J-S04001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
DALIYL RAA’ID MUHAMMAD                   :
                                         :
                   Appellant             :   No. 761 MDA 2017

                 Appeal from the PCRA Order April 7, 2017
   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., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                            FILED MARCH 21, 2018

      Appellant, Daliyl Raa’id Muhammad, appeals pro se from the April 7,

2017 order denying his serial petition filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

      A prior panel of this Court set forth the relevant factual history of this

case as follows:

            The evidence presented establishes that on the evening of
      January 13, 2002, James Nickol called appellant in order to
      purchase marijuana. Appellant indicated he could sell Nickol
      three pounds of the drug for $2,400, and agreed to meet Nickol
      later that evening on South 14th Street in Harrisburg,
      Pennsylvania. Nickol and a companion, Derrick Kleugel, then
      drove to Harrisburg. Upon their arrival, appellant informed them
      they would have to walk a few blocks to get the marijuana.
      Appellant was accompanied by another man, later identified as
      co-defendant Michael Cameron. At some point while the four
      men were walking down South 15th Street, appellant and
      Cameron slowly began to lag behind the victims. Gunfire then
      rang out and Nickol was shot three times in the back, three
J-S04001-18


       times in the stomach, and once in the hip. Kleugel was shot
       twice in the back and once in the hip. Nickol testified that
       immediately after the incident, he felt a burning sensation and
       fell to the ground. He further testified that appellant then
       climbed on top of him while holding a shiny object in his hand
       and demanded money. Kleugel also testified that after he fell,
       someone searched him and demanded money. N.T., 8/6/03, at
       81-83, 85-88, 90-94; N.T., 8/7/03, at 162-164, 166.

             Appellant fled the scene before police and emergency
       personnel responded to the victims. He was apprehended
       following considerable resistance on July 7, 2002, almost six
       months later. N.T., 8/7/03, at 179, 182-183, 209-211.

Commonwealth v. Muhammad, 860 A.2d 1132, 1767 MDA 2003 (Pa.

Super. filed August 17, 2004) (unpublished memorandum at 2-3).

       Following a jury trial, Appellant was found guilty of criminal attempt to

commit homicide, robbery, conspiracy, two counts of aggravated assault,

flight to avoid apprehension, escape, resisting arrest, and false identification

to   law   enforcement.1         Muhammad,       1767   MDA   2003   (unpublished

memorandum at 1).          Appellant filed a timely appeal, and on August 17,

2004, this Court affirmed Appellant’s judgment of sentence in part and

vacated in part. Id. This Court concluded that Appellant’s convictions for

the attempted homicide and aggravated assault on James Nickol should

have merged, and therefore, one of his sentences for aggravated assault

was vacated. Id. at 12. However, we explained that because Appellant was
____________________________________________


1 18 Pa.C.S. §§ 901, 3701(a)(1)(i), 903, 2702(a)(1), 5126, 5121(a), 5104,
and 4914(a) respectively. We note that the PCRA court erroneously stated
that false identification to law enforcement was a violation of 18 Pa.C.S.
§ 4906(a). PCRA Court Opinion, 7/10/17, at 1 n.10.



                                           -2-
J-S04001-18


convicted of two counts of aggravated assault for which the trial court

imposed concurrent sentences, this Court’s disposition did not upset the trial

court’s sentencing scheme, and thus, remand for resentencing was not

required.   Id. (citing Commonwealth v. Robinson, 817 A.2d 1153 (Pa.

Super. 2003)). Appellant did not file a petition for allowance of appeal in the

Pennsylvania Supreme Court. Therefore, Appellant’s judgment of sentence

became final on September 16, 2004, when the time to pursue allowance of

appeal in our Supreme Court expired. See Pa.R.A.P. 1113(a) (“a petition for

allowance of appeal shall be filed with the Prothonotary of the Supreme

Court within 30 days after the entry of the order of the Superior Court or the

Commonwealth Court sought to be reviewed.”); see also 42 Pa.C.S.

§ 9545(b)(3) (a defendant’s judgment of sentence “becomes final at the

conclusion of direct review, including discretionary review in the Supreme

Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of the time for seeking the review”).      Over the next decade,

Appellant filed four PCRA petitions, and each petition was denied.

      On October 7, 2016, and October 28, 2016, Appellant filed what were

nominally his fifth and sixth PCRA petitions, respectively.    These petitions

were duplicative in substance, and the PCRA court treated them as a single

PCRA petition. PCRA Court Opinion, 7/10/17, at 4. On February 14, 2017,

the PCRA court issued notice of its intent to dismiss the petition as untimely.




                                     -3-
J-S04001-18


On April 7, 2017, the PCRA court dismissed the petition, and this timely

appeal followed.

      On appeal, Appellant raises the following issues:

      I. WHETHER THE PCRA COURT DENIED DEFENDANT DUE
      PROCESS BY REFUSING HIM AN OPPORTUNITY TO AMEND HIS
      PCRA?

      II. WHETHER THE AFFIDAVIT OF JOYETTA FOSTER DETAILING
      JUDGE CLARK’S BIAS AGAINST MUSLIMS MET THE AFTER
      DISCOVERED   FACTS   AND   MISCARRIAGE    OF  JUSTICE
      EXCEPTIONS AND IS DEFENDANT ENTITLED TO A NEW TRIAL
      OR REMAND FOR AN EVIDENTIARY HEARING?

