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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                 Appellee               :
                                        :
                   v.                   :
                                        :
MICHAEL ANGELO PICCARRETA,              :
                                        :
                 Appellant              :     No. 3398 EDA 2015

              Appeal from the PCRA Order November 5, 2015
           in the Court of Common Pleas of Montgomery County
            Criminal Division at No(s): CP-46-CR-0004746-2011

BEFORE:    FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:         FILED AUGUST 24, 2016

     Michael Angelo Piccarreta (Appellant) appeals from the November 5,

2015 order which denied his petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Counsel has filed a petition to

withdraw and a brief pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).1


1
  Counsel has confused the required procedures for withdrawing from
representation on direct appeal and withdrawing on a PCRA appeal. Direct
appeal counsel seeking to withdraw from representation must comply with
the requirements set forth in Anders and Santiago. The procedural
requirements set forth in Commonwealth v. Turner, 544 A.2d 297 (Pa.
1998), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998) (en
banc), govern withdrawal by counsel from representation on PCRA appeals.
See Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007).
However, an Anders brief which complies substantially with the
requirements of Turner/Finley is sufficient to allow withdrawal.
Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa. Super. 2008).



*Retired Senior Judge assigned to the Superior Court.
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Upon review, we affirm the order of the PCRA court and grant counsel’s

petition to withdraw.

      On June 13, 2011, Appellant and several co-defendants were charged

with numerous drug-related offenses arising out of their involvement in a

drug distribution ring. Appellant posted bail in this matter on June 15, 2011.

On April 9, 2013 Appellant filed a motion to dismiss his case pursuant to

Pa.R.Crim.P. 600(A)(3) alleging violation of his right to a prompt trial. 2    A

hearing was held on this motion on April 24, 2013, and the trial court denied

the motion at the conclusion of the hearing.

      On July 12, 2013, following a joint stipulated bench trial, the trial court

convicted Appellant of six counts of possession with intent to deliver (PWID)

and one count of criminal conspiracy. Appellant was sentenced to a term of

four to twelve years of incarceration.      Appellant timely filed a notice of

appeal to this Court arguing that the trial court erred in denying his Rule 600

motion.   Specifically, Appellant argued that the trial court erred: 1) by

calling its own witnesses at the Rule 600 hearing, 2) in finding the time

period between October 20, 2011 and July 20, 2012 excludable, and 3) by

denying the Rule 600 motion after he established 404 days of non-

excludable time.


2
   This rule provides that “[t]rial 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.” Pa.R.Crim.P. 600(A)(3). Effective July 1, 2013, a new version of Rule
600 was adopted; however, that does not affect our analysis herein.

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      On July 14, 2014, a panel of this Court affirmed Appellant’s judgment

of sentence. Commonwealth v. Piccarreta, 105 A.3d 790 (Pa. Super.

2014) (unpublished memorandum). In so doing, the panel concluded that

the trial court did not commit legal error in the way it conducted the Rule

600 hearing. The panel further concluded that Appellant waived his claims

regarding the calculation of excludable time by failing to include them in his

Pa.R.A.P. 1925(b) statement.3

      On June 26, 2015, Appellant timely filed pro se a PCRA petition.

Counsel was appointed and an amended petition was filed. In that petition,

Appellant argued that trial counsel was ineffective for failing to preserve his

appellate rights as to the two issues this Court held were waived for failure

to include them in the Pa.R.A.P. 1925(b) statement. On October 7, 2015,

the PCRA court issued a notice of its intent to dismiss the petition without a

hearing pursuant to Pa.R.Crim.P. 907.      Appellant did not respond, and on

November 5, 2015, the PCRA court dismissed the petition. Appellant timely

filed a notice of appeal, and both Appellant and the PCRA court complied

with Pa.R.A.P. 1925.




3
  The only other issue presented in Appellant’s Pa.R.A.P. 1925(b) statement
was that the “trial court erred as a matter of law … by finding that
[Appellant] waived his Rule 600 rights on various dates when there was no
record evidence of any such waiver.” Statement of Matters Complained of on
Appeal, 9/3/2013, at ¶ 2.

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      Before we may address the potential merit of Appellant’s claims, we

must determine if counsel has complied with the technical requirements of

Turner and Finley.

            … Turner/Finley counsel must review the case zealously.
      Turner/Finley counsel must then submit a “no-merit” letter to
      the trial court, or brief on appeal to this Court, detailing the
      nature and extent of counsel’s diligent review of the case, listing
      the issues which the petitioner wants to have reviewed,
      explaining why and how those issues lack merit, and requesting
      permission to withdraw.

