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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                  v.                     :
                                         :
TRACEY MARROW,                           :      No. 2009 EDA 2017
                                         :
                       Appellant         :


                 Appeal from the PCRA Order, June 23, 2017,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0006387-2012


BEFORE: DUBOW, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED MARCH 25, 2019

     Tracey Marrow appeals from the June 23, 2017 order entered by the

Court of Common Pleas of Philadelphia County denying his petition filed

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

9546. After careful review, we affirm.

     The PCRA court provided the following factual and procedural history:

           On February 26, 2014, [appellant] entered into a
           plea of nolo contendere to two counts of robbery,
           one count of conspiracy, and one count of possession
           of an instrument of crime.[Footnote 1] On April 1,
           2014, [appellant] was sentenced to an aggregate
           term of eight and one-half to twenty years[] of
           incarceration.

                 [Footnote 1] 18 Pa.C.S.A. § 3701(a)(ii);
                 § 903; § 907[(a)], respectively.

           The facts as set forth in the negotiated plea are as
           follows:
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                On May 12, 2012, at approximately
                11:45      p.m.,    Lacey Walerski    and
                John Buettler[] were in the area of
                2300 East       Allegheny   Avenue      in
                Philadelphia. A red Chevy pickup truck
                pulled up in front of them.          They
                observed [appellant] in the driver’s seat.
                The passenger, Alvin Banks, got out and
                walked towards them.        Alvin Banks
                forced both of them to the ground, pulled
                a gun on them, and took their
                belongings. They observed Alvin Banks
                get back into the vehicle and [appellant]
                drive off.

                If called to testify, Officer Wright would
                testify that approximately 25 minutes
                later he stopped that red pickup truck.
                When he stopped, [appellant] was in the
                passenger’s seat and ran out of the
                vehicle and fled from Officer Wright.
                Officer Wright pursued him and observed
                [appellant] discard a gun. Officer Wright
                later recovered that gun, which turned
                out to be a BB gun. Officer Wright also
                placed Alvin Banks under arrest, who
                was the driver of the vehicle at the time
                the car was stopped. Lacey Walerski
                made positive identifications of both
                defendants.

          Notes of [t]estimony, [2/26/14] at 8-10.

          On February 17, 2015, [appellant] filed a pro se
          PCRA petition. An amended petition was filed by
          court appointed counsel on July 3, 2016.
          [Appellant’s] amended petition claims that [the trial
          court] erred in failing to bring [appellant] to trial in
          violation of his right to a speedy trial under
          Rule 600. Furthermore, [appellant alleged] counsel
          [should be] deemed ineffective for failing to
          challenge this purported error. The Commonwealth
          filed its motion to dismiss on April 4, 2017.


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            After careful review of counsel’s amended petition,
            the Commonwealth’s motion to dismiss, [appellant’s]
            response, and an independent review of the entire
            record, [appellant] was given notice on May 9, 2017
            of [the PCRA court’s] intention to dismiss the petition
            pursuant to Pa.R.Crim.P. 907. [Appellant’s] PCRA
            petition was formally dismissed without an
            evidentiary hearing by order of [the PCRA court] on
            June 23, 2017.      [Appellant] then filed a timely
            appeal to the Superior Court.

PCRA court opinion, 1/18/18 at 1-2 (additional citations omitted).

      On July 11, 2017, the PCRA court issued an order directing appellant

to file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b).    Appellant timely filed a Rule 1925(b) statement on

July 16,   2017.     The   PCRA    court     filed   an   opinion     pursuant   to

Pa.R.A.P. 1925(a) on January 18, 2018.

      Appellant raises the following issue for our review:          “Did the [PCRA

court] err in failing to grant PCRA relief where trial counsel failed to seek

dismissal of the case after [the] case had been delayed longer than

365 days?” (Appellant’s brief at 8.)

