Com. v. Ibn-Sadiika, A. ( 2023 )

J-S05015-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ABDULLAH HANEEF IBN-SADIIKA :
:
Appellant : No. 10 WDA 2022
Appeal from the PCRA Order Entered December 14, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0010761-1984
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ABDULLAH HANEEF IBN-SADIIKA :
:
Appellant : No. 11 WDA 2022
Appeal from the PCRA Order Entered December 14, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0011275-1984
BEFORE: BENDER, P.J.E., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: April 28, 2023
Appellant, Abdullah Haneef Ibn-Sadiika, appeals pro se from the post-
conviction court’s orders denying his petition for DNA testing under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review,
we affirm.
J-S05015-23
In 1983, Appellant was charged, in two separate cases, with various
offenses, including criminal homicide and robbery, based on the following
facts:
[A]t about 9:00 p.m. on March 16, 1983, [Appellant] left the
residence he was sharing with his girlfriend[, Crystal] Sanders[,]
in Mount Oliver, Pennsylvania. … [Appellant] and Ms. Sanders had
been experiencing financial difficulties[,] and [Appellant] informed
[Ms.] Sanders that he was going to get some money and that he
might have to kill someone to do it. [Appellant] returned home
at approximately 2:00 a.m. with blood stains on one of his shoes
and on a pair of black gloves. … [Appellant] was carrying a gym
bag which contained a jar, a small white pearl box containing a
set of pearl handled steak knives, two checks[,] each of which
were the victim’s personal checks made out to the [Appellant,] in
which one of the checks the [Appellant’s] name was spelled
incorrectly, various amounts of foreign currency and collector
coins, various gold necklaces, stickpins, rings and earrings, a few
of which were engraved with the victim’s initials.
Testimony given by Ms. Sanders at trial provided that [Appellant]
explained to her that the items in the gym bag were obtained from
an elderly woman in the Homewood area of Pittsburgh. He
informed Ms. Sanders that he forced the victim to write out a
second check because she misspelled his name on the first. …
[Appellant] admitted to [Ms.] Sanders that he had stabbed the
victim and left her to die in her bedroom because she could have
identified him.
PCRA Court Opinion (PCO), 10/3/22, at 1-2 (citations to the record omitted).
On June 27, 1985, a jury convicted Appellant of first-degree murder and
robbery. On February 7, 1986, he was sentenced for his murder conviction to
life incarceration, without the possibility of parole, and to a consecutive term
of 6 to 12 years’ incarceration for his robbery conviction. On direct appeal,
we affirmed Appellant’s judgment of sentence, and our Supreme Court denied
his subsequent petition for allowance of appeal. See Commonwealth v.
-2-
J-S05015-23
Haneef Ibn–Sadiika, 526 A.2d 1233 (Pa. Super. 1987) (unpublished
memorandum), affirmed, 532 A.2d 1137 (Pa. 1987).
On May 7, 2004, Appellant filed a petition for DNA testing pursuant to
42 Pa.C.S. § 9543.1. Therein, Appellant requested that DNA testing be
performed on cigarette butts found in the victim’s apartment. Ultimately, the
PCRA court denied his petition, and this Court affirmed on appeal. See
Commonwealth v. Ibn-Sadiika, No. 844 WDA 2005, unpublished
memorandum at *1 (Pa. Super. filed Oct. 6, 2006). We reasoned:
The burden lies with the petitioner to make out a prima facie case
that favorable results from the requested DNA testing would
establish his innocence. [Commonwealth v. Smith, 889 A.2d
582,] 584 [(Pa. Super. 2005)]. At [A]ppellant’s trial, Dorothy
Menges (“Menges”), a criminalist with the Allegheny County Crime
Laboratory, testified that several cigarette butts were examined
from the victim’s apartment. They were of two different brands,
Kool and Carlton, and were removed from the bathroom toilet and
a bedroom nightstand.
Appellant’s bald assertion that DNA testing of the cigarette butts,
unavailable at time of trial and assuming exculpatory results,
would establish his actual innocence of the crimes is frivolous and
unsupported by the record. Importantly, [A]ppellant was never
linked to the cigarette butts; in fact, Menges testified that the
blood group substances found on most of the cigarettes were
consistent with the victim and her boyfriend, James Wilber.
Menges did not even have a sample of [A]ppellant’s blood for
comparison.
***
On its face, the prima facie requirement set forth in [section]
9543.1(c)(3) and reinforced in [section] 9543.1(d)(2)
requires an appellant to demonstrate that favorable results
of the requested DNA testing ‘would establish’ the
appellant’s actual innocence of the crime of conviction. …
In DNA as in other areas, an absence of evidence is not
evidence of absence.
-3-
J-S05015-23
***
[H]ere, [A]ppellant’s argument that DNA testing of the cigarette
butts, assuming favorable results, would establish his innocence
of the victim’s murder is based on a faulty premise. Even if
[A]ppellant’s DNA were not found on the cigarette butts recovered
from the victim’s apartment, this in no way would exculpate him
of her murder.
