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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
VERNON HARRISON :
:
Appellant : No. 2217 EDA 2019
Appeal from the PCRA Order Entered July 23, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008028-2015
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: Filed: July 23, 2020
Vernon Harrison (Harrison) appeals pro se1 from the order of the Court
of Common Pleas of Philadelphia County (PCRA court) denying his first petition
filed pursuant the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541-9546.
Harrison alleges that plea counsel rendered ineffective assistance by inducing
him to enter a guilty plea without adequately informing him of the possibility
of success on appeal of his Rule 600 claim. After careful review, we affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 The PCRA court determined that Harrison had knowingly, intelligently, and
voluntarily waived his right to counsel and elected to proceed pro se following
a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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I.
We glean the relevant facts and procedural history from the certified
record. Harrison was charged on January 21, 2015, with 33 offenses,
including robbery, conspiracy, violations of the uniform firearms act and
burglary.2 Harrison was charged and tried throughout the proceedings with
one co-defendant, Damien Frazier (Frazier). After multiple continuances
requested by both the Commonwealth and the defense, Harrison proceeded
to a preliminary hearing on August 7, 2015, and the charges were held for
court. The case then proceeded through formal arraignment, pre-trial
conference and multiple status conferences, and the case was scheduled for
the earliest possible jury trial date of March 28, 2016. Following a motion for
continuance by Frazier, the trial was then rescheduled until May 9, 2016. On
that date, as the Commonwealth was awaiting DNA testing results, the trial
was again rescheduled to January 17, 2017. At status conferences in
November and December of 2016 and January of 2017, the DNA testing
results were still incomplete.
On January 17, 2017, Harrison filed a motion to dismiss pursuant to
Rule 600. He argued that the bulk of the delay in bringing him to trial was
caused by the Commonwealth’s failure to exercise due diligence to obtain DNA
results and provide discovery to the defense. The trial was continued again
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218 Pa.C.S. §§ 3701(a)(1)(ii), 903, 6105(a)(1) & 3502(a)(1).
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until August 7, 2017. The trial court scheduled status conferences in the
interim to address the motion to dismiss and the outstanding DNA testing
results. After hearing arguments on the motion to dismiss in February of
2017, on May 5, 2017, the trial court denied the motion after issuing findings
of fact on the record.
Citing the then newly-decided Commonwealth v. Mills, 162 A.3d 323
(Pa. 2017), on August 5, 2017, Harrison filed a second motion to dismiss
pursuant to Rule 600. He again alleged that the Commonwealth had not acted
with due diligence to provide necessary discovery to the defense, and that the
Commonwealth had failed to secure key witnesses for his scheduled trial. At
the August 7, 2017 trial date, the trial court continued the matter two days to
consider the motion to dismiss. Harrison and the Commonwealth then jointly
requested a continuance, as the Commonwealth needed to contact a witness
and Harrison needed time for further investigation of additional discovery
materials. The trial was rescheduled for October 30, 2017.
The trial court never issued a ruling on Harrison’s second motion to
dismiss pursuant to Rule 600. Jury selection began as scheduled on October
30, 2017, but the next day, Harrison elected to plead guilty to robbery,
conspiracy, possession of a firearm prohibited and burglary for a negotiated
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sentence of 9 to 20 years’ imprisonment.3 The remaining charges were nolle
prossed. Harrison executed a guilty plea colloquy form and completed an oral
colloquy in front of the trial court before his plea was accepted and the
sentence was imposed. He did not file a post-sentence motion or direct
appeal.
On November 14, 2017, Harrison filed his first timely pro se PCRA
petition. The PCRA court appointed counsel and counsel filed a no-merit letter
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). Harrison then
sought to amend his PCRA petition pro se. Following a video conference and
colloquy, the PCRA court determined that Harrison had knowingly, intelligently
and voluntarily waived his right to counsel and allowed him to proceed pro se.
Harrison amended his petition and the Commonwealth filed a response. On
July 23, 2019, the PCRA court dismissed the petition. Harrison timely
appealed, and he and the PCRA court have complied with Pa.R.A.P. 1925.
II.
Harrison argues on appeal that plea counsel was ineffective and his
guilty plea was unlawfully induced because counsel did not advise Harrison of
the likelihood of success if he appealed the denial of his Rule 600 claim. He
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3 Due to Harrison’s prior convictions, the Commonwealth would have sought
a mandatory minimum sentence of 25 years to life imprisonment if he were
convicted at trial.
