Com. v. Marrow, T.

J. S51044/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
TRACEY MARROW, : No. 2009 EDA 2017
:
Appellant :
Appeal from the PCRA Order, June 23, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0006387-2012
BEFORE: DUBOW, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 25, 2019
Tracey Marrow appeals from the June 23, 2017 order entered by the
Court of Common Pleas of Philadelphia County denying his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. After careful review, we affirm.
The PCRA court provided the following factual and procedural history:
On February 26, 2014, [appellant] entered into a
plea of nolo contendere to two counts of robbery,
one count of conspiracy, and one count of possession
of an instrument of crime.[Footnote 1] On April 1,
2014, [appellant] was sentenced to an aggregate
term of eight and one-half to twenty years[] of
incarceration.
[Footnote 1] 18 Pa.C.S.A. § 3701(a)(ii);
§ 903; § 907[(a)], respectively.
The facts as set forth in the negotiated plea are as
follows:
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On May 12, 2012, at approximately
11:45 p.m., Lacey Walerski and
John Buettler[] were in the area of
2300 East Allegheny Avenue in
Philadelphia. A red Chevy pickup truck
pulled up in front of them. They
observed [appellant] in the driver’s seat.
The passenger, Alvin Banks, got out and
walked towards them. Alvin Banks
forced both of them to the ground, pulled
a gun on them, and took their
belongings. They observed Alvin Banks
get back into the vehicle and [appellant]
drive off.
If called to testify, Officer Wright would
testify that approximately 25 minutes
later he stopped that red pickup truck.
When he stopped, [appellant] was in the
passenger’s seat and ran out of the
vehicle and fled from Officer Wright.
Officer Wright pursued him and observed
[appellant] discard a gun. Officer Wright
later recovered that gun, which turned
out to be a BB gun. Officer Wright also
placed Alvin Banks under arrest, who
was the driver of the vehicle at the time
the car was stopped. Lacey Walerski
made positive identifications of both
defendants.
Notes of [t]estimony, [2/26/14] at 8-10.
On February 17, 2015, [appellant] filed a pro se
PCRA petition. An amended petition was filed by
court appointed counsel on July 3, 2016.
[Appellant’s] amended petition claims that [the trial
court] erred in failing to bring [appellant] to trial in
violation of his right to a speedy trial under
Rule 600. Furthermore, [appellant alleged] counsel
[should be] deemed ineffective for failing to
challenge this purported error. The Commonwealth
filed its motion to dismiss on April 4, 2017.
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After careful review of counsel’s amended petition,
the Commonwealth’s motion to dismiss, [appellant’s]
response, and an independent review of the entire
record, [appellant] was given notice on May 9, 2017
of [the PCRA court’s] intention to dismiss the petition
pursuant to Pa.R.Crim.P. 907. [Appellant’s] PCRA
petition was formally dismissed without an
evidentiary hearing by order of [the PCRA court] on
June 23, 2017. [Appellant] then filed a timely
appeal to the Superior Court.
PCRA court opinion, 1/18/18 at 1-2 (additional citations omitted).
On July 11, 2017, the PCRA court issued an order directing appellant
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Appellant timely filed a Rule 1925(b) statement on
July 16, 2017. The PCRA court filed an opinion pursuant to
Pa.R.A.P. 1925(a) on January 18, 2018.
Appellant raises the following issue for our review: “Did the [PCRA
court] err in failing to grant PCRA relief where trial counsel failed to seek
dismissal of the case after [the] case had been delayed longer than
365 days?” (Appellant’s brief at 8.)
PCRA petitions are subject to the following standard of review:
“[A]s a general proposition, we review a denial of
PCRA relief to determine whether the findings of the
PCRA court are supported by the record and free of
legal error.” Commonwealth v. Dennis, [] 17 A.3d
297, 301 ([Pa.] 2011) (citation omitted). A PCRA
court’s credibility findings are to be accorded great
deference, and where supported by the record, such
determinations are binding on a reviewing court.
