Com. v. Brown, D.

J-S22007-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

DAVID MICHAEL BROWN :

:

Appellant : No. 1824 MDA 2019

Appeal from the PCRA Order Entered September 26, 2019

In the Court of Common Pleas of York County Criminal Division at No(s):

CP-67-CR-0007803-2011

BEFORE: OLSON, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.: FILED MAY 29, 2020

Appellant, David Michael Brown, appeals from an order entered

September 26, 2019, which dismissed his petition for collateral relief filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

The relevant factual and procedural history of this case are as follows.

On November 20, 2013, following a bench trial, Appellant was convicted of

receiving stolen property, persons not to possess a firearm, and possession of

a controlled substance. He was later sentenced to eight to 16 years’

incarceration. This Court affirmed Appellant’s judgment of sentence on July

30, 2015 and our Supreme Court subsequently denied allocatur on December

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* Retired Senior Judge assigned to the Superior Court.

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7, 2015. Commonwealth v. Brown, 2016 WL 6114626 (Pa. Super. 2015),

appeal denied, 128 A.3d 218 (Pa. 2015).

On November 16, 2016, Appellant filed a pro se PCRA petition. The

PCRA court appointed counsel and, on March 23, 2017, counsel filed an

amended PCRA petition on Appellant’s behalf. Appellant’s petition claimed,

inter alia, that both trial and appellate counsel were ineffective. The PCRA

court held an evidentiary hearing on August 24, 2018, during which only

Appellant testified. Ultimately, on September 26, 2019, the PCRA court

dismissed Appellant’s PCRA petition. This appeal followed.1

Appellant raises the following issues on appeal:

I. Whether the PCRA court erred in failing to appoint substitute

PCRA counsel[] under Pa.R.Crim.P. 904, whe[n] it permitted

appointed PCRA counsel to withdraw several days before [the

expiration of] the time for filing a timely appeal?

II. Whether the PCRA court erred in finding that trial [] and

appellate counsel were effective in [litigating Appellant’s]

Rule 600 claim?

III. Whether [Appellant] was denied his . . . constitutional due

process rights to effective assistance of PCRA counsel and his

rule-based right to such assistance[] whe[n original] PCRA

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1 On November 6, 2019, the PCRA court entered an order directing Appellant

to file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b)(1). Appellant’s current counsel entered his appearance on

November 22, 2019, and timely complied. The PCRA court issued an opinion

pursuant to Pa.R.A.P. 1925(a) on December 11, 2019. Appellant then filed a

nunc pro tunc supplement/clarification to his Rule 1925(b) statement on

December 11, 2019. The PCRA court issued a second opinion pursuant to

1925(a) on December 16, 2019.

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counsel provided ineffective assistance in litigating

Appellant’s Rule 600 claims]?

Appellant’s Brief at 9.

We “review a denial of PCRA relief to determine whether the PCRA

court’s findings are supported by the record and free of legal error.”

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010). “[Our] scope

of review is limited to the findings of the PCRA court and the evidence on the

record of the PCRA court's hearing, viewed in the light most favorable to the

prevailing party.” Commonwealth v. Hammond, 953 A.2d 544, 556 (Pa.

Super. 2008).

As a prefatory matter, we must address the timeliness of Appellant’s

appeal. The timeliness of an appeal implicates our jurisdiction, which we may

raise sua sponte. Commonwealth v. Andre, 17 A.3d 951, 957–958 (Pa.

Super. 2011). Pursuant to Pa.R.A.P. 903, a “notice of appeal. . . shall be filed

within 30 days after the entry of the order from which the appeal is taken.”

Pa.R.A.P. 903(a). This Court has, however, previously recognized that:

[t]he pro se prisoner's state of incarceration prohibits him

from directly filing an appeal with the appellate court and

prohibits any monitoring of the filing process. Therefore[,]

. . . a pro se prisoner's appeal shall be deemed to be filed

on the date that he delivers the appeal to prison authorities

and/or places his notice of appeal in the institutional

mailbox.

Commonwealth v. Perez, 799 A.2d 848, 851 (Pa. Super. 2002) (parallel

citations omitted).

