Com. v. Saleem, M.

J-S01038-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
:
v. :
:
MOHAMMAD SOHAIL SALEEM, :
:
Appellant : No. 645 MDA 2016

Appeal from the PCRA Order March 24, 2016
in the Court of Common Pleas of Lebanon County,
Criminal Division, No(s): CP-38-CR-0000565-2014;
CP-38-CR-0001112-2014

BEFORE: GANTMAN, P.J., DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED MARCH 28, 2017

Mohammad Sohail Saleem (“Saleem”), pro se, appeals from the Order

denying his first Petition for relief filed pursuant to the Post Conviction Relief

Act (“PCRA”).1 We affirm.

In its Opinion filed on July 22, 2016, the PCRA court set forth the

relevant history underlying the instant appeal. See PCRA Court Opinion,

7/22/16, at 1-12. We adopt the PCRA court’s recitation for the purpose of

this appeal. See id.

Briefly, Saleem pled guilty to indecent assault and the summary

offense of harassment involving two victims.2 The victims were employees

of a small business owned by Saleem. Upon his guilty plea, the trial court

ordered an assessment to determine whether Saleem is a sexually violent

1
42 Pa.C.S.A. §§ 9541-9546.
2
See 18 Pa.C.S.A. §§ 3126, 2709.
J-S01038-17

predator pursuant to 42 Pa.C.S.A. § 9792. Saleem was thereafter found to

be a sexually violent predator. At sentencing, following a discussion

regarding possible deportation proceedings, the trial court sentenced Saleem

to an aggregate prison term of 21 months to 10 years. Saleem

subsequently filed two post-sentence Motions claiming ineffective assistance

of counsel, which the trial court denied without prejudice to Saleem for

seeking relief under the PCRA.

Saleem timely filed the instant pro se PCRA Petition, claiming that his

plea was unknowing and involuntary. In his Petition, Saleem asserted that

he had been promised that he would be deported if he entered a guilty plea.

The PCRA court appointed counsel to represent Saleem. At the evidentiary

hearing, Saleem’s PCRA counsel argued that the plea agreement required

the immediate deportation of Saleem, and that the Commonwealth violated

this agreement. The PCRA court denied Saleem’s Petition. Although Saleem

was represented by counsel, Saleem subsequently filed numerous pro se

documents, including a pro se Notice of Appeal, followed by a pro se court-

ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on

appeal. After a Grazier3 hearing, the trial court permitted Saleem to

proceed pro se, but with appointed stand-by counsel. Saleem subsequently

filed a revised Rule 1925(b) Concise Statement, which raised additional

claims.

3
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

-2-
J-S01038-17

Saleem now presents the following claims for our review:

1. Whether the evidence presented in the PCRA [c]ourt was
sufficient to establish that trial counsel was ineffective by
coercing or misleading [Saleem] to enter a guilty plea [that] was
not knowingly, voluntarily and intelligently entered?

2. Whether the PCRA [c]ourt erred in denying [Saleem’s] PCRA
Petition where a plea of guilty was induced[,] and [Saleem] is
innocent?

3. Whether the sentencing and PCRA [j]udge, Bradford H.
Charles [(“Judge Charles”),] demonstrated bias by statements
[he] made during the proceedings?

4. Whether PCRA [c]ounsel was ineffective in failing to
investigate and raise claims of arguable merit?

Brief for Appellant at 7.

Because they are related, we will address Saleem’s first two claims

together. Saleem first claims that the PCRA court improperly determined his

plea was not unknowing, involuntary and misleading. Id. at 16. Saleem

contends that his plea counsel coerced and misled him into pleading guilty,

based upon a representation that Saleem would be immediately deported to

Pakistan. Id. Saleem quotes a letter from his plea counsel, which stated

the following: “The District Attorney’s Office would also agree to include a

provision in the sentencing order that they have no objection to your

immediate deportation.” Id. Saleem contends that his counsel left him with

the impression that he would be deported immediately. Id. at 17. Saleem

further argues that his counsel rendered ineffective assistance by not

objecting or informing Saleem that he could withdraw his plea. Id. at 18.

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J-S01038-17

According to Saleem, the sentencing judge appeared to be unaware that

another judge had accepted Saleem’s plea, which was conditioned upon

Saleem’s immediate deportation. Id. at 20.

In his second claim of error, Saleem argues that the PCRA court

improperly denied him relief, where his guilty plea was “unlawfully induced

where the circumstances make it likely that the inducement caused him to

plead guilty and he is innocent.” Id. at 23. Saleem again asserts that he

was unlawfully induced to plead guilty with a promise of immediate

deportation. Id. Saleem argues that the sentencing judge disagreed with

the judge who accepted his plea. Id. at 24. According to Saleem, he is

innocent, and a surveillance video would prove his innocence. Id.

“In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (citation and

internal quotation marks omitted).

Where a PCRA court fails to support its holding with
sufficient explanations of the facts and law, or fails to provide an
adequate opinion addressing all of the claims raised in a PCRA
petition, including factual and credibility disputes, a remand is
appropriate.

Id. at 410.

“Allegations of ineffectiveness in connection with the entry of a guilty

plea will serve as a basis for relief only if the ineffectiveness caused the

defendant to enter an involuntary or unknowing plea.” Commonwealth v.

