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HomeMy WebLinkAbout94-1499 CRIMINAL COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs, 94-1499 CRIMINAL TERM CHARGE: (A) CRIMINAL HOMICIDE (1ST DEGREE) (B) ROBBERY (C) CRIMINAL CONSPIRACY (HOMICIDE) (D) CRIMINAL CONSPIRACY (ROBBERY) AFFIANT: PTL. ROBERT SMEE SEIFULLAH ABDUL-SALAAM IN RE: OPINION PURSUANT TO RULE 1925 In this case, the defendant has filed a praecipe for the entry of an adverse order pursuant to Pa,RAP, 301(e), According to that Rule, the filing and service of such a praecipe constitutes the entry of an appealable order for the purposes of the Pennsylvania rules, Such action is taken where, as here, an appeal of a matter is impelled by the exigencies of the case, The exigency averred in the instant matter is the fact that the Governor of Pennsylvania, Mark Schweiker, has signed a warrant scheduling the execution of the defendant for December 12, 2002, The defendant's conviction and sentence of death resulted from the murder of New Cumberland Police Officer Willis Cole in New Cumberland, Cumberland County, Pennsylvania, during the morning hours of August 19, 1994, While he and his co-defendant were fleeing from the robbery of a coin shop, the defendant gunned down Officer Cole in the middle of the street in broad daylight. Evidence of the defendant's guilt in this vicious and senseless act was overwhelming, Following a jury trial, in which the defendant was represented by one of Central Pennsylvania's preeminent defense attorneys, the defendant was convicted and sentenced to death, The conviction and sentence were affirmed by the Pennsylvania Supreme Court and the defendant's execution was scheduled for October 27, 1996, The execution was stayed pending a decision from the United States Supreme Court whether certiori would be granted, On March 31, 1997, the United States Supreme Court denied 94-1499 CRIMINAL the defendant's petition for certiori, The defendant's execution was again scheduled, this time by Governor Tom Ridge, for the week of May 25, 1997, On May 15, 1997, the defendant filed a petition for post-conviction relief He filed an amended petition on September 23, 1997, after his execution was stayed by this court, Over the course of a year, the defendant was afforded a hearing that consisted of approximately seven days of testimony, On November 12, 1998, this court denied the defendant relief On December 31, 2001, the Supreme Court of Pennsylvania denied the defendant's relief A motion for reconsideration was filed and the matter was again considered by the Supreme Court, On September 20,2002, the Supreme Court again denied the petitioner's application for relief by refusing re-argument. In the meantime, the defendant filed a second petition for habeas corpus relief and statutory post- conviction relief On July 18, 2002, this court entered an order giving the defendant twenty days within which to show cause why his second petition should not be dismissed without hearing, In response to that order, the defendant asserted, inter alia, that any dismissal of his post-conviction petition, while his request for re-argument was pending in the Supreme Court on his first petition, would be premature, We agreed and have withheld any order in this case pending disposition of the defendant's first petition, The court was in the process of drafting its opinion and order, dismissing the defendant's second petition for habeas corpus and post-conviction relief, when the praecipe for entry of adverse order pursuant to Rule 301(e) Pa,RApp,P, was filed, This filing took place on November 6, 2002, and has the effect, we believe, of removing this matter from the jurisdiction of this court, This procedural setting is perhaps fitting inasmuch as many of the matters raised in the defendant's second PCRA petition have little to do with what occurred in the trial court, Before we touch on those issues, it should be noted that when raising a second or successive petition for post- 2 94-1499 CRIMINAL conviction relief, a defendant must make a strong prima facie showing demonstrating that a miscarriage of justice took place which no civilized society could tolerate, or that he was innocent of the crimes for which he was charged, Com. v, Carpenter, 555 Pa, 434, 725 A2d 154 (1999); Com. v, Allen, 732 A2d 582 (Pa, 1999), "The purpose behind the stricter standard for second PCRA petitions is so that persons convicted of a crime cannot exploit the ineffective assistance claim as a ploy to destroy the finality of judgments fairly reached," Id, at 592,1 We are absolutely satisfied that there has been no miscarriage of justice in this case, There is not even a hint that Abdul-Salaam is innocent. The first issue raised by the defendant involves the Pennsylvania Supreme Court's