J-S57011-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

WILLIAM WILKINSON

                          Appellant                   No. 2369 EDA 2014


                  Appeal from the PCRA Order July 21, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0010104-2007


BEFORE: MUNDY, J., OTT, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                           FILED JANUARY 25, 2016

        Appellant, William Wilkinson, appeals from the July 21, 2014 order

dismissing, without a hearing, his petition for relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.           After careful

review, we affirm.

        The PCRA court has fully and accurately recounted the factual history

of this case in its opinion filed pursuant to Pennsylvania Rule of Appellate

Procedure 1925(a). See PCRA Court Opinion, 11/24/14, at 2-6. Relevant to

this appeal, we note the following pertinent facts.         Appellant and the

complainant were involved in a romantic relationship and lived together. Id.

at 2.    In December 2006, Appellant advised complainant that he was in

financial difficulty and could not maintain the mortgage on his home and an

agreement was reached where Appellant sold his house to complainant. Id.
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On February 2, 2007, complainant prepared a will leaving her entire estate

to her daughter. Id. at 2-3. “Appellant cautioned [c]omplainant that if she

were required to be admitted to a hospital or if she were committed to a

mental institution she would loose [sic] control of everything[,]” and he

persuaded her to transfer the $48,000.00 in her bank account to him for

safekeeping, which he immediately deposited in his account at Commerce

Bank.     Id. at 3.   On February 4, 2007, complainant attempted suicide,

leaving a note for Appellant to give everything to her daughter.          Id.

Complainant was transferred to the hospital, then to a mental hospital for

treatment, and ultimately released. Id.    Appellant then told complainant he

was no longer permitted to be around her. Id. Complainant never received

her money back from Appellant despite requesting it on multiple occasions.

Id.

        The PCRA court set forth the subsequent procedural history in its Rule

1925(a) opinion, as follows.

                   On April 3, 2007[,] Appellant was arrested and
             charged with Theft and Securing Execution of
             Documents by Deception and on April 22, 2008,
             following a jury trial … he was found guilty of those
             crimes.    On [] June 12, 2008[,] Appellant was
             sentenced to a term of imprisonment of not less than
             twenty-one (21) months nor more than four (4)
             years plus three (3) years’ probation for Theft, and a
             term of imprisonment of not less than one (1) year
             nor more than two years (2) for Execution of
             Documents by Deception. Post[-s]entence [m]otions
             were filed and on July 31, 2008[,] they were denied.
             Appellant filed a timely [n]otice of [a]ppeal to the
             Superior Court of Pennsylvania on August 20, 2008.

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              On October 14, 2011[,] the Superior Court of
              Pennsylvania      affirmed      the     [j]udgment    of
              [s]entence[, Commonwealth v. Wilkinson, 37
              A.3d 1231 (Pa. Super. 2011), appeal denied, 49 A.3d
              443 (Pa. 2012),] and on November 14, 2011[,]
              Appellant filed a [p]etition for [a]llowance of [a]ppeal
              in the Supreme Court of Pennsylvania. On August 8,
              2012[,] the Supreme Court of Pennsylvania denied []
              Appellant’s [p]etition for [a]llowance of [a]ppeal.

                     On March 8, 2013[,] Appellant filed a [timely
              p]etition pursuant to the [PCRA] and on November
              14, 2013[,] the Commonwealth filed a [m]otion to
              [d]ismiss. [On May 2, 2014,] Appellant was given
              [n]otice pursuant to Pa.R.Crim.P. 907 of the [PCRA
              c]ourt’s intention to dismiss the PCRA [p]etition
              without a hearing and Appellant responded. On July
              [21], 2014[,] the PCRA [petition] was dismissed.

Id. at 1-2 (footnote omitted).

        On August 14, 2014, Appellant filed a timely notice of appeal. 1   On

appeal, Appellant raises the following issues for our review.

              I. Was Appellant denied a legitimate opportunity to
              develop and present his claims under the Post-
              Conviction Collateral Relief Act when the [trial] court
              denied his petition without an evidentiary [hearing]?