-4-
J-S01038-17

Mitchell, 105 A.3d 1257, 1272 (Pa. 2014) (citations omitted). To prevail on

a claim of ineffective assistance of counsel under the PCRA, a petitioner

must plead and prove by a preponderance of the evidence that counsel’s

ineffectiveness “so undermined the truth-determining process that no

reliable adjudication of guilt or innocence could have taken place.” 42

Pa.C.S.A. § 9543(a)(2)(ii). Specifically, a petitioner must establish that “the

underlying claim has arguable merit; second, that counsel had no reasonable

basis for his action or inaction; and third, that [a]ppellant was prejudiced.”

Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa. Super. 2014),

“Where it is clear that a petitioner has failed to meet any of the three,

distinct prongs of the … test, the claim may be disposed of on that basis

alone, without a determination of whether the other two prongs have been

met.” Commonwealth v. Steele, 961 A.2d 786, 797 (Pa. 2008).

“Where the defendant enters his plea on the advice of counsel, the

voluntariness of the plea depends on whether counsel’s advice was within

the range of competence demanded of attorneys in criminal cases.”

Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002)

(citations and internal quotation marks omitted). “[C]ounsel is presumed to

be effective and the burden of demonstrating ineffectiveness rests on

[a]ppellant.” Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa. Super.

2011). Additionally, “counsel cannot be held ineffective for failing to pursue

-5-
J-S01038-17

a meritless claim[.]” Commonwealth v. Hall, 867 A.2d 619, 632 (Pa.

Super. 2005).

Upon our review of the parties’ briefs and the certified record, we

agree with the sound analysis of the PCRA court, as set forth in its Opinion,

and its conclusion that Saleem’s claims lack arguable merit. See PCRA

Court Opinion, 7/22/16, at 15-21. Specifically, the PCRA court found that

there was no promise of immediate deportation in exchange for Saleem’s

plea, and counsel did not render ineffective assistance in this regard. See

id. We therefore affirm on the basis of the PCRA court’s Opinion with regard

to this claim.4 See id.

In his third claim, Saleem argues that the sentencing judge was biased

against him. Brief for Appellant at 26. Saleem directs our attention to the

following hypothetical, stated by the sentencing judge, as an example of

how Saleem could be permitted back into the United States, even after

deportation:

Let me give a hypothetical. Let’s say that [Saleem’s] ever in
Pakistan. He comes into knowledge about a terrorist. He goes
to the United States Consulate and says, I’ll give up this
terrorist. I’ll let you know where he is, I’ll let you know where
he’s staying, but you are going to have to let me come back and
live with my family in America. Now, when that happens—if that
happens—the federal government is going to say, hum, we can
take out a terrorist who’s dangerous to thousands of people and
may commit horrific acts and all we have to do is let this guy

4
We additionally note that, at the sentencing hearing, the Commonwealth
informed the trial court that deportation proceedings had been instituted
based upon two prior convictions for sexual assault, relating to different
victims, which took place in 2009. N.T., 6/3/15, at 5-6.

-6-
J-S01038-17

come back and live in America with his wife and children. That’s
going to be awful tempting.

Brief for Appellant at 26 (quoting N.T., 6/3/15, at 11-12). Saleem argues

that the judge’s comments demonstrate the judge’s prejudice against him.

Id. Saleem also directs our attention to the sentencing judge’s explanation

regarding the court’s concern that Saleem would not be incarcerated in

Pakistan:

[Saleem’s] not going to be put in jail in Pakistan. I can’t—I’m
speculating when I say that he might be viewed as a hero there,
but—and that is speculation. But I know that he gets off that
plane in Islamabad, the American officials are going to send him
out of a gate, take his handcuffs off, and say, bye, bye. And
he’s free as a bird. In fact, that I know and that’s not something
I’m comfortable with.

Brief for Appellant at 27 (quoting N.T., 6/3/16, at 16).

Our review of the record discloses that Saleem did not raise this claim

in his PCRA Petition or before the PCRA court. Accordingly, it is not

preserved for appellate review. See Pa.R.A.P. 302(a) (stating that a claim

cannot be raised for the first time on appeal).

In his final claim, Saleem argues that his PCRA counsel rendered

ineffective assistance for failing to investigate and raise claims of arguable

merit. Brief for Appellant at 29. Specifically, Saleem argues that his PCRA

counsel failed to raise the second and third claims Saleem now raises in this

appeal. Id. In support, Saleem baldly assets that his claims have arguable

merit; counsel had no basis for not presenting the claims; and the claims,

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J-S01038-17

and their cumulative effect, had an adverse effect on the outcome of the

proceedings. Id. at 30.

Regarding Saleem’s claim of ineffective assistance of PCRA counsel,

based upon an alleged promise of immediate deportation, we note that

Saleem challenged his plea agreement before the PCRA court. During the

PCRA proceedings, the PCRA court asked counsel, in Saleem’s presence, as

to the issues that Saleem sought to raise in the PCRA proceedings. N.T.,

3/24/16, at 3. Counsel indicated that Saleem sought to challenge only his

guilty plea as unknowing and involuntary, based upon Saleem’s belief that

the agreement provided for immediate deportation. Id. Thus, Saleem’s

challenge to PCRA counsel’s actions lacks arguable merit, as counsel, in fact,

challenged the plea agreement.5

Under these circumstances, we conclude that Saleem’s claim of PCRA

counsel’s ineffectiveness, based upon an alleged promise of immediate

deportation, lacks arguable merit. At the PCRA hearing, Saleem

acknowledged the Commonwealth’s agreement that it would not object to

deportation. N.T., 3/24/16, at 11. The Commonwealth complied with the

plea agreement. The Commonwealth, in compliance with the agreement,

lodged no objection to the immediate deportation of Saleem. Id. at 11.

