J-S45011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    PERON MCCLENNY                             :
                                               :
                      Appellant                :       No. 2199 EDA 2016

                    Appeal from the PCRA Order July 7, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0006924-2007


BEFORE:      GANTMAN, P.J., PANELLA, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.:                          FILED OCTOBER 02, 2017

        Appellant, Peron McClenny, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which denied his first petition

brought pursuant to the Post Conviction Relief Act.1 We affirm.

        In its opinion, the PCRA court fully and correctly sets forth the relevant

facts and procedural history of this case.         Therefore, we have no need to

restate them.       We add Appellant timely filed a pro se PCRA petition on

September 21, 2012; the court appointed counsel, who filed an amended

petition on July 10, 2014. Following hearings, the PCRA court dismissed the

petition on July 7, 2016. Appellant timely appealed on July 13, 2016. The

____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-S45011-17


court ordered Appellant, on September 14, 2016, to file a concise statement

of errors complained of on appeal per Pa.R.A.P. 1925(b).   After the PCRA

court granted an extension, Appellant timely complied on October 19, 2016.

     Appellant raises four issues for our review:

        WHETHER THE PCRA COURT COMMITTED ERROR IN
        FAILING TO RESENTENCE [APPELLANT] WHEN PURSUANT
        TO 42 PA.C.S.A. § 9712 HE RECEIVED A MANDATORY 5 TO
        10 YEAR SENTENCE ON KIDNAPPING (18 PA.C.S.A. §
        2901(A)(3)) AND A 5 TO 10 YEAR SENTENCE ON ROBBERY
        (18 PA.C.S.A. § 3701), ORDERED TO RUN CONSECUTIVE,
        WHERE THE CHARGES AROSE OUT OF THE SAME
        INCIDENT, AND WHERE THE SENTENCE IMPOSED
        VIOLATED ALLEYNE[ V. UNITED STATES, ___ U.S. ___,
        133 S.CT. 2151, 186 L.ED.2D 314 (2013)], PARTICULARLY
        WHERE THE CLAIM WAS RAISED DURING A TIMELY FILED
        PCRA PETITION…STILL UNDER REVIEW WHEN THE
        DECISION IN ALLEYNE…WAS RENDERED?

        WHETHER THE PCRA COURT ERRED IN FAILING TO GRANT
        [APPELLANT] A NEW TRIAL, OR MINIMALLY AN
        EVIDENTIARY HEARING, WHERE [APPELLANT]’S RIGHT TO
        CONFRONTATION WAS VIOLATED WHEN TRIAL COUNSEL
        INEFFECTIVELY STIPULATED TO DNA RESULTS WITHOUT
        CONSULTING WITH [APPELLANT], AND WITHOUT FIRST
        DETERMINING WHETHER DNA WAS ABSENT OR PRESENT
        OF A SECOND MALE OR WHETHER THE DNA TEST
        INCLUDED ANALYSIS OF [VICTIM]’S MOUTH SPECIFICALLY
        WHERE [VICTIM] TESTIFIED SHE DID NOT HAVE ORAL
        SEX WITH EITHER MALE AND THAT BOTH MALES RAPED
        HER, AND WHERE ULTIMATELY DURING A POST-
        SENTENCE MOTION THE DNA SPECIALIST DID NOT
        APPEAR IN COURT, CLAIMED NO ADDITIONAL TEST
        COULD BE PERFORMED, AND WHERE THE DEFENSE OF
        CONSENSUAL CONTACT WOULD BE ENHANCED HAD
        COMPLETE DNA TESTING BEEN PRESENTED AT TRIAL,
        WHICH WOULD HAVE AFFECTED THE OUTCOME OF THE
        TRIAL?

        WHETHER THE PCRA COURT ERRED IN FAILING TO FIND
        THAT [APPELLANT] DID NOT KNOWINGLY, VOLUNTARILY,

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           AND INTELLIGENTLY WAIVE A JURY TRIAL WHERE AN
           INADEQUATE COLLOQUY WAS CONDUCTED, AND WHERE
           A JURY WAIVER FORM WAS NOT COMPLETED BY
           [APPELLANT] AND REVIEWED BY THE COURT?

