Com. v. Parham, S.

• Court: Superior Court of Pennsylvania
• Decided: April 24, 2024
• Docket: 551 EDA 2023
• Status: Unpublished

Opinion

J-S04026-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SHAHID PARHAM : : Appellant : No. 551 EDA 2023

Appeal from the PCRA Order Entered February 2, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0015369-2013

BEFORE: BOWES, J., STABILE, J., and LANE, J.

MEMORANDUM BY STABILE, J.: FILED APRIL 24, 2024

Shaid Parham (petitioner) appeals an order of the Court of Common

Pleas of Philadelphia County (PCRA court) denying his petition for

postconviction relief.1 We affirm.

This case began in 2013, when petitioner was involved in a fatal

shooting. Petitioner and his cousin, Muhammad Munson, held themselves out

as prospective buyers of a watch that belonged to Dwayne Davis. Both

petitioner and Munson ostensibly appeared at the home of Davis to examine

the merchandise.

However, upon arriving through the front door, petitioner drew a firearm

on Davis. Petitioner told Davis, “You know what time it is, old head.” N.T.

Trial, 4/9/2015, at 63. Despite being outnumbered and taken by surprise, ____________________________________________

1 The petition was filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A.

§§ 9541-9546 (PCRA). J-S04026-24

Davis was able to wrest away control of the weapon, and he then used it to

shoot both petitioner and Munson while they fled. Munson succumbed to his

wounds moments later, and he passed away while still in Davis’ backyard.

Petitioner survived, but he only managed to run a block away from the

home before collapsing to the ground. Police found petitioner and provided

him with medical attention. He was taken into custody and charged with

several counts relating to the attempted robbery of Davis.

In 2015, at a non-jury trial, one of the legal issues put before the trial

judge was whether petitioner could be convicted of burglary when force had

not been used to enter the victim’s home. The Commonwealth argued in part

that since petitioner entered the home with the intent to commit a robbery,

and he did so under the false pretense of buying a watch from the victim, the

evidence of burglary was legally sufficient.

Another issue was a factual dispute as to how the firearm was

discharged. In the victim’s account, petitioner first fired the gun while in the

home, striking a wall, at which point petitioner dropped it to the ground,

enabling the victim to pick up the weapon and use it against petitioner.

The defense argued that the evidence was more consistent with a

struggle between petitioner and the victim over the weapon before it was

discharged, making it unlikely that petitioner had ever shot a round into the

wall. The trial judge accepted the defense’s argument in that regard, and as

a result, the portion of the victim’s testimony concerning petitioner’s use of

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force was found to be not credible; the rest of the victim’s account was found

to be credible, including petitioner’s method of gaining entry into Davis’ home.

There is no dispute that petitioner was convicted of robbery, conspiracy,

possession of a firearm without a license, possession of a firearm prohibited,

possessing a firearm as a minor, and possessing an instrument of a crime. He

was found not guilty of aggravated assault because the trial court determined

that there was no evidence that he intended to cause the victim serious bodily

injury. This portion of the verdict was consistent with the trial court’s factual

finding that petitioner had never attempted to shoot the victim.

After announcing the verdict, the trial judge indicated that he would

“reconsider” the burglary conviction if petitioner was able to find any legal

authority that would support an acquittal. See id., at 183. The docket entry

for the date of the verdict indicates that petitioner was found guilty of the

following offenses: Count 2 (Robbery), Count 3 (Burglary), Count 4

(Conspiracy), Count 5 (Carrying Firearm Without a License), Count 7

(Possession of Firearm by a Prohibited Person), Count 9 (Possession of a

Firearm by a Minor), and Count 10 (Possession of an Instrument of Crime).

The docket further reflects that the trial court found petitioner not guilty only

as to Count 1 (Aggravate Assault), and the remaining charges (Counts 6, 8,

11, and 12) were nolle prossed.

At the sentencing hearing held on June 18, 2015, defense counsel

suggested that petitioner had been found not guilty of burglary. In response,

the trial court clarified that petitioner had been in fact been found guilty of

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that count, and that the defense had only been invited to “find something to

the contrary, and bring it up again and I’ll reconsider [the guilty verdict].”

N.T. Sentencing Hearing, 6/18/2015, at 16-17. The trial court pointed out

that it would not have made sense for it to reconsider a verdict of “not guilty”

because double jeopardy principles would have precluded such

reconsideration. See id.

The defense then presented argument on the issue of legal sufficiency

on the burglary count, asserting that there was no evidence that petitioner

had planned to commit a crime in the victim’s house prior to entering. See

id., at 17-18. The defense also emphasized that the victim had been found

not to be credible as to the circumstances in which he recovered the weapon

that petitioner had brought into the house, preventing the Commonwealth

from proving beyond a reasonable doubt that petitioner had the requisite

criminal intent prior to entry. See id. The trial court rejected the defense’s

argument and reiterated that petitioner was “guilty of burglary.” Id., at 20.