Consequently, there is no arguable merit to Saleem’s underlying claim. See

5
Our review of the notes of testimony from the sentencing hearing further
discloses that the trial court correctly informed Saleem that it had no
involvement with federal deportation proceedings. N.T., 6/3/15, at 19, 21-
22; see also PCRA Court Opinion, 7/22/16, at 15-20.

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J-S01038-17

Steele, 961 A.2d at 797 (stating that where a petitioner fails to meet any of

the three prongs of the ineffectiveness test, the claim may be disposed of on

that basis alone).

We further conclude that Saleem’s claim of ineffective assistance,

based upon PCRA counsel’s failure to allege bias by the sentencing judge, is

waived, based upon Saleem’s failure to raise the issue before the PCRA

court. See Pa.R.A.P. 302(a) (stating that a claim cannot be raised for the

first time on appeal); see also Commonwealth v. Henkel, 90 A.3d 16,

29-30 (Pa. Super. 2014) (en banc) (finding ineffective assistance of PCRA

counsel claims cannot be raised for the first time on appeal). We therefore

affirm the Order of the PCRA court.

Motion to Expedite denied. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/28/2017

-9-
 Circulated 03/06/2017 12:09 PM

ENTERED\ f-i;_t:_J
CLERK OF COURTS
IN THE COURT OF COMMON PLEAS LEBAN.0:NA.00.UNZl'Y
PENNSYLVANIA
Zul5 JUL 22 Pf'l 3 21
CRIMINAL DIVISION

COMMONWEAL TH OF NO. CP-38-CR-565-2014
PENNSYLVANIA CP-38-CR-1112-2014

v.
MOHAMMAD SOHAIL SALEEM

APPEARANCES

Jared Hinsey, Esquire For Commonwealth of Pennsylvania
DISTRI.CT ATTORNEY'S OFFICE

Mohammed Sohail Saleem Pro Se

OPINION BY CHARLES, J., July 22, 2016

On March 24, 2016, we presided over a Post-Conviction Relief Act

(PCRA) Hearing in the above-referenced case. Prior to the hearing,

Mohammad Sohail Saleem (hereafter "DEFENDANT"}, through his counsel,

identified only one issue that he intended to pursue via his PCRA Petition:

Whether DEFENDANT's guilty plea counsel was ineffective for telling

DEFENDANT he would be immediately deported to Pakistan? After

conducting a hearing, we rejected DEFENDANT's claims. Thereafter, he

filed an Appeal. After discharging his counsel and choosing to represent

himself, DEFENDANT filed a pro se Statement of Errors Complained of on

Appeal that attempted to raise new issues. We issue this Opinion under

Pa. R.A.P. 1925 in order to address the issue that DEFENDANT did properly

I
 raise at the time of his PCRA hearing and to explain. why we will not address

-thcse issues DEFENDANT now wishes to add.

I. PROCEDURAL BACKGROUND

DEFENDANT was charged in two 2014 dockets with various sexuatly-

related offenses. All of the offenses involved sexual assaults committed by

DEFENDANT upon women who were employed by a small business owned

by him. ·with respect to Docket CR-565-2014, the Commonwealth charged

DEFENDANT with sexually assaulting a woman who we will call J.J. by
.......
---···--·---·· -
Rissmg her, grabbing her, fondling her and eventually ejaculating on her.

On Docket CR-1112-2014, the Commonwealth charged DEFENDANT with

groping the breasts of another employee who we will call C.M.

Following the filing of the 2014 charges, the Commonwealth filed a

. Notice. under Pa.R.Ev. 404(b). In its Notice, the Commonwealth referenced

two prior incidents of sexual abuse committed by DEFENDANT upon other

employees and asked that they be admitted to establish motive, intent and.

common scheme. In its Notice, the Commonwealth indicated that

DEFENDANT was convicted of the prior sexual assaults in 2009.1 A hearing

was conducted on October 29, 2014 regarding the Commonwealth's Rule

404(b) motion. As a result of that hearing, we determined the following

commonalities with .respect to DEFENDANT's two prior victims and the

victims of the above-referenced charges:

.•.. ·-- -~- -- . ..., ,:;- .. ·.- ~· __ : • ·

I See Docket CP-38-CR-386-2009.
(1) All of the women were Caucasian;

(2) All of the women were relatively young;

(3) All of the women were employed by DEFENDANT at his business;

(4) All of the women were financially dependent upon DEFENDANT;

(5) With respect to each victim, DEFENDANT -groped, grabbed and/or

fondled her breasts;

(6) Each woman testified that DEFENDANT made a habit of hugging her

in a "bear hug" that made her uncomfortable;

(7) Each of the women described that incidents of sexual misconduct

occurred in a room known as the "back room" of the Quick Cell facility.

Based upon all of the information presented, we determined that the

incidents relative to all four victims were sufficiently similar so as to be

"probative of DEFENDANT's motive, opportunity, intent, preparation, plan

and knowledge." We consolidated Dockets 565-2014 and 1112-2014 for

the purpose of trial. However, we could not decide based on the record

before us whether the relevance of the prior victims' testimony would

outweigh the prejudice that would be caused by such testimony. We

therefore deferred a final decision regarding admissibility of the prior

victims' testimony until after the testimony of J.J. and 8.8. could be

presented at trial. (See Court Order dated 10/29/2014).

After numerous continuances, the above-referenced dockets were

eventually listed for trial during the April 2015 term of court. On April 21,

2015, DEFENDANT entered a plea of guilty. Because DEFENDANT's

3
offense.s were within the ambit of Pennsylvania's .Megan's . Law, he was

ordered to undergo an ·evaluation by the .sexuat.ottenders Assessment

Board.

