J-S35027-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

KEITH DAVIS

Appellant No. 3725 EDA 2017

Appeal from the PCRA Order entered October 20, 2017

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-0007071-2009

BEFORE: OLSON, J., STABILE, J., and STRASSBURGER, J.* 

MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 26, 2019

Appellant, Keith Davis, appeals from the October 20, 2017 order entered 

in the Court of Common Pleas of Philadelphia County denying his petition for 

collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 

Pa.C.S.A. §§ 9541-9546. The PCRA court rejected Appellant’s assertions of 

trial counsel ineffectiveness relating to violations of the Interstate Agreement 

for Detainers Act (“IADA”), 42 Pa.C.S.A. § 9101.1 Finding no error in the PCRA 

court’s ruling, we affirm. 

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* Retired Senior Judge assigned to the Superior Court.

1 As our Supreme Court has explained,

The IAD is an agreement between 48 states, the District of 

Columbia, Puerto Rico, and the Virgin Islands that establishes 
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In March 2010, a jury found Appellant guilty of attempted murder, 

aggravated assault, and other charges (collectively, “state charges”) 

stemming from a September 2006 shooting in Philadelphia. The trial court 

sentenced Appellant to an aggregate term of 25 to 50 years in prison. For 

reasons not important to this appeal, as of early 2009, prior to Appellant’s 

trial in Philadelphia County, Appellant was a federal prisoner housed at FCICumberland, in Cumberland, Maryland. In February 2009, he requested 

disposition of the pending state charges against him in Pennsylvania pursuant 

to Article III of the IADA. On or about April 2, 2009, he was transported by 

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procedures for the transfer of prisoners incarcerated in one 

jurisdiction to the temporary custody of another jurisdiction which 

has lodged a detainer against them. Unlike a request for 

extradition, which is a request that the state in which the prisoner 

is incarcerated transfer custody to the requesting state, a detainer 

is merely a means of informing the custodial jurisdiction that there 

are outstanding charges pending in another jurisdiction and a 

request to hold the prisoner for the requesting state or notify the 

requesting state of the prisoner’s imminent release.

Article IV of the IAD provides the procedure by which the 

prosecutor in the requesting state initiates the transfer[.]

Commonwealth v. Williams, 896 A.2d 523, 536 n.5 (Pa. 2006). Whereas 

Article IV provides the procedure for a transfer initiated by the prosecutor in 

the requesting or “receiving” state, Article III provides the procedure for a 

transfer initiated by the defendant while incarcerated in the “sending” state. 

In the instant case, Appellant initiated the process. As such, Article III applies 

to his case. 
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two Pennsylvania transport officers to Philadelphia County and was processed 

on the state charges. 

According to testimony presented at an evidentiary PCRA hearing on 

May 19, 2017, the transport officers prepared to return Appellant to FCICumberland following Appellant’s April 2009 arraignment in Philadelphia 

County. As the Commonwealth explains, and as is borne out by testimony 

from Appellant’s evidentiary hearings,

[w]hile they were in transit [from Philadelphia to Maryland], Ellen 

Roberts—an examiner in FCI Cumberland’s records office—

received a phone call informing her that [Appellant] should not be 

accepted back into federal custody. When [Appellant] arrived with 

detectives at the receiving and discharge wing of FCI Cumberland 

shortly after noon, Roberts informed them that [Appellant] 

needed to be taken back to Philadelphia, and advised them to 

contact their office (N.T. 5/19/2017, 29-33).

While the detectives sorted out [Appellant’s] status, FCI 

Cumberland placed him in a holding cell in the receiving and 

discharge wing for approximately thirty-six minutes. [Appellant] 

was never searched, screened for safety concerns, screened for 

medical purposes, photographed, or had his fingerprint taken—all 

of which would have been required if he were readmitted to FCI 

Cumberland’s general population. Instead, a Philadelphia 

detective stayed with [Appellant] during the thirty-six minutes he 

waited before they transported him back to Philadelphia (N.T. 

