Com. v. Mousa, A. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee
v.
AHMED M. MOUSA
Appellant No. 1390 MDA 2020
Appeal from the PCRA Order entered October 28, 2020
In the Court of Common Pleas of Lancaster County
Criminal Division at No: CP-36-CR-0007437-2018
BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED MAY 26, 2021
Appellant, Ahmed M. Mousa, appeals from the October 28, 2020 order
entered in the Court of Common Pleas of Lancaster County denying his petition
for collateral relief pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-9546. Appellant argues the PCRA court erred by denying
his request for an evidentiary hearing to address his claim that a certified
court interpreter failed to communicate the terms of his negotiated plea
agreement accurately. Upon review, we affirm.
In its Rule 1925(a) opinion, the PCRA court explained that Appellant was
charged with one count of sexual abuse of children and two counts of criminal
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* Former Justice specially assigned to the Superior Court.
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use of communication facility.1 On March 14, 2019, Appellant entered into a
negotiated plea agreement and was sentenced to an aggregate term of seven
to 15 years’ incarceration. He did not file post-sentence motions or a direct
appeal. PCRA Court Opinion, 12/23/20, at 1-3.
On March 26, 2020, Appellant filed a pro se PCRA petition. Counsel was
appointed and filed a petition seeking leave to withdraw in accordance with
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988). The PCRA court determined that
counsel had not addressed all claims raised by Appellant and, on July 1, 2020,
ordered counsel to supplement his Turner/Finley letter or file an amended
PCRA petition. On July 16, 2020, counsel filed an amended petition and a
request for an evidentiary hearing. The Commonwealth filed a response on
August 20, 2020. Id. at 3-5.
On September 21, 2020, the PCRA court issued a Rule 907 notice of
intention to dismiss Appellant’s petition without a hearing and notified
Appellant he could file a response within twenty days. Appellant did not file a
response. On October 28, 2020, the PCRA court dismissed the petition. This
timely appeal followed. Both Appellant and the PCRA court complied with
Pa.R.A.P. 1925.
Appellant presents one issue for this Court’s review:
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1 18 Pa.C.S.A. §§ 6312(d) and 7512(a).
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Did the PCRA court err by dismissing the PCRA [petition] without
an evidentiary hearing where Appellant claimed he entered an
invalid plea after the court interpreter failed to communicate
accurately the terms of the negotiated plea agreement?
Appellant’s Brief at 4.2
This Court’s standard of review from the denial of a PCRA petition is
limited to examining whether the PCRA court’s determination is supported by
the evidence of record and whether it is free of legal error. “The PCRA court’s
credibility determinations, when supported by the record, are binding on this
Court; however, we apply a de novo standard of review to the PCRA court's
legal conclusions.” Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa.
Super. 2019) (quotation marks and citations omitted), appeal denied, 216
A.3d 1029 (Pa. 2019).
As the PCRA court observed, when a guilty plea has been entered,
all grounds of appeal are waived other than challenges to the
voluntariness of the plea and the jurisdiction of the sentencing
court. Thus allegations of ineffective assistance of counsel in
connection with entry of the guilty plea will serve as a basis for
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2 In his brief, Appellant explains:
Appellant is a native of Sudan and does not read, write or speak
English. The plea hearing was conducted with the use of a
certified Arabic court interpreter. [Plea counsel] indicated that
consultations with [A]ppellant that occurred prior to the plea were
conducted with the use of [a] certified Arabic court interpreter.
Appellant’s Brief at 5 (reference to plea hearing transcript omitted).
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relief only if the ineffectiveness caused appellant to enter an
involuntary or unknowing plea.
PCRA Court Rule 907 Notice, 9/21/20, at 12 (quoting Commonwealth v.
Williams, 437 A.2d 1144, 1146 (Pa. 1981) (internal citations omitted)). See
also Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002)
(defendant must demonstrate that counsel’s ineffectiveness caused defendant
to enter an involuntary or unknowing plea).
To obtain relief under the PCRA, a petitioner bears the burden of
demonstrating that counsel’s performance was defective and that he was
prejudiced as a result. Strickland v. Washington, 104 S.Ct. 2052 (1984).
Our Supreme Court has determined that the petitioner must satisfy all prongs
of a three-pronged test for ineffectiveness, i.e., that the underlying claim has
arguable merit, that counsel’s actions lacked a reasonable basis, and that the
defendant was prejudiced as a result. See, e.g., Commonwealth v.
Koehler, 36 A.3d 121, 132 (Pa. 2012).
Appellant’s issue is not framed in terms of plea counsel ineffectiveness,
but it is clear upon review of his petition and arguments that he is attempting
to raise an ineffectiveness claim asserting that plea counsel was ineffective for
not challenging the competency of the court-appointed certified Arabic
translator. He now claims the PCRA court erred in denying him an evidentiary
hearing on his petition, thus denying him the opportunity to demonstrate that
his counsel was ineffective for failing to object to the interpreter not
communicating the terms of the plea agreement accurately.
