Commonwealth v. Muhammad

279 A.3d 1291 (Table)

COMMONWEALTH of Pennsylvania

v.Faysal Salim MUHAMMAD, Appellant

No. 1066 WDA 2021

Superior Court of Pennsylvania.

Filed: May 27, 2022

MEMORANDUM BY McCAFFERY, J.:

Faysal Salim Muhammad (Appellant) appeals from the order entered in the Erie County Court of Common Pleas, dismissing his first petition filed pursuant to the Post Conviction Relief Act¹ (PCRA). Appellant seeks collateral relief from the judgment of sentence imposed following his jury conviction of attempted homicide and related offenses for a June 2018 shooting. On appeal, he argues trial counsel was ineffective for failing to challenge a material misstatement of fact in his arrest warrant, and that the warrant is void ab initio . For the reasons below, we affirm.

The relevant facts underlying Appellant's conviction are as follows.² On June 9, 2018, at approximately 2:44 a.m., Clifton Barney (Victim) was shot outside the Ultra View Lounge, located on Plum Street in Erie, Pennsylvania.³ See Trial Ct. Op., 11/18/19, at 1. Erie Police Detective Sean Bogart was the lead investigator. See id. at 5. "[N]o witnesses were forthcoming" to identify the shooter and no firearm was ever recovered. Id. at 5, 11. Although a shell casing was found at the scene, "[r]esults from DNA and fingerprint testing ... did not produce evidence" to identify the shooter. Id. at 11. However, after reviewing video surveillance from both inside and outside the Ultra View Lounge, Detective Bogart was able to obtain a description of the shooter. See id. at 10. He produced still images from the video surveillance and disseminated those images in the local law enforcement community. See id. at 8-9. Shortly thereafter, two guards from the Erie County Prison identified the suspect as Appellant. Id. at 9.

Detective Bogart obtained an arrest warrant for Appellant on June 13, 2018. Relevant herein, the detective averred the following in the affidavit of probable cause:

On 6-11-18 [w]e made arrangements to secure video surveillance from [Ultra View Lounge]. Upon analyzing this video, we were able to locate the suspect in the video. Suspect can be described as black male, with some facial hair, 25-30 years old, [5'11'']-[6'3''], 210-250lbs, white shirt with letters ROCK/revi and RR on back of shirt. This suspect appears to enter the bar at approx. 0028hrs and is observed on several internal cameras until 240hrs. The suspect is observed exiting the bar-Plum st, walking to black Chevy SUV, sitting in this vehicle briefly, walking from this vehicleto south on Plum-400 blk to area where victim[ ] can be seen leaning up against a vehicle. The suspect walks behind the victim and appears to remove firearm from waist area and one flash can be seen and victim[ ] can be seen immediately falling forward into the roadway-Plum st. The suspect is then seen running south on Plum st out of view.

Police Criminal Complaint, 6/13/18, Affidavit of Probable Cause (PCA) at 1 (unpaginated) (emphasis added). Appellant was subsequently apprehended in Detroit, Michigan. See Trial Ct. Op., 11/18/19, at 12. He was charged with attempted homicide, aggravated assault, possession of a weapon, persons not to possess firearms, and firearms not to be carried without a license.⁴ Appellant was represented by Eric V. Hackwelder, Esquire (preliminary hearing counsel), at his preliminary hearing held on September 17, 2018. The magisterial district judge (MDJ) held all charges for court.

Thereafter, Charles Sunwabe, Jr., Esquire (trial counsel), entered his appearance as trial counsel. On November 26, 2018, Appellant filed an omnibus pretrial motion asserting, inter alia , that the evidence presented at the preliminary hearing failed to establish a prima facie case with respect to the charges.⁵ See Appellant's Omnibus Pretrial Motion, 11/26/18, at 2. The trial court denied the motion following a hearing on February 19, 2019.⁶

The case proceeded to a jury trial, commencing on May 13, 2019. On May 15th, the jury returned a verdict of guilty on all charges. The trial court imposed an aggregate sentence of 28 to 56 years' imprisonment on July 11, 2019.

Appellant filed a timely direct appeal in which he argued: (1) the trial court abused its discretion when it permitted two corrections officers to testify how they recognized Appellant, i.e. , because he had been an inmate; and (2) the evidence was insufficient to positively identify him as the shooter.⁷ See Commonwealth v. Muhammad , 1224 WDA 2019 (Pa. Super. Jan. 13, 2021) (unpub. memo. at 3, 5). This Court affirmed the judgment of sentence, concluding Appellant's first claim was waived, and his second claim was meritless. See id. at 4, 6-7 (affirming the second issue on the basis of the trial court's opinion). Appellant did not seek review in the Pennsylvania Supreme Court.

