J-S07029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

FEIQUIN RAHSAAN AKBARR

                            Appellant                  No. 388 MDA 2015


               Appeal from the Order Entered January 14, 2015
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0002604-2011


BEFORE: BOWES, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                   FILED MAY 17, 2016

        Feiquin Rahsaan Akbarr appeals the order entered January 14, 2015,

in the Luzerne County Court of Common Pleas denying his first petition for

collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546. Akbarr seeks relief from the judgment of sentence of

an aggregate term of 96 to 192 months’ imprisonment imposed on October

24, 2012, following Akbarr’s non-jury conviction of involuntary deviate

sexual intercourse (“IDSI”) and indecent assault.1      Contemporaneous with

this appeal, counsel for Akbarr has filed a petition to withdraw, and


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    See 18 Pa.C.S. §§ 3123(a)(1) and 3126(a)(1), respectively.
J-S07029-16



accompanying “no-merit” brief.2 For the reasons set forth below, we grant

counsel’s petition to withdraw and affirm the order denying PCRA relief.

       The facts underlying Akbarr’s arrest were summarized by a panel of

this Court in a prior decision:

              The charges in this matter stemmed from an incident that
       occurred on June 5, 2011. On that date, [Akbarr] went to the
       home of an acquaintance and sexually assaulted victim J.N., who
       was eight months pregnant at the time. J.N. managed to get
       away from [Akbarr] and alert her housemate to the incident.
       [Akbarr] was subsequently chased from the home; and, during a
       brief struggle with the housemate and another male, dropped an
       identification card with his photograph on it. J.N. identified
       [Akbarr] based on the recovered card. She was taken to Wilkes
       General Hospital and a rape kit was performed.

Commonwealth v. Akbarr, 87 A.3d 879 (unpublished memorandum at 1-

2) (Pa. Super. 2013).

       Akbarr was subsequently charged with IDSI, indecent assault, and

theft by unlawful taking.3 He filed a pretrial motion to suppress statements

he made to police officers during their execution of a search warrant to

retrieve a DNA sample from him. The court denied the motion following a

hearing on June 4, 2012. Akbarr proceeded to a non-jury trial, and, on June

____________________________________________


2
  As explained infra, counsel improperly filed an Anders brief, rather than a
Turner/Finley “no merit” letter. See Anders v. California, 386 U.S. 738
(1967); Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3
  See 18 Pa.C.S. § 3921(a). The theft charge was based on the victim’s
allegation that Akbarr ran out of her house with her cell phone. See
Criminal Complaint, 6/10/2011, Affidavit of Probable Cause at 2.



                                           -2-
J-S07029-16



8, 2012, was convicted of the two sexual offenses. The court found him not

guilty of theft. Because of the sexual nature of Akbarr’s convictions, the trial

court ordered that Akbarr undergo an assessment by the Sexual Offender’s

Assessment Board to determine if he met the criteria for classification as a

sexually violent predator (“SVP”) pursuant to Megan’s Law.4

       On October 24, 2012, the trial court held a combined Megan’s

Law/sentencing hearing.          The court found Akbarr met the criteria for

classification as an SVP, and sentenced him to a term of 96 to 192 months’

imprisonment for IDSI, and a concurrent term of 12 to 24 months’

imprisonment for indecent assault.             Akbarr filed a timely post-sentence

motion challenging, inter alia, the weight and sufficiency of the evidence

supporting his convictions. The trial court denied his post-sentence motion,

and Akbarr filed a direct appeal.

       On appeal to this Court, Akbarr limited his claims to a challenge to the

trial court’s denial of his suppression motion, and his SVP classification. A

panel of this Court affirmed in part, and reversed in part.          See Akbarr,

supra. Specifically, the panel found no error in the trial court’s suppression

ruling, but determined the evidence was insufficient to support Akbarr’s

classification as an SVP.       Accordingly, the panel reversed and vacated the
____________________________________________


4
  We note that, effective December 20, 2012, Megan’s Law was replaced by
the Sexual Offenders Registration and Notification Act (“SORNA”). See 42
Pa.C.S. §§ 9799.10-9799.41 (as amended 2011, Dec. 20, P.L. 446, No. 111,
§ 12).



