J-S61012-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT 

OF

PENNSYLVANIA

Appellee

v.

JOSE DIAZ

Appellant No. 531 EDA 2016

Appeal from the PCRA Order January 29, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0010250-2010,

CP-51-CR-0010251-2010

BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 27, 2017

Jose Diaz appeals, pro se, from the order entered in 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.

Diaz was convicted by a jury of two counts of aggravated assault and 

one count of possession of instruments of crime after he cut two individuals 

with a box cutter during an altercation stemming from an earlier fistfight. The 

trial court sentenced Diaz to an aggregate term of 51⁄2 to 12 years’ 

imprisonment, followed by 5 years of reporting probation. Diaz appealed his 

judgment of sentence, which this Court affirmed. See Commonwealth v. 

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* Retired Senior Judge assigned to the Superior Court.
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Diaz, 75 A.3d 561 (Pa. Super. 2013) (table). Diaz did not file a petition for 

allowance of appeal with the Supreme Court. 

On April 18, 2014, Diaz filed a pro se PCRA petition. The PCRA court 

appointed counsel, who reviewed the record and ultimately filed a “no-merit” 

letter pursuant to Turner/Finley.

1

 On January 29, 2016, the PCRA court 

dismissed Diaz’s petition and granted counsel leave to withdraw. This appeal 

follows, in which Diaz raises the following claims for our review:

1. Was Diaz’s right to a speedy trial under Pa.R.Crim.P. 600 

violated where the Commonwealth failed to prove due 

diligence?

2. Were Diaz’s rights under the Fifth, Sixth and Fourteenth 

Amendments to the United States Constitution and Article 1, 

Section 9 of the Pennsylvania Constitution violated due to the 

ineffectiveness of trial and appellate counsel?

Brief of Appellant, at [3]. 

Diaz asserts that his Rule 600 speedy trial rights were violated because 

the Commonwealth did not demonstrate due diligence, and that trial and 

appellate counsel were ineffective for failing to pursue the issue.2 We conclude 

that no relief is due.

____________________________________________

1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

2 Standing alone, Diaz’s Rule 600 claim is waived, as he could have raised it 

on direct appeal. See 42 Pa.C.S.A. § 9543(a)(3) (to be eligible for relief under 

PCRA, petitioner must plead and prove that allegations of error have not been 

previously litigated or waived); 42 Pa.C.S.A. § 9544(b) (issue waived if 

petitioner could have raised it, but failed to do so, at trial, on direct appeal, or 
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Our standard of review when faced with a claim of ineffective 

assistance of counsel is well settled. First, we note that counsel 

is presumed to be effective and the burden of demonstrating 

ineffectiveness rests on appellant. In order to prevail on a claim 

of ineffective assistance of counsel, a petitioner must show, by a 

preponderance of the evidence, 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. A petitioner must show (1) 

that the underlying claim has merit; (2) counsel had no 

reasonable strategic basis for his or her action or inaction; and (3) 

but for the errors or omissions of counsel, there is a reasonable 

probability that the outcome of the proceedings would have been 

different. The failure to prove any one of the three prongs results 

in the failure of petitioner’s claim.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (internal 

citations omitted).

At the time of Diaz’s trial, Rule 600 provided, in relevant part, as follows: 

Rule 600. Prompt Trial.

. . .

(A)(3) Trial in a court case in which a written complaint is filed 

against the defendant, when the defendant is at liberty on bail, 

shall commence no later than 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:

. . .

(2) any period of time for which the defendant expressly 

waives Rule 600;

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in a prior postconviction proceeding). However, because Diaz also raises the 

claim in the context of ineffectiveness of counsel in a timely first PCRA petition, 

it is cognizable under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2)(ii). 
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(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.

. . .

(G) . . . 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, at any time, it is determined that the Commonwealth did not 

exercise due diligence, the court shall dismiss the charges and 

dismiss the defendant.

Pa.R.Crim.P. 600. 

Pursuant to Rule 600(A) and (C), the mechanical and adjusted run dates 

are calculated as follows:

The mechanical run date is the date by which the trial must 

commence under Rule 600. It is calculated by adding 365 days 

(the time for commencing trial under Rule 600) to the date on 

which the criminal complaint is filed. [T]he mechanical run date 

can be modified or extended by adding to the date any periods of 

time in which delay is caused by the defendant. Once the 

mechanical run date is modified accordingly, it then becomes an 

adjusted run date. If the defendant’s trial commences prior to the 

adjusted run date, we need go no further.

If, however, the defendant’s trial takes place outside of the 

adjusted run date, we must determine, pursuant to Rule 600(G), 

whether the delay occurred despite the Commonwealth's due 

diligence. To this end, we have fashioned the “excusable delay” 

doctrine. Excusable delay is a legal construct that takes into 

account delays which occur as a result of circumstances beyond 

the Commonwealth’s control and despite its due diligence. Our 

Supreme Court has made clear that the Commonwealth must do 

everything reasonable within its power to guarantee that a trial 
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begins on time. Moreover, the Commonwealth bears the burden 

of proving that its efforts were reasonable and diligent. 

