Com. v. Sadik, S.

J-S49005-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAWN SADIK, :
:
Appellant : No. 889 WDA 2016
Appeal from the PCRA Order May 23, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0000811-2008
BEFORE: DUBOW, J., SOLANO, J., and FITZGERALD J.*
MEMORANDUM BY DUBOW, J.: FILED DECEMBER 20, 2017
Appellant, Shawn Sadik, appeals from the Order entered in the
Allegheny County Court of Common Pleas denying his first Petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-46.
Upon careful review, we affirm.
On direct appeal, this Court summarized the pertinent facts as follows:
In the early morning hours of July 13, 1993, Pittsburgh police
found the naked, bleeding body of Mary Mitchell lying on a
sidewalk near the entrance to a park. Her head was swollen,
and she was gasping for air. She had a large wound on her neck
that was bleeding profusely. It was later determined that a
sharp object had been forced through her vagina, and into her
intestine where it cut a blood vessel. After the attackers
removed the object from her body, they placed it on the ground,
where police later found it and identified it as a piece of
aluminum window frame.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S49005-17
Based on leads they received from the two men who found the
victim in the park, police arrested [Appellant] and Stevenson
Rose for the attack. When police arrested Rose they found a
pair of blood spattered white shorts and a white tee shirt with
blood on it in his room. When police arrested [Appellant] at his
residence they found a pair of blood-stained Timberland black
combat-type boots in his room.
[Appellant] agreed to be interviewed by police shortly after his
arrest. He told them that he, Rose, and a third man saw the
victim walk past them toward the park. She was with some
young men who were saying that they wanted her to perform
oral sex on them. [Appellant] said that twenty to thirty minutes
later, Rose walked into the park and spoke with the young men.
[Appellant], who had been in a nearby alley, then went into the
park where he saw Rose punch the victim, who was unclothed.
He knocked her to the ground and stated several times that he
was going to kill the victim. [Appellant] then admitted that he
kicked the victim once in the face and three times in the head.
He estimated that Rose kicked the victim eighty times, and
stated that during the seven or eight times that Rose fell on the
victim, he would help [Rose] get back up. After the beating,
Rose and [Appellant] left the victim bleeding in the park. She
survived the attack.
In February 1994, a jury convicted [Appellant] of [C]riminal
[A]ttempt ([H]omicide), [A]ggravated [A]ssault, [R]eckless
[E]ndangerment, and [C]onspiracy. The court imposed
consecutive sentences of ten to twenty years’ incarceration for
[A]ggravated [A]ssault and five to ten years’ incarceration for
[C]onspiracy. No sentence was imposed for the remaining
convictions. [Appellant] filed a direct appeal, which this Court
denied. Commonwealth v. Sadik, 664 A.2d 1059 (Pa. Super.
1995) (unpublished memorandum).
The victim spent several months in the hospital, and then was
transferred to a rehabilitation hospital. Although she regained
some level of consciousness, she was unable to recognize her
children and was incoherent. She was completely bedridden,
and could only move one arm. The victim was transferred to a
nursing home where she remained for fourteen years until her
death on September 17, 2007.
On October 8, 2007, [Appellant] was charged with [C]riminal
[H]omicide in connection with the death of the victim, Mary
-2-
J-S49005-17
Mitchell. A jury convicted him of murder of the first degree, and
on January 11, 2011, the court imposed a sentence of life
imprisonment, with credit for time served since his arrest on July
7, 1993.
Commonwealth v. Sadik, 46 A.3d 806 (Pa. Super. 2012) (unpublished
memorandum) (footnotes omitted).
Appellant filed a direct appeal, and on February 3, 2012, this Court
affirmed Appellant’s Judgment of Sentence. Id. Our Supreme Court denied
Appellant’s Petition for Allowance of Appeal on June 27, 2012.
Commonwealth v. Sadik, 47 A.3d 847 (Pa. 2012). Appellant filed a
Petition for Writ of Certiorari, which the United States Supreme Court denied
on October 9, 2012. Sadik v. Pennsylvania, 568 U.S. 944 (2012).
