J-S49005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    SHAWN SADIK,                               :
                                               :
                      Appellant                :   No. 889 WDA 2016

                   Appeal from the PCRA Order May 23, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0000811-2008


BEFORE:        DUBOW, J., SOLANO, J., and FITZGERALD J.*

MEMORANDUM BY DUBOW, J.:                             FILED DECEMBER 20, 2017

        Appellant, Shawn Sadik, appeals from the Order entered in the

Allegheny County Court of Common Pleas denying his first Petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-46.

Upon careful review, we affirm.

        On direct appeal, this Court summarized the pertinent facts as follows:

        In the early morning hours of July 13, 1993, Pittsburgh police
        found the naked, bleeding body of Mary Mitchell lying on a
        sidewalk near the entrance to a park. Her head was swollen,
        and she was gasping for air. She had a large wound on her neck
        that was bleeding profusely. It was later determined that a
        sharp object had been forced through her vagina, and into her
        intestine where it cut a blood vessel. After the attackers
        removed the object from her body, they placed it on the ground,
        where police later found it and identified it as a piece of
        aluminum window frame.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     Based on leads they received from the two men who found the
     victim in the park, police arrested [Appellant] and Stevenson
     Rose for the attack. When police arrested Rose they found a
     pair of blood spattered white shorts and a white tee shirt with
     blood on it in his room. When police arrested [Appellant] at his
     residence they found a pair of blood-stained Timberland black
     combat-type boots in his room.

     [Appellant] agreed to be interviewed by police shortly after his
     arrest. He told them that he, Rose, and a third man saw the
     victim walk past them toward the park. She was with some
     young men who were saying that they wanted her to perform
     oral sex on them. [Appellant] said that twenty to thirty minutes
     later, Rose walked into the park and spoke with the young men.
     [Appellant], who had been in a nearby alley, then went into the
     park where he saw Rose punch the victim, who was unclothed.
     He knocked her to the ground and stated several times that he
     was going to kill the victim. [Appellant] then admitted that he
     kicked the victim once in the face and three times in the head.
     He estimated that Rose kicked the victim eighty times, and
     stated that during the seven or eight times that Rose fell on the
     victim, he would help [Rose] get back up. After the beating,
     Rose and [Appellant] left the victim bleeding in the park. She
     survived the attack.

     In February 1994, a jury convicted [Appellant] of [C]riminal
     [A]ttempt ([H]omicide), [A]ggravated [A]ssault, [R]eckless
     [E]ndangerment, and [C]onspiracy.          The court imposed
     consecutive sentences of ten to twenty years’ incarceration for
     [A]ggravated [A]ssault and five to ten years’ incarceration for
     [C]onspiracy.  No sentence was imposed for the remaining
     convictions. [Appellant] filed a direct appeal, which this Court
     denied. Commonwealth v. Sadik, 664 A.2d 1059 (Pa. Super.
     1995) (unpublished memorandum).

     The victim spent several months in the hospital, and then was
     transferred to a rehabilitation hospital. Although she regained
     some level of consciousness, she was unable to recognize her
     children and was incoherent. She was completely bedridden,
     and could only move one arm. The victim was transferred to a
     nursing home where she remained for fourteen years until her
     death on September 17, 2007.

     On October 8, 2007, [Appellant] was charged with [C]riminal
     [H]omicide in connection with the death of the victim, Mary

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      Mitchell. A jury convicted him of murder of the first degree, and
      on January 11, 2011, the court imposed a sentence of life
      imprisonment, with credit for time served since his arrest on July
      7, 1993.

Commonwealth v. Sadik, 46 A.3d 806 (Pa. Super. 2012) (unpublished

memorandum) (footnotes omitted).

      Appellant filed a direct appeal, and on February 3, 2012, this Court

affirmed Appellant’s Judgment of Sentence. Id. Our Supreme Court denied

Appellant’s   Petition   for   Allowance   of   Appeal   on   June   27,   2012.

Commonwealth v. Sadik, 47 A.3d 847 (Pa. 2012).                Appellant filed a

Petition for Writ of Certiorari, which the United States Supreme Court denied

on October 9, 2012. Sadik v. Pennsylvania, 568 U.S. 944 (2012).

