under
            Rule 600. Pa.R.Crim.P. 600(C). “A defendant has no
            duty to object when his trial is scheduled beyond the
            Rule [600] time period so long as he does not indicate
            that   he    approves    or    accepts   the   delay.”
            Commonwealth v. Taylor, 598 A.2d 1000, 1003
            (Pa.Super. 1991), appeal denied, 613 A.2d 559 (Pa.
            1992) (addressing Municipal Court’s counterpart to
            speedy trial rule).

Commonwealth v. Hunt, 858 A.2d 1234, 1241 (Pa.Super. 2004), appeal

denied, 875 A.2d 1073 (Pa. 2005).

      The comment to Rule 600 provides that “delay in the time of trial that

is attributable to the judiciary may be excluded from the computation of time.”

Pa.R.Crim.P. 600 cmt., citing Commonwealth v. Crowley, 466 A.2d 1009,

(Pa. 1983); see also Commonwealth v. Mills, 162 A.3d 323, 325 (Pa.

2017), citing Commonwealth v. Bradford, 46 A.3d 693, 705 (Pa. 2012)

(“periods of judicial delay are excludable from calculations under the rule”).

      Here, appellant was arrested on December 18, 2014, and the trial began

609 days later on August 18, 2016. As noted by the PCRA court,

            On January 6, 2015, the Commonwealth requested a
            continuance for further investigation and a
            preliminary hearing was scheduled for February 3,
            2015. Trial counsel was unavailable and the matter
            was continued to March 12, 2015. On that date, the
            Commonwealth requested that the preliminary
            hearing be continued to join the matter with
            [appellant’s] co-defendant. Seven days later, on
            March 19, 2015, the Honorable Marvin Louis Williams
            held a bifurcated preliminary hearing, and continued


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           the remainder of the matter to April 20, 2015. On
           that date, trial counsel was unavailable and the matter
           was continued until June 16, 2015. On that date, the
           preliminary hearing was completed and [the] matter
           was held for court. Of the 180 days that elapsed
           between [appellant’s] arrest and the matter being
           held for court, only twenty-eight days of delay, a
           continuance from January 6, 2015 [to] February 3,
           2015, can be attributed to the Commonwealth. All
           other periods of delay were excludable due to defense
           requests or extendable based on the [c]ourt’s
           schedule.

           At the first pretrial listing held on August 3, 2015,
           [appellant] requested a continuance to September 21,
           2015 for further investigation, a period of forty-four
           days that was ruled excludible. On September 21,
           2015, the Honorable Robert P. Coleman scheduled a
           waiver trial for December 10, 2015, an eighty-one day
           period of excusable delay. On [appellant’s] first trial
           date, the trial court was unavailable, and the matter
           was next listed for a scheduling conference four days
           later on December 14, 2015. On that date, the instant
           matter was joined with co-defendant Martindale’s
           case and scheduled for a jury trial on March 28, 2016,
           a [105-]day period of excusable delay. On March 28,
           2016, the co-defendant was unable to proceed. The
           Commonwealth refused to sever, and the matter was
           continued to August 15, 2016, a period of 141 days.
           . . . [J]ury selection commenced the next day.

PCRA court order and opinion, 8/24/18 at 5-6 (footnotes omitted).

     Based on our review of the record, it demonstrates that the

continuances from March 19, 2015 until April 20, 2015; September 21, 2015

until December 10, 2015; December 10, 2015 until December 14, 2015; and

December 14, 2015 until March 28, 2016, totaling 221 days, were attributed

to the trial court. As noted above, continuances and delays caused by the

trial court are excludable under Rule 600. Additionally, the record reflects


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that appellant requested three continuances totaling 143 days, which are

likewise excludable for Rule 600 purposes. After accounting for excludable

time under Rule 600 attributable to either the trial court or appellant, the

record reflects that appellant was brought to trial 245 days after his arrest.

Accordingly, we find that a Rule 600 claim would have been futile, and

appellant’s   claim   is   without   arguable   merit.   Therefore,   appellant’s

ineffectiveness claim fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 7/25/19




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