Com. v. Sallam, S.

J-S23007-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

SHAMSIDDIN Q. SALLAM :

:

Appellant : No. 1596 EDA 2022

Appeal from the PCRA Order Entered May 24, 2022

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0006240-2011

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

SHAMSIDDIN Q. SALLAM :

:

Appellant : No. 1597 EDA 2022

Appeal from the PCRA Order Entered May 24, 2022

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0006241-2011

BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.

MEMORANDUM BY PANELLA, P.J.: FILED SEPTEMBER 15, 2023

Shamsiddin Sallam appeals from the Philadelphia County Court of

Common Pleas’ order denying his second petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-9546, after an

evidentiary hearing. Although the PCRA court found the untimely petition met

an exception to the PCRA’s time bar, it ultimately concluded the petition was

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meritless. We find no error in either of the PCRA court’s conclusions, and we

therefore affirm.

This Court provided a more detailed factual account of this case on direct

appeal, but only a brief summary is necessary for the purposes of this appeal.

See Commonwealth v. Sallam, 3403 EDA 2012 (Pa. Super. filed October

10, 2013) (unpublished memorandum). Sallam was charged with one count

of first-degree murder each for the killing of Harry Williams and the killing of

Gregory Jarvis in 2009. The men had been shot in Williams’s apartment in the

boarding house where Williams was staying, and police recovered eight

cartridge casings from the apartment that were later determined to have been

fired from a single firearm.

The matter proceeded to a jury trial and the jury convicted Sallam of

two counts of first-degree murder and related offenses. The trial court

imposed the mandatory sentence of life imprisonment for each of the first-

degree murder convictions, along with concurrent lesser sentences for the

related offenses.

Sallam appealed to this Court, raising eight claims of error. This Court

rejected all eight claims as meritless, and affirmed the judgment of sentence.

See id. Our Supreme Court denied Sallam’s petition for allowance of appeal

in 2014. Sallam filed a timely first PCRA petition, which the PCRA court denied.

This Court affirmed the denial of the PCRA petition, and the Supreme Court

denied Sallam’s petition for allowance of appeal in 2018.

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Sallam filed a pro se second PCRA petition in March 2021, and appointed

counsel eventually filed an amended petition. In the petitions, Sallam

essentially asserted he was entitled to relief based on newly-discovered

evidence in the form of a statement by Williams’s sister, Miriam Boeri. He

contended the Commonwealth committed a Brady1 violation by failing to

disclose this statement.

The PCRA court held a hearing on the petition, which took place on

February 18, 2022 and May 13, 2022.2 At the February hearing, Sallam called

Boeri to testify. Boeri maintained that she and Williams had spoken on the

phone a few days before his murder, and that Williams told her some men

with guns came to the boarding house where he was staying either on the day

of their conversation or the day before. See N.T., 2/18/2022, at 8. According

to Boeri, Williams told her the men were looking for a man named “Snap,” a

person Williams had known from prison and had also provided with his

address. See id. at 8-9. “Snap” was Sallam’s nickname. See id. at 12. The

men left the apartment when they were unable to find “Snap.”

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1 Brady v. Maryland, 373 U.S. 83 (1963).

2 The notes of testimony from the hearings were not in the certified record

originally sent to this Court. Of course, it is Sallam’s burden as the appellant

to ensure the certified record includes what is necessary for this Court to

resolve his appeal. Nonetheless, upon informal inquiry, our Prothonotary was

able to secure the notes of testimony from both hearings and those notes are

now included in the certified record.

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Boeri also testified that she spoke with Detective George Pirrone from

the Philadelphia Police Department within one or two days of her brother’s

murder. She claimed she told the detective what Williams had told her about

the armed men coming to his apartment looking for “Snap” in the days

preceding his murder. See id. at 9.

Boeri stated she also informed Assistant District Attorney (”ADA”)

Richard Sax about her phone conversation with Williams, and although she

wanted to testify about that conversation, ADA Sax told her she could not.

See id. at 10, 13. Boeri claimed ADA Sax also told her not to tell defense

counsel or Sallam’s family about the phone conversation, and maintained ADA

Sax did not update her about the date of trial. See id. at 13.

The hearing was continued to May 13, 2022 and ADA Sax testified on

that date. ADA Sax relayed that he had an initial conversation with Boeri after

her brother’s murder, a conversation ADA Sax then memorialized in a memo.

He described the conversation with Boeri as “bizarre” and indicated it led him

to question Boeri’s credibility. See N.T., 5/13/2022, at 13-14. He maintained

Boeri did not mention anything to him about her conversation with Williams

regarding the armed men coming to Williams’s boarding house either in their

initial conversation, or in any of the follow-up conversations he had with Boeri.

