J-S47033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellee

                      v.

DALIYL RAA’ID MUHAMMAD

                           Appellant                 No. 1518 MDA 2015


                 Appeal from the PCRA Order July 29, 2015
             In the Court of Common Pleas of Dauphin County
           Criminal Division at No(s): CP-22-CR-0002967-2002,
                          CP-22-CR-0003009-2002


BEFORE: SHOGAN, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                                FILED JULY 20, 2016

     Daliyl Raa’Id Muhammad appeals from the order entered in the Court

of Common Pleas of Dauphin County denying his fifth petition for relief under

the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-46 (“PCRA”). After our

review, we affirm.

     On August 8, 2003, a jury convicted Muhammad of attempted murder,

robbery, conspiracy, aggravated assault, escape, and related charges for his

involvement, along with co-defendant Michael Cameron, in the shootings of

Jacob Nickol and Derrick Kleugel in Harrisburg. The trial court sentenced

Muhammad to an aggregate term of 37 to 90 years’ imprisonment.

Muhammad      filed   timely   post-sentence   motions,   which   were   denied.

Muhammad filed a direct appeal. On August 17, 2004, this Court vacated

the judgment of sentence imposed on the aggravated assault conviction,
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finding that it should have merged with attempted homicide. This Court

affirmed the judgment of sentence in all other respects. Muhammad did not

file a petition for allowance of appeal in the Pennsylvania Supreme Court.

     Muhammad filed a pro se PCRA petition on June 17, 2005. The court

appointed Jeffrey Engle, Esquire, as counsel and on February 8, 2006,

Attorney Engle filed a “no-merit” letter and a motion to withdraw.               On

February 10, 2006, the trial court provided notice of intent to dismiss, see

Pa.R.Crim.P. 907, and granted counsel’s motion to withdraw.            Muhammad

filed an objection to the Rule 907 notice and the motion to withdraw. On

June 29, 2006, the court dismissed Muhammad’s PCRA petition.                     On

September 13, 2006, the PCRA court issued an opinion and order confirming

dismissal of the petition and granting Attorney Engle’s motion to withdraw.

On September 29, 2006, Muhammad appealed this order, and this Court

affirmed. On November 13, 2007, Muhammad filed a petition for allowance

of appeal in the Pennsylvania Supreme Court, which the Court denied on

June 4, 2008.

     On February 13, 2009, Muhammad filed a petition for writ of habeas

corpus and a petition for immediate hearing in the Pennsylvania Supreme

Court. The Court denied both petitions.

     On April 24, 2009, Muhammad filed a pro se Motion to Take Judicial

Notice   and    an   Independent   Action;   the   trial   court   dismissed   both.

Muhammad then filed a pro se PCRA petition on May 23, 2011, and the court

appointed counsel, Jonathan Crisp, Esquire, to represent him. On July 25,

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2011, Attorney Crisp filed a “no merit” letter and a motion to withdraw,

which the court granted on August 9, 2011. On August 17, 2011, the court

dismissed Muhammad’s PCRA petition as untimely. Muhammad filed a pro

se appeal on September 12, 2011, and this Court affirmed.

      Muhammad filed his fourth PCRA petition on May 31, 2013. The court

appointed Attorney Dana Wucinski, Esquire. Attorney Wucinski petitioned to

withdraw on September 23, 2013. The court granted her petition and issued

a Rule 907 notice of intent to dismiss.    On February 11, 2014, the court

denied Muhammad’s PCRA petition.       Muhammad appealed, and this Court

affirmed.   See Commonwealth v. Muhammad, 2015 WL 7729668 (Pa.

Super. 2015).

      Muhammad filed his fifth PCRA petition on March 9, 2015, in which he

claimed that based on the affidavit of co-defendant Michael Cameron he is

entitled to relief. He claims that this information came to his attention while

the denial of his fourth PCRA was on review in this Court. The PCRA Court

denied relief, and this appeal followed.    Muhammad raises the following

issues for our review:

         1. Whether the PCRA court erred in denying [Muhammad’s]
            post-conviction petition as untimely filed when he
            established that his after-discovered fact claim met the
            plain language of the timeliness exceptions set forth in 42
            Pa.C.S.A. § 9545(b)(1)(ii) and (b)(2), and [is] in accord
            with Commonwealth v. Lark, 746 A.2d 585 (Pa. 1999);

         2. Whether [Muhammad] is entitled to relief or remand for an
            evidentiary hearing based upon the personal affidavits of
            Michael    Cameron    and   Michael    Hill   exonerating


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            [Muhammad] of the crimes charged which meet the
            miscarriage of justice/actual innocence standard;

         3. Whether the PCRA court erred by mis-categorizing Michael
            Cameron’s     affidavit  as   “previously  litigated”  and
            misrepresenting the procedural history of this case as it
            relates to the post-sentencing stage where conflict counsel
            sabotaged his direct appeal.

Appellant’s Brief, at 4.

      When reviewing an order granting or denying relief under the PCRA,

we must determine whether the decision of the PCRA court is supported by

the evidence of record and is free of legal error. Commonwealth v.

Melendez-Negron, 123 A.3d 1087, 1090 (Pa. Super. 2015).              “The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record.”   Id. (citation omitted).    Further, we are

bound the PCRA court’s credibility determinations when they are supported

by the record.     Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa.

2009).