Due diligence is a fact-specific concept that must be determined 

on a case-by-case basis. Due diligence does not require perfect 

vigilance and punctilious care, but rather a showing by the 

Commonwealth that a reasonable effort has been put forth. Due 

diligence includes, among other things, listing a case for trial prior 

to the run date, preparedness for trial within the run date, and 

keeping adequate records to ensure compliance with Rule 600. 

A period of delay that is excusable pursuant to Rule 600(G) results 

in an extension to the adjusted run date.

Commonwealth v. Ramos, 936 A.2d 1097, 1102–03 (Pa. Super. 2007) (en 

banc) (internal citations, quotation marks, and brackets omitted). “It is wellsettled that the Commonwealth cannot control the schedule of the trial courts 

and that therefore judicial delay can support the grant of an extension of the 

Rule 600 rundate.” Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa. 

Super. 2007) (citation and quotation marks omitted).

Here, Diaz was arrested on July 2, 2010 and the Commonwealth filed 

its complaint on July 3, 2010. Thus, the mechanical run date was July 5, 

2011.3 Trial commenced on November 29, 2011, 147 days past the 

mechanical run date. However, the court found significant time to be either 

excusable or excludable. First, the court properly deemed the 51-day period 

between October 25, 2010 and December 10, 2010 excusable, as the delay 

was attributable to administrative relisting for implementation of the 

Philadelphia criminal court system’s new Zone Court protocol. 

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3 The actual mechanical run date, July 2, 2011, was a Saturday. The following 

Monday was the July 4th holiday. Thus, the first business day on which trial 

could have commenced was July 5, 2011.
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Commonwealth v. Armstrong, 74 A.3d 228, 237 (Pa. Super. 2013) (delay 

attributable to reorganization of Philadelphia criminal court system by 

geographical zone excusable). This results in an adjusted run date of August 

25, 2011. 

In addition, the court found three continuances totaling 218 days to be

either excludable or excusable. These periods of delay were between April 25 

and October 17, 2011 (175 days), October 17 to October 27, 2011 (10 days) 

and October 27 to November 28, 2011 (32 days). Diaz takes issue with the 

delay resulting from the defense continuance granted on April 25, 2011. 

Although his argument is less than clear, he appears to challenge counsel’s 

failure to investigate the lack of an “earliest possible date” notation in the 

quarter sessions file. This claim has no merit. 

The following exchange took place during the Rule 600 motion hearing:

THE COURT: This case was the back[-]up trial for April 25th, the 

Walker and Bruce cases and they had three cases here. . . . That 

was a busy week. We knew that on April 21st that it was an 

advanced request given the PD’s schedule. The PD’s office was 

going to be on trial possibly with Garrett or Rivera.

The Court was going to be on trial on the Jones case and then 

following that, I was in chambers. Then it was re-rolled with 

Garrett and so were backed it up [sic] with Mr. Houston.

[A.D.A. BEN] BAER: So that bumped [the Diaz trial] up to the 4th

of July.

[A.P.D. MARNI] SNYDER: It looks like [Diaz] got a date right 

away, October 17th, Your Honor.

THE COURT: It did. It got a priority date on October 17th. 

We were backing it up with Dia[z] for October 17th and Bogs. And 

that turned out to have be [sic] a priority.
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MS. SNYDER: Your Honor, so then it got continued to October 27 

because court was on trial.

THE COURT: Correct. It was Court on trial and we rolled it to 

October 27th. 

N.T. Rule 600 Motion Hearing, 11/29/11, at 9-11. 

Based upon the foregoing, it is apparent that, even though the quarter 

sessions file contained no “earliest possible date” notation, the trial court 

specifically recalled that Diaz’s case was given a priority date following the 

defense request for a continuance on April 25, 2011.

4

 There is no indication 

that the delay from April 25 to October 17 was in any way attributable to lack 

of due diligence on the part of the Commonwealth. Rather, this time is 

excludable as a defense request, after which the court gave Diaz’s case the 

earliest trial date consistent with its schedule, October 17. This excludable 

time brings the adjusted run date to February 16, 2012, well past the date on 

which trial actually commenced. 

Because trial commenced well within the adjusted run date, neither 

appellate nor PCRA counsel can be deemed ineffective for failing to raise a 

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4 To the extent Diaz attempts to argue that he is entitled to relief based on 

the fact that the quarter sessions file erroneously identifies his counsel as 

Louis T. Savino, Esquire, he is entitled to no relief. At the Rule 600 hearing, 

the trial court recalled that, on that same date, Attorney Savino (who never 

represented Diaz in this matter) was present in the courtroom for three other 

matters. The court found that Attorney Savino’s name was mistakenly 

entered in place of Diaz’s actual counsel, Byron Houston, Esquire. 
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meritless Rule 600 claim.5 Rivera, supra. Accordingly, the PCRA court did 

not err in denying Diaz relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/27/2017

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5 Diaz also alleges that trial counsel was ineffective. However, trial counsel 

did, in fact, argue a Rule 600 motion which, for the reasons set forth supra, 

was denied.