J-S47033-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DALIYL RAA’ID MUHAMMAD
Appellant No. 1518 MDA 2015
Appeal from the PCRA Order July 29, 2015
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., LAZARUS, J., and JENKINS, J.
MEMORANDUM BY LAZARUS, J.: FILED JULY 20, 2016
Daliyl Raa’Id Muhammad appeals from the order entered in the Court
of Common Pleas of Dauphin County denying his fifth petition for relief under
the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-46 (“PCRA”). After our
review, we affirm.
On August 8, 2003, a jury convicted Muhammad of attempted murder,
robbery, conspiracy, aggravated assault, escape, and related charges for his
involvement, along with co-defendant Michael Cameron, in the shootings of
Jacob Nickol and Derrick Kleugel in Harrisburg. The trial court sentenced
Muhammad to an aggregate term of 37 to 90 years’ imprisonment.
Muhammad filed timely post-sentence motions, which were denied.
Muhammad filed a direct appeal. On August 17, 2004, this Court vacated
the judgment of sentence imposed on the aggravated assault conviction,
J-S47033-16
finding that it should have merged with attempted homicide. This Court
affirmed the judgment of sentence in all other respects. Muhammad did not
file a petition for allowance of appeal in the Pennsylvania Supreme Court.
Muhammad filed a pro se PCRA petition on June 17, 2005. The court
appointed Jeffrey Engle, Esquire, as counsel and on February 8, 2006,
Attorney Engle filed a “no-merit” letter and a motion to withdraw. On
February 10, 2006, the trial court provided notice of intent to dismiss, see
Pa.R.Crim.P. 907, and granted counsel’s motion to withdraw. Muhammad
filed an objection to the Rule 907 notice and the motion to withdraw. On
June 29, 2006, the court dismissed Muhammad’s PCRA petition. On
September 13, 2006, the PCRA court issued an opinion and order confirming
dismissal of the petition and granting Attorney Engle’s motion to withdraw.
On September 29, 2006, Muhammad appealed this order, and this Court
affirmed. On November 13, 2007, Muhammad filed a petition for allowance
of appeal in the Pennsylvania Supreme Court, which the Court denied on
June 4, 2008.
On February 13, 2009, Muhammad filed a petition for writ of habeas
corpus and a petition for immediate hearing in the Pennsylvania Supreme
Court. The Court denied both petitions.
On April 24, 2009, Muhammad filed a pro se Motion to Take Judicial
Notice and an Independent Action; the trial court dismissed both.
Muhammad then filed a pro se PCRA petition on May 23, 2011, and the court
appointed counsel, Jonathan Crisp, Esquire, to represent him. On July 25,
-2-
J-S47033-16
2011, Attorney Crisp filed a “no merit” letter and a motion to withdraw,
which the court granted on August 9, 2011. On August 17, 2011, the court
dismissed Muhammad’s PCRA petition as untimely. Muhammad filed a pro
se appeal on September 12, 2011, and this Court affirmed.
Muhammad filed his fourth PCRA petition on May 31, 2013. The court
appointed Attorney Dana Wucinski, Esquire. Attorney Wucinski petitioned to
withdraw on September 23, 2013. The court granted her petition and issued
a Rule 907 notice of intent to dismiss. On February 11, 2014, the court
denied Muhammad’s PCRA petition. Muhammad appealed, and this Court
affirmed. See Commonwealth v. Muhammad, 2015 WL 7729668 (Pa.
Super. 2015).
Muhammad filed his fifth PCRA petition on March 9, 2015, in which he
claimed that based on the affidavit of co-defendant Michael Cameron he is
entitled to relief. He claims that this information came to his attention while
the denial of his fourth PCRA was on review in this Court. The PCRA Court
denied relief, and this appeal followed. Muhammad raises the following
issues for our review:
1. Whether the PCRA court erred in denying [Muhammad’s]
post-conviction petition as untimely filed when he
established that his after-discovered fact claim met the
plain language of the timeliness exceptions set forth in 42
Pa.C.S.A. § 9545(b)(1)(ii) and (b)(2), and [is] in accord
with Commonwealth v. Lark, 746 A.2d 585 (Pa. 1999);
2. Whether [Muhammad] is entitled to relief or remand for an
evidentiary hearing based upon the personal affidavits of
Michael Cameron and Michael Hill exonerating
-3-
J-S47033-16
[Muhammad] of the crimes charged which meet the
miscarriage of justice/actual innocence standard;
3. Whether the PCRA court erred by mis-categorizing Michael
Cameron’s affidavit as “previously litigated” and
misrepresenting the procedural history of this case as it
relates to the post-sentencing stage where conflict counsel
sabotaged his direct appeal.
Appellant’s Brief, at 4.
When reviewing an order granting or denying relief under the PCRA,
we must determine whether the decision of the PCRA court is supported by
the evidence of record and is free of legal error. Commonwealth v.
Melendez-Negron, 123 A.3d 1087, 1090 (Pa. Super. 2015). “The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record.” Id. (citation omitted). Further, we are
bound the PCRA court’s credibility determinations when they are supported
by the record. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa.
2009).
