J-S63009-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                        Appellee               :
                                               :
                v.                             :
                                               :
    MUHAMMAD AL-AMIN                           :
                                               :
                        Appellant              :       No. 2681 EDA 2018

           Appeal from the PCRA Order Entered September 14, 2018
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0009246-2010


BEFORE:      GANTMAN, P.J.E., MURRAY, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.E.:                      FILED NOVEMBER 27, 2019

        Appellant, Muhammad Al-Amin, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which denied his first petition

brought pursuant to the Post-Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

        In its opinion, the PCRA court fully and correctly sets forth the relevant

facts and procedural history of this case.         Therefore, we have no need to

restate them.        Procedurally, we add, the record indicates the PCRA court

issued Rule 907 notice on August 16, 2018. On September 14, 2018, the

PCRA court denied Appellant’s PCRA petition. That same day, Appellant filed

a timely notice of appeal.         The court ordered Appellant on September 17,


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S63009-19


2018, to file a concise statement of errors complained of on appeal per

Pa.R.A.P. 1925(b); Appellant timely complied on September 24, 2018.

      Appellant raises one issue for our review:

         DID THE PCRA COURT ERR IN DISMISSING APPELLANT’S
         PCRA PETITION WITHOUT A HEARING BECAUSE
         TRIAL/DIRECT APPEAL COUNSEL WAS INEFFECTIVE FOR
         FAILING TO PRESERVE APPELLANT’S BRUTON V. UNITED
         STATES[, 391 U.S. 123, 88 S Ct. 1620, 20 L.Ed.2d 476
         (1968)] ISSUE AT TRIAL AND FOR FAILING TO LITIGATE
         DENIAL OF THE RELATED SEVERANCE ISSUE ON DIRECT
         APPEAL?

(Appellant’s Brief at 4).

      Our standard of review of the denial of a PCRA petition is limited to

examining whether the evidence of record supports the court’s determination

and whether its decision is free of legal error. Commonwealth v. Conway,

14 A.3d 101, 108 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795

(2011). This Court grants great deference to the findings of the PCRA court if

the record contains any support for those findings. Commonwealth v. Boyd,

923 A.2d 513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d

74 (2007).     We give no such deference, however, to the court’s legal

conclusions.   Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super.

2012). Further, a petitioner is not entitled to a PCRA hearing as a matter of

right; the PCRA court can decline to hold a hearing if there is no genuine issue

concerning any material fact, the petitioner is not entitled to PCRA relief, and

no purpose would be served by any further proceedings. Commonwealth v.

Wah, 42 A.3d 335 (Pa.Super. 2012).

                                     -2-
J-S63009-19


      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Shelley Robins

New, we conclude Appellant’s issue merits no relief. The PCRA court opinion

comprehensively discusses and properly disposes of the question presented.

(See PCRA Court Opinion, filed May 7, 2019, at 3-9) (finding: at trial, court

replaced references to Appellant in defendant’s statement with “the guy” or

“the other guy”; balance of interests weighed in favor of admitting co-

defendant’s redacted statement into evidence; further, court provided jury

appropriate limiting instruction regarding co-defendant’s statement; thus,

admission of co-defendant’s statement did not violate Bruton; Appellant’s

claim trial/direct appeal counsel was ineffective for failing to preserve and

litigate issue on appeal fails; further, Appellant’s claim counsel was ineffective

for failing to preserve for appeal and raise on appeal denial of Appellant’s

severance motion also fails; nature of facts, content of co-defendant’s and

Appellant’s respective statements, and offenses charged weighed in favor of

trying Appellant and co-defendant jointly; Appellant failed to show he suffered

undue prejudice from counsel’s failure to preserve and appeal severance

issue). The record supports the PCRA court’s rationale. See Conway, supra.

Accordingly, we affirm on the basis of the PCRA court opinion.

      Order affirmed.




                                      -3-
J-S63009-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/27/19




                          -4-
                                                                             Circulated 11/22/2019 01:34 PM




         IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY

                                   CRIMINAL TRIAL DIVISION

COMMONWEALTH OF PENNSYLVANIA                                         CP-51-CR-0009246-2010

                              v.

