Com. v. Hooker, S. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SHARIF HOOKER :
:
Appellant : No. 1388 EDA 2021
Appeal from the PCRA Order Entered June 10, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001279-2007
BEFORE: NICHOLS, J., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED OCTOBER 5, 2022
Sharif Hooker (“Hooker”) appeals from the order dismissing his petition
filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
The factual background of this appeal arises from the 2006 robbery of
Curtis Williams, Jr. (“Williams”) and the attempts to shoot Williams that
injured two bystanders, Carin Georigi (“Georigi”) and Malika Huff (“Huff”).
The same night as the robbery and shooting, Williams gave a written and
signed statement to detectives.2 In his statement, Williams explained that
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1 See 42 Pa.C.S.A. §§ 9541-9546.
2 A detective contemporaneously transcribed Williams’s statement, and
Williams signed each page of his statement. See N.T., 3/19/08, at 222; N.T.,
3/18/08, at 79. At trial, the Commonwealth presented Williams’s statement
to detectives as substantive evidence. See N.T., 3/24/08, at 136-37 (trial
court’s instruction to the jury that it could consider Williams’s prior
inconsistent statement for the truth of the matters asserted in that
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Hooker and Aaron Briddell (“Briddell”) entered his Ford Expedition, drove him
around Philadelphia, hit him on the head with their guns, and took money
from him. See N.T., 3/18/08, at 80; see also N.T., 3/19/08, at 228-29.
Williams related that, at one point, two of Hooker’s friends approached the car
and stated that Hooker and Briddell should just kill him because they already
hit him. See N.T., 3/19/08, at 229. At some point, a light-skinned black male
also got into the car. See id. at 238. Later, they parked at 73rd and Garman
Streets, where Williams’s sister owned a home that she rented to “Geese,”
who was later identified at trial as Augustus Victor (“Victor”). See N.T.,
3/19/08, at 20-22, 91, 229. While parked, Williams saw Victor and called out
to him from the car to get his attention. See N.T., 3/18/08, at 80-83. As
Victor approached the car, Williams managed to flee to a nearby home. See
id. at 81. Williams told detectives that Briddell had been driving, Hooker was
in the back seat of the car, and Hooker and Briddell both shot at him as he
ran into the house. See N.T., 3/19/08, at 232, 237.3 The shots did not hit
Williams, but struck Georigi and Huff.
In his preliminary hearing testimony and at trial, Williams gave different
versions of the incident that minimized Hooker’s participation in the robbery
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statement); see also Pa.R.E. 803.1(1); Commonwealth v. Lively, 610 A.2d
7, 10 (Pa. 1992).
3One of the bystanders struck by the gunfire testified at trial that she saw
Williams flee from the back passenger side of the car. See N.T., 3/19/08, at
111. Williams told detectives that Hooker put his hand out of the car window
and fired, while Briddell, who was in the driver’s seat, opened the door, stood
up, and fired across the car. See id. at 235-36.
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and exculpated him in the shooting. See, e.g., N.T., 3/18/08, at 59-72
(Williams’s trial testimony that: (1) Briddell barged into the car while Williams
and Hooker were talking; (2) Hooker did not appear to know what was going
on during the robbery; (3) Hooker asked Briddell to put the gun away and not
to shoot; (4) Hooker never hit him during the robbery; (5) Williams only saw
one gun in the car; (6) Hooker told Williams to run before driving away; and
(7) Williams only saw Briddell holding a gun out of the window of the car).
Although Williams had told detectives that Hooker was in the back seat of the
car and had a gun, at trial, Williams testified that Hooker was driving the car
and was unarmed. See id. at 62-63, 71.4
In 2008, a jury found Hooker guilty of three counts of aggravated
assault, three counts of attempted murder, and one count each of criminal
conspiracy, robbery, and kidnapping. The trial court sentenced Hooker to
serve an aggregate term of twenty to forty years of imprisonment. Hooker
took a direct appeal in which his counsel petitioned for leave to withdraw and
filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967) and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). This Court affirmed
the judgment of sentence and granted counsel leave to withdraw. See
Commonwealth v. Hooker, 34 A.3d 220 (Pa. Super. 2011) (unpublished
memorandum) (“Hooker I”). Hooker filed a timely PCRA petition, and the
PCRA court reinstated Hooker’s direct appeal rights.
