J-S17044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ROBERT L. HOWARD

                            Appellant                 No. 1951 WDA 2014


                Appeal from the PCRA Order November 24, 2014
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0008242-2006


BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                           FILED APRIL 08, 2015

        Appellant, Robert L. Howard, appeals from the order entered in the

Allegheny County Court of Common Pleas, denying his first petition brought

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        The relevant facts and procedural history of this appeal are as follows.

           Appellant was arrested in connection with two separate
           robberies which occurred in the North Hills suburbs of the
           city of Pittsburgh. At trial, the Commonwealth presented
           evidence through the testimony of both victims. The first
           victim to testify…could not be certain as to the identity of
           the perpetrator. Appellant made a motion for judgment of
           acquittal, and the trial court granted the motion.

           With regard to the remaining case, the Commonwealth
           presented the testimony of Melisa Lynn Hankins [“Victim”].
____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.


___________________________

*Former Justice specially assigned to the Superior Court.
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       [Victim] testified that on December 22, 2005, she arrived
       at the Parkvale Bank at approximately 8:20 p.m. [Victim]
       parked her orange 2006 Cobalt diagonally two spaces to
       the left of the ATM machine. In the space to her right,
       nearest to the ATM, was another car. At the time, an
       African American man wearing jeans and a zip up hoodie
       was at the ATM; this person was later identified as
       [A]ppellant. Due to the cold weather, the victim remained
       in her vehicle and prepared to use the ATM.

       During the two minutes [Victim] observed [A]ppellant at
       the ATM, she noted that he appeared flustered. [Victim]
       testified that [A]ppellant did not seem to be able to
       withdraw money and he continued to look around and
       made direct eye contact with her before returning to his
       car. [Victim] got out of her car, approached the ATM, and
       noticed it said, “insufficient funds, please try another
       account.” She then waited approximately 30 seconds for
       the homepage of the machine to appear and successfully
       withdrew $200.00, consisting of $20.00 bills, from her
       account. [Victim] then put the money and her card in her
       back pocket and took her receipt.

       After unlocking the door to her vehicle, she removed the
       money from her pocket and put it into a cup holder.
       [Victim] explained that her left leg was hanging out of the
       vehicle, and as she was getting ready to close the door,
       [A]ppellant grabbed her left arm with his left hand.
       [Victim] stated that [A]ppellant was so close she could
       smell his breath when he told her that he had a gun,
       holding his hand in his right pocket. [Victim] replied,
       “[T]his doesn’t really need to be going on. We’ll let it go.
       Nothing will be done about it. We’ll just let it go. It’s the
       holidays.” Appellant continued to push at his pocket as if
       there was something inside.

       [Victim] looked at [A]ppellant’s face and noticed he was off
       balance. She tried pushing him to get back into the car.
       In response, [A]ppellant pushed [Victim] into the car.
       [Victim] then hit her head off the side of the door as
       [A]ppellant came into the car and tried to take the money
       out of her hand. As [Victim] resisted, [A]ppellant took the
       ATM card out of her hand, crunched and ripped up the
       card, and took all of her cash. Appellant then left in his

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           vehicle. [Victim] called her father who then called the
           police.  [Victim] identified [A]ppellant in court as the
           robber.

Commonwealth           v.   Howard,        No.   1913   WDA    2010,     unpublished

memorandum at 1-3 (Pa.Super. filed August 12, 2011) (“Howard I”)

(internal footnote and citations to the record omitted).

        On March 8, 2006, the Commonwealth filed a criminal complaint

charging Appellant with the robberies. Law enforcement, however, could not

immediately apprehend Appellant. In July 2007, the Commonwealth located

Appellant at the United States Penitentiary―Canaan (“USP―Canaan”). In a

letter dated July 23, 2007, USP―Canaan offered temporary custody of

Appellant to the Commonwealth, pursuant to the Interstate Agreement on

Detainers     (“IAD”).2       The    Commonwealth       received   the   letter   from

USP―Canaan on August 2, 2007. The Commonwealth accepted the offer of

temporary custody and agreed to take Appellant to trial “within the time

specified in Article III(a) of the [IAD].”3 (IAD Form VII, filed 8/16/07, at 1).