                                           -3-
J-S07029-16



judgment of sentence as to Akbarr’s SVP classification only, and affirmed it

in all other respects. The panel remanded the case so that Akbarr could be

informed     of   his   new    registration    requirements.   Id.   (unpublished

memorandum at 16-17).

        Upon remand, on December 13, 2013, the trial court determined

Akbarr was a Tier III sexual offender,5 and informed him of his registration

requirements.      On January 27, 2014, Akbarr filed a pro se PCRA petition,

arguing prior counsel was ineffective for failing to challenge on direct appeal

the weight of the evidence, the lack of DNA evidence, and a violation of his

speedy trial rights.        See Motion for Post Conviction Collateral Relief,

1/27/2014, at 3. He also requested a correction of his sentence based on an

assertion that his prior record score should have been a “2” rather than a

“5.” Id. at 4. New counsel was subsequently appointed. Thereafter, Akbarr

filed a pro se motion for modification of his sentence nunc pro tunc, again

claiming the prior record score used by the trial court in determining his

sentence was incorrect.6 The PCRA court denied Akbarr’s pro se motion for

modification on April 28, 2014.



____________________________________________


5
    See 42 Pa.C.S. §§ 9799.14(d); 9799.15.
6
 Specifically, Akbarr claimed the trial court told him that “if [he] could show
proof [he] did not commit three felonies in 2001 and 2002 that [the court]
would modifi (sic) [his] sentence.” Motion for Modification of Sentence Nunc
Pro Tunc, 4/22/2014, at 2.



                                           -4-
J-S07029-16



       Subsequently, the PCRA court conducted three PCRA hearings, on May

30, 2014, July 22, 2014, and October 30, 2014. On January 14, 2015, the

court entered an order denying Akbarr’s PCRA petition. PCRA counsel filed

this timely appeal on February 13, 2015, accompanied by a motion for

appointment of appellate counsel. The PCRA court granted counsel’s motion

to withdraw and appointed Akbarr’s current attorney, Mary V. Deady, Esq.,

to represent him in this appeal.7

       Prior to addressing the substantive claims raised on appeal, we must

first consider whether counsel has fulfilled the procedural requirements for

withdrawal as outlined in Turner/Finley:

       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,
       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

____________________________________________


7
  Current counsel complied with the PCRA court’s request to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).



                                           -5-
J-S07029-16


     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). See also Commonwealth v. Freeland, 106 A.3d 768, 774-775

(Pa. Super. 2014).

     Here, counsel filed an Anders brief in lieu of a “no-merit” letter.

Although, as noted above, the appropriate filing when counsel seeks to

withdraw on appeal from the denial of PCRA relief is a Turner/Finley “no

merit” letter, this Court has held “[b]ecause an Anders brief provides

greater protection to a defendant, this Court may accept an Anders brief in

lieu of a Turner/Finley letter.” Commonwealth v. Reed, 107 A.3d 137,

139 (Pa. Super. 2014) (quotations omitted).            We find the Anders brief

submitted   by   counsel    satisfies     the   requirements   of   Turner/Finley.

Moreover, our review of the record reveals counsel properly provided Akbarr

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, 10/14/2015.       Akbarr has not responded to counsel’s petition to

withdraw.   Therefore, we proceed to a consideration of whether the PCRA

court erred in dismissing the petition. See Doty, supra.

     When reviewing an order dismissing a PCRA petition, we must

determine whether the PCRA court’s findings of fact are supported by the

record,   and    whether    its   legal    conclusions   are   free   from   error.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “Great deference

                                          -6-
J-S07029-16


is granted to the findings of the PCRA court, and these findings will not be

disturbed   unless   they     have    no      support   in   the   certified   record.”

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation

omitted).

      Where,   as    here,    the    claims    raised   on   appeal   challenge    the

effectiveness of counsel, our review is well-settled:

      We begin our analysis of ineffectiveness claims with the
      presumption that counsel is effective.          To prevail on his
      ineffectiveness claims, Appellant must plead and prove, by a
      preponderance of the evidence, three elements: (1) the
      underlying legal claim has arguable merit; (2) counsel had no
      reasonable basis for his action or inaction; and (3) Appellant
      suffered prejudice because of counsel’s action or inaction. With
      regard to the second, i.e., the “reasonable basis” prong, we will
      conclude that counsel’s chosen strategy lacked a reasonable
      basis only if Appellant proves that “an alternative not chosen
      offered a potential for success substantially greater than the
      course actually pursued.”       To establish the third, i.e., the
      prejudice prong, Appellant must show that there is a reasonable
      probability that the outcome of the proceedings would have been
      different but for counsel’s action or inaction.

