J-S42012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 867 EDA 2019

              Appeal from the PCRA Order Entered March 11, 2019
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0003326-2016


BEFORE:      OTT, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY OTT, J.:                                FILED OCTOBER 02, 2019

        Ahmed F. Gad (“Gad”) appeals from the order entered March 11, 2019,

in the Northampton County Court of Common Pleas, dismissing, following a

hearing, his first petition for collateral relief filed pursuant to the Post

Conviction Relief Act (“PCRA”).1          Gad seeks relief from the judgment of

sentence of 12 to 24 months’ imprisonment for simple assault, 2 and a

consecutive term of 45 to 90 days’ imprisonment for harassment,3 imposed



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S.A. §§ 9541-9546.

2   18 Pa.C.S.A. § 2701(a)(1).

3   18 Pa.C.S.A. § 2709(a)(1).
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following a jury trial. Concomitant with this appeal, counsel has filed a petition

to withdraw and a Turner/Finley4 “no merit” letter. Because Gad’s claims

lack merit, we affirm and grant counsel’s petition to withdraw.

       We take the underlying facts and procedural history in this matter from

this Court’s opinion affirming the judgment of sentence.

       [Gad] was arrested in connection with the domestic abuse of Eva
       Fisher [“Victim”], his wife. On March 3, 2017, the Commonwealth
       filed notice of its intent to introduce evidence of prior crimes,
       wrong, or acts pursuant to Pa.R.E. 404(b)(2). Relevantly, the
       Commonwealth sought to introduce evidence relating to [Gad’s]
       prior physical abuse and witness intimidation of his former
       paramour, Maryam Ezatt. [Gad] filed a response in opposition to
       the introduction of the evidence. On April 3, 2017, the trial court
       granted the Commonwealth’s request to admit the evidence
       pursuant to Pa.R.E. 404(b)(2).

       [Gad], represented by counsel, proceeded to a jury trial on June
       6, 2017. At trial, the Commonwealth presented the testimony of
       Police Officer Kevin Lillis, physician’s assistant Monika Garcia, and
       [Gad’s] former paramour, Ms. Ezatt.[a]

              [a]Although [Victim] testified against [him] at his
              September 2016 preliminary hearing, [she] did not
              appear at the trial. Officer Lillis testified that neither
              law enforcement officials nor her family had any
              contact with her since March of 2017.

       Specifically, Officer Lillis testified that, on September 12, 2016,
       [Victim] approached him requesting assistance in finding a
       homeless shelter for her to stay in for the night. Officer Lillis
       observed [she] had “a contusion on the left side of her face along
       her cheekbone and she had contusions also behind her ear, and
       her ear was swollen. Also, around her neck as well as a swollen
____________________________________________


4 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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       lip.” Officer Lillis summoned an ambulance, which transported
       [Victim] to the emergency room for treatment. On September 17,
       2016, when the officer went to the couple’s home to arrest [Gad],
       [Victim] answered the door.

       Ms. Garcia testified she treated [Victim] on September 12, 2016,
       in the emergency room. She testified [Victim] had bruising to the
       left side of her face, cheek, forehead, and ear. [Victim] reported
       she had been assaulted and slapped in the face.

       Ms. Ezatt testified she used to be [Gad’s] paramour, and on
       September 30, 2013, [Gad] hit her in the face and then
       intimidated her in an attempt to force her not to cooperate with
       the police. Ms. Ezatt testified that her relationship with [Gad]
       ended in 2015; however, [Gad] resumed contact with her in July
       of 2016. In the fall of 2016, [Gad] texted her, indicated he was
       “in trouble,” and said he “needed her help.” Ms. Ezatt testified
       [Gad] admitted to her that he had hit his wife and he was
       pressuring her to drop the charges.

       [Gad] testified in his own defense. Specifically, he testified that
       he was not at home on September 12, 2016; but rather, he was
       at work all day. He specifically denied striking [Victim] or telling
       her not to appear for court.[5]

Commonwealth v. Gad, 190 A.2d 600, 601-602 (Pa. Super. 2018) (record

citations omitted).

       On May 21, 2018, this Court affirmed the judgment of sentence. See

Gad, supra at 601. Gad did not seek leave to appeal to the Pennsylvania

Supreme Court.




