Com. v. Clark, M.

J-S46008-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARK CLARK :
:
Appellant : No. 958 EDA 2020

Appeal from the PCRA Order Entered March 3, 2020
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0003082-2017,
CP-15-CR-0003083-2017

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARK CLARK :
:
Appellant : No. 959 EDA 2020

Appeal from the PCRA Order Entered March 3, 2020
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0003082-2017,
CP-15-CR-0003083-2017

BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 23, 2020

Appellant, Mark Clark, appeals pro se from the post-conviction court’s

March 3, 2020 order denying his petition filed under the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
J-S46008-20

On September 6, 2018, Appellant entered a negotiated guilty plea, in

two separate cases, to fleeing or attempting to elude a police officer, receiving

stolen property, and theft by unlawful taking. At the plea proceeding, the

Commonwealth summarized the facts underlying those convictions, as

follows:

On August 25th, 2017, … in Tredyffrin Township, Chester
County, … [Appellant] was driving a vehicle which was
stolen out of Philadelphia. At the time, a Tredyffrin
Township police officer attempted to pull … [Appellant] over
because of that stolen vehicle, and … [Appellant] fled from
that police officer who had lights and sirens activated. They
engaged. It was about a two[-]minute vehicle pursuit, at
which point … [Appellant] then pulled the vehicle over to the
side of the road, jumped out of that vehicle[,] and fled into
a neighborhood in the vicinity of 1200 Wembley Drive. He
then spent several hours in the neighborhood in Tredyffrin
Township … where he had abandoned the car and fled.
Those are [the] facts that form the basis of 3083 of 2017.
He was in possession of the vehicle knowing it had been
stolen, and he fled from the police when they attempted to
pull him over. He then remained, [and] the police searched
for him in that neighborhood. He was able to elude their
detection for several hours. And several hours later, in the
early morning hours of August 26[], 2017, he stole a vehicle
that was parked in the driveway of 1200 Wembley Drive,
and used that vehicle to return to his home in Philadelphia.
Those are the facts in support of the theft by unlawful taking
count in 3082 of 2017.
N.T. Guilty Plea/Sentencing, 9/6/18, at 2-3.

In accordance with his guilty plea agreement, Appellant was sentenced

to an aggregate term of 2½ to 6 years’ incarceration, followed by 4 years’

probation. He did not file a direct appeal. Instead, on June 21, 2019,

Appellant filed a timely PCRA petition. Counsel was appointed, but rather than

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J-S46008-20

filing an amended petition on Appellant’s behalf, counsel filed a motion to

withdraw and a no-merit letter pursuant to Turner/Finley.1 On December

12, 2019, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to

dismiss Appellant’s petition without a hearing. Appellant filed a pro se

response, but on March 3, 2020, the court filed an order dismissing his petition

and granting counsel’s motion to withdraw.

Appellant filed two timely, pro se notices of appeal.2 The record does

not indicate that the court directed him to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. On April 14, 2020, the court

filed a statement indicating that it was relying on the rationale set forth in its

Rule 907 notice to supports its denial of Appellant’s petition.

____________________________________________

1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). We
note that for some reason, counsel’s no-merit letter does not appear to have
been included in the certified record. However, counsel’s petition to withdraw
states that the letter was sent to Appellant, and he does not claim to have not
received it on appeal.
2 Because Appellant included both trial court docket numbers on each notice
of appeal, this Court issued rules to show cause why his appeals should not
be quashed pursuant to Commonwealth v. Walker, 185 A.3d 969 (Pa.
2018). We thereafter filed orders referring the quashal issue to the merits
panel. In light of our en banc decision in Commonwealth v. Johnson, 236
A.3d 1141 (Pa. Super. 2020) (en banc), we decline to quash Appellant’s
appeals. In Johnson, we “observe[d] that [Pa.R.A.P.] 341 and Walker make
no mention of case numbers on a notice of appeal.” Id. at 1148. Specifically,
the en banc panel opined that where an appellant files a separate notice of
appeal at each trial court docket, “[t]he fact that the notices [of appeal]
contained [more than one trial court docket number] is of no consequence.”
Id. Because Appellant filed separate notices of appeal at each docket, he has
complied with Walker.