5/19/2017, 43-56, 60; 5/23/2017, 109-11). 

Commonwealth Brief at 3.

As stated previously, Appellant proceeded to trial on the state charges 

in Philadelphia and, following a guilty verdict, was sentenced in March 2010 

to an aggregate term of 25 to 50 years in prison. On direct appeal to this 

Court, Appellant’s counsel filed an Anders brief presenting one potential issue 
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for this Court’s review: “whether the evidence was sufficient to establish the 

elements of the crimes.” Commonwealth v. Davis, 1299 EDA 2010, 

unpublished memorandum at 3 (Pa. Super. filed April 21, 2011) (quoting 

Appellant’s Anders Brief at 7). This Court granted counsel’s application to 

withdraw and affirmed Appellant’s judgment of sentence. Our Supreme Court 

denied his petition for allowance of appeal. 

Appellant filed a timely PCRA petition on September 16, 2011. Counsel 

was subsequently permitted to withdraw and new counsel filed amended 

petitions, concluding with a fourth amended petition filed on January 18, 2017. 

In that iteration, Appellant asserted he was transported from FCI-Cumberland 

to Philadelphia where he was arraigned on the state charges on April 2, 2009; 

he “was returned to FCI Cumberland as the county prison system was 

unwilling to house him;” and “[a]fter being returned to federal custody and 

being signed in at FCI Cumberland, the warrant officers returned to the federal 

facility, having arranged for [Appellant] to be housed . . . in Philadelphia and 

transported him back to Philadelphia[.]” Fourth Amended PCRA Petition, 

1/18/17, at ¶ 8 (a)-(e). Appellant contended his trial counsel was ineffective 

for “failing to request that the charges in this matter be dismissed with 

prejudice pursuant to Article IV(e) and/or Article III [of the IADA].” Id. at 
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¶ 8(g).2 Appellant requested an evidentiary hearing to “establish the timeline 

relating to [Appellant’s] removal from the FCI Cumberland, his incarceration 

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2 For purposes of this appeal, the relevant provision of Article III and Article 

IV(e) provide as follows:

Article III - (a) Whenever a person has entered upon a term of 

imprisonment in a penal or correctional institution of a party state, 

and whenever during the continuance of the term of imprisonment 

there is pending in any other party state any untried indictment, 

information or complaint on the basis of which a detainer has been 

lodged against the prisoner, he shall be brought to trial within 

180 days after he shall have caused to be delivered to the 

prosecuting officer and the appropriate court of the prosecuting 

officer’s jurisdiction written notice of the place of his imprisonment 

and his request for a final disposition to be made of the indictment, 

information or complaint: Provided, That for good cause shown 

in open court, the prisoner or his counsel being present, the court 

having jurisdiction of the matter may grant any necessary or 

reasonable continuance. 

(d) . . . If trial is not had on any indictment, information or 

complaint contemplated hereby prior to the return of the prisoner 

to the original place of imprisonment, such indictment, 

information or complaint shall not be of any further force or effect, 

and the court shall enter an order dismissing the same with 

prejudice.

Article IV - (e) If trial is not had on any indictment, information 

or complaint contemplated hereby prior to the prisoner’s being 

returned to the original place of imprisonment pursuant to Article 

V(e) hereof, such indictment, information or complaint shall not 

be of any further force or effect, and the court shall enter an order 

dismissing the same with prejudice.
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and arraignment in Philadelphia, his return to FCI Cumberland and his return 

to Philadelphia.” Id. at ¶ 9(a). 

In response to Appellant’s fourth amended petition, the PCRA court held 

a series of evidentiary hearings, which produced, inter alia, the testimony 

summarized above in the Commonwealth’s brief regarding Appellant’s travels 

in relation to the IAD Article III process initiated at Appellant’s request. The 

Commonwealth subsequently filed a motion to dismiss the petition. Following 

oral argument and submission of briefs, the PCRA court entered an order on 

October 20, 2017, dismissing the petition. This timely appeal followed.3 Both 

Appellant and the PCRA court complied with Pa.R.A.P. 1925.

