J-A02023-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TYRONE JOHNSTON
Appellant No. 3271 EDA 2013
Appeal from the PCRA Order of November 25, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-1300475-2006
BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.
MEMORANDUM BY WECHT, J.: FILED MARCH 20, 2015
Tyrone Johnston appeals from the order of November 25, 2013,
denying his petition pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A §§ 9541-46. We affirm.
The underlying facts of this case are not in dispute. On February 7,
2006, Johnston shot and killed Jamel Conner on the 2800 block of
Kensington Avenue in North Philadelphia. Johnston shot Conner six times in
the head and chest at close range over a drug dispute. Subsequently, on
May 15, 2006, Johnston shot Stephanie Labance twice in the head at 2933
Ruth Street in North Philadelphia. Johnston also killed Labance over a drug
dispute, using the same gun with which he shot Conner. See PCRA Court
Opinion (“P.C.O.”), 4/28/2014, at 3-6 (record citations omitted).
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In the Conner case, Johnston was arrested by warrant and charged on
June 22, 2006. Johnston subsequently was charged in the Labance case on
July 14, 2006. On July 13, 2007, the Labance and Conner cases were listed
together, and, after several continuances, a bench trial commenced on
February 17, 2009.
On February 26, 2009, following a non-jury trial . . . , [Johnston]
was found guilty of two counts of murder of the first degree (H-
1), criminal conspiracy (F-1), and two counts of possessing
instruments of crime (PIC) (M-1).1 Sentencing was deferred
until March 4, 2009, on which date [the c]ourt sentenced
[Johnston] to the mandatory term of life imprisonment2 for both
counts of murder of the first degree.3 On March 12, 2009,
[Johnston] filed post-sentence motions, which [the c]ourt denied
on July 8, 2009.
1
In connection with the killing of Jamel Conner (Conner),
CP-51-CR-0004489-2007, [Johnston] was convicted of
murder of the first degree, criminal conspiracy, and PIC.
In connection with the killing of Stephanie Labance
(Labance), CP-51-CR-1300475-2006, [Johnston] was
convicted of murder of the first degree and PIC.
[Johnston] was represented by Steven Laver, Esquire on
the Conner case, and by Bernard Siegel, Esquire, on the
Labance case.
2
18 Pa.C.S.A. § 1102(a)(1).
3
As to the conviction for criminal conspiracy in
connection with the Conner murder, [Johnston] was
sentenced to a consecutive term of not less than 20 nor
more than 40 years[’] imprisonment. As to the conviction
for PIC in connection with the Conner murder, [Johnston]
was sentenced to a consecutive term of not less than two-
and-a-half years nor more than five years[’] imprisonment.
As to the conviction for murder of the first degree in
connection with the Labance murder, [Johnston] was
sentenced to a consecutive term of life imprisonment. And
finally, as to the conviction for PIC in connection with the
Labance murder, [Johnston] was sentenced to a
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consecutive term of not less than two-and-a-half nor more
than five years[’] imprisonment.
On July 20, 2009, [Johnston] filed a timely notice of appeal as to
both cases.4 On December 9, 2009, [the trial c]ourt filed an
opinion pursuant to Pa.R.A.P. 1925(a) . . . .5 Thereafter,
[Johnston’s] counsel failed to comply with the briefing schedule
as set forth by the Superior Court. On June 17, 2010, the
Superior Court dismissed the appeal arising out of the Labance
murder. On July 13, 2010, the Superior Court dismissed the
appeal arising out of the Conner murder. [Johnston’s] counsel
petitioned the Superior Court to reinstate both appeals. On July
14, 2010, the Superior Court reinstated the appeal arising out of
the Labance murder; on August 11, 2010, the Superior Court
reinstated the appeal arising out of the Conner murder.
[Johnston’s] counsel submitted briefs in connection with the
Labance appeal, allowing that case to progress forward; on
March 20, 2011, the Superior Court affirmed [Johnston’s]
judgments of sentence on that case. On April 11, 2011,
[Johnston] petitioned our Supreme Court for allowance of
appeal, which was denied on September 20, 2011.
4
The Superior Court docket number assigned to the case
associated with the Conner murder was 2105 EDA 2009.
The Superior Court docket number assigned to the case
associated with the Labance murder was 2116 EDA 2009.
5
This [Pa.R.A.P.] 1925(a) Opinion addressed issues
raised with respect to both the Conner and Labance
appeals—2105 EDA 2009 and 2116 EDA 2009.
