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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HENRY DIAZ
Appellant No. 2093 EDA 16
Appeal from the PCRA Order June 17, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014222-2010
BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MOULTON, J.: FILED OCTOBER 10, 2017
Henry Diaz appeals from the June 17, 2016 order entered in the
Philadelphia County Court of Common Pleas dismissing his petition filed
under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. We
affirm.
On August 24, 2010, Diaz was arrested and charged with possession
with intent to deliver a controlled substance (“PWID”), possession of a
controlled substance, and criminal conspiracy to commit PWID.1 On August
14, 2012, the trial court conducted a non-jury trial and, on November 29,
2012, convicted Diaz of the aforementioned charges. On February 15, 2013,
the trial court sentenced Diaz to an aggregate term of 4 to 8 years’
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135 P.S. §§ 780-113(a)(16), (a)(30), and 18 Pa.C.S. § 903(a),
respectively.
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incarceration, followed by 5 years’ probation. On March 5, 2013, Diaz timely
filed a notice of appeal. On June 19, 2013, Diaz’s trial counsel withdrew the
appeal.
On June 27, 2013, Diaz filed a pro se PCRA petition. The PCRA court
appointed counsel, who filed an amended PCRA petition on August 5, 2015.
On November 19, 2015, the Commonwealth filed a motion to dismiss the
PCRA petition. On May 10, 2016, the PCRA court filed a notice of intent to
dismiss Diaz’s PCRA petition under Pennsylvania Rule of Criminal Procedure
907. On June 17, 2016, the PCRA court dismissed Diaz’s PCRA petition. On
June 29, 2016, Diaz timely filed a notice of appeal.
Diaz raises two2 interrelated issues on appeal:
Whether the PCRA court abused its discretion by
incorrectly calculating the time pursuant to a Rule 600
motion where more than 721 days passed prior to trial
with 560 days attributable to the Commonwealth, and in
failing to find that trial counsel was ineffective for failing to
raise a Rule 600 challenge prior to the trial in this matter,
and that appellate counsel provided ineffective assistance
of counsel by failing to raise the challenge on appeal, all in
violation of U.S. Const. Amend., V, VI, and XIV; and see,
PA.Const. art. I, sec. 9[.]
Diaz’s Br. at 4.
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2We recognize that Diaz may be attempting to raise a claim that he is
entitled to PCRA relief because his speedy trial rights under the United
States and Pennsylvania Constitutions were violated by the Commonwealth’s
alleged violation of Rule 600(A). Because we conclude that the
Commonwealth did not violate Rule 600(A), any such argument, regardless
of whether it is cognizable under the PCRA, is meritless.
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“Our standard of review from the grant or denial of post-conviction
relief is limited to examining whether the PCRA court’s determination is
supported by the evidence of record and whether it is free of legal error.”
Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).
Diaz raises ineffective assistance of counsel claims.
To prevail on . . . [ineffective assistance of counsel] claims,
[the PCRA petitioner] must plead and prove, by a
preponderance of the evidence, three elements: (1) the
underlying legal claim has arguable merit; (2) counsel had
no reasonable basis for his action or inaction; and (3) [the
petitioner] suffered prejudice because of counsel’s action
or inaction.
Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011). “The law
presumes counsel was effective[,]” Commonwealth v. Miner, 44 A.3d 684,
687 (Pa.Super. 2012), and PCRA petitioners “bear[] the burden of pleading
and proving each of the three . . . factors by a preponderance of the
evidence,” Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa.Super.
2015), app. denied, 141 A.3d 479 (Pa. 2016). “A claim of ineffectiveness
will be denied if the petitioner’s evidence fails to meet any of these prongs.”
Commonwealth v. Williams, 980 A.2d 510, 520 (Pa. 2009).
I. Ineffective Assistance of Trial Counsel Claim
Diaz argues that the PCRA court erred in determining that his
ineffective assistance of trial counsel claim lacked arguable merit because it
incorrectly concluded that the Commonwealth complied with Rule 600.
When considering Rule 600 issues
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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
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. Thompson, 93 A.3d 478, 486 (Pa.Super. 2014)
(quoting Commonwealth v. Ramos, 936 A.2d 1097, 1097 (Pa.Super.
2007)) (alterations in original).
