J-S04001-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DALIYL RAA’ID MUHAMMAD : : Appellant : No. 761 MDA 2017
Appeal from the PCRA Order April 7, 2017 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0002967-2002, CP-22-CR-0003009-2002
BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 21, 2018
Appellant, Daliyl Raa’id Muhammad, appeals pro se from the April 7,
2017 order denying his serial petition filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
A prior panel of this Court set forth the relevant factual history of this
case as follows:
The evidence presented establishes that on the evening of January 13, 2002, James Nickol called appellant in order to purchase marijuana. Appellant indicated he could sell Nickol three pounds of the drug for $2,400, and agreed to meet Nickol later that evening on South 14th Street in Harrisburg, Pennsylvania. Nickol and a companion, Derrick Kleugel, then drove to Harrisburg. Upon their arrival, appellant informed them they would have to walk a few blocks to get the marijuana. Appellant was accompanied by another man, later identified as co-defendant Michael Cameron. At some point while the four men were walking down South 15th Street, appellant and Cameron slowly began to lag behind the victims. Gunfire then rang out and Nickol was shot three times in the back, three J-S04001-18
times in the stomach, and once in the hip. Kleugel was shot twice in the back and once in the hip. Nickol testified that immediately after the incident, he felt a burning sensation and fell to the ground. He further testified that appellant then climbed on top of him while holding a shiny object in his hand and demanded money. Kleugel also testified that after he fell, someone searched him and demanded money. N.T., 8/6/03, at 81-83, 85-88, 90-94; N.T., 8/7/03, at 162-164, 166.
Appellant fled the scene before police and emergency personnel responded to the victims. He was apprehended following considerable resistance on July 7, 2002, almost six months later. N.T., 8/7/03, at 179, 182-183, 209-211.
Commonwealth v. Muhammad, 860 A.2d 1132, 1767 MDA 2003 (Pa.
Super. filed August 17, 2004) (unpublished memorandum at 2-3).
Following a jury trial, Appellant was found guilty of criminal attempt to
commit homicide, robbery, conspiracy, two counts of aggravated assault,
flight to avoid apprehension, escape, resisting arrest, and false identification
to law enforcement.1 Muhammad, 1767 MDA 2003 (unpublished
memorandum at 1). Appellant filed a timely appeal, and on August 17,
2004, this Court affirmed Appellant’s judgment of sentence in part and
vacated in part. Id. This Court concluded that Appellant’s convictions for
the attempted homicide and aggravated assault on James Nickol should
have merged, and therefore, one of his sentences for aggravated assault
was vacated. Id. at 12. However, we explained that because Appellant was ____________________________________________
1 18 Pa.C.S. §§ 901, 3701(a)(1)(i), 903, 2702(a)(1), 5126, 5121(a), 5104, and 4914(a) respectively. We note that the PCRA court erroneously stated that false identification to law enforcement was a violation of 18 Pa.C.S. § 4906(a). PCRA Court Opinion, 7/10/17, at 1 n.10.
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convicted of two counts of aggravated assault for which the trial court
imposed concurrent sentences, this Court’s disposition did not upset the trial
court’s sentencing scheme, and thus, remand for resentencing was not
required. Id. (citing Commonwealth v. Robinson, 817 A.2d 1153 (Pa.
Super. 2003)). Appellant did not file a petition for allowance of appeal in the
Pennsylvania Supreme Court. Therefore, Appellant’s judgment of sentence
became final on September 16, 2004, when the time to pursue allowance of
appeal in our Supreme Court expired. See Pa.R.A.P. 1113(a) (“a petition for
allowance of appeal shall be filed with the Prothonotary of the Supreme
Court within 30 days after the entry of the order of the Superior Court or the
Commonwealth Court sought to be reviewed.”); see also 42 Pa.C.S.
§ 9545(b)(3) (a defendant’s 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 the time for seeking the review”). Over the next decade,
Appellant filed four PCRA petitions, and each petition was denied.
On October 7, 2016, and October 28, 2016, Appellant filed what were
nominally his fifth and sixth PCRA petitions, respectively. These petitions
were duplicative in substance, and the PCRA court treated them as a single
PCRA petition. PCRA Court Opinion, 7/10/17, at 4. On February 14, 2017,
the PCRA court issued notice of its intent to dismiss the petition as untimely.
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On April 7, 2017, the PCRA court dismissed the petition, and this timely
appeal followed.
On appeal, Appellant raises the following issues:
I. WHETHER THE PCRA COURT DENIED DEFENDANT DUE PROCESS BY REFUSING HIM AN OPPORTUNITY TO AMEND HIS PCRA?
II. WHETHER THE AFFIDAVIT OF JOYETTA FOSTER DETAILING JUDGE CLARK’S BIAS AGAINST MUSLIMS MET THE AFTER DISCOVERED FACTS AND MISCARRIAGE OF JUSTICE EXCEPTIONS AND IS DEFENDANT ENTITLED TO A NEW TRIAL OR REMAND FOR AN EVIDENTIARY HEARING?
