J-S08015-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                     Appellee              :
                                           :
             v.                            :
                                           :
NICHOLAS EDWARDS,                          :
                                           :
                     Appellant             : No. 1508 EDA 2014

                     Appeal from the PCRA Order April 23, 2014,
                    Court of Common Pleas, Philadelphia County,
                  Criminal Division at No. CP-51-CR-1006311-2003

BEFORE: DONOHUE, WECHT and JENKINS, JJ.

MEMORANDUM BY DONOHUE, J.:                          FILED MARCH 02, 2015

       Nicholas Edwards (“Edwards”) appeals from the April 23, 2014 order

entered by the Philadelphia County Court of Common Pleas denying his

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

9541-9546 (“PCRA”). We affirm.

       On November 21, 2005, a jury convicted Edwards of first-degree

murder, criminal conspiracy, carrying a firearm without a license, and

possessing an instrument of crime for the shooting death of Xavier

Edmonds.1 On February 3, 2006, the trial court sentenced Edwards to life in

prison without the possibility of parole. The trial court reinstated his direct

appeal rights nunc pro tunc on April 9, 2008, following which Edwards filed a

direct appeal to this Court.     We affirmed his judgment of sentence in an


1
    18 Pa.C.S.A. §§ 2502, 903, 6106, 907(b).
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unpublished Memorandum on July 28, 2009.          The Pennsylvania Supreme

Court denied his request for allowance of appeal on February 5, 2010.

      On June 28, 2010, Edwards filed a timely PCRA petition.         The PCRA

court appointed counsel, who filed an amended PCRA petition on Edwards’

behalf. After three days of evidentiary hearings on the petition, the PCRA

court entered an order denying relief on April 23, 2014.        Edwards filed a

timely notice of appeal and complied with the PCRA court’s order for the

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

Pa.R.A.P. 1925(b).     The PCRA court filed a responsive opinion pursuant to

Pa.R.A.P. 1925(a).

      On appeal, Edwards raises two issues for our review:

         I. Whether the PCRA [c]ourt erred in denying
            [Edwards] post-conviction relief because trial counsel
            was ineffective for failing to call alibi witnesses
            Raheem Sloan and Dennis Edwards to testify at
            trial[?]

         II. Whether the PCRA [c]ourt erred in denying
             [Edwards] post-conviction relief because counsel was
             ineffective for not moving for dismissal of [Edwards’]
             charges pursuant to Rule 600 of the Pennsylvania
             Rules of Criminal Procedure[?]

Edwards’ Brief at 3.

      We review a PCRA court’s decision to determine whether it is

supported by the       record and to    ensure   it   is free   of legal   error.

Commonwealth v. Hackett, 99 A.3d 11, 50 (Pa. 2014).                “We cannot

disturb the factual findings of the PCRA court, which hears evidence and



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passes on the credibility of witnesses, if they are supported by the record,

even where the record could support contrary findings.”         Id. (citation

omitted). Our scope of review is limited to the PCRA court’s findings and the

evidence presented at the PCRA hearing, which we view in the light most

favorable to the prevailing party. Id. at 50-51.

      Both of the issues Edwards raises on appeal allege that trial counsel

was ineffective.   In deciding these issues, we begin with the presumption

that counsel rendered effective assistance. Commonwealth v. Bomar, 104

A.3d 1179, 1188 (Pa. 2014). To overcome that presumption, the petitioner

must establish:     “(1) the underlying claim has arguable merit; (2) no

reasonable basis existed for counsel’s action or failure to act; and (3) the

petitioner suffered prejudice as a result of counsel’s error, with prejudice

measured by whether there is a reasonable probability that the result of the

proceeding would have been different.”       Id. (citation omitted).   If the

petitioner fails to prove any of these prongs, the claim is subject to

dismissal.   Id.   Additionally, to prevail on a claim that trial counsel was

ineffective for failing to call a witness to testify, the defendant must

establish:   “(1) the witness existed; (2) counsel was either aware of or

should have been aware of the witness’[] existence; (3) the witness was

willing and able to cooperate on behalf of the defendant; and (4) the

proposed testimony was necessary to avoid prejudice to the defendant.”

Commonwealth v. Tharp, 101 A.3d 736, 757 (Pa. 2014).



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       In his brief on appeal, Edwards raises several arguments in support of

a finding that trial counsel’s performance was deficient, the majority of

which are not properly before us on appeal, as Edwards failed to raise them

in his PCRA petition or in his statement of questions involved section of his

appellate brief.2 See Commonwealth v. Rainey, 928 A.2d 215, 226 (Pa.

2007) (stating that issues not raised in a PCRA petition are waived and

cannot be raised for the first time on appeal); Pa.R.A.P. 2116(a) (“No

question will be considered unless it is stated in the statement of questions

involved or is fairly suggested thereby.”). Edwards preserved two issues for

our review alleging trial counsel’s ineffectiveness – (1) counsel’s failure to

call Raheem Sloan and Dennis Edwards as alibi witnesses and (2) counsel’s

failure to file a motion to dismiss Edwards’ charges pursuant to Pa.R.Crim.P.