      III. WHETHER THE PCRA COURT ERRED IN REQUIRING
      DEFENDANT TO PLEAD/PROVE DUE DILIGENCE UNDER THE
      GOVERNMENTAL INTERFERENCE EXCEPTION WHEN THE
      STATUTE DOES NOT CONTAIN SUCH LANGAUGE, AND HAS THE
      STATE COURTS ESTABLISHED A CLEAR DEFINITION FOR
      GOVERNMENTAL INTERFERENCE?

      IV. WHETHER THE LOSS, ALTERATION, OR FAILURE TO
      PROVIDE A FULL/COMPLEE COPY OF THE TRIAL PROCEEDINGS
      BY THE COURT OR ITS OFFICERS AMOUNT TO GOVERNMENTAL
      INTERFERENCE/MISCARRIAGE    OF    JUSTICE   RENDERING
      DEFENDANT’S UNDERLYING CLAIM OF DENIAL OF A FAIR TRIAL,
      APPEAL, JUDICIAL BIAS REVIEWABLE ON THE MERITS, OR A
      REM, A REMAND FOR AN EVIDENTIARY HEARING?

      V. WHETHER THE PCRA COURT ERRED, AS A MATTER OF LAW,
      IN ITS ASSESSMENT OF THE SUBSTANCE/TIMELINESS OF
      MICHAEL HILL’S AFFIDAVIT/STATEMENT WHICH MET THE AFTER
      DISCOVERED FACTS/MISCARRIAGE OF JUSTICE STANDARD:
      AND IS DEFENDANT ENTITLED TO A NEW TRIAL OR REMAND
      FOR AN EVIDENTIARY HEARING?

Appellant’s Brief at vi (verbatim).

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether that court’s


                                      -4-
J-S04001-18


determination is free of legal error. Commonwealth v. Phillips, 31 A.3d

317, 319 (Pa. Super. 2011). The PCRA court’s findings will not be disturbed

unless there is no support for the findings in the certified record. Id.

       A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final.            42 Pa.C.S. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.       Commonwealth v.

Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). A judgment of sentence

“becomes final at the conclusion of direct review, including discretionary

review in the Supreme Court of the United States and the Supreme Court of

Pennsylvania, or at the expiration of time for seeking the review.”           42

Pa.C.S. § 9545(b)(3).

       However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.2 A petition invoking one of these exceptions must be filed

within sixty days of the date the claim first could have been presented. 42

____________________________________________


2   The exceptions to the timeliness requirement are:

       (i)    the failure to raise the claim previously was the result of
       interference by government officials with the presentation of the
       claim in violation of the Constitution or laws of this
       Commonwealth or the Constitution or laws of the United States;

(Footnote Continued Next Page)


                                           -5-
J-S04001-18


Pa.C.S. § 9545(b)(2).        In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Hernandez, 79 A.3d at 652.

      We have reviewed the briefs of the parties, the relevant law, the

certified record before us, and the PCRA court’s opinion. We discern no error

in the PCRA court’s analysis and conclusion that Appellant’s PCRA petition

was   untimely     and   that   no    exceptions   to   the   PCRA’s   time-for-filing

requirements were satisfied. Accordingly, we affirm the April 7, 2017 order

based on the PCRA court’s opinion, and we adopt its analysis and reasoning

as our own. The parties are directed to attach a copy of the PCRA court’s

July 10, 2017 opinion, which incorporated the PCRA court’s February 14,

2017 memorandum opinion, in the event of further proceedings in this

matter.

      Order affirmed.

(Footnote Continued) _______________________

      (ii)  the facts upon which the claim is predicated were unknown
      to the petitioner and could not have been ascertained by the
      exercise of due diligence; or

      (iii) the right asserted is a constitutional right that was
      recognized by the Supreme Court of the United States or the
      Supreme Court of Pennsylvania after the time period provided in
      this section and has been held by that court to apply
      retroactively.

42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).




                                          -6-
J-S04001-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/21/2018




                          -7-
                                                                                     Circulated 02/22/2018 12:17 PM




COMMONWEALTH OF PENNSYLVANIA                            :       IN THE COURT OF COMMON PLEAS
                                                        :       DAUPHIN COUNTY, PENNSYLVANIA
                           v.
                                                                NO. 761 MDA 2017
DALIYL MUHAMMAD,
                           Defendant/Appellant          :       TRIAL COURT NO. 2967, 3009 CR 2002

                                            OPINION
                                  [Pursuant to Pa. R.A.P. 1925(a)]

          Presently before this Court is the appeal of Daliyl Muhammad (hereinafter

"Defendant" or "Appellant") from this Court's Order of April 7, 2017, dismissing his Petition

for Post-Conviction Collateral Relief ("PCRA").

PROCEDURAL HISTORY
                                                                                    2002
          Defendant was arrested relative to incidents that occurred on January 12,

(Docket No, 2967 CR 2002) and July          7,   2002 (Docket No. 3009 CR 2002). With respect

                                                                           was charged
to the January 12, 2002 incident, in which two people were shot, Defendant
                                                                              Assault4,
with Criminal Attempt (Homicide)1, Criminal Conspiracy2, Robbery3, Aggravated
                                                                         a Firearm6.
Carrying a Firearm Without a Licenses, and Former Convict Not to Possess
                                                                             he
When Defendant was arrested on July 7, 2002, for the aforementioned charges,

obtained new charges, which included Flight to Avoid Apprehension of Prosecution7,

Escape, Resisting Arrests, False Identification to Law Enforcement Authorities1°,




 1   18 Pa.C.S.A. § 901.
 2   18 Pa.C.S.A. § 903.
 318 Pa.C.S.A. § 3701(a)(1)(i).
 418 Pa.C.S.A. § 2702(a)(1).
 518 Pa.C.S.A. § 6106(a).
 8 18 Pa.C.S.A. § 6105.

