NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellant No. 284 EDA 2013

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA, Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. HAKIM LEDBETTER, Appellant No. 284 EDA 2013 Appeal from the PCRA Order June 1, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR BEFORE: FORD ELLIOTT, P.J.E., BOWES, and OTT, JJ. MEMORANDUM BY BOWES, J.: FILED JANUARY 15, 2014 Hakim Ledbetter appeals from the June 1, 2012 order denying PCRA relief. After careful review, we affirm. The facts relevant to our review are as follows. A criminal complaint issued on March 4, 2004 charging Appellant with attempted murder, aggravated assault, carrying a firearm without a license, possessing a firearm on a public street in Philadelphia, possessing an instrument of crime, simple assault, and recklessly endangering another person, stems from his February 29, 2004 shooting of Michael Edwards in a Philadelphia bar. In an effort to locate Appellant to serve the arrest warrant, on March 6, 2004, Philadelphia Detective Francis Graf spoke to an FBI agent in the Bureau s Scranton office and learned that there was an outstanding federal warrant for Appellant dating back to October of 2003, and that the FBI was actively

2 seeking him both in Philadelphia and Scranton. On June 14, 2005, Detective Graf learned that the federal government had arrested Appellant, and that Philadelphia Central Detectives had lodged a detainer. Federal authorities refused to relinquish Appellant to state authorities until they had prosecuted him on the federal charge. Appellant was sentenced on the federal matter on August 1, Central Detectives arrested him at Allenwood Prison on their open warrant on September 7, 2006, and Appellant was arrested on the instant charges on September 8, Prior to trial, Appellant filed a Rule 600 motion to dismiss the charges against him based on the Commonwealth s failure to bring him to trial within 365 days of the filing of the criminal complaint. Following a Rule 600 hearing on February 27, 2009, the trial court ruled that the Philadelphia police acted diligently in attempting to locate Appellant after the complaint was filed and that the time he was in federal custody was excludable from the Rule 600 run-date. A non-jury trial commenced on May 29, 2008, following which the court acquitted Appellant of attempted murder and convicted him of the remaining charges. On July 8, 2008, the court sentenced him to six and one-half years to thirteen years incarceration on the aggravated assault count, and concurrent sentences of one to two years incarceration on each of the two firearms charges, to run consecutive to a ninety-month federal sentence he was serving at the time

3 This Court affirmed judgment of sentence on April 15, 2009, Commonwealth v. Ledbetter, 974 A.2d 1185 (Pa.Super. 2009), and the Supreme Court denied allowance of appeal on October 15, Commonwealth v. Ledbetter, 982 A.2d 64 (Pa. 2009). Appellant timely filed a pro se PCRA petition on April 19, 2010, counsel was appointed, and counsel filed an amended PCRA petition on June 21, 2011, raising issues of appellate counsel s ineffectiveness in failing to challenge on direct appeal the denial of Appellant s Rule 600 motion, and due process violations occasioned by pre-arrest delay. The PCRA court, after reviewing the petition and the Commonwealth s motion to dismiss, issued Pa.R.Crim.P. 907 notice of its intent to dismiss the PCRA petition without a hearing on October 21, Appellant did not respond. On December 5, 2011, with court permission, Appellant filed a supplemental amended petition in which he raised the additional claim that appellate counsel was ineffective in failing to assert a violation of the Interstate Agreement on Detainers ( IAD ), 42 Pa.C.S After reviewing the supplemental petition, the PCRA court found that it lacked merit and issued another Rule 907 notice to which Appellant also failed to respond. On June 1, 2012, the PCRA court issued an order dismissing the PCRA petition and supplemental amended petition. PCRA counsel did not file a notice of appeal from the dismissal. On September 20, 2012, Appellant filed a second PCRA petition seeking - 3 -

