J-S01005-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWIN BAEZ :
:
Appellant : No. 897 MDA 2020
Appeal from the PCRA Order Entered June 9, 2020
In the Court of Common Pleas of Lebanon County Criminal Division at
No(s): CP-38-CR-0000900-2014
BEFORE: LAZARUS, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 24, 2021
Edwin Baez appeals from the order, entered in the Court of Common
Pleas of Lebanon County, denying his petition for relief under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After our review,
we affirm.
The relevant facts and procedural history is set forth in this Court’s
decision on Baez’s direct appeal:
On May 12, 2014, sixteen-year-old D.R.[] informed a teacher that
Baez, her stepfather, had been sexually abusing her for the past
three years. []D.R.’s school immediately contacted both the
police department and Lebanon County’s Children and Youth
Services (“CYS”). Detective David Lauver, a child abuse detective
with the North Lebanon Township Police Department[,] was
assigned to the police investigation, while Stephanie Swisher, an
investigator with CYS, was assigned to the CYS investigation.
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S01005-21
Both Detective Lauver and Swisher spoke with D.R. at her school
on the day she made these allegations.
Later that day, Detective Lauver contacted Baez for a non-
custodial interview at the police station. Baez agreed to speak with
Detective Lauver, but denied any allegation of sexual contact with
D.R. Two days later, Baez appeared for a second non-custodial
interview with Detective Lauver. At this interview, Baez admitted
to sexual contact with D.R. However, he alleged all contact was
initiated by D.R. As both of these interviews were non-custodial,
Detective Lauver did not provide Baez with Miranda[1] warnings.
On May 15, 2014, Baez was arrested and charged with sexual
assault and related crimes. Six days later, while Baez was in
prison, Swisher met with Baez in relation to the CYS investigation.
Swisher provided Baez with Miranda warnings, which Baez
waived. Baez, once again, admitted to sexual contact between
himself and D.R., but asserted D.R. was the aggressor and
initiated all contact. This conversation, which occurred over the
prison’s visitor telephone system, was recorded.
Prior to trial, Baez filed a series of motions with the court. [] Baez
filed a motion to suppress the statements made to Swisher due to
her alleged misrepresentations during their interview.
Additionally, Baez filed a Rule 600 motion to dismiss his charges
due to the Commonwealth’s [alleged] lack of diligence in bringing
his case to trial. The parties agreed that a hearing on the
suppression motion was unnecessary, as the suppression court
could decide the motion solely on the transcript of the prison
interview between Swisher and Baez. The court, however,
conducted a hearing on the Rule 600 motion. Ultimately, the court
denied both motions.
The case proceeded to jury trial on June 7, 2016. After two days
of testimony, the jury convicted Baez of one count of involuntary
deviate sexual intercourse, one count of sexual assault, one count
of endangering the welfare of children, one count of corruption of
minors, and two counts of indecent assault. The trial court
sentenced Baez to an aggregate period of 21 to 44 years’
incarceration. Additionally, the court found Baez to be a sexually
____________________________________________
1 Miranda v. Arizona, 384 .S. 46 (1966).
-2-
J-S01005-21
violent predator (“SVP”) and ordered him to register as such for
the remainder of his life.
Commonwealth v. Baez, 681 MDA 2017, at 2-3 (Pa. Super. filed Nov. 2,
2018) (unpublished memorandum decision). On direct appeal, this Court
affirmed Baez’s judgment of sentence.2 Id. at 14. Baez did not seek review
in the Pennsylvania Supreme Court.
On January 30, 2020, Baez filed a pro se PCRA petition. The court
appointed counsel on January 31, 2020. The court also issued a rule to show
cause why a hearing should not be granted. The Commonwealth filed a
response, the PCRA court entered an order, pursuant to Pa.R.Crim.P. 907,
giving notice of its intention to dismiss Baez’s petition without a hearing and
Baez filed a counseled response to the Rule 907 notice. In March 2020, the
court scheduled a hearing for April 13, 2020. In light of the judicial emergency
due to COVID-19, the hearing was rescheduled for June 15, 2020.
At the hearing, Baez presented several claims of ineffectiveness of trial
counsel. Baez argued trial counsel was ineffective for not doing research on
Rule 600, which caused his motion to dismiss to be denied. He also argued
trial counsel was ineffective for failing to order the transcript of the February
1, 2016 hearing on the Rule 600 motion to dismiss, which rendered this claim
waived on direct appeal. See N.T. Evidentiary Hearing, 6/5/20, at 4-5. Both
Baez and trial counsel testified at the hearing. At the conclusion of the
____________________________________________
2 This Court vacated Baez’s SVP designation under 42 Pa.C.S.A. §
9799.24(e)(3), pursuant to Commonwealth v. Butler, 173 A.3d 1212 (Pa.
Super. 2017), which was applicable law at the time of Baez’s sentencing.
-3-
J-S01005-21
hearing, the court denied Baez’s PCRA petition. On June 29, 2020, Baez filed
this timely appeal. He raises two issues for our review:
1. Did the PCRA Court err in not finding trial counsel ineffective
because he failed to preserve Baez’s Rule 600 claim on
appeal?
2. Did the PCRA Court err in not finding trial counsel ineffective
because he was not prepared to argue Baez’s Rule 600
motion at the hearing?
Appellant’s Brief, at 4. Baez argues he was forced to file for continuances
because the Commonwealth did not exercise due diligence in responding to
his discovery requests. Id. at 15. He also argues counsel had no reasonable
basis for failing to order the Rule 600 hearing transcript, which resulted in this
Court finding his Rule 600 claim waived on direct appeal. Id. at 15-16. See
Commonwealth v. Baez, supra at 3-5. This latter claim is correct, however,
Baez cannot prove ineffectiveness unless he can establish that his underlying
claim had merit. Following a hearing, the PCRA court concluded counsel was
not ineffective for failing to preserve Baez’s Rule 600 claim for appeal because
the claim was meritless.