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4In his preliminary hearing testimony, Williams stated that Hooker had a gun
but was an unwilling participant in the robbery. See N.T., 3/19/08, at 81.
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In his reinstated direct appeal, Hooker challenged the sufficiency of the
evidence and the legality of his sentence. This Court concluded that there was
sufficient evidence to establish Hooker’s mens rea for the offenses, but we
held that the trial court imposed illegal mandatory minimum sentences and
failed to merge the aggravated assaults and attempted murders for sentencing
purposes. See Commonwealth v. Hooker, 170 A.3d 1244, 2017 WL
2261666, at *4-5 (Pa. Super. 2017) (unpublished memorandum) (“Hooker
II”). On November 9, 2017, the trial court resentenced Hooker to an
aggregate term of twenty to forty years of imprisonment. This Court affirmed
the judgment of sentence, and our Supreme Court denied allowance of appeal
in August 2019. See Commonwealth v. Hooker, 209 A.3d 1087, 2019 WL
855690 (Pa. Super. 2019) (unpublished memorandum) (“Hooker III”),
appeal denied, 217 A.3d 222 (Pa. 2019).
Hooker timely filed a pro se PCRA petition on January 9, 2020. The
PCRA court appointed counsel who filed an amended PCRA petition. The
Commonwealth moved to dismiss Hooker’s petition, and the PCRA court issued
a notice of intent to dismiss Hooker’s petition. See Pa.R.Crim.P. 907. Hooker
did not respond to the Rule 907 notice, and the PCRA court dismissed the
petition. Hooker timely appealed and complied with the PCRA court’s order to
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submit a Pa.R.A.P. 1925(b) statement. The PCRA court filed a Rule 1925(a)
opinion concluding that Hooker’s petition was untimely or meritless.5
Hooker raises the following issues that we have reordered for
disposition:
1. Whether the PCRA court erred by dismissing the PCRA petition
when clear and convincing evidence was presented to establish
violations of [Hooker’s] constitutional rights under the United
States and Pennsylvania Constitutions.
2. Whether the PCRA court erred by dismissing the PCRA petition
when clear and convincing evidence was presented to establish
that the trial court issued an illegal sentence by imposing a
sentence greater than the lawful maximum, as the court did
not consider the protection of the public, the gravity of the
offense as it relates to the victim and the community, the
rehabilitative needs of the defendant, and the sentencing
guidelines.
3. Whether the PCRA court erred by dismissing the PCRA petition
when clear and convincing evidence was presented to establish
that trial counsel was ineffective for refusing to investigate and
present evidence of [Hooker’s] actual innocence, as well as all
available exculpatory evidence.
4. Whether the PCRA court erred by dismissing the PCRA petition
when clear and convincing evidence was presented of newly
discovered evidence that firmly established [Hooker’s] actual
innocence and would have exonerated him if introduced at trial.
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5 Because Hooker’s prior PCRA proceeding resulted in the reinstatement of his
direct appeal rights, the instant PCRA proceeding arises from Hooker’s timely
first PCRA petition. See Commonwealth v. Turner, 73 A.3d 1283, 1286
(Pa. Super. 2013) (stating that “when a PCRA petitioner’s direct appeal rights
are reinstated nunc pro tunc in his first PCRA petition, a subsequent PCRA
petition will be considered a first PCRA petition for timeliness purposes”)
(internal citation omitted). Therefore, the PCRA court erred to the extent it
concluded that Hooker’s PCRA petition was not timely filed.
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5. Whether the PCRA court erred by failing to grant an evidentiary
hearing.
Hooker’s Brief at 9.
