Com. Abdul-Hadi, I

J-S33022-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ILYAS ABDUL-HADI :
:
Appellant : No. 1387 EDA 2021
Appeal from the PCRA Order Entered June 11, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0808601-2006
BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.
MEMORANDUM BY KING, J.: FILED DECEMBER 28, 2022
Appellant, Ilyas Abdul-Hadi, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which denied his serial petition
filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
The relevant facts and procedural history of this case are as follows. In
2007, a jury convicted Appellant of first-degree murder, following the shooting
death of Tito Lomax at his home in Philadelphia. The court sentenced
Appellant to life imprisonment, this Court affirmed the judgment of sentence
on July 14, 2009, and our Supreme Court denied allowance of appeal on March
10, 2010. See Commonwealth v. Hadi, 981 A.2d 920 (Pa.Super. 2009)
(unpublished memorandum), appeal denied, 605 Pa. 695, 990 A.2d 728____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546.
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(2010).
On December 6, 2010, Appellant filed a timely pro se PCRA petition.
The court appointed counsel, who filed an amended petition and a
supplemental petition raising claims of ineffective assistance of counsel. The
court subsequently issued appropriate notice per Pa.R.Crim.P. 907, and
ultimately denied relief on November 1, 2013. This Court affirmed the denial
of PCRA relief on September 25, 2014, and our Supreme Court denied
allowance of appeal on December 17, 2014. See Commonwealth v.
Abdulhadi, 107 A.3d 236 (Pa.Super. 2014) (unpublished memorandum),
appeal denied, 629 Pa. 633, 105 A.3d 734 (2014).
On November 16, 2017, Appellant filed another pro se PCRA petition.
Appellant subsequently retained counsel, who filed an amended PCRA petition.
The PCRA court dismissed the petition as untimely on September 28, 2018.
This Court affirmed the denial of PCRA relief on September 19, 2019. See
Commonwealth v. Hadi, 221 A.3d 1270 (Pa.Super. 2019) (unpublished
memorandum).
Appellant filed the current PCRA petition pro se on April 14, 2020,
alleging police misconduct by a detective involved in Appellant’s case.
Appellant invoked the “newly-discovered fact” exception to the PCRA time-
bar, arguing that he became aware of the alleged police misconduct through
research he conducted in the law library on March 20, 2020. Specifically,
Appellant claimed he reviewed cases in which the lead investigator in
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Appellant’s case, Detective Baker, was found to have falsified and tampered
with evidence. Appellant stated that he uncovered another case in his
research showing that Detective Baker utilized coercive interrogation
procedures. Appellant insisted that Detective Baker committed similar
misconduct in Appellant’s case.
That same day, Appellant also filed a motion for discovery requesting a
copy of police files that reflect misconduct reports, fabrication of evidence,
coercive interrogation practices, and any allegations of illegal practices
documented against Detective Baker and other officers. On January 29, 2021,
the court issued Rule 907 notice. Appellant filed a supplemental PCRA petition
on February 22, 2021, claiming that he received a “PBI Findings sheet” from
the Commonwealth for the first time in October 2020, showing that the District
Attorney’s Office had knowledge about Detective Baker’s misconduct before
Appellant’s case proceeded to trial. Appellant suggested that the
Commonwealth withheld this information, constituting a violation under
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
Appellant further claimed the court had jurisdiction to review his Brady claim
based on the “governmental interference” exception to the PCRA time-bar.
On June 11, 2021, the PCRA court dismissed the petition as untimely.2
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2 The court did not issue a separate order expressly denying Appellant’s
motion for discovery, but the record suggests the court’s order denying PCRA
relief also denied the outstanding discovery motion.
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Appellant timely filed a pro se notice of appeal on July 6, 2021. On July 8,
2021, the court ordered Appellant to file a concise statement of errors
complained of on appeal per Pa.R.A.P. 1925(b). Appellant timely complied on
July 27, 2021. The next day, Appellant retained private appellate counsel.
Appellate counsel did not seek to amend the pro se Rule 1925(b) statement
nunc pro tunc. On July 30, 2021, while the appeal was pending and while
represented by appellate counsel, Appellant submitted a pro se document to
the PCRA court attaching an affidavit from Joshua Jones, in which Mr. Jones
purported to recant his trial testimony against Appellant. As the PCRA court
had already dismissed the petition, the court declined to address the affidavit.