Appellant also asserts that “comparison of the DNA profile
revealed by the DNA testing to [s]tate and national DNA-
databases would reveal the identity of the likely killer.”
Appellant’s argument is based on pure speculation. Even if,
perchance, forensic testing of the cigarette butts produced a DNA
profile that matched up with another individual in a state or
national DNA database, that would not establish [A]ppellant’s
innocence, let alone reveal the identity of the likely killer. As
[A]ppellant has failed to present a prima facie case that the
anticipated evidence would establish his innocence, we will affirm
the order of the PCRA court dismissing his petition.
Id. at *6-9 (footnote, emphasis, citations, and some quotation marks
omitted).
On October 8, 2021, Appellant filed another, pro se petition for DNA
testing under section 9543.1. Appellant again sought testing of the cigarette
butts, as well as hairs found in the victim’s apartment. On December 14,
2021, the court issued an order, listing both underlying docket numbers,
denying Appellant’s petition. He filed timely, pro se notices of appeal at each
of his two trial court docket numbers.1
On January 20, 2022, the court filed an order directing Appellant to file
a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
However, the court’s order did not notify Appellant that any issue not raised
____________________________________________
1 This Court sua sponte consolidated Appellant’s appeals.
-4-
J-S05015-23
in a timely-filed statement would be deemed waived. See Pa.R.A.P.
1925(b)(3)(iv). Thus, although Appellant did not comply with the court’s
order to file a concise statement, we will not deem his issue(s) waived. See
Greater Erie Indus. Development Corp. v. Presque Isle Downs, Inc.,
88 A.3d 222, 225 (Pa. Super. 2014) (en banc) (holding that, “[i]n determining
whether an appellant has waived his issues on appeal based on non-
compliance with [Rule] 1925, it is the trial court’s order that triggers an
appellant’s obligation[;] … therefore, we look first to the language of that
order”) (citations omitted).
In Appellant’s pro se brief, he sets forth a “Statement of the Questions
Involved” section, but simply presents a lengthy argument, rather than any
clearly delineated issue(s). See Appellant’s Brief at 3-5. We will overlook this
briefing error, as we can discern that Appellant is asserting that the court
erred by denying his motion for DNA testing of the cigarette butts and hairs
found at the crime scene because he “provided a strong[,] prima facie case of
actual innocence” to warrant that testing. Id. at 3.
In the Argument section of his brief, Appellant contends that DNA testing
of the cigarette butts and hairs “would prove who smoked the cigarettes and
left behind the hairs and [who] certainly may be the unknown culprit who
killed the [victim] and will vindicate … Appellant[,] who has demonstrated at
the very least a prima facie case for actual innocence.” Id. at 9. Appellant
further argues that he is entitled to DNA testing under the ‘data bank theory,’
as explained in In re Payne, 129 A.3d 546 (Pa. Super. 2015) (en banc). Id.-5-
J-S05015-23
at 8. “The ‘data bank theory’ postulates that any DNA results that are
obtained from DNA testing that prove the presence of an unknown person
could be run through state and federal data banks for a match, which, if
successful would lead to the identification of a separate assailant.” Payne,
129 A.3d at 564 (citation omitted). According to Appellant, here, the DNA
testing of the cigarette butts and hairs would identify another individual who
was present in the victim’s apartment, thereby exonerating Appellant.
We disagree. Initially, we note that, when examining the propriety of
an order resolving a request for DNA testing, we employ the PCRA standard
of review. See Commonwealth v. Conway, 14 A.3d 101 (Pa. Super. 2011).
“On appeal from the denial of PCRA relief, our standard of review calls for us
to determine whether the ruling of the PCRA court is supported by the record
and free of legal error.” Commonwealth v. Nero, 58 A.3d 802, 805 (Pa.
Super. 2012) (citation omitted).
Section 9543.1 states, in pertinent part:
(a) Motion.--
(1) An individual convicted of a criminal offense in a court of this
Commonwealth may apply by making a written motion to the
sentencing court at any time for the performance of forensic DNA
testing on specific evidence that is related to the investigation or
prosecution that resulted in the judgment of conviction.
***
(3) A request for DNA testing under this section shall be by written
petition and shall be filed with the clerk of courts of the judicial
district where the sentence is imposed.
(4) DNA testing may be sought at any time if the motion is made
in a timely manner and for the purpose of demonstrating the
-6-
J-S05015-23
applicant's actual innocence and not to delay the execution of
sentence or administration of justice.
