J-S56029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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