J-S62003-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

THOMAS DREW,

                        Appellant                      No. 1300 EDA 2013


           Appeal from the PCRA Order entered April 12, 2013,
          in the Court of Common Pleas of Philadelphia County,
          Criminal Division, at No(s): CP-51-CR-1302450-2006


BEFORE: ALLEN, OLSON, and OTT, JJ.

MEMORANDUM BY ALLEN, J.:                             FILED OCTOBER 06, 2014



hearing, his petition filed pursuant to the Post Conviction Relief Act

                                   -46. We affirm.

     The pertinent facts and procedural history are as follows:

           On November 8, 2005, using a confidential informant
        (CI), police conducted a controlled buy of heroin at
                                            rd
                                               St. in Philadelphia.
        Immediately after the controlled buy, Appellant was
        arrested outside his residence while in possession of the
        pre-
        property, the police then executed an anticipatory search
        warrant on the premises. The warrant indicated that the
        place to be searched was the second floor of the premises.
        Police did not find contraband on the second floor. They
        did, however, unlock a door on the second floor using

        leading to a third-floor kitchen. Police recovered a large
        quantity of heroin from a bucket in this kitchen.
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             Appellant was charged with, inter alia, possession of a
         controlled substance with intent to deliver and [criminal]
         use of a communication facility. At trial, Appellant wanted
         to introduce testimony from the CI. The CI was apparently
         prepared to state that he did not buy drugs from Appellant
         on the day in question. Before appearing in front of the
         jury, however, the CI asserted his Fifth Amendment rights.

            The trial court held an in camera hearing and concluded
         that:
         was valid because his testimony could expose him to

         incredible, and actually hurtful to the defense. The court
         ordered that the witness could not testify.

            On October 11, 2007, following a jury trial, Appellant
         was convicted of various drug charges. On November 21,
         2007, the court imposed an aggregate prison term of 7½
         to 15 years. This appeal followed.

Commonwealth v. Drew, 981 A.2d 916 (Pa. Super. 2009), unpublished

memorandum at 1-2 (footnote omitted).



sentence. Drew, supra. On February 12, 2010, our Supreme Court denied

                                             Commonwealth v. Drew, 989

A.2d 915 (Pa. 2010).

      On May 17, 2010, Appellant filed a pro se PCRA petition.         Although

Appellant had originally retained counsel to assist him, the PCRA court later

appointed a succession of counsel. Upon motions, the PCRA court permitted

the first two court-                                                          -




counsel had to withdraw for medical reasons.           Ultimately, Appellant

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requested to proceed pro se.          On January 10, 2013, following a Grazier1



adopted the amended petition filed by his previous counsel.

       On March 12, 2013, after




hearing. Appellant filed a response on March 25, 2013. After considering




Thereafter, the PCRA court appointed current PCRA counsel.

                                                              to Remand to the



petition involved a missing transcript from a pre-

Rule 600 motion. By order entered October 21, 2013, this Court remanded

the case, directing either the transcription of the notes at issue or the filing

of a Pa.R.A.P. 1923 statement in lieu of the transcript. We further directed

that once the transcript or statement was filed, that Appellant file a

supplemental concise statement, and the PCRA court file a supplemental

opinion, pursuant to Pa.R.A.P. 1925.



____________________________________________


1
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).




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J-S62003-14




evidentiary hearings.    At the first hearing, the parties discussed whether

                                                   el informed the PCRA court

that Appellant was asserting no pre-trial hearing on his Rule 600 issue had

ever occurred. See N.T., 11/26/07, at 4-29. The trial/PCRA court stated its

distinct belief that a pre-trial hearing had occurred, citing a docket entry that

such hearing was held on January 26, 2007. Id. The trial/PCRA court could

not recall, however, whether Appellant had been present for the hearing.

Id. Also, the court reporter who had been assigned to the Rule 600 hearing

had died, and the notes of testimony were not preserved.             Id.     The



any hearing necessary to reconstruct the record. Id.

      Subsequently, the trial/PCRA court held three hearings.       At the third

hearing,



the Commonwealth did not present any witnesses, but he could not

remember the averments made by the prosecutor.             In addition, although



Commonwealth had exercised due diligence, he could not remember the

                                                    -14.

