Com. v. Akbarr, F. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FEIQUIN RAHSAAN AKBARR
Appellant No. 388 MDA 2015
Appeal from the Order Entered January 14, 2015
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0002604-2011
BEFORE: BOWES, J., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY OTT, J.: FILED MAY 17, 2016
Feiquin Rahsaan Akbarr appeals the order entered January 14, 2015,
in the Luzerne County Court of Common Pleas denying his first petition for
collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546. Akbarr seeks relief from the judgment of sentence of
an aggregate term of 96 to 192 months’ imprisonment imposed on October
24, 2012, following Akbarr’s non-jury conviction of involuntary deviate
sexual intercourse (“IDSI”) and indecent assault.1 Contemporaneous with
this appeal, counsel for Akbarr has filed a petition to withdraw, and
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*
Former Justice specially assigned to the Superior Court.
1
See 18 Pa.C.S. §§ 3123(a)(1) and 3126(a)(1), respectively.
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accompanying “no-merit” brief.2 For the reasons set forth below, we grant
counsel’s petition to withdraw and affirm the order denying PCRA relief.
The facts underlying Akbarr’s arrest were summarized by a panel of
this Court in a prior decision:
The charges in this matter stemmed from an incident that
occurred on June 5, 2011. On that date, [Akbarr] went to the
home of an acquaintance and sexually assaulted victim J.N., who
was eight months pregnant at the time. J.N. managed to get
away from [Akbarr] and alert her housemate to the incident.
[Akbarr] was subsequently chased from the home; and, during a
brief struggle with the housemate and another male, dropped an
identification card with his photograph on it. J.N. identified
[Akbarr] based on the recovered card. She was taken to Wilkes
General Hospital and a rape kit was performed.
Commonwealth v. Akbarr, 87 A.3d 879 (unpublished memorandum at 1-
2) (Pa. Super. 2013).
Akbarr was subsequently charged with IDSI, indecent assault, and
theft by unlawful taking.3 He filed a pretrial motion to suppress statements
he made to police officers during their execution of a search warrant to
retrieve a DNA sample from him. The court denied the motion following a
hearing on June 4, 2012. Akbarr proceeded to a non-jury trial, and, on June
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2
As explained infra, counsel improperly filed an Anders brief, rather than a
Turner/Finley “no merit” letter. See Anders v. California, 386 U.S. 738(1967); Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3
See 18 Pa.C.S. § 3921(a). The theft charge was based on the victim’s
allegation that Akbarr ran out of her house with her cell phone. See
Criminal Complaint, 6/10/2011, Affidavit of Probable Cause at 2.
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8, 2012, was convicted of the two sexual offenses. The court found him not
guilty of theft. Because of the sexual nature of Akbarr’s convictions, the trial
court ordered that Akbarr undergo an assessment by the Sexual Offender’s
Assessment Board to determine if he met the criteria for classification as a
sexually violent predator (“SVP”) pursuant to Megan’s Law.4
On October 24, 2012, the trial court held a combined Megan’s
Law/sentencing hearing. The court found Akbarr met the criteria for
classification as an SVP, and sentenced him to a term of 96 to 192 months’
imprisonment for IDSI, and a concurrent term of 12 to 24 months’
imprisonment for indecent assault. Akbarr filed a timely post-sentence
motion challenging, inter alia, the weight and sufficiency of the evidence
supporting his convictions. The trial court denied his post-sentence motion,
and Akbarr filed a direct appeal.
On appeal to this Court, Akbarr limited his claims to a challenge to the
trial court’s denial of his suppression motion, and his SVP classification. A
panel of this Court affirmed in part, and reversed in part. See Akbarr,
supra. Specifically, the panel found no error in the trial court’s suppression
ruling, but determined the evidence was insufficient to support Akbarr’s
classification as an SVP. Accordingly, the panel reversed and vacated the
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4
We note that, effective December 20, 2012, Megan’s Law was replaced by
the Sexual Offenders Registration and Notification Act (“SORNA”). See 42
Pa.C.S. §§ 9799.10-9799.41 (as amended 2011, Dec. 20, P.L. 446, No. 111,
§ 12).
