Com. v. Gad, A. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AHMED F. GAD :
:
Appellant : No. 659 EDA 2020
Appeal from the PCRA Order Entered January 2, 2020
in the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0003326-2016
BEFORE: PANELLA, P.J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: Filed: November 25, 2020
Ahmed F. Gad (“Gad”) appeals, pro se, from the Order dismissing his
second Petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
This Court previously summarized the relevant factual and procedural
history as follows:
[Gad] was arrested in connection with the domestic abuse of Eva
Fisher [(“Fisher”)], his wife. On March 3, 2017, the
Commonwealth filed [N]otice of its intent to introduce evidence of
prior crimes, wrong[s], or acts pursuant to Pa.R.E. 404(b)(2).
Relevantly, the Commonwealth sought to introduce evidence
relating to [Gad’s] prior physical abuse and witness intimidation
of his former paramour, Maryam Ezatt [(“Ezatt”)]. [Gad] filed a
[R]esponse in opposition to the introduction of the evidence. On
April 3, 2017, the trial court granted the Commonwealth’s request
to admit the evidence pursuant to Pa.R.E. 404(b)(2).
[Gad], represented by counsel, [Philip Viglione, Esquire
(“Attorney Viglione”)], proceeded to a jury trial on June 6, 2017.
At trial, the Commonwealth presented the testimony of Police
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Officer Kevin Lillis [(“Officer Lillis”)], physician’s assistant Monika
Garcia [(“Garcia”)], and [Gad’s] former paramour, [] Ezatt.[FN]
[FN] Although [Fisher] testified against [Gad] at his September
2016[,] preliminary hearing, [Fisher] did not appear at the trial.
Officer Lillis testified that neither law enforcement officials nor her
family had any contact with her since March of 2017.
Specifically, Officer Lillis testified that, on September 12,
2016, [] Fisher approached him requesting assistance in finding a
homeless shelter for her to stay in for the night. Officer Lillis
observed [] [that] Fisher had a “contusion on the left side of her
face along her cheekbone and she had contusions also behind her
ear, and her ear was swollen. Also, around her neck as well as a
swollen lip.” Officer Lillis summoned an ambulance, which
transported [] Fisher to the emergency room for treatment. On
September 17, 2016, when the officer went to the couple’s home
to arrest [Gad], [] Fisher answered the door.
[] Garcia testified [that] she treated [] Fisher on September
12, 2016, in the emergency room. She testified [that] Fisher had
bruising on the left side of her face, cheek, forehead, and ear. []
Fisher reported [that] she had been assaulted and slapped in the
face.
[] Ezatt testified [that] she used to be [Gad’s] paramour,
and on September 30, 2013, [Gad] hit her in the face and then
intimidated her in an attempt to force her not to cooperate with
the police. [] Ezatt testified that her relationship with [Gad] ended
in 2015; however, [Gad] resumed contact with her in July 2016.
In the fall of 2016, [Gad] texted her, indicated he was “in trouble,”
and said he “needed her help.” [] Ezatt testified [that Gad]
admitted to her that he had hit his wife and he was pressuring her
to drop the charges.
[Gad] testified in his own defense. Specifically, [Gad]
testified that he was not at home on September 12, 2016; but
rather, he was at work all day. He specifically denied striking his
wife or telling her not to appear for court.
At the conclusion of all testimony, the jury convicted [Gad]
of [simple assault and harassment, see 18 Pa.C.S.A.
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§§ 2701(a)(1), 2709(a)(1)], and on July 26, 2017, the trial court
sentenced [Gad] to twelve months to twenty-four months in
prison for simple assault[,] and a consecutive forty-five days to
ninety days in prison for harassment. [Gad] filed a timely [M]otion
for reconsideration of sentence, which the trial court denied on
August 4, 2017.
Commonwealth v. Gad, 190 A.3d 600, 601-02 (Pa. Super. 2018) (citations
to record omitted). This Court affirmed Gad’s judgment of sentence on June
11, 2018. See id. Gad did not seek allowance of appeal in the Supreme Court
of Pennsylvania.
On September 26, 2018, Gad, pro se, filed a timely PCRA Petition. The
PCRA court appointed Tyree A. Blair, Sr., Esquire (“Attorney Blair”), as PCRA
counsel for Gad.
At a pre-hearing conference, counsel clarified Gad would pursue
six issues regarding trial counsel’s alleged ineffectiveness at the
PCRA hearing. A PCRA hearing was held on January 2-3, 2019.
At the hearing, PCRA counsel withdrew Gad’s claim [that] trial
counsel was ineffective for failing to oppose the Commonwealth’s
404(b) [M]otion. However, counsel raised two additional issues
of trial counsel’s alleged ineffectiveness. Trial counsel and Gad
both testified at the hearing, as well as Gad’s former probation
officer and [Fisher].
Commonwealth v. Gad, 222 A.3d 797 (Pa. Super. 2019) (unpublished
memorandum at 4). The PCRA court dismissed Gad’s first PCRA Petition on
March 11, 2019. Attorney Blair subsequently filed a timely Notice of Appeal
and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors
complained of on appeal. Additionally, Attorney Blair sought permission to
withdraw as counsel pursuant to Commonwealth v. Turner, 544 A.2d 927(Pa. 1988); and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)
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(en banc). On October 2, 2019, this Court affirmed the dismissal of Gad’s
PCRA Petition, and permitted Attorney Blair to withdraw his appearance. See
Gad, 222 A.3d 797.