Whereas the Labance appeal reached our Commonwealth’s
appellate courts on its merits, the Conner appeal was again
dismissed by the Superior Court on September 22, 2010 for
counsel’s failure to file a brief. On November 22, 2010,
[Johnston] filed a pro se petition pursuant to the Post[
]Conviction Relief Act (PCRA)6 seeking reinstatement of his direct
appeal rights on the Conner case. Due to an administrative
error, the Clerk of Courts failed to appoint an attorney to
represent [Johnston] on collateral attack for more than two
years.7 On July 31, 2013, in response to an inquiry in that Court
by [Johnston], our Supreme Court issued an order, directing [the
PCRA c]ourt to resolve [Johnston’s] pending PCRA petition within
90 days of the date of the order. On August 6, 2013, John P.
Cotter, Esquire, having been appointed, entered his appearance
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on [Johnston’s] behalf. On September 3, 2013, he filed an
amended petition, to which the Commonwealth responded on
September 27, 2013. In his amended petition, [Johnston] raised
two issues: (1) [Johnston] requested reinstatement of [his]
direct appeal rights on the Conner case, and (2) [Johnston]
claimed that [his] trial counsel was ineffective for failing to
litigate a speedy trial motion on the Labance case. On October
4, 2013, without objection from the Commonwealth, [the PCRA
c]ourt reinstated [Johnston’s] appellate rights on the Conner
case nunc pro tunc. On November 25, 2013, [the PCRA c]ourt
held an evidentiary hearing pursuant to Pa.R.Crim.P. 908 . . . to
address [Johnston’s] claim that trial counsel was ineffective for
failing to litigate a speedy trial motion on the Labance case. At
the conclusion of the [Rule] 908 Hearing, [the PCRA c]ourt
denied at dismissed [Johnston’s] petition.
6
42 Pa.C.S. §§ 9541-[]46.
7
Ordinarily, the Clerk of Courts receives PCRA petitions
and alerts chambers when a new PCRA petition has been
filed. In this situation, [the PCRA c]ourt first became
aware that [Johnston] had filed his November 22, 2010
petition upon receiving our Supreme Court’s July 31, 2013
order.
Id. at 1-3 (record citations omitted). On July 27, 2013, Johnston timely
appealed the denial of his PCRA petition as to his ineffective assistance of
counsel claim.1 On December 9, 2013, pursuant to the PCRA court’s order,
Johnston filed a statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). The PCRA court entered its Pa.R.A.P. 1925(a) opinion on
April 28, 2014.
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1
Johnston filed a separate appeal nunc pro tunc from the judgment of
sentence in the Conner case, which we address at Docket No. 2929 EDA
2013.
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In the instant appeal from the court’s denial in part of his PCRA
petition, Johnston raises one question for our review: “Was trial defense
counsel ineffective in failing to file and litigate a pre-trial motion to dismiss
the charges with prejudice for lack of speedy trial?” Johnston’s Brief at 2.
Specifically, Johnston argues that the PCRA court erred in failing to
grant relief where counsel failed to litigate a speedy trial claim, despite “524
days of unexcused delay in bringing the case to trial.” Id. at 5. We
disagree.
Our standard of review on appeal from an order denying a PCRA
petition is whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error. See Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA court’s findings will not
be disturbed unless there is no support for them in the certified record. See
Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
“Further, the PCRA court’s credibility determinations are binding on this
Court, where there is record support for those determinations.”
Commonwealth v. Timchak, 69 A.3d 765, 769 (Pa. Super. 2013) (citation
omitted).
The governing legal standard of review of ineffective assistance of
counsel claims is well-settled:
[C]ounsel is presumed effective, and to rebut that presumption,
the PCRA petitioner must demonstrate that counsel’s
performance was deficient and that such deficiency prejudiced
him. Strickland v. Washington, 466 U.S. 668 (1984). This
Court has described the Strickland standard as tripartite by
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dividing the performance element into two distinct components.
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).
Accordingly, to prove [trial] counsel ineffective, the petitioner
must demonstrate that: (1) the underlying legal issue has
arguable merit; (2) counsel’s actions lacked an objective
reasonable basis; and (3) the petitioner was prejudiced by
counsel’s act or omission. Id. A claim of ineffectiveness will be
denied if the petitioner’s evidence fails to satisfy any one of
these prongs.
Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012) (citations
formatted).
We review Johnston’s ineffectiveness claim by proceeding to the
arguable merit prong of his argument. We consider Johnston’s underlying
Rule 600 claim according to the following principles:
In evaluating Rule [600] issues, our standard of review of a trial
court’s decision is whether the trial court abused its discretion.
Judicial discretion requires action in conformity with law, upon
facts and circumstances judicially before the court, after hearing
and due consideration. 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.
The proper scope of review is limited to the evidence on the
record of the Rule [600] evidentiary hearing, and the findings of
the [trial] court. An appellate court must view the facts in the
light most favorable to the prevailing party.
