J-S29035-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    VERNON HARRISON                            :
                                               :
                       Appellant               :   No. 2217 EDA 2019

               Appeal from the PCRA Order Entered July 23, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0008028-2015


BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                             Filed: July 23, 2020

        Vernon Harrison (Harrison) appeals pro se1 from the order of the Court

of Common Pleas of Philadelphia County (PCRA court) denying his first petition

filed pursuant the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541-9546.

Harrison alleges that plea counsel rendered ineffective assistance by inducing

him to enter a guilty plea without adequately informing him of the possibility

of success on appeal of his Rule 600 claim. After careful review, we affirm.




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*   Retired Senior Judge assigned to the Superior Court.

1 The PCRA court determined that Harrison had knowingly, intelligently, and
voluntarily waived his right to counsel and elected to proceed pro se following
a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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                                               I.

         We glean the relevant facts and procedural history from the certified

record.     Harrison was charged on January 21, 2015, with 33 offenses,

including robbery, conspiracy, violations of the uniform firearms act and

burglary.2 Harrison was charged and tried throughout the proceedings with

one co-defendant, Damien Frazier (Frazier).         After multiple continuances

requested by both the Commonwealth and the defense, Harrison proceeded

to a preliminary hearing on August 7, 2015, and the charges were held for

court.     The case then proceeded through formal arraignment, pre-trial

conference and multiple status conferences, and the case was scheduled for

the earliest possible jury trial date of March 28, 2016. Following a motion for

continuance by Frazier, the trial was then rescheduled until May 9, 2016. On

that date, as the Commonwealth was awaiting DNA testing results, the trial

was again rescheduled to January 17, 2017.            At status conferences in

November and December of 2016 and January of 2017, the DNA testing

results were still incomplete.

         On January 17, 2017, Harrison filed a motion to dismiss pursuant to

Rule 600. He argued that the bulk of the delay in bringing him to trial was

caused by the Commonwealth’s failure to exercise due diligence to obtain DNA

results and provide discovery to the defense. The trial was continued again


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218   Pa.C.S. §§ 3701(a)(1)(ii), 903, 6105(a)(1) & 3502(a)(1).


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until August 7, 2017.    The trial court scheduled status conferences in the

interim to address the motion to dismiss and the outstanding DNA testing

results.   After hearing arguments on the motion to dismiss in February of

2017, on May 5, 2017, the trial court denied the motion after issuing findings

of fact on the record.

      Citing the then newly-decided Commonwealth v. Mills, 162 A.3d 323

(Pa. 2017), on August 5, 2017, Harrison filed a second motion to dismiss

pursuant to Rule 600. He again alleged that the Commonwealth had not acted

with due diligence to provide necessary discovery to the defense, and that the

Commonwealth had failed to secure key witnesses for his scheduled trial. At

the August 7, 2017 trial date, the trial court continued the matter two days to

consider the motion to dismiss. Harrison and the Commonwealth then jointly

requested a continuance, as the Commonwealth needed to contact a witness

and Harrison needed time for further investigation of additional discovery

materials. The trial was rescheduled for October 30, 2017.

      The trial court never issued a ruling on Harrison’s second motion to

dismiss pursuant to Rule 600. Jury selection began as scheduled on October

30, 2017, but the next day, Harrison elected to plead guilty to robbery,

conspiracy, possession of a firearm prohibited and burglary for a negotiated




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sentence of 9 to 20 years’ imprisonment.3 The remaining charges were nolle

prossed. Harrison executed a guilty plea colloquy form and completed an oral

colloquy in front of the trial court before his plea was accepted and the

sentence was imposed.          He did not file a post-sentence motion or direct

appeal.

       On November 14, 2017, Harrison filed his first timely pro se PCRA

petition. The PCRA court appointed counsel and counsel filed a no-merit letter

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). Harrison then

sought to amend his PCRA petition pro se. Following a video conference and

colloquy, the PCRA court determined that Harrison had knowingly, intelligently

and voluntarily waived his right to counsel and allowed him to proceed pro se.

Harrison amended his petition and the Commonwealth filed a response. On

July 23, 2019, the PCRA court dismissed the petition.          Harrison timely

appealed, and he and the PCRA court have complied with Pa.R.A.P. 1925.

                                               II.