Counsel is presumed effective, and an appellant has the burden
of proving otherwise. In order for [petitioner] to prevail on a claim
of ineffective assistance of counsel, he must show, by a
preponderance of the evidence, ineffective assistance of counsel
which so undermined the truth determining process that no
reliable adjudication of guilt or innocence could have taken place.
To prevail on his ineffectiveness claims, [petitioner] must plead
and prove by a preponderance of the evidence that: (1) the
underlying legal claim has arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) [petitioner]
suffered prejudice because of counsel’s action or inaction.
-4-
J-S01005-21
Commonwealth v. Presley, 193 A.3d 436, 442 (Pa. Super. 2018) (internal
citations and quotation marks omitted). Further,
[o]ur 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. We view the findings of the PCRA court and the evidence
of record in a light most favorable to the prevailing party.
Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (internal citations
and quotation marks omitted).
The proper scope of review of Baez’s Rule 600 claim is limited to the
evidence on the record of the hearing and the findings of the PCRA court. This
Court must view the facts in the light most favorable to the prevailing party.
Commonwealth v. Thompson, 93 A.3d 478, 486–87 (Pa. Super. 2014).
Additionally, when considering the trial court’s ruling, 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.
Id. (citations, brackets, and ellipses omitted).
Rule 600 provides, in relevant part:
(A) Commencement of Trial; Time for Trial
(1) 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.
-5-
J-S01005-21
(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
(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.
Pa.R.Crim.P. 600 (emphasis added).
The courts of this Commonwealth employ three steps in determining
whether Rule 600 requires dismissal: “First, Rule 600(A) provides the
mechanical run date. Second, we determine whether any excludable time
exists pursuant to Rule 600(C). [Finally, w]e add the amount of excludable
time, if any, to the mechanical run date to arrive at an adjusted run date.”
Commonwealth v. Bethea, 185 A.3d 364, 371 (Pa. Super. 2018).
Accordingly, to determine whether a Rule 600 violation occurred, a court must
“account for any ‘excludable time’ and ‘excusable delay.’” Commonwealth
v. Colon, 87 A.3d 352, 357 (Pa. Super. 2014) (citation omitted). “Excludable
time is delay that is attributable to the defendant or his counsel.” Id. The
following periods must be excluded:
(1) the period of time between the filing of the written complaint
and the defendant’s arrest, provided that the defendant could not
-6-
J-S01005-21
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 either the unavailability of the defendant or
the defendant’s attorney or any continuance granted at the
request of the defendant or the defendant's attorney.
Pa.R.Crim.P. 600, cmt. (emphasis added). See Colon, supra.
Excusable delay “is delay that occurs as a result of circumstances
beyond the Commonwealth’s control and despite its due diligence.” Colon,
87 A.3d at 357. In determining whether the Commonwealth has exercised
reasonable diligence, we are guided by the following: “Due diligence is a fact-
specific concept that is 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.”
Commonwealth v. Lynch, 57 A.3d 120, 124 (Pa. Super. 2012) (internal
citations and quotations omitted).
Upon review of the procedural history, we conclude that Baez’s Rule 600
claim lacks merit. The Commonwealth filed a criminal complaint against Baez
on May 15, 2014. As such, the mechanical run date was May 15, 2015.
Pa.R.Crim.P. 600(A)(2). Baez was tried on February 1, 2016. The parties
agreed 627 days had passed since the filing of the complaint—262 days past
the mechanical run date. After a comprehensive review of the docket, the
court determined that of those 262 days, only the time between the filing of
-7-
J-S01005-21
the complaint and the call of the list on July 24, 2014, a total of 70 days, was
not attributable to Baez. Thus, the court found 192 days of delay attributable
to Baez. Adding the excludable time to the mechanical run date, we calculate
the adjusted run date to November 27, 2015. Pa.R.Crim.P. 600(C).
One week prior to that date, on November 20, 2015, Baez filed a motion
for continuance, seeking 60 days to obtain DNA testing of the victim’s clothing.
In his motion, Baez stated, “Defendant believes and therefore avers that the
Commonwealth is giving their full cooperation, however the information being
made available to them by the technology sources has been slow.”
Appellant’s Motion for Continuance, 11/20/15, at ¶ 8. Adding that period of
excludable time, the adjusted run date is January 26, 2016. We also add as
excludable delay the 30-day continuance sought by the Commonwealth,
where the court determined the Commonwealth acted with due diligence.
Pa.R.Crim.P. 600(C)(1). In his opinion, the Honorable Samuel A. Kline
determined that none of the delay was a result of the Commonwealth’s delay
in discovery obligations, and the Commonwealth demonstrated due diligence
throughout the proceedings. See PCRA Court Opinion, 8/24/20, at 6-14.
After our review, we agree. This brings Baez’s February 2, 2016 trial date
within the time limitations set forth in Rule 600. Hence, Baez’s claim that trial
counsel provided ineffective assistance for failing to preserve and adequately
argue his Rule 600 claim is meritless.
Counsel’s failure to preserve the issue for appeal, and lack of
preparation, while unprofessional, did not prejudice Baez because the record
-8-
J-S01005-21
and governing case law would not alter the result of his case. Presley, supra.
The PCRA court’s findings are supported in the record, and we discern no legal
error. Mason, supra. Where “the underlying claim is meritless, the
derivative claim of ineffective assistance of counsel for failing to object has no
arguable merit.” Commonwealth v. Spotz, 47 A.3d 63, 122 (Pa. 2012).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/24/2021
-9-