Com. v. Shamsiddeen, O.

J-S44021-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
OMAR SHAMSIDDEEN,
Appellant No. 122 EDA 2015
Appeal from the PCRA Order December 11, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-1142781-1993
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 22, 2016
Appellant, Omar Shamsiddeen, appeals from the December 11, 2014
order of the Court of Common Pleas of Philadelphia County (“PCRA court”),
denying relief under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-46. Appellant’s sole issue on appeal is whether the PCRA court
erred in denying the PCRA petition without a hearing. Upon review, we
affirm in part, reverse in part, and remand for resentencing.
The PCRA court summarized the procedural background of this matter
in its Pa.R.A.P. 1925(a) opinion, which we incorporate here by reference.
PCRA Court Opinion, 8/18/15, at 1-7. Briefly, after a jury trial that occurred
from October 14 through October 20, 1994, Appellant was convicted of
first-degree murder, criminal conspiracy, and possession of an instrument of
crime (“PIC”). Appellant was sentenced to life without the possibility of
J-S44021-16
parole on the murder charge, and sentenced concurrently to terms of five to
ten years on the criminal conspiracy charge, and two and one-half to five
years for PIC.
After numerous PCRA petitions to reinstate his direct appellate rights,
this Court affirmed his convictions on direct appeal on May 27, 2011. See
Commonwealth v. Shamsiddeen, No. 91 EDA 2009, unpublished
memorandum, at 1 (Pa. Super. Filed May 27, 2011).
Appellant filed a pro se PCRA petition on October 5, 2011. This
petition was amended twice. The second amendment is the instant petition,
which counsel filed on December 21, 2012. The PCRA court dismissed the
petition without a hearing. The instant appeal followed.
Appellant raises a sole issue on appeal.
I. Did the PCRA [c]ourt err when it dismiss[ed] [] Appellant’s
[a]mended PCRA [p]etition without a hearing, and all
where [Appellant] properly pled, and would have been able
to prove, that he was entitled to relief.
Appellant’s Brief at 3.
“There 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) (citing
Commonwealth v. Barbosa, 819 A.2d 81 (Pa. Super. 2003)). An
ineffective assistance of counsel claim “must meet all three prongs of the
test for ineffectiveness, if the court can determine without an evidentiary
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hearing that one of the prongs cannot be met, then no purpose would be
advanced by holding an evidentiary hearing.” Jones, 942 A.2d at 906. All
of the underlying PCRA claims in the instant matter, save one,1 are
allegations of ineffective assistance of counsel.
A PCRA petitioner is entitled to relief if he pleads and proves that prior
counsel rendered ineffective assistance of counsel. 42 Pa.C.S.A.
§ 9543(a)(2)(ii). “To prevail on an [ineffectiveness] claim, a PCRA petitioner
must plead and prove by a preponderance of the evidence that (1) the
underlying legal claim has arguable merit; (2) counsel had no reasonable
basis for acting or failing to act; and (3) the petitioner suffered resulting
prejudice.” Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa.
Super. 2015) (en banc). “While an appellant may need a hearing to explore
the validity of counsel’s trial strategy pursuant to the second prong, such a
hearing will be rendered superfluous if the court can determine from the
record that there has been no prejudice to the appellant under the third
prong.” Jones, 942 A.2d at 907. “A petitioner must prove all three factors
of the ‘Pierce[2] test,’ or the claim fails.” Reyes-Rodriguez, 11 A.3d at
780. “[O]n appeal, a petitioner must adequately discuss all three factors of
the ‘Pierce’ test or the appellate court will reject the claim.” Id.
____________________________________________
1
Appellant’s claim that he is a juvenile serving a life without parole sentence
is his only claim that does not stem from ineffective assistance of counsel.
2
Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
-3-
J-S44021-16
Appellant’s first ineffectiveness claim is that “[t]rial counsel was
ineffective for failing to call available witness Amina Shamsiddeen to testify
at trial, and where her testimony would have been exculpatory and would
have made a difference in the outcome.” Amended PCRA Petition,
12/21/2012, at ¶ 15(b); Appellant’s Brief at 9-12. The PCRA court’s opinion,
authored by the Honorable Ellen H. Ceisler, adequately addresses this issue.
See PCRA Court Opinion, 8/18/15, at 10-13. Appellant failed to plead that
counsel had no reasonable basis for failing to call Amina Shamsiddeen;
therefore, Appellant’s claim fails. See Reyes-Rodriguez, 111 A.3d at 780.
Appellant’s second ineffectiveness claim is that “[trial counsel was
ineffective when he gave patently inadequate advice to [Appellant] with
regard to whether or not [Appellant] should testify, and where [Appellant’s]
failure to testify could be said to have made a difference at trial.” Amended
PCRA Petition, 12/21/2012, at ¶ 15(c); Appellant’s Brief at 12-14. The
PCRA court’s opinion adequately addresses this issue. See PCRA Court
Opinion, 8/18/15, at 13-15. “It is well settled that a defendant who made a
knowing, voluntary, intelligent waiver of testimony may not later claim
ineffective assistance of counsel for failure to testify.” Commonwealth v.
Lawson, 762 A.2d 753, 755 (Pa. Super. 2000) (citations omitted). As the
PCRA court noted, Appellant was colloquied on the record and made a
knowing, voluntary, and intelligent waiver. Furthermore, Appellant failed to
plead all three prongs of the Pierce test. See Reyes-Rodriguez, 111 A.3d
at 780. Appellant’s claim fails.
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J-S44021-16
Appellants third ineffectiveness claim is that “[t]rial counsel was
ineffective when counsel failed to object to or otherwise challenge the trial
court’s erroneous instruction on accomplice liability, which unfairly
prejudiced [Appellant].” Amended PCRA Petition, 12/21/2012, at ¶ 15(d);
Appellant’s Brief at 14-16. Appellant failed to plead the three prongs of the
Pierce test; therefore, Appellant’s claim fails.3 See Reyes-Rodriguez, 111
A.3d at 780.
Appellant’s fourth ineffectiveness claim is that “[t]rial counsel was
ineffective for failing to object and thereafter request an individual colloquy
of the jurors to evaluate the potential prejudice resulting from
communication between members of the jury and the outside world.”
Amended PCRA Petition, 12/21/2012, at ¶ 15(e); Appellant’s Brief at 16-17.
Appellant failed to plead the three prongs of the Pierce test; therefore,
Appellant’s claim fails. Even if the issue were properly pled, the claim is
meritless as discussed in the PCRA court’s opinion. See PCRA Court
Opinion, 8/18/15, at 16-18.