On October 9, 2013, Appellant, represented by private counsel, filed a
timely PCRA Petition. On November 2, 2015, the PCRA court held an
evidentiary hearing on Appellant’s PCRA Petition. The PCRA court denied
Appellant’s Petition on May 19, 2016.
Appellant timely appealed, and Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following four issues, verbatim, for our review:
1. Trial [c]ounsel rendered ineffective assistance by failing to
challenge [Appellant’s] confession.
2. Trial [c]ounsel rendered ineffective assistance by failing to
investigate and pursue a defense based upon [Appellant’s]
intellectual disability.
3. Trial [c]ounsel rendered ineffective assistance by failing to
adequately present a defense of voluntary intoxication.
-3-
J-S49005-17
4. [Appellant] is serving an unconstitutional sentence. [] A
sentence of life imprisonment without parole for an individual
who 1.) was under the age of 21 at the time of the offense and
2.) has an intellectual and developmental disability is
unconstitutional under the United States and Pennsylvania
[C]onstitutions.
Appellant’s Brief at 11.
We review the denial of a PCRA Petition to determine whether the
record supports the PCRA court’s findings and whether its Order is otherwise
free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
2014). “The scope of review is limited to the findings of the PCRA court and
the evidence of record, viewed in the light most favorable to the prevailing
party at the trial level.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.
2014) (citation omitted).
Ineffective Assistance of Counsel Claims
Appellant’s first three issues contend that trial and appellate counsel
provided ineffective assistance to Appellant. In analyzing claims of
ineffective assistance of counsel, we presume that counsel was effective
unless the PCRA petitioner proves otherwise. Commonwealth v. Williams,
732 A.2d 1167, 1177 (Pa. 1999). In order to succeed on a claim of
ineffective assistance of counsel, Appellant must demonstrate (1) that the
underlying claim is of arguable merit; (2) that counsel’s performance lacked
a reasonable basis; and (3) that the ineffectiveness of counsel caused the
appellant prejudice. Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa.
2003). “[Where] the underlying claim lacks arguable merit, counsel cannot
-4-
J-S49005-17
be deemed ineffective for failing to raise it.” Commonwealth v. Koehler,
36 A.3d 121, 140 (Pa. 2012). Appellant bears the burden of proving each of
these elements, and his “failure to satisfy any prong of the ineffectiveness
test requires rejection of the claim of ineffectiveness.” Commonwealth v.
Daniels, 963 A.2d 409, 419 (Pa. 2009).
To demonstrate prejudice, a petitioner must establish that “there is a
reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 694 (1984); accord Commonwealth v. Cox,
983 A.2d 666, 678 (Pa. 2009). A reasonable probability is a probability
sufficient to undermine confidence in the outcome of the
proceeding. See Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). As
our Supreme Court has made clear, “boilerplate allegations and bald
assertions of no reasonable basis and/or ensuing prejudice cannot satisfy a
petitioner's burden to prove that counsel was ineffective.” Commonwealth
v. Paddy, 15 A.3d 431, 443 (Pa. 2011).
Finally, “when it is clear that the party asserting a claim of
ineffectiveness has failed to meet the prejudice prong, the claim may be
dismissed on that basis alone without a determination of whether the first
two prongs of the ineffectiveness standard have been met.”
Commonwealth v. Zook, 887 A.2d 1218, 1227 (Pa. 2005) (citation
-5-
J-S49005-17
omitted). With this standard in mind, we address Appellant’s first three
issues.
Motion to Suppress
In his first issue, Appellant avers that trial counsel was ineffective for
failing to file a Motion to Suppress Appellant’s 1993 confession. A petitioner
averring ineffective assistance of counsel based on the failure to file a
motion to suppress must prove that the underlying suppression claim has
merit. Commonwealth v. Jones, 942 A.2d 903, 909 (Pa. Super. 2008).
Without such proof, a petitioner fails to meet his burden of showing that his
ineffectiveness claim is of arguable merit. Id.