Our standard of review of an order dismissing a PCRA petition is well
settled:
Our 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 record in the light most favorable to the
prevailing party in the PCRA court. We are bound by any
credibility determinations made by the PCRA court where they are
supported by the record. However, we review the PCRA court’s
legal conclusions de novo.
Commonwealth v. Staton, 184 A.3d 949, 954 (Pa. 2018) (internal citation
and quotations omitted).
Hooker’s first and second issues challenge the sufficiency of the
evidence and the trial court’s sentence, respectively, and we initially consider
whether these issues state proper claims for relief under the PCRA. See
Commonwealth v. Price, 876 A.2d 988, 995 (Pa. Super. 2005) (noting that
an appellant in a PCRA appeal cannot assert an error as if he were presenting
the claim on direct appeal).
To state a cognizable claim for PCRA relief, a petitioner must plead one
of seven bases for relief under 42 Pa.C.S.A. § 9543(a)(2) and establish that
the claim has not been previously litigated or waived. See 42 Pa.C.S.A.
§§ 9543(a)(2) (setting forth grounds for PCRA relief), 9543(a)(3) (requiring
the petition to prove the claim has not been previously litigated or waived),
9544 (defining previous litigation and waiver).
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In his first issue, Hooker asserts that the evidence was insufficient
because the Commonwealth failed to prove that he shot at Williams. This
claim could have been raised in Hooker’s reinstated direct appeal. Therefore,
Hooker’s sufficiency challenge is waived and is not cognizable under the PCRA.
See 42 Pa.C.S.A. § 9544(b) (stating that an issue is waived for the purpose
of the PCRA, “if the petitioner could have raised it but failed to do so before
trial, at trial, during unitary review, on appeal or in a prior state postconviction
proceeding”); see also Commonwealth v. Bond, 819 A.2d 33, 39 (Pa.
2002). Therefore, Hooker’s first issue challenging the sufficiency of the
evidence merits no relief.
Hooker’s second issue challenges the sentence imposed upon
resentencing. He initially asserts that the trial court resentenced him to an
illegal sentence that exceeded the lawful maximum. The remainder of his
argument, however, focuses on the trial court’s failure to consider the
sentencing guidelines and the sentencing factors stated in 42 Pa.C.S.A.
§ 9721(b). Additionally, he challenges the trial court’s decision to order some
of the sentences to run consecutively.
A challenge to an illegal sentence is cognizable under the PCRA. See
Commonwealth v. Prinkey, 277 A.3d 554, 560, 568 (Pa. 2022) (holding
that a claim of a vindictive sentence was cognizable under the PCRA as a
challenge to the legality of sentence). The essence of a legality of sentence
claim is “whether, assuming the [petitioner’s] claim prevails, the result would
be that the trial court lacked authority to impose the sentence at issue.” See
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id. at 563. However, if the petitioner does not challenge the existence of
authority to impose a sentence and merely disagrees with the trial court’s
exercise of that authority, then the challenge goes to the discretionary aspects
of a sentences. See id. at 563-64. Unlike a challenge to an illegal sentence,
challenges to the discretionary aspects of a sentence are not cognizable under
the PCRA. See Commonwealth v. Fowler, 930 A.2d 586, 593 (Pa. Super.
2007).
Our review confirms that the trial court, upon resentencing Hooker,
imposed sentences well within the statutory maximums for the offenses.6
Thus, Hooker has not established a viable challenge to the legality of his
sentence, and our own review reveals no basis to conclude that the trial court
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6 The trial court resentenced Hooker to the following terms of imprisonment:
Conspiracy to commit murder (count 1): five to ten years;
Aggravated assault against Williams (count 2): five to ten years,
consecutive;
Robbery threatening immediate serious bodily injury (count 3):
five to ten years concurrent;
Aggravated assault against Huff (count 18): five to ten years,
consecutive;
Attempted murder of Georigi (count 26): five to ten years,
consecutive.