Appellant’s final ineffectiveness claim is that “[t]rial counsel and
appellate counsel were ineffective for failing to raise and preserve the issue
____________________________________________
3
Even if Appellant properly pled all three prongs of the Pierce test, upon
review of the limited record before the Court, the issue is meritless and was
adequately addressed in the PCRA court’s opinion. See PCRA Court Opinion,
8/18/15, at 14-16.
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J-S44021-16
of sufficiency of the evidence regarding [c]riminal [c]onspiracy, and the
defendant should be awarded an arrest of judgment.” Amended PCRA
Petition, 12/21/2012, at ¶ 15(f); Appellant’s Brief at 18-20. In order to be
eligible for relief under the PCRA, the petitioner must be “currently serving a
sentence of imprisonment, probation or parole for the crime.” 42 Pa.C.S.A.
§ 9543(a)(1)(i). Appellant was sentenced on October 20, 1994 to a
maximum ten year term for criminal conspiracy to run concurrently with his
sentence of life without possibility of parole. Appellant completed his
sentence on October 20, 1994; therefore, Appellant is no longer serving a
sentence for criminal conspiracy and is ineligible for relief under the PCRA.
Appellant’s claim fails.
In conclusion, the PCRA court properly found that Appellant was not
entitled to an evidentiary hearing because Appellant was unable to meet all
three prongs of the Pierce test for each underlying claim. Therefore, the
trial court did not err when it dismissed Appellant’s PCRA petition without an
evidentiary hearing.
Finally, while Appellant did not discuss the issue in his brief, Appellant
preserved his challenge that he was a juvenile sentenced to life without
parole, which the Supreme Court found unconstitutional in Miller v.
Alabama, 132 S.Ct. 2455 (2012). Furthermore, in Montgomery v.
Louisiana, 136 S.Ct. 718 (2016), the Supreme Court found that Miller
announced a new substantive constitutional rule that was retroactive on
state collateral review. Montgomery, 136 S.Ct. at 732. In the matter sub
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J-S44021-16
judice, Appellant was a juvenile at the time of the instant offense. Due to
the Supreme Court’s decisions in Miller and Montgomery, his life sentence
without parole is unlawful. Therefore, we reverse the order of the PCRA
Court and remand the matter for resentencing.4
We direct that a copy of the PCRA court’s August 18, 2015 opinion be
attached to any future filings in this case.
Order affirmed in part and reversed in part. Remanded for
resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2016
____________________________________________
4
We recognize that the PCRA court did not have the benefit of the
Montgomery decision at the time its order and opinion were issued.
-7-
Circulated 10/27/2016 12:12 PM
FILED
IN THE COURT OF COMMON PLEAS AUG 18 2015
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION Criminal App~al.s Unit
Eicst .!udicia\ D1stnct of PA
COMMONWEAL TH OF PENNSYLVANIA COURT OF COMMON PLEAS
CP-51-CR-1142781-1993
v.
SUPERIOR COURT
OMAR SHAMSIDDEEN 122 EDA 2015
OPINION
ELLEN CEISLER, J. DATE: August 18, 2015
The instant appeal arises from Appellant Omar Shamsiddeen's (hereinafter "Appellant")
appeal of this Court's denial of his Post-Conviction Relief Act petition. After careful review of
the entire record, this Court denied each of Appellant's claims as being without merit, without a
hearing. The Appellant timely filed the instant appeal. For the reasons set forth below, this
Court's Order denying Appellant's PCRA petition should be affirmed.
I. FACTUAL AND PROCEDURAL HISTORY
Setting forth the facts presented at trial, in the light most favorable to the Commonwealth
;' 1
:, as the prevailing party at trial, the circumstances that ied to Appellant's arrest, conviction, and
,!
sentencing are as follows:
On April 25, 1993, at approximately 4:20 p.m., Philadelphia police officers responded to
reports of gunfire at the intersection of l 81h and Montrose Streets in Philadelphia. N.T. 10/14/94
at 44. Upon arrival, the officers found the victim Thomas Dorsey lying dead on the southeast
corner ofthat intersection with gunshot wounds to his chest, back and legs. Id. at 45-46. The
ol
.,I
i
•:1 1
Com. v. Colavita, 993 A.2d 874, 886 (Pa. 20 IO)(citing Com. v. Sam, 952 A.2d 565, 573 (Pa. 2008)).
autopsy conducted by the Philadelphia Medical Examiner determined that Dorsey had been shot
sixteen times. N.T. 10/17/94 at 56.Philadelphia Police Department crime scene investigators
recovered a total of thirty spent cartridge casings from the scene of the shooting. N.T. 10/14/94
at 59. While no suspects were on the scene when the police arrived, police interviews with
witnesses revealed that a blue four-door sedan, with rust on the trunk, had been observed leaving
the scene of the shooting. N.T. 10/6/94 at 6-8, 15.
Six days later, on May l, 1993, Philadelphia Police Officers Michael Maresca and his
partner, Richard Gramlich were on duty, in uniform, driving a marked emergency patrol wagon,
when they observed the driver of a blue four-door sedan, with rust on the trunk, drive through the
intersection of 301h and Dickinson Streets without stopping at the stop sign. This intersection is
located approximately three-quarters of a mile from the shooting crime scene. N .T. 10/14/94 at
85-86. These Officers were aware that this car matched the description of vehicle described as
leaving the scene of the shooting as the description of the car had been broadcast in the
Philadelphia Police Department's General Radio Message at least once a day after the shooting.
N.T. 10/6/94 at 7, 14.
The Officers decided to investigate and activated their patrol wagon lights to signal the
driver to pull over. The Appellant, then 17 years old, was the driver of the suspect vehicle. N.T.
10/14/94 at 85-86. Appellant, who had disguised himself as a woman by wearing a straw
sunflower hat and a shawl, quickly pulled over, jumped out of the car, and fled. Id. at 86-87.
Appellant then turned and ran around the front of his vehicle and began to approach the officers'
patrol car with his hand on what appeared to be the butt of a gun tucked in his waistband. Id. The
Officers pulled their guns and the Appellant again turned and ran.2 N.T. 10/6/94, at 87. After a
brief foot pursuit, the Officer's apprehended the Appellant and recovered the gun. N.T. 10/14/94
at 88. Appellant was arrested for Violation of the Uniform Firearms Act. N.T. 10/7/94 at 5, 7.
2
Officer Maresca's description of how the arrest occurred is as follows: "I started to chase him then he started to
come back towards me on an angle towards Dickinson Street heading eastbound. I cut him off and I wrestled with
him on the car to get the gun. I was able to get the gun, pass it to my partner, and cuffed him." N.T. 10/6/94 at 104.
! Maresca further testified on cross-examination that the reason for the Defendant's odd change in direction in the
i middle of this "chase" was due to the Defendant's "confusion ... that he didn't know which way to run and he ran at
'.I me, right towards me and I was able to cut him off." N.T. 10/14/94 at 109-110.