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We conclude that Appellant filed a timely notice of appeal. The PCRA

court dismissed Appellant’s PCRA petition on September 26, 2019. Thus, to

be considered timely, Appellant needed to file his notice of appeal by October

28, 2019. See 1 Pa.C.S.A. § 1908. On October 25, 2019, the PCRA court

granted Appellant’s counsel permission to withdraw; hence, as of that date,

Appellant was no longer represented by counsel and could act pro se without

implicating any concerns with hybrid representation. Appellant’s pro se notice

of appeal is dated October 28, 2019, which is the final date of the appeal

period. Because Appellant, as a pro se prisoner, is entitled to the benefit of

the prisoner mailbox rule, we may accept “any reasonably verifiable evidence”

that Appellant “deposit[ed] the appeal with the prison authorities” on or before

October 28, 2019. Perez, 799 A.2d at 851. Appellant’s notice of appeal dated

October 28, 2019 supports the conclusion that he timely deposited the notice

with prison authorities. Accordingly, for purposes of this matter, we shall treat

Appellant’s notice of appeal as timely filed.2

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2 In his first appellate issue, Appellant argues that “this Court cannot consider

[Appellant’s] pro se notice of appeal untimely” because the PCRA court

permitted counsel to withdraw approximately “one day before [Appellant] was

required to file his notice of appeal” and did not appoint substitute counsel.

Appellant’s Brief at 21. Because we conclude that Appellant filed a timely

notice of appeal pursuant to the prisoner mailbox rule, we need not address

this precise issue.

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Next, Appellant argues that trial and appellate counsel provided

ineffective assistance. The following principles govern our review of

Appellant’s claim:

To establish [] counsel's ineffectiveness, a petitioner must

demonstrate: (1) the underlying claim has arguable merit; (2)

counsel had no reasonable basis for the course of action or

inaction chosen; and (3) counsel's action or inaction prejudiced

the petitioner.

Furthermore, a PCRA petitioner will be granted relief only when he

proves, by a preponderance of the evidence, that his conviction or

sentence resulted from the 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. Counsel 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.

Counsel's assistance is deemed constitutionally effective once this

Court determines that the defendant has not established any one

of the prongs of the ineffectiveness test.

Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014) (internal

citations, quotations and brackets omitted).

Herein, Appellant argues that a violation of Pa.R.Crim.P. 600 occurred

because “in excess of 365 days elapsed between the filing of the [criminal]

complaint and [his] trial.” Appellant’s Brief at 37. As such, Appellant claims

that trial counsel was ineffective for failing to “adequately” raise a Rule 600

claim prior to the commencement of trial. Id. Likewise, Appellant argues that

appellate counsel was ineffective for failing to preserve a Rule 600 challenge

on direct appeal. Id.

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Rule 600 provides, in relevant part:3

(A) Commencement of Trial; Time for Trial

(1) For the purpose of this rule, trial shall be deemed to

commence on the date the trial judge calls the case to trial,

or the defendant tenders a plea of guilty or nolo contendere.

(2) Trial shall commence within the following time periods.

(a) Trial in a court case in which a written complaint is

filed against the defendant shall commence within 365

days from the date on which the complaint is filed.

***

(C) Computation of Time

(1) For purposes of paragraph (A), periods of delay at any

stage of the proceedings caused by the Commonwealth

when the Commonwealth has failed to exercise due

diligence shall be included in the computation of the time

within which trial must commence. Any other periods of

delay shall be excluded from the computation.

***

(D) Remedies

(1) When a defendant has not been brought to trial within

the time periods set forth in paragraph (A), at any time

before trial, the defendant's attorney, or the defendant if

unrepresented, may file a written motion requesting that

the charges be dismissed with prejudice on the ground that

this rule has been violated. A copy of the motion shall be

served on the attorney for the Commonwealth concurrently

with filing. The judge shall conduct a hearing on the motion.

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3 Pa.R.Crim.P. 600 was amended on July 1, 2013. Appellant filed his pro se

motion to dismiss based upon Rule 600 on November 19, 2013. Appellant’s

counsel adopted and litigated Appellant’s pro se motion on November 20,

2013. Because Appellant’s motion and counsel’s litigation thereof occurred

after the July 1, 2013 amendment went into effect, we will evaluate counsel’s

performance in accordance with the current version of Rule 600.

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Pa.R.Crim.P. 600.

This Court has explained

the courts of this Commonwealth employ three steps in

determining whether Rule 600 requires dismissal of charges

against a defendant. First, Rule 600(A) provides the mechanical

run date. Second, we determine whether any excludable time

exists pursuant to Rule 600(C). We add the amount of excludable

time, if any, to the mechanical run date to arrive at an adjusted

run date.

Commonwealth v. Bethea, 185 A.3d 364, 371 (Pa. Super. 2018) (cleaned

up).

