Com. v. Blenman, K. ( 2021 )

J-S12038-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN BLENMAN :
:
Appellant : No. 838 EDA 2020
Appeal from the PCRA Order Entered February 26, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0013908-2012
BEFORE: LAZARUS, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: MAY 28, 2021
Kevin Blenman (“Blenman”) appeals from the Order dismissing his
Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).
See 42 Pa.C.S.A. §§ 9541-9546. We affirm in part, reverse in part, and
remand for further proceedings.
This Court previously set forth the factual history underlying this appeal
as follows:
On November 5, 2012, Philadelphia [P]olice [O]fficer Jeffrey
Opalski ([“]Officer Opalski[”]), along with his partner[,] Officer
Mundrick, were on patrol in an unmarked police car in plain
clothes. At the time, Officer Opalski had been a police officer for
two[-]and[-]a[-]half years with ten firearm-related arrests, along
with specific training in firearms and the methods in which they
are carried on a person. The officers were traveling along the
5100 block of Viola Street in Philadelphia, when they observed
[Blenman] standing in front of an abandoned building. Officer
Opalski testified that drug sales are typically conducted in and
around abandoned properties. The officers were patrolling in that
specific area because there were reports of drug sales and gun
violence associated with rival drug gangs. As the officers drove
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down Viola Street, [Blenman] looked in their direction, [and]
turned and walked through an alleyway next to an abandoned
house. The officers then continued down Viola Street, circled the
block a few times, and again spotted [Blenman] on a nearby block.
At this time, he was walking with a noticeable limp and had a large
bulge in the front area of his waistband. The officers stopped their
car, exited[,] and identified themselves as police officers.
Immediately[,] [Blenman] grabbed his waistband area and ran
from the officers. After running for about a block, the officers
observed [Blenman] remove a large silver revolver from his
waistband[,] and discard it in a pile of trash bags. He was arrested
shortly thereafter.
Commonwealth v. Blenman, 178 A.3d 134 (Pa. Super. 2017) (unpublished
memorandum at 1) (footnotes and brackets omitted). Blenman was
subsequently charged with persons not to possess firearms, firearms not to
be carried without a license, and carrying firearms on public streets in
Philadelphia.1
In its Opinion, the PCRA? court summarized the procedural history that
followed:
Following his arrest, [Blenman] attended a preliminary
arraignment at which his bail was set at ten percent of $500,000.
On November 21, 2012, [Blenman] attended his preliminary
hearing[,] at which his three charges were held for court. By
[O]rder, dated December 6, 2012, [Blenman’s] bail status was
changed from the previous monetary bail to a “release on
recognizance” (“ROR”) bail. [Blenman] remained in custody due
to a detainer issued by the Pennsylvania Board of Probation and
Parole[, relative to parole he was serving for a conviction in
Lebanon County].
On January 23, 2013, [Blenman] filed an omnibus pre-trial
[M]otion, including a [M]otion to [S]uppress physical evidence.
On December 1, 2014, following several delays, a hearing on
____________________________________________
1 See 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), 6108.
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[Blenman’s] [M]otion to [S]uppress was heard and was
subsequently denied. Following a stipulated bench trial on
February 3, 2016, [Blenman] was found guilty of three violations
of the Uniform Firearms Act. For his convictions, [Blenman] was
sentenced[,] on April 14, 2016, to an aggregate term of five years
to ten years[ in prison,] and a consecutive term of five years[ of]
probation. [Blenman] did not file any post-sentence motions.
On May 11, 2016, Blenman filed a timely [N]otice of
[A]ppeal to [this Court]. [This Court] subsequently affirmed
[Blenman’s] convictions and judgment of sentence on September
5, 2017…. [See Blenman, supra.2] On September 20, 2017,
[Blenman] timely filed the present [P]etition for relief pursuant to
the PCRA. After being appointed counsel, [Blenman] filed an
[A]mended [P]etition for relief through counsel. On February 26,
2020, [after providing Pa.R.Crim.P. 907 Notice of its intent to
dismiss Blenman’s Petition,] the PCRA court dismissed
[Blenman’s] [P]etition for relief without a hearing. [Blenman] filed
a timely [N]otice of [A]ppeal to [this Court] on March 5, 2020.
PCRA Court Opinion, 7/23/20, at 2-3 (footnote added). Blenman
subsequently filed a court-ordered Pa.R.A.P. 1925(b) Concise Statement of
matters complained of on appeal.
Blenman now presents the following questions for our review:
A. Did the PCRA court err and abuse its discretion in dismissing
Claim #3 (ineffective assistance of counsel) without an evidentiary
hearing, because former defense counsel had no reasonable basis
for failing to file and litigate a Rule 600 motion in order to protect
[] Blenman’s rights under the [s]peedy [t]rial [c]lause of the Sixth
Amendment and Rule 600 of the Pennsylvania Rules of Criminal
Procedure[,] and also had no reasonable basis for failing to obtain
[Blenman’s] medical records for the suppression hearing in a
____________________________________________
2 The PCRA court states in its Opinion that Blenman filed a Petition for
allowance of appeal, and that the Pennsylvania Supreme Court denied his
Petition. However, our review of the record reveals that Blenman did not file
a petition for allowance of appeal. Additionally, Blenman states in the instant
Appellate Brief that he did not appeal this Court’s decision. Brief for Appellant
at 8.
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timely manner, all of which prejudiced [Blenman] by compounding
the loss of pre-sentence confinement credit caused by the [d]ue
[p]rocess violation described in Claim #1?
B. Did the PCRA [c]ourt err and abuse its discretion in dismissing
Claim #4 (ineffective assistance of counsel) without an evidentiary
hearing, because former defense counsel lacked a reasonable
basis for failing to cross examine Officer Opalski at the
suppression hearing about a) the location and timing of the two
purported sightings of [] Blenman prior to the stop by police; and,
b) the mischaracterization of the gun recovered from [] Blenman
as a “Dirty Harry gun,” as such cross-examination would have cast
doubt on the officer’s testimony and eliminated these “articulable
facts” from the suppression court’s Fourth Amendment
“reasonable suspicion” analysis, thereby prejudicing [Blenman] by
[the trial court’s] denial of his suppression [M]otion?
C. Did the PCRA [c]ourt err and abuse its discretion in dismissing
Claim #2 (ineffective assistance of counsel) without an evidentiary
hearing, because former defense counsel lacked a reasonable
basis for failing to take any action to respond to the
unconstitutional conduct of the First Judicial District (and/or its
agents) in changing [] Blenman’s bail type to ROR, as described
above, such as by filing a motion to revoke ROR bail. As a result
of former defense counsel’s conduct, [was] Blenman [] prejudiced
by the loss of presentence confinement credit and suffered illegal
imprisonment?
D. Did the PCRA [c]ourt err in dismissing Claim #1 ([d]ue
[p]rocess and Eighth Amendment violations) without an
evidentiary hearing, because the Court of Common Pleas of
Philadelphia County ([t]he First Judicial District of Pennsylvania),
and/or agents thereof, violated [] Blenman’s [d]ue [p]rocess
rights under the Pennsylvania and United States Constitutions, his
Eighth Amendment [r]ights under the United States Constitution,
and his rights afforded by state and local rules governing bail
(including [Pa.R.Crim.P. 529]), by changing [] Blenman’s bail type
from monetary to [ROR] without providing notice or a hearing to
[] Blenman and without [] Blenman’s knowledge or consent, which
caused [] Blenman to lose presentence confinement credit and
suffer illegal imprisonment?
E. Did the PCRA [c]ourt err and abuse its discretion in denying []
Blenman’s discovery [M]otion filed on March 15, 2018, and
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supplemented on April 16, 2019, when the Commonwealth did not
oppose the [M]otion[] and when [Blenman] demonstrated
exceptional circumstances which justified discovery under Rule
902(E)(1)?
Brief for Appellant at 4-5 (issues reordered).
The standard of review of an order dismissing a PCRA
petition is whether that determination is supported by the
evidence of record and is free of legal error. The PCRA court’s
findings will not be disturbed unless there is no support for the
findings in the certified record. Moreover, [a] PCRA petitioner is
not automatically entitled to an evidentiary hearing. We review
the PCRA court’s decision dismissing a petition without a hearing
for an abuse of discretion.
The right to an evidentiary hearing on a post-conviction
petition is not absolute. It is within the PCRA court’s discretion to
decline to hold a hearing if the petitioner’s claim is patently
frivolous and has no support either in the record or other evidence.
It is the responsibility of the reviewing court on appeal to examine
each issue raised in the PCRA petition in light of the record
certified before it in order to determine if the PCRA court erred in
its determination that there were no genuine issues of material
fact in controversy and in denying relief without conducting an
evidentiary hearing.
Commonwealth v. Williams, 244 A.3d 1281, 1286-87 (Pa. Super. 2021)
(citations omitted).
In his first claim, Blenman argues that his trial counsel was ineffective
in failing to protect his right to a speedy trial pursuant to Pennsylvania Rule
of Criminal Procedure 600(A)(2)(a), the Sixth Amendment to the United
States Constitution, and Article I, Section 9 of the Pennsylvania Constitution.
See Brief for Appellant at 41-54. Pertaining to Rule 600, Blenman argues that
the time between his filing of the January 10, 2013, Motion to Suppress, and
the trial court’s December 1, 2014, Order denying the Motion should not be
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excluded or excused. Id. at 41-46. According to Blenman, the delay occurred
because his counsel failed to obtain medical records that would have
supported his Motion, and the Pennsylvania Department of Corrections failed
to honor Trial Court Writs that ordered Blenman to be brought to court for
hearings. Id. at 42-46. Blenman states that his trial counsel failed to file a
Motion to Dismiss pursuant to Rule 600; trial counsel’s omission was not part
of a reasonable trial strategy; and Blenman was prejudiced as a result. Id.
Additionally, Blenman claims that his rights were violated pursuant to
the United States and Pennsylvania Constitutions. Id. at 47-51. Blenman
argues that the Commonwealth did not exercise due diligence in securing
transportation for his presence at court proceedings, and the resulting delay
should have been attributable to the Commonwealth. Id. Blenman asserts
that this delay caused him prejudice at trial, because he suffered from
oppressive pre-trial incarceration. Id. at 52-54.
To prevail on a claim of ineffective assistance of counsel under the PCRA,
a petitioner must plead and prove, by a preponderance of the evidence, that
counsel’s ineffectiveness “so undermined the truth-determining process that
no reliable adjudication of guilt or innocence could have taken place.” 42
Pa.C.S.A. § 9543(a)(2)(ii). Specifically, a petitioner must establish that “the
underlying claim has arguable merit; second, that counsel had no reasonable
basis for his action or inaction; and third, that [the a]ppellant was prejudiced.”
Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa. Super. 2014). “A
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PCRA petitioner must address each of these prongs on appeal.”
Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018). Counsel is
presumed to be effective and the burden is on the appellant to prove
otherwise. Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011). A
failure to satisfy any prong of the test for ineffectiveness will require rejection
of the claim. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).
In its Opinion, the PCRA court set forth the relevant law, cogently and
thoroughly addressed Blenman’s claim, and concluded that it lacks merit. See
PCRA Court Opinion, 7/23/20, at 10-33. Specifically, regarding Rule 600, the
PCRA Court determined that the time due to trial counsel’s failure to obtain
medical records was chargeable to Blenman, and that the time due to the
Department of Corrections’ failure to bring Blenman to court was not
chargeable to the Commonwealth. Id. at 17-22 (citing Commonwealth v.
Mines, 797 A.2d 963, 965 (Pa. Super. 2002) (stating that “[d]elays resulting
despite the issuance of a bringdown and writ for the defendant’s appearance
are not chargeable to the Commonwealth.”)). As a result, the PCRA court
concluded that Blenman was brought to trial before the adjusted run date
pursuant to Rule 600. Id. at 10-25. The PCRA court further concluded that
Blenman’s rights under the Pennsylvania and United States Constitutions were
not violated because the Commonwealth exercised due diligence in bringing
Blenman to trial. Id. at 25-33. Accordingly, the trial court concluded,
Blenman’s underlying claim lacks merit. Id. at 31-33. We agree with the
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sound reasoning and determinations of the PCRA court as set forth in its
Opinion, and we affirm on this basis regarding Blenman’s first claim. Id. at
10-33.
In his second claim, Blenman argues that his trial counsel was
ineffective in cross-examining Officer Opalski at the pre-trial suppression
hearing. See Brief for Appellant at 55-69. According to Blenman, Officer
Opalski’s testimony regarding two key pieces of evidence was incredible. Id.
Blenman references Officer Opalski’s testimony regarding the distance
between the two locations where Officer Opalski viewed Blenman, and the size
of the gun the officers watched Blenman discard during their pursuit of
Blenman, and recovered thereafter. Id. Blenman states that the distance
between the locations where Officer Opalski saw Blenman was much closer
than the distance to which he testified, and the gun that was recovered was
much smaller than the size to which Officer Opalski testified. Id. at 59-60,
62-68. Blenman argues that his trial counsel was ineffective in failing to point
out these inconsistencies, and that his trial counsel lacked a reasonable trial
strategy for his inactions. Id. at 60-62, 62-69. Blenman further claims that
he was prejudiced, because had his trial counsel questioned Officer Opalski
regarding these topics, the trial court would have found Officer Opalski’s
testimony incredible, and granted his Motion to Suppress the firearm. Id.