____________________________________________


2
    42 Pa.C.S.A. §§ 9101-9108.
3
    This Court previously determined:

           [B]ecause the warden of USP―Canaan offered temporary
           custody to Allegheny County on a request by Appellant, …
           Article III of the IAD applied and required that trial
           commence within 180 days of the Commonwealth[’s]
           receipt of notice of Appellant’s request.           The
           Commonwealth represented that it received notice of
           Appellant’s request on August 2, 2007….       Therefore,
(Footnote Continued Next Page)


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The Commonwealth took Appellant into custody in Allegheny County on

September 15, 2007.

        The court originally scheduled Appellant’s case for trial on January 7,

2008.     On that date, however, trial counsel requested a continuance on

Appellant’s behalf.       Counsel executed a continuance form, which included

the handwritten notation “no discovery[.]” (N.T. PCRA Hearing, 6/16/14, at

7).   The court granted the continuance and rescheduled trial for April 17,

2008. On January 25, 2008, Appellant filed a motion for a bill of particulars,

seeking to compel additional discovery.           Specifically, Appellant requested

supplemental police reports, surveillance tapes, video and audio recordings

of police interrogations, forensic reports, and the original photo array shown

to the victims.

        Appellant proceeded to a bench trial on April 17, 2008. Following trial,

the court found Appellant guilty of one count of robbery. On June 30, 2008,

the court sentenced Appellant to five (5) to ten (10) years’ imprisonment.

This Court affirmed the judgment of sentence on August 12, 2011, and our


                       _______________________
(Footnote Continued)

           absent a continuance granted for “good cause shown in
           open court,” or a determination that Appellant was “unable
           to stand trial,” the Commonwealth had until January 29,
           2008, to commence trial.

Commonwealth v. Howard, No. 1914 WDA 2012, unpublished
memorandum at 12 (Pa.Super. filed July 10, 2013) (“Howard II”) (internal
citations omitted).



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Supreme Court denied Appellant’s petition for allowance of appeal on

January 5, 2012.

      Appellant timely filed a counseled PCRA petition on February 24, 2012.

In it, Appellant argued trial counsel was ineffective for failing to challenge

the timeliness of trial under the IAD and Pa.R.Crim.P. 600. On September

19, 2012, the court issued notice of its intent to dismiss the petition without

a hearing, pursuant to Pa.R.Crim.P. 907. The court denied PCRA relief on

November 15, 2012.      Regarding the continuance of trial from January 7,

2008 to April 17, 2008, the court attributed the entire delay to Appellant.

      Appellant timely filed a notice of appeal on December 3, 2012.          On

appeal, this Court affirmed the order denying PCRA relief in part, concluding

the PCRA court properly denied Appellant’s claim regarding the filing of a

Rule 600 motion.     Nevertheless, this Court also vacated the order and

remanded for an evidentiary hearing as follows:

         [W]e conclude that the record did not support the
         conclusion of the PCRA court that there existed no genuine
         issues of material fact on the question of a “good cause”
         continuance under the IAD.

         Consequently, we remand for further development of the
         present record for consideration of whether the January 7,
         2008 continuance was attributable to Appellant, the
         Commonwealth, or both. The PCRA court shall develop a
         record to explain the notation “no discovery” as the cause
         of the defense’s request for a continuance, and whether
         the rescheduling of trial until April 17, 2008, was beyond
         the control of the Commonwealth.

Howard II, supra at 16-17.


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      The PCRA court conducted an evidentiary hearing on June 16, 2014.

At that time, trial counsel testified that Appellant asked her to request a

continuance, because he believed trial counsel could obtain additional

discovery.    Appellant disputed trial counsel’s testimony, claiming trial

counsel did not ask Appellant whether he wanted a continuance. Appellant

maintained trial counsel did not inform him about the IAD mechanical run

date, and Appellant would have not have consented to the continuance if he

had known about the IAD mechanical run date. On November 24, 2014, the

court again denied PCRA relief. Appellant timely filed a notice of appeal on

December 1, 2014. That same day, Appellant filed a concise statement of

errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b).