              II. Was Appellant denied his Constitutional right to
              effective assistance of counsel when trial counsel
              failed to obtain copies of the complainant’s
              transcribed    testimony  from   previous    judicial
              proceedings for impeach[ment] purposes at trial?

              III. Was Appellant denied his Constitutional right to
              effective assistance of counsel when trial counsel
              failed to object to testimony elicited from Commerce
____________________________________________


1
    Appellant and the PCRA court have complied with Pa.R.A.P. 1925.




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            Bank employees, Appellant’s former spouse, and his
            former girlfriend regarding matters that were unduly
            prejudicial and unrelated to the charges?

            IV. Was trial counsel ineffective when he failed to file
            a [m]otion to [d]ismiss under Rule 600 of the
            Pennsylvania Rules of Criminal Procedure when the
            Commonwealth failed to prosecute him within three
            hundred and sixty-five (365) days of his arrest in
            violation of his right to a speedy trial?

            V. Was Appellant denied his Constitutional right to
            effective assistance of counsel when Appellant was
            not informed of the use and importance of character
            testimony and his right to secure character witnesses
            for counsel to prepare and present during trial?

Appellant’s Brief at 4-5.

      Our standard of review requires us to “examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation

marks and citation omitted). “The scope of review is limited to the findings

of the PCRA court and the evidence of record, viewed in the light most

favorable to the prevailing party at the trial level.”    Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).       “It is well-settled

that a PCRA court’s credibility determinations are binding upon an appellate

court so long as they are supported by the record.”        Commonwealth v.

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).




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      Further, in order to be eligible for PCRA relief, a petitioner must plead

and prove by a preponderance of the evidence that his conviction or

sentence arose from one or more of the errors listed at Section 9543(a)(2)

of   the   PCRA.    42   Pa.C.S.A.   §   9543(a)(2).    These   errors     include

ineffectiveness of counsel. Id. § 9543(a)(2)(ii). The issues raised in a PCRA

petition must be neither previously litigated nor waived. Id. § 9543(a)(3).

      Instantly, Appellant presents five claims for our review.        In his first

claim, Appellant argues the PCRA court erred in dismissing his petition

without an evidentiary hearing.      Appellant’s Brief at 19.    Our review is

guided by the following.

                   [T]he right to an evidentiary hearing on a post-
             conviction petition is not absolute. It is within the
             PCRA court’s discretion to decline to hold a hearing if
             the petitioner’s claim is patently frivolous and has no
             support either in the record or other evidence. It is
             the responsibility of the reviewing court on appeal to
             examine each issue raised in the PCRA petition in
             light of the record certified before it in order to
             determine if the PCRA court erred in its
             determination that there were no genuine issues of
             material fact in controversy and in denying relief
             without conducting an evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012), quoting

Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa. Super. 2007)

(citations omitted), appeal denied, 940 A.2d 365 (Pa. 2007); see also

generally Pa.R.Crim.P. 907. “We stress that an evidentiary hearing is not

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

support some speculative claim ….”       Commonwealth v. Roney, 79 A.3d

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595, 604-605 (Pa. 2013) (citations and internal quotation marks omitted),

cert. denied, Roney v. Pennsylvania, 135 S. Ct. 56 (2014). We review a

PCRA court’s decision to dismiss without a hearing for abuse of discretion.

Id. at 604. Accordingly, we must examine Appellant’s four remaining issues

asserting claims of ineffective assistance of counsel in light of the record

before us. Wah, supra. If Appellant has failed to raise a meritorious claim,

then the PCRA court will not have abused its discretion in dismissing

Appellant’s claim without a hearing. Likewise, if Appellant has raised a valid

claim of ineffective assistance of counsel, we would remand for an

evidentiary hearing.    Therefore, we proceed to address Appellant’s four

claims of ineffective assistance of counsel.

      When reviewing a claim of ineffectiveness, we apply the following test,

first articulated by our Supreme Court in Commonwealth v. Pierce, 527

A.2d 973 (Pa. 1987).

            [C]ourts presume that counsel was effective, and
            place upon the appellant the burden of proving
            otherwise. Counsel cannot be found ineffective for
            failure to assert a baseless claim.

