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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JALIL COOPER, :
:
Appellant : No. 2405 EDA 2018
Appeal from the Judgment of Sentence Entered, July 24, 2018,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0012360-2012.
BEFORE: OTT, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 18, 2019
Jalil Cooper appeals pro se from the judgment of sentence imposed
following his conviction of first-degree murder, attempted murder, aggravated
assault and possession of an instrument of crime (“PIC”).1 We affirm.
On May 20, 2012, Cooper became engaged in a verbal disagreement
with Edward Pagan, as a result of which Cooper shot Pagan and Pagan’s step-
father, Victor Guzman. Pagan died as a result of his gunshot wounds, and his
step-father suffered a fractured arm and permanent hearing loss. Cooper was
arrested and charged with the above-described offenses. His first trial ended
in a mistrial on February 5, 2014, and a retrial was ordered on that same date.
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* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S.A. §§ 2502, 901(a), 2702(a), 907(a).
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The court scheduled the retrial for September 22, 2014. On July 1, 2014,
while Cooper was represented by counsel, he filed a pro se motion pursuant
to Pa.R.Crim.P. 600, arguing that the criminal complaint should be dismissed
because the initial retrial date of September 22, 2014, was beyond the 120-
day limit for pretrial incarceration specified in subsection (B)(4).2 No ruling
was made on that motion.
The September 22, 2014 retrial date was ultimately continued. In 2015,
Cooper was determined to be incompetent. In September of 2016, he was
deemed competent. Following a Grazier hearing,3 then waived his right to
counsel, and elected to proceed pro se, with standby counsel. On April 2,
2018, before the start of retrial, Cooper waived his right to a jury trial, and
orally renewed his Rule 600 motion, arguing once again that the criminal
complaint should be dismissed because the initial retrial date of September
22, 2014, was beyond the 120-day period specified in subsection (B)(4). The
trial court denied the motion.
The retrial was bifurcated to accommodate Cooper’s request for an
expert and to ascertain the status of stipulations between the parties. At the
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2Our courts have made clear that a defendant who is represented by counsel
may not engage in hybrid representation by filing pro se documents. See
Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282, 293 (Pa. 2010). As Cooper
was represented by counsel at the time he filed the pro se motion, that filing
had no legal effect.
3 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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conclusion of the retrial, the court found Cooper guilty of first-degree murder,
attempted murder, aggravated assault, and PIC. On July 24, 2018, the trial
court sentenced Cooper to an aggregate sentence of life in prison, followed by
eight and one-half to seventeen years of incarceration. Standby counsel filed
a timely post-sentence motion. Cooper thereafter filed a pro se post-sentence
motion challenging, inter alia, the trial court’s denial of his Rule 600 motion.
The trial court denied all post-sentence motions. This timely pro se appeal
followed.4
Cooper raises the following issues for our review:
1. Did not the trial court err in its Opinion there in support of
denying [Cooper] his rights under Pa.R.Crim.P. 600 – where it
ruled that the applicable subsection to apply to retrial cases
where the accused is in pretrial incarceration is subsection (A)
as opposed to subsection (B)?
2. Were [sic] the [C]ommonwealth exercising due diligence in
bringing [Cooper’s] case to trial following his hung-jury where
the original trial date as set to begin beyond the Rule 600 run
date?
3. Did not the [C]ommonwealth fail to meet its burden in proving
defense counsel waived/agreed to commence [Cooper’s] retrial
beyond the [Rule 600] run date without offering evidence in
support of its assertion such as transcript?
4. Did not the trial court erred [sic] finding [Cooper] guilty of
first[-]degree[-]murder where the alleged actions of [Cooper]
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4 As a pro se litigant, Cooper is held to the same standards as counseled
litigants. See Commonwealth v. Blakeney, 108 A.3d 739, 767 (Pa. 2014)
(“Although the courts may liberally construe materials filed by a pro se litigant,
pro se status confers no special benefit upon a litigant, and a court cannot be
expected to become a litigant’s counsel or find more in a written pro se
submission than is fairly conveyed [there]in . . .”).