      Appellant raises one issue for our review:

         DID THE [PCRA] COURT ERR IN DENYING APPELLANT’S
         PCRA PETITION SINCE TRIAL COUNSEL WAS INEFFECTIVE
         FOR FAILING TO RAISE A VIOLATION OF THE [IAD] SINCE
         APPELLANT’S 4/17/08 TRIAL WAS HELD IN VIOLATION OF
         THE IAD?

(Appellant’s Brief at 3).

      Our standard of review of the denial of a PCRA petition is limited to

examining    whether        the   evidence    of   record    supports    the     court’s

determination    and    whether      its     decision   is   free   of   legal    error.

Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,

612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the

findings of the PCRA court if the record contains any support for those


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findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal

denied, 593 Pa. 754, 932 A.2d 74 (2007).        We give no such deference,

however, to the court’s legal conclusions.     Commonwealth v. Ford, 44

A.3d 1190 (Pa.Super. 2012). “Traditionally, issues of credibility are within

the sole domain of the trier of fact [because] it is the trier of fact who had

the opportunity to personally observe the demeanor of the witnesses.”

Commonwealth v. Abu-Jamal, 553 Pa. 485, 527, 720 A.2d 79, 99 (1998),

cert. denied, 528 U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 (1999). “[A]s with

any other credibility determination, where the record supports the PCRA

court’s credibility determinations, those determinations are binding” on this

Court. Id.

      On appeal, Appellant contends the court had to commence trial on or

before January 29, 2008, pursuant to Article III of the IAD. Although the

court originally scheduled trial before the IAD mechanical run date, Appellant

complains the court postponed trial until April 17, 2008. Appellant argues

he did not waive his rights under the IAD by agreeing to a trial date outside

the statutory period, and “[t]rial [c]ounsel should not have taken any

postponement.”    (Appellant’s Brief at 24).   Appellant further argues the

court elected to continue trial without conducting a proper hearing to

determine the existence of good cause for the delay.

      Appellant acknowledges trial counsel’s contrary testimony from the

PCRA hearing, but Appellant insists that counsel unilaterally sought the


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continuance without giving Appellant the opportunity to sign off on the

continuance form.    Moreover, Appellant insists the delay in trial stemmed

from a failure to provide certain discovery; therefore, the delay was

attributable to the Commonwealth.         Appellant also maintains that trial

counsel did not explain Appellant’s rights under the IAD, and Appellant

would not have authorized a continuance if he had known about the IAD

mechanical run date.    Appellant concludes trial counsel was ineffective for

failing to challenge the timeliness of trial based upon the IAD. We disagree.

      The   law   presumes    counsel   has   rendered    effective   assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008).                When

asserting a claim of ineffective assistance of counsel, the petitioner is

required to demonstrate that: (1) the underlying claim is of arguable merit;

(2) counsel had no reasonable strategic basis for his action or inaction; and,

(3) 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. Kimball, 555 Pa. 299, 724 A.2d 326 (1999).                   The

failure to satisfy any prong of the test for ineffectiveness will cause the claim

to fail. Williams, supra.

      “The threshold inquiry in ineffectiveness claims is whether the

issue/argument/tactic which counsel has foregone and which forms the basis

for the assertion of ineffectiveness is of arguable merit….” Commonwealth

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot


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be found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).

        Once this threshold is met we apply the ‘reasonable basis’
        test to determine whether counsel’s chosen course was
        designed to effectuate [her] client’s interests.    If we
        conclude that the particular course chosen by counsel had
        some reasonable basis, our inquiry ceases and counsel’s
        assistance is deemed effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

        Prejudice is established when [a defendant] demonstrates
        that counsel’s chosen course of action had an adverse
        effect on the outcome of the proceedings. The defendant
        must show that there is a reasonable probability that, but
        for counsel’s unprofessional errors, the result of the
        proceeding would have been different.             A reasonable
        probability is a probability sufficient to undermine
        confidence in the outcome. In [Kimball, supra], we held
        that a “criminal defendant alleging prejudice must show
        that counsel’s errors were so serious as to deprive the
        defendant of a fair trial, a trial whose result is reliable.”