On June 3, 2015, weconducted a sentencing hearing at which we also

addressed DEFENDANT's status under Megan's Law. Relying upon the

report of Dr. Robert Stein, we declared DEFENDANT to be. a sexually violent

predator and wedirected-ntm. to -comply with.,the+reg:istrati~n- and reportirl'g·

requirements applicable to sexually violent predators· by Pennsylvania's

Megan's Law . . . ·

With respect to sentencing, the Commonwealth communicated that it

had nol prossed Counts 1, 2, 5_and 6 on D.ocket.565-2014 .. Effectively,- we

were. asked to sentence DEFENDANT on two counts of Indecent. Assault

relating to .J .-J. and an additional count of Indecent.Assa ult relating to 8. 8.

We were told that the sentencing ranges applicable to the two Indecent

Assault charges on Docket 565-2014 were: RS-9.and the sentencing range
- . . . .. -· .•.

applicable to Docket No. 1112-2014 was: RS-3.

At sentencing, we were told that deportation proceedings had been
commenced against DEFENDANT. (Sentencing N.T. 4). We were told by

the prosecutor: "l don't think that there's anything that you can do that will

keep him here in this country at this point." ·(Sentencing N.T. 7). · We were

also told by victim 8. 8. that she vehemently opposed a resolution that would

permit DEFENDANT to return to Pakistan without serving significant

incarceration .. (Sentencing N.T. 13-14). ·
 This Court entered into an exchange with counsel regarding

deportation. We expressed our sympathy with the position articulated by

the victim. We stated:

The Court: ... He gets deported next week, he will have
done three plus months in prison. And he's
going to get off the plane in Islamabad and the
American officials are going to say, bye-bye.

Mr. Grenoble: I don't know that to be fact, your Honor. I
·don't know what the 'consequences Will be.' · ·

The Court: He's not going to be put in jail in Pakistan. I
can't - I'm speculating when I say that he
might be viewed as a hero there, but - and that
is speculation. But I know that when he gets
off that plane in Islamabad, the American
officials are going to send him out the gate,
take his handcuffs off, and say, bye-bye. And
he's free as a bird. In fact, that I know and
that's not something I am comfortable with.

(Sentencing N.T. 16).

During the sentencing proceeding, another exchange occurred that

DEFENDANT now cites as "proof" that this Jurist was prejudiced against

him. That exchange involved the possibility of DEFENDANT's return to

America after following deportation. The prosecutor posited that it might

be in the best interest of Pennsylvania for DEFENDANT to be deported

rather than have the taxpayers pay for his incarceration in a state

correctional facility for up to 25 years. She stated: "But I also feel like we

are doing a service by being able to get him out of here and never letting

him come back .... There's no reason why he will ever be able to come back

to this country again regardless of the fact that his wife and children still

5
 reside .here." (Sentencing N.T. 11). We responded to :the ·prosecutor's

· statementtnat+no reasont.would ever exist:that:.woald'-allow:DEFENDANT -

to return to the country by stating:

Let me give you a hypothetical. Let's say that he's over in
Pakistan. He comes into knowledge about a terrorist. He goes
._ to the .United States Consulate and he saya- !'·II give up 'th is
terrorist -I'lt let you 'know where he is;-1'11 let you 'knew where
he's staying, .but.you'rs going to have to Jet.me come back and
live with .my family in America. Now, when that happens - if
that happens»- .thefederal goveriiment-is going to-say, hum, we
···can take-out a terrorist who's dangerous to thousands of people
and may commit horrific acts and all we have to do is let this
guy come back and live in America with ·his w,ife and children; -
. . That's going -to :-b$ .:·~Y{f_ul - tem~Hng. ·That's .. ssas to -be awf.u~L ·
tempting.

(Sentencing N.T. 11-12). Before ending the discussion, we again

emphasized that our example was merely hypothetical. (Sentencing N. T.
, .. : ~-- -·-:- .·. :,:...... . - ;. . . .. : ,. . .

12-13). Nevertheless DEFENDANT now claims that we classified him as a

terrorist.
. . .. .
. Ultimately; we made the decision to sentence DEFENDANT without
. .

- regard-to ·,possible deportation consequences. Before imposing sentence,

th is Court stated:

If I am looking at this as I would any other case and I have a
gentleman who has two prior convictions for the same thing, is
- before- me- for two sexual assaults, and I have a victim here
· saying, lock him up and throw away the key, do you think I am
going .to -give bottom of the standard range under those
. , .clrcumstancesv If you do, you don't know me well enough. So
c-!'. fQrgef-:abo,ul:.H.akistan. If I am looking .at th-is as-I would· any.
other case, he's-not looking at the bottom of the standard range .
. . · ... He's looking at the top of the standard range ..
We concluded by stating:
.. .... ~ •·•,·,.:;-:'..,-::.'.-:
,.." . ,·.: '. ..•. :· .: ...

