J-S65027-16

* Retired Senior Judge assigned to the Superior Cou rt NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. RONALD AL TOWNSEND, Appellant No. 182 WDA 2016

Appeal from the PCRA Order of May 16, 2014 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0012960-2003 BEFORE: LAZARUS, OLSON AND PLATT,* JJ. MEMORANDUM BY OLSON, J.: FILED OCTOBER 7, 2016 Appellant, Ronald Al Townsend, appeals from the ord er entered on May 16, 2014 denying his first petition filed pursu ant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm. This Court has previously set forth the factual ba ckground and procedural history of this case as follows. [O]n June 9, 2003, at approximately 10:15 a.m., App ellant entered the office of City Finance, Inc. in McKeesp ort, a small loan office that also sells repossessed automobiles . He spoke briefly with Nicole Hanna, an employee of City Fina nce. He inquired about a vehicle with a for sale sign in th e lot. Ms. Hanna told him that the car was open and he could l ook at it if he wanted. City Finance’s owner, William Payne[,] was seated just behind Ms. Hanna, observed this conversation[, ] and spoke briefly with Appellant himself. Appellant was pres ent in the office for a couple of minutes. Appellant returned later that afternoon. He was we aring the same clothing. He spoke with Mr. Payne and asked i f he couldJ-S65027-16

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take the car for a test drive. Mr. Payne said that he could but that for insurance purposes only an employee of Cit y Finance could drive. Mr. Payne entered the driver’s side a nd Appellant sat directly behind him. They were gone for about [ten] minutes. During the drive, Mr. Payne conversed wit h Appellant, periodically looking at him in the rearview mirror. When they returned to the office Appellant said he was interested in buying the car and Mr. Payne went beh ind the counter in the office to retrieve the paperwork he would need to complete the sale. His back was turned towards the front of the office where Ms. Hanna was seated when he heard her scream. He turned and saw Appellant holding Ms. Hanna by th e hair with one hand and, with the other, holding a knife to he r throat. Appellant demanded money. As Ms. Hanna struggled w ith Appellant, she said, “Oh my God, you cut me.” Mr. Payne then pulled Ms. Hanna from Appellant’s grasp as he conti nued to lunge towards her with the knife. She fell to the floor and Mr. Payne told her to call 911. He then turned to Appe llant and told him that he had already hit the silent alarm and th at the police would be there any minute. After hesitating briefl y, Appellant ran from the office. Appellant was later apprehended by the police on ot her charges. On August 6, 2003, Appellant was charged with robbe ry, aggravated assault, and possession of an instrument of crime. 1 Appellant’s trial date was initially set for Januar y 20, 2004 but, due to a series of postponements, Appellant was not tried until December 17, 2007. On December 19, 2007, a jury fou nd Appellant guilty of the aforementioned charges. On November 25, 2008, Appellant was sentenced to an aggregate t erm of 15 to 30 years’ imprisonment. Appellant filed a timely post-sentence motion on De cember 5, 2008. After the appointment of new counsel on Febr uary 12, 2009, Appellant was given an additional 30 days to file an amended post-sentence motion. Appellant timely fil ed his amended post-sentence motion on March 13, 2009. Ap pellant’s

1 18 Pa.C.S.[A.] §§ 3701([a])(1)(i), 2702([a])(1), a nd 907([a]), respectively.J-S65027-16

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amended post-sentence motion was denied by operatio n of law pursuant to [Pennsylvania Rule of Criminal Procedur e] 720(B)(3)(b) on April 20, 2009, and Appellant filed a timely notice of appeal. On December 6, 2010, . . . this Court affirmed Appellant’s judgment of sentence. [ See Commonwealth v. Townsend , 23 A.3d 569 (Pa. Super. 2010) (unpublished memorandum)]. On December 30, 2010, Appellant filed a timely, cou nseled PCRA petition. On December 28, 2011, the [PCRA] court i ssued [notice of its intent to dismiss the petition witho ut an evidentiary hearing. See Pa.R.Crim.P. 907.] Appellant’s PCRA petition was dismissed on August 10, 2012. Appellant filed a ti mely notice of appeal.

