J-S65042-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DONTE RAPLEY,

                            Appellant                No. 1083 EDA 2014


                   Appeal from the PCRA Order March 4, 2014
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0014040-2007


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

MEMORANDUM BY PLATT, J.:                         FILED DECEMBER 16, 2014

        Appellant, Donte Rapley, appeals from the order dismissing his first

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546, without a hearing. We affirm.

        The charges against Appellant arose from his August 5, 2007 shooting

of the victim, Gaylson Wilson, in the back, resulting in multiple internal

injuries.   On January 29, 2009, a jury convicted Appellant of aggravated

assault, firearm not to be carried without a license, and possessing an

instrument of crime;1 and the trial court found Appellant guilty of possession

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*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2702(a), 6106, and 907(b), respectively.
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of a firearm prohibited.2       The same day, the court ordered a pre-sentence

investigation report and scheduled sentencing for March 17, 2009.        (See

N.T. Trial, 1/29/09, at 19). As a result of its schedule, the court continued

sentencing until March 20, 2009, and Appellant waived the time from March

17 to March 20, 2009 for purposes of Pennsylvania Rule of Criminal

Procedure 704.       (See Trial Court Criminal Docket, at 21).3   Because the

court was unavailable again on March 20, 2009, sentencing was rescheduled

for April 7, 2009, and the Commonwealth issued a writ for Appellant’s

transport from the State Correctional Institution at Graterford to the trial

court for the April hearing.          (See id. at 23; N.T. Sentencing Hearing,

6/30/09, at 5-6).

        However, the Department of Corrections did not transfer Appellant

from state custody to the trial court on April 7, 2009, and when the court
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2
    18 Pa.C.S.A. § 6105.
3
  We remind Appellant’s counsel that “[o]ur law is unequivocal that the
responsibility rests upon the appellant to ensure that the record certified on
appeal is complete in the sense that it contains all of the materials necessary
for the reviewing court to perform its duty.”              Commonwealth v.
Bongiorno, 905 A.2d 998, 1000 (Pa. Super. 2006) (en banc) (citation
omitted). Here, the record provided by Appellant was devoid of the orders
re-scheduling sentencing and did not contain the notes of testimony from
the sentencing hearing. However, in the interest of judicial economy, this
Court requested the items from the trial court. Although we obtained the
hearing transcript, our request for the certified orders has been
unsuccessful. Therefore, because the orders and their contents appear on
the docket, and neither party argues that this information is incorrect, we
will cite to the docket for this material as necessary.




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sought to re-schedule the hearing to May 28, 2009, Appellant’s counsel

requested a continuance until June 30, 2009, and “specifically waived [Rule

704]” for that time-period.        (N.T. Sentencing Hearing, 6/30/09, at 6; see

also PCRA Court Opinion, 6/13/14, at 3-4).

        On June 30, 2009, Appellant moved to dismiss the charges on the

basis of Rule 704, but the court denied the motion and sentenced Appellant

to a term of not less than fifteen nor more than thirty years’ imprisonment.

(See N.T. Sentencing Hearing, 6/30/09, at 5-7, 11, 31-32).         On May 18,

2011, this Court affirmed Appellant’s judgment of sentence and, on

November 2, 2011, the Pennsylvania Supreme Court denied review. (See

Commonwealth v. Rapley, 30 A.3d 540 (Pa. Super. 2011) (unpublished

memorandum), appeal denied, 32 A.3d 1277 (Pa. 2011)).

        On April 2, 2012, Appellant filed a timely pro se PCRA petition. The

court appointed counsel, who filed an amended petition on August 5, 2013,

and the Commonwealth filed a motion to dismiss on December 18, 2013.

On January 31, 2014, the court filed notice of its intent to grant the

Commonwealth’s motion and dismiss Appellant’s petition without a hearing. 4




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4
    See Pa.R.Crim.P. 907(1).




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The PCRA court dismissed the petition on March 4, 2014. Appellant timely

appealed on April 2, 2014.5

       Appellant raises two related questions for our review:

       1.    [Whether] the [PCRA c]ourt err[ed] in failing to grant the
       Appellant’s PCRA [p]etition because [a]ppellate counsel failed to
       raise on direct appeal that the sentencing was not carried out in
       a timely manner pursuant to Pa.R.Cr.P. 704(a)?