           WHETHER THE PCRA COURT ABUSED ITS DISCRETION BY
           INCORRECTLY CALCULATING THE TIME PURSUANT TO A
           RULE 600 MOTION WHERE 702 DAYS PASSED PRIOR TO
           TRIAL WITH 655 DAYS ATTRIBUTABLE TO THE
           COMMONWEALTH, AND IN FAILING TO FIND THAT TRIAL
           COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE A
           RULE 600 CHALLENGE PRIOR TO THE TRIAL IN THIS
           MATTER, AND THAT APPELLATE COUNSEL PROVIDED
           INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO
           RAISE THE CHALLENGE ON APPEAL, ALL IN VIOLATION OF
           U.S. CONST. AMEND. V, VI, AND XIV, AND…PA. CONST.
           ART. I, SEC. 9?

(Appellant’s Brief at 4-5).2

        Our standard of review of the denial of a PCRA petition is limited to

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v.

Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959

A.2d 319 (2008). This Court grants great deference to the findings of the

PCRA     court   if   the record     contains any support for those         findings.

Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied,

593 Pa. 754, 932 A.2d 74 (2007).               A petitioner is not entitled to a PCRA

hearing as a matter of right; the PCRA court can decline to hold a hearing if

there is no genuine issue concerning any material fact, the petitioner is not

____________________________________________


2
    For purposes of disposition, we have reordered Appellant’s issues.



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entitled to PCRA relief, and no purpose would be served by any further

proceedings. Commonwealth v. Hardcastle, 549 Pa. 450, 701 A.2d 541

(1997).       If the court conducts hearings, “as with any other credibility

determination, where the record supports the PCRA court’s credibility

determinations,      those   determinations        are   binding”   on      this   Court.

Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79 (1998), cert.

denied, 528 U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 (1999).                    Under the

PCRA, “an issue is waived if the petitioner could have raised it but failed to

do so before trial, at trial, during unitary review, on appeal or in a prior state

postconviction proceeding.” 42 Pa.C.S.A. § 9544(b).

      The      law   presumes     counsel    has   rendered     effective    assistance.

Commonwealth v. Gonzalez, 858 A.2d 1219 (Pa.Super. 2004), appeal

denied, 582 Pa. 695, 871 A.2d 189 (2005).                 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. Commonwealth v. Turetsky, 925 A.2d 876 (Pa.Super.

2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007).                  The petitioner

must demonstrate: “(1) the underlying claim is of arguable merit; (2)

…counsel had no reasonable strategic basis for his…action or inaction; and

(3) but for the errors and omissions of counsel, there is a reasonable


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probability that the outcome of the proceedings would have been different.”

Id. at 880. “The petitioner bears the burden of proving all three prongs of

the test.”     Id.   “If a petitioner fails to meet any elements of the

[ineffectiveness] test, his claim must fail.” Commonwealth v. Burkett, 5

A.3d 1260, 1272 (Pa.Super. 2010). See also Commonwealth v. Chmiel,

612 Pa. 333, 362, 30 A.3d 1111, 1128 (2011) (explaining boilerplate

allegations and bald assertions of no reasonable basis and/or ensuing

prejudice cannot satisfy petitioner’s burden of proving ineffectiveness).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Michael

Erdos, we conclude Appellant’s first and second issues merit no relief. The

PCRA court opinion comprehensively discusses and properly disposes of

Appellant’s first two issues. (See PCRA Court Opinion, filed December 13,

2016, at 4, 8-10) (finding: (1) Alleyne does not apply retroactively on

collateral review; although sentencing court inquired as to mandatory

sentences for Appellants convictions, court did not apply mandatory

minimum      sentences;   Appellant   would   have   received   same   sentence

regardless of any mandatory minimum sentences; (2) DNA test results from

oral swab of Victim produced trace amount of sperm; number of sperm was

so small that DNA analysts could not generate DNA profile; miniscule

amount of sperm indicated sperm could have been present as result of

transfer or from different sexual encounter; Appellant failed to show


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reasonable probability that but for trial counsel’s stipulation to DNA test

results at trial, trial outcome would have differed; trial counsel’s actions did

not prejudice Appellant and did not amount to ineffectiveness). The record

supports the PCRA court’s rationale. Accordingly, as to Appellant’s first and

second issues, we affirm on the basis of the PCRA court opinion.

