J-S68022-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RON LARKIN, :
:
Appellant : No. 1487 EDA 2014
Appeal from the PCRA Order April 9, 2014,
Court of Common Pleas, Philadelphia County,
Criminal Division at No(s): CP-51-CR-0016013-2010
CP-51-CR-0016014-2010
BEFORE: BENDER, P.J.E., DONOHUE and MUNDY, JJ.
MEMORANDUM BY DONOHUE, J.: FILED NOVEMBER 12, 2015
Ron Larkin (“Larkin”) appeals pro se from the April 9, 2014 order
entered by the Philadelphia County Court of Common Pleas dismissing his
petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§
9541-9546 (“PCRA”). Upon review, we affirm.
The facts of the case, as summarized by the Commonwealth during
Larkin’s guilty plea colloquy, are as follows:
If the Commonwealth were to proceed on this
matter, the Commonwealth would call Julius Irvin,
who would testify that on August 1, 2010, at
approximately 1:17 a.m., he was inside of his [a]unt
Dorothy Flora’s residence at 4667 Leiper Street. … At
that time, [Larkin] was also inside. … [Larkin] was
arguing with [Flora]. … Shane Ferguson, who was
the son of [Flora], was saying that [“Larkin] was
starting his shit again.[”]
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[] Irvin observed [Larkin] with a gun standing at
the porch that connects to the bedroom of …
Ferguson. [Flora] arrived on location and told her
boyfriend[, Larkin,] to leave.
[Larkin] wanted money before he left, and []
Flora told [] Irvin where the money was to give to
[Larkin]. Irvin then drove [Larkin] away from the
area and dropped him off at [the corner of] Charles
[Street] and Pratt [Street].
Before exiting, [Larkin] gave the money to Irvin
to give back to [] Flora. Irvin went back to Leiper
Street and helped clean up the house with []
Ferguson and [] Flora.
[] Flora told Irvin that [Larkin] threatened to kill
her and everyone in the house. [Flora] told [] Irvin
that [Larkin] called and was coming back to get his
money.
Approximately two minutes later, Irvin was in the
bathroom when he heard five [gunshots], a pause,
then another five gunshots. He exited 4667 Leiper
Street through the bathroom window. [] Irvin tried
to contact both decedents by cell phone with
negative results. He then went to the side door of
the house and observed [] Ferguson on the first floor
in a pool of blood. [] Irvin then called 911, and he
positively identified [] Larkin as the [perpetrator].
The police responded, 15th District, to the
location, where they observed the dead bodies of
Shane Ferguson, [age twenty-five], and Dorothy
Flora [age fifty-four], inside of the property. Both
victims were suffering from multiple gunshot wounds
and were pronounced dead at the scene by Medic
47-B at 1:25 a.m.
On August 1, 2010, the Norristown Police
Department contacted [Philadelphia] Homicide
Division and stated that they had [] Larkin, who
stated that the Philadelphia Police Department was
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looking for him. He was picked up by Philadelphia
Homicide Detectives, and he was transported back to
Philadelphia, where he was read his constitutional
warnings and gave an inculpatory statement
admitting to shooting both Shane Ferguson and
Dorothy Flora after a previous argument with []
Flora, his girlfriend.
Medical Examiner Chase Blanchard would testify
that … [for both victims,] the cause of death was
multiple gunshot wounds and the manner of death
was homicide.
Detective Steven Buckley would testify that he
took a statement from [] Larkin on August 1, 2010,
beginning at approximately 8:39 p.m. and ending at
approximately 8:52 p.m., during which time [Larkin]
did admit to the shooting death of Dorothy Flora and
Shane Ferguson.
In addition, the Commonwealth would submit a
certificate of non[-]licensure, which would show that
a record check for [Larkin] on August 1, 2010 would
show that he did not have a valid license to carry
firearms issued under the provisions of Section 6109
of the Crimes Code, nor did he have a valid
sportsman’s firearms permit issued under the
provision of Section 6106[(c)] of the Crimes Code.
N.T., 1/3/12, at 15-21.
On January 3, 2012, Larkin entered a negotiated guilty plea to two
counts of first-degree murder and one count of carrying a firearm without a
license.1 In return for Larkin’s guilty plea, the Commonwealth nol prossed
charges of burglary, criminal trespass, carrying firearms on the public
1
18 Pa.C.S.A. §§ 2502(a), 6106.
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streets in Philadelphia, and possessing an instrument of crime.2 The
Commonwealth further agreed not to seek the death penalty in connection
with Larkin’s murder convictions. Following an extensive colloquy, during
which Larkin admitted the above facts as recited by the Commonwealth, the
trial court accepted his guilty plea. It sentenced him on the murder charges
pursuant to the plea agreement to life in prison without the possibility of
parole. It further sentenced him to a concurrent term of three and a half to
seven years of imprisonment for the firearms violation.
