J-S37037-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

HASSAN AKBAR 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 320 EDA 2021

Appeal from the Order Entered January 19, 2021

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0007173-2009

BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 19, 2022

Appellant Hassan Akbar appeals from the order entered by the Court of 

Common Pleas of Philadelphia County denying Appellant’s petition for relief 

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541 et seq. 

After careful review, we affirm.

The PCRA court summarized the factual background and procedural 

history of this case as follows:

On April 14, 2010, the jury found [Appellant] guilty of 

aggravated assault, criminal conspiracy, possession of a firearm 

by a prohibited person and possessing instruments of crime. The 

evidence adduced at trial showed that in the early morning hours 

of November 13, 2008, Kemp Carter and Regina Holmes arrived 

at Carter’s house and saw [Appellant] and Darnell Lewis sitting in 

a parked car in front of the house. When Carter and Holmes 

approached the front door, [Appellant] and Lewis appeared behind 

them with guns drawn. [Appellant] told them, “Look, this is how 

it’s going down. We are all going in the house together,” and then 

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* Former Justice specially assigned to the Superior Court.
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fired two shots at Carter’s feet. Carter shoved Holmes out of the 

way and made a run for it. As Carter was running away, he was 

shot from behind. The bullet pierced his liver, bladder, and 

stomach. [Appellant] and Lewis then fled the scene. ([Notes of 

Testimony (N.T.)], 4/9/10, 68-84). Subsequently, both Carter and 

Holmes identified [Appellant] and Lewis in photo arrays. The 

police also received an anonymous tip about a car with the license 

plate “GKW 8662” that had been parked in front of Carter’s house 

before the shooting. Police officers began searching for this car 

and spotted it being driven by Lewis. Police took Lewis into 

custody, who confessed to the crime and implicated [Appellant] 

as his partner in crime that night. Lewis told police that he never 

had a firearm; it was only [Appellant] who shot at Carter. (N.T. 

4/8/10, p. 21-55). [Appellant] was arrested on December 2, 

2008, at which time he gave the false identity of “Elijah Juan 

Blaloc” instead of his real name. (N.T. 4/9/10, p. 45-47).

At trial, Antoine (aka “Antwuan”) Nazario testified as an alibi 

witness. He stated that [Appellant] was with him at a bachelor 

party from the evening of November 13, 2008 into the morning of 

November 14, 2008. On cross-examination, Nazario testified that 

on the night of November 12, 2008 into the early morning hours 

of November 13, 2008, he was at home and did not recall when 

he went to sleep. The prosecutor noted that the incident at 

Carter’s house actually happened on the early hours of November 

13, 2008. Nazario stated that no one had told him the shooting 

was early, not late, on November 13, 2008. (N.T. 4/12/10, p. 116-

131).

PCRA Court Opinion (P.C.O.), 5/18/21, at 1-3.

On July 12, 2010, Appellant was sentenced to an aggregate term of 

twenty-five to fifty years’ imprisonment, which included two mandatory 

minimum sentences. On July 30, 2014, this Court affirmed Appellant’s 

convictions but remanded for resentencing. After both parties appealed, our 

Supreme Court vacated this Court’s decision and remanded for resentencing 

in light of its decision in Commonwealth v. Fields, 630 Pa. 625, 107 A.3d 
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738 (2014), which was pending at the time this Court affirmed the judgment 

of sentence.1 

On August 27, 2015, the trial court resentenced Appellant to the same 

aggregate sentence of twenty-five to fifty years’ incarceration, but removed 

the mandatory minimum sentences. Appellant filed a post-sentence motion 

for the reconsideration of his sentence, but did not file a direct appeal.

On June 29, 2016, Appellant filed a pro se PCRA petition in which he 

raised claims of ineffectiveness of counsel, including a claim that trial counsel 

was ineffective for failing to file a direct appeal. On September 18, 2017, the 

PCRA court reinstated Appellant’s right to file a direct appeal. On September 

26, 2018, this Court affirmed the judgment of sentence and on March 20, 

2019, the Supreme Court denied Appellant’s petition for allowance of appeal.

