J-S32004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL JOHN KILLIANY                      :
                                               :
                       Appellant               :   No. 1236 MDA 2017

                    Appeal from the PCRA Order July 5, 2017
              In the Court of Common Pleas of Lackawanna County
              Criminal Division at No(s): CP-35-CR-0001492-2013


BEFORE:      PANELLA, J., NICHOLS, J., and PLATT*, J.

MEMORANDUM BY PANELLA, J.                          FILED SEPTEMBER 21, 2018

        Michael John Killiany appeals from the order entered in the Lackawanna

County Court of Common Pleas, which dismissed his petition filed pursuant to

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.

Additionally, Donna M. DeVita, Esquire has filed a petition to withdraw from

representation and an Anders brief.1 We affirm the order of the PCRA court

and grant Attorney DeVita leave to withdraw.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 Attorney DeVita has filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), apparently in the mistaken belief that an Anders brief is required
when counsel seeks to withdraw on appeal following the denial of PCRA relief.
However, the dictates of Anders apply only on direct appeal, not on collateral
review. Counsel files an Anders brief on direct appeal when she determines
the appeal is “wholly frivolous.” Id., at 744. The appropriate filing in this case
would have been a Turner/Finley “no-merit” letter. See Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213
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       The relevant facts and procedural history are as follows. On June 18,

2013, Appellant was arrested and charged with arson and related offenses.

These charges arose following a fire at his residence. Due to various delays,

Appellant’s case did not proceed to trial until February 11, 2015. Following

this three-day jury trial, Appellant was convicted of all of the arson-related

offenses. Ultimately, the trial court sentenced Appellant to an aggregate term

of 2 to 6 years’ imprisonment.2 This Court affirmed Appellant’s judgment of

sentence. See Commonwealth v. Killaney, No. 1578 MDA 2015 (Pa. Super.,

filed July 21, 2016) (unpublished memorandum).

       On November 16, 2016, Appellant filed a pro se PCRA petition. The PCRA

court appointed counsel who later filed an amended petition. In the amended

petition, Appellant asserted both trial and appellate counsel rendered

ineffective assistance by failing to move for dismissal of his charges based on

the Commonwealth’s alleged violation of Rule 600. The PCRA court scheduled

an evidentiary hearing.



____________________________________________


(Pa. Super. 1988) (en banc). Regardless, because an Anders brief provides
greater protection to a defendant than a Turner/Finley no-merit letter, this
Court may accept an Anders brief in lieu of a Turner/Finley letter. See
Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004).

2 The trial court originally sentenced Appellant to an aggregate term of 3 to 9
years’ imprisonment. However, following the filing of post-sentence motions,
the trial court agreed with Appellant that the arson offenses should have
merged for sentencing purposes. Thus, the trial court reduced Appellant’s
aggregate sentence to 2 to 6 years’ imprisonment.


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      At the hearing, Appellant testified along with trial counsel, John Petorak,

Esquire, and appellate counsel, Robert Buttner, Esquire. Though Appellant

could not remember specifics regarding the time between his arrest and trial,

he testified that he did not recall having a single conversation with trial counsel

about postponing the date of his trial. See N.T., PCRA Hearing, 5/5/17, at 15-

18. Instead, Appellant claimed he was unaware as to why there was such a

long period between his arrest and the commencement of his trial. See id.,

at 20, 27.

      Attorney Petorak testified that he represented Appellant from shortly

after his arrest until the conclusion of his trial. See id., at 38. After Appellant’s

arrest, trial counsel requested to move Appellant’s preliminary hearing twice,

from June 26, 2013, to July 3, 2013, and then from July 3, 2013, to July 10,

2013. See id., at 39-40. Following the preliminary hearing, trial counsel

requested another continuance, this time for the pretrial conference, from

August 22, 2013, until October 31, 2013.         See id., at 40-42, 50-51. Trial

counsel asserted he requested theses continuances due to the complexity of

the case. See id., at 41.

