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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
MUJAHID MUHAMMAD, :
:
Appellant : No. 126 EDA 2018
Appeal from the PCRA Order December 5, 2017
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006525-2010
CP-51-CR-0006526-2010
BEFORE: LAZARUS, J., OLSON, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 12, 2019
Mujahid Muhammad (Appellant) appeals from the December 5, 2017
order dismissing his petition filed under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
This case involves a dispute during a basketball game that devolved
into a shooting. We begin with this Court’s summary of the facts in
Appellant’s direct appeal:
This case began over an argument about the rules of a
pickup basketball game. At around 6:30 p.m. on March 2, 2010,
Anthony Ellerbee, his cousins Keith and Zsaron Simpson, and a
friend arrived at World’s Gym on Roosevelt Boulevard in
Northeast Philadelphia to play basketball. Under the rules of the
game, the teams counted all made field goals as one point.
During the first game, Appellant, who was waiting to play, began
to yell from the sideline that three-point field goals should count
as two points, to speed up the pace of play. After the first game
was over, Appellant and Zsaron Simpson got into a verbal
altercation near center court. Ellerbee stepped in between the
* Retired Senior Judge appointed to the Superior Court.
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two to diffuse the situation. Appellant eventually walked off the
court.
While playing the next game, Ellerbee noticed that
Appellant was on a cellphone. Play continued for about 20
minutes until a foul stopped the action. During the break,
Ellerbee and Keith Simpson noticed a man (the shooter) wearing
jeans, boots, and a dark jacket. Everyone else in the gym was
dressed to play basketball. The shooter and Appellant made eye
contact and exchanged head nods, and the shooter walked up to
Zsaron Simpson, passing by the other players and people
waiting to play.
Appellant and Zsaron Simpson exchanged words, and the
shooter pulled a handgun and struck Zsaron Simpson in the
mouth with it. He pointed the gun at Keith Simpson, and then at
Ellerbee, who raised his hands. While the shooter pointed the
gun at Ellerbee’s chest, Appellant ran over and tackled Zsaron
Simpson to the floor. The [shooter] ran over to Appellant and
Zsaron Simpson, and Ellerbee followed to assist Zsaron. Ellerbee
pulled the shooter off Zsaron and forced the shooter onto the
floor. Once on the floor, Appellant punched Zsaron Simpson
multiple times. The shooter fired a shot into Ellerbee’s chest, and
then a second that grazed Ellerbee’s forehead and struck his ear.
Zsaron Simpson moved away toward a bench at center court.
The shooter followed and shot him once in the stomach. Then,
the shooter and Appellant left the gym together. Ellerbee and
Zsaron Simpson also left. Both were hospitalized for their
injuries. Ellerbee spent two days in the hospital and needed two
months of rehabilitation. Zsaron Simpson was hospitalized for
about one month and required four surgeries.
Philadelphia [p]olice officers on routine patrol apprehended
Appellant later that evening. Appellant had blood on his shirt and
a graze gunshot wound that required medical treatment.
Appellant was charged with two counts each of attempted
murder, aggravated assault, conspiracy to commit murder or
aggravated assault, and other crimes not relevant here.
Following trial, the jury convicted Appellant of both counts of
aggravated assault, acquitted him of both counts of attempted
murder, and deadlocked on both counts of criminal conspiracy.
The trial court later sentenced Appellant to two consecutive
terms of 10 to 20 years in prison. Appellant appealed to this
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Court, but we dismissed the appeal, No. 2292 EDA 2012, when
Appellant’s counsel failed to file a brief. Appellant filed a petition
for post-conviction relief, and the Commonwealth agreed to
reinstatement of Appellant’s direct appeal rights.
Commonwealth v. Muhammad, 121 A.3d 1136 (Pa. Super. 2015)
(unpublished memorandum at 1) (footnotes omitted).
Following reinstatement of his appellate rights, Appellant filed an
appeal nunc pro tunc. In the appeal, his appellate counsel presented two
issues. The first issue challenged the sufficiency of the evidence regarding
his culpability as an accomplice to aggravated assault, and the second
related to an allegation of prosecutorial misconduct in the Commonwealth’s
closing argument. Id. at 2. This Court determined neither alleged error
entitled Appellant to relief and affirmed Appellant’s judgment of sentence.
Id. at 11. Our Supreme Court denied Appellant’s petition for allowance of
appeal on December 31, 2015. Commonwealth v. Muhammad, 129 A.3d
1242 (Pa. 2015).
Appellant timely filed a counseled PCRA petition on January 9, 2017.