Petitioner was sentenced to an aggregate prison term of 32-64 years.

Months after his sentencing, petitioner filed a motion for reconsideration,

arguing that the notes of testimony from the trial had indicated a verdict of

not guilty on the burglary count. The motion was denied on October 22, 2015,

following a hearing.

Petitioner then sought extraordinary relief based on a similar ground.

This time, he asserted that he had been found not guilty of burglary, and that

trial counsel had not been prepared to litigate the sufficiency of the evidence

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of burglary at the hearing on petitioner’s post-sentence motion. The motion

for extraordinary relief was never ruled upon.2

Petitioner appealed his convictions on two occasions. The first appeal

was denied for being untimely filed. Petitioner’s direct appeal rights were then

reinstated, nunc pro tunc, following a meritorious PCRA petition, and on April

7, 2020, Petitioner’s judgment of sentence was upheld. See Commonwealth

v. Parham, No. 66 EDA 2019 (Pa. Super. April 7, 2020) (unpublished

memorandum). One of the issues petitioner raised was that the evidence of

burglary was legally insufficient because he had been invited into the home

by its owner, but the panel rejected that ground, finding that the crime could

occur where entry was made under false pretenses, negating the invitation.

See id., at 7-8.

On June 22, 2021, petitioner filed a timely pro se PCRA petition. Counsel

was appointed, and an amended petition was filed on petitioner’s behalf on

November 24, 2021. Petitioner argued that his trial counsel was ineffective

in (a) failing to present a cogent argument that he could not be convicted of

burglary; (b) not including notes of testimony in support of a motion for

reconsideration of the sentence; and (c) not allowing petitioner to testify at

trial. See Amended PCRA Petition, 11/24/2021, at 2.

On February 2, 2023, the PCRA court dismissed the amended PCRA

petition. An appeal was timely filed thereafter, and the PCRA court in turn ____________________________________________

2 The certified record contains no transcription of the hearing held on October

22, 2015.

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filed an opinion in accordance with Pa.R.A.P 1925(a). See PCRA Court

1925(a) Opinion, 6/20/2023, at 1-7. Petitioner now raises the following two

issues in his brief:

1. Whether the [PCRA] court erred when it denied [petitioner’s] PCRA claim that trial counsel was ineffective for failing to provide case law and argument relating to whether [petitioner] should be convicted of burglary after being requested to do so by the trial court.

2. Whether the [PCRA] court erred when it denied [petitioner’s] PCRA claim that trial counsel was ineffective for failing to file a motion for reconsideration with the relevant notes of testimony to explain [the trial court’s ruling].

Appellant’s Brief, at 5-6 (suggested answers omitted).

When reviewing the denial of a PCRA claim, this Court must determine

whether the PCRA court’s ruling is supported by the record and free of legal

error. See Commonwealth v. Mitchell, 141 A.3d 1277, 1284 (Pa. 2016).

The PCRA court’s credibility determination will not be disturbed unless they

are unsupported by the certified record. Id. This Court may affirm the PCRA

court’s decision as long as there is any basis in the record to do so. See

Commonwealth v. Smith, 194 A.3d 126, 132 (Pa. Super. 2018).

Petitioner’s first claim is that his trial counsel was ineffective in failing to

adequately argue to the trial court that the intent element of burglary was

insufficient to sustain his conviction. According to petitioner, the trial court

would have been persuaded to find him not guilty of burglary had counsel

presented caselaw to that effect. Petitioner cites several cases, such as

Commonwealth v. Crowson, 405 A.2d 1295, 1296 (Pa. Super. 1979) and

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Commonwealth v. Magnum, 654 A.2d 1146, 1147 (Pa. Super. 1995), for

the proposition that, to prove the commission of a burglary in the present

matter, the Commonwealth had to establish that petitioner entered the

victim’s home through deceit or false pretenses, and such intent could not be

inferred merely from the commission of a crime after entry. According to

petitioner, the Commonwealth failed to prove that element because the only

evidence of petitioner’s intent when entering the victim’s home came in the

form of the victim’s testimony. Petitioner argues that he would have prevailed

at trial had counsel made this argument because the trial court had already

found the victim not to be credible.

To succeed on an ineffectiveness claim, a PCRA petitioner must prove

by a preponderance of the evidence that 1) the underlying claim has arguable

merit; 2) counsel had no reasonable basis for the challenged action or

inaction; and 3) counsel’s conduct caused prejudice, such that there was a

reasonable probability that the outcome of the proceedings would have been

different but for counsel’s deficient performance. See Commonwealth v.