-And+ thlnkin this case I have to. be wiseenough to .know -· "
----0• -

· ..-. - · ·-- --···-·-----
,; ~ .....·:·
'
• j - --\I -:.--~-·"'·~-
'n1~.:..;,_
", .,:,;--;_::;; ': ..:;.\:f'J ~-t--··ther.o- ..~ -:e- ·J· us·~
'l ,-J.-, ·~ u;_.•,.-~-r,e rta n th"1ngs
•: . I - can
.. r~~;;ti._f.r.l•:: .J-: ;,.: . not
: ·. _.' ':.•-:.cO·
." '1 · ... "·t,r·ol·.:·.·:,,'···~l''!\·
.
,.~,-11.,n· ' .·-.d- ._.:.·::1..-:.~·_
.
,f'1·,r.-:,;>;.·C!.t.:·,:.::a, ..:n_, ·d-:_. ··,-··:~.,.:- ,...,:-:· .-
:tP: ·L .' ·!.~':·/
 foremost, among those is what the federal government decides
to do with its immigration policies. They don't give a rip what I
say and they're going to do what they're going to do regardless
of what I do.
So I am going to analyze this case just as though Mr.
Saleem were an American citizen and just as though Pakistan
and ICE had nothing to do with this situation. And when I
analyze this case in that way, I have to consider that Mr. Saleem
is a serial sex offender, that he did this before in 2009, that he
had rehabilitative opportunities to see the error of his ways and
modify his behavior and instead of doing that, he choose to
victimize additional ladies. I have to look at the fact that he was
the -owner of a business and th'ese ladiesworked forhim. They
were under his supervision. He had a degree of control over
them, economically, if no other way. I have to look at the nature
of the indecent assault. There are indecent assaults and there
are indecent assaults. The conduct is rather broad. And this is
on the worst side of the continuum and not the better side of the
continuum if there is such a thing. And I have to look at the fact
that there are two separate victims of Mr. Saleem's conduct.
And I am going to fashion a sentence based on what is now
before me just as I would any other person under similar
circumstances without regard to the immigration implications of
what's going to happen thereafter. At that point, ICE will do
what ICE will do and I have to recognize that there's nothing I
can do about their decision making process.

(Sentencing N. T. 19-20).

Ultimately, we sentenced DEFENDANT on Docket 565-~014 to serve

an aggregate sentence of 18 months to 8 years. On Docket 1112-2014, we

sentenced DEFENDANT to serve a consecutive sentence of 3 months to 2

years. DEFENDANT's total sentence was therefore 21 months to 1 O years.

All of DEFENDANT's individual sentences were within the standard range

governing his charges.

On July 3, 2015, DEFENDANT filed a prose Post-Sentence Motion in

which he challenged the effectiveness of his counsel. We denied that

motion and articulated that.his claims would better be addressed under a

7
 PCRA Petition. On July 31, 2015, DEFENDA_N_T_aga.inJHes:L~.PtO se Post-

Sentence ·Motion\,.'· Because · his second motion also challenged thE!

. effectiveness . of counsel, we . again declared that DEFENDANT should

present his claims via a PCRA Petition.

Following our. denial. of DEFENDANT'.s untimely Post-Sentence·

Motion, DEFENDANT hired Attorney Kristen .Weisenberger .. On September

1, 2015, DEF.EN DANT. filed .a.counsered r : RCRA . .Petition.~,),The ·. sote .lssue

raised in the PCRA involved the .voluntariness of DEFENDANT's plea.

--DEFENDANT .argue9:~tn.~~t.·his-·plea was .PI~.c:JJ.9 . ~te_d··u~on a··promi~~..:Jbat he__

would be deported to Pakistan. · When. deportation. did. not· occur..

DEFENDANTargued:tha.Lhe was deprived of the . .be.nefitof his .bargain. He

also argued that his -guilty plea counsel was ineffective for leading him to

betleve-that.deportatlon would occur. This Court determined that the issues

raised by- DEFENDANT triggered the need :for a hearing .. Eventually, a

hearing was-conducted on March 24, 2016 regarding DEFENDANT's PCRA
-:

claims.

As _.is the custom of this Court, -we asked DEFENDANT's counsel to
. .

· artlculate.ln h.er ...client's presence all grounds that were being pursued in

the PCRA Petition. Attorney Weisenberger focused .upon the argument that

DEFENDANT's_ plea ·agreement called for immediate deportation and the

Court's sentence violated that plea agreement. She stated:

We believe Mr. Saleem's guilty plea had not been entered
.... __ .. knowingl.y and. voluntarily and intelligently ·based upon the
ine.ffective--assista nee of counsel under the _believe that he had. -·
i..,';:+.~;:;-~_:::"-'- ,~-"..;":;:,t;,;la~p.L-aa:'.!'ag.ne.,ement to be immediately deported -to Paklstan.«: .. : - :

0
 ,./

(PCRA N.T. 3). After hearing testimony on this issue from DEFENDANT,

Attorney Megan-Ryland Tanner and Attorney David Warner, we issued a

Court Order .to deny DEFENDANT's PCRA relief. In that Court Order, we

stated:

AND NOW, to wit, this 24th day of March, 2016, after
hearing, the Court reaches the following findings of fact:

A. The Defendant entered a plea of guilty before this
Gou it on April 2-1, '2015. The :plea was entered pursuant to a
plea agreement whereby the Commonwealth agreed to waive
applicable mandatory sentences. In return the Defendant
agreed to enter a plea of guilty to two misdemeanor counts of
simple assault and the Defendant agreed that the sentence on
those counts would be totally in the discretion of the Judge.

B. As part of the plea agreement the District Attorney's
office agreed that it would have no objection to deportation and
it further agreed that it would not take any action to prevent
- -deportation. However, immediate deportation was- NOT a part
of the parties' plea agreement. In fact, the District Attorney's
office took the position that it could not control deportation and
that deportation was a collateral consequence totally within the
purview of the federal government. Moreover, the Defendant's
attorney also stated that he told his client that deportation was
not a part of the plea agreement and that the District Attorney's
office made no promises regarding deportation.

