Com. v. Wagner, Q. ( 2020 )

J-S27006-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
QASHIME WAGNER :
:
Appellant : No. 3019 EDA 2019
Appeal from the PCRA Order Entered May 24, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010755-2011
BEFORE: SHOGAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY SHOGAN, J.: Filed: November 12, 2020
Qashime Wagner, Appellant, appeals from the May 24, 2018 order
dismissing his petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546.1 After careful review, we affirm.
The PCRA court set forth the following findings of fact:
In CP-51-CR-0005678-2011 (originally MC-51-CR-
0018162-2011), [Appellant] was arrested on April 27, 2011 for
one count of Robbery and related offenses, and the complaint
against him was filed the next day. Under Rule 600, [Appellant’s]
mechanical run date was April 27, 2012.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 This case is a companion case to Commonwealth v. Wagner, 3018 EDA
2019. That case, trial court docket number CP-51-CR-0005678-2011, was
the first brought against Appellant. In the instant case, 3019 EDA 2019, trial
docket number CP-51-CR-0010755-2011, the Commonwealth brought
additional charges against Appellant to reflect that there were additional
robbery victims. The briefs submitted by Appellant and the Commonwealth
are identical for each case.
J-S27006-20
The Commonwealth arrested [Appellant] on two additional
Robbery charges to reflect that there were three robbery victims.
In CP-51-CR-0010755-2011 (originally MC-51-CR-0025417-2011
and MC-51-CR-0025419-2011), [Appellant] was arrested on
June 12, 2011[,] and the complaint was filed on June 13, 2011.
The mechanical run date for each matter was June 12, 2012. The
cases were consolidated and proceeded to trial on the same date,
May [29], 2013.
[Appellant’s] co-conspirators, Terrance Cooper and Mario
Mitchell, were also arrested for Robbery and related offenses on
April 27, 2011. Cooper was arrested on two additional Robbery
charges on June 13, 2011[,] to reflect the three robbery victims.
Mitchell permitted the Commonwealth to amend the complaint for
the additional counts.
* * *
In CP-51-CR-0010755-2011, the Commonwealth was not
ready to proceed with the case at the first preliminary hearing
listing on July 1, 2011, where they requested to link the case with
co-defendant Mitchell’s preliminary hearing date of July 26, 2011.
On July 26, 2011, all three co-defendants were listed together for
a second preliminary hearing date. The Municipal Court
Judge ruled the case continued at the Commonwealth’s request
due to a witness arriving at 10:35 a.m. On September 16, 2011,
the Municipal Court judge conducted the preliminary hearing and
the charges were held for court. On October 7, 2011, [Appellant]
was arraigned. The case was listed in the smart room to address
pretrial matters on November 2, 2011. On November 2,
[Appellant] rejected the Commonwealth’s offer and this case was
listed in Courtroom 602 for a scheduling conference on
November 15, 2011, before Judge Lynn. The scheduling
conference was held on that date and this case received a motion
date of April 5, 2012 and a jury trial date of May 7, 2012.
All parties agree, and the docket demonstrates, that starting
on February 7, 2012[,] the two cases have identical dates and
entries. [Appellant’s] CP-51-CR-0005678-2011 case was
administratively relisted to the May 7, 2012 trial date.
At the motions date on April 5, 2012, neither the
Commonwealth nor defense counsel for co-defendant Mitchell
were ready. [Appellant’s] counsel was permitted to withdraw and
-2-
J-S27006-20
trial counsel entered his appearance. The docket reflects that
discovery was outstanding at that listing. Judge Glynnis Hill
continued the cases to April 19, 2012[,] for discovery status,
May 3, 2012[,] for trial status, and May 7, 2012[,] for trial. On
April 19, 2012, the defense was unavailable, and the cases were
continued to April 25th to obtain a new trial date. On April 25,
2012, the assigned Assistant District Attorney and counsel for co-
defendant Mitchell both advised the court that they could not
proceed on May 7, 2012[,] and [Appellant’s] counsel had issues
with discovery and a potential line-up motion. On April 30, 2012,
the Commonwealth passed additional discovery and [Appellant]
indicated there would be a motion for a possible line-up.
[Appellant] and co-defendant Mitchell also changed their demand
for a jury trial. The court scheduled a waiver trial for August 16,
2012.
