Com. v. Blenman, K.

• Court: Superior Court of Pennsylvania
• Decided: May 28, 2021
• Docket: 838 EDA 2020
• Status: Unpublished

Opinion

J-S12038-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KEVIN BLENMAN : : Appellant : No. 838 EDA 2020

Appeal from the PCRA Order Entered February 26, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0013908-2012

BEFORE: LAZARUS, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED: MAY 28, 2021

Kevin Blenman (“Blenman”) appeals from the Order dismissing his

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541-9546. We affirm in part, reverse in part, and

remand for further proceedings.

This Court previously set forth the factual history underlying this appeal

as follows:

On November 5, 2012, Philadelphia [P]olice [O]fficer Jeffrey Opalski ([“]Officer Opalski[”]), along with his partner[,] Officer Mundrick, were on patrol in an unmarked police car in plain clothes. At the time, Officer Opalski had been a police officer for two[-]and[-]a[-]half years with ten firearm-related arrests, along with specific training in firearms and the methods in which they are carried on a person. The officers were traveling along the 5100 block of Viola Street in Philadelphia, when they observed [Blenman] standing in front of an abandoned building. Officer Opalski testified that drug sales are typically conducted in and around abandoned properties. The officers were patrolling in that specific area because there were reports of drug sales and gun violence associated with rival drug gangs. As the officers drove J-S12038-21

down Viola Street, [Blenman] looked in their direction, [and] turned and walked through an alleyway next to an abandoned house. The officers then continued down Viola Street, circled the block a few times, and again spotted [Blenman] on a nearby block. At this time, he was walking with a noticeable limp and had a large bulge in the front area of his waistband. The officers stopped their car, exited[,] and identified themselves as police officers. Immediately[,] [Blenman] grabbed his waistband area and ran from the officers. After running for about a block, the officers observed [Blenman] remove a large silver revolver from his waistband[,] and discard it in a pile of trash bags. He was arrested shortly thereafter.

Commonwealth v. Blenman, 178 A.3d 134 (Pa. Super. 2017) (unpublished

memorandum at 1) (footnotes and brackets omitted). Blenman was

subsequently charged with persons not to possess firearms, firearms not to

be carried without a license, and carrying firearms on public streets in

Philadelphia.1

In its Opinion, the PCRA? court summarized the procedural history that

followed:

Following his arrest, [Blenman] attended a preliminary arraignment at which his bail was set at ten percent of $500,000. On November 21, 2012, [Blenman] attended his preliminary hearing[,] at which his three charges were held for court. By [O]rder, dated December 6, 2012, [Blenman’s] bail status was changed from the previous monetary bail to a “release on recognizance” (“ROR”) bail. [Blenman] remained in custody due to a detainer issued by the Pennsylvania Board of Probation and Parole[, relative to parole he was serving for a conviction in Lebanon County].

On January 23, 2013, [Blenman] filed an omnibus pre-trial [M]otion, including a [M]otion to [S]uppress physical evidence. On December 1, 2014, following several delays, a hearing on ____________________________________________

1 See 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), 6108.

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[Blenman’s] [M]otion to [S]uppress was heard and was subsequently denied. Following a stipulated bench trial on February 3, 2016, [Blenman] was found guilty of three violations of the Uniform Firearms Act. For his convictions, [Blenman] was sentenced[,] on April 14, 2016, to an aggregate term of five years to ten years[ in prison,] and a consecutive term of five years[ of] probation. [Blenman] did not file any post-sentence motions.

On May 11, 2016, Blenman filed a timely [N]otice of [A]ppeal to [this Court]. [This Court] subsequently affirmed [Blenman’s] convictions and judgment of sentence on September 5, 2017…. [See Blenman, supra.2] On September 20, 2017, [Blenman] timely filed the present [P]etition for relief pursuant to the PCRA. After being appointed counsel, [Blenman] filed an [A]mended [P]etition for relief through counsel. On February 26, 2020, [after providing Pa.R.Crim.P. 907 Notice of its intent to dismiss Blenman’s Petition,] the PCRA court dismissed [Blenman’s] [P]etition for relief without a hearing. [Blenman] filed a timely [N]otice of [A]ppeal to [this Court] on March 5, 2020.

PCRA Court Opinion, 7/23/20, at 2-3 (footnote added). Blenman

subsequently filed a court-ordered Pa.R.A.P. 1925(b) Concise Statement of

matters complained of on appeal.

Blenman now presents the following questions for our review:

A. Did the PCRA court err and abuse its discretion in dismissing Claim #3 (ineffective assistance of counsel) without an evidentiary hearing, because former defense counsel had no reasonable basis for failing to file and litigate a Rule 600 motion in order to protect [] Blenman’s rights under the [s]peedy [t]rial [c]lause of the Sixth Amendment and Rule 600 of the Pennsylvania Rules of Criminal Procedure[,] and also had no reasonable basis for failing to obtain [Blenman’s] medical records for the suppression hearing in a ____________________________________________

2 The PCRA court states in its Opinion that Blenman filed a Petition for allowance of appeal, and that the Pennsylvania Supreme Court denied his Petition. However, our review of the record reveals that Blenman did not file a petition for allowance of appeal. Additionally, Blenman states in the instant Appellate Brief that he did not appeal this Court’s decision. Brief for Appellant at 8.

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timely manner, all of which prejudiced [Blenman] by compounding the loss of pre-sentence confinement credit caused by the [d]ue [p]rocess violation described in Claim #1?

B. Did the PCRA [c]ourt err and abuse its discretion in dismissing Claim #4 (ineffective assistance of counsel) without an evidentiary hearing, because former defense counsel lacked a reasonable basis for failing to cross examine Officer Opalski at the suppression hearing about a) the location and timing of the two purported sightings of [] Blenman prior to the stop by police; and, b) the mischaracterization of the gun recovered from [] Blenman as a “Dirty Harry gun,” as such cross-examination would have cast doubt on the officer’s testimony and eliminated these “articulable facts” from the suppression court’s Fourth Amendment “reasonable suspicion” analysis, thereby prejudicing [Blenman] by [the trial court’s] denial of his suppression [M]otion?

C. Did the PCRA [c]ourt err and abuse its discretion in dismissing Claim #2 (ineffective assistance of counsel) without an evidentiary hearing, because former defense counsel lacked a reasonable basis for failing to take any action to respond to the unconstitutional conduct of the First Judicial District (and/or its agents) in changing [] Blenman’s bail type to ROR, as described above, such as by filing a motion to revoke ROR bail. As a result of former defense counsel’s conduct, [was] Blenman [] prejudiced by the loss of presentence confinement credit and suffered illegal imprisonment?

D. Did the PCRA [c]ourt err in dismissing Claim #1 ([d]ue [p]rocess and Eighth Amendment violations) without an evidentiary hearing, because the Court of Common Pleas of Philadelphia County ([t]he First Judicial District of Pennsylvania), and/or agents thereof, violated [] Blenman’s [d]ue [p]rocess rights under the Pennsylvania and United States Constitutions, his Eighth Amendment [r]ights under the United States Constitution, and his rights afforded by state and local rules governing bail (including [Pa.R.Crim.P. 529]), by changing [] Blenman’s bail type from monetary to [ROR] without providing notice or a hearing to [] Blenman and without [] Blenman’s knowledge or consent, which caused [] Blenman to lose presentence confinement credit and suffer illegal imprisonment?

E. Did the PCRA [c]ourt err and abuse its discretion in denying [] Blenman’s discovery [M]otion filed on March 15, 2018, and

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supplemented on April 16, 2019, when the Commonwealth did not oppose the [M]otion[] and when [Blenman] demonstrated exceptional circumstances which justified discovery under Rule 902(E)(1)?

Brief for Appellant at 4-5 (issues reordered).

The standard of review of an order dismissing a PCRA petition is whether that determination is supported by the evidence of record and is free of legal error. The PCRA court’s findings will not be disturbed unless there is no support for the findings in the certified record. Moreover, [a] PCRA petitioner is not automatically entitled to an evidentiary hearing. We review the PCRA court’s decision dismissing a petition without a hearing for an abuse of discretion.

The 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. Williams, 244 A.3d 1281, 1286-87 (Pa. Super. 2021)

(citations omitted).

In his first claim, Blenman argues that his trial counsel was ineffective

in failing to protect his right to a speedy trial pursuant to Pennsylvania Rule

of Criminal Procedure 600(A)(2)(a), the Sixth Amendment to the United

States Constitution, and Article I, Section 9 of the Pennsylvania Constitution.

See Brief for Appellant at 41-54. Pertaining to Rule 600, Blenman argues that

the time between his filing of the January 10, 2013, Motion to Suppress, and

the trial court’s December 1, 2014, Order denying the Motion should not be

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excluded or excused. Id. at 41-46. According to Blenman, the delay occurred

because his counsel failed to obtain medical records that would have

supported his Motion, and the Pennsylvania Department of Corrections failed

to honor Trial Court Writs that ordered Blenman to be brought to court for

hearings. Id. at 42-46. Blenman states that his trial counsel failed to file a

Motion to Dismiss pursuant to Rule 600; trial counsel’s omission was not part

of a reasonable trial strategy; and Blenman was prejudiced as a result. Id.

Additionally, Blenman claims that his rights were violated pursuant to

the United States and Pennsylvania Constitutions. Id. at 47-51. Blenman

argues that the Commonwealth did not exercise due diligence in securing

transportation for his presence at court proceedings, and the resulting delay

should have been attributable to the Commonwealth. Id. Blenman asserts

that this delay caused him prejudice at trial, because he suffered from

oppressive pre-trial incarceration. Id. at 52-54.

To prevail on a claim of ineffective assistance of counsel under the PCRA,

a petitioner must plead and prove, by a preponderance of the evidence, that

counsel’s ineffectiveness “so undermined the truth-determining process that

no reliable adjudication of guilt or innocence could have taken place.” 42

Pa.C.S.A. § 9543(a)(2)(ii). Specifically, a petitioner must establish that “the

underlying claim has arguable merit; second, that counsel had no reasonable

basis for his action or inaction; and third, that [the a]ppellant was prejudiced.”

Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa. Super. 2014). “A

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PCRA petitioner must address each of these prongs on appeal.”

Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018). Counsel is

presumed to be effective and the burden is on the appellant to prove

otherwise. Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011). A

failure to satisfy any prong of the test for ineffectiveness will require rejection

of the claim. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).

In its Opinion, the PCRA court set forth the relevant law, cogently and

thoroughly addressed Blenman’s claim, and concluded that it lacks merit. See

PCRA Court Opinion, 7/23/20, at 10-33. Specifically, regarding Rule 600, the

PCRA Court determined that the time due to trial counsel’s failure to obtain

medical records was chargeable to Blenman, and that the time due to the

Department of Corrections’ failure to bring Blenman to court was not

chargeable to the Commonwealth. Id. at 17-22 (citing Commonwealth v.

Mines, 797 A.2d 963, 965 (Pa. Super. 2002) (stating that “[d]elays resulting

despite the issuance of a bringdown and writ for the defendant’s appearance

are not chargeable to the Commonwealth.”)). As a result, the PCRA court

concluded that Blenman was brought to trial before the adjusted run date

pursuant to Rule 600. Id. at 10-25. The PCRA court further concluded that

Blenman’s rights under the Pennsylvania and United States Constitutions were

not violated because the Commonwealth exercised due diligence in bringing

Blenman to trial. Id. at 25-33. Accordingly, the trial court concluded,

Blenman’s underlying claim lacks merit. Id. at 31-33. We agree with the

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sound reasoning and determinations of the PCRA court as set forth in its

Opinion, and we affirm on this basis regarding Blenman’s first claim. Id. at

10-33.

In his second claim, Blenman argues that his trial counsel was

ineffective in cross-examining Officer Opalski at the pre-trial suppression

hearing. See Brief for Appellant at 55-69. According to Blenman, Officer

Opalski’s testimony regarding two key pieces of evidence was incredible. Id.

Blenman references Officer Opalski’s testimony regarding the distance

between the two locations where Officer Opalski viewed Blenman, and the size

of the gun the officers watched Blenman discard during their pursuit of

Blenman, and recovered thereafter. Id. Blenman states that the distance

between the locations where Officer Opalski saw Blenman was much closer

than the distance to which he testified, and the gun that was recovered was

much smaller than the size to which Officer Opalski testified. Id. at 59-60,

62-68. Blenman argues that his trial counsel was ineffective in failing to point

out these inconsistencies, and that his trial counsel lacked a reasonable trial

strategy for his inactions. Id. at 60-62, 62-69. Blenman further claims that

he was prejudiced, because had his trial counsel questioned Officer Opalski

regarding these topics, the trial court would have found Officer Opalski’s

testimony incredible, and granted his Motion to Suppress the firearm. Id.