!
2
(
.,
~
The Officer's placed the confiscated gun on a property receipt and submitted it to the
Philadelphia Firearms Examination Unit that same day. N.T. 10/17/94 at 20-21, 143. The
Appellant was taken into custody and questioned by Philadelphia Homicide Detective William
Egenlauf .3 The Appellant gave a recorded and signed statement4 wherein he admitted that he had
been involved in the shooting incident which killed Mr. Dorsey, but claimed that he had acted in
self-defense. N.T. 10/17/94 at 30-36, 44-45.
Specifically, in his statement, Appellant stated that he and two of his friends were driving
in the Appellant's car when the occupants of two separate cars driving behind him started beeping
their horns, flashing their high beams, and yelling at the Appellant to pull over. N.T. 10/17/94 at
30-31. Appellant stopped his car, whereupon the two cars boxed him in. Id. at 31. Four men then
jumped out of both of the cars and began firing guns at Appellant and his friends. Id. According
to the Appellant, of the four men, he only knew the decedent Thomas Dorsey Id. at 32. 5 Appellant
(who apparently was unlawfully in possession of a gun at the time) returned fire towards Dorsey,
firing three rounds before his gun jammed. Appellant than fled. Id. at 31-34. According to
Appellant's statement, he recovered his car later when he saw it parked on the street a few blocks
from the crime scene. Id. at 34-36.6
The weapon that the police recovered from Appellant at the time of his arrest was a nine-
millimeter handgun. N.T. 10/17/94 at 142-49. On May 6, 1993, Officer Jackson7 of the Firearms
3
The arresting officers-Maresca and Gramlich-testified that Appellant was brought in to homicide because his
car matched the description of the carseen leaving the crime scene and they had "additional information that he was
involved in a shooting." N.T. 10/7/84 at 34.
4 Appellant reviewed a typed copy of his complete statement and made several corrections, each of which he
initialed. N.T. 10/14/94 at 46-47.
5 No gun was found at the scene or on the victim, Thomas Dorsey. N.T. 10/17/94 at 19-35.
6
The Commonwealth called two eye-witnesses at trial to testify, Richard Washington and Felice Brinkley. While
neither witness gave much information, their stories partially corroborated Appellant's version of what occurred on
April 25, 1993. N.T. 10/17/94 at 82-126.
7
By the time of Appellant's trial, Officer Jackson had retired from the Philadelphia Firearms Examination Unit.
N.T. 10/17/94 at 137. Officer Carl Rone, of the Firearms Examination Unit, testified at trial as to Officer Jackson's
findings. !!L
3
Examination Unit conducted a ballistic analysis of the cartridge casings and the Appellant's gun
and determined that eight of the thirty spent cartridge shells found at the crime scene were fired
from the Appellant's gun. Id. Additionally two of the bullets removed from decedent Dorsey's
body (one bullet was lodged in decedent's abdominal wall and the other was lodged in decedent's
upper thigh), were fired from the Appellant's gun. N.T. 10/17/94 at 142-49, 157.8 The
Philadelphia Assistant Medical Examiner Dr. Edwin Lieberman9 testified that although all of the
bullet wounds likely contributed to Mr. Dorsey's death, the bullet wound to the decedent's
abdominal wall was more immediately fatal. Id. at 58. It was this evidence that prompted police
to obtain an arrest warrant for Appellant for his involvement in the murder of Thomas Dorsey,
which was issued on July 2, 1993. Id. Appellant was arrested on July 4, 1993.
Appellant's trial commenced on October 14, 1994. N.T. l 0/12/94 at 1.10 On October 20,
1994, the jury convicted Appellant of First-Degree Murder, Criminal Conspiracy, and the
Possession of an Instrument of Crime (PIC). N.T. 10/20/94 at 121-23. As the Commonwealth
was seeking the death penalty, the Appellant's penalty phase hearing occurred on October 20,
1994. After that hearing, the jury determined that the existence of mitigating circumstances (the
Appellant's age) outweighed the existence of aggravating circumstances (Appellant put other
individuals at a grave risk of death in addition to the Decedent), and returned a sentence of life
imprisonment without the possibility of parole on the charge of First Degree Murder.11 N.T.
10/20/94 at 111. Appellant was sentenced to concurrent terms of five (5) to ten ( 10) years
8The rest of the nine-millimeter casings found at the crime scene (seven casings) were later matched to the gun of
Willie Dukes, another suspected participant in this shooting. Dukes was shot and killed shortly after the April 25,
1993 incident. N.T. 10/7/94 at 11-12.
9A Dr. Hoyer (member of the Medical Examiner's staff in 1993) conducted the actual autopsy of Thomas Dorsey.
N.T. I 0/17/94 at 70. Dr. Lieberman reviewed the autopsy report and findings and testified about them during trial.
ill
10
Immediately prior to trial, Appellant's counsel argued a Motion to Suppress Appellant's Statement, claiming in
part that Appellant had not been properly advised of his right to have counsel present during his interrogation and
that, therefore, his statement should not be admitted as evidence. N.T. 10/5/94 at 5-7. The motion was denied. The
Trial Court's actual ruling on the Suppression Motion could not be found in the transcripts, however, various filings
from both the Appellant and the Commonwealth, as well as references made from the case record (that, for instance,
all of the evidence that Defendant's counsel wanted suppressed was used during trial), confirm that this Motion was,
in fact, denied. Defendant's Amended Post Conviction Relief Act Petition 12/21/2012; Commonwealth Attorney's
Letter Brief 1/26/11.
11
A term of life imprisonment in the Commonwealth is without the possibility of parole. 42 Pa. C.S. §§ 9711. 9715
4
imprisonment for criminal conspiracy, and two and one-half (2Y2) to five (5) years imprisonment
for Possession of an Instrument of Crime. Id.
A Notice of Appeal was filed on behalf of Appellant by his trial counsel Bernard L.
Siegel, Esquire.12 This appeal was ultimately dismissed by the Superior Court on January 4, 1996
and again on March 12, 1996, 13 because of counsel's failure to file a brief. On November 14,
1996, Appellant filed a pro se petition under the Post-Conviction Relief Act ("PCRA"), 42 Pa.
I
14
.j C.S. § 9545(b), which was granted by Trial Court, resulting in his direct appeal rights being
I
' reinstated on September 13, 2000.15
Daniel Paul Alva, Esquire, was then appointed to represent Appellant. Mr. Alva filed a
direct appeal nunc pro tune on October 2, 2000; however, the judgment of sentence was affirmed
on April 11, 2002, due to counsel's failure to file a Pa. R.A.P. l 925(b) Statement. Com. v.