      After the pretrial conference, trial counsel asked the court to delay

scheduling the case for trial because he was attempting to convince Appellant

to either hire an independent arson investigator or enter a plea deal. See id.,

at 43-45, 52-53. Therefore, trial counsel attributed all delays between the

pretrial conference and April 2014 to this defense strategy. See id., at 53,

59-60. In April 2014, trial counsel claimed problems with knees left him

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incapacitated. See id., at 48. Trial counsel believed he discussed his knee

problems with Appellant and the delays his bilateral knee surgery would cause.

See id. As such, trial counsel believed his knee pain, and the resulting

surgery, accounted for excludable time from approximately April 2014 until

January of 2015. See id., at 49-51. Ultimately, trial counsel asserted that “[a]

Rule 600 motion never entered [his] mind because [he] attributed all delays

to [the defense].” Id., at 58.

       Prior to Attoney Buttner’s testimony, the parties stipulated that

appellate counsel could not have raised a Rule 600 issue on appeal because

trial counsel did not raise the issue with the trial court. See id., at 64-65.

Appellate counsel confirmed that he did not pursue this issue on appeal

because it had not been properly preserved, and therefore, could not be raised

on appeal. See id., at 66-69, 71.

       After the parties briefed the issues, the PCRA court entered an order

denying Appellant PCRA relief. This timely appeal3 follows.
____________________________________________


3Appellant filed a pro se appeal, but was, at the time, represented by counsel,
Kurt T. Lynott, Esquire. Attorney Lynott, however, apparently abandoned
Appellant, as he never withdrew nor did he file a notice of appeal. Upon
docketing statement review, this Court remanded the matter to the lower
court for a Grazier hearing. The court held a hearing and appointed Attorney
DeVita.

  Of course, hybrid representation is impermissible. But here counsel never
filed a notice of appeal, thus Appellant’s pro se notice of appeal would not be
subject to withdrawal or quashal. Cf. Commonwealth v. Cooper, 27 A.3d
994 (Pa. 2011). The interests of fairness and judicial economy weigh in favor
of deeming Appellant’s pro se appeal valid, if it is timely.



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       Prior to addressing the merits of Appellant’s requested appeal, we must

first examine Attorney DeVita’s request to withdraw. Attorney DeVita has

substantially complied with the mandated procedures for withdrawing as

counsel. See Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009)

(articulating Anders requirements); Commonwealth v. Daniels, 999 A.2d

590, 594 (Pa. Super. 2010) (providing that counsel must inform client by letter

of rights to proceed once counsel moves to withdraw and append a copy of

the letter to the petition). Appellant has not filed a timely response to either

of Attorney DeVita’s filings.4




____________________________________________


  Appellant’s pro se appeal was filed on August 8, 2017—34 days after the
filing of the PCRA’s court’s order. While Appellant’s appeal, on its face, appears
to have been untimely filed four days beyond the appeal deadline, Appellant’s
notice of appeal is dated August 1, 2017.

  Pursuant to the prisoner mailbox rule, we consider a prisoner’s appeal filed
the date it is placed into the care of prison authorities for mailing. See
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997). Despite the record
lacking the envelope in which the notice of appeal was mailed, and therefore
the postmark noting the date of mailing, we note that August 5 and 6 of 2017
were weekend days. Thus, in order for Appellant’s notice of appeal to have
reached the court by August 8, 2017, it is highly likely he mailed the notice
on or before August 4, 2017. As such, we deem Appellant’s appeal timely. See
Commonwealth v. Patterson, 931 A.2d 710, 714 (Pa. Super. 2007) (finding
appeal timely, despite the lack of evidence of mailing, where it was probable
that the prisoner mailed notice of appeal within the thirty day appeal window).

4 On March 27, 2018, Appellant filed a motion in this Court, for an extension
of time in which to file a response to Attorney DeVita’s Anders brief. We
granted Appellant’s request and gave him until April 30, 3018 to file his
response. Appellant did not file a response until July 24, 2018. Because this
response was patently untimely, we did not consider it.