600.

       Beginning with his first argument, Edwards asserts that he satisfied his

burden of proving that trial counsel was ineffective for failing to call Raheem

Sloan and Dennis Edwards at trial as he proved that (1) the witnesses

existed;   (2)   Edwards   provided   counsel   with   the   witnesses’   names,

addresses, and dates of birth; (3) both witnesses were available and willing



2
   In addition to the issues raised and preserved in          his PCRA petition,
Edwards includes arguments on appeal regarding trial         counsel’s failure to
adequately prepare for trial; meet with Edwards enough       to discuss his case;
personally interview potential witnesses, leaving it         to his non-lawyer
assistant to do so; and review with Edwards a video of a     family picnic, which
was his alibi. See Edwards’ Brief at 31-44.


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to testify at trial; and (4) the absence of their testimony prejudiced

Edwards. Edwards’ Brief at 43. The PCRA court disagreed based upon, inter

alia, its credibility determination in favor of trial counsel, crediting trial

counsel’s testimony that he was never told about Raheem Sloan or Dennis

Edwards. Trial Court Opinion, 6/11/14, at 7-8.

      Our review of the record reflects that although Edwards testified at his

PCRA hearing that on March 10, 2004, he sent trial counsel a list of thirteen

potential witnesses, which list included Raheem Sloan and Dennis Edwards,

trial counsel testified that he had no record of ever receiving that list and did

not recall seeing it before. N.T., 9/23/13, at 31-32. Trial counsel testified

that he would have kept this type of correspondence in a client’s file. Id. at

30-31. Prison records indicate that trial counsel visited Edwards on October

10, 2004. Id. at 14. On October 11, 2004, trial counsel wrote a letter to

the trial court requesting a continuance because he had recently received

information from Edwards regarding a potential alibi.      Id. at 16.    His law

clerk handwrote notes of contacts he made with potential alibi witnesses,

Joanne Lightly and Annette Edwards, which occurred beginning on October

26, 2004.     Id. at 18-20.     Trial counsel did not have an independent

recollection of the meetings he had with Edwards in preparation for trial or

the pretrial witness interviews. See id. at 23, 24, 44, 50-51. Nonetheless,

based upon his regular manner of practice, the records of the dates he

visited Edwards in prison, the date of his continuance request, and the date



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his law clerk initiated contact with the other potential alibi witnesses

Edwards provided to trial counsel, trial counsel testified that he did not

receive any information from Edwards concerning potential alibi witnesses

until just before October 11, 2004. Id. at 53. Had he received information

regarding potential alibi witnesses earlier, he testified that he would have

acted upon that information earlier. Id. at 53. Trial counsel further relied

upon his statement in his October 11, 2004 letter to the trial court

requesting a continuance because of the newly provided alibi evidence,

stating that he would not have lied to the trial court judge. Id. at 37-38.

      The record supports the trial court’s credibility determination and

finding that trial counsel was never informed that Raheem Sloan or Dennis

Edwards were potential alibi witnesses. Where the record supports the PCRA

court’s credibility determinations, we are bound thereby. Commonwealth

v. Spotz, 47 A.3d 63, 75 (Pa. 2012).               As such, Edwards’ claim of

ineffectiveness for failing to call these witnesses at trial fails.

      Next, Edwards asserts that he was due relief on his claim of trial

counsel’s ineffectiveness for failing to move for the dismissal of his charges

based on a violation of Pa.R.Crim.P. 600. The version of Rule 600 that was

in place at the time of Edwards’ trial stated,3 in relevant part:

             [(A)](3) Trial in a court case in which a written
             complaint is filed against the defendant, when the


3
   A new version of Rule 600 was adopted October 1, 2012, and became
effective on July 1, 2013.


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          defendant is at liberty on bail, shall commence no
          later than 365 days from the date on which the
          complaint is filed.

                               *    *    *

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

              (1) 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 or her whereabouts
              were unknown and could not be determined by
              due diligence;

              (2) any period of time for which the defendant
              expressly waives Rule 600;

              (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.

                               *    *    *

          (G) For defendants on bail after the expiration of
          365 days, at any time before trial, the defendant or
          the defendant’s attorney may apply to the court for
          an order dismissing the charges with prejudice on
          the ground that this rule has been violated. A copy of
          such motion shall be served upon the attorney for
          the Commonwealth, who shall also have the right to
          be heard thereon.

          If the court, upon hearing, shall determine that the
          Commonwealth exercised due diligence and that the
          circumstances occasioning the postponement were
          beyond the control of the Commonwealth, the



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            motion to dismiss shall be denied and the case shall
            be listed for trial on a date certain. If, on any
            successive listing of the case, the Commonwealth is
            not prepared to proceed to trial on the date fixed,
            the    court     shall   determine     whether     the
            Commonwealth exercised due diligence in attempting
            to be prepared to proceed to trial. If, at any time, it
            is determined that the Commonwealth did not
            exercise due diligence, the court shall dismiss the
            charges and discharge the defendant.

