Com. v. Hassan, E. (memorandum)

Annotate this Case

Download PDF

J. S73010/13 NON-PRECEDENTIAL DECISION COMMONWEALTH OF PENNSYLVANIA v. EARL HASSAN, Appellant SEE SUPERIOR COURT I.O.P. 65.37 : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 2988 EDA 2012 Appeal from the PCRA Order, September 28, 2012, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP-51-CR-0107461-2002 BEFORE: FORD ELLIOTT, P.J.E., BOWES AND OTT, JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 15, 2014 Appellant appeals the order dismissing his first petition filed pursuant 9541-9546. Finding no error, we will affirm the order below. On March 7, 2003, a jury found appellant guilty of attempted murder and related charges arising from an armed robbery committed on September 23, 2001, near the intersection of Carlisle and Cambridge Streets in Philadelphia. The victim was shot numerous times when he attempted to wrest the gun from appellant. On September 26, 2003, appellant was sentenced to an aggregate affirmed the judgment of sentence, and on November 17, 2005, our supreme court denied appeal. Commonwealth v. Hasson, 872 A.2d 1271 J. S73010/13 (Pa.Super. 2005) (unpublished memorandum), appeal denied, 585 Pa. 695, 889 A.2d 87 (2005). On March 8, 2006, appellant timely filed the instant PCRA petition pro se. Although counsel was initially appointed, on April 27, 2009, counsel practice. pursuant to Turner-Finley See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). Subsequently, appellant provided counsel with the affidavit of Roy Young, which stated that Young was a witness to the crime and that appellant did not commit it. On June 17, 2009, counsel filed an amended PCRA petition raising the Roy Young claim. On March 2, 2010, an evidentiary hearing was held, and testimony from Roy Young was taken. Appellant subsequently decided he wanted to proceed pro se. On May 6, 2010, the court conducted a Grazier hearing,1 and thereafter, appellant was permitted to proceed pro se. On August 22, 2012, the PCRA court entered an order giving appellant notice, pursuant to Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A., of its intention to dismiss his petition without further on September 28, 2012, and this timely appeal followed. On appeal, appellant raises the following issues: 1 Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998). -2- J. S73010/13 (I) Did the lower Court err in judgement in to equal protection, when it dismissed the evidentiary hearing was held on March 2, 2010 and never finished? (II) Did the lower Court err in dismissing hearing insofar as the Petition contained facts, if poven [sic], that would have entitled him to relief? (III) Trial Counsel rendered ineffective assistance of Federal Constitutional rights to due process, and the effective assistance of counsel, and to his great prejudice by: A. Neglecting to object and seek a case, although prosecution knowingly defrauded the court and jury by placing a white police officer on the stand to testify that he directly received the statement "Earl shot me", at the scene, from Starr, although the white officer was not at the scene to speak to the victim. This mistaken or malevolent testimony then infected the position of three key witnesses for the Commonwealth, denying the Appellant a fair trial; B. Providing unprofessional and unreasonable performance of his minimum abdication [sic] to investigate the facts at all levels, (preliminary, pre-trial, trial, and post-trial); C. Neglecting to challenge the affidavit of probable cause for -3- J. S73010/13 arrest warrant, as it contains deliberate and willful falsehood and omitted facts; D. Failing to precisely and immediately object and seek a mistrial for the evisceration of the constitutional due process right to a fair trial, have a meaningful defense, and to confront his accuser, when the prosecution brought into evidence by ambush a police white paper (6353) that was complete hearsay only to usurp the defense strategy unfairly; E. Failing to object to the court error in judgement in reversing his midtrial ruling to exclude the 6353 police white paper, do [sic] to last minute exposure, as trial by ambush, thus eviscerating any resemblance of 14th and 6th Amendment protections (due process, fair trial, effective assistance of counsel); F. Failing to object and immediately seek a mistrial for the improper admission of the hearsay testimony right to confront witnesses against him and move for the production of said witness during trial; G. Did PCRA Counsel (David S. Rudenstein) render ineffective assistance of counsel in not raising all the above issues before the PCRA court in violation of new Supreme Court law announced in Martinez V. Ryans [sic]. -4- J. S73010/13 -ii. Our standard of review for an order denying post-conviction relief is whether the record suppor Commonwealth v. Franklin will not be disturbed unless there is no support for the findings in the certified record. Id. of ineffective assistance of counsel, we also note that appellant is required to make the following showing in order to succeed with such a claim: (1) that the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) that, but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010). The failure to satisfy any prong of this test will cause the entire claim to fail. Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa.Super. 2008). Finally, counsel is presumed to be effective, and appellant has the burden of proving otherwise. Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super. 2003). In his first two issues, appellant contends that the PCRA court erred in not conducting an evidentiary hearing. We disagree. -5- J. S73010/13 [T]he right to an evidentiary hearing on a post-conviction petition is not absolute. Commonwealth v. Jordan, 772 A.2d 1011, 1014 discretion to decline to hold a hearing if the is patently frivolous and has no support either in the record or other evidence. Id. 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. Commonwealth v. Hardcastle, 549 Pa. 450, 454, 701 A.2d 541, 542-543 (1997). Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012), quoting Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa.Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007). We first note that the PCRA court did conduct an evidentiary hearing as to the Roy Young claim. Appellant apparently believes that his remaining remaining issues pertain to instances of ineffective assistance by trial counsel. Where the issue concerns ineffective assistance of counsel, an to act was an oversight or some kind of tactical decision. The other two prongs of the test for ineffectiveness, underlying merit of the claim and prejudice to the defendant, can usually be determined from the record. Because an appellant must prove all three prongs, the failure to prove a single prong results in a finding of no ineffectiveness. Thus, an evidentiary -6- J. S73010/13 hearing need not be held where it can be determined from the record that the underlying claim has no merit or that there has been no prejudice to appellant. That is the situation here and we find no error in failing to hold an additional evidentiary hearing. Finally, we find t discussion by us. After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the PCRA court, it is our determination that there is no merit to the remaining questions -page opinion, filed on April 23, 2013, thoroughly discusses and properly disposes of the remaining questions presented.2 We will adopt it as our own and affirm on those bases. Accordingly, having found no error below, we will affirm the order of the PCRA court. Order affirmed. 2 assessing ineffective assistance of counsel under the PCRA, there is an additional requirement that the court determine whether the ineffective assistance so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. (PCRA cou opinion at 3, citing 42 Pa.C.S.A. § 9543(a)(2)(ii).) That notion was dispelled when the supreme court declined to follow the plurality opinion in Commonweatlh v. Buehl, 540 Pa. 493, 658 A.2d 771 (1995). See Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999). -7- J. S73010/13 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/15/2014 -8-

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.