       2.     [Whether] the [PCRA c]ourt err[ed] in failing to grant the
       Appellant an evidentiary hearing to determine the length of the
       delay falling outside of Rule 1405(A)’s [sic] 60-day-and-good-
       cause provisions, the reason for the improper delay, the
       [A]ppellant’s timely or untimely assertion of his rights, any
       resulting prejudice to the interests protected by his speedy trial
       and due process rights and whether counsel had any justifiable
       reason for failing to pursue the issue on direct appeal[?]

(Appellant’s Brief, at 8).6

       Our standard of review for an order denying PCRA relief is well-settled:

             We review an order dismissing a petition under the PCRA
       in the light most favorable to the prevailing party at the PCRA
       level. This review is limited to the findings of the PCRA court
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5
  Appellant filed a timely Rule 1925(b) statement on June 5, 2014 pursuant
to the court’s order; the court filed a Rule 1925(a) opinion on June 13, 2014.
See Pa.R.A.P. 1925.
6
  Appellant states that he is relying on the sixty-day requirement of
Pennsylvania Rule of Criminal Procedure 1405(A). (See Appellant’s Brief, at
8). However, this appears to be a citation error because Rule 1405 was
amended and renumbered to Rule 704 on March 1, 2000, and took effect on
April 1, 2001. See Commonwealth v. Anders, 725 A.2d 170, 173 (Pa.
1999). For our purposes, the relevant difference in the two rules is that,
“[w]hile Rule 1405 afforded trial courts sixty days to impose sentence, Rule
704 provides that sentence ‘shall ordinarily be imposed within 90 days of
conviction.’” Commonwealth v. Dozier, 99 A.3d 106, 113 (Pa. Super.
2014) (citing Pa.R.Crim.P. 704(A)(1)).



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      and the evidence of record. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal
      error. This Court may affirm a PCRA court’s decision on any
      grounds if the record supports it. We grant great deference to
      the factual findings of the PCRA court and will not disturb those
      findings unless they have no support in the record. However, we
      afford no such deference to its legal conclusions.

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2013), appeal

denied, 64 A.3d 631 (Pa. 2013) (citations omitted).

      In his first issue, Appellant argues that the PCRA court “should have

granted [him] PCRA relief due to appellate counsel’s failure to raise on

appeal the delay in sentencing[.]” (Appellant’s Brief, at 11; see id. at 11-

16). We disagree.

      “Counsel is presumed to have rendered effective assistance, and, if the

petitioner fails to satisfy any prong of the ineffectiveness inquiry, his claim

will be rejected.”   Commonwealth v. Sattazahn, 952 A.2d 640, 652-53

(Pa. 2008), cert. denied, 556 U.S. 1283 (2009) (citations omitted).          To

warrant relief based on an ineffectiveness claim under the PCRA, Appellant

must prove: “(1) the underlying claim is of arguable merit; (2) counsel’s

performance lacked a reasonable basis; and (3) the ineffectiveness of

counsel caused the petitioner prejudice.”      Commonwealth v. Cook, 952

A.2d 594, 613 (Pa. 2008) (citation omitted).

      The arguable merit of Appellant’s underlying claim depends on whether

Rule 704(A) was violated, thereby contravening his right to a speedy trial.

See Commonwealth v. McLean, 869 A.2d 537, 538 (Pa. Super. 2005)


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(observing that sentencing delay implicates speedy trial rights).             If

Appellant’s right to a speedy trial was not violated, his underlying claim lacks

merit, and he will have failed to establish the first prong of the

ineffectiveness test, resulting in rejection of his allegation. See Sattazahn,

supra at 653.

      Rule 704 provides, in pertinent part, that:

      (A) Time for Sentencing.

            (1) Except as provided by Rule 702(B), sentence in a court
      case shall ordinarily be imposed within 90 days of conviction or
      the entry of a plea of guilty or nolo contendere.

                                     *     *      *

      (B) Oral Motion for Extraordinary Relief.

            (1) Under extraordinary circumstances, when the interests
            of justice require, the trial judge may, before sentencing,
            hear an oral motion in arrest of judgment, for a judgment
            of acquittal, or for a new trial.