      At the final hearing on December 20, 2013, PCRA counsel presented

the PCRA court with the requested Pa.R.A.P. 1923 statement.          Thereafter,

both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

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     Appellant raises the following issues:

        I. Did the [PCRA] court err in denying [Appellant] an
        evidentiary hearing?

        [II.] Was appellate defense counsel on appeal from the
        judgment of sentence ineffective for not raising and
        briefing the issue of trial court error in not dismissing the
        charges for lack of speedy/prompt trial under Rule 600?

        [III.] Did [the PCRA] court err in not allowing [Appellant]
        to be present at the four hearings that were used to create
        a statement in absence of transcript?




whether the determination of the PCRA court is supported by the evidence of

record and is free of legal error.   Commonwealth v. Reaves, 923 A.2d



PCRA court, and these findings will not be disturbed unless they have no

                                     Commonwealth v. Daniels, 947 A.2d

795, 798 (Pa. Super. 2008), citing Commonwealth v. McClellan, 887 A.2d



hearing on a PCRA petition, and if the PCRA court can determine from the

record that no genuine issues of material fact exist, then a hearing is not

              Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.

                                              on to decline to hold a hearing if



                            Commonwealth v. Walls, 993 A.2d 289, 295



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J-S62003-14


                                                                           t

to function as a fishing expedition for any possible evidence that may

                                                           Commonwealth v.

Jones

to state a claim for post-conviction r

to an evidentiary hearing. Commonwealth v. Clark, 961 A.2d 80, 94 (Pa.

2008).



we apply the following principles. Counsel is presumed to be effective, and

Appellant has the burden of proving otherwise. Commonwealth v. Pond,

846 A.2d 699, 708 (Pa. Super. 2004).

             In order for Appellant to prevail on a claim of ineffective
         assistance of counsel, he 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.
         Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326,
         333 (1999).        Appellant must demonstrate: (1) the
         underlying claim is of arguable merit; (2) that counsel had
         no reasonable strategic basis for his or her action or
         inaction; and (3) but for the errors and omissions of
         counsel, there is a reasonable probability that the outcome
         of the proceedings would have been different. Id. The
         petitioner bears the burden of proving all three prongs of
         the test. Commonwealth v. Meadows, 567 Pa. 344, 787
         A.2d 312, 319-20 (2001).

Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005). In

assessing a claim of ineffectiveness, when it is clear that an appellant has

failed to meet the prejudice prong, the court may dispose of the claim on

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that basis alone, without a determination of whether the first two prongs

have been met.     Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa.

1995).    Counsel cannot be deemed ineffective for failing to pursue a

meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super.

2003) (en banc), appeal denied, 852 A.2d 311 (Pa. 2004).



claims that the PCRA court erred in denying him an evidentiary on his

layered claim of ineffectiveness for failing to raise/preserve a claim that trial

counsel was ineffective for no                                                  -

trial motion for dismissal of the charges pursuant to Pa.R.Crim.P. 600.

Appellant asserts that his right to appeal this issue should be reinstated nunc

pro tunc. According to Appellant:

            [T]he trial court made its ruling denying the motion to
         dismiss the charges in the erroneous belief that a second
         complaint had been filed against [Appellant], when no
         second complaint was ever filed and because of the

         ready for trial in the future, which is not the correct

         speedy/prompt trial had been violated.




days,

may apply to the court for an order dismissing the charges with prejudice on



whether a technical violation of Rule 600 . . . has occurred is to calculate the

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J-S62003-14



                          Commonwealth v. Preston, 904 A.2d 1, 11 (Pa.

Super. 2006) (en banc).    Here, the mechanical run date is calculated 365

days from the date the criminal complaint was filed against Appellant. See




Preston                                                             Id.

      Rule 600(C)(3) excludes any delay resulting from defense requests or




                                                                takes into

account delays which occur as a result of circumstances beyond the

                                                       Commonwealth v.

Martz, 926 A.2d 514, 517-18 (Pa. Super. 2007) (citation omitted). Finally,

even where a Rule 600 violat

charges should be denied if the Commonwealth exercised due diligence and

the circumstances occasioning the postponement were beyond the control of

                      Id. at 518 (citation omitted).