 7 18 Pa.C.S.A. § 5126.

 818 Pa.C.S.A. § 5121(a).
   18 Pa.C.S.A. § 5104.
 1° 18 Pa.C.S,A, § 4906(a).


                                                 Page       1   of 8
Disorderly Conduct -Unreasonable Noisell, and Simple Trespass12. A jury trial was held

from August      5   through August 14, 2003, before the Honorable Lawrence                             F. Clark, Jr.


(hereinafter referred to as "Judge Clark"), now retired. Defendant was found guilty on two

(2) counts of Aggravated Assault and one (1) count each of Escape, Resisting
                                                                             Arrest,

Criminal Attempt (Homicide), Robbery, Criminal Conspiracy, False Identification to Law

Enforcement Authorities, and Flight to Avoid Apprehension of Prosecution. Thereafter,
                                                                                 (37)
on October 2, 2003, Defendant was sentenced to an aggregate term of thirty-seven

to ninety (90) years of incarceration at a state correctional institution.                                 Defendant

subsequently filed       a   direct appeal to the Superior Court of Pennsylvania. On August 17,
                                                                   the judgment of
2004, the Superior Court issued a memorandum opinion which vacated
                                                                          but affirmed
sentence imposed on Defendant for one of the counts of Aggravated Assault

the judgment of sentence as to all other counts.13                          It   appears from the record that

                                                                      or the Supreme
Defendant did not appeal to -either the Supreme Court of Pennsylvania

Court of the United States.

         Defendant filed his first pro se PCRA petition on June                      '1,   2005. Jeffrey B. Engle,

Esquire, was appointed by the court to represent Defendant relative
                                                                    to the PCRA

 proceedings. On February 8, 2006, Attorney Engle filed                      a   Motion to Withdraw, along with

 a letter   of "no merit" pursuant to Commonwealth                 v.   Turner, 544 A.2d 927 (Pa. 1988), and

                                                                           was
 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). The PCRA petition

 dismissed on June 29, 2006. Defendant appealed the dismissal of his PCRA Petition to



 "18   Pa.C.S.A. § 5503(a)(2).
 12 18 Pa.C.S.A. § 3503(b.1)(1)(i).
 13 Defendant was convicted of two counts of aggravated
                                                         assault for which the trial court imposed concurrent
 sentences. Therefore,  even though  the Superior Court vacated  the judgment of sentence as to one of the counts of
                                                                                             its disposition did not upset
 aggravated assault, the Superior Court found no need to remand for sentencing because
 the trial court's sentencing scheme.

                                                      Page 2 of 8
                                                                         Defendant's
the Superior Court of Pennsylvania, which affirmed on November 16, 2007.
                                                                      was denied on
Petition for Allowance of Appeal to the Supreme Court of Pennsylvania

June 4, 2008.
                                                                           Action" with
       On May 29, 2009, the Defendant filed what he titled an "Independent
                                                                            by way of fraud
the trial court, alleging that his judgment of conviction had been procured
                                                                               2010, Defendant
that had been perpetrated upon the court. Thereafter, on January
                                                                         6,


filed a "Petition for Writ of Mandamus and/or Extraordinary Relief,"
                                                                     which requested that

                                                             "Independent Action." The
the trial court be directed to respond to the aforementioned
                                                                 and Defendant appealed
trial court denied the "Independent Action" on January 22, 2010,

to the Superior Court, which affirmed the denial of the
                                                        "Independent Action" on December

                                                              with respect to the
3, 2010.    It appears that Defendant took no further appeals

 "Independent Action."
                                                             May 23, 2011. Jonathan
       Defendant then filed a second pro se PCRA petition on

 W. Crisp, Esquire, was appointed by the court to
                                                  represent Defendant relative to the

 PCRA proceedings. On July 25, 2011, Attorney Crisp
                                                    filed a Motion to Withdraw, along

                                                                     on August 17, 2011.
 with a letter of "no merit." The second PCRA petition was dismissed
                                                              to the Superior Court of
 Defendant appealed the dismissal of his second PCRA petition

                                        decision filed March 26, 2012.        On April 11, 2012,
 Pennsylvania, which affirmed    in a

                                                                         of the Superior
 Defendant filed an application requesting reargument or reconsideration
                                                                 June 8, 2012. It appears
 Court's decision, but the Superior Court denied this request on

 that no further appeals were taken.

        On or about May 6, 2012, Defendant filed a third
                                                         pro se PCRA petition.

                                                           May 31, 2013. Dana M.
 Subsequently, Defendant filed an amended PCRA petition on


                                           Page 3 of 8
Wucinski, Esquire, was appointed by the court to represent Defendant relative to the

PCRA proceedings.         On September 23, 2013, Attorney Wucinski filed a Motion to

Withdraw, along with a letter of "no merit." Defendant's third PCRA was dismissed on

February 11, 2014. Defendant appealed the dismissal of his third PCRA petition to the

Superior Court of Pennsylvania, which affirmed the dismissal on March       3,   2015.

        On March 9, 2015, Defendant filed a fourth pro se PCRA petition. The fourth PCRA

petition was dismissed on July 30, 2015. Defendant appealed the dismissal of his fourth

PCRA petition to the Superior Court of Pennsylvania, which affirmed on September 2,

2016.