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contends that his plea was not knowing, voluntary and intelligent because he
was not given the opportunity to weigh the benefit of pursuing his claim on
appeal against the risk of going to trial. He argues that following our Supreme
Court’s decision in Mills, supra, he had a meritorious claim under Rule 600
and would have sought relief on appeal but for his counsel’s advice to enter a
guilty plea.4
“[T]o succeed on an ineffectiveness claim, a petitioner must
demonstrate that: the underlying claim is of arguable merit; counsel had no
reasonable basis for the act or omission in question; and he suffered prejudice
as a result[.]” Commonwealth v. Laird, 119 A.3d 972, 978 (Pa. 2015)
(citations omitted). “[F]ailure to prove any of these prongs is sufficient to
warrant dismissal of the claim without discussion of the other two.”
Commonwealth v. Robinson, 877 A.2d 433, 439 (Pa. 2005) (citation
omitted). Counsel cannot be ineffective for failing to pursue a meritless claim.
Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012). If the
petitioner establishes that counsel failed to pursue a meritorious Rule 600
claim, prejudice is established because success on the claim would have
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4 “Our review of a PCRA court’s decision is limited to examining whether the
PCRA court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Maddrey,
205 A.3d 323, 327 (Pa. Super. 2019) (citation omitted).
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entitled the petitioner to full discharge. Commonwealth v. Maddrey, 205
A.3d 323, 327-28 (Pa. Super. 2019).
Under Rule 600, a case must be called to trial or a plea must be tendered
within 365 days from the date on which the criminal complaint was filed.
Pa.R.Crim.P. 600(A)(2)(a). If the defendant is not brought to trial within the
time required by the rule, he may file a written motion seeking dismissal of
all charges with prejudice. Pa.R.Crim.P. 600(D)(1). When computing the time
that has elapsed, “periods of delay caused by the defendant,” also known as
excludable time, are excluded from the calculation of time that has elapsed
from when the complaint was filed. Pa.R.Crim.P. 600(C)(2).
Excusable time, or periods of Commonwealth delay during which the
Commonwealth exercised due diligence, is also not included in the calculation
of time that has elapsed since the complaint was filed. Commonwealth v.
Moore, 214 A.3d 244, 248-49 (Pa. Super. 2019); Pa.R.Crim.P. 600(C)(1).
The Commonwealth must show due diligence by a preponderance of the
evidence for the time to be excused from the Rule 600 calculation.
Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa. 2010). “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.” Moore, supra (citation omitted).
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Our Supreme Court held in Mills that time attributable to the natural
progression of a case through the court system (for example, the time
between the preliminary hearing and the formal arraignment or pre-trial
conference) is not excludable delay for the purposes of Rule 600. Mills,
supra, at 325. When evaluating delay for Rule 600 purposes, trial courts
must exercise discretion to determine whether the period of delay is
attributable to the parties, the natural progression of the case, or the court’s
own calendar when the parties are prepared to proceed. Id. (stating that
“where a trial-ready prosecutor must wait several months due to a court
calendar, the time should be treated as ‘delay’ for which the Commonwealth
is not accountable”).
Finally, we remain mindful of the dual purposes served by the rule:
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.
Commonwealth v. Martz, ___ A.3d ___, at *5 (Pa. Super. April 28, 2020)
(citations omitted).
We review the trial court’s decision on a motion to dismiss pursuant to
Rule 600 for an abuse of discretion. Moore, supra. “The proper scope of
review . . . is limited to the evidence on the record of the Rule 600 evidentiary
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hearing, and the findings of the trial court. An appellate court must view the
facts in the light most favorable to the prevailing party.” Id. at 248 (citation
omitted).
Here, the charges were filed on January 21, 2015, and the mechanical
run date for Harrison to be brought to trial was January 21, 2016.
Pa.R.Crim.P. 600(A)(2). Harrison entered his guilty plea on October 31, 2017,
which was 1,014 days after the criminal complaint was filed. Harrison
challenges two periods of delay during which he contends the Commonwealth
did not exercise due diligence: the 253 days between May 9, 2016, and
January 17, 2017, and the 202 days between January 17, 2017, and August
7, 2017.