4 reinstatement of his appellate rights nunc pro tunc. PCRA counsel withdrew, current counsel entered his appearance, and the court reinstated Appellant s PCRA appellate rights. Appellant appealed and complied with the PCRA court s order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. He raises two issues for our review: I. Whether the judge was in error in denying the Appellant s PCRA petition without an evidentiary hearing on the issues raise[d] in the amended PCRA petition regarding trial counsel s ineffectiveness. II. Whether the judge was in error in not granting relief on the PCRA petition alleging counsel was ineffective. Appellant s brief at 8. We note at the outset that our standard of review of the denial of PCRA relief is whether the record supports the PCRA court's determination, and whether the PCRA court's determination is free of legal error. Commonwealth v. Hernandez, 2013 PA Super 243, *4 (Pa.Super. 2013). We will not disturb the findings of the PCRA court unless there is no support for the findings in the certified record. Id. Furthermore, [w]e review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa.Super. 2010). This review is limited to the findings of the PCRA court and the evidence of record. Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012)

5 With regard to ineffective assistance of counsel claims, [c]ounsel is presumed effective and will only be deemed ineffective if the petitioner demonstrates that counsel s performance was deficient and he was prejudiced by that deficient performance. Ford, supra at In order to achieve relief, a petitioner must plead and prove all three prongs: (1) that the underlying issue has arguable merit; (2) counsel s actions lacked an objective reasonable basis; and (3) actual prejudice resulted from counsel s act or failure to act. Id. Prejudice is established if there is a reasonable probability that, but for counsel s errors, the result of the proceeding would have been different. Id. Appellant alleges first that the PCRA court erred by not granting him an evidentiary hearing on the issues raised in his amended PCRA petition. He concedes that his right to a hearing is not absolute, but avers that he was entitled to a hearing on any issue where the PCRA petition presented genuine issues of material fact. Appellant, however, does not develop this argument and fails to direct our attention to any factual issues that necessitated an evidentiary hearing. Furthermore, after a thorough review of the record, we find no merit in this contention. Next, Appellant alleges that direct appeal counsel was ineffective in failing to pursue the propriety of the trial court s denial of his motion to - 5 -

6 dismiss under Rule 600(C) and (G). 1 He contends that he would have prevailed on appeal on this issue, resulting in dismissal of the charges. In support of his claim that the issue had arguable merit, Appellant maintains that the record indicates a lack of diligence on the Commonwealth s part in attempting to locate him after the criminal complaint was filed on March 4, Rule 600(C)(1) provides that, In determining the period for commencement of trial, there should be excluded therefrom... the period of time between the filing of the written complaint and the defendant s arrest, provided that the defendant could not be apprehended because his or her whereabouts were unknown and could not be determined by due diligence. In addition, subsection (C)(3) excludes any period of delay resulting from (a) the unavailability of the defendant or the defendant s attorney. Pa.R.Crim.P. 600(C)(3)(a). The Comment to Rule 600 explains that a defendant is deemed unavailable during the time a responding jurisdiction delays or refuses to grant extradition. Appellant avers that the Commonwealth only made one attempt to locate him at his girlfriend s residence, and did not use other reasonable means to ascertain his whereabouts. Although he was arrested and taken 1 Appellant s reliance upon Rule 600(G) is misguided. Subsection (G) applies to defendants on bail after the expiration of 365 days, and Appellant was not on bail