Larkin did not file a direct appeal. On November 9, 2012, he filed a
timely pro se PCRA petition. Therein, he raised claims of ineffective
assistance of counsel based upon plea counsel’s failure to: (1) file a motion
to dismiss the charges pursuant to Rule 600 of the Pennsylvania Rules of
Criminal Procedure; (2) provide Larkin with all discovery; (3) advise Larkin
of grounds upon which to suppress the statement he gave to police; (4)
investigate or advise Larkin of potential defenses, including self-defense,
voluntary intoxication and diminished capacity; and (5) object to what Larkin
believed was a defective guilty plea colloquy. PCRA Petition, 11/9/12, at 7.
The PCRA court appointed counsel, who, on February 22, 2014, filed a no-
merit letter and petition to withdraw pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550
A.2d 213 (Pa. Super. 1988).
2
18 Pa.C.S.A. §§ 3502(a), 3503(a)(1)(i), 6108, 907(a).
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On February 26, 2014, the PCRA court issued notice of its intent to
dismiss Larkin’s PCRA petition without a hearing pursuant to Rule 907 of the
Pennsylvania Rules of Criminal Procedure based upon its conclusion that the
issues raised in Larkin’s PCRA petition had no merit. On March 19, 2014,
Larkin filed a pro se request for an extension of time to file his response to
the PCRA court’s Rule 907 notice. On March 20, 2014, Larkin filed a pro se
request for the production of discovery material and the transcript of his
guilty plea and sentencing proceeding.
On April 9, 2014, the trial court denied his request for production,
granted PCRA counsel’s petition to withdraw, and dismissed Larkin’s PCRA
petition. Larkin filed a timely pro se notice of appeal. He raises two issues
for our review:
[1.] Whether the PCRA court erred as a matter of law
and/or abused its discretion in denying and/or
otherwise dismissing without a hearing [Larkin]’s
claim that trial counsel was ineffective for failing to
move for dismissal of the charges against [Larkin]
based upon violation of Pa.R.Crim.P. 600?
[2.] Whether the PCRA court erred as a matter of law
and/or abused its discretion in denying and/or
otherwise dismissing without a hearing [Larkin]’s
claim that trial counsel was ineffective for failing to
advise [Larkin] of grounds to suppress incriminating
evidence, namely an inculpatory statement allegedly
given to police by [Larkin]?
Larkin’s Brief at 4.
We review a PCRA court’s decision according to the following standard:
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In conducting review of a PCRA matter, we
consider the record in the light most favorable to the
prevailing party at the PCRA level. Our review is
limited to the evidence of record and the factual
findings of the PCRA court. This Court will afford
great deference to the factual findings of the PCRA
court and will not disturb those findings unless they
have no support in the record. Thus, when a PCRA
court’s ruling is free of legal error and is supported
by record evidence, we will not disturb its decision.
Of course, if the issue pertains to a question of law,
our standard of review is de novo and our scope of
review is plenary.
Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 2015) (internal
citations, quotation marks and italicization omitted).
Both of the issues Larkin raises on appeal are claims of plea counsel’s
ineffectiveness. To prevail, Larkin had the burden of pleading and proving
before the PCRA court that (1) the claim is of arguable merit; (2) in
acting/failing to act, plea counsel had no reasonable basis designed to
protect the defendant’s interest; and (3) the defendant suffered prejudice by
counsel’s ineffectiveness – in other words, but for counsel’s act or omission,
there is a reasonable probability that the outcome of the proceeding would
have been different. Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa.
2014).
It is clear that a criminal defendant’s right to
effective counsel extends to the plea process, as well
as during trial. However, [a]llegations of
ineffectiveness in connection with the entry of a
guilty plea will serve as a basis for relief only if the
ineffectiveness caused the defendant to enter an
involuntary or unknowing plea. Where the defendant
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enters his plea on the advice of counsel, the
voluntariness of the plea depends on whether
counsel’s advice was within the range of competence
demanded of attorneys in criminal cases.
The law does not require that the defendant be
pleased with the outcome of his decision to enter a
plea of guilty: All that is required is that his decision
to plead guilty be knowingly, voluntarily, and
intelligently made. Moreover, with regard to the
prejudice prong, where an appellant has entered a
guilty plea, the appellant must demonstrate it is
reasonably probable that, but for counsel’s errors, he
would not have pleaded guilty and would have gone
to trial.