In its Opinion, the PCRA court cogently and thoroughly addressed
Blenman’s claim, and concluded that it lacks merit. See PCRA Court Opinion,
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7/23/20, at 38-43. Specifically, the PCRA court found that Blenman was not
prejudiced by his trial counsel’s cross-examination, because the trial court
gave minimal weight to Officer Opalski’s testimony regarding the distance
between the two areas in which Blenman was sighted, and the exact size of
the firearm. Id. at 39-40, 42-43; see also id. at 39 (stating that the trial
court found Officer Opalski possessed probable cause to stop Blenman based
on his testimony that the locations where Blenman was spotted were high-
crime areas, and that the firearm Blenman was carrying was heavy enough to
create “labored walking and [a] large bulge” in Blenman’s front waistband).
We agree with the sound reasoning and determinations of the PCRA court as
set forth in its Opinion, and we affirm thereon regarding Blenman’s second
claim. Id. at 38-43.
We will consider Blenman’s third and fourth claims together, as they are
related. In his third claim, Blenman argues that his due process rights were
violated when the trial court modified his bail, from ten percent of $500,000
to ROR, without providing him with notice and without holding a hearing. See
Brief for Appellant at 27-36. Blenman states that even though he was eligible
to be released from prison, he was nonetheless held on a detainer for a parole
violation on another case. Id. at 32-35. Blenman asserts that as a result, he
remained incarcerated, but did not receive credit for the time that he served
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following the change in his bail. Id. According to Blenman, he lost 1,225
days of credit for time served as a result.3 Id. at 33.
In his fourth claim, Blenman argues that his counsel was ineffective in
failing to take any action in response to the bail changing without a hearing
and without Blenman receiving notice. See Brief for Appellant at 36-40.
Blenman states that his trial counsel had no reasonable basis for failing to
address his change in bail, and that his counsel’s ineffectiveness caused him
prejudice because he was denied significant credit for time served as a result
of counsel’s inaction. Id. at 39-40.
Pennsylvania Rule of Criminal Procedure 529 governs the procedure for
modification of bail orders. Rule 529 states, in relevant part, as follows:
(C) The existing bail order may be modified by a judge of the court
of common pleas:
(1) at any time prior to verdict upon motion of counsel
for either party with notice to opposing counsel and
after a hearing on the motion; or
(2) at trial or at a pretrial hearing in open court on the
record when all parties are present.
Pa.R.Crim.P. 529(C) (emphasis added).
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3 Blenman admits that a portion of the time he spent in prison as a result of
the detainer was credited to his Lebanon County case. Brief for Appellant at
32. Blenman argues that he was still denied credit for a large portion of his
time served, and he would have received more credit had the trial court not
modified his bail. Id. at 32-33. It is unclear from Blenman’s Appellate Brief
whether 1,225 days is the total amount of credit Blenman had accrued, or
whether it was the remaining amount of credit he was owed after receiving
credit on his Lebanon County case.
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Here, the record reveals the trial court modified Blenman’s bail, on
December 6, 2012, without holding a hearing and without affording Blenman
notice. The certified record does not include an Order effectuating the change,
documentation that Blenman was issued notice, or even a motion by the
Commonwealth to change bail. Indeed, the sole indication in the certified
record that Blenman’s bail was changed is a notation on the docket, from
December 6, 2012, indicating “Bail Type Changed.”4 Accordingly, we remand
for a hearing to determine whether Blenman’s due process rights were
violated, whether he was denied effective assistance of counsel, and whether
he is entitled to credit for time served.
In his fifth claim, Blenman argues that the trial court erred in denying
his Motions for discovery related to his PCRA Petition. See Brief for Appellant
at 70-71. In his first Motion for discovery, Blenman requested production of
the Commonwealth’s Motion to change Blenman’s bail, if it existed, and any
other bail-related documents. See Motion for Discovery, 3/15/18, at 2. In
his Supplemental Motion, Blenman requested documents related to the
procedure for issuing and processing writs to transport a prisoner to court for
hearings. See Supplemental Motion for Discovery, 4/16/18, at 2. Blenman
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4 We note that Blenman attached to his Amended PCRA Petition a purported
copy of the December 6, 2012, Order modifying bail. The Order, which lacks
an original time-stamp from the date it was filed, indicates that the
Commonwealth “presented” a Motion to modify Blenman’s bail. However,
there is no other indication that a hearing was held, or that Blenman was
notified of the Commonwealth’s Motion.
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claims that these documents were necessary to support his PCRA claims. Id.
at 71. According to Blenman, the “unusual facts” of his case constitute
“extraordinary circumstances” that justify discovery under Pa.R.Crim.P.
902(E). Id.
We review the denial of discovery for an abuse of discretion.
An abuse of discretion is not merely an error of judgment, but if
in reaching a conclusion the law is overridden or misapplied, or
the judgment exercised is manifestly unreasonable, or the result
of partiality, prejudice, bias or ill-will as shown by the evidence or
the record, discretion is abused.
Commonwealth v. Crispell, 193 A.3d 919, 939 (Pa. 2018) (citation and
quotation marks omitted).
Pennsylvania Rule of Criminal Procedure 902(E) provides, in relevant
part, that “no discovery shall be permitted at any stage of the [PCRA]
proceedings, except upon leave of court after a showing of exceptional
circumstances.” Pa.R.Crim.P. 902. “A showing of good cause requires more
than just a generic demand for potentially exculpatory evidence.” Crispell,
193 A.3d at 940 (citation and quotation marks omitted).
Here, even if the documents requested by Blenman exist, their
production would not assist his claims. Regarding the bail documents, even if
the Commonwealth had motioned to change bail, the certified record is still
devoid of any evidence that a hearing took place, and that Blenman received
notice of the change in bail. Regarding the writ and transportation procedure
documents, even if such documents were produced, the delay in trial
attributable to the Pennsylvania Department of Corrections’ failure to
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transport Blenman to court would still not be chargeable to the
Commonwealth. See Mines, supra. Accordingly, we conclude that the trial
court did not err in denying Blenman’s Motions for discovery. See
Pa.R.Crim.P. 902, Crispell, supra.
Order affirmed in part, reversed in part, and remanded for further
proceedings. Jurisdiction relinquished.
Judge Lazarus joins the memorandum.
Judge Nichols did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/28/21
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Circulated 05/13/20241:05:05 PM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNT
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CP-51-CR-13908-2012
VS.
KEVIN BLENMAN SUPERIOR COURT
Appellant NO. 838 EDA 2020
OPINION
KENNEDY, J. July 23, 2020
Kevin Blenman (hereinafter "Appellant") appeals from the February 26, 2020, order,
entered in the Philadelphia County Court of Common Pleas, dismissing his petition for relief
filed pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. The
relevant facts and procedural history follow below.
FACTS AND PROCEDURAL HISTORY
The PCRA court recounts the facts underlying the present appeal. Briefly, the Honorable
Carolyn Nichols summarized the facts as follows:
On November 5, 2012, Philadelphia police officer Jeffrey Opalski [(Officer
Opalski)], along with his partner Officer Mundrick, were on patrol in an
uiunarked police car in plain clothes. At the time, Officer Opalski had been a
police officer for two and ahalf years with ten [firearm-related] arrests, along
with specific training in firearms and the methods in which they are carried on a
person. The officers were traveling along the 5100 block of Viola St[reet] in
Philadelphia, when they observed [Appellant] standing in front of an abandon[ed]
building. Officer Opalski testified that drug sales are typically conducted in and
around abandoned properties. The officers were patrolling in that specific area
because there were reports of drug sales and gun violence associated with rival
Prior to joining the bench of the Superior Court in 2018, Judge Nichols sat on the Philadelphia County Court of
Common Pleas. Judge Nichols was the original jurist to hear Appellant's December 1, 2014, motion to suppress that
was later denied. Judge Nichols authored aNovember 14, 2016, 1925(a) Opinion supporting her denial of relief.
drug gangs. As the officers drove down Viola St[reet], [Appellant] looked in their
direction, turned and walked through an alleyway next to an abandoned house.
The officers then continued down Viola St[reet], circled the block afew times,
and again spotted [Appellant] on anearby block. At this time, he was walking
with anoticeable limp and had alarge bulge in the front area of his waistband.
The officers stopped their car, exited and identified themselves as police officers.
Immediately [Appellant] grabbed his waistband area and ran from the officers.
After running for about ablock, the officers observed [Appellant] remove alarge
silver revolver from his waistband and discard it in apile of trash bags. He was
arrested shortly thereafter.
[Appellant] was taken to alocal hospital for some minor injuries and then
released back to police custody around 2:00 a.m. the following day. [Appellant]
was initially too groggy to be interviewed at that time. On November 6, 2012, at
around 3:20 a.m,[,] Detective [Matthew] Maurizio read [Appellant] his Miranda
warnings and conducted apost-arrest interview. z [Appellant] did not appear to be
in any distress at that point, was not injured, and was lucid in his recollection.
[Appellant] then gave avery detailed statement of his activities that night,
including where and from whom he received the gun and what he was intending
to do with it. He read and signed the statement along with his Miranda warnings.
Commonwealth v. Blenman, No. 2430 EDA 2016, at 1-2 (Pa. Super. filed September 5, 2017)
(unpublished memorandum) (citing Trial Court Opinion, 11/14/2016, at 2-3). Following his
arrest, Appellant attended apreliminary arraignment at which his bail was set at ten percent of
$500,000. On November 21, 2012, Appellant attended his preliminary hearing at which his three
charges were held for court. By order, dated December 6, 2012, Appellant's bail status was
changed from the previous monetary bail to a"release on recognizance" ("ROR") bail. Appellant
remained in custody due to adetainer issued by the Pennsylvania Board of Probation and Parole.
On January 23, 2013, Appellant filed an omnibus pre-trial motion, including amotion to
suppress physical evidence. On December 1, 2014, following several delays, ahearing on
Appellant's motion to suppress was heard and was subsequently denied. Following astipulated
bench trial on February 3, 2016, Appellant was found guilty of three violations of the Uniform
Firearms Act. For his convictions, Appellant was sentenced on April 14, 2016, to an aggregate
2Miranda v. Arizona, 384 U.S. 436 (1966),
2
term of five to ten years' confinement and aconsecutive term of five years' probation. Appellant
did not file any post-sentence motions.
On May 11, 2016, Appellant filed atimely notice of appeal to the Superior Court. The
Superior Court subsequently affirmed Appellant's convictions and judgment of sentence on
September 5, 2017, and the Pennsylvania Supreme Court denied his petition for allowance of
appeal. On September 20, 2017, Appellant timely filed the present petition for relief pursuant to
the PCRA. After being appointed counsel, Appellant filed an amended petition for relief through
counsel. On February 26, 2020, the PCRA court dismissed Appellant's petition for relief without
ahearing. Appellant filed atimely notice of appeal to the Superior Court on March 5, 2020.
MATTERS COMPLAINED ON APPEAL:
Appellant's 1925(b) Statement asserts:
1. The PCRA court erred in dismissing [Appellant's claim] without an evidentiary
hearing because the Court of Common Pleas of Philadelphia County, and/or agents
thereof, violated [Appellant's] Due Process rights under the Pennsylvania and the
United States Constitution, his Eighth Amendment rights under the United States
Constitution, and his rights afforded by state and local rules governing bail, by
changing [Appellant's] bail type from monetary to "Release on Recognizance"
without providing notice or ahearing to [Appellant] and without [his] knowledge or
consent, which caused Appellant to lose presentence confinement credit and suffer
illegal imprisonment.
2. The PCRA court erred in dismissing [Appellant's claim] without an evidentiary
hearing, because the former defense counsel lacked areasonable basis for failing to
take any action to respond to the unconstitutional conduct of the [Court of Common
Pleas] in changing [Appellant's] bail type, as described above, such as by filing a
motion to revoke ROR bail. As aresult of former defense counsel's conduct,
[Appellant] was prejudiced by the loss of presentence confinement credit and suffered
illegal imprisonment.
3. Th PCRA court erred in dismissing [his third claim] without an evidentiary hearing
because former defense counsel has no reasonable basis for failing to file and litigate
aRule 600 motion in order to protect [Appellant's] rights under the Speedy Trial
Clause of the the Sixth Amendment and Rule 600 of the Pennsylvania Rules of
3
Criminal Procedure when the Commonwealth lacked due diligence in bringing
[Appellant] to trial by ensuring that the Court's writs were honored and enforced by
government agencies.
4. The PCRA court erred in dismissing [Appellant's fourth claim] without an
evidentiary hearing, because former defense counsel lacked areasonable basis for
failing to cross-examine Officer Opalski at the suppression hearing [concerning
several sub-issues).
5. The PCRA court erred and abused its discretion in denying [Appellant's] discovery
motion ... because [Appellant] demonstrated exceptional circumstances which
justified discovery under [Pennsylvania Rule of Criminal Procedure 902(e)(1).