Appellant raises the following issues for our review:
Whether the PCRA court erred in denying the PCRA petition
without granting Appellant’s motion for discovery?
Whether the PCRA court erred in denying the PCRA petition
without an evidentiary hearing where Appellant provided
sufficient evidence to hold a hearing that the assigned
detective for his case has been disciplined by the police
department due to misconduct committed in at least three
other cases?
Whether the Court should remand this matter for
supplementation of the record with an affidavit that was
received from a recanting witness shortly after the PCRA
court dismissed the PCRA petition where that affidavit would
establish that the assigned detective committed similar
misconduct in this case as in the three cases cited by
Appellant in his PCRA petition?
(Appellant’s Brief at vi).
For purposes of disposition, we combine Appellant’s issues. Appellant
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first argues that the court erred in denying his discovery motion. Appellant
claims that Detective Baker was the affiant for the charging documents leading
to his arrest. Appellant asserts that he presented evidence to the PCRA court
that Detective Baker has been sued in civil court in at least three other
homicide cases in which the defendants were ultimately exonerated due to
police misconduct. Appellant emphasizes that the Commonwealth conceded
in other cases that Detective Baker committed misconduct in 1998, which was
prior to the investigation in Appellant’s case. At a minimum, Appellant submits
the PCRA court should have granted Appellant’s motion for discovery so that
Appellant could “better link the misconduct that occurred in this case to that
for which Detective Baker has already been found responsible.” (Id. at 2).
Appellant maintains he has demonstrated “exceptional circumstances” that
warrant discovery at this stage of the proceedings based on the allegations
against Detective Baker. Appellant insists that Detective Baker was the “main
investigator” involved in Appellant’s case. Appellant suggests that if Detective
Baker coerced statements or framed defendants in other cases, a jury could
have found such information relevant in Appellant’s case.
Appellant further avers that the evidence against him was not very
strong. Appellant maintains there was no physical evidence, independent
eyewitness evidence, or ballistics evidence connecting Appellant to the
homicide. Appellant insists that the circumstances surrounding his confession
were “highly questionable.” Specifically, Appellant emphasizes that there was
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no audio or video recording of his alleged confession, and it had been taken
after Appellant was in custody with no food, water, sleep or offer to use a
bathroom for 20 hours. Appellant claims the basis for his stop was also
suspicious where Appellant was allegedly detained based on a “wanted”
poster, but the police never produced the actual poster. Appellant contends
that testimony from the eyewitnesses was also unreliable.
Secondly, and for similar reasons, Appellant argues the PCRA court
should have held an evidentiary hearing on Appellant’s claims of police
misconduct. Appellant avers that he provided a list of potential witnesses who
would testify at an evidentiary hearing. By calling these witnesses, Appellant
insists he would be able to establish that similar misconduct to that
demonstrated in other cases involving Detective Baker occurred in Appellant’s
case.
Finally, Appellant claims this Court should remand this matter to the
PCRA court so that Appellant can supplement the record with the affidavit from
Mr. Jones, in which Mr. Jones (who was a key witness against Appellant at
trial) stated that the detectives coerced him into giving a false statement
implicating Appellant in the crimes charged. Appellant insists he obtained the
affidavit from Mr. Jones after the notice of appeal had been filed in this case
but before the PCRA court had issued its Rule 1925(a) opinion. Appellant
claims he sought to amend the record at that time, but the PCRA court did not
permit him to do so. Appellant contends that he is entitled to an evidentiary
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hearing so that he can demonstrate that Mr. Jones’ affidavit satisfies the “new
facts” exception to the PCRA’s time-bar, such that his current PCRA petition
should be rendered timely filed. Appellant concludes this Court should remand
with instructions for the Commonwealth to produce all discovery relating to
any misconduct by Detective Baker and any other detectives involved in this
case, for an evidentiary hearing, and for supplemental filings and
consideration of Mr. Jones’ affidavit. We disagree.
Preliminarily, the timeliness of a PCRA petition is a jurisdictional
requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A
PCRA petition, including a second or subsequent petition, shall be filed within
one year of the date the underlying judgment of sentence becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment of sentence is final “at the conclusion of
direct review, including discretionary review in the Supreme Court of the
United States and the Supreme Court of Pennsylvania, or at the expiration of
time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). The statutory
exceptions to the PCRA time-bar allow very limited circumstances to excuse
the late filing of a petition; a petitioner must also assert the exception within
the time allowed under the statute. 42 Pa.C.S.A. § 9545(b)(1) and (b)(2).
