Opinion
J-S44021-16 No. 122 EDA 2015
11-22-2016
COMMONWEALTH OF PENNSYLVANIA, Appellee v. OMAR SHAMSIDDEEN, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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.:
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 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 See Commonwealth v. Shamsiddeen , No. 91 EDA 2009, unpublished memorandum, at 1 (Pa.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 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, are allegations of ineffective assistance of counsel.
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.
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 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.
Commonwealth v. Pierce , 527 A.2d 973 (Pa. 1987).
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.
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. See Reyes-Rodriguez , 111 A.3d at 780.
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.
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 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 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.
We recognize that the PCRA court did not have the benefit of the Montgomery decision at the time its order and opinion were issued.
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. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/22/2016
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