      In his third issue, Appellant argues the trial court failed to ensure

Appellant knowingly, voluntarily, and intelligently waived his right to a jury

trial. Appellant asserts the record contains no written jury trial waiver form

and no reference to a written waiver form exists in the trial transcript.

Appellant also avers the oral waiver colloquy the court conducted was

insufficient. Appellant submits trial counsel also failed to ensure Appellant

knew his jury-trial rights.   Appellant claims he would not have waived his

jury trial rights if he had known the differences between a jury trial and a

bench trial. Appellant claims trial counsel did not attempt to augment the

oral colloquy and did not object to the court’s oral colloquy.        Appellant

contends trial counsel’s inaction amounts to an absence of counsel and a

violation of Appellant’s constitutional right to counsel at trial.    Appellant

concludes this Court should vacate his convictions and dismiss the charges,

or alternatively, vacate and remand for a new trial. We disagree.

      Both the federal and Pennsylvania Constitutions guarantee criminal

defendants the right to a jury trial. See U.S. Const. amend. VI; Pa. Const.

art. I, § 6.    Pennsylvania Rule of Criminal Procedure 620 governs a


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defendant’s waiver of his right to a jury trial and provides:

         Rule 620. Waiver of Jury Trial

         In all cases, the defendant and the attorney for the
         Commonwealth may waive a jury trial with approval by a
         judge of the court in which the case is pending, and elect
         to have the judge try the case without a jury. The judge
         shall ascertain from the defendant whether this is a
         knowing and intelligent waiver, and such colloquy shall
         appear on the record. The waiver shall be in writing, made
         a part of the record, and signed by the defendant, the
         attorney for the Commonwealth, the judge, and the
         defendant’s attorney as a witness.

Pa.R.Crim.P. 620. Notwithstanding the language of Rule 620, our Supreme

Court has explained the waiver colloquy is purely a procedural device; it

does not share the same status as the actual constitutional right to a jury

trial. Commonwealth v. Mallory, 596 Pa. 172, 189-90, 941 A.2d 686, 697

(2008), cert. denied, 555 U.S. 884, 129 S.Ct. 257, 172 L.Ed.2d 146 (2008)

(stating: “A waiver colloquy is a procedural device; it is not a constitutional

end or a constitutional right”). “The absence of an on-the-record colloquy

concerning the fundamentals of a trial by jury does not prove, in an absolute

sense, that a defendant failed to understand the right he waived by

proceeding non-jury.” Id. at 190, 941 A.2d at 697. Waivers can occur in

the absence of a colloquy by conduct, through implication, or from

circumstances showing the defendant knowingly and voluntarily relinquished

his right to a trial by jury. Id. at 189-90, 941 A.2d at 697. Thus, claims

raised on collateral review alleging counsel’s ineffectiveness in relation to a

jury-trial waiver do not directly call into question a defendant’s right to

                                     -7-
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counsel or Rule 620. Id.

      Instead, claims of this nature should be analyzed as in any other

ineffectiveness of counsel case. Commonwealth v. Spotz, 610 Pa. 17, 51,

18 A.3d 244, 263 (2011). That is, an inadequate or lacking waiver colloquy

is not alone conclusive proof that counsel was ineffective; instead, courts

must examine the totality of the relevant circumstances. Mallory, supra at

191, 941 A.2d at 698.        These circumstances include “the defendant’s

knowledge of and experience with jury trials, his explicit written waiver (if

any), and the content of relevant off-the-record discussions counsel had with

his client.” Id. (emphasis added).