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judgment of sentence as to Akbarr’s SVP classification only, and affirmed it
in all other respects. The panel remanded the case so that Akbarr could be
informed of his new registration requirements. Id. (unpublished
memorandum at 16-17).
Upon remand, on December 13, 2013, the trial court determined
Akbarr was a Tier III sexual offender,5 and informed him of his registration
requirements. On January 27, 2014, Akbarr filed a pro se PCRA petition,
arguing prior counsel was ineffective for failing to challenge on direct appeal
the weight of the evidence, the lack of DNA evidence, and a violation of his
speedy trial rights. See Motion for Post Conviction Collateral Relief,
1/27/2014, at 3. He also requested a correction of his sentence based on an
assertion that his prior record score should have been a “2” rather than a
“5.” Id. at 4. New counsel was subsequently appointed. Thereafter, Akbarr
filed a pro se motion for modification of his sentence nunc pro tunc, again
claiming the prior record score used by the trial court in determining his
sentence was incorrect.6 The PCRA court denied Akbarr’s pro se motion for
modification on April 28, 2014.
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5
See 42 Pa.C.S. §§ 9799.14(d); 9799.15.
6
Specifically, Akbarr claimed the trial court told him that “if [he] could show
proof [he] did not commit three felonies in 2001 and 2002 that [the court]
would modifi (sic) [his] sentence.” Motion for Modification of Sentence Nunc
Pro Tunc, 4/22/2014, at 2.
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Subsequently, the PCRA court conducted three PCRA hearings, on May
30, 2014, July 22, 2014, and October 30, 2014. On January 14, 2015, the
court entered an order denying Akbarr’s PCRA petition. PCRA counsel filed
this timely appeal on February 13, 2015, accompanied by a motion for
appointment of appellate counsel. The PCRA court granted counsel’s motion
to withdraw and appointed Akbarr’s current attorney, Mary V. Deady, Esq.,
to represent him in this appeal.7
Prior to addressing the substantive claims raised on appeal, we must
first consider whether counsel has fulfilled the procedural requirements for
withdrawal as outlined in Turner/Finley:
Counsel petitioning to withdraw from PCRA representation must
… review the case zealously. Turner/Finley counsel must then
submit a “no-merit” letter to the trial court, or brief on appeal to
this Court, detailing the nature and extent of counsel’s diligent
review of the case, listing the issues which petitioner wants to
have reviewed, explaining why and how those issues lack merit,
and requesting permission to withdraw. Counsel must also send
to the petitioner: (1) a copy of the “no merit” letter/brief; (2) a
copy of counsel’s petition to withdraw; and (3) a statement
advising petitioner of the right to proceed pro se or by new
counsel.
***
[W]here counsel submits a petition and no-merit letter that …
satisfy the technical demands of Turner/Finley, the court —
trial court or this Court — must then conduct its own review of
the merits of the case. If the court agrees with counsel that the
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7
Current counsel complied with the PCRA court’s request to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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claims are without merit, the court will permit counsel to
withdraw and deny relief.
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation
omitted). See also Commonwealth v. Freeland, 106 A.3d 768, 774-775
(Pa. Super. 2014).
Here, counsel filed an Anders brief in lieu of a “no-merit” letter.
Although, as noted above, the appropriate filing when counsel seeks to
withdraw on appeal from the denial of PCRA relief is a Turner/Finley “no
merit” letter, this Court has held “[b]ecause an Anders brief provides
greater protection to a defendant, this Court may accept an Anders brief in
lieu of a Turner/Finley letter.” Commonwealth v. Reed, 107 A.3d 137,
139 (Pa. Super. 2014) (quotations omitted). We find the Anders brief
submitted by counsel satisfies the requirements of Turner/Finley.
Moreover, our review of the record reveals counsel properly provided Akbarr
with a copy of the brief and the petition to withdraw, and advised him of his
right to proceed pro se or with private counsel. See Petition to Withdraw as
Counsel, 10/14/2015. Akbarr has not responded to counsel’s petition to
withdraw. Therefore, we proceed to a consideration of whether the PCRA
court erred in dismissing the petition. See Doty, supra.When reviewing an order dismissing a PCRA petition, we must
determine whether the PCRA court’s findings of fact are supported by the
record, and whether its legal conclusions are free from error.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “Great deference
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is granted to the findings of the PCRA court, and these findings will not be
disturbed unless they have no support in the certified record.”
