J-S32004-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL JOHN KILLIANY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1236 MDA 2017

Appeal from the PCRA Order July 5, 2017

In the Court of Common Pleas of Lackawanna County 

Criminal Division at No(s): CP-35-CR-0001492-2013

BEFORE: PANELLA, J., NICHOLS, J., and PLATT*, J.

MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 21, 2018

Michael John Killiany appeals from the order entered in the Lackawanna 

County Court of Common Pleas, which dismissed his petition filed pursuant to 

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. 

Additionally, Donna M. DeVita, Esquire has filed a petition to withdraw from 

representation and an Anders brief.1 We affirm the order of the PCRA court 

and grant Attorney DeVita leave to withdraw. 

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* Retired Senior Judge assigned to the Superior Court. 

1 Attorney DeVita has filed a brief pursuant to Anders v. California, 386 U.S. 

738 (1967), apparently in the mistaken belief that an Anders brief is required 

when counsel seeks to withdraw on appeal following the denial of PCRA relief. 

However, the dictates of Anders apply only on direct appeal, not on collateral

review. Counsel files an Anders brief on direct appeal when she determines

the appeal is “wholly frivolous.” Id., at 744. The appropriate filing in this case 

would have been a Turner/Finley “no-merit” letter. See Commonwealth v. 

Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 
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The relevant facts and procedural history are as follows. On June 18, 

2013, Appellant was arrested and charged with arson and related offenses. 

These charges arose following a fire at his residence. Due to various delays, 

Appellant’s case did not proceed to trial until February 11, 2015. Following 

this three-day jury trial, Appellant was convicted of all of the arson-related 

offenses. Ultimately, the trial court sentenced Appellant to an aggregate term 

of 2 to 6 years’ imprisonment.2 This Court affirmed Appellant’s judgment of 

sentence. See Commonwealth v. Killaney, No. 1578 MDA 2015 (Pa. Super., 

filed July 21, 2016) (unpublished memorandum).

On November 16, 2016, Appellant filed a pro se PCRA petition. The PCRA 

court appointed counsel who later filed an amended petition. In the amended 

petition, Appellant asserted both trial and appellate counsel rendered 

ineffective assistance by failing to move for dismissal of his charges based on 

the Commonwealth’s alleged violation of Rule 600. The PCRA court scheduled 

an evidentiary hearing. 

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(Pa. Super. 1988) (en banc). Regardless, because an Anders brief provides 

greater protection to a defendant than a Turner/Finley no-merit letter, this 

Court may accept an Anders brief in lieu of a Turner/Finley letter. See 

Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004). 

2 The trial court originally sentenced Appellant to an aggregate term of 3 to 9 

years’ imprisonment. However, following the filing of post-sentence motions, 

the trial court agreed with Appellant that the arson offenses should have 

merged for sentencing purposes. Thus, the trial court reduced Appellant’s 

aggregate sentence to 2 to 6 years’ imprisonment. 
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At the hearing, Appellant testified along with trial counsel, John Petorak, 

Esquire, and appellate counsel, Robert Buttner, Esquire. Though Appellant 

could not remember specifics regarding the time between his arrest and trial, 

he testified that he did not recall having a single conversation with trial counsel 

about postponing the date of his trial. See N.T., PCRA Hearing, 5/5/17, at 15-

18. Instead, Appellant claimed he was unaware as to why there was such a 

long period between his arrest and the commencement of his trial. See id., 

at 20, 27.

Attorney Petorak testified that he represented Appellant from shortly 

after his arrest until the conclusion of his trial. See id., at 38. After Appellant’s 

arrest, trial counsel requested to move Appellant’s preliminary hearing twice, 

from June 26, 2013, to July 3, 2013, and then from July 3, 2013, to July 10, 

2013. See id., at 39-40. Following the preliminary hearing, trial counsel

requested another continuance, this time for the pretrial conference, from 

August 22, 2013, until October 31, 2013. See id., at 40-42, 50-51. Trial 

counsel asserted he requested theses continuances due to the complexity of 

the case. See id., at 41. 