      To succeed ultimately on a claim that counsel was ineffective for failing

to object to an inadequate oral waiver colloquy (which in turn led to the

entry of unknowing and involuntary jury trial waiver), the defendant must

plead and prove that counsel’s ineffectiveness caused the defendant to

waive his constitutional right to a jury trial and prejudiced the defendant.

Id. at 201, 941 A.2d at 704.     Prejudice in this context means there is a

reasonable probability that, absent counsel’s ineffectiveness, the defendant

would not have waived his right to a jury trial. Id.

      Instantly, in its opinion, the PCRA court addressed Appellant’s third

issue as follows:

         [Appellant’s] claim that the trial court erred because
         [A]ppellant did not knowingly, voluntarily, and intelligently
         waive his right to a jury trial is waived for purposes of the
         PCRA because he did not raise the claim either at trial or

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       on direct appeal. 42 Pa.C.S.[A.] § 9544(b)…. …

       On the other hand, Appellant has properly raised the issue
       of ineffective assistance of counsel. …

                               *    *    *

       … Prior to the Commonwealth calling the first witness, the
       trial court asked:

          THE COURT: Before we even get to that, sir, is it
          your own personal choice to have a waiver trial
          instead of a jury trial?

          [APPELLANT]: Yes.

          THE COURT: Okay. Nobody forced you to do that or
          promised you or anything, did they?

          [APPELLANT]: No.

          THE COURT: So I’ll accept your comment that it’s
          your own choice and you did it knowingly,
          intelligently, and voluntarily. …

       N.T. [Trial] 4/30/2009, at 6-7. This exchange, on its face,
       fails to establish that Appellant understood the
       fundamental elements of a jury trial.

       However, this is not enough to establish that Appellant’s
       constitutional right to a jury trial was violated. …

       … Here, while Appellant is not a career criminal, prior to
       being charged in the present case he exercised his right to
       a jury trial after which he was found guilty of sexual
       assault and served a state sentence.            …     As a
       result…Appellant experienced firsthand the fundamental
       essentials of a jury trial that he now denied having any
       knowledge of, including choosing a jury from members of
       the community, participating in the selection of the panel,
       and having a unanimous jury verdict. While serving that
       sentence in prison, Appellant got his G.E.D. and educated
       himself. Appellant’s ability to get his G.E.D. and his well-
       written pro se PCRA petition suggest that he is an

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       intelligent    and     self-sufficient  individual   with    an
       understanding of the fundamentals of our criminal justice
       system and the ability to conduct legal research. In his
       PCRA petition, he states that prior to trial he asked his
       attorney to petition the court for nominal bail so that he
       could “aid [him]self with further investigation and legal
       fees in order to prepare for a proper defense,” which
       suggests he took an active role in the defense process.
       Appellant asserts that his attorney advised him to waive
       his right to a jury trial and that his attorney assured him
       “that before officially waiving [his] right to a jury trial…the
       court…will go over the essential ingredients, [his] rights,
       and that [he] would…sign a waiver form after the court
       explained it to [him] in detail.” Despite believing, after the
       assurance from his attorney, that this conversation with
       the [c]ourt would take place, Appellant elected to proceed
       with a waiver trial even without signing a written colloquy
       and in the absence of a detailed oral colloquy. Based on
       his prior criminal justice system experience, his intellectual
       ability, the brief colloquy in court, his conversation with his
       attorney, and his desire to proceed without a jury even
       though he realized that a thorough waiver colloquy was
       lacking, Appellant’s jury trial waiver was knowing,
       intelligent, and voluntar[y].¹

          ¹ In addition, even if his waiver was defective, in
          order to be successful on a claim of ineffectiveness
          assistance of counsel, Appellant must demonstrate a
          reasonable probability that the result of the waiver
          proceeding would have been different absent
          counsel’s ineffectiveness; that is, but for counsel’s
          ineffectiveness, Appellant would not have waived his
          right to a jury [trial]. By Appellant’s own account,
          his attorney counseled him to choose a bench trial
          over a jury trial because the judge appeared to be a
          more favorable forum based on the judge’s ruling on
          a pretrial evidentiary matter.        Appellant, who
          entered this trial with a thorough understanding of a
          jury trial from his first-hand experience, chose to
          follows his attorney’s advice as part of a reasonable
          legal strategy.         While the [PCRA] [c]ourt
          acknowledges that Appellant was not afforded a
          PCRA evidentiary hearing on this issue, it seems
          unlikely that he would have chosen a jury trial but

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              for counsel’s ineffectiveness.

