Com. v. Akbar, H. ( 2022 )

J-S37037-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HASSAN AKBAR :
:
Appellant : No. 320 EDA 2021
Appeal from the Order Entered January 19, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007173-2009
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 19, 2022
Appellant Hassan Akbar appeals from the order entered by the Court of
Common Pleas of Philadelphia County denying Appellant’s petition for relief
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541 et seq.
After careful review, we affirm.
The PCRA court summarized the factual background and procedural
history of this case as follows:
On April 14, 2010, the jury found [Appellant] guilty of
aggravated assault, criminal conspiracy, possession of a firearm
by a prohibited person and possessing instruments of crime. The
evidence adduced at trial showed that in the early morning hours
of November 13, 2008, Kemp Carter and Regina Holmes arrived
at Carter’s house and saw [Appellant] and Darnell Lewis sitting in
a parked car in front of the house. When Carter and Holmes
approached the front door, [Appellant] and Lewis appeared behind
them with guns drawn. [Appellant] told them, “Look, this is how
it’s going down. We are all going in the house together,” and then
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S37037-21
fired two shots at Carter’s feet. Carter shoved Holmes out of the
way and made a run for it. As Carter was running away, he was
shot from behind. The bullet pierced his liver, bladder, and
stomach. [Appellant] and Lewis then fled the scene. ([Notes of
Testimony (N.T.)], 4/9/10, 68-84). Subsequently, both Carter and
Holmes identified [Appellant] and Lewis in photo arrays. The
police also received an anonymous tip about a car with the license
plate “GKW 8662” that had been parked in front of Carter’s house
before the shooting. Police officers began searching for this car
and spotted it being driven by Lewis. Police took Lewis into
custody, who confessed to the crime and implicated [Appellant]
as his partner in crime that night. Lewis told police that he never
had a firearm; it was only [Appellant] who shot at Carter. (N.T.
4/8/10, p. 21-55). [Appellant] was arrested on December 2,
2008, at which time he gave the false identity of “Elijah Juan
Blaloc” instead of his real name. (N.T. 4/9/10, p. 45-47).
At trial, Antoine (aka “Antwuan”) Nazario testified as an alibi
witness. He stated that [Appellant] was with him at a bachelor
party from the evening of November 13, 2008 into the morning of
November 14, 2008. On cross-examination, Nazario testified that
on the night of November 12, 2008 into the early morning hours
of November 13, 2008, he was at home and did not recall when
he went to sleep. The prosecutor noted that the incident at
Carter’s house actually happened on the early hours of November
13, 2008. Nazario stated that no one had told him the shooting
was early, not late, on November 13, 2008. (N.T. 4/12/10, p. 116-
131).
PCRA Court Opinion (P.C.O.), 5/18/21, at 1-3.
On July 12, 2010, Appellant was sentenced to an aggregate term of
twenty-five to fifty years’ imprisonment, which included two mandatory
minimum sentences. On July 30, 2014, this Court affirmed Appellant’s
convictions but remanded for resentencing. After both parties appealed, our
Supreme Court vacated this Court’s decision and remanded for resentencing
in light of its decision in Commonwealth v. Fields, 630 Pa. 625, 107 A.3d
-2-
J-S37037-21
738 (2014), which was pending at the time this Court affirmed the judgment
of sentence.1
On August 27, 2015, the trial court resentenced Appellant to the same
aggregate sentence of twenty-five to fifty years’ incarceration, but removed
the mandatory minimum sentences. Appellant filed a post-sentence motion
for the reconsideration of his sentence, but did not file a direct appeal.
On June 29, 2016, Appellant filed a pro se PCRA petition in which he
raised claims of ineffectiveness of counsel, including a claim that trial counsel
was ineffective for failing to file a direct appeal. On September 18, 2017, the
PCRA court reinstated Appellant’s right to file a direct appeal. On September
26, 2018, this Court affirmed the judgment of sentence and on March 20,
2019, the Supreme Court denied Appellant’s petition for allowance of appeal.