Accordingly, to determine whether a Rule 600 violation occurred, a

court must “account for any ‘excludable time’ and ‘excusable delay.’”

Commonwealth v. Colon, 87 A.3d 352, 357 (Pa. Super. 2014) (citation

omitted). “Excludable time is delay that is attributable to the defendant or his

counsel.” Id. The following periods must be excluded:

(1) the period of time between the filing of the written complaint

and the defendant's arrest, provided that the defendant could not

be apprehended because his or her whereabouts were unknown

and could not be determined by due diligence;

(2) any period of time for which the defendant expressly waives

Rule 600;

(3) such period of delay at any stage of the proceedings as results

from either the unavailability of the defendant or the defendant's

attorney or any continuance granted at the request of the

defendant or the defendant's attorney.

Pa. R. Crim. P. 600, cmt. Moreover, “periods of judicial delay are excludable

from calculations under Rule 600.” Commonwealth v. Mills, 162 A.3d 326,

325 (Pa. 2017).

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Excusable delay, on the other hand, “is delay that occurs as a result of

circumstances beyond the Commonwealth's control and despite its due

diligence.” Colon, 87 A.3d at 357. In determining whether the

Commonwealth has exercised reasonable diligence, we are guided by the

following.

Due-diligence is a fact-specific concept that is determined on a

case-by-case basis. Due diligence does not require perfect

vigilance and punctilious care, but rather a showing by the

Commonwealth that a reasonable effort has been put forth.

Judicial delay may justify [the postponement of] trial beyond the

adjusted run date if the Commonwealth was prepared to

commence trial prior to the expiration of the mandatory period

but the court was unavailable because of ‘scheduling difficulties

and the like.’

Commonwealth v. Lynch, 57 A.3d 120, 124 (Pa. Super. 2012), appeal

denied, 63 A.3d 1245 (Pa. 2013) (internal citations and quotations omitted).

Herein, we must review the procedural history of this case to determine

whether a violation of Rule 600 occurred. A review of the certified record

reveals that the Commonwealth filed a criminal complaint against Appellant

on September 30, 2011. A preliminary hearing was originally scheduled for

October 10, 2011 but, due to a continuation initiated by the magistrate district

judge, it did not occur until December 19, 2011.

Following Appellant’s formal arraignment, the trial court scheduled a

pre-trial conference for February 22, 2012. On February 21, 2012, however,

Appellant filed an omnibus pre-trial motion, which included a motion to

suppress. Thus, on February 22, 2012, the parties met and the trial court

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scheduled a hearing on Appellant’s omnibus motion for March 23, 2012. After

the hearing on Appellant’s motion, the trial court reserved decision, but

ultimately denied suppression on October 5, 2012. Then, the trial court

scheduled trial for December 2012.

On November 30, 2012 the trial court conducted a pre-trial conference.

During the conference, defense counsel informed the court that the

Commonwealth recently provided the defense with additional discovery,

specifically, a dash-cam video. As such, Appellant’s counsel indicated that he

wished to file a motion to reconsider his omnibus pre-trial motion and

requested a continuance until the January trial term. The trial court granted

Appellant’s request and scheduled a hearing for January 4, 2012.

Thereafter, on December 12, 2012, Appellant filed a motion to

reconsider the omnibus pre-trial motion in light of the newly-obtained

discovery. The trial court granted reconsideration on December 20, 2012. On

January 4, 2013, Appellant filed a motion for a trial continuance and executed

a Rule 600 waiver. The trial court granted Appellant’s motion that same day.

The trial court held an additional hearing on Appellant’s omnibus pre-trial

motion on January 30, 2013. This time, Appellant utilized the video previously

obtained from the Commonwealth. Again, the trial court took the matter

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under advisement. On May 14, 2013, however, the trial court denied

Appellant’s motion.4

The trial court conducted a status conference on August 5, 2013 and

subsequently scheduled Appellant’s trial for September 23, 2013. On

September 16, 2013, however, the court “informed both parties that the trial

court judge, an officer in the Army Reserve, [recently] received mandatory

military orders to report for duty in Africa for a three week period that

overlapped with the proposed trial date, and that the trial would be moved . .

. to September 20, 2013.” Trial Court Opinion, 9/26/19, at 5. Thereafter, the

Commonwealth informed the court that it could not gather “[its] six witnesses”

on “only five days’ notice.” Id. In addition, on September 18, 2013, Appellant

submitted pro se correspondence to the York County District Attorney’s Office

“asking them to allow him to take a plea agreement he previously refused.”