Pa.R.Crim.P 704(A)(1), (B)(1).

      As observed in Commonwealth v. Howe, 842 A.2d 436 (Pa. Super.

2004), the comment to Rule 704 provides further guidance on when a

motion for extraordinary relief is appropriate:

      Under paragraph (B), when there has been an error in the
      proceedings that would clearly result in the judge’s granting
      relief post-sentence, the judge should grant a motion for
      extraordinary relief before sentencing occurs. Although trial
      errors may be serious and the issues addressing those errors
      meritorious, this rule is intended to allow the trial judge the
      opportunity to address only those errors so manifest that
      immediate relief is essential. It would be appropriate for counsel
      to move for extraordinary relief, for example, when there has


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      been a change in case law, or, in a multiple count case, when
      the judge would probably grant a motion in arrest of judgment
      on some of the counts post-sentence. Although these examples
      are not all-inclusive, they illustrate the basic purpose of the rule:
      when there has been an egregious error in the proceedings, the
      interests of justice are best served by deciding that issue before
      sentence is imposed. Because the relief provided by this section
      is extraordinary, boilerplate motions for extraordinary relief
      should be summarily denied.

Howe, supra at 441 (quoting Pennsylvania Rule of Criminal Procedure 704,

Comment).

      Therefore, we must consider whether “there has been an egregious or

manifest error in the proceedings.” Id. To do so, and to determine whether

Appellant’s speedy trial rights were violated, we look at four factors: “the

length of the delay, the reason for the delay, the defendant’s assertion of his

right, and the prejudice to the defendant.” McLean, supra at 539.

      We first address the length of the delay.           While a sentence is

“ordinarily” imposed within 90 days of when a jury renders its verdict, in this

case the trial court imposed the sentence 152 days after Appellant’s

conviction, or sixty-two days beyond the Rule 704 deadline.          This delay,

although relatively brief, is sufficient to warrant further inquiry.          See

Pa.R.Crim.P 704(A)(1).

      We next consider the reason for the delay.        Protecting a defendant

from “inexcusable or intentional delay on the part of the court or the

Commonwealth” protects a defendant’s right to a speedy trial.          McLean,

supra at 539 (citation omitted).


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     Here, based on our review of the record, we conclude that any delay

was either waived by Appellant or was excusable and unintentional. See id.

Specifically, Appellant waived the delay in his sentencing between March 17

and 20, 2009, which was due to the court’s schedule. (See PCRA Ct. Op., at

3; see also Criminal Docket, at 21).      Because the court again was not

available on March 20, 2009, it continued sentencing until April 7, 2009, and

the Commonwealth prepared a writ for Appellant’s transport from Graterford

prison for the hearing.    (See Criminal Docket, at 23; see also N.T.

Sentencing, 06/30/09, at 5-6).   However, on April 7, 2012, Appellant was

not transported from state prison by the Corrections Department.         (See

PCRA Ct. Op., at 3-4). When the court attempted to re-schedule the hearing

for May 28, 2009, Appellant waived the period from May 28th to June 30th

due to counsel’s unavailability. (See N.T. Sentencing, 6/30/09, at 6).

     In short, our review of the record reveals that Appellant was sentenced

sixty-two days beyond the 90-day requirement of Rule 704. Of that sixty-

two day delay, Appellant waived thirty-six days (March 17, 2009 to March

20, 2009, and May 28, 2009 to June 30, 2009), resulting in a twenty-six day

violation of Rule 704 that was unintentional and excusable because it was

created by the Department of Corrections and the trial court’s full docket.

See McLean, supra at 539; see also Diaz, supra at 879-80 (good cause

for 258 day sentencing delay shown where caused by defendant’s requested




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postponement, administrative obstacles due to his prison transfers, and trial

judge’s illness).

      We next turn to the timeliness of Appellant’s assertion of his speedy

trial rights. See id. Appellant did not file a motion seeking the imposition of

his sentence, and he asserted his right to a speedy trial only after the delay

had ended.      (See N.T. Sentencing Hearing, 6/30/09, at 5); see also

Commonwealth v. Glass, 586 A.2d 369, 372 (Pa. 1991) (defendant’s

failure to file petition seeking imposition of sentence or raise then-applicable

Rule 1405 issue until sentencing mitigated against speedy trial claim).