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42 Pa.C.S.A. §9101, Art. III(a) (emphasis added), (d) and Art. IV(e). Also 

pertinent are Article V(h) and Article VI(a), which provide in relevant part as 

follows:

Article V - (h) From the time that a party state receives custody 

of a prisoner pursuant to this agreement until such prisoner is 

returned to the territory and custody of the sending state, the 

state in which the one or more untried indictments, informations 

or complaints are pending or in which trial is being held shall be 

responsible for the prisoner and shall also pay all costs of 

transporting, caring for, keeping and returning the prisoner. 

Article VI - (a) In determining the duration and expiration dates 

of the time periods provided in Articles III and IV of this 

agreement, the running of said time periods shall be tolled 

whenever and for as long as the prisoner is unable to stand trial, 

as determined by the court having jurisdiction of the matter.

42 Pa.C.S.A. § 9101, Art. V(h) (emphasis added), Art. VI(a).

3 Appellant filed this appeal pro se. The PCRA court subsequently granted 

PCRA counsel’s request to withdraw. The court then appointed David W. 
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Although Appellant filed a pro se Rule 1925(b) statement, we remanded 

for the filing of a counseled Rule 1925(b) statement upon request of appellate 

counsel. We further directed the PCRA court to file a supplemental Rule 

1925(a) opinion. Order, 4/23/18, at 1. Following remand, Appellant filed a 

Rule 1925(b) statement alleging the following errors complained of on appeal:

The PCRA Court erred when it denied Appellant Keith Davis’ 

Amended Post-Conviction Relief Act Petition, as the 

Commonwealth failed to bring Mr. Davis to trial within “180 days 

after he shall have caused to be delivered to the prosecuting 

officer and the appropriate court of the prosecuting officer’s 

jurisdiction written notice of the place of his imprisonment and his

request for a final disposition to be made of the indictment, 

information or complaint” in accordance with Article 3 of the 

Interstate Agreement on Detainers Act or “within 120 days of the 

arrival of the prisoner in the receiving state, but for good cause 

shown in open court, the prisoner or his counsel being present, 

the court having jurisdiction of the matter may grant any 

necessary or reasonable continuance” in accordance with Article 4 

of the Interstate Agreement on Detainers Act and trial counsel 

Daniel Santucci, Esq., was ineffective for failing to file a Motion to 

Dismiss all charges in this matter, pursuant to this violation of the 

Interstate Agreement on Detainers Act. (See 42 Pa.C.S.A. 

§ 9101, entitled, “Agreement on Detainers”).

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Barrish, Esquire, to represent Appellant. Attorney Barrish entered his 

appearance on February 23, 2018 and filed a Rule 1925(b) statement on 

Appellant’s behalf on May 14, 2018. Attorney Barrish has filed a petition to 

withdraw with this Court, noting that Appellant is “presently represented by 

Aaron Bell, Esq., who is [Appellant’s] counsel of choice (as he was privately 

retained).” Petition to Withdraw, 7/18/19, at ¶ 3. As Attorney Barrish 

indicates, Attorney Bell entered his appearance with this Court on December 

19, 2018 and filed a brief as well as a reply brief on Appellant’s behalf. Id. at 

¶ 2. In light of the circumstances, including the lack of any opposition on the 

part of Appellant, we grant Attorney Barrish’s petition to withdraw. 
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Appellant’s Rule 1925(b) Statement, 5/14/18, at 1-2. As reflected in the Rule 

1925(b) statement, Appellant’s claim of error relates to the number of days 

that elapsed before Appellant was brought to trial on his state charges and 

asserts trial counsel ineffectiveness for failing to seek dismissal of the state 

charges based on the violation of the IADA’s time requirements. The PCRA 

court addressed that contention in its Rule 1925(a) Supplemental Opinion filed 

on June 13, 2018. 