Id., at 305 (citations omitted). To obtain PCRA
relief, appellant must plead and prove by a
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preponderance of the evidence: (1) his conviction or
sentence resulted from one or more of the errors
enumerated in 42 Pa.C.S. § 9543(a)(2); (2) his
claims have not been previously litigated or waived,
id., § 9543(a)(3); and (3) “the failure to litigate the
issue prior to or during trial . . . or on direct appeal
could not have been the result of any rational,
strategic or tactical decision by counsel[,]” id.,
§ 9543(a)(4). An issue is previously litigated if “the
highest appellate court in which [appellant] could
have had review as a matter of right has ruled on
the merits of the issue [.]” Id., § 9544(a)(2). “[A]n
issue is waived if [appellant] could have raised it but
failed to do so before trial, at trial, . . . on appeal or
in a prior state postconviction proceeding.” Id.,
§ 9544(b).
Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).
Under the PCRA, an individual is eligible for post-conviction relief if the
conviction was the result of “ineffective assistance of counsel which, in the
circumstances of the particular case, 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). When considering whether counsel
was ineffective, we are governed by the following standard:
[C]ounsel is presumed effective, and to
rebut that presumption, the PCRA
petitioner must demonstrate that
counsel’s performance was deficient and
that such deficiency prejudiced him.
Strickland v. Washington, 466 U.S.
668, [] (1984). This Court has described
the Strickland standard as tripartite by
dividing the performance element into
two distinct components.
Commonwealth v. Pierce, [], 527 A.2d
973, 975 (Pa. 1987). Accordingly, to
prove counsel ineffective, the petitioner
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must demonstrate that (1) the
underlying legal issue has arguable
merit; (2) counsel’s actions lacked an
objective reasonable basis; and (3) the
petitioner was prejudiced by counsel’s
act or omission. Id. A claim of
ineffectiveness will be denied if the
petitioner’s evidence fails to satisfy any
one of these prongs.
Commonwealth v. Busanet, [], 54 A.3d 34, 45
(Pa. 2012) (citations formatted). Furthermore, “[i]n
accord with these well-established criteria for review,
[an appellant] must set forth and individually discuss
substantively each prong of the Pierce test.”
Commonwealth v. Fitzgerald, 979 A.2d 908, 910
(Pa.Super. 2009).
Commonwealth v. Perzel, 116 A.3d 670, 671-672 (Pa.Super. 2015),
order vacated on other grounds, 166 A.3d 1213 (Pa. 2017).
In his sole issue on appeal, appellant contends that the PCRA court
erred when it found that appellant’s trial counsel was not ineffective for
failing to seek a dismissal pursuant to Pa.R.Crim.P. 600. (Appellant’s brief
at 14.) The Commonwealth argues that appellant’s claim is not cognizable
under the PCRA. (Commonwealth’s brief at 5.)
We find that in this context, appellant’s claim is cognizable under the
PCRA because appellant is alleging a violation of his constitutional rights.
See 42 Pa.C.S.A. § 9543(a)(2)(i).
We shall first determine whether appellant’s claim that trial counsel
was ineffective for failing to pursue a Rule 600 claim has arguable merit.
Preliminarily, we note that the Pennsylvania Rules of Criminal Procedure
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require a defendant to be brought to trial within 365 days from the date the
complaint is filed. Pa.R.Crim.P. 600(A)(2)(a).
In assessing a Rule 600 claim, the court must
exclude from the time for commencement of trial
any periods during which the defendant was
unavailable, including any continuances the
defendant requested and any periods for which he
expressly waived his rights under Rule 600.
Pa.R.Crim.P. 600(C). “A defendant has no duty to
object when his trial is scheduled beyond the
Rule [600] time period so long as he does not
indicate that he approves of or accepts the delay.”
Commonwealth v. Taylor, 598 A.2d 1000, 1003
(Pa.Super. 1991), appeal denied, 613 A.2d 559(Pa. 1992) (addressing Municipal Court’s counterpart
to speedy trial rule).
Commonwealth v. Hunt, 858 A.2d 1234, 1241 (Pa.Super. 2004), appeal
denied, 875 A.2d 1073 (Pa. 2005).