Shamsiddeen, 803 A.2d 797 (Table) (Pa. Super. Ct. 2002), 2840 EDA 2000. Allocatur to the
Supreme Court was denied on October 11, 2002. Com. v. Shamsiddeen, 809 A.2d 903 (Table)
16
(Pa. 2002), 194 EAL 2002.
Thereafter, on December 17, 2003, Appellant filed another pro se PCRA petition-again
12
Mr. Siegel represented the Defendant at trial and on direct appeal. Mr. Siegel has since passed away. It should be
noted that Mr. Siegal was a highly experienced and respected criminal defense attorney.
13
After the Superior Court's Order of January 4, 1996, dismissing the Defendant's appeal, the Defendant filed a pro
se petition under the PCRA on March 4, 1996, seeking leave to file a notice of appeal, nunc pro tune.
14
This was not the Defendant's first PCRA petition. On February 6, 1995, the Defendant filed his first prose
petition for post-conviction relief, which was dismissed as being "premature" because the Defendant's direct appeal
was still pending.
15
While it is not clear from the record, somehow the petition filed on March 4, 1996 was not actually dismissed.
This may explain the gap in time between the filing of that petition, and the granting of the Defendant's right to
appeal. See Com. v. Shamsiddeen, 2005 WL 5784524, * 1-*2 (Pa. Ct. Com. Pleas 2005), rev 'd Com. v.
Shamsiddeen, 898 A.2d 1134 (Pa. Super. Ct. 2006) (discussing this case's procedural history from 1994 through
2005).
16
There is some discrepancy between the Criminal Docket maintained by the Philadelphia County Court of
Common Pleas and this procedural history. It is this court's belief that due to the extensive record that indicates the
existence of PCRA filings prior to 2004, that the Docket is missing earlier filings related to Defendant Omar
Shamsiddeen.
5
seeking restoration of his direct appeal rights nune pro tune. David Belmont, Esquire, was
subsequently being appointed as his new counsel. Though the PCRA court denied the petition as
being without merit, the Superior Court reversed and remanded the matter on February 27, 2006,
restoring Defendant's appellate rights nunc pro tune for a second time. Com. v. Shamsiddeen, 898
A.2d 1134 (Pa. Super. Ct. 2006); however, a notice of appeal was never filed, as required by Pa.
R.A.P. 903 in order to commence the appeals process.
On February 28, 2007, Defendant filed a third pro se PCRA petition, yet again seeking
restoration of his direct appeal rights nunc pro tune. Sondra R. Rodrigues, Esquire, was appointed
counsel on behalf of Defendant. By this point, the original presiding trial judge had been appointed
to the Pennsylvania Supreme Court and, accordingly, this Court was assigned to handle this appeal.
Following Ms. Rodrigues' appointment, and in light of the Commonwealth's attorney agreeing
that Defendant's appellate rights should be restored, this Court ordered the restoration of
Defendant's appellate rights nune pro tune on November 14, 2008.
On August 21, 2009, and as directed by this Court, Appellant's counsel initiated the direct
appeal and filed a timely Statement of Errors, pursuant to Pa. R.A.P 1925(b). In his 1925(b)
Statement, Appellant made several ineffective assistance of counsel claims, as well as a claim that
the trial court erred by improperly re-instructing the jury with regard to accomplice and co-
conspirator liability. Because ineffective assistance claims can only be brought in a PCRA petition
after the direct appeal has ended, this Court examined only the claims of error pertaining to the
trial court. See Com. v. Grant, 803 A.2d 726 (Pa. 2002) (allegations that trial counsel was
ineffective must not be made during a direct appeal, but must be made after that appeal has been
concluded and a collateral attack under PCRA is filed).
After thoroughly reviewing the entire record, on March 24, 2010, this Court issued an
Opinion pertaining to the issues raised by the Appellant in what was essentially his first direct
appeal. This Court determined that there were no prejudicial or reversible errors and, thus, that
Defendant's request for relief should not be granted. On May 27, 2011, the Superior Court affirmed
the judgement of this Court, effectively concluding Appellant's direct appeal.17
17
91 EDA 2009.
6
On October 5, 2011, Defendant filed a fourth prose PCRA petition. This petition was
subsequently amended twice, once by Defendant on August 16, 2012, and once by appointed
counsel, Lee Mandell, Esquire, on December 21, 2012. The final amended petition sought relief
in the form of an evidentiary hearing, an arrest of judgment or, alternatively, a new trial on claims
of ineffective assistance of trial counsel and the unconstitutionality of the sentence currently being
served by Appellant. The Commonwealth filed a Motion to Dismiss on December 3, 2013. After
careful review of the record and pleadings, on December 11, 2014, this Court dismissed
Appellant's PCRA petition as being without merit, without a hearing.18
On January 7, 2015, Appellant's counsel appealed this Court's decision to the Superior
Court. That same day, this Court ordered Appellant to file a Statement of Errors, which Defendant
filed on January 28, 2015, and which is set forth verbatim as follows:
1. That the Post-Conviction Relief Act (PCRA) Court erred when it dismissed
Defendant's Amended PCRA Petition without a hearing, although Defendant
properly pied and would have been able to prove that he was entitled to relief as
Defendant claimed the following:
(a) that he is a juvenile serving a life without parole sentence which is not
permitted by law;
(b) that trial counsel was ineffective for failing to call available witness Amina
Shamsiddeen to testify at trial, and where her testimony would have been
exculpatory and would have made a difference in the outcome;
(c) that trial counsel was ineffective when he gave patently inadequate advice to
the defendant with regard to whether or not the defendant should testify, and
where the defendant's failure to testify could be said to have made a
difference at the trial;
(d) that trial counsel was ineffective when counsel failed to object to or
18
Prior to this dismissal, on May 5, 2014, this court also issued an order denying the allocation of funds for a
psychologist and for investigative services to prepare a report on the Defendant's social background with regard to a
potential re-sentencing hearing.
7
otherwise challenge the trial court's erroneous instruction on accomplice
liability, which unfairly prejudiced the defendant;
(e) that trial counsel was ineffective for failing to object and thereafter request
an individual colloquy of the jurors to evaluate the potential prejudice
resulting from communication between members of the jury and the outside
world;
(f) that trial counsel and appellate counsel were ineffective for failing to raise
and preserve the issue of the sufficiency of the evidence regarding Criminal
Conspiracy, and the defendant should be awarded an arrest of judgment;
(g) that the defendant was victimized by ineffective assistance of counsel where
counsel failed to object to extraneous matters being entered into the general
accomplice instruction which exceeded the charge in the Bill of Information.
