J-S30044-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : HAKIM ABDUL WAKEEL : : Appellant : No. 3140 EDA 2024
Appeal from the PCRA Order Entered October 31, 2024 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0003579-2008
BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E. *
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 3, 2025
Hakim Abdul Wakeel appeals pro se from the order, entered in the Court
of Common Pleas of Northampton County, dismissing, as untimely, his petition
filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-
9546. After review, we affirm.
In 2009, a jury convicted Wakeel of twenty-five criminal counts in
connection with a robbery that resulted in the death of Danny Rivera. In
connection therewith, the trial court sentenced Wakeel to an aggregate term
of 28 to 74 years’ incarceration. This Court affirmed Wakeel’s convictions but
remanded to the trial court for resentencing due to the court’s imposition of
an illegal sentence. See Commonwealth v. Wakeel, 23 A.3d 579 (Pa.
Super., filed Dec. 14, 2010) (2179 EDA 2009) (unpublished memorandum ____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S30044-25
decision). On remand, the trial court re-sentenced Wakeel to an aggregate
term of 315 to 846 months’ incarceration, which judgment of sentence this
Court affirmed. See Commonwealth v. Wakeel, 47 A.3d 1260 (Pa. Super.,
filed Mar. 30, 2012) (1205 EDA 2011) (unpublished memorandum decision).
Wakeel did not seek further review.
On April 4, 2013, Wakeel filed a pro se PCRA petition, his first, and the
PCRA court appointed counsel. Appointed counsel filed an amended PCRA
petition, alleging that the Commonwealth committed a Brady1 violation by
failing to disclose to Wakeel that there was an agreement for favorable
treatment between the Commonwealth and Julio Lopez—a Commonwealth
witness and charged co-defendant—in exchange for Lopez’s testimony against
Wakeel. The PCRA court held an evidentiary hearing and, inter alia, denied
Wakeel’s petition. Thereafter, on appeal, this Court remanded the case for
the PCRA court to conduct a Grazier2 hearing and for Wakeel to file an
amended PCRA petition. See Commonwealth v. Wakeel, 121 A.3d 1131
(Pa. Super., filed Apr. 14, 2015) (3449 EDA 2013) (unpublished memorandum
decision).
On remand, Wakeel retained private counsel, who filed an amended
PCRA petition. At a second evidentiary hearing, Lopez, for the first time,
recanted all prior testimony, including from the first PCRA evidentiary hearing, ____________________________________________
1 See Brady v. Maryland, 373 U.S. 83 (1963).
2 See Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998).
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and Lopez claimed that he, in fact, had a deal in place with the Commonwealth
to receive a lesser sentence in exchange for his testimony against Wakeel at
the time he testified at Wakeel’s trial. The PCRA court dismissed Wakeel’s
petition and this Court affirmed that dismissal. See Commonwealth v.
Wakeel, 174 A.3d 56 (Pa. Super., filed June 9, 2017) (1772 EDA 2016)
(unpublished memorandum decision). In March 2018, our Supreme Court
denied Wakeel’s petition for allowance of appeal. See Commonwealth v.
Wakeel, 182 A.3d 446 (Pa. 2018) (693 MAL 2017) (table).
On December 11, 2023, Wakeel pro se filed the instant PCRA petition,
his second. In the instant petition, Wakeel alleges: (1) that the
Commonwealth admitted in federal court to perpetrating a fraud upon the
Pennsylvania court by previously denying that Lopez had a deal with the
Commonwealth in exchange for his testimony against Wakeel; and (2) a
Brady violation insofar as the Commonwealth failed to reveal to Wakeel that
the Commonwealth fabricated Lopez’s identification of Wakeel as the
perpetrator as part of Lopez’s deal for leniency in Lopez’s criminal case.