In its Opinion, the PCRA court cogently and thoroughly addressed

Blenman’s claim, and concluded that it lacks merit. See PCRA Court Opinion,

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7/23/20, at 38-43. Specifically, the PCRA court found that Blenman was not

prejudiced by his trial counsel’s cross-examination, because the trial court

gave minimal weight to Officer Opalski’s testimony regarding the distance

between the two areas in which Blenman was sighted, and the exact size of

the firearm. Id. at 39-40, 42-43; see also id. at 39 (stating that the trial

court found Officer Opalski possessed probable cause to stop Blenman based

on his testimony that the locations where Blenman was spotted were high-

crime areas, and that the firearm Blenman was carrying was heavy enough to

create “labored walking and [a] large bulge” in Blenman’s front waistband).

We agree with the sound reasoning and determinations of the PCRA court as

set forth in its Opinion, and we affirm thereon regarding Blenman’s second

claim. Id. at 38-43.

We will consider Blenman’s third and fourth claims together, as they are

related. In his third claim, Blenman argues that his due process rights were

violated when the trial court modified his bail, from ten percent of $500,000

to ROR, without providing him with notice and without holding a hearing. See

Brief for Appellant at 27-36. Blenman states that even though he was eligible

to be released from prison, he was nonetheless held on a detainer for a parole

violation on another case. Id. at 32-35. Blenman asserts that as a result, he

remained incarcerated, but did not receive credit for the time that he served

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following the change in his bail. Id. According to Blenman, he lost 1,225

days of credit for time served as a result.3 Id. at 33.

In his fourth claim, Blenman argues that his counsel was ineffective in

failing to take any action in response to the bail changing without a hearing

and without Blenman receiving notice. See Brief for Appellant at 36-40.

Blenman states that his trial counsel had no reasonable basis for failing to

address his change in bail, and that his counsel’s ineffectiveness caused him

prejudice because he was denied significant credit for time served as a result

of counsel’s inaction. Id. at 39-40.

Pennsylvania Rule of Criminal Procedure 529 governs the procedure for

modification of bail orders. Rule 529 states, in relevant part, as follows:

(C) The existing bail order may be modified by a judge of the court of common pleas:

(1) at any time prior to verdict upon motion of counsel for either party with notice to opposing counsel and after a hearing on the motion; or

(2) at trial or at a pretrial hearing in open court on the record when all parties are present.

Pa.R.Crim.P. 529(C) (emphasis added).

____________________________________________

3 Blenman admits that a portion of the time he spent in prison as a result of

the detainer was credited to his Lebanon County case. Brief for Appellant at 32. Blenman argues that he was still denied credit for a large portion of his time served, and he would have received more credit had the trial court not modified his bail. Id. at 32-33. It is unclear from Blenman’s Appellate Brief whether 1,225 days is the total amount of credit Blenman had accrued, or whether it was the remaining amount of credit he was owed after receiving credit on his Lebanon County case.

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Here, the record reveals the trial court modified Blenman’s bail, on

December 6, 2012, without holding a hearing and without affording Blenman

notice. The certified record does not include an Order effectuating the change,

documentation that Blenman was issued notice, or even a motion by the

Commonwealth to change bail. Indeed, the sole indication in the certified

record that Blenman’s bail was changed is a notation on the docket, from

December 6, 2012, indicating “Bail Type Changed.”4 Accordingly, we remand

for a hearing to determine whether Blenman’s due process rights were

violated, whether he was denied effective assistance of counsel, and whether

he is entitled to credit for time served.

In his fifth claim, Blenman argues that the trial court erred in denying

his Motions for discovery related to his PCRA Petition. See Brief for Appellant

at 70-71. In his first Motion for discovery, Blenman requested production of

the Commonwealth’s Motion to change Blenman’s bail, if it existed, and any

other bail-related documents. See Motion for Discovery, 3/15/18, at 2. In

his Supplemental Motion, Blenman requested documents related to the

procedure for issuing and processing writs to transport a prisoner to court for

hearings. See Supplemental Motion for Discovery, 4/16/18, at 2. Blenman

4 We note that Blenman attached to his Amended PCRA Petition a purported

copy of the December 6, 2012, Order modifying bail. The Order, which lacks an original time-stamp from the date it was filed, indicates that the Commonwealth “presented” a Motion to modify Blenman’s bail. However, there is no other indication that a hearing was held, or that Blenman was notified of the Commonwealth’s Motion.

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claims that these documents were necessary to support his PCRA claims. Id.

at 71. According to Blenman, the “unusual facts” of his case constitute

“extraordinary circumstances” that justify discovery under Pa.R.Crim.P.

902(E). Id.

We review the denial of discovery for an abuse of discretion. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will as shown by the evidence or the record, discretion is abused.

Commonwealth v. Crispell, 193 A.3d 919, 939 (Pa. 2018) (citation and

quotation marks omitted).

Pennsylvania Rule of Criminal Procedure 902(E) provides, in relevant

part, that “no discovery shall be permitted at any stage of the [PCRA]

proceedings, except upon leave of court after a showing of exceptional

circumstances.” Pa.R.Crim.P. 902. “A showing of good cause requires more

than just a generic demand for potentially exculpatory evidence.” Crispell,

193 A.3d at 940 (citation and quotation marks omitted).

Here, even if the documents requested by Blenman exist, their

production would not assist his claims. Regarding the bail documents, even if

the Commonwealth had motioned to change bail, the certified record is still

devoid of any evidence that a hearing took place, and that Blenman received

notice of the change in bail. Regarding the writ and transportation procedure

documents, even if such documents were produced, the delay in trial

attributable to the Pennsylvania Department of Corrections’ failure to

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transport Blenman to court would still not be chargeable to the

Commonwealth. See Mines, supra. Accordingly, we conclude that the trial

court did not err in denying Blenman’s Motions for discovery. See

Pa.R.Crim.P. 902, Crispell, supra.

Order affirmed in part, reversed in part, and remanded for further

proceedings. Jurisdiction relinquished.

Judge Lazarus joins the memorandum.

Judge Nichols did not participate in the consideration or decision of this

case.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/28/21

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IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNT FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CRIMINAL TRIAL DIVISION

COMMONWEALTH OF PENNSYLVANIA CP-51-CR-13908-2012

VS.

KEVIN BLENMAN SUPERIOR COURT Appellant NO. 838 EDA 2020

OPINION

KENNEDY, J. July 23, 2020

Kevin Blenman (hereinafter "Appellant") appeals from the February 26, 2020, order,

entered in the Philadelphia County Court of Common Pleas, dismissing his petition for relief

filed pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. The

relevant facts and procedural history follow below.

FACTS AND PROCEDURAL HISTORY

The PCRA court recounts the facts underlying the present appeal. Briefly, the Honorable

Carolyn Nichols summarized the facts as follows:

On November 5, 2012, Philadelphia police officer Jeffrey Opalski [(Officer Opalski)], along with his partner Officer Mundrick, were on patrol in an uiunarked police car in plain clothes. At the time, Officer Opalski had been a police officer for two and ahalf years with ten [firearm-related] arrests, along with specific training in firearms and the methods in which they are carried on a person. The officers were traveling along the 5100 block of Viola St[reet] in Philadelphia, when they observed [Appellant] standing in front of an abandon[ed] building. Officer Opalski testified that drug sales are typically conducted in and around abandoned properties. The officers were patrolling in that specific area because there were reports of drug sales and gun violence associated with rival

Prior to joining the bench of the Superior Court in 2018, Judge Nichols sat on the Philadelphia County Court of Common Pleas. Judge Nichols was the original jurist to hear Appellant's December 1, 2014, motion to suppress that was later denied. Judge Nichols authored aNovember 14, 2016, 1925(a) Opinion supporting her denial of relief. drug gangs. As the officers drove down Viola St[reet], [Appellant] looked in their direction, turned and walked through an alleyway next to an abandoned house. The officers then continued down Viola St[reet], circled the block afew times, and again spotted [Appellant] on anearby block. At this time, he was walking with anoticeable limp and had alarge bulge in the front area of his waistband. The officers stopped their car, exited and identified themselves as police officers. Immediately [Appellant] grabbed his waistband area and ran from the officers. After running for about ablock, the officers observed [Appellant] remove alarge silver revolver from his waistband and discard it in apile of trash bags. He was arrested shortly thereafter.

[Appellant] was taken to alocal hospital for some minor injuries and then released back to police custody around 2:00 a.m. the following day. [Appellant] was initially too groggy to be interviewed at that time. On November 6, 2012, at around 3:20 a.m,[,] Detective [Matthew] Maurizio read [Appellant] his Miranda warnings and conducted apost-arrest interview. z [Appellant] did not appear to be in any distress at that point, was not injured, and was lucid in his recollection. [Appellant] then gave avery detailed statement of his activities that night, including where and from whom he received the gun and what he was intending to do with it. He read and signed the statement along with his Miranda warnings.

Commonwealth v. Blenman, No. 2430 EDA 2016, at 1-2 (Pa. Super. filed September 5, 2017)

(unpublished memorandum) (citing Trial Court Opinion, 11/14/2016, at 2-3). Following his

arrest, Appellant attended apreliminary arraignment at which his bail was set at ten percent of

$500,000. On November 21, 2012, Appellant attended his preliminary hearing at which his three

charges were held for court. By order, dated December 6, 2012, Appellant's bail status was

changed from the previous monetary bail to a"release on recognizance" ("ROR") bail. Appellant

remained in custody due to adetainer issued by the Pennsylvania Board of Probation and Parole.

On January 23, 2013, Appellant filed an omnibus pre-trial motion, including amotion to

suppress physical evidence. On December 1, 2014, following several delays, ahearing on

Appellant's motion to suppress was heard and was subsequently denied. Following astipulated

bench trial on February 3, 2016, Appellant was found guilty of three violations of the Uniform

Firearms Act. For his convictions, Appellant was sentenced on April 14, 2016, to an aggregate

2Miranda v. Arizona, 384 U.S. 436 (1966),

2 term of five to ten years' confinement and aconsecutive term of five years' probation. Appellant

did not file any post-sentence motions.

On May 11, 2016, Appellant filed atimely notice of appeal to the Superior Court. The

Superior Court subsequently affirmed Appellant's convictions and judgment of sentence on

September 5, 2017, and the Pennsylvania Supreme Court denied his petition for allowance of

appeal. On September 20, 2017, Appellant timely filed the present petition for relief pursuant to

the PCRA. After being appointed counsel, Appellant filed an amended petition for relief through

counsel. On February 26, 2020, the PCRA court dismissed Appellant's petition for relief without

ahearing. Appellant filed atimely notice of appeal to the Superior Court on March 5, 2020.

MATTERS COMPLAINED ON APPEAL:

Appellant's 1925(b) Statement asserts:

1. The PCRA court erred in dismissing [Appellant's claim] without an evidentiary hearing because the Court of Common Pleas of Philadelphia County, and/or agents thereof, violated [Appellant's] Due Process rights under the Pennsylvania and the United States Constitution, his Eighth Amendment rights under the United States Constitution, and his rights afforded by state and local rules governing bail, by changing [Appellant's] bail type from monetary to "Release on Recognizance" without providing notice or ahearing to [Appellant] and without [his] knowledge or consent, which caused Appellant to lose presentence confinement credit and suffer illegal imprisonment.

2. The PCRA court erred in dismissing [Appellant's claim] without an evidentiary hearing, because the former defense counsel lacked areasonable basis for failing to take any action to respond to the unconstitutional conduct of the [Court of Common Pleas] in changing [Appellant's] bail type, as described above, such as by filing a motion to revoke ROR bail. As aresult of former defense counsel's conduct, [Appellant] was prejudiced by the loss of presentence confinement credit and suffered illegal imprisonment.

3. Th PCRA court erred in dismissing [his third claim] without an evidentiary hearing because former defense counsel has no reasonable basis for failing to file and litigate aRule 600 motion in order to protect [Appellant's] rights under the Speedy Trial Clause of the the Sixth Amendment and Rule 600 of the Pennsylvania Rules of

3 Criminal Procedure when the Commonwealth lacked due diligence in bringing [Appellant] to trial by ensuring that the Court's writs were honored and enforced by government agencies.

4. The PCRA court erred in dismissing [Appellant's fourth claim] without an evidentiary hearing, because former defense counsel lacked areasonable basis for failing to cross-examine Officer Opalski at the suppression hearing [concerning several sub-issues).

5. The PCRA court erred and abused its discretion in denying [Appellant's] discovery motion ... because [Appellant] demonstrated exceptional circumstances which justified discovery under [Pennsylvania Rule of Criminal Procedure 902(e)(1).

DISCUSSION

Kevin Blenman ("Appellant"), appeals from the PCRA court's dismissal of his petition

for relief filed pursuant to the Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. In

reviewing the denial of PCRA relief, areviewing court examines whether the PCRA court's

determination "is supported by the record and free from legal error." Commonwealth v. Rainey,

928 A.2d 215, 223 (Pa. 2007). The PCRA court's findings will not be disturbed unless there is

no support for the findings in the certified record. Commonwealth v. Lippert. 85 A.3d 1095, 1100

(Pa. Super. 2014).

After athorough and independent review of the record, the PCRA court must now

conclude that remand back to the PCRA court for an evidentiary hearing limited to his bail

modification claims is the proper course. The other matters Appellant has raised do not warrant

relief on the basis that he has not met his burden of proof. Accordingly, the PCRA court

respectfully requests the Superior Court to remand the above matter.