On April 22, 2019, Appellant filed another PCRA petition. The PCRA 

court appointed Appellant counsel, who filed an amended petition on August 

6, 2019. Thereafter, on March 10, 2020, the PCRA court notified Appellant of 

its intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 

907. On January 19, 2021, the PCRA court denied Appellant’s petition. This 

timely appeal followed.

Appellant raises the following issues for review on appeal:

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1

In Fields, the Supreme Court held that “Section 9714(a)(1) of the 

Sentencing Code, 42 Pa.C.S. § 9714(a)(1), requires that a second-strike 

offender be sentenced to the prescribed minimum term of incarceration for 

each conviction of a crime of violence that is part of the second strike.” Fields, 

630 Pa. at 636, 107 A.3d at 744.
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1. Whether the PCRA court erred by dismissing the PCRA petition 

when clear and convincing evidence was presented that trial 

counsel was ineffective for failing to properly present the 

testimony of the alibi witness, failing to present an available 

defense witness, failing to protect [A]ppellant’s rights pursuant 

to the Confrontation Clause, and failing to challenge the 

Affidavit of Probable Cause and request a Franks hearing. 

2. Whether the PCRA court erred by dismissing the PCRA petition 

when clear and convincing evidence was presented to establish 

a violation of [A]ppellant’s constitutional right to due process 

based on prosecutorial misconduct; evidence that did not prove 

his guilt beyond a reasonable doubt; and ineffective 

representation of trial counsel. 

3. Whether the PCRA court erred by dismissing the PCRA petition 

when clear and convincing evidence was presented to establish 

the trial court issued an illegal sentence by imposing a 50 year 

maximum sentence in excess of the maximum aggregate 

sentence for three second-degree felonies of 30 years. 

4. Whether the PCRA court erred by failing to grant an evidentiary 

hearing.

Appellant’s Brief, at 8.

Our standard of review is as follows:

Our review of a PCRA court's decision is limited to examining 

whether the PCRA court's findings of fact are supported by the 

record, and whether its conclusions of law are free from legal 

error. We view the findings of the PCRA court and the evidence of 

record in a light most favorable to the prevailing party. With 

respect to the PCRA court's decision to deny a request for an 

evidentiary hearing, or to hold a limited evidentiary hearing, such 

a decision is within the discretion of the PCRA court and will not 

be overturned absent an abuse of discretion.

Commonwealth v. Maddrey, 205 A.3d 323, 327 (Pa.Super. 2019) (quoting 

Commonwealth v. Mason, 634 Pa. 359, 130 A.3d 601, 617 (2015) (internal 

citations and quotation marks omitted)).
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In Appellant’s first question for review, he raises multiple claims that his 

trial counsel provided ineffective representation. In reviewing such claims, we 

are guided by the following principles:

[a]s originally established by the United States Supreme Court in 

Strickland v. Washington, 466 U.S. 668, [104 S.Ct. 2052, 80 

L.Ed.2d 674] (1984), and adopted by Pennsylvania appellate 

courts, counsel is presumed to have provided effective 

representation unless a PCRA petitioner pleads and proves all of 

the following: (1) the underlying legal claim is of arguable merit; 

(2) counsel's action or inaction lacked any objectively reasonable 

basis designed to effectuate his client's interest; and (3) 

prejudice, to the effect that there was a reasonable probability of 

a different outcome at trial if not for counsel's error.

Commonwealth v. Selenski, 228 A.3d 8, 15 (Pa.Super. 2020) (quoting 

Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa.Super. 2014) (citations 

omitted).

Appellant claims that trial counsel was ineffective in failing to properly 

present the testimony of alibi witness Antoine Nazario (hereinafter 

“Nazario”).

2

 Specifically, Appellant argues that trial counsel provided Nazario 

with an incorrect date and time during direct examination for which Nazario 

was to provide Appellant with an alibi. Appellant asserts that Nazario’s alibi 

testimony became “severely compromised” after the prosecutor confronted 

Nazario on cross-examination with the correct date and time of the crimes at 

issue. Appellant’s Brief, at 10.

