J-S27006-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

QASHIME WAGNER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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-CR0018162-2011), [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. 

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* 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. 
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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 
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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 codefendant 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 
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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 
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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 

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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.
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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.” 
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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 
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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 
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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.
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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-CR0005678-2011[] 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, 
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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 codefendant’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 

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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 codefendants, 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.
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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