J-S61012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    JOSE DIAZ

                             Appellant                No. 531 EDA 2016


                    Appeal from the PCRA Order January 29, 2016
                In the Court of Common Pleas of Philadelphia County
                Criminal Division at No(s): CP-51-CR-0010250-2010,
                              CP-51-CR-0010251-2010


BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                       FILED NOVEMBER 27, 2017

        Jose Diaz appeals, pro se, from the order entered in 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.

        Diaz was convicted by a jury of two counts of aggravated assault and

one count of possession of instruments of crime after he cut two individuals

with a box cutter during an altercation stemming from an earlier fistfight. The

trial court sentenced Diaz to an aggregate term of 5½ to 12 years’

imprisonment, followed by 5 years of reporting probation. Diaz appealed his

judgment of sentence, which this Court affirmed. See Commonwealth v.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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Diaz, 75 A.3d 561 (Pa. Super. 2013) (table). Diaz did not file a petition for

allowance of appeal with the Supreme Court.

       On April 18, 2014, Diaz filed a pro se PCRA petition. The PCRA court

appointed counsel, who reviewed the record and ultimately filed a “no-merit”

letter pursuant to Turner/Finley.1             On January 29, 2016, the PCRA court

dismissed Diaz’s petition and granted counsel leave to withdraw. This appeal

follows, in which Diaz raises the following claims for our review:

       1. Was Diaz’s right to a speedy trial under Pa.R.Crim.P. 600
          violated where the Commonwealth failed to prove due
          diligence?

       2. Were Diaz’s rights under the Fifth, Sixth and Fourteenth
          Amendments to the United States Constitution and Article 1,
          Section 9 of the Pennsylvania Constitution violated due to the
          ineffectiveness of trial and appellate counsel?

Brief of Appellant, at [3].

       Diaz asserts that his Rule 600 speedy trial rights were violated because

the Commonwealth did not demonstrate due diligence, and that trial and

appellate counsel were ineffective for failing to pursue the issue.2 We conclude

that no relief is due.


____________________________________________


1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

2Standing alone, Diaz’s Rule 600 claim is waived, as he could have raised it
on direct appeal. See 42 Pa.C.S.A. § 9543(a)(3) (to be eligible for relief under
PCRA, petitioner must plead and prove that allegations of error have not been
previously litigated or waived); 42 Pa.C.S.A. § 9544(b) (issue waived if
petitioner could have raised it, but failed to do so, at trial, on direct appeal, or



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       Our standard of review when faced with a claim of ineffective
       assistance of counsel is well settled. First, we note that counsel
       is presumed to be effective and the burden of demonstrating
       ineffectiveness rests on appellant. In order to prevail on a claim
       of ineffective assistance of counsel, a petitioner must show, by a
       preponderance of the evidence, 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. A petitioner must show (1)
       that the underlying claim has merit; (2) counsel had no
       reasonable strategic basis for his or her action or inaction; and (3)
       but for the errors or omissions of counsel, there is a reasonable
       probability that the outcome of the proceedings would have been
       different. The failure to prove any one of the three prongs results
       in the failure of petitioner’s claim.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (internal

citations omitted).

       At the time of Diaz’s trial, Rule 600 provided, in relevant part, as follows:

       Rule 600. Prompt Trial.

                                           ...

       (A)(3) Trial 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.

                                           ...

       (C) In determining the period for commencement of trial, there
       shall be excluded therefrom:

                                           ...

          (2) any period of time for which the defendant expressly
          waives Rule 600;

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in a prior postconviction proceeding). However, because Diaz also raises the
claim in the context of ineffectiveness of counsel in a timely first PCRA petition,
it is cognizable under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2)(ii).

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         (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.

                                       ...

      (G) . . . If the court, upon hearing, shall determine that the
      Commonwealth exercised due diligence and that the
      circumstances occasioning the postponement were beyond the
      control of the Commonwealth, the motion to dismiss shall be
      denied and the case shall be listed for trial on a date certain. . . .
      If, at any time, it is determined that the Commonwealth did not
      exercise due diligence, the court shall dismiss the charges and
      dismiss the defendant.

Pa.R.Crim.P. 600.

      Pursuant to Rule 600(A) and (C), the mechanical and adjusted run dates

are calculated as follows:

      The mechanical run date is the date by which the trial must
      commence under Rule 600. It is calculated by adding 365 days
      (the time for commencing trial under Rule 600) to the date on
      which the criminal complaint is filed. [T]he mechanical run date
      can be modified or extended by adding to the date any periods of
      time in which delay is caused by the defendant. Once the
      mechanical run date is modified accordingly, it then becomes an
      adjusted run date. If the defendant’s trial commences prior to the
      adjusted run date, we need go no further.

      If, however, the defendant’s trial takes place outside of the
      adjusted run date, we must determine, pursuant to Rule 600(G),
      whether the delay occurred despite the Commonwealth's due
      diligence. To this end, we have fashioned the “excusable delay”
      doctrine. Excusable delay is a legal construct that takes into
      account delays which occur as a result of circumstances beyond
      the Commonwealth’s control and despite its due diligence. Our
      Supreme Court has made clear that the Commonwealth must do
      everything reasonable within its power to guarantee that a trial


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       begins on time. Moreover, the Commonwealth bears the burden
       of proving that its efforts were reasonable and diligent.

