Opinion
J-S52018-20 No. 363 EDA 2020
04-12-2021
COMMONWEALTH OF PENNSYLVANIA v. DAWUD ABDUL-HAKIM Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered January 21, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008191-2011 BEFORE: PANELLA, P.J., McCAFFERY, J., and STEVENS, P.J.E. MEMORANDUM BY McCAFFERY, J.:
Former Justice specially assigned to the Superior Court.
Dawud Abdul-Hakim (Appellant) appeals from the order entered in the Philadelphia County Court of Common Pleas, denying his first, timely Post Conviction Relief Act (PCRA) petition. Appellant was convicted of second-degree murder and related offenses following a joint jury trial with a co-defendant. He avers the PCRA court erred in denying his claims that: (1) trial counsel was ineffective for violating the dictates of Bruton v. United States , 391 U.S. 123 (1968); (2) direct appeal counsel was ineffective for not challenging the trial court's denial of Appellant's motion to sever on the basis of Bruton violations; and (3) trial counsel was ineffective for not objecting to particular testimony by a police officer. We affirm on the basis of the PCRA court's opinion.
On Appellant's direct appeal, this Court summarized the underlying facts:
On October 20, 2010, Appellant[ ] and an unidentified male were invited by co-defendant, Kevin Williams . . . to smoke weed in [Williams'] car. At approximately 11:20 PM, Williams was driving west on Jackson Street in . . . Philadelphia when Appellant suggested they [r]ob three (3) men they saw walking[:Jason Moncrief, Andrew Lillie, and Decedent, Anthony DeMarco Jr. Appellant knew Decedent "since he was 12 years old from playing basketball with [him] in the neighborhood."] Appellant had a .40 caliber Glock pistol on his person. The unidentified male told Williams to stop the car, said he would be right back, and instructed Williams to stay there. Appellant and the unidentified male exited Williams' car on to the sidewalk ahead of [the three victims] and walked slowly so [the victims] could catch up. Williams backed his car onto nearby Philip Street where he could see [all of the men]. Williams kept his car running in the middle of Philip Street and turned off his headlights.
As the two (2) groups converged, the unidentified male grabbed Moncrief and Appellant grabbed [Decedent,] holding [him] at gunpoint. The unidentified male and Appellant directed [the three victims] to give up their money, whereupon the unidentified male went into the pockets of Moncrief and retrieved $50. Appellant again told [Decedent] to "Give it up". [Decedent] refused to comply, and was hit in the back of the neck with the gun by Appellant. [Decedent] then began to fight Appellant, punching him repeatedly and wrestling Appellant to the ground. During the fight Appellant dropped the gun. The unidentified male picked up the gun, told [Decedent] to get off of Appellant, then fired six (6) shots at [Decedent], hitting him four (4) times and hitting Appellant once (1) in the left hip. Lillie and Moncrief subsequently ran south on Second Street, Williams drove west on Jackson Street, while Appellant and the unidentified male ran west on Jackson Street.
[Decedent] was transported to [the h]ospital, where he was pronounced dead. . . .Commonwealth v. Abdul-Hakim , 1485 EDA 2014 (unpub. memo. at 1-3, 7-8) (Pa. Super. Nov. 6, 2015) (citation omitted), appeal denied, 652 EAL 2015 (Pa. Mar. 29, 2016).
Appellant and Williams were arrested. Both men gave incriminating statements to the police, which, as we discuss infra , were introduced at trial. Appellant was charged with homicide, conspiracy, robbery, and related offenses. The Commonwealth filed a motion to try Appellant and Williams together. Williams then filed a motion to sever their cases, which he and Appellant jointly litigated. The trial court denied this severance motion.
Appellant's and Williams' cases proceeded to a first joint jury trial in October of 2012. The jury was hung on several charges and thus a mistrial was declared.