Our standard of review is well settled:
In addressing the grant or denial of post-conviction relief,
an appellate court will consider whether the PCRA court’s
conclusions are supported by record evidence and are free
of legal error. To be entitled to PCRA relief, a petitioner
must establish, by a preponderance of the evidence, his
conviction or sentence resulted from one or more of the
errors found in 42 Pa.C.S. § 9543(a)(2), his claims have
not been previously litigated or waived, and the failure to
litigate the issue prior to or during trial, . . . or on direct
appeal could not have been the result of any rational,
strategic or tactical decision by counsel. An issue is
previously litigated if the highest appellate court in which
the petitioner could have had review as a matter of right
has ruled on the merits of the issue. An issue is waived if
-4-
J-S47033-16
the petitioner could have raised it but failed to do so
before trial, at trial, . . .on appeal, or in a prior state
postconviction proceeding.
Commonwealth v. Keaton, 545 A.3d 1050, 1060 (Pa. 2012) (citations and
quotations omitted).
In his PCRA petition, Muhammad raised the following claim:
On November 6, 2014, Michael Cameron made an affidavit
detailing what transpired the night of the crime. Petitioner
obtained said evidence on or about November 11, 2014, via
family who run petitioner’s defense site. At that particular time,
an appeal was pending in the Superior Court which prevented
petitioner from presenting this evidence at an earlier time. See
Commonwealth v. Muhammad 353 MDA 2014. Said appeal
was denied on January 23, 2015, which triggered the (60) day
time period to present said evidence. This PCRA has been filed a
total of (34) days after the Superior Court had issued its order.
PCRA Petition, filed 3/9/15, at 10. Michael Cameron’s affidavit states that in
the course of a drug sale, “[t]he guy behind [Muhammad] said something
then pulled a gun out . . . . Then he began raising the gun at [Muhammad]
while his back was turned. I got scared cause I thought he was going to
either shoot [Muhammad] or rob him, so I pulled out my gun and started
shooting.” Affidavit of Michael Cameron, PCRA Petition, filed 3/9/15.
Cameron claimed police threatened him, and so he “decided to take a deal.”
Id.1
____________________________________________
1
Cameron’s affidavit is similar to the statement he made in 2003, that it
was he (Cameron) who shot first. See N.T. Sentencing of Michael Cameron,
10/2/2003, at 4-5.
-5-
J-S47033-16
In his first PCRA petition, Muhammad raised the issue of whether
Cameron’s statement amounted to after-discovered evidence that warranted
a new trial. There, Muhammad argued that since the jury was allowed to
convict him based upon being an accomplice or co-conspirator, Cameron’s
statement shows that he (Muhammad) never conspired or acted as an
accomplice with Cameron. Muhammad further stated that he was not
convicted of the charge of former convict not to possess a firearm.
Therefore, Muhammad claims, the jury did not believe he was a shooter and
only convicted him based upon the actions of Michael Cameron. As such,
Muhammad claimed he is entitled to a new trial to determine if he truly
conspired or worked as an accomplice together with Cameron to commit the
crime of attempted homicide.
The PCRA court determined that Michael Cameron’s statement did not
exculpate Muhammad for purposes of an after-discovered evidence claim.
On appeal, as we have noted above, this Court affirmed the PCRA court’s
order dismissing that first PCRA petition. See Commonwealth v.
Muhammad, 944 A.2d 796 (Pa. Super. 2007) (unpublished memorandum).
The Supreme Court denied allowance of appeal on June 4, 2008. See
Commonwealth v. Muhammad, 952 A.2d 676 (Pa. 2008). The issue,
therefore, has been previously litigated. See 42 Pa.C.S. § 9543(a)(3) (“To
be eligible for relief under this subchapter, the petitioner must plead and
prove by a preponderance of the evidence . . . [t]hat the allegation of error
has not been previously litigated or waived.”). See also 42 Pa.C.S. §§
-6-
J-S47033-16
9544(a)(3) (“For purposes of this subchapter, an issue has been previously
litigated if: . . . (3) it has been raised and decided in a proceeding
collaterally attacking the conviction or sentence.”).
With respect to Muhammad’s remaining two claims, we conclude they
are both waived. A PCRA claim is waived “if the petitioner could have raised
it but failed to do so before trial, at trial, . . . on appeal or in a prior state
postconviction proceeding.” 42 Pa.C.S. § 9544(b). Here, Muhammad raises
issues two and three for the first time in this appeal.
Finally, we note that we agree with Muhammad’s analysis of
Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000),2 and that his petition
was timely filed. However, this is of no consequence because his claims
____________________________________________
2
In Lark, our Supreme Court stated:
We now hold that when an appellant's PCRA appeal is pending
before a court, a subsequent PCRA petition cannot be filed until
the resolution of review of the pending PCRA petition by the
highest state court in which review is sought, or upon the
expiration of the time for seeking such review. If the
subsequent petition is not filed within one year of the date when
the judgment became final, then the petitioner must plead and
prove that one of the three exceptions to the time bar under 42
Pa.C.S. § 9545(b)(1) applies. The subsequent petition must also
be filed within sixty days of the date of the order which finally
resolves the previous PCRA petition, because this is the first
“date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2).
Id. at 588 (footnote omitted).
-7-
J-S47033-16
have been previously litigated or waived. See 42 Pa.C.S. §§ 9543(a)(3) and
9544(a)(2).
Order affirmed.
Judge Shogan joins the Memorandum.
Judge Jenkins concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2016
-8-