C. To his credit, the Defendant's attorney wrote a
comprehensive letter to the Defendant dated April 13., 2015.
This letter set forth in concise and understandable language
exactly where the Defendant stood with respect to the charges
he was facing. The letter sent by the Defendant' counsel
communicated that there was no guarantee that the Defendant
would be deported. Specifically, the letter stated: "There is no
way to determine how much of your sentence you will have to
serve before you are deported. It is possible that you would
have to serve your entire sentence, possibly 50 years or more,
before, you are deported."

"'' ·:· -D.. In addition to the above, the Defendant hired his
own immigration counsel and met with that immigration counsel
;0.<: 0i._:,£:c-;:.:.:. :r,-,/:;:,;,: ::-00 .numeroua-oeeastons. The Defendant's -guilty plea counsel

9
 .. __ --~- was.nct.an.immlqratton expert and advised the . Detendant.ot this
fact. · ·

E. vt« find the Defendant's counsel's version of
discussions with his client to be credible .. We also find the
defense counsel's testimony was corroborated by the written
. ,-a· _ - - -: -,"--letter he provided to the Defendant dated April 13, 2015. · .Based
in no small part on the defense counsel's credible testimony and
the testimony of the prosecutor, we determine- as a· fact that -
immediate deportation was not a part of the parties' bargain for
. exchange during the plea bargain process. ·

, · F>· The issue - of deportation · 'arose -at the -tlme -of>· -
sentencing. After a lengthy discussion the Court ultimately
decided . to sentence the Defendant .wlthout regard,- to any
possible deportation consequences. Essentially we treated the
:---Defend-ant-exactly as we would have treated-an American citizen
if that - citizen were . before this Court under identical
circumstances .

. .. c--.,.c, G, . In reviewing the totality of lntormation .presented -at
__

today's hearing, we conclude unequivocally and without
hesitation that Attorney David Warner was not ineffective in his -
representation of the Defendant. In fact, we perceive ·of very
little else -that Attorney Warner could --p·os·s·Ibly: have·::done· re
_ outltne.opttons for the Defendant and the risks of pursuing each
option. · ·

: · H;
We find the Defendant's guilty·p1e·a"was knowingly,·
voluntarily and intelligently entered and his effort today to
-- ---disavow the voluntariness of that plea is rejected+: ·,----., ._- ·
. . . . . . . . '

- : Accordingly, the Defendant's Motion for Rellef-urrder the
Pennsylvania Post Conviction _ Relief Act is denied. The
Defendant-is · advised that he has thirtr(-30) 'days · from today's
date in which to appeal the decision we have rendered today.

A copy of. this Order is to be provided to the District
Attorney of Lebanon County, to the Defendant's PCRA·counsel, .: -·
and to the-Defendant by certified mail, return receipt requested.

BY THE COURT:

Isl Bradford H. Charles

BRADFORD H. CHARLES

1 /"\
 Following our March 24, 2016 Court Order.. DEFENDANT filed a flurry

-of pro se documents. Among those documents was a Notice of Appeal. On

April 18, 201'6,- we issued a- Court Order noting that DEFENDANT was

represented by privately-paid counsel. As a result, we declined to entertain

any of DEFENDANT's pro se motions other than his Notice of Appeal. We

also issued an Order under Pa.R.A.P. 1925 directing DEFENDANT to

identify the issues he intended to raise on appeal.

On May 4, 2016, Attorney Weisenberger filed a Motion to Withdraw

as Counsel. On May 9, 2016, DEFENDANT filed his -initial Statement of

Errors Complained of on Appeal. In that Statement, he raised numerous

additional issues that had not been raised at the time of the PCRA Hearing,

including the following:

• That his PCRA counsel was ineffective;

• That video evidence existed that would prove his innocence;

• That his prior counsel was ineffective for failing to rebut the

Commonwealth's Megan's Law assessment;

• That the Judge should have disqualified himself.

None of the- issues contained in DEFENDANT's first Statement of Errors

included the issues that had been litigated in the PCRA hearing.

On June 14, 2016, we conducted a Grazier hearing to determine

- whether DEFENDANT wished to represent himself. After conducting a

colloquy with DEFENDANT, we learned that he did in fact wish to represent

-_-_ himself. However, he also asked that standby counsel be appointed. We

11
 therefore appointed the Lebanon County Pu.b.JiQ.D_e.tell_d~r'.JLQ.ttite]p serve

· as .standby counsel. -At the-request of the Public Defender, we .afforded

DEFENDANT wlthadditlonal time to file an Amended Statement of Errors

Complained of on Appeal.

On July -10, 2016, DEFENDANT filed a second Statement of Errors

Complalned.of .on Appeal.'. In his second Statement of Errors, DEFENDANT

stated that the court's dectsionto ·deny his PORA teliefwas· "arbitrary and

capricious." He also complained about the Court's /'.interpretation" of a

letter introduced- at the PCRA hearing through his prior counael, Be..c.a.u.se ..

these issues arguably implicate the decisions we rendered following the

PCRA hearing, we will address via this Opinion our reasoning with respect

to ,DEFENDANI's PCRA. - However, DEFENDANT'S revised Statement of

-v. ... Errors alsolncluded numerous other issues--that-were-not-r-aised or litigated

. . at the timeof the PORA-hearing. Once again, t>EFENDANt argued that his
. . . . f
PCRA- ·counsel was- ineffective, that his guilty plea counsel· should have

... challenged the ,Megan'.s Law-aesessment, -that· the -Judge .. should· have

disqualified himself, · that a video hard drive would have proven his

innocence,· and that some-sort ct civil proceeding is pending. For reasons

we will articulate below, we will not address the issues that DEFENDANT

declined to raise at the time of his PCRA hearing.