On April 22, 2019, Appellant filed another PCRA petition. The PCRA
court appointed Appellant counsel, who filed an amended petition on August
6, 2019. Thereafter, on March 10, 2020, the PCRA court notified Appellant of
its intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P.
907. On January 19, 2021, the PCRA court denied Appellant’s petition. This
timely appeal followed.
Appellant raises the following issues for review on appeal:
____________________________________________
1 In Fields, the Supreme Court held that “Section 9714(a)(1) of the
Sentencing Code, 42 Pa.C.S. § 9714(a)(1), requires that a second-strike
offender be sentenced to the prescribed minimum term of incarceration for
each conviction of a crime of violence that is part of the second strike.” Fields,
630 Pa. at 636, 107 A.3d at 744.
-3-
J-S37037-21
1. Whether the PCRA court erred by dismissing the PCRA petition
when clear and convincing evidence was presented that trial
counsel was ineffective for failing to properly present the
testimony of the alibi witness, failing to present an available
defense witness, failing to protect [A]ppellant’s rights pursuant
to the Confrontation Clause, and failing to challenge the
Affidavit of Probable Cause and request a Franks hearing.
2. Whether the PCRA court erred by dismissing the PCRA petition
when clear and convincing evidence was presented to establish
a violation of [A]ppellant’s constitutional right to due process
based on prosecutorial misconduct; evidence that did not prove
his guilt beyond a reasonable doubt; and ineffective
representation of trial counsel.
3. Whether the PCRA court erred by dismissing the PCRA petition
when clear and convincing evidence was presented to establish
the trial court issued an illegal sentence by imposing a 50 year
maximum sentence in excess of the maximum aggregate
sentence for three second-degree felonies of 30 years.
4. Whether the PCRA court erred by failing to grant an evidentiary
hearing.
Appellant’s Brief, at 8.
Our standard of review is as follows:
Our review of a PCRA court's decision is limited to examining
whether the PCRA court's findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error. We view the findings of the PCRA court and the evidence of
record in a light most favorable to the prevailing party. With
respect to the PCRA court's decision to deny a request for an
evidentiary hearing, or to hold a limited evidentiary hearing, such
a decision is within the discretion of the PCRA court and will not
be overturned absent an abuse of discretion.
Commonwealth v. Maddrey, 205 A.3d 323, 327 (Pa.Super. 2019) (quoting
Commonwealth v. Mason, 634 Pa. 359, 130 A.3d 601, 617 (2015) (internal
citations and quotation marks omitted)).
-4-
J-S37037-21
In Appellant’s first question for review, he raises multiple claims that his
trial counsel provided ineffective representation. In reviewing such claims, we
are guided by the following principles:
[a]s originally established by the United States Supreme Court in
Strickland v. Washington, 466 U.S. 668, [104 S.Ct. 2052, 80
L.Ed.2d 674] (1984), and adopted by Pennsylvania appellate
courts, counsel is presumed to have provided effective
representation unless a PCRA petitioner pleads and proves all of
the following: (1) the underlying legal claim is of arguable merit;
(2) counsel's action or inaction lacked any objectively reasonable
basis designed to effectuate his client's interest; and (3)
prejudice, to the effect that there was a reasonable probability of
a different outcome at trial if not for counsel's error.
Commonwealth v. Selenski, 228 A.3d 8, 15 (Pa.Super. 2020) (quoting
Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa.Super. 2014) (citations
omitted).
Appellant claims that trial counsel was ineffective in failing to properly
present the testimony of alibi witness Antoine Nazario (hereinafter
“Nazario”).2 Specifically, Appellant argues that trial counsel provided Nazario
with an incorrect date and time during direct examination for which Nazario
was to provide Appellant with an alibi. Appellant asserts that Nazario’s alibi
testimony became “severely compromised” after the prosecutor confronted
Nazario on cross-examination with the correct date and time of the crimes at
issue. Appellant’s Brief, at 10.