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation
omitted).
Where, as here, the claims raised on appeal challenge the
effectiveness of counsel, our review is well-settled:
We begin our analysis of ineffectiveness claims with the
presumption that counsel is effective. To prevail on his
ineffectiveness claims, Appellant must plead and prove, by a
preponderance of the evidence, three elements: (1) the
underlying legal claim has arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) Appellant
suffered prejudice because of counsel’s action or inaction. With
regard to the second, i.e., the “reasonable basis” prong, we will
conclude that counsel’s chosen strategy lacked a reasonable
basis only if Appellant proves that “an alternative not chosen
offered a potential for success substantially greater than the
course actually pursued.” To establish the third, i.e., the
prejudice prong, Appellant must show that there is a reasonable
probability that the outcome of the proceedings would have been
different but for counsel’s action or inaction.
Commonwealth v. Spotz, 18 A.3d 244, 259-260 (Pa. 2011) (internal
citations omitted). “Failure to establish any prong of the test will defeat an
ineffectiveness claim.” Commonwealth v. Keaton, 45 A.3d 1050, 1061
(Pa. 2012) (citations omitted).
The first issue addressed in counsel’s “no merit” brief asserts the
ineffective assistance of both trial and appellate counsel for failing to
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challenge the sufficiency of the evidence supporting Akbarr’s conviction.8
Akbarr claims trial counsel failed to preserve this issue by moving for
judgment of acquittal after the Commonwealth’s case-in-chief, and direct
appeal counsel subsequently failed to raise the claim on appeal. During the
May 30, 2014, PCRA hearing, Akbarr testified the evidence was insufficient
because none of his DNA was recovered from the victim, and there was “not
a mark on her,” although she claimed she went to the hospital 20 minutes
after the assault. N.T., 5/30/2014, at 16-17.
Preliminarily, we note Akbarr’s assertion that trial counsel failed to
move for judgment of acquittal is belied by the record. See N.T., 6/4-
8/2012, at 297-300. Moreover, with regard to direct appeal counsel’s
ineffectiveness, we conclude Akbarr’s claim has no arguable merit.
“The crime of [IDSI] occurs when the actor, by physical compulsion or
threats thereof, coerces the victim to engage in acts of anal and/or oral
intercourse.” Commonwealth v. Poindexter, 646 A.2d 1211, 1215 (Pa.
Super. 1994), appeal denied, 655 A.2d 512 (Pa. 1995). See 18 Pa.C.S. §
3123(a)(1). Even “slight” penetration of the victim’s genitals is sufficient to
support a conviction. 18 Pa.C.S. § 3101. Furthermore, a person may be
convicted of “indecent assault” if he has “indecent contact” with the victim,
without the victim’s consent. 18 Pa.C.S. § 3126(a)(1). “Indecent contact”
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8
We have reorganized the issues identified in the “no merit” brief for
purposes of disposition.
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is defined as “[a]ny touching of the sexual or other intimate parts of the
person for the purpose of arousing or gratifying sexual desire, in any
person.” 18 Pa.C.S. § 3101.
In the present case, the victim testified Akbarr pushed her on a bed,
pulled off her pants, and touched her vagina with his tongue. See N.T., 6/4-
8/2012, at 41-46. With regard to sexual offenses, it is well-established that
the “testimony of a victim need not be corroborated.” Poindexter, supra,646 A.2d at 1214 (citation omitted). Indeed, “this court held that the
uncorroborated testimony of a [sexual assault] victim, if believed by the
jury, is sufficient to support a [sexual assault] conviction and no medical
testimony is needed to corroborate a victim’s testimony if the testimony was
rendered credible by the [fact finder].” Id., citing Commonwealth v.
Gabrielson, 536 A.2d 401 (Pa. Super. 1988), appeal denied, 542 A.2d 1365(Pa. 1988). Accordingly, the fact that the victim displayed no physical signs
of assault, and that none of Akbarr’s DNA was recovered from the victim is
irrelevant. The trial court, as fact finder, determined the victim’s testimony
was credible. Because “counsel cannot be deemed ineffective for failing to
raise a meritless claim[,]”9 this issue fails.