The PCRA court concluded this argument to be a mischaracterization of

the record as Nazario testified to his own recollection of the events near the 

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2 Mr. Nazario’s first name is spelled both Antoine and Antwuan in the record.
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time of the crimes at issue. Nazario asserted that he remembered this time 

period well as he attended his bachelor party on the evening of November 13, 

2008, his fiancee’s birthday was November 14, 2008, and his wedding was 

held on November 15, 2008. N.T. Trial, 4/12/09, at 116-19. 

As such, Nazario agreed with trial counsel on direct examination that

that Appellant was with him the entire evening of November 13, 2008 into the 

early morning hours of November 14, 2008 at Nazario’s bachelor party. 

However, as noted above, Appellant was accused of assaulting the victims in 

the early morning hours of November 13, 2018. 

The PCRA court concluded that Appellant’s ineffectiveness claim had no 

arguable merit as trial counsel did not provide Nazario with incorrect dates or 

mislead Nazario in any way, but more simply, Nazario’s testimony did not 

support an alibi defense. 

Regardless of whether there is any arguable merit to this particular claim 

of ineffectiveness, we find that trial counsel’s alibi defense presentation did 

not result in actual prejudice such that “there is a reasonable probability that, 

but for counsel’s unprofessional errors, the result of the proceeding would 

have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. 

In this case, the prosecution introduced overwhelming evidence of 

Appellant’s guilt through eyewitness testimony. Both Mr. Carter and Ms. 

Holmes testified at trial that Appellant and Lewis threatened them with 

firearms as they were entering Mr. Carter’s home. N.T., 4/7/10, 77; 4/9/10, 
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at 68, 73, 86.3 Ms. Holmes asserted that she observed Appellant shoot at the 

ground to push them into the house and then she observed Mr. Lewis shoot

Mr. Carter. N.T., 4/7/10, 77-78. While Mr. Carter could not identify which of 

his assailants shot him, he averred that both men had guns when they 

attempted to push him and Ms. Holmes into the house. N.T., 4/9/10, 74. Mr. 

Holmes testified that the men shot him in the stomach and the bullets hit his 

liver, bladder and kidney. Id. at 74. In addition, Mr. Carter and Ms. Holmes 

made pre-trial identifications of Appellant and Lewis at their attackers in photo 

arrays presented to them by detectives. N.T., 4/7/10, 92-93; 4/9/10, at 78-

81. 

Accordingly, we find that Appellant failed to establish the requisite 

prejudice that the result of the proceeding would have been different. It is 

well-established that “[a] failure to satisfy any prong of the ineffectiveness 

test requires rejection of the claim of ineffectiveness.” Selenski, 228 A.3d at 

15 (quoting Commonwealth v. Daniels, 600 Pa. 1, 18, 963 A.2d 409, 419

(2009)) (emphasis added). As such, this ineffectiveness claim does not entitle 

Appellant to collateral relief.

Appellant also claims that trial counsel was ineffective in failing to call 

Christina Nazario as a witness. In reviewing this claim, we are mindful of the 

following principles:

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3 We observe that the notes of testimony from Appellant’s trial are labeled 

incorrectly as being transcribed on April 9, 2009.
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When raising a claim of ineffectiveness for the failure to call a 

potential witness, a petitioner satisfies the performance and 

prejudice requirements of the Strickland test by establishing 

that: (1) the witness existed; (2) the witness was available to 

testify for the defense; (3) counsel knew of, or should have known 

of, the existence of the witness; (4) the witness was willing to 

testify for the defense; and (5) the absence of the testimony of 

the witness was so prejudicial as to have denied the defendant a 

fair trial. Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 

523, 536 (2009); Commonwealth v. Clark, 599 Pa. 204, 961 

A.2d 80, 90 (2008). To demonstrate Strickland prejudice, a 

petitioner “must show how the uncalled witnesses' testimony 

would have been beneficial under the circumstances of the case.” 

Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d 1110, 1134 

(2008). Thus, counsel will not be found ineffective for failing to

call a witness unless the petitioner can show that the witness's

testimony would have been helpful to the defense.

Commonwealth v. Auker, 545 Pa. 521, 681 A.2d 1305, 1319 

(1996). “A failure to call a witness is not per se ineffective

assistance of counsel for such decision usually involves matters of 

trial strategy.” Id.

Commonwealth v. Sneed, 616 Pa. 1, 22–23, 45 A.3d 1096, 1108–09 

(2012).

While Appellant argues that Christina Nazario “was available and willing 

to testify ... to certain facts that would establish Appellant’s actual innocence,” 

Appellant failed to provide this Court or the PCRA court with any details as to 

the proposed testimony of Christina Nazario and its relevance to Appellant’s 

defense, let alone shown how her testimony would have compelled a different 

verdict. Appellant’s undeveloped claim does not entitle him to relief under the 

PCRA. Sneed, supra.

Appellant also argues that trial counsel was ineffective in failing to 

protect his rights pursuant to the Confrontation Clause. Specifically, Appellant 

suggests that defense counsel should have objected when Detective Rudolph 
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Valentine testified regarding the witnesses’ identification of Appellant from 

photo arrays as Appellant claims that Detective Valentine was “not the 

detective that conducted the pre-trial identification according to the affidavit 

of probable cause.” Appellant’s Brief, at 11. 

We agree with the PCRA court’s assessment that his claim has no 

arguable merit. While the PCRA court recognized that the affidavit of probable 

cause states that Detective Maurizio showed the victim the photo array 

containing Appellant’s photo, the PCRA court found that this did not mean that 

Detective Valentine was not also present when the witnesses were shown the 

photo arrays. 

Detective Valentine testified at trial that he prepared the photo arrays 

which included Appellant’s photo and personally showed them to the victim 

and Ms. Holmes, who both identified Appellant as one of the attackers. N.T. 

4/12/10, 87-90. Detective Valentine also testified at Appellant’s preliminary 

hearing that he was present when Holmes identified Appellant in the photo 

array. N.T. 5/21/09, 13. The victim and Ms. Holmes both testified that 

detectives (plural) showed them photo arrays containing Appellant’s picture. 

N.T. 4/7/10, 92; 4/9/20, 79-80. 

As such, as the record shows that Detective Valentine was present when 

the victim and Mrs. Holmes were shown the photo arrays, we find no arguable 

merit to Appellant’s claim that trial counsel should have raised a Confrontation 

Clause objection. 
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Appellant next claims trial counsel was ineffective in failing to request a 

Franks hearing to challenge the affidavit of probable cause, which Appellant 

claims contained false information. While Appellant fails to provide a full 

citation, we surmise he is referring to the decision in Franks v. Delaware, 

438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). 

The Pennsylvania Supreme Court summarized the United States 

Supreme Court's holding in Franks as follows:

[Franks] addressed whether a defendant has the right, under the 

Fourth and Fourteenth Amendments, to challenge the truthfulness 

of factual averments in an affidavit of probable cause. The Court 

held where the defendant makes a substantial preliminary 

showing the affiant knowingly and intentionally, or with reckless 

disregard for the truth, included a false statement in the affidavit, 

the Fourth Amendment requires a hearing be held at the 

defendant's request. The Court emphasized the defendant's attack 

on the affidavit must be “more than conclusory and must be 

supported by more than a mere desire to cross-examine”; the 

defendant must allege deliberate falsehood or reckless disregard 

for the truth, accompanied by an offer of proof. If the defendant 

meets these requirements, but the remainder of the affidavit's 

content is still sufficient to establish probable cause, no hearing is 

required. If the affidavit's remaining content is insufficient, a 

hearing is held, at which the defendant must establish, by a 

preponderance of the evidence, the allegation of perjury or 

reckless disregard. If he meets this burden, the affidavit's false 

material is disregarded; if its remaining content is insufficient to 

establish probable cause, the search warrant is voided, and the 

fruits thereof are excluded.