On November 18, 2019, Gad, pro se, filed the instant PCRA Petition,
raising several claims of ineffective assistance of counsel.1 The PCRA court
issued a Pa.R.Crim.P. 907 Notice of its intention to dismiss Gad’s Petition
without a hearing. On January 2, 2020, the PCRA court issued an Order
dismissing Gad’s second PCRA Petition.
Gad subsequently filed a pro se Motion for an extension of the 30-day
appeal period. The PCRA court denied Gad’s Motion.2 Gad filed a pro se Notice
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1 In his pro se Petition, Gad included three general ineffectiveness claims. In
his remaining claims, Gad specifically named the counsel who represented him
at docket No. CP-48-CR-0003404-2017, wherein he was convicted of perjury,
solicitation to commit perjury, and witness intimidation, based on false
testimony he offered in the instant case, and his attempts to persuade Fisher
to commit perjury.
2From its January 28, 2020, Order, it appears that the PCRA court interpreted
Gad’s Motion as a request for an extension of time to file a response to its
Rule 907 Notice.
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of Appeal on February 5, 2020.3 The trial court subsequently ordered Gad to
file a Pa.R.A.P. 1925(b) concise statement, and Gad timely complied.
Gad now raises the following issues for our review:
1) [Were] Attorney Viglione and Attorney Blair ineffective for
failing to cross examine … [Ezatt] about her false sexual charges
against [Gad] in the state of Florida[,] in which [Gad] got acquittal
and more ineffective [sic] for not presenting her noterized [sic]
statement and preventing [Gad] from answering the judge [sic]
accusations with the fake charges in which he got acquitted in the
state of Florida[?]
2) [Were] Attorney Viglione and Attorney Blair ineffective for not
presenting the letter from … Fisher to the Governor of
Pennsylvania[,] asking for help in her rap [sic] case[?] This letter
is with Attorney Viglione in [Gad’s] file.
3) [Were] Attorney Viglione and Attorney Blair ineffective for
failing to subpoena witnesses [Gad] asked for their testimony[,]
[sic] like Jason[,] Samantha[,] Amber and David?
4) [Were] Attorney Viglione and Attorney Blair ineffective for
failing to present text messages and calls from [Fisher] to [Gad]
with exculpatory nature and included threatening to [Gad] from
[Fisher] [sic]?
5) Was Attorney Blair ineffective for failing to present recorded
calls from jail between [Gad] and [Fisher,] also with exculpatory
nature[,] especially after the judge allowed him to ask about it in
the PCRA hearing…?
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3 The PCRA court concluded that Gad’s pro se Notice of Appeal, dated January
31, 2020, was timely filed pursuant to the prisoner mailbox rule. PCRA Court
Opinion, 4/21/20, at 1 n.1 (unnumbered); see also Pa.R.A.P. 121(f)
(providing that “[a] pro se filing submitted by a person incarcerated in a
correctional facility is deemed filed as of the date of the prison postmark or
the date the filing was delivered to the prison authorities for purposes of
mailing[,] as documented by a properly executed prisoner cash slip or other
reasonably verifiable evidence.”).
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Brief for Appellant at 4.
We review an order dismissing a petition under the PCRA in
the light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of record. We will not disturb a PCRA court’s ruling if it
is supported by evidence of record and is free of legal error.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
Initially, under the PCRA, any PCRA petition, “including a second or
subsequent petition, shall be filed within one year of the date the judgment
becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). A judgment
of sentence becomes 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.” Id. § 9545(b)(3). The PCRA’s timeliness requirements are
jurisdictional in nature, and a court may not address the merits of the issues
raised if the PCRA petition was not timely filed. Commonwealth v. Albrecht,
994 A.2d 1091, 1093 (Pa. 2010).
Here, Gad’s judgment of sentence became final in July 2018, when the
time for petitioning for allowance of appeal with the Pennsylvania Supreme
Court expired. See Pa.R.A.P. 1113(a). Because Gad did not file the instant
Petition until November 2019, it is facially untimely.
However, Pennsylvania courts may consider an untimely petition if the
appellant can explicitly plead and prove one of three exceptions set forth under
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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any petition invoking one of these
exceptions “shall be filed within one year of the date the claim could have
been presented.” Id. § 9545(b)(2). Additionally, “[t]he PCRA petitioner bears
the burden of proving the applicability of one of the exceptions.”
Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017).
Gad raises five challenges to the effectiveness of Attorney Viglione and
Attorney Blair, none of which invoke any of the exceptions to the PCRA’s
timeliness requirement. Gad also fails to acknowledge the untimeliness of his
Petition. See Spotz, supra; see also Commonwealth v. Williamson, 21
A.3d 236, 241 n.3 (Pa. Super. 2011) (explaining that a PCRA petitioner’s
burden “necessarily entails an acknowledgement … that the PCRA petition
under review is untimely….” (citation omitted)). Because Gad failed to
successfully invoke any of the timeliness exceptions set forth at 42 Pa.C.S.A.
§ 9545(b)(1)(i)-(iii), we lack jurisdiction to address the merits of his claims.
Accordingly, we affirm the Order of the PCRA court dismissing his second PCRA
Petition.4
Order affirmed.
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4 We further observe that Gad failed to support his argument with citations to
the record and relevant case law. See Pa.R.A.P. 2119(a) (stating that the
argument shall include “such discussion and citation of authorities as are
deemed pertinent.”); Commonwealth v. McMullen, 745 A.2d 683, 689 (Pa.
Super. 2000) (stating that “[w]hen the appellant fails to adequately develop
his argument, meaningful appellate review is not possible.” (citation
omitted)).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/20
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