After the pretrial conference, trial counsel asked the court to delay 

scheduling the case for trial because he was attempting to convince Appellant 

to either hire an independent arson investigator or enter a plea deal. See id., 

at 43-45, 52-53. Therefore, trial counsel attributed all delays between the 

pretrial conference and April 2014 to this defense strategy. See id., at 53, 

59-60. In April 2014, trial counsel claimed problems with knees left him 
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incapacitated. See id., at 48. Trial counsel believed he discussed his knee 

problems with Appellant and the delays his bilateral knee surgery would cause. 

See id. As such, trial counsel believed his knee pain, and the resulting

surgery, accounted for excludable time from approximately April 2014 until 

January of 2015. See id., at 49-51. Ultimately, trial counsel asserted that “[a] 

Rule 600 motion never entered [his] mind because [he] attributed all delays 

to [the defense].” Id., at 58. 

Prior to Attoney Buttner’s testimony, the parties stipulated that 

appellate counsel could not have raised a Rule 600 issue on appeal because 

trial counsel did not raise the issue with the trial court. See id., at 64-65. 

Appellate counsel confirmed that he did not pursue this issue on appeal 

because it had not been properly preserved, and therefore, could not be raised 

on appeal. See id., at 66-69, 71.

After the parties briefed the issues, the PCRA court entered an order 

denying Appellant PCRA relief. This timely appeal3follows. 

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3 Appellant filed a pro se appeal, but was, at the time, represented by counsel, 

Kurt T. Lynott, Esquire. Attorney Lynott, however, apparently abandoned 

Appellant, as he never withdrew nor did he file a notice of appeal. Upon 

docketing statement review, this Court remanded the matter to the lower 

court for a Grazier hearing. The court held a hearing and appointed Attorney 

DeVita. 

 Of course, hybrid representation is impermissible. But here counsel never 

filed a notice of appeal, thus Appellant’s pro se notice of appeal would not be 

subject to withdrawal or quashal. Cf. Commonwealth v. Cooper, 27 A.3d 

994 (Pa. 2011). The interests of fairness and judicial economy weigh in favor 

of deeming Appellant’s pro se appeal valid, if it is timely. 
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Prior to addressing the merits of Appellant’s requested appeal, we must 

first examine Attorney DeVita’s request to withdraw. Attorney DeVita has 

substantially complied with the mandated procedures for withdrawing as 

counsel. See Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) 

(articulating Anders requirements); Commonwealth v. Daniels, 999 A.2d 

590, 594 (Pa. Super. 2010) (providing that counsel must inform client by letter 

of rights to proceed once counsel moves to withdraw and append a copy of 

the letter to the petition). Appellant has not filed a timely response to either 

of Attorney DeVita’s filings.4 

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Appellant’s pro se appeal was filed on August 8, 2017—34 days after the 

filing of the PCRA’s court’s order. While Appellant’s appeal, on its face, appears 

to have been untimely filed four days beyond the appeal deadline, Appellant’s 

notice of appeal is dated August 1, 2017. 

 Pursuant to the prisoner mailbox rule, we consider a prisoner’s appeal filed 

the date it is placed into the care of prison authorities for mailing. See 

Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997). Despite the record 

lacking the envelope in which the notice of appeal was mailed, and therefore 

the postmark noting the date of mailing, we note that August 5 and 6 of 2017 

were weekend days. Thus, in order for Appellant’s notice of appeal to have 

reached the court by August 8, 2017, it is highly likely he mailed the notice 

on or before August 4, 2017. As such, we deem Appellant’s appeal timely. See 

Commonwealth v. Patterson, 931 A.2d 710, 714 (Pa. Super. 2007) (finding 

appeal timely, despite the lack of evidence of mailing, where it was probable 

that the prisoner mailed notice of appeal within the thirty day appeal window). 

 

4 On March 27, 2018, Appellant filed a motion in this Court, for an extension 

of time in which to file a response to Attorney DeVita’s Anders brief. We 

granted Appellant’s request and gave him until April 30, 3018 to file his 

response. Appellant did not file a response until July 24, 2018. Because this 

response was patently untimely, we did not consider it. 
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Counsel has met her technical obligations to withdraw under Anders.