DISCUSSION
Kevin Blenman ("Appellant"), appeals from the PCRA court's dismissal of his petition
for relief filed pursuant to the Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. In
reviewing the denial of PCRA relief, areviewing court examines whether the PCRA court's
determination "is supported by the record and free from legal error." Commonwealth v. Rainey,
928 A.2d 215, 223 (Pa. 2007). The PCRA court's findings will not be disturbed unless there is
no support for the findings in the certified record. Commonwealth v. Lippert. 85 A.3d 1095, 1100
(Pa. Super. 2014).
After athorough and independent review of the record, the PCRA court must now
conclude that remand back to the PCRA court for an evidentiary hearing limited to his bail
modification claims is the proper course. The other matters Appellant has raised do not warrant
relief on the basis that he has not met his burden of proof. Accordingly, the PCRA court
respectfully requests the Superior Court to remand the above matter.
I. Appellant is Entitled to Remand for an Evidentiary Hearing
on Alleged Due Process Violations.
In his first claim for relief, Appellant contends that his constitutional right to Due Process
was violated through the court's failure to credit for time served. The failure to award credit for
4
time served goes to the legality of asentence, which means the claim is cognizable under the
PCRA. See Commonwealth v. Menezes, 871 A.2d 204, 207 (Pa. Super. 2005). Appellant states
that he is entitled to 1,225 days of credit for time because no bail modification hearing occurred
in open court, nor did counsel from either party file amotion for bail modification. See App. Pet.,
4/16/20, at 6. The Commonwealth alternately agreed Appellant is entitled to relief, but should
receive only 633 days of credit for time served. See Comm. Mot., 7/31/19, at 3(unpaginated).
Although the certified record contains aDecember 6, 2012 order modifying Appellant's bail
status, there is no evidence supporting that abail hearing consistent with amotion from either
party, nor that arequest to modify bail terms occurred in open court.
A. The Right to Due Process
The claim asserted by Appellant warrants abrief foundational discussion imposed upon
the courts to award bail. Pennsylvania Rule of Criminal Procedure 529(c) states abail order may
be modified by ajudge of the court of common pleas "at any time prior to verdict upon motion
of counsel for either party with notice to opposing counsel and after ahearing" or at "trial or at a
pretrial hearing in open court on the record when all parties are present." Pa.R.Crim.P. 529 (c)(1-
2), The claim put forth by Appellant sounds in procedural due process. 3
i. Appellant and Procedural Due Process Claim
Appellant first relies upon procedural due process of the opportunity to be heard. See
Commonwealth v. Turner, 80 A.3d 754, 761 (Pa. 2013). In pertinent part, the Fourteenth
Amendment states "nor shall any State deprive any person of life, liberty, or property without
due process of law," and protects "the individual against arbitrary action of government." Id. at
3In light of the PCRA court's agreement that remand to the lower court for an evidentiary hearing is the proper
remedy, the PCRA court need not address Appellant's substantive due process claim attendant to the trial court's
failure to hold abail modification hearing,
5
763. Likewise, Article I, Section 9of the Pennsylvania Constitution also guarantees acriminal
defendant the right to due process. The constitutional right to due process guarantees more than
fair process, covering asubstantive sphere as well, "barring certain government actions
regardless of the fairness of the procedures used to implement them." County of Sacramento v.
Lewis, 523 U.S. 833, 840 (1998) (citing Daniels v. Williams, 474 U.S. 327, 331 (1986)). "Due
process" is not susceptible to precise definition; rather, the phrase expresses the requirement of
"fundamental fairness," arequisite "whose meaning can be as opaque as its importance is lofty."
Lassiter v. Dept of Soc. Serv. of Durham County, 452 U.S. 18, 24--25 (1981).
Within procedural due process, the government is prohibited from depriving individuals
of life, liberty, or property unless it provides the process that is due. While not capable of an
exact definition, the basic elements of procedural due process are adequate notice, the
opportunity to be heard, and the chance to defend oneself before afair and impartial tribunal
having jurisdiction over the case. Commonwealth v. Wright, 961 A.2d 119, 132 (Pa. 2008). Thus,
courts examine procedural due process questions in two steps: the first asks whether there is a
life, liberty or property interest that the state has interfered with; and the second examines
whether the procedures attendant to that deprivation were constitutionally sufficient. Kentucky
Dep't of Corr. v. Thompson, 490 U.S. 454,460 (1989).
ii. Pennsylvania Bail Procedures
Appellant raises his claim under the argument that his rights to due process —both
substantive and procedural —were violated through the action of improper bail measures. It is
axiomatic that bail is the surety required and given for the release of aperson in custody of the
law, conditioned upon awritten undertaking that the person will appear when required and do all
other things stipulated therein. See Pa.R.Crim.P. 103. The fundamental purpose of bail in a
6
criminal case is to secure the presence of the accused at trial. See Cornmontiuealth v. McDonald,
382 A.2d 124 (Pa. 1978). The Eighth Amendment to the United States Constitution states that
"Excessive bail shall not be required." The Eighth Amendment, fundamental to our system of
justice, has been found to apply to the states through the operation of the Fourteenth
Amendment. Schilb v. Kuebel, 404 U.S. 357 (1971).
In Pennsylvania, our state constitution guarantees the right to bail before trial and states
that all defendants "shall be bailable by sufficient surities ... unless no condition or combination
of conditions other than imprisonment will reasonable assure the safety of any person and the
community when the proof is evident or presumption great[.]" Pa. Const, Art. I., §14. The right
to release on bail before trial is conditioned upon the defendant's giving adequate assurance that
he will appear for trial. If the court reasonably concludes that adefendant may not appear for
trial, no matter how high the bail is set, the court may deny bail altogether. See Coninwnivealth v.
Sloan, 907 A.2d 460 (Pa. 2006).
Here, there are two distinct categories of release on bail at issue: Release On
Recognizance ("ROR") and Release on Monetary Condition. ROR is conditioned only upon the
defendant's written agreement to appear and to comply with the conditions of the bail bond.
Pa.R.Crim.P. 524(c)(1). Alternatively, arelease on monetary condition is arelease conditioned
upon the defendant's compliance with amonetary condition imposed pursuant to Rule 528. See
Pa.R.Crim.P. 524(c)(3). Rule 528 provides factors abail authority may consider to determine
whether it is necessary to impose amonetary condition of bail and permitting the bail authority
to require asum of money -- not to exceed ten percent —of the full amount of the monetary
condition. See Pa.R.Crim.P. 528. Although the initial bail authority determined monetary bail
was necessary under the constructs of Pa.R.Crim.P. 523, asubsequent judge of the Philadelphia
7
County Court of Common Pleas entered aDecember 6, 2012 order modifying Appellant's bail
from amonetary condition to ROR. Our Rules of Criminal Procedure are clear that bail
modification before verdict may only occur "upon motion of counsel for either party with notice
to opposing counsel and after ahearing" or at "trial or at apretrial hearing in open court on the
record when all parties are present." Pa.R.Crim.P. (c)(1-2).
Despite the mandates contained within the Rule 529(c), Appellant's bail was modified
without notice to opposing counsel and without ahearing; likewise, the bail modification order
was not entered in open court with all parties present. The Commonwealth asserts that it was the
standard practice of the President Judge in Philadelphia to issue orders for bail modification from
amonetary condition to ROR when, as here, the defendant is additionally detained on aparole
violation. See Coin. Letter Brief, 10/3/18, at 2-3. Such orders were entered in an effort to reduce
the population of the Philadelphia County prison system. See id.iii. Appellant was not afforded procedural due process
consistent with the protection of his Constitutional rights.
Appellant contends that it was through the court entering an order that scythed apath to
release on bail ROR that his constitutional right to freedom from bodily restraint. There can be
little doubt that within the present case, Appellant had aconsiderable liberty interest in having a
bail hearing with sufficient notice before acourt. This did not occur. The record observes only
that an order was entered by the President Judge that modified the bail. Despite the President
Judge's authority to adopt regulations to manage the court's business, such authority should not
extend to bail modifications without notice or ahearing. Indeed, the hallmarks of procedural due
process include adequate notice, the opportunity to be heard, and the chance to defend oneself
before afair and impartial tribunal. See Turner, 80 A.3d at 764. Not only was Appellant not
8
provided adequate notice, but was instead not provided any notice and had no opportunity to be
heard on the matter.
1. The PCRA court respectfully asks the Superior Court to
remand the case back to the lower court for an evidentiary hearing.
As reflected above, Criminal Rule of Procedure 529 states that abail before averdict has
been entered may only be modified after notice to opposing counsel and the opportunity to be
heard on the matter. Turning first the procedural due process inquiry, the PCRA court finds that
Appellant did have aliberty interest that has been interfered with by the Commonwealth. The
liberty interest at stake is the possibility that the bail modification prevented Appellant from
receiving the proper amount of credit for time served for the present case. Turning to the second
prong of the procedural due process inquiry, the procedures attendant to the bail modification
were not sufficient to protect Appellant's liberty interest. See Kentucky Dep't of Corr. v.
Thompson, 490 U.S. 454, 460 (1989).
Here, remand back to the PCRA court for an evidentiary hearing to determine any pre-
sentence confinement credit is the proper course. It is well understood that original jurisdiction
over aproceeding under the PCRA shall be in the court of common pleas. See 42 Pa.C.S.A. §
9545(a), The PCRA bestows original jurisdiction in which apetitioner suffered aviolation of the
Constitution of the Commonwealth or laws of the United States that so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could have taken place.
See 42 Pa.C.S.A. §9543(a)(2)(i). The PCRA court may hold ahearing when the petition for
post-conviction relief, or the Commonwealth's response, raises material issues of fact.
Pa.R.Crim.P. 908(a)(1). The disparity between the amount of credit each party asserts is due
presents agenuine issue of material fact; the Commonwealth states that only 633 days must be
awarded, while Appellant asserts he is due over 1,200 days.
9
B. The claim for ineffective assistance by trial counsel in
failing to file amotion to revoke bond is moot.
In his second claim for relief, Appellant contends that he received ineffective assistance
of trial counsel because counsel did not file or litigate amotion to revoke bond. However, given
the PCRA court's disposition of Appellant's due process claims, aremand on the basis of
ineffective of assistance of trial counsel is moot. The PCRA court agrees that remand is proper
so that it may hold an evidentiary hearing on the claims. The relief available to Appellant under
the ineffective assistance of counsel remains largely similar to the relief under the due process
claims.
II. The PCRA Court Properly Denied Relief because Appellant was
Tried before His Adjusted Run Date.
In his third claim, Appellant asserts the PCRA court erred in dismissing his petition for
relief on the basis that his right to effective assistance of counsel was violated in failing to
protect his right to aspeedy trial.
A. Rule 600 Generally
It is generally understood that Rule 600 "was designed to prevent unnecessary
prosecutorial delay in bringing adefendant to trial." Coininonlivalth v. Brock, 61 A.3d 1015,
1021 (Pa. 2013). Further, our Supreme Court has held that:
Rule 600 serves to protect adefendant's speedy trial rights, as well as society's
right to effective prosecution of criminal cases. To balance these rights, Rule
600(G) requires the court to consider whether the Commonwealth exercised due
diligence, and whether the circumstances occasioning the delay of trial were
beyond the Commonwealth's control. Further, the rule states, [i]f, at any time, it is
determined that the Commonwealth did not exercise due diligence, the court shall
dismiss the charges and discharge the defendant.
10
Commonwealth 1,,Selenski, 994 A.2d 1083, 1088 (Pa. 2010) (internal citations omitted) .4
In relevant part, Rule 600 requires that trial shall commence within 365 days from the
date on which the complaint is filed. See Pa.R.Crim.P. 600(a). This straightforward calculation is
known as the mechanical run date. See Commonwealth v. Ramos, 936 A.2d 1097, 1102 (Pa.
Super. 2007). However, those periods of delay caused by adefendant are excluded from the
computation of the length of time of any pretrial incarceration. Pa.R.Crim.P. 600(c). Following
these exclusions, if any, the court arrives at an adjusted run date by extending the mechanical run
date to account for these exclusions. See Ramos, supra, at 1102. Any other delay that occurs,
despite the Commonwealth's due diligence, is deemed excusable and results in further
adjustments to the effective run date. Pa.R.Crim.P. 600(8); see also Ramos, 936 A.2d at 1102(explaining that "excusable delay is alegal construct that takes into account delays which occur
as aresult of circumstances beyond the Commonwealth's control and despite its due diligence")
(internal citation and punctuation omitted). Further, to obtain relief pursuant to Rule 600, a
defendant must have avalid Rule 600 claim at the time he files his motion to dismiss the
charges. Commonwealth v. Hunt, 858 A.2d 1234, 1243 (Pa. Super. 2004) (en bane).
To establish that adelay is excusable, the Commonwealth must demonstrate that it
proceeded with due diligence by apreponderance of the evidence. Selenski, 994 A.2d at 1089.
Due diligence is "fact-specific, to be determined case-by-case; it does not require perfect
vigilance and punctilious care, but merely ashowing the Commonwealth has put forth a
reasonable effort." Id. Due diligence "includes, among other things, listing acase for trial prior
to the run date, preparedness for trial prior to the run date, and keeping adequate records to
AThe Pennsylvania Supreme Court adopted anew Rule 600, effective July 1, 2013. Here, the criminal complaint
was filed prior to the new rule; accordingly, the PCRA court applies the former version. See Commonwealth v.
Brock, 61 A.3d 1015, 1016 n.2 (Pa. 2013).