In connection with this second PCRA petition, the PCRA court appointed
counsel, Jennifer L. Toth, Esquire, on December 12, 2023. On June 7, 2024,
Attorney Toth filed a Turner/Finley “no-merit” letter and petition to withdraw
as counsel.3 On July 2, 2024, the PCRA court issued an order permitting
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3See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); see also Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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counsel to withdraw. On July 7, 2024, the PCRA court filed its notice of intent
to dismiss Wakeel’s petition pursuant to Pennsylvania Rule of Criminal
Procedure 907(1). Wakeel filed a pro se response to the PCRA court’s Rule
907 notice on October 23, 2024. The PCRA court dismissed Wakeel’s instant
petition on October 31, 2024. Wakeel timely appealed on November 18, 2024.
Wakeel and the PCRA court have complied with Pennsylvania Rule of Appellate
Procedure 1925.
On appeal, Wakeel raises the following issues for our consideration:
1. Whether the PCRA court erred as a matter of law in finding that the claims set forth by [Wakeel] in his [PCRA] petition are previously [litigated], as the claims set forth could not have been raised before trial, at trial, during unitary review, on appeal, or in any prior state post conviction proceeding?
2. Whether the PCRA court erred as a matter of law in finding that [Wakeel]’s [PCRA] petition was untimely filed under the purview of 42 Pa.C.S. § 9545(b)(1)(i) and (ii), by erroneously conflating the statutory requirements of these exceptions?
3. Whether the PCRA court erred as a matter of law and abused its discretion in allowing court appointed counsel to withdraw without complying with the dictates of Turner/Finley?
4. Whether the PCRA court erred as a matter of law in dismissing [Wakeel]’s [PCRA] petition without a hearing, where [it] raises [] material issues of fact that require a hearing pursuant to [Pennsylvania Rule of Criminal Procedure] 908?
Appellant’s Brief, at ii.
In his latest petition, and on appeal, due to the timing of the filing of his
petition, Wakeel correctly acknowledges that, to invoke the court’s jurisdiction
under the PCRA, he must satisfy an exception to the PCRA’s time-bar. See
Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008) (noting that, to
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be timely, PCRA petition must be filed within one year of date that petitioner’s
judgment of sentence became final, unless petitioner alleges and proves in
petition at least one statutory exception set forth at 42 Pa.C.S. § 9545(b)(1)).
Wakeel claims he is eligible for collateral relief based upon the governmental
interference and the newly discovered facts exceptions. See 42 Pa.C.S. §
9545(b)(1)(i), (ii). In arguing his claims are timely filed, first, Wakeel
contends that he only discovered that a fraud was perpetrated on the court
when the Commonwealth filed, in federal court, an “admission,” pursuant to
Federal Rule of Civil Procedure 60, on December 9, 2022. 4 Second, Wakeel
relies on the affidavits of Lopez and Lopez’s cellmate in 2007-08, Ronald
Newton, which affidavits Wakeel discovered on May 6 and March 26 of 2024,
respectively. Relevant to Wakeel’s instant PCRA claims, Lopez’s affidavit
states that Lopez never knew Wakeel prior to identifying him for police, and
police pressured Lopez into identifying Wakeel as the perpetrator as part of a
deal for leniency in Lopez’s own case. Similarly, Newton’s affidavit recounts ____________________________________________
4 The alleged Commonwealth admission stated as follows:
In the instant matter, [the] fraud alleged by [Wakeel] is that Julio Lopez, a Commonwealth witness, lied while testifying about whether he had a deal with the Commonwealth and that the prosecutor failed to correct the alleged falsehood. However, this allegation does not constitute a fraud upon the court, as the failure to turn over exculpatory evidence is not a duty owed to the court. Further, the fraud [Wakeel] is alleging would constitute fraud on the state court that heard Lopez’s testimony.
Answer to Petitioner’s Motion for Relief Pursuant to Federal Rule of Civil Procedure 60, 12/9/22, at 16 (citations omitted).
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that he recalls police interviewing Lopez in 2007-08 and Lopez telling Newton,
at that time, that police pressured Lopez into wrongly identifying Wakeel as a
perpetrator in exchange for a better deal in Lopez’s case.
We address Wakeel’s first two appellate issues together. Instantly, the
PCRA court dismissed Wakeel’s petition as untimely filed, noting that Wakeel’s
issues have been previously litigated and that there was no admission to fraud
upon the court. See Trial Court Order, 10/31/24, at 1-3. Although we
disagree that Wakeel’s issues have been previously litigated, 5 we agree with
the PCRA court’s findings that Wakeel’s instant PCRA petition is untimely and
that there was no admission to fraud upon the court. See Commonwealth
v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014) (“This Court may affirm a PCRA
court’s decision on any grounds if the record supports it.”) (citation omitted).