Commonwealth v. Timchak, 69 A.3d 765, 769-70 (Pa. Super. 2013)
(internal citations, quotation marks and formatting omitted).
Larkin’s first issue challenges plea counsel’s failure to file a motion to
dismiss the charges pursuant to Pa.R.Crim.P. 600. The PCRA court found
this issue to be meritless, because “[a]lthough [Larkin]’s case was called for
trial approximately 519 days after his arrest, only sixty-five days were
chargeable to the Commonwealth.” PCRA Court Opinion, 5/27/14, at 7-8.
Larkin contends that the PCRA court’s conclusion is not supported by the
record, as the notes of testimony from the continued proceedings are not
contained in the certified record on appeal, which required the PCRA court to
hold an evidentiary hearing on this issue. Larkin’s Brief at 13-14. Larkin
further asserts that although it appears that many of the continuances in the
case were at defense counsel’s request, the continuances were predicated
upon the Commonwealth’s failure to provide defense counsel with discovery,
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rendering this time not excludable for Rule 600 purposes. Id. at 16-17.
Because a successful motion pursuant to Rule 600 would result in the
dismissal of the charges, Larkin states that counsel could have had no
reasonable basis for failing to file the motion and that he necessarily was
prejudiced by counsel’s failings in this regard. Id. at 18-19.
The version of Rule 600 that was in place at the time of Larkins’ plea
hearing stated,3 in relevant part:
[(A)](3) Trial in a court case in which a written
complaint is filed against the defendant, when the
defendant is at liberty on bail, shall commence no
later than 365 days from the date on which the
complaint is filed.
* * *
(C) In determining the period for commencement of
trial, there shall be excluded therefrom:
(1) the period of time between the filing of the
written complaint and the defendant’s arrest,
provided that the defendant could not be
apprehended because his or her whereabouts
were unknown and could not be determined by
due diligence;
(2) any period of time for which the defendant
expressly waives Rule 600;
(3) such period of delay at any stage of the
proceedings as results from:
(a) the unavailability of the defendant or the
defendant’s attorney;
3
A new version of Rule 600 was adopted October 1, 2012, and became
effective on July 1, 2013.
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(b) any continuance granted at the request of
the defendant or the defendant’s attorney.
* * *
(G) For defendants on bail after the expiration of
365 days, at any time before trial, the defendant or
the defendant’s attorney may apply to the court for
an order dismissing the charges with prejudice on
the ground that this rule has been violated. A copy of
such motion shall be served upon the attorney for
the Commonwealth, who shall also have the right to
be heard thereon.
If the court, upon hearing, shall determine that the
Commonwealth exercised due diligence and that the
circumstances occasioning the postponement were
beyond the control of the Commonwealth, the
motion to dismiss shall be denied and the case shall
be listed for trial on a date certain. If, on any
successive listing of the case, the Commonwealth is
not prepared to proceed to trial on the date fixed,
the court shall determine whether the
Commonwealth exercised due diligence in attempting
to be prepared to proceed to trial. If, at any time, it
is determined that the Commonwealth did not
exercise due diligence, the court shall dismiss the
charges and discharge the defendant.
Pa.R.Crim.P. 600(A)(3), (C), (G) (rescinded October 1, 2012, effective July
1, 2013).
[T]he courts of this Commonwealth employ three
steps – corresponding to Rules 600(A), (C), and (G)
– in determining whether Rule 600 requires dismissal
of charges against a defendant. First, Rule 600(A)
provides the mechanical run date. Second, we
determine whether any excludable time exists
pursuant to Rule 600(C). We add the amount of
excludable time, if any, to the mechanical run date
to arrive at an adjusted run date.
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If the trial takes place after the adjusted run date,
we apply the due diligence analysis set forth in Rule
600(G). As we have explained, Rule 600(G)
encompasses a wide variety of circumstances under
which a period of delay was outside the control of
the Commonwealth and not the result of the
Commonwealth’s lack of diligence. Any such period
of delay results in an extension of the run date.
Addition of any Rule 600(G) extensions to the
adjusted run date produces the final Rule 600 run
date. If the Commonwealth does not bring the
defendant to trial on or before the final run date, the
trial court must dismiss the charges.
Commonwealth v. Ramos, 936 A.2d 1097, 1103 (Pa. Super. 2007)
(internal citations and footnote omitted).