Commonwealth v. Townsend , 75 A.3d 567, 2013 WL 11272439, *1-2 (Pa. Super. 2013) (unpublished memorandum), appeal denied , 77 A.3d 637 (Pa. 2013) (internal alterations, certain citations , and certain quotation marks omitted). In this Court’s previous memorandum in this collat eral challenge, this Court concluded that the PCRA court properly dismis sed Appellant’s petition with respect to most of his claims; however, this C ourt concluded that an evidentiary hearing was necessary to determine if t rial counsel was ineffective for failing to file a Rule 600 motion. See id. at *7-9. Although, this Court rejected Appellant’s argument that conti nuances to which he did not consent were not excludable under Rule 600, thi s Court concluded that an evidentiary hearing was necessary to determine i f three specific time periods were excludable and, if they were not exclu dable, whether the Commonwealth acted with due diligence to bring Appe llant to trial. See id.J-S65027-16

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On remand, the PCRA court convened a PCRA hearing on February 14, 2014. Thereafter, the PCRA court denied Appellant’ s petition on May 16, 2014. Neither PCRA counsel nor Appellant received notice of the PCRA court’s May 16, 2014 order. When Appellant became aware of the order, he filed a second PCRA petition seeking reinstatement of his collateral appellate rights nunc pro tunc . On February 1, 2016, the PCRA court reinstated Appellant’s collateral appellate rights nunc pro tunc . This appeal followed. 2 Appellant presents one issue for our review: Did the [PCRA] court err in denying Appellant’s PCR A petition since trial counsel [] was ineffective for failing to file a [ R]ule 600 motion . . . ? Appellant’s Brief at 3 (complete capitalization rem oved). As most PCRA appeals involve mixed questions of fac t and law, “[o]ur standard of review of an order granting or denying relief under the PCRA requires us to determine whether the decision of th e PCRA court is supported by the evidence of record and is free of legal error.” Commonwealth v. Melendez-Negron , 123 A.3d 1087, 1090 (Pa. Super. 2015) (internal alteration, quotation marks, and ci tation omitted). “The PCRA court’s findings will not be disturbed un less there is no support

2 On February 3, 2016, Appellant filed a concise sta tement of errors complained of on appeal (“concise statement”). See Pa.R.A.P. 1925(b). On June 1, 2016, the PCRA court issued an order incorp orating by reference its May 16, 2014 opinion. Appellant’s lone appellate i ssue was included in his concise statement.J-S65027-16

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for the findings in the certified record.” Commonwealth v. Ruiz , 131 A.3d 54, 57 (Pa. Super. 2015) (citation omitted). Appellant’s claim relates to the purported ineffect iveness of his trial counsel. A “defendant’s right to counsel guarantee d by the Sixth

Amendment to the United States Constitution and Art icle I, [Section] 9 of the Pennsylvania Constitution is violated where cou nsel’s performance so undermined the truth-determining process that no re liable adjudication of guilt or innocence could have taken place.” Commonwealth v. Simpson , 66 A.3d 253, 260 (Pa. 2013) (internal quotation mar ks and citation omitted). “Trial counsel is presumed to be effecti ve[.]” Commonwealth v. Perry , 128 A.3d 1285, 1289 (Pa. Super. 2015) (citation o mitted). In order to overcome the presumption that counsel w as effective, Appellant must establish that “(1) the underlying c laim is of arguable merit; (2) the particular course of conduct pursued by cou nsel did not have some reasonable basis designed to effectuate his client’ s interests; and (3) but for counsel’s ineffectiveness, there is a reasonable pr obability that the outcome of the proceedings would have been different.” Commonwealth v. Buterbaugh , 91 A.3d 1247, 1255 (Pa. Super. 2014) ( en banc ), appeal

denied , 104 A.3d 1 (Pa. 2014) (internal alterations, quot ation marks, and citation omitted). “A claim of ineffectiveness wil l be denied if the defendant’s evidence fails to meet any one of these prongs.”

