Com. v. Elgaafary, A.

Opinion

J-S47042-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AHMED MOSTAFA ELGAAFARY : : Appellant : No. 478 EDA 2023

Appeal from the PCRA Order Entered January 18, 2023 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0003891-2018

BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 25, 2024

This case returns to this Court following our Supreme Court’s granting

of Appellant Ahmed Mostafa Elgaafary’s petition for allowance of appeal, and

vacating of this Court’s January 16, 2024, decision affirming the PCRA1 court’s

dismissal of Appellant’s first PCRA petition without an evidentiary hearing.

Consistent with our Supreme Court’s directive, we vacate the PCRA court’s

January 18, 2023, order and remand for a hearing on Appellant’s claim of

ineffectiveness regarding plea advice.

Relevantly, Appellant filed a timely, counseled PCRA petition alleging he

was constructively denied his right to counsel under the Sixth Amendment to

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* Former Justice specially assigned to the Superior Court.

1 Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. J-S47042-23

the United States Constitution and Article 1, Section 9 of the Pennsylvania

Constitution. Specifically, he averred he was denied his right to counsel since

he was represented from the time of his preliminary hearing on November 7,

2018, through the conclusion of his jury trial on August 19, 2019,2 by Jonathan

Altman, who was ultimately disbarred by our Supreme Court on April 22,

2020. Appellant alleged that, since Mr. Altman represented him while his

disbarment was pending, his representation was tantamount to Appellant

having no counsel at all. He alleged Mr. Altman was per se ineffective or

Appellant suffered actual prejudice since he erroneously trusted Mr. Altman

when he rejected the Commonwealth’s plea offer. He averred that, had he

been fully aware of the pending disciplinary proceedings against Mr. Altman,

he would not have listened to his advice.

As indicated supra, the PCRA court dismissed Appellant’s PCRA petition

without an evidentiary hearing, and on appeal to this Court, Appellant raised

the following claims in his “Statement of the Questions Involved” (verbatim):

I. Whether Appellant was constructively denied his right to counsel under the Sixth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution by relying upon the advice of his disbarred attorney to reject a plea offer where his counsel failed to fully disclose the details and specific nature of his dishonest conduct underlying his disbarment, as well as the

2 Appellant was convicted of one count of rape of an unconscious person, one

count of sexual assault, and two counts of indecent assault. 18 Pa.C.S.A. §§ 3121(a)(3), 3124.1, and 3126(a)(4), (1). Appellant was sentenced to an aggregate of seven years to twenty years in prison.

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Disciplinary Board’s specific finding that he posed a danger to his potential and current clients? II. Whether the Post Conviction Relief Act court erred in denying Appellant’s petition without a hearing on the issue raised in the petition for Post Conviction Relief that he was denied his constitutional right to counsel?

Appellant’s Brief at 3 (suggested answers omitted).

This Court concluded that, since Mr. Altman was a fully licensed attorney

during the time he represented Appellant, and he was disbarred after he

withdrew his representation, Appellant was required to demonstrate the

traditional Strickland/Pierce3 prongs for ineffectiveness, including actual

prejudice, as it relates to Mr. Altman’s representation of Appellant. We then

held the record belied Appellant’s claim that he was unaware of the disciplinary

proceedings against Mr. Altman, and he consistently stated his desire to

continue with Mr. Altman as his attorney.

Accordingly, we held the PCRA court properly rejected Appellant’s

ineffectiveness claim since Appellant failed to show that, but for an alleged

lack of knowledge, he would have accepted the Commonwealth’s plea offer.

Moreover, we held there was no genuine issue of material fact, which would

have warranted a PCRA evidentiary hearing. Consequently, this Court

affirmed the PCRA court’s order dismissing Appellant’s PCRA petition without

a hearing.

3 See Strickland v. Washington, 466 U.S. 668 (1984), and Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987).

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In his petition for allowance of appeal to our Supreme Court, Appellant

presented the following issues (verbatim):

I. Did the Superior Court err in finding Petitioner was not constructively denied his right to counsel under the Sixth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution by relying upon the advice of his disbarred attorney to reject a plea offer where his counsel failed to fully disclose the details and specific nature of his dishonest conduct underlying his disbarment, as well as the Disciplinary Board’s specific finding that he posed a danger to his potential and current clients? II. Did the Superior Court err in affirming the PCRA court’s dismissal of Petitioner’s petition without a hearing on the issue raised in the petition for Post Conviction Relief that he was denied his constitutional right to counsel?

Appellant’s Petition for Allowance of Appeal, filed 2/15/24, at 12 (bold

omitted).

By per curiam order filed on August 13, 2024, our Supreme Court

indicated the following (verbatim):

AND NOW, this 13th day of August, 2024, we GRANT the petition for allowance of appeal, and VACATE the Superior Court’s decision affirming the trial court’s dismissal of the petitioner’s petition under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541- 9546, without a hearing. We REMAND to [the] Superior Court with instructions to remand to the trial court for a hearing on the petitioner’s claim of ineffectiveness regarding plea advice, pursuant to Lafler v. Cooper, 566 U.S. 156 (2012), and Commonwealth v. Steckley, 128 A.3d 826 (Pa. Super. 2015).

Commonwealth v. Elgaafary, No. 102 MAL 2024 (Pa. filed 8/13/24) (per

curiam order) (emphasis in original).

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In light of the aforementioned, we now vacate the PCRA court’s January

18, 2023, order and remand this matter to the PCRA court for an evidentiary

hearing on Appellant’s claim of ineffectiveness regarding plea advice.

Order vacated; Case remanded; Jurisdiction relinquished.

Date: 9/25/2024

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