Pa.R.Crim.P. 600(A)(3), (C), (G) (rescinded October 1, 2012, effective July

1, 2013).

            [T]he courts of this Commonwealth employ three
            steps – corresponding to Rules 600(A), (C), and (G)
            – in determining whether Rule 600 requires dismissal
            of charges against a defendant. First, Rule 600(A)
            provides the mechanical run date. Second, we
            determine whether any excludable time exists
            pursuant to Rule 600(C). We add the amount of
            excludable time, if any, to the mechanical run date
            to arrive at an adjusted run date.

            If the trial takes place after the adjusted run date,
            we apply the due diligence analysis set forth in Rule
            600(G). As we have explained, Rule 600(G)
            encompasses a wide variety of circumstances under
            which a period of delay was outside the control of
            the Commonwealth and not the result of the
            Commonwealth’s lack of diligence. Any such period
            of delay results in an extension of the run date.
            Addition of any Rule 600(G) extensions to the
            adjusted run date produces the final Rule 600 run
            date. If the Commonwealth does not bring the
            defendant to trial on or before the final run date, the
            trial court must dismiss the charges.

Commonwealth v. Ramos, 936 A.2d 1097, 1103 (Pa. Super. 2007)

(internal citations and footnote omitted).




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     The PCRA court provided a timeline of the             defense-requested

continuances leading up to Edwards’ trial and concluded that there was no

Rule 600 violation:

                In this case, petitioner was arrested on August 9,
             2003. Thus, the mechanical run date under Rule 600
             was August 9, 2004. Petitioner was arraigned on
             October 29, 2003, and his case was continued to
             December 4, 2003. It was then continued to January
             7, 2004, for new counsel and further pre-trial
             proceedings. The time between December 4, 2003
             and January 7, 2004, a period of 34 days, was ruled
             excludable. On January 16, 2004, defense counsel
             was unavailable, and the case was continued until
             March 18, 2004. On that date, the defense requested
             a continuance. The case was continued until April 14,
             2004. These continuances involved an additional 89
             days of excludable time under Rule 600. Later, on
             October 12, 2004, there was a defense request for a
             continuance – a continuance necessitated by the
             need to investigate alleged alibi witnesses, whose
             identity had just been disclosed to counsel by
             petitioner. The case was then rescheduled until April
             5, 2005 – a period of 175 excludable days. On April
             7, 2005, the defense requested another continuance
             due to a personal medical emergency. The case was
             then continued until November 7, 2005, the earliest
             possible date consistent with the court’s and
             counsel’s schedule. These continuances resulted in
             214 additional days of excludable time.

PCRA Court Opinion, 6/11/14, at 9-10. Adding the 512 excludable days to

the mechanical run date, the PCRA court found that no violation of Rule 600

occurred.4




4
  The PCRA court found the adjusted run date was “May of 2006.” PCRA
Court Opinion, 6/11/14, at 10. Our calculations reveal that by adding 512


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       Our review of the record reveals that although all of the continuances

referenced by the PCRA court appear on the trial docket, few include

notations as to who requested the continuance. See Criminal Docket at 1,

5-9.   The record only contains one written motion for continuance – the

request made by trial counsel on October 11, 2004, which resulted in a

continuance until April 5, 2005. See PCRA Exhibit P5; Criminal Docket at 7.

The docket otherwise only specifically states that the continuances from

December 4, 2003 to January 7, 2004 and April 11, 2005 to October 26,

2005 were attributable to the defense. See Criminal Docket at 5-9.

       In arguing this issue on appeal, Edwards states only that April 11,

2005 through November 9, 2005 were excludable for Rule 600 purposes.

Edwards’ Brief at 48. He makes no argument in support or against the other

dates identified by the PCRA court as excludable for Rule 600 purposes, nor

does he recognize dates that are clearly excludable as reflected in the

criminal docket and in trial counsel’s continuance letter, the latter of which

Edwards introduced into evidence at the PCRA hearing. See N.T., 7/12/13,

at 16-17.

       The record before this Court on appeal is insufficient to permit us to

determine whether there is any merit to the question of whether counsel

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



days of excludable time to the mechanical run date of August 9, 2004, the
adjusted run date would be January 3, 2006.


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Rule 600. The law is clear: “[I]t is Appellant’s responsibility to supply this

Court with a complete record for purposes of review. A failure by Appellant

to insure that the original record certified for appeal contains sufficient

information to conduct a proper review constitutes waiver of the issue

sought to be examined.” Commonwealth v. Martz, 926 A.2d 514, 524-25

(Pa. Super. 2007) (internal citations omitted). We are therefore constrained

to find this issue waived.

      Moreover, even if not waived, Edwards would not be entitled to relief

because he failed to present any argument in support of the other two

prongs of the test for ineffective assistance of counsel.    See Bomar, 104

A.3d at 1188. This failure is also fatal to his claim. See id.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/2/2015




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