I. Appellant is Entitled to Remand for an Evidentiary Hearing on Alleged Due Process Violations.

In his first claim for relief, Appellant contends that his constitutional right to Due Process

was violated through the court's failure to credit for time served. The failure to award credit for

4 time served goes to the legality of asentence, which means the claim is cognizable under the

PCRA. See Commonwealth v. Menezes, 871 A.2d 204, 207 (Pa. Super. 2005). Appellant states

that he is entitled to 1,225 days of credit for time because no bail modification hearing occurred

in open court, nor did counsel from either party file amotion for bail modification. See App. Pet.,

4/16/20, at 6. The Commonwealth alternately agreed Appellant is entitled to relief, but should

receive only 633 days of credit for time served. See Comm. Mot., 7/31/19, at 3(unpaginated).

Although the certified record contains aDecember 6, 2012 order modifying Appellant's bail

status, there is no evidence supporting that abail hearing consistent with amotion from either

party, nor that arequest to modify bail terms occurred in open court.

A. The Right to Due Process

The claim asserted by Appellant warrants abrief foundational discussion imposed upon

the courts to award bail. Pennsylvania Rule of Criminal Procedure 529(c) states abail order may

be modified by ajudge of the court of common pleas "at any time prior to verdict upon motion

of counsel for either party with notice to opposing counsel and after ahearing" or at "trial or at a

pretrial hearing in open court on the record when all parties are present." Pa.R.Crim.P. 529 (c)(1-

2), The claim put forth by Appellant sounds in procedural due process. 3

i. Appellant and Procedural Due Process Claim

Appellant first relies upon procedural due process of the opportunity to be heard. See

Commonwealth v. Turner, 80 A.3d 754, 761 (Pa. 2013). In pertinent part, the Fourteenth

Amendment states "nor shall any State deprive any person of life, liberty, or property without

due process of law," and protects "the individual against arbitrary action of government." Id. at

3In light of the PCRA court's agreement that remand to the lower court for an evidentiary hearing is the proper remedy, the PCRA court need not address Appellant's substantive due process claim attendant to the trial court's failure to hold abail modification hearing,

5 763. Likewise, Article I, Section 9of the Pennsylvania Constitution also guarantees acriminal

defendant the right to due process. The constitutional right to due process guarantees more than

fair process, covering asubstantive sphere as well, "barring certain government actions

regardless of the fairness of the procedures used to implement them." County of Sacramento v.

Lewis, 523 U.S. 833, 840 (1998) (citing Daniels v. Williams, 474 U.S. 327, 331 (1986)). "Due

process" is not susceptible to precise definition; rather, the phrase expresses the requirement of

"fundamental fairness," arequisite "whose meaning can be as opaque as its importance is lofty."

Lassiter v. Dept of Soc. Serv. of Durham County, 452 U.S. 18, 24--25 (1981).

Within procedural due process, the government is prohibited from depriving individuals

of life, liberty, or property unless it provides the process that is due. While not capable of an

exact definition, the basic elements of procedural due process are adequate notice, the

opportunity to be heard, and the chance to defend oneself before afair and impartial tribunal

having jurisdiction over the case. Commonwealth v. Wright, 961 A.2d 119, 132 (Pa. 2008). Thus,

courts examine procedural due process questions in two steps: the first asks whether there is a

life, liberty or property interest that the state has interfered with; and the second examines

whether the procedures attendant to that deprivation were constitutionally sufficient. Kentucky

Dep't of Corr. v. Thompson, 490 U.S. 454,460 (1989).

ii. Pennsylvania Bail Procedures

Appellant raises his claim under the argument that his rights to due process —both

substantive and procedural —were violated through the action of improper bail measures. It is

axiomatic that bail is the surety required and given for the release of aperson in custody of the

law, conditioned upon awritten undertaking that the person will appear when required and do all

other things stipulated therein. See Pa.R.Crim.P. 103. The fundamental purpose of bail in a

6 criminal case is to secure the presence of the accused at trial. See Cornmontiuealth v. McDonald,

382 A.2d 124 (Pa. 1978). The Eighth Amendment to the United States Constitution states that

"Excessive bail shall not be required." The Eighth Amendment, fundamental to our system of

justice, has been found to apply to the states through the operation of the Fourteenth

Amendment. Schilb v. Kuebel, 404 U.S. 357 (1971).

In Pennsylvania, our state constitution guarantees the right to bail before trial and states

that all defendants "shall be bailable by sufficient surities ... unless no condition or combination

of conditions other than imprisonment will reasonable assure the safety of any person and the

community when the proof is evident or presumption great[.]" Pa. Const, Art. I., §14. The right

to release on bail before trial is conditioned upon the defendant's giving adequate assurance that

he will appear for trial. If the court reasonably concludes that adefendant may not appear for

trial, no matter how high the bail is set, the court may deny bail altogether. See Coninwnivealth v.

Sloan, 907 A.2d 460 (Pa. 2006).

Here, there are two distinct categories of release on bail at issue: Release On

Recognizance ("ROR") and Release on Monetary Condition. ROR is conditioned only upon the

defendant's written agreement to appear and to comply with the conditions of the bail bond.

Pa.R.Crim.P. 524(c)(1). Alternatively, arelease on monetary condition is arelease conditioned

upon the defendant's compliance with amonetary condition imposed pursuant to Rule 528. See

Pa.R.Crim.P. 524(c)(3). Rule 528 provides factors abail authority may consider to determine

whether it is necessary to impose amonetary condition of bail and permitting the bail authority

to require asum of money -- not to exceed ten percent —of the full amount of the monetary

condition. See Pa.R.Crim.P. 528. Although the initial bail authority determined monetary bail

was necessary under the constructs of Pa.R.Crim.P. 523, asubsequent judge of the Philadelphia

7 County Court of Common Pleas entered aDecember 6, 2012 order modifying Appellant's bail

from amonetary condition to ROR. Our Rules of Criminal Procedure are clear that bail

modification before verdict may only occur "upon motion of counsel for either party with notice

to opposing counsel and after ahearing" or at "trial or at apretrial hearing in open court on the

record when all parties are present." Pa.R.Crim.P. (c)(1-2).

Despite the mandates contained within the Rule 529(c), Appellant's bail was modified

without notice to opposing counsel and without ahearing; likewise, the bail modification order

was not entered in open court with all parties present. The Commonwealth asserts that it was the

standard practice of the President Judge in Philadelphia to issue orders for bail modification from

amonetary condition to ROR when, as here, the defendant is additionally detained on aparole

violation. See Coin. Letter Brief, 10/3/18, at 2-3. Such orders were entered in an effort to reduce

the population of the Philadelphia County prison system. See id.

iii. Appellant was not afforded procedural due process consistent with the protection of his Constitutional rights.

Appellant contends that it was through the court entering an order that scythed apath to

release on bail ROR that his constitutional right to freedom from bodily restraint. There can be

little doubt that within the present case, Appellant had aconsiderable liberty interest in having a

bail hearing with sufficient notice before acourt. This did not occur. The record observes only

that an order was entered by the President Judge that modified the bail. Despite the President

Judge's authority to adopt regulations to manage the court's business, such authority should not

extend to bail modifications without notice or ahearing. Indeed, the hallmarks of procedural due

process include adequate notice, the opportunity to be heard, and the chance to defend oneself

before afair and impartial tribunal. See Turner, 80 A.3d at 764. Not only was Appellant not

8 provided adequate notice, but was instead not provided any notice and had no opportunity to be

heard on the matter.

1. The PCRA court respectfully asks the Superior Court to remand the case back to the lower court for an evidentiary hearing.

As reflected above, Criminal Rule of Procedure 529 states that abail before averdict has

been entered may only be modified after notice to opposing counsel and the opportunity to be

heard on the matter. Turning first the procedural due process inquiry, the PCRA court finds that

Appellant did have aliberty interest that has been interfered with by the Commonwealth. The

liberty interest at stake is the possibility that the bail modification prevented Appellant from

receiving the proper amount of credit for time served for the present case. Turning to the second

prong of the procedural due process inquiry, the procedures attendant to the bail modification

were not sufficient to protect Appellant's liberty interest. See Kentucky Dep't of Corr. v.

Thompson, 490 U.S. 454, 460 (1989).

Here, remand back to the PCRA court for an evidentiary hearing to determine any pre-

sentence confinement credit is the proper course. It is well understood that original jurisdiction

over aproceeding under the PCRA shall be in the court of common pleas. See 42 Pa.C.S.A. §

9545(a), The PCRA bestows original jurisdiction in which apetitioner suffered aviolation of the

Constitution of the Commonwealth or laws of the United States that so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could have taken place.

See 42 Pa.C.S.A. §9543(a)(2)(i). The PCRA court may hold ahearing when the petition for

post-conviction relief, or the Commonwealth's response, raises material issues of fact.

Pa.R.Crim.P. 908(a)(1). The disparity between the amount of credit each party asserts is due

presents agenuine issue of material fact; the Commonwealth states that only 633 days must be

awarded, while Appellant asserts he is due over 1,200 days.

9 B. The claim for ineffective assistance by trial counsel in failing to file amotion to revoke bond is moot.

In his second claim for relief, Appellant contends that he received ineffective assistance

of trial counsel because counsel did not file or litigate amotion to revoke bond. However, given

the PCRA court's disposition of Appellant's due process claims, aremand on the basis of

ineffective of assistance of trial counsel is moot. The PCRA court agrees that remand is proper

so that it may hold an evidentiary hearing on the claims. The relief available to Appellant under

the ineffective assistance of counsel remains largely similar to the relief under the due process

claims.

II. The PCRA Court Properly Denied Relief because Appellant was Tried before His Adjusted Run Date.

In his third claim, Appellant asserts the PCRA court erred in dismissing his petition for

relief on the basis that his right to effective assistance of counsel was violated in failing to

protect his right to aspeedy trial.

A. Rule 600 Generally

It is generally understood that Rule 600 "was designed to prevent unnecessary

prosecutorial delay in bringing adefendant to trial." Coininonlivalth v. Brock, 61 A.3d 1015,

1021 (Pa. 2013). Further, our Supreme Court has held that:

Rule 600 serves to protect adefendant's speedy trial rights, as well as society's right to effective prosecution of criminal cases. To balance these rights, Rule 600(G) requires the court to consider whether the Commonwealth exercised due diligence, and whether the circumstances occasioning the delay of trial were beyond the Commonwealth's control. Further, the rule states, [i]f, at any time, it is determined that the Commonwealth did not exercise due diligence, the court shall dismiss the charges and discharge the defendant.

10 Commonwealth 1,,Selenski, 994 A.2d 1083, 1088 (Pa. 2010) (internal citations omitted) .4

In relevant part, Rule 600 requires that trial shall commence within 365 days from the

date on which the complaint is filed. See Pa.R.Crim.P. 600(a). This straightforward calculation is

known as the mechanical run date. See Commonwealth v. Ramos, 936 A.2d 1097, 1102 (Pa.

Super. 2007). However, those periods of delay caused by adefendant are excluded from the

computation of the length of time of any pretrial incarceration. Pa.R.Crim.P. 600(c). Following

these exclusions, if any, the court arrives at an adjusted run date by extending the mechanical run

date to account for these exclusions. See Ramos, supra, at 1102. Any other delay that occurs,

despite the Commonwealth's due diligence, is deemed excusable and results in further

adjustments to the effective run date. Pa.R.Crim.P. 600(8); see also Ramos, 936 A.2d at 1102

(explaining that "excusable delay is alegal construct that takes into account delays which occur

as aresult of circumstances beyond the Commonwealth's control and despite its due diligence")

(internal citation and punctuation omitted). Further, to obtain relief pursuant to Rule 600, a

defendant must have avalid Rule 600 claim at the time he files his motion to dismiss the

charges. Commonwealth v. Hunt, 858 A.2d 1234, 1243 (Pa. Super. 2004) (en bane).

To establish that adelay is excusable, the Commonwealth must demonstrate that it

proceeded with due diligence by apreponderance of the evidence. Selenski, 994 A.2d at 1089.

Due diligence is "fact-specific, to be determined case-by-case; it does not require perfect

vigilance and punctilious care, but merely ashowing the Commonwealth has put forth a

reasonable effort." Id. Due diligence "includes, among other things, listing acase for trial prior

to the run date, preparedness for trial prior to the run date, and keeping adequate records to

AThe Pennsylvania Supreme Court adopted anew Rule 600, effective July 1, 2013. Here, the criminal complaint was filed prior to the new rule; accordingly, the PCRA court applies the former version. See Commonwealth v. Brock, 61 A.3d 1015, 1016 n.2 (Pa. 2013).

11 ensure compliance with Rule 600." Rainos, 936 A.2d at 1102. The Commonwealth "should be

held to the requirement that it exercise due diligence at all times during the pendency of acase."

