J-S42037-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AHMED F. GAD :
:
Appellant : No. 788 EDA 2020
Appeal from the PCRA Order Entered February 12, 2020
in the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0003404-2017
BEFORE: PANELLA, P.J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: Filed: November 25, 2020
Ahmed F. Gad (“Gad”) appeals from the Order denying his first Petition
for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), see 42
Pa.C.S.A. §§ 9541-9546. We affirm.
On June 6, 2017, Gad was convicted, at docket number CP-48-CR-
0003326-2016 (“No. 3326-2016”), of simple assault and harassment, arising
out of an incident of domestic violence with his wife, Eva Fisher (“Fisher”).1
Prior to his trial at No. 3326-2016,
[Gad] both intimidated [] Fisher in an effort to persuade her to
commit perjury by testifying falsely that [Gad] did not assault her,
and occasioned her absence from the first trial. In addition, [Gad]
committed perjury at his first trial by testifying that he did not
know [] Fisher’s whereabouts, when[,] in fact[,] he knew precisely
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1 For a full recitation of facts underlying Gad’s conviction at No. 3326-2016,
see Commonwealth v. Gad, 190 A.3d 600 (Pa. Super. 2018).
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where she was and had occasioned her absence from trial, and by
falsely testifying that [Gad] did not assault [Fisher].
PCRA Court Order, 2/12/20, at 1-2.
As a result of this conduct, Gad was charged with perjury, criminal
solicitation to commit perjury, and witness intimidation.2 Gad was
represented by James Connell, Esquire (“Attorney Connell”), during his jury
trial. A jury found Gad guilty of all offenses. On March 2, 2018, the trial court
sentenced Gad to an aggregate term of 40 to 180 months in prison, with credit
for time served, plus fines. The trial court ordered Gad’s sentence to run
consecutive to the sentence imposed at No. 3326-2016. Gad filed a Motion
for Reconsideration, which the trial court denied.
Gad filed a timely Notice of Appeal, but Attorney Connell failed to timely
comply with the trial court’s order to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. On review, this Court held that
counsel’s failure to file a Rule 1925(b) concise statement constituted per se
ineffective assistance of counsel. See Commonwealth v. Gad, 201 A.3d 823
(Pa. Super. 2018) (unpublished memorandum at 5-6). Accordingly, the case
was remanded for the trial court to file a Rule 1925(a) opinion addressing the
issues raised in the untimely Rule 1925(b) Concise Statement. See id.
Following the remand, this Court affirmed Gad’s judgment of sentence on
January 11, 2019. See Commonwealth v. Gad, 209 A.3d 495 (Pa. Super.
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2 See 18 Pa.C.S.A. §§ 4902(a), 902(a), 4952(a)(2).
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2019) (unpublished memorandum). Gad did not seek allowance of appeal
with the Pennsylvania Supreme Court.
On March 18, 2019, Gad, pro se, filed the instant, timely PCRA Petition.
The PCRA court appointed Gad counsel. PCRA counsel sought permission to
withdraw from representation, citing a conflict of interest. The PCRA court
permitted counsel to withdraw, and appointed Gad new PCRA counsel.
Counsel filed an Amended PCRA Petition on Gad’s behalf, raising claims of
ineffective assistance of counsel. The PCRA court conducted hearings on
October 24, 2019, November 26, 2019, and December 31, 2019.3 On
February 12, 2020, the PCRA court entered an Order denying Gad’s PCRA
Petition. Gad filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.
1925(b) Concise Statement.
Gad now raises the following issues for our review:
A. Did the [PCRA c]ourt err in finding that Attorney Connell was
not ineffective in advising [Gad] not to testify?
B. Did the [PCRA c]ourt err in finding that Attorney Connell was
not ineffective for failing to play additional prison telephone calls
between [Gad] and [Fisher]?
C. Did the [PCRA c]ourt err in finding that Attorney Connell was
not ineffective for failing to introduce text messages sent to [Gad]
by his wife, [] Fisher[?]
Brief for Appellant at 4.
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3The PCRA hearing was recessed on both October 24, 2019, and November
26, 2019, as a result of Gad’s “repeated outbursts in the courtroom.” PCRA
Court Order, 2/12/20, at 2.
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This Court examines PCRA appeals in the light most
favorable to the prevailing party at the PCRA level. Our review is
limited to the findings of the PCRA court and the evidence of
record. Additionally, we grant great deference to the factual
findings of the PCRA court and will not disturb those findings
unless they have no support in the record. In this respect, we will
not disturb a PCRA court’s ruling if it is supported by evidence of
record and is free of legal error. However, we afford no deference
to its legal conclusions.
Commonwealth v. Henkle, 90 A.3d 16, 20 (Pa. Super. 2014) (citations,
quotation marks and brackets omitted).
Each of Gad’s claims challenges the effectiveness of Attorney Connell’s
representation during Gad’s trial.
It is well-settled that counsel is presumed to have been ineffective
and that the petitioner bears the burden of proving counsel’s
alleged ineffectiveness. To overcome this presumption, a
petitioner must establish that: (1) the underlying substantive
claim has arguable merit; (2) counsel did not have a reasonable
basis for his or her act or omission; and (3) the petitioner suffered
prejudice as a result of counsel’s deficient performance, that is, a
reasonable probability that but for counsel’s act or omission, the
outcome of the proceeding would have been different. A PCRA
petitioner must address each of these prongs on appeal. A
petitioner’s failure to satisfy any prong of this test is fatal to the
claim.
Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citations,
quotation marks omitted).
