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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
NAHEEM ADAMS
Appellant No. 3213 EDA 2016
Appeal from the PCRA Order Dated August 29, 2016
In the Court of Common Pleas of Northampton County
Criminal Division at No: CP-48-CR-0000287-2013
BEFORE: BOWES, STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 09, 2017
Appellant Naheem Adams appeals from the August 29, 2016 order of
the Court of Common Pleas of Northampton County, which denied his request
for collateral relief under the Post Conviction Relief Act (the “PCRA”), 42
Pa.C.S.A. §§ 9541-46. Upon review, we affirm.
The facts underlying this case are undisputed. As recounted by a prior
panel of this Court on direct appeal:
On July 27, 2012, at approximately 7:00 pm., Harry Booker and
Quincy Wilson went to Michael Comito’s apartment to purchase
crack cocaine. Comito called Appellant to arrange the purchase,
but Appellant did not have any crack cocaine. Comito then called
Jeter, and arranged to buy two bags of crack. Appellant arrived
at Comito’s apartment at approximately 8:00 p.m. He entered
the apartment, indicated that he did not have any drugs, and
walked out the back door and sat on the back step. Jeter arrived
at the apartment at approximately 9:00 p.m., and he and Comito
completed the drug transaction. Jeter left through the side door
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* Retired Senior Judge assigned to the Superior Court.
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and Comito and the other individuals inside the house heard what
sounded like people pushing and shoving each other outside.
Comito opened the door to see what was taking place and
Appellant told him to go back in the house and shut the door.
Comito shut the door and heard multiple gunshots. Comito
opened the door, saw Jeter lying on the ground, unsuccessfully
attempted to revive him, and called 911. Another individual in
the apartment, Karen Culver, looked out of a window and saw a
person running away.
Appellant and his girlfriend moved out of their apartment
approximately two days after the murder. In October 2012, police
arrested him in New York. Appellant informed detectives that he
left the Easton area on July 27, 2012, and that he never returned.
Videotape surveillance footage obtained by police shows Appellant
walking in the vicinity of Comito’s apartment at 8:22 p.m. on the
night of Jeter’s murder.
Commonwealth v. Naheem, No. 1016 EDA 2014, unpublished
memorandum, at 1-2 (Pa. Super. filed March 4, 2015). Following a four-day
trial, the jury found Appellant guilty of third-degree murder, but not guilty of
murder in the first degree. On November 22, 2013, the trial court sentenced
Appellant to 20 to 40 years’ imprisonment. On December 2, 2013, Appellant
filed a post-sentence motion, which the trial court denied. On March 4, 2015,
a panel of this Court affirmed Appellant’s judgment of sentence. On
September 11, 2015, our Supreme Court denied Appellant’s petition for
allowance of appeal. See Commonwealth v. Adams, 123 A.3d 330 (Pa.
2015).
On October 22, 2015, Appellant pro se filed the instant PCRA petition,
asserting ineffective assistance of counsel claims, and after-discovered
evidence claims. The PCRA court appointed counsel. Following a hearing, the
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PCRA court denied Appellant’s petition on August 29, 2016. Appellant pro se
appealed.1, 2
On appeal,3 Appellant appears to raise three issues for our review.4
First, he argues that the PCRA court erred in denying him a new trial based
on after-discovered evidence. Second, Appellant argues that the PCRA court
erred in denying him PCRA relief based on recantation testimony. Third, he
argues that the PCRA court erred in failing to conclude that his trial counsel
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1 Even though Appellant’s notice of appeal was filed on September 30, 2016,
it was timely as it was dated September 23, 2016. See Commonwealth .
Jones, 700 A.2d 423, 425-26 (Pa. 1997) (A pro se prisoner’s petition for
review must be considered filed for purposes of Pa.R.A.P. 903 when the appeal
is deposited with prison officials or placed in the prison mailbox).
2 On March 7, 2017, we issued an order remanding this case to the PCRA court
for 30 days to determine whether Appellant was abandoned by counsel.
Following a hearing, the PCRA court directed appointed PCRA counsel to
continue representing Appellant through the appellate process.
3“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. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).
4 We note with disapproval Appellant’s vague statement of questions involved
in violation of Pa.R.A.P. 2116. In his Rule 2116 statement of questions,
Appellant raises only a single issue: “[I.] Whether the [PCRA] court committed
legal error by denying Appellant’s PCRA claim?” Appellant’s Brief at 4. We
point out that “[n]o question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby.” Pa.R.A.P.
2116(a). This Court may quash or dismiss an appeal if the appellant fails to
conform to the requirements set forth in the Pennsylvania Rules of Appellate
Procedure. Pa.R.A.P. 2101. However, while Appellant’s statement of the
questions is overly broad, we decline to find waiver because appellate review
is not hampered, and we are able to discern Appellant’s issues from the
argument section of his brief.
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rendered ineffective assistance by failing to call to the stand a potential alibi
witness.
Addressing Appellant’s first two issues together, as they implicated
after-discovered evidence, we conclude that he has waived them. As the
Commonwealth points out, Appellant failed to raise the issues timely. Under
the PCRA, “an issue is waived if the petitioner could have raised it but failed
to do so before trial, at trial, during unitary review, on appeal[,] or in a prior
state postconviction proceeding.” 42 Pa.C.S.A. § 9544(b); see
Commonwealth v. Ford, 809 A.2d 325, 329 (Pa. 2002) (holding that
petitioner’s claims of trial court error, constitutional error, and prosecutorial
misconduct, which could have been raised on direct appeal but were not, were
waived under the PCRA).