Next, counsel’s “no merit” brief addresses Akbarr’s assertion that
appellate counsel was ineffective for failing to challenge the weight of the
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9
Commonwealth v. Staton, 120 A.3d 277, 284 (Pa. 2015), cert. denied,
136 S. Ct. 807 (U.S. 2016).
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evidence on direct appeal. During the PCRA hearing, Akbarr testified that
his weight claim, like his sufficiency claim, is based on the lack of DNA
evidence found on the victim and her undergarments. See N.T., 5/30/2014,
at 16.
It is important to note that trial counsel filed a post-trial motion,
raising a claim that the verdict was against the weight of the evidence, and
the trial court, which sat as fact-finder, denied the motion. We emphasize
that “[a] motion for a new trial based on a claim that the verdict is against
the weight of the evidence is addressed to the discretion of the trial court,”
and appellate review of such a claim is limited to a review of the trial court’s
exercise of discretion, “not of the underlying question of whether the verdict
is against the weight of the evidence.” Commonwealth v. Clay, 64 A.3d
1049, 1054-1055 (Pa. 2013) (citations and emphasis omitted). Here,
Akbarr has provided us with no basis to conclude the trial court abused its
discretion in determining the verdict was not against the weight of the
evidence. Therefore, we find this claim, like the first, has no arguable merit.
Furthermore, appellate counsel testified at the July 22, 2014, PCRA
evidentiary hearing that before filing the direct appeal, he reviewed Akbarr’s
case with trial counsel and determined the only two credible issues were
those he raised, i.e., the trial court erred in denying the pretrial suppression
motion, and in finding Akbarr met the criteria for qualification as an SVP.
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See N.T., 7/22/2014, at 15-16. Accordingly, Akbarr has also failed to
establish appellate counsel had no reasonable basis for his actions, 10 and,
therefore, no relief is warranted with respect to his weight of the evidence
challenge.
The “no merit” brief also identifies Akbarr’s contention that appellate
counsel was ineffective for failing to raise a speedy trial claim on direct
appeal. At the PCRA hearing, Akbarr clarified that he wanted counsel to
challenge the “180-day rule.” N.T., 5/30/2014, at 19. He explained that he
was granted “nominal bail” by the court, but the jail refused to release him
because he did not have an “approved address.” Id. at 19-20. Akbarr
further testified that he hoped to work during his release and save money to
hire a private attorney. Id. at 21.
Rule 600 of the Pennsylvania Rules of Criminal Procedure “was
designed to implement speedy trial rights to defendants based upon the
Sixth Amendment to the United States Constitution and Article I, Section 9
of the Pennsylvania Constitution.” Commonwealth v. Goldman, 70 A.3d
874, 879 (Pa. Super. 2013) (citation omitted), appeal denied, 85 A.3d 482(Pa. 2014). While the Rule provides for the release of a defendant who is
not tried within 365 days of the filing of the criminal complaint,11 the Rule
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10
See Spotz, supra.
11
See Pa.R.Crim.P. 600(D)(1).
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mandates only the release on nominal bail of a defendant “held in pretrial
incarceration in excess of … 180 days from the date on which the complaint
is filed[.]” Pa.R.Crim.P. 600(B)(1). Indeed, this Court has emphasized, “the
only occasion requiring dismissal of charges is when the Commonwealth fails
to commence trial within 365 days of the filing of the written complaint,
taking into account all excludable time and excusable delay.” Goldman,
supra, 70 A.3d at 879-880.
Here, Akbarr was granted release on nominal bail after the 180-day
period expired. However, because the jail found he did not have an
approved address, he was never released. Nonetheless, Akbarr does not
dispute that his trial commenced prior to the expiration of 365 days after the
criminal complaint was filed.12 Unfortunately, this Court has held that
“[o]ther than release on nominal bail, no other remedy is prescribed for
defendants incarcerated for less than three hundred sixty-five days, even if
they were not, in fact, released on nominal bail.” Commonwealth v.
Murray, 879 A.2d 309, 314 (Pa. Super. 2005) (emphasis supplied).
Therefore, because there is no remedy available to Akbarr, this claim, too,
fails.