Because this Rule 704 claim came at the end of the delay, we determine that

Appellant did not make a prompt assertion of his rights.             See McLean,

supra at 539; Glass, supra at 372.

      Finally, Appellant has failed to meet his burden to establish prejudice.

See McLean, supra at 539. When Appellant made his original motion to

dismiss on the basis of Rule 704, he stated that he was prejudiced because

he did not receive credit for time served between the verdict and his

sentencing.         (See   N.T.   Sentencing,   6/30/09,   at   5,   7;   see   also

Commonwealth’s Brief, at 13). The trial court rejected that claim, accurately

observing that “the prison system’s ability to properly allocate time credit on

this case is not affected by the passing of Rule 704’s 90 day window.” (Trial

Court Opinion, 5/28/10, at unnumbered page 10).




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       For the first time, in his PCRA petition, Appellant claimed that he was

prejudiced by the sentencing delay “because his elderly [m]other who lived

in South Carolina was prepared to come to the sentencing to testify on his

behalf and was unable to do so because of the delay.”         (Amended PCRA

Petition, 8/05/13, at unnumbered page 2 ¶ 7(2)). However, Appellant failed

to explain how the delay affected his mother’s ability to attend the

sentencing hearing or why her testimony would have altered his sentence.

(See id.; see also Memorandum of Law, 8/05/13, at 1-5).              Therefore,

Appellant failed to prove that he actually was prejudiced by the sentencing

delay beyond the Rule 704 deadline. See McLean, supra at 539; see also

Anders, supra at 173 (defendant must show actual prejudice suffered from

violation of sentencing deadline).7 Hence, we conclude that “there has [not]

been an egregious or manifest error in the proceedings” and Appellant was

not entitled to relief on his Rule 704 claim.      Pa.R.Crim.P. 704, Comment;

see also Howe, supra at 441; McLean, supra at 539.

       Accordingly, because counsel cannot be ineffective for failing to raise a

meritless claim, the PCRA court properly found that Appellant has failed to

meet his burden of proof to support his allegation. See Rykard, supra at



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7
  Anders relied on Pennsylvania Rule of Criminal Procedure 1405, but, as
stated previously, this Rule was renumbered to Rule 704 and contained the
same relevant language.



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1183; see also Sattazahn, supra at 652-653; Cook, supra at 613.

Appellant’s first issue does not merit relief.

       In his second issue, Appellant argues that the court “should have

granted [his] request for an evidentiary hearing” because “[w]hether or not

there was any rational, strategic or tactical decision by counsel to fail to

litigate the issues raised in the PCRA petition is a material issue of fact.”

(Appellant’s Brief, at 14). Appellant’s issue lacks merit.

       It is well-settled that “[t]here is no requirement that the PCRA court

hold a hearing on every issue a petitioner raises.        The rules mandate a

hearing only on genuine issues of material fact.” Commonwealth v. Clark,

961 A.2d 80, 86 (Pa. 2008), cert. denied, 558 U.S. 1082 (2009) (citations

and internal quotation marks omitted).

       In the present case, the court properly found that Appellant’s petition

failed to set forth an underlying claim of arguable merit where Appellant was

not entitled to Rule 704 relief.          (See PCRA Ct. Op., at 2).   Therefore,

because counsel could not be found ineffective for failing to raise a meritless

claim, the court did not err when it denied Appellant a hearing. 8          See

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8
   We also are not legally persuaded by Appellant’s reliance on
Commonwealth v. Padden, 783 A.2d 299 (Pa. Super. 2001), because the
facts of that case are distinguishable. (See Appellant’s Brief, at 13-14). In
Padden, because the record was “silent as to the reason for the
[sentencing] delay,” a panel of this Court remanded for an evidentiary
hearing. Padden, supra at 315. However, as detailed above, the record
here contains the reasons for the sentencing delay, Appellant failed to make
(Footnote Continued Next Page)


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Rykard, supra at 1183; see also Clark, supra at 86; Sattazahn, supra

at 652-53; Cook, supra at 613. Appellant’s second issue lacks merit.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2014




                       _______________________
(Footnote Continued)

a prompt assertion of his rights, and he failed to establish prejudice.
Therefore, remand for a hearing is not necessary.



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