       Harrison argues on appeal that plea counsel was ineffective and his

guilty plea was unlawfully induced because counsel did not advise Harrison of

the likelihood of success if he appealed the denial of his Rule 600 claim. He


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3 Due to Harrison’s prior convictions, the Commonwealth would have sought
a mandatory minimum sentence of 25 years to life imprisonment if he were
convicted at trial.


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contends that his plea was not knowing, voluntary and intelligent because he

was not given the opportunity to weigh the benefit of pursuing his claim on

appeal against the risk of going to trial. He argues that following our Supreme

Court’s decision in Mills, supra, he had a meritorious claim under Rule 600

and would have sought relief on appeal but for his counsel’s advice to enter a

guilty plea.4

       “[T]o    succeed    on    an   ineffectiveness   claim,   a   petitioner   must

demonstrate that: the underlying claim is of arguable merit; counsel had no

reasonable basis for the act or omission in question; and he suffered prejudice

as a result[.]”    Commonwealth v. Laird, 119 A.3d 972, 978 (Pa. 2015)

(citations omitted). “[F]ailure to prove any of these prongs is sufficient to

warrant dismissal of the claim without discussion of the other two.”

Commonwealth v. Robinson, 877 A.2d 433, 439 (Pa. 2005) (citation

omitted). Counsel cannot be ineffective for failing to pursue a meritless claim.

Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012). If the

petitioner establishes that counsel failed to pursue a meritorious Rule 600

claim, prejudice is established because success on the claim would have




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4 “Our review of a PCRA court’s decision is limited to examining whether the
PCRA court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Maddrey,
205 A.3d 323, 327 (Pa. Super. 2019) (citation omitted).


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entitled the petitioner to full discharge. Commonwealth v. Maddrey, 205

A.3d 323, 327-28 (Pa. Super. 2019).

      Under Rule 600, a case must be called to trial or a plea must be tendered

within 365 days from the date on which the criminal complaint was filed.

Pa.R.Crim.P. 600(A)(2)(a). If the defendant is not brought to trial within the

time required by the rule, he may file a written motion seeking dismissal of

all charges with prejudice. Pa.R.Crim.P. 600(D)(1). When computing the time

that has elapsed, “periods of delay caused by the defendant,” also known as

excludable time, are excluded from the calculation of time that has elapsed

from when the complaint was filed. Pa.R.Crim.P. 600(C)(2).

      Excusable time, or periods of Commonwealth delay during which the

Commonwealth exercised due diligence, is also not included in the calculation

of time that has elapsed since the complaint was filed. Commonwealth v.

Moore, 214 A.3d 244, 248-49 (Pa. Super. 2019); Pa.R.Crim.P. 600(C)(1).

The Commonwealth must show due diligence by a preponderance of the

evidence for the time to be excused from the Rule 600 calculation.

Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa. 2010).                “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.” Moore, supra (citation omitted).




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      Our Supreme Court held in Mills that time attributable to the natural

progression of a case through the court system (for example, the time

between the preliminary hearing and the formal arraignment or pre-trial

conference) is not excludable delay for the purposes of Rule 600.           Mills,

supra, at 325. When evaluating delay for Rule 600 purposes, trial courts

must exercise discretion to determine whether the period of delay is

attributable to the parties, the natural progression of the case, or the court’s

own calendar when the parties are prepared to proceed. Id. (stating that

“where a trial-ready prosecutor must wait several months due to a court

calendar, the time should be treated as ‘delay’ for which the Commonwealth

is not accountable”).

      Finally, we remain mindful of the dual purposes served by the rule:

      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.

Commonwealth v. Martz, ___ A.3d ___, at *5 (Pa. Super. April 28, 2020)

(citations omitted).

      We review the trial court’s decision on a motion to dismiss pursuant to

Rule 600 for an abuse of discretion. Moore, supra. “The proper scope of

review . . . is limited to the evidence on the record of the Rule 600 evidentiary


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hearing, and the findings of the trial court. An appellate court must view the

facts in the light most favorable to the prevailing party.” Id. at 248 (citation

omitted).

      Here, the charges were filed on January 21, 2015, and the mechanical

run date for Harrison to be brought to trial was January 21, 2016.

Pa.R.Crim.P. 600(A)(2). Harrison entered his guilty plea on October 31, 2017,

which was 1,014 days after the criminal complaint was filed.           Harrison

challenges two periods of delay during which he contends the Commonwealth

did not exercise due diligence:      the 253 days between May 9, 2016, and

January 17, 2017, and the 202 days between January 17, 2017, and August

7, 2017.