Commonwealth v. James, 620 Pa. 465, 478, 69 A.3d 180, 188 (Pa. 

2013) (citations omitted).

In this case, Appellant specifically alleges that the affidavit of probable 

cause contained false information in that it stated that one photo array was 
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shown to the witnesses, when the witnesses testified that they saw “a lot of 

photos.” Appellant’s Brief, at 10-11. 

Our review of the record shows that the victim testified that he was 

shown a photo array in the hospital and another photo array at his home. 

When the victim was asked how many photographs the detectives showed 

him and more specifically whether it was a lot of photos, the victim responded 

affirmatively. N.T., 4/9/10, 101-102. We agree with the PCRA court’s 

acknowledgement that a photo array, by definition, contains numerous 

photos. As such, it is not unreasonable for the victim to have seen “a lot of 

photos” in two photo arrays. 

As such, we conclude that Appellant did not provide adequate support 

for his claim that a false statement was made in the affidavit of probable cause 

that would have warranted a hearing pursuant to Franks.

Appellant also claims that his constitutional right to due process was 

violated by the Commonwealth’s failure to prove each element of the crimes 

charged beyond a reasonable doubt. This argument is a challenge to the 

sufficiency of the evidence, a claim that is not cognizable under the PCRA as 

it should have been raised on direct appeal. 42 Pa.C.S.A. § 9544(b) (stating 

“an issue is waived if the petitioner could have raised it but failed to do so 

before trial, at trial, during unitary review, on appeal[,] or in a prior state 

postconviction proceeding”). As such, we find this issue waived.

Appellant claims for the first time on appeal that the prosecution denied 

him due process by “the knowing and intentional use of perjured testimony” 
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from Detective Valentine. Appellant’s Brief, at 11. As a general rule, “issues

not raised in a PCRA petition cannot be considered on appeal.” 

Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011) (quotation 

and citations omitted); Pa.R.A.P. 302(a) (“Issues not raised in the lower court

are waived and cannot be raised for the first time on appeal”).4 Moreover, 

this claim of prosecutorial misconduct is also waived as Appellant failed to 

raise the issue during trial or on direct appeal. 42 Pa.C.S.A. § 9544(b).

Lastly, Appellant argues that the trial court issued an illegal sentence as

he asserts that the criminal information did not set forth the degree of the 

aggravated assault charge. As such, Appellant claims he is entitled to “the 

lowest gradation provided by Section 2701” (second-degree felony) and 

argues that the conspiracy charge should be graded the same as the 

aggravated assault charge. Appellant’s Brief, at 19. Further, Appellant 

argues that he received an illegal maximum aggregate sentence of fifty years’ 

imprisonment when the maximum aggregate sentence for three second 

degree felony offenses is thirty years’ imprisonment. 

However, there is no record support for this argument as the criminal 

information clearly states that Appellant was charged with aggravated assault 

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4 Our Supreme Court recently expanded the opportunities for a PCRA 

petitioner to raise claims of PCRA counsel ineffectiveness for the first time on 

collateral appeal. See Commonwealth v. Bradley, ––– A.3d ––––, 2021

WL 4877232 (Pa. 2021). However, since Appellant did not couch his claim of 

prosecutorial misconduct in terms of the ineffectiveness of his counsel, the 

dictates of Bradley do not impact this case.
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as a felony of the first degree. The information lists Count 1 as “Aggravated 

Assault (F1)” under 18 Pa.C.S.A. § 2702(a). Although the information does 

not specify the subsection of Section 2702(a), it states Appellant “attempted 

to cause serious bodily injury to another, or caused such injury intentionally, 

knowingly or recklessly under the circumstances manifesting extreme 

indifference to human life.” This language is found in Section 2702(a)(1), 

which is graded as a first-degree felony. In addition, the charges against 

Appellant were reviewed several times including at his preliminary hearing and 

arraignment. As such, Appellant is not entitled to relief.

For the foregoing reasons, we conclude that the PCRA court correctly 

denied Appellant’s petition without a hearing as he has failed to set forth any 

claims that would entitle him to collateral relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/19/2022