Commonwealth v. Spotz, 18 A.3d 244, 259-260 (Pa. 2011) (internal

citations omitted). “Failure to establish any prong of the test will defeat an

ineffectiveness claim.”      Commonwealth v. Keaton, 45 A.3d 1050, 1061

(Pa. 2012) (citations omitted).

      The first issue addressed in counsel’s “no merit” brief asserts the

ineffective assistance of both trial and appellate counsel for failing to




                                        -7-
J-S07029-16



challenge the sufficiency of the evidence supporting Akbarr’s conviction.8

Akbarr claims trial counsel failed to preserve this issue by moving for

judgment of acquittal after the Commonwealth’s case-in-chief, and direct

appeal counsel subsequently failed to raise the claim on appeal. During the

May 30, 2014, PCRA hearing, Akbarr testified the evidence was insufficient

because none of his DNA was recovered from the victim, and there was “not

a mark on her,” although she claimed she went to the hospital 20 minutes

after the assault. N.T., 5/30/2014, at 16-17.

       Preliminarily, we note Akbarr’s assertion that trial counsel failed to

move for judgment of acquittal is belied by the record.        See N.T., 6/4-

8/2012, at 297-300.          Moreover, with regard to direct appeal counsel’s

ineffectiveness, we conclude Akbarr’s claim has no arguable merit.

       “The crime of [IDSI] occurs when the actor, by physical compulsion or

threats thereof, coerces the victim to engage in acts of anal and/or oral

intercourse.”    Commonwealth v. Poindexter, 646 A.2d 1211, 1215 (Pa.

Super. 1994), appeal denied, 655 A.2d 512 (Pa. 1995). See 18 Pa.C.S. §

3123(a)(1). Even “slight” penetration of the victim’s genitals is sufficient to

support a conviction.       18 Pa.C.S. § 3101.   Furthermore, a person may be

convicted of “indecent assault” if he has “indecent contact” with the victim,

without the victim’s consent. 18 Pa.C.S. § 3126(a)(1). “Indecent contact”

____________________________________________


8
  We have reorganized the issues identified in the “no merit” brief for
purposes of disposition.



                                           -8-
J-S07029-16



is defined as “[a]ny touching of the sexual or other intimate parts of the

person for the purpose of arousing or gratifying sexual desire, in any

person.” 18 Pa.C.S. § 3101.

       In the present case, the victim testified Akbarr pushed her on a bed,

pulled off her pants, and touched her vagina with his tongue. See N.T., 6/4-

8/2012, at 41-46. With regard to sexual offenses, it is well-established that

the “testimony of a victim need not be corroborated.” Poindexter, supra,

646 A.2d at 1214 (citation omitted).             Indeed, “this court held that the

uncorroborated testimony of a [sexual assault] victim, if believed by the

jury, is sufficient to support a [sexual assault] conviction and no medical

testimony is needed to corroborate a victim’s testimony if the testimony was

rendered credible by the [fact finder].”           Id., citing Commonwealth v.

Gabrielson, 536 A.2d 401 (Pa. Super. 1988), appeal denied, 542 A.2d 1365

(Pa. 1988). Accordingly, the fact that the victim displayed no physical signs

of assault, and that none of Akbarr’s DNA was recovered from the victim is

irrelevant. The trial court, as fact finder, determined the victim’s testimony

was credible. Because “counsel cannot be deemed ineffective for failing to

raise a meritless claim[,]”9 this issue fails.

       Next, counsel’s “no merit” brief addresses Akbarr’s assertion that

appellate counsel was ineffective for failing to challenge the weight of the

____________________________________________


9
 Commonwealth v. Staton, 120 A.3d 277, 284 (Pa. 2015), cert. denied,
136 S. Ct. 807 (U.S. 2016).



                                           -9-
J-S07029-16



evidence on direct appeal.     During the PCRA hearing, Akbarr testified that

his weight claim, like his sufficiency claim, is based on the lack of DNA

evidence found on the victim and her undergarments. See N.T., 5/30/2014,

at 16.