Commonwealth v. Hawk, 597 A.2d 1141, 1145 (Pa. 1991). Thus, the Commonwealth must act

with due diligence "throughout the period," for each delay not caused by the defendant. See

Commonwealth v, Hill, 736 A.2d 578, 586 (Pa. 1999). This requires affirmative action by the

Commonwealth. See Hawk, 597 A.2d at 1145.

B. Appellant's trial was conducted before the adjusted run date.

In order to better illustrate the timeline of Appellant's case, the PCRA court produces the

table below. The information —where possible -- includes the scheduled court date, the next

scheduled court date after acontinuance request, the reason for the continuance, whether the

record notes awrit was prepared for the next scheduled court date and the number of days

between the scheduled court date and the next scheduled court date.

Dates Activity Days Delay Excludable or Excusable Adjusted Run Date

11/5/12 —12/6/12 Arrest; Bail changed to 31 NO 11/5/13 ROR on 12/6/12.

12/6/12 —1/9/13 Held for court on 34 NO 11/5/13 11/26/12; Information filed 1/10/13

1/9/13 —1/23/13 Plea Status 14 Excludable 11/19/13

1/23/13 —11/8/13 Motion to Suppress filed; 289 Excludable 8/24/14 scheduled EPD.

11/8/13 —1/2/14 Continuance; Defense 55 Excludable 10/18/14 request to obtain medical records.

1/2/14 — 1/6/14 Writ Not Honored 4 Excusable 10/22/15

1/6/14 —3/7/14 Continuance; Case 60 Excludable 12/21/14 reassigned to Judge Nichols; Defense request

12 to obtain medical records; EPD scheduled.

3/7/14 —5/2/14 Writ Not Honored 56 Excusable 2/15/15

5/2/14 —5/12/14 Continuance; Defense 10 Excludable 2/25/15 request.

5/12/14 —5/19/14 Continuance; Writ not 7 Excusable 3/4/14 honored.

5/19/14 —7/8/14 Continuance; Writ not 50 Excusable 4/23/15 honored.

7/8/14 —8119/14 Continuance; 42 Excusable 6/4/15 Commonwealth witness unavailable due to officer training.

8/19/14 — 10/20/14 Continuance; Writ not 62 Excusable 8/5/15 honored.

Continuance; 42 Excusable 9/16/15 10/20/14 — 12/1/14 Commonwealth witness unavailable; Listed for trial 5/26/15.

12/1/14 —5/26/15 EPD trial date set by 176 NO 9/16/15 prior judge on 12/1/14.

1/13/15 case transferred 6 Excusable 9/22/15 5/26/15 —6/1/15 to Judge Kennedy; Continuance; Writ not honored.

Set earliest possible date; 238 Excusable 5/17/16 6/1/15 —1/25/16 Commonwealth ready to proceed.

Continuance; court had 1 Excusable 5/18/16 1/25/16 —1/26/16 another trial in progress.

Continuance; court had 3 Excusable 5/21/16 1/26/16 --1/29/16 another trial in progress.

13 1/29/16 —213/16 Continuance; Writ not 5 Excusable 5/25116 honored.

Because Appellant's trial commenced after the November 5, 2013, mechanical run date

under Rule 600, the PCRA court is required to perform adue diligence analysis as set forth in

Pa.R.Crim.P. 600(d). See Commonweallh v. Armstrong, 74 A.3d 228,236 (Pa. Super. 2013).

Consistent with the table reflected above, the PCRA court found only three periods of time that

were not either excludable or excusable. The first two periods —which collectively run from

November 5, 2012 through January 9, 2013 —are not excludable because these periods must be

considered as normal trial progression. See Commoniveallh v. Mills, 162 A.3d 323, 325 (Pa.

2017) (holding that period between the filing of acomplaint and astatus conference was not

excludable for Rule 600 purposes as the normal progression of acase). The 176-day period of

time from the hearing on Appellant's motion to suppress and the next hearing date —which ran

between December 1, 2014 and May 26, 2015 —was also found to not be excludable or

excusable under Rule 600. The PCRA court concluded that this period of time cannot be

excluded because it qualified as the normal progression of acase. See id. Accordingly, the PCRA

court calculated Appellant's adjusted run date as May 25, 2016. Appellant's trial occurred on

February 3, 2016; therefore, his trial began 112 days before the adjusted run date.

1. The PCRA Court Found the Time Between the Filing of the Information and the Hearing on the Motion to Suppress as Excludable.

The PCRA court turns first to Appellant's claim concerning the amount of time the

PCRA court found excludable or excusable under Rule 600. Consistent with Pennsylvania case

law, the suppression court specifically found such time as excluded. Time begins for the

purposes of Rule 600 when ajury is impaneled, or voir dire or any other substantial step has

begun —asuppression hearing is not such asubstantial step. See Commonwealth v. Gunter, 445

14 A.2d 831 (Pa. Super. 1982). In the present case, Appellant filed his motion to suppress on

January 10, 2013. The motion to suppress was not decided until December 1, 2014. Accordingly,

the 677 days between January 10, 2013 --- when Appellant filed his motion to suppress —and

December 1, 2014 —when his motion to suppress was decided —should be found excluded from

the computation because this delay is chargeable to the defense.

i. The Motion to Suppress did not Lead Directly into the Guilt Determining Process.

In addressing whether the time between the filing of Appellant's motion to suppress and

the hearing should be found excludable, the PCRA court must whether: (1) the motion to

suppress lead directly to the guilt determining process; and (2) whether the court had expended a

substantial commitment of time and resources into the hearing. It has generally been held under

Rule 600 that trial is deemed to commence on the date the trial judge calls the case to trial or the

defendant offers aguilty plea or polo contendere. See Pa.R.Crim.P. 600(a)(1); former

Pa.R.Crim.P. 600(b). Under Rule 600, trial commences when the trial judge, after determining

the panties are present, directs them to proceed: (1) to voir dire; (2) to opening argument; (3) to

the hearing of any motions which have been reserved for the time of trial; (4) the taking of

testimony; or (5) to some other such first step in the trial. See Pa.R.Crim.P. 600, curt.; see also

Jones v. Commonwealth, 434 A.2d 1197 (Pa. 1981). Relevant here, trial has commenced when

the suppression motion is heard if the testimony from that hearing is incorporated into the trial.

See Commonwealth v. Byrd, 378 A.2d 921 (Pa. 1977); see also Commonwealth v. Fisher, 368

A.2d 762 (Pa. Super. 1976).

Generally, ahearing on apretrial motion will marls the commencement of trial under

Rule 600 only if the defendant is adequately warned that the hearing has been reserved for the

time of trial, and the hearing actually leads directly into the guilt determining process.

15 Commonwealth v. Machi, 439 A.2d 1230 (Pa. Super. 1982). The proper test for whether a

hearing on apretrial motion constitutes acommencement of trial for purposes of Rule 600 is

whether the commencement of the hearing on the motion constituted asubstantial commitment

of the court's time and resources which would lead directly to the determination of guilt or

innocence. See Jones, supra. Under this test, the Superior Court has held that trial did not

commence with the suppression motion when the suppression motion was heard months before

trial. See Commonwealth v. Williams, 378 AN 906 (Pa. Super. 1977).

The hearing for Appellant's motion to suppress cannot be found to have constituted a

substantial step. The suppression court did not reserve the hearing for the time of trial and it did

not lead directly into the guilt determining process. There having been agap of several months

between the suppression hearing and Appellant's trial further supports this conclusion. See

Williams, 378 A.2d at 906. Therefore, the time between when Appellant filed his motion to

suppress and the hearing on the motion on December 1, 2014 should be found excludable in total

because the time is attributable directly to Appellant.

2. Appellant was tried before the adjusted run date even if the time before his motion to suppress was decided.

In the alternative the time between the filing of the information and the hearing on the

motion to suppress is not found completely excludable, all of the time within that range is

excludable or excusable such that Appellant's trial still occurred before the adjusted run date.

The PCRA court found the 42 days between July 8, 2014, and August 19, 2014, as also

excusable because the police officer was not available for the July 8, 2014 court date. See e.g.,

Common - •t,ealth v. Wendel, 165 A.3d 952 (Pa. Super. 2017). Likewise, the PCRA court found the

additional 42 days between October 20, 2014, and December 1, 2014 as excludable because the

police officer was again not available for the hearing. Id. The Commonwealth acted with due

16 diligence in both situations because it had located the police officer witness, determined if the

officer could attend the hearing and made it known to opposing counsel and the trial court.

3. The Period of Delays Resulting from the Writs are not Chargeable to the Commonwealth.

Appellant next contends that the Commonwealth failed to exercise due diligence in

securing his presence at trial through its management -- or mismanagement -- of writs and the

issuance of bringdown orders. In his petition for relief, Appellant cites the following dates as

causes for delay because, while writs were issued, Appellant was not brought to court: (1) March

7, 2014; (2) May 12, 2014; (3) May 19, 2014; (4) August 19, 2014; (5) December 1, 2014; (6)

May 26, 2015; and (7) January 29, 2016. See App. Pet., 4/16/18, at 16. Appellant hinges this

Rule 600 claim around the premise that the Commonwealth failed to proactively secure

Appellant's presence at hearings before the court. The Superior Court has held that Rule 600

applies the premise that:

so long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 600 must be construed in amanner consistent with society's right to punish and deter crimes.

Commonwealth v. Holt, 175 A.3d 1014, 1019 (Pa. Super. 2017) (citing Commonvi,ealth v.

Selenski, 919 A.2d 229, 232 (Pa. Super. 2007)). Accordingly, the "Commonwealth's stewardship

therefore must be judged by what was done ... rather than by what was not done." Id (emphasis

added).

Our appellate courts have consistently held that delays resulting despite the issuance of a

bringdown and writ for adefendant's appearance are not chargeable to the Commonwealth. See

Commonwealth v. Mines, 797 A.2d 963, 965 (Pa. Super. 2002). In Mines, the Superior Court

held that the "period of delay was occasioned by the inability to bring [the defendant] to

17 Philadelphia from the state prison system. The prosecutor cannot be charged with responsibility

for the delay because the "system seems unable to find, transport, and house defendants" in their

custody. Id. Appellant's case parallels Mines because the Philadelphia District Attorney's Office

cannot be faulted for the inability of the system to "find, transport, and house" Appellant. See id.

Here, Appellant correctly notes that the court had issued writs for transportation and

bringdown orders for Appellant to appear in court. This is afact reflected within the record. The

present case is distinguished from the defendant in Commonwealth v. Thompson, 136 A.3d 178

(Pa. Super. 2016), because the trial court in Thompson had not issued any writs to transport the

defendant, there was no evidence suggesting the district attorney's office had requested writs,

and the court sought to excuse the delay on the basis of the assistant district attorney's

representation that her typical practice was to request the writs for transportation. The

Commonwealth secured writs for Appellant's appearance at each court date. This is not simply a

case in which Appellant was held within the Philadelphia Prison System and the Commonwealth

had substantial control over Appellant's appearance. The often convoluted process to obtain the

presence of astate custody inmate requires cooperation from several agencies.

In his petition for relief, Appellant avers that the Office of the District Attorney "plays a

key role in the transportation of state and county prisoners to court for their court proceedings."

App. Pet., 4/24/19, at 3. Appellant further asserts that the District Attorney "is responsible for,

among other things, reviewing the `Draft Bus List' composed of names of inmates who are to be

transported to court and ensuring that it is up to date and accurate." Id. Appellant's attempt to

shift complete responsibility upon the Philadelphia District Attorney's Office for the

transportation list mischaracterizes that office's responsibilities. The Transportation Procedure

for State Prisoners states that "Court Administration shall generate adraft Bus List ... for all

18 defendants in state custody who have ... trials or sentencings for aparticular week" in court. See

App. Pet., 4/24/19, Ex. P-19, at 1. The Transportation Procedure also directs that copies "of the

draft bus list and writ list shall be forwarded to the Director of the Criminal Justice Prison

Program Population Unit, the District Attorney and Defender Association for review." Id.

Finally, the Transportation Procedure offers that signed transportation orders "shall be sent by

the Director of the Criminal Justice Prison Population Unit to the Department of Corrections[.]"

Id. at 2.

Appellant contends the Commonwealth should have proactively secured his appearances

at the dates listed within his petition for relief. The Commonwealth did so. The ultimate fault

rests with the Department of Corrections —not the Commonwealth —and its failure to honor the

trial court's transportation orders and does not represent an effort by the Commonwealth to

evade Appellant's speedy trial rights. See Holt, 175 A.3d at 1019. Consistent with the Holt

Court's directive, the PCRA court looked to the action that was taken by the Commonwealth and

not the actions the Commonwealth is alleged to have failed to take. See id.

As reflected above, Appellant's case is distinguished from Mines because transportation

writs were issued for each court appearance and appear within the record. Unlike the situation in

Mines, the PCRA court did not have to rely upon the prosecutor's typical practice to secure writs

and had evidence in the record the writs were secured well beforehand. Therefore, because the

Commonwealth did not act with the intention to evade Appellant's fundamental right to aspeedy

trial after having secured transportation writs, the PCRA court found the time attributable to the

failure by agencies —other than the Philadelphia District Attorney's Office —to honor the writs

as excusable from the calculation of Appellant's adjusted run date.