Our Supreme Court has previously explained that the PCRA’s time limits
are jurisdictional, which courts must address prior to reaching the merits of a
PCRA petition:
A PCRA petition, including a second or subsequent one, must be filed within one year of the date the petitioner’s judgment of sentence became final, unless he pleads and proves one of the ____________________________________________
5 We find that Wakeel’s instant claims are distinct from those previously litigated in 2013, which finding is contrary to the PCRA court’s conclusion, and which was among the reasons the PCRA court denied Wakeel relief. Specifically, in 2013, Wakeel’s claim was based on an alleged Brady violation based on the Commonwealth’s failure to disclose to Wakeel that there was an agreement for favorable treatment between the Commonwealth and Lopez, whereas Wakeel’s claims now are based on: (1) an alleged admission by the Commonwealth of a fraud upon the court; and (2) an alleged Brady violation in connection with Lopez’s pre-arrest identification of Wakeel.
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three exceptions outlined in 42 Pa.C.S. § 9545(b)(1). A judgment becomes final at the conclusion of direct review by th[e Pennsylvania Supreme] Court or the United States Supreme Court, or at the expiration of the time for seeking such review. [Id. at] § 9545(b)(3). The PCRA’s timeliness requirements are jurisdictional; therefore, a court may not address the merits of the issues raised if the petition was not timely filed. The timeliness requirements apply to all PCRA petitions, regardless of the nature of the individual claims raised therein. The PCRA squarely places upon the petitioner the burden of proving an untimely petition fits within one of the three exceptions[.]
Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (some citations and
footnote omitted).
Additionally, the exceptions to the time limits apply only if the petitioner
filed the PCRA petition “within one year of the date the claim could have been
presented.”6 42 Pa.C.S. § 9545(b)(2); see also Commonwealth v. Hipps,
274 A.3d 1263, 1267 (Pa. Super. 2022). The PCRA’s time limits are ____________________________________________
6 The statutory exceptions relevant here are as follows:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:
(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;
(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[.]
42 Pa.C.S. § 9545(b)(1)(i), (ii).
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jurisdictional, and a court may not ignore them to reach the merits of an
untimely PCRA claim. See Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.
1999); see also Hipps, 274 A.3d at 1267.
Here, Wakeel’s judgment of sentence became final on April 30, 2012,
when the time expired for him to file a petition for permission to appeal with
the Pennsylvania Supreme Court.7 See 42 Pa.C.S. § 9545(b)(3); see also
Pa.R.A.P. 1113. Therefore, Wakeel had until April 30, 2013, to file a timely
PCRA petition. The current petition—filed on December 11, 2023, close to a
decade after the April 2013 deadline—is, therefore, patently untimely. Thus,
unless Wakeel pleads and proves a timeliness exception to the PCRA’s time-
bar, the PCRA court had no jurisdiction to consider the merits of his petition.
See Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa. Super. 2011) (if
PCRA petition deemed untimely and no exception pled and proven, petition
must be dismissed without hearing because court lacks jurisdiction to consider
merits of petition).
7 Because the thirty-day deadline for filing a petition for allowance of appeal
with our Supreme Court fell on Sunday, April 29, 2012, Wakeel had until Monday, April 30, 2012, to file the petition. See Pa.R.A.P. 107 (incorporating by reference rules of construction in Pennsylvania Rules of Judicial Administration including Pa.R.J.A. 107(a)-(b), relating to computation of time for rule of construction relating to exclusion of first day and inclusion of last day of time period, and omission of last day of time period which falls on Saturday, Sunday, or a legal holiday); see also Pa.R.A.P. 1113(a) (general rule setting thirty-day deadline for petitioning for allowance of appeal after entry of Superior Court order).
