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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAMSIDDIN Q. SALLAM :
:
Appellant : No. 1596 EDA 2022
Appeal from the PCRA Order Entered May 24, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006240-2011
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAMSIDDIN Q. SALLAM :
:
Appellant : No. 1597 EDA 2022
Appeal from the PCRA Order Entered May 24, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006241-2011
BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY PANELLA, P.J.: FILED SEPTEMBER 15, 2023
Shamsiddin Sallam appeals from the Philadelphia County Court of
Common Pleas’ order denying his second petition filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-9546, after an
evidentiary hearing. Although the PCRA court found the untimely petition met
an exception to the PCRA’s time bar, it ultimately concluded the petition was
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meritless. We find no error in either of the PCRA court’s conclusions, and we
therefore affirm.
This Court provided a more detailed factual account of this case on direct
appeal, but only a brief summary is necessary for the purposes of this appeal.
See Commonwealth v. Sallam, 3403 EDA 2012 (Pa. Super. filed October
10, 2013) (unpublished memorandum). Sallam was charged with one count
of first-degree murder each for the killing of Harry Williams and the killing of
Gregory Jarvis in 2009. The men had been shot in Williams’s apartment in the
boarding house where Williams was staying, and police recovered eight
cartridge casings from the apartment that were later determined to have been
fired from a single firearm.
The matter proceeded to a jury trial and the jury convicted Sallam of
two counts of first-degree murder and related offenses. The trial court
imposed the mandatory sentence of life imprisonment for each of the first-
degree murder convictions, along with concurrent lesser sentences for the
related offenses.
Sallam appealed to this Court, raising eight claims of error. This Court
rejected all eight claims as meritless, and affirmed the judgment of sentence.
See id. Our Supreme Court denied Sallam’s petition for allowance of appeal
in 2014. Sallam filed a timely first PCRA petition, which the PCRA court denied.
This Court affirmed the denial of the PCRA petition, and the Supreme Court
denied Sallam’s petition for allowance of appeal in 2018.
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Sallam filed a pro se second PCRA petition in March 2021, and appointed
counsel eventually filed an amended petition. In the petitions, Sallam
essentially asserted he was entitled to relief based on newly-discovered
evidence in the form of a statement by Williams’s sister, Miriam Boeri. He
contended the Commonwealth committed a Brady1 violation by failing to
disclose this statement.
The PCRA court held a hearing on the petition, which took place on
February 18, 2022 and May 13, 2022.2 At the February hearing, Sallam called
Boeri to testify. Boeri maintained that she and Williams had spoken on the
phone a few days before his murder, and that Williams told her some men
with guns came to the boarding house where he was staying either on the day
of their conversation or the day before. See N.T., 2/18/2022, at 8. According
to Boeri, Williams told her the men were looking for a man named “Snap,” a
person Williams had known from prison and had also provided with his
address. See id. at 8-9. “Snap” was Sallam’s nickname. See id. at 12. The
men left the apartment when they were unable to find “Snap.”
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1 Brady v. Maryland, 373 U.S. 83 (1963).
2 The notes of testimony from the hearings were not in the certified record
originally sent to this Court. Of course, it is Sallam’s burden as the appellant
to ensure the certified record includes what is necessary for this Court to
resolve his appeal. Nonetheless, upon informal inquiry, our Prothonotary was
able to secure the notes of testimony from both hearings and those notes are
now included in the certified record.
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Boeri also testified that she spoke with Detective George Pirrone from
the Philadelphia Police Department within one or two days of her brother’s
murder. She claimed she told the detective what Williams had told her about
the armed men coming to his apartment looking for “Snap” in the days
preceding his murder. See id. at 9.
Boeri stated she also informed Assistant District Attorney (”ADA”)
Richard Sax about her phone conversation with Williams, and although she
wanted to testify about that conversation, ADA Sax told her she could not.
See id. at 10, 13. Boeri claimed ADA Sax also told her not to tell defense
counsel or Sallam’s family about the phone conversation, and maintained ADA
Sax did not update her about the date of trial. See id. at 13.
The hearing was continued to May 13, 2022 and ADA Sax testified on
that date. ADA Sax relayed that he had an initial conversation with Boeri after
her brother’s murder, a conversation ADA Sax then memorialized in a memo.
He described the conversation with Boeri as “bizarre” and indicated it led him
to question Boeri’s credibility. See N.T., 5/13/2022, at 13-14. He maintained
Boeri did not mention anything to him about her conversation with Williams
regarding the armed men coming to Williams’s boarding house either in their
initial conversation, or in any of the follow-up conversations he had with Boeri.