Both parties conceded to this [c]ourt that the time beyond
August 16, 2012[,] would not and should not be attributed to the
Commonwealth for purposes of this [Rule] 600 motion. On the
August 16, 2012 waiver trial listing, [Appellant] requested a jury
trial to commence on October 24, 2012, and the time was ruled
excludable. On October 18, 2012, [Appellant] moved to sever his
trial. On October 24, 2012, the [c]ourt was on trial and a jury
trial was scheduled to commence on May 13, 2013, and the time
was ruled [excludable]. On May 13, 2013, the defense requested
time for [Appellant’s] family to discuss an offer with him. On
May 14, 2013, the matter was continued as the [c]ourt was on
trial. On May 15, 2013 the case was sent to another room and
jury selection commenced before Judge Linda Carpenter; trial was
scheduled to commence on May 28, 2013. On May 28, 2013,
Judge Carpenter was on trial and this matter was continued. On
May 29, 2013, the was case assigned to this [c]ourt to commence
trial. On June 3, 2013, after a consolidated trial before this
[c]ourt, a jury convicted [Appellant] of two counts of Robbery and
Conspiracy to Commit Robbery.
Findings of Fact and Conclusions of Law, 5/24/18, at 1-4 (footnotes omitted).
We summarized the procedural history in a prior appeal as follows:
On August 1, 2013, the trial court sentenced Appellant to a
concurrent term of six to fifteen years imprisonment on the
robbery charges and a concurrent five to ten years’ imprisonment
for conspiracy. Appellant’s aggregate sentence was six to fifteen
-3-
J-S27006-20
years’ imprisonment. Appellant timely filed a direct appeal to this
Court. The trial court directed Appellant to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. Appellant complied,
challenging, inter alia, the trial court’s failure to decide his Rule
600 motions. In response, the trial court issued a Pa.R.A.P.
1925(a) opinion, concluding that Appellant’s Rule 600 motions
were without merit. On appeal, Appellant did not raise the Rule
600 issue. Indeed, he argued only that the trial court erred in
failing to allow him to pick a new jury because the co-defendant
Mitchell’s guilty plea prejudiced the jury. We affirmed his
judgment of sentence on October 6, 2014. Our Supreme Court
denied Appellant’s petition for allowance of appeal on March 18,
2015.
On February 25, 2016, Appellant pro se filed the instant
PCRA petition. The PCRA court appointed counsel, who, on
December 29, 2016, filed an amended petition, claiming that
Appellant’s trial counsel was ineffective in not securing a decision
on his Rule 600 motions. On April 20, 2017, following a
Pa.R.Crim.P. 907 notice, the PCRA court denied Appellant relief for
want of merit. Appellant timely appealed to this Court.
Commonwealth v. Wagner, 185 A.3d 1137, 1547 EDA 2017 (Pa. Super.
filed February 22, 2018) (unpublished memorandum at 2-3).
On appeal, this Court vacated the PCRA court’s order and remanded for
a hearing to determine the merits of Appellant’s Pa.R.Crim.P. 600 argument.
Wagner, 1547 EDA 2017 (unpublished memorandum at 6). Following
remand, the PCRA court held a hearing on May 11, 2018, and filed its Findings
of Fact and Conclusions of Law on May 24, 2018, once again dismissing
Appellant’s PCRA petition. Appellant filed an appeal from the PCRA court’s
order, and the appeal was quashed by this Court on March 7, 2019.
Commonwealth v. Wagner, 215 A.3d 626, 1796 EDA 2018 (Pa. Super. filed
-4-
J-S27006-20
March 7, 2019). Appellant’s appellate rights were reinstated nunc pro tunc
via an October 3, 2019 order. The instant appeal followed.
Appellant presents the following question for our review:
Whether the [c]ourt erred when it dismissed Appellant’s Petition
under the Post Conviction Relief Act where trial counsel was
ineffective for failing to procure a ruling on the Motion to Dismiss
where there had been a violation of the Appellant’s right to a
speedy trial under Rule 600.[2]
Appellant’s Brief at 6. In support of his argument, Appellant does not
challenge the majority of the court’s designations of time excusable or
excludable, but specifically argues that the PCRA court erred when it found
____________________________________________
2 The relevant portions of the version of Pa.R.Crim.P. 600 in effect when
Appellant filed his Rule 600(G) motion are set forth below:
(G) For defendants on bail after the expiration of 365 days, at any
time before trial, the defendant or the defendant’s attorney may
apply to the court for an order dismissing the charges with
prejudice on the ground that this rule has been violated. A copy
of such motion shall be served upon the attorney for the
Commonwealth, who shall also have the right to be heard thereon.
