J. S29042/19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

DANIEL GRAFT JACKSON, : No. 2716 EDA 2018

:

 Appellant :

Appeal from the PCRA Order Entered August 24, 2018,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0006149-2015

BEFORE: BENDER, P.J.E., LAZARUS, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 25, 2019

Daniel Graft Jackson appeals, pro se, from the August 24, 2018 order 

entered by the Court of Common Pleas of Philadelphia County dismissing 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 set forth the following procedural history:

On December 18, 2014, [appellant] was arrested and 

charged with burglary and related offenses. On 

August 17, 2016, [appellant] appeared before [the 

trial] court and elected to be tried by a jury. On 

August 18, 2016, the jury convicted [appellant] of 

burglary, criminal trespass, and theft by unlawful 

taking.[Footnote 1][

1] On October 21, 2016, [the 

trial] court sentenced [appellant] to ten to twenty 

years[’] imprisonment for burglary and a concurrent 

sentence of two to four years for theft by unlawful 

 

1 18 Pa.C.S.A. §§ 3502(a), 3503(a), and 3921(a), respectively.
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taking.[Footnote 2] [Appellant] did not file a 

post-sentence motion.

[Footnote 1] The jury found [appellant] 

not guilty of simple assault.[2] The 

remaining receiving stolen property[3]

charge was nolle prossed.

[Footnote 2] [Appellant’s] robbery 

conviction constituted a second strike 

carrying a mandatory ten to twenty year 

minimum sentence. The criminal trespass 

charge merged with burglary for the 

purpose of sentencing.

[Appellant] appealed an[d] on July 11, 2017, the 

Superior Court affirmed his judgment of sentence.[4] 

[Appellant] did not seek allowance of appeal with the 

Supreme Court of Pennsylvania.

On March 8, 2018, [appellant] filed a timely pro se

[PCRA] petition. On July 11, 2018, appointed PCRA 

counsel filed a no-merit letter pursuant to 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 

1988) [(en banc)]. On July 18, 201[8], after

independent review, [the PCRA] court agreed that the 

pro se petition was meritless and filed a notice of 

intent to dismiss pursuant to Pa.R.Crim.P. 907. On 

August 3, 2018, [appellant] mailed his timely 

response to [the PCRA] court’s 907 

notice.[Footnote 3]

[Footnote 3] In his response, [appellant] 

claims that dismissal is improper because 

each of his claims are meritorious, but 

raises no new issues for review.

 

2 18 Pa.C.S.A. § 2701(a).

3 18 Pa.C.S.A. § 3925(a).

4 Commonwealth v. Jackson, 175 A.3d 370 (Pa.Super. 2017) (unpublished 

memorandum).
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PCRA court order and opinion, 8/24/18 at 1-2 (extraneous capitalization 

omitted).

The PCRA court dismissed appellant’s petition on August 24, 2018. On 

September 14, 2018, appellant filed a timely notice of appeal to this court. 

The PCRA court did not order appellant to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b) and filed an opinion 

pursuant to Pa.R.A.P. 1925(a) in which the PCRA court incorporated its opinion 

filed on August 14, 2018.

On December 5, 2018, we dismissed appellant’s appeal for failing to file 

a brief with this court. Appellant filed an application to reinstate his appeal in 

which he claimed that he did not receive this court’s order setting the briefing 

schedule. We reinstated appellant’s appeal on December 28, 2018.

Appellant raises the following issue for our review:

Did the Honorable PCRA [c]ourt err when it dismissed 

the [a]ppellant’s PCRA petition, where the [a]ppellant 

did pled [sic] and prove that trial counsel was 

ineffective for failing to file a motion to dismiss all 

charges pursuant [to] Pa.R.Crim.P. 600?

Appellant’s brief at 3.

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., 
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at 305 (citations omitted). To obtain PCRA relief, 

appellant must plead and prove by a preponderance 

of the evidence: (1) his conviction or sentence 

resulted from one or more of the errors enumerated 

in 42 Pa.C.S.[A.] § 9546(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 this 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, 
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the petitioner 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. 2010).

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,

5 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 9.) 

Preliminarily, we note that the Pennsylvania Rules of Criminal Procedure 

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).

 

5

In his summary of the argument, appellant also asserts that his trial counsel 

rendered ineffective assistance for advising him not to testify in his own 

defense. (Appellant’s brief at 6.) Appellant does not identify this issue in his 

statement of questions presented, nor does he pursue this issue further in the 

argument session of his brief. To the extent appellant raises this issue for 

appellate review, we find this issue waived on appeal. See Pa.R.A.P. 2116(a) 

(stating that “[n]o question will be considered unless it is stated in the 

statement of questions involved or is fairly suggested thereby.”).
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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 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 excludable from calculations under the rule”).

Here, appellant was arrested on December 18, 2014, and the trial began 

609 days later on August 18, 2016. As noted by the PCRA court, 

On January 6, 2015, the Commonwealth requested a 

continuance for further investigation and a 

preliminary hearing was scheduled for February 3, 

2015. Trial counsel was unavailable and the matter 

was continued to March 12, 2015. On that date, the 

Commonwealth requested that the preliminary 

hearing be continued to join the matter with 

[appellant’s] co-defendant. Seven days later, on 

March 19, 2015, the Honorable Marvin Louis Williams 

held a bifurcated preliminary hearing, and continued 
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the remainder of the matter to April 20, 2015. On 

that date, trial counsel was unavailable and the matter 

was continued until June 16, 2015. On that date, the 

preliminary hearing was completed and [the] matter 

was held for court. Of the 180 days that elapsed 

between [appellant’s] arrest and the matter being 

held for court, only twenty-eight days of delay, a 

continuance from January 6, 2015 [to] February 3, 

2015, can be attributed to the Commonwealth. All 

other periods of delay were excludable due to defense 

requests or extendable based on the [c]ourt’s 

schedule.

At the first pretrial listing held on August 3, 2015, 

[appellant] requested a continuance to September 21, 

2015 for further investigation, a period of forty-four 

days that was ruled excludible. On September 21, 

2015, the Honorable Robert P. Coleman scheduled a 

waiver trial for December 10, 2015, an eighty-one day 

period of excusable delay. On [appellant’s] first trial 

date, the trial court was unavailable, and the matter 

was next listed for a scheduling conference four days 

later on December 14, 2015. On that date, the instant 

matter was joined with co-defendant Martindale’s 

case and scheduled for a jury trial on March 28, 2016, 

a [105-]day period of excusable delay. On March 28, 

2016, the co-defendant was unable to proceed. The 

Commonwealth refused to sever, and the matter was 

continued to August 15, 2016, a period of 141 days. 

. . . [J]ury selection commenced the next day.

PCRA court order and opinion, 8/24/18 at 5-6 (footnotes omitted).

Based on our review of the record, it demonstrates that the

continuances from March 19, 2015 until April 20, 2015; September 21, 2015 

until December 10, 2015; December 10, 2015 until December 14, 2015; and 

December 14, 2015 until March 28, 2016, totaling 221 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 
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that appellant requested three continuances totaling 143 days, which are 

likewise excludable for Rule 600 purposes. After accounting for excludable 

time under Rule 600 attributable to either the trial court or appellant, the 

record reflects that appellant was brought to trial 245 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 

ineffectiveness claim fails.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/25/19