MUHAMMAD AL-ALMIN, Appellant

                                    OPINION OF THE COURT                                              --<
                                                                                                       f
                                                                                                      ·-.J
       Appellant, Muhammad Al-Almin, appeals from this Court's denial of relief pursuant�t?

the Post-Conviction Relief Act (PCRA), 42 Pa. C.S.A. §9541 et seq. For the reasons setfortfy?
                                                                                       .·
                                                                                        : ,,,..)
                                                                                            ...   \

                                                                                           en
below, this Court's Order denying relief should be affirmed.

       On April 15, 2010, Appellant and his co-defendant, Amir Garwood, broke into the home

of Shawn Epps on the 2000 block of Bonaffon Street in Southwest Philadelphia. Mr. Epps

resided there with his wife Lisa Moore, his father Eugene Allen, and his two daughters, Alexes

and Athena Epps. Appellant and Garwood breached the back door of the house; Appellant

kicked down the back door while Garwood held the screen door open. Ms. Moote and Alexes

heard the noise from upstairs. Upon crossing the threshold, Garwood began shouting "police,

police, police, get down on the floor, get down on the floor." Guns drawn, Appellant and

Garwood climbed the stairs to the second floor. One of the men instructed Ms. Moore to stay on
                                                        '
the floor, while the other encountered Mr. Epps. A struggle ensued between Mr. Epps, Appellant,

and Garwood. During that struggle, Mr. Epps was shot in the face and the stomach, and he fell

into the bathroom. Appellant and Garwood fled through the door they breached while Ms. Moore

took her children and climbed through a window to a neighbor's home, where she called police.

(N.T., 5/31/12, at 21-27; N.T., 6/1/12, at 126-145; N.T., 6/4/12, at 50-61, 149-162).




                                                 1
           On May 30, 2012, Appellant and Garwood litigated a joint motion to suppress their

    statements to police. That same day, this Court denied the motion to suppress. Thereafter,

    Appellant and Garwood jointly moved this Court to sever their cases, arguing that the

    introduction of their redacted statements violated their Confrontation Clause rights as defined in

    Bruton v. United States, 391 U.S. 123 (1968). This Court denied the motion to sever, and

    Appellant and Garwood immediately proceeded to a joint jury trial. At trial, Detective Morton

    read Appellant's statement into the record, while Detective Holmes read Garwood's statement

into the record (see N.T., 6/4/12, at 50-61, 149-162). Neither Appellant's nor Garwood's counsel

raised an objection to the redacted version of Garwood's statement that replaced Appellant's

name with various iterations of"the guy" or "the other guy" (Id. at 128-129).

           On June 6, 2012, the jury convicted Appellant of second-degree murder, robbery (inflict

serious bodily injury), burglary, and criminal conspiracy. That same day, this Court sentenced

Appellant to life imprisonment without parole for the second-degree murder conviction. This

Court also imposed an aggregate concurrent sentence of 10 to 20 years' incarceration for the

remaining convictions. 1 Appellant appealed, and the Superior Court affirmed his judgments of

sentence on January 15, 2014. He sought allowance of appeal, which the Pennsylvania Supreme

Court denied on July 29, 2014.

           On October 22, 2015, Appe11ant filed a pro se petition for relief pursuant to the Post-

Conviction Relief Act (PCRA), 42 Pa. C.S.A. §9541 et seq. The PCRA court appointed Stephen

T. O'Hanlon, Esq. to represent Appellant in his PCRA proceedings. On June 14, 2017, Attorney

O'Hanlon filed a counseled amended petition on Appellant's behalf. After review of Counsel's

PCRA petition and after review of the file, this Court found the issues raised in the PCRA


1
 Appellant's minimum sentences on these convictions were mandatory under section 9714(a)(I) of the Judicial
Code (second-strike offender).


                                                       2
petition were meritless. Accordingly, this Court sent Appellant, pursuant to Pa.RCrim.P. 907, its

Notice of Intent to Dismiss. Appellant timely filed a Notice of Appeal to the Superior Court. This

Court filed an order pursuant to Pa.R.C.P. 1925(b) and Appellant timely replied.