2. That Defendant is entitled to a remand to the PCRA Court as the PCRA Court erred
when it denied the Defendant funds for a psychologist and investigative services,
when the Defendant was entitled to those services and where proper representation
could not be afforded to the Defendant without those services.
Defendant's Statement of Matters Complained of Pursuant to Rule of Appellate Procedure
l 925(b) at 1-2 (hereinafter" l 925(b) Statement").
II. DISCUSSION
To be eligible for relief under the PCRA, a petitioner must plead and prove by a
preponderance of the evidence that: ( l) they have been convicted of a crime under the Jaws of
the Commonwealth; (2) that, at the time relief is granted, they are currently serving a sentence
of imprisonment; (3) that the conviction or sentence resulted from one or more of the following:
(a) a violation of the Constitution of the Commonwealth of the Constitution or law of the United
States, (b) ineffective assistance of counsel, or (c) the imposition of a sentence greater than the
lawful maximum19; (4) that in the circumstances of this particular case, this violation or
19
Additional PCRA claims that can be made, but which are irrelevant to the instant case, are: an unlawfully induced
plea of guilty, the improper obstruction by government officials of the petitioner's right of appeal, the unavailability
at the time of trial of exculpatory evidence that has subsequently become available, and a proceeding in a tribunal
without jurisdiction. &
8
ineffective assistance so undermined the truth-determining process that no reliable adjudication
of guilt or innocence could have taken place; (5) that the allegation of error has not been
previously litigated or waived, and (6) that the failure to litigate the issue prior to, during trial, or
on appeal could not have been the result of any rational, strategic, or tactical decision by counsel."
42 Pa. C.S. § 9543.
There is no absolute right to an evidentiary hearing on a PCRA petition. If the PCRA
court determines from the record that there are no genuine issues of material fact, then a court
can decline to hold a hearing, as no purpose would be served by any further proceedings. Com.
v. Jones, 942 A.2d 903, 906 (Pa. Super. Ct. 2008); Com. v. Taylor, 933 A.2d 1035, 1040 (Pa.
Super. Ct. 2006). For the reasons set forth below, after careful review of the entire record, this
Court did not find any meritorious claims made by Appellant in his most recent PCRA petition
and, therefore, did not hold an evidentiary hearing before denying this petition.
The first claim made by Defendant in his l 925(b) Statement is that "he is a juvenile
serving a life without parole sentence which is not permitted by Jaw." l 925(b) Statement at l.
In the landmark case Miller v. Alabama, 132 S.Ct. 2455, 2469 (2012) the United States
Supreme Court held that a mandatory sentence of life imprisonment without parole, for those
who were under the age of 18 at the time of their crimes, violates the Eighth Amendment's
prohibition on cruel and unusual punishments, and is therefore unconstitutional. This opinion
did not specifically address whether this holding applied retroactively to invalidate previously
imposed life without parole sentences on juveniles.i" However, in Com. v. Cunningham, 81
A.3d l (Pa.2013), the Pennsylvania Supreme Court subsequently ruled that this Jack of explicit
direction in Miller v. Alabama means that the prohibition against mandatory life without parole
sentences for juvenile offenders does not apply retroactively. In light of the ruling in Com. v.
Cunningham, this Court has no choice but to hold that the Defendant's life sentence is still
constitutional, and that therefore, this claim was without merit.
20
On March 23, 2015, the Supreme Court of the United States granted a petition for writ of certiorari to hear
arguments in the case State v. Montgomery, 141 So.3d 264 (La. 2014) to answer the question whether Miller v.
Alabama adopted a new substantive rule that applies retroactively on collateral review to people condemned as
juveniles to die in prison. Montgomery v. Louisiana, 135 S.Ct. 1546 (20 I 5}(cert. granted). Briefs are scheduled to be
filed before mid-September 2015, and argument is likely to occur in the Supreme Court's next session. Supreme
Court of the United States Case No. 14-280 Docket, available at http://www.supremecoun.gov/clocket/docke1.aspx.
9
Appellant's next six claims are essentially variations of the same theme, namely, that for
a variety of reasons, his defense was compromised by ineffective assistance of counsel, at both
the trial and appellate levels.
In order to sustain a claim of ineffective assistance of counsel, Appellant must prove as
to each claim that (1) his claim has arguable merit, (2) counsel had no reasonable basis for his
action or inaction, and that (3) Defendant was prejudiced by counsel's act or omission. Com. v.
Pierce, 527 A.2d 973, 975 (Pa. 1987) (adopting the United States Supreme Court's holding in
Strickland v. Washington, 466 U.S. 668, 687 (1984)). If a petitioner fails to meet their burden of
production and persuasion for any of these prongs, a claim of ineffectiveness should be denied.
Com. v. Pierce, 786 A.2d 203, 213 (Pa. 2001).
Appellant's first ineffective assistance of counsel claim is that trial counsel was
ineffective for failing to call his aunt21 Amina Shamsiddeen to testify at trial. Failure to call a
witness to testify during trial is not per se ineffective assistance of counsel. Com. v. Michaud, 70
A.3d 862, 868 (Pa. Super. Ct.2013). Rather, to establish a claim that trial counsel was ineffective
for failing to call a witness has arguable merit, the petitioner must demonstrate: (1) that the
witness existed, (2) that the witness was available, (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 was so prejudicial to petitioner to have denied him a fair trial. Com. v.
Miner, 44 A.3d 684, 687 (Pa. Super. Ct. 2012).
Appellant asserts that Amina Shamsiddeen was available to testify at trial,22 that trial
counsel was aware of her existence, and that her testimony would have discredited23 the
21
Amina Shamsiddeen was not a blood relative of Appellant, but sometimes took care of him. N.T. J0/7/94 at 32-
33.
22
ln Appellant's PCRA Petition, he claims to have a notarized affidavit from Amina Shamsiddeen that states that
she was "available at trial, willing to cooperate with the defense, and trial counsel was aware of her existence."
Defendant's Amended Post Conviction Relief Petition at I 0. However, this Court was unable to find any such
affidavit that was a part of the record.
23
The Appellant argues that "the jury should have been afforded the opportunity by trial counsel to hear the
testimony of Ms. Shamsiddeen since it was in opposition to the contention of the officers, in order to subject the
10
contentions made by the detectives. Defendant's Amended Post Conviction Relief Act Petition
12/21/2012, at 10. However, this Court need not address whether or not these assertions are
sufficient to show that this issue has arguable merit, because, as detailed below, Appellant failed
to establish that the absence of a reasonable basis for his trial attorney to fail to call Ms.
Shamsiddeen to testify during the trial.
In a pre-trial hearing for a Motion to Suppress the Appellant's Statement,24 the Trial Court
heard testimony from the detectives who took Appellant's statement, as well as from Ms.