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
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(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.
...
(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 in within which trial must
commence in accordance with this rule.
Pa.R.Crim.P. 600.
While “Rule 600 requires the Commonwealth to try a defendant within
365 days of the filing of a criminal complaint[,] . . . [a] defendant . . . is not
automatically entitled to discharge under Rule 600 where trial starts more
than 365 days after the filing of the complaint.” Commonwealth v. Roles,
116 A.3d 122, 125-26 (Pa.Super.), app. denied, 128 A.3d 220 (Pa. 2015).
“Rather, Rule 600 ‘provides for dismissal of charges only in cases in which
the defendant has not been brought to trial within the term of the adjusted
run date, after subtracting all excludable and excusable time.’” Id. at 126
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(quoting Commonwealth v. Goldman, 70 A.3d 874, 879 (Pa.Super.
2013)). “The adjusted run date is calculated by adding to the mechanical
run date, i.e., the date 365 days from the complaint, both excludable and
excusable delay.” Id.
“Excludable time includes delay caused by the defendant or his
lawyer[,] . . . [whereas] excusable delay occurs where the delay is caused
by ‘circumstances beyond the Commonwealth’s control and despite its due
diligence.’” Id. (quoting Goldman, 70 A.3d at 879). “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. (quoting Commonwealth v. Armstrong, 74 A.3d 228, 236 (Pa.Super.
2013)). Further, “judicial delay is a justifiable basis for an extension of time
if the Commonwealth is ready to proceed.” Commonwealth v. Hunt, 858
A.2d 1234, 1241 (Pa.Super. 2004) (quotation omitted).
According to Diaz, of the 721 days between his arrest and trial, 560
days were attributable to the Commonwealth. Diaz primarily argues that
two time periods – (1) from February 23, 2011 through September 23,
2011, and (2) from February 9, 2012 through August 13, 2012 – were
attributable to the Commonwealth.
A. Time Between Scheduling Conference and First Listed
Trial Date
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On February 23, 2011, the trial court attempted to hold a status
conference, but a co-defendant’s counsel failed to appear. Thus, the trial
court continued the matter to March 2, 2011 and ruled the time excusable.
On March 2, 2011, the trial court held a status conference, at which it
noted that the earliest possible pre-trial motion date was September 19,
2011, but scheduled the pre-trial motion date for four days later, September
23, 2011, because a necessary police officer witness was not available until
September 21, 2011. The trial court also listed the matter for trial on
October 7, 2011. The trial court did not make a contemporaneous ruling on
whether any portion of this time was attributable to the Commonwealth.
Diaz argues that the period between February 23, 2011 and
September 23, 2011 is attributable to the Commonwealth because the trial
court did not rule the time excludable. The Commonwealth asserts that this
time is excusable because the delay was “due to the trial court’s busy
schedule, not the Commonwealth’s lack of diligence.” Cmwlth.’s Br. at 14.
We agree with the Commonwealth and conclude that the trial court
correctly concluded that this time was excusable from the Rule 600
calculation. Opinion, 1/12/16, at 7. First, with respect to the seven-day
period between February 23, 2011 and March 2, 2011, it is well settled that
a co-defendant’s continuance is excusable from the defendant’s Rule 600
calculation when the defendant acquiesces to the delay. See
Commonwealth v. Kearse, 890 A.2d 388, 394 (Pa.Super. 2005) (holding
that “the fact that co-defendant’s counsel did not appear was a circumstance
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beyond the control of the Commonwealth”). Because the Commonwealth
was prepared to proceed, and nothing in the record shows Diaz did not
acquiesce to the continuance, we conclude that the trial court was correct in
concluding that the Commonwealth acted with due diligence and in ruling
that the seven-day period between February 23, 2011 and March 2, 2011
was excusable from the Rule 600 calculation.