        On October 7, 2016 and October 28, 2016, the Defendant filed two PCRA petitions,

which were identical as to content and substance. This Court issued a Notice of Intent to

Dismiss both PCRA petitions on February 14, 2017. Defendant requested an extension

of time to file a response to our notice to dismiss, which was subsequently filed on April

3, 2017. Both    PCRA petitions were dismissed on April 7, 2017. Defendant filed a Notice

to Appeal on May 5, 2017. On May 22, 2017, Appellant was directed to file a Concise

Statement of Errors.


Statement of Errors Complained of on Appeal
        1.   Whether the PCRA Court denied Defendant Due Process by refusing him an
             opportunity to amend his PCRA?

        2.   Whether the affidavit of Joyette Foster detailing Judge Clark's bias against
             Muslims met the "After -discovered facts" and "Miscarriage of Justice"
             exceptions; and is Defendant entitled to a new trial or remand for an evidentiary
             hearing?

        3.   Whether the PCRA court erred in requiring Defendant to plead/prove due
             diligence under the Governmental Interference exception when the statute



                                          Page 4 of 8
            does not contain such language; and has the state courts established a clear
            definition for Governmental Interference claims?

         4. Whether the loss, alteration, or failure to provide a full/complete copy of the trial
            proceedings by the court or its officers amount to Governmental
            Interference/Miscarriage of Justice rendering Defendant's underlying claim of
            denial of a fair trial/appeal/judicial bias reviewable on the merits, or a remand
            for an evidentiary hearing?

         5. Whether the PCRA court erred, as a matter                  of law,
                                                                          assessment of the
                                                                                 in its
            substance/timeliness of Michael Hill's affidavit/statement which met both the
            after discovered facts/miscarriage of justice standards; and is Defendant
            entitled to a new trial or remand for an evidentiary hearing?
DISCUSSION

         This Court believes that our Memorandum Opinion and Order dated February 14,

2017 thoroughly addresses the issues raised in Defendant's current Concise Statement

of Matters Complained of on Appeal filed on June 9, 2017,                             Defendant's current

arguments are without merit because, as stated                in   the Memorandum Opinion, "the newly

discovered fact exception 'has two components, which much be alleged and proved.

Namely, the petitioner must establish that: 1) "the facts upon which the claim was

predicated were unknown" and 2) "could not have been ascertained by the exercise of

due diligence:1"14 The fact that Hill may be             a   "newly willing source" for said facts does

not constitute an exception under 42 Pa.C.S. § 9545(b)(1)(ii).                      The same is true for

Defendant's alternative argument for the Affidavit of Joyette Foster. Although Foster may

be a "newly willing source" for said facts does not constitute an exception under 42

Pa.C.S. § 9545(b)(1)(ii). Since this issue has been thoroughly discussed by the Court

(copy attached), it will not be addressed further.




14   Commonwealth   v.   Bennett 930 A.2d 1264, 1272 (Pa. 2007) (quoting 42 Pa.C.S. § 9545(b)(1)(ii)).

                                                  Page 5 of 8
       Defendant further asserts that the court has denied him due process by refusing

to allow him to amend his PCRA petition. This issue has been ruled upon by the Court in

its Order dated March 13, 2017, (copy attached) and will not be addressed further.

Alternatively, Defendant's PCRA petition was not filed in a timely manner.

       A PCRA petition, "including a second or subsequent one, must be filed within one

year of the date that the petitioner's judgement of sentence became final unless he pleads

and proves one of the exceptions outlined in 42 Pa.C.S.A. § 9545(b)(1),"15 A judgment

becomes final at the conclusion of direct review, including discretionary review in the

Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of time for seeking such review.16 This time requirement is jurisdictional in

nature and applies to all PCRA petitions, regardless of the merits or legality of any claims

raised therein.17 A court may not address the merits of an untimely PCRA petition unless

one of the three enumerated exceptions outlined in 42 Pa.C.S. § 9545(b)(1) is satisfied."

       The three exceptions are: (1) interference by government official in the

presentation of the claim; (2) newly discovered facts that could not have been previously

discovered by the petitioner through the exercise of due diligence; and (3) an after -

recognized constitutional right that has been held to apply retroactively." Moreover, any

claims asserted within this provision must be made within sixty (60) days of when they

became known.2°




15
   Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012).
16 42 Pa.C.S. § 9545(b)(3); Jones 54 A.3d at 17.
17 Jones, 54 A.3d at 17; Commonwealth v. Abdul -Salaam 812 A.2d 497, 500 (Pa. 2002); Commonwealth
v. Cintora 69 A.3d 759, 760 (Pa. Super. Ct. 2013).
18 Jones  54 A.3d at 17; Commonwealth v. Copenhefer, 941 A.2d 646, 648-649 (Pa. 2007).
1942 Pa.C.S. § 9545(b)(1)(i)-(iii).
2042 Pa.C.S. § 9545(b)(2); Jones 54 A.3d at 17.

                                          Page 6 of 8
        In the   instant matter, the Superior Court issued   a   Memorandum Opinion on August

17, 2004, vacating the judgment of sentence imposed on Defendant for one of the counts

of Aggravated Assault, but affirmed the judgment of sentence to all the other counts.

Defendant's judgment of sentence became final thirty (30) days later, on or about

September 17, 2004, when his time for seeking review from the Supreme Court of

Pennsylvania expired. Therefore, Defendant had one (1) year             - or until September 17,
2005   - to file a PCRA petition.   The subject PCRA petitions were filed on October 7, 2016

and October 28, 2016         -   more than twelve (12) years after the date upon which

Defendant's judgment of sentence became final. Thus, Defendant must plead and prove

one of the three enumerated exceptions contained in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) in

order for his motion to be considered timely.