Our review of the certified record reveals that, as stated by Larkin, it
does not contain transcripts from the continued proceedings. The criminal
docket, however, contains the text of the trial court’s orders granting the
continuance requests, including the basis for the continuance and whether or
not the time was ruled to be excludable under Rule 600. Thus, we disagree
with Larkin that remand is necessary to determine whether the time was
excludable for Rule 600 purposes.
The Commonwealth filed the criminal complaint in this case on August
3, 2010, making the mechanical run date under Rule 600(A)(3) August 3,
2011. See Pa.R.Crim.P. 600(A)(3). On February 15, 2011, and again at the
rescheduled date of March 16, 2011, counsel for Larkin requested
continuances to further investigate the matter. Criminal Docket at 5-6. The
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trial court rescheduled the trial for May 25, 2011 and in both instances ruled
the time excludable under Rule 600. Id.
The defense requested a continuance on May 25, 2011 “for further
negotiations with the Commonwealth.” Id. The trial court rescheduled the
matter for June 28, 2011 and deemed the time excludable under Rule 600.
Id.
On June 28, 2011, lead counsel for Larkin requested permission to
withdraw, which the trial court granted, appointed another attorney as lead
counsel and concomitantly granted the defense motion for a continuance to
permit further investigation. Id. at 7. The trial court rescheduled the
matter for July 27, 2011 and ruled the time excludable under Rule 600. Id.
Both the July 27, 2011 and subsequently scheduled August 24, 2011
hearings were continued at defense counsel’s request to allow for “further
penalty phase investigation.” Id. The trial court rescheduled the matter for
September 22, 2011 and ruled the time excludable under Rule 600. Id.
Prior to the next scheduled date, on September 20, 2011, counsel for
Larkin filed a motion for a continuance, indicating that counsel was ill. Id. at
8. The trial court granted the motion, rescheduled the matter for October
18, 2011, and deemed the time excludable under Rule 600. Id.
Both the October 18, 2011 and subsequently scheduled November 15,
2011 dates were continued for the Commonwealth to determine whether it
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would seek to impose the death penalty. Id. In both instances, the time
was “ruled excludable by agreement.” Id.
At the next scheduled date, December 15, 2011, defense counsel
requested a continuance to determine whether Larkin would accept the
Commonwealth’s offer and enter a guilty plea. Id. The trial court ruled the
time excludable and set the hearing date for January 3, 2012, which was the
date Larkin ultimately pled guilty, as described hereinabove. Id.
The record reflects that of the 518 days that passed from the filing of
the complaint to the date of the guilty plea hearing, 322 days were
excludable under Rule 600, bringing the adjusted run date from August 3,
2011 to June 20, 2012. See Pa.R.Crim.P. 600(C)(3); Ramos, 936 A.2d at
1103. As Williams’ guilty plea hearing occurred on January 3, 2012, there
was no Rule 600 violation. We therefore agree with the PCRA court that
Larkin’s claim that counsel was ineffective for failing to file a motion to
dismiss his charges pursuant to Rule 600 is meritless.
In his second issue on appeal, Larkin asserts that plea counsel was
ineffective for failing to inform him that he could have filed a motion to
suppress his statement to police. Larkin’s Brief at 19-21. According to
Larkin, counsel was aware that at the time Larkin spoke to police, he “had
been in custody for a number of hours, was not advised of his rights as
required by Miranda v. Arizona, 384 U.S. 436 (1966), and was severely
sleep deprived.” Larkin’s Brief at 19. Larkin further states that he was
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“induced” to plead guilty because of the confession he gave to the police.
Id. at 19-20. The PCRA court found this argument to be meritless. PCRA
Court Opinion, 5/27/14, at 6.
Our review of the record once again supports the PCRA court’s
decision. There is nothing in the record to support a finding that Larkin’s
statement was not voluntarily given. He never contended below – either
before the trial court or the PCRA court – that he was sleep deprived, had
been in custody for an excessive amount of time, or not provided his
Miranda warnings prior to giving his statement to the police. To the
contrary, during his guilty plea colloquy, he admitted that prior to giving the
inculpatory statement to Philadelphia Homicide Detectives, “he was read his
constitutional warnings[.]” N.T., 1/3/12, at 17, 23. We reiterate that Larkin
had the burden to plead and prove the grounds for counsel’s ineffectiveness.
See Bomar, 104 A.3d at 1188. He failed to do so. As such, counsel cannot
be found to have rendered ineffective assistance on this basis.
Order affirmed.
Bender, P.J.E. joins the Memorandum.
Mundy, J. concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/12/2015
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