                   To succeed on a claim that counsel was
            ineffective, Appellant must demonstrate that: (1) the
            claim is of arguable merit; (2) counsel had no
            reasonable strategic basis for his or her action or
            inaction; and (3) counsel’s ineffectiveness prejudiced
            him.

                                       …

                 [T]o demonstrate prejudice, appellant must
            show there is a reasonable probability that, but for

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             counsel’s error, the outcome of the proceeding would
             have been different.

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (internal

quotation marks and citations omitted). “Failure to establish any prong of

the test will defeat an ineffectiveness claim.”           Commonwealth v.

Birdsong, 24 A.3d 319, 329 (Pa. 2011).

      We begin by addressing Appellant’s second and fifth issues.         In his

second issue, Appellant asserts counsel was ineffective for failing to secure

transcripts from a protection from abuse (PFA) hearing in family court

involving Appellant and the complainant.           Appellant’s Brief at 22-24.

Appellant baldly asserts that “[i]f the complainant’s prior testimony was

inconsistent with how she testified at trial, counsel could have used the

transcript for impeachment purposes.”         Id. at 22-23.   In his fifth issue,

Appellant argues trial counsel was ineffective for failing to “call character

witnesses to testify about his reputation in the community for possessing

specific traits.”   Id. at 33.   Appellant argues that “[h]ad trial counsel

discussed this important trial strategy with him, he would have elected to

call character witnesses, and he would have secured character witnesses to

testify on his behalf.” Id. at 33-34.

      In both issues, Appellant fails to articulate his claims with any

specificity, or set forth how these purportedly ineffective decisions by trial

counsel would have changed the outcome of trial.          In the second issue,

Appellant fails to specify what statements made by complainant he wished to

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use, or how these statements would have been used for impeachment

purposes.     Further, in his fifth claim, Appellant does not state what

witnesses he would have presented, or more importantly what character

traits they would have testified to, or how that would have changed the

jury’s verdict. Accordingly, Appellant’s claim is waived based on his failure

to prove his claim is of arguable merit, or how such omissions caused him

prejudice.    See Fears, supra at 804 (concluding that the “failure to

meaningfully discuss each of the three ineffectiveness prongs” renders claim

“waived for lack of development[]”).

      Next, in his third issue Appellant argues trial counsel was ineffective

for failing to object to the testimony of three different witnesses at trial.

Appellant’s Brief at 25. Specifically, Appellant argues counsel should have

objected to the testimony of Jennifer Erni regarding dating Appellant for four

months and subsequently filing a suit against him for $1,200,000.00 in

damages; Colleen Moran, Appellant’s former spouse who testified that

Appellant owed her $5,000.00 in child support arrears, that a lien had been

placed on Appellant’s property, and that the property had been sold in March

2007; and finally Henry Byrd, Senior Fraud Investigator for Commerce Bank,

who testified that complainant closed her bank account in May 2007, and

testified to the balances of, and transaction on Appellant’s account as of

trial. Id. at 25-28.




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       The Commonwealth, however, argues that Appellant has failed to

“present his claim with the Pierce framework.”         Commonwealth’s Brief at

11.   Preliminarily, we agree.       In reference to each of the three witnesses

Appellant fails to develop his claim based on the arguable merit prong, or to

address the possibility of choosing not to object as a reasonable trial

strategy. On this basis alone, we could find waiver. See Fears, supra. To

the extent Appellant purports to argue the prejudice prong of the Pierce

test to the witnesses, Appellant has failed to explain how, in light of the

overwhelming evidence against him; the testimony of these three witnesses

would have changed the outcome at trial, and rather makes bald assertions

of prejudice.2

       It is axiomatic that to be entitled to PCRA relief, a petitioner must be

able to show how he or she was prejudiced from trial counsel’s alleged

ineffectiveness.

                     Relating to the prejudice prong of the
              ineffectiveness test, the PCRA petitioner must
              demonstrate that there is a reasonable probability
              that, but for counsel’s error or omission, the result of
              the proceeding would have been different.
              Particularly relevant herein, it is well-settled that a
              court is not required to analyze the elements of an
              ineffectiveness claim in any particular order of
              priority; instead, if a claim fails under any necessary
              element of the Strickland test, the court may
              proceed to that element first.
____________________________________________


2
  Also noteworthy is Appellant’s failure to provide any citations to the notes
of testimony.



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Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012).