In its opinion, the PCRA court explained that the provisions of Article III 

of the IADA apply to this case because Appellant sought disposition of the 

matters pending in Pennsylvania. The court determined that Article III(a)’s 

180-day period began on March 4, 2009, the date on which the 

Commonwealth received the request for final disposition from Appellant. 

Therefore, the mechanical run date was August 31, 2009. Supplemental 

Opinion, 6/13/18, at 8. Further, Article VI(a) provides that the running of the 

time period in Article III “shall be tolled as long as the prisoner is unable to 

stand trial, as determined by the court having jurisdiction of the 

matter.” Id. (quoting 42 Pa.C.S.A. § 9101, Art. VI(a) (emphasis added). 

Moreover, as the PCRA court recognized, our Supreme Court has determined 

that “delay occasioned by the defendant is excludable[.]” Commonwealth 

v. Montione, 720 A.2d 738, 741 (Pa. 1998). 

The PCRA court reviewed the various “‘reasonable continuances’ 

stemming from the unavailability of defense counsel and the lack of the jury 
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panel,” and determined they “constituted ‘good cause shown’ for purpose[s]

of the IADA.” Supplemental Opinion, 6/13/18, at 8-10. Therefore, even 

though the trial did not begin until March 23, 2010, the timeliness requirement 

of Article III was not violated. Id. at 10. “In light of the foregoing, trial 

counsel was not ineffective for failure to file a frivolous motion to dismiss 

charges against [Appellant], nor did this court commit error by dismissing the 

instant meritless PCRA petition.” Id. at 11. 

Although Appellant’s Rule 1925(b) statement preserved only the issue 

of timeliness with respect to bringing Appellant to trial on the state charges, 

Appellant is now asking us to consider two issues in this appeal as follows:

I. Was trial counsel ineffective for failing to file a motion to 

dismiss when [Appellant] was not brought to trial within 180 

days, as required by Article III of the [IAD], prior to being 

returned to his original place of confinement?

II. According to Article III of the Interstate Agreement on 

Detainers, is the trial court’s judgment of sentence illegal 

because the charges against [Appellant] are void and 

without legal “force of effect” based upon the 

Commonwealth’s return of him to his original place of 

confinement prior to trial?

Appellant’s Brief at 2. Appellant indicates that the first of his issues was 

preserved in his Rule 1925(b) statement while acknowledging he is raising the 

second issue for the first time in this appeal, contending it involves legality of 

sentence, which cannot be waived. Id. at 2, 14 n.3.

On its face, Appellant’s first issue may not appear to represent a drastic 

departure from the issue preserved in his Rule 1925(b) statement. However, 
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a review of Appellant’s argument proves otherwise. In his brief, Appellant 

focuses on the failure to bring Appellant to trial “within 180 days prior to 

being returned to FCI-Cumberland.” Appellant’s Brief at 8 (emphasis 

added). Specifically, Appellant argues that he was returned to FCICumberland in April 2009 when the transporters mistakenly embarked on a 

return trip to FCI-Cumberland, only to be told upon arrival that they were to 

take Appellant back to Pennsylvania. He asserts that the provisions of Article 

III(d) require that the trial court enter an order dismissing the state charges. 

Therefore, “[t]he Commonwealth forfeited its ability to prosecute [Appellant] 

when it returned him to FCI-Cumberland without first bring[ing] him to trial 

within 180 days.” Id. at 9 (citing 42 Pa.C.S.A. § 9101, Art. III(a)(d)). 

It is well settled that an issue not preserved in an appellant’s Rule 

1925(b) statement is waived for appeal. See, e.g., Commonwealth v. 

Castillo, 888 A.2d 775, 780 (Pa. 2005) (reaffirming the bright-line rule first 

enunciated in Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998), that 

“issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed waived.”). 