11
ensure compliance with Rule 600." Rainos, 936 A.2d at 1102. The Commonwealth "should be
held to the requirement that it exercise due diligence at all times during the pendency of acase."
Commonwealth v. Hawk, 597 A.2d 1141, 1145 (Pa. 1991). Thus, the Commonwealth must act
with due diligence "throughout the period," for each delay not caused by the defendant. See
Commonwealth v, Hill, 736 A.2d 578, 586 (Pa. 1999). This requires affirmative action by the
Commonwealth. See Hawk, 597 A.2d at 1145.
B. Appellant's trial was conducted before the adjusted run date.
In order to better illustrate the timeline of Appellant's case, the PCRA court produces the
table below. The information —where possible -- includes the scheduled court date, the next
scheduled court date after acontinuance request, the reason for the continuance, whether the
record notes awrit was prepared for the next scheduled court date and the number of days
between the scheduled court date and the next scheduled court date.
Dates Activity Days Delay Excludable or Excusable Adjusted Run Date
11/5/12 —12/6/12 Arrest; Bail changed to 31 NO 11/5/13
ROR on 12/6/12.
12/6/12 —1/9/13 Held for court on 34 NO 11/5/13
11/26/12; Information
filed 1/10/13
1/9/13 —1/23/13 Plea Status 14 Excludable 11/19/13
1/23/13 —11/8/13 Motion to Suppress filed; 289 Excludable 8/24/14
scheduled EPD.
11/8/13 —1/2/14 Continuance; Defense 55 Excludable 10/18/14
request to obtain medical
records.
1/2/14 — 1/6/14 Writ Not Honored 4 Excusable 10/22/15
1/6/14 —3/7/14 Continuance; Case 60 Excludable 12/21/14
reassigned to Judge
Nichols; Defense request
12
to obtain medical
records; EPD scheduled.
3/7/14 —5/2/14 Writ Not Honored 56 Excusable 2/15/15
5/2/14 —5/12/14 Continuance; Defense 10 Excludable 2/25/15
request.
5/12/14 —5/19/14 Continuance; Writ not 7 Excusable 3/4/14
honored.
5/19/14 —7/8/14 Continuance; Writ not 50 Excusable 4/23/15
honored.
7/8/14 —8119/14 Continuance; 42 Excusable 6/4/15
Commonwealth witness
unavailable due to officer
training.
8/19/14 — 10/20/14 Continuance; Writ not 62 Excusable 8/5/15
honored.
Continuance; 42 Excusable 9/16/15
10/20/14 — 12/1/14
Commonwealth witness
unavailable; Listed for
trial 5/26/15.
12/1/14 —5/26/15 EPD trial date set by 176 NO 9/16/15
prior judge on 12/1/14.
1/13/15 case transferred 6 Excusable 9/22/15
5/26/15 —6/1/15
to Judge Kennedy;
Continuance; Writ not
honored.
Set earliest possible date; 238 Excusable 5/17/16
6/1/15 —1/25/16
Commonwealth ready to
proceed.
Continuance; court had 1 Excusable 5/18/16
1/25/16 —1/26/16
another trial in progress.
Continuance; court had 3 Excusable 5/21/16
1/26/16 --1/29/16
another trial in progress.
13
1/29/16 —213/16 Continuance; Writ not 5 Excusable 5/25116
honored.
Because Appellant's trial commenced after the November 5, 2013, mechanical run date
under Rule 600, the PCRA court is required to perform adue diligence analysis as set forth in
Pa.R.Crim.P. 600(d). See Commonweallh v. Armstrong, 74 A.3d 228,236 (Pa. Super. 2013).
Consistent with the table reflected above, the PCRA court found only three periods of time that
were not either excludable or excusable. The first two periods —which collectively run from
November 5, 2012 through January 9, 2013 —are not excludable because these periods must be
considered as normal trial progression. See Commoniveallh v. Mills, 162 A.3d 323, 325 (Pa.
2017) (holding that period between the filing of acomplaint and astatus conference was not
excludable for Rule 600 purposes as the normal progression of acase). The 176-day period of
time from the hearing on Appellant's motion to suppress and the next hearing date —which ran
between December 1, 2014 and May 26, 2015 —was also found to not be excludable or
excusable under Rule 600. The PCRA court concluded that this period of time cannot be
excluded because it qualified as the normal progression of acase. See id. Accordingly, the PCRA
court calculated Appellant's adjusted run date as May 25, 2016. Appellant's trial occurred on
February 3, 2016; therefore, his trial began 112 days before the adjusted run date.
1. The PCRA Court Found the Time Between the Filing of the
Information and the Hearing on the Motion to Suppress as
Excludable.
The PCRA court turns first to Appellant's claim concerning the amount of time the
PCRA court found excludable or excusable under Rule 600. Consistent with Pennsylvania case
law, the suppression court specifically found such time as excluded. Time begins for the
purposes of Rule 600 when ajury is impaneled, or voir dire or any other substantial step has
begun —asuppression hearing is not such asubstantial step. See Commonwealth v. Gunter, 445
14
A.2d 831 (Pa. Super. 1982). In the present case, Appellant filed his motion to suppress on
January 10, 2013. The motion to suppress was not decided until December 1, 2014. Accordingly,
the 677 days between January 10, 2013 --- when Appellant filed his motion to suppress —and
December 1, 2014 —when his motion to suppress was decided —should be found excluded from
the computation because this delay is chargeable to the defense.
i. The Motion to Suppress did not Lead
Directly into the Guilt Determining Process.
In addressing whether the time between the filing of Appellant's motion to suppress and
the hearing should be found excludable, the PCRA court must whether: (1) the motion to
suppress lead directly to the guilt determining process; and (2) whether the court had expended a
substantial commitment of time and resources into the hearing. It has generally been held under
Rule 600 that trial is deemed to commence on the date the trial judge calls the case to trial or the
defendant offers aguilty plea or polo contendere. See Pa.R.Crim.P. 600(a)(1); former
Pa.R.Crim.P. 600(b). Under Rule 600, trial commences when the trial judge, after determining
the panties are present, directs them to proceed: (1) to voir dire; (2) to opening argument; (3) to
the hearing of any motions which have been reserved for the time of trial; (4) the taking of
testimony; or (5) to some other such first step in the trial. See Pa.R.Crim.P. 600, curt.; see also
Jones v. Commonwealth, 434 A.2d 1197 (Pa. 1981). Relevant here, trial has commenced when
the suppression motion is heard if the testimony from that hearing is incorporated into the trial.
See Commonwealth v. Byrd, 378 A.2d 921 (Pa. 1977); see also Commonwealth v. Fisher, 368
A.2d 762 (Pa. Super. 1976).
Generally, ahearing on apretrial motion will marls the commencement of trial under
Rule 600 only if the defendant is adequately warned that the hearing has been reserved for the
time of trial, and the hearing actually leads directly into the guilt determining process.
15
Commonwealth v. Machi, 439 A.2d 1230 (Pa. Super. 1982). The proper test for whether a
hearing on apretrial motion constitutes acommencement of trial for purposes of Rule 600 is
whether the commencement of the hearing on the motion constituted asubstantial commitment
of the court's time and resources which would lead directly to the determination of guilt or
innocence. See Jones, supra. Under this test, the Superior Court has held that trial did not
commence with the suppression motion when the suppression motion was heard months before
trial. See Commonwealth v. Williams, 378 AN 906 (Pa. Super. 1977).
The hearing for Appellant's motion to suppress cannot be found to have constituted a
substantial step. The suppression court did not reserve the hearing for the time of trial and it did
not lead directly into the guilt determining process. There having been agap of several months
between the suppression hearing and Appellant's trial further supports this conclusion. See
Williams, 378 A.2d at 906. Therefore, the time between when Appellant filed his motion to
suppress and the hearing on the motion on December 1, 2014 should be found excludable in total
because the time is attributable directly to Appellant.
2. Appellant was tried before the adjusted run date even
if the time before his motion to suppress was decided.
In the alternative the time between the filing of the information and the hearing on the
motion to suppress is not found completely excludable, all of the time within that range is
excludable or excusable such that Appellant's trial still occurred before the adjusted run date.
The PCRA court found the 42 days between July 8, 2014, and August 19, 2014, as also
excusable because the police officer was not available for the July 8, 2014 court date. See e.g.,
Common -
•t,ealth v. Wendel, 165 A.3d 952 (Pa. Super. 2017). Likewise, the PCRA court found the
additional 42 days between October 20, 2014, and December 1, 2014 as excludable because the
police officer was again not available for the hearing. Id. The Commonwealth acted with due
16
diligence in both situations because it had located the police officer witness, determined if the
officer could attend the hearing and made it known to opposing counsel and the trial court.
3. The Period of Delays Resulting from the Writs are not
Chargeable to the Commonwealth.
Appellant next contends that the Commonwealth failed to exercise due diligence in
securing his presence at trial through its management -- or mismanagement -- of writs and the
issuance of bringdown orders. In his petition for relief, Appellant cites the following dates as
causes for delay because, while writs were issued, Appellant was not brought to court: (1) March
7, 2014; (2) May 12, 2014; (3) May 19, 2014; (4) August 19, 2014; (5) December 1, 2014; (6)
May 26, 2015; and (7) January 29, 2016. See App. Pet., 4/16/18, at 16. Appellant hinges this
Rule 600 claim around the premise that the Commonwealth failed to proactively secure
Appellant's presence at hearings before the court. The Superior Court has held that Rule 600
applies the premise that:
so long as there has been no misconduct on the part of the Commonwealth in an
effort to evade the fundamental speedy trial rights of an accused, Rule 600 must
be construed in amanner consistent with society's right to punish and deter
crimes.
Commonwealth v. Holt, 175 A.3d 1014, 1019 (Pa. Super. 2017) (citing Commonvi,ealth v.
Selenski, 919 A.2d 229, 232 (Pa. Super. 2007)). Accordingly, the "Commonwealth's stewardship
therefore must be judged by what was done ... rather than by what was not done." Id (emphasis
added).
Our appellate courts have consistently held that delays resulting despite the issuance of a
bringdown and writ for adefendant's appearance are not chargeable to the Commonwealth. See
Commonwealth v. Mines, 797 A.2d 963, 965 (Pa. Super. 2002). In Mines, the Superior Court
held that the "period of delay was occasioned by the inability to bring [the defendant] to
17
Philadelphia from the state prison system. The prosecutor cannot be charged with responsibility
for the delay because the "system seems unable to find, transport, and house defendants" in their
custody. Id. Appellant's case parallels Mines because the Philadelphia District Attorney's Office
cannot be faulted for the inability of the system to "find, transport, and house" Appellant. See id.Here, Appellant correctly notes that the court had issued writs for transportation and
bringdown orders for Appellant to appear in court. This is afact reflected within the record. The
present case is distinguished from the defendant in Commonwealth v. Thompson, 136 A.3d 178
(Pa. Super. 2016), because the trial court in Thompson had not issued any writs to transport the
defendant, there was no evidence suggesting the district attorney's office had requested writs,
and the court sought to excuse the delay on the basis of the assistant district attorney's
representation that her typical practice was to request the writs for transportation. The
Commonwealth secured writs for Appellant's appearance at each court date. This is not simply a
case in which Appellant was held within the Philadelphia Prison System and the Commonwealth
had substantial control over Appellant's appearance. The often convoluted process to obtain the
presence of astate custody inmate requires cooperation from several agencies.
In his petition for relief, Appellant avers that the Office of the District Attorney "plays a
key role in the transportation of state and county prisoners to court for their court proceedings."
App. Pet., 4/24/19, at 3. Appellant further asserts that the District Attorney "is responsible for,
among other things, reviewing the ``Draft Bus List' composed of names of inmates who are to be
transported to court and ensuring that it is up to date and accurate." Id. Appellant's attempt to
shift complete responsibility upon the Philadelphia District Attorney's Office for the
transportation list mischaracterizes that office's responsibilities. The Transportation Procedure
for State Prisoners states that "Court Administration shall generate adraft Bus List ... for all
18
defendants in state custody who have ... trials or sentencings for aparticular week" in court. See
App. Pet., 4/24/19, Ex. P-19, at 1. The Transportation Procedure also directs that copies "of the
draft bus list and writ list shall be forwarded to the Director of the Criminal Justice Prison
Program Population Unit, the District Attorney and Defender Association for review." Id.Finally, the Transportation Procedure offers that signed transportation orders "shall be sent by
the Director of the Criminal Justice Prison Population Unit to the Department of Corrections[.]"
Id. at 2.
Appellant contends the Commonwealth should have proactively secured his appearances
at the dates listed within his petition for relief. The Commonwealth did so. The ultimate fault
rests with the Department of Corrections —not the Commonwealth —and its failure to honor the
trial court's transportation orders and does not represent an effort by the Commonwealth to
evade Appellant's speedy trial rights. See Holt, 175 A.3d at 1019. Consistent with the Holt
Court's directive, the PCRA court looked to the action that was taken by the Commonwealth and
not the actions the Commonwealth is alleged to have failed to take. See id.As reflected above, Appellant's case is distinguished from Mines because transportation
writs were issued for each court appearance and appear within the record. Unlike the situation in
Mines, the PCRA court did not have to rely upon the prosecutor's typical practice to secure writs
and had evidence in the record the writs were secured well beforehand. Therefore, because the
Commonwealth did not act with the intention to evade Appellant's fundamental right to aspeedy
trial after having secured transportation writs, the PCRA court found the time attributable to the
failure by agencies —other than the Philadelphia District Attorney's Office —to honor the writs
as excusable from the calculation of Appellant's adjusted run date.