       In this case, Appellant does not explain how objecting to the

aforementioned testimony would have created “a reasonable probability that

… the result of the proceeding would have been different.”       Id. Based on

these considerations, we conclude Appellant is not entitled to relief on this

issue. See Spotz, supra at 319 (stating, “remanding for the PCRA court to

make factual findings and credibility determinations as to the ‘reasonable

basis’ prong will be unnecessary if we determine there is no reasonable

probability that an objection to the challenged jury instruction at trial would

have    led   to   a   more   favorable   outcome   for   [the   defendant]”);

Commonwealth v. Steele, 961 A.2d 786, 797 (Pa. 2008) (stating, “a

petitioner must set forth and individually discuss substantively each prong of

the Pierce test[]”).

       Finally, in his fourth issue, Appellant argues trial counsel was

ineffective for failing to file a motion to dismiss the charges pursuant to

Pennsylvania Rule of Criminal Procedure 600.         Appellant’s Brief at 31.

Appellant asserts the charges against him were filed on April 3, 2007, and a

jury was empaneled on April 16, 2008, 379 days after the criminal charges

were filed.   Id. at 31.   Therefore, Appellant concludes that his claim that

“trial counsel was ineffective for not seeking to have his case dismissed has

legal merit when the Commonwealth failed to bring the case to trial within

three hundred and sixty-five days.” Id. The Commonwealth counters that

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Appellant’s issue lacks arguable merit as Appellant’s counsel litigated a Rule

600 motion in his companion case. Commonwealth’s Brief at 14.

      We recognize that the courts of this Commonwealth employ a three-

step analysis to determine whether Rule 600 requires dismissal of the

charges against a defendant.

                  The first step in determining whether a
            technical violation of Rule 600 […] has occurred is to
            calculate the “mechanical run date.” The mechanical
            run date is the date by which trial must commence
            under the relevant procedural rule.             [T]he
            mechanical run date is ascertained by counting the
            number of days from the triggering event - e.g., the
            date on which … the criminal complaint was filed - to
            the date on which trial must commence under Rule
            [600]. Pa.R.Crim.P. [600(A)(3)].

Commonwealth v. Preston, 904 A.2d 1, 11 (Pa. Super. 2006) (internal

citations omitted), appeal denied, 916 A.2d 632 (Pa. 2007). In the second

step, we must “determine whether any excludable time exists pursuant to

Rule 600(C).”    Commonwealth v. Ramos, 936 A.2d 1097, 1103 (Pa.

Super. 2007), appeal denied, 948 A.2d 803 (Pa. 2008). Then, in the third

step, “[w]e add the amount of excludable time, if any, to the mechanical run

date to arrive at an adjusted run date.” Id.

      It is well settled that any delay occasioned by a defendant is

excludable time in the calculation of the adjusted run date.     Pa.R.Crim.P.

600(C)(2)-(3); Preston, supra. Furthermore, delays not attributable to a

defendant but where the Commonwealth is found to have acted with due

diligence in attempting to commence a timely trial but was prevented by

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circumstances beyond its control, is also considered excusable time.

Pa.R.Crim.P. 600(G); accord Commonwealth v. Wholaver, 989 A.2d 883,

899 (Pa. 2010), cert. denied, Wholaver v. Pennsylvania, 131 S. Ct. 332

(2010).

           “Due-diligence is a fact-specific concept that is
           determined on a case-by-case basis. Due diligence
           does not require perfect vigilance and punctilious
           care, but rather a showing by the Commonwealth
           that a reasonable effort has been put forth.”
           Commonwealth v. Booze, 953 A.2d 1263, 1273
           (Pa. Super. 2008) (quotations and quotation marks
           omitted). “Judicial delay may justify postponing trial
           beyond the adjusted run date if the Commonwealth
           was prepared to commence trial prior to the
           expiration of the mandatory period but the court was
           unavailable because of ‘scheduling difficulties and
           the like.’”    Preston, 904 A.2d at 14 (citation
           omitted).