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12
The incident at issue occurred on June 5, 2011, and Akbarr’s non-jury trial
commenced on June 4, 2012.
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Lastly, the “no merit” letter addresses Akbarr’s contention that both
trial and appellate counsel were ineffective for failing to challenge the
accuracy of his prior record score. The basis for this claim is somewhat
convoluted.
During the October 24, 2012, sentencing hearing, the trial court asked
counsel if he had reviewed the PSI with Akbarr, and whether counsel or
Akbarr had any modifications or corrections. N.T., 10/24/2012, at 74.
Counsel replied that he had reviewed the document with his client, and that
his client did dispute “a few of the prior offenses[.]” Id. However, counsel
stated, “I believe that we’re confident that [those disputes] will not affect his
prior record score.” Id. Later in the hearing, after the court imposed
Akbarr’s sentence, the following exchange took place:
[AKBARR]: Judge Pierantoni, if you find out that I was in jail
from 2000 to 2006 in New Jersey, because they said I got
felonies on my record that I know I don’t have and that just
added to my points and gave me more time today when I was in
prison out of Leesburg, New Jersey. I was in prison from 2000
to 2006.
[DEFENSE COUNSEL]: Judge at this point I’m going to advise
the defendant that it’s not in his best interest to keep speaking.
I’m going to advise the Court that we had discussed this prior
record issue. I don’t want to violate any of my confidences with
my client.
THE COURT: Understood. I understand. I will advise your
client of his appellate rights. …
Id. at 90.
Akbarr raised this claim again in his pro se PCRA petition, where he
stated his prior record score should have been a “2” rather than a “5.”
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Motion for Post Conviction Collateral Relief, 1/27/2014, at 5. In a
subsequent pro se motion for modification of sentence nunc pro tunc, he
elaborated on this issue, asserting that the trial court informed him at
sentencing that if he could prove he “did not commit three felonies in 2001
and 2002 that [the court] would modifi (sic) [his] sentence.” Motion for
Modification of Sentence Nunc Pro Tunc, 4/22/2014, at 2.13 Akbarr attached
to the pro se motion a summary memo from a violation of probation
hearing, held in New Jersey on July 11, 2003, which states Akbarr was in
violation of his New Jersey probation based on his conviction of crimes in
Philadelphia in September of 2001 and October of 2002. The summary does
not specify the conviction for which he was serving probation, or the
resulting probation violation sentence.
We find Akbarr has failed to demonstrate this claim has arguable
merit. The guideline sentence form, attached to Akbarr’s PSI, indicates
Akbarr had one second-degree felony conviction, two third-degree felony
convictions, and six misdemeanor convictions. See Guideline Sentence
Form. The form does not specify the dates of those convictions. Similarly,
the PSI lists Akbarr’s numerous arrests and convictions, dating back to
1994, but does not specify the grading of all of the offenses. See PSI,
8/28/2012, at 4-8. Accordingly, it is unclear, based on the documents in the
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13
As noted in the above excerpt from the sentencing transcript, Akbarr’s
contention is incorrect.
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certified record, which of Akbarr’s prior convictions were graded as second
and third-degree felonies for purposes of his prior record score. Moreover,
Akbarr did not specify the “disputed” convictions during his PCRA hearing
testimony, and the New Jersey Probation summary simply does not shed any
light on this claim. Accordingly, Akbarr has failed to establish his prior
record score was calculated incorrectly.
Furthermore, as noted above, trial counsel acknowledged at the
sentencing hearing that Akbarr disputed “a few of the prior offenses[,]” but
insisted that his client’s concerns would “not affect [the] prior record score.”
N.T., 10/24/2012, at 74. Akbarr did not question either trial counsel or
appellate counsel about this issue during the PCRA hearing, and, therefore,
he also failed to demonstrate prior counsel had no reasonable basis for
failing to raise this claim previously. Accordingly, no relief is warranted.
As mandated by law, we have independently reviewed the record and
agree with counsel that the current appeal has no merit. See Doty, supra,48 A.3d at 457. Therefore, we affirm the order dismissing Akbarr’s petition
for PCRA relief, and grant counsel’s petition to withdraw.
Order affirmed. Petition to withdraw as counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2016
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