      On October 9, 2013, Appellant, represented by private counsel, filed a

timely PCRA Petition.      On November 2, 2015, the PCRA court held an

evidentiary hearing on Appellant’s PCRA Petition.        The PCRA court denied

Appellant’s Petition on May 19, 2016.

      Appellant timely appealed, and Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant raises the following four issues, verbatim, for our review:

      1. Trial [c]ounsel rendered ineffective assistance by failing to
      challenge [Appellant’s] confession.

      2. Trial [c]ounsel rendered ineffective assistance by failing to
      investigate and pursue a defense based upon [Appellant’s]
      intellectual disability.

      3. Trial [c]ounsel rendered ineffective assistance by failing to
      adequately present a defense of voluntary intoxication.


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      4. [Appellant] is serving an unconstitutional sentence. [] A
      sentence of life imprisonment without parole for an individual
      who 1.) was under the age of 21 at the time of the offense and
      2.) has an intellectual and developmental disability is
      unconstitutional under the United States and Pennsylvania
      [C]onstitutions.

Appellant’s Brief at 11.

      We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its Order is otherwise

free of legal error.   Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014). “The scope of review is limited to the findings of the PCRA court and

the evidence of record, viewed in the light most favorable to the prevailing

party at the trial level.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.

2014) (citation omitted).

                    Ineffective Assistance of Counsel Claims

      Appellant’s first three issues contend that trial and appellate counsel

provided ineffective assistance to Appellant.      In analyzing claims of

ineffective assistance of counsel, we presume that counsel was effective

unless the PCRA petitioner proves otherwise. Commonwealth v. Williams,

732 A.2d 1167, 1177 (Pa. 1999).        In order to succeed on a claim of

ineffective assistance of counsel, Appellant must demonstrate (1) that the

underlying claim is of arguable merit; (2) that counsel’s performance lacked

a reasonable basis; and (3) that the ineffectiveness of counsel caused the

appellant prejudice.   Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa.

2003). “[Where] the underlying claim lacks arguable merit, counsel cannot

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be deemed ineffective for failing to raise it.”    Commonwealth v. Koehler,

36 A.3d 121, 140 (Pa. 2012). Appellant bears the burden of proving each of

these elements, and his “failure to satisfy any prong of the ineffectiveness

test requires rejection of the claim of ineffectiveness.” Commonwealth v.

Daniels, 963 A.2d 409, 419 (Pa. 2009).

      To demonstrate prejudice, a petitioner must establish that “there is a

reasonable probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different.”                Strickland v.

Washington, 466 U.S. 668, 694 (1984); accord Commonwealth v. Cox,

983 A.2d 666, 678 (Pa. 2009). A reasonable probability is a probability

sufficient   to    undermine     confidence       in   the   outcome     of     the

proceeding. See Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). As

our Supreme Court has made clear, “boilerplate allegations and bald

assertions of no reasonable basis and/or ensuing prejudice cannot satisfy a

petitioner's burden to prove that counsel was ineffective.” Commonwealth

v. Paddy, 15 A.3d 431, 443 (Pa. 2011).

      Finally, “when it is clear that the party asserting a claim of

ineffectiveness has failed to meet the prejudice prong, the claim may be

dismissed on that basis alone without a determination of whether the first

two    prongs     of   the   ineffectiveness      standard   have    been     met.”

Commonwealth v. Zook, 887 A.2d 1218, 1227 (Pa. 2005) (citation




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omitted).    With this standard in mind, we address Appellant’s first three

issues.

        Motion to Suppress

        In his first issue, Appellant avers that trial counsel was ineffective for

failing to file a Motion to Suppress Appellant’s 1993 confession. A petitioner

averring ineffective assistance of counsel based on the failure to file a

motion to suppress must prove that the underlying suppression claim has

merit.    Commonwealth v. Jones, 942 A.2d 903, 909 (Pa. Super. 2008).

Without such proof, a petitioner fails to meet his burden of showing that his

ineffectiveness claim is of arguable merit. Id.