Following the Commonwealth’s motion to dismiss and Appellant’s response,
the PCRA court permitted Appellant to amend the petition. Appellant did so
on September 18, 2017. On December 5, 2017, the PCRA court dismissed
Appellant’s petition without a hearing.1
1 The PCRA court’s order dismissing Appellant’s petition does not appear in
the certified record, but is reflected on the docket. It appears that the PCRA
court failed to issue a notice of its intent to dismiss Appellant’s petition
(Footnote Continued Next Page)
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This timely-filed appeal followed.2 Although Appellant raised several
issues in his concise statement, he pursues only one on appeal: the issue of
whether the PCRA court erred in dismissing his petition based upon his
appellate counsel’s ineffective assistance of counsel. Appellant’s Brief at 2.
On review of orders denying PCRA relief, our standard is to determine
whether the PCRA court’s ruling is free of legal error and supported by the
record. Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa. Super.
2017) (citation omitted). To prevail on a petition for PCRA relief, a
petitioner must plead and prove, by a preponderance of the evidence, that
his conviction or sentence resulted from one or more of the circumstances
enumerated in 42 Pa.C.S. § 9543(a)(2). These circumstances include
ineffectiveness of counsel, which “so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place.” 42 Pa.C.S. § 9543(a)(2)(ii).
(Footnote Continued) _______________________
pursuant to Pa.R.Crim.P. 907 before denying relief. Issuance of a Rule 907
notice is mandatory. Commonwealth v. Boyd, 923 A.2d 513, 514 n.1 (Pa.
Super. 2007). Nevertheless, Appellant has not raised this issue on appeal;
so he waived any defect in notice. See Commonwealth v. Zeigler, 148
A.3d 849, 852 (Pa. Super. 2016) (holding an error in failing to issue Rule
907 notice is waivable).
2 Appellant filed a concise statement of matters complained on appeal
pursuant to Pa.R.A.P. 1925(b). This Court was notified that because the
Honorable Earl W. Trent was no longer sitting as a judge in Philadelphia
County, no Pa.R.A.P. 1925(a) opinion would be filed.
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“[C]ounsel is presumed to be effective, and the petitioner bears the
burden of proving to the contrary.” Commonwealth v. Brown, 196 A.3d
130, 150 (Pa. 2018).
It is well-established that counsel is presumed to have
provided effective representation unless the PCRA
petitioner pleads and proves all of the following: (1) the
underlying legal claim is of arguable merit; (2) counsel’s
action or inaction lacked any objectively reasonable basis
designed to effectuate his client’s interest; and (3)
prejudice, to the effect that there was a reasonable
probability of a different outcome if not for counsel’s error.
The PCRA court may deny an ineffectiveness claim if the
petitioner’s evidence fails to meet a single one of these prongs.
Moreover, a PCRA petitioner bears the burden of demonstrating
counsel’s ineffectiveness.
Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)
(internal citations omitted).
In the instant case, Appellant argues that appellate counsel was
ineffective for failing to pursue on appeal the trial court’s denial of an
instruction for simple assault. Appellant’s Brief at 7-8. He maintains that
because the jury acquitted him of both counts of attempted murder and
deadlocked on both counts of criminal conspiracy, the jury may not have
convicted him of aggravated assault if they knew convicting him of simple
assault was an option. Id. According to Appellant, the jury’s verdict shows
that the jury rationally may have rejected his criminal liability for playing a
role in the shootings and may have chosen to hold him criminally responsible
for his tackling of Ellerbee only. Id. at 8. Furthermore, according to
Appellant, the claims appellate counsel pursued on appeal were “markedly
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weaker,” and thus counsel could not have had a reasonable basis for not
pursuing the instruction issue in favor of the other claims. Id. at 8. He
concludes that he suffered prejudice because had counsel raised the
instruction claim, the case would have been remanded for a new trial. Id. at
9.
This Court has held that “[t]here is no requirement for the trial judge
to instruct the jury pursuant to every request made to the court.”
Commonwealth v. Phillips, 946 A.2d 103, 110 (Pa. Super. 2008) (citation
omitted). “A defendant is entitled to a charge on a lesser-included offense
only where the offense has been made an issue in the case and the evidence
would reasonably support such a verdict.” Commonwealth v. Barnes, 871
A.2d 812, 823 (Pa. Super. 2005) (citation and emphasis omitted). “In
deciding whether a trial court erred in refusing to give a jury instruction, we
must determine whether the court abused its discretion or committed an
error of law.” Commonwealth v. DeMarco, 809 A.2d 256, 260–61 (Pa.
2002).