She has identified one issue Appellant believes entitles him to relief—that trial 

and appellate counsel rendered ineffective assistance.

“On appeal from the denial of PCRA relief, our standard and scope of 

review is limited to determining whether the PCRA court’s findings are 

supported by the record and without legal error.” Commonwealth v. 

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). The PCRA court’s 

findings will not be disturbed unless the certified record lacks support for the 

findings. See Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 

2011). “Further, the PCRA court’s credibility determinations are binding on 

this Court, where there is record support for those determinations.” 

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010) 

(citation omitted). 

We presume counsel provided effective assistance; Appellant has the 

burden of proving otherwise. See Commonwealth v. Pond, 846 A.2d 699, 

708 (Pa. Super. 2004). “In order for [an a]ppellant to prevail on a claim of 

ineffective assistance of counsel, he must show, by preponderance of the 

evidence, ineffective assistance of counsel which ... so undermined the truthdetermining process that no reliable adjudication of guilt or innocence could 

have taken place.” Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. 

Super. 2005) (citation omitted). Further, 

[an a]ppellant must plead and prove by the preponderance of the 

evidence that: (1) the underlying legal claim has arguable merit; 

(2) counsel had no reasonable basis for his action or inaction; and 
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(3) [a]ppellant suffered prejudice because of counsel’s action or 

inaction. 

Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011) (citations omitted)

“Arguable merit exists when the factual statements are accurate and 

could establish cause for relief. Whether the facts rise to the level of arguable 

merit is a legal determination.” Commonwealth v. Barnett, 121 A.3d 534, 

540 (Pa. Super. 2015) (citations and internal quotation marks omitted). 

“Prejudice is established if there is a reasonable probability that, but for 

counsel's errors, the result of the proceedings would have been different. A 

reasonable probability is probability sufficient to undermine confidence in the 

outcome.” Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 

2013) (en banc) (citations and internal quotation marks omitted).

Appellant claims trial counsel rendered ineffective assistance by failing 

to raise a Rule 600 claim prior to trial. Additionally, he claims that appellate 

counsel rendered ineffective assistance by failing to raise a Rule 600 claim on 

appeal. Because Appellant believes that either of these motions would have 

resulted in dismissal of his charges, he contends that counsel could not have 

had a reasonable basis for failing to do so and that he was prejudiced by these 

failures. 

Initially, we note that Appellant cannot succeed on his claim of appellate 

counsel ineffectiveness. Rule 600 claims must be raised prior to trial. See

Pa.R.Crim.P. 600(D)(1). As trial counsel admitted he did not file a Rule 600 

motion prior to trial, appellate counsel could not properly raise this issue on 

appeal. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived 
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and cannot be raised for the first time on appeal.”) Therefore, this claim is 

meritless. As such, we decline to find appellate counsel ineffective. See 

Commonwealth v. Benner, 147 A.3d 915, 921 (Pa. Super. 2016) (holding 

that counsel cannot be deemed ineffective for failing to pursue a meritless 

claim). 

Moving to Appellant’s claim of trial counsel ineffectiveness, we note that 

Rule 600 of our Rules of Criminal Procedure requires the Commonwealth bring 

a defendant to trial within 365 days of the filing of the criminal 

complaint. See Pa.R.Crim.P. 600(A)(2)(a).

5 This deadline for bringing a 

defendant to trial, also known as the adjusted run date, “is calculated by 

adding the mechanical run date, i.e., the date 365 days from the complaint, 

both excludable and excusable delay.” Commonwealth v. Roles, 116 A.3d 

122, 125-126 (Pa. Super. 2015). Excludable time includes delays attributable 

to a defendant or his counsel. See Commonwealth v. Matis, 710 A.2d 12, 

16 (Pa. 1998). Excusable time includes delays that occur despite the due 

diligence of the Commonwealth and beyond its control. See Commonwealth 

v. Goldman, 70 A.3d 874, 879 (Pa. Super. 2013). Charges must be dismissed 

for failure to abide by Rule 600 only where the Commonwealth fails to bring a 

defendant to trial within 365 days, calculated after taking into account all 

excusable delays and excludable time. See id., at 880.

