Com. v. Charowsky, R. ( 2016 )


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  • J-S50026-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    RICHARD MICHAEL CHAROWSKY
    Appellant                   No. 9 MDA 2016
    Appeal from the PCRA Order entered December 4, 2015
    In the Court of Common Pleas of Schuylkill County
    Criminal Division at No: CP-54-CR-0001413-2014
    BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.
    MEMORANDUM BY STABILE, J.:                         FILED OCTOBER 17, 2016
    Appellant, Richard Michael Charowsky, appeals from the order the
    Court of Common Pleas of Schuylkill County entered on December 4, 2015,
    denying his request for collateral relief under the Post Conviction Relief Act,
    42 Pa.C.S.A. §§ 9451-46. Upon review, we affirm.
    The PCRA court summarized the relevant background as follows:
    [Appellant] was arrested in this case on February 16, 2014. The
    criminal complaint was not filed until August 4, 2014, and he
    was arraigned by Magisterial District Judge Christina Hale on
    August 5, 2014, approximately six months after his arrest. He
    subsequently pled guilty to two of the charges.[1]
    ____________________________________________
    *
    Former Justice specially assigned to the Superior Court.
    1
    Appellant pled guilty to DUI, highest rate of alcohol, third offense, and
    driving while operating privilege was suspended or revoked, 75 Pa.C.S.A.
    § 3802(c) and 75 Pa.C.S.A. § 1543(b)(1.1)(i), respectively. Appellant was
    (Footnote Continued Next Page)
    J-S50026-16
    [At the PCRA hearing, trial counsel] testified that he [was] not
    sure if he noticed the length of time that had passed between
    the arrest date and the complaint date. He did not remember
    discussing this issue with [Appellant], and did not see any other
    options besides negotiating a plea. No suppression or omnibus
    issues seemed to be present and [Appellant] had a lengthy
    criminal record. [At the same hearing, Appellant] testified that
    he had repeatedly attempted to discuss the time with [trial
    counsel] but that [trial counsel] did not listen. [Appellant]
    testified that he was prejudiced by the delay in that the person
    in the car at the time of his arrest, Edna Barket, could have
    testified. However, Ms. Barket was not present at the PCRA
    hearing and no evidence was provided as to how she would have
    aided [Appellant]’s defense.
    PCRA Court Opinion, 12/4/15, at Following the hearing, the PCRA court
    denied relief. This appeal followed. On appeal, Appellant alleges the PCRA
    court erred in denying relief on his claim that trial counsel was ineffective for
    not challenging the Commonwealth’s failure to comply with Pa.R.Crim.P.
    519(B)(2).2 We disagree.
    _______________________
    (Footnote Continued)
    sentenced to one to five years’ incarceration on the DUI conviction, and 90
    to 180 days’ incarceration on the other conviction, concurrent with the DUI
    conviction. Appellant did not file a direct appeal. Rather, Appellant filed a
    timely PCRA petition.
    2
    Rule 519, in relevant part, provides as follows:
    (B) Release
    (1) The arresting officer shall promptly release from custody a
    defendant who has been arrested without a warrant, rather than
    taking the defendant before the issuing authority, when the
    following conditions have been met:
    (a) the most serious offense charged is a misdemeanor of the
    second degree or a misdemeanor of the first degree in cases
    arising under 75 Pa.C.S. § 3802;
    (Footnote Continued Next Page)
    -2-
    J-S50026-16
    “[A]n appellate court reviews the PCRA court’s findings of fact to
    determine whether they are supported by the record, and reviews its
    conclusions of law to determine whether they are free from legal error.”
    Commonwealth v. Spotz, 
    84 A.3d 294
    , 311 (Pa. 2014).
    Counsel is presumed to be effective and “the burden of demonstrating
    ineffectiveness rests on [A]ppellant.” Commonwealth v. Rivera, 
    10 A.3d 1276
    ,    1279   (Pa.      Super.    2010).       Accordingly,   “[t]o    prevail   on   an
    [ineffectiveness] claim, a PCRA petitioner must plead and prove by a
    preponderance of the evidence that (1) the underlying legal claim has
    arguable merit; (2) counsel had no reasonable basis for acting or failing to
    act; and (3) the petitioner suffered resulting prejudice.”              Commonwealth
    v. Reyes-Rodriguez, 
    111 A.3d 775
    , 780 (Pa. Super. 2015) (en banc). “A
    petitioner must prove all three factors of the ‘[Commonwealth v. Pierce,
    