Id. In light of the foregoing, the trial court entered an order continuing trial

to October 29, 2018.

On the date set for trial, the Commonwealth filed a motion for a

continuance. In the motion, the Commonwealth claimed that its key witness

was unavailable. The trial court entered an order on October 30, 2013,

rescheduling trial for November 20, 2013. Then, on November 8, 2013,

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4 Although the trial court stated in its May 14, 2013 order that it denied

Appellant’s “motion for reconsideration” of his omnibus pre-trial motion, the

record reflects that the court denied the merits of Appellant’s supplemented

omnibus pre-trial motion. See Trial Court Order, 5/14/13 at 1-2. The court

previously agreed to reconsider Appellant’s omnibus pre-trial motion on

December 20, 2012.

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Appellant’s counsel filed a motion to withdraw. Subsequently, Appellant

submitted multiple pro se motions to the court, including a motion alleging

ineffective assistance of counsel, a petition for writ of habeas corpus, and a

motion to dismiss pursuant to Rule 600.

On November 20, 2013, prior to trial, the court addressed counsel’s

motion to withdraw and Appellant’s various pro so filings, including his motion

to dismiss. Ultimately, trial counsel was not permitted to withdraw and

adopted and litigated Appellant’s motion to dismiss. The trial court

subsequently denied Appellant’s motion and Appellant’s bench trial

commenced thereafter.

Upon review of the preceding procedural history, we conclude that

Appellant’s Rule 600 claim lacks merit. The Commonwealth filed a criminal

complaint against Appellant on September 30, 2011. As such, the mechanical

run date was September 30, 2012. A total of 477 days of delay, however, are

attributable to Appellant and the judiciary and, as such, are excludable.

Specifically, Appellant caused the following periods of delay: February 21,

2012 to October 5, 2012 (Appellant’s omnibus pre-trial motion); and

November 30, 2012 to May 14, 2013 (Appellant’s motion to reconsider the

omnibus pre-trial motion and motion to continue trial).5 Moreover, the

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5 Appellant argues that the “period between [Appellant’s] receipt of the []

video and the [trial c]ourt's decision on his motion for reconsideration is [] not

excludable . . . because the motion was only filed as a result of the

Commonwealth's failure to provide requested discovery in the nature of the []

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following period is attributable to judicial delay: August 5, 2013 to October

29, 2013 (order scheduling trial, trial judge’s mandatory military leave).6

Adding the excludable time to the mechanical run date, we calculate the

adjusted run date to be January 20, 2014.

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video.” Appellant’s Brief at 28, citing Commonwealth v. Edwards, 595 A.2d

52, 55 (Pa. 1991) (holding that an uncontested discovery request does not

toll the Rule 600 limit); Commonwealth v. Hill, 736 A.2d 578, 587 (Pa.

1999) (holding that the a defendant is only “unavailable” for purposes of a

Rule 600 analysis if the defendant’s pretrial motion “delay[s] the

commencement of trial[]”). Neither of these cases, however, address the

effect of a defendant’s request for a continuance and express waiver of his

speedy trial rights. Herein, Appellant, knowing that the Commonwealth failed

to provide the additional discovery, requested a trial continuance on

November 30, 2012 and January 4, 2013, and executed a Rule 600 waiver on

January 4, 2013. As stated above, a court may exclude “any period of time

for which the defendant expressly waives Rule 600” and any period resulting

from a “continuance granted at the request of the defendant or the

defendant's attorney.” Pa.R.Crim.P. 600, cmt. We cannot ignore the fact that

Appellant executed a Rule 600 waiver and made two requests for a trial

continuance even if he alleges that both of these actions were the result of

the Commonwealth’s failure to provide additional discovery. Accordingly, we

conclude that the period between November 30, 2012 and May 14, 2013 is

excludable.

6 Appellant claims that the “168 days . . . between the trial court’s denial of

[Appellant’s] reconsideration motion [(May 14, 2013)] and the scheduling of

trial on October 29, 2013” is not excludable because the “time that elapsed

during the ordinary course of the proceedings.” Appellant’s Brief at 25. We

agree with Appellant that the period of time between May 14, 2013 and August

5, 2013 is not excludable. As mentioned above, however, the period between

August 5, 2013 and October 29, 2013 constitutes judicial delay and, as such,

is excludable. After the August 5, 2013 hearing, the trial court scheduled trial

for September 23, 2013, which it noted was the earliest possible date for trial.

Thereafter, the trial court re-scheduled trial for October 29, 2013, in light of

its required military leave. Thus, a total of 85 days constitutes judicial delay

and, as such, is excludable.