4. The Period of Delays Resulting from Medical Records
are Chargeable to Appellant.
19
As reflected above, Appellant contends that delays resulting from trial counsel's failure
to earlier request Appellant's medical records impermissibly caused adelay of the proceedings in
violation of his right to aspeedy trial. This claim raises two distinct questions: (1) whether trial
counsel was ineffective for failing to earlier request Appellant's medical records; and (2)
whether the delay from requesting the medical records is attributable to Appellant in calculating
his adjusted run date. The PCRA court is constrained to find that Appellant has not demonstrated
trial counsel was ineffective in requesting his medical records and that the resulting delay is
excluded from calculating Appellant's adjusted run date.
i. Appellant's requests for continuances to
obtain medical records are excludable.
The PCRA court begins by noting the Rules of Criminal Procedure are explicitly clear
that "those periods of delay caused by adefendant are excluded from the computation of the
length of time of any pretrial incarceration." Pa.R.Crim.P. 600(c). The 55 days between
Appellant's November 23, 2013, and January 2, 2014, should be excluded from the computation
of time because Appellant had specifically requested the continuance in order to attain
Appellant's medical records for the motion to suppress. See Cofnmonn,eallh v. Aaron, 804 A.2d
39 (Pa. Super. 2002). The 60 days between the respective January 6, 2014, and March 7, 2014,
court dates are also excluded because the defense had requested the continuance —again —to
secure Appellant's medical records. Id. The PCRA court found the following ten-day period
between May 2, 2014 and May 12, 2014 also excludable from the computation because the
continuance was requested by Appellant. Consistent with Rule 600(c) and applicable case law,
the periods of delay attributable to Appellant in requesting continuances to obtain medical
records are flatly excluded from the computation of the adjusted run date.
20
ii. Appellant has failed to demonstrate that trial
counsel was ineffective by not earlier requesting his
medical records.
Appellant contends that his trial counsel was ineffective for failing to earlier request his
medical records in preparation for the motion to suppress evidence. Specifically, Appellant
asserts that his trial counsel was ineffective and did not protect his constitutional right to a
speedy trial by "failing to obtain [Appellant's] medical records in atimely fashion[.]" App. Pet.,
4/24/19, at 2. In his Amended Petition for Relief, Appellant acknowledges that his trial counsel
"obtained [Appellant's] medical records on or about March 11, 2014, [while] the motion to
suppress hearing was not held until December 1, 2014, adelay of 264 days." Id.It has long been held that to obtain relief, apetitioner must show: (1) the underlying
claim is of arguable merit; (2) no reasonable basis existed for counsel's action or inaction; and
(3) counsel's error caused prejudice such that there is areasonable probability that the result of
the proceeding would have been different absent such error. Commoni4)ealth v. Pierce, 527 A.2d
973, 975 (1987). Within the PCRA, it is the Appellant, as petitioner, that bore the burden to
plead and prove his claims. See 42 Pa.C.S.A. §§ 9543(a), 9545(b); see also Commonivealth v.
Bardo, 105 A.3d 678 (Pa. 2014) (noting that counsel is presumed effective and petitioner bears
burden to prove ineffective assistance of counsel). Given these constructs, Appellant has not met
this required burden to prove ineffective assistance of counsel regarding the nexus between his
medical records and any alleged Rule 600 violation.
Simply stated, Appellant has not provided any evidence that an earlier request for his
medical records would have resulted in adifferent outcome —namely an earlier trial date. The
PCRA court has not been provided any date of when trial counsel actually filed arequest for
Appellant's medical records that would provide context of how an "earlier" request for such
21
records would have lead to an earlier to trial date. Although not an issue in the present appeal,
Appellant wished to establish through his medical records that the statement he provided to
Philadelphia Police was coerced and not given voluntarily as he was allegedly under the
influence of pain medication at the time of his police interview. See N.T. Suppression Hearing,
12/1/14, at 39 (asking how detective "came to the conclusion that the [Appellant] is of clear
mind"). The statement Appellant provided to authorities was later used at trial and trial counsel
had adefinitive interest in precluding the statement's admission at trial through any reasonable
means, including atheory of coercion due to Appellant's potential intoxication from pain
medication. Given that his motion to suppress both the physical evidence and his statement to
police, the medical records represented acritical evidentiary issue that required Appellant's
medical records. Therefore, Appellant's trial counsel cannot be found to have rendered
ineffective assistance of counsel when Appellant has not offered acompelling argument to plead
and prove each prong of the Strickland test necessary for relief.
5. The Periods Resulting from Judicial Delay are Excusable
from the Adjusted Run Date.
Judicial delay can support the "grant of an extension of the Rule 600 run date." See
Commonivealth v. Williams, 726 A.2d 389, 392 (Pa. Super. 1999), appeal denied, 747 A.2d 368(Pa. 1999). Where the delay is due to congested court dockets, the trial court is to establish "that
it has devoted areasonable amount of time of its resources to the criminal docket and that it
scheduled the criminal trial at the earliest possible date consistent with the court's business." Id.In the context of Rule 600, the distinction between "excludable time" and excusable delay" is as
follows:
"Excludable time" is defined in Rule 600(C) as the period of time between the
filing of the written complaint and the defendant's arrest,—any period of time for
which the defendant expressly waives Rule 600; and/or such period of delay at
22
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. "Excusable delay" is not expressly
defined in Rule 600, but the legal construct takes into account delays which occur
as aresult of circumstances beyond the Commonwealth's control and despite its
due diligence.
Hunt, supra, at 1241 (internal citations omitted).
With the exception of two dates prior to the disposition of Appellant's motion to
suppress, from the record it appears the Commonwealth was prepared to proceed at each listing.
The events that delayed Appellant's trial were due to excludable or excusable time, including the
failure of agencies to honor writs, defense requests for continuances, transfers of the case to a
different trial judge ordered by court administration, and the crowded criminal docket in
Philadelphia County, The PCRA court concluded that the Commonwealth's trial readiness,
preparation of writs for each listing constituted due diligence.
As the discussion above reflects, due diligence is afact-specific concept that "must be
determined on acase-by-case basis. Due diligence does not require perfect vigilance and
punctilious care, but rather ashowing by the Commonwealth that areasonable effort" has been
put forth. Hunt, 858 AN at 1241-42 (emphasis in original). As the Ramos Court noted,
reasonable effort can include the Commonwealth listing the case for trial prior to the run date to
ensure that adefendant is brought to trial within the tirne prescribed by Rule 600. See Ramos,
936 AN at 1102. Additionally, the Superior Court has found the Commonwealth to have
exercised due diligence when it initially scheduled trial well within the time requirements of
Rule 600, but trial was delayed by actions of adefendant beyond the Commonwealth's control.
See Commomi)ealth v. Hill, 736 A.2d 578, 592 (Pa. 1999). Further, the Superior Court has held
the Commonwealth exercises reasonable effort:
23
when within the run date the Commonwealth was ready to commence trial and
was prevented from doing so by an administrative error which resulted in atrial
date three days beyond the run date. Wroten, supra at 680-81 (holding inadvertent
administrative error is not enough to defeat due diligence). See also
Coinmonivealth v. Corbin, 568 A.2d 635 (Pa.Super. 1990) (holding inadvertent
listing beyond run date due to overburdened docket, meager staff, and
administrative breakdown at detention center, excused Commonwealth with
respect to unavailability of its witness).
Hunt, 858 A.2d at 1241-42.
The PCRA court found that Appellant has not presented any sufficient evidence to
demonstrate the Commonwealth failed to act with due diligence. For instance, the trial court was
required to continue Appellant's case for a238-day period between June 1, 2015 and January 25,
2016. The record demonstrates that the Commonwealth did not request acontinuance and was
ready to proceed to trial, but the court's crowded docket prevented an earlier trial date. See
Commonwealth v. Preston, 904 A.2d 1, 14 (Pa. Super. 2006) (stating that judicial delay may
justify postponing trial beyond the adjusted run date if the Commonwealth was prepared to
commence trial prior to expiration of the mandatory period but the court was unavailable because
of "scheduling conflicts and the like"). Given the pre-trial disposition of Appellant's motion to
suppress, the Commonwealth did not require —or request —significant time for preparation. The
Commonwealth appeared ready to proceed at each listing. Indeed, the two trial listings
immediately prior to Appellant's trial were continued because the trial court was presiding over
trial in aseparate case. The PCRA court found the Commonwealth acted with due diligence by
trying Appellant within his adjusted run date, securing transportation writs for each listing and
being ready to proceed at each hearing. Therefore, Appellant is not entitled to relief on this basis.
See Commonnealth v. Hill, 736 A.2d 578, 591 (Pa. 1999) (holding that even where aRule 600
violation has occurred, amotion to dismiss the charges should be denied if the Commonwealth
24
exercised due diligence and the circumstances occasioning the postponement were beyond the
control of the Commonwealth).
C. Appellant's claim for violation of his constitutional right to a
speedy trial fails.
Apart from the rule-based right to aspeedy trial under the Rules of Criminal Procedure,
the constitutional guarantees to aspeedy trial continue to provide aseparate basis for asserting a
claim of undue delay in appropriate cases. See Commonwealth v. Preston, 904 A.2d 1, 10 (Pa.
Super. 2006) (holding that while Rule 600 was designed to implement the speedy trial rights
provided by the federal and state constitutions, the constitutional provisions themselves provide a
separate and broader basis for asserting aclaim of undue delay). In Barker v. Wingo, 407 U.S.
514 (1972), the United States Supreme Court laid out four factors to be considered in
determining whether an unconstitutional speedy trial violation has occurred: (1) the length of the
delay; (2) the reason for the delay; (3) the defendant's assertion of his rights; and (4) the
prejudice to the defendant. Commonri,ealth v. Terfinko, 474 A.2d 275 (Pa. 1984).
1. The delay triggers further inquiry under Barker, but the
Commonwealth did not deliberately or negligently attempt
to delay Appellant's case.
In the first step of the analysis under Barker, the PCRA court examines whether the delay
itself is sufficient to trigger further inquiry; if it does, the reason for the delay is examined, the
defendant's assertion of his rights is examined, and, finally any resulting prejudice to the
defendant is considered. See Commonwealth v. Jones, 299 A.2d 288 (Pa. 1973) (adopting Barker
within the courts of the Commonwealth). The delay in the present case must trigger further
inquiry. Here, there was more than a38-month delay between Appellant's arrest and his trial
date on February 2, 2016. Turning next to the second factor, it has been stated that adeliberate
attempt to delay should be weighed heavily against the government, while a"more neutral
25
reason such as negligence ... should be weighted less heavily but nevertheless should be
considered since the ultimate responsibility for such circumstances must rest with the
government rather than with the defendant." Commonwealth v. Glover, 458 AN 935, 938-39
(Pa. 1983).
The delay in the instant case was not deliberate. Further, it cannot be said that the delays
are based upon the Commonwealth's negligence. The Commonwealth acted with due diligence
in securing writs for Appellant's appearance at hearing dates. Since Appellant was held in state
custody, attributing fault to the Commonwealth for delays caused by astate agency over which
the Commonwealth exercised no control or authority does not sound in negligence. Our Supreme
Court has held that a"more neutral reason such as negligence ... should be weighed less
heavily," than adeliberate attempt by the government to delay adefendant's case.
Commonwealth v. Glover, 458 A.2d 935, 938-39 (Pa. 1983). The PCRA court in weighing the
reason behind the delay found no intentional delay or negligence by the Commonwealth and —in
considering the reason for the delay -- gave it less weight than other factors. For instance, the
Superior Court has held that society has an interest in knowing that its criminals are serving the
punishment to which they have been sentenced, regardless of unintended delay or negligent error
attributable to the government." Commonwealth v. Blair, 699 A.2d 738, 743 (Pa. Super. 1997).
Appellant's speedy trial claim is not one with conduct "so affirmatively improper or grossly
negligent" by the Commonwealth that due process was violated. Id. at 745. Despite the
significant temporal history of the present case, Appellant is not entitled to relief because the
Commonwealth acted within existing permissible constitutional mandates.
2. Under the third prong of Barker, Appellant's initial
assertion of his right to aspeedy trial was alegal nullity.
26
The PCRA court next addresses the third factor under Barker: the defendant's assertion
of his rights, Appellant states that the Commonwealth violated his constitutional right to a
speedy trial pursuant. to Pennsylvania Rule of Criminal Procedure 600. In support of this claim,
Appellant relies upon his pro se motion to dismiss pursuant to Rule 600 filed on August 17,
2015. Within his petition for post-conviction relief, Appellant observes that no action was taken
on the motion by the trial court. The trial court did not act upon Appellant's pro se motion to
dismiss because it was from precluded from doing so. At the time he filed his pro se motion, he
was represented by the Defender Association of Philadelphia, who previously entered an
appearance on Appellant's behalf.
