Com. v. Drew, T.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v.

THOMAS DREW, Appellant No. 1300 EDA 2013

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

BEFORE: ALLEN, OLSON, and OTT, JJ. MEMORANDUM BY ALLEN, J.: FILED OCTOBER 06, 2014

hearing, his petition filed pursuant to the Post Conviction Relief Act -46. We affirm.

The pertinent facts and procedural history are as follows:

On November 8, 2005, using a confidential informant (CI), police conducted a controlled buy of heroin at rd

St. in Philadelphia.

Immediately after the controlled buy, Appellant was arrested outside his residence while in possession of the preproperty , the police then executed an anticipatory search warrant on the premises. The warrant indicated that the place to be searched was the second floor of the premises.

Police did not find contraband on the second floor. They did, however, unlock a door on the second floor using

leading to a third-floor kitchen. Police recovered a large quantity of heroin from a bucket in this kitchen.

Appellant was charged with, inter alia, possession of a controlled substance with intent to deliver and [criminal]

use of a communication facility. At trial, Appellant wanted to introduce testimony from the CI. The CI was apparently prepared to state that he did not buy drugs from Appellant on the day in question. Before appearing in front of the jury, however, the CI asserted his Fifth Amendment rights.

The trial court held an in camera hearing and concluded that:

was valid because his testimony could expose him to

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

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

Commonwealth v. Drew, 981 A.2d 916 (Pa. Super. 2009), unpublished memorandum at 1-2 (footnote omitted).

sentence. Drew, supra. On February 12, 2010, our Supreme Court denied Commonwealth v. Drew, 989 A.2d 915 (Pa. 2010).

On May 17, 2010, Appellant filed a pro se PCRA petition. Although Appellant had originally retained counsel to assist him, the PCRA court later appointed a succession of counsel. Upon motions, the PCRA court permitted the first two court- -

counsel had to withdraw for medical reasons. Ultimately, Appellant

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

adopted the amended petition filed by his previous counsel.

On March 12, 2013, after

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

Thereafter, the PCRA court appointed current PCRA counsel.

to Remand to the

petition involved a missing transcript from a pre- Rule 600 motion. By order entered October 21, 2013, this Court remanded the case, directing either the transcription of the notes at issue or the filing of a Pa.R.A.P. 1923 statement in lieu of the transcript. We further directed that once the transcript or statement was filed, that Appellant file a supplemental concise statement, and the PCRA court file a supplemental opinion, pursuant to Pa.R.A.P. 1925.

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

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evidentiary hearings. At the first hearing, the parties discussed whether el informed the PCRA court that Appellant was asserting no pre-trial hearing on his Rule 600 issue had ever occurred. See N.T., 11/26/07, at 4-29. The trial/PCRA court stated its distinct belief that a pre-trial hearing had occurred, citing a docket entry that such hearing was held on January 26, 2007. Id. The trial/PCRA court could not recall, however, whether Appellant had been present for the hearing. Id. Also, the court reporter who had been assigned to the Rule 600 hearing had died, and the notes of testimony were not preserved. Id. The

any hearing necessary to reconstruct the record. Id.

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

the Commonwealth did not present any witnesses, but he could not remember the averments made by the prosecutor. In addition, although

Commonwealth had exercised due diligence, he could not remember the -14.

At the final hearing on December 20, 2013, PCRA counsel presented the PCRA court with the requested Pa.R.A.P. 1923 statement. Thereafter, both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

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Appellant raises the following issues:

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

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

[III.] Did [the PCRA] court err in not allowing [Appellant]

to be present at the four hearings that were used to create a statement in absence of transcript?

whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Reaves, 923 A.2d

PCRA court, and these findings will not be disturbed unless they have no Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa. Super. 2008), citing Commonwealth v. McClellan, 887 A.2d

hearing on a PCRA petition, and if the PCRA court can determine from the record that no genuine issues of material fact exist, then a hearing is not Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.

on to decline to hold a hearing if

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

6

t

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

Jones to state a claim for post-conviction r to an evidentiary hearing. Commonwealth v. Clark, 961 A.2d 80, 94 (Pa. 2008).

we apply the following principles. Counsel is presumed to be effective, and Appellant has the burden of proving otherwise. Commonwealth v. Pond, 846 A.2d 699, 708 (Pa. Super. 2004).

In order for Appellant to prevail on a claim of ineffective assistance of counsel, he must show, by a preponderance of the evidence, ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

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

Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005). In assessing a claim of ineffectiveness, when it is clear that an appellant has failed to meet the prejudice prong, the court may dispose of the claim on

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that basis alone, without a determination of whether the first two prongs have been met. Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995). Counsel cannot be deemed ineffective for failing to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc), appeal denied, 852 A.2d 311 (Pa. 2004).

claims that the PCRA court erred in denying him an evidentiary on his layered claim of ineffectiveness for failing to raise/preserve a claim that trial counsel was ineffective for no - trial motion for dismissal of the charges pursuant to Pa.R.Crim.P. 600. Appellant asserts that his right to appeal this issue should be reinstated nunc pro tunc. According to Appellant:

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

ready for trial in the future, which is not the correct speedy/prompt trial had been violated.

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

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

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

Super. 2006) (en banc). Here, the mechanical run date is calculated 365 days from the date the criminal complaint was filed against Appellant. See

Preston Id.

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

takes into

account delays which occur as a result of circumstances beyond the Commonwealth v.

Martz, 926 A.2d 514, 517-18 (Pa. Super. 2007) (citation omitted). Finally, even where a Rule 600 violat charges should be denied if the Commonwealth exercised due diligence and the circumstances occasioning the postponement were beyond the control of Id. at 518 (citation omitted).

The PCRA court explained why an evidentiary hearing was not required in this case:

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

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

Accordingly, it was undisputed that the merits of

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

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

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

prior to trial was incorrect. Having failed even to allege

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

PCRA Court Opinion, 7/10/13, at 6-7 (citations omitted). See also N.T., 12/2/13, at 12-15 (PCRA court discussing its original findings regarding the Co complaint).

initially note, despite indications within the record to the contrary, Appellant maintains on appeal that a second complaint was never filed. See, e.g.,

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

claim that appellate and/or trial counsel was ineffective for failing to pursue a Rule 600 violation, thereby necessitating an evidentiary hearing. A defendant claiming he or she received the ineffective assistance of counsel must allege sufficient facts from which a court can determine c effectiveness. Pa.R.Crim.P. 902(A)(12); see also Commonwealth v. Pettus, 424 A.2d 1332 (Pa. 1981) (stating that a defendant may not argue

right to a prompt/speedy trial under the Rule was violated because the Commonwealth did not prove the delays in the case were beyond its

calculations of an adjusted run date. Even had he done so, he would not be -arrest and the filing of a new complaint.

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

600 claim has arguable merit, his claim of ineffectiveness regarding appellate counsel fails. Loner, supra.

In his remaining issue, Appellant challenges the procedure used to construct his Pa.R.A.P. 1923 statement in the absence of a transcript.

participate [si

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have contributed to the fairness of the procedure because consultation between [PCRA counsel] and [Appellant] at the four hearings to reconstruct the transcript is required to reconstruct the re In its supplemental Pa.R.A.P. 1925(a) opinion, the PCRA court found

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

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

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

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

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

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

Order affirmed.

Judge Ott joins the disposition.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/6/2014