       In the instant petition, Appellant raised two claims. Appellant alleged that trial counsel

was ineffective by failing to object to his Confrontation Clause rights under Bruton, and that

appellate counsel was ineffective for failing to raise the issue on appeal. Appellant also alleged

that appellate counsel was ineffective for abandoning his severance issue on direct appeal.

       Both of Appellant's claims involve the ineffective assistance of counsel. "Ineffective

assistance of counsel is a mixed question of law and fact that we review de novo." United States

y. Blaylock, 20 F.Jd 1458, 1464-65(�r..1�).The United States Supreme Court in Strickland v.

Washington, 466 U.S. 668, 685 (1984), stated, "[t)he Constitution guarantees a fair trial through

the Due Process Clauses, but it defines the basic elements of a fair trial largely through the

several provisions of the Sixth Amendment including the Counsel Clause." The Supreme Court

also stated, "[t]hat a person who happens to be a lawyer is present at trial alongside the accused,

however, is not enough to satisfy the constitutional command. The Sixth Amendment recognizes

the right to the assistance of counsel because it envisions counsel's playing a role that is critical

to the ability of the adversarial system to produce just results. An accused is entitled to be

assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure

that the trial is fair." Id. As a result, the Supreme Court has acknowledged that the right to

counsel is the right to effective counsel. Id. at 686. The law presumes that counsel was effective

and, therefore Appellant has the burden to show that counsel was ineffective. Commonwealth v.

Baker, 614 A.2d 663, 673 (Pa. 1992).




                                                 3
        Counsel is presumed effective and Appellant bore the burden of proving that counsel

provided ineffective assistance of counsel. Commonwealth v. Rivers. 786 A.2d. 923 (Pa. 200 I).

The Strickland Court set out a test where a defendant would have to show that (1) his attorney's

performance was unreasonable under prevailing professional standards and (2) that there is a

reasonable probability that but for counsel's unprofessional errors; the result would have been

different. Strickland v. Washington at 687-690.

       In reviewing the PCRA, the Pennsylvania Supreme Court, in Commonwealth v. Douglas,

645 A.2d 226, 230 (Pa. 1994), stated,     to prevail on such a claim, Appellant must demonstrate

that (1) the underlying claim is of arguable merit; (2) counsel's course of conduct was without a

reasonable basis designed to effectuate his interest; and (3) that he was prejudiced by counsel's

ineffectiveness. To show prejudice Appellant must establish that, but for counsel's errors, the

outcome of'the trial would have been different. Commonwealth v. Bond, 819 A.2d 33, 42 (Pa.

2002). Appellant's failure to satisfy all the prongs of the test should result in the dismissal of the

ineffective counsel claim. Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003).

       "Allegations of the deprivation of the right to effective representation of counsel are not

self-sustaining. The burden of proof of the allegations remains with the claimant, their accuracy

still to be established by his submission of relevant proofs." Com. v. Hentosh, 554 A.2d 20, 24

(Pa. 1989). Without the submission of relevant proofs supporting the claim of ineffectiveness,

summary rejection of the claim is warranted. Id. at 25. If a defendant fails to demonstrate that

counsel's act or omission had an adverse effect on the outcome of the proceedings, the

ineffectiveness claim should be dismissed on that basis alone, and the court need not first

determine whether the defendant has satisfied the first and second prongs of the test.

Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa. 1998).




                                                  4
          To be entitled to an evidentiary hearing on a claim of ineffectiveness, a defendant must

"set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing

court can conclude ... counsel may have, in fact, been ineffective." Commonwealth v. Priovolos,

715 A.2d 420, 422 (Pa. 1998) (quoting Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa.

1981)).

