Com. v. Latorre, L. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
LOUIS LATORRE
Appellant No. 1183 EDA 2012
Appeal from the PCRA Order March 23, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0100182-2005
BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY JENKINS, J.: FILED APRIL 21, 2015
Louis Latorre appeals from an order dismissing his petition for relief
under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq.,
without a hearing. We affirm.
On August 9, 2004, Philadelphia Police Officer Richard Martinez
observed Latorre and two other men sell crack cocaine to several people in
front of Latorre’s property at 2009 South Sixth Street. When backup officers
converged on the men, Latorre attempted to dispose of a bag containing
nine packets of crack cocaine by dropping it in the mail slot of the property.
Officers recovered $632 in cash from Latorre’s person. They then obtained
and executed a search warrant on 2009 South Sixth Street. There, they
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*
Retired Senior Judge assigned to the Superior Court.
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recovered five additional packets of crack cocaine that totaled nearly twenty-
eight grams.
Latorre was arraigned on January 20, 2006. On February 11, 2009,
Latorre litigated a motion to suppress, which the court denied that day.
Latorre requested permission to present additional evidence in support of his
motion to suppress, which the court permitted him to do. On February 26,
2009, upon reviewing his new evidence, the court again denied his motion to
suppress.
Following a bench trial on April 22, 2010, the court found Latorre guilty
of possession with intent to deliver (“PWID”),1 possession of a controlled
substance,2 possession of drug paraphernalia3 and criminal conspiracy.4 On
October 28, 2010, the court sentenced Latorre to 3-6 years’ imprisonment
on the PWID conviction and imposed no further penalty on the other
convictions. Latorre did not appeal from the judgment of sentence.
On June 30, 2011, Latorre filed a PCRA petition claiming that his trial
counsel was ineffective for violating Rule 600 by repeatedly asking for
continuances. On February 21, 2012, the court held argument on the PCRA
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1
35 P.S. § 780-113(a)(30).
2
35 P.S. § 780-113(a)(16).
3
35 P.S. § 780-113(a)(32).
4
18 Pa.C.S. § 903.
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petition. On February 29, 2012, the PCRA court entered a notice of intent to
dismiss Latorre’s petition without an evidentiary hearing. On March 23,
2012, the court dismissed Latorre’s petition. This appeal followed.
On June 24, 2013, the PCRA court filed a Pa.R.A.P. 1925(a) opinion.
Subsequently, PCRA counsel filed a request in this Court for remand to
obtain the notes of testimony from Latorre’s sentencing hearing and then file
a Pa.R.A.P. 1925(b) statement. On August 6, 2013, this Court ordered a
remand in order for the PCRA court to supplement the record with any
omitted notes of testimony and then for PCRA counsel to file a Pa.R.A.P.
1925(b) statement. On April 7, 2014, due to the PCRA court’s failure to
comply with our August 6, 2013 order, this Court granted Latorre’s motion
to remand for the PCRA court to comply with our August 6, 2013 order. This
Court remanded the case for sixty days, ordered the PCRA court to direct
Latorre to file a Pa.R.A.P. 1925(b) statement, and ordered the PCRA court to
comply with Pa.R.A.P. 1925(a) after the filing and service of the Pa.R.A.P.
1925(b) statement.
On April 16, 2014, the PCRA court ordered PCRA counsel to file a
Pa.R.A.P. 1925(b) statement “within 21 days from the entry of this order or
21 days after the notes of testimony are available, whichever is later.” On
May 15, 2014, PCRA counsel filed a Pa.R.A.P. 1925(b) statement. It is
unclear from the record whether this Pa.R.A.P. 1925(b) statement was
timely under the terms of the April 16, 2014 order.
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On November 5, 2014, the PCRA court filed a supplemental Pa.R.A.P.
1925(a) opinion. The court attached the notes of testimony from the
February 21, 2012 argument as an exhibit to its opinion, and it wrote that
the issues in the Pa.R.A.P. 1925(b) statement were “patently frivolous” for
the reasons given during the February 21, 2012 argument.
Latorre’s Pa.R.A.P. 1925(b) statement might be untimely. It was filed
more than 21 days after the PCRA court’s April 16, 2014 order; the record is
unclear as to whether it was filed within 21 days after the notes of testimony
became available. Nevertheless, because the PCRA court’s opinion
addresses the issues raised in this potentially untimely statement, we will
not deem these issues waived. Commonwealth v. Veon, -- A.3d --, 2015
WL 500887, *2 (Pa.Super., Feb. 6, 2015) (citing Commonwealth v.
Thompson, 39 A.3d 335, 340 (Pa.Super.2012)) (“where, as here, the trial
court has addressed the issues raised in an untimely Rule 1925(b)
statement, we … may address the issues on their merits”).
Latorre raises two issues in this appeal:
I. Whether the PCRA Court erred by denying appellant
postconviction relief because trial counsel was
ineffective because he violated the appellant's
constitutional right to a speedy trial pursuant to
Pa.R.Crim.P. 600 and the Sixth Amendment of the
United States Constitution.
II. Whether the PCRA Court erred by denying appellant an
evidentiary hearing for his PCRA claim of ineffective
assistance of counsel because there were material
issues in dispute.
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Brief For Appellant, p. 3.