        Defendant asserts that the PCRA court required him to plead/prove his due

diligence. The court never required Defendant to plead or prove due diligence and the

issue therefore will not be addressed. Furthermore, the Court will not entertain factual

questions.

        Moreover, Defendant also asserts that there was governmental interference due

to the loss, alteration, or failure to provide a full and complete copy of the trial proceedings.

Defendant's argument under this exception is not entirely clear and has not been raised

in his previous four PCRA petitions, Therefore, the Court believes this issue is waived

and it will not be addressed.

        Defendant's PCRA petition is untimely on its face, and Defendant has failed to

plead and prove that his petition meets the requirements of the statutory exceptions to




                                           Page 7 of 8
the PCRA's jurisdictional time -bar. This Court therefore lacks jurisdiction to consider

Defendant's substantive claims.

        Accordingly, we ask the Superior Court of Pennsylvania to affirm our Order of April

7, 2017 dismissing    Appellant's fifth PCRA petition, and to dismiss the appeal         in   this

matter.




Date:                Az   .1-o                      Respectfully submitted:




                                                                          William T. T ly, J.




DISTRIBUTION:          7//6/ 7 eee------
Ryan   Lysaght, Esquire                       Office
                            - District Attorney's
Daliyl Muhammad, #GB -0883, SCI -Coal Twp.,         1   Kelley Drive, Coal Township, PA 17866
Clerk of Courts     ..22-7-0                                                  /nip ---
Cou rt Administration
FILE       6_0




                                         Page 8 of 8
    COMMONWEALTH OF PENNSYLVANIA,                           :   IN THE COURT OF COMMONPLEAS,
                                                                DAUPHIN COUNTY, PENNSYLVANIA
                    v.

                                                            :   NO. 2967 CR 2002; 3009 CR 2002
    DALIYL MUHAMMAD,
                                   Defendant                    PCRA

                                   MEMORANDUM OPINION

          Presently before this Court is        a     Motion for Post -Conviction Collateral Relief

pursuant to the Post -Conviction Collateral Relief Act ("PCRA") filed by Defendant Daliyl

Muhammad (hereinafter "Defendant").                 For the reasons set forth below, we find that

Defendant's claims are without merits

PROCEDURAL HISTORY

          Defendant was arrested relative to incidents that occurred on January 12, 2002

(Docket No. 2967 CR 2002) and July 7, 2002 (Docket No. 3009 CR 2002), With respect   .




to the January 12, 2002 incident, in which two, people were shot, Defendant was charged

with Criminal Attempt (Homicide),1 Criminal Conspiracy,2 Robbery,3 Aggravated Assault,4

Carrying a Firearm Without a License,5 and Former Convict Not to Possess                 a   Firearm.6

Then, on July 7, 2002, when Defendant was arrested on the aforementioned charges, he

obtained new charges including Flight to Avoid Apprehension of Prosecution,7 Escape,8

Resisting Arrest,9 False Identification to Law Enforcement Authorities,10 Disotderly



1   18 Pa.C.S.A. § 901.
2   18 Pa:C.S.A. § 903.
3   18 Pa.C.S.A. § 3701(a)(1)(0.
418 Pa.C.S.A. § 2702(a)(1).
5 18 Pa.C.S.A. § 6106(a).

6 18 Pa.C.S.A. § 6105.

  18-Pa.C.S.A. § 5126.
518 Pa.C.S.A. § 6121(8).
9 18 Pa C.S.A..§ 5104.

1918 Pa.C.S.A. § 4906(a).

                                               Page   1   of 12
Conduct -Unreasonable Noise,11 and Simple Trespass.12 A jury trial was held from August

5    through August 14, 2003 before the Honorable Lawrence                     F. Clark, Jr.   (hereinafter

"Judge Clark"), now retired, and Defendant was found guilty on two counts of Aggravated.

Assault and one count each of Escape, Resisting Arrest, Criminal Attempt (Homicide),

Robbery, Criminal Conspiracy, False Identification to Law Enforcement Authorities, and

Flight to Avoid Apprehension of Prosecution. Thereafter, on October 2, 2003, Defendant

was sentenced to an aggregate term of thirty-seven (37) to ninety (90) years of

incarceration at      a   state correctional institution.   Defendant subsequently filed a direct

appeal to the Superior Court of Pennsylvania. On August 17, 2004, the Superior Court

issued a memorandum opinion which vacated the judgment of sentence imposed on

Defendant for one of the counts of Aggravated Assault but affirmed the judgment of

sentence as to all of the other counts.13 It appears from the record that Defendant did not

appeal to either the Supreme Court of Pennsylvania or the Supreme Court of the United

States.

          Defendant filed his first pro se PCRA petition on June          1,    2005. Jeffrey B. Engle,

Esquire, was appointed by the court to represent Defendant relative to the PCRA

proceedings. On February 8, 2006, Attorney Engle filed            a   Motion to Withdraw, along with

8    letter of "no merit" pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).                        The PCRA petition was

ultimately dismissed on June 29, 2006. Defendant appealed the dismissal of his PCRA



11   18 Pa,C.S.A. § 6503(a)(2).
12   18 PaC.S.A. § 3593(b.1)(1)(1).
13 Defendant was convicted of two counts of aggravated assault for which the trial court imposed
concurrent sentences. Therefore, even though the Superior Court vacated the judgment of sentence as
to one of the counts of aggravated assault, the Superior Court found no need to remand for sentencing
because its disposition did not upset the trial court's sentencing scheme.