Appellant did not have the right to file his pro se motion because he was represented by
counsel. See Commoni4 ,ealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007), appeal denied,
936 A.2d 40 (Pa. 2007) (citing Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993)) .This
means "that his pro se [] motion was alegal nullity, having no legal effect." Nischan, 928 A.2d
355. As our Supreme Court noted in Ellis:
A defendant has the constitutional right to proceed without counsel if the decision
to do so is knowing and voluntary. In Commonwealth v. Williams, the court held
that the same constitutional right [to represent] oneself does not apply to a
defendant represented by an attorney who wishes to act as co-counsel and that the
decision as to whether that is to be allowed is in the sound discretion of the trial
court.
Ellis, 626 A.2d at 1139 (internal citations omitted). In order for adefendant to act as his own
counsel, he or she is required to terminate the representation of counsel and then proceed on his
or her own behalf pursuant to the rules of criminal procedure. Commonwealth v. Grazier, 713
A.2d 81, 82 (Pa. 1998). There is nothing within the record to suggest Appellant requested a
Grazier hearing or that he had knowingly and voluntarily waived his right to proceed without
counsel.
27
As Appellant's pro se Rule 600 motion was alegal nullity, the trial court was precluded
from ruling on the motion. Pennsylvania does not accept hybrid representation, Ellis, 626 A.2d at
1139. The language contained within the Rules of Criminal Procedure only support this
conclusion. For instance, Rule 576 states that in "any case in which adefendant is represented by
an attorney, if the defendant submits for filing awritten motion ... that has not been signed by
the defendant's attorney" then the clerk of courts shall accept it for filing, time stamp it and
create adocket entry reflecting the date it was received. Pa.R.Crim.P. 575(a)(4). The filing of a.
pro se motion by arepresented defendant does not "trigger any deadline nor require any
response," as its main purpose is to merely provide arecord of the filing. Pa.R.Crim.P. 576, cmt.
It is fundamental that any pro se filings that require merits review, including motions, are legal
nullities when they are filed by adefendant who is represented by counsel. See Commonwealth v.
Ali, 10 A.3d 282, 293 (Pa. 2010); Canmonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super.
2007), appeal denied, 936 A.3d 40 (Pa. 2007).
Within the context of his case, Appellant did not assert his right to aspeedy trial until his
PCRA petition for relief. Although he filed the pro se motion for dismissal, the trial court was
precluded from its consideration. Appellant impermissibly asks the PCRA court to find that
"defense counsel's failure to endorse and litigate his [pro se] speedy trial/Rule 600 motion
excuses" his improperly asserted speedy trial inotion. App. Pet., 4/16/18, at 18. However, as
addressed within this opinion, the failure by defense counsel to file or litigate amotion to dismiss
pursuant to Rule 600 would have likely been unsuccessfiil because Appellant was tried within
the adjusted run date. That defense counsel reasonably opted to forego litigating amotion to
dismiss pursuant to Rule 600 does not overcome the recognition Appellant's pro se motion to
dismiss is alegal nullity and cannot excuse the presumption Appellant failed to properly assert
28
his speedy trial rights. Accordingly, it cannot be found Appellant promptly asserted his right to a
speedy trial.
3. Appellant has not demonstrated prejudice under Barker.
Finally, under the fourth prong laid out in Barker, Appellant has not demonstrated
prejudice. The traditional reasons for finding prejudice in the context of aspeedy trial claim
include: (1) preventing oppressive pre-trial incarceration; (2) minimizing the anxiety of the
accused; and (3) limiting the possibility that the defense will be prejudiced by lost or missing
witnesses. See Commonwealth v. Blair, 699 A.2d 738, 746 (Pa. Super. 1997).
The PCRA court found little weight under the first prejudice factor of preventing
"oppressive pre-trial incarceration" as applied to Appellant's case. In his petition for relief,
Appellant asserts that "the change of bail type to ``ROR,' as discussed in Claim 1, severely
prejudiced [Appellant] as he was deprived of eight months of sentence credit. In essence, the
delay in this case resulted in [Petitioner] being held in custody without legal justification for
eight months." App. Pet., 4/16/18, at 19. This alleged claim for prejudice sounds strictly in the
award of time-seined credit and not Appellant's pre-trial incarceration. As recognized in the
discussion above, asignificant portion of the delay was caused by the pendency Appellant's pre-
trial motion to suppress physical evidence. Our Supreme Court has held that "a reasonable
amount of time consumed by the disposition of motions ... not made for purposes of delay,
regardless of who is the moving party, is justifiable delay." Commonwealth v. McCord, 644 A.2d
1206, 1211 (Pa. Super. 1994) (quoting Commonwealth v, Ware, 329 A.2d 258, 264-65 (Pa.
1974)). Likewise, several of the instances contributing to adelay in Appellant's case resulted
from the failure by state agencies to comply with the trial court's transportation orders.
29
Under the second factor in analyzing prejudice under Barker, the PCRA court next
addresses the need to minimize the anxiety of the accused. The record does not demonstrate what
level of anxiety —if any -- Appellant suffered as aresult of the delay. The Superior Court has
stated that the courts "recognize the obvious difficulties one faces when charged with acrime
and imprisoned, but [the courts] are not constrained to speculate as to whether the anxiety level
was sufficiently high to require" the dismissal of charges. Cornrnonwealth v. Hicks, 332 A.2d
452, 455 (Pa. Super. 1974). Appellant has failed to produce any compelling evidence to
demonstrate that he suffered anxiety as aresult of the delay. The generalized anxiety of which
Appellant complains is common to all persons suffering imprisonment and it is not the PCRA
court's province to speculate about his complaint without more. See id.Finally, under the third Barker factor to determine prejudice, Appellant has not
demonstrated that the delay caused the loss of witnesses or impaired his ability to prepare a
defense. Appellant has not proffered the name of any witness that could have been called at trial
that was subsequently lost due to the delay. Appellant does not allege the impairment of witness'
memories, loss of evidence, loss of witnesses or other facts that represented substantial
interference with his ability to conduct adefense. To the extent that Appellant claims his state
custody interfered with his ability to conduct adefense, the PCRA court found this claim
specious —at best —given that Appellant was held at astate correctional facility located within
thirty miles of Philadelphia County. Appellant was not shuffled between institutions or
transferred to astate correctional facility hundreds of miles from Philadelphia.
In Con?n?omi,ealth v. Dallenbach, 729 A.2d 1218, 1226 (Pa. Super. 1999), the Superior
Court remanded the case in which an alleged defense witness was no longer available to testify
and, while it might be sufficient to demonstrate actual prejudice, the Dallenbach Court remanded
30
because the trial court did not make aspecific finding of fact regarding the witness's
unavailability and required additional fact-finding. See Dallenbach, 729 A.2d at 1226. There
exist no such ambiguities here. Appellant has offered only ageneralized claim that the delay
interfered with his ability to assist in his defense or that potential witnesses may have been lost.
Such bald assertions are merely speculation and not the type of actual prejudice the law requires.
See Commonivealth v. DeBlase, 665 AN 427, 438 (Pa. 1995). Therefore, because Appellant has
not shown that he was prejudiced by the delay, the PCRA court did not err in denying his
petition for relief on the basis of aclaimed speedy trial violation.
D. Appellant's Clain for Ineffective Assistance of Counsel for Alleged
Rule 600 Violations Must Fail.
Appellant asserts that relief is due because his trial counsel —through afailure to litigate a
motion to dismiss under Rule 600 —provided ineffective assistance and did not adequately
protect both his rule-based right to aspeedy trial under Pa.R.Crim.P. 600 and his broader
constitutional right to aspeedy trial. However, this claim is without merit. To prove counsel was
ineffective, apetitioner must show that: (1) his underlying claim is of arguable merit; (2) counsel
had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice
as aresult. See Commonwealth v. Sar•vey, 199 A.3d 436, 452 (Pa. Super. 2018). Counsel is
presumed to have been effective, and the petitioner bears the burden of proving counsel's alleged
ineffectiveness. See Conmmonwealth v. Wholaver•, 177 A.3d 136 (Pa. 2018). If the petitioner
alleging ineffective assistance of counsel fails to prove any of the prongs required to prove
ineffective assistance, then his claim must fail. Sar°vey, 199 A.3d at 452. Additionally, counsel
will never be held ineffective for failing to pursue ameritless claim or afrivolous course of
action. See Coninionu,ealth v. Parker, 469 A.2d 582 (Pa. 1983).
31
Here, Appellant's claim that trial counsel was ineffective for failing to litigate amotion to
dismiss pursuant to Rule 600 must fail because it is not of arguable merit and Appellant cannot
demonstrate prejudice. Specifically, it is the PCRA court's opinion that because Appellant was
tried before his adjusted run date, any motion to dismiss pursuant to Rule 600 would have been
denied. Under the Rule 600, it is expressly clear that "to obtain relief, adefendant must have a
valid Rule 600 claim at the time he files his motion to dismiss the charges." CommonN,ealth v.
Broivn, 875 A.2d 1128, 1134 (Pa. Super. 2005). Given the PCRA court's finding that Appellant
was tried within the adjusted run date, his trial counsel cannot be ineffective for failing to file a
motion to dismiss under Rule 600 when Appellant did not have avalid Rule 600 claim. See
Parker, 462 A.2d at 582 (stating counsel will not be found ineffective for failing to pursue a
frivolous course of action). Looking to the first prong of the test for ineffective assistance of
counsel, Appellant's claim cannot be said to have arguable merit since he did not have avalid
Rule 600 claim.
Further, Appellant cannot be said to have suffered actual prejudice udder the third prong
of the test for ineffective assistance of counsel. Prejudice, under Strickland, requires ashowing
that counsel's error "caused prejudice such that there is areasonable probability that the result of
the proceeding would have been different absent such error." Convnonu,ealth v. Dennis, 17 A.3d
297, 301 (Pa. 2011) (citing Commonis,ealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)). $ Given that
the PCRA court has found that Appellant was tried within his adjusted run date, even had trial
counsel filed and litigated amotion to dismiss pursuant to Rule 600, Appellant has not proven
that the result of the proceeding would have been different. Thus, the PCRA court found that
5 Strickland v. Washington, 466 U.S. 668 (1984).
32
Appellant is not entitled to relief on the basis that defense counsel provided ineffective assistance
on his Rule 600 claim.
III. The PCRA Court Properly Found Appellant Received Effective
Assistance of Counsel at his Suppression Hearing.
In his next claim on appeal, Appellant avers that the PCRA court erred in dismissing his
petition on the basis of ineffective assistance of counsel during the hearing conducted pursuant to
his motion to suppress evidence. It is not the province of the PCRA court to reweigh the
decisions of the suppression court or consider whether probable cause existed to justify the
officer's stop of Appellant. Indeed, this issue has been distinctly litigated and found meritless
during Appellant's direct review. See Commomvealth v. Blenman, 1430 EDA 2016 (Pa. Super.
filed September 5, 2017) (unpublished memorandum). Instead, the PCRA court was tasked with
deciding whether the performance of Appellant's counsel at the suppression hearing itself fell
within the range of permissible constitutional standards. The PCRA court finds that it did.
With respect to claims of ineffective assistance of counsel, the courts begin with the
presumption that counsel is effective. To prevail on an ineffectiveness claim, apetitioner must
satisfy, by apreponderance of the evidence, the Sixth Amendment performance and prejudice
standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). This Court has divided the performance component of Strickland into two subparts
dealing with arguable merit and reasonable strategy. Commonwealth v. Bawnhammers, 92 A.3d
708, 71.9 (2014). Thus, to prevail on an ineffectiveness claim, Appellant must show that: the
underlying legal claim has arguable merit; counsel had no reasonable basis for his or her action
or omission; and Appellant suffered prejudice as aresult. Id. (citing Commonwealth v. Pierce,
515 Pa. 153, 527 A.2d 973, 975-76 (1987)). With regard to "reasonable basis," we will conclude
that counsel's chosen strategy lacked areasonable basis only if Appellant proves that "an
33
alternative not chosen offered apotential for success substantially greater than the course
actually pursued." SBotz, 47 A.3d at 76 (quoting Commonwealth v. Williams, 587 Pa. 304, 899
A.2d 1060, 1064 (2006)). To establish Strickland prejudice, Appellant must show that there is a
reasonable probability that the outcome of the proceedings would have been different but for
counsel's action or inaction. Id.A. Constitutional Standards Supporting an Investigatory Stop.
The PCRA court turns first to the constitutional implications raised by Appellant's
claims. To begin, our appellate courts have long recognized that:
[i]t is within the suppression court's sole province as factfinder to pass on the
credibility of witnesses and the weight to be given their testimony. The
suppression court is also entitled to believe all, part or none of the evidence
presented. Finally, at asuppression hearing, the Commonwealth has the burden of
establishing by apreponderance of the evidence that the evidence was properly
obtained.
Commonwealth v. Galendez, 27 A.3d 1042, 1046 (Pa. Super. 2011) (en Banc).
Article I, §8of the Pennsylvania Constitution and the Fourth Amendment of the
United States Constitution afford protections against unreasonable searches and
seizures. Among the protections is the requirement that an officer have reasonable
suspicion before an investigatory stop.