____________________________________________


5 Of pertinence to the instant appeal, Gad also specifically denied knowing the
victim’s whereabouts. N.T. Trial, 6/06/2017, at 84.

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      On September 26, 2018, Gad, acting pro se, filed the instant, timely

PCRA petition. Subsequently, the PCRA court appointed counsel. At a pre-

hearing conference, counsel clarified Gad would pursue six issues regarding

trial counsel’s alleged ineffectiveness at the PCRA hearing. A PCRA hearing

was held on January 2-3, 2019. At the hearing, PCRA counsel withdrew Gad’s

claim trial counsel was ineffective for failing to oppose the Commonwealth’s

404(b) motion. N.T. PCRA Hearing, 1/02/2019, at 3-4. However, counsel

raised two additional issues of trial counsel’s alleged ineffectiveness.     Trial

counsel and Gad both testified at the hearing, as well as Gad’s former

probation officer and the Victim.

      On March 11, 2019, the PCRA court denied Gad’s petition. The instant,

timely appeal followed. In response to the court’s order, Gad filed a timely

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). On June 4, 2019, the PCRA court issued an opinion.

      Prior to addressing the merits of this appeal, we must first consider

whether counsel has fulfilled the procedural requirements for withdrawal.

Commonwealth v. Muzzy, 141 A.3d 509, 510 (Pa. Super. 2016). Pursuant

to Turner/Finley and their progeny:

      Counsel petitioning to withdraw from PCRA representation must .
      . . review the case zealously. Turner/Finley counsel must then
      submit a “no-merit” letter to the trial court, or brief on appeal to
      this Court, detailing the nature and extent of counsel’s diligent
      review of the case, listing the issues which petitioner wants to
      have reviewed, explaining why and how those issues lack merit,

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      and requesting permission to withdraw. Counsel must also send
      to the petitioner: (1) a copy of the “no merit” letter/brief; (2) a
      copy of counsel’s petition to withdraw; and (3) a statement
      advising petitioner of the right to proceed pro se or by new
      counsel.

                                   * * **

      [W]here counsel submits a petition and no-merit letter that . . .
      satisfy the technical demands of Turner/Finley, the court — trial
      court or this Court — must then conduct its own review of the
      merits of the case. If the court agrees with counsel that the claims
      are without merit, the court will permit counsel to withdraw and
      deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation

omitted).

      Here, our review reveals counsel has substantially complied with the

procedural aspects of Turner/Finley. Although he filed a brief, as opposed

to a “no merit” letter, counsel’s brief properly lists the issues Gad wishes us

to review and explains why they are meritless.       See Gad’s Brief at 5-18.

Furthermore, counsel provided Gad with a copy of the brief and the petition

to withdraw, and advised him of his right to proceed pro se or with private

counsel.    See Petition to Withdraw as Counsel, 4/18/2019.      Gad has filed

multiple responses to the petition reiterating the claims of ineffective

assistance of counsel raised below. Therefore, we proceed to a consideration

of whether the PCRA court erred in dismissing the petition. See Doty, supra.

      Our standard of review is well settled:




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     This Court analyzes 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 and we
     do not disturb a PCRA court’s ruling if it is supported by evidence
     of record and is free of legal error. Similarly, [w]e 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.
     However, we afford no such deference to its legal conclusions.
     [W]here the petitioner raises questions of law, our standard of
     review is de novo and our scope of review is plenary. Finally, we
     may affirm a PCRA court’s decision on any grounds if the record
     supports it.

Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (quotation

marks and citations omitted). Furthermore, where, as here, the defendant

alleges counsel rendered ineffective assistance, we note:

     In order to obtain relief under the PCRA premised upon a claim
     that counsel was ineffective, a petitioner must establish beyond a
     preponderance of the evidence that counsel’s ineffectiveness so
     undermined the truth-determining process that no reliable
     adjudication of guilt or innocence could have taken place. When
     considering such a claim, courts presume that counsel was
     effective, and place upon the appellant the burden of proving
     otherwise. Counsel cannot be found ineffective for failure to
     assert a baseless claim.

     To succeed on a claim that counsel was ineffective, Appellant must
     demonstrate that: (1) the claim is of arguable merit; (2) counsel
     had no reasonable strategic basis for his or her action or inaction;
     and (3) counsel’s ineffectiveness prejudiced him.

