Com. v. Gad, A.

• Court: Superior Court of Pennsylvania
• Decided: November 25, 2020
• Docket: 788 EDA 2020
• Status: Unpublished

Opinion

J-S42037-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 788 EDA 2020

Appeal from the PCRA Order Entered February 12, 2020 in the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0003404-2017

BEFORE: PANELLA, P.J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: Filed: November 25, 2020

Ahmed F. Gad (“Gad”) appeals from the Order denying his first Petition

for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), see 42

Pa.C.S.A. §§ 9541-9546. We affirm.

On June 6, 2017, Gad was convicted, at docket number CP-48-CR-

0003326-2016 (“No. 3326-2016”), of simple assault and harassment, arising

out of an incident of domestic violence with his wife, Eva Fisher (“Fisher”).1

Prior to his trial at No. 3326-2016,

[Gad] both intimidated [] Fisher in an effort to persuade her to commit perjury by testifying falsely that [Gad] did not assault her, and occasioned her absence from the first trial. In addition, [Gad] committed perjury at his first trial by testifying that he did not know [] Fisher’s whereabouts, when[,] in fact[,] he knew precisely

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1 For a full recitation of facts underlying Gad’s conviction at No. 3326-2016, see Commonwealth v. Gad, 190 A.3d 600 (Pa. Super. 2018). J-S42037-20

where she was and had occasioned her absence from trial, and by falsely testifying that [Gad] did not assault [Fisher].

PCRA Court Order, 2/12/20, at 1-2.

As a result of this conduct, Gad was charged with perjury, criminal

solicitation to commit perjury, and witness intimidation.2 Gad was

represented by James Connell, Esquire (“Attorney Connell”), during his jury

trial. A jury found Gad guilty of all offenses. On March 2, 2018, the trial court

sentenced Gad to an aggregate term of 40 to 180 months in prison, with credit

for time served, plus fines. The trial court ordered Gad’s sentence to run

consecutive to the sentence imposed at No. 3326-2016. Gad filed a Motion

for Reconsideration, which the trial court denied.

Gad filed a timely Notice of Appeal, but Attorney Connell failed to timely

comply with the trial court’s order to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. On review, this Court held that

counsel’s failure to file a Rule 1925(b) concise statement constituted per se

ineffective assistance of counsel. See Commonwealth v. Gad, 201 A.3d 823

(Pa. Super. 2018) (unpublished memorandum at 5-6). Accordingly, the case

was remanded for the trial court to file a Rule 1925(a) opinion addressing the

issues raised in the untimely Rule 1925(b) Concise Statement. See id.

Following the remand, this Court affirmed Gad’s judgment of sentence on

January 11, 2019. See Commonwealth v. Gad, 209 A.3d 495 (Pa. Super.

2 See 18 Pa.C.S.A. §§ 4902(a), 902(a), 4952(a)(2).

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2019) (unpublished memorandum). Gad did not seek allowance of appeal

with the Pennsylvania Supreme Court.

On March 18, 2019, Gad, pro se, filed the instant, timely PCRA Petition.

The PCRA court appointed Gad counsel. PCRA counsel sought permission to

withdraw from representation, citing a conflict of interest. The PCRA court

permitted counsel to withdraw, and appointed Gad new PCRA counsel.

Counsel filed an Amended PCRA Petition on Gad’s behalf, raising claims of

ineffective assistance of counsel. The PCRA court conducted hearings on

October 24, 2019, November 26, 2019, and December 31, 2019.3 On

February 12, 2020, the PCRA court entered an Order denying Gad’s PCRA

Petition. Gad filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.

1925(b) Concise Statement.

Gad now raises the following issues for our review:

A. Did the [PCRA c]ourt err in finding that Attorney Connell was not ineffective in advising [Gad] not to testify?

B. Did the [PCRA c]ourt err in finding that Attorney Connell was not ineffective for failing to play additional prison telephone calls between [Gad] and [Fisher]?

C. Did the [PCRA c]ourt err in finding that Attorney Connell was not ineffective for failing to introduce text messages sent to [Gad] by his wife, [] Fisher[?]

Brief for Appellant at 4.

3The PCRA hearing was recessed on both October 24, 2019, and November 26, 2019, as a result of Gad’s “repeated outbursts in the courtroom.” PCRA Court Order, 2/12/20, at 2.

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This Court examines PCRA appeals in the light most favorable to the prevailing party at the PCRA level. Our review is limited to the findings of the PCRA court and the evidence of record. Additionally, we grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. In this respect, we will not disturb a PCRA court’s ruling if it is supported by evidence of record and is free of legal error. However, we afford no deference to its legal conclusions.

Commonwealth v. Henkle, 90 A.3d 16, 20 (Pa. Super. 2014) (citations,

quotation marks and brackets omitted).

Each of Gad’s claims challenges the effectiveness of Attorney Connell’s

representation during Gad’s trial.

It is well-settled that counsel is presumed to have been ineffective and that the petitioner bears the burden of proving counsel’s alleged ineffectiveness. To overcome this presumption, a petitioner must establish that: (1) the underlying substantive claim has arguable merit; (2) counsel did not have a reasonable basis for his or her act or omission; and (3) the petitioner suffered prejudice as a result of counsel’s deficient performance, that is, a reasonable probability that but for counsel’s act or omission, the outcome of the proceeding would have been different. A PCRA petitioner must address each of these prongs on appeal. A petitioner’s failure to satisfy any prong of this test is fatal to the claim.

Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citations,

quotation marks omitted).