The period between March 2, 2011 and September 23, 2011 is also
excusable from the Rule 600 calculation. The docket entry for the March 2,
2011 scheduling conference states “earliest possible date – 9/19/11;
necessary police officer on vacation until 9/21/11[; m]otions date 9/23/11.” 3
Under these circumstances, we conclude that this 201-day period between
March 2, 2011 and September 19, 2011 was judicial delay based on the trial
court’s schedule, and, thus, not attributable to any lack of due diligence by
the Commonwealth. See Commonwealth v. Brown, 875 A.2d 1128, 1135
(Pa.Super. 2005) (holding that judicial delay is appropriate where due to
congested court dockets and trial court establishes that “it has devoted a
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3Diaz does not discuss whether the period between September 19,
2012 and September 23, 2012 was attributable to the Commonwealth
because its witness was on vacation. Because these four days do not affect
the outcome of our Rule 600 analysis, we need not address this issue;
instead, we will assume without deciding that these days are attributable to
the Commonwealth. But cf. Commonwealth v. Hunt, 858 A.2d 1234,
1243 (Pa.Super. 2004) (concluding that “victim’s absence from the country
and unavailability was a circumstance beyond the Commonwealth’s control”
and not attributable to Commonwealth).
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reasonable amount of resources to the criminal docket and that it scheduled
the criminal trial at the earliest possible date consistent with the court’s
business”) (quoting Commonwealth v. Williams, 726 A.2d 389, 392
(Pa.Super. 1999)) (emphasis omitted).
B. Time Between the Second Listed Trial Date and the Actual
Trial
Following a series of continuances by the trial court because it was
presiding over a trial in a separate matter, on February 9, 2012, the trial
court relisted Diaz’s case for the earliest possible trial date of August 13,
2012. On August 13, 2012, Diaz’s counsel requested a one-day continuance
to assess a possible plea or waiver trial, which the trial court granted. 4 On
August 14, 2012, Diaz proceeded to trial.
Diaz argues that the period between February 9, 2012 and August 13,
2012 was attributable to the Commonwealth. The Commonwealth asserts
that this time is excusable, as the delay “could [not] be attributed to the
Commonwealth.” Cmwlth.’s Br. at 16.
We agree with the Commonwealth. The docket entry granting a
continuance on February 9, 2012 has multiple notes, stating “Defense
attorney attached – must be tried.” Because the trial court was presiding
over a trial in another matter, the trial court rescheduled the matter for the
earliest possible date. There is no indication that the Commonwealth did not
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4 Diaz concedes that this one-day delay is excludable.
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exercise due diligence in attempting to bring Diaz to trial. Thus, this 186-
day period was excusable from the Rule 600 calculation. See Brown, 875
A.2d at 1135.
C. Conclusion
Diaz’s mechanical run date was 365 days from his arrest, or August
15, 2011. Of the 721 days between Diaz’s arrest and trial, he admits that
157 days are excludable due to his actions. When we add those 157 days
and the 387 excusable days discussed above to the mechanical run date, we
conclude that, at the earliest, Diaz’s adjusted run date is February 9, 2013.
Because the Commonwealth brought Diaz to trial on August 14, 2012, we
conclude that the Commonwealth complied with Rule 600(A).
Because the Commonwealth complied with Rule 600(A), we further
conclude that Diaz’s ineffective assistance of trial counsel claim lacks
arguable merit. Therefore, we conclude that the PCRA court appropriately
dismissed his ineffectiveness claim.
II. Ineffective Assistance of Appellate Counsel Claim
Next, Diaz argues that his “appellate counsel was ineffective for failing
to argue [a] violation of his speedy trial rights on appeal.” Diaz’s Br. at 18.
Diaz argues that “[w]hile appellate counsel would be unaware that trial
counsel told [Diaz] that [trial counsel] had filed a speedy trial motion, clearly
upon review of this matter, a reasonable attorney would have noticed that
[Diaz] was arrested on August 24, 2010 and not tried until August 24,
2012.” Id.
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Diaz waived this claim by not including it in his PCRA petition. See
Commonwealth v. Washington, 927 A.2d 586, 601 (Pa. 2007) (holding
that claims not raised in PCRA petition are “waived and not cognizable on
appeal”). Even if Diaz had preserved this claim, we have already concluded
that trial counsel was not ineffective. Thus, Diaz’s ineffective assistance of
appellate counsel claim fails. See Commonwealth v. Paddy, 15 A.3d 431,
443 (Pa. 2011) (“To establish the arguable merit prong of a claim of
appellate counsel ineffectiveness for failure to raise a claim of trial counsel
ineffectiveness, the petitioner must prove that trial counsel was
ineffective[.]”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/2017
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