A second jury trial commenced on November 20, 2013. The two surviving victims, Moncrief and Lillie, testified as Commonwealth witnesses. The Commonwealth also presented the signed, written statement that Williams gave to Philadelphia Homicide Detective Levi Morton, by way of Detective Morton reading the statement aloud to the jury. N.T. Jury Trial, 11/22/13, at 73. In that statement, Williams admitted the following: on the night of the incident, he was driving, saw two men, and asked them to "smoke some weed with" him. Id. at 77-78. They agreed, and "[o]ne got in the front seat, and the other boy got in the back seat." Id. at 78. "[T]he boy in the back seat" said he "was going to rob somebody tonight." Id. at 79. "The guy in the front seat spotted three white males coming down Second Street. The boy in the back seat said, let's get them right there." Id. at 80. "[T]he guy in the front . . . told [Williams] to stop and let him out right there[.]" Id. "They [both] got out of the car[ and Williams] saw the guy that was in the back seat . . . holding something in his right hand down by his right leg." Id. "The guy that was in the back seat raised his hand to one of the white males, and then they started tussling[ and] fell to the ground." Id. at 81. "The other one had the other white guy[ and] went over to help this boy that was on the ground tussling. He grabbed the gun from his boy [sic], and then [Williams] saw him shoot the white boy." Id. at 81-82. Throughout this statement, neither Appellant nor the unidentified male were identified by name or as Williams' "co-defendant." See id. at 78-83.
The Commonwealth likewise presented the signed, written statement that Appellant gave to Philadelphia Homicide Detective John Harkins. Detective Harkins read aloud the statement, in which Appellant told police the following: Appellant "and two other guys were out just driving around[ and] smoking in the car," and Appellant had a Glock 40 gun. N.T., 11/22/13, at 164-65. They "saw three guys walking up Second Street[ and] figured we could rob them." Id. at 164. "[T]he driver of the car pulled over, and me and the other guy walked up the block[.]" Id. As the three victims walked past Appellant, Appellant "grabbed" Decedent and put his gun to Decedent's "chest and said, just give it up." Id. at 166. Decedent "started tussling with [Appellant] trying to get the gun." Id. The gun fell out of Appellant's hand, and "the guy that was with [Appellant] picked up the gun and started yelling, get up, get off him[,] talking to [Decedent]. Then he just started shooting." Id. at 166-67. Throughout Appellant's statement, Williams' name was not stated, and instead he was referred to as "the driver." See id. at 164. The name of the unidentified male was likewise not stated, and he was referred to as "the other guy" and "the guy who was with me." Id. at 164-68.
On cross-examination, Appellant's trial counsel asked Detective Harkins if he conducted interviews "with any other eyewitnesses[.]" N.T., 11/22/13, at 182. The detective replied "[t]here were no other interviews of eyewitnesses to the entire incident. However, there were other interviews of witnesses that saw parts of either the incident or flight or beyond flight." Id. Appellant's counsel then asked:
. . . You had the interview of the individual who parked his car up the street?Id.
[Detective Harkins:] Yes.
Q. Now how about anybody else?
* * *
A. There were a number of interviews that were conducted.
Following the reading of Appellant's statement to the detective, the trial court instructed the jury as follows:
. . . I just want to give you a cautionary instruction. You've just heard the detective read a statement that is attributed to one of the defendants in this matter. That statement, the content of the statement, may only be used against the person who made the statement.N.T., 11/22/13, at 172. Furthermore, in the final jury charge given prior to the jury's deliberation, the trial court further instructed as follows:
You have also heard evidence that each defendant made a statement to the police. I instruct you that the contents of each statement can only be used against the maker of the statement. So the statement attributed to Defendant Williams can only be used against him, and the statement attributed to [Appellant] can only be used against him.N.T., 11/25/13, at 55.
Pertinent to this appeal, we note the following trial testimony by Philadelphia Police Sergeant John Venit. He watched a video taken by a private residence security camera, which showed Williams' car, at the time of the shooting, one block away from the scene of the crime. See N.T. Jury Trial, 11/20/13, at 103-04.at 106, 108. Sergeant Venit testified:
From that video and from my personal experience with this vehicle, it was an older model Buick with the . . . far left brake light . . .missing, had been stopped previously, documented on 75-48, which is our form for vehicle investigations, and previously before the homicide. And this vehicle is well known to police in the area.Id. at 108. Trial counsel did not object to this testimony. See id. at 109.