The PCRA court concluded this argument to be a mischaracterization of
the record as Nazario testified to his own recollection of the events near the
____________________________________________
2 Mr. Nazario’s first name is spelled both Antoine and Antwuan in the record.
-5-
J-S37037-21
time of the crimes at issue. Nazario asserted that he remembered this time
period well as he attended his bachelor party on the evening of November 13,
2008, his fiancee’s birthday was November 14, 2008, and his wedding was
held on November 15, 2008. N.T. Trial, 4/12/09, at 116-19.
As such, Nazario agreed with trial counsel on direct examination that
that Appellant was with him the entire evening of November 13, 2008 into the
early morning hours of November 14, 2008 at Nazario’s bachelor party.
However, as noted above, Appellant was accused of assaulting the victims in
the early morning hours of November 13, 2018.
The PCRA court concluded that Appellant’s ineffectiveness claim had no
arguable merit as trial counsel did not provide Nazario with incorrect dates or
mislead Nazario in any way, but more simply, Nazario’s testimony did not
support an alibi defense.
Regardless of whether there is any arguable merit to this particular claim
of ineffectiveness, we find that trial counsel’s alibi defense presentation did
not result in actual prejudice such that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.
In this case, the prosecution introduced overwhelming evidence of
Appellant’s guilt through eyewitness testimony. Both Mr. Carter and Ms.
Holmes testified at trial that Appellant and Lewis threatened them with
firearms as they were entering Mr. Carter’s home. N.T., 4/7/10, 77; 4/9/10,
-6-
J-S37037-21
at 68, 73, 86.3 Ms. Holmes asserted that she observed Appellant shoot at the
ground to push them into the house and then she observed Mr. Lewis shoot
Mr. Carter. N.T., 4/7/10, 77-78. While Mr. Carter could not identify which of
his assailants shot him, he averred that both men had guns when they
attempted to push him and Ms. Holmes into the house. N.T., 4/9/10, 74. Mr.
Holmes testified that the men shot him in the stomach and the bullets hit his
liver, bladder and kidney. Id. at 74. In addition, Mr. Carter and Ms. Holmes
made pre-trial identifications of Appellant and Lewis at their attackers in photo
arrays presented to them by detectives. N.T., 4/7/10, 92-93; 4/9/10, at 78-
81.
Accordingly, we find that Appellant failed to establish the requisite
prejudice that the result of the proceeding would have been different. It is
well-established that “[a] failure to satisfy any prong of the ineffectiveness
test requires rejection of the claim of ineffectiveness.” Selenski, 228 A.3d at
15 (quoting Commonwealth v. Daniels, 600 Pa. 1, 18, 963 A.2d 409, 419
(2009)) (emphasis added). As such, this ineffectiveness claim does not entitle
Appellant to collateral relief.
Appellant also claims that trial counsel was ineffective in failing to call
Christina Nazario as a witness. In reviewing this claim, we are mindful of the
following principles:
____________________________________________
3 We observe that the notes of testimony from Appellant’s trial are labeled
incorrectly as being transcribed on April 9, 2009.
-7-
J-S37037-21
When raising a claim of ineffectiveness for the failure to call a
potential witness, a petitioner satisfies the performance and
prejudice requirements of the Strickland test by establishing
that: (1) the witness existed; (2) the witness was available to
testify for the defense; (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 of
the witness was so prejudicial as to have denied the defendant a
fair trial. Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d
523, 536 (2009); Commonwealth v. Clark, 599 Pa. 204, 961
A.2d 80, 90 (2008). To demonstrate Strickland prejudice, a
petitioner “must show how the uncalled witnesses' testimony
would have been beneficial under the circumstances of the case.”
Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d 1110, 1134
(2008). Thus, counsel will not be found ineffective for failing to
call a witness unless the petitioner can show that the witness's
testimony would have been helpful to the defense.
