J-S08042-24
2024 PA Super 78
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID ANTHONY ROSARIO :
:
Appellant : No. 1430 MDA 2023
Appeal from the PCRA Order Entered September 22, 2023
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0001837-2020
BEFORE: OLSON, J., MURRAY, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED: APRIL 22, 2024
Appellant, David Anthony Rosario, appeals from the order entered by
the Court of Common Pleas of Schuylkill County denying him relief on his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. After careful review, we affirm.
Testimony provided at Appellant’s August 15, 2023, PCRA hearing
supplies the pertinent facts and procedural history of the present matter.
Specifically, a criminal information filed on July 13, 2020, charged Appellant
with Aggravated Assault—Attempt to Cause Bodily Injury to a Designated
Person,1 Simple Assault,2 and Harassment3 for the attack of a corrections
officer he committed while an inmate at SCI-Mahanoy. N.T. (PCRA), 8/15/23,
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. § 2702(a)(3).
2 18 Pa.C.S. § 2701(a)(1).
3 18 Pa.C.S. § 2709(a)(1).
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at 4; C.R. #1. The attack, which consisted of tripping the corrections officer
to the ground, jumping on top of him, and delivering multiple punches to the
face was captured on the prison’s video monitoring system. N.T. at 21-22.
Appellant’s first appointed counsel represented him at his
teleconferenced preliminary hearing of August 17, 2020, and allegedly waived
the preliminary hearing despite his protestations. N.T. at 5. For both this
reason and appointed counsel’s alleged failure to supply Appellant with
requested discovery, Appellant petitioned the trial court for a change of
counsel. N.T. at 6. The court complied and appointed Attorney Adam Weaver
as new trial counsel on October 29, 2021. N.T. at 6, 20.
Attorney Weaver provided Appellant with discovery documentation and
held several phone conversations with him to discuss the merits of his defense
and the Commonwealth’s offer of a plea agreement. N.T. at 21-22. In their
conversations, Attorney Weaver shared his position that because the video of
the attack was consistent with the charges filed and the photo of the officer’s
face depicted considerable injuries, it would be in Appellant’s best interest to
avoid a trial in favor of continuing plea negotiations on what was then an offer
of 36 to 72 months’ incarceration to be run consecutively to the sentence he
was serving. N.T. at 22-24.4
With respect to the potential for success of a Pa.R.Crim.P. 600 motion,
Attorney Weaver testified that he drafted a Rule 600 motion and showed it to
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4 Counsel indicated that the standard range sentence applicable to Appellant
on the aggravated assault charge was 33 months +/- 6 months. N.T. at 24.
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Appellant at the courthouse on the day of jury selection. N.T. at 25.5 He
advised Appellant that the motion superficially seemed meritorious because
567 days had passed since the filing of the criminal complaint, but his
understanding was that an adjusted run date6 had not yet passed when
calculated in accordance with a recent decision authored by the president
judge of the Schuylkill County Court of Common Pleas, which held that all the
court’s Covid-19 related emergency orders suspended Rule 600 time
computations during the time such orders were in effect. N.T. at 26-27.
Attorney Weaver also advised Appellant that the Commonwealth had
just revised the plea offer, bringing its terms down to a bottom-end, standard
range sentence of 27 to 54 months’ incarceration. While no one in the District
Attorney’s office told Attorney Weaver that the new deal was contingent on
his filing no further pretrial motions, it was his experience that in
approximately half of his cases a plea offer had been withdrawn when such
motions are filed. N.T. at 27-31. Thus, he believed that in pursuing the Rule
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5 Counsel brought a copy of the Rule 600 motion to the PCRA hearing. N.T.
at 26.
6 Rule 600 provides that a trial must “commence within 365 days from the
date on which the complaint is filed.” Pa.R.Crim.P. 600(A)(2)(a). To
determine whether a Rule 600 violation has occurred, a “court must first
calculate the ‘mechanical run date,’ which is 365 days after the complaint was
filed,” and then must “account for any ‘excludable time’ and ‘excusable
delay.’” Commonwealth v. Johnson, 289 A.3d 959, 981 (Pa. 2023)
(quoting Commonwealth v. Goldman,
70 A.3d 874, 879 (Pa. Super. 2013)).
The court then calculates the adjusted run date by adding any excludable time
to the mechanical run date.
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600 motion he would have assumed a “calculated risk” of losing both the
motion based on the common pleas court’s precedent and the
Commonwealth’s offer of a bottom-end standard range sentence for Appellant
in a case where videos and photographs would illustrate his brutal attack on
a corrections officer. Id. Accordingly, Appellant opted to accept the
Commonwealth’s offer and pleaded guilty on June 7, 2022. No direct appeal
was filed.