In connection with Sergeant Venit's testimony, we note Police Officer Craig Martella testified that on October 15, 2010 — five days before the underlying shooting — he conducted a traffic stop of Williams' vehicle for an inoperable left rear brake light. N.T., 11/22/13, at 44-45. Officer Martella stated Williams was the driver, but in his brief testimony, the officer made no mention of any other passengers or Appellant. See id. at 42-48.
Neither Appellant nor Williams testified on their own behalf. N.T. Jury Trial, 11/25/13, at 5, 9. Appellant presented two defense exhibits, and Williams called his father as a character witness. Id. at 11-12.
On November 26, 2013, the jury found Appellant guilty of second-degree murder, conspiracy to commit murder, three counts of robbery, possessing an instrument of crime, and persons not carry a firearm without a license. On the same day, the trial court imposed a life-without-parole sentence, as well as concurrent, mandatory minimum sentences on each robbery count.
18 Pa.C.S. §§ 907(a), 6106(a)(1). Williams was found guilty of third-degree murder, conspiracy, and three counts of robbery for his role "as the driver in [the] armed street robbery of three victims." Commonwealth v. Williams , 355 EDA 2018 (unpub. memo. at 1) (Pa. Super. Oct. 15, 2018). Williams received an aggregate sentence of 35 to 70 years' imprisonment. Id. at 2. This Court affirmed his judgment of sentence the same day we affirmed Appellant's judgment of sentence, November 6, 2015. See id.
On direct appeal to this Court, Appellant challenged the weight of the evidence identifying him as one of the perpetrators, as well as the legality of the sentence. On November 6, 2015, this Court affirmed his convictions, but agreed the three robbery counts merged with second-degree murder for sentencing purposes, and were violative of Alleyne . Abdul-Hakim , 1485 EDA 2014 (unpub. memo. at 11). This Court thus vacated the three robbery sentences, but did not remand, as Appellant's overall sentence of life without parole was not disrupted. Id. at 13. On March 29, 2016, the Pennsylvania Supreme Court denied allowance of appeal. Abdul-Hakim , 652 EAL 2015.
Alleyne v. United States , 570 U.S. 99 (2013).
Appellant filed a pro se timely, first PCRA petition on October 13, 2016. Following the appointments of several attorneys, present counsel, Stephen O'Hanlon, Esquire, entered his appearance. He filed an amended PCRA petition on July 8, 2019, arguing "[t]rial counsel was ineffective for repeatedly violating the dictates of Bruton " by cross-examining Detective Harkins in such a manner that "elicited a response . . . that there were statements from other witnesses." Appellant's Amended PCRA Petition & Memorandum of Law Requesting New Trial, 7/8/19, at 4, 9. Appellant reasoned "[t]he jury could only conclude" these witness statements included the statement by Williams. Id. at 9. Appellant further averred prior appellate counsel was ineffective for not challenging, on direct appeal, the denial of his motion to sever, where the Bruton violations caused him prejudice. Id. at 10-11. Finally, Appellant asserted trial counsel was ineffective for failing to object to Sergeant Venit's testimony that Williams' vehicle "was well-known to police." Id. at 15.
We note Williams also filed a timely first PCRA petition, raising, inter alia, a similar claim that his trial counsel was ineffective for failing to object to a Bruton violation. Williams , 355 EDA 2018 (unpub. memo. at 2-3). The PCRA court denied relief, and on appeal, this Court affirmed, concluding Appellant's "statement was properly redacted, comported with precedent, and was fittingly admitted with cautionary instructions to the jury." Id. at 3 (citation omitted).
The PCRA court ultimately issued Pa.R.Crim.P. 907 notice of intent to dismiss Appellant's petition without a hearing, and issued the underlying dismissal order on January 21, 2020. Appellant took this timely appeal and complied with the court's order to file a Pa.R.A.P. 1925(b) statement of issues complained of on appeal.