      PCRA petitions are subject to the following standard of review:

            “[A]s a general proposition, we review a denial of
            PCRA relief to determine whether the findings of the
            PCRA court are supported by the record and free of
            legal error.” Commonwealth v. Dennis, [] 17 A.3d
            297, 301 ([Pa.] 2011) (citation omitted). A PCRA
            court’s credibility findings are to be accorded great
            deference, and where supported by the record, such
            determinations are binding on a reviewing court.
            Id., at 305 (citations omitted). To obtain PCRA
            relief, appellant must plead and prove by a


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               preponderance of the evidence: (1) his conviction or
               sentence resulted from one or more of the errors
               enumerated in 42 Pa.C.S. § 9543(a)(2); (2) his
               claims have not been previously litigated or waived,
               id., § 9543(a)(3); and (3) “the failure to litigate the
               issue prior to or during trial . . . or on direct appeal
               could not have been the result of any rational,
               strategic or tactical decision by counsel[,]” id.,
               § 9543(a)(4). An issue is previously litigated if “the
               highest appellate court in which [appellant] could
               have had review as a matter of right has ruled on
               the merits of the issue [.]” Id., § 9544(a)(2). “[A]n
               issue is waived if [appellant] could have raised it but
               failed to do so before trial, at trial, . . . on appeal or
               in a prior state postconviction proceeding.” Id.,
               § 9544(b).

Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).

         Under the PCRA, an individual is eligible for post-conviction relief if the

conviction was the result of “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.     42 Pa.C.S.A. § 9543(a)(2)(ii).      When considering whether counsel

was ineffective, we are governed by the following standard:

                     [C]ounsel is presumed effective, and to
                     rebut that presumption, the PCRA
                     petitioner   must    demonstrate     that
                     counsel’s performance was deficient and
                     that such deficiency prejudiced him.
                     Strickland v. Washington, 466 U.S.
                     668, [] (1984). This Court has described
                     the Strickland standard as tripartite by
                     dividing the performance element into
                     two         distinct        components.
                     Commonwealth v. Pierce, [], 527 A.2d
                     973, 975 (Pa. 1987). Accordingly, to
                     prove counsel ineffective, the petitioner


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                 must     demonstrate     that   (1)    the
                 underlying legal issue has arguable
                 merit; (2) counsel’s actions lacked an
                 objective reasonable basis; and (3) the
                 petitioner was prejudiced by counsel’s
                 act or omission.      Id.     A claim of
                 ineffectiveness will be denied if the
                 petitioner’s evidence fails to satisfy any
                 one of these prongs.

           Commonwealth v. Busanet, [], 54 A.3d 34, 45
           (Pa. 2012) (citations formatted). Furthermore, “[i]n
           accord with these well-established criteria for review,
           [an appellant] must set forth and individually discuss
           substantively each prong of the Pierce test.”
           Commonwealth v. Fitzgerald, 979 A.2d 908, 910
           (Pa.Super. 2009).

Commonwealth v. Perzel, 116 A.3d 670, 671-672 (Pa.Super. 2015),

order vacated on other grounds, 166 A.3d 1213 (Pa. 2017).

     In his sole issue on appeal, appellant contends that the PCRA court

erred when it found that appellant’s trial counsel was not ineffective for

failing to seek a dismissal pursuant to Pa.R.Crim.P. 600. (Appellant’s brief

at 14.) The Commonwealth argues that appellant’s claim is not cognizable

under the PCRA. (Commonwealth’s brief at 5.)

     We find that in this context, appellant’s claim is cognizable under the

PCRA because appellant is alleging a violation of his constitutional rights.

See 42 Pa.C.S.A. § 9543(a)(2)(i).

     We shall first determine whether appellant’s claim that trial counsel

was ineffective for failing to pursue a Rule 600 claim has arguable merit.

Preliminarily, we note that the Pennsylvania Rules of Criminal Procedure



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require a defendant to be brought to trial within 365 days from the date the

complaint is filed. Pa.R.Crim.P. 600(A)(2)(a).

            In assessing a Rule 600 claim, the court must
            exclude from the time for commencement of trial
            any periods during which the defendant was
            unavailable,    including any    continuances    the
            defendant requested and any periods for which he
            expressly waived his rights under Rule 600.
            Pa.R.Crim.P. 600(C). “A defendant has no duty to
            object when his trial is scheduled beyond the
            Rule [600] time period so long as he does not
            indicate that he approves of or accepts the delay.”
            Commonwealth v. Taylor, 598 A.2d 1000, 1003
            (Pa.Super. 1991), appeal denied, 613 A.2d 559
            (Pa. 1992) (addressing Municipal Court’s counterpart
            to speedy trial rule).

Commonwealth v. Hunt, 858 A.2d 1234, 1241 (Pa.Super. 2004), appeal

denied, 875 A.2d 1073 (Pa. 2005).