At the conclusion of the PCRA evidentiary hearing, the PCRA court
rejected Appellant’s claim that Attorney Weaver provided ineffective
assistance of counsel by advising him to accept the Commonwealth’s revised
plea offer instead of pursuing a Rule 600 motion. In the PCRA court’s
subsequent opinion and order, it pointed to the court-based COVID-19
restrictions that were in place during the relevant time and concluded Attorney
Weaver had reason to abandon a Rule 600 motion that would fail under the
common pleas court’s recent decisional law and to secure, instead, the
favorable decreased sentence offered by the Commonwealth in its final
negotiation.
There is no debate that Rosario was not brought to trial within 365
days. The criminal complaint was filed on July 13, 2020, and a
transport order was not issued until May 19, 2022, and he [was]
brought in for jury selection on June 7, 2022. Due to a Judicial
Emergency declared in the 21st Judicial District by [the court of
common pleas of Schuylkill County] on March 16, 2020, the
operation of Rule 600 was suspended, and state prison inmates
that had criminal cases pending were not transported for trial.
Two other state prison inmates who had cases in Schuylkill County
during the same time as Rosario and the Judicial Emergency had
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filed Rule 600 motions. Those motions were both denied by then
President Judge William Baldwin, citing the suspension of Rule 600
in Schuylkill County since March 16, 2000. Attorney Weaver knew
the result of those motions and, at the time, he rightfully
concluded that if Rosario had filed a similar motion, it also would
have been denied and he may lose the plea offer on the table by
pursuing it. Attorney Weaver had a reasonable basis for not
pursuing this motion. While one of those Rule 600 motions was
appealed to the Pennsylvania Superior Court and remanded for a
hearing, we cannot use the case law and knowledge we have now
to hold Attorney Weaver ineffective at a time when this case law
did not exist.
...
Here, both parties were ready and attached for trial on December
1, 2020. The COVID-19 restrictions on court operations as well
as on the transfer of inmates of both county and state prisons
prevented the court from conducting trials of prisoners. Extreme
care was taken to ensure the safety of inmates, who were highly
susceptible due to their living conditions, of spreading COVID-19.
Limiting the transfer of inmates had been a priority of Court
Administration since the pandemic began in March 2020 to protect
inmates as well as staff from a “super-spreader” incident.
....
Rule 600 was lawfully suspended between March 17, 2020, and
June 14, 2020, but Court Administration under then President
Judge Baldwin’s direction did not bring any state prisoner cases to
trial through the entire 2021 calendar year under the belief that
Rule 600 continued to be suspended. Rosario also filed a motion
for new counsel, which would delay progression of the case at no
fault [of] the Commonwealth. The parties notified the Court they
were prepared for trial since December 2021, but state prisoner
trials continued to be unavailable due to the limitations and
restrictions created by the pandemic. It was not until the
Honorable Jacqueline Russell became President Judge of Schuylkill
County when the court resumed all normal operations in February
2022 and then at that time, a backlog of cases existed that took
time to properly dispose of through the criminal terms established
in Schuylkill County. Therefore, the time that had passed since
Rosario’s mechanical run date would most likely be excusable
based upon judicial delay.
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PCRA Court Pa.R.A.P. Opinion and Order, 9/22/23, at 5, 7, 8.
In this timely appeal, Appellant presents the following questions for this
Court’s review.
1. Did [the PCRA court] err in finding that the judicial delay of the
Court of Common Pleas was an excusable delay under Rule
600?
2. Did [the PCRA court] err in finding that the Commonwealth
acted with due diligence to bring the case to trial?
3. Did [the PCRA court] err in finding that the delay by the Court
of Common Pleas was not so egregious as to impair a
constitutional right?
Brief of Appellant at 4.
On appeal from the denial or grant of relief under the PCRA, our review
is limited to determining “whether the PCRA court's ruling is supported by the
record and free of legal error.” Commonwealth v. Presley, 193 A.3d 436,
442 (Pa. Super. 2018) (citation omitted). “The PCRA court's factual findings
are binding if the record supports them, and we review the court's legal
conclusions de novo.” Commonwealth v. Prater,
256 A.3d 1274, 1282 (Pa.
Super. 2021). “A PCRA court passes on witness credibility at PCRA hearings,
and its credibility determinations should be provided great deference by
reviewing courts.” Commonwealth v. Johnson,
966 A.2d 523, 539 (Pa.
2009).
The procedural posture of this matter is that Appellant filed neither a
Rule 600 motion with the trial court nor a direct appeal challenging the
voluntariness of his guilty plea, as he has filed only a PCRA petition alleging
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ineffective assistance of plea counsel for failing to file a Rule 600 motion. To
that extent, it was incumbent upon Appellant to set forth the tripartite
standard applicable to an ineffectiveness claim and establish each prong
before he may obtain relief. Here, Appellant fails to raise and develop an
ineffective assistance of counsel argument in his brief, and we may affirm the
PCRA order on that basis alone. See Commonwealth v. Spotz, 18 A.3d.