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In addition, we calculate a total of 69 days of excusable delay. Indeed,

because the magistrate district judge unilaterally continued Appellant’s

preliminary hearing, the period of October 11, 2011 to December 19, 2011, is

excusable.7 See Commonwealth v. Bradford, 46 A.3d 693, 704-705 (Pa.

2012). Accordingly, this calculation extends the final, adjusted run date to

(at the earliest) March 31, 2014 – nearly four months after Appellant’s trial

commenced. Hence, Appellant’s claim that trial and appellate counsel

provided ineffective assistance for failing to preserve and adequately raise a

Rule 600 claim is without merit.

Lastly, Appellant argues that PCRA counsel was ineffective. In

particular, Appellant asserts that PCRA counsel “inadequately presented” his

claims regarding trial and appellate counsel’s ineffectiveness “by erroneously

conceding [that] time frames were excludable” under Rule 600. Appellant’s

Brief at 37. However, “claims of PCRA counsel's ineffectiveness may not be

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7 Herein, Appellant argues that the “magisterial district court[’s] continuation

of the preliminary hearing from October 10, 2011 through December 19, 2011

is [not] excludable.” Appellant’s Brief at 29. In support, Appellant cites

Commonwealth v. Lynn, 815 A.2d 1053, 1057 (Pa. Super. 2003)

(explaining that “[d]elay caused by a district justice . . . is not excludable time

for purposes of calculating the Rule 600 run date.”) (citation omitted).

Appellant correctly asserts that this delay is not excludable. Our Supreme

Court, however, previously explained that such delay will be excusable if the

Commonwealth exercises due diligence and a delay “result[s] from judicial

delay beyond the Commonwealth's control.” Bradford, 46 A.3d at 704-705.

The Commonwealth exercises due diligence by relying upon the actions of a

magistrate district judge. Id. Accordingly, we conclude that the 69-day delay

resulting from the magisterial district judge’s continuation of the preliminary

hearing is “excusable delay” pursuant to Rule 600.

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raised for the first time on appeal.” Commonwealth v. Henkel, 90 A.3d 16,

20 (Pa. Super. 2014) (en banc); see also Pa.R.A.P. 302(a) (“Issues not raised

in the lower court are waived and cannot be raised for the first time on

appeal.”). Instead, “issues of PCRA counsel effectiveness must be raised in a

serial PCRA petition[.]” Commonwealth v. Ford, 44 A.3d 1190, 1200 (Pa.

Super. 2012). We simply may not entertain claims that were not first

presented to the PCRA court:

[Our Supreme Court has] stressed that a claim not raised in a

PCRA petition cannot be raised for the first time on appeal. We

have reasoned that permitting a PCRA petitioner to append new

claims to the appeal already on review would wrongly subvert the

time limitation and serial petition restrictions of the PCRA. The

proper vehicle for raising [a later] claim is thus not [on] appeal,

but rather in a subsequent PCRA petition.

Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004) (internal

citations and original brackets omitted). Because Appellant did not raise this

issue in his PCRA petition or in a serial PCRA petition, we are constrained to

find this issue waived.8 For the forgoing reasons, we affirm the order of the

PCRA court.

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8 In his brief, Appellant acknowledges that the issue of PCRA counsel’s alleged

ineffectiveness was not raised before the PCRA court and that current PCRA

jurisprudence precludes a petitioner from raising such a claim for the first time

on appeal. Nevertheless, Appellant argues that “[f]ailing to permit a PCRA

petition[er] to litigate a claim of PCRA counsel ineffectiveness on appeal from

the denial of a first-time petition results in no ability to vindicate his right to

effective PCRA counsel” which is a “fundamental right rooted in the traditions

of justice and fundamental fairness.” Appellant’s Brief at 49. While Appellant

engages in a persuasive argument, “[i]t is beyond the power of a Superior

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 05/29/2020

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Court panel to overrule a prior decision of the Superior Court.”

Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006) (citation

omitted). Thus, unless this Court grants en banc review or intervening

authority of our Supreme Court calls into question a previous decision of this

Court, we are bound by our prior case law which prevents a PCRA petitioner

from raising a claim of PCRA counsel’s ineffectiveness for the first time on

appeal. See id.; see also Commonwealth v. Morris, 958 A.2d 569, 581 n.2

(Pa. Super. 2008) (en banc) (“It is well-settled that this Court, sitting en banc,

may overrule the decision of a three-judge panel of this Court.”).

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