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      Counsel has met her technical obligations to withdraw under Anders.

She has identified one issue Appellant believes entitles him to relief—that trial

and appellate counsel rendered ineffective assistance.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). The PCRA court’s

findings will not be disturbed unless the certified record lacks support for the

findings. See Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2011). “Further, the PCRA court’s credibility determinations are binding on

this Court, where there is record support for those determinations.”

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)

(citation omitted).

      We presume counsel provided effective assistance; Appellant has the

burden of proving otherwise. See Commonwealth v. Pond, 846 A.2d 699,

708 (Pa. Super. 2004). “In order for [an a]ppellant to prevail on a claim of

ineffective assistance of counsel, he must show, by      preponderance of the

evidence, ineffective assistance of counsel which … so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place.” Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa.

Super. 2005) (citation omitted). Further,

      [an a]ppellant must plead and prove by the preponderance of the
      evidence that: (1) the underlying legal claim has arguable merit;
      (2) counsel had no reasonable basis for his action or inaction; and

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      (3) [a]ppellant suffered prejudice because of counsel’s action or
      inaction.

Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011) (citations omitted)

      “Arguable merit exists when the factual statements are accurate and

could establish cause for relief. Whether the facts rise to the level of arguable

merit is a legal determination.” Commonwealth v. Barnett, 121 A.3d 534,

540 (Pa. Super. 2015) (citations and internal quotation marks omitted).

“Prejudice is established if there is a reasonable probability that, but for

counsel's errors, the result of the proceedings would have been different. A

reasonable probability is probability sufficient to undermine confidence in the

outcome.” Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super.

2013) (en banc) (citations and internal quotation marks omitted).

      Appellant claims trial counsel rendered ineffective assistance by failing

to raise a Rule 600 claim prior to trial. Additionally, he claims that appellate

counsel rendered ineffective assistance by failing to raise a Rule 600 claim on

appeal. Because Appellant believes that either of these motions would have

resulted in dismissal of his charges, he contends that counsel could not have

had a reasonable basis for failing to do so and that he was prejudiced by these

failures.

      Initially, we note that Appellant cannot succeed on his claim of appellate

counsel ineffectiveness. Rule 600 claims must be raised prior to trial. See

Pa.R.Crim.P. 600(D)(1). As trial counsel admitted he did not file a Rule 600

motion prior to trial, appellate counsel could not properly raise this issue on

appeal. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived

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and cannot be raised for the first time on appeal.”) Therefore, this claim is

meritless. As such, we decline to find appellate counsel ineffective.       See

Commonwealth v. Benner, 147 A.3d 915, 921 (Pa. Super. 2016) (holding

that counsel cannot be deemed ineffective for failing to pursue a meritless

claim).

       Moving to Appellant’s claim of trial counsel ineffectiveness, we note that

Rule 600 of our Rules of Criminal Procedure requires the Commonwealth bring

a defendant to trial within 365 days of the filing of the criminal

complaint. See Pa.R.Crim.P. 600(A)(2)(a).5 This deadline for bringing a

defendant to trial, also known as the adjusted run date, “is calculated by

adding the mechanical run date, i.e., the date 365 days from the complaint,

both excludable and excusable delay.” Commonwealth v. Roles, 116 A.3d

122, 125-126 (Pa. Super. 2015). Excludable time includes delays attributable

to a defendant or his counsel. See Commonwealth v. Matis, 710 A.2d 12,

16 (Pa. 1998). Excusable time includes delays that occur despite the due

diligence of the Commonwealth and beyond its control. See Commonwealth

v. Goldman, 70 A.3d 874, 879 (Pa. Super. 2013). Charges must be dismissed

for failure to abide by Rule 600 only where the Commonwealth fails to bring a

defendant to trial within 365 days, calculated after taking into account all

excusable delays and excludable time. See id., at 880.
____________________________________________


5 The Pennsylvania Supreme Court adopted a new Rule 600, effective July 1,
2013. Here, because the criminal complaint was filed prior to the enactment
of the new rule, we will apply the former version. See Commonwealth v.
Brock, 61 A.3d 1015, 1016 n.2 (Pa. 2013).