:·;_·• ..... ,... ... . . . ..
•
,·•
~; ••.• ·:·.; ,•. ,'-J.'":"..::l' .• ...ii:.. ,- ....-........ ...,..~._ .... , ..... • •• ··.,_ •• . _-;,· .. • ... ·-··-··
II. ISSUES THAT WERE WAIVED

Prior to the commencement of any PCRA hearing, we routinely ask

counsel to identify in the presence of the client what issues are going to be

litigated during the PCRA hearing. We undertake this action for three

reasons:

(1) To focus the testimony and evidence on the issues actually in dispute;

.and

(2) · To afford DEFENDANT with the opportunity to correct and/or clarify

what counsel indicates. if additional unarticulated issues are sought

to be raised; and

(3) To prevent incessant litigation by defendants who desire to serially

raise additional PCRA issues as time marches on.

lrrthls easer DEFENDANT's -counsel was asked to articulate all issues
sought to be addressed via the PCRA hearing. Counsel noted only one -

that DEFENDANT's guilty plea was not voluntary due to ineffective

-assistance--of counsel in· leading DEFENDANT to believe that he would be

immediately deported to Pakistan. It is this issue that we addressed during

the March 24, 2016 hearing.

After we- denied DEFENDANT's PCRA claim; he subsequently

attempted to raise numerous other issues. By failing to raise and pursue

these Issuesat the time of the March 24, 2016 PCRA hearing, DEFENDANT

has waived his right to pursue those issues via appeal.

13
 ItJs.axlomatlo.that _PCRA claims mustbe .assertedwith.speciflclty .

. See·· Commonwealth v;~.-Reyes,· 870 A.2d aaa··(Pa·;··,:2005). ·' Vague ,or

. .. conclusory allegations. are not preserved for ·. appellate review.

Commonwealth·v. Lambert, 765 A.2d 306 (Pa.Super. 2000). · 1n fact, our

Gommonwealth'-s ·highest ·court· has declared· "it-ia-wel t-setttsdthat claims

raised outside-of .a court-authorized PCRA -Petition are subject to· waiver

regardless of whether -the Commonwealth -ralses-: a timely and .stic.kin.g~:_with.;.<:.,We .... ·-
indicated that we believe Mr. Saleem's guilty plea had not been
. . ·,,, :· ,·_ . ·--~ . :ente red,:k·nowi ng ly . a n d i nvo I u nta ri I y and .tnte lligentl~cb'aserkapo n .
. . the ineffective assistance of counsel under the beiief that he·
,.had. a.plea -aqreernent to be immediately deported to Pakistan.
That obviously did not occur in that he's still here. And he is
contesting.that he only entered the plea upon the faulty advice
of counsel that he was going to be immediately deported. I thin.k
that's the basis of it. · · ·- · --·- · ·... : .. ··, -· -·- ·

On the issue ·raised by DEFENDANT, we.. heard testimony from three

witnesses, including DEFENDANT himself. Among the evidence-that we
/ ..

heard was the following:

e . The·. written---guiltt=~lea · colloguY- set -Iorth ·DEEE.N.D.ANI'·s pJea

agreement. That plea agreement was: "Commonwealth to nol pros

'; . Counts 1, 2, -5, 6 at sentencing. Defendant to . plead open .

. · .,,i:.,Commonwealth has no objection to immediate deportation." (Exh,

2 and 3; PCRA N:T. 11).

•---During -DEFENDANT's guilty plea,· he was verbally advised by

· former President Judge Robert J. Eby that 'hls ·p'h:!if agreement

-called for -hlm to enter an open plea -'!so··that:you· can-receive any
• ' l i •.

sentence up to the ·maximum sentence which the iaw permits." :
-~ .. :(Plea--N.T;·2);: Judge Eby also arttculated-that-the Commonwealth
i

wo_uld have no objection to immediate deportation: '(Plea N.T. 2) .

. However, there was no promise that DEFENDANT would be
..
immediately deported. .. · ····
·.;:..::::.: ': ;": . ,:.::·:-:>:.: . ; ·.~.,: ... :':"~.-r:~;.:~:;..- ..:;.::·.,·:.- :.:::-. :-:~_:: -, ·.. .::·:.: ·- . ~ ·. ·······.

,~-- ·:Megan Ryland-Tanner was the · prosecutor - 'assigned· to

.. -~ ' - -.:... .,·-·_ .. D~-F'ENOANT'$ case, .she negotiated the possibility· of a plea on

1 r..:
 behalf of the Commonwealth. (PCRA N.T. 16). Although Ms.

Tanner believed that DEFENDANT would be deported shortly after

sentencing (PCRA N.T. 18), she was very clear that the plea

agreement did not require deportation. (PCRA N.T. 19-20).

Attorney Tanner was asked a direct questlontrorn the Court:

The Court: -- Was immediate deportation· a part of the
plea agreement that you entered into?

·· Ms. Tanner: It was not from my perspective because,
again, I don't have control over what the
feds do. So I wasn't going to be the one
to say this can't happen, but at the same
time I don't have control over what they
choose to do.

The Court: But I guess what I am asking, so I am
very clear here, was there-ever a-plea
agreement that you made with Attorney
Warner that said, a condition of this plea
of guilty is that the Defendant ·will be
deported?

The Witness: No.

(PCRA N.T. 22).

• David Warner, Esquire was DEFENDANT's counsel when he

- decided to plead guilty. Attorney Warner testified" that he

requested that Attorney Tanner agree to· lrnmediate deportation.