            Counsel must also send to the petitioner: (1) a copy of
      the “no-merit” letter/brief; (2) a copy of counsel’s petition to
      withdraw; and (3) a statement advising petitioner of the right to
      proceed pro se or by new counsel.

            If counsel fails to satisfy the foregoing technical
      prerequisites of Turner/Finley, the court will not reach the
      merits of the underlying claims but, rather, will merely deny
      counsel’s request to withdraw. Upon doing so, the court will
      then take appropriate steps, such as directing counsel to file a
      proper Turner/Finley request or an advocate’s brief.

             However, where counsel submits a petition and no-merit
      letter that do satisfy the technical demands of Turner/Finley,
      the court—trial court or this Court—must then conduct its own
      review of the merits of the case. If the court agrees with
      counsel that the claims are without merit, the court will permit
      counsel to withdraw and deny relief. By contrast, if the claims
      appear to have merit, the court will deny counsel’s request and
      grant relief, or at least instruct counsel to file an advocate’s
      brief.

Wrecks, 931 A.2d at 721 (citations omitted).

      We are satisfied that counsel has complied with the technical

requirements of Turner and Finley.          Therefore, we will consider the

substantive issues contained in counsel’s brief.


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       “Our standard of review of a [] court order granting or denying relief

under the PCRA calls upon us to determine ‘whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.’”

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (quoting

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)).

      In his PCRA petition, Appellant raises a claim of ineffective assistance

of counsel.   “It is well-established that counsel is presumed effective, and

the   defendant     bears    the   burden     of     proving   ineffectiveness.”

Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). To overcome this

presumption, Appellant must show each of the following:               “(1) the

underlying substantive claim has arguable merit; (2) counsel whose

effectiveness is being challenged did not have a reasonable basis for his or

her actions or failure to act; and (3) the petitioner suffered prejudice as a

result of counsel’s deficient performance.”    Id.    Appellant’s claim will be

denied if he fails to meet any one of these three prongs. Id.

      In this case, Turner/Finley counsel concedes that appellate counsel

was deficient by failing to preserve Appellant’s Rule 600 claims in his

Pa.R.A.P. 1925(b) statement filed for the direct appeal. Appellant’s Brief at

15.   However, at this juncture, “[i]n order to determine whether there is

arguable merit to the claim of appellate counsel ineffectiveness, we examine

the substance of the underlying claim.” Commonwealth v. Williams, 980




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A.2d 510, 521 (Pa. 2009). Accordingly, we analyze the merits of Appellant’s

Rule 600 motion.

      “In evaluating Rule 600 issues, our standard of review of a trial court’s

decision is whether the trial court abused its discretion.” Commonwealth v.

Hunt, 858 A.2d 1234, 1238 (Pa. Super. 2004) (en banc). Furthermore,

      [t]he 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 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.

Id. at 1238-39 (internal citations and quotation marks omitted).

      In determining whether Rule 600 was violated, “[c]ase law [] provides

that a court must account for any ‘excludable time’ and ‘excusable delay.’

Excludable time is delay that is attributable to the defendant or his counsel.

Excusable delay is delay that occurs as a result of circumstances beyond the



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Commonwealth’s control and despite its due diligence.” Commonwealth v.

Goldman, 70 A.3d 874, 879 (Pa. Super. 2013) (citations omitted).4

        Instantly, the Commonwealth filed the criminal complaint on June 13,

2011, and the Rule 600 motion was filed on April 9, 2013, well outside of the

365 day timeframe.        Appellant’s concerns center around the time period

between October 20, 2011 and July 20, 2012.5              Specifically, Appellant



4
    In this regard, Pa.R.Crim.P. 600 provides, in relevant part, as follows.

        (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;

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

Commonwealth v. Ramos, 936 A.2d 1097, 1101 (Pa. Super. 2007).
5
  There is no dispute that the time period between June 13, 2011 and
October 20, 2011 is neither excludable time nor excusable delay. Moreover,
there does not appear to be a dispute as to how the time between July 20,
2012, and April 9, 2013, should be counted.

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suggests he was not represented by an attorney and did not consent to the

postponement of his case at any point during that period of time. See

Motion to Dismiss Pursuant to Rule 600(A)(3), 4/9/2013, at ¶ 6.