      The comment to Rule 600 provides that “delay in the time of trial that

is attributable to the judiciary may be excluded from the computation of

time.”    Pa.R.Crim.P. 600 cmt., citing Commonwealth v. Crowley, 466

A.2d 1009 (Pa. 1983); see also Commonwealth v. Mills, 162 A.3d 323,

325 (Pa. 2017), citing Commonwealth v. Bradford, 46 A.3d 693, 705 (Pa.

2012) (“periods of judicial delay are excludible from calculations under the

rule”).

      Here, appellant was arrested on May 13, 2012, and the trial began

653 days later on February 25, 2014. As noted by the PCRA court, it:

            reviewed the docket and each of the continuance
            requests in an attempt to properly determine the
            length of time between [a]ppellant’s arrest and trial.


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            Removing all requests that were made for excusable
            reasons, [the PCRA] court has found that
            approximately 48 days are attributable to the
            Commonwealth.     Therefore, the Commonwealth’s
            time had not expired and there was no Rule 600
            violation.

PCRA court opinion, 1/18/18 at 6 (footnote and citations to the record

omitted).

      The PCRA court further provided the following pretrial procedural

history:

            A criminal complaint was filed against [appellant] on
            May 13, 2012. On May 29, 2012, a preliminary
            hearing was held before the Honorable Teresa Deni.
            Judge Deni found the Commonwealth established a
            prima facie case for all but two charges. [Appellant]
            was formally arraigned on June 19, 2012,
            thirty-seven days after the complaint was filed. A
            pretrial conference was held on July 18, 2012,
            twenty-nine days later. At that listing, [appellant]
            requested a continuance for further investigation into
            the case. The matter was continued until August 22,
            2012 and on that date the pretrial conference was
            continued for September 14, 2012. It appears this
            continuance was due to court scheduling.            On
            September 19, 2012 the case was assigned to
            Judge Ehrlich, 129 days later.        At that listing,
            [appellant]    rejected     an    offer   from     the
            Commonwealth and the case was continued for a
            scheduling conference on October 1, 2012.           On
            October 1 , discovery was marked as complete and
                       st

            the case was listed for a motions hearing on May 6,
            2013. Neither [appellant] nor the Commonwealth
            filed any motions before the May [6]th listing and
            trial was scheduled for May 13, 2013.

            On May 13, 2013, the court continued the trial until
            May 16, 2013. On May 16th, [appellant] requested a
            continuance and the matter was relisted for May 24,
            2013. On May 24th, the Commonwealth requested a


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              continuance to work out a non-trial disposition with
              [appellant]. The case was listed for status, six days
              later, on May 30, 2013. On May 30th, the case was
              continued for a status of a non-trial disposition to
              June 13, 2013. The docket does not indicate who
              requested the continuance but it appears it was
              either a joint request or request by [appellant] to
              consider a plea agreement.          On June 13th,
              [appellant]    rejected   an    offer    from     the
              Commonwealth and the case was continued until
              December 20, 2013 for a new motions date. On
              December 20th, the case was continued until
              January 27, 2014 for trial. After the complaining
              witness failed to appear, the Commonwealth
              requested a continuance on January 27th.          The
              matter was continued for twenty-eight days until
              February 24, 2014.      The case was continued to
              February 25, 2014 after [appellant] requested a jury
              trial. On February 25th, a jury panel was selected.
              On February 26, 2014, [appellant] chose to accept
              the Commonwealth’s plea agreement and pleaded
              nolo contendere, 653 days after the criminal
              complaint was filed.

Id. at 6-7.

         Based on our review of the record, we find that continuances from

August 22, 2012 until September 13, 2012; September 19, 2012 until

October 1, 2012; October 1, 2012 until May 6, 2013; May 6, 2013 until

May 13, 2013; June 13, 2013 until December 20, 2013; and December 20,

2013 until January 27, 2014, totaling 487 days, were attributed to the trial

court.    As noted above, continuances and delays caused by the trial court

are excludable under Rule 600.         Additionally, the record reflects that

appellant requested two continuances totaling 43 days, which are likewise

excludable for Rule 600 purposes.       After accounting for excludable time



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under Rule 600 attributable to either the trial court or appellant, appellant

was brought to trial 123 days after his arrest. Accordingly, we find that a

Rule 600 claim would have been futile, and appellant’s claim is without

arguable merit. Therefore, appellant’s PCRA petition must fail.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 3/25/19




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