Com. v. Wagner, Q.

Superior Court of Pennsylvania

Com. v. Wagner, Q.

DecidedFebruary 22, 2018

Docket1547 EDA 2017

StatusUnpublished

This text of Com. v. Wagner, Q. (Com. v. Wagner, Q.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Com. v. Wagner, Q., (Pa. Ct. App. 2018).

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Opinion

J-S76018-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

QASHIME WAGNER

Appellant No. 1547 EDA 2017

Appeal from the PCRA Order Entered April 20, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at Nos.: CP-51-CR-0005678-2011; and CP-51-CR-0010755-2011

BEFORE: PANELLA, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.: FILED FEBRUARY 22, 2018

Appellant Qashime Wagner appeals from the April 20, 2017 order of the

Court of Common Pleas of Philadelphia County, which denied without a hearing

his request for collateral relief under the Post Conviction Relief Act (the “Act”),

42 Pa.C.S.A. §§ 9541-46. Upon review, we vacate and remand for further

proceedings.

Briefly, on April 27, 2011, Appellant along with his co-defendants, Mario

Mitchell and Terrance Cooper, was charged with robbery and relates offenses

at docket number 5678-2011 (“First Case”). On June 13, 2011, Appellant was

charged with robbery and related offenses at docket number 10755-2011

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* Retired Senior Judge assigned to the Superior Court. J-S76018-17

(“Second Case”). The cases were consolidated for trial. Prior to trial, on June

20, 2012, Appellant filed Pa.R.Crim.P. 600(G) motions, 1 seeking to dismiss

with prejudice the charges filed against him in both cases. The trial court,

however, failed to dispose of the Rule 600 motions and the cases proceeded

to a jury trial, following which, on June 3, 2013, Appellant was found guilty of

two counts of robbery and conspiracy to commit robbery. On August 1, 2013,

the trial court sentenced Appellant to a concurrent term of six to fifteen years

imprisonment on the robbery charges and a concurrent five to ten years’

imprisonment for conspiracy. Appellant’s aggregate sentence was six to

fifteen years’ imprisonment. Appellant timely filed a direct appeal to this

Court. The trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement

of errors complained of on appeal. Appellant complied, challenging, inter alia,

the trial court’s failure to decide his Rule 600 motions. In response, the trial

court issued a Pa.R.A.P. 1925(a) opinion, concluding that Appellant’s Rule 600

motions were without merit. On appeal, Appellant did not raise the Rule 600

issue. Indeed, he argued only that the trial court erred in failing to allow him

to pick a new jury because the co-defendant Mitchell’s guilty plea prejudiced

the jury. We affirmed his judgment of sentence on October 6, 2014. Our

Supreme Court denied Appellant’s petition for allowance of appeal on March

18, 2015.

1 A new version of Rule 600 was adopted October 1, 2012, and became effective on July 1, 2013. This proceeding, however, is governed by the previous version of Rule 600, which was in effect prior to July 13, 2013.

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On February 25, 2016, Appellant pro se filed the instant PCRA petition.

The PCRA court appointed counsel, who, on December 29, 2016, filed an

amended petition, claiming that Appellant’s trial counsel was ineffective in not

securing a decision on his Rule 600 motions. On April 20, 2017, following a

Pa.R.Crim.P. 907 notice, the PCRA court denied Appellant relief for want of

merit. Appellant timely appealed to this Court.

On appeal, Appellant presents a single issue for our review:

I.Was trial counsel ineffective for failing to fully litigate and resolve a meritorious Rule 600 motion prior to commencing trial where a favorable resolution of the motion would have resulted in all charges against Appellant being dismissed?

Appellant’s Brief at 4.

Appellant’s sole claim before us involves ineffective assistance of

counsel. A PCRA petitioner is entitled to relief if he pleads and proves that

prior counsel rendered ineffective assistance of counsel. 42 Pa.C.S.A.

§ 9543(a)(2)(ii). “To prevail on an [ineffectiveness] claim, a PCRA petitioner

must plead and prove by a preponderance of the evidence that (1) the

underlying legal claim has arguable merit; (2) counsel had no reasonable basis

for acting or failing to act; and (3) the petitioner suffered resulting prejudice.”

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015)

(en banc). “A petitioner must prove all three factors of the “Pierce[2] test,”

or the claim fails.” Id. Put differently, “[t]he burden of proving ineffectiveness

2 Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).

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rests with Appellant.” Commonwealth v. Chmiel, 889 A.2d 501, 540 (Pa.

2005).

To begin our ineffectiveness of counsel analysis, we must determine

whether Appellant meets the first prong of the Pierce test—i.e., arguable

merit—by establishing a valid Rule 600 claim. Rule 600 provides that a

defendant on bail is entitled to have trial commence no later than 365 days

after the complaint date. See Pa.R.Crim.P. 600(A)(3). When computing the

number of pretrial days attributable to the Commonwealth under this rule,

certain delays are excluded, such as those occasioned by defense

postponements, by express defense waivers of Rule 600, by the unavailability

of the defendant or defense counsel, and/or by the fact that the defendant

could not be located and apprehended. See Pa.R.Crim.P. 600(C). Rule

600(C) also excludes “the period of time between the filing of the written

complaint and the defendant’s arrest, provided that the defendant could not

be apprehended, because his or her whereabouts were unknown and could

not be determined by due diligence[.]” Pa.R.Crim.P. 600(C)(1).

“To obtain relief, a defendant must have a valid Rule 600 claim at the

time he files his motion to dismiss the charges.” 3 Commonwealth v.

Hyland, 875 A.2d 1175, 1189 (Pa. Super. 2005), appeal denied, 890 A.2d

1057 (Pa. 2005). Indeed, at any time prior to trial, a defendant may move ____________________________________________

3 Generally, the time stops on the day a defendant files a Rule 600 motion alleging violations of his right to a speedy trial. Any periods of delay that occur after the filing of the Rule 600 motion are not taken into account in disposing of the motion. See Hyland, infra.

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for dismissal of the case if Rule 600 has been violated. See Pa.R.Crim.P.

600(G). However, even when the defendant has not been tried within 365

days, and even when those days appear to be attributable to the

Commonwealth, a Rule 600 motion shall nevertheless be denied if the

Commonwealth proves that it acted with due diligence in attempting to try the

defendant timely and that the circumstances occasioning the delay were

beyond the Commonwealth’s control. See Commonwealth v. Frye, 909

A.2d 853, 858 (Pa. Super. 2006); see also Pa.R.Crim.P. 600(G).

Due diligence is a fact-specific concept to be determined on a case-by-

case basis. See Commonwealth v. Ramos, 936 A.2d 1097, 1102 (Pa.

Super. 2007).

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