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J-S46008-20

Herein, Appellant states 14 issues for our review in his Statement of the

Questions Presented. See Appellant’s Brief at 5-9. However, the Argument

section of his brief does not align with his Statement of the Questions, and

Appellant fails to include, “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). Moreover, Appellant does not meaningfully develop all of the

fourteen issues set forth in his Statement of the Questions Presented. See

Commonwealth v. Gould, 912 A.2d 869, 873 (Pa. Super. 2006) (“The

[C]ourt will not become the counsel for an appellant, and will not, therefore,

consider issues ... which are not fully developed in his brief.”) (internal

quotation marks and citation omitted). Instead, in his handwritten, often

illegible, and extremely confusing brief, Appellant intermixes arguments

regarding various issues. He also refers to certain issues in boilerplate fashion

at one point, and then provides further elaboration on those claims in

completely different parts of his brief. It also appears that Appellant is now

presenting claims that he did not assert before the PCRA court, thus waiving

them for our review. See Pa.R.A.P. 302(a) (“Issues not raised in the lower

court are waived and cannot be raised for the first time on appeal.”).

In sum, the state of Appellant’s brief impedes this Court’s meaningful

review of his claims. Nevertheless, we have assessed his arguments to the

best of our ability, and have also examined the Commonwealth’s brief, the

certified record, and the applicable law. In addition, we have reviewed the

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J-S46008-20

PCRA court’s rationale for dismissing Appellant’s petition, set forth in its Rule

907 Notice. See PCRA Court’s Order/Notice (PCO), 12/12/19, at 1-6 n.1. The

court’s analysis is supported by the record, and we discern no reversible legal

error in its rejection of Appellant’s petition.3 See Commonwealth v. Matias,

____________________________________________

3 We mention, however, that a mistake appears in the court’s analysis of
Appellant’s claims that there was “[i]nsufficient probable cause to support his
arrest,” and that his counsel was ineffective for not moving to “quash the
indictments for the charge(s) of receiving stolen property, fleeing [or eluding]
police…, [and] theft by unlawful taking[,]” because “the Commonwealth failed
to establish a prima facie case or the element to support the arrest or
conviction for [those] charges….” PCO at 4 n.1 (quoting Appellant’s PCRA
Petition, 6/21/19, at 5 (unnumbered)). The PCRA court seems to conflate
Appellant’s two issues. For instance, the court states that he has “waived his
right to challenge the probable cause to arrest” because he waived his right
to a preliminary hearing and acknowledged, on the waiver form, that he would
“thereafter [be] precluded from raising challenges to the sufficiency of the
prima facie case.” Id. at 4-5 n.1 (emphasis added). Appellant did not waive
his right to challenge the probable cause supporting his arrest by waiving his
preliminary hearing; however, he did waive that claim by pleading guilty. See
Commonwealth v. Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014) (“[U]pon
entry of a guilty plea, a defendant waives all claims and defenses other than
those sounding in the jurisdiction of the court, the validity of the plea, and
what has been termed the ‘legality’ of the sentence imposed….”). Moreover,
Appellant offered no explanation, in his PCRA petition, of why probable cause
to arrest him was lacking, thereby waiving his claim on that basis as well.
Finally, Appellant waived his right to challenge the Commonwealth’s prima
facie case when he signed the form waiving his preliminary hearing. See
Pa.R.Crim.P. 541 (stating that a defendant who waives his preliminary hearing
is “thereafter … precluded from raising the sufficiency of the
Commonwealth’s prima facie case unless the parties have agreed at the time
of the waiver that the defendant later may challenge the sufficiency”).
Accordingly, we affirm the court’s dismissal of these claims on this alternative
basis. See Commonwealth v. Hutchins, 760 A.2d 50, 54 (Pa. Super. 2000)
(stating that “this Court may affirm the decision of the PCRA [c]ourt if it is
correct on any basis”) (citations omitted).

