J-S01005-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

EDWIN BAEZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 897 MDA 2020

Appeal from the PCRA Order Entered June 9, 2020

In the Court of Common Pleas of Lebanon County Criminal Division at 

No(s): CP-38-CR-0000900-2014

BEFORE: LAZARUS, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 24, 2021

Edwin Baez appeals from the order, entered in the Court of Common 

Pleas of Lebanon County, denying his petition for relief under the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After our review, 

we affirm. 

The relevant facts and procedural history is set forth in this Court’s 

decision on Baez’s direct appeal:

On May 12, 2014, sixteen-year-old D.R.[] informed a teacher that 

Baez, her stepfather, had been sexually abusing her for the past 

three years. []D.R.’s school immediately contacted both the 

police department and Lebanon County’s Children and Youth 

Services (“CYS”). Detective David Lauver, a child abuse detective 

with the North Lebanon Township Police Department[,] was 

assigned to the police investigation, while Stephanie Swisher, an 

investigator with CYS, was assigned to the CYS investigation. 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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Both Detective Lauver and Swisher spoke with D.R. at her school 

on the day she made these allegations. 

Later that day, Detective Lauver contacted Baez for a noncustodial interview at the police station. Baez agreed to speak with 

Detective Lauver, but denied any allegation of sexual contact with 

D.R. Two days later, Baez appeared for a second non-custodial 

interview with Detective Lauver. At this interview, Baez admitted 

to sexual contact with D.R. However, he alleged all contact was 

initiated by D.R. As both of these interviews were non-custodial, 

Detective Lauver did not provide Baez with Miranda[1] warnings.

On May 15, 2014, Baez was arrested and charged with sexual 

assault and related crimes. Six days later, while Baez was in 

prison, Swisher met with Baez in relation to the CYS investigation. 

Swisher provided Baez with Miranda warnings, which Baez 

waived. Baez, once again, admitted to sexual contact between 

himself and D.R., but asserted D.R. was the aggressor and 

initiated all contact. This conversation, which occurred over the 

prison’s visitor telephone system, was recorded. 

Prior to trial, Baez filed a series of motions with the court. [] Baez 

filed a motion to suppress the statements made to Swisher due to 

her alleged misrepresentations during their interview. 

Additionally, Baez filed a Rule 600 motion to dismiss his charges 

due to the Commonwealth’s [alleged] lack of diligence in bringing 

his case to trial. The parties agreed that a hearing on the 

suppression motion was unnecessary, as the suppression court 

could decide the motion solely on the transcript of the prison 

interview between Swisher and Baez. The court, however, 

conducted a hearing on the Rule 600 motion. Ultimately, the court 

denied both motions.

The case proceeded to jury trial on June 7, 2016. After two days 

of testimony, the jury convicted Baez of one count of involuntary 

deviate sexual intercourse, one count of sexual assault, one count 

of endangering the welfare of children, one count of corruption of 

minors, and two counts of indecent assault. The trial court 

sentenced Baez to an aggregate period of 21 to 44 years’ 

incarceration. Additionally, the court found Baez to be a sexually 

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1 Miranda v. Arizona, 384 .S. 46 (1966). 
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violent predator (“SVP”) and ordered him to register as such for 

the remainder of his life. 

Commonwealth v. Baez, 681 MDA 2017, at 2-3 (Pa. Super. filed Nov. 2, 

2018) (unpublished memorandum decision). On direct appeal, this Court 

affirmed Baez’s judgment of sentence.2 Id. at 14. Baez did not seek review 

in the Pennsylvania Supreme Court.

On January 30, 2020, Baez filed a pro se PCRA petition. The court 

appointed counsel on January 31, 2020. The court also issued a rule to show 

cause why a hearing should not be granted. The Commonwealth filed a 

response, the PCRA court entered an order, pursuant to Pa.R.Crim.P. 907,

giving notice of its intention to dismiss Baez’s petition without a hearing and 

Baez filed a counseled response to the Rule 907 notice. In March 2020, the 

court scheduled a hearing for April 13, 2020. In light of the judicial emergency 

due to COVID-19, the hearing was rescheduled for June 15, 2020.