        Relevant to the instant appeal, Appellant’s 1993 confession was used

as evidence against him in two prosecutions: the instant case, and in the

1994 trial on charges of, inter alia, Attempted Murder. Prior to Appellant’s

initial trial, his original counsel (“1994 Counsel”)1 filed an Omnibus Pre-Trial

Motion averring that he lacked the mental capacity to make an intelligent,

knowing, and voluntary waiver of his Miranda2 rights. After a hearing, the

suppression court denied Appellant’s Motion.            On appeal, this Court

thoroughly analyzed the suppression court testimony, and ultimately agreed

with the 1994 suppression court’s findings that “[A]ppellant understood his
____________________________________________


1
  Unless otherwise specified by the designation “1994 Counsel” all references
to trial counsel refer to counsel in the instant case.
2
    Miranda v. Arizona, 384 U.S. 436 (1966).



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Miranda    rights   and    issued   a   voluntary   waiver     of   those   rights.”

Commonwealth v. Sadik, No. 630 PITTSBURGH 1994, unpublished

memorandum at 7 (Pa. Super. filed May 16, 1995).

      At the PCRA hearing in the instant case, Appellant’s 2008 trial counsel

testified that he did not seek to suppress Appellant’s 1993 confession in the

2008 trial because it had already been deemed admissible in the 1994 trial.

Appellant did not present any new evidence that would support a Motion to

Suppress, but instead relied entirely on the evidence presented in the 1994

suppression hearing.      The only “new evidence” that he presented is his

general claim that advances in both science and case law since 1994 reflect

a better understanding of how cognitive deficiencies can increase the

likelihood of false confessions. Appellant’s Brief at 16-18.

      Our review indicates that Appellant failed to meet his burden of

proving that the underlying claim has merit or that he was prejudiced by

trial counsel’s failure to revive the suppression motion. In light of the fact

that the same confession had previously been found admissible, and the

admissibility had been upheld on an appeal before this Court, trial counsel’s

decision not to file a Motion to Suppress was reasonable.           The parties are

already familiar with this Court’s thorough analysis of the voluntariness of

Appellant’s confession, and we need not replicate it here. See Sadik, supra

at 2-7. Appellant’s citations to a single case and a single law review article

fail to establish that either science or the law have evolved such that there is


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a reasonable probability that Appellant’s 2008 counsel would have prevailed

where his 1994 counsel had failed.

       Voluntary Intoxication Defense

       In his second issue, Appellant avers that trial counsel failed to prepare

and present an intoxication defense. Appellant’s Brief at 19-22.

       Contrary to Appellant’s averment, trial counsel did present a defense

of voluntary intoxication at Appellant’s trial.        Trial counsel called as a

defense witness Appellant’s brother, who testified that he was present when

Appellant returned home after the beating, and that Appellant was drunk,

unsteady on his feet, and smelled of alcohol. N.T., Jury Trial, at 334-35.3

       In her closing argument, trial counsel pointed out that in his statement

to police, Appellant told officers that he had been drinking vodka prior to the

assault. Id. at 350-51. She used the brother’s testimony and Appellant’s

statement to make a voluntary intoxication argument, arguing to the jury

that Appellant’s voluntary intoxication could reduce the charges from First-

degree Murder to Third-degree Murder.            Id. at 349-50.   Finally, the trial

court instructed the jury on voluntary intoxication as a defense to First-

degree Murder. Id. at 396-97.

       Appellant concedes that trial counsel presented a defense of voluntary

intoxication, but avers that the defense was inadequate because trial counsel
____________________________________________


3
 The testimony from Appellant’s multi-day trial appears in a single volume
and is not separated by date.



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failed to present evidence that Appellant “drank half a fifth of vodka.”

Appellant’s Brief at 22. Although Appellant makes the bald assertion that he

was prejudiced, he fails to articulate how the outcome of his trial would have

been different if the jury had heard the exact amount of vodka he allegedly

consumed that night.     Given the other evidence of intoxication that trial

counsel presented and argued to the jury, we conclude that Appellant has

failed to meet his burden of establishing he was prejudiced by trial counsel’s

alleged failure to adequately prepare a voluntary intoxication defense.

