Com. v. Ali, M. (memorandum)

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J-S47015-17 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. MUSTAFA ALI Appellant No. 135 EDA 2017 Appeal from the PCRA Order November 29, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000683-2008 BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY LAZARUS, J.: FILED AUGUST 11, 2017 Mustafa Ali appeals from the order, entered in the Court of Common Pleas of Philadelphia County, denying his petition filed under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”). After our review, we affirm. Following trial, a jury convicted Ali of two counts of first-degree murder,1 two counts of robbery,2 and one count each of carrying a firearm without a license,3 and recklessly endangering another person.4 Following a ____________________________________________ 1 18 Pa.C.S.A. § 2502(a). 2 18 Pa.C.S.A. § 3701. 3 18 Pa.C.S.A. § 6016. 4 18 Pa.C.S.A. § 2705. J-S47015-17 penalty hearing, the jury sentenced Ali to life imprisonment. The court imposed two consecutive life sentences, without parole, for the murder convictions, and a concurrent aggregate sentence of 16 to 32 years’ imprisonment on the remaining convictions. On direct appeal, this Court affirmed Ali’s judgment of sentence, and the Supreme Court of Pennsylvania denied allowance of appeal. Ali filed a timely pro se PCRA petition on August 28, 2012. The court appointed counsel and Ali filed a motion to remove counsel and proceed pro se. The court held a Grazier5 hearing, and allowed Ali to proceed pro se. Following a hearing on Ali’s petition, the court denied relief. Ali filed a pro se appeal and a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Ali raises the following issues for our review: 1. Was not Judge Minehart’s prolonging this matter an inordinate delay and an abuse of discretion? 2. Did not the Judge abuse his discretion in considering the Commonwealth’s answer, although it was filed after the deadline set by him? 3. Did not the court err in ruling Appellant’s arrest was not pretextual, lacking probable cause? ____________________________________________ 5 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (holding when waiver of right to counsel is sought at post-conviction and appellate stages, on-the-record determination should be made that waiver is knowing, intelligent, and voluntary). -2- J-S47015-17 4. Was not Appellant denied due process when he was denied an opportunity to challenge subject matter jurisdiction? 5. Was not Appellant denied due process because of prosecutorial misconduct? 6. Was not the questioning of Appellant after arrest on a separate matter an unnecessary delay and a Fourth Amendment violation? 7. Was not the court in error in ruling psychiatric testimony was not allowed during the guilty phase? 8. Was not the court in error in ruling Appellant’s statement was voluntary? 9. Was not the court in error in ruling Appellant’s counsel was not ineffective for arguing multiple defenses? 10. Was not the court in error in giving erroneous first-degree murder instructions? Appellant’s Brief, at 3-4. To be entitled to PCRA relief, appellant must establish, by a preponderance of the evidence, his conviction or sentence resulted from one or more of the enumerated errors in 42 Pa.C.S.A. § 9543(a)(2), his claims have “not been previously litigated or waived[,]” and “the failure to litigate the issue prior to or during trial, . . . or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel.” 42 Pa.C.S.A. 9543(a)(3)-(4). An issue is previously litigated if “the highest appellate court in which [appellant] could have had review as a matter of right has ruled on the merits of the issue[.]” 42 Pa.C.S.A. §9544(a)(2). An issue is waived if appellant “could have raised it but failed to do so before -3- J-S47015-17 trial, at trial, . . . on appeal or in a prior state post [-]conviction proceeding.” 42 Pa.C.S.A. § 9544(b). Our review is limited to determining whether the record supports the PCRA court’s determination, and whether the PCRA court’s determination is free of legal error. Commonwealth v. Berry, 877 A.2d 479, 482 (Pa. Super. 2005). The PCRA court’s findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). After our review, we agree with the Honorable Jeffrey P. Minehart’s determination that Ali is not entitled to collateral relief. We note that all but two of Ali’s claims have been previously litigated or waived. Issues 3, 6 and 8 were previously raised and addressed by this Court on direct appeal, Commonwealth v. Ali, 32 A.3d 280 (Table) (unpublished memorandum, filed July 25, 2011), and our Supreme Court denied allowance of appeal. See Commonwealth v. Ali, 613 Pa. 649 (Dec. 28, 2011). See also 42 Pa.C.S.A. § 9544(a)(2), (3). Ali’s claims in issues 4, 6 5, 7 and 10 have been waived. See 42 Pa.C.S.A. § 9453(a)(3), (4). ____________________________________________ 6 We note that Ali numbers this issue as 7 in the Argument section of his brief. To the extent that Ali baldly asserts at the end of his argument that trial and appellate counsel were ineffective for failing to argue that Ali should have been tried in federal court since this involved a bank robbery, we find no relief is due. The Commonwealth charged Ali with murder and robbery of two victims, in violation of the Pennsylvania Crimes Code. Ali’s claim that the court of common pleas had no jurisdiction is meritless. See (Footnote Continued Next Page) -4- J-S47015-17 Ali’s properly raised claims, issues 1, 2 and 9, afford him no relief. We agree with the PCRA court’s determination that the disposition of Ali’s petition was not subject to an unconstitutional delay, that the court’s consideration of the Commonwealth’s untimely motion did not prejudice Ali, and that counsel were not ineffective in for presenting multiple defenses at trial. See PCRA Court Opinion, 1/11/17, at 6-7, 9. Accordingly, we affirm the order denying Ali’s petition for postconviction relief, and we do so on the basis of Judge Minehart’s opinion. We direct the parties to attach a copy of this opinion in the event of further proceedings. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 8/11/2017 (Footnote Continued) _______________________ Commonwealth v. Fears, 86 A.3d 795 (Pa. 2017) (counsel cannot be deemed ineffective for failing to raise a meritless claim). -5- Circulated 07/24/2017 03:23 PM

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