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883

(2002) (some internal citations and quotation marks omitted).

     “The IAD is an agreement between forty-eight states, the District of

Columbia, Puerto Rico, the Virgin Islands, and the United States, that

establishes procedures for the transfer of prisoners incarcerated in one

jurisdiction to the temporary custody of another jurisdiction which has

lodged a detainer against a prisoner.” Commonwealth v. Jones, 886 A.2d

689, 695 (Pa.Super. 2005), appeal denied, 587 Pa. 686, 897 A.2d 452

(2006) (quoting Commonwealth v. McNear, 852 A.2d 401, 405 n.3

(Pa.Super. 2004)).

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        Unlike a request for extradition, which is a request that the
        state in which the prisoner is incarcerated transfer custody
        to the requesting state, a detainer is merely a means of
        informing the custodial jurisdiction that there are
        outstanding charges pending in another jurisdiction and a
        request to hold the prisoner for the requesting state or
        notify the requesting state of the prisoner’s imminent
        release.

Jones, supra (quoting Commonwealth v. Davis, 567 Pa. 135, 139, 786

A.2d 173, 175 (2001)).

     Article III of the IAD sets forth the following transfer procedure:

        § 9101. Agreement on detainers

           The Agreement on Detainers is hereby enacted into law
        and entered into by this Commonwealth with all other
        jurisdictions legally joining therein in the form substantially
        as follows:

                                 *     *      *

                                 Article III

            (a) Whenever a person has entered upon a term of
        imprisonment in a penal or correctional institution of a
        party state, and whenever during the continuance of the
        term of imprisonment there is pending in any other party
        state any untried indictment, information or complaint on
        the basis of which a detainer has been lodged against the
        prisoner, he shall be brought to trial within 180 days after
        he shall have caused to be delivered to the prosecuting
        officer and the appropriate court of the prosecuting
        officer’s jurisdiction written notice of the place of his
        imprisonment and his request for a final disposition to be
        made of the indictment, information or complaint:
        Provided, That for good cause shown in open court,
        the prisoner or his counsel being present, the court
        having jurisdiction of the matter may grant any
        necessary or reasonable continuance.

                                 *     *      *

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42 Pa.C.S.A. § 9101, Article III (emphasis added).

     Additionally, “[T]he IAD may be tolled by the defendant’s own

actions.” Jones, supra at 696 (quoting Commonwealth v. Montione, 554

Pa. 121, 126, 720 A.2d 738, 741 (1998), cert. denied, 526 U.S. 1098, 119

S.Ct. 1575, 143 L.Ed.2d 671 (1999)).

        Significantly, a defendant may waive his rights under the
        IAD by agreeing to a trial date outside the time periods
        mandated by the statute. New York v. Hill, 528 U.S.
        110, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000). In Hill, both
        defense counsel and the prosecution agreed on a trial
        date, which fell outside of the 180-day period mandated by
        Article III of the IAD. Upon expiration of the 180-day
        period, and prior to trial, defense counsel moved to
        dismiss the charges on Article III grounds. The Supreme
        Court held that the prior agreement to set a trial date
        beyond the 180-day period waived any subsequent Article
        III objection. Id. at 115, 120 S.Ct. at 664, 145 L.Ed.2d at
        567. Compare Commonwealth v. Mayle, 780 A.2d 677,
        684 n.15 (Pa.Super. 2001) (stating appellant’s failure to
        object to trial date scheduled beyond IAD time limit did not
        waive subsequent Article III objection, where trial date
        was not “product of negotiation” between parties).

Jones, supra at 696-97 (internal footnote omitted).