7 into custody by federal authorities on June 14, 2005, the Commonwealth did not serve an arrest warrant until September 7, According to Appellant, that fifteen-month period should have been included for purposes of Rule 600 as it was not beyond the control of the Commonwealth to ascertain his whereabouts during that time. Appellant argued further that, had the arrest taken place sooner, there were witnesses who could have been contacted and their information would be fresher. The Commonwealth counters that the trial court found it acted diligently in attempting to locate defendant. The PCRA Court reviewed the Rule 600 evidentiary record and concluded that it thoroughly supports the trial court s ruling that the Philadelphia Police acted diligently in attempting to locate [Appellant] after the complaint was filed. Trial Court Opinion, 4/9/13, at 9. Furthermore, the court correctly found that when Appellant was in federal custody awaiting trial on federal charges, he was unavailable for Rule 600 purposes. The Commonwealth reminds this Court that we reverse the trial court s Rule 600 decision only if the trial court abuses its discretion. Commonwealth v. Selenski, 994 A.2d 1083, 1087 (Pa. 2010). Such a determination is based on the evidence presented at the Rule 600 hearing, viewed in the light most favorable to the prevailing party, i.e., the Commonwealth. See Commonwealth v. Wholaver, 989 A.2d 883, 899 (Pa. 2010). Id. In addition, the Commonwealth maintains that the record contains no evidence of prejudice

8 Pa.R.Crim.P. 600 has the dual purpose of both protecting a defendant's constitutional speedy trial rights and protecting society's right to effective prosecution of criminal cases. Commonwealth v. Bradford, 46 A.3d 693, 701 (Pa. 2012) (en banc). "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. Hill, 736 A.2d 578, 588 (Pa. 1999); Commonwealth v. Aaron, 804 A.2d 39 (Pa.Super. 2002) (en banc). If the Commonwealth exercised due diligence and the delay was beyond the Commonwealth's control, "the motion to dismiss shall be denied." Pa.R.Crim.P. 600(G). Bradford, supra at 701 (quoting Selenski, supra at 1088). Proof of the reasonable effort required by due diligence is met by a preponderance of the evidence standard. Id. We have reviewed the testimony adduced at the June 14, 2007 hearing on Appellant s Rule 600 motion. For a period of time, neither Philadelphia police nor the FBI could locate Appellant. Detective Graf and the FBI exchanged information about Appellant s possible whereabouts. The detective provided the FBI with the address of Appellant s girlfriend and discussed other addresses associated with Appellant, which the FBI represented had been exhausted. In addition, Philadelphia detectives went to the girlfriend s West Ashdale Street residence on March 8, 2004, but were told that Appellant no longer resided there. N.T. Preliminary Hearing, 6/14/07, at 7. Follow-up telephone calls were made to her to determine - 8 -

9 whether she had any knowledge of Appellant s whereabouts. The detective ascertained that there was already an outstanding warrant for Appellant in the National Crime Information Center ( NCIC ) database and, thus, he could not enter the warrant for the instant offenses. However, he did place the warrant for Appellant in the Philadelphia Crime Information Center ( PCIC ). Federal authorities arrested Appellant on June 14, 2005, and held him for purposes of an impending prosecution on narcotics distribution charges. On September 7, 2006, three weeks after Appellant was sentenced on the federal charge, Central Detectives arrested him on other state charges. He was arrested on September 8, 2006 on the instant charges. The trial court found it reasonable that Detective Graf did not waste his time and revisit places already investigated by the FBI and Central Detectives in attempting to locate Appellant. Id. at 25. It noted favorably that detectives personally investigated the girlfriend s address and the court accepted Detective Graf s explanation of why the warrant could not be lodged with NCIC. The court concluded that Appellant was on fugitive status and that the Commonwealth had exercised due diligence. Regarding the fifteen-month period when Appellant was in federal custody awaiting trial, he was unavailable because the court was fully cognizant that the federal authorities do not as a practice release their prisoners until the federal prosecution is completed. Id. at 26. The PCRA court found that the record amply supported the trial court s ruling on the Rule 600 motion and - 9 -