4. The Period of Delays Resulting from Medical Records are Chargeable to Appellant.

19 As reflected above, Appellant contends that delays resulting from trial counsel's failure

to earlier request Appellant's medical records impermissibly caused adelay of the proceedings in

violation of his right to aspeedy trial. This claim raises two distinct questions: (1) whether trial

counsel was ineffective for failing to earlier request Appellant's medical records; and (2)

whether the delay from requesting the medical records is attributable to Appellant in calculating

his adjusted run date. The PCRA court is constrained to find that Appellant has not demonstrated

trial counsel was ineffective in requesting his medical records and that the resulting delay is

excluded from calculating Appellant's adjusted run date.

i. Appellant's requests for continuances to obtain medical records are excludable.

The PCRA court begins by noting the Rules of Criminal Procedure are explicitly clear

that "those periods of delay caused by adefendant are excluded from the computation of the

length of time of any pretrial incarceration." Pa.R.Crim.P. 600(c). The 55 days between

Appellant's November 23, 2013, and January 2, 2014, should be excluded from the computation

of time because Appellant had specifically requested the continuance in order to attain

Appellant's medical records for the motion to suppress. See Cofnmonn,eallh v. Aaron, 804 A.2d

39 (Pa. Super. 2002). The 60 days between the respective January 6, 2014, and March 7, 2014,

court dates are also excluded because the defense had requested the continuance —again —to

secure Appellant's medical records. Id. The PCRA court found the following ten-day period

between May 2, 2014 and May 12, 2014 also excludable from the computation because the

continuance was requested by Appellant. Consistent with Rule 600(c) and applicable case law,

the periods of delay attributable to Appellant in requesting continuances to obtain medical

records are flatly excluded from the computation of the adjusted run date.

20 ii. Appellant has failed to demonstrate that trial counsel was ineffective by not earlier requesting his medical records.

Appellant contends that his trial counsel was ineffective for failing to earlier request his

medical records in preparation for the motion to suppress evidence. Specifically, Appellant

asserts that his trial counsel was ineffective and did not protect his constitutional right to a

speedy trial by "failing to obtain [Appellant's] medical records in atimely fashion[.]" App. Pet.,

4/24/19, at 2. In his Amended Petition for Relief, Appellant acknowledges that his trial counsel

"obtained [Appellant's] medical records on or about March 11, 2014, [while] the motion to

suppress hearing was not held until December 1, 2014, adelay of 264 days." Id.

It has long been held that to obtain relief, apetitioner must show: (1) the underlying

claim is of arguable merit; (2) no reasonable basis existed for counsel's action or inaction; and

(3) counsel's error caused prejudice such that there is areasonable probability that the result of

the proceeding would have been different absent such error. Commoni4)ealth v. Pierce, 527 A.2d

973, 975 (1987). Within the PCRA, it is the Appellant, as petitioner, that bore the burden to

plead and prove his claims. See 42 Pa.C.S.A. §§ 9543(a), 9545(b); see also Commonivealth v.

Bardo, 105 A.3d 678 (Pa. 2014) (noting that counsel is presumed effective and petitioner bears

burden to prove ineffective assistance of counsel). Given these constructs, Appellant has not met

this required burden to prove ineffective assistance of counsel regarding the nexus between his

medical records and any alleged Rule 600 violation.

Simply stated, Appellant has not provided any evidence that an earlier request for his

medical records would have resulted in adifferent outcome —namely an earlier trial date. The

PCRA court has not been provided any date of when trial counsel actually filed arequest for

Appellant's medical records that would provide context of how an "earlier" request for such

21 records would have lead to an earlier to trial date. Although not an issue in the present appeal,

Appellant wished to establish through his medical records that the statement he provided to

Philadelphia Police was coerced and not given voluntarily as he was allegedly under the

influence of pain medication at the time of his police interview. See N.T. Suppression Hearing,

12/1/14, at 39 (asking how detective "came to the conclusion that the [Appellant] is of clear

mind"). The statement Appellant provided to authorities was later used at trial and trial counsel

had adefinitive interest in precluding the statement's admission at trial through any reasonable

means, including atheory of coercion due to Appellant's potential intoxication from pain

medication. Given that his motion to suppress both the physical evidence and his statement to

police, the medical records represented acritical evidentiary issue that required Appellant's

medical records. Therefore, Appellant's trial counsel cannot be found to have rendered

ineffective assistance of counsel when Appellant has not offered acompelling argument to plead

and prove each prong of the Strickland test necessary for relief.

5. The Periods Resulting from Judicial Delay are Excusable from the Adjusted Run Date.

Judicial delay can support the "grant of an extension of the Rule 600 run date." See

Commonivealth v. Williams, 726 A.2d 389, 392 (Pa. Super. 1999), appeal denied, 747 A.2d 368

(Pa. 1999). Where the delay is due to congested court dockets, the trial court is to establish "that

it has devoted areasonable amount of time of its resources to the criminal docket and that it

scheduled the criminal trial at the earliest possible date consistent with the court's business." Id.

In the context of Rule 600, the distinction between "excludable time" and excusable delay" is 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,—any period of time for which the defendant expressly waives Rule 600; and/or such period of delay at

22 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 aresult of circumstances beyond the Commonwealth's control and despite its due diligence.

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

With the exception of two dates prior to the disposition of Appellant's motion to

suppress, from the record it appears the Commonwealth was prepared to proceed at each listing.

The events that delayed Appellant's trial were due to excludable or excusable time, including the

failure of agencies to honor writs, defense requests for continuances, transfers of the case to a

different trial judge ordered by court administration, and the crowded criminal docket in

Philadelphia County, The PCRA court concluded that the Commonwealth's trial readiness,

preparation of writs for each listing constituted due diligence.

As the discussion above reflects, due diligence is afact-specific concept that "must be

determined on acase-by-case basis. Due diligence does not require perfect vigilance and

punctilious care, but rather ashowing by the Commonwealth that areasonable effort" has been

put forth. Hunt, 858 AN at 1241-42 (emphasis in original). As the Ramos Court noted,

reasonable effort can include the Commonwealth listing the case for trial prior to the run date to

ensure that adefendant is brought to trial within the tirne prescribed by Rule 600. See Ramos,

936 AN at 1102. Additionally, the Superior Court has found the Commonwealth to have

exercised due diligence when it initially scheduled trial well within the time requirements of

Rule 600, but trial was delayed by actions of adefendant beyond the Commonwealth's control.

See Commomi)ealth v. Hill, 736 A.2d 578, 592 (Pa. 1999). Further, the Superior Court has held

the Commonwealth exercises reasonable effort:

23 when within the run date the Commonwealth was ready to commence trial and was prevented from doing so by an administrative error which resulted in atrial date three days beyond the run date. Wroten, supra at 680-81 (holding inadvertent administrative error is not enough to defeat due diligence). See also Coinmonivealth v. Corbin, 568 A.2d 635 (Pa.Super. 1990) (holding inadvertent listing beyond run date due to overburdened docket, meager staff, and administrative breakdown at detention center, excused Commonwealth with respect to unavailability of its witness).

Hunt, 858 A.2d at 1241-42.

The PCRA court found that Appellant has not presented any sufficient evidence to

demonstrate the Commonwealth failed to act with due diligence. For instance, the trial court was

required to continue Appellant's case for a238-day period between June 1, 2015 and January 25,

2016. The record demonstrates that the Commonwealth did not request acontinuance and was

ready to proceed to trial, but the court's crowded docket prevented an earlier trial date. See

Commonwealth v. Preston, 904 A.2d 1, 14 (Pa. Super. 2006) (stating that judicial delay may

justify postponing trial beyond the adjusted run date if the Commonwealth was prepared to

commence trial prior to expiration of the mandatory period but the court was unavailable because

of "scheduling conflicts and the like"). Given the pre-trial disposition of Appellant's motion to

suppress, the Commonwealth did not require —or request —significant time for preparation. The

Commonwealth appeared ready to proceed at each listing. Indeed, the two trial listings

immediately prior to Appellant's trial were continued because the trial court was presiding over

trial in aseparate case. The PCRA court found the Commonwealth acted with due diligence by

trying Appellant within his adjusted run date, securing transportation writs for each listing and

being ready to proceed at each hearing. Therefore, Appellant is not entitled to relief on this basis.

See Commonnealth v. Hill, 736 A.2d 578, 591 (Pa. 1999) (holding that even where aRule 600

violation has occurred, amotion to dismiss the charges should be denied if the Commonwealth

24 exercised due diligence and the circumstances occasioning the postponement were beyond the

control of the Commonwealth).

C. Appellant's claim for violation of his constitutional right to a speedy trial fails.

Apart from the rule-based right to aspeedy trial under the Rules of Criminal Procedure,

the constitutional guarantees to aspeedy trial continue to provide aseparate basis for asserting a

claim of undue delay in appropriate cases. See Commonwealth v. Preston, 904 A.2d 1, 10 (Pa.

Super. 2006) (holding that while Rule 600 was designed to implement the speedy trial rights

provided by the federal and state constitutions, the constitutional provisions themselves provide a

separate and broader basis for asserting aclaim of undue delay). In Barker v. Wingo, 407 U.S.

514 (1972), the United States Supreme Court laid out four factors to be considered in

determining whether an unconstitutional speedy trial violation has occurred: (1) the length of the

delay; (2) the reason for the delay; (3) the defendant's assertion of his rights; and (4) the

prejudice to the defendant. Commonri,ealth v. Terfinko, 474 A.2d 275 (Pa. 1984).

1. The delay triggers further inquiry under Barker, but the Commonwealth did not deliberately or negligently attempt to delay Appellant's case.

In the first step of the analysis under Barker, the PCRA court examines whether the delay

itself is sufficient to trigger further inquiry; if it does, the reason for the delay is examined, the

defendant's assertion of his rights is examined, and, finally any resulting prejudice to the

defendant is considered. See Commonwealth v. Jones, 299 A.2d 288 (Pa. 1973) (adopting Barker

within the courts of the Commonwealth). The delay in the present case must trigger further

inquiry. Here, there was more than a38-month delay between Appellant's arrest and his trial

date on February 2, 2016. Turning next to the second factor, it has been stated that adeliberate

attempt to delay should be weighed heavily against the government, while a"more neutral

25 reason such as negligence ... should be weighted less heavily but nevertheless should be

considered since the ultimate responsibility for such circumstances must rest with the

government rather than with the defendant." Commonwealth v. Glover, 458 AN 935, 938-39

(Pa. 1983).

The delay in the instant case was not deliberate. Further, it cannot be said that the delays

are based upon the Commonwealth's negligence. The Commonwealth acted with due diligence

in securing writs for Appellant's appearance at hearing dates. Since Appellant was held in state

custody, attributing fault to the Commonwealth for delays caused by astate agency over which

the Commonwealth exercised no control or authority does not sound in negligence. Our Supreme

Court has held that a"more neutral reason such as negligence ... should be weighed less

heavily," than adeliberate attempt by the government to delay adefendant's case.

Commonwealth v. Glover, 458 A.2d 935, 938-39 (Pa. 1983). The PCRA court in weighing the

reason behind the delay found no intentional delay or negligence by the Commonwealth and —in

considering the reason for the delay -- gave it less weight than other factors. For instance, the

Superior Court has held that society has an interest in knowing that its criminals are serving the

punishment to which they have been sentenced, regardless of unintended delay or negligent error

attributable to the government." Commonwealth v. Blair, 699 A.2d 738, 743 (Pa. Super. 1997).

Appellant's speedy trial claim is not one with conduct "so affirmatively improper or grossly

negligent" by the Commonwealth that due process was violated. Id. at 745. Despite the

significant temporal history of the present case, Appellant is not entitled to relief because the

Commonwealth acted within existing permissible constitutional mandates.

2. Under the third prong of Barker, Appellant's initial assertion of his right to aspeedy trial was alegal nullity.

26 The PCRA court next addresses the third factor under Barker: the defendant's assertion

of his rights, Appellant states that the Commonwealth violated his constitutional right to a

speedy trial pursuant. to Pennsylvania Rule of Criminal Procedure 600. In support of this claim,

Appellant relies upon his pro se motion to dismiss pursuant to Rule 600 filed on August 17,

2015. Within his petition for post-conviction relief, Appellant observes that no action was taken

on the motion by the trial court. The trial court did not act upon Appellant's pro se motion to

dismiss because it was from precluded from doing so. At the time he filed his pro se motion, he

was represented by the Defender Association of Philadelphia, who previously entered an

appearance on Appellant's behalf.

Appellant did not have the right to file his pro se motion because he was represented by

counsel. See Commoni4 ,ealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007), appeal denied,

936 A.2d 40 (Pa. 2007) (citing Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993)) .This

means "that his pro se [] motion was alegal nullity, having no legal effect." Nischan, 928 A.2d

355. As our Supreme Court noted in Ellis:

A defendant has the constitutional right to proceed without counsel if the decision to do so is knowing and voluntary. In Commonwealth v. Williams, the court held that the same constitutional right [to represent] oneself does not apply to a defendant represented by an attorney who wishes to act as co-counsel and that the decision as to whether that is to be allowed is in the sound discretion of the trial court.