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as the evidence supported at most a murder of the third degree
lacking aggravated circumstances?
5. Where [Cooper’s] arrest warrant contained statements by the
affiant known to be false, and recklessly disregarding the truth
in “bad faith” and also facially invalid to the circumstances of
the existence of probable cause should have the evidence
obtained in connection therewith to the warrant be
suppressed?
6. Did not the trial court erred [sic] by refusing to consider
[Cooper’s] reliable proffer to show “bad faith” in the veracity of
the complaint executed to secured [sic] the warrant for his
arrest?
7. Was not [Cooper’s] counsel ineffective where upon he failed at
post verdict to motion the lower court to reconsider an error of
law thereunder Rule 600, and otherwise preserve the issue
there upon expanding the record?
8. Was appellant [sic] counsel ineffective for failing to motion the
court to reconsider [Cooper’s] motion to suppress/object
evidence admitted thereby a warrant facially invalid and
prepared in bad faith?
Cooper’s Brief at 6-10 (issues reordered for ease of disposition, unnecessary
capitalization omitted).
We will address Cooper’s first three issues together, as each concerns
Pa.R.Crim.P. 600. When reviewing a trial court’s decision in a Rule 600 case,
an appellate court will reverse only if the trial court abused its discretion.
Commonwealth v. Bradford, 46 A.3d 693, 700 (Pa. 2012). “An appellate
court will not find an abuse of discretion ‘based on a mere error of judgment,
but rather . . . where the [trial] court has reached a conclusion which overrides
or misapplies the law, or where the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will.’”
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Commonwealth v. Gill, 206 A.3d 459, 466-67 (Pa. 2019) (citation omitted).
Our scope of review is limited to the record evidence from the Rule 600 hearing
and the findings of the lower court, viewed in the light most favorable to the
prevailing party. Id.
To protect a defendant’s speedy trial rights, Rule 600 provides for the
dismissal of charges if the Commonwealth fails to bring a defendant to trial
within a certain time frame, subject to certain exclusions for delays
attributable to the defendant. Pa.R.Crim.P. 600(A), (C). The rule provides
that “[w]hen a trial court has granted a new trial and no appeal has been
perfected, the new trial shall commence within 365 days from the date on
which the trial court’s order is filed.” Pa.R.Crim.P. 600(A)(2)(d). The rule
also addresses pretrial incarceration, and provides that “[e]xcept in cases in
which the defendant is not entitled to release on bail as provided by law, no
defendant shall be held in pretrial incarceration in excess of . . . 120 days from
the date on which the order of the trial court is filed granting a new trial when
no appeal has been perfected.” Id. at 600(B)(4).
In order to protect society’s right to effective prosecution prior to
dismissal of charges, “Rule 600 requires the court to consider whether the
Commonwealth exercised due diligence, and whether the circumstances
occasioning the delay of trial were beyond the Commonwealth’s control.”
Bradford, 46 A.3d at 701 (quoting Commonwealth v. Selenski, 994 A.2d
1083, 1088 (Pa. 2010)). Any delay caused by the Commonwealth’s lack of
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due diligence is included in the calculation of time for the commencement of
trial. Pa.R.Crim.P. 600(C)(1). Any other delay is excluded from the
computation. Id. The Commonwealth has the burden of demonstrating by a
preponderance of the evidence that it exercised due diligence. Bradford, 46
A.3d at 701. “Due diligence is fact-specific, to be determined case-by-case;
it does not require perfect vigilance and punctilious care, but merely a showing
the Commonwealth has put forth a reasonable effort.” Selenski, 994 A.2d at
1089.
