J. S33014/14 

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA : 

: 

IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

v. : 

: 

JONATHAN SANTIAGO, : No. 1598 EDA 2013 

: 

 Appellant : 

Appeal from the PCRA Order, May 8, 2013, 

in the Court of Common Pleas of Philadelphia County 

Criminal Division at No. CP-51-CR-0505311-2005 

BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STABILE, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED SEPTEMBER 19, 2014 

 Appellant appeals from the denial of his petition filed pursuant to the 

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.. Finding no error, we 

affirm. 

 Appellant was arrested on April 27, 2005, following an incident on 

Lycoming Street in Philadelphia in which appellant shot and killed a 

compatriot while attempting to shoot another individual. The trial court 

accurately summarized the procedural history: 

 On April 27, 2005, defendant, Johnathan [sic] 

Santiago, was arrested and charged with murder, 

generally, possession of instruments of crime, 

carrying a firearm on a public street, and carrying a 

firearm without a license. Defendant was tried 

before this Court, sitting without a jury, on June 21, 

2006, and convicted of murder of the third degree, 

possession of instruments of crime, carrying a 

firearm without a license, and carrying a firearm on a 
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public street. Subsequent thereto, defendant 

received concurrent sentences of incarceration of ten 

to twenty years, two-and-a-half to five years, 

three-and-a-half to seven years, and no further 

punishment, respectively on the above four 

convictions. 

 Following the imposition of the sentence, 

defendant’s attorney filed an untimely post-sentence 

motion, which was never ruled upon. No appeal was 

filed. However, defendant filed a pro se petition 

under the Post-Conviction Relief Act, 42 Pa.C.S. 

§ 9541 et seq. (PCRA), after which, defendant was 

granted the right to file a notice of appeal nunc pro 

tunc. Subsequently, defendant filed a notice of 

appeal as well as a requested 1925(b) statement. 

Said appeal was discontinued on November 10, 

2011. 

 On January 26, 2012, defendant filed a timely 

pro se PCRA petition. Counsel was appointed to 

represent defendant and on November 6, 2012, 

counsel filed a no-merit letter. Subsequent thereto, 

after defendant was sent a Pa.R.Crim.P. 907 notice, 

to which he filed a response, this Court dismissed 

defendant’s PCRA petition without a hearing and 

permitted PCRA counsel to withdraw. Defendant 

thereafter filed a timely notice of appeal as well as a 

requested 1925(b) statement. 

Trial court opinion, 10/1/13 at 1-2.

 Appellant raises two issues on appeal: 

WHETHER THE PCRA COURT ERRED AS A MATTER 

OF LAW AND/OR ABUSED ITS DISCRETION IN 

DENYING AND/OR OTHERWISE DISMISSING 

WITHOUT A HEARING APPELLANT’S CLAIM THAT 

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO 

MOVE FOR DISMISSAL OF THE CHARGES AGAINST 

APPELLANT BASED UPON VIOLATION OF 

PA.R_CRIM.P. 600? 
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WHETHER THE PCRA COURT ERRED AS A MATTER 

OF LAW AND/OR ABUSED ITS DISCRETION IN 

DENYING AND/OR OTHERWISE DISMISSING 

WITHOUT A HEARING APPELLANT’S CLAIM THAT 

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO 

FILE A TIMELY POST-SENTENCE MOTION? 

Appellant’s brief at 4.

 Our standard of review for an order denying post-conviction relief is 

whether the record supports the PCRA court’s determination, and whether 

the PCRA court’s determination is free of legal error. Commonwealth v. 

Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings 

will not be disturbed unless there is no support for the findings in the 

certified record. Id.

Moreover, as appellant’s issues on appeal raise ineffective assistance 

of counsel, we also note that appellant is required to make the following 

showing in order to succeed with such a claim: (1) that the underlying claim 

is of arguable merit; (2) that counsel had no reasonable strategic basis for 

his or her action or inaction; and (3) that, but for the errors and omissions 

of counsel, there is a reasonable probability that the outcome of the 

proceedings would have been different. Commonwealth v. Rivera, 10 

A.3d 1276, 1279 (Pa.Super. 2010). The failure to satisfy any prong of this 

test will cause the entire claim to fail. Commonwealth v. Daniels, 947 

A.2d 795, 798 (Pa.Super. 2008). Finally, counsel is presumed to be 

effective, and appellant has the burden of proving otherwise. 

Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super. 2003). 
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We first address appellant’s general contention that the PCRA court 

erred in not conducting an evidentiary hearing. 

[T]he right to an evidentiary hearing on a 

post-conviction petition is not absolute. 

Commonwealth v. Jordan, 772 A.2d 1011, 1014 

(Pa.Super.2001). It is within the PCRA court’s 

discretion to decline to hold a hearing if the 

petitioner’s claim is patently frivolous and has no 

support either in the record or other evidence. Id. 

