J-S82032-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.
J-S82032-18


     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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