J-S50026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RICHARD MICHAEL CHAROWSKY

                            Appellant                   No. 9 MDA 2016


            Appeal from the PCRA Order entered December 4, 2015
              In the Court of Common Pleas of Schuylkill County
               Criminal Division at No: CP-54-CR-0001413-2014


BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                         FILED OCTOBER 17, 2016

        Appellant, Richard Michael Charowsky, appeals from the order the

Court of Common Pleas of Schuylkill County entered on December 4, 2015,

denying his request for collateral relief under the Post Conviction Relief Act,

42 Pa.C.S.A. §§ 9451-46. Upon review, we affirm.

        The PCRA court summarized the relevant background as follows:

        [Appellant] was arrested in this case on February 16, 2014. The
        criminal complaint was not filed until August 4, 2014, and he
        was arraigned by Magisterial District Judge Christina Hale on
        August 5, 2014, approximately six months after his arrest. He
        subsequently pled guilty to two of the charges.[1]
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  Appellant pled guilty to DUI, highest rate of alcohol, third offense, and
driving while operating privilege was suspended or revoked, 75 Pa.C.S.A.
§ 3802(c) and 75 Pa.C.S.A. § 1543(b)(1.1)(i), respectively. Appellant was
(Footnote Continued Next Page)
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        [At the PCRA hearing, trial counsel] testified that he [was] not
        sure if he noticed the length of time that had passed between
        the arrest date and the complaint date. He did not remember
        discussing this issue with [Appellant], and did not see any other
        options besides negotiating a plea. No suppression or omnibus
        issues seemed to be present and [Appellant] had a lengthy
        criminal record. [At the same hearing, Appellant] testified that
        he had repeatedly attempted to discuss the time with [trial
        counsel] but that [trial counsel] did not listen. [Appellant]
        testified that he was prejudiced by the delay in that the person
        in the car at the time of his arrest, Edna Barket, could have
        testified. However, Ms. Barket was not present at the PCRA
        hearing and no evidence was provided as to how she would have
        aided [Appellant]’s defense.

        PCRA Court Opinion, 12/4/15, at Following the hearing, the PCRA court

denied relief. This appeal followed. On appeal, Appellant alleges the PCRA

court erred in denying relief on his claim that trial counsel was ineffective for

not challenging the Commonwealth’s failure to comply with Pa.R.Crim.P.

519(B)(2).2 We disagree.

                       _______________________
(Footnote Continued)

sentenced to one to five years’ incarceration on the DUI conviction, and 90
to 180 days’ incarceration on the other conviction, concurrent with the DUI
conviction. Appellant did not file a direct appeal. Rather, Appellant filed a
timely PCRA petition.
2
    Rule 519, in relevant part, provides as follows:

        (B) Release
        (1) The arresting officer shall promptly release from custody a
        defendant who has been arrested without a warrant, rather than
        taking the defendant before the issuing authority, when the
        following conditions have been met:
            (a) the most serious offense charged is a misdemeanor of the
            second degree or a misdemeanor of the first degree in cases
            arising under 75 Pa.C.S. § 3802;
(Footnote Continued Next Page)


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J-S50026-16



        “[A]n appellate court reviews the PCRA court’s findings of fact to

determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).

        Counsel is presumed to be effective and “the burden of demonstrating

ineffectiveness rests on [A]ppellant.” Commonwealth v. Rivera, 10 A.3d

1276,    1279   (Pa.      Super.    2010).       Accordingly,   “[t]o    prevail   on   an

[ineffectiveness] claim, a PCRA petitioner must plead and prove by a

preponderance of the evidence that (1) the underlying legal claim has

arguable merit; (2) counsel had no reasonable basis for acting or failing to

act; and (3) the petitioner suffered resulting prejudice.”              Commonwealth

v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015) (en banc). “A

petitioner must prove all three factors of the ‘[Commonwealth v. Pierce,

527 A.2d 973 (Pa. 1987)] test,’ or the claim fails.” Id.


                       _______________________
(Footnote Continued)

           (b) the defendant poses no threat of immediate physical harm
           to any other person or to himself or herself; and
           (c) the arresting officer has reasonable grounds to believe
           that the defendant will appear as required.
        (2) When a defendant is released pursuant to paragraph (B)(1),
        a complaint shall be filed against the defendant within 5 days of
        the defendant’s release. Thereafter, the issuing authority shall
        issue a summons, not a warrant of arrest, and shall proceed as
        provided in Rule 510.

Pa.R.Crim.P. 519(B)(1)-(2).




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        Regarding the specific claim raised in this appeal, the procedure for

filing criminal complaints in cases involving a warrantless arrest, such as this

one, is set forth in Rule 519, which, as noted, provides as follows: “When a

defendant is released pursuant to paragraph (B)(1), a complaint shall be

filed against the defendant within 5 days of the defendant's release.

Thereafter, the issuing authority shall issue a summons, not a warrant of

arrest, and shall proceed as provided in Rule 510.” Pa.R.Crim.P. 519(B)(2).

Dismissal for failure to file a criminal complaint within five days of a

defendant’s release as required by Rule 519(B)(2) is improper unless a

defendant     is   prejudiced     by   the     delay.   See   Commonwealth   v.

Wolgemuth, 737 A.2d 757, 760 (Pa. Super. 1999); see also Pa.R.Crim.P.

109.3

        Upon review of the record, we agree with the PCRA court that

Appellant failed to prove he suffered prejudice from trial counsel’s omission.

Specifically, the PCRA court noted: “[Appellant] provided vague claims to a

____________________________________________


3
    Rule 109 provides as follows:

        A defendant shall not be discharged nor shall a case be
        dismissed because of a defect in the form or content of a
        complaint, citation, summons, or warrant, or a defect in the
        procedures of these rules, unless the defendant raises the defect
        before the conclusion of the trial in a summary case or before
        the conclusion of the preliminary hearing in a court case, and the
        defect is prejudicial to the rights of the defendant.

Pa.R.Crim.P. 109.



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possible witness that became unavailable due to the delay, but not enough

evidence was given to show that the witness would have been available

earlier, what her testimony would have been, or how her testimony would

have helped his defense.” PCRA Court Opinion, 12/4/15, at 4.

        Our review of the record confirms the PCRA court’s assessment.

Accordingly, we conclude Appellant failed to prove that there was “a

reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”       Commonwealth v.

Johnson, 966 A.2d 523, 533 (Pa. 2009) (citation omitted). 4           Thus, we

affirm the PCRA court’s order denying Appellant relief.

        Order affirmed.

        Judge Mundy did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/2016


____________________________________________


4
  Because we conclude Appellant failed to prove prejudice, we do need not to
discuss whether Appellant met the other two prongs of the ineffective
assistance standard.



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