However; Attorney Warner emphasized: "And from that first

conversation, she [Attorney Tanner] indicated to me, I don't have

the ablllty to control that, I can't really help or obstruct that in any

17
 -, way, that's In control of the federa_f _gove.rnrnent.-And that was her

.position throughout." (PCRA N.T.- 26)i~,-

• Attorney Warner recommended that DEFENDANT hire an

. immigration attorney at Attorney Warner's request. Before

-entering a plea of -guilty, DEFENDANT met with· and received

advice from . an immigration attorney regarding·· his. immigration

issues. (PCRA N.T. 9-10).

• . Attorney- Warner-acknowledged that·-DEF-ENDANT's·u·number··one

··· ·:--· =: g:o_al"--wa.5=-fo he ·depott.ed~However,: ·A-t-to-r-ne-y \l\ta#rnr tes-Hfied

I continued to assure him throughout the process that I
couldn't control that. He asked me numerous times, get
me deported; do whatever you can, talk to someone, call
someone. And I continued to tell him, I can't do anything,
.z.z.:': __ :~.::.th_eLe._'_s -nothing I can do to expedite that process to make
that happen more quickly. It's completely outsJde my
control. ·· · .. · · · · · ·

. (PCRA N.T. 28-29).

• Attorney Warner wrote a letter to DEFENDANT that was admitted at

the PC.RA hearing as Exhibit· No. 1. This letter -ccrnprehenstvety

outlined all of Mr. Saleem's options for him. · Attorney Warner

described the · sentencing ranges. appllcable ·to-· DEFE'N DAN T's

charges and told DEFENDANT: ·111 cannot tell-you what your exact

· .- · sentence will be, but I would expect there to be some period of

incarceration due to your prior record." (Exh. 1; PCRA N.T. 33}. · ·

- - •' ·Attorney·-warner never advised DEFENDANT'th~t ·ne ·would be

immediately depo_rted .es a result of his guilty plea. · (PCRA N.T. 34).
 _ In rendering our .declsion regarding DEFENDANT's PCRA. claim, we

placed weight upon the letter-written by Attorney ;Warner that-·was marked

as Exh. 1. Among other things, the comprehensive letter outlined the plea

agreement for DEFENDANT. Attorney Warner wrote:

If you agree to plead guilty, the District Attorney's Office will
waive the mandatory minimum and will not seek to enforce it.
You would plead open to these three total counts with the Judge
to sentence you on those charges. The standard range on the
charges would be probation to 9 months in jail and probation to
3 months in jail. The District Attorney's office would also agree
to include a provision in the sentencing -order-that they would
have no objection to your immediate deportation. I cannot tell
you what your exact sentence would be;·but I would expect that
there would be some period of incarceration due to your prior
record.

(Exh. 1). The Jetter written by Attorney Warner is completely consistent

- with his -testlmony and the testimony of Deputy-District Attorney Tanner.

Simply stated, the Commonwealth promised not to inject itself into the

deportation process, but it never promised that deportation would occur.

Attorney Warner truthfully communicated this information to DEFENDANT,

and he chose to enter a plea of guilty knowing all of his options.

We have little doubt that DEFENDANT hoped to be deported. We also

have little doubt that he was surprised when the victim appeared to

complain about the prospect of deportation after only three months of

incarceration .. -He may have even been hoping for a sentence at the bottom

of his standard range. Whatever DEFENDANT may have hoped does not

chanqethe clear reality of what occurred. DEFENDANT voluntarily entered

an open plea. of :guilty knowing that he could be sentenced to jail and

19
 .. knowing . that deportation was not a certainty. The fact . that .eventsdld not
proceed. asDEFENDANT hadhoped or even.antlclpated-does-not-ehanqe

the fact that he knew the implications of what he was facing by pleading

guilty and nevertheless chose to do so.

· -· -The gravamen of DEFENDANT's PCRA-is that his· ·guilty plea counsel

was ineffective.· .As we rhetorically asked during the PCRA, "What did

Attorney Warner do .wrong?" Attorney Warner truthfully described to

DEFENDANT what the plea agreement was. Attorney Warner-truthfully-told

DEFENDANT --that-·--the_- -Commonwealth· wo!,lld -_ have· r:1-0 o_b_j_e.c.ti:o.n to.;

deportation, but he could not promise or guaranty a prompt deportation.

Attorney Warner wrote a +etter .outlining all of DEFENDANT's opti.ons. He

even - advised DEF EN DANT that the most likely outcome would be a

sentence that called-for incarceration. We are hard pressed to discern how

Attorney Warner provided. ineffective representation. To the contrary,

Attorney ·warner did everything that could reasonably be expected· of

. -counsel representing a defendant in a guilty plea.

IV. CONCLUSION

DEFENDANT raised one issue via his counseled PCRA Petition. That

petition was predicated upon two principal assumptions:

· -··· :· · :- {1) c: -'Thata:-p1e·a.agreement existed that called for DEFENDANT to receive

immediate deportation; and

. c·..... -·- (2) -- That~his guilty -plea counsel was ineffective in providing advice ·prior

to his decision to plead guilty.
Based upon the totality of the evidence presented at the PCRA hearing, we

concluded and still conclude that no plea agreehienftequiring-,deportation

existed and that DEFENDANT's guilty plea counsel provided completely

accurate and appropriate advice both verbally and in writing.

Having concluded that the pillars upon which DEFENDANT's

argument was constructed are made of clay, his PCRA claim for relief can

and must crumble. Accordingly, we conclude that DEFENDANT's PCRA

Petition was properly denied and we send this Opinion to the-Pennsylvania

Superior Court in support of our opinion that - DEFENDANT judgment of

sentence should be affirmed.

21