10 concluded that there was no merit in Appellant s claim that he would have prevailed on this issue on appeal. Appellate counsel cannot be deemed ineffective for failing to raise a non-meritorious issue. Commonwealth v. Busanet, 54 A.3d 35 (Pa. 2012). Thus, based on the record and our standard of review, we find that the PCRA court s denial of relief is supported by the record. Nor do we see any merit in Appellant s due process argument. In order to prevail on such a ground, Appellant would have to demonstrate that pretrial delay impaired his ability to defend against the charges and that it likely affected the outcome of the criminal proceeding. Commonwealth v. Tielsch, 934 A.2d 81, 92 (Pa.Super. 2007). Appellant did not demonstrate the loss of evidence or key witnesses that would have aided his defense. Commonwealth v. Scher, 803 A.2d 1204, 1222 (Pa. 2002). He did not identify any potential witnesses who were no longer available due to the delay or summarize any testimony that they would have proffered in his defense. We agree with the PCRA court that Appellant s claims of prejudice were mere speculation, and hence, we find no abuse of discretion on the part of the PCRA court in denying relief on this basis. Next, Appellant contends that the Interstate Agreement on Detainers ( IAD ), 42 Pa.C.S et seq., was applicable herein, and that trial counsel was ineffective in failing to object to the Commonwealth s failure to

11 adhere to its time requirements. In support of his position, Appellant points to Detective Graf s testimony at the Rule 600 hearing that he was informed by someone in a United States Probation or Pretrial Detention Unit that there was a detainer lodged in reference to a Central Detectives warrant. N.T. Preliminary Hearing, 6/14/07, at The Commonwealth counters that Appellant s PCRA petition as supplemented contained nothing that indicated that Appellant was procured pursuant to the IAD procedure, and neither the Commonwealth nor Appellant invoked the IAD. 2 Furthermore, the Commonwealth maintains that there was no detainer in connection with the instant charges. According to the Commonwealth, Detective Graf s reference to a detainer concerned other outstanding criminal charges filed by Central Detectives. In denying PCRA relief on this ground, the PCRA court credited documentation supplied by the Commonwealth indicating that writs of habeas corpus ad prosequendum, rather than a detainer, were used to secure Appellant s presence for prosecution on the instant charges. Additionally, the court relied upon well-settled law that the IAD does not 2 Contrary to the Commonwealth s representation, Appellant alleged a violation of the IAD in his pro se PCRA petition, and he appended a copy of a Warrant to Commit and Detain issued by the Pennsylvania Board of Probation and Parole on June 16, The warrant, directed to the superintendent or warden of any correctional facility in Pennsylvania, authorized the detention of Appellant for violation of parole based upon federal narcotics charges, attempted murder, and aggravated assault charges

12 apply to the habeas procedure. See Commonwealth v. Diggs, 416 A.2d 119 (Pa.Super. 1979); United States v. Mauro, 436 U.S. 340 (1978). The IAD is an agreement between forty-eight states, the District of Columbia, Puerto Rico, the Virgin Islands, and the United States, that establishes procedures for the transfer of prisoners incarcerated in one jurisdiction to the temporary custody of another jurisdiction which has lodged a detainer against a prisoner. Commonwealth v. McNear, 852 A.2d 401, 405 n.3 (Pa.Super. 2004) (quoting Commonwealth v. Davis, 786 A.2d 173, 175 (Pa. 2001)). The policy of the Interstate Agreement on Detainers is "to encourage the expeditious and orderly disposition" of charges and its purpose "is to promote and foster prisoner treatment and rehabilitation programs by eliminating uncertainties which accompany the filing of detainers." Commonwealth v. Fisher, 451 Pa. 102, 106, 301 A.2d 605, 607 (1973). Commonwealth v. Wilson, 231 Pa.Super. 451, 454, 331 A.2d 792, 794 (1974) (footnote omitted); see also Commonwealth v. Merlo, 242 Pa.Super. 517, 521, 364 A.2d 391, 394 (1976). Because the legislation is remedial in character, it is to be liberally construed in favor of the prisoner so as to effectuate its purpose. Commonwealth v. Merlo, supra, 242 Pa.Superior Ct. at 522, 364 A.2d at 394. Commonwealth v. Thornhill, 601 A.2d 842, (Pa.Super. 1992). A detainer is merely a means of informing the custodial jurisdiction that there are outstanding charges pending in another jurisdiction and a request to hold the prisoner for the requesting state or notify the requesting state of the prisoner's imminent release. Davis, supra at 175. Article IV of