III. WHETHER THE PCRA COURT ERRED IN REQUIRING DEFENDANT TO PLEAD/PROVE DUE DILIGENCE UNDER THE GOVERNMENTAL INTERFERENCE EXCEPTION WHEN THE STATUTE DOES NOT CONTAIN SUCH LANGAUGE, AND HAS THE STATE COURTS ESTABLISHED A CLEAR DEFINITION FOR GOVERNMENTAL INTERFERENCE?
IV. WHETHER THE LOSS, ALTERATION, OR FAILURE TO PROVIDE A FULL/COMPLEE COPY OF THE TRIAL PROCEEDINGS BY THE COURT OR ITS OFFICERS AMOUNT TO GOVERNMENTAL INTERFERENCE/MISCARRIAGE OF JUSTICE RENDERING DEFENDANT’S UNDERLYING CLAIM OF DENIAL OF A FAIR TRIAL, APPEAL, JUDICIAL BIAS REVIEWABLE ON THE MERITS, OR A REM, A REMAND FOR AN EVIDENTIARY HEARING?
V. WHETHER THE PCRA COURT ERRED, AS A MATTER OF LAW, IN ITS ASSESSMENT OF THE SUBSTANCE/TIMELINESS OF MICHAEL HILL’S AFFIDAVIT/STATEMENT WHICH MET THE AFTER DISCOVERED FACTS/MISCARRIAGE OF JUSTICE STANDARD: AND IS DEFENDANT ENTITLED TO A NEW TRIAL OR REMAND FOR AN EVIDENTIARY HEARING?
Appellant’s Brief at vi (verbatim).
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether that court’s
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determination is free of legal error. Commonwealth v. Phillips, 31 A.3d
317, 319 (Pa. Super. 2011). The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record. Id.
A PCRA petition must be filed within one year of the date that the
judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time
requirement is mandatory and jurisdictional in nature, and the court may not
ignore it in order to reach the merits of the petition. Commonwealth v.
Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). 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.” 42
Pa.C.S. § 9545(b)(3).
However, an untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited exceptions to
the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),
and (iii), is met.2 A petition invoking one of these exceptions must be filed
within sixty days of the date the claim first could have been presented. 42
____________________________________________
2 The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;
(Footnote Continued Next Page)
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Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the
PCRA’s one-year filing deadline, “the petitioner must plead and prove
specific facts that demonstrate his claim was raised within the sixty-day time
frame” under section 9545(b)(2). Hernandez, 79 A.3d at 652.
We have reviewed the briefs of the parties, the relevant law, the
certified record before us, and the PCRA court’s opinion. We discern no error
in the PCRA court’s analysis and conclusion that Appellant’s PCRA petition
was untimely and that no exceptions to the PCRA’s time-for-filing
requirements were satisfied. Accordingly, we affirm the April 7, 2017 order
based on the PCRA court’s opinion, and we adopt its analysis and reasoning
as our own. The parties are directed to attach a copy of the PCRA court’s
July 10, 2017 opinion, which incorporated the PCRA court’s February 14,
2017 memorandum opinion, in the event of further proceedings in this
matter.
Order affirmed.
(Footnote Continued) _______________________
(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.
42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 03/21/2018
-7- Circulated 02/22/2018 12:17 PM
COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS : DAUPHIN COUNTY, PENNSYLVANIA v. NO. 761 MDA 2017 DALIYL MUHAMMAD, Defendant/Appellant : TRIAL COURT NO. 2967, 3009 CR 2002
OPINION [Pursuant to Pa. R.A.P. 1925(a)]
Presently before this Court is the appeal of Daliyl Muhammad (hereinafter
"Defendant" or "Appellant") from this Court's Order of April 7, 2017, dismissing his Petition
for Post-Conviction Collateral Relief ("PCRA").
PROCEDURAL HISTORY 2002 Defendant was arrested relative to incidents that occurred on January 12,
(Docket No, 2967 CR 2002) and July 7, 2002 (Docket No. 3009 CR 2002). With respect
was charged to the January 12, 2002 incident, in which two people were shot, Defendant Assault4, with Criminal Attempt (Homicide)1, Criminal Conspiracy2, Robbery3, Aggravated a Firearm6. Carrying a Firearm Without a Licenses, and Former Convict Not to Possess he When Defendant was arrested on July 7, 2002, for the aforementioned charges,
obtained new charges, which included Flight to Avoid Apprehension of Prosecution7,
Escape, Resisting Arrests, False Identification to Law Enforcement Authorities1°,
1 18 Pa.C.S.A. § 901. 2 18 Pa.C.S.A. § 903. 318 Pa.C.S.A. § 3701(a)(1)(i). 418 Pa.C.S.A. § 2702(a)(1). 518 Pa.C.S.A. § 6106(a). 8 18 Pa.C.S.A. § 6105.
7 18 Pa.C.S.A. § 5126.
818 Pa.C.S.A. § 5121(a). 18 Pa.C.S.A. § 5104. 1° 18 Pa.C.S,A, § 4906(a).
Page 1 of 8 Disorderly Conduct -Unreasonable Noisell, and Simple Trespass12. A jury trial was held
from August 5 through August 14, 2003, before the Honorable Lawrence F. Clark, Jr.