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J-S46008-20

63 A.3d 807, 810 (Pa. Super. 2013) (“In reviewing the propriety of an order

granting or denying PCRA relief, an appellate court is limited to ascertaining

whether the record supports the determination of the PCRA court and whether

the ruling is free of legal error.”) (citation omitted). Accordingly, we affirm

the order dismissing Appellant’s petition without a hearing, for the reasons set

forth by the PCRA court in its Rule 907 notice.4

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/23/2020

____________________________________________

4 To the extent Appellant raises challenges to the effectiveness of his PCRA
counsel, we deem those claims waived. In his response to the court’s Rule
907 notice, Appellant stated only that he “herein amends [the] issue of PCRA
counsel’s ineffectiveness[,] as PCRA counsel was appointed on July 9[], 2019,
and PCRA counsel filed a motion to withdraw as counsel on September 11,
2019, just two months upon being appointed….” See Rule 907 Response,
1/7/20, at 4. The certified record contains no other filings by Appellant
elaborating on his challenge to his PCRA counsel’s representation. Thus, we
conclude that his boilerplate allegation of ineffectiveness of his PCRA counsel
waives that claim for our review. See Pa.R.A.P. 302(a); Commonwealth v.
Henkel, 90 A.3d 16, 30 (Pa. Super. 2014) (en banc) (finding waived the
appellant’s claims of PCRA counsel’s ineffectiveness, which were raised for the
first time in his Rule 1925(b) statement filed after his notice of appeal).

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 31. Notic6g4.48riitAgd§liii§§3g

COMMONWEALTH OF PENNSYLVANIA :IN THE COURT OF COMMON PLEAS

:CHESTER COUNTY, PENNSYLVANIA
VS
:CRIMINAL ACTION
MARK ANTHONY CLARK
DEFENDANT :NOS. 3082-17; 3083-17

Nicholas J. Casenta, Jr., Esquire, attorney for the Commonwealth.
C. Curtis Norcini, Esquire, attorney for Defendant.
Mark Anthony Clark, Defendant. ,r',9

C7.
016
ORDER / NOTICE

AND NOW, this i;L--day of December, 2019, upon consideration of Defendant's
Motion for Post Conviction Collateral Relief, filed June 21, 2019, defense counsel's
Motion to Withdraw as Counsel and Finley letter, filed September 11, 2019, and after a
thorough, independent review of the pleadings, transcript, Guilty Plea Colloquy Form and
record, it is hereby ORDERED and DECREED as follows:
1. This court finds that there are no genuine issues concerning any material fact, the
claims asserted by Defendant for Post -Conviction Collateral Relief do not have any
merit and no purpose would be served by further proceedings. Defendant is not
entitled to post-conviction collateral relief and as the PCRA Motion is without merit
it must be dismissed.'