See id. at 14, 15, 20.
ADA Sax also recounted that he had reviewed Detective Pirrone’s file
from the case. According to ADA Sax, the detective made a note that Boeri
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had told him about a group of men who came to Williams’s boarding house.
See id. at 14. However, there was nothing in that note identifying who the
men were specifically looking for or anything about the men being armed. See
id. at 17, 37. The note was, ADA Sax opined, “of no moment either for or
against the defendant.” Id. at 26.
ADA Sax testified, however, that the information in Boeri’s statement,
i.e. armed men looking for Sallam at Williams’s boarding house, as well as
Williams knowing Sallam from prison and giving him his address, would have
actually been helpful to the Commonwealth’s case. See id. at 20-21, 28, 33.
ADA Sax explained it would have established that Sallam and Williams knew
each other and Sallam knew where Williams lived. Nonetheless, ADA Sax
testified that, even if Boeri had told him about Williams’s statement, he could
not have introduced Boeri’s statement regarding what Williams had told her
as it was hearsay. See id. at 18, 31.
Finally, ADA Sax stated he did inform Boeri of the trial date and that he
intended to call her as a life-in-being witness. See id. at 18-19, 21-22. Before
Boeri was called to testify, ADA Sax discussed her testimony with her. Boeri
did not mention her phone conversation with Williams about the armed men
at that time, but if she had, ADA Sax said he would have informed defense
counsel. See id. at 25-26, 32. He continued to insist this evidence would have
been inculpatory. See id. at 25, 30-33.
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Following the hearing, the PCRA court denied Sallam’s petition. Sallam
filed a timely notice of appeal.3 In his appeal, Sallam raises a single issue,
essentially that the PCRA court erred by finding the Commonwealth did not
commit a Brady violation by failing to disclose Boeri’s statement regarding
her phone conversation with Williams. This claim fails.
Our review of an order dismissing a PCRA petition is limited to examining
whether the PCRA court’s determinations are supported by the record and the
court’s decision is free of legal error. See Commonwealth v. Shaw, 217
A.3d 265, 269 (Pa. Super. 2019). Although we give great deference to the
factual findings of the PCRA court and will not disturb those findings unless
they have no support in the record, we apply a de novo standard of review to
the PCRA court’s legal conclusions. See Commonwealth v. Benner, 147
A.3d 915, 919 (Pa. Super. 2016).
Before we can review the merits of Sallam’s claim, we must determine
as an initial matter whether Sallam’s instant PCRA petition was timely, as a
petition’s timeliness implicates our jurisdiction. See Commonwealth v.
Lawson, 90 A.3d 1, 4 (Pa. Super. 2014). A PCRA petition, including a second
or subsequent one, must be filed within one year of the date that a petitioner’s
judgment of sentence became final. See 42 Pa. C.S.A. § 9545(b)(1). Here,
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3 The PCRA court’s order denying the PCRA petition listed two trial court docket
numbers. Sallam filed two separate notices of appeal from the order in
compliance with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). This
Court later granted Sallam’s motion to consolidate the two cases.
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Sallam’s judgment of sentence became final in 2014 and this petition was not
filed until 2021. As the trial court found, and nobody disputes, the petition is
facially untimely.
However, this Court has jurisdiction to review a petition filed beyond the
one-year time limit if the petitioner alleges and proves any one of the three
statutory exceptions to the time-bar. See 42 Pa. C.S.A. § 9545(b)(1) (i)-(iii).
One of those timeliness exceptions is the “newly-discovered facts” exception,
which requires a petitioner to establish “he did not know the facts upon which
he based his petition and could not have learned those facts earlier by the
exercise of due diligence.” Commonwealth v. Brown, 111 A.3d 171, 176
(Pa. Super. 2015) (citation omitted); 42 Pa C.S.A. § 9545(b)(1)(ii). A petition
invoking one of the timeliness exceptions must be filed within one year of the
date the claim could have first been presented. See 42 Pa. C.S.A. §
9545(b)(2).
Here, the PCRA court found Sallam had met the newly-discovered facts
exception. It explained:
On March 10, 2020, Boeri visited [Sallam] in prison as part of the
Victim’s Offender Dialogue Program. At that visit, [Sallam] learned
for the first time about Williams’[s] statement to Boeri a few days
before he was murdered. According to Boeri, she did not testify
about this at trial or inform [Sallam’s] attorney because ADA Sax
said that she could [not] testify about it or tell [Sallam]. [Sallam]
could not have discovered these facts through the exercise of due
diligence and [he] filed the instant petition on March 1, 2021, less
than a year after the period to raise a claim pursuant to the PCRA
timeliness exception would have expired.