Appellant presents three issues for our review:
1. Did the PCRA court err in dismissing Appellant's PCRA Petition without a hearing because trial counsel was ineffective for repeatedly violating the dictates of Bruton . . ., thereby depriving Appellant of his Sixth Amendment rights to confrontation and his right to a fair trial?
2. Did the PCRA court err in dismissing Appellant's PCRA Petition without a hearing because direct appeal counsel was ineffective for failing to raise the denial of the Motion to Sever because redaction could not cure the fact that the jury could only conclude that both defendant statements referred to each defendant?
3. Did the PCRA court err in dismissing Appellant's PCRA Petition without a hearing because trial counsel was ineffective for not objecting and seeking a curative instruction or a mistrial when Sergeant John Venit testified that the vehicle in which Appellant had previously been stopped was well-known to police thereby
undermining the presumption of innocence and Appellant's right to a fair trial?Appellant's Brief at 4.
Appellant first avers the PCRA court denied his "petition without a hearing because trial counsel was ineffective for repeatedly violating" Bruton. Appellant's Brief at 8 (capitalization removed). After citing relevant authority concerning Bruton and severance of co-defendants' trials, Appellant focuses on his trial counsel's cross-examination of Detective Harkins. Id. at 15. Appellant avers trial counsel "elicited a response from Detective Harkins that there were statements from other witnesses that saw Appellant's alleged flight and that other interviews were conducted," and "[t]he jury could only conclude that this included [Williams' statement] and this, in turn, violated the Bruton Order and associated redaction." Id. at 15. Appellant claims "prejudice because the jury could only determine that co[-]defendant Williams referenced" him. Id. at 15-16.
We note the relevant standard of review: "[W]e examine whether the PCRA court's determination 'is supported by the record and free of legal error.'" Commonwealth v. Mitchell , 141 A.3d 1277, 1283-84 (Pa. 2016) (citation omitted). Furthermore, "a PCRA petitioner is not automatically entitled to an evidentiary hearing." Commonwealth v. Miller , 102 A.3d 988, 992 (Pa. Super. 2014). Rather,
It is within the PCRA court's discretion to decline to hold a hearing if the petitioner's claim is patently frivolous and has no support either in the record or other evidence. It is the responsibility of
the reviewing court on appeal to examine each issue raised in the PCRA petition in light of the record certified before it in order to determine if the PCRA court erred in its determination that there were no genuine issues of material fact in controversy and in denying relief without conducting an evidentiary hearing.Id. (citation omitted).
In Bruton , the High Court held "the admission of [a] facially incriminating statement by [a] non-testifying co-defendant violate[s a defendant's] right of cross-examination guaranteed by the confrontation clause of the Sixth Amendment, notwithstanding" any jury instruction "to consider that testimony only against [the] co-defendant." Commonwealth v. Travers , 768 A.2d 845, 847 (Pa. 2001) (citations omitted). The Court sought to prevent situations
where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect . . . . The unreliability of such evidence is intolerably compounded when the alleged accomplice . . . does not testify and cannot be tested by cross-examination.Id., quoting Bruton , 391 U.S. at 135-36. Subsequently, the High Court "approved the practice of redacting confessions of non-testifying co-defendants to remove references that expressly implicated the defendant." Id .at 847.
The Pennsylvania Supreme "Court has specifically approved of redaction and a limiting instruction as a means of eliminating any possible prejudice arising from the admission of a co-defendant's confession at a joint trial." Travers , 768 A.2d at 848. In Travers , the Court concluded a co-defendant's redacted confession — which replaced references to the defendant with the phrase, "the other man" — "combined with the trial court's accurate and repeated cautionary charge," did not offend the Sixth Amendment or Bruton. Id. at 850-51.