***
(6) The motion shall explain how, after review of the record of the
applicant’s trial, there is a reasonable possibility if the applicant is
under State supervision, or there is a reasonable probability if the
applicant is not under State supervision, or after review of the
record of the applicant’s guilty plea there is a reasonable
probability, that the testing would produce exculpatory evidence
that would establish:
(i) the applicant’s actual innocence of the offense for which
the applicant was convicted;
42 Pa.C.S. § 9543.1(a)(1)-(6)(i).
We first address Appellant’s request for DNA testing of the cigarette
butts. As discussed supra, this Court has already affirmed the denial of
Appellant’s 2004 request for such DNA testing, concluding that the absence of
Appellant’s DNA on the cigarette butts would not establish his actual
innocence. See Ibn-Sadiika, No. 844 WDA 2005, unpublished memorandum
at *6-9. Aside from citing In re Payne, Appellant provides no discussion of
any intervening circumstances or legal decisions that would permit us to re-
evaluate his request for DNA testing of the cigarette butts. Although he avers
that In re Payne “changed the entire legal thinking concerning the DNA data
base theory,” he provides no elaboration on this bald claim. Appellant’s Brief
at 8. Furthermore, we previously examined and rejected Appellant’s
speculative argument that a comparison of DNA found on the cigarette butts
to state and national DNA databases would reveal the identity of the true killer
in this case. See Ibn-Sadiika, No. 844 WDA 2005, unpublished
-7-
J-S05015-23
memorandum at *8-9. Therefore, Appellant’s argument concerning the DNA
testing of the cigarette butts has been previously litigated and does not
warrant post-conviction relief. See 42 Pa.C.S. § 9543(a)(3) (stating that, to
be eligible for PCRA relief, the petitioner must prove, inter alia, that the claim
has not been previously litigated).
In regard to Appellant’s request for DNA testing of the hair, he has failed
to demonstrate that his motion is timely.
“Section 9543.1(d) requires the petitioner to make a timely
request for DNA testing.” [Commonwealth v.] Walsh, 125 A.3d
[1248,] 1254-55 [(Pa. Super. 2015)]. “In analyzing timeliness for
purposes of Section 9543.1(d)(1)(iii), the court must consider the
facts of each case to determine whether the applicant’s request
for post-conviction DNA testing is to demonstrate his actual
innocence or to delay the execution of sentence or administration
of justice.” Id. at 1255.
***
In [Commonwealth v.] Edmiston[, 65 A.3d 339 (Pa. 2013),
overruled on different grounds by Commonwealth v. Small, 238
A.3d 1267 (Pa. 2020)], the defendant was sentenced in 1989 to
death for the murder of a two-year-old girl. Edmiston, 65 A.3d
at 342-44. After unsuccessfully filing two PCRA petitions, the
defendant in 2009 — more than 19 years after his conviction —
filed a petition for post-conviction DNA testing. Id. at 344. In
deeming the petition untimely, our Supreme Court highlighted
that the defendant did not seek additional DNA testing at trial; or
in 2002, when the post-conviction testing provisions were
enacted; or in his second PCRA petition. Id. at 357-58. The
Supreme Court concluded:
[Edmiston’s] guilty status has not changed since his 1989
conviction; advances in technology allegedly occurring after
that date do not explain why he, if truly innocent, did not
seek immediate testing, or, at the very least, testing
available as technology improved during the intervening
-8-
J-S05015-23
years, rather than languishing on death row, all the while
being supposedly innocent.
Id. at 358.
Similarly, in Walsh, the defendant was convicted of murder. His
conviction was affirmed on appeal, and he subsequently filed three
unsuccessful PCRA petitions. Walsh, 125 A.3d at 1251. In 2014,
more than 10 years after his conviction, he filed a petition for post-
conviction DNA testing, which the trial court denied. Id. On
appeal, we affirmed the trial court’s determination that the
petition was untimely. Id. at 1258. We observed that the
evidence he sought to test was “discovered and available” before
trial, when DNA testing was available, and further, he had not
sought DNA testing in his PCRA petitions. Id. at 1257-58.
Commonwealth v. Hardy, 274 A.3d 1240, 1248-49 (Pa. Super. 2022),
appeal granted, 289 A.3d 889 (Pa. 2022) (finding Hardy’s motion for DNA
testing was untimely where he did not explain why he did not immediately
seek testing in 2002, when the testing provisions were enacted, but instead
waited until 2020 when he filed his motion).
Here, as in Edmiston and Walsh, the hairs for which Appellant now
requests DNA testing were known to him at the time of trial, as well as in 2002
when the DNA testing provisions were enacted. Nevertheless, Appellant
waited nearly 20 years to file his present motion for DNA testing of that
evidence. He does not explain why he did not seek DNA testing of the hairs
sooner, or why he did not request testing of that evidence when he filed his
-9-
J-S05015-23
motion for DNA testing of the cigarette butts in 2004. Thus, we conclude that
he has not demonstrated that his request for DNA testing is timely.2
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2023
____________________________________________
2 On February 8, 2023, Appellant filed with this Court a pro se “Application for
Leave to File Original Process in the Supreme Court,” seemingly requesting
that the Pennsylvania Supreme Court take “immediate action” in his case.
See Application, 2/8/23, at 1. We hereby deny Appellant’s motion, without
prejudice to his right to seek relief with our Supreme Court.
- 10 -