Instantly, Appellant’s judgment of sentence became final on June 8,
2010, upon expiration of the time for Appellant to file a petition for writ of
certiorari in the U.S. Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3);
U.S.Sup.Ct.R. 13 (allowing 90 days to file petition for writ of certiorari).
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Therefore, Appellant had until June 8, 2011, to file a timely PCRA petition.
See 42 Pa.C.S.A. § 9545(b)(1). Appellant filed the current PCRA petition on
April 14, 2020, which is patently untimely.
Significantly, Appellant does not present any argument on appeal
concerning how the claims raised in his pro se PCRA petition (related to police
misconduct) or supplemental PCRA petition (related to the Brady violation)
satisfy any of the exceptions to the PCRA time-bar. Instead, Appellant only
advances an argument concerning a time-bar exception—specifically, the
“newly-discovered facts” exception—relative to the affidavit of Mr. Jones. As
previously stated, however, Appellant did not present the affidavit of Mr. Jones
in the PCRA court prior to the court’s denial of PCRA relief. Instead, Appellant
produced the affidavit of Mr. Jones via a pro se application for relief, while his
appeal was already pending, and after Appellant had already secured
appellate counsel. Thus, Appellant’s filing concerning Mr. Jones was
technically a legal nullity, and Appellant is improperly presenting evidence of
this affidavit for the first time on appeal. See generally Commonwealth v.
Williams, 241 A.3d 353 (Pa.Super. 2020) (explaining general rule that pro
se filings submitted by counseled defendants are generally treated as legal
nullities). See also Pa.R.A.P. 302(a) (stating issues not raised in lower court
are waived and cannot be raised for first time on appeal). While Appellant
seeks a remand to present evidence of Mr. Jones’ affidavit, Appellant cites no
appropriate legal authority to support his claim that remand is proper under
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these circumstances.3
Further, although Appellant seems to claim that an evidentiary hearing
and/or the grant of his motion for discovery4 would have produced sufficient
evidence to overcome the PCRA time-bar, he makes no such express
argument on appeal. See Commonwealth v. Kane, 10 A.3d 327 (Pa.Super.
2010) (stating this Court will not act as counsel and will not develop
arguments on behalf of appellant).5 Consequently, Appellant has not
sufficiently argued on appeal how the claims raised in his PCRA petition or
supplemental PCRA petition satisfy any time-bar exception.6 See 42 Pa.C.S.A.
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3In making his claim that he is entitled to a remand to supplement the record
with the affidavit from Mr. Jones, Appellant cites only to an unpublished
decision of this Court issued in 2017. We reject Appellant’s reliance on
unpublished decisions from this Court filed before May 1, 2019. See Pa.R.A.P.
126(b) (stating party may cite to unpublished decisions of this Court filed
after May 1, 2019 for their persuasive value).
4 We also note that Appellant did not challenge the denial of his discovery
motion in his pro se Rule 1925(b) statement, and appellate counsel did not
attempt to file an amended Rule 1925(b) statement preserving such a
challenge on appeal. Thus, any claim that the court improperly denied
Appellant’s discovery motion is waived on appeal in any event. See Pa.R.A.P.
1925(b)(4)(vii) (stating issues not raised in concise statement are waived).
5 We observe that the PCRA court addressed Appellant’s claimed time-bar
exceptions relative to Appellant’s allegations of police misconduct and Brady
violations in its Rule 1925(a) opinion. We reiterate that Appellant asserts no
time-bar exception regarding the alleged police misconduct or Brady
violations on appeal. Thus, we will not address whether Appellant’s allegations
as presented in his PCRA petitions satisfied any exception.
6 During the pendency of this appeal, Appellant filed an application for remand
in this Court, requesting reversal of the PCRA court’s order and a remand for
(Footnote Continued Next Page)
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§ 9545(b)(1). Accordingly, Appellant’s petition remains time-barred, and we
affirm the order denying PCRA relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/28/2022
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amendment of Appellant’s PCRA petition, a renewed motion for discovery, an
evidentiary hearing, and the additional consideration of Mr. Jones’ affidavit.
Essentially, Appellant advances in this application for relief the same claims
he makes on appeal. As we have already decided Appellant is not entitled to
relief on the issues presented in this appeal, we deny Appellant’s application.
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