Relevant to the instant appeal, Appellant’s 1993 confession was used
as evidence against him in two prosecutions: the instant case, and in the
1994 trial on charges of, inter alia, Attempted Murder. Prior to Appellant’s
initial trial, his original counsel (“1994 Counsel”)1 filed an Omnibus Pre-Trial
Motion averring that he lacked the mental capacity to make an intelligent,
knowing, and voluntary waiver of his Miranda2 rights. After a hearing, the
suppression court denied Appellant’s Motion. On appeal, this Court
thoroughly analyzed the suppression court testimony, and ultimately agreed
with the 1994 suppression court’s findings that “[A]ppellant understood his
____________________________________________
1
Unless otherwise specified by the designation “1994 Counsel” all references
to trial counsel refer to counsel in the instant case.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
-6-
J-S49005-17
Miranda rights and issued a voluntary waiver of those rights.”
Commonwealth v. Sadik, No. 630 PITTSBURGH 1994, unpublished
memorandum at 7 (Pa. Super. filed May 16, 1995).
At the PCRA hearing in the instant case, Appellant’s 2008 trial counsel
testified that he did not seek to suppress Appellant’s 1993 confession in the
2008 trial because it had already been deemed admissible in the 1994 trial.
Appellant did not present any new evidence that would support a Motion to
Suppress, but instead relied entirely on the evidence presented in the 1994
suppression hearing. The only “new evidence” that he presented is his
general claim that advances in both science and case law since 1994 reflect
a better understanding of how cognitive deficiencies can increase the
likelihood of false confessions. Appellant’s Brief at 16-18.
Our review indicates that Appellant failed to meet his burden of
proving that the underlying claim has merit or that he was prejudiced by
trial counsel’s failure to revive the suppression motion. In light of the fact
that the same confession had previously been found admissible, and the
admissibility had been upheld on an appeal before this Court, trial counsel’s
decision not to file a Motion to Suppress was reasonable. The parties are
already familiar with this Court’s thorough analysis of the voluntariness of
Appellant’s confession, and we need not replicate it here. See Sadik, supra
at 2-7. Appellant’s citations to a single case and a single law review article
fail to establish that either science or the law have evolved such that there is
-7-
J-S49005-17
a reasonable probability that Appellant’s 2008 counsel would have prevailed
where his 1994 counsel had failed.
Voluntary Intoxication Defense
In his second issue, Appellant avers that trial counsel failed to prepare
and present an intoxication defense. Appellant’s Brief at 19-22.
Contrary to Appellant’s averment, trial counsel did present a defense
of voluntary intoxication at Appellant’s trial. Trial counsel called as a
defense witness Appellant’s brother, who testified that he was present when
Appellant returned home after the beating, and that Appellant was drunk,
unsteady on his feet, and smelled of alcohol. N.T., Jury Trial, at 334-35.3
In her closing argument, trial counsel pointed out that in his statement
to police, Appellant told officers that he had been drinking vodka prior to the
assault. Id. at 350-51. She used the brother’s testimony and Appellant’s
statement to make a voluntary intoxication argument, arguing to the jury
that Appellant’s voluntary intoxication could reduce the charges from First-
degree Murder to Third-degree Murder. Id. at 349-50. Finally, the trial
court instructed the jury on voluntary intoxication as a defense to First-
degree Murder. Id. at 396-97.
Appellant concedes that trial counsel presented a defense of voluntary
intoxication, but avers that the defense was inadequate because trial counsel
____________________________________________
3
The testimony from Appellant’s multi-day trial appears in a single volume
and is not separated by date.
-8-
J-S49005-17
failed to present evidence that Appellant “drank half a fifth of vodka.”
Appellant’s Brief at 22. Although Appellant makes the bald assertion that he
was prejudiced, he fails to articulate how the outcome of his trial would have
been different if the jury had heard the exact amount of vodka he allegedly
consumed that night. Given the other evidence of intoxication that trial
counsel presented and argued to the jury, we conclude that Appellant has
failed to meet his burden of establishing he was prejudiced by trial counsel’s
alleged failure to adequately prepare a voluntary intoxication defense.