(PCRA Court Opinion, filed December 13, 2016, at 5-8 n.1) (some quotation

marks and internal citations omitted) (emphasis in original). We accept the

PCRA court’s analysis. We emphasize that the absence of a written waiver

colloquy does not render Appellant’s jury-trial waiver automatically invalid,

under the totality of the circumstances.            See Mallory, supra; Turetsky,

supra. Accordingly, Appellant’s third issue merits no relief.

       In his fourth issue, Appellant argues his speedy trial rights were

violated, when trial commenced over a year after his arrest.             Appellant

contends the Commonwealth is responsible for more than 400 days of delay

prior to trial, yet trial counsel failed to file a Rule 600 motion.     Appellant

asserts appellate counsel was similarly ineffective for failing to raise a Rule

600 claim on direct review. Appellant concludes this Court should vacate the

verdict and dismiss the charges against him. We disagree.

       The previous version of Rule 600 provided, in pertinent part:3

          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
____________________________________________


3
  The previous version of Rule 600 was in effect during Appellant’s pre-trial
proceedings and trial. The current version of Rule 600 became effective on
July 1, 2013.



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         filed.

                                  *     *      *

             (B) For the purpose of this rule, trial shall be deemed
         to commence on the date the trial judge calls the case to
         trial, or the defendant tenders a plea of guilty or nolo
         contendere.

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

                                  *     *      *

            (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.

                                  *     *      *

Pa.R.Crim.P. 600 (prior version).           “Rule 600 generally requires the

Commonwealth to bring a defendant…to trial within 365 days of the date the

complaint was filed.”    Commonwealth v. Hunt, 858 A.2d 1234, 1240

(Pa.Super. 2004) (en banc), appeal denied, 583 Pa. 659, 875 A.2d 1073

(2005). To obtain relief, a defendant must have a valid Rule 600 claim at

the time he files his motion for relief. Id. at 1243.

      “The mechanical run date is the date by which the trial must

commence under Rule 600.” Commonwealth v. McNear, 852 A.2d 401,

406 (Pa.Super. 2004).

         It is calculated by adding 365 days (the time for

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        commencing trial under Rule 600) to the date on which the
        criminal complaint is filed. The 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.

Id.

      In the context of Rule 600, “excludable time” is differentiated from

“excusable delay” as follows:

        “Excludable time” is defined in Rule 600(C) as the period
        of time between the filing of the written complaint and the
        defendant’s arrest, provided that the defendant could not
        be apprehended because his whereabouts were unknown
        and could not be determined by due diligence; any period
        of time for which the defendant expressly waives Rule 600;
        and/or 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. “Excusable delay” is not expressly
        defined in Rule 600, but the legal construct takes into
        account delays which occur as a result of circumstances
        beyond the Commonwealth’s control and despite its due
        diligence.

Hunt, supra at 1241 (internal citations and footnote omitted).

      Instantly, Appellant’s final issue raises a Rule 600 claim.       As

presented, Appellant’s Rule 600 claim is generally not cognizable under the

PCRA.   See 42 Pa.C.S.A. § 9543(a)(2)(i)-(viii) (explaining petitioner is

eligible for PCRA relief if he pleads and proves conviction or sentence

resulted from constitutional violation, ineffective assistance of counsel,

unlawfully induced guilty plea, improper obstruction of right to appeal,

existence of after-discovered exculpatory evidence, imposition of sentence

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greater than lawful maximum, or proceeding in tribunal without jurisdiction).

Therefore, to the extent Appellant’s fourth issue presents a bare Rule 600

claim on collateral review, it is not properly before us.