     Instantly, the PCRA court conducted an evidentiary hearing about the

scheduling of Appellant’s trial beyond the IAD mechanical run date.     Trial

counsel, a criminal defense attorney with over twenty years’ experience,

testified that she was aware of the IAD and its timeliness requirements.

Trial counsel also testified that she executed a continuance form on January

7, 2008, which postponed trial until April 17, 2008, after the IAD mechanical

run date.   Trial counsel maintained that Appellant told her to request the

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continuance, because Appellant believed counsel could obtain additional

discovery.

      Trial counsel acknowledged her handwritten notation of “no discovery”

on the continuance form, but she explained that the Commonwealth had not

completely failed to provide discovery. Rather, after reviewing the discovery

with Appellant, Appellant did not believe trial counsel had all available items.

Regarding the purportedly missing discovery, trial counsel elaborated:

         It was [Appellant’s] belief that there were assisting officers
         that may have additional reports, supplemental reports,
         interrogation videos that may not have been provided to
         the Commonwealth, …and that I was searching to make
         sure on his behalf, at his request, was there any additional
         information that [the prosecutor] had not provided to me
         because he did not have it from certain officials that were
         involved in the arrest regarding these robberies.

(See PCRA Hearing at 12.) Consequently, trial counsel filed the motion for a

bill of particulars on January 25, 2008.

      Upon further questioning from PCRA counsel, trial counsel reiterated

that Appellant asked her to execute the continuance form and file the motion

for bill of particulars. Further, trial counsel explained:

         The postponements on any criminal case are not in the
         sole discretion of the defense trial attorney.           The
         postponements are the client’s[,] and if a client requested
         that I put in a postponement because [he] believed I could
         find something additional, that may assist in…having the
         charges dismissed, or clients found not guilty, I will surely
         listen to my client. That’s what conferences are for.

         There is no reason for me to question a client
         who…requests that I put in a postponement and seek out
         any additional information.

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(Id. at 16).

       Regarding the good cause requirement of Article III of the IAD, trial

counsel stated that the trial court considered the continuance request in

open court. Trial counsel believed Appellant had demonstrated good cause,

“or else this postponement would have never been granted by [the trial

court]. [The trial court] does not…just sign postponements.”4 (Id. at 20).

Although the parties rescheduled trial beyond the IAD mechanical run date,

trial counsel did not have control over the date:

          The dates are picked between the Assistant District
          Attorney’s calendar, the defense attorney’s calendar, and
          most importantly, the Judge’s calendar. So there are three
          people with three calendars that have to find a date that
          works for everyone. Most important in my mind, and I will
          say this always, the Judge’s calendar is most important.
          The Commonwealth…and my calendar are secondary to the
          [c]ourt’s.

(Id. at 24). Trial counsel also emphasized that Appellant was aware of the

IAD mechanical run date, but he still wanted to pursue a continuance.

Appellant also testified at the PCRA hearing and denied many of trial

counsel’s averments. The PCRA court, however, was free to determine the

credibility of both witnesses. See Abu-Jamal, supra.

____________________________________________


4
  Trial counsel discussed her experience in litigating continuance requests
with the trial judge, noting the judge “asks for a more detailed reason
[other] than what’s written on the postponement form of why either side,
Commonwealth or defense, needs a postponement.”                (Id. at 21).
Additionally, the same jurist presided over Appellant’s PCRA proceedings.



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      Based upon the foregoing, the PCRA court found “there was no

ineffectiveness on the part of [trial] counsel and there was [good] cause

shown to move the trial beyond the [IAD] mechanical run date of January

29, 2008.”     (See PCRA Court Opinion, filed November 24, 2014, at 4.)

Here, trial counsel’s testimony provided ample support for the PCRA court’s

conclusions.   See 42 Pa.C.S.A. § 9101, Article III.   Therefore, Appellant’s

claim, that counsel was ineffective for failing to challenge the timeliness of

trial based upon the IAD, lacks arguable merit.        See Pierce, supra;

Poplawski, supra. Accordingly, we affirm the order denying PCRA relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/8/2015




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