Commonwealth v. Oliver , 128 A.3d 1275, 1284 (Pa. Super. 2015)J-S65027-16

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(citation omitted). The burden of proving ineffect iveness is on the petitioner. Commonwealth v. Slaughter , 120 A.3d 992 (Pa. 2015). We focus our attention on the first prong, i.e. , whether Appellant’s underlying claim has arguable merit. Pennsylvania Rule of Criminal Procedure 600 provides, in pertinent part:

(A) . . . . (3) Trial in a court case in which a w ritten complaint is filed against the defendant, when the defendant is at liberty on bail, shall commence no later than 365 days from th e date on which the complaint is filed.

* * * (C) In determining the period for commencement of t rial, there shall be excluded therefrom

* * * (3) such period of delay at any stage of the procee dings as results from: (a) the unavailability of the defendant or the defe ndant's attorney; (b) any continuance granted at the request of the d efendant or the defendant's attorney.

* * * (G) For defendants on bail after the expiration of 365 days, at any time before trial, the defendant or the defenda nt’s attorney may apply to the court for an order dismissing the charges with prejudice on the ground that this rule has been vio lated. A copy of such motion shall be served upon the attorney fo r the Commonwealth, who shall also have the right to be h eard thereon. If the court, upon hearing, shall determine that th e Commonwealth exercised due diligence and that theJ-S65027-16

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circumstances occasioning the postponement were bey ond 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 Commonwe alth did not exercise due diligence, the court shall dismiss the charges and discharge the defendant.

Pa.R.Crim.P. 600. 3 This Court has explained: To summarize, the courts of this Commonwealth emplo y three steps in determining whether Rule 600 requires dism issal of charges against a defendant. First, Rule 600(A) pro vides the mechanical run date. Second, we determine whether a ny excludable time exists pursuant to Rule 600(C). We add the amount of excludable time, if any, to the mechanica l run date to arrive at an adjusted run date. If the trial takes place after the adjusted run dat e, we apply the due diligence analysis set forth in Rule 600. As we have explained, Rule 600 encompasses a wide variety of circumstances under which a period of delay was out side the control of the Commonwealth and not the result of t he Commonwealth’s lack of diligence. Any such period of delay results in an extension of the run date. Addition of any Rule 600 extensions to the adjusted run date produces the fi nal Rule 600 run date. If the Commonwealth does not bring the d efendant to trial on or before the final run date, the trial co urt must dismiss the charges. Commonwealth v. Armstrong , 74 A.3d 228, 236 (Pa. Super. 2013), aff’d , 107 A.3d 735 (Pa. 2014) ( per curiam ) (citation and ellipsis omitted). We begin with calculation of the adjusted run dat e. Appellant was charged on August 6, 2003. Thus, the mechanical ru n date was August 5,

3 Rule 600 was rescinded on October 1, 2012 and a ne w Rule 600 was promulgated. 42 Pa.B. 6622. As the complaint was filed prior to October 1, 2012, this case is governed by the former Rule 600.J-S65027-16

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2004. 4 Trial was originally scheduled for January 20, 20 04. Trial however, was continued on 14 separate occasions: January 20, 2004; April 28, 2004; August 30, 2004; December 1, 2004; March 10, 2005; July 7, 2005; November 7, 2005; March 13, 2006; July 12, 2006; Oc tober 3, 2006; December 19, 2006; February 26, 2007; May 16, 2007; and July 10, 2007. Appellant argues that he did not consent to any of these continuances. As this Court previously noted, however, Rule 600 “ says nothing about a defendant’s consent. The plain language of Rule 600 indicates that time is excludable if it results from any continuance grant ed at the request of the defendant or the defendant’s attorney.” Townsend , 2013 WL 11272439 at *9 (internal quotation marks and citation omitted; emphasis removed). As this Court also previously noted, Appellant conc edes that the August 30, 2004 continuance was requested by his co unsel. Id. at *8. Thus, the August 30, 2004 continuance was excludabl e. Id. Similarly, Appellant concedes that his attorney requested the March 10, 2005, July 7, 2005, November 7, 2005, March 13, 2006, July 12, 20 06, October 3, 2006, December 19, 2006, February 26, 2007, May 16, 2007, and July 10, 2007

continuances. Id. Thus, the time from March 10, 2005 to the beginni ng of

trial was excludable.