                                              Page 2 of 12
petition to the Superior Court of Pennsylvania, which ultimately affirmed on November 16,

2007.        Defendant's Petition for Allowance of Appeal to the Supreme Court of

Pennsylvania was denied on June 4, 2008.

           On May 29, 2009, the Defendant filed what he titled an "Independent Action" with

the trial court, alleging that his judgment of conviction had been procured by way of fraud

that had been perpetrated upon the court. Thereafter, on January 6, 2010, Defendant

filed a "Petition for Writ of Mandamus and/or Extraordinary Relief' which requested that

the trial court be directed to respond to the aforementioned "Independent Action." The

trial court denied the "Independent Action" on January 22, 2010, and Defendant appealed

to the Superior Court, which affirmed the denial of the "Independent Action" on December

3, 2010.        It   appears that Defendant took no further appeals with respect to the

"Independent Action."

           Defendant then filed   a   second pro se PCRA petition on May   23.,   2011. Jonathan

W. Crisp, Esquire, was appointed by the court to represent Defendant relative to the

PCRA proceedings. On July 25, 2011, Attorney Crisp filed         a   Motion to Withdraw, along

with   a   letter of "no merit." The second PCRA petition was ultimately dismiised on August

17, 2011. Defendant appealed the dismissal of his second PCRA petition to the           Superior

Court of Pennsylvania, which ultimately affirmed in a decision filed March 26, 2012. On

April 11, 2012, Defendant filed an application requesting reargument or reconsideration

of the Superior Court's decision, but the Superior Court denied this request on June 8,

2012. It appears that no further appeals were taken.

           On or about May 6, 2012, Defendant filed a third pro se PCRA petition.

Subsequently, Defendant filed an amended PCRA petition on May 31, 2013. Dana M.



                                             Page 3 of 12
Wucinski, Esquire, was appointed by the court to represent Defendant relative to the

PCRA proceedings.        On September 23, 2013, Attorney Wucinski filed a Motion to

Withdraw, along with a letter of "no merit?        Defendant's third PCRA was ultimately

dismissed on February 11, 2014. Defendant appealed the dismissal of his third PCRA

petition to the Superior Court of Pennsylvania, which ultimately affirmed on March 3,

2015.

         On March 9, 2015, Defendant filed a fourth PCRA petition.        The fourth PCRA

petition was ultimately dismissed on July 30, 2015, and Defendant appealed the dismissal

of his fourth PCRA petition to the Superior Court of Pennsylvania, which affirmed on

September 2, 2016.

         Currently before the court are two PC RA petitions that Defendant filed on October

7,   2016 and October 28, 2016, respectively. With regard to content and substance, both

of these petitions are identical,    and, therefore, it is unnecessary to discuss each

separately. As such, we will discuss the two petitions collectively. In the instant petitions,

Defendant first alleges that Judge Clark made comments at his criminal trial that revealed

a    bias against Muslims and that such comments "appeal[ed] to the fears and prejudice of

the jury." Second, Defendant alleges the presence of "after -discovered facts," specifically

what he alleges to be an affidavit of an eyewitness named Michael Hill. Defendant claims

that Hill's purported affidavit establishes that a victim and codefendant referred to as

"Nickol" shot at Defendant thereby initiating the encounter which ultimately led to

Defendant's criminal conviction.     Defendant claims that this "totally refutes what was

presented during trial by the Commonwealth."




                                        Page 4 of 12
DISCUSSION

          A PCRA petition, "including a second or subsequent one, must be filed within one

year of the date that the petitioner's judgment of sentence became final, unless he pleads

and proves one of the three enumerated exceptions outlined in 42 Pa.C.S.A. §

9545(b)(1)."14 A judgment becomes final at the conclusion of direct review, including

discretionary review     in -the   Supreme Court of the United States and the Supreme Court

of Pennsylvania, or at the expiration of time for seeking such review.15               This time

requirement is jurisdictional in nature and applies to all PCRA petitions, regardless of the

merits or legality of any claims raised therein -16 A court may not address the merits of an

untimely PCRA petition unless one of three enumerated exceptions outlined in 42 Pa.C.S..

§    9545(b)(1) is satisfied,17

          In the   instant matter, on August 17, 2004, the Superior Court issued. a

memorandum opinion which vacated the judgment of sentence imposed on Defendant

for one of the counts of Aggravated Assault but affirmed the judgment of sentence as to

all of the other counts. Defendant's judgment of sentence, therefore, became final thirty

(30) days later, on or about September 17, 2004, when his time for seeking review from

the Supreme Court of Pennsylvania expired. Therefore, Defendant had one (1)             year- or
until September 17, 2005      -to file a PCRA petition.    The instant PCRA petitions were filed

on October 7, 2016 and October 28, 2016, respectively, both dates which are more than

twelve (12) years after the date upon which Defendant's judgment of sentence became




14 Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012)
16 42 Pa.C.S. § 9545(b)(3); Jones 54 A.3d at 17
16 Jones, 54 A.3d at 17; Commonwealth v. Abdul -Salaam, 812 A.2d 497, 500 (Pa. 2002); Commonwealth

v. Cintora 69 A.3d 759, 760 (Pa. Super. Ct. 2013)
17 Jones 54 A.3d at 17; Commonwealth v. Copenhefer, 941 A.2d 646, 648-49 (Pa. 2007)



                                            Page 5 of 12
final. Thus, Defendant must plead and prove one of the three enumerated exceptions

contained in 42 Pa.C.S.A:             §   9545(b)(1)(j)-(iii) in order for, his motion to be considered

timely.