If the court, upon hearing, shall determine that the
Commonwealth exercised due diligence and that the
circumstances occasioning the postponement were beyond the
control of the Commonwealth, the motion to dismiss shall be
denied and the case shall be listed for trial on a date certain. If,
on any successive listing of the case, the Commonwealth is not
prepared to proceed to trial on the date fixed, the court shall
determine whether the Commonwealth exercised due diligence in
attempting to be prepared to proceed to trial. If, at any time, it is
determined that the Commonwealth did not exercise due
diligence, the court shall dismiss the charges and discharge the
defendant….
Pa.R.Crim.P. 600.
-5-
J-S27006-20
that the 133 days between April 5, 2012, and August 16, 2012, were
excusable time. Appellant’s Brief at 8. Appellant avers that the PCRA court
erred because “the Commonwealth was not duly diligent because by a couple
of weeks before the trial date it had not passed the complete discovery and
had sought and was granted continuances because of it.” Id. at 13. Appellant
further argues that his trial counsel was ineffective because although counsel
filed a motion to dismiss due to a violation of Rule 600, counsel failed to
procure a ruling on the same. Id. at 14. Appellant posits that the claim has
arguable merit and “since no reasonable attorney would fail to request such a
ruling before proceeding to trial, the Appellant meets the first two prongs of
the test for ineffective assistance of counsel.” Id. Appellant then contends
that the prejudice he suffered was “obvious” because Appellant was convicted
and is now serving a term of incarceration. Id.
Our scope and standard of review from the denial of a PCRA petition are
well established:
When reviewing the propriety of the denial of a PCRA
petition, we apply the following standard and scope of review:
“[A]n appellate court reviews the PCRA court’s findings to see if
they are supported by the record and free from legal error. The
court’s scope of review is limited to the findings of the PCRA court
viewed in the light most favorable to the prevailing party.”
Commonwealth v. Fitzgerald, 979 A.2d 908, 910 (Pa. Super.
2009) (quoting Commonwealth v. Hammond, 953 A.2d 544,
556 (Pa. Super. 2008) (citation omitted)). “Because most PCRA
appeals involve questions of fact and law, we employ a mixed
standard of review. We defer to the PCRA court’s factual findings
and credibility determinations supported by the record. In
contrast, we review the PCRA court’s legal conclusions de novo.”
-6-
J-S27006-20
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa.
Super. 2015) (citations omitted).
Commonwealth v. Sarvey, 199 A.3d 436, 445-446 (Pa. Super. 2018). In
the instant case, because Appellant is seeking collateral review and attempting
to demonstrate his counsel was ineffective for failing to procure a ruling on
his Pa.R.Crim.P 600 motion, Appellant bears “both the burden of
demonstrating there was arguable merit to his motion, and he was prejudiced
by the failure of trial counsel to pursue the motion.” Commonwealth v.
Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019) (finding that ordinarily in Rule
600 context the Commonwealth bears the burden of establishing due
diligence; however, upon collateral review, Appellant bears the burden of
showing merit and prejudice).
When reviewing a claim of ineffective assistance of counsel, it is well
settled that:
[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. In
Pennsylvania, we have refined the Strickland [v. Washington,
466 U.S. 668, (1984)] performance and prejudice test into a
three-part inquiry. Thus, to prove counsel ineffective, the
petitioner 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 a
result. See [Commonwealth v. Pierce, 527 A.2d 973 (Pa.
1987)]. If a petitioner fails to prove any of these prongs, his claim
fails. Generally, counsel’s assistance is deemed constitutionally
effective if he chose a particular course of conduct that had some
reasonable basis designed to effectuate his client’s interests.
Where matters of strategy and tactics are concerned, a finding
that a chosen strategy lacked a reasonable basis is not warranted
unless it can be concluded that an alternative not chosen offered
-7-
J-S27006-20
a potential for success substantially greater than the course
actually pursued. To demonstrate prejudice, the petitioner must
show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would have
been different. A reasonable probability is a probability that is
sufficient to undermine confidence in the outcome of the
proceeding.