At the hearing, Baez presented several claims of ineffectiveness of trial 

counsel. Baez argued trial counsel was ineffective for not doing research on 

Rule 600, which caused his motion to dismiss to be denied. He also argued 

trial counsel was ineffective for failing to order the transcript of the February 

1, 2016 hearing on the Rule 600 motion to dismiss, which rendered this claim 

waived on direct appeal. See N.T. Evidentiary Hearing, 6/5/20, at 4-5. Both

Baez and trial counsel testified at the hearing. At the conclusion of the 

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2 This Court vacated Baez’s SVP designation under 42 Pa.C.S.A. § 

9799.24(e)(3), pursuant to Commonwealth v. Butler, 173 A.3d 1212 (Pa. 

Super. 2017), which was applicable law at the time of Baez’s sentencing. 
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hearing, the court denied Baez’s PCRA petition. On June 29, 2020, Baez filed 

this timely appeal. He raises two issues for our review: 

1. Did the PCRA Court err in not finding trial counsel ineffective 

because he failed to preserve Baez’s Rule 600 claim on 

appeal?

2. Did the PCRA Court err in not finding trial counsel ineffective 

because he was not prepared to argue Baez’s Rule 600 

motion at the hearing? 

Appellant’s Brief, at 4. Baez argues he was forced to file for continuances 

because the Commonwealth did not exercise due diligence in responding to 

his discovery requests. Id. at 15. He also argues counsel had no reasonable 

basis for failing to order the Rule 600 hearing transcript, which resulted in this 

Court finding his Rule 600 claim waived on direct appeal. Id. at 15-16. See

Commonwealth v. Baez, supra at 3-5. This latter claim is correct, however, 

Baez cannot prove ineffectiveness unless he can establish that his underlying 

claim had merit. Following a hearing, the PCRA court concluded counsel was 

not ineffective for failing to preserve Baez’s Rule 600 claim for appeal because 

the claim was meritless. 

Counsel is presumed effective, and an appellant has the burden 

of proving otherwise. In order for [petitioner] to prevail on a claim 

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

preponderance of the evidence, ineffective assistance of counsel 

which so undermined the truth determining process that no 

reliable adjudication of guilt or innocence could have taken place. 

To prevail on his ineffectiveness claims, [petitioner] must plead 

and prove by a 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 (3) [petitioner] 

suffered prejudice because of counsel’s action or inaction.
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Commonwealth v. Presley, 193 A.3d 436, 442 (Pa. Super. 2018) (internal 

citations and quotation marks omitted). Further,

[o]ur review of a PCRA court's decision is limited to examining 

whether the PCRA court’s findings of fact are supported by the 

record, and whether its conclusions of law are free from legal 

error. We view the findings of the PCRA court and the evidence 

of record in a light most favorable to the prevailing party. 

Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (internal citations 

and quotation marks omitted). 

The proper scope of review of Baez’s Rule 600 claim is limited to the 

evidence on the record of the hearing and the findings of the PCRA court. This 

Court must view the facts in the light most favorable to the prevailing party.

Commonwealth v. Thompson, 93 A.3d 478, 486–87 (Pa. Super. 2014).

Additionally, when considering the trial court’s ruling, this Court is 

not permitted to ignore the dual purpose behind Rule 600. Rule 

600 serves two equally important functions: (1) the protection of 

the accused’s speedy trial rights, and (2) the protection of society.

In determining whether an accused’s right to a speedy trial has 

been violated, consideration must be given to society’s right to 

effective prosecution of criminal cases, both to restrain those 

guilty of crime and to deter those contemplating it. However, the 

administrative mandate of Rule 600 was not designed to insulate 

the criminally accused from good[-]faith prosecution delayed 

through no fault of the Commonwealth.

Id. (citations, brackets, and ellipses omitted).

Rule 600 provides, in relevant part:

(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.
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(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) Computation of Time

(1) For purposes of paragraph (A), periods of delay at any stage 

of the proceedings caused by the Commonwealth when the 

Commonwealth has failed to exercise due diligence shall be 

included in the computation of the time within which trial 

must commence. Any other periods of delay shall be 

excluded from the computation.

Pa.R.Crim.P. 600 (emphasis added). 