(hereinafter referred to as "Judge Clark"), now retired. Defendant was found guilty on two
(2) counts of Aggravated Assault and one (1) count each of Escape, Resisting Arrest,
Criminal Attempt (Homicide), Robbery, Criminal Conspiracy, False Identification to Law
Enforcement Authorities, and Flight to Avoid Apprehension of Prosecution. Thereafter, (37) on October 2, 2003, Defendant was sentenced to an aggregate term of thirty-seven
to ninety (90) years of incarceration at a state correctional institution. Defendant
subsequently filed a direct appeal to the Superior Court of Pennsylvania. On August 17, the judgment of 2004, the Superior Court issued a memorandum opinion which vacated but affirmed sentence imposed on Defendant for one of the counts of Aggravated Assault
the judgment of sentence as to all other counts.13 It appears from the record that
or the Supreme Defendant did not appeal to -either the Supreme Court of Pennsylvania
Court of the United States.
Defendant filed his first pro se PCRA petition on June '1, 2005. Jeffrey B. Engle,
Esquire, was appointed by the court to represent Defendant relative to the PCRA
proceedings. On February 8, 2006, Attorney Engle filed a Motion to Withdraw, along with
a letter of "no merit" pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
was Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). The PCRA petition
dismissed on June 29, 2006. Defendant appealed the dismissal of his PCRA Petition to
"18 Pa.C.S.A. § 5503(a)(2). 12 18 Pa.C.S.A. § 3503(b.1)(1)(i). 13 Defendant was convicted of two counts of aggravated assault for which the trial court imposed concurrent sentences. Therefore, even though the Superior Court vacated the judgment of sentence as to one of the counts of its disposition did not upset aggravated assault, the Superior Court found no need to remand for sentencing because the trial court's sentencing scheme.
Page 2 of 8 Defendant's the Superior Court of Pennsylvania, which affirmed on November 16, 2007. was denied on Petition for Allowance of Appeal to the Supreme Court of Pennsylvania
June 4, 2008. Action" with On May 29, 2009, the Defendant filed what he titled an "Independent by way of fraud the trial court, alleging that his judgment of conviction had been procured 2010, Defendant that had been perpetrated upon the court. Thereafter, on January 6,
filed a "Petition for Writ of Mandamus and/or Extraordinary Relief," which requested that
"Independent Action." The the trial court be directed to respond to the aforementioned and Defendant appealed trial court denied the "Independent Action" on January 22, 2010,
to the Superior Court, which affirmed the denial of the "Independent Action" on December
with respect to the 3, 2010. It appears that Defendant took no further appeals
"Independent Action." May 23, 2011. Jonathan Defendant then filed a second pro se PCRA petition on
W. Crisp, Esquire, was appointed by the court to represent Defendant relative to the
PCRA proceedings. On July 25, 2011, Attorney Crisp filed a Motion to Withdraw, along
on August 17, 2011. with a letter of "no merit." The second PCRA petition was dismissed to the Superior Court of Defendant appealed the dismissal of his second PCRA petition
decision filed March 26, 2012. On April 11, 2012, Pennsylvania, which affirmed in a
of the Superior Defendant filed an application requesting reargument or reconsideration June 8, 2012. It appears Court's decision, but the Superior Court denied this request on
that no further appeals were taken.
On or about May 6, 2012, Defendant filed a third pro se PCRA petition.
May 31, 2013. Dana M. Subsequently, Defendant filed an amended PCRA petition on
Page 3 of 8 Wucinski, Esquire, was appointed by the court to represent Defendant relative to the
PCRA proceedings. On September 23, 2013, Attorney Wucinski filed a Motion to
Withdraw, along with a letter of "no merit." Defendant's third PCRA was dismissed on
February 11, 2014. Defendant appealed the dismissal of his third PCRA petition to the
Superior Court of Pennsylvania, which affirmed the dismissal on March 3, 2015.
On March 9, 2015, Defendant filed a fourth pro se PCRA petition. The fourth PCRA
petition was dismissed on July 30, 2015. Defendant appealed the dismissal of his fourth
PCRA petition to the Superior Court of Pennsylvania, which affirmed on September 2,
2016.
On October 7, 2016 and October 28, 2016, the Defendant filed two PCRA petitions,
which were identical as to content and substance. This Court issued a Notice of Intent to
Dismiss both PCRA petitions on February 14, 2017. Defendant requested an extension
of time to file a response to our notice to dismiss, which was subsequently filed on April
3, 2017. Both PCRA petitions were dismissed on April 7, 2017. Defendant filed a Notice
to Appeal on May 5, 2017. On May 22, 2017, Appellant was directed to file a Concise
Statement of Errors.
Statement of Errors Complained of on Appeal 1. Whether the PCRA Court denied Defendant Due Process by refusing him an opportunity to amend his PCRA?
2. Whether the affidavit of Joyette Foster detailing Judge Clark's bias against Muslims met the "After -discovered facts" and "Miscarriage of Justice" exceptions; and is Defendant entitled to a new trial or remand for an evidentiary hearing?
3. Whether the PCRA court erred in requiring Defendant to plead/prove due diligence under the Governmental Interference exception when the statute
Page 4 of 8 does not contain such language; and has the state courts established a clear definition for Governmental Interference claims?