1
The procedural history of this case is as follows: The Information on case number 3082-17
charged Defendant with theft by unlawful taking, in violation of 18 Pa.C.S.A. § 3921(a); receiving stolen
property, in violation of 18 Pa.C.S.A. § 3925(a); and loitering and prowling at night, in violation of 18
Pa.C.S.A. § 5506. The Information on case number 3083-17 charged Defendant with fleeing or
attempting to elude police officer, in violation of 75 Pa.C.S.A. § 3733(a); receiving stolen property, in
violation of 18 Pa.C.S.A. § 3925(a); two counts of recklessly endangering another person, in violation of
18 Pa.C.S.A. § 2705; two counts of traffic control signals, in violation of 75 Pa.C.S.A. § 3112(a)(3)(i);
driving vehicle at safe speed, in violation of 75 Pa.C.S.A. § 3361; careless driving, in violation of 75
Pa.C.S.A. § 3714(a); driving without lights to avoid identification or arrest, in violation of 75 Pa.C.S.A. §
3734; reckless driving in violation of 75 Pa.C.S.A. § 3736(a); and drivers required to be licensed, in
violation of 75 Pa.C.S.A. § 1501(a).
On March 28, 2018, Defendant filed a Motion to Suppress Evidence. On May 16, 2018, an Order
was entered granting Defendant's motion and suppressing his statement, so that it could not be used in
the Commonwealth's case-in -chief. On September 6, 2018, Defendant entered a negotiated plea
agreement that contained an agreed upon sentence, which the court approved. He received the sentence
he negotiated in return for the guilty plea to just three counts and the Commonwealth withdrew the
remaining eleven counts.
Defendant did not file a post-sentence motion or an appeal. On June 21, 2019, Defendant filed a
timely PCRA Motion. Being that this was Defendant's first PCRA Motion, the court appointed counsel for
Defendant on July 9, 2019. On September 11, 2019, defense counsel filed a Motion to Withdraw as
Counsel and a no -merit Finley letter.
Defendant's motion alleges that there was a violation of the Pennsylvania or United States
Constitutions, there was ineffective assistance of counsel and that his plea was unlawfully induced. He
set forth ten specific allegations that will be addressed individually below. This court undertook a thorough,
independent review of the PCRA Petition, the Guilty Plea Colloquy Form, the guilty plea transcript and all
other relevant information that is included in the record. We determine that the petition is patently frivolous
and that the record and status of the law does not support the relief requested by Defendant. Therefore,
Defendant is not entitled to PCRA relief.
As discussed above, Defendant pled guilty. He admitted the facts to support the plea and was
sentenced pursuant to a negotiated plea agreement. Specifically, the Guilty Plea Colloquy Form executed
by Defendant states that he admitted that the following facts did occur:
On or about the following dates in Chester County, PA Defendant on 8/25/17 and
8/26/17, unlawfully took or exercised unlawful control over movable property of
another, with the intent to deprive the owner thereof; willfully failed or refused to
bring his vehicle to a stop or otherwise fled or attempted to elude a pursuing
police vehicle, after being given signals to stop; intentionally retained movable
property of another, believing or knowing it had been stolen and did not intend to
restore the property to the owner. Specifically on 8/25/17 the defendant was in
possession of a motor vehicle knowing it had been stolen. He fled from police
when they attempted to pull him over. He evaded capture and then stole a
second vehicle to drive home in the early morning hours of 8/26/17. Both of
these events occurred in Chester County, PA.
At the September 6, 2018 plea and sentencing hearing, the attorney for the Commonwealth stated as
follows:
"Facts in support of this plea are as follows: On August 25th, 2017, on 202 in
Tredyffrin Township, Chester County, the defendant was driving a vehicle which
was stolen out of Philadelphia. At the time, a Tredyffrin Township police officer
attempted to pull the defendant over because of that stolen vehicle, and the
defendant fled from that police officer who had lights and sirens activated. They
engaged. It was about a two minute vehicle pursuit, at which point the defendant
then pulled the vehicle over to the side of the road, jumped out of that vehicle and
fled into a neighborhood in the vicinity of 1200 Wembley Drive. He then spent
several hours in the neighborhood in Tredyffrin Township there in the vicinity of
that same neighborhood where he had abandoned car and fled. Those are facts
that form the basis of 3083 of 2017. He was in possession of the vehicle knowing
it had been stolen, and he fled from the police when they attempted to pull him
over. He then remained, the police searched for him in that neighborhood. He
was able to elude their detection for several hours. And several hours later, in the
early morning hours of August 26th, 2017, he stole a vehicle that was parked in
the driveway of 1200 Wembley Drive, and used that vehicle to return to his home
in Philadelphia. Those are the facts in support of the theft by unlawful taking
count in 3082 of 2017." (N.T., 9/6/18, pgs. 2-3).
After Defendant was sworn in to testify, the court asked Defendant, "Did you hear the facts recited
by Deputy D.A. Cardamone a few moments ago -" and Defendant responded, "Yes," as the court
continued the question," -- when she told the Court what had happened?" (N.T., 9/6/18, p. 6). Defendant
responded, "Yes." Id. The Court further asked, "ls what she said accurate?" to which Defendant
responded, Yes." Id. The Court asked, "Is that what you did?" and Defendant replied, "Yes." Id.
Upon additional questioning of Defendant, the court accepted his guilty pleas and found them to