Latorre first argues that trial counsel was ineffective for failing to file a
motion to dismiss all charges under Pennsylvania’s speedy trial rule,
Pa.R.Crim.P. 600.
Our standard of review from the denial of post-conviction relief “is
limited to examining whether the court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238 (Pa.Super.2011) (citing Commonwealth v.
Morales, 701 A.2d 516, 520 (Pa.1997)).
To prevail on a claim of ineffective assistance of counsel under the
PCRA, the petitioner must demonstrate that: (1) his underlying claim is of
arguable merit; (2) the particular course of conduct pursued by counsel did
not have some reasonable basis designed to effectuate his interests; and (3)
but for counsel’s ineffectiveness, there is a reasonable probability that the
outcome of the proceedings would have been different. Commonwealth v.
Pierce, 786 A.2d 203, 213 (Pa.2001). The failure to satisfy any prong of
this test requires rejection of the claim. Commonwealth v. Williams, 863
A.2d 505, 513 (Pa.2004).
Latorre’s claim of ineffective assistance lacks arguable merit. He
asserts that there was a Rule 600 speedy trial violation because his defense
attorney repeatedly requested continuances. That claim is a basis for
denying relief under Rule 600, not for granting relief.
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Pa.R.Crim.P. 600, Pennsylvania’s speedy trial rule, provides in relevant
part:
(A) ](3) Trial in a court case in which a written
complaint is filed against the defendant, when the
defendant is at liberty on bail, shall commence no
later than 365 days from the date on which the
complaint is filed.
...
(B) 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.
(C) In determining the period for commencement
of trial, there shall be excluded therefrom:
(1) the period of time between the filing of the
written complaint and the defendant's arrest,
provided that the defendant could not 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:
(a) the unavailability of the defendant or the
defendant's attorney;
(b) any continuance granted at the request of the
defendant or the defendant's attorney.
Id. There is a three-step process for determining whether there has been a
Rule 600 violation. Commonwealth v. Ramos, 936 A.2d 1097, 1103
(Pa.Super.2007) (en banc). The first step is determining the mechanical run
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date. Id. at 1103. The second step is determining the amount of excludable
delay, which includes any delay attributable to defendant or his counsel.
Pa.R.Crim.P. 600(c)(3)(a); Commonwealth v. Matis, 710 A.2d 12, 16
(Pa.1998); Commonwealth v. Dixon, 907 A.2d 468, 474 (Pa.2006) (any
delay attributable to defendant’s requests or conduct is excludable from 365-
day period in which trial must commence); Commonwealth v. Aaron, 806
A.2d 39, 43 (Pa.Super.2002) (any delay due to continuance attributable to
defense constitutes excludable time). The third step is adding excludable
time to the mechanical run date to arrive at an adjusted run date. Ramos,
936 A.2d at 1103. A Rule 600 violation occurs if trial does not begin before
the adjusted run date. Id.
The record in this case does not demonstrate any Rule 600 violation.
There were over twenty listings where the case was delayed due to defense
requests for a continuance, time that is excludable under Rule 600. In
addition, trial was delayed due to Latorre’s own failure to appear at three
court listings, and there were at least four listings where trial counsel failed
to appear. Delay also resulted from litigation of Latorre’s pretrial motion to
suppress, which is excludable time under Rule 600. Commonwealth v.
Cook, 865 A.2d 869, 875-76 (Pa.Super.2004) (72-day period from filing of
motion to its resolution was excludable time). Equally as important, Latorre
made no attempt in his PCRA petition to identify delays that were
attributable to the Commonwealth under Rule 600; nor did PCRA counsel
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attempt to do so during oral argument on February 21, 2012 (or, for that
matter, in Latorre’s appellate brief). Because many delays in the record are
attributable on their face to Latorre or his counsel, and because Latorre fails
to present any convincing argument to the contrary, we conclude that
Latorre’s claim of ineffective assistance lacks arguable merit.
In his second argument, Latorre contends that the PCRA court erred
by dismissing his claim without an evidentiary hearing. There is no absolute
right to a hearing under the PCRA. Commonwealth v. Wah, 42 A.3d 335,
338 (Pa.Super.2012). The PCRA court may decline to hold a hearing if there
is no genuine issue concerning any material fact, and further proceedings
would serve no purpose. Commonwealth v. Johnson, 945 A.2d 185, 188
(Pa.Super.2008). If the record reflects that the underlying issue is of no
arguable merit, no evidentiary hearing is necessary. Commonwealth v.
Baumhammers, 92 A.3d 708, 726-27 (Pa.2014); see also
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super.2014) (an
evidentiary hearing is not meant to function as fishing expedition for any
possible evidence that may support some speculative claim of ineffective
assistance of counsel). We review the PCRA court’s decision to dismiss a
PCRA petition without a hearing for abuse of discretion. Bauhammers,
supra, 92 A.3d at 726-27.
Latorre claims that an evidentiary hearing was necessary to establish
what constituted excludable time for purposes of his claim of ineffective
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assistance relating to Rule 600. Brief for Appellant, p. 25. Since Latorre
failed in his petition and at oral argument below to identify any period of
delay attributable to the Commonwealth, the PCRA court acted within its
discretion in determining that no hearing was necessary.
Order affirmed.
Judge Platt joins in the memorandum.
Judge Bowes concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2015
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