Com. v. Kennedy, C. ( 2018 )

J-S48030-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHAL KENNEDY :
:
Appellant : No. 533 EDA 2017
Appeal from the PCRA Order January 20, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0015288-2009
BEFORE: DUBOW, J., MURRAY, J., and PLATT*, J.
MEMORANDUM BY MURRAY, J.: FILED SEPTEMBER 17, 2018
Chal Kennedy (Appellant) appeals from the order dismissing his petition
filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546. We affirm.
Because the issue Appellant raises in this appeal relates to Rule 600 of
the Pennsylvania Rules of Criminal Procedure, a recitation of the facts
underlying his convictions is unnecessary. It suffices to say that Appellant’s
convictions stem from a home invasion that occurred on August 17, 2009. On
October 23, 2013, a jury found Appellant guilty of aggravated assault,
robbery, burglary, criminal conspiracy, unlawful restraint, violations of the
Uniform Firearms Act, and possession of an instrument of crime. On
December 17, 2013, the trial court sentenced Appellant to 10 to 20 years of
incarceration. Appellant did not file a direct appeal.
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* Retired Senior Judge assigned to the Superior Court.
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On November 3, 2014, Appellant filed a timely PCRA petition. The PCRA
appointed counsel, who subsequently filed a petition to withdraw and 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). On December
15, 2016, the PCRA court issued notice of its intent to dismiss Appellant’s
PCRA petition pursuant to Rule 907 of the Pennsylvania Rules of Criminal
Procedure. On January 20, 2017, the PCRA court formally dismissed
Appellant’s PCRA petition and granted PCRA counsel’s petition to withdraw.
Appellant timely appealed1 to this Court.2
On appeal, Appellant presents the following issues for review:
1. Was trial counsel ineffective for failing to litigate the
Omnibus Motion (Motion to Dismiss pursuant to Rule 600,
Pa.R.Crim.Pro.)?
2. Did the Commonwealth fail to exercise due diligence in
bringing [Appellant] to trial pursuant to Rule 600, Pa.R.Crim.Pro?
Appellant’s Brief at 4.
Because Appellant’s issues are related, we address them together. “In
reviewing the denial of PCRA relief, we examine whether the PCRA court’s
determination is supported by the record and free of legal error.”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quotations and
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1On March 9, 2017, the PCRA court appointed counsel to represent Appellant
on appeal.
2 Both the PCRA court and Appellant have complied with Rule 1925 of the
Pennsylvania Rules of Appellate Procedure.
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citations omitted). “To be entitled to PCRA relief, [an] appellant must
establish, by a preponderance of the evidence, [that] his conviction or
sentence resulted from one or more of the enumerated errors in 42
Pa.C.S.[A.] § 9543(a)(2)[.]” Id.
In deciding ineffective assistance of counsel claims, we begin with the
presumption that counsel rendered effective assistance. Commonwealth v.
Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that presumption,
the petitioner must establish: “(1) the underlying claim has arguable merit;
(2) no reasonable basis existed for counsel’s action or failure to act; and (3)
the petitioner suffered prejudice as a result of counsel’s error, with prejudice
measured by whether there is a reasonable probability that the result of the
proceeding would have been different.” Id. (citation omitted). If the
petitioner fails to prove any of these prongs, the claim is subject to dismissal.
Bomar, 104 A.3d at 1188.
Appellant argues that trial counsel was ineffective for failing to pursue a
Rule 600 motion to dismiss the charges against him.3 Appellant’s ineffective
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3 Rule 600 was designed “to prevent unnecessary prosecutorial delay in
bringing a defendant to trial.” Commonwealth v. Brock, 61 A.3d 1015,
1021 (Pa. 2013). Rule 600 provides, in pertinent 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.
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assistance of counsel claim lacks arguable merit for two reasons. First,
although the record is unclear as to precisely when Appellant requested to
proceed pro se, it nonetheless reflects that although he had the benefit of
standby counsel, Appellant represented himself prior to and during trial. See
e.g., N.T., 10/15/13, at 14; N.T., 10/17/13, at 25 (trial court stating “at
previous proceedings [the trial court] heard testimony and granted [Appellant]
the right to represent himself”). The Pennsylvania Supreme Court has held
that an appellant may not raise ineffectiveness claims that challenge his own
performance as counsel. Commonwealth v. Bryant, 855 A.2d 726, 739 (Pa.
2004).
Moreover, the transcript of Appellant’s trial reveals that he did in fact
argue a Rule 600 motion before the trial court, which the court denied. To
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(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.
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the extent Appellant now argues that the trial court erred in denying his Rule
600 motion, this claim is meritless because it has been previously litigated.
To be eligible for PCRA relief, a petitioner must plead and prove that the
allegation of error has not been previously litigated. 42 Pa.C.S.A. §
9543(a)(3). “A claim is previously litigated if it has been raised in the trial
court, the trial court has ruled on the merits of the issue and the petitioner
did not appeal[.]” Commonwealth v. Smith, 17 A.3d 873, 883 (Pa. 2011)
(citing 42 Pa.C.S.A. § 9544(a)(1)) (quotations and citations omitted). In this
case, Appellant raised his Rule 600 claim before the trial court, the trial court
denied the claim on the merits, and Appellant did not appeal the issue.
Based on the foregoing, we conclude that the trial court did not abuse
its discretion in dismissing Appellant’s PCRA petition.4
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4 Although Appellant was arrested and charged in this matter on August 18,
2009 and he did not stand trial until October 15, 2013 (1520 days) – well
beyond the mechanical run date under Rule 600(A) – only 16 days of the delay
are directly attributable to the Commonwealth. See Trial Court Opinion,
12/12/17, at 4. The record reveals that a substantial portion of the delays
associated with beginning trial in this case stem from a busy trial calendar,
which Appellant attempts to attribute to the Commonwealth because “[t]here
is no indication that the Commonwealth did anything to get the case listed
sooner or find another judge or courtroom.” Appellant’s Brief at 21. It is well-
settled, however, “that the Commonwealth cannot control the schedule of the
trial courts and that therefore [j]udicial delay can support the grant of an
extension of the Rule [600] rundate.” Commonwealth v. Trippett, 932 A.2d
188, 198 (Pa. Super. 2007) (quotations and citations omitted); see also
Commonwealth v. Preston, 904 A.2d 1, 14 (Pa. Super. 2006) (en banc)
(concluding that judicial delay justifies postponement of trial where “the
Commonwealth was prepared to commence trial prior to the expiration of the
mandatory period but the court was unavailable because of ‘scheduling
difficulties and the like’”).
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/18
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