J-S59022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ILYAS ABDULHADI

                            Appellant                No. 3309 EDA 2013


                 Appeal from the PCRA Order November 1, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0808601-2006


BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                      FILED SEPTEMBER 25, 2014

        Ilyas Abdulhadi appeals pro

petition filed pursuant to the Post Conviction Relief Act (PCRA). 1      After

review, we affirm.

        In 2007, a jury convicted Abdulhadi of first-degree murder,2 following

the shooting death of Tito Lomax at his Arch Street, Philadelphia home. The

court sentenced Abdulhadi to a mandatory life sentence without parole




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*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. § 2502(a).
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pursuant to 18 Pa.C.S. §1102(a)(1).3 Abdulhadi filed an unsuccessful post-

sentence motion, direct appeal and petition for allowance of appeal.

       On December 6, 2010, Abdulhadi filed a timely pro se PCRA petition;

he amended the petition and counsel was appointed to represent him.

Counsel filed another amended petition and a supplemental petition raising

claims of ineffectiveness of counsel.            Ultimately, the trial court issued a



hearing.    Abdulhadi filed a response; the court dismissed the petition on

December 7, 2012.

       On    December       13,   2012,        PCRA   counsel   filed   a   motion   for

reconsideration after being contacted by two potential alibi witnesses whom

trial counsel failed to call to testify at trial.        On December 27, 2012, in

response to a motion to vacate filed by PCRA counsel, the trial court vacated



provide the Commonwealth with certifications for each of the two potential

alibi witnesses. After reviewing the certifications filed by PCRA counsel, the



November 1, 2013, after reviewing several pro se Rule 907 responses filed

by Abdulhadi, denied his PCRA petition. Subsequently, Abdulhadi petitioned


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3
  Abdulhadi was also sentenced to concurrent sentences of 10-
incarceration for conspiracy, 10-20 years in prison for robbery and 2½-5
years in prison for possession of an instrument of crime (PIC).



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J-S59022-14



the court to proceed pro se. The court held a Grazier4 hearing and granted

Abdulhadi leave to proceed pro se. This appeal follows.

       On appeal, Abdulhadi contends that a person may not be convicted of

first-degree murder, except where the Commonwealth seeks the death

penalty. Therefore, he claims that all counsel were ineffective for failing to

                                                 instruction on first-degree murder

because the jurors were legally prohibited from finding him guilty in this

non-capital case.

       First, we note that Abdulhadi has waived this claim for failure to raise

it prior to this collateral appeal.5 See 42 Pa.C.S. § 9544(b) (issue waived

under PCRA if petitioner could have raised it but failed to do so before trial,

at trial, on appeal or in prior state postconviction proceeding).           However,

even if the claim were not waived, we would find it meritless.

       Pursuant

been convicted of a murder of the first degree . . . shall be sentenced to

death or to a term of life imprisonment in accordance with 42 Pa.C.S. § 9711

(relating to sentencing procedure for murder

Pa.C.S.    §1102(a)(1)      (emphasis      added).    In   the   instant   case,   the

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4
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
5
  Although Abdulhadi raised this claim earlier in a pro se pleading, see Newly
Discovered Evidence: PCRA Matter, 8/30/13, at 7-19, because he was
represented by counsel at the time, that pleading is a legal nullity. See
Commonwealth v. Ali, 10 A.3d 282 (Pa. 2010).



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J-S59022-14



Commonwealth chose not to seek the death penalty. Therefore, the court

was free to instruct the jury regarding a life sentence if it were to find

Abdulhadi guilty of first-degree murder. Moreover, the procedure referenced

in section 9711 only applies where a decision must be made regarding

whether a defendant should be sentenced to death or to life imprisonment

for murder in the first degree.   Because the Commonwealth chose not to

seek the death penalty, section 1102(a)(1) clearly states that the only

permissible sentence is life in prison.   Accordingly, there is no merit to



              jury instruction regarding life imprisonment for first-degree

murder.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/25/2014




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