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (quotation

marks and citations omitted). “To demonstrate prejudice, a petitioner must

show that there is a reasonable probability that, but for counsel’s actions or




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inactions, the result of the proceeding would have been different.”

Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015).

       In his first two claims, Gad argues trial counsel was ineffective for failing

to call the Victim and his former probation officer Jason Baer as defense

witnesses at trial. Gad’s Brief, at 7-9.

       To prove that trial counsel provided ineffective assistance for
       failing to call a witness, a petitioner must demonstrate:

              (1) the witness existed; (2) the witness was available
              to testify for the defense; (3) counsel knew of, or
              should have known of, the existence of the witness;
              (4) the witness was willing to testify for the defense;
              and (5) the absence of the testimony of the witness
              was so prejudicial as to have denied the defendant a
              fair trial.

Commonwealth v. Brown, 196 A.3d 130, 167 (Pa. 2018) (citation omitted).

       Here, the Victim6 and Baer both testified at the PCRA hearing. Both

stated that they were not willing to testify for the defense and that their

____________________________________________


6 Pertinently, with respect to the Victim, the trial court discussed the issue as
follows:

       Furthermore, trial counsel testified at the hearing on the present
       petition that he did not call [the Victim] as a witness at trial
       because he “was informed [some months prior to trial] that the
       victim, [], had disappeared.” Counsel further testified: “I had
       spoken to Mr. Gad numerous times if he had any contact with [the
       Victim] and had heard from her. He repeatedly informed me no.
       And this was up to the point where we decided to go to trial.”
       Counsel’s trial strategy was, therefore — as he posed to the jury
       during opening statements — to press the fact that the



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testimony would not have been favorable to Gad. See N.T. PCRA Hearing,

1/03/2019, at 75, 77-78, 80-81, 83-85. Thus, Gad has not shown counsel

was ineffective for failing to call them as witnesses. Brown, supra at 167.

Gad’s first and second claims do not merit relief.


____________________________________________


       Commonwealth had failed to produce a key witness in its
       prosecution of [Gad]. Counsel then testified: “The first time I had
       learned that [the Victim] was still around and [] Gad had any
       conversations with her was when we were breaking for lunch
       during trial and the jury was walking [...] out for lunch and that’s
       when [] Gad informed me that he wished for me to call [the
       Victim] to testify for him at trial.” Despite learning during trial
       that [the Victim’s] whereabouts were known to [Gad], counsel
       elected not to call her as a witness. He noted that, at best, he
       could hope that she would have recanted her prior statements to
       police during her trial testimony, “which something told me that
       wasn’t going to happen.” Moreover, “it wouldn’t have [made
       sense strategically] because I just got done telling 12 people I
       don’t know, that nobody knows where this victim is, and all of a
       sudden I’m going to present the victim. The jury is either going
       to think that I’ve been hiding the witness, which I would think they
       would be smart enough not to think, which means the only logical
       explanation is my client is hiding the witness, which would make
       him look ten times more guilty.” Considering this testimony, we
       could not conclude that trial counsel lacked a reasonable basis for
       his failure to call [the Victim] as a defense witness at trial. Again,
       we conclude that his failure to call [the Victim] only worked to
       benefit [Gad], and that [Gad’s] claim of ineffectiveness in this
       regard lacks merit. While [Gad] testified at the hearing that he
       told trial counsel about his wife’s whereabouts in advance of trial,
       asking him to call her to testify, and that counsel told him not to
       bring her to trial because the District Attorney would have her
       arrested, we found [Gad’s] testimony to be wholly incredible.

PCRA Court Opinion, 6/04/2019, at 3-4 (record citations omitted). This
testimony, as recounted by the PCRA court, wholly contradicts Gad’s sworn
testimony at trial.

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      Gad next claims counsel was ineffective for failing to cross-examine

Commonwealth witness Maryam Ezzat based on bias. Gad’s Brief, at 9-13.