Ellis, 626 A.2d at 1139 (internal citations omitted). In order for adefendant to act as his own

counsel, he or she is required to terminate the representation of counsel and then proceed on his

or her own behalf pursuant to the rules of criminal procedure. Commonwealth v. Grazier, 713

A.2d 81, 82 (Pa. 1998). There is nothing within the record to suggest Appellant requested a

Grazier hearing or that he had knowingly and voluntarily waived his right to proceed without

counsel.

27 As Appellant's pro se Rule 600 motion was alegal nullity, the trial court was precluded

from ruling on the motion. Pennsylvania does not accept hybrid representation, Ellis, 626 A.2d at

1139. The language contained within the Rules of Criminal Procedure only support this

conclusion. For instance, Rule 576 states that in "any case in which adefendant is represented by

an attorney, if the defendant submits for filing awritten motion ... that has not been signed by

the defendant's attorney" then the clerk of courts shall accept it for filing, time stamp it and

create adocket entry reflecting the date it was received. Pa.R.Crim.P. 575(a)(4). The filing of a.

pro se motion by arepresented defendant does not "trigger any deadline nor require any

response," as its main purpose is to merely provide arecord of the filing. Pa.R.Crim.P. 576, cmt.

It is fundamental that any pro se filings that require merits review, including motions, are legal

nullities when they are filed by adefendant who is represented by counsel. See Commonwealth v.

Ali, 10 A.3d 282, 293 (Pa. 2010); Canmonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super.

2007), appeal denied, 936 A.3d 40 (Pa. 2007).

Within the context of his case, Appellant did not assert his right to aspeedy trial until his

PCRA petition for relief. Although he filed the pro se motion for dismissal, the trial court was

precluded from its consideration. Appellant impermissibly asks the PCRA court to find that

"defense counsel's failure to endorse and litigate his [pro se] speedy trial/Rule 600 motion

excuses" his improperly asserted speedy trial inotion. App. Pet., 4/16/18, at 18. However, as

addressed within this opinion, the failure by defense counsel to file or litigate amotion to dismiss

pursuant to Rule 600 would have likely been unsuccessfiil because Appellant was tried within

the adjusted run date. That defense counsel reasonably opted to forego litigating amotion to

dismiss pursuant to Rule 600 does not overcome the recognition Appellant's pro se motion to

dismiss is alegal nullity and cannot excuse the presumption Appellant failed to properly assert

28 his speedy trial rights. Accordingly, it cannot be found Appellant promptly asserted his right to a

speedy trial.

3. Appellant has not demonstrated prejudice under Barker.

Finally, under the fourth prong laid out in Barker, Appellant has not demonstrated

prejudice. The traditional reasons for finding prejudice in the context of aspeedy trial claim

include: (1) preventing oppressive pre-trial incarceration; (2) minimizing the anxiety of the

accused; and (3) limiting the possibility that the defense will be prejudiced by lost or missing

witnesses. See Commonwealth v. Blair, 699 A.2d 738, 746 (Pa. Super. 1997).

The PCRA court found little weight under the first prejudice factor of preventing

"oppressive pre-trial incarceration" as applied to Appellant's case. In his petition for relief,

Appellant asserts that "the change of bail type to `ROR,' as discussed in Claim 1, severely

prejudiced [Appellant] as he was deprived of eight months of sentence credit. In essence, the

delay in this case resulted in [Petitioner] being held in custody without legal justification for

eight months." App. Pet., 4/16/18, at 19. This alleged claim for prejudice sounds strictly in the

award of time-seined credit and not Appellant's pre-trial incarceration. As recognized in the

discussion above, asignificant portion of the delay was caused by the pendency Appellant's pre-

trial motion to suppress physical evidence. Our Supreme Court has held that "a reasonable

amount of time consumed by the disposition of motions ... not made for purposes of delay,

regardless of who is the moving party, is justifiable delay." Commonwealth v. McCord, 644 A.2d

1206, 1211 (Pa. Super. 1994) (quoting Commonwealth v, Ware, 329 A.2d 258, 264-65 (Pa.

1974)). Likewise, several of the instances contributing to adelay in Appellant's case resulted

from the failure by state agencies to comply with the trial court's transportation orders.

29 Under the second factor in analyzing prejudice under Barker, the PCRA court next

addresses the need to minimize the anxiety of the accused. The record does not demonstrate what

level of anxiety —if any -- Appellant suffered as aresult of the delay. The Superior Court has

stated that the courts "recognize the obvious difficulties one faces when charged with acrime

and imprisoned, but [the courts] are not constrained to speculate as to whether the anxiety level

was sufficiently high to require" the dismissal of charges. Cornrnonwealth v. Hicks, 332 A.2d

452, 455 (Pa. Super. 1974). Appellant has failed to produce any compelling evidence to

demonstrate that he suffered anxiety as aresult of the delay. The generalized anxiety of which

Appellant complains is common to all persons suffering imprisonment and it is not the PCRA

court's province to speculate about his complaint without more. See id.

Finally, under the third Barker factor to determine prejudice, Appellant has not

demonstrated that the delay caused the loss of witnesses or impaired his ability to prepare a

defense. Appellant has not proffered the name of any witness that could have been called at trial

that was subsequently lost due to the delay. Appellant does not allege the impairment of witness'

memories, loss of evidence, loss of witnesses or other facts that represented substantial

interference with his ability to conduct adefense. To the extent that Appellant claims his state

custody interfered with his ability to conduct adefense, the PCRA court found this claim

specious —at best —given that Appellant was held at astate correctional facility located within

thirty miles of Philadelphia County. Appellant was not shuffled between institutions or

transferred to astate correctional facility hundreds of miles from Philadelphia.

In Con?n?omi,ealth v. Dallenbach, 729 A.2d 1218, 1226 (Pa. Super. 1999), the Superior

Court remanded the case in which an alleged defense witness was no longer available to testify

and, while it might be sufficient to demonstrate actual prejudice, the Dallenbach Court remanded

30 because the trial court did not make aspecific finding of fact regarding the witness's

unavailability and required additional fact-finding. See Dallenbach, 729 A.2d at 1226. There

exist no such ambiguities here. Appellant has offered only ageneralized claim that the delay

interfered with his ability to assist in his defense or that potential witnesses may have been lost.

Such bald assertions are merely speculation and not the type of actual prejudice the law requires.

See Commonivealth v. DeBlase, 665 AN 427, 438 (Pa. 1995). Therefore, because Appellant has

not shown that he was prejudiced by the delay, the PCRA court did not err in denying his

petition for relief on the basis of aclaimed speedy trial violation.

D. Appellant's Clain for Ineffective Assistance of Counsel for Alleged Rule 600 Violations Must Fail.

Appellant asserts that relief is due because his trial counsel —through afailure to litigate a

motion to dismiss under Rule 600 —provided ineffective assistance and did not adequately

protect both his rule-based right to aspeedy trial under Pa.R.Crim.P. 600 and his broader

constitutional right to aspeedy trial. However, this claim is without merit. To prove counsel was

ineffective, apetitioner must show that: (1) his underlying claim is of arguable merit; (2) counsel

had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice

as aresult. See Commonwealth v. Sar•vey, 199 A.3d 436, 452 (Pa. Super. 2018). Counsel is

presumed to have been effective, and the petitioner bears the burden of proving counsel's alleged

ineffectiveness. See Conmmonwealth v. Wholaver•, 177 A.3d 136 (Pa. 2018). If the petitioner

alleging ineffective assistance of counsel fails to prove any of the prongs required to prove

ineffective assistance, then his claim must fail. Sar°vey, 199 A.3d at 452. Additionally, counsel

will never be held ineffective for failing to pursue ameritless claim or afrivolous course of

action. See Coninionu,ealth v. Parker, 469 A.2d 582 (Pa. 1983).

31 Here, Appellant's claim that trial counsel was ineffective for failing to litigate amotion to

dismiss pursuant to Rule 600 must fail because it is not of arguable merit and Appellant cannot

demonstrate prejudice. Specifically, it is the PCRA court's opinion that because Appellant was

tried before his adjusted run date, any motion to dismiss pursuant to Rule 600 would have been

denied. Under the Rule 600, it is expressly clear that "to obtain relief, adefendant must have a

valid Rule 600 claim at the time he files his motion to dismiss the charges." CommonN,ealth v.

Broivn, 875 A.2d 1128, 1134 (Pa. Super. 2005). Given the PCRA court's finding that Appellant

was tried within the adjusted run date, his trial counsel cannot be ineffective for failing to file a

motion to dismiss under Rule 600 when Appellant did not have avalid Rule 600 claim. See

Parker, 462 A.2d at 582 (stating counsel will not be found ineffective for failing to pursue a

frivolous course of action). Looking to the first prong of the test for ineffective assistance of

counsel, Appellant's claim cannot be said to have arguable merit since he did not have avalid

Rule 600 claim.

Further, Appellant cannot be said to have suffered actual prejudice udder the third prong

of the test for ineffective assistance of counsel. Prejudice, under Strickland, requires ashowing

that counsel's error "caused prejudice such that there is areasonable probability that the result of

the proceeding would have been different absent such error." Convnonu,ealth v. Dennis, 17 A.3d

297, 301 (Pa. 2011) (citing Commonis,ealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)). $ Given that

the PCRA court has found that Appellant was tried within his adjusted run date, even had trial

counsel filed and litigated amotion to dismiss pursuant to Rule 600, Appellant has not proven

that the result of the proceeding would have been different. Thus, the PCRA court found that

5 Strickland v. Washington, 466 U.S. 668 (1984).

32 Appellant is not entitled to relief on the basis that defense counsel provided ineffective assistance

on his Rule 600 claim.

III. The PCRA Court Properly Found Appellant Received Effective Assistance of Counsel at his Suppression Hearing.

In his next claim on appeal, Appellant avers that the PCRA court erred in dismissing his

petition on the basis of ineffective assistance of counsel during the hearing conducted pursuant to

his motion to suppress evidence. It is not the province of the PCRA court to reweigh the

decisions of the suppression court or consider whether probable cause existed to justify the

officer's stop of Appellant. Indeed, this issue has been distinctly litigated and found meritless

during Appellant's direct review. See Commomvealth v. Blenman, 1430 EDA 2016 (Pa. Super.

filed September 5, 2017) (unpublished memorandum). Instead, the PCRA court was tasked with

deciding whether the performance of Appellant's counsel at the suppression hearing itself fell

within the range of permissible constitutional standards. The PCRA court finds that it did.

With respect to claims of ineffective assistance of counsel, the courts begin with the

presumption that counsel is effective. To prevail on an ineffectiveness claim, apetitioner must

satisfy, by apreponderance of the evidence, the Sixth Amendment performance and prejudice

standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). This Court has divided the performance component of Strickland into two subparts

dealing with arguable merit and reasonable strategy. Commonwealth v. Bawnhammers, 92 A.3d

708, 71.9 (2014). Thus, to prevail on an ineffectiveness claim, Appellant must show that: the

underlying legal claim has arguable merit; counsel had no reasonable basis for his or her action

or omission; and Appellant suffered prejudice as aresult. Id. (citing Commonwealth v. Pierce,

515 Pa. 153, 527 A.2d 973, 975-76 (1987)). With regard to "reasonable basis," we will conclude

that counsel's chosen strategy lacked areasonable basis only if Appellant proves that "an

33 alternative not chosen offered apotential for success substantially greater than the course

actually pursued." SBotz, 47 A.3d at 76 (quoting Commonwealth v. Williams, 587 Pa. 304, 899

A.2d 1060, 1064 (2006)). To establish Strickland prejudice, Appellant must show that there is a

reasonable probability that the outcome of the proceedings would have been different but for

counsel's action or inaction. Id.

A. Constitutional Standards Supporting an Investigatory Stop.

The PCRA court turns first to the constitutional implications raised by Appellant's

claims. To begin, our appellate courts have long recognized that:

[i]t is within the suppression court's sole province as factfinder to pass on the credibility of witnesses and the weight to be given their testimony. The suppression court is also entitled to believe all, part or none of the evidence presented. Finally, at asuppression hearing, the Commonwealth has the burden of establishing by apreponderance of the evidence that the evidence was properly obtained.

Commonwealth v. Galendez, 27 A.3d 1042, 1046 (Pa. Super. 2011) (en Banc).

Article I, §8of the Pennsylvania Constitution and the Fourth Amendment of the United States Constitution afford protections against unreasonable searches and seizures. Among the protections is the requirement that an officer have reasonable suspicion before an investigatory stop.