Sarvey, 199 A.3d at 452 (quoting Commonwealth v. Charleston, 94 A.3d
1012, 1019 (Pa. Super. 2014)).
As the PCRA court set forth in its findings of fact, there is a three-step
process to determine whether Rule 600 has been violated:
The first step is determining the mechanical run date.
[Commonwealth v. Ramos, 936 A.3d 1097, 1103 (Pa. Super.
2007)(en banc)]. The second step is determining the amount of
excludable delay (which includes any delay attributable to
defendant or his counsel) and excusable delay (which includes any
delays which occur as a result of circumstances beyond the
Commonwealth’s control and despite its due diligence).
Pa.R.Crim.P. 600(c)(3)(a); Commonwealth v. Matis, 710 A.2d
12, 16 (Pa. 1998); Commonwealth v. Dixon, 907 A.2d 468, 474
(Pa. 2006) (any delay attributable to defendant’s requests or
conduct is excludable from 365-day period in which trial must
commence); Commonwealth v. Booze, 953 A.2d 1263 (Pa.
Super. 2008). The third step is adding excludable/excusable time
to the mechanical run date to arrive at an adjusted run date.
Ramos, 936 A.2d at 1103. A Rule 600 violation occurs if trial
does not begin before the adjusted run date. Id.
Findings of Fact and Conclusions of Law, 5/24/18, at 5. The court further
noted that “while due diligence does not require punctilious care, it does
require some reasonable effort by the Commonwealth, which has the burden
of demonstrating by a preponderance of the evidence that it exercised due
diligence.” Id. (citing Commonwealth v. Sloan, 67 A.3d 1249, 1252-1253
(Pa. Super. 2013)). Finally, we note, “So long as there has been no
-8-
J-S27006-20
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
a manner consistent with society’s right to punish and deter crime.”
Commonwealth v. Brown, 875 A.2d 1128, 1133 (Pa. Super. 2005).
When addressing the 133-day period from April 5, 2012, through August
12, 2012, the PCRA court found that the Commonwealth acted with due
diligence, and the time was excusable. Findings of Fact, 5/24/18, at 8. The
PCRA court concluded
[T]he Commonwealth acted with due diligence in scheduling and
asking to continue the May 7, 2012 trial date. The Commonwealth
had asked for the earliest possible date and received it. “This
Court will find that the Commonwealth acted with due diligence if,
prior to the expiration of the [mechanical] run date, the
prosecutor indicates readiness to try the case and requests the
earliest possible trial date consistent with the municipal court’s
business.” Commonwealth v. Staten, 950 A.2d 1006 (Pa. Super.
2008) (quoting Commonwealth v. Jones, 679 A.2d 1297, 1299
(Pa. Super. 1996)). Based on the dockets and the evidence
provided at the original hearing for the 600 motion the case was
administratively relisted from that earliest possible date of April 5,
2012[,] to May 7, 2012, without notice to the Commonwealth.
Moreover, this [c]ourt finds that since [Appellant] requested
a waiver trial date on April 30, 2012, the Commonwealth’s
readiness as to the May 7, 2012 jury trial date is moot. Effectively,
[Appellant] was also not prepared to go forward on May 7, 2012[,]
since he wished to waive his right to a jury. [Appellant’s] change
in his request from jury to bench trial necessitated a change in the
court date. Further, since counsel for co-defendant Mitchell was
also unavailable for the trial date of May 7, 2012, the
Commonwealth was permitted to continue [Appellant’s] case in an
effort to keep the case properly joined for trial. Lastly, the
assigned Assistant District Attorney promptly notified the [c]ourt
of the conflict in scheduling well in advance of the trial listing.
-9-
J-S27006-20
There is also no evidence that the Commonwealth lacked
due diligence in providing discovery to trial counsel in preparation
for the May 7, 2012 trial date. PCRA counsel argues that due to
a docket entry on April 5, 2012[,] reflecting outstanding
discovery, this [c]ourt can infer a lack of diligence. However,
there is no evidence in the record to make that determination.