      Our standard of review is well settled:

         In addressing the grant or denial of post-conviction relief,
         an appellate court will consider whether the PCRA court’s
         conclusions are supported by record evidence and are free
         of legal error. To be entitled to PCRA relief, a petitioner
         must establish, by a preponderance of the evidence, his
         conviction or sentence resulted from one or more of the
         errors found in 42 Pa.C.S. § 9543(a)(2), his claims have
         not been previously litigated or waived, and the failure to
         litigate the issue prior to or during trial, . . . or on direct
         appeal could not have been the result of any rational,
         strategic or tactical decision by counsel. An issue is
         previously litigated if the highest appellate court in which
         the petitioner could have had review as a matter of right
         has ruled on the merits of the issue. An issue is waived if

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          the petitioner could have raised it but failed to do so
          before trial, at trial, . . .on appeal, or in a prior state
          postconviction proceeding.

Commonwealth v. Keaton, 545 A.3d 1050, 1060 (Pa. 2012) (citations and

quotations omitted).

       In his PCRA petition, Muhammad raised the following claim:

       On November 6, 2014, Michael Cameron made an affidavit
       detailing what transpired the night of the crime. Petitioner
       obtained said evidence on or about November 11, 2014, via
       family who run petitioner’s defense site. At that particular time,
       an appeal was pending in the Superior Court which prevented
       petitioner from presenting this evidence at an earlier time. See
       Commonwealth v. Muhammad 353 MDA 2014. Said appeal
       was denied on January 23, 2015, which triggered the (60) day
       time period to present said evidence. This PCRA has been filed a
       total of (34) days after the Superior Court had issued its order.

PCRA Petition, filed 3/9/15, at 10. Michael Cameron’s affidavit states that in

the course of a drug sale, “[t]he guy behind [Muhammad] said something

then pulled a gun out . . . . Then he began raising the gun at [Muhammad]

while his back was turned.         I got scared cause I thought he was going to

either shoot [Muhammad] or rob him, so I pulled out my gun and started

shooting.” Affidavit of Michael Cameron, PCRA Petition, filed 3/9/15.

Cameron claimed police threatened him, and so he “decided to take a deal.”

Id.1


____________________________________________


1
 Cameron’s affidavit is similar to the statement he made in 2003, that it
was he (Cameron) who shot first. See N.T. Sentencing of Michael Cameron,
10/2/2003, at 4-5.



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      In his first PCRA petition, Muhammad raised the issue of whether

Cameron’s statement amounted to after-discovered evidence that warranted

a new trial. There, Muhammad argued that since the jury was allowed to

convict him based upon being an accomplice or co-conspirator, Cameron’s

statement shows that he (Muhammad) never conspired or acted as an

accomplice with Cameron.       Muhammad further stated that he was not

convicted of the charge of former convict not to possess a firearm.

Therefore, Muhammad claims, the jury did not believe he was a shooter and

only convicted him based upon the actions of Michael Cameron.       As such,

Muhammad claimed he is entitled to a new trial to determine if he truly

conspired or worked as an accomplice together with Cameron to commit the

crime of attempted homicide.

      The PCRA court determined that Michael Cameron’s statement did not

exculpate Muhammad for purposes of an after-discovered evidence claim.

On appeal, as we have noted above, this Court affirmed the PCRA court’s

order dismissing that first PCRA petition.        See Commonwealth v.

Muhammad, 944 A.2d 796 (Pa. Super. 2007) (unpublished memorandum).

The Supreme Court denied allowance of appeal on June 4, 2008.            See

Commonwealth v. Muhammad, 952 A.2d 676 (Pa. 2008).                The issue,

therefore, has been previously litigated.   See 42 Pa.C.S. § 9543(a)(3) (“To

be eligible for relief under this subchapter, the petitioner must plead and

prove by a preponderance of the evidence . . . [t]hat the allegation of error

has not been previously litigated or waived.”). See also 42 Pa.C.S. §§

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9544(a)(3) (“For purposes of this subchapter, an issue has been previously

litigated if: . . . (3) it has been raised and decided in a proceeding

collaterally attacking the conviction or sentence.”).

        With respect to Muhammad’s remaining two claims, we conclude they

are both waived.      A PCRA claim is waived “if the petitioner could have raised

it but failed to do so before trial, at trial, . . . on appeal or in a prior state

postconviction proceeding.” 42 Pa.C.S. § 9544(b). Here, Muhammad raises

issues two and three for the first time in this appeal.

        Finally, we note that we agree with Muhammad’s analysis of

Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000),2 and that his petition

was timely filed.      However, this is of no consequence because his claims


____________________________________________


2
    In Lark, our Supreme Court stated:

        We now hold that when an appellant's PCRA appeal is pending
        before a court, a subsequent PCRA petition cannot be filed until
        the resolution of review of the pending PCRA petition by the
        highest state court in which review is sought, or upon the
        expiration of the time for seeking such review.             If the
        subsequent petition is not filed within one year of the date when
        the judgment became final, then the petitioner must plead and
        prove that one of the three exceptions to the time bar under 42
        Pa.C.S. § 9545(b)(1) applies. The subsequent petition must also
        be filed within sixty days of the date of the order which finally
        resolves the previous PCRA petition, because this is the first
        “date the claim could have been presented.” 42 Pa.C.S. §
        9545(b)(2).

Id. at 588 (footnote omitted).




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have been previously litigated or waived. See 42 Pa.C.S. §§ 9543(a)(3) and

9544(a)(2).

     Order affirmed.

     Judge Shogan joins the Memorandum.

     Judge Jenkins concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2016




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