In re M.D., 781 A.2d 192, 196 (Pa. Super. 2011). Although not every interaction between a
citizen and alaw enforcement officer implicates the Fourth Amendment, "[t]he Fourth
Amendment, of course, applies to all seizures of the person, including seizures that involve only
abrief detention short of atraditional arrest." Broivn v. Texas, 443 U.S. 47, 50 (1979) (internal
quotation mark omitted). For purposes of the Fourth Amendment, aperson is "seized" when, "in
view of all the circumstances surrounding the incident, areasonable person would have believed
that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554 (1980). When a
police officer "accosts an individual and restrains his freedom to walk away, he has ``seized' that
34
person." Brown, 443 U.S. at 50 (quoting Terry, 392 U.S. at 16). In assessing the impression that
would be given to areasonable person, acourt must determine "whether, taking into account all
of the circumstances surrounding the encounter, the police conduct would ``have communicated
to areasonable person that he was not at liberty to ignore the police presence and go about his
business."' Florida v. Bostick, 501 U.S. 429, 437 (1991). Further, our Supreme Court has
interpreted:
Article 1, §8protection more broadly than the Fourth Amendment and has found
that aseizure occurs when an officer gives chase. Under Pennsylvania law, any
items abandoned by an individual under pursuit are considered fruits of aseizure.
Those items may only be received in evidence when an officer, before giving
chase, has at least the reasonable suspicion necessary for an investigatory stop.
Stated another way, when one is unconstitutionally seized by the police, i.e.
without reasonable suspicion or probable cause, any subsequent flight with the
police in pursuit continues the seizure and any contraband discarded during the
pursuit is considered aproduct of coercion and is not admissible against the
individual.
In deciding whether reasonable suspicion exists for an investigatory stop, our
analysis is the same under both Article 1, §8and the Fourth Amendment.
The fundamental inquiry is an objective one, namely, whether the facts available
to the officer at the moment of the intrusion warrant aman of reasonable caution
in the belief that the action taken was appropriate. This assessment, like that
applicable to the determination of probable cause, requires an evaluation of the
totality of the circumstances, with alesser showing needed to demonstrate
reasonable suspicion in terms of both quantity or content and reliability.
Among the factors to be considered in forming abasis for reasonable suspicion
are tips, the reliability of the informants, time, location, and suspicious activity,
including flight.
While atip can be afactor, an anonymous tip alone is insufficient as abasis for
reasonable suspicion. Likewise, presence in ahigh crime area alone or flight alone
does not form the basis for reasonable suspicion. However, acombination of these
factors may be sufficient.
35
Case law has established that certain facts, taken alone, do not establish
reasonable suspicion. However, acombination of these facts may establish
reasonable suspicion.
In re M.D., 781 A.2d at 196-197; see also Blenrnan, supra, at 5-6.
B. Philadelphia Police had the requisite reasonable suspicion to
stop Appellant based upon the totality of the circumstances.
In assessing whether Appellant's asserted ineffective assistance of counsel claims would
have resulted in adifferent outcome, the PCRA court turns to the facts relied upon by the
suppression court to determine whether reasonable suspicion existed for Appellant's stop.
At the hearing on Appellant's motion to suppress physical evidence, the suppression
court offered the following findings of fact:
[S]tarting with Officer Jeffrey Opalski, who is aNineteenth District police officer.
He's been apolice officer for about two-and-a-half years. He served at [the]
Twenty-Fourth and the Nineteenth [Police Districts]. He's had training.
Obviously, he's apolice officer, as well as improvised and concealed weapons
training.
Officer Opalski, who is the driver and Officer Mundrick on 11 /5/12 about 1a.m.
The officer says he first sees [Appellant] in the 5100 block of Viola Street in front
of an abandoned property which evidently has been the source of the
neighborhood, of various things and it's about ablock away from Aberdeen
Avenue where there has been drama and homicide, different things going on.
5100 Viola was identified as ahigh narcotics area. There had been shootings
linked to drug sales in that area.
Officer Opalski said he did about ten gun arrests at the time of the incident and
he's done fifty today, but at the time of the incident he ha[d] only done about ten
arrests. The officer said he saw the defendant in front of this abandoned property.
It's uncontested there was no illegal activity going on. There was no hand-to-hand
... The officer perceived that [Appellant] looked at him and [walked] into a
breezeway and that's the end of the encounter. He wasn't stopped. The officers
did not get out of the car.
Police Officer Mundrick and Opalski went on with their evening. They went on
around this area of 52nd and Lancaster. Iguess it's some kind of caddy corner
street Bibleway Street ... There is achurch and avacant lot, so the officer[s] are
driving around and they went on to see [Appellant] again and at this time -- now
52nd and Lancaster the officer said is ahigh robbery area, high gun crime area
36
and he sees [Appellant] again and they notice that he has some kind of labored
walk and they notice some kind of bulge or some kind of heavy object and the
way [Appellant] is walking with this object. It's heavy and it's causing him to
walk acertain way.
[Officer Opalski] talked about concealed weapons in the waistband and gun
arrests he's done. The gun was in the front waistband, so he starts to worry and
started to think there may be agun, so, yes, he pulls over and Police Officer
Mundrick Ibelieve is the one that gets out and says stop ... [Appellant then] goes
into aheadlong flight which is unprovoked flight.
[Appellant] goes into aheadlong run and is stopped in the parking lot [of aclub]
and while Mundrick is chasing [Appellant] in this parking lot of this club, there is
achained fence which is about ablock away from the 5100 block of Lancaster
Avenue. Officer Opalski is adriving [an unmarked police] car, the lights and
sirens are activated, so it's clearly the police. [Appellant] is still running. The
officer testified that he saw [Appellant] throw aDirty Harry gun which has been
identified on the property receipt as a.357 Magnum, which is abig silver gun, so
it's abig bulge in there and [Appellant] throws the gun in the trash .. .
[Appellant] throws that gun down. Police Officer Mundrick retrieves this gun,
[Appellant] is then seized and arrested in the parking lot[.]
N.T. Suppression Hearing, 12/1/14, at 81-87.
In his petition for relief, Appellant highlights two inconsistencies within Officer
Opalski's testimony in arguing that further cross-examination about these two factors would
have resulted in adifferent outcome at the suppression hearing. Appellant's claim is unavailing
because evaluations for whether reasonable suspicion existed for apolice stop are made under
the totality of the circumstances. Commomvealth v. Hicks, 208 A.3d 916, 927 (Pa. 2019). Even
held in isolation, the amount of time Officer Opalski believes to have elapsed between his first
and second sightings of Appellant would not have resulted in adifferent outcome. Likewise, the
actual barrel length of the recovered firearm and the description would not have produced a
different result.
37
C. The PCRA court's findings about alleged ineffective assistance
of counsel are supported by the record.
Appellant has failed to prove beyond apreponderance of the evidence that he received
ineffective assistance of counsel at his suppression hearing. While Appellant pleads the required
elements within his petition for relief, such claims are simply not supported by the record.
Appellant, in both issues pertaining the suppression hearing, has failed to demonstrate prejudice
and that —but for the inaction of his trial counsel -- the outcome of the suppression hearing would
have been different. To the contrary, the record provides ample support for the decisions made
by trial counsel and had areasonable basis for such strategies. Accordingly, Appellant's claim
for ineffective assistance of counsel pertaining to his motion to suppress hearing must fail. See
Con7monivealth v. Fears, 86 A.3d 795, 804 (Pa. 2014) (holding the failure to prove any prong of
the test will defeat an ineffectiveness claim).
1. Appellant's claims related to the failure by counsel to
cross-examine the officer about the location and timing.
In his first issue concerning his representation during the motion to suppress, Appellant
asserts that trial counsel was ineffective in failing to cross-examine the testifying police officer
about the location and timing of the two times Appellant was observed the night of his arrest. See
App. Pet., 4124/19, at 4-5. Appellant contends that Officer Opalski testified that he first observed
Appellant on the 5100 block of Viola Street and, after cutting through an alleyway, observed
Appellant walking near the 5200 block of Lancaster Avenue approximately two minutes later.
See id. Appellant states that the suppression court relied upon Officer Opalski's testimony about
observing Appellant in front of an abandoned house on Viola Street as an "articulable fact" that
supported reasonable suspicion for astop. Appellant then states that because where police
encountered Appellant asecond time was not within "a hundred yards" of Viola Street, that the
38
encounter could not have been within "one or two minutes." In assessing Appellant's claim for
ineffective assistance of counsel, the PCRA court's opinion that if further cross-examination
occurred that it would not have changed the hearing's outcome.
It appears evident from the record that the suppression court gave minimal weight in the
amount of time and locations between when Officer Opalski observed Appellant. At the hearing
on Appellant's motion, the suppression court stated —after seeing Appellant on Viola Street —
Officer Opalski "went on with [his] evening." N.T. Suppression Hearing, 12/1/14, at 83. The
suppression court noted that the 5100 block of Viola Street was "identified as ahigh narcotics
area" and the area of 52nd Street and Lancaster is a"high robbery area, [a] high gun area and
[the officer] sees [Appellant] again and they notice he has some kind of labored walk and they
notice some kind of large bulge or heavy object" that appears to cause Appellant to walk in the
strained manner. See id. at 82, 84. Indeed, in its 1925(a) Opinion, the suppression court
emphasized that after first encountering Appellant on Viola Street, the officers "circled the block
afew times, and again spotted [Appellant] on anearby block. At this time, he was walking with
anoticeable limp and had alarge bulge area in the front of his waistband." Trial Court Opinion,
11/14/16, at 2. Thus, it was not necessarily the amount of time between the encounters, but
instead the specific areas —and his labored walking and the large bulge —in which the officers
encountered Appellant that the suppression court afforded greater weight.
In his petition for relief, Appellant contends that his trial counsel was ineffective for
failing to cross-examine Officer Opalski at greater length about the timing and distance between
the two encounters. To succeed on aclaim of ineffective assistance of counsel, the petitioner
must prove there is areasonable probability that the outcome of the proceedings would have
been different but for counsel's action or inaction. Spotz, 47 A.3d at 76 (quoting CommonK,ealth
39
v. Williams, 587 Pa. 304, 899 A.2d 1060, 1064 (2006)). Appellant has not met this threshold
requirement for relief. To support this claim, Appellant notes that the distance between the 5100
block of Viola Street and the 5200 block of Lancaster Avenue "given the obstruction imposed on
pedestrian travel by the railroad tracks, is approximately one-half mile, or 880 yards." App. Pet.,
4/24/19, at 7. The salient details upon which the suppression court relied were that the officers
first observed Appellant on Viola Street, and then encountered him again ashort time later on
Lancaster Avenue. It was the role of the suppression court, sitting as the fact-finder, to pass on
the credibility of witnesses and the weight given to their testimony. Coninionweallh v. Clemens,
66 AM 373, 378 (Pa. Super. 2013). With respect to the second encounter, the suppression court
found that officers observed him in a"high robbery area, high gun area" with alarge bulge in the
front of his waistband that is consistent with afirearm. N.T. Suppression Hearing, 12/1/14, at 84.
It is the PCRA court's opinion that no amount of cross-examination about the timing and
distance would have ended with adifferent result. Accordingly, Appellant's claim on this basis
fails.
a. Appellant's claim regarding the failure
to cross-examine the witness about the recovered
firearm's size.
With regard to his claim that trial counsel was ineffective at the hearing held pursuant to
his motion to suppress evidence, Appellant claims that counsel was constitutionally ineffective in
her failure to cross-examine the testifying police officer about adiscrepancy in the size of the
recovered firearm. This claim must fail.
As Appellant notes in his Petition for Relief, Officer Opalski had completed acourse in
"improvised and concealed weapons training." N.T. Suppression Hearing, 12/1/14, at 33; see
also App. Pet., 4/24/19, at 7. There is no testimony that Officer Opalsky was offered as a
40
firearms expert. It is not reasonable to require apolice officer in pursuit of asubject during his
unprovoked flight to know the difference of 1.5 inches. During his testimony at the suppression
hearing, Officer Opalski testified he observed Appellant "remove alarge silver revolver from his
waistband and he threw it on the ground near apile of trash." N.T. Suppression Hearing, 12/1/14,
at 22. Later, Officer Opalski described it as a"large silver revolver. It was aDirty Harry gun to
the best description Ihave ... From the movies. The large —it was afoot, Iguess, in length." Id.
at 23 (emphasis added).
Simply stated, the exacting standard Appellant proposes —requiring absolute accuracy
down to the inch of afirearm's length —does not prove prejudice under Strickland or Pierce.
Even had trial counsel attempted to impeach Officer Opalski's account, it squarely reconciles
with the officer's testimony that it was merely a"description" and the estimated length he
provided was a"guess." N.T. Suppression Hearing, 12/1/14, at 22-23. Instead, the critical
element of Officer Opalski's testimony is that Appellant had a"large silver revolver." Id. at 22.
Digressing into argument about the firearm's actual length ignores the pertinent question before
the PCRA court: if trial counsel had further cross-examined Officer Opalski about the firearm's
size whether there would have been adiffering result. Without making reference to a"Dirty
Harry" style of gun, the suppression court found one must "look to the totality of it all and with
the size of the gun. This is avery large gun, so you're talking about a,357 Magnum ... This is a
large bulge." Id. at 98. The suppression court also found that at issue is "a.357 Magnum. This is
abig gun on alittle guy." Id. at 100.