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Our standard of review of the PCRA court’s denial of a PCRA petition is
well-settled:
Our standard of review of a PCRA court’s dismissal of a PCRA petition is limited to examining whether the PCRA court’s determination is supported by the record evidence and free of legal error. Before addressing the merits of Appellant’s claims, we must first determine whether we have jurisdiction to entertain the underlying PCRA petition.
Commonwealth v. Whitehawk, 146 A.3d 266, 269 (Pa. Super. 2016)
(citations omitted). Further, appellate courts grant great deference to the
PCRA’s court’s factual findings, unless unsupported in the record, but not to
its legal conclusions, for which our standard of review is de novo and our scope
of review is plenary. See Reed, 107 A.3d at 140.
Relevant here, to satisfy the requirements of the governmental
interference exception, a “petitioner must plead and prove the failure to
previously raise the claim was the result of interference by government
officials, and the information could not have been obtained earlier with the
exercise of due diligence.” Commonwealth v. Abu-Jamal, 941 A.2d 1263,
1268 (Pa. 2008). Essentially, a petitioner is required to show that due to the
interference of a government actor “he could not have filed his claim earlier.”
Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008).
To satisfy the requirements of the newly discovered facts exception, a
petitioner must establish that “there were ‘facts’ that were ‘unknown’ to him
and that he could not have ascertained those facts by the exercise of ‘due
diligence.’ The focus of the exception is on the newly discovered facts, not on
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a newly discovered or newly willing source for previously known facts.”
Marshall, 947 A.2d at 720 (citations, brackets, and some quotation marks
omitted; emphasis in original).
After our review, first, we agree with both the PCRA court and the
Commonwealth that Wakeel’s allegation that the Commonwealth admitted to
a fraud upon the court in its federal court filing mischaracterizes the record.
See PCRA Court Order, 10/31/24, at 2 (“that statement by the Commonwealth
in its brief is not such an admission, but is rather an if/then argument against
an issue raised by [Wakeel] in the federal proceeding, and is therefore not a
basis for relief”); see also supra, at n.4. Indeed, the Commonwealth’s filing
in federal court, though perhaps unartfully drafted as it only implies a
comparison between state and federal courts and does not use the word
“federal court,” was not an admission of any kind, but rather contained an
argument in the alternative discussing a relative difference of effect in the
fraud allegations between state and federal court. See Answer to Petitioner’s
Motion for Relief Pursuant to Federal Rule of Civil Procedure 60, 12/9/22, at
16 (“Further, the fraud [Wakeel] is alleging would constitute fraud on the state
court that heard Lopez’s testimony[, rather than the federal court].”). As we
conclude there was no admission by the Commonwealth in that federal court
filing, we find no basis for a governmental interference or newly discovered
fact claim on that alleged ground of fraud upon the court.
Second, as it relates to Lopez’s and Newton’s affidavits, neither affidavit
satisfies either the governmental interference or newly discovered fact
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exceptions. Initially, we observe that Wakeel did not amend his instant PCRA
petition after “discovering” these affidavits and thus any claim relating to
these affidavits is waived. See Commonwealth v. Santiago, 855 A.2d 682,
691 (Pa. 2004) (“Failure to include the claim in the PCRA petition will result in
waiver of the claim.”). Even if not waived, as to both exceptions, Wakeel has
failed to establish that the information in both affidavits could not have been
discovered earlier with due diligence and that he could not have filed his claim
as early as 2013. See Abu-Jamal, 941 A.2d at 1268; Stokes, 959 A.2d at
310; see also Marshall, 947 A.2d at 720. Importantly, in 2013, the basis
for Wakeel’s first PCRA petition was that Lopez lied about his deal for lenience
and the Commonwealth failed to correct him when he testified untruthfully on
that topic at Wakeel’s trial. Based on Lopez’s 2013 recantation and
acknowledgment of an alleged deal with the Commonwealth, we discern no
reason why Lopez would not have divulged, at that time, more details about
the deal he claimed he had in place with the Commonwealth, including the