In support of the arguable merit prong of his ineffective assistance of
counsel claim, Appellant cites to Commonwealth v. Ferrari, 593 A.2d 846
(Pa. Super. 1991), arguing that Ferrari stands for the proposition that the
trial court erred by not instructing the jury on simple assault because the
record evidence supported such a charge. However, Appellant neglects to
mention that in Ferrari, this Court held that Ferrari’s counsel was not
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ineffective for failing to request an instruction on simple assault because the
evidence supported Appellant’s conviction for aggravated assault. Id. at
849-50. In support, this Court cited to Commonwealth v. Thomas, 546
A.2d 116, 118 (Pa. Super. 1988), where we held that a defendant is not
automatically entitled to a jury instruction on a lesser-included offense.
Instead, “[a] defendant is entitled to such an instruction only where the
evidence in the record would permit the jury to find, rationally, the
defendant guilty of the lesser[-]included offense but not the greater
offense.” Id. (emphasis added).
In this case, our Court has determined already that there was
sufficient evidence to convict Appellant of aggravated assault. Specifically,
this Court determined the record demonstrated that
Appellant argued with Zsaron Simpson over the rules of the
basketball game. Ellerbee attempted to break up the argument.
Afterward, witnesses saw Appellant talking on his cellphone.
During a break in the basketball game, the shooter entered the
gym, exchanged a head nod with Appellant, walked past several
other people, pulled a gun, and struck Zsaron Simpson in the
face with it. Appellant tackled Zsaron Simpson and punched him.
The shooter fired three shots. One struck Ellerbee in the
stomach, a second grazed Ellerbee's ear and then Appellant
(causing the graze wound), and the third struck Zsaron Simpson
in the abdomen. After the shooter fired the shot that struck each
victim, he and Appellant left together. These facts show, at
minimum, that Appellant acted recklessly under circumstances
manifesting an extreme indifference to the value of human life.
The facts support an inference that after the verbal altercation
with Zsaron Simpson, Appellant called the shooter to the gym to
participate in a fight with the victims. Because of the fight, each
victim suffered serious bodily injury. Appellant, therefore, is
liable for the aggravated assault of Zsaron Simpson and
Ellerbee.
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Under 18 Pa.C.S.A. § 306(d), [the statute imposing
accomplice liability,] Appellant is liable for all results of the
principal’s conduct even if unintended. It does not matter that
Appellant may have lacked the specific intent to inflict serious
bodily injury, as opposed to mere bodily injury (by tackling
Zsaron Simpson and punching him). Interpreting § 306(d), [our
Supreme Court in Commonwealth v. Roebuck 32 A.3d 613,
620-21 (Pa. 2011)] held that accomplice liability … can be
extended to unintended consequences of reckless conduct. … In
this case, the Commonwealth [] did not need to prove that
Appellant intended to cause serious bodily injury. Rather, it
needed to show merely that Appellant acted recklessly under
circumstances manifesting an extreme indifference to human life
in bringing about the victims’ injuries. The evidence was
sufficient for the Commonwealth to meet its burden.
***
In sum, we hold the evidence is sufficient to support a
finding of guilt for each of Appellant's convictions of aggravated
assault as an accomplice.
Muhmmad, supra at 5-6.
The jury’s inability to agree unanimously on the conspiracy charge has
no bearing on Appellant’s liability as an accomplice for aggravated assault,
because accomplice liability, unlike conspiracy, does not require proof of an
agreement. See Commonwealth v. Adams, 39 A.3d 310, 324 (Pa. Super.
2012) (holding “[f]or purposes of accomplice liability, no agreement is
required, only aid[;]” the aid “need not be substantial so long as it was
offered to the principal to assist him in committing or attempting to commit
the crime”) (citation and internal quotation marks omitted). Even if the jury
could have construed Appellant’s act of tackling Simpson as a mere simple
assault, the Commonwealth also introduced evidence that “Appellant called
the shooter to the gym to participate in a fight with the victims. Because of
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the fight, each victim suffered serious bodily injury.” Muhammad, supra at
6. Therefore, even if Appellant did not intend for the shooter to cause
serious bodily injury, this Court determined on direct appeal that the facts
demonstrate that Appellant committed the greater offense of aggravated
assault by acting recklessly under circumstances manifesting an extreme
indifference to the value of human life by providing aid to the shooter. Id.
at *6-7. Thus, because there is no merit to Appellant’s underlying legal
claim that he was entitled to a simple assault instruction, his appellate
counsel was not ineffective for deciding not to pursue this issue on appeal.
See Ferrari, 593 A.2d at 849-50; Thomas, 546 A.2d at 118.
Based upon Appellant’s failure to establish the arguable merit prong of
the ineffectiveness of counsel test, we affirm the PCRA court’s order
dismissing Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/12/19
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