In his first claim, Gad asserts that Attorney Connell was ineffective for

advising him not to testify during his trial. Brief for Appellant at 14. According

to Gad, his “testimony would have directly disputed the Commonwealth’s

contention that he had intimidated [Fisher] or asked her to lie for him.” Id.

at 15. Gad claims that Attorney Connell failed to offer a strategic basis for

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advising Gad not to testify, beyond his propensity for outbursts. Id. Gad

argues that he was prejudiced, because the jury did not have the opportunity

to hear a “counter-narrative of the case….” Id. at 16.

The decision of whether or not to testify on one’s own behalf is ultimately to be made by the defendant after full consultation with counsel. In order to sustain a claim that counsel was ineffective for failing to advise the appellant of his rights in this regard, the appellant must demonstrate either that counsel interfered with his right to testify, or that counsel gave specific advice so unreasonable as to vitiate a knowing and intelligent decision to testify on his own behalf.

Commonwealth v. Michaud, 70 A.3d 862, 869 (Pa. Super. 2013) (citation

omitted).

In its Order, the PCRA court summarized the relevant testimony from

the PCRA hearing, addressed Gad’s claim, and concluded that it lacks merit.

See PCRA Court Order, 2/12/20, at 4-7. Specifically, the PCRA court

concluded that Gad knowingly and intelligently waived his right to testify after

consultation with Attorney Connell. Id. at 4 (citing Commonwealth v. Rigg,

84 A.3d 1080, 1086 (Pa. Super. 2014) (stating that “where a defendant

voluntarily waives his right to testify after a colloquy, he generally cannot

argue that trial counsel was ineffective in failing to call him to the stand.”)).

Further, the PCRA court highlighted Attorney Connell’s concern that Gad’s

testimony could open the door to evidence of Gad’s prior conviction of witness

intimidation, noting that his prior case involved “intimidat[ing] a complainant

who had initially accused him of domestic violence into recanting—the same

type of conduct for which he was accused of … in the present case.” PCRA

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Court Opinion, 2/12/20, at 7. The PCRA court’s determination is supported

by the record and free of legal error. We therefore affirm on the basis of its

reasoning, as set forth in its Order, in denying Gad’s first claim. See PCRA

Court Order, 2/12/20, at 4-7.

In his second claim, Gad contends that Attorney Connell was ineffective

for failing to play recordings of prison phone calls between him and Fisher.

Brief for Appellant at 16. Gad claims that, in one of the phone calls, Fisher

agreed with Gad’s statement that Gad had not assaulted her. Id.; see also

id. at 18 (arguing that in a June 21, 2017, call, “Fisher clearly denied that Gad

struck her and explains that her children put her up to falsely accusing Gad.”).

According to Gad, the prison calls presented by the Commonwealth, without

further context, “were intended to paint Gad in an unflattering light, [and] the

jurors may well have been left with the impression that Gad was pressuring

Fisher to lie for him.” Id. at 17. Gad claims that Attorney Connell had no

reasonable basis for failing to introduce these calls, and that their introduction

would have resulted in an acquittal. Id. 18-19.4

In its Order, the PCRA court reviewed call transcripts, thoroughly

addressed Gad’s second claim, and concluded that Gad was not prejudiced by

counsel’s failure to introduce the complete prison call tapes. See PCRA Court

4 We observe that Gad failed to include any citations to or discussion of relevant legal authority in support of his claim. See Pa.R.A.P. 2119(a) (providing that the argument shall include “such discussion and citation of authorities as are deemed pertinent.”).

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Order, 2/12/20, at 7-17. The PCRA court stated that “[t]hese exhibits tend

to prove nothing more than that [] Fisher told [Gad] that she made or would

make certain statements to the prosecuting attorney and [c]ourt that

contradicted her prior allegations of abuse.” Id. at 10. The PCRA court’s

determination is supported by the evidence of record and is free of legal error.

Thus, we affirm on the basis of its thorough and well-reasoned Order in

rejecting Gad’s second claim. See id. at 7-17.

In his final claim, Gad argues that Attorney Connell was ineffective for

failing to introduce text messages between Gad and Fisher. Brief for Appellant

at 19-20. According to Gad, the text messages would support his claim that

Fisher was not pressured or intimidated into providing false testimony, or

refusing to testify. Id. at 20. Gad points out that Attorney Connell

acknowledged that one text message may have been helpful to the defense,

and argues that Attorney Connell could have no reasonable strategic basis for

failing to introduce the text messages. Id. at 21. Gad also claims that he

was prejudiced by Attorney Connell’s failure to introduce exculpatory

evidence. Id.5

In its Order, the PCRA court set forth the relevant law, addressed Gad’s

claim, and concluded that it lacks merit. See PCRA Court Opinion, 2/12/20,

at 17-23. The PCRA court specifically notes that it is unclear whether the text

5 Again, Gad has failed to support his claim with citation to and discussion of relevant legal authority. See Pa.R.A.P. 2119(a).

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messages could have been properly authenticated for admission at trial. Id.

at 19-20. The PCRA court nevertheless concluded that, even if all of the text

messages had been admitted at trial, Gad failed to establish that their

admission would have resulted in a more favorable outcome. Id. at 20-23.

The court emphasized that significant credible testimony supported Gad’s

convictions. Id. at 22-23. The PCRA court’s determinations are supported by

the record and free of legal error, and we affirm on the basis of its Order

regarding Gad’s final claim. See id. at 17-23.

Accordingly, we affirm the Order of the PCRA court denying Gad’s first

PCRA Petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/25/20

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