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5 The Pennsylvania Supreme Court adopted a new Rule 600, effective July 1, 

2013. Here, because the criminal complaint was filed prior to the enactment 

of the new rule, we will apply the former version. See Commonwealth v. 

Brock, 61 A.3d 1015, 1016 n.2 (Pa. 2013). 
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Because a successful Rule 600 motion would have resulted in the 

dismissal of charges before trial, prejudice in a PCRA context will be 

established upon a showing of a meritorious claim. See Commonwealth v. 

Lynn, 815 A.2d 1053, 1056 (Pa. Super. 2003). Therefore, in order to 

determine if trial counsel was indeed ineffective, we must obviously assess if 

Appellant's Rule 600 motion would been successful.

According to Appellant, only 92 days are attributable to him, extending 

the Rule 600 deadline to September 18, 2014. Appellant’s calculation stems 

from his belief that because he was not aware that trial counsel requested any 

periods of delay, he should not be responsible for these periods of delay. 

However, a Rule 600 calculation under the previous iteration of the rule 

excluded any delay that results from “continuance[s] granted at the request 

of the defendant or the defendant’s attorney.” Pa.R.Crim.P. Rule 600(c)(3)(b), 

repealed (emphasis added). There was no requirement in the statute that a 

defendant be aware of his defense attorney’s requested continuances for the 

time to be excludable. 

Additionally, the PCRA court set forth the following calculations: 

Since defendant was formally charged on June 18, 2013, his 

mechanical run date under Rule 600 would be June 18, 2014. In 

his proffered speedy trial rule calculations, defendant concedes 

that 92 days of delay between June 18, 2013 and October 31, 

2013, were attributable to continuances or extensions requested 

by the defense, and as such, those intervals constitute “excludable 

time.” The credible testimony confirmed that the 32 days from 

October 31, 2013, to the originally scheduled trial date of 

December 2, 2013 were likewise excludable since they resulted 

from the defense continuance requests as defense counsel 
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attempted to convince defendant and his family to retain an arson 

expert. 

In addition, the more than seven month period from 

December 2, 2013, through the summer of 2014 was traceable to 

defense counsel’s request, subject to the stipulation that any 

resulting delay was chargeable to defendant, for an “extended” 

trial date so that defense counsel could attempt to convince 

defendant to accept the “excellent” offer that the Assistant District 

Attorney had made for a Veteran’s Court disposition of defendant’s 

case. At most, that seven month period could be characterized as 

judicial delay during which the Commonwealth was trial-ready. As 

such, that interlude would comprise either “excludable time” or 

“excusable delay.” 

By his own admission, defense counsel was physically 

incapable of proceeding to trial from April 2014 to January 2015 

due to his bilateral knee disabilities and subsequent double knee 

replacement surgery. Indeed, the defense requests for 

continuances of the scheduled trial dates during that interval 

expressly confirmed that “[a]ll Rule 600 delays will be attributed 

to the defendant.” As a consequence, those periods of delay from 

April 2014 to January 2015 are likewise “excludable time.” 

Accordingly, after adding the foregoing periods of 

“excludable time” to the “mechanical run date,” as well as those 

additional periods of “excusable delay” to the “adjusted run date,” 

defendant’s commencement of trial on February 11, 2015, was 

well within “the final Rule 600 run date.” 

Trial Court Opinion, 7/5/17, at 14-15.

In ruling against Appellant, the PCRA court obviously credited Attorney 

Petorak’s testimony that the defense’s continuance requests constituted a vast 

amount of “excludable time” between the filing of charges and the 

commencement of trial. The record supports this credibility determination. 

Thus, we are bound by that finding.

As the record contradicts Appellant’s assertion that the Commonwealth 

violated Rule 600, we conclude Appellant’s ineffective assistance of trial 
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counsel claim lacks arguable merit. Therefore, we conclude that the PCRA 

court appropriately dismissed his ineffectiveness claim. 

Order affirmed. Petition to withdraw as counsel granted. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 09/21/2018