      At   the   Rule   600    hearing,   Christine   Sanchez,   Deputy   Court

Administrator, testified.6    She reviewed and produced the records kept by

Court Administration.    She testified that on October 20, 2011, defense

counsel, Vince Cirillo, Esquire, requested the pre-trial conference be

rescheduled by Court Administration.7           Sanchez testified that Court

Administration therefore rescheduled the pre-trial conference to November

10, 2011. N.T., 4/24/2013, at 11.         With respect to what happened on

November 10, 2011, Sanchez testified that there was no specific order for

Appellant’s case, but that notes from Court Administration indicate that

defense counsel requested a continuance of the pre-trial conference.8      Her




6
  We point out that the Rule 600 hearing was held on cases that applied to
both Appellant and a co-conspirator, Victoria Santino.     Moreover, both
individuals had numerous cases pending during this period, and there was
some confusion throughout the hearing about the various docket numbers.
7
  While the order shows that this was done “orally in open [c]ourt on the
record,” no transcript is included in the certified record. Order 10/20/2011.
In addition, the Commonwealth concedes that no transcripts are available
for this or any other continuance request that took place orally on the record
in this case. N.T., 4/24/2013, at 38-39.
8
  Sanchez testified that Court Administration wrote “Defense rescheduled,
P.T.C.” N.T., 4/24/2013, at 12.


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records also indicated that the trial court issued a bench warrant for

Appellant. Id. at 12.9

      The next docket entry does not appear until April 10, 2012, and shows

that Court Administration rescheduled the pre-trial conference for May 2,

2012.10 Defense counsel requested for it to be re-listed to May 3, 2012. On

May 3, 2012, defense counsel requested the case be continued and re-listed

within 60 days by Court Administration.      The case was re-listed again for

July 20, 2012.

      The PCRA court offered the following analysis as to why it concluded

that the time period between November 10, 2011, and April 10, 2012, is

excludable.

            As to the November 10, 2011 continuance request,
      maintaining the assumption that the transcript does not show
      [Appellant] or anyone on his behalf requested a continuance, the
      lack of a request by [Appellant] for a continuance in the
      transcript does not refute [Sanchez’s] testimony regarding the
      November 10, 2011 continuance, which she testified it was due
      to a defense reschedule. As noted, not everything that happens
      at a pre-trial conference is reflected in a transcript. So even if a



9
  By way of background, on October 11, 2011, the Commonwealth had filed
a motion to revoke Appellant’s bail as he had been arrested on July 19,
2011, and again on August 3, 2011, which violated the conditions of his bail.
On November 21, 2011, the Commonwealth’s motion to revoke bail was
granted, and Appellant’s bail was reset. He posted new bail on November
23, 2011.
10
   “Appellant’s counsel admitted in his Rule 600 motion that a pre-trial
conference was scheduled for April 11, 2012, but that appellant failed to
appear and a bench warrant was issued.” PCRA Court Opinion, 12/18/2015,
at 11 n. 3.

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      transcript is silent on the matter, [the trial court’s] credibility
      determination as to [] Sanchez would not be disturbed.

PCRA Court Opinion, 12/18/2015, at 13.

      The     PCRA   court’s   determination   is   supported   by   the   record.

Pa.R.Crim.P. 600(C)(3)(b) is clear that “any continuance granted at the

request of the defendant or the defendant’s attorney” is excludable.          The

PCRA court believed Sanchez’s testimony that defense counsel requested

continuances on October 20, 2011 and November 10, 2011, and we will not

disturb that credibility determination.11 See Commonwealth v. Burton,

121 A.3d 1063, 1067 (Pa. Super. 2015) (“The PCRA court’s credibility

determinations, when supported by the record, are binding on this

Court.”).12

      Thus, we agree with the PCRA court that Appellant has not established

that the underlying issue has merit, and therefore counsel could not have

been ineffective by failing to pursue these issues on appeal.          Moreover,

because we agree with Appellant’s counsel that the issue Appellant raised in




11
   The Honorable William R. Carpenter has presided over all relevant
hearings and motions in this case, as well as the PCRA petition at issue.
12
   Moreover, even assuming arguendo that the 152 days between November
10, 2011 (when counsel asked for the second continuance) and April 10,
2012 (when a bench warrant was issued for Appellant) is not excludable
time, the adjusted run date becomes April 15, 2013 (taking into account the
fact that there is no dispute as to how to account for the other time), which
made Appellant’s April 9, 2013 Rule 600 motion premature.

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his PCRA petition does not have merit, we grant his petition to withdraw and

affirm the order dismissing Appellant’s PCRA petition.

      Petition to withdraw granted. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 8/24/2016




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