As the Superior Court noted on direct review, and Appellant raises again in his petition
for relief, Appellant's reliance upon Colnn7onivealth v. Martinez, 588 A.2d 513 (Pa. Super.
1991), is misplaced. In Martinez, the trial court had improperly mixed together facts occurring
41
both before the stop and as aresult of the stop. See id. at 516. As the suppression court noted at
Appellant's hearing, according to Martinez "a bulge is not enough ... but here you have more
than just the bulge. You have to look at the totality of it all[.]" N.T. Suppression Hearing,
12/1/14, at 98. Contrary to Martinez, Officer Opalski articulated his specific observations —prior
to stopping Appellant —that formed the basis of his particularized suspicion that Appellant was
carrying afirearm in his waistband. See Blenman, supra, at 9. The suppression court, consistent
with Pennsylvania case law, evaluated the testimony under the totality of circumstances. See
United States v. Cortez, 449 U.S. 411, 417-18 (1981); see also Commonwealth v. Hicks, 208
A.3d 916, 927 (Pa. 2019).
Here, it was in the suppression court's sole province as fact-finder to pass on the
credibility of witnesses and the weight given to their testimony. Commonwealth v. Clemens, 66
A.3d 373, 378 (Pa. Super. 2013). The suppression court resolved any discrepancies in favor of
the Commonwealth. Appellant was alleged to be in possession of asilver Colt Lawman MKIII
.357 magnum revolver with awood grip. While Appellant correctly notes that Dirty Harry
carried a.44 magnum Smith & Wesson Model 29, this argument largely ignores the underlying
similarities between the two firearms: that both are large, silver revolver-style handguns. See
App, Pet, 4/24/19, at 8. Even assuming, arguendo, that had trial counsel further cross-examined
Officer Opalski about the recovered firearm, nothing in the record supports aconclusion that a
different result was likely. Officer Opalski, with ten firearm arrests until that point in his career,
observed abulge in Appellant's pants and his "labored" walking was consistent —based upon the
officer's experience and training —with the possession of afirearm in his waistband. In his
petition for relief, Appellant offers no argument about the weight of aColt Lawman MKIII
handgun and how it weighs less than a"Dirty Harry" gun. In the present context, it was the
42
perceived presence of aheavy firearm in Appellant's waistband that drew Officer Opalski's
attention. It was abelief later demonstrated to be true. 6 This belief, formed before any interaction
with Appellant, demonstrates that Officer Opalski had aparticularized suspicion not drawn from
the length of the barrel alone.
Trial counsel acted within the permissible bounds required for effective assistance of
counsel. At the suppression hearing, Appellant's counsel elected not to further question Officer
Opalski concerning the barrel length of the recovered firearm. The conduct of counsel will only
be found not to have areasonable basis unless an alternative not chosen offered apotential for
success substantially greater than the course actually pursued. See Spotz, 47 A.3d at 76. No
alternative potential for success that is substantially greater than counsel's chosen strategy has
been offered. The suppression court made credibility determinations and found that Officer
Opalski, observing aheavy firearm in Appellant's waistband, had the requisite probable cause to
stop him. Therefore, since the record supports the PCRA court's determination that the outcome
would not have differed, Appellant's claim for ineffective assistance of counsel is meritless.
IV. The PCRA Court Properly Denied Appellant's Motion for
Discovery because it Failed to Prove Exceptional Circumstances.
In his final issue raised on appeal, Appellant contends the PCRA court erred and abused
its discretion in denying his motion for discovery because Appellant had demonstrated
exceptional circumstances that justified discovery. While the circumstances underlying
Appellant's case —and his present claim —are unique, the information sought in Appellant's
G The Smith & Wesson Model 29 and Colt Lawman MKIII each weigh 2.9 pounds and 2.3 pounds, respectively.
See https://www.smith-wesson,com/firearms/model -2 9-sw-classics -6-12-blue; see also
http s: //www.gunsinternational.com/guns-for-sale-online/revolvers/colt-revolvers --- lawma n/c olt---lawman-mkiii----
357-remi ngton-magnum.cfm?gun_id=101353 500 .
43
discovery motion nonetheless do not qualify as "exceptional circumstances" as contemplated
within Rule 902(e).
The Pennsylvania Rules of Criminal Procedure state that discovery shall only be
permitted during the PCRA stage of proceedings upon leave of court after ashowing of
"exceptional circumstances." Specifically, Rule 902(e) provides, in relevant part:
(E) Requests for Discovery
(1) Except as provided in paragraph (e)(2), no discovery shall be permitted at any
stage of the proceedings, except upon leave of court after ashowing of
exceptional circumstances.
(2) On the first counseled petition in adeath penalty case, no discovery shall be
permitted at any stage of the proceedings, except upon leave of court after a
showing of good cause.
Pa.R.Crim.P. 902(e). Neither the PCRA nor the Pennsylvania Rules of Criminal Procedure
define the term "exceptional circumstances." See Commonwealth v. Frey, 41 A.3d 605, 611 (Pa.
Super. 2012). The Superior Court has held that it will not disturb atrial court's determination
regarding the existence of exceptional circumstances warranting post-conviction discovery
unless the trial court abused its discretion. See Commonwealth v. Watley, 153 A.3d 1034, 1044
(Pa. Super. 2016). An abuse of discretion may not be found merely because an appellate court
might have reached adifferent conclusion, but requires aresult of manifest unreasonableness, or
partiality, prejudice, bias or ill-will, or such lack of support as to be clearly erroneous.
Commonwealth v. Kneller, 999 A.2d 608, 614 (Pa. Super. 2010).
In Commonwealth v. Abzr-damal, 720 A.2d 79 (Pa. 1998), the Pennsylvania Supreme
Court considered an appellant's claim that aPCRA court inappropriately denied arequest for
discovery due to both the overbreadth of the discovery request and the lack of specificity
associated with the accompanying statement of necessity. The Supreme Court rejected the
44
appellant's argument and found that he had "essentially requested wholesale discovery of
whatever information he ``believed' to exist and/or of entire files so that he could discern whether
his assertions were true." Commonwealth v. Abet-Jamal, 720 AN 79, 91 (Pa. 1998). The
purpose of the PCRA is "to provide relief to the wrongfully convicted by ferreting out colorable
claims of wrongful convictions." Commonwealth v. Cox, 146 A.3d 221, n.l 1(Pa. 2016). The
PCRA is not intended to afford defendants ameans to relitigate past issues. See Commonwealth
v. Buehl, 658 A.2d 771, 775 (Pa. 1995). Indeed, our Supreme Court has further held that the
PCRA is not a"fishing expedition for any possible evidence that may support some speculative
claim of ineffectiveness." Commonwealth v. What-ton, 811 A.2d 978, 989 (Pa. 2002); see also
Commonwealth v. Keaton, 45 A.3d 1050 (Pa. 2012). Likewise, ageneral assertion of "necessity
will not suffice to establish" good cause or exceptional circumstances. See Commonwealth v.
Williams, 732 A.2d 1167, 1175 (Pa. 1999).
In his motion for discovery, Appellant sought: (1) acopy of the Commonwealth's motion
to modify Appellant's bail status; and (2) any "other other bail-related documents in this case .. .
including the [c]oui-t's policies and procedures pertaining to the changing of bail type." App.
Mot., 3/15/18, at 2. Appellant notes that "no such bail motion appears on the docket report" and
that it does not appear in the court file. See id. Even assuming, arguendo, that such amotion
existed, Appellant has not demonstrated how discovery from the Commonwealth would alter his
present situation or so undermined the truth determining that no reliable adjudication of guilt or
innocence could have taken place.
45
A. Discovery seeking the Commonwealth Motion for
Bail is not an exceptional circumstance because
the bail order's history is clear from the record.
Appellant contends that he was entitled to discovery in the present case because amotion
from the Commonwealth requesting achange in bail status does not appear in the record. While
such amotion does not appear in the record, the Commonwealth provided asufficient
explanation that renders the discovery request unnecessary. Turning first to the Bail Order itself,
Judge Woods-Skipper entered an order that stated "Bail ROR to State. Original bail to be
reinstated when inmate returns to [Philadelphia Prison System]." Order, 12/16/12. From the plain
meaning of the order, Judge Woods-Skipper intended for Appellant to be "released" ROR to the
Commonwealth for his parole violation and have his original monetary bail reinstated upon his
transfer back to the Philadelphia Prison System.
The basis for Appellant's bail modification is further supported in aletter brief filed by
the Commonwealth. Specifically, the Commonwealth detailed that Judge Woods-Skipper
"routinely assigns orders changing adefendant's bail to ``ROR' for anew arrest where that
individual has astate violation of parole in order to manage Philadelphia's county prison
population." Com. Letter Brief, 10/3/18, at 2-3. Instead, then-President Judge Woods-Skipper
made it apractice to —in her capacity as overseeing the court's role in reducing the county prison
population —modify the bail conditions of parole violators. The PCRA court denied Appellant's
motion for discovery because there is support within the record that such amotion to modify bail
likely does not exist. Appellant has failed to demonstrate how —if such amotion does exist —
discovery for the motion is an exceptional circumstance. The language of Judge Woods-
Skipper's bail order that Appellant was bailed "ROR to [the] State" reasonably suggests the
46
order was entered for the purpose of reducing the Philadelphia County prison population when
read in conjunction with the Commonwealth's letter brief
B. The PCRA court properly denied Appellant's motion
for discovery because the mere belief such documents
exist did not warrant discovery.
Appellant avers the PCRA court erred in denying his motion for discovery because a
copy of the Commonwealth's bail motion is required for proper disposition of his claims.
However, in his motion for discovery before the PCRA court, Appellant failed to set forth any
evidence that such aCommonwealth motion existed. The present claim parallels the defendant in
Aber-Jamal. In Abu-Jarilal, our Supreme Court held that apetitioner for relief under the PCRA is
not entitled to review of acourt file to potentially discover information he "believes" to exist or
discern whether his allegations were true. See Abu-Jamal, 720 A.2d at 91. The foundation upon
which Appellant bases his request is his belief that bail documents may exist. Although in name
Appellant does not seek wholesale review of his entire case file, his discovery request may
necessarily devolve into ascavenger hunt seeking any document that may support his theory that
bail was changed without due process.
C. The PCRA court properly denied Appellant's motion
for discovery because it is impermissibly vague.
Appellant further sought "any other bail-related documents in this case" that pertain to
the court's policies in modifying bail status. See App. Mot., 3/15/18, at 2. However, Appellant
noted that he "anticipates" that such procedures may support his claim and his request fails to
identify the precise documents within the file that pertain to his claims. Id. at 3. Although
Appellant has framed his discovery request as "anticipat[ing]" the existence of such documents,
nothing within the record suggests that such documents exist or have been otherwise withheld by
the District Attorney. It becomes feasible that many documents within Appellant's case file that
47
"any" document could arguably hold relevance to his claim. Rule 902(e) was written to preclude
such expansive interpretations for discovery requests. Appellant does not cite which specific
documents sought in connection to his petition for relief. Accordingly, the PCRA court found
that the discovery request was impermissibly vague under Pa.R.Crim.P. 902(e) and did not
warrant relief.
D. Appellant has failed to prove the PCRA court abused
its discretion in denying his motion for discovery.
Finally, the PCRA court asserts that it did not abuse its discretion in denying Appellant's
motion for discovery relative to his petition for relief. Appellant has failed to prove that
"exceptional circumstances" existed that sufficiently required the production of documents
related to his bail modification. The letter-in-brief from the District Attorney's Office
demonstrates why the bail modification occurred without sufficient notice. The request for
discovery did not assert with the required specificity the documents Appellant sought other than
those that are the "bail-related documents [to] this case." See App. Mot., 3/15/18, at 2.
Documents that may fit within this broad definition are broad in scope and would require
examination of Appellant's case file.
However, the PCRA court has conceded that remand for an evidentiary hearing is the
proper course given the inadequate due process protections afforded to Appellant during his pre-
trial bail modification process. Permitting discovery to seek the impetus for the bail modification
obfuscates the larger concern of how to award Appellant his time-served credit --- if such time is
due. Accordingly,.the PCRA court finds that while it did not abuse its discretion in denying
Appellant's request for discovery, Appellant is nonetheless entitled to relief related solely to his
time-served claim based upon inadequate due process protections. Given that his request for
discovery touches only the failure to award proper credit for time-served —and the respective
48
ineffective assistance of counsel claim —Appellant need not seek remand on this basis for his
remaining claims.
CONCLUSION
Appellant appeals from the February 26, 2020, order, entered in the Philadelphia County
Court of Common Pleas dismissing his petition for post-conviction relief, filed pursuant to the
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. For the reasons reflected above, the
PCRA court believes that Appellant has raised agenuine issue of fact which, if resolved in his
favor, would have entitled him to relief. See Common4,ealth v. D'Amato, 856 A.2d 806, 820 (Pa.
2004). Appellant has raised acolorable claim that his due process rights were not adequately
protected during the pre-trial bail modification process and may have contributed to the improper
calculation of credit to his sentence. However, Appellant has failed to demonstrate that relief is
due based upon his remaining claims. Therefore, the PCRA court respectfully requests that the
order denying Appellant's petition for relief be vacated so that an evidentiary hearing may be
held in the lower court solely for the purpose to determine any potential time-served credit due to
Appellant.
SEAN F. KENNEDY ;J.
49