2
be knowingly, intelligently and voluntarily entered. (N.T., 9/6/18, p. 10).
Defendants first PCRA allegation is "ineffective assistance of counsel, for failure to provide any
additional information on plea deal negotiations." Defendant fails to state what additional information he
believes was not disclosed to him regarding plea negotiations. Defendant pled guilty and admitted to the
facts in support of the plea, in exchange for the withdrawal of eleven pending counts charged against him.
He received the sentence for which he bargained. When the court asked him if he "had enough time to
discuss [his] case, the facts, the law and any possible defense with your attorney?," Defendant responded,
"yes." (N.T., 9/6/18, pgs. 6-7). The Court asked if he was satisfied with his attorney's representation and
Defendant responded, "Yes." (N.T., 9/6/18, p. 7). Defendant's allegation that his attorney failed to provide
information on the plea negotiations is not supported by the record and lacks merit.
Defendant's second PCRA allegation is "ineffective assistance of counsel, for failure to
appropriately advise defendant of the consequences of the guilty plea pursuant to Padilla v. Kentucky, 559
U.S[.] 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)." In that case, the United States Supreme Court held
that defense "counsel must inform her client whether his plea carries a risk of deportation." Padilla v.
Kentucky, 559 U.S. 356, 374, 130 S.Ct. 1473, 1486 (2010). Defendant is a United States citizen with a
social security number, as noted in the record. Therefore, he is not at risk for deportation as a result of a
criminal conviction and the holding of Padilla v. Kentucky is not applicable to his case.
In addition, it must be noted that in court Defendant was made aware of additional consequences
of entering the plea, on top of the sentence that he was to receive. Specifically, it was discussed that this
plea would result in a state parole violation, which would have an additional penalty issued by the
Department of Corrections. The following exchange took place in court:
THE COURT: Are you on probation or parole right now?
THE DEFENDANT: Yes.
THE COURT: What's he on for, and what's his prior record score?
MS. CARDAMONE: Your Honor, he has a prior record score of a five.
-
He is on parole out of state parole out of Philadelphia. And don't have an
I

exact number, but it was - he was previously been sentenced to five to ten years
in state prison for some burglary offenses. He had multiple burglary offenses,
which were run concurrently.
THE COURT: So you are on state parole now in Philadelphia?
THE DEFENDANT: Yes.
THE COURT: You realize that this guilty plea will likely be a violation of
that supervision, which will result in an additional penalty by the State Department
of Corrections?
THE DEFENDANT: Yes.
MS. CARDAMONE: And, your Honor, for the record, the state parole
has, think, lodged a detainer on him. He has not had his revocation hearing yet,
I

so there is no parole sentence imposed at this point in time. But he will have a
revocation hearing at a later date.
His guideline range for these charges, it's the same for each of these offenses,
and it is 24 to 36 months.
THE COURT: Agreed, Miss Jurs?
MS. JURS: Yes, your Honor.
(N.T., 9/6/18, pgs. 8-9).
Accordingly, Defendant was fully apprised of the consequences of his plea and his claim that he
was not properly advised of the consequences is without merit.
Defendant's third PCRA allegation is "ineffective assistance of counsel for allowing breakdown of
guilty plea negotiations and defendant was induced into accepting plea of guilty." This claim is also not
supported by the record. Plea negotiations clearly did not breakdown as the negotiations resulted in an
agreed upon plea and sentence. There is absolutely no evidence that Defendant was improperly induced

3
into accepting the plea. It was Defendant's decision to accept the plea offer and not proceed to trial.
There are always many factors taken into account when the Commonwealth makes an offer and a
defendant decides to accept it. However, these factors do not amount to an improper inducement
between the attorneys to force a defendant to accept a plea offer.
In this case, Defendant admitted both on the record and in the Guilty Plea Colloquy form that he
committed the crimes to which he was pleading guilty. He acknowledged that '[n]o one has used any
force or threats against me in order to get me to enter this plea of guilty" and Inlo promises have been
made to me in order to get me to enter this plea other than what is set forth in the plea bargain
agreement..." Defendant further acknowledged on the guilty plea colloquy form as follows: "1 further agree
that, although I have been assisted by my attorney, it is my own decision to enter the plea that (am]
I