Commonwealth v. Auker, 545 Pa. 521, 681 A.2d 1305, 1319
(1996). “A failure to call a witness is not per se ineffective
assistance of counsel for such decision usually involves matters of
trial strategy.” Id.Commonwealth v. Sneed, 616 Pa. 1, 22–23, 45 A.3d 1096, 1108–09
(2012).
While Appellant argues that Christina Nazario “was available and willing
to testify … to certain facts that would establish Appellant’s actual innocence,”
Appellant failed to provide this Court or the PCRA court with any details as to
the proposed testimony of Christina Nazario and its relevance to Appellant’s
defense, let alone shown how her testimony would have compelled a different
verdict. Appellant’s undeveloped claim does not entitle him to relief under the
PCRA. Sneed, supra.
Appellant also argues that trial counsel was ineffective in failing to
protect his rights pursuant to the Confrontation Clause. Specifically, Appellant
suggests that defense counsel should have objected when Detective Rudolph
-8-
J-S37037-21
Valentine testified regarding the witnesses’ identification of Appellant from
photo arrays as Appellant claims that Detective Valentine was “not the
detective that conducted the pre-trial identification according to the affidavit
of probable cause.” Appellant’s Brief, at 11.
We agree with the PCRA court’s assessment that his claim has no
arguable merit. While the PCRA court recognized that the affidavit of probable
cause states that Detective Maurizio showed the victim the photo array
containing Appellant’s photo, the PCRA court found that this did not mean that
Detective Valentine was not also present when the witnesses were shown the
photo arrays.
Detective Valentine testified at trial that he prepared the photo arrays
which included Appellant’s photo and personally showed them to the victim
and Ms. Holmes, who both identified Appellant as one of the attackers. N.T.
4/12/10, 87-90. Detective Valentine also testified at Appellant’s preliminary
hearing that he was present when Holmes identified Appellant in the photo
array. N.T. 5/21/09, 13. The victim and Ms. Holmes both testified that
detectives (plural) showed them photo arrays containing Appellant’s picture.
N.T. 4/7/10, 92; 4/9/20, 79-80.
As such, as the record shows that Detective Valentine was present when
the victim and Mrs. Holmes were shown the photo arrays, we find no arguable
merit to Appellant’s claim that trial counsel should have raised a Confrontation
Clause objection.
-9-
J-S37037-21
Appellant next claims trial counsel was ineffective in failing to request a
Franks hearing to challenge the affidavit of probable cause, which Appellant
claims contained false information. While Appellant fails to provide a full
citation, we surmise he is referring to the decision in Franks v. Delaware,
438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
The Pennsylvania Supreme Court summarized the United States
Supreme Court's holding in Franks as follows:
[Franks] addressed whether a defendant has the right, under the
Fourth and Fourteenth Amendments, to challenge the truthfulness
of factual averments in an affidavit of probable cause. The Court
held where the defendant makes a substantial preliminary
showing the affiant knowingly and intentionally, or with reckless
disregard for the truth, included a false statement in the affidavit,
the Fourth Amendment requires a hearing be held at the
defendant's request. The Court emphasized the defendant's attack
on the affidavit must be “more than conclusory and must be
supported by more than a mere desire to cross-examine”; the
defendant must allege deliberate falsehood or reckless disregard
for the truth, accompanied by an offer of proof. If the defendant
meets these requirements, but the remainder of the affidavit's
content is still sufficient to establish probable cause, no hearing is
required. If the affidavit's remaining content is insufficient, a
hearing is held, at which the defendant must establish, by a
preponderance of the evidence, the allegation of perjury or
reckless disregard. If he meets this burden, the affidavit's false
material is disregarded; if its remaining content is insufficient to
establish probable cause, the search warrant is voided, and the
fruits thereof are excluded.
Commonwealth v. James, 620 Pa. 465, 478, 69 A.3d 180, 188 (Pa.
2013) (citations omitted).