See id. at 14, 15, 20.

ADA Sax also recounted that he had reviewed Detective Pirrone’s file

from the case. According to ADA Sax, the detective made a note that Boeri

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had told him about a group of men who came to Williams’s boarding house.

See id. at 14. However, there was nothing in that note identifying who the

men were specifically looking for or anything about the men being armed. See

id. at 17, 37. The note was, ADA Sax opined, “of no moment either for or

against the defendant.” Id. at 26.

ADA Sax testified, however, that the information in Boeri’s statement,

i.e. armed men looking for Sallam at Williams’s boarding house, as well as

Williams knowing Sallam from prison and giving him his address, would have

actually been helpful to the Commonwealth’s case. See id. at 20-21, 28, 33.

ADA Sax explained it would have established that Sallam and Williams knew

each other and Sallam knew where Williams lived. Nonetheless, ADA Sax

testified that, even if Boeri had told him about Williams’s statement, he could

not have introduced Boeri’s statement regarding what Williams had told her

as it was hearsay. See id. at 18, 31.

Finally, ADA Sax stated he did inform Boeri of the trial date and that he

intended to call her as a life-in-being witness. See id. at 18-19, 21-22. Before

Boeri was called to testify, ADA Sax discussed her testimony with her. Boeri

did not mention her phone conversation with Williams about the armed men

at that time, but if she had, ADA Sax said he would have informed defense

counsel. See id. at 25-26, 32. He continued to insist this evidence would have

been inculpatory. See id. at 25, 30-33.

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Following the hearing, the PCRA court denied Sallam’s petition. Sallam

filed a timely notice of appeal.3 In his appeal, Sallam raises a single issue,

essentially that the PCRA court erred by finding the Commonwealth did not

commit a Brady violation by failing to disclose Boeri’s statement regarding

her phone conversation with Williams. This claim fails.

Our review of an order dismissing a PCRA petition is limited to examining

whether the PCRA court’s determinations are supported by the record and the

court’s decision is free of legal error. See Commonwealth v. Shaw, 217

A.3d 265, 269 (Pa. Super. 2019). Although we give great deference to the

factual findings of the PCRA court and will not disturb those findings unless

they have no support in the record, we apply a de novo standard of review to

the PCRA court’s legal conclusions. See Commonwealth v. Benner, 147

A.3d 915, 919 (Pa. Super. 2016).

Before we can review the merits of Sallam’s claim, we must determine

as an initial matter whether Sallam’s instant PCRA petition was timely, as a

petition’s timeliness implicates our jurisdiction. See Commonwealth v.

Lawson, 90 A.3d 1, 4 (Pa. Super. 2014). A PCRA petition, including a second

or subsequent one, must be filed within one year of the date that a petitioner’s

judgment of sentence became final. See 42 Pa. C.S.A. § 9545(b)(1). Here,

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3 The PCRA court’s order denying the PCRA petition listed two trial court docket

numbers. Sallam filed two separate notices of appeal from the order in

compliance with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). This

Court later granted Sallam’s motion to consolidate the two cases.

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Sallam’s judgment of sentence became final in 2014 and this petition was not

filed until 2021. As the trial court found, and nobody disputes, the petition is

facially untimely.

However, this Court has jurisdiction to review a petition filed beyond the

one-year time limit if the petitioner alleges and proves any one of the three

statutory exceptions to the time-bar. See 42 Pa. C.S.A. § 9545(b)(1) (i)-(iii).

One of those timeliness exceptions is the “newly-discovered facts” exception,

which requires a petitioner to establish “he did not know the facts upon which

he based his petition and could not have learned those facts earlier by the

exercise of due diligence.” Commonwealth v. Brown, 111 A.3d 171, 176

(Pa. Super. 2015) (citation omitted); 42 Pa C.S.A. § 9545(b)(1)(ii). A petition

invoking one of the timeliness exceptions must be filed within one year of the

date the claim could have first been presented. See 42 Pa. C.S.A. §

9545(b)(2).

Here, the PCRA court found Sallam had met the newly-discovered facts

exception. It explained:

On March 10, 2020, Boeri visited [Sallam] in prison as part of the

Victim’s Offender Dialogue Program. At that visit, [Sallam] learned

for the first time about Williams’[s] statement to Boeri a few days

before he was murdered. According to Boeri, she did not testify

about this at trial or inform [Sallam’s] attorney because ADA Sax

said that she could [not] testify about it or tell [Sallam]. [Sallam]

could not have discovered these facts through the exercise of due

diligence and [he] filed the instant petition on March 1, 2021, less

than a year after the period to raise a claim pursuant to the PCRA

timeliness exception would have expired.