         It is important to note that trial counsel filed a post-trial motion,

raising a claim that the verdict was against the weight of the evidence, and

the trial court, which sat as fact-finder, denied the motion. We emphasize

that “[a] motion for a new trial based on a claim that the verdict is against

the weight of the evidence is addressed to the discretion of the trial court,”

and appellate review of such a claim is limited to a review of the trial court’s

exercise of discretion, “not of the underlying question of whether the verdict

is against the weight of the evidence.” Commonwealth v. Clay, 64 A.3d

1049, 1054-1055 (Pa. 2013) (citations and emphasis omitted).              Here,

Akbarr has provided us with no basis to conclude the trial court abused its

discretion in determining the verdict was not against the weight of the

evidence. Therefore, we find this claim, like the first, has no arguable merit.

         Furthermore, appellate counsel testified at the July 22, 2014, PCRA

evidentiary hearing that before filing the direct appeal, he reviewed Akbarr’s

case with trial counsel and determined the only two credible issues were

those he raised, i.e., the trial court erred in denying the pretrial suppression

motion, and in finding Akbarr met the criteria for qualification as an SVP.




                                     - 10 -
J-S07029-16



See N.T., 7/22/2014, at 15-16.             Accordingly, Akbarr has also failed to

establish appellate counsel had no reasonable basis for his actions, 10 and,

therefore, no relief is warranted with respect to his weight of the evidence

challenge.

        The “no merit” brief also identifies Akbarr’s contention that appellate

counsel was ineffective for failing to raise a speedy trial claim on direct

appeal.    At the PCRA hearing, Akbarr clarified that he wanted counsel to

challenge the “180-day rule.” N.T., 5/30/2014, at 19. He explained that he

was granted “nominal bail” by the court, but the jail refused to release him

because he did not have an “approved address.”             Id. at 19-20.   Akbarr

further testified that he hoped to work during his release and save money to

hire a private attorney. Id. at 21.

        Rule 600 of the Pennsylvania Rules of Criminal Procedure “was

designed to implement speedy trial rights to defendants based upon the

Sixth Amendment to the United States Constitution and Article I, Section 9

of the Pennsylvania Constitution.” Commonwealth v. Goldman, 70 A.3d

874, 879 (Pa. Super. 2013) (citation omitted), appeal denied, 85 A.3d 482

(Pa. 2014). While the Rule provides for the release of a defendant who is

not tried within 365 days of the filing of the criminal complaint,11 the Rule


____________________________________________


10
     See Spotz, supra.
11
     See Pa.R.Crim.P. 600(D)(1).




                                          - 11 -
J-S07029-16



mandates only the release on nominal bail of a defendant “held in pretrial

incarceration in excess of … 180 days from the date on which the complaint

is filed[.]” Pa.R.Crim.P. 600(B)(1). Indeed, this Court has emphasized, “the

only occasion requiring dismissal of charges is when the Commonwealth fails

to commence trial within 365 days of the filing of the written complaint,

taking into account all excludable time and excusable delay.”         Goldman,

supra, 70 A.3d at 879-880.

         Here, Akbarr was granted release on nominal bail after the 180-day

period expired.       However, because the jail found he did not have an

approved address, he was never released.           Nonetheless, Akbarr does not

dispute that his trial commenced prior to the expiration of 365 days after the

criminal complaint was filed.12          Unfortunately, this Court has held that

“[o]ther than release on nominal bail, no other remedy is prescribed for

defendants incarcerated for less than three hundred sixty-five days, even if

they were not, in fact, released on nominal bail.”          Commonwealth v.

Murray, 879 A.2d 309, 314 (Pa. Super. 2005) (emphasis supplied).

Therefore, because there is no remedy available to Akbarr, this claim, too,

fails.




____________________________________________


12
  The incident at issue occurred on June 5, 2011, and Akbarr’s non-jury trial
commenced on June 4, 2012.




                                          - 12 -
J-S07029-16



      Lastly, the “no merit” letter addresses Akbarr’s contention that both

trial and appellate counsel were ineffective for failing to challenge the

accuracy of his prior record score.     The basis for this claim is somewhat

convoluted.