details of his related false pre-arrest identification of Wakeel as the
perpetrator. See Affidavit of Julio Lopez, 5/15/24, at 3 (“While being
questioned I was told I would be given a deal if I could identify the shooter
out of photos shown to me. I kept telling them I could not from the photos
shown[. . . .] I was being pressured more and more to identify someone
from the photos. [. . . B]ecause they were willing to give me a deal, I
identified a photograph just picking out anybody.”). We find that, based on
this record, contrary to Wakeel’s claims that he could only discover the
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information in the affidavits once the affidavits were delivered to him, Wakeel
should have inquired further into Lopez’s claims in 2013, and that he could
have raised the claim then. Indeed, the Pennsylvania Supreme Court has
previously rejected a petitioner’s failure to timely inquire further into alleged
facts when made aware of information relevant to the at-issue PCRA petition
claims, which thereby results in the petitioner’s failure to carry the burden of
proving that the relevant PCRA claims are timely raised. See Marshall, 947
A.2d at 721 (“Appellant provides no evidence or argument that [the source of
PCRA collateral evidence] refused to divulge the information[. . . . or] that
[Appellant] could not have obtained [it . . .] from [that source], or from
another source[ earlier.] Thus, Appellant has not carried his burden under
Section 9545(b)(2) to establish that he presented his claim within [the
statutory time limits within which the claim] could first have been
presented.”). Accordingly, we conclude that Wakeel has failed to establish
that he filed his petition to raise the claims in the affidavits within one year
from when they could first be presented. See 42 Pa.C.S. § 9545(b)(2); see
also Hipps, 274 A.3d at 1267. Therefore, Wakeel is not entitled to relief.
We observe that Wakeel’s appellate brief suggests that he wishes to
raise an additional Brady violation based on the fact that the Commonwealth
never turned over any existing video recording evidence to Wakeel prior to his
trial. See Appellant’s Brief, at 29, 33-35, 43-45, 47-49, 52. We find this
claim is waived for failure to include it in Wakeel’s instant PCRA petition. See
Pa.R.A.P. Rule 302; see also Santiago, 855 A.2d at 691; Commonwealth
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v. Wharton, 886 A.2d 1120, 1125-26 (Pa. 2005). Even if not waived, we
conclude that Wakeel fails to establish that he has raised this claim within one
year of his earliest opportunity to do so. See 42 Pa.C.S. § 9545(b)(2).
Indeed, Wakeel acknowledges in his appellate brief that he was, at a
minimum, made aware of the possibility of the existence of video-recorded
statements at his trial. See Appellant’s Brief, at 34 (“At [Wakeel]’s trial,
Detective [Mark] DiLuzio testified that he showed Lopez [evidence], once
during the non-video interview and again during the video[-]taped
interview.”) (emphasis added). In any event, to the extent Wakeel suggests
Lopez’s affidavit supports his claim that the Commonwealth withheld video
evidence in violation of Brady, we disagree and note Lopez’s affidavit neither
confirms nor denies the existence of any video evidence. See Affidavit of Julio
Lopez, 5/15/24, at 3 (“Whether the interviews were videotaped or not[,] I was
never made aware of it.”). Accordingly, no relief is due.
As it relates to his third and fourth appellate issues, because we lack
jurisdiction to entertain his PCRA claims, we cannot reach any derivative
claims relating to Turner/Finley and Attorney Toth’s representation. See
Commonwealth v. Fantauzzi, 275 A.3d 986, 994 (Pa. Super. 2022) (stating
that “the timeliness of a PCRA petition is jurisdictional and [] if the petition is
untimely, courts lack jurisdiction over the petition and cannot grant relief”);
see also Commonwealth v. Harris, 114 A.3d 1, 6 (Pa. Super. 2015) (“When
a PCRA court lacks jurisdiction to consider the merits of a petition, we likewise
lack jurisdiction to consider an appeal from disposition of the petition.”).
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Similarly, Wakeel was not entitled to any review, much less a hearing on his
petition. See Pa.R.Crim.P. 908; Jackson, 30 A.3d at 519; see also
Marshall, 947 A.2d at 723 (“[W]e have concluded that Appellant’s petition
was untimely, and accordingly the PCRA court properly determined that it had
no jurisdiction to entertain it.”). Therefore, Wakeel is not entitled to relief on
appeal.
Order affirmed.
Date: 12/3/2025
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