          Appellant's first ineffective assistance of counsel claim is that trial counsel failed to

protect Appellant's Bruton safeguards because he did not object to a redacted version of

Garwood's statement that replaced his name with "the guy" or "the other guy". Bruton v. United

States, 391 U.S. 123, 126 (1968) decided that in a joint trial, the admission of a non-testifying

co-defendant's prior statement against a defendant violates his confrontation rights under the

Sixth Amendment to the United States Constitution. The Bruton Court determined that

"substantial risk that the jury .... looked to incriminating extrajudicial statements in determining

[Appellant]'s guilt" rendered the same effect "as if there had been no instruction at all." Id. at

126, 137.

          The United States Supreme Court validated the practice of redacting confessions of non-

testifying co-defendants to remove references that expressly implicated the defendant in

Richardson v. Marsh, 481 U.S. 200 (1987), while simultaneously rejecting the theory of

"contextual implication". Contextual implication is when a facially non-incriminating statement

would nevertheless become incriminating and violate Bruton "when linked with evidence

introduced later at trial." Id. at 208. The Richardson Court determined that a redacted statement

reduced the risk that a jury would ignore instructions to disregard evidence, as it does not ask the

jury to ignore evidence that the defendant helped the co-defendant commit a crime. Id. Gray v.

Maryland, 523 U.S. 185 (1998) clarified that in a two-defendant trial, a redaction of the




                                                  5
defendant's name to "deleted" violated Bruton because it "refer[red] directly to the 'existence' of

the non-confessing defendant.'' Id. at 192.

       The Pennsylvania Supreme Court adopted the practice of redacting a defendant's name to

"the other guy" or a similar non-descriptive placeholder. Commonwealth v. Travers, 768 A.2d

845, 846 (Pa. 2001); Commonwealth v. Rivera, 773 A.2d 131, 138 (Pa. 2001). Commonwealth

v. Rainey, 928 A.2d 215, 227 (Pa. 2007) followed the United States Supreme Court in rejecting

the theory of contextual implication as a blanket rule. In doing so, the Rainey Court illustrated a

standard for how "contextual implication" should be evaluated in a joint trial. 'This danger

merely requires the trial court, and the reviewing court, to balance the interests, i.e., the potential

prejudice to the defendant versus the probative value of the evidence, the possibility of

minimizing the prejudice, and the benefits to the criminal justice system of conducting joint

trials." Id. at 227-228 (quoting Corrunonwealth v. Wharton, 607 A.2d 710, 717 (Pa. 1992)).

       In Appellant's trial, the Court redacted Garwood's statement in accordance with Bruton,

Travers, and Rivera, by referring to Appellant as either "the guy" or "the other guy". No part of

the statement specifically incriminated Appellant. The trial Court' s redaction met the

requirements set forth by the United States and the Pennsylvania Supreme Courts. Furthermore,

Appellant cannot claim that other evidence "contextually implicated" him in Garwood's

statement. When balancing the interests in allowing Garwood's redacted statement into evidence,

the Court was not mistaken. Garwood confessed to killing Mr. Epps and the trial court redacted

his statement to remove any specific reference to Appellant. Therefore, Appellant was still

afforded the protections of Bruton.

       Furthermore, the trial court's jury instructions were clear as to how to evaluate the

evidence against each defendant, specifically the statement in question. "Now, members of the




                                                  6
jury, I've repeatedly told you, although the two defendants are being tried together, you must

consider the evidence separately as to each defendant." (N.T., 6/r/12, at 103). "I am specifically

instructing you that whatever weight you may choose to give to a defendant's statement, that

statement may only be used against that defendant. You may not use one defendant's statement

as evidence against the other." (N.T., 6/5/12, at 103-104). Since Appellant's Bruton protections

were not violated, Appellant has not proved that counsel was ineffective for failing to object to

the redacted version of Garwood's statement. Appellant has not provided any evidence to prove

the three factors of the Douglas test. Accordingly, Appellant's claim lacks merit.

        Appellant's second claim is that counsel was ineffective for failing to appeal the denial of

severance. The decision to sever a joint trial is in the trial court's discretion. Commonwealth v.