See Order of Sentence, 11/9/17. The grades of all the above-listed charges
were first-degree felonies, which carried maximum prison terms of twenty
years. See id.; see also 18 Pa.C.S.A. § 1103(1). We add that the trial court,
after this Court’s remand in Hooker II, did not impose mandatory minimum
sentences or sentence separately on the counts subject to merger. In Hooker
III, this Court also determined that the trial court properly awarded credit for
time upon resentencing Hooker.
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imposed an illegal sentence. Hooker’s remaining arguments that the trial
court failed to consider the sentencing guidelines and the relevant section
9721(b) factors when imposing consecutive sentences go to the discretionary
aspects of his sentence. See Commonwealth v. Cartrette, 83 A.3d 1030,
1042-43 (Pa. Super. 2013) (en banc) (discussing an argument based on the
trial court’s failure to consider section 9721(b) factors as a challenge to the
discretionary aspects of a sentence). Such challenges are not cognizable
under the PCRA and could have been raised in the trial court in anticipation of
his most recent direct appeal.7 See Fowler, 930 A.2d at 593. Thus, the
PCRA court did not abuse its discretion in dismissing Hooker’s sentencing
challenges.8
Hooker, in his third issue, argues that trial counsel was ineffective
because counsel failed to investigate and call potential witnesses. To establish
a claim of ineffective assistance of counsel, a PCRA petitioner must plead and
prove that: (1) his underlying claim has arguable merit; (2) counsel did not
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7 In Hooker III, this Court concluded that Hooker had waived challenges to
the discretionary aspects of his sentence in his appeal from the resentencing
proceeding by failing to object and preserve the issue in a post-sentence
motion. See Hooker III, 2019 WL 855690, at *2. Notably, Hooker has made
no effort to plead or argue a separate claim that his counsel was ineffective
for failing to preserve a challenge to the discretionary aspects of his sentence.
8 We observe that the PCRA court discussed the appropriateness of the
sentence following resentencing in its Rule 1925(a) opinion. However,
because Hooker’s challenges to the discretionary aspects of his sentence as if
on direct appeal are not cognizable under the PCRA, we decline to review the
PCRA court’s discussion.
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have a reasonable basis for his act or omission; and (3) the petitioner suffered
prejudice as a result of counsel’s deficient performance. See
Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018); 42 Pa.C.S.A.
§ 9543(a)(2)(ii). The failure to satisfy any prong of this test is fatal to the
claim. See Wholaver, 177 A.3d at 144.
It is well settled that defense counsel has a general duty to undertake
reasonable investigations, including interviewing potential witnesses, and that
an unreasonable failure to prepare for trial is an abdication of the minimum
performance required of defense counsel. See Commonwealth v. Johnson,
966 A.2d 523, 535 (Pa. 2009). Further, when claiming that trial counsel failed
to call a potential witness, the petitioner must plead and prove that: (1) the
witness existed; (2) the witness was available to testify for the defense; (3)
counsel knew of, or should have known of, the existence of the witness; (4)
the witness was willing to testify for the defense; and (5) the absence of the
testimony of the witness was prejudicial. See id. at 536.
Hooker asserts that he informed his trial counsel of witnesses who could
have corroborated Williams’s trial testimony and established his actual
innocence. The PCRA court dismissed this claim, in part, because Hooker
failed to identify any potential witnesses in his PCRA petition or provide
witness certifications.
We agree with the PCRA court that Hooker’s general assertions that
there were witnesses who could have supported Williams’s trial testimony and
established actual innocence did not state an ineffective assistance of counsel
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claim. In his amended PCRA petition and his argument before this Court,
Williams fails to support this claim by identifying any witness, providing a
summary of the proposed testimony the witness could offer, or asserting that
the witness would be available and willing to testify. Accordingly, Hooker did
not establish any of the elements of an ineffectiveness claim based on
counsel’s failure to investigate or call witnesses at trial, and the PCRA court
properly dismissed his claim. See Johnson, 966 A.2d at 535.