Additionally, when considering the trial court’s ruling, this Court
is not permitted to ignore the dual purpose behind Rule [600].
Rule [600] serves two equally important functions: (1) the
protection of the accused’s speedy trial rights, and (2) the
protection of society. In determining whether an accused’s right
to a speedy trial has been violated, consideration must be given
to society’s right to effective prosecution of criminal cases, both
to restrain those guilty of crime and to deter those
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contemplating it. However, the administrative mandate of Rule
[600] was not designed to insulate the criminally accused from
good faith prosecution delayed through no fault of the
Commonwealth.
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 a
manner consistent with society’s right to punish and deter crime.
In considering [these] matters . . . , courts must carefully factor
into the ultimate equation not only the prerogatives of the
individual accused, but the collective right of the community to
vigorous law enforcement as well.
Commonwealth v. Ramos, 936 A.2d 1097, 1099 (Pa. Super. 2007)
(citation omitted).
Rule 600 provides, in pertinent part:
(A) Commencement of Trial; Time for Trial
* * *
(2) Trial shall commence within the following time periods.
(a) Trial in a court case in which a written
complaint is filed against the defendant shall commence
within 365 days from the date on which the complaint is
filed.
* * *
(C) Computation of Time
(1) For purposes of paragraph (A), periods of delay at any
stage of the proceedings caused by the Commonwealth when the
Commonwealth has failed to exercise due diligence shall be
included in the computation of the time within which trial must
commence. Any other periods of delay shall be excluded from
the computation.
* * *
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(3)(a) When a judge or issuing authority grants or denies a
continuance:
(i) the issuing authority shall record the identity
of the party requesting the continuance and the reasons
for granting or denying the continuance; and
(ii) the judge shall record the identity of the party
requesting the continuance and the reasons for granting
or denying the continuance. The judge also shall record
to which party the period of delay caused by the
continuance shall be attributed, and whether the time
will be included in or excluded from the computation of
the time within which trial must commence in
accordance with this rule.
(b) The determination of the judge or issuing authority
is subject to review as provided in paragraph (D)(3).
(D) Remedies
(1) When a defendant has not been brought to trial within
the time periods set forth in paragraph (A), at any time before
trial, the defendant’s attorney, or the defendant if
unrepresented, may file a written motion requesting that the
charges be dismissed with prejudice on the ground that this rule
has been violated. A copy of the motion shall be served on the
attorney for the Commonwealth concurrently with filing. The
judge shall conduct a hearing on the motion.
(2) Except in cases in which the defendant is not entitled
to release on bail as provided by law, when a defendant is held
in pretrial incarceration beyond the time set forth in paragraph
(B), at any time before trial, the defendant’s attorney, or the
defendant if unrepresented, may file a written motion requesting
that the defendant be released immediately on nominal bail
subject to any nonmonetary conditions of bail imposed by the
court as permitted by law. A copy of the motion shall be served
on the attorney for the Commonwealth concurrently with filing.
The judge shall conduct a hearing on the motion.
(3) Any requests for review of the determination in
paragraph (C)(3) shall be raised in a motion or answer filed
pursuant to paragraph (D)(1) or paragraph (D)(2).
Pa.R.Crim.P. 600(A), (C)-(D).
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To summarize, the courts of this Commonwealth employ three
steps . . . in determining whether Rule 600 requires dismissal of
charges against a defendant. First, Rule 600(A) provides the
mechanical run date. Second, we determine whether any
excludable time exists pursuant to Rule 600(C). We add the
amount of excludable time, if any, to the mechanical run date to
arrive at an adjusted run date.
If the trial takes place after the adjusted run date, we apply the
due diligence analysis set forth in Rule 600([D]). As we have
explained, Rule 600[] encompasses a wide variety of
circumstances under which a period of delay was outside the
control of the Commonwealth and not the result of the
Commonwealth’s lack of diligence. Any such period of delay
results in an extension of the run date. Addition of any Rule
600[] extensions to the adjusted run date produces the final
Rule 600 run date. If the Commonwealth does not bring the
defendant to trial on or before the final run date, the trial court
must dismiss the charges.
Ramos, 936 A.2d at 1103 (footnote and citations omitted). “Due diligence
is a fact-specific concept that must be determined on a case-by-case basis.
Due diligence does not require perfect vigilance and punctilious care, but
rather a showing by the Commonwealth that a reasonable effort has been
put forth.” Id. at 1102 (citation and emphasis omitted).
Because Johnston’s trial included the joinder of two separate criminal
charges, there are two adjusted run dates to consider. First, the complaint
charging Johnston with Conner’s murder was filed on June 22, 2006,
resulting in a mechanical run date of June 22, 2007. See Pa.R.Crim.P.