      The PCRA court explained why an evidentiary hearing was not required

in this case:

             In the case at bar, [Appellant] was arrested and
          charged with [drug-related charges] on November 8,
          2005.    After several continuance requests by the
          Commonwealth, the matter was discharged on July 25,
          2006. On August 30, 2006, [Appellant], who was still in
          custody, was re-arrested by the Commonwealth for the

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J-S62003-14


         same charges. All of the parties agreed that if the run
         date commenced from the filing of the second complaint
         on August 30, 2006, then there was no violation of Rule
         600; however, if the clock ran from the filing of the original
         complaint on November 8, 2005, then the trial would have
         been held beyond the adjusted run date under the Rule.
         Accordingly, it was undisputed that the merits of

         Commonwealth exercised due diligence in prosecuting the
         original complaint. [Commonwealth v. Peterson, 19
         A.3d 1131, 1136 (Pa. Super. 2010) (en banc), appeal
         denied, 44 A.3d 655 (Pa. 2012]. Because the trial court
         found that the Commonwealth had exercised such


            In the PCRA petition, [Appellant] repeats the argument
         in his Rule 600 motion that the delay in bringing him to


         nowhere in his PCRA Petition, [Rule] 907 Response, or
         [Pa.R.A.P. 1925(b) statement] does [Appellant] aver how

         prior to trial was incorrect.   Having failed even to allege

         incorrect or unsupported by the record, [Appellant] failed
         to meet his burden [of establishing] that his Rule 600
         claim had arguable merit. Accordi
         of appellate counsel ineffectiveness was properly rejected
         without a hearing.

PCRA Court Opinion, 7/10/13, at 6-7 (citations omitted).        See also N.T.,

12/2/13, at 12-15 (PCRA court discussing its original findings regarding the

Co

complaint).



initially note, despite indications within the record to the contrary, Appellant

maintains on appeal that a second complaint was never filed.         See, e.g.,



                                     -9-
J-S62003-14



1/26/07, Petition to Dismiss Charges Pursuant to Pa.R.Crim.P. 600.          In




claim that appellate and/or trial counsel was ineffective for failing to pursue

a Rule 600 violation, thereby necessitating an evidentiary hearing.          A

defendant claiming he or she received the ineffective assistance of counsel

must allege sufficient facts from which a court can determine c

effectiveness.    Pa.R.Crim.P. 902(A)(12); see also Commonwealth v.

Pettus, 424 A.2d 1332 (Pa. 1981) (stating that a defendant may not argue



right to a prompt/speedy trial under the Rule was violated because the

Commonwealth did not prove the delays in the case were beyond its



calculations of an adjusted run date. Even had he done so, he would not be

                                                   -arrest and the filing of a

new complaint.

      In sum, because Appellant has failed to establish that his Pa.R.Crim.P.

600 claim has arguable merit, his claim of ineffectiveness regarding

appellate counsel fails. Loner, supra.

      In his remaining issue, Appellant challenges the procedure used to

construct his Pa.R.A.P. 1923 statement in the absence of a transcript.



participate [si

                                    - 10 -
J-S62003-14



have contributed to the fairness of the procedure because consultation

between [PCRA counsel] and [Appellant] at the four hearings to reconstruct

the transcript is required to reconstruct the re

      In its supplemental Pa.R.A.P. 1925(a) opinion, the PCRA court found




         any stage of the criminal proceeding that is critical to its
         outcome if his presence would contribute to the fairness of
         the procedure       Commonwealth v. Hunsberger, 58
         A.3d 32, 37 (Pa. 2012) (quoting Kentucky v. Stincer,
         482 U.S. 730, 745 (1987) (emphasis added).            Here,
                                   ould not have contributed to the
         fairness of the procedure.        [Appellant] has already
         repeatedly informed both counsel and the PCRA court that
         he had no recollection of being present for the Rule 600
         hearing in question. Therefore, his presence at a series of
         listings whose sole purpose was the reconstruction of the
         record of that hearing would have in no way contributed to
         the fairness of the procedure.

             Moreover, [Appellant] was in custody in SCI Coal
         Township, and the Court was facing a 60-day deadline for
         obtaining the [Rule] 1923 statement.       Under these
         circumstances, given the schedules of counsel and the

         for the four listings during which the Rule 1923 issues
         were addressed.

             In any event, [Appellant] was not prejudiced by his
         failure to attend the hearings. No relief is due.

PCRA Court Opinion, 2/11/14, at 7.




                                     - 11 -
J-S62003-14




petition without a hearing, and denying Appellant post-conviction relief.

      Order affirmed.

      Judge Ott joins the disposition.

      Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2014




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