In his fourth issue, Hooker asserts that he was entitled to a new trial
based on after-discovered evidence. An after-discovered evidence claim
requires a petitioner to demonstrate that new evidence: “(1) could not have
been obtained prior to the conclusion of the trial by the exercise of reasonable
diligence; (2) is not merely corroborative or cumulative; (3) will not be used
solely to impeach the credibility of a witness; and (4) would likely result in a
different verdict if a new trial were granted.” Commonwealth v. Small, 189
A.3d 961, 972 (Pa. 2018); see also 42 Pa.C.S.A. § 9543(a)(2)(vi).
Hooker claims that he presented a viable after-discovered evidence
claim based on a “statement summary of Augustus Victor” that he attached
to his PCRA petition. The summary states in relevant part:
Victor will testify that he saw . . . Hooker in the front driver seat
of the vehicle and . . . Williams in the front passenger seat. . . .
Victor would also testify that he saw . . . Briddell in the back seat
along with an unidentified, light skin black male, also in the back
seat. . . . Victor would further testify that . . . Hooker did not have
a gun and that the gunshots came only from the back seat of the
vehicle. . . . Victor will also testify that he was ready and willing
to testify to this same information during [Hooker’s] trial, but was
not contacted or called as [a] witness.
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Amended PCRA Petition, 10/29/20, at 11 (unnumbered). Hooker asserts that
he obtained this information from Victor “after [he] was convicted at trial” and
could not have discovered it earlier because he was in custody before trial.9
The PCRA court rejected this issue based on timeliness grounds because
Hooker failed to meet his burden of establishing his due diligence in learning
about Victor. See PCRA Court Opinion, at 12-13. The court thus concluded
that “the new facts exception to the PCRA time-bar does not apply.” See id.
at 13.
As noted above, the PCRA court’s rejection of this claim based on the
PCRA time bar was in error because Hooker’s instant PCRA petition constitutes
a timely first PCRA proceeding after his reinstated direct appeal. See Turner,
73 A.3d at 1286. This Court, however, may affirm the PCRA court’s decision
on any basis apparent in the record. See Commonwealth v. Smith, 194
A.3d 126, 132 (Pa. Super. 2018).
Following our review, we conclude that the record belies Hooker’s
assertion that he was unaware that Victor had exculpatory information that
could not have been discovered before or during trial. The trial transcripts
establish that Victor’s identity was known by the time of trial. See N.T.,
3/19/08, at 91. Further, Hooker either knew or should have known that Victor
could have information relevant to his defense. Williams identified Victor as
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9 We emphasize that Hooker does not assert that Victor was one of the
witnesses he asked counsel to investigate or call as a witness at trial in relation
to his third issue in this appeal.
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“Geese,” his sister’s tenant, and as the individual who approached the car
before Williams fled from it. See N.T., 3/18/08, at 81. Thus, Hooker’s
assertion that he could not have obtained exculpatory information from Victor
by the exercise of reasonable diligence lacks any support in the record, and
his claim merits no relief.10
In his fifth issue, Hooker challenges the dismissal of his amended PCRA
petition without an evidentiary hearing. A PCRA petitioner has “no absolute
right to an evidentiary hearing on a . . . 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) (internal citation omitted); see also Pa.R.Crim.P. 907(1).
Hooker argues that the PCRA court erred by failing to afford him “every
conceivable legitimate benefit” when reviewing the claims raised in his
petition. We have found no basis to conclude that Hooker’s amended PCRA
petition raised any genuine issues of material fact. Therefore, we agree with
the PCRA court that an evidentiary hearing was not required.
Order affirmed.
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10 We add that Hooker only vaguely refers to discovering that Victor had
exculpatory information after his conviction. Hooker fails to explain why he
did not raise his after-discovered evidence claim in his prior PCRA proceeding
or in his reinstated direct appeal, the latter of which occurred more than nine
years after his conviction. Therefore, we could also find that Hooker waived
his claim pursuant to section 9544(b).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/05/2022
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