In re M.D., 781 A.2d 192, 196 (Pa. Super. 2011). Although not every interaction between a

citizen and alaw enforcement officer implicates the Fourth Amendment, "[t]he Fourth

Amendment, of course, applies to all seizures of the person, including seizures that involve only

abrief detention short of atraditional arrest." Broivn v. Texas, 443 U.S. 47, 50 (1979) (internal

quotation mark omitted). For purposes of the Fourth Amendment, aperson is "seized" when, "in

view of all the circumstances surrounding the incident, areasonable person would have believed

that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554 (1980). When a

police officer "accosts an individual and restrains his freedom to walk away, he has `seized' that

34 person." Brown, 443 U.S. at 50 (quoting Terry, 392 U.S. at 16). In assessing the impression that

would be given to areasonable person, acourt must determine "whether, taking into account all

of the circumstances surrounding the encounter, the police conduct would `have communicated

to areasonable person that he was not at liberty to ignore the police presence and go about his

business."' Florida v. Bostick, 501 U.S. 429, 437 (1991). Further, our Supreme Court has

interpreted:

Article 1, §8protection more broadly than the Fourth Amendment and has found that aseizure occurs when an officer gives chase. Under Pennsylvania law, any items abandoned by an individual under pursuit are considered fruits of aseizure. Those items may only be received in evidence when an officer, before giving chase, has at least the reasonable suspicion necessary for an investigatory stop. Stated another way, when one is unconstitutionally seized by the police, i.e. without reasonable suspicion or probable cause, any subsequent flight with the police in pursuit continues the seizure and any contraband discarded during the pursuit is considered aproduct of coercion and is not admissible against the individual.

In deciding whether reasonable suspicion exists for an investigatory stop, our analysis is the same under both Article 1, §8and the Fourth Amendment.

The fundamental inquiry is an objective one, namely, whether the facts available to the officer at the moment of the intrusion warrant aman of reasonable caution in the belief that the action taken was appropriate. This assessment, like that applicable to the determination of probable cause, requires an evaluation of the totality of the circumstances, with alesser showing needed to demonstrate reasonable suspicion in terms of both quantity or content and reliability.

Among the factors to be considered in forming abasis for reasonable suspicion are tips, the reliability of the informants, time, location, and suspicious activity, including flight.

While atip can be afactor, an anonymous tip alone is insufficient as abasis for reasonable suspicion. Likewise, presence in ahigh crime area alone or flight alone does not form the basis for reasonable suspicion. However, acombination of these factors may be sufficient.

35 Case law has established that certain facts, taken alone, do not establish reasonable suspicion. However, acombination of these facts may establish reasonable suspicion.

In re M.D., 781 A.2d at 196-197; see also Blenrnan, supra, at 5-6.

B. Philadelphia Police had the requisite reasonable suspicion to stop Appellant based upon the totality of the circumstances.

In assessing whether Appellant's asserted ineffective assistance of counsel claims would

have resulted in adifferent outcome, the PCRA court turns to the facts relied upon by the

suppression court to determine whether reasonable suspicion existed for Appellant's stop.

At the hearing on Appellant's motion to suppress physical evidence, the suppression

court offered the following findings of fact:

[S]tarting with Officer Jeffrey Opalski, who is aNineteenth District police officer. He's been apolice officer for about two-and-a-half years. He served at [the] Twenty-Fourth and the Nineteenth [Police Districts]. He's had training. Obviously, he's apolice officer, as well as improvised and concealed weapons training.

Officer Opalski, who is the driver and Officer Mundrick on 11 /5/12 about 1a.m. The officer says he first sees [Appellant] in the 5100 block of Viola Street in front of an abandoned property which evidently has been the source of the neighborhood, of various things and it's about ablock away from Aberdeen Avenue where there has been drama and homicide, different things going on. 5100 Viola was identified as ahigh narcotics area. There had been shootings linked to drug sales in that area.

Officer Opalski said he did about ten gun arrests at the time of the incident and he's done fifty today, but at the time of the incident he ha[d] only done about ten arrests. The officer said he saw the defendant in front of this abandoned property. It's uncontested there was no illegal activity going on. There was no hand-to-hand ... The officer perceived that [Appellant] looked at him and [walked] into a breezeway and that's the end of the encounter. He wasn't stopped. The officers did not get out of the car.

Police Officer Mundrick and Opalski went on with their evening. They went on around this area of 52nd and Lancaster. Iguess it's some kind of caddy corner street Bibleway Street ... There is achurch and avacant lot, so the officer[s] are driving around and they went on to see [Appellant] again and at this time -- now 52nd and Lancaster the officer said is ahigh robbery area, high gun crime area

36 and he sees [Appellant] again and they notice that he has some kind of labored walk and they notice some kind of bulge or some kind of heavy object and the way [Appellant] is walking with this object. It's heavy and it's causing him to walk acertain way.

[Officer Opalski] talked about concealed weapons in the waistband and gun arrests he's done. The gun was in the front waistband, so he starts to worry and started to think there may be agun, so, yes, he pulls over and Police Officer Mundrick Ibelieve is the one that gets out and says stop ... [Appellant then] goes into aheadlong flight which is unprovoked flight.

[Appellant] goes into aheadlong run and is stopped in the parking lot [of aclub] and while Mundrick is chasing [Appellant] in this parking lot of this club, there is achained fence which is about ablock away from the 5100 block of Lancaster Avenue. Officer Opalski is adriving [an unmarked police] car, the lights and sirens are activated, so it's clearly the police. [Appellant] is still running. The officer testified that he saw [Appellant] throw aDirty Harry gun which has been identified on the property receipt as a.357 Magnum, which is abig silver gun, so it's abig bulge in there and [Appellant] throws the gun in the trash .. . [Appellant] throws that gun down. Police Officer Mundrick retrieves this gun, [Appellant] is then seized and arrested in the parking lot[.]

N.T. Suppression Hearing, 12/1/14, at 81-87.

In his petition for relief, Appellant highlights two inconsistencies within Officer

Opalski's testimony in arguing that further cross-examination about these two factors would

have resulted in adifferent outcome at the suppression hearing. Appellant's claim is unavailing

because evaluations for whether reasonable suspicion existed for apolice stop are made under

the totality of the circumstances. Commomvealth v. Hicks, 208 A.3d 916, 927 (Pa. 2019). Even

held in isolation, the amount of time Officer Opalski believes to have elapsed between his first

and second sightings of Appellant would not have resulted in adifferent outcome. Likewise, the

actual barrel length of the recovered firearm and the description would not have produced a

different result.

37 C. The PCRA court's findings about alleged ineffective assistance of counsel are supported by the record.

Appellant has failed to prove beyond apreponderance of the evidence that he received

ineffective assistance of counsel at his suppression hearing. While Appellant pleads the required

elements within his petition for relief, such claims are simply not supported by the record.

Appellant, in both issues pertaining the suppression hearing, has failed to demonstrate prejudice

and that —but for the inaction of his trial counsel -- the outcome of the suppression hearing would

have been different. To the contrary, the record provides ample support for the decisions made

by trial counsel and had areasonable basis for such strategies. Accordingly, Appellant's claim

for ineffective assistance of counsel pertaining to his motion to suppress hearing must fail. See

Con7monivealth v. Fears, 86 A.3d 795, 804 (Pa. 2014) (holding the failure to prove any prong of

the test will defeat an ineffectiveness claim).

1. Appellant's claims related to the failure by counsel to cross-examine the officer about the location and timing.

In his first issue concerning his representation during the motion to suppress, Appellant

asserts that trial counsel was ineffective in failing to cross-examine the testifying police officer

about the location and timing of the two times Appellant was observed the night of his arrest. See

App. Pet., 4124/19, at 4-5. Appellant contends that Officer Opalski testified that he first observed

Appellant on the 5100 block of Viola Street and, after cutting through an alleyway, observed

Appellant walking near the 5200 block of Lancaster Avenue approximately two minutes later.

See id. Appellant states that the suppression court relied upon Officer Opalski's testimony about

observing Appellant in front of an abandoned house on Viola Street as an "articulable fact" that

supported reasonable suspicion for astop. Appellant then states that because where police

encountered Appellant asecond time was not within "a hundred yards" of Viola Street, that the

38 encounter could not have been within "one or two minutes." In assessing Appellant's claim for

ineffective assistance of counsel, the PCRA court's opinion that if further cross-examination

occurred that it would not have changed the hearing's outcome.

It appears evident from the record that the suppression court gave minimal weight in the

amount of time and locations between when Officer Opalski observed Appellant. At the hearing

on Appellant's motion, the suppression court stated —after seeing Appellant on Viola Street —

Officer Opalski "went on with [his] evening." N.T. Suppression Hearing, 12/1/14, at 83. The

suppression court noted that the 5100 block of Viola Street was "identified as ahigh narcotics

area" and the area of 52nd Street and Lancaster is a"high robbery area, [a] high gun area and

[the officer] sees [Appellant] again and they notice he has some kind of labored walk and they

notice some kind of large bulge or heavy object" that appears to cause Appellant to walk in the

strained manner. See id. at 82, 84. Indeed, in its 1925(a) Opinion, the suppression court

emphasized that after first encountering Appellant on Viola Street, the officers "circled the block

afew times, and again spotted [Appellant] on anearby block. At this time, he was walking with

anoticeable limp and had alarge bulge area in the front of his waistband." Trial Court Opinion,

11/14/16, at 2. Thus, it was not necessarily the amount of time between the encounters, but

instead the specific areas —and his labored walking and the large bulge —in which the officers

encountered Appellant that the suppression court afforded greater weight.

In his petition for relief, Appellant contends that his trial counsel was ineffective for

failing to cross-examine Officer Opalski at greater length about the timing and distance between

the two encounters. To succeed on aclaim of ineffective assistance of counsel, the petitioner

must prove there is areasonable probability that the outcome of the proceedings would have

been different but for counsel's action or inaction. Spotz, 47 A.3d at 76 (quoting CommonK,ealth

39 v. Williams, 587 Pa. 304, 899 A.2d 1060, 1064 (2006)). Appellant has not met this threshold

requirement for relief. To support this claim, Appellant notes that the distance between the 5100

block of Viola Street and the 5200 block of Lancaster Avenue "given the obstruction imposed on

pedestrian travel by the railroad tracks, is approximately one-half mile, or 880 yards." App. Pet.,

4/24/19, at 7. The salient details upon which the suppression court relied were that the officers

first observed Appellant on Viola Street, and then encountered him again ashort time later on

Lancaster Avenue. It was the role of the suppression court, sitting as the fact-finder, to pass on

the credibility of witnesses and the weight given to their testimony. Coninionweallh v. Clemens,

66 AM 373, 378 (Pa. Super. 2013). With respect to the second encounter, the suppression court

found that officers observed him in a"high robbery area, high gun area" with alarge bulge in the

front of his waistband that is consistent with afirearm. N.T. Suppression Hearing, 12/1/14, at 84.

It is the PCRA court's opinion that no amount of cross-examination about the timing and

distance would have ended with adifferent result. Accordingly, Appellant's claim on this basis

fails.

a. Appellant's claim regarding the failure to cross-examine the witness about the recovered firearm's size.

With regard to his claim that trial counsel was ineffective at the hearing held pursuant to

his motion to suppress evidence, Appellant claims that counsel was constitutionally ineffective in

her failure to cross-examine the testifying police officer about adiscrepancy in the size of the

recovered firearm. This claim must fail.

As Appellant notes in his Petition for Relief, Officer Opalski had completed acourse in

"improvised and concealed weapons training." N.T. Suppression Hearing, 12/1/14, at 33; see

also App. Pet., 4/24/19, at 7. There is no testimony that Officer Opalsky was offered as a

40 firearms expert. It is not reasonable to require apolice officer in pursuit of asubject during his

unprovoked flight to know the difference of 1.5 inches. During his testimony at the suppression

hearing, Officer Opalski testified he observed Appellant "remove alarge silver revolver from his

waistband and he threw it on the ground near apile of trash." N.T. Suppression Hearing, 12/1/14,

at 22. Later, Officer Opalski described it as a"large silver revolver. It was aDirty Harry gun to

the best description Ihave ... From the movies. The large —it was afoot, Iguess, in length." Id.

at 23 (emphasis added).

Simply stated, the exacting standard Appellant proposes —requiring absolute accuracy

down to the inch of afirearm's length —does not prove prejudice under Strickland or Pierce.

Even had trial counsel attempted to impeach Officer Opalski's account, it squarely reconciles

with the officer's testimony that it was merely a"description" and the estimated length he

provided was a"guess." N.T. Suppression Hearing, 12/1/14, at 22-23. Instead, the critical

element of Officer Opalski's testimony is that Appellant had a"large silver revolver." Id. at 22.

Digressing into argument about the firearm's actual length ignores the pertinent question before

the PCRA court: if trial counsel had further cross-examined Officer Opalski about the firearm's

size whether there would have been adiffering result. Without making reference to a"Dirty

Harry" style of gun, the suppression court found one must "look to the totality of it all and with

the size of the gun. This is avery large gun, so you're talking about a,357 Magnum ... This is a

large bulge." Id. at 98. The suppression court also found that at issue is "a.357 Magnum. This is

abig gun on alittle guy." Id. at 100.

As the Superior Court noted on direct review, and Appellant raises again in his petition

for relief, Appellant's reliance upon Colnn7onivealth v. Martinez, 588 A.2d 513 (Pa. Super.