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      Because a successful Rule 600 motion would have resulted in the

dismissal of charges before trial, prejudice in a PCRA context will be

established upon a showing of a meritorious claim. See Commonwealth v.

Lynn, 815 A.2d 1053, 1056 (Pa. Super. 2003). Therefore, in order to

determine if trial counsel was indeed ineffective, we must obviously assess if

Appellant's Rule 600 motion would been successful.

      According to Appellant, only 92 days are attributable to him, extending

the Rule 600 deadline to September 18, 2014. Appellant’s calculation stems

from his belief that because he was not aware that trial counsel requested any

periods of delay, he should not be responsible for these periods of delay.

However, a Rule 600 calculation under the previous iteration of the rule

excluded any delay that results from “continuance[s] granted at the request

of the defendant or the defendant’s attorney.” Pa.R.Crim.P. Rule 600(c)(3)(b),

repealed (emphasis added). There was no requirement in the statute that a

defendant be aware of his defense attorney’s requested continuances for the

time to be excludable.

      Additionally, the PCRA court set forth the following calculations:

            Since defendant was formally charged on June 18, 2013, his
      mechanical run date under Rule 600 would be June 18, 2014. In
      his proffered speedy trial rule calculations, defendant concedes
      that 92 days of delay between June 18, 2013 and October 31,
      2013, were attributable to continuances or extensions requested
      by the defense, and as such, those intervals constitute “excludable
      time.” The credible testimony confirmed that the 32 days from
      October 31, 2013, to the originally scheduled trial date of
      December 2, 2013 were likewise excludable since they resulted
      from the defense continuance requests as defense counsel


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     attempted to convince defendant and his family to retain an arson
     expert.

            In addition, the more than seven month period from
     December 2, 2013, through the summer of 2014 was traceable to
     defense counsel’s request, subject to the stipulation that any
     resulting delay was chargeable to defendant, for an “extended”
     trial date so that defense counsel could attempt to convince
     defendant to accept the “excellent” offer that the Assistant District
     Attorney had made for a Veteran’s Court disposition of defendant’s
     case. At most, that seven month period could be characterized as
     judicial delay during which the Commonwealth was trial-ready. As
     such, that interlude would comprise either “excludable time” or
     “excusable delay.”

            By his own admission, defense counsel was physically
     incapable of proceeding to trial from April 2014 to January 2015
     due to his bilateral knee disabilities and subsequent double knee
     replacement surgery. Indeed, the defense requests for
     continuances of the scheduled trial dates during that interval
     expressly confirmed that “[a]ll Rule 600 delays will be attributed
     to the defendant.” As a consequence, those periods of delay from
     April 2014 to January 2015 are likewise “excludable time.”

           Accordingly, after adding the foregoing periods of
     “excludable time” to the “mechanical run date,” as well as those
     additional periods of “excusable delay” to the “adjusted run date,”
     defendant’s commencement of trial on February 11, 2015, was
     well within “the final Rule 600 run date.”

Trial Court Opinion, 7/5/17, at 14-15.

     In ruling against Appellant, the PCRA court obviously credited Attorney

Petorak’s testimony that the defense’s continuance requests constituted a vast

amount of “excludable time” between the filing of charges and the

commencement of trial. The record supports this credibility determination.

Thus, we are bound by that finding.

     As the record contradicts Appellant’s assertion that the Commonwealth

violated Rule 600, we conclude Appellant’s ineffective assistance of trial

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counsel claim lacks arguable merit. Therefore, we conclude that the PCRA

court appropriately dismissed his ineffectiveness claim.

      Order affirmed. Petition to withdraw as counsel granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 09/21/2018




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