In his first three issues,5 Cooper argues that a Rule 600 violation
occurred because the court scheduled retrial beyond the 120-day time period
following the entry of the order for his retrial. He points out that a retrial was
ordered on February 5, 2014, and that the initial retrial date was September
22, 2014, a date that he claims is beyond the 120-day period indicated by
subsection 600(B)(4).6 Cooper also challenges the trial court’s statement that
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5 We note with disapproval that, in Cooper’s brief, he discusses his three Rule
600 claims in two sections. Pursuant to our Rules of Appellate Procedure,
Cooper was required to structure the argument section of his brief as “divided
into as many parts as there are questions to be argued; and shall have at the
head of each part--in distinctive type or in type distinctively displayed--the
particular point treated therein, followed by such discussion and citation of
authorities as are deemed pertinent.” Pa.R.A.P. 2119(a). Cooper failed to
adhere to this requirement.
6 Cooper does not argue that his 2018 trial date constitutes a Rule 600
violation.
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Cooper’s defense attorney “waived and/or agreed to [Cooper’s] original retrial
date set beyond the run day following his mistrial.” Cooper’s Brief at 26.
The trial court explained the basis for its denial of Cooper’s Rule 600
motion as follows:
A hearing was held on [Cooper’s] motion for dismissal under Rule
600 on April 2, 2018. Mr. Cooper argued at that time, that the
jury hung on February 5, 2014, and a new trial was not scheduled
until September 22, 2014, and that such a date date [sic] would
be past the run date. Mr. Cooper, representing himself, cited
subsection (B)(4) as the authority for requiring the charges to be
dismissed. [Cooper] was advised at that time that section (B)(4)
was applicable to pretrial incarceration, and that (A)(2)(d) was
relevant to the dismissal of charges and that subsection gave the
Commonwealth 365 days to try the case. The statute is clear.
The Commonwealth has 365 days to bring a defendant to trial
after a new trial has been ordered and [Cooper’s] claim that they
only had 120 days is erroneous.
Trial Court Opinion, 6/17/19, at 6.
Based on our review of the record, it is clear that Cooper relied on an
inapplicable section of the rule in support of his Rule 600 motion. The
Commonwealth had 365 days to retry his case, not 120 days. See
Pa.R.Crim.P. 600(A)(2)(d). Whether or not Cooper’s defense counsel agreed
to the initial retrial date, or the date was consistent with counsel’s schedule is
irrelevant, as the original retrial date fell within the 365-day period proscribed
by Rule 600(A)(2)(d). As we discern no abuse of discretion by the trial court
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in denying Cooper’s Rule 600 motion, his first three issues entitle him to no
relief.7
In Cooper’s fourth issue, he challenges the sufficiency of his first-degree
murder conviction on the basis that there were no aggravating circumstances,
and that he was misidentified as his cousin, who was found in possession of
the murder weapon. See Cooper’s Brief at 38-39.
Pursuant to our Rules of Appellate Procedure, Cooper was required to
include in his brief a “discussion and citation of authorities as are deemed
pertinent.” Pa.R.A.P. 2119(a). An issue identified on appeal but not
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7 Moreover, although not raised by Cooper, the trial court undertook a
comprehensive review of the docket, and determined that Commonwealth
acted with due diligence in bringing Cooper to trial within 365 days. The trial
court explained:
Although not articulated by [Cooper], the court reviewed the time
involved and found the prosecution to have exercised due
diligence. Mr. Cooper was continuously found incompetent to
stand trial from November 14, 2015 until June 1, 2016. . . .
[Cooper] was allowed to represent himself on September 1, 2016,
but previously there had been six requests for continuances made
by [Cooper]. Between that time and August 10, 2017, [Cooper]
requested eleven continuances. On that date the calendar judge
assigned this case to the undersigned with the earliest possible
date of April 2, 2018, - the date trial commenced. It is crystal
clear that although not properly raised, a review of the time from
the hung jury and commencement of Cooper’s new trial, the
Commonwealth exercised due diligence and [Cooper’s] complaint
is without merit
Trial Court Opinion, 6/17/19, at 6.