600(A); Ramos, 936 A.2d at 1103. Pursuant to the municipal docket in the
Conner case, on June 28, 2006, the court continued proceedings until July
12, 2006, for appointment of private counsel due to Johnston’s conflict with
the Public Defender, resulting in fourteen days’ excusable time. Thereafter,
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Johnston’s preliminary hearing was continued until October 3, 2006, with the
court ruling the time excusable from September 13, 2006, to October 3, or
twenty days. Therefore, the adjusted run date for the Conner case was July
26, 2007.
In the Labance case, the municipal docket indicates that Johnston was
charged on July 14, 2006 for a mechanical run date of July 16, 2007.2 The
docket reflects one excusable delay, when proceedings were continued from
July 17, 2006 to August 7, 2006 for appointment of private counsel,
resulting in twenty-two days’ excusable time. Therefore, the adjusted run
date for the Labance case was August 7, 2007.
Because trial, which commenced on February 17, 2009, took place
after both adjusted run dates, we proceed to the due diligence analysis set
forth in Rule 600(D). See Ramos, 936 A.2d at 1103.
The two complaints were consolidated after a hearing on July 13,
2007, and initially listed for trial on August 6, 2007, which was the first
available trial date, resulting in twenty-one days excusable delay attributable
to the court. See Notes of Testimony (“N.T.”), 11/25/2013, at 25; see also
Commonwealth v. Jones, 886 A.2d 689, 701-02 (Pa. Super. 2005)
(holding that period between defendant’s arraignment and scheduled trial
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2
July 14, 2007 fell on a Saturday.
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was excusable because the trial court determined the date assigned for trial
was the earliest possible trial date).
Defense counsel requested a continuance and the next available trial
date was May 5, 2008, resulting in 273 days’ excludable delay attributable to
Johnston. See N.T., 11/25/2013, at 34; see also Commonwealth v.
Aaron, 804 A.2d 39, 43 (Pa. Super. 2002) (en banc) (“Any delay caused by
the need to reschedule a trial because of a continuance attributable to the
defense constitutes excludable time, even if the defendant was prepared to
go to trial at an earlier date.”).
On April 23, 2008, the court rescheduled trial due to the Honorable M.
Teresa Sarmina needing to undergo surgery and the case was continued
until November 10, 2008, resulting in 189 days’ excusable delay attributable
to the court. See N.T., 11/25/2013, at 35; see also Commonwealth v.
Preston, 904 A.2d 1, 14 (Pa. Super. 2006) (en banc), (“It is long-
established that judicial delay may serve as a basis for extending the period
of time within which the Commonwealth may commence trial[.]”). Due to
the unavailability of the defense mitigation specialist on that date, trial was
rescheduled for November 24, 2008, with evidence to begin on December 1,
2008, which caused 14 days’ excludable delay attributable to Johnston. See
N.T., 11/25/2013, at 35; see also Aaron, 804 A.2d at 43.
However, due to a scheduling error, the court previously had a
different trial scheduled on that date, and continued Johnston’s trial to the
next available trial date, on February 17, 2009, resulting in eighty-five days’
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excusable delay attributable to the court. See N.T., 11/25/2013, at 51-52;
see also Jones, 886 A.2d at 701-02. Ultimately, trial commenced on
February 17, 2009.
After careful review, we conclude that Johnston is responsible for 287
days of excludable delay and the trial court is responsible for 295 days of
excusable delay, for a total of 582 days of delay not attributable to the
Commonwealth. Therefore, the 573-day delay between the adjusted run
date of July 25, 2007 for the murder of Jamel Connel and the date on which
trial commenced, February 17, 2009, and the 561-day delay from the
adjusted run date of August 7, 2007 for the murder of Stephanie Labance is
excusable pursuant to Rule 600, and not a failure of due diligence on the
part of the Commonwealth. See Pa.R.Crim.P. 600(C)(1); Ramos, 936 A.2d
at 1103.
There is no merit to Johnston’s underlying Rule 600 claim. Busanet,
54 A.3d at 45. Therefore, trial counsel was not ineffective for failing to
litigate a claim that would not succeed. See Commonwealth v. Holloway,
739 A.2d 1039, 1044 (Pa. 1999) (holding that counsel cannot be considered
ineffective for failing to raise a claim that lacks merit). Accordingly, the
record supports the PCRA court’s denial of Johnston’s ineffective assistance
of counsel motion on the basis of a failure to litigate a Rule 600 claim. See
Ragan, 923 A.2d at 1170. Johnston’s issue does not merit relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/20/2015
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