          The three exceptions              are: (1)   interference by government official in the

presentation of the. claim; (2) newly discovered facts that could not have been previously

discovered by the petitioner through the exercise of due diligence; and (3) an after -

recognized constitutional right that has been held to apply retroactively.18

           In   the instant matter, the gravamen of Defendant's first claim is that Judge Clark

allegedly made comments at his criminal trial which revealed               a bias   against Muslims and

that such comments had            a   prejudicial effect on the jury which ultimately convicted him.

To support this claim, Defendant provides the written affidavits of three women (Joyetta

Foster, Marlene Selvey, and Kathryn Gann) who allegedly were present in the courtroom

during Defendant's trial and overheard Judge Clark make the allegedly biased comments.

In Foster's affidavit, she alleges that she was present in the courtroom at the                 time of

Defendant's trial and heard the Judge (who Foster does not specify by name) state off

the record that he "needed to make an example of Islamic members of the Harrisburg

 community especially since this was such a difficult time for our country."19 In the second

 affidavit, written by Selvey (who refers to Defendant as "my son"), it is alleged that

 Defendant's attorney informed Selvey and Defendant that Judge Clark "did not like

 [Defendant]" and "was going to make sure he gave him a sentence of 99 years."2°

 Additionally, Selvey alleges that Judge Clark made a "stipulation" that no one was to see




 18   42 Pa.C.S. § 9545(b)(1)(i)-(iii)
 19   See "Exhibit A" to Defendant's Instant PCRA Petition.
 20   See °Exhibit B" to Defendant's Instant PCRA Petition

                                                   Page 6 of 12
the trial transcripts until he released them.21           In   the third affidavit, Gann, who identifies

herself as a "family member" of the defendant, writes that when Judge Clark charged the

jury, he stated to them as follows: "Let me reflect your memory to the 911. incident that

took place and the terrorist [sic] attacked America.             I   need yall [sic] to keep in mind there

are still terrorist [sic] that walk among us everyday [sic] in our neighborhood."22 Gann

also claims that a court reporter overheard Judge Clark's comments, but she [the court

reporter] said she could not get involved because she would lose her job. Gann also

states that when she was ultimately provided with                       a   copy of the transcripts the

"information was not in there."23

           Defendant contends that Judge Clark's comments fall within the exception

provided in 42 Pa.C.S.A. § 9545(b)(1)(i), namely interference by a governmental official

in   the presentation of a claim.          Certainly, we cannot see how the alleged comments

themselves amounted to interference by a governmental official in the presentation of a

claim. Defendant appears to allege, however, that it is something that occurred after the

comments were made that amounted to governmental interference.                                Specifically,

Defendant makes          a   suggestion that Judge Clark clandestinely had his biased statements

removed from the record either by his own doing or through the. assistance of other

officers of the court. These allegations are merely speculative, however, and Defendant

provides no concrete evidence that either Judge Clark or any other governmental official

took any action to conceal any statements from the transcripts or any partof the record.

Defendant merely alleges that the transcripts he received did not contain the comments




21   id.
22   See   "Exhibitt" to Defendant's Instant PCRA Petition.
23   Id.

                                                 Page 7 of 12
allegedly made by Judge Clark, but he does not plead any specific facts to suggest that

the absence of these comments in the transcripts is the fault of Judge Clark or any other

official.    Furthermore, Defendant fails to state why the claims he raises in his instant

petition could not have been raised in a timely fashion.              It is not as if    the transcripts

reflecting Judge Clark's alleged comments just turned up recently, allowing Defendant to

only be able to raise his claim at the current time. There are still no transcripts reflecting

Judge Clark's alleged comments, and the instant claim is based only on affidavits of

individuals who were present at Defendant's 2003 trial. Considering that these individuals

were present at the 2003 trial, similar affidavits could have easily been taken from them

at a much earlier date and during the time frame in which a PCRA filing would have been

timely. Defendant, however, fails to provide a viable excuse for why these affidavits are

only being presented now and why they could not have been presented in any of the

previous PCRA petitions he filed. Thus, we conclude that Defendant's claim regarding

Judge Clark's allegedly biased comments does not fall under the 42 Pa.C.S.A.

§    9545(b)(1)(i) exception for a timely filing.

            With respect to his second claim, Defendant claims the presence of "after

discovered facts" that would constitute an exception under 42 Pa.C.S.                §   9545(b)(1)(iii),

i.e., newly discovered facts that could not have been previously discovered by the

petitioner through the exercise of due diligence.              The "newly discovered fact" that

Defendant attempts to present is a declaration24 of an individual named Michael Hill

(hereinafter "Hill"), who allegedly was an eyewitness to the -January 12, 2002 incident

giving rise to Defendant's conviction. In this declaration, which Defendant claims is an



24Although Hill's declaration is attached to Defendant's PCRA Petition, it appears that Defendant does
not specifically label this declaration as an exhibit.

                                             Page 8 of 92
affidavit,25 Hill claims that on one day back in 2002, he was standing on the porch of his

grandmother's house when he observed Defendant (whom Hill refers to as "Dalizz")

walking up the street with a large white male walking beside him and two other males

following from behind. As the men walked closer, Hill claimed that he could hear the

white male (whom Defendant refers to in the instant Petition as "Nickol'), who sounded

upset, ask about drugs, and that Defendant responded by saying that he had to. "wait on

someone." According to Hill, "Nickol" then dropped back behind Defendant, pulled out a

gun, and shot at Defendant. Hill then retreated to the inside of his grandmother's doorway

and heard more shots seconds later.              At some point, Hill claims that he looked back

outside and observed "Nickol" on the ground.                   Defendant claims that this affidavit

establishes that "Nickol" initiated the confrontation which ultimately led to Defendant's

criminal conviction.