244, 282 (Pa. 2011) (holding failure to develop argument regarding all three
prongs of ineffective assistance of counsel analysis results in waiver). See
also Commonwealth v. Wehner, 305 A.3d 1026 (Pa. Super. 2023) (non-
precedential decision) (citing Spotz for proposition).7
Even if we were to address Appellant’s issues on their merits, we would
conclude they fail to meet his appellate burden to prove, inter alia, that
counsel lacked a reasonable basis for advising him to accept the
Commonwealth’s plea offer. In Appellant’s PCRA petition, he raised a claim
charging plea counsel Weaver with ineffective assistance for failing to file a
pretrial motion seeking to vindicate his rule-based right to a prompt trial under
Rule 600. Appellant pressed this claim at his counseled PCRA hearing, arguing
Attorney Weaver ineffectively advised him to plead guilty without first filing a
Rule 600 motion. “[C]ounsel is presumed to be effective and the burden of
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7 See Pa.R.A.P. 126(b) (“As used in this rule, ‘non-precedential decision’ refers
to an unpublished non-precedential memorandum decision of ... th[is] Court
filed after January 15, 2008. Non-precedential decisions ... may be cited for
their persuasive value.”).
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demonstrating ineffectiveness rests on [the petitioner].” Commonwealth v.
Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). To obtain relief based on a
claim of ineffectiveness, a petitioner must establish: “(1) his underlying claim
is of arguable merit; (2) counsel had no reasonable basis for his action or
inaction; and (3) the petitioner suffered actual prejudice as a result.”
Commonwealth v. Spotz,
84 A.3d 294, 311 (Pa. 2014). A failure to meet
any of these prongs bars a petitioner from obtaining relief. Commonwealth
v. Sneed,
45 A.3d 1096, 1106 (Pa. 2012).
Regarding whether counsel had a reasonable basis for the course
taken, our Supreme Court has observed:
With respect to the reasonable basis prong, we have explained
that courts should not inquire as to whether there were other,
more logical courses of action counsel could have pursued; rather,
the appropriate question is whether counsel's decision had any
reasonable basis. See, e.g., Commonwealth v. Howard, 553
Pa. 266,
719 A.2d 233, 237 (1998) (“[W]here matters of strategy
and tactics are concerned, counsel's assistance is deemed
constitutionally effective if he chose a particular course that had
some reasonable basis designed to effectuate his client's
interests.”); see also Commonwealth v. Reed, 42 A.3d 314,
324 (Pa. Super. 2012) (“If a reasonable basis exists for the
particular course, the inquiry ends and counsel's performance is
deemed constitutionally effective.”). Indeed, a claim of
ineffectiveness ordinarily will not “succeed through comparing, by
hindsight, the trial strategy employed with alternatives not
pursued.” Id.
Johnson, 289 A.3d at 979.
At Appellant’s PCRA evidentiary hearing, PCRA counsel questioned
Attorney Weaver about his decision against filing a Rule 600 motion. Attorney
Weaver explained that superficially, the passage of well more than 365 days
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from the charging date seemed to lend support for filing a Rule 600 motion,
and for this reason he prepared a Rule 600 motion and brought it to court on
the day of jury selection. N.T. at 25. A countervailing consideration tempered
his optimism, however, as the president judge of the Schuylkill County Court
of Common Pleas recently had authored a decision announcing that all the
court’s Covid-19-related emergency orders implicitly stayed Rule 600
computations of time during the effective dates of such orders, even if the
orders had not expressly stated so. Calculating the adjusted run date in
conformance with this decision would defeat Appellant’s Rule 600 claim.
Against this backdrop, and given his experience that plea deals were
often contingent on forgoing defense motions, Attorney Weaver determined
the “calculated risk” of losing the plea deal by pursuing a Rule 600 motion of
questionable merit was great enough to advise Appellant to accept the deal,
particularly where counsel had just secured an offer of a reduced term of
imprisonment from 36 to 72 months to 27 to 54 months for aggravated
assault. N.T. at 16, 22-23, 25-26, 31. Attorney Weaver testified that he
conveyed his concerns to Appellant prior to Appellant’s decision to accept the
plea deal, and the PCRA court, sitting as finder of fact, found Attorney Weaver
to be credible.
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On this record, we conclude the course chosen by Attorney Weaver had
a reasonable basis designed to effectuate Appellant’s interests. 8 Confronted
with both an adverse judicial ruling on Rule 600 computations during the
effective dates of the Schuylkill County Court’s Covid-19 emergency orders
and an all but assured guilty verdict and exposure to a lengthier standard
range or aggravated sentence, counsel had reason to advise Appellant to
accept the plea deal to secure the revised, low-end standard range negotiated
sentence. Accordingly, discerning no merit to Appellant’s present appeal, we
affirm the PCRA court’s order.
Order affirmed.
Judge Murray joins the opinion.
Judge Olson concurs in the result.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 4/22/2024
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8 We base this conclusion not only on reasons expressed in our decision but
also on the rationale expressed by the PCRA court in its opinion and order,
reproduced supra.
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