In its opinion pursuant to Pa.R.A.P. 1925(a), the PCRA court addressed
these periods of delay as follows:
On May 9, 2016, discovery relating to DNA results were still
outstanding, so the Court rescheduled trial for January 17, 2017.
Since the Commonwealth did not have any control over when
the lab produced the DNA results, and in fact had been acting
with due diligence in attempting to retrieve them, the 253 days
between the two trial dates are excusable. On January 17, 2017,
the DNA results were still outstanding and the Court was on trial,
so the Court rescheduled trial for August 7, 2017. Since the Court
was already on trial, and the DNA results were still outstanding,
the delay was beyond the Commonwealth’s control and
despite its due diligence. Therefore, the 202 days between the
second and third trial dates were excusable.
PCRA Court Opinion, 12/13/19, at 8 (emphasis in original). Harrison contends
that the DNA testing was completed by the laboratory within the 53 days
between March 4, 2016, and April 26, 2016, and that the trial court abused
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its discretion by finding that the Commonwealth exercised due diligence with
regard to the DNA testing for the 455 days between May 9, 2016, and August
7, 2017. He argues that even if the discovery was provided on January 17,
2017, the Commonwealth did not exercise due diligence in securing the testing
results from the laboratory in that time period.
Harrison’s contention that the DNA testing was complete by April 26,
2016, is belied by the record. Our review of the docket reveals several entries
from continuances after that date where the DNA testing is listed as
“outstanding” or additional status conferences were scheduled to address the
DNA testing. See Docket Entries for 5/9/16, 11/2/16, 12/6/16, 1/17/17,
2/14/17. The docket entry for April 28, 2016, notes only that “partial DNA
discovery” was passed at that time and states that additional discovery
remained outstanding. See Order Granting Motion for Continuance, 4/28/16.
Moreover, in issuing its factual findings on the first motion to dismiss, the
court found that DNA results had been outstanding prior to January 17, 2017,
and stated: “As a footnote, I continued this matter a number of times here
to sort of monitor the situation. I do agree that something needs to be done
about shortening the time in terms of waiting for the DNA results, but the
bottom line is, it’s not like the Commonwealth had the results in their
possession.” N.T., 5/5/17, at 17-18. The court then noted it had continued
the trial to the “earliest possible date” of August 7, 2017. Id. at 18.
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After holding numerous status conferences with the parties at which the
Commonwealth addressed the issue of the outstanding DNA results, the court
concluded that the Commonwealth had acted with due diligence in obtaining
the results but ultimately had no control over the laboratory’s handling of the
case. This court has previously held that a continuance due to outstanding
DNA test results was excusable time when the Commonwealth exercised due
diligence in attempting to obtain the results from the laboratory.
Commonwealth v. Frye, 909 A.2d 853, 858-59 (Pa. Super. 2006). The
PCRA court here found that the Commonwealth had acted with due diligence
in obtaining the DNA testing results, and this finding is supported by the
record. Thus, it did not abuse its discretion in holding that the time from May
9, 2016, and January 17, 2017, was excusable delay.
In addition, the continuance to August 7, 2017, was in part a result of
the court’s own calendar, as it was unable to proceed to trial on January 17,
2017.5 The August trial date was the earliest possible trial date and was
outside of the control of either Harrison or the Commonwealth. See Mills,
supra; Commonwealth v. Andrews, 213 A.3d 1004 (Pa. Super. 2019)
(time properly ruled excludable for Rule 600 purposes when defendant
requested additional DNA testing discovery from the Commonwealth and the
trial court’s “congested docket” caused further delay). As we find no abuse of
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5 It is not clear from the record when the DNA testing was ultimately
completed.
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discretion in the PCRA court’s conclusion that the Commonwealth pursued the
DNA results with due diligence and because the case was subsequently
scheduled for the earliest possible trial date, the time was properly excusable
for the Rule 600 calculation. Harrison’s Rule 600 claim has no merit.
Because we conclude that Harrison’s underlying Rule 600 claim would
not have merited relief, he cannot establish that plea counsel was ineffective
by inducing him to plea without advising him that he had a meritorious Rule
600 claim. Maddrey, supra. Thus, the PCRA court did not err in dismissing
his petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/23/20
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Com. v. Harrison, V.
Combined Opinion