Because Appellant did not preserve any issue relating to his “return to FCICumberland,” the issue is waived.4

 

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4 Even if not waived, Appellant’s argument would fail. The record supports 

the conclusion that Appellant was not “returned” to Maryland. Rather, as 

reflected above, he remained under the supervision of the Pennsylvania 

detectives who transported him and was never processed back into FCICumberland. See, e.g., Commonwealth v. Merlo, 364 A.2d 391 (Pa. Super. 
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With regard to the issue preserved in Appellant’s 1925(b) statement, 

i.e., whether the PCRA court erred in failing to find trial counsel ineffective 

with respect to the 180-day requirement of Article III(a), we note that our 

standard of review from the denial of PCRA relief is well settled. “[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) (citation omitted). With regard to the 

scope of our review, we are “limited to the findings of the PCRA court and the 

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1976). In Merlo—although in the context of Article IV(e), this Court explained 

that “[r]egardless of the time limitation in Article IV(c), Article IV(e) requires 

that a prisoner not be returned to the custody of the sending state 

untried; if he is the indictments, informations, or complaints must be 

dismissed with prejudice.” Id. at 396 (emphasis added). Here, Appellant was 

not “returned” to Maryland before trial. Moreover, Appellant’s situation is not 

analogous to that addressed in Alabama v. Bozeman, 533 U.S. 146 (2001), 

another Article IV case. As the United States Supreme Court explained, the 

IADA “basically (1) gives a prisoner the right to demand a trial within 180 

days [under Art. III]; and (2) gives a State the right to obtain a prisoner for 

purposes of trial, in which case the State (a) must try the prisoner within 120 

days of his arrival, and (b) must not return the prisoner to his ‘original place 

of imprisonment’ prior to that trial [under Art IV].” Id. at 151. Bozeman was 

returned to a Florida federal prison after being arraigned on state charges in 

Alabama, obtaining counsel, and spending one night in an Alabama prison. 

Clearly, Bozeman was returned to his “original place of imprisonment” prior 

to the trial in state court. By contrast, Appellant was not returned to his 

“original place of imprisonment” in FCI-Cumberland. Rather, for a thirty-six 

minute period, he was detained in the receiving and discharge wing at the 

facility while remaining under the supervision of Pennsylvania authorities. No 

steps were taken that would have been necessary for him to be received back 

into that facility. 
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evidence of record, viewed in the light most favorable to the prevailing party 

at the trial level.” Id. 

Again, Appellant contends the PCRA court erred by failing to find trial 

counsel ineffective for failing to seek dismissal of the state charges because 

“the Commonwealth did not timely dispose of his charges within the 180 days 

prior to returning him to his original place of confinement.” Appellant’s Brief

at 7. However, as the PCRA court explained, Appellant was brought to trial in 

accordance with Article III(a)’s time requirements. More importantly, 

Appellant did not even address the timeliness argument in his brief, focusing 

instead on the ramifications of the “return” to FCI-Cumberland, an issue that 

he waived for failure to preserve it in his Rule 1925(b) statement. Because 

he has not developed an argument regarding timeliness in his brief, he has 

abandoned the issue. Commonwealth v. Bullock, 948 A.2d 818, 823 (Pa. 

Super. 2008). Therefore, Appellant is not entitled to relief on his first issue.

Appellant also asks us to consider his second issue, which he frames as 

a “legality of sentence” issue. He argues that, in light of Article III of the 

IADA, the trial court’s judgment of sentence was illegal because the 

Commonwealth returned Appellant to FCI-Cumberland prior to his trial on 

state charges. By doing so, he contends, “[t]he Commonwealth deprived itself 

of all statutory authority to bring [Appellant] to trial and impose any judgment 

of sentence on the pending charges.” Appellant’s Brief at 16. While we are 

cognizant that a challenge to the legality of a sentence cannot be waived and 
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need not be preserved in order to raise it on appeal, we agree with the 

Commonwealth that Appellant’s issue is not raising a legality of sentence issue 

or an issue that is even cognizable under the PCRA.

