Com. v. Mohamad, Y. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
YASSIN HAYTHAME MOHAMAD :
:
Appellant : No. 571 WDA 2020
Appeal from the PCRA Order Entered April 27, 2020
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0000399-2007
BEFORE: STABILE, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: APRIL 30, 2021
Appellant, Yassin Haythame Mohamad, appeals from the April 27, 2020
order of the Court of Common Pleas of Fayette County (trial court) dismissing
his petition for relief pursuant to the Post Conviction Relief Act (PCRA) 1 as
untimely without a hearing. Counsel for Appellant has filed an application to
withdraw and a brief concluding that the appeal presents no issues of any
arguable merit. Because the record shows that the trial court vacated the
April 27, 2020 order before Appellant filed his appeal, we dismiss this appeal
as moot and deny counsel’s application to withdraw as moot.
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541–9546.
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Appellant was convicted by a jury of two counts each of attempted
homicide, aggravated assault, and simple assault arising from an altercation
with corrections officers in 2006 at SCI-Fayette where he was serving prison
sentences imposed in Philadelphia, Luzerne, and Cumberland Counties.
Commonwealth v. Mohamad, 1480 WDA 2015, unpublished memorandum
at 1-2 (Pa. Super. filed June 23, 2016). On December 14, 2007, the trial court
sentenced Appellant to an aggregate term of imprisonment of 20 to 40 years,
to be served consecutively to the sentences that he was already serving. Id.
at 2.
Appellant filed a timely appeal from his judgment of sentence that was
dismissed on April 9, 2008 for failure to file to file a docketing statement.
Docket Entries at 10; Mohamad, 1480 WDA 2015 at 2. Appellant filed a timely
first PCRA petition on February 5, 2009 and following an appeal from a denial
of PCRA relief, his appeal rights were reinstated nunc pro tunc in 2015.
Mohamad, 1480 WDA 2015 at 2-3; Docket Entries at 16. On June 23, 2016
this Court decided Appellant’s direct appeal and affirmed the judgment of
sentence. Commonwealth v. Mohamad, 153 A.3d 1117 (Pa. Super. 2016)
(table). No petition for allowance of appeal was filed.
On February 4, 2020, Appellant, acting pro se, filed the instant PCRA
petition. In this PCRA petition, Appellant asserted three grounds for relief: 1)
a claim that the Commonwealth allegedly withheld a camera recording of the
altercation between him and the corrections officers; 2) a claim of ineffective
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assistance of his direct appeal counsel; and 3) a claim of newly discovered
evidence of an inmate witness to the altercation. PCRA Petition at 3-4. On
April 2, 2020, the trial court issued a notice pursuant to Pa.R.Crim.P. 907 of
its intent to dismiss Appellant’s 2020 PCRA petition without a hearing as
untimely. On April 27, 2020, the trial court entered an order noting that
Appellant had failed to respond to the Rule 907 notice and dismissing the PCRA
petition. Trial Court Order, 4/27/20.
On May 22, 2020 Appellant timely appealed the April 27, 2020 dismissal
of his 2020 PCRA petition, pro se, to this Court. Docket Entries at 20. On
June 25, 2020, this Court ordered the trial court to appoint counsel for
Appellant or inform the Court why Appellant was not entitled to counsel. The
trial court appointed counsel to represent Appellant, and in December 2020,
counsel filed an application to withdraw and filed and served on Appellant an
Anders2 brief in which he concludes that there is no ground for reversal of
the dismissal of Appellant’s PCRA petition.
Ordinarily, we would first determine whether appellate counsel has
satisfied all of the requirements that court-appointed counsel must meet
before leave to withdraw may be granted and if we found those requirements
satisfied, we would proceed to conduct an independent review of the merits.
We do not do so here, however, because it is clear from the face of the record
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2 Anders v. California, 386 U.S. 738 (1967).
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that the order that Appellant appealed was set aside and is not in effect and
that this appeal must therefore be dismissed as moot.
Before the trial court issued its April 27, 2020 dismissal order, Appellant
had requested an extension of time to respond to the Rule 907 notice, and
that request was not received by the trial court until April 27, 2020, after it
had entered the dismissal order. Appellant’s Request for Extension of Time;
Docket Entries at 19-20. On May 4, 2020, the trial court entered an order
granting Appellant’s request for an extension of time and ordering that
this Court’s Order of April 27, 2020, dismissing the Defendant's
Petition for Post-Conviction Collateral Relief is SET ASIDE and shall
be of no further force or effect.
Trial Court Order, 5/4/20. The trial court had jurisdiction to vacate the April
27, 2020 order dismissing Appellant’s PCRA petition, as it entered this order
less than 30 days after the April 27, 2020 order and Appellant’s appeal had
not been filed at that time. 42 Pa.C.S. § 5505. Thus, the dismissal of
Appellant’s PCRA petition that is the subject of this appeal is not in effect and
Appellant’s PCRA petition remains pending in the trial court.
Although neither party has raised or addressed this issue, 3 this Court
may dismiss an appeal as moot sua sponte. M.B.S. v. W.E., 232 A.3d 922,
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3 The trial court, however, in an order that it issued in lieu of a Pa.R.A.P.
1925(a) opinion, did opine that this appeal should “be dismissed by reason of
this Court’s Order of May 4, 2020, in which we granted the Defendant’s
Request for Extension of Time, and set aside our Order of April 27, 2020.”
Trial Court Order, 6/9/20.
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927 (Pa. Super. 2020); Utility Workers Union of America, Local 69 v.
Public Utility Commission, 859 A.2d 847, 849 (Pa. Cmwlth. 2004). “We
may address mootness sua sponte, ‘as we generally ‘cannot decide moot or
abstract questions, nor can we enter a judgment or decree to which effect
cannot be given.’” M.B.S., 232 A.3d at 927 (quoting E.B. v. D.B., 209 A.3d
451 (Pa. Super. 2019)). Because the order that is the subject of this appeal
has been set aside and is no longer in effect, this appeal must be dismissed
as moot. In re K.K., 957 A.2d 298, 302 (Pa. Super. 2008); Aitkenhead v.
Borough of West View, 397 A.2d 878, 880 (Pa. Cmwlth. 1979).
Accordingly, we dismiss Appellant’s appeal as moot. Because this
appeal is dismissed without consideration of the merits, it is unnecessary to
address counsel’s application to withdraw and that application is denied as
moot.
Appeal dismissed. Application to withdraw as counsel denied as moot.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/30/2021
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