The courts of this Commonwealth employ three steps in determining 

whether Rule 600 requires dismissal: “First, Rule 600(A) provides the 

mechanical run date. Second, we determine whether any excludable time 

exists pursuant to Rule 600(C). [Finally, w]e add the amount of excludable 

time, if any, to the mechanical run date to arrive at an adjusted run date.” 

Commonwealth v. Bethea, 185 A.3d 364, 371 (Pa. Super. 2018). 

Accordingly, to determine whether a Rule 600 violation occurred, a court must 

“account for any ‘excludable time’ and ‘excusable delay.’” Commonwealth 

v. Colon, 87 A.3d 352, 357 (Pa. Super. 2014) (citation omitted). “Excludable 

time is delay that is attributable to the defendant or his counsel.” Id. The 

following periods must be excluded:

(1) the period of time between the filing of the written complaint 

and the defendant’s arrest, provided that the defendant could not 
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be apprehended because his or her whereabouts were unknown 

and 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 either the unavailability of the defendant or 

the defendant’s attorney or any continuance granted at the 

request of the defendant or the defendant's attorney.

Pa.R.Crim.P. 600, cmt. (emphasis added). See Colon, supra.

Excusable delay “is delay that occurs as a result of circumstances 

beyond the Commonwealth’s control and despite its due diligence.” Colon, 

87 A.3d at 357. In determining whether the Commonwealth has exercised 

reasonable diligence, we are guided by the following: “Due diligence is a factspecific concept that is 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.” 

Commonwealth v. Lynch, 57 A.3d 120, 124 (Pa. Super. 2012) (internal 

citations and quotations omitted).

Upon review of the procedural history, we conclude that Baez’s Rule 600 

claim lacks merit. The Commonwealth filed a criminal complaint against Baez

on May 15, 2014. As such, the mechanical run date was May 15, 2015. 

Pa.R.Crim.P. 600(A)(2). Baez was tried on February 1, 2016. The parties 

agreed 627 days had passed since the filing of the complaint—262 days past 

the mechanical run date. After a comprehensive review of the docket, the 

court determined that of those 262 days, only the time between the filing of 
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the complaint and the call of the list on July 24, 2014, a total of 70 days, was 

not attributable to Baez. Thus, the court found 192 days of delay attributable 

to Baez. Adding the excludable time to the mechanical run date, we calculate 

the adjusted run date to November 27, 2015. Pa.R.Crim.P. 600(C).

One week prior to that date, on November 20, 2015, Baez filed a motion 

for continuance, seeking 60 days to obtain DNA testing of the victim’s clothing. 

In his motion, Baez stated, “Defendant believes and therefore avers that the 

Commonwealth is giving their full cooperation, however the information being 

made available to them by the technology sources has been slow.” 

Appellant’s Motion for Continuance, 11/20/15, at ¶ 8. Adding that period of 

excludable time, the adjusted run date is January 26, 2016. We also add as 

excludable delay the 30-day continuance sought by the Commonwealth, 

where the court determined the Commonwealth acted with due diligence. 

Pa.R.Crim.P. 600(C)(1). In his opinion, the Honorable Samuel A. Kline

determined that none of the delay was a result of the Commonwealth’s delay 

in discovery obligations, and the Commonwealth demonstrated due diligence 

throughout the proceedings. See PCRA Court Opinion, 8/24/20, at 6-14. 

After our review, we agree. This brings Baez’s February 2, 2016 trial date 

within the time limitations set forth in Rule 600. Hence, Baez’s claim that trial 

counsel provided ineffective assistance for failing to preserve and adequately 

argue his Rule 600 claim is meritless. 

Counsel’s failure to preserve the issue for appeal, and lack of 

preparation, while unprofessional, did not prejudice Baez because the record 
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and governing case law would not alter the result of his case. Presley, supra. 

The PCRA court’s findings are supported in the record, and we discern no legal 

error. Mason, supra. Where “the underlying claim is meritless, the 

derivative claim of ineffective assistance of counsel for failing to object has no 

arguable merit.” Commonwealth v. Spotz, 47 A.3d 63, 122 (Pa. 2012). 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/24/2021