On March 17, 2021, Appellant filed a timely, pro se PCRA petition. The PCRA court appointed William J. Hathaway, Esquire, as counsel, and on June 7th, Attorney Hathaway filed a supplemental petition asserting the ineffective assistance of prior counsel for failing to challenge a material misstatement of fact in the arrest warrant namely, that the surveillance video showed Appellant with a firearm. See Appellant's Supplemental Petition for Post Conviction Collateral Relief, 6/7/21, at 1-2. On July 9th, the PCRA court issued Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant's petition without first conducting an evidentiary hearing. See Notice of Intent to Dismiss PCRA Pursuant to Pa.R.Crim.P. 907, 7/9/21, at 1. The court found that Appellant's claim was previously litigated on direct appeal where he challenged the sufficiency of the evidence identifying him as the shooter and Appellant was improperly attempting to "relitigate the issue of identification under the guise of an ineffective assistance of counsel claim." Id. at 4-5. The PCRA court further noted that both the preliminary hearing and trial counsel "extensively cross-examined Detective Bogart regarding his investigatory process[,]" including the issue of "the visibility of the firearm in question[.]" Id. at 5.

Appellant did not file a response to the Rule 907 notice. Consequently, on August 11, 2021, the PCRA court entered an order dismissing Appellant's petition. This timely appeal follows.⁸

Appellant sets forth the following three issues on appeal:

A. Whether the [PCRA] Court committed legal error and abused its discretion in failing to grant PCRA relief in that [A]ppellant was afforded ineffective assistance of counsel given the failure of counsel to challenge the legal sufficiency of the arrest warrant issued in this case due to the arrest warrant being patently defective based on false declarations by the affiant police officer?

B. Whether the [PCRA] Court committed legal error and abused its discretion in failing to find that the affiant knowingly or intentionally or with reckless disregard falsified or exaggerated material facts within his affidavit to secure the issuance of an arrest warrant thereby rendering the initiation of the criminal case and the arrest warrant that was issued as void ab initio ?

C. Whether [A]ppellant's constitutional rights were violated by defense counsel's omissions and the trial [c]ourt's failure to intercede relative to the defective issuance of the arrest warrant and the resultant extralegal arrest process, which tainted the entire criminal charges in this case from origination?

Appellant's Brief at 2.

Our standard of review of an order denying PCRA review is well-established: "[W]e determine whether the ruling of the PCRA court is supported by the record and is free of legal error." Commonwealth v. Webb , 236 A.3d 1170, 1176 (Pa. Super. 2020). Furthermore, "a PCRA court has discretion to dismiss a PCRA petition without a hearing if the court is satisfied that there are no genuine issues concerning any material fact; that the defendant is not entitled to post-conviction collateral relief; and that no legitimate purpose would be served by further proceedings." Commonwealth v. Brown , 161 A.3d 960, 964 (Pa. Super. 2017) (citations omitted).

The crux of Appellant's argument is that the affidavit of probable cause supporting the issuance of his arrest warrant contained a material misrepresentation of fact namely, that upon viewing the surveillance video footage of the shooting, Detective Bogart observed an individual, later identified as Appellant, in possession of a firearm . Appellant's Brief at 6. However, Appellant asserts that, at both the preliminary hearing and jury trial, Detective Bogart "was forced to concede that in viewing the video surveillance tapes he never observed a firearm" in Appellant's possession. Id. Appellant contends the statement in the probable cause affidavit was "a blatant misrepresentation of what the video surveillance showed[,]" and that the detective "falsified [this] material fact ... in an effort to falsely link [Appellant] to the alleged criminal conduct." Id.

In his first issue, Appellant argues trial counsel was ineffective for failing to challenge the legality of his arrest warrant, and that he was "severely prejudiced [because] he was deprived of a valid and compelling defense that could have [been] dispositive of the entire criminal case[.]" Appellant's Brief at 9.

Where, as here, a PCRA petitioner challenges prior counsel's ineffectiveness, we must bear in mind the following:

Pennsylvania law presumes counsel has rendered effective assistance. When asserting a claim of ineffective assistance of counsel, the petitioner is required to demonstrate: (1) the underlying claim has arguable merit; (2) counsel had no reasonable strategic basis for his action or inaction; and, (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. The failure to satisfy any prong of the test for ineffectiveness will cause the claim to fail.

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