13 the IAD provides the procedure by which the prosecutor in the requesting state initiates a transfer: (a) The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with Article V(a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated. * * * (c) In respect of any proceeding made possible by this article, trial shall be commenced within 120 days of the arrival of the prisoner in the receiving state. 42 Pa.C.S. 9101, Article IV(a), (c). The IAD, however, has not supplanted the use of traditional extradition procedures by the states, including writs of habeas corpus. Commonwealth v. Romero, 938 A.2d 362 (Pa. 2007); see also 53 A.L.R.6th 1. Our High Court has held that when state officials obtain custody of a federal prisoner by way of a writ of habeas corpus ad prosequendum issued by a state court, the time limitations contained in the IAD for bringing the prisoner to trial do not apply. Romero, supra. In support of his contention that the IAD governed herein, Appellant attached to his pro se PCRA petition a copy of a June 15, 2005 detainer lodged by the Pennsylvania Board of Probation and Parole. We note that while that detainer originated from Pennsylvania, it issued for a violation of parole/probation. In Carchman v. Nash, 473 U.S. 716 (1985), the United

14 States Supreme Court held that Article III of the IAD did not to apply to probation violation charges because they were not based upon untried indictments, informations or complaints and did not accuse an individual of having committed a criminal offense in the sense of initiating a prosecution. Rather, the Court recognized that a probation-violation charge generally will be based on the criminal offense for which the probationer already was tried and convicted and was serving his sentence in the sending state. The Court stated that the same rationale applied to parole violations as such charges are adjudicated by a parole board or similar administrative agency, and are not pending in any court. Article IV, the portion of the IAD at issue herein, contains the same requirement of a pending untried indictment, information or complaint upon which a detainer has been lodged as Article III, and we find the Carchman rationale just as applicable. Furthermore, a detainer filed by Central Detectives on other charges or by the Parole Board for a violation of parole would not trigger application of the IAD on the instant charges. United States v. Mauro, 436 U.S. 340 (1978); Commonwealth v. Boyd, 679 A.2d 1284 (Pa.Super. 1996) (holding that the time provision of Article III applies only to indictments, informations, or complaints on the basis of which detainers have been filed). The IAD time limitations refer to trial on the indictment, information or complaint on the basis of which the detainer has been lodged. See Article V(c)

15 Moreover, Articles III and IV of the IAD refer to a prisoner who is serving a term of imprisonment in any party state. (emphasis supplied). Until he was sentenced in August 2006, Appellant was being held by the federal authorities for an impending prosecution on federal charges, not serving a term of imprisonment. Commonwealth v. Booze, 953 A.2d 1263 (Pa.Super. 2008); see also United States v. Roberts, 548 F.2d 665, 671 (6th Cir.), cert. denied, 431 U.S. 931 (1977) ("the Interstate Agreement on Detainers does not apply to a person who is imprisoned awaiting disposition of pending charges and who has not been sentenced to a term of imprisonment ); United States v. Glasgow, 790 F.2d 446 (6th Cir. 1985). The record indicates that Appellant was only sentenced to a term of imprisonment on the federal narcotics charges on August 1, 2006, and thus, the IAD was not even available as a means of procuring his custody until that time. We find no basis to disturb the PCRA court s finding that Appellant was brought to Pennsylvania on the instant charges pursuant to a writ of habeas corpus ad prosequendum just three weeks after he commenced a term of imprisonment on federal charges. There is no evidence that a detainer was lodged on the instant charges. Since the IAD was not used to secure his presence in Pennsylvania, its 120-day time limitation did not apply, and trial counsel was not ineffective for failing to raise a speedy trial challenge based on that time limitation. See Romero, supra

16 Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 1/15/