4. Whether the loss, alteration, or failure to provide a full/complete copy of the trial proceedings by the court or its officers amount to Governmental Interference/Miscarriage of Justice rendering Defendant's underlying claim of denial of a fair trial/appeal/judicial bias reviewable on the merits, or a remand for an evidentiary hearing?
5. Whether the PCRA court erred, as a matter of law, assessment of the in its substance/timeliness of Michael Hill's affidavit/statement which met both the after discovered facts/miscarriage of justice standards; and is Defendant entitled to a new trial or remand for an evidentiary hearing? DISCUSSION
This Court believes that our Memorandum Opinion and Order dated February 14,
2017 thoroughly addresses the issues raised in Defendant's current Concise Statement
of Matters Complained of on Appeal filed on June 9, 2017, Defendant's current
arguments are without merit because, as stated in the Memorandum Opinion, "the newly
discovered fact exception 'has two components, which much be alleged and proved.
Namely, the petitioner must establish that: 1) "the facts upon which the claim was
predicated were unknown" and 2) "could not have been ascertained by the exercise of
due diligence:1"14 The fact that Hill may be a "newly willing source" for said facts does
not constitute an exception under 42 Pa.C.S. § 9545(b)(1)(ii). The same is true for
Defendant's alternative argument for the Affidavit of Joyette Foster. Although Foster may
be a "newly willing source" for said facts does not constitute an exception under 42
Pa.C.S. § 9545(b)(1)(ii). Since this issue has been thoroughly discussed by the Court
(copy attached), it will not be addressed further.
14 Commonwealth v. Bennett 930 A.2d 1264, 1272 (Pa. 2007) (quoting 42 Pa.C.S. § 9545(b)(1)(ii)).
Page 5 of 8 Defendant further asserts that the court has denied him due process by refusing
to allow him to amend his PCRA petition. This issue has been ruled upon by the Court in
its Order dated March 13, 2017, (copy attached) and will not be addressed further.
Alternatively, Defendant's PCRA petition was not filed in a timely manner.
A PCRA petition, "including a second or subsequent one, must be filed within one
year of the date that the petitioner's judgement of sentence became final unless he pleads
and proves one of the exceptions outlined in 42 Pa.C.S.A. § 9545(b)(1),"15 A judgment
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 such review.16 This time requirement is jurisdictional in
nature and applies to all PCRA petitions, regardless of the merits or legality of any claims
raised therein.17 A court may not address the merits of an untimely PCRA petition unless
one of the three enumerated exceptions outlined in 42 Pa.C.S. § 9545(b)(1) is satisfied."
The three exceptions are: (1) interference by government official in the
presentation of the claim; (2) newly discovered facts that could not have been previously
discovered by the petitioner through the exercise of due diligence; and (3) an after -
recognized constitutional right that has been held to apply retroactively." Moreover, any
claims asserted within this provision must be made within sixty (60) days of when they
became known.2°
15 Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012). 16 42 Pa.C.S. § 9545(b)(3); Jones 54 A.3d at 17. 17 Jones, 54 A.3d at 17; Commonwealth v. Abdul -Salaam 812 A.2d 497, 500 (Pa. 2002); Commonwealth v. Cintora 69 A.3d 759, 760 (Pa. Super. Ct. 2013). 18 Jones 54 A.3d at 17; Commonwealth v. Copenhefer, 941 A.2d 646, 648-649 (Pa. 2007). 1942 Pa.C.S. § 9545(b)(1)(i)-(iii). 2042 Pa.C.S. § 9545(b)(2); Jones 54 A.3d at 17.
Page 6 of 8 In the instant matter, the Superior Court issued a Memorandum Opinion on August
17, 2004, vacating the judgment of sentence imposed on Defendant for one of the counts
of Aggravated Assault, but affirmed the judgment of sentence to all the other counts.
Defendant's judgment of sentence became final thirty (30) days later, on or about
September 17, 2004, when his time for seeking review from the Supreme Court of
Pennsylvania expired. Therefore, Defendant had one (1) year - or until September 17, 2005 - to file a PCRA petition. The subject PCRA petitions were filed on October 7, 2016
and October 28, 2016 - more than twelve (12) years after the date upon which
Defendant's judgment of sentence became final. Thus, Defendant must plead and prove
one of the three enumerated exceptions contained in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) in
order for his motion to be considered timely.
Defendant asserts that the PCRA court required him to plead/prove his due
diligence. The court never required Defendant to plead or prove due diligence and the
issue therefore will not be addressed. Furthermore, the Court will not entertain factual
questions.
Moreover, Defendant also asserts that there was governmental interference due
to the loss, alteration, or failure to provide a full and complete copy of the trial proceedings.
Defendant's argument under this exception is not entirely clear and has not been raised
in his previous four PCRA petitions, Therefore, the Court believes this issue is waived
and it will not be addressed.
Defendant's PCRA petition is untimely on its face, and Defendant has failed to
plead and prove that his petition meets the requirements of the statutory exceptions to
Page 7 of 8 the PCRA's jurisdictional time -bar. This Court therefore lacks jurisdiction to consider
Defendant's substantive claims.
Accordingly, we ask the Superior Court of Pennsylvania to affirm our Order of April
7, 2017 dismissing Appellant's fifth PCRA petition, and to dismiss the appeal in this
Date: Az .1-o Respectfully submitted:
William T. T ly, J.