4 This Court’s prior memorandum incorrectly stated t hat the mechanical run date was August 6, 2004.J-S65027-16

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That leaves three disputed continuances, those gran ted on January 20, 2004, April 28, 2004, and December 1, 2004. At the PCRA hearing, the assistant district attorney who prosecuted the case testified that Appellant’s counsel requested the January 20, 2004 continuance. N.T., 2/12/14, at 23. Appellant presented no evidence at the PCRA hearing which contradicted this testimony. Thus, we ascertain no abuse of discreti on in the PCRA court’s determination that Appellant’s counsel requested th e January 20, 2004 continuance. Therefore, the January 20, 2004 conti nuance was excludable. As to the April 28, 2004 continuance, the PCRA cour t found that this postponement was requested by Appellant’s counsel. In so finding, it relied upon the testimony of the assistant district attorn ey, who testified that Appellant’s counsel requested that continuance. N. T., 2/14/14, at 24. The assistant district attorney’s testimony was support ed by Commonwealth Exhibit 1, a copy of the front of the Allegheny Cou nty District Attorney Office’s case file. That copy showed that the Apri l 28, 2004 continuance was requested by Appellant’s counsel. The PCRA court also inferred, based upon the partie s’ stipulation, that Appellant or his counsel requested the continuance. Specifically, the parties stipulated to the fact that trial counsel would tes tify that Appellant consented to the continuance because of plea negotiations. See N.T., 2/14/14, at 5-6. The trial court inferred that if Appellant consente d to the continuanceJ-S65027-16

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because of plea negotiations, that his trial counse l requested the

continuance. In support of his argument that the April 28, 2004 continuance was not excludable, Appellant relies on a May 5, 2004 l etter written by his trial counsel in which trial counsel informed Appellant t hat the case was

continued because of the trial court’s schedule. A s this Court previously noted, this letter was sufficient to warrant a PCRA hearing on Appellant’s Rule 600 issue. At the PCRA hearing, however, Appe llant did not call his trial counsel to testify regarding the letter. The parties’ stipulation regarding trial counsel’s testimony did not address the conte nts of the May 5, 2004 letter trial counsel sent Appellant. Thus, it was not an abuse of discretion for the PCRA court to find, based upon the testimony of the assistant district attorney, the copy of the front of the case file, a nd its interference based upon the parties’ stipulation, that Appellant’s cou nsel requested the April 28,

2004 continuance. As for the December 1, 2004 continuance, the PCRA c ourt misinterpreted this Court’s prior memorandum and di d not discuss that

continuance. See generally PCRA Court Opinion, 5/16/14. Nonetheless, with the January 20, 2004 and April 28, 2004 contin uances being excludable, even if the December 1, 2004 continuanc e were non-excludable,J-S65027-16

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the adjusted run date was March 25, 2008. 5 Appellant’s trial began on December 17, 2007, prior to the adjusted run date. Accordingly, Appellant’s underlying claim lacks arguable merit and trial cou nsel was not ineffective for failing to file a Rule 600 motion.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 10/7/2016

5 The only two periods of non-excludable time would be the 167 days between the date Appellant was charged and the firs t continuance and the 99 days between the December 1, 2004 and March 10, 2005 continuances. Thus, 1328 of the 1594 days were excludable. Addin g 1328 days to the August 5, 2004 mechanical run date results in an ad justed run date of March 25, 2008.