1991), is misplaced. In Martinez, the trial court had improperly mixed together facts occurring

41 both before the stop and as aresult of the stop. See id. at 516. As the suppression court noted at

Appellant's hearing, according to Martinez "a bulge is not enough ... but here you have more

than just the bulge. You have to look at the totality of it all[.]" N.T. Suppression Hearing,

12/1/14, at 98. Contrary to Martinez, Officer Opalski articulated his specific observations —prior

to stopping Appellant —that formed the basis of his particularized suspicion that Appellant was

carrying afirearm in his waistband. See Blenman, supra, at 9. The suppression court, consistent

with Pennsylvania case law, evaluated the testimony under the totality of circumstances. See

United States v. Cortez, 449 U.S. 411, 417-18 (1981); see also Commonwealth v. Hicks, 208

A.3d 916, 927 (Pa. 2019).

Here, it was in the suppression court's sole province as fact-finder to pass on the

credibility of witnesses and the weight given to their testimony. Commonwealth v. Clemens, 66

A.3d 373, 378 (Pa. Super. 2013). The suppression court resolved any discrepancies in favor of

the Commonwealth. Appellant was alleged to be in possession of asilver Colt Lawman MKIII

.357 magnum revolver with awood grip. While Appellant correctly notes that Dirty Harry

carried a.44 magnum Smith & Wesson Model 29, this argument largely ignores the underlying

similarities between the two firearms: that both are large, silver revolver-style handguns. See

App, Pet, 4/24/19, at 8. Even assuming, arguendo, that had trial counsel further cross-examined

Officer Opalski about the recovered firearm, nothing in the record supports aconclusion that a

different result was likely. Officer Opalski, with ten firearm arrests until that point in his career,

observed abulge in Appellant's pants and his "labored" walking was consistent —based upon the

officer's experience and training —with the possession of afirearm in his waistband. In his

petition for relief, Appellant offers no argument about the weight of aColt Lawman MKIII

handgun and how it weighs less than a"Dirty Harry" gun. In the present context, it was the

42 perceived presence of aheavy firearm in Appellant's waistband that drew Officer Opalski's

attention. It was abelief later demonstrated to be true. 6 This belief, formed before any interaction

with Appellant, demonstrates that Officer Opalski had aparticularized suspicion not drawn from

the length of the barrel alone.

Trial counsel acted within the permissible bounds required for effective assistance of

counsel. At the suppression hearing, Appellant's counsel elected not to further question Officer

Opalski concerning the barrel length of the recovered firearm. The conduct of counsel will only

be found not to have areasonable basis unless an alternative not chosen offered apotential for

success substantially greater than the course actually pursued. See Spotz, 47 A.3d at 76. No

alternative potential for success that is substantially greater than counsel's chosen strategy has

been offered. The suppression court made credibility determinations and found that Officer

Opalski, observing aheavy firearm in Appellant's waistband, had the requisite probable cause to

stop him. Therefore, since the record supports the PCRA court's determination that the outcome

would not have differed, Appellant's claim for ineffective assistance of counsel is meritless.

IV. The PCRA Court Properly Denied Appellant's Motion for Discovery because it Failed to Prove Exceptional Circumstances.

In his final issue raised on appeal, Appellant contends the PCRA court erred and abused

its discretion in denying his motion for discovery because Appellant had demonstrated

exceptional circumstances that justified discovery. While the circumstances underlying

Appellant's case —and his present claim —are unique, the information sought in Appellant's

G The Smith & Wesson Model 29 and Colt Lawman MKIII each weigh 2.9 pounds and 2.3 pounds, respectively.

See https://www.smith-wesson,com/firearms/model -2 9-sw-classics -6-12-blue; see also http s: //www.gunsinternational.com/guns-for-sale-online/revolvers/colt-revolvers --- lawma n/c olt---lawman-mkiii---- 357-remi ngton-magnum.cfm?gun_id=101353 500 .

43 discovery motion nonetheless do not qualify as "exceptional circumstances" as contemplated

within Rule 902(e).

The Pennsylvania Rules of Criminal Procedure state that discovery shall only be

permitted during the PCRA stage of proceedings upon leave of court after ashowing of

"exceptional circumstances." Specifically, Rule 902(e) provides, in relevant part:

(E) Requests for Discovery

(1) Except as provided in paragraph (e)(2), no discovery shall be permitted at any stage of the proceedings, except upon leave of court after ashowing of exceptional circumstances.

(2) On the first counseled petition in adeath penalty case, no discovery shall be permitted at any stage of the proceedings, except upon leave of court after a showing of good cause.

Pa.R.Crim.P. 902(e). Neither the PCRA nor the Pennsylvania Rules of Criminal Procedure

define the term "exceptional circumstances." See Commonwealth v. Frey, 41 A.3d 605, 611 (Pa.

Super. 2012). The Superior Court has held that it will not disturb atrial court's determination

regarding the existence of exceptional circumstances warranting post-conviction discovery

unless the trial court abused its discretion. See Commonwealth v. Watley, 153 A.3d 1034, 1044

(Pa. Super. 2016). An abuse of discretion may not be found merely because an appellate court

might have reached adifferent conclusion, but requires aresult of manifest unreasonableness, or

partiality, prejudice, bias or ill-will, or such lack of support as to be clearly erroneous.

Commonwealth v. Kneller, 999 A.2d 608, 614 (Pa. Super. 2010).

In Commonwealth v. Abzr-damal, 720 A.2d 79 (Pa. 1998), the Pennsylvania Supreme

Court considered an appellant's claim that aPCRA court inappropriately denied arequest for

discovery due to both the overbreadth of the discovery request and the lack of specificity

associated with the accompanying statement of necessity. The Supreme Court rejected the

44 appellant's argument and found that he had "essentially requested wholesale discovery of

whatever information he `believed' to exist and/or of entire files so that he could discern whether

his assertions were true." Commonwealth v. Abet-Jamal, 720 AN 79, 91 (Pa. 1998). The

purpose of the PCRA is "to provide relief to the wrongfully convicted by ferreting out colorable

claims of wrongful convictions." Commonwealth v. Cox, 146 A.3d 221, n.l 1(Pa. 2016). The

PCRA is not intended to afford defendants ameans to relitigate past issues. See Commonwealth

v. Buehl, 658 A.2d 771, 775 (Pa. 1995). Indeed, our Supreme Court has further held that the

PCRA is not a"fishing expedition for any possible evidence that may support some speculative

claim of ineffectiveness." Commonwealth v. What-ton, 811 A.2d 978, 989 (Pa. 2002); see also

Commonwealth v. Keaton, 45 A.3d 1050 (Pa. 2012). Likewise, ageneral assertion of "necessity

will not suffice to establish" good cause or exceptional circumstances. See Commonwealth v.

Williams, 732 A.2d 1167, 1175 (Pa. 1999).

In his motion for discovery, Appellant sought: (1) acopy of the Commonwealth's motion

to modify Appellant's bail status; and (2) any "other other bail-related documents in this case .. .

including the [c]oui-t's policies and procedures pertaining to the changing of bail type." App.

Mot., 3/15/18, at 2. Appellant notes that "no such bail motion appears on the docket report" and

that it does not appear in the court file. See id. Even assuming, arguendo, that such amotion

existed, Appellant has not demonstrated how discovery from the Commonwealth would alter his

present situation or so undermined the truth determining that no reliable adjudication of guilt or

innocence could have taken place.

45 A. Discovery seeking the Commonwealth Motion for Bail is not an exceptional circumstance because the bail order's history is clear from the record.

Appellant contends that he was entitled to discovery in the present case because amotion

from the Commonwealth requesting achange in bail status does not appear in the record. While

such amotion does not appear in the record, the Commonwealth provided asufficient

explanation that renders the discovery request unnecessary. Turning first to the Bail Order itself,

Judge Woods-Skipper entered an order that stated "Bail ROR to State. Original bail to be

reinstated when inmate returns to [Philadelphia Prison System]." Order, 12/16/12. From the plain

meaning of the order, Judge Woods-Skipper intended for Appellant to be "released" ROR to the

Commonwealth for his parole violation and have his original monetary bail reinstated upon his

transfer back to the Philadelphia Prison System.

The basis for Appellant's bail modification is further supported in aletter brief filed by

the Commonwealth. Specifically, the Commonwealth detailed that Judge Woods-Skipper

"routinely assigns orders changing adefendant's bail to `ROR' for anew arrest where that

individual has astate violation of parole in order to manage Philadelphia's county prison

population." Com. Letter Brief, 10/3/18, at 2-3. Instead, then-President Judge Woods-Skipper

made it apractice to —in her capacity as overseeing the court's role in reducing the county prison

population —modify the bail conditions of parole violators. The PCRA court denied Appellant's

motion for discovery because there is support within the record that such amotion to modify bail

likely does not exist. Appellant has failed to demonstrate how —if such amotion does exist —

discovery for the motion is an exceptional circumstance. The language of Judge Woods-

Skipper's bail order that Appellant was bailed "ROR to [the] State" reasonably suggests the

46 order was entered for the purpose of reducing the Philadelphia County prison population when

read in conjunction with the Commonwealth's letter brief

B. The PCRA court properly denied Appellant's motion for discovery because the mere belief such documents exist did not warrant discovery.

Appellant avers the PCRA court erred in denying his motion for discovery because a

copy of the Commonwealth's bail motion is required for proper disposition of his claims.

However, in his motion for discovery before the PCRA court, Appellant failed to set forth any

evidence that such aCommonwealth motion existed. The present claim parallels the defendant in

Aber-Jamal. In Abu-Jarilal, our Supreme Court held that apetitioner for relief under the PCRA is

not entitled to review of acourt file to potentially discover information he "believes" to exist or

discern whether his allegations were true. See Abu-Jamal, 720 A.2d at 91. The foundation upon

which Appellant bases his request is his belief that bail documents may exist. Although in name

Appellant does not seek wholesale review of his entire case file, his discovery request may

necessarily devolve into ascavenger hunt seeking any document that may support his theory that

bail was changed without due process.

C. The PCRA court properly denied Appellant's motion for discovery because it is impermissibly vague.

Appellant further sought "any other bail-related documents in this case" that pertain to

the court's policies in modifying bail status. See App. Mot., 3/15/18, at 2. However, Appellant

noted that he "anticipates" that such procedures may support his claim and his request fails to

identify the precise documents within the file that pertain to his claims. Id. at 3. Although

Appellant has framed his discovery request as "anticipat[ing]" the existence of such documents,

nothing within the record suggests that such documents exist or have been otherwise withheld by

the District Attorney. It becomes feasible that many documents within Appellant's case file that

47 "any" document could arguably hold relevance to his claim. Rule 902(e) was written to preclude

such expansive interpretations for discovery requests. Appellant does not cite which specific

documents sought in connection to his petition for relief. Accordingly, the PCRA court found

that the discovery request was impermissibly vague under Pa.R.Crim.P. 902(e) and did not

warrant relief.

D. Appellant has failed to prove the PCRA court abused its discretion in denying his motion for discovery.

Finally, the PCRA court asserts that it did not abuse its discretion in denying Appellant's

motion for discovery relative to his petition for relief. Appellant has failed to prove that

"exceptional circumstances" existed that sufficiently required the production of documents

related to his bail modification. The letter-in-brief from the District Attorney's Office

demonstrates why the bail modification occurred without sufficient notice. The request for

discovery did not assert with the required specificity the documents Appellant sought other than

those that are the "bail-related documents [to] this case." See App. Mot., 3/15/18, at 2.

Documents that may fit within this broad definition are broad in scope and would require

examination of Appellant's case file.

However, the PCRA court has conceded that remand for an evidentiary hearing is the

proper course given the inadequate due process protections afforded to Appellant during his pre-

trial bail modification process. Permitting discovery to seek the impetus for the bail modification

obfuscates the larger concern of how to award Appellant his time-served credit --- if such time is

due. Accordingly,.the PCRA court finds that while it did not abuse its discretion in denying

Appellant's request for discovery, Appellant is nonetheless entitled to relief related solely to his

time-served claim based upon inadequate due process protections. Given that his request for

discovery touches only the failure to award proper credit for time-served —and the respective

48 ineffective assistance of counsel claim —Appellant need not seek remand on this basis for his

remaining claims.

CONCLUSION

Appellant appeals from the February 26, 2020, order, entered in the Philadelphia County

Court of Common Pleas dismissing his petition for post-conviction relief, filed pursuant to the

Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. For the reasons reflected above, the

PCRA court believes that Appellant has raised agenuine issue of fact which, if resolved in his

favor, would have entitled him to relief. See Common4,ealth v. D'Amato, 856 A.2d 806, 820 (Pa.

2004). Appellant has raised acolorable claim that his due process rights were not adequately

protected during the pre-trial bail modification process and may have contributed to the improper

calculation of credit to his sentence. However, Appellant has failed to demonstrate that relief is

due based upon his remaining claims. Therefore, the PCRA court respectfully requests that the

order denying Appellant's petition for relief be vacated so that an evidentiary hearing may be

held in the lower court solely for the purpose to determine any potential time-served credit due to

Appellant.

SEAN F. KENNEDY ;J.