      During the October 24, 2012, sentencing hearing, the trial court asked

counsel if he had reviewed the PSI with Akbarr, and whether counsel or

Akbarr had any modifications or corrections.        N.T., 10/24/2012, at 74.

Counsel replied that he had reviewed the document with his client, and that

his client did dispute “a few of the prior offenses[.]” Id. However, counsel

stated, “I believe that we’re confident that [those disputes] will not affect his

prior record score.”    Id.   Later in the hearing, after the court imposed

Akbarr’s sentence, the following exchange took place:

      [AKBARR]: Judge Pierantoni, if you find out that I was in jail
      from 2000 to 2006 in New Jersey, because they said I got
      felonies on my record that I know I don’t have and that just
      added to my points and gave me more time today when I was in
      prison out of Leesburg, New Jersey. I was in prison from 2000
      to 2006.

      [DEFENSE COUNSEL]: Judge at this point I’m going to advise
      the defendant that it’s not in his best interest to keep speaking.
      I’m going to advise the Court that we had discussed this prior
      record issue. I don’t want to violate any of my confidences with
      my client.

      THE COURT: Understood. I understand.             I will advise your
      client of his appellate rights. …

Id. at 90.

      Akbarr raised this claim again in his pro se PCRA petition, where he

stated his prior record score should have been a “2” rather than a “5.”

                                     - 13 -
J-S07029-16



Motion for Post Conviction Collateral Relief, 1/27/2014, at 5.         In a

subsequent pro se motion for modification of sentence nunc pro tunc, he

elaborated on this issue, asserting that the trial court informed him at

sentencing that if he could prove he “did not commit three felonies in 2001

and 2002 that [the court] would modifi (sic) [his] sentence.”    Motion for

Modification of Sentence Nunc Pro Tunc, 4/22/2014, at 2.13 Akbarr attached

to the pro se motion a summary memo from a violation of probation

hearing, held in New Jersey on July 11, 2003, which states Akbarr was in

violation of his New Jersey probation based on his conviction of crimes in

Philadelphia in September of 2001 and October of 2002. The summary does

not specify the conviction for which he was serving probation, or the

resulting probation violation sentence.

       We find Akbarr has failed to demonstrate this claim has arguable

merit.    The guideline sentence form, attached to Akbarr’s PSI, indicates

Akbarr had one second-degree felony conviction, two third-degree felony

convictions, and six misdemeanor convictions.      See Guideline Sentence

Form. The form does not specify the dates of those convictions. Similarly,

the PSI lists Akbarr’s numerous arrests and convictions, dating back to

1994, but does not specify the grading of all of the offenses.    See PSI,

8/28/2012, at 4-8. Accordingly, it is unclear, based on the documents in the

____________________________________________


13
  As noted in the above excerpt from the sentencing transcript, Akbarr’s
contention is incorrect.



                                          - 14 -
J-S07029-16



certified record, which of Akbarr’s prior convictions were graded as second

and third-degree felonies for purposes of his prior record score. Moreover,

Akbarr did not specify the “disputed” convictions during his PCRA hearing

testimony, and the New Jersey Probation summary simply does not shed any

light on this claim.   Accordingly, Akbarr has failed to establish his prior

record score was calculated incorrectly.

      Furthermore, as noted above, trial counsel acknowledged at the

sentencing hearing that Akbarr disputed “a few of the prior offenses[,]” but

insisted that his client’s concerns would “not affect [the] prior record score.”

N.T., 10/24/2012, at 74.     Akbarr did not question either trial counsel or

appellate counsel about this issue during the PCRA hearing, and, therefore,

he also failed to demonstrate prior counsel had no reasonable basis for

failing to raise this claim previously. Accordingly, no relief is warranted.

      As mandated by law, we have independently reviewed the record and

agree with counsel that the current appeal has no merit. See Doty, supra,

48 A.3d at 457. Therefore, we affirm the order dismissing Akbarr’s petition

for PCRA relief, and grant counsel’s petition to withdraw.

      Order affirmed. Petition to withdraw as counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/17/2016


                                     - 15 -