      A criminal defendant has the constitutional right to confront witnesses

against him; this right includes the right of cross-examination.            See

Commonwealth v. Buksa, 655 A.2d 576, 579 (Pa. Super. 1995), appeal

denied, 664 A.2d 972 (Pa. 1995). Counsel can use cross-examination to test

a witness’s version of the events, to impeach his or her credibility, or to

establish his or her motive for testifying. See id. The scope and vigor of any

particular cross-examination is a matter of trial strategy that we leave to the

sound discretion of counsel. See Commonwealth v. Molina, 516 A.2d 752,

757 (Pa. Super. 1986). Further, our Supreme Court has held that counsel is

ineffective for failing to impeach an important witness in the absence of a

reasonable strategic basis for his actions. Commonwealth v. Baxter, 640

A.2d 1271, 1274-1275 (Pa. 1994); see also Commonwealth v. Murphy,

591 A.2d 278, 279-280 (Pa. 1991) (finding defense counsel ineffective for

failing to cross-examine key prosecution witnesses about possible bias).

      The PCRA court aptly addressed this contention as follows.

      While [Gad] fails to clearly articulate this assertion of error, we
      are able to glean from the hearing transcript that [he] is likely
      referring to his contention that trial counsel “failed to cross-
      examine Maiyam Ezzat on [his] participation with ICE and her
      being arrested,” as well as “the dismissal of all charges against
      him in a Florida case.” In response to questioning on these issues,
      trial counsel testified that he had no recollection of any
      conversations with [Gad] regarding anything to do with Ms. Ezzat

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      and ICE (Immigration and Customs Enforcement). With respect
      to the “Florida case,” trial counsel testified: “[I]f I recall correctly,
      they were protection from abuse orders that she had — that Ms.
      Ezzat had filed against Mr. Gad.            Those charges were all
      subsequently dropped and Mr. Gad wished for me to question Ms.
      Ezzat about those dropped PFAs during the trial. [. . .] Again, Mr.
      Gad was on trial for domestic violence charges. Those PFAs all
      stem from issues of domestic violence, domestic abuse, again,
      very poor strategy to bring them up at trial.” [The PCRA court]
      concurred with counsel’s assessment. Given the charges faced by
      [Gad] at trial, and the nature of the testimony that Ms. Ezzat
      would likely have given, as described by trial counsel, [the PCRA
      court] concluded that counsel’s decision not to inquire of Ms. Ezzat
      as to these issues had a very reasonable basis designed to
      advance [Gad’s] interests, and that [Gad’s] claim of
      ineffectiveness on this point must also fail.

PCRA Court Opinion, 6/04/2019, at 5-6.

      Here, the PCRA court credited counsel’s testimony that he was unaware

of any issues of possible bias regarding Ezzat, ICE, and an arrest. As this

finding has support in the record, we have no basis to disturb it.

Commonwealth v. Dennis, 17 A.3d 297, 305 (Pa. 2011) (great deference

is afforded to PCRA court’s credibility findings). Moreover, we agree with the

PCRA court that counsel had a reasonable strategic basis not to cross-examine

Ezzat regarding the prior withdrawn PFA(s), thus we decline to find counsel

ineffective for failing to do so. See Baxter, supra at 1274-1275. Gad’s third

claim does not merit relief.

      In his fourth claim, Gad contends counsel was ineffective because he

showed religious bias against him, attempted to pressure him into agreeing




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to plead guilty, and did not secure text messages from him, which would have

aided his defense at trial. Gad’s Brief, at 13-14.

      Here, the PCRA court held Gad’s poorly articulated claims of religious

bias lacked any factual basis. PCRA Ct. Op. at 7-8. We agree. We have

thoroughly reviewed the record and see nothing which substantiates this

contention or casts doubt on the PCRA’s court finding that counsel’s testimony

about religious bias was credible and Gad’s was not. See Dennis, supra at

305; see also N.T. PCRA Hearing, 1/02/2019, at 14-15, 52-53.

      Gad’s contention counsel attempted to pressure him into pleading guilty

is equally lacking in factual support. Gad did not plead guilty and the PCRA

court found his testimony with respect to this issue was not credible. PCRA

Ct. Op. at 7; N.T. PCRA Hearing, 1/02/2019, at 53-54. This claim does not

merit relief. See Dennis, supra at 305.