As the Commonwealth asserts, a claim is cognizable under the PCRA if 

“(1) [the petitioner] has been convicted of a crime under the laws of this 

Commonwealth; (2) he is serving a sentence of imprisonment, probation or 

parole for the crime; and (3) his conviction resulted from one of seven 

enumerated errors set forth in 42 Pa.C.S.A. § 9543(a)(2)[.]” Commonwealth 

Brief at 9 (quoting Commonwealth v. Descardes, 136 A.3d 493, 499 Pa. 

2016)). Those seven errors are:

(i) A violation of the Constitution of this Commonwealth or the 

Constitution or laws of the United States which, in the 

circumstances of the particular case, so undermined the truthdetermining process that no reliable adjudication of guilt or 

innocence could have taken place.

(ii) 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.

(iii) A plea of guilty unlawfully induced where the circumstances 

make it likely that the inducement caused the petitioner to plead 

guilty and the petitioner is innocent.

(iv) The improper obstruction by government officials of the 

petitioner's right of appeal where a meritorious appealable issue 

existed and was properly preserved in the trial court.

(v) Deleted.

(vi) The unavailability at the time of trial of exculpatory evidence 

that has subsequently become available and would have changed 

the outcome of the trial if it had been introduced.
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(vii) The imposition of a sentence greater than the lawful 

maximum.

(viii) A proceeding in a tribunal without jurisdiction.

42 Pa.C.S.A. § 9543(a)(2). In his brief, Appellant does not suggest that his 

conviction or sentence resulted from any of the listed errors. Clearly, 

subsections (i) through (vii) are inapplicable. To the extent Appellant might 

suggest the trial court lacked jurisdiction to try or to sentence him, Appellant 

cannot succeed. This Court has previously ruled that Article IV(e) of the IADA 

“is not a jurisdictional provision, but a personal statutory right. As such, it is 

waivable.” Commonwealth v. Mallon, 421 A.2d 234, 238 (Pa. Super. 1980) 

(citations omitted). Article III(d), which substantially parallels Article IV(e), 

provides:

(d) . . . If trial is not had on any indictment, information or 

complaint contemplated hereby prior to the return of the prisoner 

to the original place of imprisonment, such indictment, 

information or complaint shall not be of any further force or effect, 

and the court shall enter an order dismissing the same with 

prejudice.

42 Pa.C.S.A. § 9101, Art. III(d).5 Just as Article IV(e) is not a jurisdictional 

provision, Article III(e) is not a jurisdictional provision. Therefore, Appellant’s 

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5 The wording of Article IV(e) addressed by this Court in Mallon differs 

slightly, as the highlighted language illustrates:

Article IV - (e) If trial is not had on any indictment, information 

or complaint contemplated hereby prior to the prisoner’s being 

returned to the original place of imprisonment pursuant to 
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issue does not fall under Section 9543(a)(2)(viii) and there is no other 

cognizable basis available. Moreover, as the PCRA court explained in its 

supplemental opinion, Appellant was brought to trial within the required 180-

day time period when the continuances and delays occasioned by Appellant 

were calculated. See Supplemental Opinion, 6/13/18, at 8-10. Therefore, 

there was no basis for triggering the dismissal of charges under Article III(d) 

and Appellant would not be entitled to any relief, even if his “legality of 

sentence” issue were cognizable under the PCRA. 

We find the PCRA court’s findings of fact are supported by the record 

and we discern no error of law in its denial of Appellant’s petition. Therefore, 

we shall not disturb the court’s ruling. 

Petition to withdraw of David W. Barrish, Esq., granted. Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/26/19

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Article V(e) hereof, such indictment, information or complaint 

shall not be of any further force or effect, and the court shall enter 

an order dismissing the same with prejudice.

42 Pa.C.S.A. § 9101, Art. IV(e) (emphasis added).