After a thorough review of the record, the parties' briefs, the relevant law, and the well-reasoned opinion of the PCRA court, we conclude there is no merit to Appellant's first two claims. We emphasize Appellant's present arguments are near verbatim to that in his PCRA petition, and the PCRA court's opinion aptly addressed them. On appeal, Appellant does not address any of the court's particular reasoning, let alone specify why it was in error. We affirm on the basis of that court's opinion. See PCRA Ct. Op., 5/18/20, at 5-6 (law generally on ineffective assistance of counsel claims), 7-10 (reproduction of Williams' complete statement, as read aloud at trial), 11-12 (reproduction of trial counsel's alleged ineffective cross-examination of Detective Harkins and trial court's mid-testimony cautionary instruction), 12-13 (analysis "that Williams' statement was properly redacted, comported with precedent and was fittingly admitted with cautionary instructions to the jury," and trial counsel's cross-examination did not violate Bruton ).
See N.T., 11/22/13, at 172.
In his second issue, Appellant asserts the PCRA court erred in not finding direct appeal counsel "ineffective for failing to raise the denial of the motion to sever because redaction could not cure the fact that the jury could only conclude that both defendant[s'] statements referred to each" other. Appellant's Brief at 16 (capitalization removed). Appellant claims "prejudice because he was unable to confront witnesses against him." Id. at 17. In support, Appellant reproduces, verbatim, five pages of the legal authority cited in his first issue.
"The decision of whether to sever trials of co-defendants is within the sound discretion of the trial court. Both this Court and the United States Supreme Court have recognized that joint trials of co-defendants play a crucial role in the criminal justice system." Travers , 768 A.2d at 846-47 (citations omitted).
We incorporate the PCRA court's discussion of Appellant's Bruton issue and conclude no relief is due. See PCRA Ct. Op. at 12-13. We further note the court's reasoning that: trial counsel did seek to sever the two co-defendants' cases; Appellant and Williams were both charged with conspiracy for the same incident; nearly all the "voluminous" evidence was admissible against each defendant; and because the trial "court correctly denied the . . . severance motion[, prior appellate] counsel cannot be deemed ineffective for failing to raise the issue on appeal." Id. at 13-14.
In his final issue, Appellant claims the PCRA court erred in denying his "petition without a hearing because trial counsel was ineffective for not objecting and seeking a curative instruction or a mistrial when Sergeant . . . Venit testified [Williams' vehicle] was well-known to police[.]" Appellant's Brief at 24 (capitalization removed). Appellant also avers that he "was stopped in this vehicle previously." Id. at 26, citing N.T., 11/22/13, at 44-45; N.T., 11/20/13, at 108. Appellant reasons this evidence "could only imply prior criminality" and thus it undermined his presumption of innocence. Id. at 24, 26.
We note: "In the context of an ineffectiveness claim, counsel's failure to request a cautionary instruction regarding evidence of other crimes or prior bad acts does not constitute per se ineffectiveness; '[r]ather, in order to obtain relief under such a claim, a defendant must still satisfy each of the three prongs of the test for ineffective assistance of counsel.'" Commonwealth v. Weiss , 81 A.3d 767, 798 (Pa. 2013) (citation omitted).
First, we find no record support for Appellant's claim the jury heard evidence that he was previously connected to Williams' car. None of Appellant's cited trial transcript pages support such a proposition. Instead, Officer Martella testified that when he conducted the traffic stop on October 15, 2010, Williams was the driver. N.T., 11/22/13, at 44-45. As stated above, the officer Martella made no mention of any other passengers and no reference to Appellant anywhere in his testimony. See id. at 42-48.
We adopt the PCRA court's reasoning on this issue, as well, and conclude that no relief is due. See PCRA Ct. Op. at 15 (finding Williams admitted the vehicle belonged to him, "there was no testimony [Appellant] was in the car previously, either when stopped by the sergeant or other times[;]" therefore "the complained of testimony was not connected to [A]ppellant, and counsel cannot be faulted for failing to object or to ask for a curative instruction").
For the foregoing reasons, we determine Appellant's claims of ineffective assistance of counsel are meritless, and the PCRA court's conclusion are supported by the record and free of legal error. See Mitchell , 141 A.3d at 1283-84. We thus affirm the order of the PCRA court dismissing his PCRA petition.
We direct that a copy of the PCRA court's May 18, 2020, opinion be filed along with this memorandum and attached to any future filings in this case.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/12/21
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