DISTRIBUTION: 7//6/ 7 eee------ Ryan Lysaght, Esquire Office - District Attorney's Daliyl Muhammad, #GB -0883, SCI -Coal Twp., 1 Kelley Drive, Coal Township, PA 17866 Clerk of Courts ..22-7-0 /nip --- Cou rt Administration FILE 6_0
Page 8 of 8 COMMONWEALTH OF PENNSYLVANIA, : IN THE COURT OF COMMONPLEAS, DAUPHIN COUNTY, PENNSYLVANIA v.
: NO. 2967 CR 2002; 3009 CR 2002 DALIYL MUHAMMAD, Defendant PCRA
MEMORANDUM OPINION
Presently before this Court is a Motion for Post -Conviction Collateral Relief
pursuant to the Post -Conviction Collateral Relief Act ("PCRA") filed by Defendant Daliyl
Muhammad (hereinafter "Defendant"). For the reasons set forth below, we find that
Defendant's claims are without merits
PROCEDURAL HISTORY
Defendant was arrested relative to incidents that occurred on January 12, 2002
(Docket No. 2967 CR 2002) and July 7, 2002 (Docket No. 3009 CR 2002), With respect .
to the January 12, 2002 incident, in which two, people were shot, Defendant was charged
with Criminal Attempt (Homicide),1 Criminal Conspiracy,2 Robbery,3 Aggravated Assault,4
Carrying a Firearm Without a License,5 and Former Convict Not to Possess a Firearm.6
Then, on July 7, 2002, when Defendant was arrested on the aforementioned charges, he
obtained new charges including Flight to Avoid Apprehension of Prosecution,7 Escape,8
Resisting Arrest,9 False Identification to Law Enforcement Authorities,10 Disotderly
1 18 Pa.C.S.A. § 901. 2 18 Pa:C.S.A. § 903. 3 18 Pa.C.S.A. § 3701(a)(1)(0. 418 Pa.C.S.A. § 2702(a)(1). 5 18 Pa.C.S.A. § 6106(a).
6 18 Pa.C.S.A. § 6105.
18-Pa.C.S.A. § 5126. 518 Pa.C.S.A. § 6121(8). 9 18 Pa C.S.A..§ 5104.
1918 Pa.C.S.A. § 4906(a).
Page 1 of 12 Conduct -Unreasonable Noise,11 and Simple Trespass.12 A jury trial was held from August
5 through August 14, 2003 before the Honorable Lawrence F. Clark, Jr. (hereinafter
"Judge Clark"), now retired, and Defendant was found guilty on two counts of Aggravated.
Assault and one count each of Escape, Resisting Arrest, Criminal Attempt (Homicide),
Robbery, Criminal Conspiracy, False Identification to Law Enforcement Authorities, and
Flight to Avoid Apprehension of Prosecution. Thereafter, on October 2, 2003, Defendant
was sentenced to an aggregate term of thirty-seven (37) to ninety (90) years of
incarceration at a state correctional institution. Defendant subsequently filed a direct
appeal to the Superior Court of Pennsylvania. On August 17, 2004, the Superior Court
issued a memorandum opinion which vacated the judgment of sentence imposed on
Defendant for one of the counts of Aggravated Assault but affirmed the judgment of
sentence as to all of the other counts.13 It appears from the record that Defendant did not
appeal to either the Supreme Court of Pennsylvania or the Supreme Court of the United
States.
Defendant filed his first pro se PCRA petition on June 1, 2005. Jeffrey B. Engle,
Esquire, was appointed by the court to represent Defendant relative to the PCRA
proceedings. On February 8, 2006, Attorney Engle filed a Motion to Withdraw, along with
8 letter of "no merit" pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). The PCRA petition was
ultimately dismissed on June 29, 2006. Defendant appealed the dismissal of his PCRA
11 18 Pa,C.S.A. § 6503(a)(2). 12 18 PaC.S.A. § 3593(b.1)(1)(1). 13 Defendant was convicted of two counts of aggravated assault for which the trial court imposed concurrent sentences. Therefore, even though the Superior Court vacated the judgment of sentence as to one of the counts of aggravated assault, the Superior Court found no need to remand for sentencing because its disposition did not upset the trial court's sentencing scheme.
Page 2 of 12 petition to the Superior Court of Pennsylvania, which ultimately affirmed on November 16,
2007. Defendant's Petition for Allowance of Appeal to the Supreme Court of
Pennsylvania was denied on June 4, 2008.
On May 29, 2009, the Defendant filed what he titled an "Independent Action" with
the trial court, alleging that his judgment of conviction had been procured by way of fraud
that had been perpetrated upon the court. Thereafter, on January 6, 2010, Defendant
filed a "Petition for Writ of Mandamus and/or Extraordinary Relief' which requested that
the trial court be directed to respond to the aforementioned "Independent Action." The
trial court denied the "Independent Action" on January 22, 2010, and Defendant appealed
to the Superior Court, which affirmed the denial of the "Independent Action" on December
3, 2010. It appears that Defendant took no further appeals with respect to the
"Independent Action."