       We conclude that Hill's affidavit does not fall within the newly discovered fact

exception under 42 Pa.C.S.         §   9545(b)(1)(iii). The Supreme Court of Pennsylvania has

noted that the newly discovered fact exception "has two components, which must be

alleged and proved. Namely, the petitioner must establish that: 1) 'the facts upon which

the claim was predicated were unknown' and 2) 'could not have been ascertained by the




25 Although Defendant claims that Hill's written statement is an affidavit, it is merely a statement that is
handwritten on a piece of paper and signed only by Hill himself. Hill's declaration, therefore, does not
exhibit that it was subject to the oath and certification that areCharacteristic of an affidavit, See
Commonwealth v. Brown, 872 A.2d 1139, 1168-70 (Pa. 2005) (Castille, J., concurring) (noting that an
affidavit is distinct from other out:of-court statements because of oath and certification, Which convey to
declarant consequences of falsehood, including potential for felony perjury prosecution; an affidavit.also
conveys to tribunal some level of assurance that declarant is who he says he is, that declaration is not
fraudulent, and that declarant is willing to stand behind his statement in court.). Hill's written statement,
rather, appears to be an unsworn declaration, and "there is a significant distinction between an affidavit
and an unsworn declaration." Commonwealth v. Tedford, 960 A.2d 1, 18 n.10 (Pa. 2008); see also
Commonwealth v. Hall 872 A.2d 1177, 1192 (Pa. 2005) (Castille, J., concurring) ("[Tjhere is a significant
distinction between a sworn affidavit, which is contemplated under this Court's Criminal Rules governing
PCRA practice, and a mere unsv.           leclaration of a witness.").

                                               Page 9 of 12
exercise of due diligence.'"26 As our Supreme Court has explained, "[t]he focus of the

exception is on [the] newly discovered facts, not on a newly discovered 'or newly willing

source for previously known facts."27             Thus, the court has previously "rejected a

petitioner's argument that a witness's subsequent admission of-alleged facts brought a

Claim within the scope of exception (b)(1)(ii) even though            the facts had been available to'.

the petitioner beforehand."28 With regard to the newly discovered facts exception, claims

invoking such exception, are subject to a sixty (60) day time limitation.29 With regard to

this limitation, "the sixty (60) day time limit   ...   runs from the date the petitioner first learned

of the alleged after -discovered facts. A petitioner must explain when he first learned of

the facts underlying his PCRA claims and show that he brought his claim within sixty (60)

days thereafter."3°

         Given the aforementioned, the focus of the newly discovered fact exception in the

instant matter must be on the facts contained within the affidavit; the fact that Hill may be

a "newly willing source" for these facts is not the focus of our inquiry and does not

constitute an exception under 42 Pa.C.S.            § 9545(b)(1)(11)).    The pivotal fact alleged in

Hill's affidavit is that "Nickol" shot at Defendant first, which ultimately led to the encounter

that resulted in Defendant's criminal conviction. This fact, however, does not satisfy the

two requisite elements for qualifying under the newly discovered fact exception.                  First,

Defendant does not allege that this fact was previously unknown to him;- Defendant

himself was the one who was allegedly shot at by "Nickol," and we cannot believe that he


28
   Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007). (emphasis in original) (quoting 42 Pa.C.S.
§ 9545(b)(1)(0).
27 Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008) (internal citation and quotation marks

omitted).
28
   Id. (internal citation omitted).
29 See Commonwealth v. Williams, 35 A.3d 44, 53 (Pa. Super. Ct.2011).
3° Id.


                                           Page 10 of 12
would have been unaware of this fact until approximately fifteen (15) years after the

incident occurred.. FurtherMore, even if Defendant did just learn of this fact recently, he

fails to allege exactly when he learned of this fact, and, therefore, fails to show that he

brought the instant petition within sixty (60) days of learning this fact. Second, Defendant

does not satisfy the other element of the newly discovered fact exception because he fails.

to explain why such fact could not have been previously ascertained by due diligence or

that he has exercised any sort of due diligence    in   attempting to gain knowledge of this

fact within the last 15 years. In sum, it appears that Hill merely is attempting to present a

new witness that is willing to testify to a fact that he previously should have known, and

as previously discussed this does not justify an application of the newly discovered fact

exception.


CONCLUSION

       For the aforementioned reasons, we find Defendant's PCRA motion to be untimely

and thus, this Court is precluded from addressing its merits. Accordingly, we enter the

following:



                               (This space intentionally left blank)




                                       Page 11 of 12
 COMMONWEALTH OF PENNSYLVANIA,                    :    INTHE COURT OF COMMON PLEAS,
                                                  :    DAUPHIN COUNTY, PENNSYLVANIA


                                                  :    NO. 2967 CR 2002; 3009 CR 2002
 DALIYL MUHAMMAD,
                             Defendant            :    PCRA


                                            ORDER

       AND NOW, this il-nday of February, 2017, upon consideration of the Motion for

Post -Conviction Collateral Relief filed by Defendant Daliyl Muhammad, and, of the

relevant statutory and case law, this Court finds that Defendant is not entitled 'to post -

conviction collateral relief.   Therefore, NOTICE IS HEREBY GIVEN of this Court's

intention to DISMISS his motion.         Petitioner is advised that he may respond to the

proposed dismissal within twenty (20) days of the date of this notice.



                                                      BY THE COURT:



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