Commonwealth v. Lynch, 57 A.3d 120, 124 (Pa. Super.

2012), appeal denied, 63 A.3d 1245 (Pa. 2013).

           Because the Commonwealth cannot control the
           calendar of a trial court, delay occasioned by the
           court’s unavailability is usually excusable. However,
           the Commonwealth may, under some circumstances
           (e.g. a prolonged judicial absence), have a duty to
           seek other courtrooms to try the case. The extent of
           this duty depends on the specifics of each case. The
           guiding principle is, again, that the Commonwealth
           must exercise due diligence by putting forth a
           reasonable effort in light of the particular case facts.
           Along similar lines, delays caused by administrative
           decisions of the court, decisions over which the
           Commonwealth has no control, are generally
           excused.




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Commonwealth v. Riley, 19 A.3d 1146, 1149 (Pa. Super. 2011) (citations

omitted).

       Preliminarily, we note that Appellant concedes a Rule 600 motion was

litigated.     He asserts that “[t]he [d]ocket on Appellant’s companion case

reflects that a [m]otion to [d]ismiss was filed on February 29, 2008, but

there is no similar entry on the [d]ocket of the instant case.”      Appellant’s

Brief at 32. Attached to the Commonwealth’s brief is a copy of the Rule 600

motion filed in Appellant’s companion case at docket number CR-0010072-

2007.3       Commonwealth’s Brief at Appendix.     Said motion states “[t]rial is

scheduled to commence on April 7, 2008, having been consolidated for trial

with charges at CP-51-CR-0010104-2007[, the instant case].”           Id. at ¶3.

The motion only requests dismissal pursuant to Rule 600 at the earlier

docket number, and not the one in the instant matter. Notably, at the time

said motion was filed, Rule 600 would not have been violated in the instant

matter, and therefore, it would have been premature for counsel to file a

Rule 600 motion.


____________________________________________


3
  We note said motion is not included in the docket that was transmitted to
this Court. Nevertheless, as it is not critical to our review, we can address
Appellant’s claim. Further, the PCRA court opinion states that “[a] cursory
review of the Record reflects that a motion to dismiss pursuant to
Pa.R.Crim.P. 600 was heard and on April 14, 2008 it was denied.” PCRA
Court Opinion, 11/24/14, at 10. The certified record does not contain any
notation of a denial of a Rule 600 motion on this date, but we can assume it
was the date on which the February 29, 2008 motion was denied.



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         Herein, Appellant was charged on April 3, 2007. Assuming arguendo

there were no excludable or excusable periods of time, the Commonwealth

had 365 days, or until April 2, 2008 to bring Appellant to trial. However, the

docket reveals that at the November 14, 2007 scheduling conference

“Discovery complete.      List for 4 day jury trial on 4/7/08[,]” noting that

March 10, 2008 was “no good for [defense counsel], next earliest date 3/24

was no good for Commonwealth[,]” thus, the trial court listed the case for

April 7, 2008. Additionally, the docket indicates on April 7, 2008 “Court on

trial.   Continued until 4/8/08[.]”   April 8, April 10, April 14, and April 15,

2008 all contain notations of hearings without further notation.           Trial

commenced on April 15, 2008.          At a minimum, the period of time from

March 24, 2008 through April 8, 2008 would be excludable time. See Riley,

supra. Therefore, this is a total of 15 days of excludable time, making the

mechanical run date April 17, 2008 date. As a result, the Commonwealth

did not violate Rule 600.     Accordingly, Appellant’s claim that trial counsel

was ineffective for failing to file a Rule 600 motion has no arguable merit.

See Michaud, supra.

         Based on the foregoing, we conclude the PCRA court did not abuse its

discretion by dismissing Appellant’s petition without a hearing, as all of

Appellant’s claims of ineffective assistance of counsel are either waived or

lack arguable merit.      See Roney, supra; see also Birdsong, supra.

Therefore, we affirm the PCRA court’s July 21, 2014 order.


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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/25/2016




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