Defendant then filed a second pro se PCRA petition on May 23., 2011. Jonathan
W. Crisp, Esquire, was appointed by the court to represent Defendant relative to the
PCRA proceedings. On July 25, 2011, Attorney Crisp filed a Motion to Withdraw, along
with a letter of "no merit." The second PCRA petition was ultimately dismiised on August
17, 2011. Defendant appealed the dismissal of his second PCRA petition to the Superior
Court of Pennsylvania, which ultimately affirmed in a decision filed March 26, 2012. On
April 11, 2012, Defendant filed an application requesting reargument or reconsideration
of the Superior Court's decision, but the Superior Court denied this request on June 8,
2012. It appears that no further appeals were taken.
On or about May 6, 2012, Defendant filed a third pro se PCRA petition.
Subsequently, Defendant filed an amended PCRA petition on May 31, 2013. Dana M.
Page 3 of 12 Wucinski, Esquire, was appointed by the court to represent Defendant relative to the
PCRA proceedings. On September 23, 2013, Attorney Wucinski filed a Motion to
Withdraw, along with a letter of "no merit? Defendant's third PCRA was ultimately
dismissed on February 11, 2014. Defendant appealed the dismissal of his third PCRA
petition to the Superior Court of Pennsylvania, which ultimately affirmed on March 3,
2015.
On March 9, 2015, Defendant filed a fourth PCRA petition. The fourth PCRA
petition was ultimately dismissed on July 30, 2015, and Defendant appealed the dismissal
of his fourth PCRA petition to the Superior Court of Pennsylvania, which affirmed on
September 2, 2016.
Currently before the court are two PC RA petitions that Defendant filed on October
7, 2016 and October 28, 2016, respectively. With regard to content and substance, both
of these petitions are identical, and, therefore, it is unnecessary to discuss each
separately. As such, we will discuss the two petitions collectively. In the instant petitions,
Defendant first alleges that Judge Clark made comments at his criminal trial that revealed
a bias against Muslims and that such comments "appeal[ed] to the fears and prejudice of
the jury." Second, Defendant alleges the presence of "after -discovered facts," specifically
what he alleges to be an affidavit of an eyewitness named Michael Hill. Defendant claims
that Hill's purported affidavit establishes that a victim and codefendant referred to as
"Nickol" shot at Defendant thereby initiating the encounter which ultimately led to
Defendant's criminal conviction. Defendant claims that this "totally refutes what was
presented during trial by the Commonwealth."
Page 4 of 12 DISCUSSION
A PCRA petition, "including a second or subsequent one, must be filed within one
year of the date that the petitioner's judgment of sentence became final, unless he pleads
and proves one of the three enumerated exceptions outlined in 42 Pa.C.S.A. §
9545(b)(1)."14 A judgment 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 such review.15 This time
requirement is jurisdictional in nature and applies to all PCRA petitions, regardless of the
merits or legality of any claims raised therein -16 A court may not address the merits of an
untimely PCRA petition unless one of three enumerated exceptions outlined in 42 Pa.C.S..
§ 9545(b)(1) is satisfied,17
In the instant matter, on August 17, 2004, the Superior Court issued. a
memorandum opinion which vacated the judgment of sentence imposed on Defendant
for one of the counts of Aggravated Assault but affirmed the judgment of sentence as to
all of the other counts. Defendant's judgment of sentence, therefore, became final thirty
(30) days later, on or about September 17, 2004, when his time for seeking review from
the Supreme Court of Pennsylvania expired. Therefore, Defendant had one (1) year- or until September 17, 2005 -to file a PCRA petition. The instant PCRA petitions were filed
on October 7, 2016 and October 28, 2016, respectively, both dates which are more than
twelve (12) years after the date upon which Defendant's judgment of sentence became
14 Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012) 16 42 Pa.C.S. § 9545(b)(3); Jones 54 A.3d at 17 16 Jones, 54 A.3d at 17; Commonwealth v. Abdul -Salaam, 812 A.2d 497, 500 (Pa. 2002); Commonwealth
v. Cintora 69 A.3d 759, 760 (Pa. Super. Ct. 2013) 17 Jones 54 A.3d at 17; Commonwealth v. Copenhefer, 941 A.2d 646, 648-49 (Pa. 2007)
Page 5 of 12 final. Thus, Defendant must plead and prove one of the three enumerated exceptions
contained in 42 Pa.C.S.A: § 9545(b)(1)(j)-(iii) in order for, his motion to be considered
timely.
The three exceptions are: (1) interference by government official in the
presentation of the. claim; (2) newly discovered facts that could not have been previously
discovered by the petitioner through the exercise of due diligence; and (3) an after -
recognized constitutional right that has been held to apply retroactively.18
In the instant matter, the gravamen of Defendant's first claim is that Judge Clark
allegedly made comments at his criminal trial which revealed a bias against Muslims and
that such comments had a prejudicial effect on the jury which ultimately convicted him.
To support this claim, Defendant provides the written affidavits of three women (Joyetta
Foster, Marlene Selvey, and Kathryn Gann) who allegedly were present in the courtroom
during Defendant's trial and overheard Judge Clark make the allegedly biased comments.