making here today."
The Court also asked Defendant the following question twice: "except for what's in the agreement,
has anyone threatened you or promised you anything to get you to plead guilty?," to which Defendant
responded "no" both times. (N.T., 9/6/18, pgs. 8-9). It is abundantly clear that it was Defendant's decision
to enter the plea, he was satisfied with his attorney's representation and he entered the plea knowing and
voluntarily. Accordingly, Defendant's PCRA allegation that his plea was improperly induced is without
merit.
Defendant's fourth PCRA allegation is "[i]neffective assistance of counsel for failure to file motion
to suppress evidence illegally obtained from G.P.S." Defendant's ninth PCRA allegation is that "counsel
failed to file a motion to suppress the G.P.S. data which was false due to the fact it does not place the
defendant in the stolen vehicle or in any location the police pursuit took place, the location where the driver
ran from the vehicle and the information submitted was false and could not be proven by the
Commonwealth with the data submitted." These arguments are without merit. First, Defendant fails to set
forth the reason he believes that the evidence was illegally obtained. Second, it is abundantly clear that
the GPS evidence was not illegally obtained. The affidavits of probable cause attached to the criminal
complaints reveal that Defendant was released on parole from Graterford State Correctional Institution on
August 14, 2017. As a condition of his parole, Defendant would have had to agree to wear a Global
Positioning System monitoring ankle bracelet. He was fully aware that the authorities were legally
monitoring his whereabouts via the GPS system.
Counsel cannot be deemed ineffective for failing to file a frivolous motion to suppress that lacked
any merit whatsoever. In addition to the ankle bracelet, there were other pieces of evidence that put
Defendant at the scene of the crimes, including surveillance video and an eyewitness passenger that was
ejected from the vehicle Defendant was driving.
Defendant does not set forth why he believes the GPS data was false. Defendant alleges that the
data did not place Defendant at the scenes of the crime, however, the affidavits of probable cause
attached to the criminal complaints refute this claim. Based upon all the evidence the Commonwealth had
against Defendant, under the totality of the circumstances, Defendant made the decision to enter a guilty
plea instead of proceeding to trial. Therefore, the actual GPS data was not placed before this court to be
examined. However, as discussed above, the Commonwealth had evidence in addition to the GPS data
that placed Defendant at the scenes of the crimes. This court does not find that counsel was ineffective
for failing to file a Motion to Suppress the GPS data and Defendant's PCRA allegation must be dismissed.
Defendant's fifth allegation on appeal is "[i]nsufficient probable cause to arrest" and Defendant's
sixth PCRA allegation is as follows: "As a matter of record counsel failed in a[n] obligation for dismissal or
quash the indictments for the charge(s) of receiving stolen property, fleeing police -eluding, theft by
unlawful taking and other related offenses, particularly in light of the fact the Commonwealth failed to
establish a prima facie case or the element to support the arrest or conviction for the charge(s) receiving
stolen Property, fleeing police -eluding, theft by unlawful taking."
Defendant has waived the right to challenge the probable cause to arrest. On September 8, 2017,
Defendant executed a Waiver of Preliminary Hearing form and acknowledged that when he waived his
right to a preliminary hearing he would "thereafter [be] precluded from raising challenges to the sufficiency