      In its opinion pursuant to Pa.R.A.P. 1925(a), the PCRA court addressed

these periods of delay as follows:

      On May 9, 2016, discovery relating to DNA results were still
      outstanding, so the Court rescheduled trial for January 17, 2017.
      Since the Commonwealth did not have any control over when
      the lab produced the DNA results, and in fact had been acting
      with due diligence in attempting to retrieve them, the 253 days
      between the two trial dates are excusable. On January 17, 2017,
      the DNA results were still outstanding and the Court was on trial,
      so the Court rescheduled trial for August 7, 2017. Since the Court
      was already on trial, and the DNA results were still outstanding,
      the delay was beyond the Commonwealth’s control and
      despite its due diligence. Therefore, the 202 days between the
      second and third trial dates were excusable.

PCRA Court Opinion, 12/13/19, at 8 (emphasis in original). Harrison contends

that the DNA testing was completed by the laboratory within the 53 days

between March 4, 2016, and April 26, 2016, and that the trial court abused

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its discretion by finding that the Commonwealth exercised due diligence with

regard to the DNA testing for the 455 days between May 9, 2016, and August

7, 2017. He argues that even if the discovery was provided on January 17,

2017, the Commonwealth did not exercise due diligence in securing the testing

results from the laboratory in that time period.

      Harrison’s contention that the DNA testing was complete by April 26,

2016, is belied by the record. Our review of the docket reveals several entries

from continuances after that date where the DNA testing is listed as

“outstanding” or additional status conferences were scheduled to address the

DNA testing.   See Docket Entries for 5/9/16, 11/2/16, 12/6/16, 1/17/17,

2/14/17. The docket entry for April 28, 2016, notes only that “partial DNA

discovery” was passed at that time and states that additional discovery

remained outstanding. See Order Granting Motion for Continuance, 4/28/16.

Moreover, in issuing its factual findings on the first motion to dismiss, the

court found that DNA results had been outstanding prior to January 17, 2017,

and stated: “As a footnote, I continued this matter a number of times here

to sort of monitor the situation. I do agree that something needs to be done

about shortening the time in terms of waiting for the DNA results, but the

bottom line is, it’s not like the Commonwealth had the results in their

possession.” N.T., 5/5/17, at 17-18. The court then noted it had continued

the trial to the “earliest possible date” of August 7, 2017. Id. at 18.




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       After holding numerous status conferences with the parties at which the

Commonwealth addressed the issue of the outstanding DNA results, the court

concluded that the Commonwealth had acted with due diligence in obtaining

the results but ultimately had no control over the laboratory’s handling of the

case. This court has previously held that a continuance due to outstanding

DNA test results was excusable time when the Commonwealth exercised due

diligence   in   attempting      to   obtain   the   results   from   the   laboratory.

Commonwealth v. Frye, 909 A.2d 853, 858-59 (Pa. Super. 2006).                      The

PCRA court here found that the Commonwealth had acted with due diligence

in obtaining the DNA testing results, and this finding is supported by the

record. Thus, it did not abuse its discretion in holding that the time from May

9, 2016, and January 17, 2017, was excusable delay.

       In addition, the continuance to August 7, 2017, was in part a result of

the court’s own calendar, as it was unable to proceed to trial on January 17,

2017.5    The August trial date was the earliest possible trial date and was

outside of the control of either Harrison or the Commonwealth. See Mills,

supra; Commonwealth v. Andrews, 213 A.3d 1004 (Pa. Super. 2019)

(time properly ruled excludable for Rule 600 purposes when defendant

requested additional DNA testing discovery from the Commonwealth and the

trial court’s “congested docket” caused further delay). As we find no abuse of


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5 It is not clear from the record when the DNA testing was ultimately
completed.

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discretion in the PCRA court’s conclusion that the Commonwealth pursued the

DNA results with due diligence and because the case was subsequently

scheduled for the earliest possible trial date, the time was properly excusable

for the Rule 600 calculation. Harrison’s Rule 600 claim has no merit.

      Because we conclude that Harrison’s underlying Rule 600 claim would

not have merited relief, he cannot establish that plea counsel was ineffective

by inducing him to plea without advising him that he had a meritorious Rule

600 claim. Maddrey, supra. Thus, the PCRA court did not err in dismissing

his petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/23/20




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