    527 A.2d 973
     (Pa. 1987)] test,’ or the claim fails.” 
    Id.
    _______________________
    (Footnote Continued)
    (b) the defendant poses no threat of immediate physical harm
    to any other person or to himself or herself; and
    (c) the arresting officer has reasonable grounds to believe
    that the defendant will appear as required.
    (2) When a defendant is released pursuant to paragraph (B)(1),
    a complaint shall be filed against the defendant within 5 days of
    the defendant’s release. Thereafter, the issuing authority shall
    issue a summons, not a warrant of arrest, and shall proceed as
    provided in Rule 510.
    Pa.R.Crim.P. 519(B)(1)-(2).
    -3-
    J-S50026-16
    Regarding the specific claim raised in this appeal, the procedure for
    filing criminal complaints in cases involving a warrantless arrest, such as this
    one, is set forth in Rule 519, which, as noted, provides as follows: “When a
    defendant is released pursuant to paragraph (B)(1), a complaint shall be
    filed against the defendant within 5 days of the defendant's release.
    Thereafter, the issuing authority shall issue a summons, not a warrant of
    arrest, and shall proceed as provided in Rule 510.” Pa.R.Crim.P. 519(B)(2).
    Dismissal for failure to file a criminal complaint within five days of a
    defendant’s release as required by Rule 519(B)(2) is improper unless a
    defendant     is   prejudiced     by   the     delay.   See   Commonwealth   v.
    Wolgemuth, 
    737 A.2d 757
    , 760 (Pa. Super. 1999); see also Pa.R.Crim.P.
    109.3
    Upon review of the record, we agree with the PCRA court that
    Appellant failed to prove he suffered prejudice from trial counsel’s omission.
    Specifically, the PCRA court noted: “[Appellant] provided vague claims to a
    ____________________________________________
    3
    Rule 109 provides as follows:
    A defendant shall not be discharged nor shall a case be
    dismissed because of a defect in the form or content of a
    complaint, citation, summons, or warrant, or a defect in the
    procedures of these rules, unless the defendant raises the defect
    before the conclusion of the trial in a summary case or before
    the conclusion of the preliminary hearing in a court case, and the
    defect is prejudicial to the rights of the defendant.
    Pa.R.Crim.P. 109.
    -4-
    J-S50026-16
    possible witness that became unavailable due to the delay, but not enough
    evidence was given to show that the witness would have been available
    earlier, what her testimony would have been, or how her testimony would
    have helped his defense.” PCRA Court Opinion, 12/4/15, at 4.
    Our review of the record confirms the PCRA court’s assessment.
    Accordingly, we conclude Appellant failed to prove that there was “a
    reasonable probability that, but for counsel’s unprofessional errors, the
    result of the proceeding would have been different.”       Commonwealth v.
    Johnson, 
    966 A.2d 523
    , 533 (Pa. 2009) (citation omitted). 4           Thus, we
    affirm the PCRA court’s order denying Appellant relief.
    Order affirmed.
    Judge Mundy did not participate in the consideration or decision of this
    case.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 10/17/2016
    ____________________________________________
    4
    Because we conclude Appellant failed to prove prejudice, we do need not to
    discuss whether Appellant met the other two prongs of the ineffective
    assistance standard.
    -5-
    

Document Info

Docket Number: 9 MDA 2016

Filed Date: 10/17/2016

Precedential Status: Precedential

Modified Date: 10/18/2016