HomeMy WebLinkAbout1994-1499 Civil
COMMONWEALTH : 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)
SEIFULLAH ABDUL-SALAAM : AFFIANT: PTL. ROBERT SMEE
IN RE: OPINION PURSUANT TO RULE 1925
This appeal was lodged following the filing of a “Praecipe for Entry of Adverse Order
Denying and Dismissing Petitioner/Appellant’s Third Protective Petition for Habeas Corpus
Relief.” We have no reason to dispute the relevant procedural history set forth in the
jurisdictional statement accompanying his notice of appeal set forth as follows.
This Court has previously reviewed aspects of this case at Commonwealth v. Abdul
Salaam, 678 A.2d 342 (Pa. 1996) (direct appeal); Commonwealth v. Abdul Salaam, 808 A2.d
558 (Pa. 2002) (first post-conviction petition) and Commonwealth v. Abdul Salaam, 812 A.2d
497 (Pa. 2002) (second post-conviction petition).
Following post-conviction proceedings in the courts of Pennsylvania, Petitioner filed a
petition for federal habeas corpus relief in 2002 (Abdul Salaam v. Beard, 02-2124). On July 7,
2008, the federal proceedings were held in abeyance to permit exhaustion of an arguably new
claim for relief.
Petitioner/Appellant first presented this new claim for relief to the Court of Common
Pleas, Cumberland County on January 16, 2007 (while the federal case was still active) when he
CP-21-CR-1499-1994
filed a Third Protective Petition for Habeas Corpus Relief Pursuant to Article I, Section 14 of the
Pennsylvania Constitution and Statutory Post-Conviction Relief Under 42 Pa.C.S. § 9542 et seq.
and Consolidated Memorandum of Law, in order to comply with the PCRA time limits for
bringing arguably newly discovered evidence to the attention of the lower court.
Petitioner/Appellant amended and supplemented that pleading on August 26, 2008 and April 17,
2009.
On August 20, 2008 Petitioner/Appellant filed a discovery motion related to the third
petition. This court has taken no action of record on these filings. On August 18,
2009petitioner/Appellant filed a Praecipe for Entry of Adverse Order Pursuant to Rule 301(D)
and (E) Pa.R.App.P.
We underscore that the 2007 filings in this case were lodged in the form of a “Protective
Petition.” Inasmuch as federal proceedings were pending, the petitioner was seeking no action
from this court. The procedural posture changed in July of 2008 when Federal District Judge
Jones ruled certain claims in the federal habeas corpus proceeding were unexhausted and “must
be presented to the state court.” The petitioner’s subsequent filings, however, continued to
denominate his petition as “Protective.” For that reason, his motions were filed without the court
taking action. We are the first to admit that, had the latest petition been read more closely, the
court would have taken action. Unfortunately, we received no correspondence or other inquiry
1
from either the petitioner or the Commonwealth as to the status of the most recent filings.
1
Our review of the record indicates that the Commonwealth filed a request for evidentiary hearing in August of
2008. However, subsequent filings continued to refer to the petition as “protective.”
2
CP-21-CR-1499-1994
Instead, after the motion languished for a year, the petitioner filed a “Praecipe for Entry of
Adverse Order” purportedly in accordance with Pennsylvania Rules of Appellate Procedure;
specifically, Pa.R.Appl.P. 301(d) and (e).
It is questionable whether Pa.R.Appl.P. 301(e) has any application in this matter. That
Rule provides:
Where the exigency of the case is such as to impel
an immediate appeal and the party intending to
appeal an adverse action is unable to secure the
formal entry of an appealable order pursuant to the
usual procedures, the party may file in the lower
court and serve a praecipe for the entry of an
adverse order, which action shall constitute entry
of an appealable order for the purpose of these
rules.
Since a year elapsed during which the petitioner failed to make any inquiry concerning the status
of his motion, one can hardly regard the matter as being exigent. Nor is it one in which the entry
of an order could not have been obtained by following “usual procedures.” Nonetheless, whether
this appeal is quashed or the matter remanded, we suggest that the result should be the same.
The petition of the appellant will be before us, once again, with the requirement that some
decision be made with regard to it.
November 19, 2009 ______________________________
Kevin A. Hess, J.
Jaime Keating, Esquire
First Assistant District Attorney
Michael Wiseman, Esquire
For the Defendant
3