In Foster's affidavit, she alleges that she was present in the courtroom at the time of
Defendant's trial and heard the Judge (who Foster does not specify by name) state off
the record that he "needed to make an example of Islamic members of the Harrisburg
community especially since this was such a difficult time for our country."19 In the second
affidavit, written by Selvey (who refers to Defendant as "my son"), it is alleged that
Defendant's attorney informed Selvey and Defendant that Judge Clark "did not like
[Defendant]" and "was going to make sure he gave him a sentence of 99 years."2°
Additionally, Selvey alleges that Judge Clark made a "stipulation" that no one was to see
18 42 Pa.C.S. § 9545(b)(1)(i)-(iii) 19 See "Exhibit A" to Defendant's Instant PCRA Petition. 20 See °Exhibit B" to Defendant's Instant PCRA Petition
Page 6 of 12 the trial transcripts until he released them.21 In the third affidavit, Gann, who identifies
herself as a "family member" of the defendant, writes that when Judge Clark charged the
jury, he stated to them as follows: "Let me reflect your memory to the 911. incident that
took place and the terrorist [sic] attacked America. I need yall [sic] to keep in mind there
are still terrorist [sic] that walk among us everyday [sic] in our neighborhood."22 Gann
also claims that a court reporter overheard Judge Clark's comments, but she [the court
reporter] said she could not get involved because she would lose her job. Gann also
states that when she was ultimately provided with a copy of the transcripts the
"information was not in there."23
Defendant contends that Judge Clark's comments fall within the exception
provided in 42 Pa.C.S.A. § 9545(b)(1)(i), namely interference by a governmental official
in the presentation of a claim. Certainly, we cannot see how the alleged comments
themselves amounted to interference by a governmental official in the presentation of a
claim. Defendant appears to allege, however, that it is something that occurred after the
comments were made that amounted to governmental interference. Specifically,
Defendant makes a suggestion that Judge Clark clandestinely had his biased statements
removed from the record either by his own doing or through the. assistance of other
officers of the court. These allegations are merely speculative, however, and Defendant
provides no concrete evidence that either Judge Clark or any other governmental official
took any action to conceal any statements from the transcripts or any partof the record.
Defendant merely alleges that the transcripts he received did not contain the comments
21 id. 22 See "Exhibitt" to Defendant's Instant PCRA Petition. 23 Id.
Page 7 of 12 allegedly made by Judge Clark, but he does not plead any specific facts to suggest that
the absence of these comments in the transcripts is the fault of Judge Clark or any other
official. Furthermore, Defendant fails to state why the claims he raises in his instant
petition could not have been raised in a timely fashion. It is not as if the transcripts
reflecting Judge Clark's alleged comments just turned up recently, allowing Defendant to
only be able to raise his claim at the current time. There are still no transcripts reflecting
Judge Clark's alleged comments, and the instant claim is based only on affidavits of
individuals who were present at Defendant's 2003 trial. Considering that these individuals
were present at the 2003 trial, similar affidavits could have easily been taken from them
at a much earlier date and during the time frame in which a PCRA filing would have been
timely. Defendant, however, fails to provide a viable excuse for why these affidavits are
only being presented now and why they could not have been presented in any of the
previous PCRA petitions he filed. Thus, we conclude that Defendant's claim regarding
Judge Clark's allegedly biased comments does not fall under the 42 Pa.C.S.A.
§ 9545(b)(1)(i) exception for a timely filing.
With respect to his second claim, Defendant claims the presence of "after
discovered facts" that would constitute an exception under 42 Pa.C.S. § 9545(b)(1)(iii),
i.e., newly discovered facts that could not have been previously discovered by the
petitioner through the exercise of due diligence. The "newly discovered fact" that
Defendant attempts to present is a declaration24 of an individual named Michael Hill
(hereinafter "Hill"), who allegedly was an eyewitness to the -January 12, 2002 incident
giving rise to Defendant's conviction. In this declaration, which Defendant claims is an
24Although Hill's declaration is attached to Defendant's PCRA Petition, it appears that Defendant does not specifically label this declaration as an exhibit.
Page 8 of 92 affidavit,25 Hill claims that on one day back in 2002, he was standing on the porch of his
grandmother's house when he observed Defendant (whom Hill refers to as "Dalizz")
walking up the street with a large white male walking beside him and two other males
following from behind. As the men walked closer, Hill claimed that he could hear the
white male (whom Defendant refers to in the instant Petition as "Nickol'), who sounded
upset, ask about drugs, and that Defendant responded by saying that he had to. "wait on
someone." According to Hill, "Nickol" then dropped back behind Defendant, pulled out a
gun, and shot at Defendant. Hill then retreated to the inside of his grandmother's doorway
and heard more shots seconds later. At some point, Hill claims that he looked back
outside and observed "Nickol" on the ground. Defendant claims that this affidavit
establishes that "Nickol" initiated the confrontation which ultimately led to Defendant's
criminal conviction.