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In Commonwealth v. Maddrey, 205 A.3d 323 (Pa. Super. 2019), this
Court reiterated:
It is well settled that “[t]here is no absolute right to an evidentiary
hearing on a PCRA petition, and if the PCRA court can determine
from the record that no genuine issues of material fact exist, then
a hearing is not necessary.” Commonwealth v. Jones, 942 A.2d
903, 906 (Pa. Super. 2008). “[T]o obtain reversal of a PCRA
court’s decision to dismiss a petition without a hearing, an
appellant must show that he raised a genuine issue of fact which,
if resolved in his favor, would have entitled him to relief, or that
the court otherwise abused its discretion in denying a hearing.”
Commonwealth v. Hanible, 612 Pa. 183, 30 A.3d 426, 452
(2011).
Id. at 328.
As the Commonwealth observes:
[T]o merit entitlement to an evidentiary hearing on a claim of
ineffectiveness, a defendant must “set forth an offer to prove at
an appropriate hearing sufficient facts upon which a reviewing
court can conclude that . . . counsel may have, in fact, been
ineffective.” Commonwealth v. Priovolos, 552 Pa. 364, 368-
69, 715 A.2d 420, 422 (1998)[.] It is well-settled that
ineffectiveness claims cannot considered in a vacuum.
[Commonwealth v. Thomas, 744 A.2d 713, 716 (Pa. 2000)].
Counsel cannot be found ineffective where the petition fails to
specifically allege facts sufficient to support his claim. Id.Commonwealth Brief at 10 (some citations omitted).
In its Rule 1925(a) opinion, the PCRA court explained:
After reviewing the written guilty plea colloquy with his attorney,
Appellant executed the written plea agreement. Thereafter, the
court accepted Appellant’s plea and sentenced him in accordance
with the negotiated plea agreement. [A]ll communications
between trial counsel and Appellant, including a review of his
written plea colloquy, his post-sentence and appellate rights, his
sex offender registration and notification requirements, his
guidelines worksheet, and the written plea agreement were
completed with the benefit of a certified Arabic court translator.
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Appellant failed to raise any objection to the translator or their
interpretation of the court proceedings at that time of on direct
appeal.
[] Appellant’s argument mirrors that of the appellant in
Commonwealth v. Watkins, 108 A.3d 692 (Pa. 2014). In that
case, the Pennsylvania Supreme Court determined that if an
appellant makes no attempt to identify specifically the “legitimate
material factual disputes” that he alleges warranted a hearing, as
well as develop relevant argument, his “claim of PCRA court
procedural error cannot succeed.” Watkins, 108 A.3d at 735
(emphasis added). In the matter at bar, Appellant failed to
develop any relevant argument as to how the court translation
was somehow inaccurate. Herein, Appellant argues, in a broad
and cursory fashion, that the court translator provided an
inaccurate translation of the court proceedings. In his initial PCRA
filing, Appellant fails to identify any words or phrases that were
purportedly translated incorrectly or inaccurately and,
importantly, how any purported inaccuracy caused his plea to be
unknowing, unintelligent, or involuntary in nature. Appellant’s
assertion that his claim warranted a hearing when he fails to both
identify and argue with specificity what factual issues remain in
contention should be denied. Appellant has failed to satisfy his
burden and his reliance on speculation, and failure to assert facts,
which if believed, would support his claim cannot be equated with
a genuine issue concerning a material fact that warrants an
evidentiary hearing.
PCRA Court Opinion, 12/23/20 at 7-8.
We agree with the PCRA court’s analysis. As the excerpt from the PCRA
court’s opinion reflects, Appellant failed to offer any support for his assertion
that the translator was dishonest, that the translations were inaccurate, or
that he was prejudiced in any way by virtue of the translations provided by
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the certified Arabic court translator.3 Appellant has failed to “show that he
raised a genuine issue of fact which, if resolved in his favor, would have
entitled him to relief, or that the court otherwise abused its discretion in
denying a hearing.” PCRA Court Opinion, 12/23/20, at 7 (quoting Hanible,
30 A.3d at 452).
We find no abuse of discretion in the PCRA court’s denial of an
evidentiary hearing. Therefore, we will not disturb its ruling.
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3 Although Appellant had the benefit of the PCRA court’s Rule 1925(a) opinion
when preparing his brief, he did not seize upon the opportunity to expand his
“broad and cursory” allegations regarding the translator. Similarly, Appellant
did not file a response to the PCRA court’s Rule 907 notice in which the court
addressed the 11 allegations of ineffectiveness raised in Appellant’s PCRA
petition, including the assertion the translator was dishonest and did not
accurately present the dialogue between the court and the petition. In the
Rule 907 notice, the court observed that Appellant “fails to cite the record or
indicate when during the proceeding this purported breakdown in translation
occurred. [Appellant] also makes no specific reference as to where or when
any documents were inaccurately or dishonestly represented. This claim is
unsubstantiated by fact or record and fails because of vagueness.” Rule 907
Notice, 9/21/20, at 15-16. Further, in response to Appellant’s assertion that
the translator provided an inaccurate translation of the court proceedings, the
PCRA court noted that Appellant “fails to identify any words or phrases that
were inaccurately translated and how that purported inaccuracy cause his plea
to be unknowing, unintelligent, or involuntary.” Id. at 16.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/26/2021
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