It is the responsibility of the reviewing court on 

appeal to examine each issue raised in the PCRA 

petition in light of the record certified before it in 

order to determine if the PCRA court erred in its 

determination that there were no genuine issues of 

material fact in controversy and in denying relief 

without conducting an evidentiary hearing. 

Commonwealth v. Hardcastle, 549 Pa. 450, 454, 

701 A.2d 541, 542-543 (1997). 

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012), quoting 

Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa.Super. 2007), 

appeal denied, 940 A.2d 365 (Pa. 2007). 

Appellant’s issues pertain to instances of ineffective assistance of 

counsel. Where the issue concerns ineffective assistance of counsel, an 

evidentiary hearing is usually necessary only to determine if counsel’s failure 

to act was an oversight or some kind of tactical decision. The other two 

prongs of the test for ineffectiveness, underlying merit of the claim and 

prejudice to the defendant, can usually be determined from the record. 

Because an appellant must prove all three prongs, the failure to prove a 

single prong results in a finding of no ineffectiveness. Thus, an evidentiary 

hearing need not be held where it can be determined from the record that 
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the underlying claim has no merit or that there has been no prejudice to 

appellant. That is the situation here and we find no error in failing to hold 

an additional evidentiary hearing. 

 Appellant first asserts that counsel was ineffective in failing to file a 

motion to dismiss charges pursuant to the speedy trial rule, Pa.R.Crim.P., 

Rule 600, 42 Pa.C.S.A. Rule 600 provides, in pertinent part: 

Rule 600. Prompt Trial 

(A) Commencement of Trial; Time for Trial 

(1) For the purpose of this rule, trial 

shall be deemed to commence on 

the date the trial judge calls the 

case to trial, or the defendant 

tenders a plea of guilty or nolo 

contendere. 

(2) Trial shall commence within the 

following time periods. 

(a) Trial in a court case in 

which a written 

complaint is filed 

against the defendant 

shall commence within 

365 days from the date 

on which the complaint 

is filed. 

(C) In determining the period for commencement 

of trial, there shall be excluded therefrom: 

(1) the period of time between the 

filing of the written complaint and 

the defendant’s arrest, provided 

that the defendant could not be 

apprehended because his or her 

whereabouts were unknown and 
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could not be determined by due 

diligence; 

(2) any period of time for which the 

defendant expressly waives Rule 

600;

(3) such period of delay at any stage 

of the proceedings as results from: 

(a) the unavailability of the 

defendant or the 

defendant’s attorney; 

(b) any continuance 

granted at the request 

of the defendant or the 

defendant’s attorney.

Rule 600 (A) and (C), in pertinent part. 

 Appellant was arrested on April 27, 2005, and was not brought to trial 

until June 21, 2006, facially in violation of the mechanical Rule 600 run date 

of April 27, 2006. An examination of the record, however, in particular the 

quarter-panel continuance sheets used by the Philadelphia Court of Common 

Pleas, reveals a number of defense requests for continuances. Specifically, 

we note defense requested continuances from 7/5/05 to 7/27/05 (22 days), 

7/29/05 to 8/30/05 (32 days), 9/13/05 to 9/28/05 (15 days), 9/28/05 to 

10/27/05 (29 days), and 10/26/05 to 11/01/05 (5 days1

). Pursuant to 

Rule 600(C)(3)(a), these continuances, totaling 103 days, must be excluded 

from the elapsed time. This results in an adjusted Rule 600 run date of 

 

1

 October 26 and 27, 2005, were already counted under the preceding 

continuance. 
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August 8, 2006. Thus, appellant was brought to trial within the Rule 600 

period, and trial counsel had no reason for filing a Rule 600 motion. There is 

no ineffectiveness on this basis. 

 Appellant also claims that trial counsel was ineffective in failing to file 

a timely post-sentence motion requesting reconsideration of his sentence. 

We may quickly dispose of this argument on the basis that appellant cannot 

satisfy the prejudice prong of the test for ineffectiveness: 

No relief is due on this claim because this Court 

would have summarily dismissed a motion for 

reconsideration of sentence had one been filed. The 

sentence imposed on defendant was the result of 

careful consideration of the facts of the case, the 

contents of the pre-sentence reports, and 

defendant’s evidence and personal circumstances. 

Consequently, there was nothing either counsel or 

defendant could have said to convince this Court to 

impose a lesser sentence than the one imposed on 

him, which, it is noted was within the standard range 

of the applicable Sentencing Guidelines. 

Trial court opinion, 10/1/13 at 8-9.

Clearly, counsel’s inaction did not prejudice appellant because the trial 

court would not have granted a motion to reconsider sentence. There is no 

ineffectiveness here. 

 Accordingly, having found no merit in any issue on appeal, we will 

affirm the order below. 

 Order affirmed. 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/19/2014