failure to review the merits of the petitioner's substantive claims when it retroactively applied certain new rules of review, Involved in this assertion of error (over which this court has absolutely no control) is the so-called "Clifton Material." In an accusation which is nothing short of astonishing, the defendant suggests that this issue was not reviewed by the Supreme Court in 2001 because Abdul-Salaam's prosecutor, 1. Michael Eakin, was to be sworn in as a justice of the Supreme Court early in January of2002, In fact, in the second PCRA petition, the Clifton claim has now become the "Clifton/Eakin/Brady claim." If such legal casuistry serves to stay the execution of sentence in this case, then we do, indeed, need to be, as the Supreme Court has observed, concerned about public respect for the judgments of our criminal courts, The second issue raised by the defendant has to do with the application to the matter sub judice of the case of Apprendi v, New Jersey, 530 US, 466, 120 S,Ct. 2348, 147 L.Ed.2d 435 (2000), This case held that, before certain sentencing enhancements can be applied, the facts supporting the enhancement must be proven beyond a reasonable doubt. In that case, the defendant was charged with the possession of a 1 Citing Com. v. Lawson, 549 A2d 107 (Pa. 1988) wherein the court reiterated the earlier expressed concern of the Supreme Court that, to the extent that the courts have permitted the utterance of the magic words "ineffective assistance of counsel" to establish an automatic right to bring multiple PCRA proceedings, "the system needs revision to prevent abuse by prisoners, a waste of the precious and limited resources available for the criminal process, and public disrespect for the judgments of criminal courts." .IiL at Ill. 3 94-1499 CRIMINAL firearm for an unlawful purpose, He was convicted and sentenced to a term which exceeded the statutory maximum for the underlying charge because the court found, by a preponderance of the evidence, that the firearm had been discharged during an incident that was racially motivated, The court held that because the finding of racial motivation increased the sentence beyond the statutory maximum, the prosecution was obliged to prove that aspect of the case beyond a reasonable doubt. In this case, the sentence imposed was not and could not be beyond the statutory maximum for the underlying offense of first degree murder. In addition, the jury was instructed that in order to impose the death penalty it would have to find the existence of aggravating circumstances beyond a reasonable doubt. In the meantime, there is no authority for the proposition that Apprendi vitiates Pennsylvania's statutory construct for the imposition of the death penalty, The third claim raised in the defendant's second PCRA petition has to do with recent developments in the law regarding fingerprints, At the trial of this case, Pennsylvania State Police Sgt, Loose testified that the latent print allegedly recovered from an extension cord wrapper found at the crime scene matched the inked impressions taken from Abdul-Salaam. The defendant claims that, because of Judge Pollak's decision in US, v, Llera Plaza, 179 F,Sup.2d, 492 (E.D,P A), filed January 7, 2002), fingerprint identification should suddenly be called into question, What is ignored is that Judge Pollak subsequently reversed himself US, v, Llera Plaza, 188 F,Sup.2d, 549 (E.D,PA), More importantly, recent legal revelations concerning fingerprint evidence, even if applied to this case, would not compel a different verdict. Abdul-Salaam's presence at the scene and his identification as the gunman was verified by numerous eyewitnesses, In addition, the defendant was found to be wounded, having been shot through the leg with a bullet fired from Officer Cole's service revolver. Finally, the defendant once again visits the question of whether the defendant was organically brain 4 94-1499 CRIMINAL damaged as a result of childhood abuse, family neglect and dysfunction, This issue was the subject of extended hearing before this court, Not only has the Supreme Court of Pennsylvania upheld this court's ruling that trial counsel had a reasonable basis for not presenting this type of evidence, but went on, in fact, to uphold our factual determination that the defendant does not suffer from organic brain damage, In conclusion, we reiterate that the defendant fails utterly in an attempt to demonstrate that any sort of miscarriage of justice took place in his case, In addition, there is absolutely no doubt that Seifullah Abdul- Salaam killed Police Officer Willis Cole and that he did so with intent and with malice, November ,2002 Kevin A Hess, 1. Jaime Keating, Esquire Chief Deputy District Attorney Michael Wiseman, Esquire F or the Defendant :rlm 5