      Gad’s complaint counsel did not secure text messages from him that

would have aided his defense at trial is equally lacking in merit. The record

reflects counsel explained to Gad that he would have to be able to authenticate

the text messages and to do that Gad needed to let his investigator examine

the cell phone.    Counsel scheduled multiple meetings with Gad and the

investigator and Gad canceled each one and refused to turn his cell phone

over to the investigator. N.T. PCRA Hearing, 1/02/2019, at 17-19; 41-43.

We cannot fault counsel for Gad’s refusal to cooperate with the investigator.


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Therefore, we agree with the trial court that Gad’s fourth claim does not merit

relief. See PCRA Ct. Op., at 7.

      In his fifth claim, Gad contends counsel was ineffective for failing to

object to two continuance requests. Gad’s Brief, at 14-15.

      The decision to grant or deny a request for a continuance is within the

sound discretion of the trial court. Commonwealth v. Pries, 861 A.2d 951,

953 (Pa. Super. 2004), appeal denied, 882 A.2d 478 (Pa. 2005). Here, Gad

has not demonstrated counsel had any basis to oppose the continuance

requests, or that the trial court would have denied the Commonwealth’s

requests if counsel opposed them, since the Commonwealth sought them

because it was attached to a homicide trial. N.T. PCRA Hearing, 1/02/2019,

at 16. Moreover, counsel explained he did not oppose the request as a matter

of professional courtesy and in the hope the Commonwealth would not object

to any continuance requests he made. Lastly, Gad was out on bail and the

continuance request did not have any speedy trial impact. See id. Thus, Gad

fails to set forth the ineffectiveness analysis required by Strickland v.

Washington, 466 U.S. 668, 687 (1984). Because he did not establish any of

the three prongs, we must deem counsel’s assistance constitutionally

effective. See Commonwealth v. Rolan, 964 A.2d 398, 406 (Pa. Super.

2008) (holding where appellant fails to address three prongs of ineffectiveness

test, he does not meet his burden of proving ineffective assistance of counsel,


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and counsel is deemed constitutionally effective).        Gad’s fifth claim lacks

arguable merit.

      In his sixth claim, Gad claims counsel was ineffective for failing to

provide him with copies of discovery. Gad’s Brief, at 15-16.

      Here, the record reflects although counsel did not provide Gad with

copies of the discovery, counsel testified he discussed the entire discovery

with him. N.T. PCRA Hearing, 1/02/2019, at 20. Gad has not explained how

the failure to provide him with copies of his own prejudiced him.

      “Claims of ineffective assistance of counsel are not self-proving[.]”

Commonwealth v. Spotz, 896 A.2d 1191, 1250 (Pa. 2006) (citation

omitted).   Our Supreme Court has repeatedly refused to consider bald

allegations of ineffectiveness, such as this one.      See Commonwealth v.

Thomas, 744 A.2d 713, 716 (Pa. 2000) (declining to find counsel ineffective

“where appellant fail[ed] to allege with specificity sufficient facts in support of

his claim.”). Thus, because Gad’s bald allegation has failed to demonstrate

prejudice, his claim fails. Commonwealth v. Anderson, 461 A.2d 208, 216

(Pa. 1983) (holding no merit to claim counsel was ineffective for failing to

provide copies of pre-trial discovery where defendant did not show prejudice).

Therefore, there is no basis to upset the PCRA court’s finding that Gad was

not entitled to PCRA relief on this issue.




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      In his final claim, Gad maintains counsel was ineffective for failing to

advise him of the maximum sentence allowed by statute. Gad’s Brief, at 16-

17. This issue does not warrant relief.

      Here, counsel testified at the PCRA hearing that he did advise Gad of his

possible sentencing exposure. N.T. PCRA Hearing, 1/02/2019, at 22-23. The

PCRA court credited this testimony and did not credit Gad’s testimony to the

contrary. PCRA Ct. Op., at 9. We have no basis to disturb this finding. See

Dennis, supra at 305. Gad’s final claim lacks merit.

      We have independently conducted our own review of this case and

determined the PCRA court did not err in dismissing Gad’s claims because he

was ineligible for collateral relief. See Doty, supra at 457. Further, because

we agree with appointed counsel that the current appeal has no merit, we

grant counsel’s motion to withdraw and affirm the order dismissing Gad’s

petition for PCRA relief. See id.



      Order affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/2/19

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