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developed in an appellant’s brief is abandoned, and therefore waived.
Commonwealth v. Heggins, 809 A.2d 908, 912 n.2 (Pa. Super. 2002).
Here, Cooper failed to adhere to this requirement. His sufficiency claim
is woefully underdeveloped, and he neither cites nor discusses any relevant
legal authority. Thus, the issue is waived.
In Cooper’s fifth and sixth issues, he contends that the trial court erred
in denying his motion to suppress. He claims that unspecified evidence should
have been suppressed because the affidavit supporting the warrant was
deficient and did not establish probable cause. Specifically, Cooper argues
that the affiant, Detective John Cummings of the Philadelphia Police
Department, improperly relied, in “bad faith,” on uncorroborated hearsay
statements of which he had no personal knowledge, and the remaining
information did not establish probable cause. See Cooper’s Brief at 28-36.
The trial court determined that Cooper’s suppression challenges, as
stated in his concise statement, were waived due to insufficient specificity.
See Trial Court Opinion, 6/17/19, at 11-16.8
A concise statement must be specific enough for the trial court to
identify and address each issue the appellant wishes to raise on appeal.
“When a court has to guess what issues an appellant is appealing, that is not
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8The trial court additionally determined that Cooper was not entitled to relief
because he failed to present his suppression claims in writing (referencing
Pa.R.Crim.P. 575-581), and his claims lacked merit. See Trial Court Opinion,
6/17/19, at 11-16.
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enough for meaningful review.” Commonwealth v. Dowling, 778 A.2d 683,
686 (Pa. Super. 2001) (citation omitted). Indeed, “[a] Concise Statement
which is too vague to allow the court to identify the issues raised on appeal is
the functional equivalent of no Concise Statement at all.” Id. at 686-87.
Accordingly, this Court may find waiver where a concise statement is too
vague. Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011).
Based on our review, Cooper failed to identify in his concise statement
any particular statement in the affidavit of probable cause that he sought to
suppress. Given Cooper’s failure to identify the particular statements he
sought to suppress, we discern no error or abuse of discretion by the trial
court in determining the suppression issues were waived. Thus, Cooper’s fifth
and sixth issues entitle him to no relief.9
In Cooper’s final two issues, he challenges the effectiveness of his
standby counsel. Litigation of ineffectiveness claims is not generally a proper
component of a defendant’s direct appeal, and is presumptively deferred for
collateral attack under the PCRA. See Commonwealth v. Holmes, 79 A.3d
562, 578 (Pa. 2013) (establishing a deferral rule for ineffectiveness claims
litigated after its decision in Commonwealth v. Grant, 813 A.2d 726 (Pa.
2002)). The Pennsylvania Supreme Court has recognized two exceptions to
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9 Even if we had not found waiver of the suppression issues due to lack of
specificity in Cooper’s concise statement, we would have found waiver due to
Cooper’s continued failure to identify the particular statements or information
he sought to suppress in his appellate brief.
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the rule that ineffectiveness claims should be deferred until collateral review,
both falling within the discretion of the trial court:
First, we held that trial courts retain discretion, in extraordinary
circumstances, to entertain a discrete claim of trial counsel
ineffectiveness if the claim is both apparent from the record and
meritorious, such that immediate consideration best serves the
interest of justice. Second, we held that trial courts also have
discretion to entertain prolix claims of ineffectiveness if there is a
good cause shown and the unitary review thus permitted is
accompanied by a knowing and express waiver by the defendant
of the right to pursue a first PCRA petition.
Commonwealth v. Arrington, 86 A.3d 831, 856-57 (Pa. 2014).
Cooper has not argued that his ineffectiveness claims fall within either
exception to the rule that such claims should be deferred until collateral
review. Therefore, we decline to address those issues.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/19
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