      Intellectual Disability Defense

      In his final ineffective assistance claim, Appellant avers that trial

counsel was ineffective for failing to “offer evidence of [Appellant’s]

intellectual disability to attempt a diminished capacity defense or to attempt

to refute the evidence of specific intent.” Appellant’s Brief at 23-24.

      As noted supra, our Supreme Court has previously stressed that

“boilerplate allegations and bald assertions” are insufficient to satisfy a

petitioner’s burden of establishing a lack of reasonable basis or the resulting

prejudice. Paddy, supra at 443.

      Appellant’s entire argument on this claim consists of the following two

sentences and a single citation:

      There is no valid legal strategy in failing to adequately
      investigate and present an argument that a defendant lacked the
      specific intent to kill in a criminal homicide case. The evidence
      of [Appellant’s] specific intent was not so overwhelming as to
      support the conclusion that the jury would have convicted had it
      heard the evidence of the intellectual disability. See generally

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       Commonwealth v. Wright, 961 A.2d 119 (Pa. 2008)
       (concluding that there is not prejudice when the evidence of guilt
       is overwhelming).

Appellant’s Brief at 24.      Appellant failed to adequately develop this claim,

and is not entitled to relief.4

                               Illegal Sentence Claim

       In his final issue, Appellant avers that he is serving an illegal sentence

based on Miller v. Alabama, 567 U.S. 460 (2012), and Atkins v. Virginia,

536 U.S. 304 (2002). Our review of the record indicates that neither case is

applicable to the instant facts, and Appellant is not entitled to relief.

       In Atkins v. Virginia, the United States Supreme Court considered

whether the execution of “mentally retarded offenders” violates the Eighth

Amendment’s ban on cruel and unusual punishment.5 The Court recognized

a myriad of ways in which individuals with intellectual disabities differ from

their counterparts, including their diminished culpability and the increased

likelihood of wrongful execution. Atkins, supra at 319-21. Ultimately the


____________________________________________


4
  We note that, on direct appeal, this Court affirmed both the sufficiency and
the weight of the evidence establishing that he had the specific intent
required to support a conviction for First-degree Murder. Sadik, 46 A.3d at
806. Although that review did not include evidence of Appellant’s intellectual
disability, Appellant’s cursory argument fails to demonstrate how such
evidence would have tipped the scales in his favor.
5
  In recent years the term “mentally retarded” has been replaced by the
term “intellectual disabilities,” the phrase we will use for purposes of this
appeal.



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Court concluded that “death is not a suitable punishment for a mentally

retarded criminal.” Id. at 321.

      In Miller v. Alabama, the United States Supreme Court held that

“mandatory life without parole for those under the age of 18 at the time of

their crimes violates the Eighth Amendment's prohibition on ‘cruel and

unusual punishments.’” Miller, supra at 465. The Court’s reasoning was

based on the recognition that children are fundamentally different from

adults, lacking the maturity required to be considered fully culpable

offenders and capable of ready rehabilitation as they develop into adulthood.

Id. at 471-72.

      Neither case applies to the instant set of facts.     Although there is

evidence to suggest that Appellant suffers from an intellectual disability, he

has not been sentenced to death, and is, therefore, ineligible for relief under

Atkins.

      Nor is he entitled to relief under Miller.   This Court has previously

ruled that Miller does not apply to individuals who were 18 or older at the

time they committed murder. See Commonwealth v. Furgess, 149 A.3d

90 (Pa. Super. 2016) (holding that Miller did not apply to a 19–year–old

appellant convicted of homicide, even though that appellant claimed he was

a “technical juvenile” and relied on neuroscientific theories regarding

immature brain development to support his claim).




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      Although Appellant avers that he was eighteen at the time he beat

Mary Mitchell and left her for dead on a sidewalk, the record is clear that

Appellant was twenty years old on July 13, 1993.         See, e.g., Criminal

Information, filed 1/24/08 (listing Appellant’s Date of Birth as 10/1/1972);

Sentencing Guidelines, filed 1/11/11 (same).

      Accordingly, we conclude that Appellant is not entitled to relief on his

claim that he is serving an illegal sentence.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/2017




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