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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MUSTAFA ALI
Appellant No. 135 EDA 2017
Appeal from the PCRA Order November 29, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000683-2008
BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 11, 2017
Mustafa Ali appeals from the order, entered in the Court of Common
Pleas of Philadelphia County, denying his petition filed under the Post
Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”). After our
review, we affirm.
Following trial, a jury convicted Ali of two counts of first-degree
murder,1 two counts of robbery,2 and one count each of carrying a firearm
without a license,3 and recklessly endangering another person.4 Following a
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1
18 Pa.C.S.A. § 2502(a).
2
18 Pa.C.S.A. § 3701.
3
18 Pa.C.S.A. § 6016.
4
18 Pa.C.S.A. § 2705.
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penalty hearing, the jury sentenced Ali to life imprisonment. The court
imposed two consecutive life sentences, without parole, for the murder
convictions, and a concurrent aggregate sentence of 16 to 32 years’
imprisonment on the remaining convictions. On direct appeal, this Court
affirmed Ali’s judgment of sentence, and the Supreme Court of Pennsylvania
denied allowance of appeal.
Ali filed a timely pro se PCRA petition on August 28, 2012. The court
appointed counsel and Ali filed a motion to remove counsel and proceed pro
se. The court held a Grazier5 hearing, and allowed Ali to proceed pro se.
Following a hearing on Ali’s petition, the court denied relief. Ali filed a pro se
appeal and a Pa.R.A.P. 1925(b) statement of errors complained of on
appeal.
Ali raises the following issues for our review:
1. Was not Judge Minehart’s prolonging this matter an
inordinate delay and an abuse of discretion?
2. Did not the Judge abuse his discretion in considering
the Commonwealth’s answer, although it was filed
after the deadline set by him?
3. Did not the court err in ruling Appellant’s arrest was
not pretextual, lacking probable cause?
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5
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (holding when
waiver of right to counsel is sought at post-conviction and appellate stages,
on-the-record determination should be made that waiver is knowing,
intelligent, and voluntary).
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4. Was not Appellant denied due process when he was
denied an opportunity to challenge subject matter
jurisdiction?
5. Was not Appellant denied due process because of
prosecutorial misconduct?
6. Was not the questioning of Appellant after arrest on
a separate matter an unnecessary delay and a
Fourth Amendment violation?
7. Was not the court in error in ruling psychiatric
testimony was not allowed during the guilty phase?
8. Was not the court in error in ruling Appellant’s
statement was voluntary?
9. Was not the court in error in ruling Appellant’s
counsel was not ineffective for arguing multiple
defenses?
10. Was not the court in error in giving erroneous
first-degree murder instructions?
Appellant’s Brief, at 3-4.
To be entitled to PCRA relief, appellant must establish, by a
preponderance of the evidence, his conviction or sentence resulted from one
or more of the enumerated errors in 42 Pa.C.S.A. § 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.” 42
Pa.C.S.A. 9543(a)(3)-(4). An issue is previously litigated if “the highest
appellate court in which [appellant] could have had review as a matter of
right has ruled on the merits of the issue[.]” 42 Pa.C.S.A. §9544(a)(2). An
issue is waived if appellant “could have raised it but failed to do so before
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trial, at trial, . . . on appeal or in a prior state post [-]conviction proceeding.”
42 Pa.C.S.A. § 9544(b).
Our review is limited to determining whether the record supports the
PCRA court’s determination, and whether the PCRA court’s determination is
free of legal error. Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.
Super. 2005). The PCRA court’s findings will not be disturbed unless there is
no support for the findings in the certified record. Commonwealth v. Carr,
768 A.2d 1164, 1166 (Pa. Super. 2001).
After our review, we agree with the Honorable Jeffrey P. Minehart’s
determination that Ali is not entitled to collateral relief. We note that all but
two of Ali’s claims have been previously litigated or waived. Issues 3, 6 and
8 were previously raised and addressed by this Court on direct appeal,
Commonwealth v. Ali, 32 A.3d 280 (Table) (unpublished memorandum,
filed July 25, 2011), and our Supreme Court denied allowance of appeal.
See Commonwealth v. Ali, 613 Pa. 649 (Dec. 28, 2011). See also 42
Pa.C.S.A. § 9544(a)(2), (3). Ali’s claims in issues 4, 6 5, 7 and 10 have been
waived. See 42 Pa.C.S.A. § 9453(a)(3), (4).
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6
We note that Ali numbers this issue as 7 in the Argument section of his
brief. To the extent that Ali baldly asserts at the end of his argument that
trial and appellate counsel were ineffective for failing to argue that Ali should
have been tried in federal court since this involved a bank robbery, we find
no relief is due. The Commonwealth charged Ali with murder and robbery of
two victims, in violation of the Pennsylvania Crimes Code. Ali’s claim that
the court of common pleas had no jurisdiction is meritless. See
(Footnote Continued Next Page)
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Ali’s properly raised claims, issues 1, 2 and 9, afford him no relief. We
agree with the PCRA court’s determination that the disposition of Ali’s
petition was not subject to an unconstitutional delay, that the court’s
consideration of the Commonwealth’s untimely motion did not prejudice Ali,
and that counsel were not ineffective in for presenting multiple defenses at
trial. See PCRA Court Opinion, 1/11/17, at 6-7, 9.
Accordingly, we affirm the order denying Ali’s petition for post-
conviction relief, and we do so on the basis of Judge Minehart’s opinion. We
direct the parties to attach a copy of this opinion in the event of further
proceedings.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2017
_______________________
(Footnote Continued)
Commonwealth v. Fears, 86 A.3d 795 (Pa. 2017) (counsel cannot be
deemed ineffective for failing to raise a meritless claim).
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Circulated 07/24/2017 03:23 PM