Trial Court Opinion, 6/13/2022, at 10.

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We see no error in the PCRA court’s determination.4 However, the PCRA

court then stated that even though Sallam had met the timeliness exception,

he had failed to demonstrate his Brady claim warranted any relief. See id.

Sallam takes exception to this conclusion, and argues the

Commonwealth violated Brady by deliberately withholding Boeri’s statement

that Williams had told her armed men had come to his apartment looking for

“Snap.” As Sallam acknowledges, a Brady violation consists of three

elements: (1) suppression by the prosecution; (2) of evidence, whether

exculpatory or impeaching, favorable to the defendant; and (3) to the

prejudice of the defendant. See Commonwealth v. Tedford, 960 A.2d 1, 30

(Pa. 2008).

In finding Sallam had failed to establish a Brady violation here, the

PCRA court determined Sallam had not shown that the Commonwealth

suppressed Boeri’s statement or that the statement was exculpatory. The

court explained:

[Sallam’s] claim fails because he cannot show that the

Commonwealth suppressed Williams’[s] statement. Based on the

evidence put forth at the evidentiary hearings, the only

information that the Commonwealth had regarding Williams’[s]

statement prior to and during trial was that a group of men came

to Williams’[s] boarding house searching for an unknown

individual days before the shooting. This Court does not find

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4 The PCRA court also found Sallam had met the “governmental interference”

exception to the timeliness requirement found at 42 Pa. C.S.A. §

9545(b)(1)(i). However, a petitioner only needs to establish that he has met

one of the three statutory exceptions, so it is unnecessary for us to also

address this exception.

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Boeri’s testimony that she told Detective Pirrone and ADA Sax

about armed men searching for “Snap” credible. Quite the

opposite, in fact, as this Court found Boeri’s testimony to be

incredible. There was no evidence presented to this Court which

corroborated her testimony. Boeri made clear her personal

frustration with the police and the quality of their investigation.

Boeri admitted that she was upset because she felt she was being

ignored, mistreated, and intimidated by detectives. She also

stated she was angry [Sallam] received a life sentence. As the

Commonwealth did not have the information about the armed

men or that they were searching for [Sallam], this information

could not have been suppressed.

[Sallam] also fails to establish that the allegedly suppressed

evidence was exculpatory. The fact that armed men came to

Williams’[s] boarding house looking for [Sallam] days before the

shooting does not make it any less likely that [Sallam] shot

Williams and Jarvis. Williams’[s] statement was actually

inculpatory as it established that [Sallam] and Williams knew each

other, and that [Sallam] was familiar with the address where the

shooting occurred. The evidence at trial also showed that there

was only one shooter as all projectiles and fired cartridge casings

were found to have been fired from the same gun and video of the

boarding house showed Jarvis entering with another individual

with the same physical characteristics as [Sallam] before the

shooting occurred and only the perpetrator leaving afterward.

Trial Court Opinion, 6/13/2022, at 11 (citation to notes of testimony omitted).

Sallam does not directly challenge the PCRA court’s determination that

the Commonwealth did not suppress Boeri’s statement. Sallam continues to

claim Boeri told Detective Pirrone and ADA Sax that Williams had told her that

armed men had come to his apartment looking for “Snap.”

However, as the Commonwealth points out, the PCRA court explicitly

stated it had made a credibility determination in that it did not believe Boeri’s

testimony in this regard. And we agree with the Commonwealth that this

credibility determination is supported by the record, and we are therefore

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bound by it. See Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa. 2009)

(providing that credibility determinations are for the PCRA court to make and

reviewing courts are bound by those determinations when they are supported

by the record). Based on this credibility determination, the PCRA court

concluded the Commonwealth did not even have the evidence Sallam claims

Boeri provided, and as such, could not and did not suppress it. We find no

error in this conclusion.

As for the PCRA court’s determination that the evidence was not

favorable to Sallam, Sallam claims only that the evidence would have likely

prompted defense counsel to investigate potential other suspects. The

Commonwealth counters:

This claim is not supported by reasoning that explains why men

looking for [Sallam] would serve as suspects in a shooting that

was determined to be committed with one firearm. There is no

explanation for how this refutes any of the evidence presented at

trial. In fact, [as discussed above], the [PCRA] court properly

found that the evidence on its face was inculpatory.

Commonwealth’s Brief at 15. We agree Sallam has also not shown the PCRA

court erred in finding the evidence Sallam alleges the Commonwealth

suppressed was favorable to him.

In the end, Sallam has failed to show the PCRA court erred by finding

his Brady claim does not provide him with any basis for relief.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/15/2023

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