4
of the prima facie case." However, in the spirit of thoroughness, this court reviewed the affidavits of
probable cause attached to the criminal complaints and has made the determination that there was
sufficient evidence to arrest Defendant on these charges. In addition, the facts to which Defendant pled
guilty not only establish that there was sufficient evidence to arrest but sufficient evidence to support the
crimes to which he pled guilty. Counsel cannot be deemed ineffective for failing to file a frivolous motion
to dismiss. Therefore, these PCRA issues are without merit.
Defendant's seventh PCRA allegation is that "Wier counsel was not prepared for trial and had not
spoken with the defendant. Counsel intended to proceed to trial without properly meeting with the client to
prepare." This allegation is not supported by the record. Defense counsel entered her appearance for
Defendant on September 14, 2017, the day after the Magisterial District Court record was received by this
court on September 13, 2017. The record indicates that defense counsel was thoroughly familiar with
Defendant's cases and even received a successful outcome on the Motion to Suppress she filed on his
behalf on March 28, 2018.
Defendant would be unable to establish that counsel would not have been prepared for trial
because he entered the guilty plea prior to the start of a trial. This court is familiar with the work ethic of
defense counsel and has not seen her proceed to any trial unprepared. If Defendant decided to proceed
to trial, we are confident that defense counsel would have been thoroughly prepared.
In addition, it must be noted again that both on the Guilty Plea Colloquy and at the hearing,
Defendant acknowledged that he was satisfied with his attorney's representation. Accordingly, this issue
is found to be without merit.
Defendant's eighth PCRA allegation is that Tinal counsel was ineffective for failing to raise, fix or
cure defendantns meritorious speedy trial (state) rule claim, instead allowed the court to calculate the time
involved, which was a miscalculation and counsel continuancely (sic) used continuances when defendant
never requested or gave the counsel permission to use." It appears that Defendant is raising a claim
under Pa.R.Crim.P. 600, prompt trial.
"For the purpose of this rule, trial shall be deemed to commence on the date the trial judge calls
the case to trial, or the defendant tenders a plea of guilty or nolo contendere." Pa.R.Crim.P. 600(A)(1).
Since Defendant entered his guilty plea on September 6, 2018, that is the date to which we calculate.
Pursuant to Pa.R.Crim.P. 600(A)(2)(a), "[t]dal 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." On docket
number 3082-17, the complaint was filed on September 6, 2017 and on docket number 3083-17, the
complaint was filed on August 28, 2017. Three -hundred and sixty five days from the earlier of the two
dates would be August 28, 2018. Three -hundred and seventy-four days passed between the filing of the
earlier complaint and the guilty plea, therefore there are nine days in question.
Pursuant to Pa.R.Crim.P. 600(C)(1),jor 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.' Defendant has not set forth any claim that the
Commonwealth failed to exercise due diligence. Defendant only argues that defense counsel was
ineffective for failing to file a motion to dismiss based on timeliness and for requesting continuances that
he did not authorize.
At the very least, Defendant cannot dispute the fact that the Motion to Suppress was filed to his
advantage. The motion was filed on March 28, 2018 and an Order was entered on May 16, 2018, granting
that motion. Therefore, the forty-nine days in which the motion was pending must be attributable to
Defendant and excluded from the 365 time calculation. The court does not need to speak to the other
defense continuance requests because excluding these forty-nine days proves that Defendant's claim that
he was not promptly brought to trial is without merit. Once again, defense counsel will not be found to be
ineffective for failing to file a meritless motion and Defendant's PCRA allegation is found to be without
merit.
 2. Pursuant to Pennsylvania Rule of Criminal Procedure 907, Defendant is hereby

advised that after twenty (20) days of this notice, it is this court's intention to
dismiss the petition without further proceedings.
3. If Defendant or his PCRA counsel responds to this notice, said response must
be filed and served upon this court within twenty (20) days of the docketing of
this Order. Thereafter, pursuant to Pa.R.Crim.P. 907(1), the Court will either
dismiss his motion, grant leave to file an amended motion, or direct that a

hearing be held. If there is no response, an order will be entered dismissing
Defendant's PCRA motion.

BY THE COURT:

PHYL R. STREITEL, S.J.

Defendant's tenth PCRA allegation is that "counsel failed in a[n] obligation to adequately
investigate and prepare the defense for the case, gather all the evidence submitted in the case, thus
ineffectively litigation the case blindly and erroanous (sic). When shown new found evidence to help the
defense counsel failed to follow up on new leads." Defendant fails to support these claims with any
evidence. As discussed above, this court found defense counsel's representation to be thorough and it is
clear that she did investigate and prepare defenses for Defendant's cases, including successfully having
Defendant's statements to the police suppressed.
Defendant does not state what evidence or witnesses defense counsel failed to follow up on with
new leads. However, in reviewing PCRA counsel's Finley letter, it appears that Defendant believed that a
witness, Mary D., would have been beneficial to his case. PCRA counsel contacted this potential witness
and determined that she would have been detrimental to Defendant's case and this court agrees. Mary D.
is the mother of the eyewitness passenger in the vehicle Defendant was driving. Defendant ejected that
passenger while the vehicle was moving and the passenger sustained injuries as a result. That
passenger was a childhood friend of Defendant. Mary D. told PCRA counsel that the passenger was
prepared to testify at trial against Defendant.
There is no evidence that defense counsel was made aware of this potential witness, or that if she
was aware of this witness, that she did not follow up with interviewing her. Be that as it may, it is
abundantly clear that either way, this witness and evidence would have been detrimental to Defendant and
his case. Therefore, it is found that this issue lacks merit.
Based upon the above, the PCRA allegations are found to be without merit and the PCRA Motion
must be dismissed.

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