Shamsiddeen, who was called as a witness by Appellant's attorney.25 N.T. I 0/5/94, N.T. I 0/6/94,
N.T. I 0/7/94. Ms. Shamsiddeen's testimony regarding whether she consented26 to the
questioning of Appellant contradicted that of the detectives. N.T. I 0/7/94, at 47-54. For
comparison, the testimony of both Detective Engenlauf and Amina Shamsiddeen are quoted from
the record below:
MR. DOYLE: Will you describe the detail and nature of the conversation [with Amina
Shamsiddeen]?
DETECTIVE ENGENLAUF: Yes. I told Ms. Shamsiddeen that we had her nephew in custody
and I would like her to come down to our headquarters. She told me that that would be impossible
because that day was her sister Anne's wedding, and, obviously, the wedding was about to
commence .... I went on to warn her of her rights and his rights verbally over the phone. I then
gave her an opportunity to speak with her nephew alone in private on the phone, which they did.
After they spoke privately on the phone, I got back on the phone and I talked to her again. She
told me that she had told Omar to cooperate with us. And Omar was within my visual sight, was
on the phone also and he was nodding his head yes to me.
N.T. I 0/7/94 at 15-16.
MR. STEGEL: Did [Detective Engenlauf] tell you whether or not Omar was on the telephone?
AMINA SHAMSIDDEEN: No, he didn't-Omar wasn't on the phone, no.
prosecution's case to a form of adversarial testing, and allow the jury to make their own credibility determination."
Defendant's Amended Post Conviction Relief Petition at I 0.
24
See supra n. 11.
25 The Trial Judge also heard testimony from Detective Frank Martin who had previously arrested Appellant on
June 30, 1990 (on charges of robbery, assault, and other related charges). N. T. I 0/5/94 at 6-8. According to
Detective Martin, Appellant chose to remain silent and refused to give a statement about those charges. !f!.:. This was
part of the prosecution's evidence that Appellant was generally aware of his right to remain silent when he gave his
statement in the instant case. !f!.:.
26
According to Philadelphia police department policy at the time, an interviewing officer had to make an effort to
locate an "interested adult" before questioning a juvenile. N.T. I 0/7/94 at 38. Appellant identified Amina
Shamsiddeen as his guardian. !f!.:. at 14-17.
II
MR. SIBGEL: And did [Detective Engenlauf] ask you or did he tell you, I should say, why he
called you in the first place?
AMINA SHAMSIDDEEN: No,just that Omar was arrested and Omar needed someone to be here
with him so they could take a statement from him.
MR. SIEGEL: ... Did (Detective Engenlauf] ask you whether he could speak with Omar?
AMINA SHAMSIDDEEN: Yes, he did
MR. SIEGEL: And what did he ask you specifically, if you recall?
AMINA SHAMSIDDEEN: He said that-he said the Detective-the other Detective that was
listening in was there just to witness everything that Isaid to him. And could they get permission
from me to question Omar, and I told them no.
MR. SIEGEL: And how did you express that? I mean, did you just say no or did you explain
yourself?
AMINA SHAMSIDDEEN: I said, no, do not question Omar and do not make him sign anything
until Iget there. I said I'm going to be there, I may be late, I don't know what time I'll be there,
I'm sure Omar's not going anywhere, but I'll be there.
MR. SIEGEL: Now, did the Detective at any time tell you what rights Omar had?
AMlNA SHAMSIDDEEN: No.
MR. SIEGEL: You know the right to an attorney, the right to be silent, that type of thing?
AMINA SHAMSIDDEEN: No, no.
N.T. 10/7/94 at 49-53.
At the conclusion of this hearing, the Trial Judge denied the Motion to Suppress. 27 In
doing so, the obvious inference is that the Trial Judge made a credibility ruling in favor of the
Commonwealth's witness and found Amina Shamsiddeen's version of the events to be un-
persuasive.f It is thus plausible that, given the Judge's apparent lack of faith in the credibility of
Amina Shamisiddeen, Appellant's trial counsel could have reasonably decided that it was not
prudent to put her before the jury. Furthermore, it is clear that, as Appellant's guardian, she
would likely be regarded by the jury as having an inherent bias in favor of Appellant.
Appellant has failed to present any evidence to establish that trial counsel had no
reasonable basis for not calling Amina Shamsiddeen to testify during trial and there are logical
reasons why an experienced defense attorney would not call her testify. Furthermore, Appellant
has failed to produce any evidence indicating how Appellant was prejudiced by trial counsel's
decision not to call Amina Shamsiddeen to testify at trial. As Appellant has thus failed to satisfy
27
See supra n.11 (explaining why it is clear that Judge Fitzgerald denied the Motion to Suppress, even though there
is no copy of this denial on the record nor any explicit statement of denial on the docket).
28
indeed, the courts of this Commonwealth have held that "it is exclusively the province of the suppression court to
determine the credibility of[] witnesses and the weight to be accorded to their testimony." Com. v. Fitzpatrick, 666
A.2d 323, 325 (Pa. Super. Ct. 1995) (citing Com. v. Neely, 444 A.2d I 199 (Pa. Super. Ct. 1982)).
12
the each of the stringent requirements necessary to prove ineffective assistance of counsel, this
Court found this claim to be without merit.
Appellant's next ineffective assistance of counsel claim is that his trial counsel gave
inadequate advice regarding whether Appellant should testify at trial. To succeed on this
ineffective assistance of counsel claim, Appellant was required to demonstrate that counsel gave
specific advice "so unreasonable as to vitiate a knowing and intelligent decision to not testify on
his own behalf." Com. v. Alderman, 811 A.2d 592 (Pa. Super. Ct. 2002). In addition, "it is well
settled that a defendant who made a knowing, voluntary, intelligent waiver of testimony may not
later claim ineffective assistance of counsel for failure to testify." Com. v. Lawson, 762 A.2d
753,.755 (Pa. Super. Ct. 2000) (citing Com. v. Fletcher, 750 A.2d 261, 274-75 (Pa. 2000); Com.
v. Schultz, 707 A.2d 513, 520 (Pa. Super. Ct. 1997) ("While, in retrospect, appellant may believe
her failure to testify prejudiced her, the fact remains that appellant's decision was fully informed
and voluntary. As such, neither trial nor appellate counsel may be deemed ineffective in this
regard.")).
On October 18, 1994, the last day of his trial, the trial judge conducted a full colloquy of
Appellant regarding his constitutional rights as it relates to testifying on his own behalf. N .T.
10/18/94, at 4-7. Relevant parts of this extensive questioning are quoted from the record below:
THE COURT: Have you had a chance to speak to Mr. Siegel in regards to whether you should
use your constitutional right to testify in your own case?