In his first claim, Gad asserts that Attorney Connell was ineffective for
advising him not to testify during his trial. Brief for Appellant at 14. According
to Gad, his “testimony would have directly disputed the Commonwealth’s
contention that he had intimidated [Fisher] or asked her to lie for him.” Id.
at 15. Gad claims that Attorney Connell failed to offer a strategic basis for
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advising Gad not to testify, beyond his propensity for outbursts. Id. Gad
argues that he was prejudiced, because the jury did not have the opportunity
to hear a “counter-narrative of the case….” Id. at 16.
The decision of whether or not to testify on one’s own behalf
is ultimately to be made by the defendant after full consultation
with counsel. In order to sustain a claim that counsel was
ineffective for failing to advise the appellant of his rights in this
regard, the appellant must demonstrate either that counsel
interfered with his right to testify, or that counsel gave specific
advice so unreasonable as to vitiate a knowing and intelligent
decision to testify on his own behalf.
Commonwealth v. Michaud, 70 A.3d 862, 869 (Pa. Super. 2013) (citation
omitted).
In its Order, the PCRA court summarized the relevant testimony from
the PCRA hearing, addressed Gad’s claim, and concluded that it lacks merit.
See PCRA Court Order, 2/12/20, at 4-7. Specifically, the PCRA court
concluded that Gad knowingly and intelligently waived his right to testify after
consultation with Attorney Connell. Id. at 4 (citing Commonwealth v. Rigg,
84 A.3d 1080, 1086 (Pa. Super. 2014) (stating that “where a defendant
voluntarily waives his right to testify after a colloquy, he generally cannot
argue that trial counsel was ineffective in failing to call him to the stand.”)).
Further, the PCRA court highlighted Attorney Connell’s concern that Gad’s
testimony could open the door to evidence of Gad’s prior conviction of witness
intimidation, noting that his prior case involved “intimidat[ing] a complainant
who had initially accused him of domestic violence into recanting—the same
type of conduct for which he was accused of … in the present case.” PCRA
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Court Opinion, 2/12/20, at 7. The PCRA court’s determination is supported
by the record and free of legal error. We therefore affirm on the basis of its
reasoning, as set forth in its Order, in denying Gad’s first claim. See PCRA
Court Order, 2/12/20, at 4-7.
In his second claim, Gad contends that Attorney Connell was ineffective
for failing to play recordings of prison phone calls between him and Fisher.
Brief for Appellant at 16. Gad claims that, in one of the phone calls, Fisher
agreed with Gad’s statement that Gad had not assaulted her. Id.; see also
id. at 18 (arguing that in a June 21, 2017, call, “Fisher clearly denied that Gad
struck her and explains that her children put her up to falsely accusing Gad.”).
According to Gad, the prison calls presented by the Commonwealth, without
further context, “were intended to paint Gad in an unflattering light, [and] the
jurors may well have been left with the impression that Gad was pressuring
Fisher to lie for him.” Id. at 17. Gad claims that Attorney Connell had no
reasonable basis for failing to introduce these calls, and that their introduction
would have resulted in an acquittal. Id. 18-19.4
In its Order, the PCRA court reviewed call transcripts, thoroughly
addressed Gad’s second claim, and concluded that Gad was not prejudiced by
counsel’s failure to introduce the complete prison call tapes. See PCRA Court
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4 We observe that Gad failed to include any citations to or discussion of
relevant legal authority in support of his claim. See Pa.R.A.P. 2119(a)
(providing that the argument shall include “such discussion and citation of
authorities as are deemed pertinent.”).
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Order, 2/12/20, at 7-17. The PCRA court stated that “[t]hese exhibits tend
to prove nothing more than that [] Fisher told [Gad] that she made or would
make certain statements to the prosecuting attorney and [c]ourt that
contradicted her prior allegations of abuse.” Id. at 10. The PCRA court’s
determination is supported by the evidence of record and is free of legal error.
Thus, we affirm on the basis of its thorough and well-reasoned Order in
rejecting Gad’s second claim. See id. at 7-17.
In his final claim, Gad argues that Attorney Connell was ineffective for
failing to introduce text messages between Gad and Fisher. Brief for Appellant
at 19-20. According to Gad, the text messages would support his claim that
Fisher was not pressured or intimidated into providing false testimony, or
refusing to testify. Id. at 20. Gad points out that Attorney Connell
acknowledged that one text message may have been helpful to the defense,
and argues that Attorney Connell could have no reasonable strategic basis for
failing to introduce the text messages. Id. at 21. Gad also claims that he
was prejudiced by Attorney Connell’s failure to introduce exculpatory
evidence. Id.5
In its Order, the PCRA court set forth the relevant law, addressed Gad’s
claim, and concluded that it lacks merit. See PCRA Court Opinion, 2/12/20,
at 17-23. The PCRA court specifically notes that it is unclear whether the text
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5 Again, Gad has failed to support his claim with citation to and discussion of
relevant legal authority. See Pa.R.A.P. 2119(a).
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messages could have been properly authenticated for admission at trial. Id.
at 19-20. The PCRA court nevertheless concluded that, even if all of the text
messages had been admitted at trial, Gad failed to establish that their
admission would have resulted in a more favorable outcome. Id. at 20-23.
The court emphasized that significant credible testimony supported Gad’s
convictions. Id. at 22-23. The PCRA court’s determinations are supported by
the record and free of legal error, and we affirm on the basis of its Order
regarding Gad’s final claim. See id. at 17-23.
Accordingly, we affirm the Order of the PCRA court denying Gad’s first
PCRA Petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/20
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Circulated 10/30/2020 12:13 PM