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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RICHARD MICHAEL CHAROWSKY
Appellant No. 9 MDA 2016
Appeal from the PCRA Order entered December 4, 2015
In the Court of Common Pleas of Schuylkill County
Criminal Division at No: CP-54-CR-0001413-2014
BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 17, 2016
Appellant, Richard Michael Charowsky, appeals from the order the
Court of Common Pleas of Schuylkill County entered on December 4, 2015,
denying his request for collateral relief under the Post Conviction Relief Act,
42 Pa.C.S.A. §§ 9451-46. Upon review, we affirm.
The PCRA court summarized the relevant background as follows:
[Appellant] was arrested in this case on February 16, 2014. The
criminal complaint was not filed until August 4, 2014, and he
was arraigned by Magisterial District Judge Christina Hale on
August 5, 2014, approximately six months after his arrest. He
subsequently pled guilty to two of the charges.[1]
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*
Former Justice specially assigned to the Superior Court.
1
Appellant pled guilty to DUI, highest rate of alcohol, third offense, and
driving while operating privilege was suspended or revoked, 75 Pa.C.S.A.
§ 3802(c) and 75 Pa.C.S.A. § 1543(b)(1.1)(i), respectively. Appellant was
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[At the PCRA hearing, trial counsel] testified that he [was] not
sure if he noticed the length of time that had passed between
the arrest date and the complaint date. He did not remember
discussing this issue with [Appellant], and did not see any other
options besides negotiating a plea. No suppression or omnibus
issues seemed to be present and [Appellant] had a lengthy
criminal record. [At the same hearing, Appellant] testified that
he had repeatedly attempted to discuss the time with [trial
counsel] but that [trial counsel] did not listen. [Appellant]
testified that he was prejudiced by the delay in that the person
in the car at the time of his arrest, Edna Barket, could have
testified. However, Ms. Barket was not present at the PCRA
hearing and no evidence was provided as to how she would have
aided [Appellant]’s defense.
PCRA Court Opinion, 12/4/15, at Following the hearing, the PCRA court
denied relief. This appeal followed. On appeal, Appellant alleges the PCRA
court erred in denying relief on his claim that trial counsel was ineffective for
not challenging the Commonwealth’s failure to comply with Pa.R.Crim.P.
519(B)(2).2 We disagree.
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(Footnote Continued)
sentenced to one to five years’ incarceration on the DUI conviction, and 90
to 180 days’ incarceration on the other conviction, concurrent with the DUI
conviction. Appellant did not file a direct appeal. Rather, Appellant filed a
timely PCRA petition.
2
Rule 519, in relevant part, provides as follows:
(B) Release
(1) The arresting officer shall promptly release from custody a
defendant who has been arrested without a warrant, rather than
taking the defendant before the issuing authority, when the
following conditions have been met:
(a) the most serious offense charged is a misdemeanor of the
second degree or a misdemeanor of the first degree in cases
arising under 75 Pa.C.S. § 3802;
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“[A]n appellate court reviews the PCRA court’s findings of fact to
determine whether they are supported by the record, and reviews its
conclusions of law to determine whether they are free from legal error.”
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).
Counsel is presumed to be effective and “the burden of demonstrating
ineffectiveness rests on [A]ppellant.” Commonwealth v. Rivera, 10 A.3d
1276, 1279 (Pa. Super. 2010). Accordingly, “[t]o prevail on an
[ineffectiveness] claim, a PCRA 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 acting or failing to
act; and (3) the petitioner suffered resulting prejudice.” Commonwealth
v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015) (en banc). “A
petitioner must prove all three factors of the ‘[Commonwealth v. Pierce,
527 A.2d 973 (Pa. 1987)] test,’ or the claim fails.” Id.
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(Footnote Continued)
(b) the defendant poses no threat of immediate physical harm
to any other person or to himself or herself; and
(c) the arresting officer has reasonable grounds to believe
that the defendant will appear as required.
(2) When a defendant is released pursuant to paragraph (B)(1),
a complaint shall be filed against the defendant within 5 days of
the defendant’s release. Thereafter, the issuing authority shall
issue a summons, not a warrant of arrest, and shall proceed as
provided in Rule 510.
Pa.R.Crim.P. 519(B)(1)-(2).
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Regarding the specific claim raised in this appeal, the procedure for
filing criminal complaints in cases involving a warrantless arrest, such as this
one, is set forth in Rule 519, which, as noted, provides as follows: “When a
defendant is released pursuant to paragraph (B)(1), a complaint shall be
filed against the defendant within 5 days of the defendant's release.
Thereafter, the issuing authority shall issue a summons, not a warrant of
arrest, and shall proceed as provided in Rule 510.” Pa.R.Crim.P. 519(B)(2).
Dismissal for failure to file a criminal complaint within five days of a
defendant’s release as required by Rule 519(B)(2) is improper unless a
defendant is prejudiced by the delay. See Commonwealth v.
Wolgemuth, 737 A.2d 757, 760 (Pa. Super. 1999); see also Pa.R.Crim.P.
109.3
Upon review of the record, we agree with the PCRA court that
Appellant failed to prove he suffered prejudice from trial counsel’s omission.
Specifically, the PCRA court noted: “[Appellant] provided vague claims to a
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3
Rule 109 provides as follows:
A defendant shall not be discharged nor shall a case be
dismissed because of a defect in the form or content of a
complaint, citation, summons, or warrant, or a defect in the
procedures of these rules, unless the defendant raises the defect
before the conclusion of the trial in a summary case or before
the conclusion of the preliminary hearing in a court case, and the
defect is prejudicial to the rights of the defendant.
Pa.R.Crim.P. 109.
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possible witness that became unavailable due to the delay, but not enough
evidence was given to show that the witness would have been available
earlier, what her testimony would have been, or how her testimony would
have helped his defense.” PCRA Court Opinion, 12/4/15, at 4.
Our review of the record confirms the PCRA court’s assessment.
Accordingly, we conclude Appellant failed to prove that there was “a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Commonwealth v.
Johnson, 966 A.2d 523, 533 (Pa. 2009) (citation omitted). 4 Thus, we
affirm the PCRA court’s order denying Appellant relief.
Order affirmed.
Judge Mundy did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/2016
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4
Because we conclude Appellant failed to prove prejudice, we do need not to
discuss whether Appellant met the other two prongs of the ineffective
assistance standard.
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Com. v. Charowsky, R.
Combined Opinion