In this case, Appellant specifically alleges that the affidavit of probable
cause contained false information in that it stated that one photo array was
- 10 -
J-S37037-21
shown to the witnesses, when the witnesses testified that they saw “a lot of
photos.” Appellant’s Brief, at 10-11.
Our review of the record shows that the victim testified that he was
shown a photo array in the hospital and another photo array at his home.
When the victim was asked how many photographs the detectives showed
him and more specifically whether it was a lot of photos, the victim responded
affirmatively. N.T., 4/9/10, 101-102. We agree with the PCRA court’s
acknowledgement that a photo array, by definition, contains numerous
photos. As such, it is not unreasonable for the victim to have seen “a lot of
photos” in two photo arrays.
As such, we conclude that Appellant did not provide adequate support
for his claim that a false statement was made in the affidavit of probable cause
that would have warranted a hearing pursuant to Franks.
Appellant also claims that his constitutional right to due process was
violated by the Commonwealth’s failure to prove each element of the crimes
charged beyond a reasonable doubt. This argument is a challenge to the
sufficiency of the evidence, a claim that is not cognizable under the PCRA as
it should have been raised on direct appeal. 42 Pa.C.S.A. § 9544(b) (stating
“an issue is waived if the petitioner could have raised it but failed to do so
before trial, at trial, during unitary review, on appeal[,] or in a prior state
postconviction proceeding”). As such, we find this issue waived.
Appellant claims for the first time on appeal that the prosecution denied
him due process by “the knowing and intentional use of perjured testimony”
- 11 -
J-S37037-21
from Detective Valentine. Appellant’s Brief, at 11. As a general rule, “issues
not raised in a PCRA petition cannot be considered on appeal.”
Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011) (quotation
and citations omitted); Pa.R.A.P. 302(a) (“Issues not raised in the lower court
are waived and cannot be raised for the first time on appeal”).4 Moreover,
this claim of prosecutorial misconduct is also waived as Appellant failed to
raise the issue during trial or on direct appeal. 42 Pa.C.S.A. § 9544(b).
Lastly, Appellant argues that the trial court issued an illegal sentence as
he asserts that the criminal information did not set forth the degree of the
aggravated assault charge. As such, Appellant claims he is entitled to “the
lowest gradation provided by Section 2701” (second-degree felony) and
argues that the conspiracy charge should be graded the same as the
aggravated assault charge. Appellant’s Brief, at 19. Further, Appellant
argues that he received an illegal maximum aggregate sentence of fifty years’
imprisonment when the maximum aggregate sentence for three second
degree felony offenses is thirty years’ imprisonment.
However, there is no record support for this argument as the criminal
information clearly states that Appellant was charged with aggravated assault
____________________________________________
4 Our Supreme Court recently expanded the opportunities for a PCRA
petitioner to raise claims of PCRA counsel ineffectiveness for the first time on
collateral appeal. See Commonwealth v. Bradley, ––– A.3d ––––, 2021
WL 4877232 (Pa. 2021). However, since Appellant did not couch his claim of
prosecutorial misconduct in terms of the ineffectiveness of his counsel, the
dictates of Bradley do not impact this case.
- 12 -
J-S37037-21
as a felony of the first degree. The information lists Count 1 as “Aggravated
Assault (F1)” under 18 Pa.C.S.A. § 2702(a). Although the information does
not specify the subsection of Section 2702(a), it states Appellant “attempted
to cause serious bodily injury to another, or caused such injury intentionally,
knowingly or recklessly under the circumstances manifesting extreme
indifference to human life.” This language is found in Section 2702(a)(1),
which is graded as a first-degree felony. In addition, the charges against
Appellant were reviewed several times including at his preliminary hearing and
arraignment. As such, Appellant is not entitled to relief.
For the foregoing reasons, we conclude that the PCRA court correctly
denied Appellant’s petition without a hearing as he has failed to set forth any
claims that would entitle him to collateral relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/19/2022
- 13 -