       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. Due
       diligence includes, among other things, listing a case for trial prior
       to the run date, preparedness for trial within the run date, and
       keeping adequate records to ensure compliance with Rule 600.

       A period of delay that is excusable pursuant to Rule 600(G) results
       in an extension to the adjusted run date.

Commonwealth v. Ramos, 936 A.2d 1097, 1102–03 (Pa. Super. 2007) (en

banc) (internal citations, quotation marks, and brackets omitted). “It is well-

settled that the Commonwealth cannot control the schedule of the trial courts

and that therefore judicial delay can support the grant of an extension of the

Rule 600 rundate.” Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa.

Super. 2007) (citation and quotation marks omitted).

       Here, Diaz was arrested on July 2, 2010 and the Commonwealth filed

its complaint on July 3, 2010. Thus, the mechanical run date was July 5,

2011.3     Trial commenced on November 29, 2011, 147 days past the

mechanical run date. However, the court found significant time to be either

excusable or excludable. First, the court properly deemed the 51-day period

between October 25, 2010 and December 10, 2010 excusable, as the delay

was attributable to administrative relisting for implementation of the

Philadelphia     criminal     court     system’s   new   Zone   Court    protocol.
____________________________________________


3The actual mechanical run date, July 2, 2011, was a Saturday. The following
Monday was the July 4th holiday. Thus, the first business day on which trial
could have commenced was July 5, 2011.

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Commonwealth v. Armstrong, 74 A.3d 228, 237 (Pa. Super. 2013) (delay

attributable to reorganization of Philadelphia criminal court system by

geographical zone excusable). This results in an adjusted run date of August

25, 2011.

      In addition, the court found three continuances totaling 218 days to be

either excludable or excusable. These periods of delay were between April 25

and October 17, 2011 (175 days), October 17 to October 27, 2011 (10 days)

and October 27 to November 28, 2011 (32 days). Diaz takes issue with the

delay resulting from the defense continuance granted on April 25, 2011.

Although his argument is less than clear, he appears to challenge counsel’s

failure to investigate the lack of an “earliest possible date” notation in the

quarter sessions file. This claim has no merit.

      The following exchange took place during the Rule 600 motion hearing:

      THE COURT: This case was the back[-]up trial for April 25th, the
      Walker and Bruce cases and they had three cases here. . . . That
      was a busy week. We knew that on April 21st that it was an
      advanced request given the PD’s schedule. The PD’s office was
      going to be on trial possibly with Garrett or Rivera.

      The Court was going to be on trial on the Jones case and then
      following that, I was in chambers. Then it was re-rolled with
      Garrett and so were backed it up [sic] with Mr. Houston.

      [A.D.A. BEN] BAER: So that bumped [the Diaz trial] up to the 4th
      of July.

      [A.P.D. MARNI] SNYDER: It looks like [Diaz] got a date right
      away, October 17th, Your Honor.

      THE COURT: It did. It got a priority date on October 17th.
      We were backing it up with Dia[z] for October 17th and Bogs. And
      that turned out to have be [sic] a priority.


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       MS. SNYDER: Your Honor, so then it got continued to October 27
       because court was on trial.

       THE COURT: Correct. It was Court on trial and we rolled it to
       October 27th.

N.T. Rule 600 Motion Hearing, 11/29/11, at 9-11.

       Based upon the foregoing, it is apparent that, even though the quarter

sessions file contained no “earliest possible date” notation, the trial court

specifically recalled that Diaz’s case was given a priority date following the

defense request for a continuance on April 25, 2011.4 There is no indication

that the delay from April 25 to October 17 was in any way attributable to lack

of due diligence on the part of the Commonwealth.         Rather, this time is

excludable as a defense request, after which the court gave Diaz’s case the

earliest trial date consistent with its schedule, October 17. This excludable

time brings the adjusted run date to February 16, 2012, well past the date on

which trial actually commenced.

       Because trial commenced well within the adjusted run date, neither

appellate nor PCRA counsel can be deemed ineffective for failing to raise a




____________________________________________


4 To the extent Diaz attempts to argue that he is entitled to relief based on
the fact that the quarter sessions file erroneously identifies his counsel as
Louis T. Savino, Esquire, he is entitled to no relief. At the Rule 600 hearing,
the trial court recalled that, on that same date, Attorney Savino (who never
represented Diaz in this matter) was present in the courtroom for three other
matters. The court found that Attorney Savino’s name was mistakenly
entered in place of Diaz’s actual counsel, Byron Houston, Esquire.



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meritless Rule 600 claim.5 Rivera, supra. Accordingly, the PCRA court did

not err in denying Diaz relief.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/27/2017




____________________________________________


5 Diaz also alleges that trial counsel was ineffective. However, trial counsel
did, in fact, argue a Rule 600 motion which, for the reasons set forth supra,
was denied.

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