Com. v. Abdulhadi, I. ( 2014 )

J-S59022-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ILYAS ABDULHADI
Appellant No. 3309 EDA 2013
Appeal from the PCRA Order November 1, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0808601-2006
BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 25, 2014
Ilyas Abdulhadi appeals pro
petition filed pursuant to the Post Conviction Relief Act (PCRA). 1 After
review, we affirm.
In 2007, a jury convicted Abdulhadi of first-degree murder,2 following
the shooting death of Tito Lomax at his Arch Street, Philadelphia home. The
court sentenced Abdulhadi to a mandatory life sentence without parole
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*
Retired Senior Judge assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
2
18 Pa.C.S. § 2502(a).
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pursuant to 18 Pa.C.S. §1102(a)(1).3 Abdulhadi filed an unsuccessful post-
sentence motion, direct appeal and petition for allowance of appeal.
On December 6, 2010, Abdulhadi filed a timely pro se PCRA petition;
he amended the petition and counsel was appointed to represent him.
Counsel filed another amended petition and a supplemental petition raising
claims of ineffectiveness of counsel. Ultimately, the trial court issued a
hearing. Abdulhadi filed a response; the court dismissed the petition on
December 7, 2012.
On December 13, 2012, PCRA counsel filed a motion for
reconsideration after being contacted by two potential alibi witnesses whom
trial counsel failed to call to testify at trial. On December 27, 2012, in
response to a motion to vacate filed by PCRA counsel, the trial court vacated
provide the Commonwealth with certifications for each of the two potential
alibi witnesses. After reviewing the certifications filed by PCRA counsel, the
November 1, 2013, after reviewing several pro se Rule 907 responses filed
by Abdulhadi, denied his PCRA petition. Subsequently, Abdulhadi petitioned
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3
Abdulhadi was also sentenced to concurrent sentences of 10-
incarceration for conspiracy, 10-20 years in prison for robbery and 2½-5
years in prison for possession of an instrument of crime (PIC).
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the court to proceed pro se. The court held a Grazier4 hearing and granted
Abdulhadi leave to proceed pro se. This appeal follows.
On appeal, Abdulhadi contends that a person may not be convicted of
first-degree murder, except where the Commonwealth seeks the death
penalty. Therefore, he claims that all counsel were ineffective for failing to
instruction on first-degree murder
because the jurors were legally prohibited from finding him guilty in this
non-capital case.
First, we note that Abdulhadi has waived this claim for failure to raise
it prior to this collateral appeal.5 See 42 Pa.C.S. § 9544(b) (issue waived
under PCRA if petitioner could have raised it but failed to do so before trial,
at trial, on appeal or in prior state postconviction proceeding). However,
even if the claim were not waived, we would find it meritless.
Pursuant
been convicted of a murder of the first degree . . . shall be sentenced to
death or to a term of life imprisonment in accordance with 42 Pa.C.S. § 9711
(relating to sentencing procedure for murder
Pa.C.S. §1102(a)(1) (emphasis added). In the instant case, the
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4
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
5
Although Abdulhadi raised this claim earlier in a pro se pleading, see Newly
Discovered Evidence: PCRA Matter, 8/30/13, at 7-19, because he was
represented by counsel at the time, that pleading is a legal nullity. See
Commonwealth v. Ali, 10 A.3d 282 (Pa. 2010).
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Commonwealth chose not to seek the death penalty. Therefore, the court
was free to instruct the jury regarding a life sentence if it were to find
Abdulhadi guilty of first-degree murder. Moreover, the procedure referenced
in section 9711 only applies where a decision must be made regarding
whether a defendant should be sentenced to death or to life imprisonment
for murder in the first degree. Because the Commonwealth chose not to
seek the death penalty, section 1102(a)(1) clearly states that the only
permissible sentence is life in prison. Accordingly, there is no merit to
jury instruction regarding life imprisonment for first-degree
murder.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/2014
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