Appellant’s first issue implicating after-discovered evidence is waived
because he failed to raise it during his direct appeal, as required under
Pa.R.Crim.P. 720(C). The Comment to Rule 720 provides that “after-
discovered evidence discovered during the direct appeal process must be
raised promptly during the direct appeal process, and should include a request
for a remand to the trial judge.” Id., Comment. Here, the letter from Thomas
Knox, which forms the basis for Appellant’s after-discovered evidence claim,
was dated May 12, 2014. At that time, as the Commonwealth notes,
Appellant’s direct appeal was pending in this Court and we had not yet issued
a briefing schedule.
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With respect to Appellant’s issue implicating after-discovering evidence
based on recantation, it too is waived for the same reason. Here, the
Commonwealth correctly points out that the alleged written recantation at
issue was discovered by Appellant’s girlfriend in May 2014. Indeed, Appellant
acknowledges that he first discovered the recantation of Commonwealth
witness Michael Comito in May 2014. See Appellant’s Brief at 13 (“[T]his
after-discovered evidence was first discovered in May 2014, when Nathalie
Jenkins went to the home of Michael Comito.”). Because Appellant failed to
raise the claim of after-discovered evidence based on recantation on direct
appeal, he has waived it on collateral review. 42 Pa.C.S.A. § 9544(b); see
Ford, supra.
We now turn to Appellant’s third issue that his trial counsel rendered
ineffective assistance because he failed to call Kahmir De’Lapara to the stand
as a potential alibi witness.
A PCRA petitioner is entitled to relief if he pleads and proves that prior
counsel rendered ineffective assistance of counsel. 42 Pa.C.S.A.
§ 9543(a)(2)(ii). “To prevail on an [ineffectiveness] claim, a PCRA petitioner
must plead and prove by a preponderance of the evidence that (1) the
underlying legal claim has arguable merit; (2) counsel had no reasonable basis
for acting or failing to act; and (3) the petitioner suffered resulting prejudice.”
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015)
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(en banc). “A petitioner must prove all three factors of the “Pierce[5] test,”
or the claim fails.” Id.
Here, Appellant argues that his trial counsel was ineffective for calling
Mr. De’Lapara to testify at trial as an alibi witness. Appellant argues that his
trial counsel was informed of Mr. De’Lapara’s existence. Following a hearing,
the PCRA court found Appellant’s trial counsel’s testimony credible and
determined that trial counsel was unaware of Mr. De’Lapara’s existence prior
to, or at the time of, trial. Specifically, the trial court reasoned:
Here, Kahmir De’Lapara, known as “Smoke,” testified that
he personally met with trial counsel and informed him that he was
with [Appellant] the night of the homicide, selling [Appellant
$19,000.00] worth of marijuana and cocaine. Trial counsel also
testified at the hearing and stated that he utilized the services of
a detective to investigate the events of the night of the murder
and met with [Appellant’s] friends and family. Counsel also
testified that throughout all of these meetings, he never met with
Smoke, never heard of him (either by legal name or street name)
and no one ever told him that he/she was with [Appellant] on the
night of the murder conducting such a drug transaction.
Additionally, no record was made as to De’Lapara’s alleged efforts
to relay [Appellant’s] alibi. As an officer of the [c]ourt, and
bearing this [c]ourt’s full confidence, trial counsel would have had
a duty to investigate such an alibi had it been brought to his
attention. Further, it is important to note that [Appellant’s] “alibi
witness,” Mr. De’Lapara is currently incarcerated and serving his
own sentence for murder. Therefore, we find that this claim is
without arguable merit, as the alleged alibi witness was never
brought to the attention of trial counsel and De’Lapara’s testimony
was incredible[.]
PCRA Court Opinion, 8/29/16. In asking us to find arguable merit, Appellant
essentially expects us to accept his version of the facts, i.e., that trial counsel
was aware of Mr. De’Lapara’s existence. It is settled that a PCRA court’s
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5 Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
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credibility and weight determinations are binding upon us. See
Commonwealth v. Medina, 92 A.3d 1210, 1214 (Pa. Super. 2014) (en banc)
(noting that “[t]he PCRA court’s credibility determination, when supported by
the record, are binding on this Court.”) (citation omitted), appeal denied,
140 A.3d 675 (Pa. 2016). Here, because the PCRA court found credible trial
counsel’s testimony that he was unaware of Mr. De’Lapara’s existence,
Appellant’s ineffectiveness claim lacks arguable merit. Accordingly, Appellant
is not entitled to relief.
Even if Appellant’s ineffectiveness claim had arguable merit, he still
would not be entitled to relief. Appellant addresses only the arguable merit
prong of the Pierce test in his brief, which is otherwise bereft of any discussion
or argument with respect to the reasonable basis and prejudice prongs. See
Appellant’s Brief at 14-16. As we have emphasized, “[a] petitioner must prove
all three factors of the Pierce test, or the [ineffectiveness] claim fails. In
addition, on appeal, a petitioner must adequately discuss all three factors
of the Pierce test, or the appellate court will reject the claim.” Reyes-
Rodriguez, 111 A.3d at 780 (emphasis added) (citing Fears, 86 A.3d at
804)). Thus, given Appellant’s failure to discuss the reasonable basis and
prejudice prongs on appeal, we would reject his ineffectiveness claim.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2017
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