      Raised under the rubric of ineffective assistance of appellate counsel

and trial counsel, however, Appellant’s Rule 600 claim is cognizable under

the PCRA. See id. Nevertheless, Appellant fails to address the reasonable

basis and prejudice prongs of the ineffectiveness test regarding both

appellate counsel’s and trial counsel’s stewardship. See Turetsky, supra.

Further, appellate counsel could not raise a Rule 600 claim on direct appeal,

because Appellant did not file a Rule 600 motion in the trial court.      See

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

and cannot be raised for the first time on appeal”). Likewise, a claim of trial

counsel’s ineffectiveness for failure to raise a Rule 600 issue was unavailable

to appellate counsel, without satisfying other procedural requirements. See

Commonwealth v. Grant, 572 Pa. 48, 67, 813 A.2d 726, 738 (2002)

(providing ineffectiveness claims are generally reserved for collateral

review); Commonwealth v. Leverette, 911 A.2d 998, 1004 (Pa.Super.

2006) (explaining ineffectiveness claims may be raised on direct appeal only

if: (1) appellant raised claim(s) in post-sentence motion; (2) evidentiary

hearing was held on claim(s); and (3) record devoted to claim(s) has been

developed).

      Moreover, even if Appellant’s Rule 600 claim were properly before us,


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Appellant would not be entitled to relief.           The Commonwealth filed the

complaint against Appellant on May 24, 2007. Therefore, the initial Rule 600

mechanical run date was May 24, 2008.              At the conclusion of Appellant’s

arraignment on July 25, 2007, the court scheduled a pretrial conference for

August 15, 2007.         Appellant subsequently requested two continuances,

which the court granted.           Ultimately, the court conducted the pretrial

conference on September 5, 2007, when Appellant requested a jury trial.

The delay between August 15, 2007, and September 5, 2007, constituted 21

days of excludable time. See Hunt, supra. The adjusted trial run date for

Rule 600 purposes became June 14, 2008.

       The court continued Appellant’s case to September 19, 2007, for a

scheduling conference.         As the Commonwealth had no control over the

court’s schedule, the delay between September 5, 2007, and September 19,

2007, arguably constituted 14 days of excusable delay. See id. The delay

yielded an adjusted trial run date of June 28, 2008. At the September 19,

2007 scheduling conference, based on Appellant’s request for a jury trial,

the court set trial for March 12, 2008, the earliest possible date. The delay

between September 19, 2007, and March 12, 2008, constituted 175 days of

excusable delay.4 See id. The adjusted trial run date for Rule 600 purposes

____________________________________________


4
 Our Supreme Court in Commonwealth v. Mills, ___ Pa. ___, 162 A.3d
323 (2017) differentiated between the normal progression of a criminal case
and judicial delay for purposes of Rule 600. In Mills, the Commonwealth
(Footnote Continued Next Page)


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became December 20, 2008.

      On January 31, 2008, Appellant requested additional time to respond

to a motion the Commonwealth had filed.              The court granted Appellant’s

request and relisted trial for March 19, 2008. The delay constituted 7 days

of excludable time, and the adjusted trial run date for Rule 600 purposes

became December 27, 2008.               See id.     On March 19, 2008, the court

continued trial to March 20, 2008. This delay constituted 1 day of excusable

time, and the adjusted run date became December 28, 2008. See id. On
                       _______________________
(Footnote Continued)

requested a continuance of a previously set trial date, because the
Commonwealth would be unable to proceed to trial on that date for several
reasons. The trial court continued trial for 174 days to the earliest possible
date. In its analysis, the Mills Court said, “[T]ime attributable to the normal
progression of a case simply is not ‘delay’ for purposes of Rule 600.” Id. at
___, 162 A.3d at 325. The Court also noted, “[W]here a trial-ready
prosecutor must wait several months due to a court calendar, the time
should be treated as ‘delay’ for which the Commonwealth is not
accountable.” Id. Ultimately, the Court held the 174-day continuance was
delay attributable to the Commonwealth because the Commonwealth was
unprepared for trial. Id.