THE DEFENDANT: Yes, your Honor.
THE COURT: And is it your own personal decision, taking into account the advice you have
received as well as your own thinking, to not take the witness stand in this case and testify; is that
your decision, sir?
THE DEFENDANT: Yes, your Honor.
THE COURT: And you do have a full understanding that ... this is your case, you have a
constitutional right to testify which no one can take away from you, including this court, your
attorney, the D.A., or anybody else; do you understand that?
THE DEFENDANT: Yes, your Honor.
THE COURT: And has anybody threatened you, forced you, coerced you, or tricked you or
offered you anything of value to get you to give up your constitutional right to testify in this case?
THE DEFENDANT: No, your Honor.
THE COURT: And, therefore, it's your decision after these consultations, using your own
personal reasoning and thinking that you have made a decision not to testify in this case, is that
correct?
13
THE DEFENDANT: Yes, your Honor.
ill at 4-6.
At the conclusion of this colloquy, the trial judge concluded that Appellant's "decision
not to testify in this case and giving up this constitutional right is made knowledgeably, and
without threat, fear, or force of any kind ... [and] as a matter of fact, matter of law that you have
made a voluntary decision and an enlightened decision to not testify in this case." Id., at 6-7. In
light of Appellant's knowing, voluntary, and intelligent waiver of his right to testify, he cannot
now claim ineffective assistance of counsel.
Additionally Appellant has failed to offer any evidence whatsoever as to the nature of his
testimony, had he testified, and how his testimony would have changed the outcome of the trial.
Therefore, this Court concluded that this claim was without merit.
i•
!I
Appellant's fourth and seventh claims allege that he received ineffective assistance of
j counsel because trial counsel failed to object to the trial court's jury instructions on accomplice
,I
liability. In his PCRA Petition, Appellant argues that the jury instructions given at his trial were
erroneous because the "general" accomplice liability instruction contradicted the more specific
first-degree murder accomplice liability instructions. Defendant's Amended Post Conviction
Relief Act Petition 12/21/2012, at 13-14. While it is true that a trial court commits harmful error
if it instructs the jury that, for first-degree murder, an accomplice can be found guilty even if he
did not have the specific intent to kill, Com. v. Huffman, 638 A.2d 961, 964 (Pa. 1994), that is
not at all what occurred in the instant case. To state Appellant's argument more precisely, he
argued that the jury at his trial was not given a clear understanding that a specific intent to kill is
a necessary component to find him guilty of first-degree murder through accomplice liability. To
support this allegation, Appellant incorrectly indicates that there was a gap in between the
"general" accomplice liability instruction and the more "specific" accomplice liability instruction
for first degree murder. N .T. I 0/18/94 at 14. However, the trial transcript indicates that these two
instructions ("general" and "specific") were read to the jury consecutively, one after the other,
and were not, in fact, two separate and conflicting instructions as alleged by Appellant. N.T.
I0/18/94 at 90-91. The "second," more "specific" instruction on first-degree murder accomplice
liability, read directly after the general accomplice liability instruction, merely clarified this type
14
of liability in a first-degree murder context. Id.; see Com. v. Cox, 863 A.2d 536, 549-50 (Pa.
2004) (holding that jury instructions must be read as a whole to support a claim of error, not in
separate portions). Appellant was charged with multiple offenses, and a general accomplice
liability instruction was necessary to lay the foundation for each offense, before elaborating on
the additional, specific components needed for a finding of guilt for each specific offense.
In the instant case, the "specific" instruction on accomplice liability for first-degree
murder specifically states that the jury must find "beyond a reasonable doubt that the evidence
established that the defendant possessed a specific intent to facilitate the crime of murder." N.T.
10/18/94, at 91 ( emphasis added). This is in direct contrast to Huffman, in which the trial court
erroneously instructed the jury that they need not find specific intent to find the defendant guilty.
638 A.2d at 964.29 Further, Appellant failed to demonstrate how the allegedly erroneous
instructions would have prejudiced him or would have changed the outcome of the trial. Indeed,
"a bald averment of cumulative prejudice" without a specific, reasoned, legally and factually
supported argument does not constitute a claim under the PCRA. Com. v. Hutchinson, 25 A.3d
277, 319 (Pa. 2011 ). Absent this elaboration and any rational legal or factual argument of
prejudice, this Court concluded that Appellant's fourth claim is without merit.
Appellant's seventh claim made on his 1925(b) Statement is "that the defendant was
victimized by ineffective assistance of counsel where counsel failed to object to extraneous
matters being entered into the general accomplice instruction which exceeded the charge in the
Bill of Information." 1925(b) Statement at 2 (emphasis added). The courts of this Commonwealth
have held that when issues in the 1925(b) Statement are "too vague for the trial court to identify
and address, [it] is the functional equivalent of no concise statement at all." Com. v. Smith, 955
A.2d 391, 393 (Pa. Super. Ct. 2008). Any issues that are not raised in a concise statement are
waived for appellate review. Id.29
Appellant also cites a Third Circuit case in which he claims "identical" jury instructions were found to be
erroneous. Defendant's Amended Post Conviction Relief Act Petition 12/21/2012, at 14 (citing Laird v. Hom, 414
F.3d 419, 425-27 (3d Cir. 2005)). However, the jury instructions found erroneous in Laird v. Hom are distinctly
different than the instructions in the instant case. In Laird, specific intent is not mentioned at all in the court's entire
instruction on accomplice liability, but is only mentioned, thirty pages later in the record, as an element of first-
degree murder. IQ,
15
After an in-depth review of the record in this case, this Court is at a loss as to what
Appellant's seventh claim pertains to, as he does not refer to any "extraneous" matters when
discussing errors with the accomplice liability instruction in his PCRA petition. Defendant's
Amended Post Conviction Relief Act Petition 12/21/12 at 12-14. Further, this Court can find no
occurrence of "extraneous" matters being added to the accomplice liability instruction on the
record. The only other incident involving the accomplice liability instructions occurred during
jury deliberations. In response to a request by the jury to clarify the difference between first-
degree murder and third-degree murder, the trial judge re-read the charges for both crimes and
for accomplice liability, verbatim, as they had been read to the jury previously. N.T. 10/19/94 at
4-19. Appellant's trial counsel did object to the addition of the charge of accomplice liability
and to the judge's re-reading of the instructions, arguing that it placed an unfair emphasis on this
instruction. Id. However, the trial judge overruled this objection, stating that the instruction on
accomplice liability was the exact same as had been read to the jury before and was legally
accurate, meaning that the jury would not be unfairly prejudiced by this additional clarification.