Trial Court Opinion, 6/13/2022, at 10.
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We see no error in the PCRA court’s determination.4 However, the PCRA
court then stated that even though Sallam had met the timeliness exception,
he had failed to demonstrate his Brady claim warranted any relief. See id.
Sallam takes exception to this conclusion, and argues the
Commonwealth violated Brady by deliberately withholding Boeri’s statement
that Williams had told her armed men had come to his apartment looking for
“Snap.” As Sallam acknowledges, a Brady violation consists of three
elements: (1) suppression by the prosecution; (2) of evidence, whether
exculpatory or impeaching, favorable to the defendant; and (3) to the
prejudice of the defendant. See Commonwealth v. Tedford, 960 A.2d 1, 30
(Pa. 2008).
In finding Sallam had failed to establish a Brady violation here, the
PCRA court determined Sallam had not shown that the Commonwealth
suppressed Boeri’s statement or that the statement was exculpatory. The
court explained:
[Sallam’s] claim fails because he cannot show that the
Commonwealth suppressed Williams’[s] statement. Based on the
evidence put forth at the evidentiary hearings, the only
information that the Commonwealth had regarding Williams’[s]
statement prior to and during trial was that a group of men came
to Williams’[s] boarding house searching for an unknown
individual days before the shooting. This Court does not find
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4 The PCRA court also found Sallam had met the “governmental interference”
exception to the timeliness requirement found at 42 Pa. C.S.A. §
9545(b)(1)(i). However, a petitioner only needs to establish that he has met
one of the three statutory exceptions, so it is unnecessary for us to also
address this exception.
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Boeri’s testimony that she told Detective Pirrone and ADA Sax
about armed men searching for “Snap” credible. Quite the
opposite, in fact, as this Court found Boeri’s testimony to be
incredible. There was no evidence presented to this Court which
corroborated her testimony. Boeri made clear her personal
frustration with the police and the quality of their investigation.
Boeri admitted that she was upset because she felt she was being
ignored, mistreated, and intimidated by detectives. She also
stated she was angry [Sallam] received a life sentence. As the
Commonwealth did not have the information about the armed
men or that they were searching for [Sallam], this information
could not have been suppressed.
[Sallam] also fails to establish that the allegedly suppressed
evidence was exculpatory. The fact that armed men came to
Williams’[s] boarding house looking for [Sallam] days before the
shooting does not make it any less likely that [Sallam] shot
Williams and Jarvis. Williams’[s] statement was actually
inculpatory as it established that [Sallam] and Williams knew each
other, and that [Sallam] was familiar with the address where the
shooting occurred. The evidence at trial also showed that there
was only one shooter as all projectiles and fired cartridge casings
were found to have been fired from the same gun and video of the
boarding house showed Jarvis entering with another individual
with the same physical characteristics as [Sallam] before the
shooting occurred and only the perpetrator leaving afterward.
Trial Court Opinion, 6/13/2022, at 11 (citation to notes of testimony omitted).
Sallam does not directly challenge the PCRA court’s determination that
the Commonwealth did not suppress Boeri’s statement. Sallam continues to
claim Boeri told Detective Pirrone and ADA Sax that Williams had told her that
armed men had come to his apartment looking for “Snap.”
However, as the Commonwealth points out, the PCRA court explicitly
stated it had made a credibility determination in that it did not believe Boeri’s
testimony in this regard. And we agree with the Commonwealth that this
credibility determination is supported by the record, and we are therefore
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bound by it. See Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa. 2009)
(providing that credibility determinations are for the PCRA court to make and
reviewing courts are bound by those determinations when they are supported
by the record). Based on this credibility determination, the PCRA court
concluded the Commonwealth did not even have the evidence Sallam claims
Boeri provided, and as such, could not and did not suppress it. We find no
error in this conclusion.
As for the PCRA court’s determination that the evidence was not
favorable to Sallam, Sallam claims only that the evidence would have likely
prompted defense counsel to investigate potential other suspects. The
Commonwealth counters:
This claim is not supported by reasoning that explains why men
looking for [Sallam] would serve as suspects in a shooting that
was determined to be committed with one firearm. There is no
explanation for how this refutes any of the evidence presented at
trial. In fact, [as discussed above], the [PCRA] court properly
found that the evidence on its face was inculpatory.
Commonwealth’s Brief at 15. We agree Sallam has also not shown the PCRA
court erred in finding the evidence Sallam alleges the Commonwealth
suppressed was favorable to him.
In the end, Sallam has failed to show the PCRA court erred by finding
his Brady claim does not provide him with any basis for relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2023
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