Unlike Mills, here neither party requested a continuance of a previously set
trial date, and trial readiness was not at issue on September 19, 2007.
Based on Appellant’s request for a jury trial, on September 19th, the court
scheduled Appellant’s jury trial for the earliest possible date of March 12,
2008. The substance and timing of Appellant’s jury trial request caused the
court to schedule trial as it did.      Therefore, the 175 days between
September 19, 2007, and March 12, 2008, constituted excusable delay. See
Hunt, supra.       Additionally, despite his jury trial request, Appellant
ultimately proceeded to a bench trial. Finally, even if the 175 days at issue
were deleted from the ultimate adjusted run date, any Rule 600 motion
would still have been premature. (February 7, 2010 – 175 days = August
16, 2009). Trial began on April 30, 2009, long before the adjusted run date
of February 7, 2010, or the earlier modified adjusted run date of August 16,
2009.



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    March 20, 2008, the court was hearing another trial, and relisted Appellant’s

    trial for October 27, 2008. The delay between March 20, 2008, and October

    27, 2008, constituted 221 days of excusable delay. See id. The adjusted

    trial run date became August 6, 2009. On October 27, 2008, the court was

    on another trial and continued Appellant’s trial to April 28, 2009, the earliest

    possible date. The delay constituted 183 days of excusable delay. See id.

    The adjusted trial run date for purposes of Rule 600 became February 5,

    2010. On April 28, 2009, the court continued trial to the earliest possible

    date, April 29, 2009. This delay amounted to 1 day of excusable delay, and

    the adjusted run date became February 6, 2010.          See id.      On April 29,

    2009, the court again continued trial to the earliest possible date, April 30,

    2009. This delay amounted to 1 day of excusable delay and yielded a Rule

    600 adjusted run date of February 7, 2010. See id.

           The following chart summarizes the delays prior to trial:

  DATES                 ACTIVITY                  DAYS     EXCLUDABLE        ADJUSTED
                                                  DELAY   OR EXCUSABLE       RUN DATE

8/15/07-     Appellant              requested 21          Excludable;        6/14/08
9/5/07       continuances      of      pretrial           Appellant
             conference.                                  requested
                                                          continuances

9/5/07-      Appellant requested jury trial; 14           Arguably       6/28/08
9/19/07      court   continued   scheduling               excusable;
             conference.                                  Appellant
                                                          requested jury
                                                          trial




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    J-S45011-17


9/19/07-      Court   conducted      scheduling 175    Excusable     12/20/08
3/12/08       conference;        based       on        (See footnote
              Appellant’s jury trial request,          4, supra)
              court set jury trial for 3/12/08,
              EPD.

3/12/08-      Appellant requested additional 7         Excludable;    12/27/08
3/19/08       time        to     respond  to           Appellant
              Commonwealth motion; court               requested time
              granted request and relisted             to respond to
              trial for 3/19/08.                       Commonwealth
                                                       motion

3/19/08-      Court    continued    trial      to 1    Excusable;       12/28/08
3/20/08       3/20/08, EPD.                            based on EPD

3/20/08-      Court on another trial; court 221        Excusable;       8/6/09
10/27/08      relisted Appellant’s trial for           court         on
              10/27/08.                                another trial

10/27/08-     Court on another trial; court 183        Excusable;        2/5/10
4/28/09       relisted Appellant’s trial for           court         on
              4/28/09, EPD.                            another    trial;
                                                       based on EPD
4/28/09-      Court    continued    trial      to 1    Excusable;       2/6/10
4/29/09       4/29/09, EPD.                            based on EPD

4/29/09-      Court    continued    trial      to 1    Excusable;       2/7/10
4/30/09       4/30/09, EPD.                            based on EPD


            Appellant’s trial commenced on April 30, 2009, long before the

    adjusted run date of February 7, 2010. Therefore, Appellant did not have a

    viable speedy trial claim before trial commenced, as any Rule 600 motion

    would have been premature.      See Hunt, supra.    Thus, Appellant’s fourth

    issue fails. Accordingly, we affirm.

            Order affirmed.




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J-S45011-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/2/2017




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