Ferguson, 107 A.3d 206, 210 (Pa. Super. 2015). In order for the trial court's discretion to be

reversed, the Appellant must establish that there was a manifest abuse of discretion or prejudice

and clear injustice to the Appellant. Id. Pennsylvania Rule of Criminal Procedure 583 governs

motions to sever, stating   "tht prejudice the defendant suffers due to the j oinder must be greater
than the general prejudice any defendant suffers when the Commonwealth's evidence links him

to a crime." Id.
                                                                                               ti
        When assessing whether severance is appropriate, the trial court must determine: [I]

whether the evidence of each of the offenses would be admissible in a separate trial for the other;

[2] whether such evidence is capable of separation by the jury so as to avoid danger of

confusion; and, if the answers to these inquiries are in the affirmative, [3] whether the defendant

will be unduly prejudiced by the consolidation of offenses." Co_mmonwealth v, Collins, 703 A.2d

418, 422 (Pa. 1997). Furthermore, "where the defendants have been charged with conspiracy, a




                                                  7
joint trial, rather than separate trials, is preferred." Commonwealth v. King, 721 A.2d 763, 771

(Pa. 1998).

       In Appellant's underlying matter, all of the factors favored having a joint trial. First and

foremost, it has been established that Appellant's Bruton protections were not violated. As a

result, Appellant was not prejudiced by the admission of Garwood's statement. Appellant was

convicted of second-degree murder. The standard fol' second-degree murder is that a murder

takes place during the commission of a felonious act, while it does not require that each person

physically harm the victim. 18 Pa.C.S. 2502(b). See Commonwealth v. Lambert, 795 A.2d 1010,

1023 (Pa. Super. 2002) (en bane) ("not only the killer, but all participants in a felony, including

the getaway driver, are equally guilty of felony murder when a killing by a felon occurs"), It is

not necessary for a homicide to be foreseeable, just that "the accused engaged in conduct as a

principal or an accomplice in the perpetration of a felony." Id.

       Appellant, in his own statement to police, admitted to assisting Garwood with a home

invasion. Appellant admitted kicking in the door, breaching the home, and watching Garwood

shoot Mr. Epps. By making these admissions, Appellant and Garwood both admitted to engaging

in a burglary and robbery, which led to Mr. Epps death. Even though Garwood's statement

differed with Appellant's since Garwood claimed Appellant also shot Mr. Epps, it is irrelevant

for the charge of second-degree murder since that was not a requirement of the charge.

Therefore, Garwood's statement did not prejudice Appellant since it did not create a reasonable

probability of a different outcome.

        The fact that Appellant and Garwood implicated each other in the murder actually

supports the need for a joint trial and against severance. "Mere finger pointing alone ... is

insufficient to warrant a separate trial." Commonwealth v. Lambert, 603 A.2d 568, 573 (Pa.




                                                  8
1992). If defendants have different views of what took place, it will be easier to determine the

truth if they are tried together. Commonwealth v. Chester, 587 A.2d 1367, 1373 (Pa. 1991).

Appellant and Garwood disputed their respective degrees of involvement, but it was not the case

in which the jury must have disbelieved the testimony of one defendant to believe the testimony

of the other defendant. As a result, this disagreement is not one that would require severance.

       Appellant was charged with conspiracy to commit robbery. When conspiracy is a charge,

it is advisable to have a joint trial. Commonwealth v. Patterson, 546 A.2d 596, 600 (Pa. 1988). In

King, the court listed a variety of factors favoring a joint trial, which are also applicable in the

instant petition. "Appellants were charged with conspiracy; the majority of the crimes charged

were the same; the circumstances giving rise to the crimes were identical with respect to both

defendants; and the witnesses necessary to prove the crimes were the same." Id. at 771.

       Finally, Appellant has still not provided evidence of how counsel was ineffective for

failing to appeal the denial of severance due to the fact Appellant has not proved prejudice.

Appellant has not shown that but for counsel's failure to file a motion to sever, there is a

reasonable possibility that he would not have been convicted. As a result, Appellant has not met

the standard set forth in Douglas. Accordingly, Appellant's claim lacks merit.

        Accordingly, for the Reasons set forth above, the Order denying relief under the PCRA

should be affirmed.



                                      BY THE COURT:




                                                9