Id. There was no discussion on the record of any "extraneous matter" that was added to the
accomplice liability instruction, nor any reference to a "Bill of Information." Id. Accordingly,
without any indication on the record, or in Appellant's filings, of what this seventh claim may
refer to, this Court finds that it is both waived and without merit.
Appellant's fifth claim of ineffective assistance of counsel pertains to trial counsel's
failure to request an individual colloquy of the jurors to evaluate the potential prejudice resulting
from communication between members of the jury and the outside world. The incident that
Appellant is referring to occurred on October 13, 1994, the night before his jury trial started. N.T.
10/14/94, at 38-39. Juror Number Six was approached by someone on the street by and asked
about her involvement in the trial, with the ensuing conversation being relayed to the trial court
as follows:
COURT CRIER: Basically she said that last night while she was walking on the street they asked
her about the jury duty and what happened, and she's [sic] says, 'I was picked for a case that
happened in South Philly around I 81h street.' And a person she was talking to said, 'Oh, my
husband witnessed the murder that happened down there about that time.' And she said, basically,
'I don't want to talk about it' and, you know, that was it. 'I can't discuss it with you.' And she
heard about anybody discussing the case, she thought she should tell somebody.
N.T. I0/14/94,at38-39.
16
Pennsylvania law "requires a showing that ex parte communications with a juror resulted
in prejudice in order to warrant relief." Com. v. Daniels, 104 A.3d 267, 296 (Pa. 2014). Thus, a
juror's contact with the outside world regarding the trial does not intrinsically create prejudice.
Here, Juror Number Six was instructed to not talk to anyone about the case, and that is exactly
what she did, telling the person that approached her that she could not discuss Appellant's case.
Tellingly, Appellant does not attempt to show or explain how he was prejudiced by the
juror's interaction. Instead, Appellant asserts that this interaction was per se prejudicial, citing a
Third Circuit case in support of his argument, Gov't of Virgin Islands v. Dowling, 814 F.2d 134(3d Cir. 1987). Defendant's Amended Post Conviction Relief Act Petition 12/21/2012, at 15.
First, it is well established that federal case law is not binding upon the courts of this
Commonwealth; but merely have persuasive value. Gutteridge v. A.P. Green Services, Inc., 804
A.2d 643, 651 (Pa. Super. Ct. 2002) (stating that, absent a United States Supreme Court
pronouncement, the decisions of federal courts are not binding on Pennsylvania state courts, even
when a federal question is involved); Com. v. Santarelli, 483 A.2d 895, 900 (Pa. Super. Ct. 1984)
(finding the defendant's use of out-of-state cases as merely persuasive authority, not binding
precedent).
Furthermore, Appellant's reliance on Dowling is misplaced. In Dowling, the trial judge
received a note that the entire jury had been exposed to "extra-record" information about both
the facts of the case and the defendant's past criminal record. 814 F.2d at 135. On appeal, the
Third Circuit held that the district court's failure to conduct a voir dire of the jury, so as to
determine what the jurors had actually heard, constituted reversible error. Id. That scenario, of
course, stands in stark contrast to the instant case, where there is every indication on the record
that Juror Number Six did not receive any "extra-record" information, and that she did not even
discuss the case with the person who asked her about it. N.T. 10/14/94, at 38-39.
In addition, as with his previous allegations of error, Appellant fails to present the
required specific, reasoned, legally and factually supported argument to prove ineffective
assistance of counsel in this instance. Hutchinson, 25 A.3d at 319. Therefore, this Court
17
concluded that this claim was also waived and without merit.
Appellant's sixth claim is that he received ineffective assistance from both triaJ and
appellate counsel by failing to raise, and preserve, the issue of evidence sufficiency related to the
Criminal Conspiracy charge; however, this issue is moot. Appellant was found guilty of criminal
conspiracy and was sentenced to a concurrent term of five to ten years incarceration on October,
20, 1994. N.T. 10/20/94, at 122. Therefore as of October 20, 2004, Appellant had served his
entire sentence for criminal conspiracy. Even if there was an error with regard to the conspiracy
charge, Defendant has already served his time for that charge, and, regardless, is still serving a
sentence of life imprisonment without the possibility of parole for the charge of first-degree
murder. Appellant's allegations of error regarding the imposition of a lesser sentence for
Conspiracy are irrelevant.
Moreover, this claim would also fail on its merits. Appellant claims that there is
insufficient evidence on the record to show an "agreement" between him and his co-conspirators
to engage in a crime, as required by Pennsylvania law for a conviction of criminal conspiracy.
See 18 Pa.C.S. § 903(c); Com. v. Montalvo, 956 A.2d 926, 932 (Pa. 2008). The law in
Pennsylvania is clear however, that such an "agreement" does not have to be explicit or formal,
as it can be implied or inferred through actions. Com. v. Kennedy, 453 A.2d 927, 929-30 (Pa.
1982); Com. v. Woodard, 614 A.2d 239, 243 (Pa. Super. Ct. 1992). Mere association with the
perpetrators and mere presence at the scene is not enough-it must be shown by the prosecution
that a defendant was an "active participant in the criminal enterprise." Com. v. Lambert, 795
A.2d 1010, IO 16 (Pa. Super. Ct. 2002). Here, the record is clear that Appellant participated in the
shooting of Thomas Dorsey with potentially three other perpetrators. N.T. 10/17/94 at 141-51.
Only eight of the shell casings found at the scene, as well as only two out of the sixteen wounds
on Thomas Dorsey, were a match to Defendant's gun, id., and even Appellant admitted, in his
statement to detectives, that he was not the only one shooting at Dorsey. N.T. l 0/17/94 at 30-36.
Therefore, this Court concluded that this claim was both moot and without merit.
Appellant's eighth and final claim is that the PCRA court erred when it denied his request
for funding to pay for psychologist and investigative services. Although the purpose of
18
requesting these funds is not described in Appellant's 1925(b) Statement (or in his most recent
PCRA Petition), Appellant did state, in a proposed order submitted to this Court in 2014, when
Appellant first requested these services, that the purpose of the request was for use at the time of
a re-sentencing hearing. Defendant's Proposed Order 3/5/14 at 1. As the law currently stands.l"
Appellant is not eligible for a resentencing hearing, as his sentence was legal. 42 Pa. C.S. § 9781.
This request by the Appellant has nothing whatsoever to do with the original trial or sentencing
and is thus irrelevant for these PCRA proceedings. As such this Court dismissed that claim as
being without merit.
Ill. CONCLUSION
In summary, this Court has, once again, carefully reviewed the entire record and has
concluded that all PCRA claims made by Appellant are without merit. As such, this Court
respectfully requests that the instant appeal be denied.
BYT~
~
J.
30
See discussion of a pending United States Supreme Court case, Montgomery v. Louisiana, supra n.23.
19