Wholaver, 177 A.3d 136, 144 (Pa. 2018); see also 42 Pa.C.S.A. §

9543(a)(2)(ii) (enumerating ineffectiveness of counsel as a ground for

postconviction relief).

The failure to satisfy any single prong of this three-part test is fatal to a

claim of ineffectiveness. See Wholaver, 177 A.3d at 144. It is well

established that counsel may not be found ineffective for failing to raise a

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meritless claim. See Commonwealth v. Spotz, 896 A.2d 1191, 1209 (Pa.

2006).

“A person commits the offense of burglary if, with the intent to commit

a crime therein,” he “enters a building or occupied structure, or separately

secured or occupied portion thereof that is adopted for overnight

accommodations in which at the time of the offense any person is present.”

18 Pa.C.S.A. § 3502(a)(1).3 It is a defense to burglary if “at the time of the

commission of the offense . . . [t]he actor is licensed or privileged to enter.”

Id., at § 3502(b)(3). For the purposes of the burglary statute, a license or

privilege to enter a building or occupied structure “is negated when it is

acquired by deception.” Commonwealth v. Sanchez, 82 A.3d 943, 973 (Pa.

2013). The intent to commit a crime must be formed prior to the entering.

See Commonwealth v. Russell, 460 A.2d 316, 321 (Pa. 1983).

Here, petitioner has not established any of the three prongs of his

ineffectiveness claim. First, the claim has no underlying merit. It was of no

moment that defense counsel did not cite specific cases when arguing the

sufficiency of the evidence for the burglary count. Such case law could have

been entirely cumulative because the trial court, the Commonwealth, and

defense counsel already understood that the intent element of burglary could

be proven by evidence that petitioner used fraud or deceit to enter the victim’s ____________________________________________

3 The version of the burglary statute cited here was in effect from September

4, 2012 until February 20, 2014. Petitioner’s offense date was September 10, 2013.

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home prior to entry.4 The parties specifically debated the evidence with

respect to that point. Additional legal authority could not logically have altered

the trial court’s assessment of the evidence in any meaningful way.

Due to the lack of underlying merit in petitioner’s claim, it is not possible

for him to establish the second and third prongs of the test for ineffectiveness.

Accordingly, the PCRA court did not err in denying postconviction relief as to

this claim.

In petitioner’s second claim, he simply contends that his trial counsel

was ineffective in not providing the trial court with notes of testimony from

the trial. As with petitioner’s first claim above, we find that none of the prongs

of ineffective assistance of counsel have been met.

Petitioner maintains that, had trial counsel presented the notes of

testimony at the sentencing, he would have somehow been found not guilty

of burglary. It is unclear whether petitioner is arguing here that the notes of

testimony would have reflected a verdict of not guilty on the burglary count,

or that the notes of testimony would have proven that he lacked the requisite

intent to commit the offense. Either way, the notes of testimony would have

been unavailing.

____________________________________________

4 At the hearing on the post-sentence motion, the Commonwealth cited two

cases, Commonwealth v. Edwards, 903 A.2d 1139, 1148 (Pa. 2006), and Commonwealth v. Thomas, 561 A.2d 699, 705 (Pa. 1989), both which are consistent with the holdings of the cases identified by petitioner.

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The record establishes that the trial judge found him not guilty of

aggravated assault, and “guilty of the other charges,” which necessarily

included the burglary count. N.T. Trial, 4/9/2015, at 182-83. The burglary

conviction is also evidenced by the case docket, which reflects that petitioner

was found guilty and sentenced as to that crime. The trial disposition and

dismissal form, signed by the trial judge, further verify the burglary conviction.

It therefore follows that petitioner cannot show that his trial counsel erred

because, had the notes of testimony been presented to the trial court, they

would have been entirely consistent with the fact that petitioner was convicted

of burglary.

The alternative argument petitioner seems to be making – that the

absence of the notes of testimony weakened his sufficiency claim concerning

the intent element of burglary – is both undeveloped and belied by the record.

Petitioner does not articulate what parts of the trial transcript, and which

specific facts, would have prompted the trial court to vacate the burglary

conviction at the sentencing hearing. See Commonwealth v. Spotz, 18

A.3d. 244, 323 (Pa. 2011) (undeveloped appellate claims are waived and

unreviewable).

Further, Petitioner does not even attempt to construe the case facts in

a way that is inconsistent with how the trial court summarized the evidence.

See Trial Court 1925(a) Opinion, 10/5/2016, at 2-5; see also Appellant’s

Brief, at 17-19. Thus, petitioner’s second claim has no underlying merit, and

the PCRA court did not err in denying postconviction relief on that ground.

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Order affirmed.

Date: 4/24/2024

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