Intellectual Disability Defense
In his final ineffective assistance claim, Appellant avers that trial
counsel was ineffective for failing to “offer evidence of [Appellant’s]
intellectual disability to attempt a diminished capacity defense or to attempt
to refute the evidence of specific intent.” Appellant’s Brief at 23-24.
As noted supra, our Supreme Court has previously stressed that
“boilerplate allegations and bald assertions” are insufficient to satisfy a
petitioner’s burden of establishing a lack of reasonable basis or the resulting
prejudice. Paddy, supra at 443.
Appellant’s entire argument on this claim consists of the following two
sentences and a single citation:
There is no valid legal strategy in failing to adequately
investigate and present an argument that a defendant lacked the
specific intent to kill in a criminal homicide case. The evidence
of [Appellant’s] specific intent was not so overwhelming as to
support the conclusion that the jury would have convicted had it
heard the evidence of the intellectual disability. See generally
-9-
J-S49005-17
Commonwealth v. Wright, 961 A.2d 119 (Pa. 2008)
(concluding that there is not prejudice when the evidence of guilt
is overwhelming).
Appellant’s Brief at 24. Appellant failed to adequately develop this claim,
and is not entitled to relief.4
Illegal Sentence Claim
In his final issue, Appellant avers that he is serving an illegal sentence
based on Miller v. Alabama, 567 U.S. 460 (2012), and Atkins v. Virginia,
536 U.S. 304 (2002). Our review of the record indicates that neither case is
applicable to the instant facts, and Appellant is not entitled to relief.
In Atkins v. Virginia, the United States Supreme Court considered
whether the execution of “mentally retarded offenders” violates the Eighth
Amendment’s ban on cruel and unusual punishment.5 The Court recognized
a myriad of ways in which individuals with intellectual disabities differ from
their counterparts, including their diminished culpability and the increased
likelihood of wrongful execution. Atkins, supra at 319-21. Ultimately the
____________________________________________
4
We note that, on direct appeal, this Court affirmed both the sufficiency and
the weight of the evidence establishing that he had the specific intent
required to support a conviction for First-degree Murder. Sadik, 46 A.3d at
806. Although that review did not include evidence of Appellant’s intellectual
disability, Appellant’s cursory argument fails to demonstrate how such
evidence would have tipped the scales in his favor.
5
In recent years the term “mentally retarded” has been replaced by the
term “intellectual disabilities,” the phrase we will use for purposes of this
appeal.
- 10 -
J-S49005-17
Court concluded that “death is not a suitable punishment for a mentally
retarded criminal.” Id. at 321.
In Miller v. Alabama, the United States Supreme Court held that
“mandatory life without parole for those under the age of 18 at the time of
their crimes violates the Eighth Amendment's prohibition on ‘cruel and
unusual punishments.’” Miller, supra at 465. The Court’s reasoning was
based on the recognition that children are fundamentally different from
adults, lacking the maturity required to be considered fully culpable
offenders and capable of ready rehabilitation as they develop into adulthood.
Id. at 471-72.
Neither case applies to the instant set of facts. Although there is
evidence to suggest that Appellant suffers from an intellectual disability, he
has not been sentenced to death, and is, therefore, ineligible for relief under
Atkins.
Nor is he entitled to relief under Miller. This Court has previously
ruled that Miller does not apply to individuals who were 18 or older at the
time they committed murder. See Commonwealth v. Furgess, 149 A.3d
90 (Pa. Super. 2016) (holding that Miller did not apply to a 19–year–old
appellant convicted of homicide, even though that appellant claimed he was
a “technical juvenile” and relied on neuroscientific theories regarding
immature brain development to support his claim).
- 11 -
J-S49005-17
Although Appellant avers that he was eighteen at the time he beat
Mary Mitchell and left her for dead on a sidewalk, the record is clear that
Appellant was twenty years old on July 13, 1993. See, e.g., Criminal
Information, filed 1/24/08 (listing Appellant’s Date of Birth as 10/1/1972);
Sentencing Guidelines, filed 1/11/11 (same).
Accordingly, we conclude that Appellant is not entitled to relief on his
claim that he is serving an illegal sentence.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/20/2017
- 12 -