There are no docket entries prior to April 5, 2012[,] reflecting
incomplete discovery. Trial counsel did not testify at the
evidentiary hearing or offer argument at the time of 600(g) that
he was not timely provided with discovery. [Appellant] filed no
discovery motions. This [c]ourt also notes that trial counsel
changed on April 5, 2012, the same date discovery was listed as
outstanding. Given that trial counsel appears to have requested
discovery the same day he was permitted to enter and that there
is no assessment of what was provided to him from prior counsel,
this [c]ourt simply cannot attribute the outstanding discovery to
a lack of due diligence by the Commonwealth.
Therefore, the [c]ourt finds that the 133 days from the April
5, 2012 motions date to the August 16, 2012 waiver trial date,
encompassing the April 9, 2012[,] and May 7, 2012 trial dates, to
be excusable time and that the Commonwealth acted with due
diligence. This makes the adjusted run date on CP-51-CR-
0005678-2011[] August 21, 2013[,] and the adjusted run date on
CP-51-CR-0010755-2011 August 20, 2013. As both cases went
to trial in May of 2013, there was no violation of Rule 600.
Findings of Fact and Conclusions of Law, 5/24/18, at 7-8 (footnotes omitted).
After careful review of the record, we discern no error in the PCRA
court’s determination that the 133 days was excusable time. Indeed, as
discussed above, Appellant changed counsel on April 5, 2012, and on April 30,
2012, Appellant requested a waiver trial date. The change from jury trial to
bench trial required a change in dates, and “[e]ffectively [Appellant] was also
not prepared to go to forward on May 7, 2012[,] since he wished to waive his
right to a jury.” Findings of Fact and Conclusions of Law, 5/24/18, at 7.
Moreover, Appellant’s co-defendant was not prepared to go forward on May 7,
- 10 -
J-S27006-20
2012. The Commonwealth was not required to sever the trial for that reason.
See Commonwealth v. Kearse, 890 A.2d 388, 394-395 (Pa. Super. 2005)
(finding that the Commonwealth is not required to sever a case from a co-
defendant’s case when faced with a possible Rule 600 violation); see also
Commonwealth v. Jackson, 765 A.2d 389, 395 (Pa. Super. 2000) (finding
that co-defendant’s request for new counsel, which required a postponement
of trial was beyond the Commonwealth’s control). We also observe that this
was a procedurally complex case, involving three co-defendants and at least
two separate dockets.3
Further, as the PCRA court noted, there is no evidence in the record
allowing the court to find that the Commonwealth failed to act with due
diligence regarding the passing of discovery. Findings of Fact and Conclusions
of Law, 5/24/18, at 8. Appellant presented no discovery motions. The court
indicated that Appellant’s new counsel raised the issue of missing discovery
the same day he entered his appearance as counsel and provided no
assessment of what discovery was given to prior counsel. Id. See
Commonwealth v. Edwards, 595 A.2d 52, 53-54 (Pa. 1991) (finding that
____________________________________________
3 During the hearing on remand, counsel for the Commonwealth testified that
any delays were caused by
the complexities of the case, by the fact that there were co-
defendants, busy court schedules. I don’t think there is anything
in the record to show that the Commonwealth wasn’t duly diligent.
The Commonwealth never came to a trial date and said, This is a
trial date and we are not ready.
N.T. (Hearing), 5/11/18, at 31.
- 11 -
J-S27006-20
Commonwealth failed to exercise due diligence under Pa.R.Crim.P. 1100, the
predecessor to Rule 600, where Appellant showed that the Commonwealth
failed to provide specific requested discovery (a police report and the
appellant’s statement) prior to trial, despite the fact that testimony
established that the Commonwealth was in possession of the documents at
least two weeks to prior to the trial date). Moreover, it appears that the
Commonwealth had passed all discovery by April 30, 2012, as reflected by the
docket entry on that day, and there are no entries on the docket regarding
missing or incomplete discovery thereafter.
Appellant has failed to show that his underlying claim relating to his
Pa.R.Crim.P. 600 motion is of arguable merit; thus, Appellant has failed to
satisfy the first prong in the ineffectiveness test. Sarvey, 199 A.3d at 452.
Trial counsel will not be found ineffective for failing to litigate a claim that
would not succeed. Commonwealth v. Holloway, 739 A.2d 1039, 1044 (Pa.
1999). Given the above, the PCRA court did not err when it dismissed
Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/12/20
- 12 -