The comment to Rule 600 provides that “delay in the time of trial that
is attributable to the judiciary may be excluded from the computation of
time.” Pa.R.Crim.P. 600 cmt., citing Commonwealth v. Crowley, 466
A.2d 1009 (Pa. 1983); see also Commonwealth v. Mills, 162 A.3d 323,
325 (Pa. 2017), citing Commonwealth v. Bradford, 46 A.3d 693, 705 (Pa.
2012) (“periods of judicial delay are excludible from calculations under the
rule”).
Here, appellant was arrested on May 13, 2012, and the trial began
653 days later on February 25, 2014. As noted by the PCRA court, it:
reviewed the docket and each of the continuance
requests in an attempt to properly determine the
length of time between [a]ppellant’s arrest and trial.
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Removing all requests that were made for excusable
reasons, [the PCRA] court has found that
approximately 48 days are attributable to the
Commonwealth. Therefore, the Commonwealth’s
time had not expired and there was no Rule 600
violation.
PCRA court opinion, 1/18/18 at 6 (footnote and citations to the record
omitted).
The PCRA court further provided the following pretrial procedural
history:
A criminal complaint was filed against [appellant] on
May 13, 2012. On May 29, 2012, a preliminary
hearing was held before the Honorable Teresa Deni.
Judge Deni found the Commonwealth established a
prima facie case for all but two charges. [Appellant]
was formally arraigned on June 19, 2012,
thirty-seven days after the complaint was filed. A
pretrial conference was held on July 18, 2012,
twenty-nine days later. At that listing, [appellant]
requested a continuance for further investigation into
the case. The matter was continued until August 22,
2012 and on that date the pretrial conference was
continued for September 14, 2012. It appears this
continuance was due to court scheduling. On
September 19, 2012 the case was assigned to
Judge Ehrlich, 129 days later. At that listing,
[appellant] rejected an offer from the
Commonwealth and the case was continued for a
scheduling conference on October 1, 2012. On
October 1 , discovery was marked as complete and
st
the case was listed for a motions hearing on May 6,
2013. Neither [appellant] nor the Commonwealth
filed any motions before the May [6]th listing and
trial was scheduled for May 13, 2013.
On May 13, 2013, the court continued the trial until
May 16, 2013. On May 16th, [appellant] requested a
continuance and the matter was relisted for May 24,
2013. On May 24th, the Commonwealth requested a
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continuance to work out a non-trial disposition with
[appellant]. The case was listed for status, six days
later, on May 30, 2013. On May 30th, the case was
continued for a status of a non-trial disposition to
June 13, 2013. The docket does not indicate who
requested the continuance but it appears it was
either a joint request or request by [appellant] to
consider a plea agreement. On June 13th,
[appellant] rejected an offer from the
Commonwealth and the case was continued until
December 20, 2013 for a new motions date. On
December 20th, the case was continued until
January 27, 2014 for trial. After the complaining
witness failed to appear, the Commonwealth
requested a continuance on January 27th. The
matter was continued for twenty-eight days until
February 24, 2014. The case was continued to
February 25, 2014 after [appellant] requested a jury
trial. On February 25th, a jury panel was selected.
On February 26, 2014, [appellant] chose to accept
the Commonwealth’s plea agreement and pleaded
nolo contendere, 653 days after the criminal
complaint was filed.
Id. at 6-7.
Based on our review of the record, we find that continuances from
August 22, 2012 until September 13, 2012; September 19, 2012 until
October 1, 2012; October 1, 2012 until May 6, 2013; May 6, 2013 until
May 13, 2013; June 13, 2013 until December 20, 2013; and December 20,
2013 until January 27, 2014, totaling 487 days, were attributed to the trial
court. As noted above, continuances and delays caused by the trial court
are excludable under Rule 600. Additionally, the record reflects that
appellant requested two continuances totaling 43 days, which are likewise
excludable for Rule 600 purposes. After accounting for excludable time
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under Rule 600 attributable to either the trial court or appellant, appellant
was brought to trial 123 days after his arrest. Accordingly, we find that a
Rule 600 claim would have been futile, and appellant’s claim is without
arguable merit. Therefore, appellant’s PCRA petition must fail.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/25/19
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