We conclude that Hill's affidavit does not fall within the newly discovered fact
exception under 42 Pa.C.S. § 9545(b)(1)(iii). The Supreme Court of Pennsylvania has
noted that the newly discovered fact exception "has two components, which must be
alleged and proved. Namely, the petitioner must establish that: 1) 'the facts upon which
the claim was predicated were unknown' and 2) 'could not have been ascertained by the
25 Although Defendant claims that Hill's written statement is an affidavit, it is merely a statement that is handwritten on a piece of paper and signed only by Hill himself. Hill's declaration, therefore, does not exhibit that it was subject to the oath and certification that areCharacteristic of an affidavit, See Commonwealth v. Brown, 872 A.2d 1139, 1168-70 (Pa. 2005) (Castille, J., concurring) (noting that an affidavit is distinct from other out:of-court statements because of oath and certification, Which convey to declarant consequences of falsehood, including potential for felony perjury prosecution; an affidavit.also conveys to tribunal some level of assurance that declarant is who he says he is, that declaration is not fraudulent, and that declarant is willing to stand behind his statement in court.). Hill's written statement, rather, appears to be an unsworn declaration, and "there is a significant distinction between an affidavit and an unsworn declaration." Commonwealth v. Tedford, 960 A.2d 1, 18 n.10 (Pa. 2008); see also Commonwealth v. Hall 872 A.2d 1177, 1192 (Pa. 2005) (Castille, J., concurring) ("[Tjhere is a significant distinction between a sworn affidavit, which is contemplated under this Court's Criminal Rules governing PCRA practice, and a mere unsv. leclaration of a witness.").
Page 9 of 12 exercise of due diligence.'"26 As our Supreme Court has explained, "[t]he focus of the
exception is on [the] newly discovered facts, not on a newly discovered 'or newly willing
source for previously known facts."27 Thus, the court has previously "rejected a
petitioner's argument that a witness's subsequent admission of-alleged facts brought a
Claim within the scope of exception (b)(1)(ii) even though the facts had been available to'.
the petitioner beforehand."28 With regard to the newly discovered facts exception, claims
invoking such exception, are subject to a sixty (60) day time limitation.29 With regard to
this limitation, "the sixty (60) day time limit ... runs from the date the petitioner first learned
of the alleged after -discovered facts. A petitioner must explain when he first learned of
the facts underlying his PCRA claims and show that he brought his claim within sixty (60)
days thereafter."3°
Given the aforementioned, the focus of the newly discovered fact exception in the
instant matter must be on the facts contained within the affidavit; the fact that Hill may be
a "newly willing source" for these facts is not the focus of our inquiry and does not
constitute an exception under 42 Pa.C.S. § 9545(b)(1)(11)). The pivotal fact alleged in
Hill's affidavit is that "Nickol" shot at Defendant first, which ultimately led to the encounter
that resulted in Defendant's criminal conviction. This fact, however, does not satisfy the
two requisite elements for qualifying under the newly discovered fact exception. First,
Defendant does not allege that this fact was previously unknown to him;- Defendant
himself was the one who was allegedly shot at by "Nickol," and we cannot believe that he
28 Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007). (emphasis in original) (quoting 42 Pa.C.S. § 9545(b)(1)(0). 27 Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008) (internal citation and quotation marks
omitted). 28 Id. (internal citation omitted). 29 See Commonwealth v. Williams, 35 A.3d 44, 53 (Pa. Super. Ct.2011). 3° Id.
Page 10 of 12 would have been unaware of this fact until approximately fifteen (15) years after the
incident occurred.. FurtherMore, even if Defendant did just learn of this fact recently, he
fails to allege exactly when he learned of this fact, and, therefore, fails to show that he
brought the instant petition within sixty (60) days of learning this fact. Second, Defendant
does not satisfy the other element of the newly discovered fact exception because he fails.
to explain why such fact could not have been previously ascertained by due diligence or
that he has exercised any sort of due diligence in attempting to gain knowledge of this
fact within the last 15 years. In sum, it appears that Hill merely is attempting to present a
new witness that is willing to testify to a fact that he previously should have known, and
as previously discussed this does not justify an application of the newly discovered fact
exception.
CONCLUSION
For the aforementioned reasons, we find Defendant's PCRA motion to be untimely
and thus, this Court is precluded from addressing its merits. Accordingly, we enter the
following:
(This space intentionally left blank)
Page 11 of 12 COMMONWEALTH OF PENNSYLVANIA, : INTHE COURT OF COMMON PLEAS, : DAUPHIN COUNTY, PENNSYLVANIA
: NO. 2967 CR 2002; 3009 CR 2002 DALIYL MUHAMMAD, Defendant : PCRA
ORDER
AND NOW, this il-nday of February, 2017, upon consideration of the Motion for
Post -Conviction Collateral Relief filed by Defendant Daliyl Muhammad, and, of the
relevant statutory and case law, this Court finds that Defendant is not entitled 'to post -
conviction collateral relief. Therefore, NOTICE IS HEREBY GIVEN of this Court's
intention to DISMISS his motion. Petitioner is advised that he may respond to the
proposed dismissal within twenty (20) days of the date of this notice.
BY THE COURT:
#C-c-e....f-gases-e-ats William 7.;Tull4J "V GO
DISTRIBUTION: MCC; 2;#- c 2C) -a P - Ryan Lysaght, Esquire District Attorney's Office N3 Muhammad, #GB -0883, SCI -Fayette, P.O. Box 9999, LaBelle, PA 1545330.99i; vs* Clerk of Courts Court Administration FILE
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